JABBIE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 10 (9 February 2022)

4 For the reasons that follow, none of the grounds of appeal has any merit. Leave to appeal on each ground must be refused and the appeal must be dismissed.

5 The appellant was convicted of the following offences, for which the following sentences were imposed.

On 15 January 2019 at Belmont, stole from AC, with violence, a mobile phone and wallet, the property of AC. And that he did bodily harm to AC.

On 17 January 2019 at Cloverdale, stole from JB, with violence, a wallet and money, the property of JB. And that he was armed with a dangerous weapon and did bodily harm to JB.

On 26 January 2019 at Bayswater, stole from AA, with violence, a sum of property, the property of AA. And that he did bodily harm to AA and that AA was over 60 years.

On 29 January 2019 at Tuart Hill, while in the place of LT without her consent, committed the offence of stealing. And that he was in company with another and that the place was ordinarily used for human habitation.

On the same date and at the same place as in count 8, while in the place of LS without her consent, committed the offence of stealing. And that the place was ordinarily used for human habitation.

On the same date and at the same place as in count 8, entered, or was in, the place of ET without his consent, with intent to commit an offence. And that he knew or ought to have known there was another person in the place.

On the same date and at the same place as in count 8, with intent to steal a motor vehicle, used violence to ET in order to prevent or overcome resistance to it being stolen. And that he was armed with a fire extinguisher, did bodily harm to ET and ET was over 60 years.

On 30 January 2019 at Tuart Hill, stole from KA, with violence, a set of car keys, the property of KA. And that he did bodily harm to KA and KA was over 60 years.

On the same date and at the same place as in count 12, stole a motor vehicle, the property of KA.

On 30 January 2019 at Yokine, while in the place of LP without her consent, committed the offence of stealing. And that the place was ordinarily used for human habitation.

On the same date and at the same place as in count 14, stole jewellery, a suitcase and a bankcard, the property of LP.

On 31 January 2019, attempted to enter or be in the place of AJ without his consent, with intent to commit an offence. And that the place was ordinarily used for human habitation.

On 5 May 2020 at Canning Vale, wilfully and unlawfully destroyed a mattress, bedding sheet and a power outlet within a prison cell. And that the property was destroyed by fire.

6 The facts, which were not in dispute at sentencing,[1] can be summarised as follows.

7 We begin with the various counts, of which the appellant was convicted, on IND 2405 of 2019.

8 At around 9.45 am on 15 January 2019, the appellant approached the victim, AC, who was walking along a street in Belmont. Without any warning, the appellant hit AC around the head, causing the victim to fall to the ground. The appellant then swung his right arm and hit him again. The victim tried to get up and push the appellant back. The victim lost his footing and his consciousness for a moment.[2]

9 The appellant stole the victim's mobile phone, headphones and wallet, some of which were later recovered. The victim suffered a swollen jaw, heavy bruising to his eyes, scratches to his ear and a grazed elbow.

10 At around 1.25 am on 17 January 2019, the victim, JB, a 54‑year‑old Uber driver, was working in Northbridge. The appellant approached JB and an arrangement was made for the victim to drive the appellant for $15. The appellant returned with three other males and the four of them got in the car, the appellant sitting in the front seat.

11 As the victim was driving, the appellant sprayed him in the face with an unknown substance, causing the victim pain and stinging. The victim stopped and got out. The victim ran away, before falling. The appellant approached the victim and searched his pockets, taking his wallet containing $125. The victim kicked at the appellant to get him off. The victim handed the appellant $15. The appellant took the money, went back to the vehicle and left when he could not start the vehicle.

12 The victim suffered injuries and was taken to hospital. The offending has changed the victim's life, resulting in him suffering from post-traumatic stress disorder and suicidal depression.

13 Around midnight on 26 January 2019, the victim, AA, who was 65 years of age, collected the appellant and a female in his taxi. The victim took them to a service station. The appellant was unable to pay the fare and so the victim told the appellant he would return them to the location where he had picked them up. The appellant became aggressive towards the victim and said, 'I'm going to roll you, you dog'. The appellant punched the victim, told him to stop the car and got out. The victim got out of the car. The appellant approached the victim, kicked him in the stomach area and punched him in the face. The victim lost balance and was rendered unconscious.

14 While the victim was on the ground, the appellant removed $2,700 in cash from the victim's pocket. The victim suffered injuries and was hospitalised. The victim suffers from ongoing pain and vertigo. He also suffers from post-traumatic stress disorder, anxiety and panic attacks. The offending has had a significant financial impact on AA.

15 At around 1.55 pm on 29 January 2019, the appellant gained entry to a house with a co-offender. The appellant stole a number of personal items, including cash. The total value of the stolen property was $1,170. While the appellant was in the house, the victim, LT, and her daughter returned. The appellant tried to hide. The victim's daughter called the police and the appellant fled. There was no confrontation between the appellant and the victim and her daughter.

16 Also on 29 January 2019, the appellant jumped the fence into the backyard of a different residential home in the same suburb as count 8. The appellant sat outside the back of the residence and smoked a cigarette, went to the side room off the al fresco area, took two cans of soft drink from the fridge and consumed them.

17 The victim returned home with her granddaughter and confronted the appellant. The appellant told them he was selling vacuum cleaners and then fled.

18 On 29 January 2019, the appellant entered the victim's garage where the victim's car was parked. The victim, ET, was 77 years of age. The appellant did so with the intent of stealing the car to assist him in fleeing the area. The appellant opened the car door. The victim heard the appellant and went to the garage to investigate (count 10).

19 The victim confronted the appellant and the appellant sprayed him with a fire extinguisher which he had taken from the garage wall. The appellant continued spraying the victim, forcing him backwards and preventing him from getting back inside the house. The appellant attempted to enter the house to find the car keys, however the victim pushed him back and closed the door to the house. The appellant dropped the fire extinguisher and fled (count 11).

20 The victim suffered cuts and bruises to his body and irritation to his eyes.

21 At about 4.45 am on 30 January 2019, the victim, KA, who was 64 years of age, was working at a laundry in Tuart Hill. The victim walked from the laundry to his car. The appellant called out to the victim and then walked to the victim's car. The appellant elbowed the driver's window, smashing the window completely. The victim sustained a large cut to his right arm.

22 The appellant reached into the car and took the keys. The victim got out of the car and a physical altercation ensued. The victim suffered bruising to his left eye.

23 After the fighting stopped, the appellant took the car keys off the key ring and demanded property from the victim. The victim said he did not have anything and asked for the keys back. The appellant refused and left the car park on foot, taking the car keys with him (count 12).

24 The victim returned to the laundry to attend to his wounds. The appellant went into the laundry, confronted the victim again and demanded his watch. A brief physical altercation occurred and the appellant stole the victim's watch.

25 The victim's employer then intervened and asked the appellant to return the victim's belongings. The appellant refused and left.

26 The appellant returned and got into the victim's vehicle, before driving away (count 13).

27 On 30 January 2019 between 2.00 pm and 3.00 pm, the appellant smashed a window near the front door of the victim's residential unit to grab some keys and then gained entry to the victim's bedroom. The appellant stole a number of items of jewellery, including family heirlooms of sentimental value to the victim, the total value of which was estimated at about $30,000. Some of the jewellery has been recovered, but a large amount remains outstanding.

28 At 1.10 am on 31 January 2019, the appellant approached the front door of the victim's house and attempted to gain access by kicking the door. The victim heard the noise and saw the appellant on a CCTV camera.

29 The victim called the police. He was fearful because he thought the appellant was holding a knife, although the appellant was not. The appellant left and did not gain access to the house.

30 On 5 May 2020, while the appellant was a prisoner at Hakea prison, he was in his prison cell. He set up a device through an electrical socket and put a bed sheet over it, which allowed a flame to ignite. The sheet caught alight and the fire spread to the mattress. The appellant had to be evacuated. The fire was extinguished early by the prison officers. The damage caused was around $2,000.

31 The appellant was 22 years of age at the time of the offending the subject of the 2019 indictment, 23 at the time of the offending the subject of the 2020 indictment and 24 at the time of sentencing. He was born in Liberia and has two sons, aged three and five years.

32 The appellant was the only child to his parents, who separated when he was young.[3] He was raised largely by his mother's parents. His early life in Liberia was difficult. He ultimately came to Australia to join his father, doing so via a refugee camp.

33 When the appellant arrived in Australia, he did not have a good relationship with his stepmother and subsequently offended against his stepsister. As a result of his offending, the appellant was removed from the family home and lived with a friend of his father until he was placed in a Department of Communities home, where he remained until the age of 17. The judge accepted that the appellant had a strong sense of having been abandoned by his parents.[4]

34 The judge accepted that the appellant's education was poor. His Honour noted that the appellant's employment opportunities had been limited. The appellant had previous employment as a salesperson and previous employment with his uncle doing gardening and landscaping work. The judge accepted that the appellant perceived that his work opportunities were unfairly affected because of his race, although his Honour did not accept on the evidence before him that that was the case.[5]

35 The appellant's relationship with the mother of his two sons was violent and has come to an end. He has not seen his sons for over two years.

36 The appellant commenced using alcohol and cannabis from around the age of 13 years and progressed to methylamphetamine at 17. He was diagnosed with depression around the age of 19.

37 The judge stated that the appellant had an extensive history of offending, including offences of assault, stealing, aggravated burglary and aggravated armed robbery.

38 In relation to the offending the subject of the 2019 indictment, the judge noted that it arose after the appellant's release from prison in November 2018, when he relapsed into methylamphetamine use. This resulted in the appellant becoming homeless and committing crimes to fund his drug use.

39 The judge noted, as being of particular concern, the appellant's comment to the author of the psychological report that he likes the rush of committing crimes.[6]

40 In relation to the offending the subject of the 2020 indictment, the judge noted that it arose due to the appellant's anger from receiving punishment in prison for fighting with another prisoner.[7]

41 The judge adopted some of the remarks of the author of the psychological report, including that the appellant 'felt rudderless' from a young age, which increased his vulnerability to destabilising influences; developed negative self-beliefs and as a result became self-destructive; and has difficulty feeling remorse and empathy.[8]

42 The judge identified various serious features of the appellant's offences.

43 The judge characterised count 4 as serious offending, observing that the attack was unexpected, the strikes caused the victim to fall to the ground, the attack continued while the victim was on the ground and the injuries were significant.[9]

44 The judge characterised count 5 as very serious offending, as it was late at night, and the appellant was armed and in company. The victim was providing a service to the public and the attack happened while he was driving, presenting a risk of a traffic accident. The attack has had an ongoing effect on the victim.[10]

45 The judge observed that the offending the subject of count 7 was serious, and that the victim was elderly and was providing a service. The attack while the victim was driving carried a risk of a traffic accident and had an ongoing effect on the victim.[11]

46 The judge said that the seriousness of count 8 was moderated because the property stolen was not significant and there was no actual confrontation with the occupants, however the seriousness was increased because the appellant was in company.[12] The judge said that the offending in count 9 was less serious than the offending in count 8.[13]

47 The judge stated that the conduct the subject of count 11 was serious, given the appellant's persistence and the age of the victim.[14]

48 The judge considered that the offending the subject of counts 12 and 13 was serious. The victim suffers ongoing pain and the offending has caused him ongoing stress and anxiety.[15]

49 The judge observed that while the offending the subject of counts 14 and 15 did not involve a confrontation, the value of the items stolen and not recovered was of significant value, both monetary and sentimental, which increased the seriousness of the offending.[16]

50 The judge considered that the seriousness of count 16 is reflected by being committed in the early hours of the morning and that the attempt to gain access by kicking the door must have been frightening to the victim.[17]

51 The judge stated that the offending the subject of IND 1443 of 2020 was serious because of the risk of harm to others at Hakea prison. The risk of serious injury or death caused by fire was considerably increased within the confines of Hakea due to the significantly delayed ability to escape the area's security mechanisms.[18]

52 The judge stated that, overall, the appellant's offending was 'very serious' when regard is had to the nature of the conduct; the number of victims, some of them elderly; and the ongoing consequences for the victims.[19]

53 The judge noted the following mitigating factors:[20]

(1) The appellant's pleas of guilty. In respect to counts 4, 7 - 9 and 11 - 16, the judge noted that the pleas were entered after the matters were committed for trial but nevertheless had substantive value and allowed a discount of 18% under s 9AA of the Sentencing Act 1995 (WA). In respect of counts 5 and 10, the judge noted that they were entered on the first day of trial and, while late, also had substantive value and allowed a discount of 15%. In respect of the 2020 indictment, the judge noted that the State conceded that the plea was at the first reasonable opportunity and allowed a discount of 25%.

(2) The appellant's youth. The judge observed that, while the appellant has a history of offending, he was satisfied that the appellant's youth remained a mitigating factor.

(3) The appellant's disadvantaged upbringing.

(4) The appellant's remorse. The judge referred to the appellant's two letters to the court, saying that they reflect the initiation by the appellant of an attempt to change for the good. His Honour noted that the letters reflect some insight into the offending and thus have some mitigating effect.

54 The judge stated that the appellant's risk of reoffending was high.[21]

55 The judge stated that, in sentencing the appellant, the principal matters that his Honour must take into account were punishment, personal and general deterrence, and rehabilitation. His Honour noted that personal deterrence was of particular importance given that the appellant was at high risk of reoffending.[22]

56 The judge imposed the individual sentences set out at [5].

57 The judge said that in assessing considerations of totality, he took into account that the appellant had spent a significant amount of his adult life in prison, being approximately three and a half years.[23]

58 To give effect to considerations of totality, the judge ordered that the sentence on count 5 of the 2019 indictment, of 4 years' imprisonment, be the head sentence. The sentence on count 7 of the 2019 indictment, of 3 years 6 months' imprisonment, be served cumulatively on the sentence on count 5. The sentence on the offence constituting the 2020 indictment be served cumulatively on counts 5 and 7 and be reduced from 2 years 6 months' imprisonment to 1 year's imprisonment for totality purposes.[24] This produced a total effective sentence of 8 years 6 months' imprisonment.

59 The judge backdated the sentence to 1 August 2019 and made the appellant eligible for parole.

60 The judge also made orders for compensation in respect of the victims of counts 7 and 16.

61 The appellant advances the following three grounds of appeal:

(1) The individual sentences for count 5 and count 7 of the 2019 indictment were manifestly excessive.

(2) The total effective sentence infringed the first limb of the totality principle.

(3) The judge erred in failing to backdate the sentence to commence on a date earlier than 1 August 2019.

62 In respect of ground 1, the appellant submits that the individual sentences on counts 5 and 7 are 'very harsh'. He submits, in effect, that the sentences on count 5 (4 years' imprisonment) and count 7 (3 years 6 months' imprisonment) are higher than sentences imposed on other prisoners for more serious offending.

63 In support of ground 2, the appellant submits that the total effective sentence of 8 years 6 months' imprisonment is too long. In support of this complaint, the appellant refers to his youth, being 22 years at the time of the offending in the 2019 indictment and 23 years at the time of the offence comprising the 2020 indictment.

64 By ground 3, the appellant challenges the backdating of his sentence. He submits that he was taken into custody on 30 January 2019 for the charges comprising the 2019 indictment. He submits that his sentence should have been backdated to 30 January 2019, not 1 August 2019 as ordered by the judge.

65 The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, such as 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 a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed for 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). The offences are to be 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) 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 is 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.

66 It is convenient to commence with ground 3, which alleges a specific error.

67 There is no substance in the appellant's complaint, advanced by ground 3, regarding the date of backdating. When he was sentenced on 19 April 2021, the appellant had been in custody since 1 February 2019. As the appellant's criminal history shows, the appellant served a 6‑month term on another offence for which he was sentenced on 25 February 2020. Thus, the 6‑month period commencing on 25 February 2020 was the time spent serving that term. The appellant is not entitled to get credit twice in respect of time in custody. To avoid such an outcome, the judge appropriately fixed the commencement date as 1 August 2019. Ground 3 fails accordingly.

68 Ground 1 contends that the individual sentences on counts 5 and 7 are manifestly excessive. For the reasons that follow, that contention is without merit.

69 The maximum penalty for count 5 was life imprisonment. For count 7, the maximum was 20 years' imprisonment.

70 The patterns of sentences imposed for offences of armed robbery have been considered by this court and its predecessor in many cases. See, for example, the cases referred to in Hiemstra v The State of Western Australia[25] and in Hayward v The State of Western Australia.[26] In Hiemstra, this court said as follows:[27]

It is apparent from the case law that where an offender is convicted after trial of a single count of armed robbery, contrary to s 392 of the Code, a sentence of 5 to 6 years' imprisonment (before having regard to any aggravating or mitigating factors) is not unusual. However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders, in the context of the offence of armed robbery, vary widely. Sentences significantly beyond the range we have mentioned may, having regard to the maximum penalty and the relevant facts and circumstances (including any aggravating and mitigating factors), be appropriate in particular cases.

71 As to sentences for aggravated robbery, see for example Schischka v The State of Western Australia[28] and Mills v The State of Western Australia[29] and the cases referred to in those decisions.

72 The offending the subject of counts 5 and 7 had a number of serious features.

73 Count 5 involved a violent attack on a rideshare driver, using a weapon, while the appellant was in company. The appellant sprayed the victim in the face while the victim was driving, thereby endangering the victim and members of the public. The victim was providing a service to the public. He was vulnerable to an unexpected attack while he was driving. The offending has had profound and enduring effects on the victim, who has suffered post‑traumatic stress disorder and suicidal depression.

74 After allowing the judge's generous discount of 15% for the appellant's plea of guilty, and after giving full weight to the appellant's youth, disadvantaged upbringing and remorse, the sentence of 4 years' imprisonment on count 5 is comfortably within the range of sentences available on a proper exercise of the sentencing discretion. Error cannot, even arguably, be inferred from the outcome. The sentence of 4 years' immediate imprisonment was not unreasonable or plainly unjust.

75 Count 7 involved a violent attack on a 65‑year‑old taxi driver. The appellant punched and kicked the victim, rendering him unconscious. Again, the victim was providing a service to the public. The appellant stole a large sum of money - $2,700 in cash - from the victim. The appellant's offending has had significant medical, psychological and financial consequences on the victim, who suffers from ongoing pain, vertigo, post‑traumatic stress disorder and panic attacks.

76 Allowing for the discount of 18% given by the sentencing judge for the appellant's plea of guilty, and giving full weight to the appellant's youth, disadvantaged upbringing and remorse, the sentence of 3 years 6 months on count 7 is well within the range of sentences available on a proper exercise of the sentencing discretion. It is not reasonably arguable that the sentence is manifestly excessive.

77 For these reasons, there is no merit in ground 1.

79 The appellant's assertion that a total effective sentence of 8 years 6 months infringes the first limb of the totality principle must be evaluated having regard to the maximum penalties for the offences of which the appellant was convicted. The appellant committed 13 offences. Three of those offences had a maximum of life imprisonment; five had a maximum of 20 years' imprisonment; one had a maximum of 18 years' imprisonment; and one had a maximum of 14 years' imprisonment.

80 The appellant's offending caused serious harm to a number of different victims. He violently attacked the victims of counts 4, 5, 7, 11 and 12, many of whom continue to suffer significant adverse effects from the attack. We adopt, without repeating, the judge's identification of the serious features of the appellant's offences and offending generally: see [43] ‑ [52] above.

81 Given the substantial number of serious offences the subject of indictment IND 2405 of 2019, accumulation, to some substantial degree, was necessary to reflect the seriousness of the offending. The judge accumulated the sentences on counts 5 and 7, ordering that the sentences on the remaining 9 offences on the indictment[30] be served concurrently. Accumulation of the sentence on the offence the subject of indictment IND 1443 of 2020 was necessary and appropriate, given that the offence was serious and was committed while the appellant was a sentenced prisoner.

82 In our view, the total effective sentence of 8 years 6 months' imprisonment was well within the proper exercise of the sentencing judge's discretion. It cannot be reasonably argued that the sentence did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally. The allegation that the total effective sentence infringed the first limb of the totality principle is without merit.

83 For the above reasons, we make the following orders:

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

[3] The judge noted that there was a discrepancy between the appellant's background as summarised in the pre-sentence report and the background as summarised in the psychological report and accepted the psychological report as the more accurate - ts 119.

[25] Hiemstra v The State of Western Australia [2021] WASCA 96 [133].

[26] Hayward v The State of Western Australia [2020] WASCA 57 [36] ‑ [46].

[28] Schischka v The State of Western Australia [2015] WASCA 15.

[29] Mills v The State of Western Australia [2007] WASCA 118.

[30] No punishment was imposed in respect of count 15.