Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Attempted armed robbery - Whether sentence of 3 years 8 months manifestly excessive

Fredericks v The State of Western Australia [2011] WASCA 270

Jose v The State of Western Australia [2015] WASCA 13

Manyam v The State of Western Australia [2009] WASCA 164

McDonald v The State of Western Australia [2008] WASCA 132

McNab v The State of Western Australia [2010] WASCA 66

MOD v The State of Western Australia [2011] WASCA 23

Nembousse v The State of Western Australia [2015] WASCA 68

Oaks v The State of Western Australia [2009] WASCA 43

Pezzino v The State of Western Australia [2006] WASCA 131

Ramsden v The State of Western Australia [2013] WASCA 73

Robertson v The State of Western Australia [2009] WASCA 83

The State of Western Australia v Viskari [2008] WASCA 143

The State of Western Australia v Walley [2014] WASCA 85

Turnbull v The State of Western Australia [2013] WASCA 5

Wheeler v The State of Western Australia [2007] WASCA 109

Wong v The State of Western Australia [2004] WASCA 286

Woodcock v The State of Western Australia [2011] WASCA 227

2 HALL J: This is an application for leave to appeal against sentence.

3 On 12 June 2015, following his plea of guilty, the appellant was sentenced to 3 years and 8 months' imprisonment on one count of attempted armed robbery contrary to s 392 and s 552 of the Criminal Code (WA). That sentence was backdated to 14 June 2014 and the sentencing judge ordered that the appellant be eligible for parole.

4 The appeal notice was filed on 9 July 2015. That was six days out of time and an extension of time is required. An affidavit of the appellant's solicitor in support of the application for an extension of time states that the sentencing transcript was not received until 6 July 2015 and legal aid was granted on 7 July 2015. The delay is relatively short and I would grant the extension of time.

5 The appellant seeks leave to appeal on a single ground, namely that the term of 3 years and 8 months' imprisonment was, in all the circumstances, manifestly excessive.

6 There was no dispute as to the facts and they are as follows.

7 At about 10.00 pm on Friday 13 July 2014 the appellant went to a convenience store on Walter Road, Bassendean with the intention of committing an armed robbery. He was wearing a cap with the hood of his jumper over the top. He waited until just before the store was about to close before entering. He walked around briefly before approaching the counter.

8 At the counter the appellant produced a syringe filled with a clear liquid and uncapped the needle. He pointed the needle towards a staff member and said 'You know what this is. If you don't give me the money, you know what will happen'. As he said this the appellant was attempting to obscure his face by pinching the hoodie on his jumper. He then handed the staff member a paper bag and said 'Put the money in the bag. Quick. Quick'.

9 The staff member, fearing for his personal safety, backed away from the appellant. That enabled the staff member to arm himself with a hockey stick. The appellant saw that the staff member was armed and fled from the store without obtaining any money. The events inside the store were captured on CCTV footage.

10 The appellant ran to a stolen Hyundai Tiburon that was parked in the car park outside the store. The staff member followed the appellant to the vehicle and struck the vehicle with the hockey stick, smashing the passenger side mirror and left tail light. The appellant then drove from the scene.

11 Police conducted patrols of the area and at about 11.00 pm on the same night located the stolen Hyundai parked in front of a house in Lockridge. The appellant was standing on the front veranda of the house. He spoke briefly to police before running away. Police officers gave chase through the neighbouring backyards and streets before apprehending the appellant. He was arrested and taken to a police office but refused to participate in an interview.

12 A search of the vehicle resulted in the finding of an uncapped syringe between the driver's seat and centre console and a khaki coloured baseball cap. The appellant was wearing grey tracksuit pants at the time of his arrest. Both the tracksuit pants and the cap were consistent with the clothing shown in the CCTV footage. A forensic examination of the vehicle resulted in the finding of the appellant's fingerprints on the roof of the car above the driver's door and on top of the driver's window.

13 The appellant was aged 25 years old at the time of the offence and 26 years old when he came to be sentenced. He was born in New Zealand and his parents separated soon after his birth. He has had no contact with his father since that time. Some years later the appellant moved to Australia with his mother and older brother.

14 The appellant was an average school student, though he did do well in sport. His home life was marked by his mother's alcohol abuse and her suffering domestic violence at the hands of a partner.

15 The appellant began taking drugs and using alcohol in his early teens. He was initially using cannabis and amphetamine in a social context but became a more regular user when aged 18 or 19. He ceased using drugs for a time but was reintroduced to such use when his older brother, who was a heavy user, was released from prison. He was continuing to use methylamphetamine at the time of the offence. It was submitted on behalf of the appellant that prior to the offence he had been smoking methylamphetamine and this was said to have affected his thinking. He was in possession of a syringe because he also injected the drug from time to time.

16 The sentencing judge was provided with a letter from the appellant expressing his remorse and letters of support from the appellant's mother and current partner.

17 The appellant has previously committed offences of a similar nature. On 16 November 2009 he was sentenced to a total effective sentence of 4 years' imprisonment for one offence of aggravated armed robbery, one offence of aggravated robbery and one offence of attempting to pervert the course of justice. At the time he committed those offences he was aged 19. On 27 November 2009 he was sentenced to an additional 8 months' imprisonment for one offence of burglary and two offences of stealing motor vehicles. The 2009 aggravated armed robbery and aggravated robbery offences were said to have been committed under the negative influence of the appellant's older brother. However, whilst the appellant was serving that sentence his brother was deported to New Zealand and accordingly he was not in the country when the more recent offence was committed.

18 On release from prison the appellant had difficulties with the transition into the community. He was unable to find permanent employment and soon reverted to drug use.

19 The appellant pleaded guilty to the charge after the committal brief had been prepared and served. Accordingly, although the plea of guilty made the appellant eligible for a discount on his sentence, it was not a plea entered at the earliest opportunity: s 9AA Sentencing Act 1995 (WA).

20 The appellant does not suggest that the sentencing judge made any express error. Accordingly it is unnecessary to detail the sentencing remarks. It is sufficient to provide a summary of those remarks.

21 His Honour noted that the offence was an attempt only because the store keeper had resisted by arming himself with a hockey stick and driving off the appellant. He said that he was satisfied that the appellant went to the store with the intention of carrying out a robbery and that he had used the syringe in a way that caused the store keeper to believe that he was being threatened with being infected with a virus.

22 His Honour accepted that the appellant has a significant problem with methylamphetamine and had been using that drug daily since his late teens. He also accepted that the appellant had been using methylamphetamine in the two weeks prior to the offence and had slept little during that time.

23 His Honour noted the previous similar offending and that youth had been a significant mitigating factor on that earlier occasion. He also noted that the appellant's counsel accepted that the appellant was now past the age where youth could properly be described as a mitigating factor. It had been said on the appellant's behalf that he was keen to participate in drug programmes, but his Honour said that it was difficult to place a great deal of weight on that submission given that similar claims had been made when the appellant was sentenced for the earlier robbery offences. Nonetheless his Honour said that he would give the appellant some credit for wanting to do something about his drug problems.

24 His Honour said that he accepted that the appellant now felt some remorse for his offending and regretted the fear that he had caused to the shop attendant. However, the fact that on release from prison the appellant had returned to drug use and to criminal offending heightened the need for personal deterrence and protection of the community.

25 His Honour referred to the fact that the appellant had entered a plea of guilty to the charge. However that plea had only been entered at the committal stage and in those circumstances his Honour's view was that the discount should be 15%. The amount of that discount is not challenged on this appeal.

26 The appellant's submissions were encapsulated in the particulars to the ground of appeal. The appellant submitted that the sentence was manifestly excessive because:

(1) the sentence imposed was apposite to a term set after trial, rather than one following a plea of guilty;

(3) of the lack of force and violence used during the commission of the offence;

(4) the sentence imposed reflected an actual, rather than attempted, offence; and

(5) it was inconsistent with sentences imposed in broadly comparable cases.

27 In determining whether a sentence is manifestly excessive regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

28 The maximum penalty for an offence of attempted armed robbery contrary to s 392(c) and s 552 of the Criminal Code is 14 years' imprisonment.

29 Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Nembousse v The State of Western Australia [2015] WASCA 68 [14] - [16].

30 There is no range of sentences customarily imposed for the offence of attempted armed robbery. Nor is it appropriate to assume that the range of sentences imposed for attempted armed robbery should be half of that which applies to completed offences: Woodcock v The State of Western Australia [2011] WASCA 227 [25]. As Mazza JA pointed out in Woodcock, the circumstances in which an attempted armed robbery can occur are many and varied. There will be occasions when the circumstances of an attempt will justify the imposition of a sentence close to or greater than some instances of a completed offence.

31 The appellant relies upon a number of cases that are said to be broadly comparable. They include cases of both attempted armed robbery and armed robbery. The cases relating to attempted armed robbery are Jose v The State of Western Australia [2015] WASCA 13; MOD v The State of Western Australia [2011] WASCA 23 and Ramsden v The State of Western Australia [2013] WASCA 73. The cases of armed robbery are The State of Western Australia v Walley [2014] WASCA 85; Fredericks v The State of Western Australia [2011] WASCA 270; McNab v The State of Western Australia [2010] WASCA 66 and Oaks v The State of Western Australia [2009] WASCA 43.

32 In Jose the offender pleaded guilty at the first reasonable opportunity to one count of attempted armed robbery and was sentenced to 2 years and 9 months' imprisonment. In that case the offender and a co-offender had concealed their faces with t-shirts and armed themselves with a metal pole before entering a cinema and demanding the keys to the cash registers. The employees on duty were unable to provide the keys so the appellant and the co-offender attempted to force open the cash registers. They were unsuccessful and eventually left the premises empty handed. They were apprehended by police soon afterwards and the appellant participated in an interview and essentially admitted the offence. The offender in that case was aged 19 years old and was described in reports as being an emotional immature man with below average intelligence. He had a lengthy criminal history as a juvenile and a significant alcohol problem. The sentencing judge described the offenders' plea of guilty and his youth as important factors in mitigation. A 25% discount for the plea of guilty was allowed. The aggravating circumstance of being in company in Jose is not present in the case of the appellant, however the offender in Jose had the weighty mitigating circumstance of youth in his favour.

33 In MOD the offender was convicted on his pleas of guilty of one count of attempted aggravated armed robbery and four charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). He was sentenced to 2 years' immediate imprisonment for the offence of attempted armed robbery. An appeal against that sentence was allowed because the sentence did not properly reflect the nature and extent of the offender's past and promised future cooperation. The sentence was said to be not manifestly excessive if the cooperation was disregarded. In that case the offender and a co-accused, armed with a piece of wood and a golf club, approached a security guard as he left a restaurant. The offender and his co-accused had received information from an employee of the restaurant that the security guard would be carrying the weekend's takings in an amount of about $30,000. The security guard did not comply with demands to hand over the money and retreated to the restaurant. The offender in frustration struck the security guard's vehicle with the piece of wood. About two weeks later police attended at the offender's home and seized the weapons and items of clothing. The offender surrendered himself to police the following day and made full admissions. The offender in that case was a young man who had experienced difficulties with his education due to attention deficit hyper-activity disorder. A pre-sentence report revealed that he had some insight into his offending and empathy for the security guard. He came from a supportive family and his prior criminal record comprised relatively minor traffic offences. The offender was resentenced to 14 months' imprisonment after taking into account his past and promised future cooperation. Putting aside the issue of cooperation, the offence in MOD was aggravated by being in company unlike that of the appellant, however the offender in that case had significantly better personal mitigating factors.

34 In Ramsden the offender entered fast track pleas of guilty to two counts of attempted armed robbery and was sentenced to 16 months' imprisonment on each count to be served concurrently. The offences occurred on the same day. The offender and a co-offender drove to a fast food store in Kalamunda. The co-offender put a balaclava over his head and gloves on his hands, entered the fast food store armed with a large machete and demanded money. When the employees in the store did not comply with the demands the co-offender slammed the machete onto the counter and left the store empty handed. He returned to the offender, who had remained in the car, and they drove away. They then drove to another fast food store in Midland where an attempt was made to rob the store in the same manner. Again the offender remained in the car. They were arrested a short time later and the offender was interviewed and made full admissions. The offender was aged 19 years old at the time of the offending and participated in the offences to obtain money to finance his drug use. After his arrest the offender had gone to live with his father, voluntarily undertaken drug rehabilitation counselling and obtained full time employment. He had a minor and irrelevant prior criminal history. The co-offender was sentenced to a term of 18 months' imprisonment. An application for leave to appeal against the sentences on the grounds that they were manifestly excessive was dismissed. Like the other cases referred to, Ramsden involved the aggravating circumstance of being in company but the offender had significantly better personal mitigating circumstances than the appellant.

35 Walley, Fredericks, McNab and Oaks are cases dealing with sentences imposed for completed offences of armed robbery or aggravated armed robbery. The appellant's contention is that because the sentences imposed in these cases are similar to, or less than, that imposed on the appellant this supports his contention that the sentence imposed on him reflected an actual rather than attempted offence. It is unnecessary to detail the facts of each of those offences or the personal circumstances of the offenders concerned. The difficulty with the appellant's argument is that these cases are only a small sample of those relating to sentences for armed robbery. There are other cases where sentences for individual counts of armed robbery have been imposed which are significantly greater than the sentence imposed on the appellant: Turnbull v The State of Western Australia [2013] WASCA 5; Manyam v The State of Western Australia [2009] WASCA 164; Robertson v The State of Western Australia [2009] WASCA 83; The State of Western Australia v Viskari [2008] WASCA 143; Wheeler v The State of Western Australia [2007] WASCA 109 and Pezzino v The State of Western Australia [2006] WASCA 131.

36 There are other relevant cases that should be referred to. They are McDonald v The State of Western Australia [2008] WASCA 132 and Wong v The State of Western Australia [2004] WASCA 286.

37 In McDonald the offender was sentenced to a total effective sentence of 4 years and 6 months' imprisonment, which included 3 years for an offence of attempted armed robbery. The sentence for the attempt offence was reached by allowing a 25% discount for a plea of guilty and a reduction of one-third required by the transitional provisions in the schedule to the Sentencing Legislation Amendment and Repeal Act. The State conceded an appeal against the sentence on the basis that the starting point of 6 years was more consistent with an offence of armed robbery than one of attempted armed robbery. The appeal was allowed and the offender resentenced to 2 years' imprisonment for the attempt. The offence in that case was an unplanned and opportunistic one that occurred when the offender threatened a pizza delivery driver who was making a delivery to the offender's home. The offender had an 'unfortunate childhood' and was suffering stress at the time due to the breakup of a relationship. He had what was described as an 'unprepossessing criminal record', almost entirely as a juvenile, and had pleaded guilty to all charges. The circumstances of the appellant's offence were arguably worse, the discount for his guilty plea was less and his personal circumstances were significantly less favourable than the offender in McDonald.

38 In Wong the offender was sentenced to a total effective sentence of 5 years' imprisonment, which included 2 years and 6 months for an offence of attempted aggravated armed robbery. The offender in that case was aged 19 years old, had pleaded guilty to all charges, had no prior convictions, strong family support and good prospects for rehabilitation. The attempt offence was aggravated by being in company and involved an attempt to obtain money by threats of violence after breaking into a home. An appeal against the total effective sentence was dismissed. The offending in Wong was worse than that of the appellant, but the offender's personal circumstances were significantly better.

39 The offence in this case was undoubtedly serious. The offence was committed on a small business at night. Businesses of this type are especially vulnerable to this kind of offence. They are often open late and staffed by lone workers. The appellant waited outside the premises until close to closing time and took some steps to conceal his identity. He produced a syringe and made threats that were designed to instil fear and obtain compliance. The appellant's failure to obtain money was through no lack of effort on his part but due to the unexpected response of the shopkeeper. Unlike most of the other cases involving attempted armed robbery that the appellant referred to, there was an almost complete absence of any mitigating factors in the case of the appellant, other than the plea of guilty, which was not entered at the first reasonable opportunity. Personal deterrence and community protection loomed large given the appellant's history of similar offending.

40 While the sentence imposed on the appellant is longer than sentences imposed in the cases cited by him, it remains broadly consistent with them. In the particular circumstances of this case a sentence of the magnitude imposed was open in the proper exercise of sentencing discretion. Having regard to all of the relevant circumstances it is not reasonably arguable that the sentence imposed by the learned sentencing judge was so unreasonable or unjust that this court could conclude that a substantial wrong has occurred.