NIKORA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 235 (29 July 2019)

1. On 13 September 2018, the appellant and Baynah were arraigned before Prior DCJ. The appellant pleaded guilty to count 1 and was duly convicted of that count. Baynah pleaded guilty to both counts on the indictment and was duly convicted of them.[2]
2. Later that day, Prior DCJ sentenced the appellant to 20 months' immediate imprisonment backdated to 25 March 2018 with eligibility for parole. Baynah was sentenced to 2 years' immediate imprisonment for count 1 and 3 months' immediate imprisonment for count 2. His Honour ordered that these sentences be served concurrently with each other. Thus, the total effective sentence imposed upon Baynah was 2 years' immediate imprisonment. Baynah was made eligible for parole.[3]
3. Both the appellant and Baynah appealed to this court against sentence. Baynah's appeal was heard separately and has been dismissed.[4]
4. On 31 October 2018, the appellant applied for bail pending the hearing of his appeal. On 23 November 2018, Mazza JA ordered that the appellant be granted bail subject to a number of conditions. On 27 November 2018, Buss P rescinded the bail order and ordered that the appeal be heard on an urgent basis on 19 December 2018.[5]

1. The appellant relied on three grounds of appeal which, shorn of particulars, read:
   1. The learned Judge erred in law in imposing a sentence of imprisonment, having regard to the nature and circumstances of the appellant's offending, and all the circumstances of the case including those referable to the appellant personally.
   2. In the alternative to ground 1, the learned Judge erred in law in not suspending any sentence of imprisonment imposed, having regard to the nature and circumstances of the appellant's offending, and all the circumstances of the case including those referable to the appellant personally.
   3. The learned Judge erred in law in imposing a sentence that was manifestly excessive having regard to the nature and circumstances of the appellant's offending and the place on the scale of seriousness of offending of that type, and all the circumstances of the case including the appellant's personal circumstances and antecedents.

The application for leave to appeal on these grounds was referred to the hearing of the appeal.[6] As explained by the appellant's counsel in his oral submissions before this court, the grounds of appeal raised two complaints. First, it was alleged that his Honour erred by failing to conclude, in accordance with s 39(3) of the Sentencing Act 1995 (WA), that it was not appropriate to impose a suspended term of imprisonment, with or without conditions, upon the appellant. The appellant's second complaint is that, in any event, the sentence imposed upon the appellant was manifestly excessive as to type and, perhaps, length in that the sentencing judge should have imposed a suspended term of imprisonment, with or without conditions.

1. His Honour's findings as to the facts of the offending were not challenged by the appellant. They may be summarised as follows.
2. In the early hours of 27 October 2017, the appellant, Baynah and a third accused were in Northbridge.[7] The incident the subject of count 1 and its aftermath were largely captured on closedcircuit television (CCTV). We have viewed the relevant footage.
3. The victims, L and his friend P, were walking together to buy cigarettes from a convenience store on James Street. As they did, they were approached and stopped by the appellant, Baynah and the third accused. In the appellant's presence, Baynah asked L if he had any cash on him. When L informed him that he did not, Baynah demanded his wallet, which L refused. While this was happening, the third accused reached near P's pockets. After P pushed the third accused's hands away, that person punched P to the back of the head. Baynah and the third accused then punched L and P multiple times, causing L to fall to the ground. Baynah and the third accused continued to punch L and P. Baynah also kicked P three times, including once to the head.[8] Eventually, L handed his wallet to Baynah.[9] While all of this occurred, the appellant, while not involved in the physical acts, was in close proximity and was found by his Honour to be aiding Baynah and the third accused.[10]
4. While P was lying on the ground, the appellant felt both of his pockets and then took P's mobile phone, a phone charger and wallet. However, after searching the wallet, the appellant returned all of the property to P.[11]
5. L got up and ran away, but was chased by Baynah. L returned to the scene to assist P. Baynah physically stopped and held L and continued to harass him and feel his pockets. L was then released and ran to P. As he did so, Baynah kicked L.[12]
6. The appellant and Baynah then entered the Super Ezy convenience store, where Baynah attempted to use L's ANZ bank card to buy cigarettes. As this occurred, L ran to the window of the store and informed a staff member that the appellant was using his card and that the police were on the way.[13]
7. The appellant and Baynah left the convenience store and surrounded L. Baynah held on to L's wrist and punched him numerous times, causing him to fall to the roadway in the middle of James Street.[14] During this assault, Baynah told L to give him his mobile phone. L refused, until Baynah told him he had a knife. L then handed his mobile phone over to Baynah.[15]
8. P then ran over and attempted to push the appellant and Baynah off L. P was thrown to the ground by the appellant. The appellant and Baynah then kicked and stomped on the two victims. The appellant also threw an unknown item at the victims before the appellant, Baynah and the third accused left the area.[16]
9. On 18 December 2017, police executed a search warrant at the appellant's house. He was conveyed to the Perth Police Station where he participated in an electronic record of interview, during which he made a full and detailed confession about his involvement in the offence.[17]
10. As a result of the aggravated robbery, L suffered a cut to his chin. P suffered a red and grazed cheek which was sore for three days.[18] In a victim mediation report, L said he still felt scared and described what had occurred as traumatising.[19]
11. All of the stolen property was either located at the scene or returned to the victims.[20]
12. The sentencing judge accepted that 'at one stage during the original attack' (which may be taken to mean at that part of the offence which occurred prior to the appellant and Baynah entering the convenience store) the appellant told L to run.[21]
13. His Honour accepted that the appellant was not the instigator of the attack and had played 'a lesser physical role'.[22] However, his Honour noted that the appellant played a significant role,[23] and the appellant, Baynah, and the third accused were in company with each other 'most of the relevant time that the offence was committed'.[24]
14. As we have said, we have viewed the CCTV footage of the incident. Given the evident high level of force and the persistence of the attack upon the victims, L and P are indeed fortunate to have suffered only minor physical injuries.

1. The appellant was 20 years of age at the time he was sentenced. He was born in a small country town in New Zealand. His parents separated when he was 3.[25] His childhood was stable. The appellant moved to Western Australia in 2012. In 2017, his mother and stepfather separated.[26]
2. The appellant completed high school at the end of year 11. Since leaving school, he has worked in a number of positions. Prior to being remanded in custody, he worked as a paver.[27]
3. The appellant has good physical and mental health. He has experimented with various illicit drugs and has been drinking alcohol since he was 14. At the time of his offending, the appellant was under the influence of cocaine and alcohol.[28]
4. The author of the presentence report noted that the appellant was susceptible to influence when in the company of other men. The author also noted that the appellant expressed empathy for the victims of the offence. The author of the presentence report considered the appellant to be a low risk of violent offending in the future.[29]
5. A psychological report associated the appellant's offending with negative peer influences, impaired thinking and judgment due to intoxication, lack of consequential thinking, lack of effective decisionmaking skills and a somewhat arrogant attitude. The psychologist noted that the appellant believed 'it was cool to assault another person'.[30]
6. The appellant has been in a relationship for three years and has a son who was, at the time of sentencing, 2 years old, and who is in the care of his partner.[31]
7. His Honour noted from the character references he had received that the appellant has the support of his family.[32]
8. Prior to the appellant being sentenced, he had spent 166 days in custody because he breached the curfew condition of his bail.[33]
9. The sentencing judge also noted that the appellant had sent L a letter of apology, indicating his remorse was genuine.[34]

1. The learned sentencing judge began by identifying the statutory maximum penalty for the offence of aggravated robbery, which is 20 years' imprisonment. He then considered the circumstances of the offending, and the appellant's personal circumstances, which are set out above.
2. The learned sentencing judge identified the following mitigating factors:

(a) The appellant made a detailed confession in his record of interview with police. This, along with the contents of the sentencing reports, demonstrated genuine remorse.[35]

(b) The appellant pleaded guilty at an early opportunity in the proceedings,[36] for which the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act was given.[37]

(d) The absence of any prior criminal convictions.[39]

(e) The appellant's offer to engage in victim mediation.[40]

1. The learned sentencing judge identified the following aggravating factors:

(a) The appellant participated in a group attack upon two victims who were outnumbered, and who were unknown to the appellant and his cooffenders.[41]

(b) The acts of violence occurred over an extended period involving acts of violence which occurred both before and after Baynah's attempt to fraudulently use L's credit card in the convenience store. The physical acts of punching and kicking the victims involved a continued significant level of violence, some of which occurred when the victims were on the ground and defenceless and despite the victims' pleas for these assaults to stop. His Honour characterised these actions as cowardly.[42]

1. His Honour took into account the parity principle. He noted the differences in the respective cases of the appellant and Baynah. In particular, the appellant was not the instigator of the attack and had played a lesser physical role. He also noted that, at one point, the appellant told L to run and that he returned the property that he had stolen to P. In recognition of these differences, his Honour imposed a lesser term of imprisonment upon the appellant.[43]
2. His Honour considered and dealt with the submission put on behalf of the appellant that the appropriate penalty was the imposition of a suspended term of imprisonment. We will say more about this below. At this point, it is sufficient to say that his Honour rejected this submission and concluded that, despite the mitigating factors, the factual circumstances of the offending were too serious to impose suspended imprisonment.
3. We now turn to the two complaints raised by the grounds of appeal to which we referred in [8] of these reasons.

Did his Honour err in his approach to the question of a suspended sentence?

1. Counsel for the appellant submitted that his Honour erred in law because, in deciding to impose an immediate term of imprisonment upon the appellant, he 'skipped over' sentencing options involving suspended imprisonment before deciding to impose a term of immediate imprisonment. The appellant's counsel elaborated by contending that his Honour was bound, but had failed, to expressly eliminate the option of suspended imprisonment before imposing a term of immediate imprisonment.[44]

Principles of sentencing under the Sentencing Act

1. The principles of sentencing his Honour was bound to apply are set out in pt 2 div 1 of the Sentencing Act. The overarching principle is that a sentence must be commensurate with the seriousness of the offence: s 6(1). The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence including the vulnerability of any victim, the aggravating factors and the mitigating factors: s 6(2). Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment could be justified or the protection of the community requires it. The reference to imprisonment in s 6(4) is a reference to any type of imprisonment whether suspended (with or without conditions) or to be immediately served.
2. The sentencing options available to an offender who is a natural person are set out in s 39(2) of the Sentencing Act. The ultimate option is a term of immediate imprisonment (s 39(2)(h)) and the two preceding options are conditional suspended imprisonment (s 39(2)(g)) and suspended imprisonment (s 39(2)(f)), respectively. Under s 39(3), a court must not use the sentencing option in subsection (2)(h) unless it is satisfied that it is not appropriate to use any of the options listed before that option.
3. Section 76 deals with suspended imprisonment. It materially provides:[45]

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

1. The legal principles with respect to the imposition of suspended imprisonment were explained by the High Court in Dinsdale v The Queen.[46] In their joint judgment, Gleeson CJ and Hayne J said:[47]

The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately.

No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment.

1. Kirby J said in Dinsdale v The Queen that the 'starting point' for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of s 39(2) and s 76 of the Sentencing Act. He observed that suspended imprisonment was treated as the penultimate punishment in the hierarchy of sentencing options provided, and was 'just slightly lower in severity than the imposition of a term of imprisonment to be immediately served'. He said that s 39(2)(f) was to be read with the injunction in s 6(4) restraining the imposition of a term of imprisonment and confining it to the punishment of last resort.[49]
2. Kirby J said that there were two distinct steps in the process of imposing a suspended term of imprisonment. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. His Honour observed that these steps should not be elided.[50] Kirby J said that the scheme of the legislation and the two steps which have just been described suggest that, as a matter of construction, the same considerations that were relevant to the imposition of the term of imprisonment must be revisited in determining whether to suspend that term.[51] This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.[52] This approach, his Honour said, permitted attention to be given not only to the circumstances personal to the offender, but also to the objective features of the offence.[53]
3. Kirby J pointed out that the objective features of the offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy and may require that the prison sentence be immediately served despite mitigating personal considerations.[54] His Honour made it clear that the decision to suspend a term of imprisonment is not confined to considerations of rehabilitation and mercy.[55]
4. In Latham v The Queen,[56] Parker J, after analysing Dinsdale v The Queen, said:

For the purposes of this application, in my respectful view, what appears to be critical to the adequate exercise of the sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider s 6(4) and s 39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when s 6(4) and s 39(3) are considered but, that they be properly considered.

1. This passage was cited with approval by McLure JA (with whom Steytler P agreed) in Collins v The State of Western Australia.[57]
2. In Cartwright v The State of Western Australia,[58] McLure P (with whom Owen and Wheeler JJA agreed) encapsulated the relevant sentencing principles concerning suspended imprisonment in this way:[59]

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

1. His Honour set out in some detail the legal principles relevant to the sentencing of the appellant and Baynah. He set out the general sentencing principles provided for in s 6 of the Sentencing Act.[60] Specifically, he said, consistently with the terms of s 6(4):[61]

I cannot impose a term of imprisonment unless that is the only option available to me. That is, there is no other lesser sentence which properly reflects the degree of your criminality and/or the protection of the community requires it.

1. His Honour also said, consistently with s 39(2) and (3) of the Sentencing Act that:[62]

I must first decide the kind of punishment to be imposed. The Sentencing Act sets out options as to penalties which may be imposed following a conviction. [A] court must not use a more severe sentencing option, unless it is satisfied that it is not appropriate to use any one of the less severe options available.

1. His Honour then referred to the appellant's and Baynah's pleas of guilty, the parity principle and other matters which, for present purposes, do not need to be described. Having done this, his Honour said:[63]

In my view, the seriousness of the offending is such that a sentence of imprisonment is the only appropriate sentence in respect of the offence of aggravated robbery. The principles of both general and specific deterrence require a sentence of this type for each of you.

1. His Honour then announced the terms of imprisonment he regarded as appropriate, including the sentence of 20 months' imprisonment he ultimately imposed upon the appellant.[64]
2. At this point, his Honour turned to the question of whether the sentence of imprisonment 'should be suspended conditionally or otherwise'.[65]
3. His Honour referred to the principles set out by McLure P in Cartwright v The State of Western Australia which can only be understood as being a reference to the extract we referred to at [48] of these reasons.[66]
4. His Honour then stated:[67]

I am obliged to consider all [the] factors that apply in each of your cases. Although there are significant mitigating factors that apply in each of your cases, including your youth, lack of previous record, personal backgrounds, the behaviour is out of character, your genuine remorse and your early pleas of guilty, the factual circumstances of your offending are too serious for the sentences of imprisonment to be suspended conditionally or otherwise.

1. The claim made by the appellant had no reasonable prospect of succeeding.
2. As Parker J said in Latham v The Queen, what is critical to the adequate exercise of the sentencing discretion is to give due regard to the stipulation in s 6(4) of the Sentencing Act and to the effect of s 39(3) of that Act.[68] In our opinion, that was exactly what his Honour did.
3. As the sentencing remarks show, his Honour recognised and complied with the stipulation in s 6(4) of the Sentencing Act, that he could not impose a sentence of imprisonment of any kind unless the seriousness of the offence was such that only imprisonment could be justified or the protection of the community required it. He analysed all of the relevant circumstances, including the mitigating factors, and decided that, because of the seriousness of the offence, only a term of imprisonment could be justified.
4. His Honour then proceeded to consider whether the term of imprisonment he considered appropriate could be suspended on conditions or otherwise. This approach plainly accords with the requirement in s 39(3) of the Sentencing Act. His Honour did not elide the steps required by s 6(4) and s 39(3) of the Sentencing Act.
5. In compliance with the twostep approach approved in Dinsdale v The Queen, the learned sentencing judge took into account again all of the relevant circumstances which led him to decide that the only appropriate penalty was a term of imprisonment. Although his Honour recognised that there were significant mitigating factors, including the appellant's youth, lack of prior record, personal background, that the behaviour was out of character, the appellant's genuine remorse and early plea of guilty, he concluded that the factual circumstances of the offending were too serious for the sentence to be suspended, conditionally or otherwise, and ordered that the term of imprisonment he imposed be served immediately.[69] This approach is consistent with the statement made by Kirby J in Dinsdale v The Queen to which we have referred.[70]
6. Contrary to the appellant's submissions, the learned sentencing judge did not 'skip over' suspended imprisonment as an option, in favour of simply deciding to impose an immediate term of imprisonment. Rather, his Honour identified that a term of imprisonment was the only appropriate sentencing disposition, identified the term of imprisonment which was commensurate with the seriousness of the offending, and then expressly turned to consider whether that term of imprisonment should be suspended, conditionally or otherwise. He thus expressly eliminated suspended imprisonment as an option before ordering the appellant to serve the term of imprisonment he imposed immediately.

1. We now turn to the allegation that the sentence imposed on the appellant was manifestly excessive.
2. The general principles applicable to an allegation of manifest excess are well established. An allegation of manifest excess is an allegation of material implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
3. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:

(1) the maximum sentence prescribed by law for the crime;

(2) the standards of sentencing customarily imposed with respect to it;

(3) the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and

1. With respect to the range of sentences customarily imposed, such a range does not establish the limits of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
2. The maximum penalty for the offence of aggravated robbery is, as the learned sentencing judge noted, 20 years' imprisonment.
3. It is unnecessary for us to repeat the circumstances of the offending, the aggravating circumstances and the mitigating circumstances.
4. The facts of the aggravated robbery are selfevidently serious. While the appellant was not the instigator of the offence, by reason of his actions including his close presence to Baynah and the third accused, he was an integral part of the offending. The offending was prolonged and persistent. It was maintained before and after the attempted fraud offence. It involved a group attack upon two defenceless victims, both of whom were assaulted, harassed and terrorised. They had done nothing which could conceivably justify the appellant's conduct.
5. The offence was, as the sentencing judge said, 'cowardly' and 'a very serious street mugging'. It is the kind of offending which must be deterred.
6. Neither L nor P suffered serious physical injury, although the potential for such injury, given that much of the offending conduct occurred on a road surface, is obvious.
7. We have not overlooked the significant mitigating factors, most particularly, the plea of guilty, the appellant's cooperation with the police, his youth and good antecedents. However, the seriousness of the offence justified the conclusions that the only appropriate sentence was a term of imprisonment and that the term must be immediately served.
8. The appellant did not rely upon any sentencing decision of this court with respect to the offence of aggravated robbery. In Schischka v The State of Western Australia,[71] it was said that aggravated robberies can be, and are, committed in a wide range of circumstances.[72] As Buss JA (with whom Mazza JA, relevantly, agreed) pointed out in that case, the sentencing range for aggravated robbery has been 'firmed up', particularly where, as in this case, the victim has been violently assaulted, in order to recognise the prevalence and seriousness of that offending. One may add to this the need for general deterrence.[73]
9. The appellant cited two cases - Abbott v The State of Western Australia[74] and The State of Western Australia v Wells[75] - involving sentences imposed for the offence of armed robbery to advance an argument that if leniency may sometimes be required in sentencing offenders for the more serious offence of armed robbery, it would also be appropriate to do so for the lesser offence of aggravated robbery. It is unnecessary to analyse these cases. It is enough to say that each case falls to be decided on its own facts. There will be unusual cases of both armed robbery and aggravated robbery where immediate imprisonment may not be appropriate. However, the present case is not one of those.
10. Having regard to all of the relevant circumstances, we were not persuaded that implied error had been established. A term of immediate imprisonment was the only appropriate sentence. The sentence imposed upon the appellant was not unreasonable or unjust either as to type, or for that matter, length. It was not manifestly excessive.

1. In the course of oral submissions, counsel for the appellant appeared to submit that the sentence imposed upon the appellant, when compared with the sentence imposed on Baynah, infringed the parity principle.[76] It was squarely put to counsel that there was no ground of appeal alleging an infringement of the parity principle, which the appellant's counsel readily acknowledged.[77] Ultimately, the matter was not pursued and consequently it is unnecessary to say anything about it.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[4] See Baynah v The State of Western Australia [2019] WASCA 103.

[5] Nikora v The State of Western Australia [2018] WASCA 214 [15].

[7] The third accused was charged, but did not answer his bail. He is still at large and has not been dealt with.

[45] See Collins v The State of Western Australia [2007] WASCA 108.

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

[56] Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74 [18].

[57] Collins v The State of Western Australia [2007] WASCA 108 [15].

[58] Cartwright v The State of Western Australia [2010] WASCA 4.

[59] Cartwright v The State of Western Australia [8].

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

[72] Schischka v The State of Western Australia [33], [62].

[73] Schischka v The State of Western Australia [62] - [63].

[74] Abbott v The State of Western Australia [2007] WASCA 105.

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