Leave to appeal - Aggravated armed robbery - Offender armed with syringe - Imprisonment for 3 years - Whether manifestly excessive - Whether non­custodial sentence open

Criminal procedure - Application for extension of time - Delay of more than 8 months in filing notice of appeal - Inability to get legal assistance or legal aid - Whether sufficient grounds for extension of time - Whether miscarriage of justice if no extension of time granted

Criminal Appeals Act 2004 (WA), s 9(2)

Application for extension of time to appeal refused

1 MILLER JA: The appellant was charged with the offence of aggravated armed robbery. He pleaded guilty on the fast-track and was sentenced by the sentencing judge to a term of imprisonment of 3 years. Sentence was imposed on 8 March 2007, but the sentence was backdated to 12 January 2007. There was an order for eligibility for parole.

2 The facts which were stated before the sentencing judge revealed that the offence occurred at a Shell service station in Erindale Road, Warwick. The complainant was a 25-year-old student employed part-time as a service station console operator. He was working alone when the appellant entered the retail shop area of the service station at 2.27 am on 7 January 2007.

3 The appellant selected confectionery and approached the complainant at the counter. He pretended that he was about to make a purchase, but then demanded cash from the complainant. He threatened him by displaying a syringe in a threatening manner.

4 The complainant thought that the syringe was actually a knife and the prosecution accepted that, in the circumstances, the facts were to be viewed on the basis that the complainant thought he was being threatened with a knife and not a syringe.

5 The complainant was in fear of his safety and thought that he would be assaulted if he did not comply with the appellant's demand. He opened the cash register and handed the appellant $320 in cash. The appellant then walked from the premises, instructing the complainant that he was not to call police for half an hour.

6 On 11 January 2007, investigating detectives questioned the appellant. He participated in a video record of interview and, during that interview, made full admissions in relation to the offence. He said that he needed cash to support an amphetamine drug habit and that he had used the money which he had stolen for the purpose of purchasing drugs.

7 The prosecutor informed the sentencing judge that the appellant had a record of convictions which included stealing and armed robbery. On 5 May 2004, the appellant went to the BP Beldon store in Beldon, where he selected a packet containing screwdrivers and walked to the counter. The store attendant scanned the item and asked for payment, but the appellant had no money to pay and took the items without making payment. The conviction for armed robbery arose out of the same incident. The appellant removed the screwdrivers from the packet he had taken from the store display, and pointed the screwdrivers at the store attendant. He demanded $100 from the till. The attendant stepped backwards, but the appellant motioned towards him again with the screwdrivers and demanded money. He also demanded keys to a Magna sedan, which was parked at the rear of the store. The attendant said that the motor vehicle was owned by Auto Masters and that the vehicle had a seized engine. He then opened up the cash register and counted out $100 in $20 notes. He put the money on the counter. The appellant picked up the notes and walked towards the exit. He told the attendant that he was not to 'press any buttons'. The appellant was sentenced to imprisonment for the offence of armed robbery committed on 5 May 2004. He was ordered to be eligible for release on parole and was duly released. He completed the period of parole, discharging the sentence of imprisonment prior to the commission of the offence on 7 January 2007.

8 The appellant seeks leave to appeal against the sentence imposed by the sentencing judge. He also seeks an extension of time within which to appeal.

9 The grounds of appeal annexed to the appellant's case are two:

1. The sentencing judge erred in law by sentencing the offender to a term of three years imprisonment with parole eligibility in that if it is held that the sentence imposed was within the usual range of sentences for the relevant offence, the personal circumstances of the offender are such as to render the sentence manifestly excessive in relation to him and in light of the facts and circumstances of the case;

(i) entered a fast track plea;

(ii) handed himself in to police;

(iii) has only one kidney;

(iv) the offence occurred on the spur of the moment;

(v) the offence occurred whilst the offender was intoxicated and drug dependant [sic dependent] .

1. In the alternative that her Honour in sentencing the offender erred by imposing a term of imprisonment when a non custodial sentence was open on the particular facts and circumstances of the case.

10 The appellant's notice of appeal was filed on 12 December 2008. The last date upon which the notice could have been filed was 29 March 2007. It was, thus, almost 21 months out of time. The explanation for the delay in filing the notice of appeal is that the appellant had difficulties in obtaining legal aid and it was not until 29 October 2008 that his present solicitor was given instructions to act on the appellant's behalf. Thereafter, the appellant's solicitor took steps to investigate the matter and to file the notice of appeal as soon as it was possible to do so.

11 In my opinion, there was gross delay in the filing of the notice of appeal in this matter. No satisfactory explanation has been given for the delay. Only if there has been a manifest miscarriage of justice, should an extension of time be granted. The principles were set out by me in R v The State of Western Australia [2008] WASCA 127 at [9] - [11]:

The principles upon which an extension of time will be granted where there has been gross delay are clear. They were stated by Burt CJ in Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985) as follows:

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. (2)

The appellant's entitlement to appeal in this case was governed by the provisions of s 695(1) of the Criminal Code, which required notice of appeal within 21 days of the date of convictions. Section 695 of the Criminal Code has since been repealed and replaced by s 28(3) of the Criminal Appeals Act 2004 (WA). An appeal must still be commenced within 21 days of conviction.

The principles set out by Burt CJ in Narkle remain applicable: see Gavin v The Queen (1992) 6 WAR 195, 198 - 199 (Malcolm CJ); Ejueyitsi v Maloney [2007] WASCA 3 [8] (Wheeler JA).

12 The sentencing judge recited the facts of the case. Her Honour noted that the prosecution conceded that the offence was at the lower end of the scale, but the sentencing judge made the observation that this did not mean that it was not a particularly serious offence. Her Honour made the point that it is a prevalent offence and one which causes fear to people and has ramifications for particular types of employment. The sentencing judge added:

In this case it was a service station and that is something that always causes concern to the court because those sorts of places are very commonly the subject of these types of offences. It was also committed in the early hours of the morning. It is said that it was committed on the spur of the moment.

13 The sentencing judge referred to matters personal to the appellant. She pointed out that he was 23 years of age and still a young man. He did, however, have what she described as 'a very bad record', with a consistent amount of offending and a number of offences of violence.

14 The sentencing judge made reference to a pre-sentence report which indicated the extent of the appellant's drug use and suggested that the offence was an impulsive act, committed at a time when the appellant was using amphetamines. Her Honour noted that previous sentences in which community dispositions and parole periods have been imposed had caused problems for the appellant because of inability to comply with those orders. Two parole terms had been breached and the second of them was ultimately cancelled. An intensive supervision order had also been breached.

15 A psychiatric report revealed that the appellant had suffered psychotic episodes in consequence of amphetamine use. He attempted to distort the truth and minimise his conduct. The appellant had no empathy with the victim of his offence. He had an antisocial personality disorder, which the sentencing judge thought may have gone some way to explain his conduct, but which did not excuse it.

16 The sentencing judge concluded that the appellant had to change his lifestyle and that he needed assistance to cope with substance abuse. Her Honour thought that if these things could be addressed, there was some hope of the appellant becoming a useful member of the community.

17 The sentencing judge concluded that the only disposition open was one of immediate imprisonment. Her Honour correctly noted that the range of sentences (prior to the application of the transitional provisions which were then applicable) was 6 to 9 years' imprisonment (Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521). Her Honour took account of the need for general deterrence, the prevalence of the offence and the need for protection of the community. An allowance of 25% was made for the appellant's plea of guilty and for other matters that had been put on his behalf. The sentence imposed was one of 3 years, backdated to 12 January 2007. Although the appellant had said that he did not want parole, the sentencing judge made an order for eligibility for parole.

18 This ground contends that the sentencing judge erred in imposing a sentence of 3 years' imprisonment and that the sentence was manifestly excessive, for the reasons which are set out in the particulars annexed to the ground.

19 At the hearing of the application for leave to appeal, counsel for the appellant placed particular reliance upon Abbott v The State of Western Australia [2007] WASCA 105. This was a case in which the appellant had been convicted on her plea of guilty to one count of armed robbery. The facts revealed that the appellant and her partner were addicted to morphine. They normally resided in Albany, but were in Perth in November 2005 after attempting to detoxify. The appellant could not tolerate the withdrawal effects she was experiencing, and she and her partner went to a pharmacy in Bentley at around 9 am. They entered and requested a prescription drug which contained morphine. The pharmacist said that she could not give the appellant that drug unless she had a prescription. The appellant left the pharmacy and used a syringe to withdraw some of her blood. She was suffering from hepatitis C and she knew it. She then returned to the pharmacy and spoke again to the pharmacist about medication. Other medication was offered to her, but it was rejected by the appellant. She then walked around the counter holding the syringe in her hand, which was down by her side. She said, 'I'm sorry to have to do this, but I need morphine'. The pharmacist went to the back room to get the morphine. The appellant followed her. The safe was opened and some ampoules were removed and taken by the appellant.

20 The appellant voluntarily attended at the police station the following day, after being told that the police were looking for her. She participated in a video record of interview and admitted the offence. She pleaded guilty on the fast-track.

21 The complainant pharmacist stated in her deposition that the appellant spoke very softly and sounded apologetic towards her. The pharmacist declined to provide a victim impact statement, saying that the offence did not have a huge impact on her and she felt that the appellant needed help. She was happy for the court to be told of her view in that respect.

22 The appellant was 24 at the time of the offence and had a 7-year-old child. She was drug-addicted.

23 McLure JA (with whom Steytler P and Miller JA agreed) held that the offence was at the low end of the range of seriousness. McLure JA, at [20], said:

Notwithstanding the use of a syringe containing contaminated blood, the circumstances of the appellant's offending are low on the scale of seriousness of crimes of this type. The primary basis for this conclusion is the complainant's description of and reaction to the appellant's conduct. The appellant was softly spoken, apologetic and kept the syringe in the most passive and non-aggressive position consistent with a threat of violence. I infer the complainant did not perceive that her safety was seriously in jeopardy. In addition, there are numerous mitigating factors. The appellant entered a fast track plea of guilty; she cooperated with police and was found to be truly remorseful; she was relatively young at the time she committed the offence; notwithstanding her longstanding addiction to morphine, she had no relevant prior record of offending. I have also had regard to the disadvantage she suffered in her early years and what she has achieved to overcome that disadvantage in the responsible positions she has secured. Having regard to all relevant matters I would impose a term of immediate imprisonment of 2 years (which equates to 3 years under the former sentencing regime).

24 It can be seen immediately that Abbott's case involved very special circumstances. The appellant had no prior record of convictions and there were special circumstances which spoke very much in her favour. She still received a sentence of imprisonment to be served immediately, but it was 1 year less than that which was imposed upon the present appellant.

25 In my opinion, Abbott's case does not mean that the sentence which was imposed upon the present appellant was anywhere near manifestly excessive. The two cases are entirely different. A major point of distinction between the present appellant and the appellant in Abbott's case is that the present appellant has a bad record of convictions, whereas the appellant in Abbott's case had no relevant convictions at all.

26 The appellant does rely upon other cases, including The State of Western Australia v Wells [2005] WASCA 23, Richardson v The State of Western Australia [2005] WASCA 92, Satonick v The State of Western Australia [2008] WASCA 145 and Mobilia v The Queen [2002] WASCA 130. In each of those cases, sentences less than the sentence imposed upon the present appellant were imposed. In two of the cases (Richardson and Mobilia) suspended sentences were imposed and in the others sentences of 2 years 8 months and 12 months resulted from the appeals.

27 It is a mistake to attempt to analyse other cases in micro detail. The facts and circumstances are invariably entirely different. It is the range applicable to a particular type of offence which is important. That range is well established in cases of aggravated armed robbery. It is 6 to 9 years' imprisonment prior to application of the transitional provisions which were applicable in the present case, but no longer apply. The range at the time the appellant was sentenced was 4 to 6 years' imprisonment after application of the transitional provisions. If he was being resentenced, the range might arguably be higher. It is unnecessary, for the purposes of this application, to consider whether that is so. Even with a range of 4 to 6 years' imprisonment, the appellant's sentence was below that range by reason of the fact that the sentencing judge took full account of the plea of guilty, and such other matters (including those personal to the appellant) as were relevant.

28 For leave to appeal to be granted, the court must be satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). To have a reasonable prospect of succeeding, a ground must have rational and logical prospects of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

29 The ground of appeal advanced on behalf of the appellant has no reasonable prospect of success. The acknowledged range prior to application of the transitional provisions, which were then in place, was 6 to 9 years' imprisonment for an offence of this nature. The appellant was carrying a syringe, but there was no evidence that it was blood-filled, or that the complainant was aware of the fact that it was a syringe. This saved him from what would otherwise have been a higher sentence (see Miles (supra) per White J at 531 - 524).

30 Nevertheless, the offence committed by the appellant was a very serious one. A sentence of imprisonment to be served immediately was clearly an open disposition and, in the circumstances of the case, the only realistic disposition which the sentencing judge could have imposed.

31 The fact that the appellant entered a fast-track plea of guilty, handed himself in to police, had some health problems, allegedly committed the offence on the spur of the moment and was under the influence of drugs, does not take away from the fact that a sentence of imprisonment to be served immediately was the only disposition open. A sentence of 3 years' imprisonment, which took into account a 25% discount for the plea of guilty and a one-third discount for the application of the transitional provisions (since abolished by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)) was entirely within range and could not possibly be said to be manifestly excessive.

32 In my view, the ground of appeal has absolutely no prospect of success.

33 This ground contends that the sentencing judge erred in imposing a term of imprisonment when a non-custodial sentence was open on the particular facts and circumstances of the case.

34 In my opinion, this ground has even less prospects of success than the first ground. The appellant had a record of convictions which included a conviction for armed robbery. He had been sentenced to imprisonment on more than one occasion. The circumstances of this offence were such that a deterrent sentence was called for, for the reasons advanced by the sentencing judge.

35 Although a sentence of suspended imprisonment is always an open disposition in any case (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321), it could not possibly be argued that this was a case for either a suspended term of imprisonment, or any disposition other than a term of imprisonment to be served immediately. In my opinion, the ground of appeal has no prospects of success.

36 There could only be a miscarriage of justice in this case if the grounds of appeal had substance and the appellant was unable to argue them. An extension of time would be granted in those circumstances. However, in the present circumstances, where the grounds of appeal have no reasonable prospects of success, there could be no miscarriage of justice in refusing an extension of time within which to appeal. As I have pointed out, the delay in filing the notice of appeal has been substantial, and no satisfactory explanation is given in the affidavit material supplied to the court for the delay.

37 I would therefore refuse an extension of time within which to appeal.