Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal - Aggravated armed robbery

Sentencing Act 1995 (WA), s 133

Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

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

Vagh v The State of Western Australia [2007] WASCA 17

1 McLURE P: I agree with the orders proposed by Pullin JA. The facts of the appellant's offending are set out in his judgment and need not be repeated. It is sufficient for present purposes to note the following.

2 The appellant committed the offence of aggravated armed robbery on 28 October 2008. She entered a fast-track plea of guilty to the offence on 5 June 2009. On that day, Jenkins J placed the appellant on a 6-month pre-sentence order with programme and supervision requirements. The appellant had a longstanding drug abuse problem. Based on the appellant's performance under the pre-sentence order, on 11 December 2009 Jenkins J sentenced the appellant for the offence of aggravated armed robbery to an intensive supervision order (ISO) of 18 months with programme and supervision requirements.

3 On 1 September 2010, the appellant pleaded guilty to breaching the ISO by failing to attend psychological counselling on 28 April 2010 as directed on 27 April 2010. On 5 October 2010, the matter came before McKechnie J under s 133 of the Sentencing Act 1995 (WA). McKechnie J sentenced the appellant on the basis of the facts contained in a Statement of Breach Facts dated 29 June 2010 (the breach statement) and a Breach Report dated 30 September 2010 (the breach report). The breach statement and the breach report disclose that the appellant failed to comply with supervision requirements very shortly after the imposition of the ISO. The appellant's compliance with reporting requirements is accurately described as erratic and unsatisfactory.

4 Further, the breach statement notes that on 18 January 2010 the appellant admitted relapsing into the use of illicit substances and a non-compliance warning letter was issued. On 16 March 2010 the appellant was issued with a further warning for non-compliance for providing a sample which was positive for amphetamines, methylamphetamine and opiates. As to the programme requirement, the appellant failed to attend psychological counselling on three out of four occasions.

5 The authors of the breach report concluded that the appellant was not suitable for a further community order as a result of her lack of compliance with the ISO and lack of consistency with engagement on previous community based orders made over the preceding 14 years. That is a reference to the appellant's compliance with community based orders imposed from time to time from April 1996 for a range of offences including aggravated burglary, conspiracy, stealing and possession of prohibited drugs. It is accepted that there is a causal connection between

the appellant's addiction to drugs and her offending. Another consequence of the appellant's addiction is that her three children have been removed from her care.

6 I agree with Pullin JA that the grounds of appeal have no reasonable prospect of succeeding for the reasons he gives. For the sake of completeness, I add that the appellant has no reasonable prospect of succeeding in a claim that the sentence is manifestly excessive because the wrong type of sentence was imposed. In particular, the appellant has no reasonable prospects of establishing that McKechnie J should have imposed a suspended term of imprisonment. But for the appellant demonstrating by her conduct that she had a continuing commitment to rehabilitation by addressing the cause of her offending, the otherwise appropriate sentence of a term of immediate imprisonment would and should have been imposed for the offence of aggravated armed robbery. The nature, timing and extent of the appellant's non-compliance with the requirements of the ISO are such as to justify McKechnie J's conclusion that a term of immediate imprisonment is now the only appropriate sentencing option.

7 PULLIN JA: This is an application for leave to appeal against a sentence of imprisonment imposed by McKechnie J on 5 October 2010. The sentence was imposed with respect to a charge of armed robbery aggravated by the fact that the appellant was in company with another person and while armed with an offensive weapon, namely a screwdriver. The person she was in company with was David Wayne Grenfell, who was sentenced on 3 April 2009 to 4 years' imprisonment and was made eligible for parole.

8 The appellant pleaded guilty on 5 June 2009 before Jenkins J. Her Honour made a pre-sentence order which was intended to have the appellant take steps towards rehabilitating her in relation to her drug use. On 11 December 2009, Jenkins J noted that there had been satisfactory compliance with the pre-sentence order, that the appellant was 35 years old and that she showed remorse and had pleaded guilty at the earliest opportunity.

9 Her Honour related the facts which were as follows. On the day of the offence the appellant and her co-offender went to a service station on Rockingham Road in Naval Base. They drove to the petrol station, and entered the store which was occupied by one male staff member. As the attendant completed serving the appellant and her co-offender, the co-offender leapt over the counter and grabbed the attendant by the arm.

He produced a 25 cm screwdriver from his pants which he brandished. The attendant was able to pull free and run to the rear of the store and lock himself inside. The appellant's co-offender jumped the counter, ransacked the cash register stealing $600.00 in cash. They then ran from the store with the cash and drove from the area in the car. Most of the money was used to purchase drugs. Jenkins J noted that the appellant had not previously been in prison. Her Honour said that there was a fine line as to whether the appellant should be imprisoned or not. Her Honour said that were it not for the steps made towards rehabilitation, she would have received an immediate sentence of imprisonment. She was then placed on an intensive supervision order for 18 months subject to a supervision requirement and a programme requirement. Jenkins J warned the appellant that if she committed any offences, the maximum penalty for which included imprisonment, then she would be back in court and the likelihood was that a period of imprisonment would be ordered.

10 The appellant then breached the ISO by failing to attend psychological counselling. As a result, she was brought back to court and appeared before McKechnie J. She admitted the breach of the ISO.

11 McKechnie J in his sentencing remarks stated what had happened in relation to the ISO. He stated that the appellant had failed to go to the psychologist, failed to turn up regularly for appointments that were made and noted that the Department of Community Corrections had observed that the appellant was not suitable for a further community order. His Honour added:

Everybody has exercised great patience with you, but the time has come for you to face up to the consequences of your criminal action and in a way that with hope will impress on you for the future your offending and the need for you to get help, but I see no point in putting you on a conditional suspended sentence because of your past and because of the recommendation that you are no longer suitable for community disposition.

I will take into account your behaviour before, the fact that it has been a long time and your lesser role in the robbery, but the only sentence I can impose is a sentence of immediate imprisonment.

12 His Honour then sentenced the appellant pursuant to s 133 of the Sentencing Act 1995 (WA) to 18 months' immediate imprisonment and made the appellant eligible for parole.

13 The appellant seeks leave to appeal on two grounds. The first is that the trial judge erred in 'failing to order that the term of imprisonment imposed upon the appellant be suspended'. The error is said to have occurred because such failure did not 'show any or any sufficient regard' to the fact that the breach was by non-attendance, rather than reoffending and the length of time the appellant had remained free from offending. The second ground alleges that the sentence of 18 months' imprisonment was manifestly excessive.

14 Neither ground has any reasonable prospect of success. Insofar as the first ground alleges that 'sufficient regard' was not paid to the facts referred to, it cannot succeed. Such a ground could only succeed if the failure amounted to a failure to exercise the court's discretion: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet (1984) [1984] HCA 21; 156 CLR 605, 614; Vagh v The State of Western Australia [2007] WASCA 17 [76]. It is not alleged in this case that there was a failure to exercise the discretion.

15 Insofar as the first ground asserts that the sentencing judge did not show any regard to the two facts mentioned, the assertion is false. The sentencing judge did have regard to those facts. The facts were worse than the sentencing judge stated them to be. The 'statement of breach facts' provided to the sentencing judge showed that the appellant had recommenced drug use. Insofar as the first ground should be read as alleging the sentence was manifestly excessive, I agree with McLure P. Ground 1 has no merit.

16 As to ground 2, the contention is that the sentence was manifestly excessive when measured against sentencing standards customarily imposed. A range of sentences that have been imposed in the past does not fix the boundaries within which judges must or ought to sentence. However, they provide guidance to sentencing judges and stand as a yardstick against which to examine the sentence which was imposed. Consistency in sentencing is an important sentencing principle: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [54] and [56]. Sentences commonly imposed in relation to robbery offences fall in a range of 4 to 6 years: The State of Western Australia v Wells [2005] WASCA 23 [4], [5]. The sentence imposed in this case was not manifestly excessive.

17 As a result, neither ground has any reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. The application for leave to appeal in relation to both grounds should be dismissed. As a result the appeal should be dismissed.