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[2014] WASCA 150
Court of Appeal (WA)
2014-08-19
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HILL -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 150
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against sentence - Three counts of aggravated armed robbery - Victims' vehicle stopped after contrived accident by appellant and cooffenders - Cooffender armed with crowbar - Victims' personal possessions stolen - Two counts of aggravated burglary - Houses broken into at night - Breach of bail - Total effective sentence of 7 years 4 months' imprisonment - Whether sentence of 3 years' imprisonment for aggravated burglary manifestly excessive - Whether total effective sentence breached totality rule
Criminal law - Sentencing - Failure to take into account voluntary disclosure of offence - Unwitting disclosure - Failure to take into account co-operation with police - Limited co-operation - Whether different sentence should have been imposed
Criminal law - Sentencing - Whether sentencing judge erred in refusing to make parole eligibility order - Relevant principles - History of serious offending - Prospects of rehabilitation not substantial
Sentencing Act 1995 (WA), s 89
A Child v The State of Western Australia [2007] WASCA 285
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Ashworth v The State of Western Australia [2006] WASCA 36
Boddington v The State of Western Australia [2013] WASCA 179
Chan v The Queen (1989) 38 A Crim R 337
Drake v The State of Western Australia [2006] WASCA 209
Edmonds v The State of Western Australia [2013] WASCA 255
Fullgrabe v The State of Western Australia [2013] WASCA 130
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
House v The King [1936] HCA 40; (1936) 55 CLR 499
Howorth v The State of Western Australia [2007] WASCA 78
JWD v The State of Western Australia [2013] WASCA 233
Kelly v The State of Western Australia [2011] WASCA 273
Le v The State of Western Australia [2014] WASCA 120
Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349
MGM v The State of Western Australia [2012] WASCA 24
Mippy v The State of Western Australia [2012] WASCA 254
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Morris v The State of Western Australia [2011] WASCA 47
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nannup v The State of Western Australia [2011] WASCA 257
Otway v The State of Western Australia [2008] WASCA 165
Pickett v The State of Western Australia [2004] WASCA 291
Poduti v The State of Western Australia [2011] WASCA 169
Pollock v The State of Western Australia [2009] WASCA 121
R v Ellis (1986) 6 NSWLR 603
Roffey v The State of Western Australia [2007] WASCA 246
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Ryan v The State of Western Australia [2011] WASCA 7
Schriever v The State of Western Australia [2008] WASCA 133
Spratt v Canavan [2006] WASC 223
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Tran v The State of Western Australia [2013] WASCA 77
Turnbull v The State of Western Australia [2013] WASCA 5
Ugle v The State of Western Australia [2007] WASCA 199
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Whitby v The State of Western Australia [2014] WASCA 99
1 JUDGMENT OF THE COURT: This is an appeal against sentence. The appellant was convicted in the Supreme Court on his own plea of three counts of aggravated armed robbery, contrary to s 392 of the Criminal Code (WA) (Code), two counts of aggravated burglary, contrary to s 401(1) and s 401(2) of the Code, and, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), one count of breach of bail. He was sentenced by Simmonds J to a total effective sentence of 7 years 4 months' imprisonment. His Honour refused to make a parole eligibility order.
2 The appellant contends, in substance, that the sentences for the aggravated burglary offences and breach of bail offence were manifestly excessive; that the total effective sentence breached the totality principle; and that a parole eligibility order ought to have been made having regard to his prospects of rehabilitation.
3 On 26 September 2013, Mazza JA granted leave to appeal on ground 4 of the grounds of appeal and referred the application for leave to appeal on grounds 1 to 3 to the hearing of the appeal.
4 On 11 October 2012, at about 9.00 pm, the appellant, in company with two other males, HW and an unidentified male, M, and two unidentified females, was travelling in a stolen Jeep Cherokee, driven by HW, on Tonkin Highway in Morley. HW saw a black Audi charter vehicle travelling in front of the Jeep, and the appellant, HW and M decided to steal the Audi and to steal from the Audi's passengers. When the Audi stopped at a red traffic light, HW deliberately drove the Jeep into the back of the Audi. Both vehicles pulled into a side street where the appellant and HW provided false personal details to the driver of the Audi. HW then produced a crowbar and struck the side of the Audi with it. The appellant had not previously known that HW had a crowbar. One of the male offenders shouted at a female passenger in the Audi, 'I want your money, I want your money'. M grabbed the passenger's handbag and its contents, the total value of which was $1,930.
5 The appellant and HW then went to the passenger rear door of the Audi and opened it. The appellant shouted at another female passenger, 'We want some money, we want some money'. The passenger held her handbag to her, but HW took hold of it and tore it from her grasp. The total value of the handbag and its contents was $1,000.
6 M then got into the driver's seat of the Audi, causing both of its female passengers to get out of the car, and he drove the Audi from the scene.
7 The appellant and HW ran back to the Jeep and drove away. HW and a female associate looked through the handbag, removed cash from it and then threw it out of the vehicle.
8 The Audi was subsequently parked near a family member's house and the next day the appellant and HW went to its location and searched the vehicle for cash, but found nothing worth stealing. The police subsequently found the Audi and discovered fingerprints on it belonging to the two men.
9 These offences occurred over the night of 5 - 6 December 2012, approximately two months after the aggravated armed robbery offences.
10 Count 4 arises from events which occurred between 10.00 pm on 5 December and 9.00 am on 6 December 2012. The appellant and another male, JB, decided to break into a house to steal gold, jewellery and money. It appears that the house was used from time to time by the owner to provide accommodation for employees but at the time was unoccupied. The appellant and JB went to the house, determined that no-one was home, and JB, with the help of the appellant, broke into the house by breaking a window next to the front door and then opening the door. After searching the house, they removed a Samsung plasma screen television set and took it to the nearby house of a friend, where the appellant agreed to sell it to a friend for $100, in order to buy alcohol.
11 Count 5 arises from events which occurred in the early hours of 6 December 2012. The appellant and JB decided to break into a house to steal money. At approximately 2.30 am they entered the rear yard of the house. The appellant removed a light globe from the security sensor on the property in order to keep the yard in darkness. The appellant acted as lookout while JB forced his way into the house. An elderly occupant of the house heard the entry, and confronted JB. The appellant and JB then ran from the scene. The police located a fingerprint of the appellant on the security light.
12 On 12 October 2012, the appellant was released from a police station on a bail undertaking that he appear in the Perth Magistrates Court on 31 October 2012. The appellant failed to appear and a bench warrant was issued. He was arrested at Boulder on 11 December 2012 and charged with breaching bail. It appears he was then again released on bail.
13 On 14 December 2012, the appellant was arrested in Kalgoorlie in relation to one of the aggravated home burglaries. Subsequently, in a video record of interview, the appellant made full admissions to police as to both of the aggravated home burglaries and the three aggravated armed robbery offences. It will be necessary to come back to the circumstances in which those admissions were made.
14 The sentencing judge had before him a psychiatric report, a psychological report and a pre-sentence report.
15 According to a psychiatric report, the appellant had no psychiatric symptoms.
16 The author of the psychological report, Ms Oliveri, noted that the appellant reported a highly dysfunctional upbringing, in which he was exposed to domestic violence (including violence directed at him) and alcoholism, and was provided with substances to abuse. He had substance abuse issues which started from the age of 10 when he began using marijuana, and from his early teens he had begun using amphetamine/methylamphetamine and abusing alcohol.
17 Ms Oliveri observed that the appellant said he regretted his offending, but considered that that was predominantly as a result of the consequences for him; that he showed limited awareness of the impact of his offending on the victims and minimised his level of responsibility, attributing it to substance abuse and his co-offenders. The appellant had described having previously completed 'many' intervention programmes while in prison but Ms Oliveri observed that the appellant had failed to make any positive changes as a result of those programmes as he had continued to abuse substances and to reoffend. Ms Oliveri concluded that there was a high likelihood the appellant would be non-compliant with remediation attempts in the future, as he had been in the past. The appellant was assessed as being at a moderate to high risk of violent re-offending and a high risk of 'generalist re-offending'.
18 Ms Oliveri considered that the appellant had a number of treatment needs and recommended that he be referred to various programmes to deal with his offending, antisocial attitudes, deficient life skills and substance abuse. Following his release he was likely to need long-term, highly intensive residential drug rehabilitation and, following that, stable accommodation, the support of pro-social others, and full-time employment.
19 In the pre-sentence report, the treatment options referred to in the psychological report were canvassed and it was noted that all were available in prison. The author of the pre-sentence report considered, however, that the appellant's previous poor engagement with counselling, his lack of practical strategies and pro-social supports, and the absence of an occupation cast doubt on his ability successfully to complete a treatment programme.
20 In relation to a community-based disposition with a programme requirement, the pre-sentence report stated that based on the appellant's poor record of compliance with previous orders and his failure to engage in non-custodial treatment programmes, his ability to complete a community-based disposition was doubtful. Given the escalation in his recent offending, concern was expressed that if the appellant failed to benefit from such treatment any future re-offending could result in significant harm to members of the community.
21 The sentencing judge set out the circumstances of the offending (his Honour's description differs in a few minor and insignificant respects from that read to the court by the prosecution), observing that the aggravated armed robbery and burglary offences involved premeditation and planning, albeit of a short and crude nature.
22 In relation to the appellant's personal circumstances, his Honour noted that the appellant was 28 years old at the time of the offending and that he had had a profoundly dysfunctional upbringing. The appellant was expelled from high school in year 8 and did not complete any further formal schooling. He was employed for several months at a time in the Community Development Education Program in Kalgoorlie when he was between the ages of 16 and 18 years but otherwise had not been employed.
23 The appellant has had four significant personal relationships, all of which were dysfunctional. The appellant has a son, born in April 2013 from the last of those relationships. His Honour noted that, on 10 June 2013, the appellant had told the author of the psychological report that he had separated from the child's mother before the birth and he had not yet met the child. He said he hoped to reconcile with the mother so that he could be involved in his son's life.
24 The sentencing judge noted that the appellant had an extensive criminal history, including numerous convictions for burglary and stealing offences. He had served a number of terms of imprisonment for such offences and had consistently reoffended only a short time after being released. As a result he had spent little time in the community. The appellant had been the subject of supervision in the community on two previous occasions, once on a community based order and once on parole. Both had been cancelled due to reoffending and he had been returned to prison. His Honour also noted that the appellant had a long history of alcohol abuse and the abuse of illicit substances, particularly methylamphetamine.
25 On the basis of the appellant's history, and the assessments in the psychological report and psychiatric report, his Honour was not satisfied that the appellant's prospects of rehabilitation were at all substantial.
26 His Honour found that while the appellant's pleas of guilty to the charges were mitigating factors, they did not occur at the first reasonable opportunity. The pleas to the three aggravated armed robbery charges came 'at no more than a reasonable time' after the statement of material facts and the charge had been made known to the appellant, and the pleas to the aggravated home burglary offences and the breach of bail came after a committal hearing. His Honour concluded that the extent of the mitigation afforded by the pleas was therefore limited. He allowed a 15% deduction for the breach of bail and aggravated burglary offences, and a 25% deduction for the aggravated armed robbery offences.
27 Apart from the appellant's pleas of guilty, the mitigating factors were found by the sentencing judge to be the appellant's remorse and victim insight; his acceptance of responsibility to some extent for the aggravated burglary and aggravated armed robbery offences, reflected in the psychological report and his admissions in his police record of interview; and his dysfunctional upbringing.
28 The sentencing judge imposed the following sentences:
Count 1: 4 years' imprisonment (head sentence);
Count 2: 4 years' imprisonment, to be served concurrently with count 1;
Count 3: 4 years' imprisonment, to be served concurrently with count 1;
Count 4: 3 years' imprisonment, to be served concurrently with count 5 and cumulatively on counts 1, 2 and 3;
Count 5: 3 years' imprisonment, to be served concurrently with count 4 and cumulatively on counts 1, 2 and 3.
29 For the breach of bail, the sentencing judge sentenced the appellant to 4 months' imprisonment, to be served cumulatively on the head sentence and the sentences for counts 4 and 5. The total effective term of imprisonment was therefore 7 years and 4 months.
30 The sentencing judge refused to make a parole eligibility order. His Honour concluded that, having regard to the appellant's criminal history, his history of supervision, and the assessments in the psychological and pre-sentence reports, making the appellant eligible for parole would not advance the sentencing objective of rehabilitation sufficiently to offset the need for protection of the community.
31 The grounds of appeal were amended in the course of the hearing to add two further grounds, ground 1A and ground 5. The amended grounds of appeal are as follows:
1A. The sentence of 3 years' imprisonment imposed in relation to count 4 of the indictment resulted in a miscarriage of justice in that it failed to reflect voluntary disclosure of the appellant's involvement in that offence.
32 It was submitted that a miscarriage of justice had occurred because the voluntary disclosure the appellant made to police of the offence in count 4 of the indictment (the count 4 offence) was not drawn to the attention of the sentencing judge and accordingly was not taken into account by his Honour. The appellant was thereby denied the additional discount to which he was entitled by reason of that voluntary disclosure.
33 The relevant legal principles can be shortly stated. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].
34 The disclosure occurred in the following circumstances. On 12 October 2012, the appellant was arrested and charged with stealing a motor vehicle (the Jeep used in the commission of counts 1, 2 and 3) contrary to s 371A of the Code. As mentioned above, he was released on bail that day to appear in the Perth Magistrates Court on 31 October 2012. The appellant failed to appear on 31 October 2012 or thereafter.
35 Some two months later, on 14 December 2012, the appellant was arrested in Kalgoorlie in connection with a burglary on the night of 5 - 6 December 2012. The transcript of his video record of interview reveals that he was told by police that his fingerprint had been found at the scene of the burglary. The appellant then made a full confession in relation to the burglary which ultimately became count 4 on the indictment. In fact, the burglary for which he had been arrested, and to which the police were referring, was the offence which ultimately became count 5 (the count 5 offence). It appears that at the time the count 4 burglary had not been reported.
36 When, following his confession to the count 4 offence, the appellant was informed that he had in fact been arrested in connection with the count 5 offence, he initially denied that he had committed any burglary other than the count 4 offence. When police stated that it was at the scene of the count 5 offence that his fingerprint had been found, he confessed to that offence too.
37 It was accepted by the State that there was no other evidence to connect the appellant with the count 4 offence and his conviction for it came about only as a result of his confession (ts 23). Counsel for the State submitted, however, that the appellant's disclosure of the count 4 offence was unwitting rather than voluntary, and that any discount for the appellant's disclosure should be very small.
38 As the voluntary disclosure the appellant made to police was not taken into account by the sentencing judge, this ground of appeal has been made out. We would grant leave to appeal on ground 1A, but would not allow the appeal on this ground. An appeal against sentence may only be allowed if the court considers that a different sentence should have been imposed: Criminal Appeals Act 2004 (WA), s 31(4)(a). In this case, the disclosure did not occur out of a sense of remorse or contrition, or a subjective acceptance of responsibility and a subjective willingness to facilitate the course of justice. Nor was it in any real sense a voluntary disclosure. It was an inadvertent rather than an intended disclosure. It is evident that the disclosure was made by the appellant simply as a result of his mistaken belief that incriminating evidence in the form of his fingerprint had been found at the scene of the count 4 offence. While it is the case that the disclosure revealed an offence of which the police were not then aware, in the circumstances we are satisfied that a different individual sentence should not have been imposed and a different total effective sentence should not have been imposed.
39 It was submitted on behalf of the appellant that in respect of each of the aggravated burglary offences, the sentence of 3 years' imprisonment was manifestly excessive.
40 A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error. In determining whether a sentence is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 20 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
41 However, while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] - [40]. In addition, caution must be exercised in considering sentences imposed in other cases as inevitably there will be differences in the circumstances of the offences and the offender.
42 Indeed, aggravated burglary is an offence in which the circumstances of the offending and the offender can vary widely and there is no fixed range of sentences for the offence, although in recent years sentences imposed for home burglary have increased to reflect the prevalence of the offence and to provide appropriate personal and general deterrence: Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330; Boddington v The State of Western Australia [2013] WASCA 179 [42].
43 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. See Le v The State of Western Australia [2014] WASCA 120 [39].
44 The offending in this case was serious. Whilst the count 4 offence occurred at premises used by the owner for employee accommodation at a time when the premises were unoccupied, they were residential premises which were occupied from time to time and the offence involved a forced entry and search of the premises. There was an element, albeit brief, of premeditation and planning of the offence. The count 5 offence involved a forced entry, in the early hours of the morning, of a house occupied by an elderly couple and an encounter with the elderly male occupant. Inevitably, it would have been a traumatic event for the couple. That offence also involved an element of premeditation and planning.
45 Senior counsel for the appellant referred to three cases in support of her submission that the sentence of 3 years' imprisonment for each offence was manifestly excessive. In Ashworth v The State of Western Australia [2006] WASCA 36, the complainant had advertised two watches for sale in a newspaper. The offender contacted her and attended at her house where he bought one of the watches. He said he would come back the following day to purchase the other watch. The following day he broke into her house and stole the other watch and a piece of paper with his mobile phone number on it. The following day, he again broke into her house and stole computer equipment, electrical goods and other items to a total value of almost $19,000. The offender had entered 'relatively early pleas of guilty' [70] and had a 'limited prior criminal record' but the numerous offences for which he was sentenced together with the burglary offences took place over an extended period and had all the hallmarks of a criminal business enterprise [143]. An appeal against a sentence of 2 years and 8 months' imprisonment for each offence (to be served concurrently) was dismissed.
46 In Mippy v The State of Western Australia [2012] WASCA 254, the offender, who had an extensive criminal record, went to his mother's house at 11.30 pm one night. He was intoxicated. After his mother refused him entry, he caused extensive damage to her car and then gained entry to the house by breaking two bedroom windows with rocks. The complainant fled to her bedroom with the five children who were in the house but the offender kicked open the bedroom door and assaulted his mother in the presence of the children. The appellant then caused damage to a number of household items. The offender, who had entered fast track pleas of guilty, was sentenced to 3 years' imprisonment on one count of aggravated burglary. An appeal against sentence was dismissed.
47 In Fullgrabe v The State of Western Australia [2013] WASCA 130, the offender, armed with an electronic shock device described at trial as a taser, kicked down the front door of a house at about 9.00 pm one evening. The house was occupied by a couple and their baby. The offender's face was covered in an attempt to disguise his identity. The offender yelled at the couple, 'Get down. Get down.' The offender did not use the taser on the occupants but it was making a buzzing sound and it was brandished in such a way as to intimidate them. An altercation ensued, during which the offender threw a smoking implement at the male occupant. Eventually the offender ran from the premises. The offender, who had an extensive criminal record, was convicted after trial on one count of aggravated burglary and sentenced to 3 years and 6 months' imprisonment. An appeal against sentence was dismissed.
48 We have also considered a number of other cases involving aggravated burglary, including Kelly v The State of Western Australia [2011] WASCA 273; Whitby v The State of Western Australia [2014] WASCA 99; Drake v The State of Western Australia [2006] WASCA 209, and the cases referred to in those cases.
49 We do not consider that the cases referred to by the appellant's counsel, to the extent they are of any assistance, support the contention that the sentences in the present case were manifestly excessive. Nor do the further cases to which we have referred.
50 The appellant has been convicted of more than 15 burglary and aggravated burglary offences and has previously been imprisoned on a number of occasions for such offences. He also has numerous prior convictions for stealing and stealing a motor vehicle. After being sentenced by the sentencing judge, the appellant was convicted in the Magistrates Court of stealing the Jeep. He was, at the time of sentencing, a repeat offender pursuant to s 401(4) of the Code. It is the case, as was submitted on behalf of the appellant, that the appellant's criminal history is not an aggravating circumstance, but it does show that the present offending is not an aberration and it emphasises the need for personal deterrence and the protection of the public: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 (477 - 478).
51 In the circumstances, we do not consider the sentences to be manifestly excessive. When regard is had to all relevant facts and circumstances and all relevant sentencing considerations, including the mitigating factors, the sentences imposed fell within a sound exercise of the sentencing discretion.
54 Under s 51 of the Bail Act 1982 (WA), the maximum penalty for the offence of breach of bail is 3 years' imprisonment, or a fine of $10,000, or both. The appellant received a sentence of 4 months' imprisonment, to be served cumulatively on the head sentence and the sentences for counts 4 and 5.
55 In contending that the sentence was manifestly excessive, senior counsel for the appellant relied upon Spratt v Canavan [2006] WASC 223 and the cases referred to in that case, arguing by way of comparison that in none of those cases was a sentence of greater than 3 months' suspended imprisonment, or one month's imprisonment, imposed.
56 There is no substance in that submission. The circumstances of the offending in those cases were quite different to the present case and none is an apt comparator. We were not referred to any comparable cases and we have not found any. We have, however, had regard to Edmonds v The State of Western Australia [2013] WASCA 255, Tran v The State of Western Australia [2013] WASCA 77, and Poduti v The State of Western Australia [2011] WASCA 169, where sentences for breach of bail have either not been challenged in this court or have not been disturbed in a totality context. None of those cases assist the appellant.
57 In this case, the offence for which the appellant was granted bail was serious, being the stealing of a motor vehicle, contrary to s 371A of the Code, for which the maximum penalty is 7 years' imprisonment (s 378 of the Code). The only explanation offered for the offence was that provided by the appellant to Ms Oliveri, the author of the psychological report, namely that the appellant returned to Kalgoorlie after the aggravated armed robbery offences to attend a funeral and to avoid police. There was no remorse or acceptance of responsibility in respect of this offence: [67] - [68]. While the appellant pleaded guilty to the offence, he did not do so at the first opportunity but only after a committal hearing, and the sentencing judge allowed a deduction of 15% for that plea. The appellant does not take issue with the amount of the deduction.
58 In the circumstances, the sentence of 4 months' imprisonment did not fall outside a sound exercise of the sentencing discretion. We would refuse leave to appeal on this ground.
59 The appellant contends that the total effective sentence of 7 years and 4 months' imprisonment infringed the first limb of the totality principle, which requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. This requires the court to examine the seriousness of the appellant's offending, the mitigating factors, and comparative cases: Pollock v The State of Western Australia [2009] WASCA 121 [27].
60 We have observed above, at [44], that the aggravated burglaries involved serious offending. The aggravated armed robbery offences were more serious still. There was again an element of planning and premeditation, albeit brief, and the offending involved what for the occupants of the Audi would have been a terrifying attack at night by several offenders, one of whom was armed with a crowbar. Whilst the appellant did not wield the crowbar, and at the outset did not know that one of his co-offenders had a crowbar, he was an active participant in the offending and continued to play an active role after the crowbar was produced. The maximum penalty for each aggravated armed robbery offence was life imprisonment.
61 There were, as the sentencing judge found, some mitigating factors in the appellant's plea of guilty; his remorse and victim insight; his acceptance of responsibility to some extent for the aggravated burglary and aggravated armed robbery offences; and his dysfunctional upbringing. The appellant has, however, a long and persistent history of serious offending and has been assessed as being at a moderate to high risk of violent re-offending and a high risk of 'generalist re-offending'. Considerations of personal deterrence and the protection of the public are of particular significance in this case.
62 In multiple offending of this kind, comparison with sentences imposed in other cases is difficult because of the very great variations in the number of possible offences and the possible combinations of offences: Howorth v The State of Western Australia [2007] WASCA 78 [30]. The appellant's counsel referred, however, to four cases for that purpose: Turnbull v The State of Western Australia [2013] WASCA 5; Nannup v The State of Western Australia [2011] WASCA 257; Morris v The State of Western Australia [2011] WASCA 47; and Otway v The State of Western Australia [2008] WASCA 165.
63 It is unnecessary to analyse those cases in any detail. We do not consider that they assist the appellant. While, as was submitted on behalf of the appellant, the offending in Turnbull was more serious, that was reflected in the sentence of 8 years' imprisonment imposed on the offender, who, like his co-offender, had pleaded guilty at the first opportunity. In addition, a psychiatric assessment had identified factors which pointed to a positive prognosis in relation to the offender's rehabilitation. The sentence of 7 years' imprisonment imposed on his co-offender reflected the co-offender's less extensive criminal record and lesser culpability, and his genuine remorse [14].
64 In Nannup, the offender, who came from a background similar to the present appellant, was resentenced on appeal to 5 years and 4 months' imprisonment on three counts of aggravated burglary, one count of armed robbery and three counts of stealing a motor vehicle. The seriousness of the offending was broadly comparable to the present case but an important mitigating factor in that case was the youth of the offender, who was 18 years of age. The offender had also provided the police with co-operation of a similar nature to that of the appellant in the present case and had entered early pleas of guilty.
65 In Morris, the offender, who had entered fast track pleas of guilty, was sentenced to 5 years and 6 months' imprisonment for three burglaries on school premises and the armed robbery of an elderly man, whose medication was stolen at knife point. The overall offending in the present case was objectively more serious than in Morris.
66 In Otway, the offender, whose background bore similarities to the present appellant's, was sentenced to 5 years and 6 months' imprisonment on four counts of aggravated burglary, one count of aggravated armed robbery, one count of stealing and one count of stealing a motor vehicle. The counts of aggravated armed robbery and stealing a motor vehicle and one of the counts of aggravated burglary arose out of an incident in which the offender and his co-offender smashed their way into a house and threatened the occupant with a dagger-shaped letter opener, thereby obtaining some personal items and the keys to his car, which they drove away. The offender had entered pleas of guilty but not at a particularly early stage and the sentencing judge considered that the offender's diagnosed attention deficit hyperactivity disorder may have had some effect on his conduct [10]. A significant factor in that case was the youth of the offender, who was 19 years of age at the time of sentencing.
67 We have also considered a number of other cases, including Howorth and the various cases referred to in that case. They do not support the appellant's contention.
68 We accept that the total effective sentence of 7 years and 4 months' imprisonment was high. It was towards the top of the range reasonably open to the sentencing judge. However, after having regard to the overall criminality involved in the offences, the facts and circumstances of the offending, prior cases with some comparable features, the mitigating factors, the appellant's personal circumstances and all relevant sentencing principles, we do not consider that the sentencing judge erred in imposing a total effective sentence of 7 years and 4 months' imprisonment. We would refuse leave to appeal on ground 3.
69 Where a court sentences an offender to a fixed term of imprisonment it has power to make a parole eligibility order: Sentencing Act 1995 (WA) s 89(1). Under s 89(4) of the Sentencing Act, a court may decide not to make a parole eligibility order if at least two of the following four factors are present:
(b) the offender has a significant criminal record;
(c) the offender, when released from custody under a release order made previously, did not comply with the order; or
70 The combined effect of those provisions is that a sentencing judge is required to make a parole eligibility order if none, or only one, of the four factors identified in s 89(4) is present. If two or more of those factors are present, the sentencing judge is required, without any predisposition, to take all relevant considerations into account, including the factors identified in s 89(4), in deciding whether a parole eligibility order should be made: Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [48] - [50]. There is no bias in favour of parole: Moody [50]; Ryan v The State of Western Australia [2011] WASCA 7 [87].
71 Where the exercise of the discretion to refuse parole is triggered by factors in s 89(4), it will ordinarily be difficult to show that the exercise of the discretion has miscarried: Pickett v The State of Western Australia [2004] WASCA 291 [7] - [8]; Ugle v The State of Western Australia [2007] WASCA 199 [52]. An appellate court cannot intervene simply because it would have exercised the discretion differently. It must be shown that an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 has occurred; that is, the primary judge has acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect the decision; made a material mistake of fact; or failed to take into account a material consideration. Even if the specific nature of the error is not discoverable, the exercise of discretion can be reviewed if error is to be inferred (at 505).
72 In Ugle, the court identified three of the factors which may be relevant in the exercise of the discretion. Those factors were, in substance, first, whether, in terms of rehabilitation, the offender is likely to benefit from serving the relevant portion of the sentence under supervision in the community; secondly, whether the offender is likely to benefit from relevant treatment programmes while in custody; and thirdly, whether the necessary support mechanisms were likely to be available upon the offender's release to enable gains made through those treatment programmes to be consolidated and to prevent the offender lapsing back into old ways [55] - [58].
73 Senior counsel for the appellant conceded (correctly in our view) that the discretion of the sentencing judge was enlivened in the present case. The offences committed by the appellant were undoubtedly serious, the appellant has a significant criminal record, and when previously released from custody under a release order the appellant did not comply with the order.
74 It was, however, submitted by senior counsel for the appellant that the sentencing judge had erred in finding that the appellant's prospects of rehabilitation were not substantial and would not be advanced by an order for parole eligibility. It was submitted that his Honour had failed to take into account that parole would give the appellant, who was still a relatively young man, an incentive to engage (while in custody and subsequently in the community) in the rehabilitation programmes recommended in the psychological report, in circumstances where the report had concluded that if he failed to benefit from those programmes his reoffending could result in significant harm to members of the community. It was further submitted that the sentencing judge had failed to take into account that the birth of his son had given the appellant a new incentive for rehabilitation.
75 We are not persuaded that his Honour erred. The appellant has a long history of persistent and serious criminal offending. He has previously completed 'many' treatment programmes in custody, all to no avail. From information the appellant's solicitors have obtained from the Sentence Information Unit of the Department of Corrective Services, it appears that between February 2003 and July 2012 the appellant served nine terms of imprisonment (including one of 4 years and 6 months and another of 21 months) and the longest period for which the appellant was out of prison was some 5 months, and that on only two occasions. It was otherwise in the order of anywhere from a few days to three months. He had been released from prison only three months before the present armed robbery offences. The two occasions on which the appellant was subject to supervision in the community, in 2004 and 2005 respectively, ended in failure.
76 The prognosis that emerged from the psychological report was bleak. Ms Oliveri reported that the appellant showed limited awareness of the impact of the offences on his victims and appeared to take no responsibility for his behaviour, blaming it on drug abuse and his co-offenders. She observed that the appellant reported having previously completed many intervention programmes in custody which were of benefit, but that he had been unable to make any positive changes to his lifestyle outside prison, attributing this to substance abuse, associating with anti-social others, and a lack of support. Ms Oliveri considered that as the appellant had been noncompliant with remediation attempts in the past there was a high likelihood he would be so in the future and that he was at a moderate to high risk of violent re-offending and a high risk of 'generalist re-offending'.
77 The author of the pre-sentence report painted a similarly bleak picture. She referred to a number of treatment options available to the appellant in the community but considered that, based on the appellant's poor record of compliance with previous community supervision orders and his failure to engage in non-custodial treatment programmes, his ability to complete a community-based treatment programme was doubtful. In light of the escalation in his offending, if he failed to do so any future re-offending could result in significant harm to members of the community.
78 Neither Ms Oliveri nor the author of the pre-sentence report referred to the birth of the appellant's son as improving the appellant's prospects of rehabilitation. However, the sentencing judge expressly took the birth into account and accepted that the appellant's capacity and motivation for rehabilitation was now greater than it had been.
79 In our view, based on the appellant's antecedents and the assessments in the psychological report and pre-sentence report, it was clearly open to his Honour to conclude, as he did, that the appellant's prospects of rehabilitation were not at all substantial. In light of that and the appellant's history of persistent serious offending, it was open to his Honour to find, as he did, that the appellant's prospects of rehabilitation through eligibility for parole were outweighed by the need for the protection of the community, and that the appellant should not therefore be eligible for parole. While it is evident that the appellant has treatment needs, it was not in issue that relevant treatment programmes can be provided in prison.
80 It was further submitted that the attention of the sentencing judge was not drawn to the appellant's co-operation with police and his disclosure of the count 4 offence. That is the case, however we are not satisfied that a different sentence should have been imposed or a different order made. As we will come to understand ground 5, the appellant's co-operation with police was limited and, as we have said earlier, his disclosure of the count 4 offence came about simply as a result of a misapprehension by the appellant as to the strength of the evidence against him. It does not reflect added maturity. That is also evident from the appellant's subsequent denial of the other burglary offence until informed that his fingerprint had been found at the scene.
81 Having regard to the appellant's long and persistent offending, his failure to benefit from previous treatment programmes, and the assessments made in the psychological and pre-sentence reports, we do not consider that those matters, either alone or in conjunction with other relevant factors, indicate that a different order should have been made. Ground 4 fails.
82 The appellant contends that a miscarriage of justice occurred because the sentencing judge did not take into account the co-operation the appellant had provided to police in relation to the aggravated armed robbery offences, the attention of the sentencing judge having not been drawn to that co-operation.
83 It is well-established that co-operation with police or investigating authorities may be a significant mitigating factor in sentencing: MGM v The State of Western Australia [2012] WASCA 24 [19]. The principles relating to co-operation were summarised in A Child v The State of Western Australia [2007] WASCA 285, as follows:
A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition ... the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should be taken into account. (citations omitted)
The considerations mentioned above reflect two underlying principles. One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.
The discount given to offenders should not be laid down as a standard percentage, but depends upon the circumstances of the individual case [11] - [13].
84 It is not necessary that the information or assistance turns out to be effective in the law enforcement process, although the discount will be greater where it has been. The greater the disclosure and the more potentially useful it is to the authorities, in the comprehension of the offender, the greater should be the discount: Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 [118]; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [53].
85 There is no tariff for a discount for co-operation: MXP [54]. In determining the appropriate level of discount, a court must consider the value of the cooperation, and the risk to the personal safety of the offender in providing that cooperation, while also ensuring that the discount does not result in a sentence that is, in all the circumstances, obviously inadequate or an affront to community standards: MXP [52].
86 The relevant facts in the present case are as follows. As described above, following his arrest on 14 October 2012 the appellant admitted the two burglary charges to police. Later that evening, the appellant was informed that he was also wanted for questioning in relation to the armed robbery offences. He then made a full confession in relation to those offences in a video record of interview. The court was provided with a copy of the transcript of the video record of interview. Senior counsel for the appellant informed the court that for present purposes it was unnecessary to view the videotape.
87 We have read the transcript of the interview. The transcript reveals that the appellant named HW as a co-offender and described what the appellant said was the role of HW and the other occupants of the Jeep in the offending. The appellant told police that he did not know the names of the other occupants of the Jeep, but he provided broad physical descriptions of them. We were informed that HW was subsequently interviewed by police but denied the offending and was never charged with it.
88 Counsel for the respondent conceded that the appellant had co-operated to some degree with police by identifying HW and describing his conduct as a co-offender and by describing the other passengers in the Jeep, and that the sentencing judge had erred by not taking that co-operation into account (ts 21). It was also conceded that the appellant's co-operation 'would ordinarily attract a small discount' (ts 20) and 'might result in a small reduction' (ts 22). Those concessions impliedly involve an acceptance that what the appellant had told police about those matters was true. We would accept those concessions.
89 However, the significance of the appellant's co-operation was contested. Counsel for the appellant submitted that in naming HW the appellant had provided a substantial degree of cooperation. Counsel for the respondent submitted that the degree of cooperation involved was very limited. It did not go so far as giving evidence against HW or demonstrating a preparedness to do so.
90 In light of the limited nature and extent of the co-operation, and having regard to the circumstances of the offending and the personal circumstances of the appellant, we do not consider that a different individual sentence should have been imposed for counts 1, 2 or 3 or that a different total effective sentence should have been imposed: Criminal Appeals Act, s 31(4)(a).
91 As we observed above, the offending in this case was very serious. The degree of co-operation provided to police by the appellant was limited to providing the name of a person alleged to be a co-offender and providing general descriptions of the others in the Jeep. The person named denied the offences and ultimately was not charged with them. There is no evidence that the appellant's personal safety was, or was likely to be, put at any risk by naming the alleged co-offender. In the circumstances, we do not consider that a miscarriage of justice occurred. We would grant leave to appeal on ground 5, but would not allow the appeal on this ground.
92 We would grant leave to appeal on grounds 1A and 5 but refuse leave on grounds 1, 2 and 3. The appeal is dismissed.
(1999) 198 CLR 111
(2003) 27 WAR 330
(1936) 55 CLR 499
(2008) 36 WAR 393
(2013) 249 CLR 600
(2010) 41 WAR 149
(1986) 6 NSWLR 603
(2001) 206 CLR 267
(1988) 164 CLR 465