Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Robbery - Manifest excess - Breach of Community Based Order and suspended sentence - Totality principle - Whether trial judge erred by not stating the extent of the reduction in sentence for guilty plea

Criminal Appeals Act 2004 (WA), s 27, s 31(4)(a)

Sentencing Act 1995 (WA), s 9AA, s 9AA(5), s 80, s 87, s 134

Drury v The State of Western Australia [2010] WASCA 220

Forkin v The State of Western Australia [2013] WASCA 51

Fredericks v The State of Western Australia [2011] WASCA 270

JKL v The State of Western Australia [2012] WASCA 215

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

Narkle v Hamilton [2008] WASCA 31

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

Sein-Thet v The Queen [1999] WASCA 186

The State of Western Australia v Drew [2012] WASCA 86

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

Thompson v The State of Western Australia [2013] WASCA 1

Wilson v The State of Western Australia [2010] WASCA 82

1 REASONS OF THE COURT: The appellant seeks leave to appeal against a sentence imposed upon him in the District Court by Sweeney DCJ.

2 The appellant was charged on indictment with one count of robbery contrary to s 392 of the Criminal Code (WA). It was alleged that on 31 May 2015, at Mirrabooka, he stole from Coman Wong, with violence, an iPad and two bags (the robbery offence).

3 On 31 March 2015, in the Perth Magistrates Court, the appellant was placed on a community based order for 12 months for each of the following offences: one count of breaching a police order (PE 103429/2014); one count of breaching a protective bail condition (PE 103430/2014); one count of damaging property (PE 103434/2014); one count of disorderly behaviour in public (PE 103323/2014); and four counts of stealing (PE 103432/2014; PE 110240/2014; PE 110241/2014; PE 105586/2014) (the CBO).

4 At the same time, he was also sentenced to a total effective term of 12 months' imprisonment suspended for 12 months for three counts of burglary and two counts of unlawful possession (the SIO). The individual sentences that were imposed by the magistrate were:

3 months' imprisonment suspended for 12 months cumulative

6 months' imprisonment suspended for 12 months cumulative

3 months' imprisonment suspended for 12 months cumulative

3 months' imprisonment suspended for 12 months concurrent

3 months' imprisonment suspended for 12 months concurrent

5 It is apparent that at the time he allegedly committed the robbery offence, he was subject to both the CBO and the SIO.

6 On 12 May 2016, the appellant pleaded guilty to the robbery offence and was duly convicted of it (ts 12). As a consequence, in addition to sentencing the appellant for the robbery offence, her Honour dealt with the appellant in respect of the SIO pursuant to s 80 of the Sentencing Act 1995 (WA), and resentenced him for the offences for which the CBO was imposed pursuant to s 134 of the Sentencing Act. The details of the individual sentences imposed by her Honour are as follows:

51(2a) Bail Act

Section 11 Sentencing Act

Section 11 Sentencing Act

Possession of stolen or unlawfully obtained property

Possession of stolen or unlawfully obtained property

7 Thus her Honour imposed a total effective sentence of 4 years' immediate imprisonment with eligibility for parole to commence on 12 May 2016. In addition, the appellant was fined $250. This application concerns only the terms of immediate imprisonment.

8 The sole ground of appeal alleges that the individual sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.

9 For the reasons that follow, the ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused, with the consequence that the appeal is taken to have been dismissed: s 27 of the Criminal Appeals Act 2004 (WA).

10 The facts of the robbery offence were as follows. At about 5.00 pm on 31 May 2015, Mr Coman Wong was in the process of closing his coffee shop in the Mirrabooka Shopping Centre. Present with Mr Wong were his wife and their 4 year-old son. The appellant entered the café and grabbed an iPad and two bags belonging to Mr Wong. Mr Wong tried to prevent the appellant leaving the café with the items. A struggle ensued, during which the appellant punched Mr Wong to his left eye. At some point the appellant dropped the iPad and two bags and left the café. However, the jumper he had worn was left behind. A subsequent forensic analysis identified a DNA profile which matched the appellant.

11 We now turn to the offences for which the appellant was placed on the SIO. Between 9.00 pm and 11.30 pm on 31 July 2014, the appellant smashed the left and right glass panels of the rear doors of an Indian restaurant at the Barrack Street jetty with a brick. He and others then entered the restaurant, but could not find anything to steal (PE 103433/2014).

12 Between 3.20 am and 3.40 am on 11 September 2014, the appellant broke into a pharmacy in Mirrabooka by smashing a shop window with a brick. Once inside, he used the brick to penetrate an internal fibreboard wall in two places. On 19 September 2014, he was arrested. In a video record of interview, he said that he assisted two co-offenders who wanted to steal pseudoephedrine to enter the pharmacy. He said that he did so in order to receive $50 (PE 103431/2014).

13 At about 1.00 pm on 1 October 2014, the appellant was at the Mirrabooka Shopping Centre. There police found him in possession of various items of property, including four meat cleavers, some electrical items and membership cards which did not belong to him. The property found in his possession was estimated to be worth in excess of $500. The appellant could not account for how he came to be in possession of the items and was unable to provide proof of ownership of the property (PE 105202/2014).

14 At about 4.00 am on 3 October 2014, the appellant forced entry to the Mirrabooka Shopping Centre. He entered a lottery kiosk in the centre and stole 189 SIM cards valued at $378 (PE 105585/2014). A short time later, he was apprehended by police and found in possession of the SIM cards. The police also found a number of items in the appellant's possession, including personal identification cards not belonging to him (PE 105587/2014).

15 With respect to the offences the subject of the CBO, the facts are as follows.

16 On 31 July 2014, after the burglary on the Indian restaurant referred to earlier, the appellant smashed a glass panel of the doors to the restaurant. The appellant put his hands through the broken glass in an attempt to unlock the doors. Nothing was taken or disturbed (PE 103434/2014).

17 Between 7.00 pm on 31 July 2014 and 12.50 am on 1 August 2014, the appellant smashed the window of a Toyota vehicle parked outside an address at Barrack Street in Perth. He then stole from the vehicle various items of property to the value of approximately $700 (PE 103432/2014).

18 On 18 September 2014, the appellant was at his mother's unit situated on Wanneroo Road, Joondanna. As a result of a heated verbal altercation with his mother and sister, the police were called. The appellant was issued with a 72-hour police order prohibiting him from entering or remaining at his mother's unit or approaching within 100 m of her. The appellant yelled obscenities and threats directed at his mother and sister, as a result of which he was arrested (PE 103323/2014). The appellant was then taken to the Warwick police station where he was charged with disorderly conduct. At 1.30 am he was released on protective bail conditions stipulating that he not approach within 100 m of, or attend at, his mother's house.

19 At 8.30 am on 19 September 2014, the police were called to his mother's unit where they found the appellant hiding in a bathroom in breach of both the police order and the protective bail conditions (PE 103429/2014 and PE 103430/2014).

20 Between 10.00 pm on 29 September 2014 and 9.00 am on Tuesday 30 September 2014, the appellant was at an address at Lively Circle, Mirrabooka. There he stole property to the value of $50 from a SAAB sedan parked on the verge (PE 110240/2014).

21 Between 9.00 pm on 29 September 2014 and 6.00 am on 30 September 2014, the appellant once again went to the address at Lively Circle, Mirrabooka. This time he stole approximately $50 in change from the centre console of another vehicle parked at the premises (PE 110241/2014).

22 The appellant was also charged with a separate offence of stealing in relation to the SIM cards he took from the Mirrabooka lottery kiosk on 3 October 2014 (PE 105586/2014).

23 At the time he was sentenced, the appellant was 30 years of age. He had a deprived childhood in which he was exposed, from a young age, to domestic violence and chronic illicit drug and alcohol abuse. The appellant suffers from schizophrenia with periodic paranoid thoughts. He has been medicated for a long time for this condition and has been admitted to Graylands Hospital on multiple occasions. He also has an antisocial personality disorder, as a consequence of which he has no regard for the rights of others or for the law. The appellant's mental illness was not, as her Honour put it, 'at the root of [the appellant's] offending' (ts 36). She attributed the cause of the appellant's property offending to his illicit drug use in the sense that the appellant commits offences under the influence of drugs or in order to get money to buy drugs. The appellant has an adult criminal record spanning 17 pages. Among the many offences committed by the appellant are property offences including burglaries and offences involving violence. The appellant has breached every court order that has previously been imposed upon him. The authors of both the pre-sentence and psychiatric reports observed that the appellant has a tendency to blame his victims and minimise his offending. The appellant was assessed as being at a very high risk of reoffending because of his total disregard for the law and his inability to cease using illicit drugs when he is in the community.

24 In the opinion of the psychiatrist, the cause of the appellant's offending is not the appellant's mental health issues. The psychiatrist expressed the opinion that the appellant will not 'suffer' more in prison because of his mental illness because his schizophrenia is stabilised due to the medication regime he is on while incarcerated.

25 The appellant was arrested on 22 July 2015 for a series of offences which are not the subject of this appeal. He was remanded in custody for those offences. He was later charged with the robbery offence and remanded in custody. Prior to being sentenced on 12 May 2016, he spent 295 days in custody in respect of, relevantly, the series of offences which are not subject to this appeal.

26 In relation to the robbery offence and the offences the subject of the CBO, her Honour acknowledged the mitigating effect of the pleas of guilty that the appellant had entered in respect of these offences. However, her Honour did not, as required by s 9AA of the Sentencing Act for the guilty pleas, state the extent of the reduction as required by s 9AA(5) of the Sentencing Act. The appellant does not complain about this. However, it is a matter we will give consideration to later in these reasons.

27 Her Honour noted that the appellant was not remorseful for his offending and did not accept responsibility for what he had done.

28 Apart from the pleas of guilty, her Honour said that there was not 'a great deal' to be said in the appellant's favour. Her Honour considered that the appellant showed no remorse and displayed an inability to accept responsibility for his offending behaviour. She acknowledged his mental illness and his deprived background. She concluded that because of the appellant's mental illness he was not a good vehicle for general deterrence. However, the need for personal deterrence and the protection of the public outweighed these matters.

29 Specifically with respect to the charge of robbery, her Honour said:

It is obvious the offence of robbery requires an immediate term of imprisonment and a term sufficiently long to possibly have some impact upon you and discourage you from offending in that manner again. It was a frightening offence and it was witnessed by the victim's family, including a little boy as well (ts 38).

30 With respect to the offences for which the appellant had been placed on the CBO, her Honour ordered that the terms of imprisonment be served concurrently with the other sentences she imposed to take into account the totality principle, particularly noting the time the appellant had already spent in custody on remand.

The general principles applicable to appeals against sentence

31 We adopt the statement of the general principles applicable to appeals against sentence made by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

32 Although the ground of appeal appears to challenge all of the individual sentences imposed upon the appellant, it is clear from the appellant's written submissions that the only individual sentence that is challenged is the sentence for the robbery offence.

33 In support of this claim, the appellant made the following written submission, par 9:

An individual sentence of 3 years for the offence of robbery was inappropriate given that the sentence was comparable to a sentence for an offence of armed robbery which carries a maximum of life imprisonment or robbery in circumstances of aggravation which carries a maximum of 20 years' imprisonment.

34 The appellant then cited a number of cases which he said demonstrated 'that an individual sentence of 3 years was comparable to more serious offending'. The cases cited by the appellant were Sein-Thet v The Queen [1999] WASCA 186; Drury v The State of Western Australia [2010] WASCA 220; Fredericks v The State of Western Australia [2011] WASCA 270; The State of Western Australia v Drew [2012] WASCA 86; JKL v The State of Western Australia [2012] WASCA 215; Thompson v The State of Western Australia [2013] WASCA 1 and Forkin v The State of Western Australia [2013] WASCA 51. All of these cases, save for JKL and Thompson, involved offenders who have committed armed robberies, often in combination with other offences.

35 The appellant also submitted that the sentence was manifestly excessive, having regard to his early plea of guilty, the lengthy period he had served in custody prior to being sentenced, his mental health and his deprived upbringing.

36 The orthodox approach in determining whether a sentence is manifestly excessive is to examine it from the perspective of the maximum penalty for the offence, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.

37 With respect to comparable cases, the guidance afforded by them is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact the sentence is outside the range does not necessarily establish that the exercise of a sentencing discretion in the particular case miscarried. A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of the sound exercise of a sentencing discretion in a particular case. In the end, each case must be decided on its own facts and circumstances.

38 It is unnecessary to set out in any detail the facts and circumstances of the cases cited by the appellant. We have had regard to them. We are mindful of the fact that the appellant was convicted of robbery and not aggravated robbery (which carries a maximum of 20 years' imprisonment) or armed robbery (which carries a maximum penalty of life imprisonment). We are well aware of the statements in cases such as The State of Western Australia v Wells [2005] WASCA 23 [4] and [5] and in Drury [22] that the range of sentences commonly imposed for a single offence of armed robbery is from 4 to 6 years without taking into account matters in mitigation. We are also aware of the statement made by Miller AJA in Mills v The State of Western Australia [2007] WASCA 118 [67] that:

Recent sentences for the offence of robbery in company [aggravated robbery] reveal sentences of between 2 and 4 years' imprisonment, after taking account of the transitional provisions

39 We have also had regard to the recent decision of Schischka v The State of Western Australia [2015] WASCA 15.

40 These cases, and the cases cited by the appellant, do not support the proposition that a sentence of 3 years' immediate imprisonment for the robbery offence was manifestly excessive. While the robbery offence committed by the appellant was not at the upper end of seriousness of offences of robbery, it was not at the lower end of the scale and involved considerable criminality. The appellant used actual violence upon the victim to steal the iPad and the two bags. The offence was committed in the presence of the victim's wife and young child. It was, as her Honour described it, 'a frightening offence'. The appellant was, at the time, subject to the CBO and the SIO. Specific deterrence and the need to provide public protection were matters of importance.

41 The appellant is not a youthful offender. He has a very long and serious criminal history. He is not a man of good character. We acknowledge that he suffers from a significant mental illness, but that illness was not causative of his offending, nor will it result in imprisonment being more onerous for him than in the ordinary case. The appellant is not motivated to deal with his illicit drug use, which is the real driver of his offending, and he has no insight into the effects that his offending has on his victims. His prospects for rehabilitation appear to be very poor and he poses a very high risk of reoffending.

42 Taking into account all relevant sentencing considerations, including his plea of guilty, it is not reasonably arguable that the sentence of 3 years' immediate imprisonment imposed for the robbery offence is unreasonable or plainly unjust. The claim that the sentence is manifestly excessive is without merit.

43 We now turn to the claim that the total effective sentence of 4 years' immediate imprisonment infringes the first limb of the totality principle. The appellant's submissions with respect to this claim were the same as for the claim of manifest excess. The first limb of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

44 Some accumulation was appropriate for this offending, in particular for the burglary offences the subject of the SIO. In our opinion, a total effective sentence of 4 years' immediate imprisonment does not infringe the first limb of the totality principle. To the contrary, it is a plainly appropriate reflection of the appellant's overall criminality, taking into account all of the relevant circumstances including the pleas of guilty and the circumstances personal to him. The claim that the total effective sentence infringed the first limb of the totality principle is without merit.

45 We return to the failure of her Honour to state the extent of the reduction pursuant to s 9AA of the Sentencing Act. Her Honour took into account the pleas of guilty in sentencing the appellant for the robbery offence and in resentencing the appellant for the offences the subject of the CBO and the SIO. She recognised that they had been entered at the first reasonable opportunity. Her Honour erred by overlooking to state the extent of the reduction for the pleas of guilty. However, in this case, the error is not material. It is not reasonably arguable, having regard to all relevant sentencing considerations (including the pleas of guilty), that different individual sentences, or a different total effective sentence should have been imposed: s 31(4)(a) Criminal Appeals Act.

46 Finally, in his oral submissions in support of the ground of appeal, the appellant alleged that her Honour erred by not 'backdating' the sentences she imposed to take into account the time he had spent in custody on remand. This submission cannot be accepted.

47 The power to 'backdate' the commencement of a sentence of immediate imprisonment is derived from s 87 of the Sentencing Act. The exercise of the power is discretionary and is conditional upon the offender having spent time in custody in respect of of the offence or offences for which he or she is being sentenced 'and for no other reason': s 87(a) Sentencing Act.

48 As the appellant had been in custody on remand for offences other than the matters her Honour dealt with, he did not satisfy the condition to which we have just referred. Her Honour therefore had no power to backdate the sentences of immediate imprisonment she imposed.

49 However, a sentencer has a discretion to take into account time spent in custody and the extent of any allowance to be made on that account: Narkle v Hamilton [2008] WASCA 31. In the present case, her Honour was aware of the time the appellant spent in custody on remand and took it into account by ordering him to serve the sentences she imposed for the breach of the CBO concurrently with each other and with the other sentences she imposed. This approach was open to her Honour. Her Honour did not err as alleged by the appellant.

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