Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Three counts of armed robbery - Manifest excess - Totality principle - Parity principle - Turns on own facts

Giglia v The State of Western Australia [2010] WASCA 9

I (a child) v The State of Western Australia [2006] WASCA 9

McDougall v The State of Western Australia [2009] WASCA 232

Miles v The Queen (1997) 17 WAR 518

Robinson v The State of Western Australia [2007] WASCA 45

The State of Western Australia v Wells [2005] WASCA 23

3 MAZZA J: The appellant has at all times acted in person. Initially, he appealed against both conviction and sentence. In a directions hearing before Wheeler JA on 19 January 2010, the appellant told her Honour that he wanted to discontinue his appeal against conviction. Since that date, the matter has proceeded as an appeal against sentence.

4 The appellant was convicted after trial of three counts of robbery while pretending to be armed. One of these charges (count 2) was aggravated by the fact that the complainant was of or over the age of 60 years.

5 On 1 May 2009, Murray J sentenced the appellant to 3 years' imprisonment on each offence. He ordered that the sentence of 3 years' imprisonment on count 2 commence after serving one year of the sentence imposed on count 1. The sentence on count 3 was ordered to be served wholly cumulatively. The aggregate sentence that was imposed upon the appellant was 7 years' imprisonment. His Honour ordered that the appellant be eligible for parole and he ordered that the sentence commence on 11 January 2009.

6 There are no formal grounds of appeal. On 12 February 2010 Wheeler JA ordered that documents filed by the appellant on that day stand as his case and that the question of leave to appeal be referred to the hearing.

7 I have carefully read the documents filed by the appellant on 10 February 2010 and at the hearing. It is clear enough that the appellant makes three complaints being:

1. each of the sentences imposed upon him was manifestly excessive and that he should have been sentenced to a conditional suspended imprisonment order;
2. the aggregate term of imprisonment offended the totality principle; and
3. the sentence he received on count 3 offended the parity principle.

8 No challenge was made as to the circumstances of the offences. I summarise them as follows.

9 At about 11.35 am on Saturday, 22 September 2007 the appellant and Joshua Palermo drove to the Fremantle Drive-In Pharmacy in Mr Palermo's car. The appellant entered the store concealing his identity by pulling a jumper above his mouth and wearing a cap. He approached the counter, placed one of his hands inside his jumper pretending to be armed with a firearm and demanded staff hand over oxycontin tablets. The pharmacist removed a packet of oxycontin tablets from the safe and handed them to the appellant. The appellant fled the store and drove away with Mr Palermo in Mr Palermo's car (count 1).

10 About one hour later, the appellant and Mr Palermo drove to the East Fremantle Pharmacy, again in Mr Palermo's car. The appellant went to the rear door of the pharmacy which happened to be open but which had placed in front of it two green wheelie bins. The appellant confronted a staff member, who heard him moving the wheelie bins. The appellant had one of his hands inside his jumper pretending to be armed with a firearm. The appellant told the staff member he had a gun. The staff member called the pharmacist and the appellant demanded that she hand over oxycontin tablets. The pharmacist removed a packet of oxycontin tablets from the safe and gave them to the appellant. The appellant left the store and drove off with Mr Palermo in Mr Palermo's car (count 2).

11 At about 1.30 pm on the following day, Sunday 23 September 2007, the appellant and Mr Palermo went to the SuperChem Pharmacy in Rockingham in Mr Palermo's car. The appellant entered the store concealing his identity by pulling a jumper over his mouth and wearing a cap. He approached the counter, placed one of his hands inside his jumper pretending to be armed with a firearm and demanded the staff member hand over oxycontin tablets. The staff member complied with the demand after which the appellant left the store. The appellant and Mr Palermo then drove away, again in Mr Palermo's car. The appellant and Mr Palermo were arrested later that day by police (count 3).

12 In due course, the appellant and Mr Palermo were charged with three offences of armed robbery. Sometime prior to the appellant's trial, Mr Palermo pleaded guilty to count 3 on the indictment. The respondent accepted this plea in full satisfaction of the indictment with respect to him. Mr Palermo was sentenced to 18 months' imprisonment. He received discounts for his plea of guilty and his promise to give evidence against the appellant. He fulfilled that promise in the appellant's trial.

13 At the time of his offending, the appellant was 41 years of age. He experienced a good upbringing and had the support of his parents and siblings. He has four children aged between 10 and 18 years of age. He had a very good work history and was, while awaiting trial, employed as a steel fixer.

14 The appellant has a long criminal history. For the most part it comprises offences for driving under suspension, dishonesty, assault and possession of illicit drugs. Although the appellant had never, prior to the present offences, been sentenced to a term of immediate imprisonment, he had received several suspended imprisonment orders.

15 From about the age of 30 he began using illicit substances commencing with cannabis. Later, he started using heroin and became addicted to that drug. After the commission of the offences he commenced a methadone programme through Next Step and he remained on that programme at the time he was sentenced.

16 It is clear that the offences were closely related to the appellant's heroin addiction. Oxycontin is a well known substitute for heroin.

17 His Honour's sentencing remarks are comprehensive. He acknowledged the appellant's antecedents and in particular his addiction to heroin. His Honour acknowledged the connection between the offending and this addiction describing the offences as 'drug-driven'. His Honour referred to the appellant's efforts to rehabilitate himself after the commission of the offences and expressed the view that there was a prospect of rehabilitation.

18 With respect to the appellant's offending, his Honour observed that the appellant was not actually armed when he committed the offences but that was not something that any of the victims could have been certain about. His Honour referred to the harmful effects that this kind of offence can have on victims.

19 His Honour found that there was a degree of planning with respect to the offences and that the appellant took steps to disguise himself and to cover the registration plate of Mr Palermo's vehicle. His Honour said that the appellant had engaged in a successful spree of offending and noted that the appellant had displayed no remorse for his behaviour.

20 His Honour specifically referred to questions of totality and parity.

The total effect of the term of imprisonment to be imposed is one which looms large in that context and must be kept under control, and I have had that very consciously in mind as I have considered both the length of the terms, which I have reduced below what I think would otherwise be appropriate, and the extent to which they may be imposed concurrently or cumulatively.

The view I take is that a substantial degree of concurrency is permissible in relation to the two offences committed close together in time on 22 September 2007, but the return to this mode of offending on the following day, 23 September, is one which merits separate punishment and I will impose a cumulative sentence in relation to that offence (ts 511).

22 As to parity, his Honour differentiated the appellant from Mr Palermo in four respects. First, Mr Palermo was younger than the appellant. Mr Palermo was 25 years of age at the time the offences were committed. Second, he had pleaded guilty, albeit at a late stage. Third, he received a discount for his promise of future cooperation. Fourth, he acted as a lookout whereas the appellant was the principal offender.

Were the sentences manifestly excessive and did they offend the totality principle?

23 It is convenient to deal with both these grounds together. Whether either claim can be made out depends upon error being implied from the nature or length of the sentence itself.

24 The appellant submitted that the combined weight of his attempts to rehabilitate himself from his drug addiction, his good work ethic and his family responsibilities justified the imposition in this case of a non-custodial sentence. Alternatively, the overall sentence of 7 years' imprisonment was too long because two of the offences occurred within the space of an hour and all three offences occurred in the space of a day.

25 The respondent submitted that notwithstanding the matters raised by the appellant, the offences were just too serious to be dealt with other than by way of immediate terms of imprisonment. Further, his Honour expressly had regard to the totality principle and the overall sentence of 7 years was not disproportionate to the appellant's overall criminality.

26 To determine whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13].

27 The maximum sentence prescribed by law for armed robbery is life imprisonment. Although the offences were by no means the worst of their type, there were features which made them serious enough. These features include that the offences were carried out with a degree of premeditation and planning, were persistent, efforts were made to avoid detection and the robberies were on pharmacies which are frequent targets of this kind of offending.

28 A sentence of 3 years' imprisonment is within the standard of sentencing customarily observed with respect to the offence of armed robbery: see Miles v The Queen (1997) 17 WAR 518; and The State of Western Australia v Wells [2005] WASCA 23 [4] - [5].

29 It is only in exceptional cases that a non-custodial sentence will be imposed for armed robbery: Robinson v The State of Western Australia [2007] WASCA 45 [21].

30 I do not think that the personal circumstances of the appellant could afford much mitigation in this case, particularly in light of the need for general deterrence.

31 This was not a case where non-custodial sentences could be imposed. Indeed, the point was conceded by the appellant's counsel: ts 494. In my opinion, the individual sentences imposed upon the appellant were well within the proper exercise of his Honour's sentencing discretion and I would not interfere with them. I do not regard them as manifestly excessive.

32 I now turn to the totality principle. The principle has two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Second, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: Giglia v The State of Western Australia [2010] WASCA 9 [43].

33 I do not think that the overall sentence offended either limb of the totality principle.

34 The appellant committed three serious offences on three separate pharmacies. Although the offences occurred over a short period of time, I do not think that they can be properly regarded as a single episode and his Honour was justified in imposing sentences which were either wholly or partly cumulative. I will not repeat what I have already said about the features of the appellant's offending. The mitigating features were not of great weight. Offending of this type has to be deterred.

35 As his Honour's sentencing remarks show, he was mindful of the totality principle and imposed a sentence for count 2 which was only partly cumulative on count 1.

36 I have not been persuaded that the overall sentence offended the first limb of the totality principle.

37 Although the appellant did not submit that the total sentence offended the second limb of the totality principle, I will, because the appellant represented himself, consider whether the overall sentence was 'crushing'.

38 No doubt the overall sentence will weigh heavily upon the appellant. However, having regard to his good work history and his family support, he will have hope for the future and will be able to live a useful life after release.

39 In my opinion, the individual sentences which were imposed upon the appellant were not manifestly excessive and the total sentence imposed upon the appellant did not offend either limb of the totality principle.

Did the sentence on count 3 offend the parity principle?

40 The parity principle was explained by Steytler P in I (a child) v The State of Western Australia [2006] WASCA 9 in these terms:

The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike: ... Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: ... For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: ... Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: ... In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance [65]. [citations omitted]

41 The appellant submitted that the sentence imposed upon him in count 3 gave rise to a legitimate sense of grievance when compared to the sentence imposed upon Mr Palermo. I do not see how this can be so. The four areas of distinction which I identified earlier in these reasons between the position of Mr Palermo and the appellant were ample reasons for the appellant to be dealt with more severely than Mr Palermo.

42 The difference in sentence is a reasonable consequence of the different factors which operated in favour of Mr Palermo. In my opinion, the parity principle has no application to this case.

43 I do not think that any of the appellant's complaints about the sentences that were imposed upon him by his Honour have been demonstrated. I would not grant leave to appeal. Consequently, the appeal must be dismissed.