HAYWARD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 57 (17 April 2020)

1. The appellant advances two grounds of appeal. Ground 1 alleges that the sentence imposed for count 4, the armed robbery on the pharmacy, was manifestly excessive. Ground 2 alleges that the total effective sentence of 10 years 6 months' imprisonment infringed the first limb of the totality principle. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[1]
2. For the reasons that follow, the appeal should be allowed. We would dismiss ground 1 and uphold ground 2. We would resentence the appellant to a new total effective sentence of 8 years 6 months' imprisonment with eligibility for parole backdated to commence on 4 January 2019.

1. The facts of the offences were read out by the prosecutor, accepted by defence counsel and incorporated by his Honour into his sentencing remarks.[2] They may be summarised as follows.
2. At about 11.00 am on 4 January 2019, the appellant met his ex‑partner on the footpath in front of an address in George Way, Cannington. A short time later, an argument developed between them. During the argument, the appellant slapped the victim's mobile phone out of her hand. He then produced a small claw hammer from the front of his pants and struck the victim to the left side of her head with it. He then struck her a number of times to the head with the claw hammer, causing her to fall onto the footpath. While the victim was on the footpath, the appellant got on top of her and continued hitting her with the claw hammer, before departing the location. The victim was taken to hospital for medical treatment. She sustained a two centimetre laceration to the left side of her head, multiple bruises to the rear of her head and upper neck area, and a graze and minor cuts to her arms and left shoulder (count 1).[3]
3. The appellant then went to the Maddington Central Shopping Centre. Inside the Shopping Centre, the appellant walked past the Spendless Shoes store and stole two shoes from a display box at the front of the store, each of which came from a different pair (count 2).[4] A short time later, at about 11.34 am, the appellant entered the Woolworths Supermarket where he stole some underwear, socks, a reusable shopping bag and a can of Coca Cola (count 3).[5]
4. At approximately 11.50 am, the appellant entered the TerryWhite Chemmart pharmacy at the Shopping Centre. He approached the counter and inquired about prescription medication, including Serepax and Valium. A pharmacy assistant consulted the pharmacist. Together, the assistant and the pharmacist looked in the cabinets behind the counter for the medication. The appellant then walked behind the counter and stood behind the victims. When the victims turned around, he raised the hammer to above his shoulder height and demanded Valium. In response, the pharmacist opened a drawer and the appellant took six boxes of Valium from it. A third staff member attempted to distract the appellant, but he pushed past her and said, 'You're not going any fucking where' (count 4).[6]
5. Immediately after leaving the pharmacy, a Shopping Centre security officer approached the appellant who was still holding the hammer. The manager of the Woolworths Supermarket also approached the appellant. The appellant left the Shopping Centre. The security officer and the manager followed him into the carpark. The appellant raised the hammer, held it in the direction of his pursuers and said, 'Bugger off, leave me alone or I'll hurt you' (counts 5, 6 and 7).[7]
6. At about 12.15 pm, the appellant was in the carpark of Leisure World in Thornlie. The victim, a 19‑year‑old female, exited her car and made a call on her mobile phone. While doing so, the appellant approached the victim and asked her twice whether she was calling the police. On the second occasion, while he was standing less than a metre in front of the victim, he held the hammer above his waist with his elbow bent. The victim, fearing for her welfare, showed the appellant her mobile phone which revealed that she was speaking to a friend. As the victim was walking towards Leisure World, the appellant said something to her to the effect of, 'I know everyone around here' (count 8).[8]
7. At approximately 12.53 pm, the appellant entered the Red Rooster store in Thornlie where he ordered and paid for some chips. While staff were preparing his order, the appellant asked a staff member whether he could borrow some money. The staff member told the appellant that he could not assist him with this request. The appellant then demanded $200, saying, 'I've got a fully‑loaded pistol in my bag'. The appellant told two members of the public who confronted him to, 'Fuck off'. He then offered to sell the staff member two Valium tablets for $50. When the staff member declined this offer, the appellant produced the hammer. As the appellant left the store he said, 'Have a good day' (count 9).[9]
8. Shortly after leaving the Red Rooster store the appellant was located and arrested by police. A search revealed that he was carrying the hammer, the reusable shopping bag he had stolen from Woolworths and some of the Valium he had taken from the pharmacy.[10]

1. The appellant was 44 years old at the time he was sentenced. He grew up in disadvantaged circumstances. His parents separated when he was young, and he has had little or nothing to do with his father. The appellant's stepfather abused alcohol and committed family violence. The appellant left school at the age of 15. Since leaving school, he has had little paid employment.
2. The appellant has long had issues with alcohol and drugs. He commenced drinking alcohol at the age of 11, and using amphetamines at the age of 13. The appellant has been a long‑standing user of heroin.
3. The appellant has an extensive criminal history as an adult. He was convicted of attempted armed robbery in company in 1993. Since that time he has been convicted of many offences involving dishonesty and violence, including assault and assault occasioning bodily harm in 1994, assault in 1996, assault occasioning bodily harm in 2005, threats to injure and unlawful wounding in 2011, and wounding and various other serious assaults in 2017. He has served a number of terms of imprisonment.
4. The sentencing reports which were before the primary judge confirmed what his Honour described as 'entrenched drug use and violent criminality and a very significant risk of reoffending in a similar [violent] way'.[11]

1. As the grounds of appeal do not allege express error, it is unnecessary to set out the sentencing remarks in detail. While his Honour expressly had regard to the appellant's 'disadvantaged and difficult' upbringing and background,[12] he concluded that, other than the guilty pleas, there were limited mitigating factors.[13] Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour gave a discount of 25% on counts 1 and 7, and 20% for the other counts in which a penalty was imposed.[14]
2. His Honour was not satisfied that the appellant was remorseful for his offending. Indeed, his Honour observed that the appellant perceived himself as a victim.[15]
3. His Honour observed that the appellant did not come before the court with good antecedents and that violent offending was not uncharacteristic of the appellant. Further, his Honour said that the appellant's most recent offending demonstrated a continued attitude of disobedience of the law, suggesting that retribution, deterrence and the protection of society were factors which 'warrant[ed] greater prominence in sentencing [the appellant]'.[16]
4. After imposing individual sentences for seven of the nine counts on the indictment, his Honour had regard to the totality principle and ordered the accumulation of the sentences imposed on counts 1, 4 and 9, so that the appellant received a total effective sentence of 10 years 6 months' imprisonment.[17] His Honour ordered that this term be backdated to commence on 4 January 2019 and that the appellant be eligible for parole.[18]

1. The principles applicable to appeals against sentence on the grounds advanced by the appellant are well‑established. They may be summarised as follows:

(1) Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) As will be explained below, the range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. In relation to ground 1, the appellant submitted that a sentence of 4 years 6 months' immediate imprisonment for the offence of armed robbery was manifestly excessive, having regard to his plea of guilty, his disadvantaged background, his mental health, and a consideration of comparable cases. Further, it was said that the offence was unsophisticated and occurred on the spur of the moment.[19]
2. The appellant's written submissions refer to a large number of cases as comparable. In his oral submissions, counsel for the appellant concentrated on the outcomes of five of these cases, being Pilling v The State of Western Australia;[20] Fawcus v The State of Western Australia;[21] The State of Western Australia v Drew;[22] Drury v The State of Western Australia[23] and Bello v The State of Western Australia.[24]
3. Senior Counsel for the respondent submitted that the only significant mitigation was the appellant's plea of guilty. It was said that the appellant's background was not as deprived as many other offenders, and that while the appellant was suffering from depression at the time of committing the offence, there was no causal connection between his condition and the offending. The respondent submitted that the comparable cases referred to by counsel for the appellant in his oral submissions each had distinguishing features from the present case and were, in effect, inapt comparators. The respondent pointed to other cases which, it was said, were broadly comparable to the present case in circumstances and outcome, and supported the contention that the sentence was not manifestly excessive.

1. The maximum penalty for an offence contrary to s 392 of the Code is life imprisonment.
2. While the offence might be said to be unsophisticated, in the sense that the appellant made no attempt to disguise himself nor did the offence appear well planned, we would not go so far as to say that it occurred on the spur of the moment given that the appellant had already stolen items from two stores in the Maddington Central Shopping Centre, and had the claw hammer in his possession.
3. Regardless of whether the offence may be characterised as unsophisticated or committed on the spur of the moment, it was clearly a relatively serious example of its type. The appellant was armed with, and brandished, a potentially dangerous weapon, being the hammer. He was intoxicated on drugs and his actions were erratic. Such circumstances gave rise to the potential for unintended, and possibly serious, consequences. Although the appellant did not actually use the hammer, he pushed one of the pharmacist's assistants after obtaining the Valium.
4. As the respondent stated in its written submissions, pharmacies provide a valuable public service, and are vulnerable targets to the kind of offending engaged in by the appellant because they store addictive medications. Pharmacies and those who work in them require protection. Thus, general deterrence will, ordinarily, be an important sentencing consideration.
5. Turning to the appellant's personal circumstances, the appellant did not have the mitigation of youth or prior good character. As an adult he has an extensive criminal history which includes offences involving violence. His criminal record shows a disregard for the law and underscores the need for personal deterrence.
6. At sentencing, the defence counsel's plea in mitigation gave little emphasis to the appellant's disadvantaged childhood, other than to say that he had 'a difficult upbringing'.[25] There was no evidence before the sentencing judge to suggest, and it was not submitted, that he grew up in circumstances of severe deprivation. While the pre‑sentence and psychological reports mention the appellant's depression, anxiety and stress, it was not suggested that the appellant's mental health reduced his moral culpability, nor was it said that this factor had any impact upon the sentencing considerations of personal and general deterrence.
7. As the sentencing judge recognised, the only mitigating factor of significance was the appellant's pleas of guilty. Pursuant to s 9AA of the Sentencing Act, his Honour gave a 20% discount for the plea of guilty on count 4. No challenge has been made to this assessment.
8. This takes us to the comparable cases. We will begin with The State of Western Australia v Wells.[26]
9. In Wells, Wheeler JA (with whom Steytler P & Roberts‑Smith JA materially agreed) referred to the decision of the Court of Criminal Appeal in Miles v The Queen.[27] In Miles, Malcolm CJ observed that the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, was 6 to 9 years' imprisonment,[28] a range which Wheeler JA noted in Wells would, since the Sentencing Legislation Amendment and Repeal Act 2003 (WA), convert to 4 to 6 years' imprisonment.[29] Her Honour then said:[30]

That would generally be the sentence imposed without having regard to matters of mitigation. It would, of course, fall to be reduced if there had been a plea of guilty under the fast track system, as here. It would also fall to be reduced by reason of relevant mitigating circumstances, although, as Malcolm CJ observed in Miles (at 521), generally greater weight is given to the requirement of deterrence and less to circumstances personal to the offender in cases of armed robbery.

1. The range of 4 to 6 years' imprisonment referred to by Wheeler JA has been referred to in numerous cases since 2005, including in some cited by the appellant and referred to at [26]. That this range has been well-recognised in the case law cannot lead to a rigid approach to sentencing offenders for armed robbery.
2. This court has emphasised on many occasions, in accordance with High Court authority, that the range of sentences imposed in the past serves as a yardstick, but does not define the possible range of sentences to be imposed in a particular case. In Hili v The Queen,[31] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[32] that previous sentences may be used to establish a range of sentences that have been imposed, but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, sentence'.[33]
3. Further, as French CJ, Keane and Nettle JJ stated in R v Pham,[34] comparable cases are a yardstick which illustrate, but do not define, the possible range of sentences available. They work to provide consistency in the application of relevant legal principles.[35] It must not be overlooked that the administration of the criminal law involves individualised justice.[36] Each offender must be sentenced according to the facts and circumstances of his or her particular case. Armed robbery is an offence where there is a great variation in the circumstances of offenders and the offending itself. With these principles in mind we will turn to the cases referred to in [26] above.
4. In Bello, the offender was convicted after trial of three counts of robbery while pretending to be armed. The three offences occurred within a two hour period on the same day. On each occasion the offender entered a pharmacy, placed one of his hands inside his jumper pretending to be armed with a firearm, demanded a quantity of Oxycontin tablets and subsequently obtained them. On each count he was sentenced to 3 years' immediate imprisonment. The sentencing judge imposed a total effective sentence of 7 years' imprisonment. The offender appealed on the basis that each of the individual sentences was manifestly excessive and that the total effective sentence infringed the totality principle. At the time of his offending, the offender was 41 years of age and had a long criminal history, although he had not previously been sentenced to a term of immediate imprisonment. Mazza J (with whom McLure P & Buss JA agreed) described the individual sentences that were imposed upon the offender as being 'well within the proper exercise of his Honour's sentencing discretion'.[37]
5. In Drury, the offender was convicted on his plea of guilty of one count of armed robbery and three offences in a notice under s 32 of the Sentencing Act. He was also sentenced for breaching a suspended imprisonment order as a result of these offences. On the armed robbery, the offender was sentenced to 3 years 6 months' immediate imprisonment. The offender entered a pharmacy, produced a large axe, walked into the dispensary area brandishing the weapon and demanded morphine. As a consequence of his demands, the offender was given a considerable quantity of various opiate‑based medications. At the time of the offence, the offender was 37 years of age, suffered from a number of serious health problems, and had a significant criminal history. The offender's appeal was dismissed. Leave to appeal was refused on the ground which alleged that the sentence of 3 years 6 months' immediate imprisonment was manifestly excessive.
6. In Drew, the offender was convicted on his guilty pleas of five counts of armed robbery and one count of aggravated armed robbery. The offender was sentenced to 2 years' immediate imprisonment on each of the armed robbery charges, and 2 years 6 months' immediate imprisonment on the aggravated armed robbery charge. The offender was also dealt with for breaching a community‑based order for offences of burglary and stealing. The total effective sentence was 3 years 6 months' immediate imprisonment. Each of the armed robbery offences and the aggravated armed robbery offence involved the offender attending a chemist, producing a knife, demanding drugs (usually dexamphetamine) and subsequently receiving them as a result. The offender was aged 19 when he committed the offences and 20 at the time of sentencing. He had a relatively minor criminal history. The State appealed against the individual sentences that were imposed and the total effective sentence. The State's appeal was dismissed. Buss JA (with whom McLure P & Newnes JA agreed) described the individual sentences as lenient and merciful, but not beyond the range of sentences open to the sentencing judge in the circumstances of the case.
7. In Fawcus, the offender was convicted on his plea of guilty of one count of armed robbery and two counts of stealing. He was sentenced to 2 years 10 months' immediate imprisonment for the armed robbery offence, and 6 months' immediate imprisonment for each of the stealing offences. The sentencing judge imposed a total effective sentence of 3 years 4 months' immediate imprisonment. The offender appealed, alleging that the sentences of 6 months' immediate imprisonment for each of the stealing offences were manifestly excessive and that the total effective sentence infringed the totality principle. The offender did not challenge the sentence imposed for the armed robbery. The appeal was allowed but this court, in resentencing the offender, imposed the same sentence for the count of armed robbery.
8. In Pilling, the offender was convicted on his pleas of guilty of seven counts of armed robbery, four of which were committed in circumstances of aggravation, and one count of attempted aggravated armed robbery. The offender was sentenced to 5 years' immediate imprisonment on each of the four counts of aggravated armed robbery, 4 years 6 months' immediate imprisonment on two of the armed robbery counts and 3 years 6 months' immediate imprisonment on the remaining armed robbery count. The offender received a total effective sentence of 10 years' imprisonment. On appeal, the offender did not challenge any of the individual sentences. However, the offender contended that the total effective sentence infringed the first limb of the totality principle. Leave to appeal was refused on this ground and the appeal was dismissed.
9. None of these cases assist the appellant. In Fawcus, the individual sentence imposed for the armed robbery offence was not challenged. Nor were the individual sentences in Pilling challenged. The individual sentences for the armed robbery offences in Drew (where the offender was 19 years old) were described as lenient. In Bello, the individual sentences of 3 years' immediate imprisonment for armed robbery were found to be well within the proper exercise of the sentencing discretion. In Drury, leave to appeal was refused on the ground which alleged that the sentence of 3 years 6 months' immediate imprisonment was manifestly excessive.
10. Having considered all of the above circumstances, we are not persuaded that the sentence of 4 years 6 months' immediate imprisonment for count 4 was outside the range of a proper exercise of the sentencing discretion. Implied error has not been demonstrated. The sentence of 4 years 6 months' immediate imprisonment was not unreasonable or plainly unjust. Ground 1 has not been made out.

1. On ground 2, counsel for the appellant accepted (properly, in our opinion) that accumulation of the individual sentences imposed on counts 1 and 4 was required. However, it was contended that by further accumulating the sentence for the attempted armed robbery (count 9), the total effective sentence infringed the first limb of the totality principle. Counsel pointed to the fact that all of the appellant's offending occurred over a short period of time. He submitted that the sentence of 10 years 6 months' imprisonment was more than was required to achieve the sentencing objectives of proper punishment, retribution, protection of the public, and general and personal deterrence. In support of these submissions, counsel for the appellant referred to the decisions of this court in Gittos v The State of Western Australia;[38] Turnbull v The State of Western Australia;[39] The State of Western Australia v Bropho[40] and The State of Western Australia v Eades.[41]
2. It is unnecessary to repeat the facts and circumstances of each of the offences committed by the appellant, or his personal circumstances.
3. It is plain that the appellant's overall offending, viewed in its entirety, was very serious. The offending began with the appellant attacking his former partner with a dangerous weapon, striking her repeatedly to the head and various other parts of her body. Fortunately, the victim sustained relatively minor physical injuries. Nevertheless, the potential for significant, if not catastrophic, harm is obvious.
4. Shortly after this attack, the appellant committed a series of offences at the Maddington Central Shopping Centre, the most significant of which was the armed robbery. Upon leaving the Shopping Centre, he attempted to rob a Red Rooster store, telling an employee that he had a fully‑loaded firearm.
5. While all of the offences were committed in a short space of time, an order for total concurrency would have been, as the appellant accepts, inappropriate, as such an approach would result in a total sentence that would not properly reflect the appellant's overall criminality.
6. The appellant does not have the mitigation of youth or remorse. He is no stranger to violence, as his criminal history illustrates. In addition to general deterrence, personal deterrence and the protection of the public were important sentencing considerations. The only mitigating factor of significance was his pleas of guilty, for which he received a reduction of 25% on counts 1 and 7, and of 20% for the other counts in which a penalty was imposed. While the appellant grew up in disadvantaged circumstances, when balanced against the seriousness of the appellant's overall offending and the need to protect the public, this factor affords only modest mitigation.
7. The cases referred to by the appellant in support of ground 2 are of little assistance. The facts and circumstances of the offending and of the offenders in those cases vary considerably.
8. In light of the appellant's proper acknowledgement that the sentences on counts 1 and 4 required accumulation, the real question is whether, by further accumulating the sentence imposed on count 9, the total effective sentence infringed the totality principle.
9. It is true that all of the appellant's offending occurred over a short period of time. Accumulation of counts 1 and 4 would have resulted in a total effective sentence of 8 years 6 months' imprisonment. This sentence would, to our mind, have appropriately achieved the sentencing aims of proper punishment, retribution, protection of the public and general and personal deterrence. The total effective sentence imposed by his Honour was, in our respectful view, more than what was required to achieve these stated sentencing aims. Thus, the total effective sentence imposed by the sentencing judge infringed the first limb of the totality principle. Ground 2 has been made out.

1. This court has all the materials necessary to resentence the appellant. We would not interfere with any of the individual sentences imposed by his Honour. Nor would we interfere with his Honour's decision not to impose a penalty on counts 2 and 3. We would order that the sentences on counts 1 and 4 be served cumulatively, and that the sentences imposed on each of counts 5 to 9 be served concurrently with each other and concurrently with the sentence on count 4. Thus, the new total effective sentence that the appellant should serve is 8 years 6 months' imprisonment. He should remain eligible for parole and this sentence should be backdated to commence on 4 January 2019.

1. The orders that we would make are as follows:
   1. Leave to appeal is granted on grounds 1 and 2.
   2. The appeal is allowed.
   3. The sentences imposed by O'Neal DCJ on 23 August 2019 are set aside.
   4. The appellant is resentenced as follows:

The sentences imposed on counts 1 and 4 are to be served cumulatively. The sentences on counts 5 to 9 are to be served concurrently with each other and concurrently with the sentence imposed on count 4. Thus, the total effective sentence is 8 years 6 months' imprisonment. The appellant is eligible for parole and the sentence is backdated to commence on 4 January 2019. The appellant will be eligible to be considered for release on parole when he has served 6 years 6 months in custody calculated from 4 January 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Order of Buss P, 28 October 2019; WAB 4.

[20] Pilling v The State of Western Australia [2014] WASCA 146.

[21] Fawcus v The State of Western Australia [2013] WASCA 86.

[22] The State of Western Australia v Drew [2012] WASCA 86.

[23] Drury v The State of Western Australia [2010] WASCA 220.

[24] Bello v The State of Western Australia [2010] WASCA 181.

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

[27] Miles v The Queen (1997) 17 WAR 518.

[31] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].

[32] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 [303] ‑ [305].

[33] De La Rosa [304]. See Hili [54].

[34] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [29].

[36] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [494] ‑ [495].

[38] Gittos v The State of Western Australia [2016] WASCA 7.

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

[40] The State of Western Australia v Bropho [2013] WASCA 14.

[41] The State of Western Australia v Eades [2011] WASCA 157.