Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

State appeal against sentence - Aggravated armed robbery and unlawful wounding - Whether sentence manifestly inadequate

Criminal Appeals Act 2004 (WA), s 41(4)(a)

Sentencing Act 1995 (WA), s 9AA, s 9AA(6)

Forkin v The State of Western Australia [2013] WASCA 51

The State of Western Australia v Bropho [2013] WASCA 44

The State of Western Australia v Walley [2008] WASCA 12

1 MARTIN CJ: This appeal should be allowed for the reasons given by Pullin JA. The sentence imposed upon the respondent should be set aside, and instead the respondent sentenced to a total of 4 years imprisonment in the terms proposed by Pullin JA and for the reasons given by him, with which I agree.

2 PULLIN JA: This is a State appeal against sentence. The respondent was convicted of one count of aggravated armed robbery and one count of unlawful wounding. The respondent pleaded guilty and was sentenced to 2 years 6 months' imprisonment for the robbery offence, and 12 months' imprisonment for the unlawful wounding offence. The sentences were ordered to be served concurrently. The sentences were backdated to commence on 26 February 2013 and the respondent was made eligible for parole.

3 The appellant appeals on the basis that the sentence imposed for the aggravated armed robbery offence was manifestly inadequate (ground 1), and that the total sentence was likewise manifestly inadequate and infringed the first limb of the totality principle (ground 2). Leave to appeal on ground 1 has been granted. The application for leave in relation to ground 2 was referred to the hearing of the appeal.

4 The respondent conceded that the appeal should be upheld and counsel for the respondent confined his submissions to the issue of resentencing and the effect of the concession. Notwithstanding the concession the court must satisfy itself that the sentencing judge erred before upholding the appeal.

5 The respondent went to the BWS liquor store in Palmyra with her 14-year-old daughter and another adult female. The respondent entered the store armed with a black handled knife with a 10 cm long serrated blade. She raised the knife in her right hand at head height, approached an employee of the store and threatened him with the knife. The employee backed away to a safe distance and the respondent walked behind the service counter to where bottles of bourbon and rum were located. The respondent picked up a bottle of bourbon and dropped it which caused it to smash. She picked up another bottle and was then approached by another employee who confronted her and challenged her. The respondent lunged at this employee with the knife, striking him underneath the shoulder blade. The knife penetrated the employee's shirt and skin and caused a penetration wound approximately 1 cm in length and 1 cm deep. He later attended hospital and the wound was sutured.

6 After the knifing the two employees retreated. One went to the fridge area and the other took cover in the drive-through area behind a forklift. The respondent took more bottles of alcohol and placed them on the service counter. She then picked up several bottles and threw them at the employee in the drive-through area, none of which hit him. While the respondent was taking bottles and throwing them at the employee, the respondent's adult female companion and the respondent's 14-year-old daughter entered the store and took bottles of alcohol and ran out of the store. The respondent left the store and was arrested by police a short distance away.

7 The incident was captured on CCTV footage from various cameras within the store. The footage was referred to during sentencing, and the respondent's counsel acknowledged that there was no dispute on the facts as the surveillance footage recorded the commission of the offences.

8 The respondent's 14-year-old daughter was charged with aggravated robbery in relation to the offence, to which she entered a plea of guilty and was sentenced to 6 months' YCBO. The adult co-offender was charged with aggravated armed robbery, but the State did not proceed with it because of identification issues.

9 The sentencing judge referred to the facts, the contents of the victim impact statement from the employee who had been stabbed, the fact that the respondent only had a vague recollection of the offence due to intoxication, that the respondent was remorseful although appeared to have a limited understanding as to how the offences may have impacted upon the victim, to the respondent's personal circumstances which are referred to below and to her criminal history, which included a conviction for manslaughter. Reference was made to aggravating factors. His Honour also referred to sentencing patterns for armed robbery and noted that in The State of Western Australia v Bropho [2013] WASCA 44 the Court of Appeal had said that a sentence in the range of 4 - 6 years' imprisonment before any reduction for mitigating factors is common for a single offence of armed robbery. His Honour also noted that the psychological report prepared by Ms Seear indicated that the respondent had a moderate to high risk of reoffending in a violent manner unless factors contributing to the violent reoffending were adequately addressed. His Honour generally accepted that opinion but said that the respondent planned to live with her parents which his Honour regarded as a feasible proposal and then added that 'I also do not consider that you have a history of serious violence, having regard to your criminal record'.

10 His Honour noted that the respondent pleaded guilty at the first available opportunity and that this warranted a reduction in the sentence that would have otherwise been imposed by 25%. The sentencing judge then imposed the sentences referred to above.

11 A ground of appeal alleging that a sentence is manifestly inadequate is an assertion of implied error. In determining whether a sentence is manifestly inadequate, it is necessary to examine it by taking into account the maximum sentence prescribed for the offence, the standards of sentencing which are customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of that kind and the personal circumstances of the offender. When considering the standards of sentences customarily observed, it is necessary to bear in mind that the range of such sentences can provide only general guidance. A sentencing range is just one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate, albeit an important factor. The mere fact that the sentence is outside the range of other sentences imposed for similar offences does not necessarily establish there was an error in the exercise of the sentencing discretion in the particular case.

12 The maximum penalty for the offence of aggravated armed robbery is life imprisonment: s 392(c) of the Criminal Code (WA). The maximum penalty for unlawful wounding is 5 years' imprisonment: s 301(1) of the Criminal Code.

13 The offending involved premeditation and planning. The respondent admitted to the author of the pre-sentence report that she formed a plan with the others while drinking to commit the offence to obtain more alcohol. She then armed herself with the knife in order to commit the offence.

14 At the beginning of the commission of the offences, she brandished the knife at the first employee in order to intimidate him and when confronted by the second employee, used the knife to stab the victim. While the injury to the victim was not severe and did not cause long-term injury, this type of offending often causes an ongoing psychological effect upon victims and the victim impact statement shows that it did so in this case.

15 Although the value of the property stolen was not significant, the respondent selected a target which is vulnerable to this type of offending. The need for general deterrence is therefore particularly important. The inclusion of the respondent's daughter in the offending was also an aggravating feature.

16 As to the respondent's personal circumstances, they are as follows. She is a mature woman and was 31 years of age at the time of the offence. She is the mother of five children but they do not reside with her. She left school at the age of 12. She engaged in substance abuse and criminal behaviour in her teenage years. Before the present offences were committed she had been consuming amphetamines for some time. She was exposed to violence in her early childhood and then during her relationships with male sexual partners. One of those relationships lasted about one year and ended when the respondent stabbed her partner on 1 August 2007. The partner died and this resulted in her conviction for the offence of manslaughter. She was sentenced to 3 years' imprisonment for that offence. The sentencing judge's statement that the respondent did not have a history of serious violence is surprising in view of the conviction for manslaughter in which she used a knife and fatally stabbed her partner in a drunken argument. The manslaughter conviction was not overlooked by the sentencing judge because he referred to it. The existence of the earlier offence in which she employed a knife means that personal deterrence looms as an important factor: in the manslaughter case, The State of Western Australia v Walley [2008] WASCA 12, Wheeler and Miller JJA said that personal deterrence was an important factor because the respondent's disposition to anger and desensitisation to violence increased the risk of her reoffending. As the facts of this case show, this disposition has revealed itself again.

17 This was a serious case of aggravated armed robbery. The offending was not spontaneous and she armed herself with and was willing to use a knife. The respondent's prior conviction revealed a need for a sentence to personally deter the respondent. There is little in the way of mitigation apart from the respondent's plea of guilty, her expressions of remorse and her recognition that the offence was serious. As the sentencing judge said, sentences commonly imposed for a single offence of armed robbery range between 4 to 6 years' imprisonment, excluding matters of mitigation: Forkin v The State of Western Australia [2013] WASCA 51 [15].

18 Uniformity of sentencing is a factor of great importance in maintaining confidence in the administration of justice. Inadequate sentences undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.

19 The sentence imposed for the robbery charge was manifestly inadequate and this had the result that the total sentence was manifestly inadequate. The sentence of 2 years 6 months' imprisonment failed to reflect the seriousness of the robbery charge and the particular need in this case for personal deterrence. The total effective sentence of 2 years 6 months also failed to reflect the seriousness of the offending as a whole. The respondent's concession was properly made. The sentence imposed must be set aside and the respondent must be resentenced.

20 The relevant factors to be considered are the maximum penalty, the circumstances of the offence, including mitigating and aggravating circumstances, the personal circumstances of the respondent, and the standards of sentencing customarily imposed. The respondent submitted that the concession that the appeal should be allowed should be treated pursuant to s 41(4)(a) of the Criminal Appeals Act 2004 (WA) as a matter relevant to the sentence that is now to be imposed. The appellant submitted that it was to be treated as a mitigating factor because the concession facilitated the course of justice, provided further evidence of remorse and acceptance of responsibility and revealed an awareness and acceptance of the seriousness of the offence.

21 The concession itself does not, to more than a slight degree, facilitate the course of justice because it was still necessary for the court to hear submissions and form its own view about whether error was revealed in the sentencing process. Nevertheless, it supports a submission that this court should allow a full 25% reduction in the sentence which would otherwise be imposed as permitted under s 9AA of the Sentencing Act 1995 (WA). The reduction is because of the plea of guilty. The concession also reveals ongoing evidence of remorse and acceptance of responsibility and reveals an awareness and acceptance of the seriousness of the offence. These are all mitigating factors relevant to the setting of the appropriate sentence. See s 9AA(6) of the Sentencing Act 1995 (WA) and Forkin [21], [27].

22 Taking into account the factors referred to above the sentence for the armed robbery offence should be 4 years. The sentence of 12 months' imprisonment on the unlawful wounding charge has not been set aside. If that sentence were added to the sentence for the robbery offence it would make a total of 5 years' imprisonment. Taking into account considerations

of totality and the fact that the respondent conceded the appeal, reflecting ongoing remorse and a recognition of the seriousness of her offending, leads to the conclusion that a total sentence of 4 years' imprisonment would be appropriate. That can be achieved by an order that both sentences be served concurrently. The sentence for the robbery offence will be backdated to commence on 26 February 2013. The sentencing judge's order that the unlawful wounding sentence be backdated to commence on 26 February 2013 has not been disturbed.

23 The respondent should be made eligible for parole which means that the respondent will be eligible for release after serving 2 years' imprisonment.

(b) The appeal be upheld, the sentence for aggravated armed robbery be set aside.

(c) In lieu, the respondent should be sentenced to 4 years' imprisonment on the aggravated armed robbery offence. That sentence be served concurrently with the sentence of 12 months' imprisonment ordered in relation to the unlawful wounding offence and it should commence on 26 February 2013.