Court of Appeal (WA)|2002-04-10|Before: Wallwork J, Murray J, Kechnie J

Mobilia v The Queen [2002] WASCA 130 (10 April 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOBILIA -v- THE QUEEN [2002] WASCA 130

Criminal law - Sentencing - 4 year sentence for armed robbery - Appeal - Whether sentence should have been suspended - Circumstances of offence bizarre - Applicant behaved in nonsensical manner - Bound to be apprehended - No similar prior offences - Steady employment

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

1 WALLWORK J: The applicant appealed against a sentence of 4 years' imprisonment with eligibility for parole which was imposed upon him in the Supreme Court at Perth on 30 November 2001. He had pleaded guilty on 5 November 2001 to an offence that on 13 August 2001 at Noranda he had stolen from a person with actual violence a wallet containing $40, credit cards and sundry papers, whilst being armed with a replica hand gun. The applicant had pleaded guilty to the offence in the Court of Petty Sessions and had come before the learned Judge on the fast track system.

2 On 10 April 2002 this Court by a majority ordered that leave to appeal should be granted, the appeal allowed, and the 4 year sentence be suspended for 2 years back dated to 5 November 2001. I now give my reasons for joining in the majority order.

3 The circumstances of the offence were quite bizarre. The applicant and a friend had driven to a shopping centre in Noranda at about 9.00 pm on the night in question. The applicant had parked his girlfriend's vehicle in the carpark at the shopping centre near an automatic bank teller machine. The victim had also parked nearby. After the victim had drawn some money from the ATM he had walked back to his vehicle. The applicant then approached him. The applicant pointed a replica hand gun at the victim, threatened him and demanded his wallet. The victim handed over his wallet which contained $40, some credit cards and sundry papers. The applicant then ran off towards McGilvray Avenue leaving his friend sitting in his girlfriend's car.

4 The police were called. After they arrived at the scene the applicant was observed running back to his vehicle. He was then identified by the victim. He was subsequently searched and the two $20 notes which he had taken from the victim were found on him. The replica gun and the wallet were later recovered.

5 In addressing the learned Judge in mitigation the applicant's counsel advised that the applicant had had no reason for committing the offence and had not needed the money. The applicant had been away from work on workers compensation. He and his friend had been together during the earlier part of the day. The applicant had been undergoing a methadone programme successfully for about 9 months. He had nearly completed it. About three weeks prior to the offence he had hurt his back at his work at a saw mill. He had been suffering considerable pain and was taking temazepan and serapax to enable him to sleep. However he had had difficulty in sleeping, heightened anxiety, pain in the legs and other associated symptoms.

6 During the course of the day in question the applicant and his friend had consumed a bottle of serapax between them and he had taken a considerable quantity of temazepan as well. The applicant had instructed his lawyer that his friend had wanted to go to the automatic banking machine to withdraw some money. The applicant had parked a short distance from the victim's motor vehicle. His friend had got out of the car and gone to the ATM. The applicant alighted from the car and took a toy gun with him. Both his friend and the applicant had purchased the toy guns earlier in the day without any idea of using them in connection with any offence. His friend was not charged with any offence.

7 Counsel instructed the learned Judge that after the applicant had run away, he had come straight back to the scene and then asked the victim why the victim was tackling his friend verbally, or questioning him as to why his friend (the applicant) had been involved in the robbery. The applicant's counsel told the Judge that the only thought the applicant could recall crossing his mind when he committed the offence was that he was going to point the gun at the complainant, get his wallet and then give it back to him as some sort of a joke. He said he had been "simply in a state of half numbness from the drugs". After he had obtained the wallet he had panicked and ran off.

8 It was submitted to the learned Judge that although the applicant had taken drugs in the past, he had never remotely considered stealing or been tempted to steal. He had always paid for his drugs. He had been consistently employed. The applicant insisted that when he and his friend had gone to the ATM there had been no intention in either of them of doing anything illegal. The two of them had been fooling around during the day with the toy guns which could only shoot pellets and perforate paper from about two feet. The applicant had parked his car next to the victim's car. His friend was still there when the applicant had returned to the scene. The police were there as well. It was suggested to the learned Judge that the episode did not indicate a rational premeditated plan to steal someone's wallet. The applicant had come back to the scene and had been apprehended immediately.

9 The applicant had expressed remorse and written to the victim and his wife. He was 24 years of age at the time he was sentenced. He had been "pretty well readily employed" over the previous 8 years, mainly in labouring jobs. For the previous 12 months to the offence he had been employed as a mill hand at a saw mill. At 19 years of age he had commenced to use heroin. Until 22 1/2 years of age he had been a regular drug user. However approximately 8 months before the offence he had commenced a methadone programme at which he had been a regular attendee. He had done all that had been required of him. The doctor who was treating the applicant thought it was more likely than not that he had not been a user during the time he had been on the methadone programme. Although he had initially used drugs on two or three occasions, he had not done so for the previous 8 months.

10 It was submitted to the learned Judge that the applicant had turned the corner as far as his drug addiction was concerned. He had absolutely no desire to return to heroin use and was confident that given the opportunity, he would complete his methadone programme successfully. He could not explain the offence.

11 The applicant's mother had indicated to the Judge that she and her husband had been very concerned about the applicant prior to the offence, because he was always complaining of being in pain. It was submitted that on the day in question the applicant's problems had caused him to take the excessive drugs. It was submitted that apart from the offence the applicant was a good young man who worked hard.

12 The learned Judge remarked that the applicant seemed to have been going along reasonably well in relation to his attempts to rehabilitate himself from drug abuse. He had no prior record apart from traffic matters but on the day in question he had taken a massive dose of serapax and other drugs which had put him in a position where he done a stupid thing in circumstances where the victim had had no reason to think other than that the applicant had a loaded firearm.

13 It was put to the learned Judge that it was clear that the applicant did not have the sort of disposition to commit the offence because he had never done it before, even though he had been involved in drugs for 10 years. The learned Judge said he agreed with that. It was also submitted that the applicant was remorseful. He was at the time of sentencing living at home with his parents. He had a very supporting family. His parents wanted to stand by him and to assist him to ensure that he might become a person "who has some value in society". It was put to the Judge that the offence had been an act of abject stupidity. Counsel urged the Judge to dispose of the matter in a way which would not require an immediate term of imprisonment.

14 In sentencing the applicant the learned Judge recited the facts of the robbery and the circumstances of the day in question. He said it was appropriate for him to sentence the applicant on the basis that the applicant had been affected by drugs at the time of the offence although the precise quantity of them and the effect they had had on the applicant could not be measured with scientific accuracy. His Honour said that the offence had all the hallmarks of a serious armed robbery with the use of a replica firearm.

15 His Honour said the applicant had convictions for a number of traffic offences but nothing turned on that. The applicant was from a stable family which was giving him full support. After leaving school he had had a number of labouring and similar jobs in which he had been employed until recent times when a back problem had necessitated him giving up work. Painkillers had been prescribed for him "and these you have allegedly abused and it is substance abuse which is your major problem."

16 The Judge referred to a passage in the pre-sentence report which stated:

"Mobilia presents as a 24 year old man with a minimal Court history. His previous response to supervision had been very positive. He has a great deal of support from his family members. He has expressed deep regret for his role in the commission of this current offence."

17 The Judge said that in sentencing the applicant he took into account the gravity of the offence which was a very serious offence which could not be described as a joke. He took into account the lack of any serious prior conviction and said that that was very much in favour of the applicant as was his youth. His Honour said

"However the drug problem that you have had for some time is obviously the cause of this offence and a matter which has to be addressed by you. I take into account remorse... I therefore accept there is evidence of remorse. I take into account your plea of guilty at the earliest opportunity but in imposing sentence, as I have said in previous cases, I must take into account just punishment, deterrence, prevalence of the offence, all of which are important factors in this case. I balance against that your prospects of rehabilitation and your antecedents. They must clearly be weighed in the balance but it is essential that a just and deterrent sentence should be imposed."

18 The learned Judge concluded his sentencing remarks by saying:

"In my view the only disposition of the matter open is a sentence of imprisonment. That is because the seriousness of the offence is such that no other disposition is open. However it is essential that I consider the question of suspension of the term of imprisonment. I have given careful consideration to that, taking into account all the factors listed by Steytler J in the case of Liddington, but I am afraid I am unable to suspend the sentence. In my view a sentence of imprisonment to be served immediately is the only disposition which is open. I will however take into account all the factors which have been referred to and in particular the matters personal to you and your plea of guilty. For these reasons the sentence to be pronounced will be 4 years' imprisonment. You will be eligible for parole."

19 One of the matters which is common ground is that when the applicant returned to the car after disposing of the wallet and with the stolen money in his possession, both the victim and the police officers were nearby. The victim was able to identify him to the police officers. It was submitted to this Court that the applicant by returning to the scene in those circumstances had indicated the sense of unreality in which the offence was committed. It was submitted that the learned Judge had erred in law in not suspending the term of imprisonment in all the circumstances.

20 It was put to the Court by counsel for the respondent that the learned sentencing Judge had concluded that the seriousness of the offence had compelled the need for an immediate term of imprisonment; that the learned Judge had taken into account all relevant factors and it had not been shown that he had erred in coming to a conclusion that immediate imprisonment was the only appropriate disposition.

21 In my opinion, when all the circumstances of the offence are considered, a sentence of immediate imprisonment was not required. The antecedents of the applicant and the bizarre nature of the offence were such that the sentence should have been suspended.

22 The seriousness of an office like this does not by itself demand a sentence of immediate imprisonment. In James v The Queen (1985) 14 A Crim R 364 at 366 Burt CJ said:

"It was a serious offence. It was, I think, an offence calling for a deterrent punishment. But on the other hand, it was a first offence committed by a man aged 41. There is no reason to suppose that it will be repeated by him and in argument this was accepted by counsel for the Crown whose end and central submission was that imprisonment was the only appropriate sentence because the offence called 'for the use of the most highly deterrent form of disposition known to the criminal law'. In that submission counsel was specifically speaking of general deterrence, that is to say, of the deterrence of persons other than the appellant as the Crown accepted 'the proposition that this person does not need personal deterrence as of today.' As to that, in my opinion, in a case such as this a sentence other than imprisonment cannot be said to be inappropriate upon the single ground as asserted, and it may not be the fact, that it will not sufficiently deter others from committing a like offence.

The applicant is in steady employment."

23 In my view the remarks of Burt CJ apply to this case. The applicant did commit a serious offence. But he behaved in a nonsensical manner. The concept of general deterrence does not always require a sentence of immediate imprisonment. In my opinion this was such a case.

24 It was for those reasons that I agreed with the order by a majority of the Court that the sentence should be suspended.

25 MURRAY J: I have read in draft the reasons for decision of Wallwork and McKechnie JJ. I am in general agreement with the reasons published by Wallwork J but the particular circumstances of this case compel me to add a few brief observations in explanation of my decision to join on 10 April in making the orders to which Wallwork J has referred.

26 I am, of course, acutely conscious of the discretionary nature of the sentencing task. By reference to the provisions of the Sentencing Act 1995 (WA) and the general law the sentencer is instructed to perform the difficult task of giving effect to accepted matters of sentencing principle and to impose a sentence proportionate to the gravity of the crime in the circumstances of its commission, having regard to the circumstances

personal to the offender, properly evaluating and giving appropriate weight to matters both of aggravation and mitigation. I am firmly of the view that the outcome of just punishment of offenders against the criminal law is best achieved by giving full range to the exercise of the discretion of the sentencing Judge. Therein lies the community's best guarantee that the administration of the criminal law by the courts will serve the aim of the protection of the community against the commission of criminal offences.

27 The Judge's duty to explain what is being done by way of sentence may be performed without compromising the essential nature of the task and without adopting a sentencing process which gives an appearance of "mathematical precision" which at best may mask error, but which has now been held by a majority of the High Court to be wrong in principle: Pearce v The Queen (1998) 194 CLR 610 at 624[46]; Wong v R [2001] HCA 64; (2001) 185 ALR 233 at 252 - 3[76]-[78].

28 That being so, for a court confronted with an appeal against sentence, there is a clearly recognised need always to bear in mind that it is a discretionary judgment from which the appeal is brought or in respect of which the application for leave to appeal is made and the question will always be whether the exercise of discretion by the sentencing Judge is perceived to have miscarried by reason of identified error of principle or the manifestly inadequate or excessive nature of the sentence imposed: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815. If an appellate court allows an appeal against sentence because the members of that court would have imposed a different sentence, they will fall into error.

29 This was, having regard to the circumstances of its commission, an offence of armed robbery with the use of a replica pistol of a most unusual kind. It was a very serious offence, involving as it did predation upon an innocent member of the community using an automatic teller machine. But it was not established to be other than an offence foolishly committed on the spur of the moment by an offender who had no need of the small sum of money obtained. The purpose for which they had originally come was so that the friend might use the automatic teller machine. The applicant made no attempt to disguise himself. Having fled the scene, having taken the money from the wallet and disposed of the wallet and replica pistol, he returned to the place where the offence had been committed after a short period of time, apparently to use the vehicle in which he and his friend had driven to that place. It appears that the applicant was not dissuaded from returning to the motor vehicle by the presence in the vicinity of the victim and police officers interviewing his friend. It was certain that he would be identified as the robber, as he was.

30 Initially when interviewed by the police, the applicant said that it was a joke. He had intended, he said, to take the victim's wallet and then return it to him. Had that been his intention he would not have been guilty of the offence of robbery because he would not have intended to steal the victim's property. But at the sentencing proceedings following the applicant's plea of guilty, he had no explanation for the commission of the offence.

31 It should not be overlooked that the applicant was accepted to be remorseful and he had demonstrated his contrition by pleading guilty in the Court of Petty Sessions at the earliest opportunity and by his participation in the process of expedited committal. He had written to the victim and his wife to apologise for the commission of the offence.

32 The explanation for the offence appears clearly to lie in the applicant's personal circumstances and this was accepted by the sentencing Judge who had available to him not only antecedent and pre-sentence reports, but also a book of references and medical reports which included a lengthy psychological report, a report from his medical practitioner and letters providing evidence about the background circumstances from the applicant's mother and his girlfriend.

33 As at the date of the offence, the applicant was a young man of 24 years of age. He had a history of convictions for traffic offences accumulated in 1996 and 1997 and one offence of being disorderly by creating a disturbance. He was then aged 19 and 20. Community based orders imposing an obligation for community work were successfully completed. He came from a strongly supportive family. His parents are successful business people of good character. The applicant does not have a good academic record and his employment has been largely unskilled, but constant, and at the date of offence he was in full-time employment as a mill hand. During that employment, shortly before the commission of this offence, the applicant had injured his back. At the time of the offence he was off work and in receipt of weekly payments of workers' compensation. He had been prescribed pain-killing medication.

34 He had a long-standing substance abuse problem. He had commenced as a teenager with the abuse of alcohol and had taken cannabis, amphetamines and then graduated to the consumption of heroin, to which he rapidly became addicted. He was, however, apparently able to support this habit by his lawfully earned income. In early 2001, the applicant made his own decision to stop using drugs and he supported that effort by voluntarily undertaking a methadone programme which, his general practitioner reported, he appeared to be following faithfully without any relapse into drug use.

35 However, it seems to be clear that on the day of the offence, the applicant and his friend consumed for recreational purposes a large quantity of the prescribed drugs with which he had been supplied. The medical evidence before the sentencing Judge indicated that at the time of the offence, the applicant was probably in a state of drug-induced intoxication, such that he "would lose touch with reality and would suffer amnesia with regard to the period of intoxication". The "huge cocktail of drugs" would "disorient his value system". In my view, there was clear support then for the conclusion that the explanation (but not an excuse) for the commission of the offence was the impulsivity generated by this drug use, a lapse in the applicant's effort to remain drug free.

36 Those who reported on the applicant referred to the continuation of this effort and the pre-sentence report referred to the applicant's suitability for a community based order but commented that "due to his extensive involvement with illicit substances in previous years a condition of substance abuse counselling would be beneficial, to ensure that he maintains his abstinence from substance use." As McKechnie J points out, there is no capacity for such a condition to be attached to an order for the suspended service of a term of imprisonment.

37 The sentencing Judge thought that the case was too serious for an intensive supervision order or some other type of community based order to be made. In the circumstances as I have outlined them, and as they were accepted by the sentencing Judge, there could be no quarrel with that proposition. As the application for leave to appeal against sentence was argued, the primary thrust of the applicant's case was that the sentencing Judge erred in imposing the sentence of imprisonment to be immediately served rather than ordering the suspension of the term.

38 In the circumstances as I have outlined them, I came to the conclusion that the exercise of discretion in this case miscarried in his Honour's view that the offence was so serious that a sentence of

imprisonment to be served immediately was the only disposition which was open and that it was inappropriate to order suspension of service of the term of imprisonment. In my opinion, the peculiar circumstances of the commission of the offence, the lack of planning and premeditation, the drug-related reason for the commission of the offence, the youth of the offender, his background, his lack of relevant previous convictions, his voluntary pursuit of his rehabilitation from the use of illicit drugs and the early plea of guilty and genuine remorse of the applicant dictated the conclusion that sufficient general deterrence would be provided by the imposition of the sentence of imprisonment.

39 The applicant would be sufficiently punished and deterred by that fact together with an order for suspension of service of the term which was positively indicated by the capacity to allow the applicant to continue his efforts towards his rehabilitation which, if successful, provided the best prospect available that he would not offend again. It was for those reasons that I joined in the order made by the Court on 10 April.

40 McKECHNIE J: On 30 November 2001 the applicant was sentenced by Miller J to a term of 4 years' imprisonment for the crime of armed robbery. A parole eligibility order was made.

41 From that sentence the applicant appealed on grounds which distil into the submission that the appropriate sentence was an ISO or a suspended term of imprisonment and that the sentence imposed was in the circumstances manifestly excessive. On 10 April 2002 the Court, by majority, allowed the appeal and ordered that the sentence be suspended. I would have dismissed the appeal. I indicated that I would publish my reasons in due course.

42 The crime to which the applicant pleaded guilty was described by the sentencing Judge as follows:

"...on 13 August 2001, you went to Noranda Palms shopping centre in Noranda. You parked the vehicle you were driving near the NAB automatic teller machine in the carpark of the shopping centre. At the same time, a Mr Ian Warner parked his vehicle near the teller machine. He used the machine and walked back to his vehicle.

As he did so, you approached him at the driver's door of his vehicle, pointed a replica hand gun at him, threatened him and demanded his wallet. He handed you his wallet, which had $40 in cash in it, Visa cards and other papers. You ran away with it.

Later you were identified by police returning to your vehicle. When searched, $40 was found. A search of the area found the replica hand gun at the rear of the shopping centre."

43 The Judge found that it was appropriate to sentence on the basis that the applicant was affected by drugs "although the precise quantity of them and the effect they had cannot be measured with scientific accuracy". However, he noted that in any event "the deliberate ingestion of drugs is no defence or answer to the commission of an armed robbery such as that in question. It has all the hallmarks of a serious armed robbery with the use of a replica firearm."

44 The Judge detailed all the matters personal to the applicant and noted the contents of the pre-sentence report. In sentencing he took into account firstly the gravity of the offence which he described: "This was a very serious offence. To hold someone up at an ATM at night with a replica hand gun and to steal their wallet is in the serious category of armed robbery."

45 With this comment I respectfully agree. The applicant targeted an automatic teller machine, about which people might be expected to have money. The offence occurred at night and the applicant was armed with a replica firearm. It is true that the crime was ill thought-out and the applicant returned to the scene when the police were present. However, the applicant's transport was near the scene as was his friend. The applicant, before returning, had the wit to dispose of the complainant's wallet. It is also true that the amount involved was small. However, with respect, that is simply happenstance; the applicant robbed the complainant of the proceeds of the withdrawal from the ATM, whatever that amount happened to be.

46 The Judge clearly considered the option of an ISO and rejected it because of his view that the seriousness of the offence was such that no other disposition was open. He expressly considered suspending the sentence but having taken into account all the factors listed by Steytler J in R v Liddington (1997) 18 WAR 394 concluded that he was unable to suspend the sentence.

47 The Judge took into account all the matters of mitigation, particularly the plea of guilty, before imposing a sentence of 4 years' imprisonment with a parole eligibility order. Having regard to the range of sentences commonly imposed for single counts of armed robbery (see Miles v The Queen (1997) 17 WAR 518), a sentence of 4 years was moderate and obviously reflects the matters of mitigation, including the fact that the applicant committed the offence while under the influence of drugs.

48 Although the applicant had not previously committed an offence of such seriousness, it is not correct to say that he was a first offender. He had a driving record dating from March 1996 which indicated a problem with alcohol and a lack of regard for the law.

49 The applicant was aged 24 and though still young, no longer had youth completely on his side.

50 Sentencing an offender is never an easy task for a Judge. There is a wide mix of factors required to be taken into account both under the provisions of the Sentencing Act and principles laid down by the High Court and this Court. The exercise of judgment by a sentencing Judge should not be lightly departed from unless there is a clear error of principle. This is why in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 the Court said at 671-672:

"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic: House v The King (1936) 55 CLR. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

51 Unless this Court constantly bears this admonition in mind, there is a danger that a sentence imposed by a Judge will be seen not as a judgment but as merely the first step in a sentencing process leading to a general review by the Court of Criminal Appeal.

52 Furthermore, the orderly development of principle for the guidance of sentencing Judges is liable to be obscured by an over ready willingness to interfere with sentences because the Judges on appeal might have exercised their discretion in a manner different from that of the sentencing Judge.

53 The applicant has not been able to point to any particular error by the sentencing Judge except to urge that an ISO or a suspended sentence of imprisonment would have been more appropriate in the circumstances. The error is said to be in the result.

54 There are problems in suspending a sentence for a person with a significant drug problem. A person undergoing a suspended sentence is not subject to any supervision. Experience suggests that persons with a significant drug addiction require the discipline of a structured reporting and monitoring regime to rehabilitate themselves and so lessen the risk to the community in re-offending behaviour. I am unable to detect any error in sentencing discretion in failing to suspend the sentence.

55 The imposition of an ISO was considered by the Judge. The Judge rejected that option because of the seriousness of the offence. Such rejection was open and does not demonstrate error. The pre-sentence report, while assessing the applicant as suitable for community supervision, raised queries as to the applicant's commitment to counselling for his drug use. I do not consider that the rejection of an ISO in the circumstances was an error. In my opinion the applicant failed to make good the grounds of appeal. This is why I would have dismissed the appeal. I would however have varied the sentence to the extent of backdating the commencement date to 5 November 2001. I consider the failure to backdate was a mere oversight by the Judge and counsel.

Mobilia v The Queen [2002] WASCA 130

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Mobilia v The Queen [2002] WASCA 130 (10 April 2002)

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