Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Discount for pleading guilty - Section 9AA Sentencing Act 1995 (WA) - Whether error in calculating discount - Whether youth of appellant taken into account

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

Seeto v The State of Western Australia [2014] WASCA 221

3 HALL J: On 4 April 2014 the appellant was sentenced following his pleas of guilty to three offences of armed robbery and one offence of robbery to a total effective sentence of 4 years' immediate imprisonment. This sentence was made cumulative on a sentence of 3 years and 10 months' immediate imprisonment that the appellant was already serving. That latter sentence had been imposed on 18 December 2013 for an offence of aggravated armed robbery for which the appellant was convicted after trial. The appellant now appeals against the sentence imposed on 4 April 2014.

4 There are two grounds of appeal. The first is that the total effective sentence of 7 years and 10 months infringed the first limb of the totality principle in that it was disproportionate to the overall criminality involved in the offences when viewed in their entirety and taking into account all of the circumstances including those referrable to the appellant personally. The second ground is that the sentencing judge erred in applying a discount for pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).

5 The notice of appeal was filed two days out of time. On 27 June 2014, McLure P granted an extension of time, granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

6 The respondent concedes that ground 2 should succeed, the appeal be allowed and the appellant be resentenced. For the reasons that follow that concession is properly made. In these circumstances, it is inappropriate to determine ground 1 as this court must exercise the sentencing discretion afresh in any event.

7 On the afternoon of Wednesday, 18 September 2013 the appellant was riding a bike on Lord Street in Bentley. He approached the female complainant and asked her the time. Not wearing a watch, the complainant checked her mobile telephone. The appellant then told the complainant that he did not care about the time and that she was to give him her money. He made these demands on two or three occasions and began to yell at the complainant. He then removed an object from his belt

which the complainant believed was a knife or a tool of some sort. He then threatened to harm the complainant if she did not give him her money. Fearing for her safety, the complainant removed her wallet from her bag and gave the appellant approximately $150. These facts relate to count 1 on the indictment.

8 At about 1.30 pm on Saturday, 5 October 2013 the appellant was riding a bicycle on Hillview Terrace in Bentley. He spoke briefly to the second female complainant as he rode past her. He then stopped and blocked the complainant's path and asked her to give him money. She said that she was a student and did not have any money. He then produced a screwdriver and repeatedly said that he needed the complainant's money. The complainant took her wallet from her bag and handed two $20 notes to the appellant. He then yelled at her demanding that she give him all of her money. The complainant did so, showing the appellant her empty wallet. He then rode away. These events constitute count 2 on the indictment.

9 At about 3.30 pm the following day, Sunday 6 October 2013, the third complainant arrived home at a unit on Hillview Terrace in Bentley. As the complainant was opening his front door the appellant approached on a bicycle. He held a screwdriver in his right hand. The appellant asked the complainant for the time and moved closer. He then raised the screwdriver, pointed it at the complainant's face and demanded money. The complainant said that he did not have any money and the appellant then made stabbing motions with the screwdriver and repeated his demands. The complainant took his wallet out and gave the appellant $20. The appellant then demanded that the complainant hand over all of his money. The complainant gave the appellant another $10 and then, in compliance with a demand, showed the appellant that his wallet was empty. The appellant then thanked the complainant and rode away. These events constitute count 3 on the indictment.

10 At about 10.15 pm on the same day, 6 October 2013, the appellant approached another man as he arrived home in Beverage Street, Bentley. The appellant told this complainant that he would 'beat him up' if he did not hand over his money. The complainant said that he did not have any money. The appellant then became aggressive and continued his demands. He touched the complainant, searching his pants for a wallet or money. The complainant was scared of the appellant and went to his car to get his wallet. He then handed over $50 in $5 and $10 notes to the appellant. The appellant grabbed the wallet and searched through it. The complainant returned to his car and removed $5 in coins which he also gave to the appellant. The appellant also took the complainant's mobile telephone from his pocket and said that he was going to take it. The complainant said that his mobile phone was important to him and asked the appellant not to take it. The appellant said that if the complainant gave him more money he would give the phone back. He asked whether the complainant had more than $100 in the house and, when the complainant said that he did not, the appellant said that he would take the phone. When the complainant demanded his phone back the appellant told him to lower his voice and not to call the police as he knew where the complainant lived. The complainant asked for the memory card to his phone and the appellant returned the phone so that it could be removed. The complainant removed the phone case from the telephone and threw it in his car. The appellant reached into the car to search through it. The complainant took the opportunity to yell out to his housemate who came out of the house. The appellant then fled the scene with the complainant and his housemate chasing him. They did not catch him. These events constitute count 4 on the indictment.

11 The appellant was later identified by several of the complainants using photo boards. He was then arrested but declined to participate in an interview.

12 The appellant was aged 19 when he committed the offences and was still that age when he came to be sentenced. He was raised by his grandmother after his mother received severe injuries as a result of domestic violence. Whilst the appellant described his upbringing in positive terms, he admitted engaging in criminal activities from the age of 10. He left school after Year 9 and worked for a short time on a shearing team. That employment was terminated when he stole from the shearers and he has not worked since.

13 The appellant commenced using cannabis at age 10, amphetamines at age 12 and alcohol at age 14. By the age of 13, he had started using amphetamines intravenously. He admitted to having become dependent on amphetamines and stealing to feed his habit. His only periods of abstinence were when he was in juvenile detention. He completed substance abuse counselling during a period of detention at Banksia Hill Juvenile Detention Centre in 2011, but said that this only fuelled his desire to use drugs.

14 In regard to the offences, the appellant was residing at the time at his girlfriend's mother's house. He wanted to obtain money to get back home to Wagin where his grandmother lives. His Centrelink benefits had been suspended because he had failed to attend appointments and other family members refused his requests for financial assistance.

15 Notwithstanding the appellant's youth, he had a significant criminal record. It included an offence of aggravated armed robbery which occurred some nine months earlier, on 13 December 2012, when the appellant was aged 18. The facts of that offence were very similar. On that occasion, the appellant had ridden his bicycle in front of the complainant, who was also riding a bicycle, forcing him to stop. The appellant had demanded money from the complainant and pointed a pair of scissors at him. He had threatened to kill the complainant and then taken his backpack. He searched the backpack and took money from it before returning it to the complainant. He then told the complainant to go away or he would kill him. The appellant was found guilty of this offence following a trial and was sentenced on 18 December 2013 to 3 years and 10 months' immediate imprisonment. A parole eligibility order was made. He was on bail for this offence when he committed the offences in September and October 2013.

16 The sentencing judge noted that there were several aggravating factors in the appellant's offending. First, in each case the appellant was persistent in his demands for money from each of the victims. Secondly, the repetition of the offending conduct. Thirdly, the offences were committed whilst the appellant was on bail for the aggravated armed robbery charge for which he was later tried and convicted.

17 His Honour then referred to mitigating factors and said:

There are certain mitigating factors and they are your youth. You were born on 25 May 1994 and you are presently only aged 19 years and 10 months, and you were 19 at the time these offences were committed. That makes you very young, and youth is always a mitigating factor. But in your case, you are a person who has committed many offences over a long time and you seem to be incapable of learning from them.

Another mitigating factor, and one which I shall certainly take into account, was the fact that you have pleaded guilty to each of these four charges and have done so at an early stage. Perhaps not at the earliest possible stage, but very early nonetheless, and perhaps as soon as you had had an opportunity to receive advice. I will treat these offences as qualifying for the maximum discount available under s 9AA of the Sentencing Act [8] - [9].

I then have to consider the sentences to be imposed. In relation to the first charge of armed robbery, I consider that a starting point for the selection of a period of imprisonment is 5 years' imprisonment but, having regard to your plea of guilty, I will reduce that to 4 years' imprisonment.

In relation to the second and third charges of armed robbery, I also consider that a starting point for each offence should be 5 years' imprisonment but again, because of your plea of guilty, I will reduce that to 4 years' imprisonment.

In relation to the fourth charge of robbery I would, if it were not for the other charges, have selected a similar period as a starting point but, because of considerations of totality, I will start in this case with a period of 2 1/2 years' imprisonment, and I will reduce that to 2 years' imprisonment because of your plea of guilty.

So the effect is that you are sentenced to three terms of 4 years' imprisonment, each on the first, second and third counts in the indictment, and to a period of 2 years' imprisonment on the fourth count.

The question then arises as to whether or not there should be some accumulation or concurrency between those various sentences and your previous sentence. The number and seriousness of the crimes suggests to me that were it not for considerations of totality, there should be a degree of cumulation for each of the offences for which you have been presently sentenced, although I do not suggest that they should all be aggregated. However, in view of your existing sentence, I consider that the four terms of imprisonment which I have just announced, three terms of 4 years and the one term of 2 years, should all be served concurrently, but that those terms should all be served cumulatively on your existing term of 3 years and 10 months' imprisonment.

The overall result is that you are subject to a head sentence of 7 years and 10 months' imprisonment. That is the sentence of the court [19] - [24].

19 The appellant's pleas were fast track pleas entered in the Magistrates Court. It was accepted by the State both in the sentencing proceedings and on the appeal that the pleas were entered at the first reasonable opportunity. It was also accepted that in these circumstances the sentencing judge's assessment, that the maximum discount was appropriate, was correct. The maximum discount pursuant to s 9AA is 25%.

20 It is apparent from the sentencing judge's remarks that he did not in fact give the appellant a 25% discount. The reduction that he made in the sentences on each count equate to a 20% discount. This appears to be a simple mathematical error. It would also seem that, notwithstanding his Honour's reference to youth being a factor that would further reduce the sentence, no allowance for that factor appears to have been given.

21 Section 9AA of the Sentencing Act provides that where a person pleads guilty to a charge the court may reduce the head sentence in order to recognise the benefits to the State, any victim or witnesses, resulting from that plea. Any such reduction cannot exceed 25%. If a reduction is made the court is required to state that fact and the extent of the reduction in open court: s 9AA(5).

22 Section 9AA does not require that the sentencing judge state the head sentence which is the starting point from which the discount has been deducted: Forkin v The State of Western Australia [2013] WASCA 51 [21]. However, it is not erroneous for a sentencing judge to do so. Indeed, as I commented in Seeto v The State of Western Australia [2014] WASCA 221 [66] - [67], s 9AA requires a sentencing judge to determine an appropriate head sentence as a starting point whether or not that head sentence is expressly stated in the sentencing remarks.

23 In the present case, the sentencing judge did refer expressly to the head sentences and this makes it apparent that he made an error in calculating the discount to be given to the appellant for his pleas of guilty. In relation to counts 1 to 3, a 25% discount from a head sentence of 5 years produces a sentence of 3 years and 9 months rather than the 4 years that the sentencing judge imposed. That difference, whilst not large, could not be said to be insignificant.

24 For these reasons, the appeal should be allowed on this ground and the appellant resentenced.

25 The maximum penalty for the armed robbery offences (counts 1 to 3) is life imprisonment. The maximum penalty for the robbery offence (count 4) is 14 years' imprisonment.

26 These were serious offences in which the appellant clearly chose isolated victims to threaten and steal from. He behaved in a threatening and aggressive manner which was clearly intended to, and did, frighten the victims. He persisted in his threatening behaviour until he got what he wanted. The amounts of money stolen were relatively small, but that does not reduce the seriousness of the appellant's actions. The fact that these offences occurred whilst the appellant was on bail for a similar such offence is an aggravating factor. It showed contempt for the law and heightened the need for personal deterrence. Some degree of accumulation would normally be expected to recognise that these were separate offences and to ensure that the total sentence properly reflects the overall criminal conduct. However, regard must be had to the fact that the appellant was also sentenced to 3 years and 10 months for a similar such offence.

27 Youth is an important mitigating factor. The appellant was 19 at the time that the offences were committed. The prospects of rehabilitation for such a young offender need to be taken into account.

28 In my view, having regard to the above factors and taking into account a discount of 25% for pleading guilty pursuant to s 9AA, the appropriate sentences are 3 years' imprisonment on each of counts 1 to 3 and 20 months' imprisonment on count 4. For reasons of totality, those sentences should all be served concurrently but cumulatively on the existing term of 3 years and 10 months. This produces a total effective sentence of 6 years and 10 months' imprisonment.

(3) The sentences imposed by the sentencing judge be set aside and in lieu thereof the appellant be sentenced to 3 years' imprisonment on each of counts 1 to 3 and 20 months' imprisonment on count 4. Each of those sentences to be concurrent with each other but cumulative on the appellant's existing term. There be an order that the appellant is eligible for parole.