Mesiti v R [1999] WASCA 76

Evidence - Judicial discretion to admit or exclude evidence - Police surveillance prior to commission of offences - Alleged police had prior knowledge of armed robbery and could have arrested offenders before commission of offences - Whether such failure to arrest was a breach of statutory duty or unlawful and rendered evidence of the offences inadmissible

Respondent : Acting State Director of Public Prosecutions

Coward v R (1985) 16 A Crim R 257

"D" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 960052; 8 February 1996

Lowe [1984] HCA 46; (1984) 154 CLR 606

Medina v R (1996) 84 A Crim R 316

Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997

Moody v The Queen, unreported; CCA SCt of WA; Library No 980109; 12 March 1998

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Weng Keong Chan (1989) 38 A Crim R 337

1 MALCOLM CJ: In my opinion this appeal against conviction and application for leave to appeal against sentence should both be dismissed for the reasons to be published by Ipp J with which I am in entire agreement.

2 IPP J: This is an appeal against conviction and an application for leave to appeal against sentence.

3 The applicant was convicted on 8 August 1998 on his own pleas of guilty to two counts of stealing a motor vehicle, one count of deprivation of liberty and one count of armed robbery. An effective overall sentence of 9 years' imprisonment with eligibility for parole was imposed upon him.

4 The Court's power to allow an appeal at the instance of a person who has pleaded guilty to the offences the subject of the appeal is contained in s 689(1) of the Criminal Code. This section provides that the Court of Criminal Appeal should allow an appeal if "on any ground there was a miscarriage of justice".

5 The principal ground of appeal against conviction on which the appellant relies is that "the conviction arose from an abuse of process by police obtaining evidence by unlawful means". The kernel of the argument is that the police "sanctioned the offences" of armed robbery and deprivation of liberty by failing to arrest the appellant before he committed the offences, even though they knew that he was about to perpetrate them. It is said that this conduct on the part of the police amounted to a breach of their statutory duties and hence, in obtaining evidence against him, they were acting unlawfully. It is to be noted that the appellant was not legally represented in the appeal and the arguments advanced by him were based upon his own ingenuity and research.

6 Inasmuch as this ground of appeal is based upon the proposition that the evidence on which the appellant was convicted was inadmissible because it was obtained unlawfully, it is necessary to set out, in summary form, the evidence (and the procedural steps) which led to the appellant's conviction.

7 The appellant and one Cafaro were arrested on 22 May 1998. That day the appellant participated in a video interview with the police in which he admitted the offences. When so interviewed, the appellant was in the company of his lawyer.

8 The next day the appellant was brought before the Court of Petty Sessions pursuant to s 98 of the Justices Act 1902. He was there represented by experienced counsel (the person who had accompanied him when he gave the video interview). The appellant pleaded guilty (in accordance with the procedure laid down by s 101(2) of the Justices Act) to all the charges against him and he was committed to the Supreme Court for sentence in accordance with the standard fast track procedure.

9 The appellant was brought before Wheeler J for the purposes of sentencing. He was again represented by the same counsel. He again pleaded guilty to all the offences. Counsel for the Crown proceeded to inform her Honour of the material facts, which were not disputed by the appellant. These are set out below.

10 On 30 December 1997, a Mitsubishi sedan was stolen from a car yard in Victoria Park. Between 11.15 am and noon on 22 May 1998, the appellant and one Cafaro were located with the vehicle in an underground carpark in West Perth. The Mitsubishi sedan was intended to be used by the appellant and Cafaro as a getaway vehicle following an armed robbery they had planned. The theft of this vehicle constituted count 1.

11 Between 9.00 am and 9.30 am on 22 May 1998 a Toyota coupe was stolen from a car yard in Osborne Park. Again, between 11.15 am and noon on 22 May 1998, the appellant and Cafaro were located with the Toyota in the underground carpark in West Perth. This vehicle was being used at the time by the appellant and Cafaro as a getaway vehicle following the armed robbery. The theft of the Toyota constituted count 2.

12 At about 11.05 am on 22 May 1998 the appellant and Cafaro were in the rear carpark of the Challenge Bank in Hay Street, West Perth. One of the employees of the bank, Miss Clarke, walked into the carpark. The appellant, disguised with a rubber mask, confronted Miss Clarke. He was armed with a loaded .32 calibre semi-automatic pistol. He grabbed Miss Clarke and forced her back into the bank. This conduct constituted count 3 which was a count of unlawfully detaining Miss Clarke.

13 The appellant and Cafaro then entered the bank, yelled threats and made demands of staff and customers. Cafaro was disguised with a full face balaclava and armed with a loaded 12 gauge sawn off double barrel shotgun. The appellant jumped the counter while Cafaro remained with the customers watching over both the customers and staff. The appellant went along the teller boxes taking cash from them. He attempted to open the safes at the rear of the bank. After taking $23,000 in cash, the appellant and Cafaro fled. They used the stolen Toyota to leave the area and drove to the underground carpark in West Perth. This conduct constituted count 4 being stealing with actual violence while armed with dangerous weapons and being in company.

14 While they were in the carpark the appellant and Cafaro changed from the Toyota vehicle to the Mitsubishi vehicle which they had stored in the carpark. They were arrested whilst in possession of the stolen cash and firearms. The $23,000 was found in their possession and recovered by the police from them. The police seized the mask used by the appellant and the balaclava used by Cafaro.

15 When counsel for the appellant was called upon by Wheeler J to make submissions in mitigation of sentence, he commenced by referring to the effect of the appellant's plea of guilty. He said:

"It is accepted that the inevitable, if you are caught with the guns and the money, what else can you do, but at the same time the Court recognises quite clearly the mitigation that an early plea has in respect of these matter[s - sic]."

Towards the end of his submissions counsel for the appellant said:

"Your Honour, I can only reiterate again that the prisoner admits his full involvement in all the counts on the indictment and he is without any lawful excuse. To use my learned friend's parlance, he is not the same type of boxer as Mr Cafaro, but he wants to take it on the chin."

16 Having heard submissions as to sentence, her Honour adjourned the proceedings and at a later date the matter was called again for the purposes of passing sentence. Counsel for the appellant then informed her Honour that since the last hearing he had seen statements by police which, according to counsel, suggested that there were "8, possibly 15, armed officers at the vehicles that were under observation" and "if the accused were under surveillance, as it would clearly appear that they were, they were allowed to go into the bank armed and cause this psychological and obviously the other type of harm it can be result of an armed robbery, particularly with loaded weapons". Counsel submitted that had the police acted earlier "and stopped this robbery in fact from occurring", the robbery "need not have had the impact that it otherwise did on the persons in the bank". It was submitted by counsel that this conduct on the part of the police should have some mitigatory effect. It is plain from her Honour's remarks that she regarded the submissions as being without foundation.

17 Her Honour imposed a sentence of 9 years' imprisonment on the appellant in respect of the offence of armed robbery. He was ordered to serve a sentence of 1 year's imprisonment for each of the counts of stealing a motor vehicle and a term of 6 months' imprisonment in respect of the unlawful detention. The latter three sentences were ordered to be served concurrently with the sentence in respect of the armed robbery and with each other.

18 The appellant contends that he was arrested by a large armed robbery task force which had been functioning as part of a large pre-planned operation. He argues that the police officers had Cafaro and himself under surveillance from 8.30 am on 22 May 1998, that is from the time that the appellant and Cafaro commenced their preparation for the robbery, until they returned to the carpark in West Perth after the robbery had been committed. He asserted that the police had decided to arrest Cafaro and himself after the robbery had taken place, and they had permitted the robbery to proceed without taking any steps to prevent it. Hence, he submitted, the police had "sanctioned and participated" in the offences of armed robbery and deprivation of liberty. He submitted further that in those circumstances the police evidence of his participation in the offence had been unlawfully obtained and was inadmissible. He relied on the principles expressed in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. There are a number of points to be made in answer to these submissions.

19 Firstly, the evidence before the Court does not support the submission that the police did anything more than undertake surveillance of the Mitsubishi vehicle at the carpark. There is no evidence that the police had the appellant and Cafaro under surveillance for the time alleged by the appellant, that the police knew which bank the appellant and Cafaro intended to rob, or were watching them while they robbed the bank.

20 Secondly, and in any event, even on the appellant's allegations, the police conduct did not amount to entrapment or incitement. The circumstances were far removed from Ridgeway v The Queen, and what was said in that case has no application whatever to the circumstances of this case.

21 Thirdly, even on the appellant's version, unsubstantiated as it is by the evidence, nothing done by the police could be said to have been a "sanctioning" by the police of the appellant's conduct, nor did the police conduct amount to a "participation" by them in the offences. The responsibility for the conduct of the appellant was his alone. The proposition that the police must bear some share of responsibility for his criminal conduct because they did not arrest him earlier is an absurd notion. There is no substance whatever in the first ground of appeal.

22 The second ground of appeal is that the plea of guilty "was a fundamental mistake". In support of this ground the appellant has sworn that before pleading guilty in the Court of Petty Sessions he had "not slept the previous night and was collaterally withdrawing from the effects of amphetamine abuse". He also complains that his counsel advised him to enter a plea of guilty, and pointed out that the appellant would be unlikely to obtain legal aid to fund a defence and there were benefits in a plea of guilty under the fast track system.

23 Even if the appellant's allegations were to be accepted, I do not accept that his plea of guilty was made other than in the exercise of a free choice and voluntarily. The appellant had admitted his offences in the video interview. He was represented by experienced counsel when he pleaded guilty in the Court of Petty Sessions. Thereafter, he pleaded guilty in the Supreme Court before Wheeler J where he was again so represented. As pointed out above, in the course of submissions on sentence, counsel for the appellant made unequivocal admissions on the appellant's behalf as to the appellant's guilt.

24 As regards the complaints concerning the advice of counsel, it seems to me that the advice was eminently reasonable. The case against the appellant was powerful indeed. He had been caught red handed by the police. His pistol, mask and the money were found on him. He admitted the offences in the video interview on the day he was arrested. In my opinion there is no substance in the second ground of appeal.

25 The third ground of appeal concerned the procedures that were implemented in the Court of Petty Sessions when the appellant first pleaded guilty. This ground was not raised by the appellant in his oral submissions. It appears that the appellant's main complaint is that he should not have been called upon to plead at the very first appearance in the Court of Petty Sessions. The appellant entered his plea of guilty while represented by counsel and maintained that plea when he appeared before Wheeler J. There is no substance in this ground.

26 The fourth ground of appeal is that the police denied the appellant "the opportunity to secure acquittal by withholding crucial evidence". The evidence concerned is said to be the statements by the police which revealed the extent of their surveillance of the appellant and Cafaro on 28 May 1998. I have already indicated that even if the appellant's version of the police conduct were to be accepted, that conduct does not give rise to a defence to the charges against the appellant. Accordingly there is no substance to this ground of appeal.

27 The fifth ground of appeal is that Wheeler J "erred by failing to exercise her discretion to exclude evidence". It is not clear to me precisely what is meant by this ground but it seems that the appellant complains that her Honour should not have admitted police evidence of the appellant's involvement in the offences. There is no legal basis whatever to this ground. Apart from all the other matters to which I have referred, the evidence was put to her Honour by the Crown prosecutor with the consent of counsel for the appellant.

28 In the circumstances I would dismiss the appeal against conviction.

29 As regards the application for leave to appeal against sentence the appellant relied on the following grounds:

"A The learned Judge erred by overestimating the starting point of this sentence.

B The learned Judge did not place adequate weight to the discounts for early pleas of guilt.

C The learned Judge failed to give adequate weight to the mitigating personal circumstances.

D The learned Judge did not apply the sentencing parity principles."

30 I shall deal firstly with the first ground relating to the "starting point". Her Honour accepted that "the starting point for a conventional armed robbery of a bank or similar premises is in the range of 6 to 9 years". Her Honour was of the view, however, that the offences committed by the appellant were outside and above that range. She drew attention to the use of loaded firearms and pointed out that these were "the most serious type of weapon which could be used". She said:

"A loaded firearm ... can kill or injure at a cognisable (sic) distance and where, as here, more than one offender has a firearm, they are capable of killing or injuring a number of people within a very short space of time. The chances of being killed or injured both are and appear to be greatly increased by the use of such weapons."

Her Honour also referred to the victim impact statements in the case and noted that these gave rise to "precisely the sort of effect that would be expected with a firearm in these circumstances". Her Honour continued:

"The use of loaded firearms alone, in my view, makes an appropriate starting point in this case a sentence of 11 years. If it had not been for the loaded firearms I would still consider these robberies to be towards the top end of the usual scale because of the procuring of the firearm some months prior to the offences, and because of the degree of planning which appears to have gone into the offence with the scanner, the firearms, the disguise, the escape vehicle and the changeover vehicle. I would regard the use of disguise as aggravating because in my view it would greatly increase the feelings of terror among the victims, who would be led to believe that they were dealing with particularly professional criminals and who, because of the obscuring of the faces of the offenders, would be even less able to assess the offenders' likely reactions and deal with them so as to avoid, so far as possible, injury to themselves."

31 In my view the starting point taken by the learned Judge was within her discretion.

32 As regards the complaint about sufficient discount for the early pleas of guilty, it is to be noted that the learned Judge reduced the period of 11 years' imprisonment to 9 years. In discussing the mitigating circumstances that resulted in such a reduction the learned Judge said:

"The most significant mitigating factor in each case is the very early plea of guilty, but even that can be given only limited weight in the circumstance where the offenders were effectively caught red-handed by police with the firearms and the cash.

Having regard to those aspects of the history of each offender which pointed to some efforts to resume a law abiding lifestyle, and having regard to the early plea of guilty, I would impose in each case a sentence of 9 years' imprisonment."

33 In my opinion the learned Judge's reasoning was unexceptionable. The amount of credit to be afforded by reason of an early plea of guilty is a matter entirely within the discretion of the individual Judge. Where a plea of guilty follows in circumstances where a conviction is inevitable the mitigatory effect of the plea of guilty is reduced. Her Honour's reasoning as set out above indicates that she did indeed give adequate weight to the early pleas of guilty and to the mitigating personal circumstances of the appellant.

34 As regards the fourth ground, Cafaro was also sentenced to 9 years' imprisonment for the same offences committed by him. He was also sentenced to an effective term of 4 years' imprisonment for six offences of burglary while in company. Her Honour ordered that the sentence for the armed robbery be served "only partly cumulative upon the sentence imposed in respect of the District Court offences so that he begins to serve his sentence of 9 years' imprisonment once he has completed 12 months of the sentence which I have imposed in respect of those offences".

35 The appellant made two points in regard to the sentences imposed upon Cafaro. Firstly he submitted that Cafaro, "facing a higher degree of aggravating factors had received a lesser sentence. [Cafaro] had committed the offence whilst on bail, whilst facing multiple charges of aggravated burglary, and refused to co-operate in a record of interview". Secondly, he submitted that "by ordering that the sentence for the armed robbery be served partially cumulative upon the sentence received for the burglaries, ... in effect lessens the time served for the armed robbery".

36 These arguments do not take account of the totality principle as discussed in Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993. I noted there that "the severity of a term of imprisonment increases exponentially as it increases in length". Thus the sentence of 9 years imposed upon Cafaro should properly be regarded as of greater severity than the same sentence imposed upon the appellant simply because it was part of the longer overall sentence to be served by Cafaro in respect of the offences committed on 28 May 1997 and the burglary offences: Robinson v R, unreported; CCA SCt of WA; Library No 980587; 10 September 1998.

37 In the circumstances, in effect, there is no disparity between the sentences imposed upon the appellant and Cafaro.

38 I would dismiss the application for leave to appeal against sentence.

39 STEYTLER J: I have read the reasons for decision proposed to be published by Ipp J. I agree with them and with his Honour's conclusions. I have nothing to add.