Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Armed robbery, burglary and stealing - Application for leave to appeal against sentence - Totality

Criminal Code (WA), s 317(1), s 378, s 392(c), s 401(2)(c)

Sentencing Act 1995 (WA), s 9AA

Joslin v Western Australia [2012] WASCA 177

Morris v The State of Western Australia [2011] WASCA 47

Mourish v The State of Western Australia [2006] WASCA 257

Otway v The State of Western Australia [2008] WASCA 165

QJS v The State of Western Australia [2015] WASCA 9

Ridley v The State of Western Australia [2013] WASCA 45

The State of Western Australia v Cheeseman [2011] WASCA 15

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

2 MAZZA JA: The appellant seeks leave to appeal against sentence.

3 On 7 August 2015, the appellant was convicted in the Supreme Court on his fast-track pleas of guilty of one count each of armed robbery, contrary to s 392(c) of the Criminal Code (WA), burglary in a place, contrary to s 401(2)(c) of the Criminal Code, and stealing, contrary to s 378 of the Criminal Code. These offences were committed in breach of a suspended imprisonment order[1] and a community-based order imposed by the Geraldton Magistrates Court on 7 March 2014. The suspended imprisonment order was imposed for an offence of aggravated assault occasioning bodily harm, contrary to s 317(1)(a) of the Criminal Code. It is unnecessary to refer to the offences which were the subject of the community-based order.

(a) Count 1 - armed robbery: 2 years 10 months' imprisonment.

(b) Count 2 - burglary: 1 year 11 months' imprisonment (cumulative).

5 For the breach of the suspended imprisonment order, his Honour ordered the appellant to serve the 9-month term of imprisonment imposed by the learned magistrate on 7 March 2014. His Honour ordered the appellant to serve this sentence cumulatively on counts 1 and 2. Mitchell J recorded no additional penalty for the offences which breached the community-based order. Thus, the total effective sentence imposed upon the appellant was 5 years 6 months' imprisonment with eligibility for parole.

6 The appellant makes no complaint about any of the individual sentences; rather, he contends that the total effective sentence infringed the first limb of the totality principle.

7 I will deal with the facts of the offending in chronological order.

Facts of the offending relating to the suspended sentence

8 The appellant and the victim had been in a domestic relationship for about two and a half years. On 2 June 2013, while travelling in a motor vehicle, the appellant struck the victim, who was sitting in the back seat, approximately eight times to the face. He then climbed into the rear of the vehicle and hit her twice more. On arrival at their destination, he elbowed her to the face. As a result of these blows, the victim suffered bruising and swelling to her left eye and lips.

9 At about 5.15 pm on 20 October 2014, the appellant was walking along a footpath in Kenwick where he approached the victim, who was a stranger to him, from behind and asked if he could use the victim's mobile telephone. The victim agreed and entered the number that the appellant gave him into the handset then passed it to the appellant. The call was not answered and the appellant gave the telephone back to the victim, who continued to walk along the footpath. The appellant followed the victim and requested to use the mobile telephone again. This time, the victim denied the request. The appellant then pulled a syringe out of his pocket, took off its protective cap and pointed the tip of it towards the victim, saying 'Give us [sic] the phone or I'll stab you.' The victim felt threatened and frightened and believed that, if he did not hand over the mobile telephone, he would be stabbed with the syringe. The appellant grabbed the mobile telephone from the victim and walked away. As he did so, he told the victim 'If you follow me I'll stab you.'

10 When later interviewed by the police, the appellant said he could not remember anything about the incident but accepted that he could have been the offender. The mobile telephone was not recovered.

Facts relating to the burglary and stealing offences

11 Between 9.45 pm and 10.10 pm on 3 January 2015, the appellant went to the Broome Boulevard Shopping Centre. He entered the centre by smashing the glass fire door at the northern entrance. Once inside the shopping centre, he smashed the glass window of the Dick Smith store with a brick. After he entered the store, he used the brick to break a glass cabinet from which he stole 15 mobile telephones to the value of approximately $11,300.

12 On 13 January 2015, he was arrested by police and participated in a recorded interview during which he admitted the offences.

13 The appellant was 32 years of age when he was sentenced. He has a significant criminal history, including for offences of violence and for burglary, although his last conviction for burglary was in 2004. It cannot be said that the appellant is a man of prior good character. The criminal history, the two pre-sentence reports and a psychological report written by Ms Cinzia Zuin reveal a lengthy history of illicit drug use and alcohol abuse.

14 The appellant described to Ms Zuin a deprived upbringing and limited education. He claimed to have been depressed 'for years' and to have felt suicidal. Ms Zuin noted that the appellant:

... impresses as an individual who has poor coping skills and who lacks resilience such that he engages in self-destructive and self-defeatist behaviours to manage intolerable feelings associated with emotional distress and upheaval in his life. This is most apparent when relationships break down...[2]

15 The appellant has five young children from two relationships, the youngest of whom is less than 1 year old. The three oldest children did not live with the appellant and his partner. He told Ms Zuin that his 'primary goal for the future is to regain custody of his children and to focus on his current partner and their children'.[3]

16 The learned sentencing judge identified the appellant's early pleas of guilty as the most significant mitigating factor, reducing the sentences for counts 1 and 2 by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour also reduced those sentences because of the appellant's depressive condition. Although acknowledging that the appellant had expressed shame at the commission of the offences, his Honour was not satisfied that the appellant had demonstrated any genuine remorse.

17 As to the armed robbery offence, his Honour did not place it at the high end of the scale of seriousness of offences of its type. On the other hand, his Honour observed that the burglary was a planned and premeditated crime and, having regard to the value of the property taken, characterised it as 'significant'. Mitchell J observed that the indictable offences had been committed in breach of the suspended imprisonment order and the community-based order.

18 With respect to the charge of aggravated assault occasioning bodily harm, his Honour ordered that the appellant serve the term of imprisonment which had previously been suspended.

19 In order to reflect the overall criminality of the appellant's offending behaviour, his Honour ordered the sentences for the offences of armed robbery, burglary and the aggravated assault occasioning bodily harm be served cumulatively. Having regard to these sentences, his Honour imposed no other penalties for count 3 or for the offences for which the appellant had previously been placed on a community-based order.

Consideration of the proposed ground of appeal

20 The appellant submitted that, although the individual sentences were appropriate, the orders for accumulation resulted in a total effective sentence which breached the first limb of the totality principle. In oral argument to this court, the appellant emphasised his subjective circumstances; in particular, his desire to regain the custody of his five children and to assist his partner.

21 This court cannot intervene unless the appellant demonstrates that the sentencing judge made a material express or implied error. An alleged breach of the totality principle is an allegation of implied error. The first limb of the totality principle requires that the total effective sentence 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.

(c) aggravated assault occasioning bodily harm - 7 years' imprisonment.

23 I will not repeat what has already been written regarding the seriousness of the circumstances of the offending. It is sufficient to say that I respectfully agree with the learned sentencing judge's characterisation of the seriousness of the armed robbery and burglary offences. It is aggravating that these offences were committed in breach of a suspended imprisonment order and a community-based order. The aggravated assault occasioning bodily harm was a serious example of that offence. The individual sentences were consistent with comparable cases. See for the armed robbery offence, The State of Western Australia v Wells [2005] WASCA 23; for the burglary offence, Joslin v Western Australia [2012] WASCA 177 and Ridley v The State of Western Australia [2013] WASCA 45; and for the aggravated assault occasioning bodily harm, Mourish v The State of Western Australia [2006] WASCA 257 and The State of Western Australia v Cheeseman [2011] WASCA 15 (both of which analysed cases in respect of offences of assault occasioning bodily harm without circumstances of aggravation).

24 The only mitigating factors of significance were those identified by the learned sentencing judge. The appellant's family obligations were not, in the circumstances, mitigating.

25 Each of the offences for which the appellant was imprisoned were committed separately in time and place and warranted total accumulation to reflect the overall criminality of his conduct, viewed in its entirety and having regard to all the facts and circumstances, including those referable to the appellant personally.

26 The appellant cited in support of the proposed ground of appeal Otway v The State of Western Australia [2008] WASCA 165; Morris v The State of Western Australia [2011] WASCA 47 and QJS v The State of Western Australia [2015] WASCA 9. It is unnecessary to set out the facts and circumstances of these cases. The appellant argued that, in substance, these cases show that the total effective sentence imposed upon him was erroneous. A selection of three cases is insufficient to demonstrate that the total effective sentence imposed in this case was outside the exercise of a sound sentencing discretion. In any event, QJS and Otway concerned offenders whose youth was a significant mitigating factor. While the offending in Morris was more serious than the present case and involved an offender of mature years, the outcome in one case does not dictate the outcome in every case.

27 In my opinion, the appellant has fallen well short of demonstrating that the total effective sentence imposed upon him infringed the first limb of the totality principle. Having regard to the appellant's total criminality and all of the circumstances of the case, including those factors referable to the appellant personally, the sentence of 5 years 6 months' imprisonment reflected a sound exercise of his Honour's sentencing discretion. This court has no jurisdiction to intervene. In my opinion, the proposed ground of appeal has no reasonable prospect of succeeding and thus, the appeal should be dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.

[1] 9 months' imprisonment, suspended for 12 months.

[2] Psychological report of Ms Cinzia Zuin dated 7 May 2015, page 4.

[3] Psychological report of Ms Cinzia Zuin dated 7 May 2015, page 5.