Criminal Appeals Act 2004 (WA), s 41(1)(a)

Sentencing Act 1995 (WA), s 8(5)

McDonald v The State of Western Australia [2008] WASCA 132

Miles v The Queen (1997) 17 WAR 518

MXP v The State of Western Australia [2010] WASCA 215

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

2 BUSS JA: The appellant was convicted in the District Court, on his pleas of guilty, of these offences:

(a) one count in an indictment which alleged that he attempted to steal, with threats of violence, $29,254.01 in money the property of a company trading as a restaurant in a Perth suburb, while he was in company with others; and

(b) four charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), being one stealing offence and three traffic offences.

3 The sentencing judge imposed a sentence of 2 years' immediate imprisonment for the offence of attempted aggravated armed robbery and a sentence of 2 months' immediate imprisonment for the stealing offence. The term of 2 months was ordered to be served cumulatively upon the term of 2 years. A parole eligibility order was made. His Honour imposed fines for the traffic offences.

4 The appellant appealed against the sentence of 2 years' immediate imprisonment for the offence of attempted aggravated armed robbery. His sole ground of appeal was that the sentence was, in all the circumstances, manifestly excessive. On 23 November 2010, Mazza J granted leave to appeal.

5 On 23 December 2010, at the hearing of the appeal, the State conceded that the appeal should be allowed. This was a proper concession. At the conclusion of the hearing, this court allowed the appeal and resentenced the appellant, relevantly, as follows:

(a) a new sentence of 14 months' immediate imprisonment was imposed for the offence of attempted aggravated armed robbery;

(b) the court stated, in accordance with s 8(5) of the Sentencing Act, that it had reduced the new sentence from 20 months to 14 months on account of the appellant's undertaking to provide future assistance to law enforcement authorities in accordance with his written undertaking dated 15 December 2010;

(c) the new sentence was to be taken to have taken effect on 18 May 2010, being the date on which the appellant went into custody for the offence: see s 41(1)(a) of the Criminal Appeals Act 2004 (WA);

(d) the new sentence was to be served concurrently with the sentence of 2 months' immediate imprisonment imposed by the sentencing judge for the offence of stealing.

6 We said that reasons for our decision would be published later. These are my reasons.

7 Early one morning, the appellant and a co-accused, who were armed with a piece of wood and a golf club respectively, approached a security guard as he left a restaurant in a Perth suburb. The appellant and his co-accused knew, as a result of information provided to them by an employee of the restaurant, that the security guard would be carrying the weekend's takings in an amount of about $30,000.

8 The appellant and his co-offender confronted the security guard. The appellant demanded, '[g]ive me the money and no one gets hurt'. The security guard did not comply, and retreated to the restaurant.

9 The appellant then, in an apparent act of frustration, struck the security guard's motor vehicle with the piece of wood.

10 On 18 May 2010, about two weeks after the occurrence of the offence, the appellant surrendered to police. The previous day, 17 May 2010, police had attended at his home and seized the weapons and certain items of clothing. He believed that a warrant had been issued for his arrest. When he surrendered to police, the appellant made full admissions.

11 The offence of stealing involved the appellant refuelling his motor vehicle on 10 September 2009 with $80.05 of petrol and leaving the petrol station without paying. The three traffic offences occurred on 21 April 2010 and involved the appellant driving an unlicensed motor vehicle, with incorrect licence plates fitted and without displaying 'P' plates.

12 The appellant was a young man at the time of sentencing.

13 He suffered from attention deficit hyperactivity disorder at an early age. This caused difficulties with his education.

14 A presentence report before the trial judge revealed that the appellant had some insight into his offending and some empathy for the security guard. The appellant came from a supportive family. He had a 5-year-old child from a former relationship, and his current partner was pregnant by him.

15 He had a prior criminal record. The record comprised relatively minor traffic offences. The dates of these offences were 18 December 2007, 11 April 2008, 21 April 2008 and 10 February 2010.

16 The offence of attempted aggravated armed robbery was premeditated. The appellant had been consuming alcohol. He said he 'felt drunk' when the offence was committed. The appellant had been residing with a friend (a co-accused) and the friend's mother. His friend's mother was a heroin addict and continuously wanted money from him. According to the appellant, he was in financial difficulties and these difficulties prevented him from finding his own accommodation. He thought that the commission of the offence would be 'an easy way out'.

17 The presentence report contained, relevantly, the following summary:

[The appellant] presented as an immature young man whose current offence represents a significant escalation in his offending. He claimed that he was suffering financial hardship and wanted to relocate, therefore conspired with some associates to commit the robbery. He acknowledged that he did not consider the consequences of his actions. His offending appears related to his poor decision making skills, lack of consequential thinking and immaturity. His decision to become involved in the offence suggests some antisocial cognitions, given that he elected to engage in crime for a quick fix solution to his problems.

The appellant's past cooperation and promised future cooperation with law enforcement authorities

18 It is well-established that substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies. When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.

19 The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence, were examined recently by this court in MXP v The State of Western Australia [2010] WASCA 215. It is unnecessary to reproduce that examination.

20 In the present case, the appellant provided substantial assistance to law enforcement authorities, before he was sentenced, in relation to the investigation of the offence of attempted aggravated armed robbery. He also gave a written undertaking to provide future cooperation. Details of the appellant's cooperation are set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

The sentencing process was affected by a miscarriage of justice

21 The sentencing judge, in the course of his remarks, enumerated various mitigating factors including that the appellant had 'given cooperation to the police' (ts 23).

So in your favour there is your age, the fact that your record doesn't disclose any prior offences of this kind, that you are contrite, that you have pleaded guilty at the earliest opportunity and given help to the police, and that whilst you have been in custody you've participated in programs which will hopefully address some of the behaviours that have contributed to your being here today. And you've been in custody for almost four months now (ts 24). (emphasis added)

23 In my opinion, the sentencing process was affected by a miscarriage of justice. First, not all information relevant to the appellant's past and promised future cooperation with law enforcement authorities was provided to the sentencing judge. Secondly, his Honour made an insufficient reduction in sentence for the appellant's past cooperation. Thirdly, his Honour made no reduction in sentence for the appellant's promised future cooperation. The State properly conceded, in effect, that there had been a miscarriage.

24 The sentencing judge merely took into account the appellant's cooperation, to the extent that he was informed of it, in a general way.

The proper exercise by a court of its function in sentencing an offender must not be constrained by the decision of the Director of Public Prosecutions or the police about whether in a particular case a 'letter of comfort' or a 'letter of recognition' will be given. This filtering outside the court process must not interfere with or affect the capacity of a sentencing judge properly to determine, for sentencing purposes, the nature, extent and value of an offender's cooperation and the extent of any discount to the sentence that would otherwise be imposed. All relevant facts and circumstances are to be placed before the court, desirably with the form and content having been previously agreed between the offender's counsel and the office of the Director. An offender's counsel should inform the office of the Director as soon as practicable before the sentencing hearing of any contention that the sentence should be reduced on account of cooperation with the law enforcement agencies [62].

26 If inadequate information is placed before a sentencing judge in relation to an offender's past or promised future cooperation, a miscarriage of justice will ordinarily occur. An alleged miscarriage may form the basis of a ground of appeal against sentence. If the miscarriage is made out, this court may intervene, set aside the sentencing decision and re-sentence the offender.

27 In the present case, the appellant did not rely on a ground of appeal which alleged that a miscarriage of justice had occurred in the sentencing process. Rather, it was alleged that the sentence imposed was, in all the circumstances, manifestly excessive; that is, the appellant relied on implied error in relation to the sentencing outcome. See also the grounds relied on in MXP [26].

28 The sentence of 2 years' immediate imprisonment imposed on the appellant was not manifestly excessive when the sentence is considered without regard to the appellant's cooperation. The sentence was within the applicable range and reflected the need for appropriate punishment and personal and general deterrence.

29 The applicable standards of sentencing for armed robbery were considered in Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ, Pidgeon J agreeing) and The State of Western Australia v Wells [2005] WASCA 23 [4] - [5] (Wheeler JA, Steytler P & Roberts-Smith JA agreeing). It was said in those cases that the range of sentences commonly imposed for armed robbery is 4 to 6 years' immediate imprisonment (expressed in transitional terms). The maximum penalty for armed robbery is imprisonment for life. See s 392(c) of the Criminal Code (WA) (Code).

30 The applicable standards of sentencing for attempted armed robbery were considered in McDonald v The State of Western Australia [2008] WASCA 132 [20] - [24] (Steytler P, McLure & Miller JJA agreeing). The maximum penalty for attempted armed robbery is 14 years' imprisonment. See s 552(2)(a) of the Code. In McDonald, the offender was convicted of attempted armed robbery. This court held that the trial judge had erred in the sentencing process by adopting as a starting point the range of sentences commonly imposed for armed robbery. As a result, the sentence imposed was manifestly excessive.

31 The seriousness of the appellant's offending in the present case is demonstrated by the following:

(a) Although the appellant did not conceive the original idea for the robbery, he became involved voluntarily and his participation was important in facilitating the commission of the offence.

(b) The appellant was actively involved in planning how he and his co-accused would flee the scene.

(c) The appellant recruited a co-accused to participate in the offence despite the co-accused being merely 16 years of age.

(d) The appellant initiated a 'practice run' with his co-accused the night before the planned robbery in order to ascertain the time it would take to flee the scene and return to the getaway car.

(e) The appellant wore dark clothing and a bandanna across his face in order to disguise his identity.

(f) The appellant anticipated that the offence may involve actual violence and, although wishing to avoid it, he was prepared to carry it out, if required. He believed that the security guard would be armed and the situation may escalate to a point where he (the appellant) was injured.

(g) The appellant expected that the robbery would yield about $30,000, and that he would receive half of this amount.

(h) The appellant threatened violence to the security guard while brandishing a piece of wood.

(i) After the security guard escaped, the appellant struck the security guard's motor vehicle in an attempt to break a window.

32 The seriousness of the offence required the imposition of a term of immediate imprisonment, despite the appellant's personal circumstances and his cooperation with law enforcement authorities.

33 However, the nature and extent of his past and promised future cooperation was not properly reflected in the sentencing outcome. As a result, the sentence imposed by his Honour was manifestly excessive.

35 This court had the material necessary to resentence the appellant. As I have mentioned, the seriousness of the offending required the imposition of a term of immediate imprisonment. No other sentencing option was open.

36 The criminality of the appellant's offending, having regard to the maximum available sentence, the standards of sentencing customarily observed, the place which his criminal conduct occupies on the scale of seriousness of offences of this kind, and the appellant's personal circumstances, including his past cooperation with law enforcement authorities, required a sentence of 20 months' immediate imprisonment.

37 The sentence was discounted from 20 months' to 14 months' immediate imprisonment to reflect the appellant's undertaking to provide future assistance to law enforcement authorities in accordance with his written undertaking dated 15 December 2010, details of which are set out in the confidential schedule to these reasons.

38 The new sentence was taken to have taken effect on 18 May 2010, when the appellant went into custody for this offence.

39 The new sentence was ordered to be served concurrently with the sentence of 2 months' immediate imprisonment imposed by the sentencing judge for the offence of stealing. This order resulted in a total effective sentence of 14 months' immediate imprisonment, which appropriately marked the overall criminality involved in both offences.