Court of Appeal (WA)|2006-11-14|Before: Martin CJ

Nancarrow v The State of Western Australia [2006] WASCA 238 (14 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NANCARROW -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 238

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Sentence - Five offences of armed robbery in company - One offence of assault occasioning bodily harm - Aggregate sentence of 8 years 3 months' imprisonment with eligibility for parole - Whether transitional provisions in Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1) applied - Parity - Cumulative sentence - Totality - Whether sentence manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1)

Bates v Wheatley [2000] WASCA 38

Fullgrabe v The State of Western Australia [2006] WASCA 138

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

McLean v The Queen [1999] WASCA 209

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

Atholwood v The Queen (1999) 109 A Crim R 465

Chivers v The State of Western Australia [2005] WASCA 97

Herbert v The Queen [2003] WASCA 61

Holland v The Queen [1999] WASCA 43

Jarvis v The Queen (1993) 20 WAR 201

Magee v The Queen (1980) WAR 117

McLachlan v The Queen [1999] WASCA 255

Radebe v The Queen [2001] WASCA 254

Rafferty v The Queen [2002] WASCA 312

Sulejmani v The State of Western Australia [2005] WASCA 95

Thomson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973

1 MARTIN CJ: For the reasons given by Roberts-Smith JA, I joined in the order dismissing the appeal on 21 June 2006. I would simply add that even if some error on the part of the sentencing Judge had been established and it had fallen to the Court of Appeal to resentence the appellant, I would not have imposed any lesser period of aggregate imprisonment than that imposed by the sentencing Judge for what was a sustained and extremely serious course of criminal conduct which terrorised a number of members of the community going about their lawful business.

2 WHEELER JA: I have had the advantage of reading in draft the reasons to be delivered by Roberts-Smith JA. They reflect my own reasons for joining in the orders made, and I have nothing to add to them.

3 ROBERTS-SMITH JA: This is an appeal against sentences imposed in respect of five armed robberies in company, committed over a period of six weeks, and a serious assault occasioning bodily harm ("the assault"), which sentences resulted in an overall sentence of 8 years 3 months' imprisonment. The sentencing Judge made an order that the appellant be eligible for parole.

4 Following the conclusion of the hearing on 21 June 2006 the Court unanimously dismissed the appeal. We indicated we would publish our reasons in due course. These are my reasons.

5 The appellant was sentenced by McKechnie J following his plea of guilty in the Supreme Court at Perth on 2 September 2005.

6 The appellant was charged jointly on an indictment with one Danny James Kelly with five counts of aggravated armed robbery. He asked that the further offence of assault be dealt with pursuant to a notice under s 32 of the Sentencing Act 1995 (WA).

7 On each of counts 1, 2, 3 and 5, the appellant was sentenced to 3 years 6 months' imprisonment to be served concurrently with each other. On count 4 he was sentenced to 4 years' imprisonment to be served cumulatively. On the assault he was sentenced to 9 months' imprisonment to be served cumulatively on the sentence for count 4.

"1. The learned Sentencing Justice erred in law sentencing the Appellant in that he did not correctly apply the 'transitional provisions' of the Sentencing Legislation Amendment and Repeal Act 2003 to the Appellant's sentence.

2. The learned Sentencing Justice erred in law by failing to correctly apply the principle of parity as it related to the sentences of the Appellant and co-offender in relation to the counts of armed robbery.

3. The learned Sentencing Justice erred in law by failing to correctly apply the totality principle by

3.1 Ordering a sentence of 9 months' imprisonment to be served in relation to a count of assault occasioning bodily harm be served, and be served cumulatively upon all other offences; and

3.2 Ordering a sentence of 4 years' imprisonment in relation to count 4 (being a count of armed robbery) to be served cumulatively upon all other offences;

when all the circumstances and the sentences already imposed dictated that further cumulative terms would go further than addressing sentencing considerations and could in fact be harmful to the Appellant.

4. The learned Sentencing Justice erred in law by imposing a term of imprisonment of 9 months in relation to the count of assault occasioning bodily harm without taking into account the Appellant's plea of guilty and election for the charge to be dealt with pursuant to section 32 of the Sentencing Act."

9 In relation to count 1, during the evening of Tuesday, 22 March 2005, the two offenders left the appellant's residence armed with a knife intending to commit an armed robbery on a service station in the Beechboro area. About 9.30 pm they were at a Caltex service station on Beechboro Road in Beechboro. They both entered the store area with clothing wrapped around their heads to conceal their identities.

10 Once inside the store they ran towards the service counter. Kelly went behind the service desk and brandished a long-bladed knife in a violent manner towards the service station attendant. He held the knife about two feet away from the attendant's face while the appellant remained on the customer's side of the desk to render assistance to Kelly if necessary.

11 Kelly said, 'Open the till and give me the money'. Kelly told the service station attendant to open the register, from which he grabbed $895. Both offenders then ran away from the service station to a waiting vehicle that was being driven by a third person. The service station attendant did not suffer any physical injuries during the robbery but feared for his life saying that Kelly's aggressive manner made him believe that he might actually use the knife that was being brandished at him.

12 As to count 2, during the morning of Saturday, 26 March 2005, the offenders again left the appellant's residence armed with a kitchen knife, intending to commit a robbery in the Malaga area. On the way they stopped and collected a white metal pole from the roadside to use as an additional weapon in the planned robbery.

13 At about 12.30 pm they were at a Caltex service station on Beach Road in Malaga. They entered the store with clothing wrapped around their heads to conceal their identities. Kelly went behind the service desk and brandished a long-bladed knife, again in a violent manner, towards the service station attendant, while the appellant remained on the customer side of the service desk to render assistance to Kelly if required and armed with a metal pole.

14 Kelly said "Give me the money or I'll stab you". At the same time he was thrusting the knife in the direction of the service station attendant. The appellant brandished the pole in an aggressive manner towards the attendant during the robbery saying, "Open the till. Open the till". Kelly also yelled, "Open the till".

15 The service station attendant did what he was told and Kelly grabbed a thousand dollars from the cash register that had been thus opened while the appellant shouted "Don't fuck around". Both offenders then ran from the service station to an awaiting getaway vehicle. Again, the complainant was fortunate enough not to suffer any physical injuries during the robbery, although he did suffer psychological trauma.

16 In relation to count 3, on the evening of Monday, 25 April 2005, which was a public holiday, the offenders departed the appellant's residence armed with a knife intending to commit a robbery, again in the Malaga area. At about 7.30 pm they arrived at a Coles Express service station on Alexander Drive, Malaga. The two men entered the store with clothing wrapped around their heads to conceal their identities, ran towards the service counter and Kelly ran behind the service desk brandishing a long-bladed knife violently towards the female service station attendant, while the appellant remained on the customer side of the desk, again to render assistance if necessary.

17 Kelly stood next to the service station attendant with the knife in his right hand and told the attendant to open the till. When she did, he grabbed $150. He continued to demand money, however, and when the attendant said that it was in the safe he yelled "Bullshit" repeatedly. He was holding the knife by his side but it was touching the attendant's leg. The attendant did not suffer any physical injuries again during the robbery but she felt the pressure of the knife through her pants because of the way that Kelly was holding it, and she was, understandably, extremely frightened.

18 In relation to count 4, on the evening of Tuesday, 3 May 2005 the two offenders again left the appellant's residence armed with knives intending to commit a robbery in the Beechboro area. At 8.17 pm or thereabouts the two were again at the same Caltex service station on Beechboro Road, which was that involved in count 1. The two offenders went into the store, again with clothing wrapped around their heads to conceal their identities, and ran towards the service counter.

19 Kelly pointed the knife at the attendant who was, very unfortunately, the same attendant they had victimised in count 1, and told him to open the door which allowed access to the rear of the service counter. The attendant was frozen in fear and could not comply. Kelly then climbed over the service desk and brandished the knife in a violent manner towards the attendant while the appellant, who also was armed with a knife on this occasion, remained on the customer side of the service desk and performed his usual role in these robberies.

20 Kelly held the knife a couple of inches away from the neck of the attendant, told him to open the cash register and the attendant did what he was told. Once that had happened, Kelly grabbed the money tray out of the register. It contained about $400. The two men then ran out of the service station and to their waiting vehicle.

21 Finally, in relation to count 5, about 3.20 am on Sunday, 8 May 2005, the two offenders went to the Hannans 24-hour Foodmart on Maritana Street in Kalgoorlie. They went inside. Each was armed with a large knife. Both were wearing balaclavas. They confronted the female cashier, brandishing their weapons towards her in a threatening manner.

22 Kelly yelled at the cashier, telling her to give him all the money in the registers. The appellant went to the cigarette kiosk where the cashier had opened the till and he took a quantity of notes from the register. At this time he continued to hold the knife with the blade in an upright position while the cashier was close to him.

23 Kelly followed the appellant into the cigarette kiosk and he demanded the cashier open the other register. She was unable to comply and Kelly continued to brandish the knife at the complainant's face and demand more money from the register. She was unable to open it and at this point the appellant began to leave.

24 Kelly then opened a drawer next to one of the registers and removed a white cloth cash bag containing a large sum of cash. He then left the store, running in a south-easterly direction along Maritana Street. About 4.25 am that morning police stopped a red Toyota Corolla hatchback on Richardson Street in Boulder. Both offenders were passengers in the car. While searching the car, police found a white cash bag under the front passenger seat of the vehicle. It seems that was the seat in which Kelly was sitting.

25 All the occupants of the vehicle were taken back to Kalgoorlie police station. Both offenders took part in videotaped records of interview. Kelly denied any involvement in the offences in an interview done on 10 May 2005. There were two interviews for the appellant on 10 May 2005. In the first interview he declined to say anything. In the second interview conducted later that day, he admitted the offence, described his role in it and said he was armed with a screwdriver rather than a knife and said that he acted as Kelly's backup. He also nominated himself as involved in the other offences and nominated Kelly as the co-offender.

26 The complainant in the Kalgoorlie offence was a lady in her thirties. She was, however, in her first ever job because she had been caring for her children up until that point in time and it was a job that was very hard-earned for her. She suffered post-traumatic stress disorder, as a result of the robbery.

27 As a consequence of some of the sequelae of the offence, the complainant lost her job. She did so in rather unusual circumstances, as a result of a dispute with her employer because she complained to him about the effect of the robbery on her at what he considered an inopportune time. The details of that are set out in a victim impact statement, and a medical report confirming the diagnosis of post-traumatic stress disorder presented to his Honour.

28 The facts of the s 32 notice offence are that on 4 April 2004, the appellant was at an address in Hudson Street, Bayswater where the complainant was also living. She was a 46-year-old woman of 170-odd centimetres in height and slim build. Following an argument, the appellant lost his temper. He approached the complainant while she was in the laundry and grabbed her by the throat with his left hand, punching her several times to the head, chest, arms and face area with his clenched right fist.

29 The complainant fell to the ground and the appellant then kicked her in the head, ribs and legs. The complainant remained in a squatting position with her hands over he head to protect herself from being hit any further and called out for assistance. The appellant left. The complainant suffered cuts to her body that were bleeding, a bloody nose and torn clothes.

30 As a result of being assaulted, she became disoriented and lost part vision in her left eye. The complainant has a disability. She suffers from multiple sclerosis which affects her nervous system. She did not sustain any permanent injuries. She was later treated at the Morley Medical Centre. On 25 April 2005 the appellant was spoken to about the matter by police and denied any involvement in it.

31 His Honour heard the plea in mitigation on behalf of the offender Kelly and imposed sentence upon him first, before hearing the plea in mitigation on behalf of the appellant and dealing with him.

32 In relation to Kelly, his Honour's sentencing remarks were quite brief. He said that what happened was that on each occasion people who were going about their business providing a service to the community, sometimes late at night, were beset by armed thugs. He noted that it had been put to him that Kelly had committed the robberies in payment of a drug debt, but said that provided no excuse whatsoever. His Honour said that if one deals in drugs, one of the consequences is that the offender's mind is "fried", which is what seems to have happened to Kelly, and another is that the offender very often ends up in debt to people who are even more violent than he.

33 His Honour noted that Kelly was now aged 30 and approaching 31 and had basically lived the life of an outlaw for reasons explained in the psychiatric report which had been put before the court. He noted that various non-custodial dispositions had been tried, but an addiction to various forms of illegal substances, particularly amphetamines, was central to Kelly's criminal life.

34 The sentencing Judge specifically took into account the plea of mitigation, noting that it was an early plea.

35 He also expressly referred to the requirement of the amendments to the Sentencing Act to impose a sentence which reflected the time Kelly would actually serve and "... not a sentence which once contained a component of one-third which nobody actually served".

36 His Honour said that each were separate offences committed over a "shortish period" and that if he were to accumulate all of the sentences, that would result in a totally crushing burden on a young, but no longer youthful man. He accordingly said he intended to make the sentences generally, but not entirely, concurrent. He said all of the offences were serious, but count 4 was particularly so because shortly after the offenders had terrorised the employee, they went back and terrorised him again.

37 His Honour imposed sentences of 4 years' imprisonment in respect of counts 1, 2, 3 and 5 and a sentence of 41/2 years' imprisonment in respect of count 4. he ordered the 4 year sentences to be served concurrently but the 41/2 year sentence to be served cumulatively upon them, making a total of 81/2 years' imprisonment. He made an order that Kelly be eligible for parole.

38 In his plea in mitigation, Mr Aulfrey put to his Honour that the appellant's plea of guilty came "... at more or less the first opportunity". It appears that there was some delay because thought was being given to a possible defence of compulsion. Mr Aulfrey said that it was accepted there was no defence of duress available to the appellant, but nonetheless on each of the occasions on which the offences were committed, the routine had been largely similar and involved "to some extent" Kelly intimidating the appellant into going along with him in each instance. He said it had been indicated to him that following Kelly's last release from custody he approached the appellant and "for a start there was the co-offender breaking his nose and then various violence and threats and ... shortly prior to the Kalgoorlie robbery there was a threat that [the appellant] would be thrown down a mineshaft if he didn't participate or co-operate in the enterprise as it were". He said the appellant had known Kelly for the better part of 10 years or so. It was not as easy divesting himself of the relationship by moving away. The appellant did not have much in the way of financial resources and was aware that what family he did have, Kelly was aware of their whereabouts. He said at various times there had been implied threats to elderly members of the appellant's family and to his partner.

39 It was put to his Honour that a further complication was the amphetamine use that the appellant was undergoing at the time. He was using approximately one gram per day which was costing around $500 per day. In addition there was a history of drug-induced psychosis.

40 Counsel referred to a pre-sentence report which had been obtained by his Honour, to which I shall refer shortly.

41 He pointed out that in the second video record of interview, the appellant gave details of his own role in the offences and some information in respect to Kelly's. He emphasised the plea of guilty "on the fast-track system" and submitted that the appellant had played the lesser role in the offences.

42 So far as the assault offence was concerned, counsel submitted that the appellant acknowledged he simply went "too far", which was no doubt a function of both the amphetamine use and his problems with impulse control.

43 The State prosecutor said the State accepted there was a qualitative difference between the manner of the offender's pleas and confessions because it was the appellant who first confessed and nominated Kelly. Even to the point of sentencing, Kelly had not nominated anyone else. The State accepted that the appellant's co-operation was deserving of credit of a substantive nature. Even so, he submitted that because of the nature of the assault offence and its extraordinary viciousness, and the vulnerability of the victim as a disabled person, the State's position was that it should attract a punishment which ought to be made cumulative. He submitted that but for considerations of totality, the assault would involve a very significant prison term on its own, but the Judge would need to take totality into account. He added that to make the term for that offence wholly concurrent, would cause it not to be marked at all and looked at in that way the sentencing exercise would "probably" result in a term not so significantly different for the appellant as for Kelly.

44 The sentencing Judge then proceeded to sentence the appellant. He noted that when the appellant committed these offences he was on a community release order. He referred to the pre-sentence and psychological reports. He noted that the appellant's counsel had asked him to differentiate between the appellant and his co-offender. He said generally speaking, offences that are committed by the same people in the same manner would attract the same sentence. However, in this case, both the defence and the prosecution, for slightly different reasons, had put forward submissions that in the end persuaded his Honour that he was able to deal with the appellant in a slightly different way. He said that in brief terms, those were because he did actually confess early and make a full and complete confession. He said he took some account of the element of coercion which was of a more immediate nature in relation to the offences, but only to some extent because that could not provide much mitigation for what were violent and serious offences. However, there still remained the vicious and cowardly assault occasioning bodily harm. He said he had considered the total sentence that he would have to impose but had concluded he must impose a cumulative sentence in respect of that. He described it as a different and quite cowardly offence, but added:

"... I will deal with it in a way, having regard [sic: to] totality, that gives it a lesser sentence than would otherwise be the case".

He then proceeded to impose the sentences described.

46 The ground is founded on cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("the Amending Act"). One of the amendments effected by the Amending Act was the abolition of the former automatic remission of one-third of a "parole term" or of a "fixed term" that is not a "prescribed term", as those expressions are defined in s 85 of the Sentencing Act 1995 (WA). The repeal of the automatic remission led to the perceived need, by the legislature, to stipulate that once the amendments took effect, sentencing courts made appropriate adjustments to sentences to accommodate them.

47 Clause 2(1) of Sch 1 provides that if a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a term that is two-thirds of that it would have imposed had the previous provisions been in operation at the time of sentencing.

48 The appellant's counsel acknowledged that his Honour had referred to these transitional provisions when sentencing Kelly, but had not done so when sentencing the appellant and submitted that hence it is unknowable whether or not they were applied in calculating his sentence.

50 For reasons upon which I will elaborate below, the sentences imposed here were, on any reasonable view, at the low end of the range. If it were to be assumed that his Honour had failed to reduce the sentences he would otherwise have imposed, by one-third, the result would be sentences which would have been patently inadequate. In addition, they would also have been markedly inconsistent with the sentences imposed in respect of Kelly, in relation to whom his Honour did expressly mention the transitional provisions. It is patently apparent that his Honour did apply the transitional provisions. There was no legal requirement that he expressly state that - although this ground of appeal shows why it will usually be prudent to do so.

51 In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ explained it this way (at 609 - 610):

"The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. However, the Court of Criminal Appeal in Queensland, on an appeal against a sentence, may quash the sentence imposed and substitute another 'if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed': s 668E of the Criminal Code (Q). The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal."

"I venture to repeat what I said in Lovelock v The Queen [1978] FCA 8; (1978) 33 FLR 132, at pp 136-137; [1978] FCA 8; 19 ALR 327, at p 331, a case where comparable sentences were imposed on co-offenders whose respective circumstances warranted disparate sentences:

'Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because "a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance" (per Walters J in O'Malley v French (1971) 2 SASR 110, at p 114; and see R v Steinberg [1947] QWN 27). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind.'

In Reg v Kennedy (1979) 37 FLR 356, at p 373; 25 ALR 367, at pp 382-383 Street CJ adopted the same approach:

'Marked divergence, whilst not in itself a ground for appellate intervention, may disclose some ground for finding error in one or other of the divergent sentences.'

But where an appellate court determines that the lesser of the sentences imposed upon co-offenders is appropriate, it ought not to allow a sentence of markedly greater severity to stand unless there are differences in the gravity of the conduct of the co-offenders or in their antecedents sufficient to warrant the disparity. "

53 The principle was referred to again by Dawson and Gaudron JJ in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301 - 302):

"The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. ... Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

54 His Honour accepted here that there were some differences in the circumstances between Kelly and the appellant and he made allowance for them. Counsel for the appellant says the allowance was not sufficient.

55 It was submitted that the appellant's role in the offences was significantly less than that of Kelly, primarily because of the claimed coercion. His Honour did take some account of "... the element of coercion which was of a more immediate nature in relation to the offences ..." I understand that remark of his Honour to be contrasting the claimed "pressure" upon Kelly to obtain money to support his drug habit and/or pay off drug debts, as opposed to the claimed physical coercion of the appellant by Kelly. There was very little before his Honour in support of that claim, apart from the submission of counsel. Further, the pre-sentence and psychological reports presented a rather different picture. I do not propose to deal with them in any detail. A recurring theme in the psychological report was concern about the veracity of the appellant's account of the events and, indeed, his antecedents. The psychologist noted there was a quite significant tendency for the appellant to place responsibility on others for certain aspects of his behaviour and that although he accepted limited responsibility for his involvement in the offences, he sought to give the impression that he had no choice in the matter. The psychologist noted the appellant initially referred to his co-offender as "a friend" although subsequently changed that to "associate" in some attempt to distance himself from the co-offender. The report notes the appellant stated he would not have acted in that way if he had not been threatened by his co-offender, who he said, had "punched into him" on different occasions and had also broken his nose. It notes he had also claimed he had been experiencing some form of psychosis at the time due to extended amphetamine use and added that had the effect of him "not having the backbone to get out of it".

56 However, the very detailed report reveals in a comprehensive way that from an early age the appellant was reactive and aggressive, that he had used significant quantities of prescription drugs and alcohol during his adolescent years (which had "fried him") and subsequently used amphetamines consistently over a 10 year period. He claimed they had been largely given to him free of charge supposedly from a friend who was a dealer. The psychologist noted that there were several contradictions regarding the appellant's references to his drug use and also in his descriptions of his relationship history.

57 The appellant was described as having acted in quite a volatile manner towards his family, stating that he "went mad" and drove them out of the house. He made reference to "exploding" and smashing items and described quite erratic and uncontrolled behaviour. The psychologist observed that he generally impressed as a quite troubled individual with significant personality pathology underpinned by a very poorly developed identity, and had suffered several psychotic breaks over time. He noted borderline and paranoid features to the appellant's personality organisation and that a broadly antagonistic stance to others has seemingly been a long-term feature of his functioning.

58 The report noted there was some indication the appellant's contributions were in some way coloured by his attempt to gain a favourable outcome from the assessment, and his presentation of information was often variable and conflicting.

59 Also, according to the appellant's self-report, he had been admitted into psychiatric care on a number of occasions, and suggested he had not adhered to any prescribed medication regime because he had readily resumed association with his drug-using friends and again involved himself in such use.

60 Although the Millen Clinical Multiaxial Inventory - 3 Assessment was administered (that being a measure of the presence and degree of clinically significant psychopathology and general personality function), the test scores were invalid due to the appellant's over-reporting of symptoms, although the psychologist nonetheless concluded that he manifested "mixed borderline/antisocial personality disorder" and also made reference to a borderline psychotic condition that may manifest during times of stress. He concluded that:

"Regardless of his attitude to his current offence [the appellant] obviously has significant needs for intervention to assist him to achieve some stability in his life. Such intervention should include ongoing psychiatric monitoring. In terms of broader intervention he would clearly benefit from intervention that addresses his drug use and his tendency for aggression. The latter is likely to represent a significant challenge given the long-term nature of his aggressive responses in his dealings with others ... He is likely to encounter significant difficulty in effecting enduring change given the characterological nature of many of the identified difficulties."

61 Much of this clearly bore upon the weight which could be given to the appellant's claim that he was only committing the armed robbery offences because he had been coerced by his co-offender. There is also a degree of inconsistency between that claim and the appellant's active participation in the offences (as opposed to merely standing by).

62 In addition, it must be observed that there were five separate offences committed over a period of about six weeks.

63 Despite the obvious difficulties with the appellant's claim of coercion, his Honour expressly did take that into account. The appellant has not demonstrated his Honour failed to give it sufficient weight.

64 Although Kelly's criminal record was more extensive than the appellant's, the latter's record was already sufficiently serious to preclude him being afforded any mitigation on that account.

65 Both offenders had pleaded guilty, although again, his Honour clearly accorded greater mitigatory weight to the appellant because of his early confession to, and limited co-operation with, the police.

66 In short, to the extent that there were differences between the two - which could not be said to be of great significance - they were accommodated by his Honour and resulted in a sentence for the appellant which was 12 months less than that imposed upon Kelly for the armed robbery offences. I would not regard that as insufficient allowance, much less so insufficient as to give rise to a justifiable sense of grievance in the appellant.

68 It was first submitted on behalf of the appellant that the imposition of wholly concurrent sentences would have been sufficient to serve the purposes of sentencing in this case.

69 I cannot accept that submission. It seems to me to offer nothing by way of general or specific deterrence. It was clear in this case that both of those principles had to be given very considerable weight, and indeed, primacy. The imposition of wholly concurrent sentences would, in my view, have entirely failed to reflect the seriousness of the five armed robberies committed over six weeks, much less the very serious assault offence which was a completely separate offence committed by the appellant alone.

70 As the appellant's argument progressed, it became a more qualified submission that the sentences should have been ordered to be served only partly cumulatively.

71 It is not suggested the individual sentences were excessive. The sole complaint is that the aggregate is too long. That is put in two ways. First it is said the order that the 4 year term on count 4 be served cumulatively on the sentences for the other armed robberies and the 9 month term for the assault, effectively doubled the sentence the appellant otherwise would have had to serve if all had been made concurrent, and that was inappropriate because the sentencing purposes relating to the appellant would have been achieved by him serving them all concurrently. Then, notwithstanding the qualification to the submission which I have mentioned above, it was subsequently again put that the disposition of these offences by wholly concurrent terms would have been sufficient for this appellant, in the sense that by the point he became eligible for release on parole, the purposes of sentencing would have been served. I am unable to accept this submission either way it is put.

72 The fact is, there was a substantial element of concurrency. Each of the armed robbery offences was a separate offence. They were not related factually, other than that they were committed by these two offenders. They did not occur on the same occasion. They were individual offences committed at different times over six weeks. There would, on any view, have been considerable scope for some degree of partial cumulation across all of them, to avoid any impression that the commission of more offences after the first one or two will not result in any additional punishment. For that view to be given currency would be the antithesis of the deterrent purpose of punishment. The same argument applies with even greater force to the sentence for the completely unrelated assault offence. That submission indeed, was strongly put to the sentencing Judge by the State prosecutor. He submitted that wholly concurrent sentences would not mark the serious of the appellant's criminality. His Honour was right to accept that submission.

73 It is apparent his Honour had totality very much in mind. He said so. He imposed an aggregate sentence of 7 years 6 months for the aggravated armed robberies. Given that a single offence of armed robbery could ordinarily be expected to attract a sentence in the range of 4 to 6 years, an overall sentence of 7 years 6 months for a series of five serious offences of that kind over six weeks is certainly not disproportionate to the appellant's criminality. The sentence of 9 months' imprisonment for the assault was a very light sentence for that offence - one which his Honour correctly described as "vicious and cowardly". His Honour expressly explained that it was because of the need to have regard to the totality principle that he was imposing a lesser sentence for that offence than would otherwise have been the case.

74 In Pearce v The Queen (1998) 194 CLR 610 at [45] the High Court emphasised the importance of a sentencing Judge determining an appropriate penalty for each offence and only then considering questions of cumulation or concurrency as well as the issue of totality. That was not the approach his Honour took here in relation to the assault. Whilst he cannot be said to have been wrong to take the approach he did (Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048) the argument now advanced about cumulation could not have been put (at least in quite the same way) had his Honour imposed a sentence of 2 years for the assault and ordered 9 months of that to be served cumulatively on the sentence for count 4. The end result would have been exactly the same, but the sentence for the assault might have been thought to have more appropriately reflected the seriousness of that offence. Be all that as it may, that hypothetical exercise does indicate that the contention that the aggregate sentence imposed here infringed the principle of totality cannot be sustained.

Ground 4: Failure to take the plea of guilty into account

75 Mr Aulfrey submits in respect of this, that the inference "is perhaps there" from his Honour's sentencing remarks, that he failed to take into account when sentencing the appellant in respect of the assault, that the appellant had assisted the administration of justice by asking for that offence to be dealt with by way of a notice under s 32 of the Sentencing Act and by pleading guilty to it. He submits "the other difficulty" is that it is difficult to tell what the precise discount was. There is a degree of inconsistency in these submissions.

76 It cannot be accepted that his Honour did not take into account the fact that the appellant had pleaded guilty to the assault by way of a s 32 notice.

77 The sentencing proceedings were not lengthy. The appellant's pleas of guilty were emphasised by his counsel and acknowledged by the State prosecutor before the sentencing Judge. Mr Aulfrey put to his Honour that the appellant's pleas came "more or less at the first opportunity". He emphasised the appellant co-operated with police in his second video record of interview. He repeated that "there's the plea of guilty on the fast-track system which affords the recognised discount". As I have mentioned, the State prosecutor put to his Honour that there was "a qualitative difference" between the manner of the pleas and confessions of the two offenders, which he then explained, and said the State accepted that was "deserving of credit of a substantial nature".

78 In his sentencing remarks, the sentencing Judge said he accepted the submissions that he should deal with the appellant in a slightly different way to his co-offender. In that regard he expressly referred to the fact that the appellant "did actually confess early and make a full and complete confession". When one has regard to what had been put to his Honour about the appellant's plea of guilty to the assault and what his Honour said, I do not think the inference counsel for the appellant says can "perhaps" be drawn, is reasonably open.

79 I am reinforced in that conclusion by the sentence actually imposed for the assault. The sentence of 9 months' imprisonment for that offence could only be described as extremely lenient. It could not reasonably be suggested there is scope for it to be reduced even further by reason of the guilty plea. The mitigating effect of that must necessarily have become subsumed in the reduction his Honour made to that sentence on account of considerations of totality.

80 Finally, as to the submission about the difficulty of ascertaining what precise reduction was made for the guilty plea, all that need be said is that the law does not require a reduction on that account to be quantified (McLean v The Queen [1999] WASCA 209 at [23] - [24]; Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 per Pullin JA at [40] - [41] and Bates v Wheatley [2000] WASCA 38 per Templeman J at [29] - [30]). There was, accordingly, no error of law in that respect - although for the reasons given by Martin CJ in Fullgrabe v The State of Western Australia [2006] WASCA 138 at [28] - [29] it is ordinarily preferable to do so.

81 It was for the foregoing reasons that I joined in the order dismissing the appeal.

Legislation Amendment and Repeal Act 2003

Nancarrow v The State of Western Australia [2006] WASCA 238

At a glance

Court

Decision date

Before

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Judgment (117 paragraphs)

Nancarrow v The State of Western Australia [2006] WASCA 238 (14 November 2006)

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Legislation Cited (1)

Cases Cited (8)