R v Valentine [2003] WASCA 7

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Woods v The Queen (1994) 14 WAR 341

1 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons for decision to be published by McKechnie J and Rolfe AUJ.

2 The offence of armed robbery committed by the applicant was unquestionably serious. In all the circumstances, it would have called for the imposition of a sentence of 7 years' imprisonment, in the absence of any mitigating circumstances.

3 There were some mitigating circumstances in the present case. They were the early plea of guilty, the applicant's young age and his apparent remorse. The effect of the remorse is, however, reduced somewhat by the false explanation given by the applicant for carrying the capsicum spray.

4 Other mitigating circumstances included the efforts made by the applicant while in prison to seek help in overcoming his problem with aggression and to rehabilitate himself by undertaking various courses which will assist him in obtaining employment.

5 There was also some material, in a letter written by the applicant to the sentencing Judge, which suggested that imprisonment might be particularly traumatic for the applicant.

6 It was submitted by the applicant's counsel that, in all the circumstances, the head sentence of 2-1/2 years' imprisonment for the armed robbery was compassionate, rather than lenient. It was a sentence imposed after the learned sentencing Judge had had an opportunity to deliberate for over three weeks. It was submitted that the sentence must therefore be taken to reflect the proper exercise of his Honour's discretion.

7 The difficulty with that submission is that the Judge did not say he intended to be compassionate. To the contrary: his Honour observed:

"There is little that can be said in mitigation of this offence."

8 It has troubled me that if the Judge did intend to impose a compassionate sentence, but omitted to say so, to increase the applicant's sentence now would be, in effect, to punish him for that omission, rather than for his own conduct.

9 However, I have come to the conclusion that the circumstances of the offence were so serious that, even allowing a proper measure for compassion, a sentence of 2-1/2 years' imprisonment is so inadequate as to reflect a mis-exercise of the sentencing discretion. That is because, as is now well-settled, in dealing with offences of this kind, the Courts

should give greater weight to the requirements of deterrence, and less weight to matters personal to the offender: Miles v The Queen (1997) 17 WAR 518, 521 per Malcolm CJ.

10 Although that was said in relation to what might be described as a conventional armed robbery, which this offence was not, in my view the same principle should apply.

11 In re-exercising the sentencing discretion, I would now impose a term of four years' imprisonment. I think five years would have been appropriate at the outset having regard to the applicant's young age and the fact that he has not been imprisoned before. However, this is a Crown appeal, and the principle of double jeopardy applies. That being so, I think the Court should now impose a sentence somewhat less than that which should have been imposed at first instance: see Goundar [2001] NSWCCA 198; (2002) 127 A Crim R 331 at [57].

12 I agree with McKechnie J and Rolfe AUJ in relation to the remaining grounds of appeal.

13 McKECHNIE J: This is a Crown appeal against sentences imposed by Anderson J.

14 The respondent pleaded guilty at the first opportunity on 15 March 2002 to one count of aggravated robbery and one count of assault occasioning bodily harm on indictment 89/2002 in the Supreme Court. The circumstances of the robbery were that while in the K-mart store in Armadale the respondent selected a Ryobi cordless drill, which was in a box. He removed the drill from the box and placed it down his long pants. He also selected three DVD movies and also placed these down his pants before leaving the store without declaring the items for purchase.

15 When approached outside the store by a store loss prevention officer, he became aggressive and sprayed her at least twice in the face with capsicum spray causing her bodily harm. He also sprayed an officer who came to her assistance before being overpowered by a security officer. The respondent claimed that he had the capsicum spray as protection against a neighbourhood dog. This led to a trial of that issue, following which the Judge found:

"I am quite satisfied that the only explanation for your possession of the capsicum spray was to use it as a weapon to assist you to commit this robbery should it become necessary to do so."

16 The loss prevention officer suffered bodily harm. The use of the pepper spray into her eyes caused significant distress to her at the time and continued for a period of some days thereafter, she experienced foggy vision and her eyes required irrigation and anaesthetic to relieve the pain.

The respondent was sentenced to a term of 2-1/2 years imprisonment for the crime of aggravated armed robbery and 6 months imprisonment to be served concurrently with the crime of assault occasioning bodily harm.

18 The convictions triggered a breach of two intensive supervision orders. The first ISO was imposed on 16 July 2001 in the District Court for 18 months for three charges of stealing. The second ISO was imposed on 16 October 2001 when the respondent was placed on an intensive supervision order for a period of 15 months by the District Court for an offence of aggravated burglary. Anderson J dealt with these matters. He cancelled each ISO and imposed the following sentences:

Stealing motor cycle - 9 January 2001 - 6 months Imprisonment

Stealing security camera - 6 February 2001 - 2 months imprisonment

Stealing two security cameras - 20 June 2001 - 3 months imprisonment

Damaging a camera - 20 June 2001 - 1 month imprisonment

19 These sentences were made cumulative upon the sentences for aggravated armed robbery and assault occasioning bodily harm so that the total sentence imposed on the respondent was an aggregate of 3-1/2 years imprisonment. The respondent was made eligible for parole. It appears that in re-sentencing the respondent, the Judge and counsel overlooked a conviction of burglary in company which occurred as the precursor to stealing the motor cycle which was inside the burgled premises. The respondent has not been sentenced and it is accepted by both sides that he should now be sentenced by this Court for the offence. Mr Hall, for the respondent, argues that, consistently with the other sentences, the sentence should be one of 12 months imprisonment to be served concurrently. Mr Dempster, for the Crown, argues that the omission to sentence for that offence is a further factor which reflects the overall inadequacy of the sentences.

20 I propose to deal with the ground relating to the aggravated armed robbery and assault occasioning bodily harm (indictment 89/2002) first. That ground reads:

"2. The learned sentencing Judge erred in imposing an individual sentences, which were manifestly inadequate in all the circumstances of the offences.

PARTICULARS

The aggregate sentence failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed, including:

(i) the deliberate use of capsicum spray as a weapon to assist the Respondent in committing the robbery the subject of Count 1 on the Supreme Court of Western Australia indictment no. 89 of 2002;

(ii) the bodily harm suffered by the complainant the subject of Count 2 on the Supreme Court of Western Australia indictment no. 89 of 2002; ..."

21 As the grounds were developed in argument, the principal submission on behalf of the Crown in respect of the armed robbery was that the sentence of 2-1/2 years was manifestly inadequate, that is, that the error was reflected in the actual sentence. As Mr Dempster put the issue:

"It's not a question of leniency but inadequacy."

22 Mr Hall notes the Court's power to dismiss Crown appeals despite inadequacy of sentence. He points specifically to the application of the totality principle. In my view the totality principle has no application to the sentence for armed robbery and assault occasioning bodily harm, although the principle merits consideration with respect to the other sentences imposed at the same time.

23 The role of a Court of Criminal Appeal in respect of Crown appeals against sentence has been examined by the High Court recently in a number of cases: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Pearce v The Queen (1998) 194 CLR 610, Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233 and in this Court recently in R v Black [2002] WASCA 26. In Dinsdale, Gleeson CJ and Hayne J in a joint judgment re-stated the fundamental propositions at pars 3 and 4. Kirby J at par 65 reminded Courts of Criminal Appeal that disturbance of the sentencing Judge's disposition requires a careful indication of the error that has been made warranting that course.

24 After reciting the essential facts for the purposes of sentence, Anderson J said:

"There is little that can be said in mitigation of this offence. It was an aggressive and determined act of theft in which a weapon was used and bodily harm was done to the female person attempting to apprehend you. I accept that it is a fast-track plea of guilty and for that you are entitled to some leniency, although of course this was a case in which you were caught in the commission of the crime itself; there was really no alternative than to enter a plea, but still the plea has facilitated the course of justice and for that you will get a sentence discount."

25 By these remarks, I assume the Judge concluded there was nothing out of the ordinary which would take the circumstances of the offence outside the range of sentences commonly imposed for armed robbery.

26 The Judge noted the personal particulars of the respondent and accepted that the respondent had suffered an episode of sexual abuse when he was 9 or 10 years old and that this must have been very distressing and traumatising to the respondent.

"It is unfortunately common these days to find in this kind of case, your kind of case, a background of substance abuse, and this case is no exception. You started taking methylamphetamines at the age of 15 and you have been a heavy user of that drug ever since. You claim that at the time of the commission of the offences for which you are now being dealt you had been using for 8 days and had had no sleep at all in that time. You left school at the age of 15 without completing year 10, and there's a history of about 2 years' labouring work but no other employment history that I can pick up.

I am told that at the time of the commission of the offence you were to commence an electrical apprenticeship with a family friend. However, I think the prospect that you might have made any progress in that field must have been pretty bleak in the light of your heavy substance abuse at that time."

"... the sentence which I impose for the armed robbery after taking account of your plea of guilty and your relatively young age is 2 years and 6 months' imprisonment ..."

29 The Judge also referred to the respondent's prior record, counting a total of 21 prior offences including the serious matters also before him in respect of the ISOs and s 32 of the Sentencing Act.

30 Mr Hall acknowledges that the Judge did not expressly explain why he imposed a sentence so far beyond the ordinary range, but argues that the necessary explanation is that of compassion. He asserts that error of the type required for interference with the sentence by this Court has not been demonstrated.

31 It has been consistently held by this Court that the range of sentences commonly imposed for a single count of armed robbery is between 6 and 9 years: Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521; White J at 522, confirmed in Taylor v The Queen, unreported; SCt of WA; Library No 980152; 6 April 1998.

32 It has also been accepted both in Miles v The Queen and Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 and numerous cases, that a discount of between 25 to 35 per cent for a fast-track plea of guilty is ordinarily appropriate.

33 In my opinion the sentences of 2-1/2 years and 6 months imprisonment concurrent for aggravated armed robbery and assault occasioning bodily harm manifests error in the following way.

34 The offences were very serious. The capsicum spray was carried to use if necessary to avoid capture and it was so used. Significant harm was done to the loss prevention officer. Armed robberies are all too common and require strong sanction. Furthermore, the respondent, in committing these offences, was in breach of two ISOs.

35 Although the Judge acknowledged the seriousness of the offences in his remarks, the sentences actually imposed manifestly failed to reflect that seriousness. They were well below the range of sentences commonly imposed without explanation as to why the Judge had selected such sentences. Nor can I discern any reason from the facts of the offences and the material advanced in mitigation, including the letter written by the respondent to the Judge, as to why the sentences were so low.

36 I hold that the Crown has made out this ground of appeal and the respondent should be re-sentenced. I would set aside the sentences imposed for aggravated armed robbery and assault occasioning bodily harm. Acknowledging the fast-track plea of guilty, the youth of the respondent and the other matters of mitigation, I would impose the following sentences:

• Assault occasioning bodily harm - 9 months concurrent, to be served concurrently with the sentence for armed robbery.

37 The other grounds of appeal attack the sentences imposed for offences which had been the subject of the ISOs and also the matters which were before the Court pursuant to the Sentencing Act s 32.

38 I would not interfere with the length of these sentences or the order for concurrency inter se for a number of reasons. Firstly, the Crown has failed to establish certain important facts such as the value of property stolen. Although ground 2(iii) pleads that the sentences for the burglaries was inadequate due to the value of the property stolen, Mr Dempster concedes there was no evidence of the value placed before the sentencing Judge. In respect of one burglary, the respondent was apprehended at the scene.

39 Next, there is no evidence as to the respondent's performance or non-performance on the ISOs. I regard the respondent's performance or non-performance as a factor to be weighed. I am not prepared to draw any adverse inference in the absence of evidence. Finally, in respect of the burglary offences, the Crown did not provide this Court with any assistance as to the range of sentences commonly imposed for burglary of business premises. I have nevertheless examined a number of recent authorities.

40 In Wroblewski v The Queen, unreported; CCA SCt of WA; Library No 990135; 17 February 1999, Anderson JJ (Malcolm CJ and Pidgeon J concurring) held that a starting point of not more than 2-1/2 years was appropriate for a burglary of commercial premises. He said:

"As to the gravity of the offence, this was not a domestic burglary but a burglary of commercial premises not involving violence or threats to or intimidation of any person. There was minor damage to the premises. The property stolen was valued at only $5,750 and all but $30 was recovered. There seems to have been little professional planning, either in the execution of the burglary or in the escape. The offence was not accompanied by vandalism. It was a burglary at the lower end of the range of seriousness and, even allowing for the fact that sentences for burglary have been firmed up since a range of 12 to 18 months was mentioned in Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989, I am of the opinion that a starting-point of no more than 2-1/2 years was appropriate."

41 This decision was discussed in Hayward v The Queen [2000] WASCA 237 where the Court held that a sentence of 2-1/2 years imprisonment for an aggravated burglary of commercial premises was not manifestly excessive in the circumstances. In the course of his judgment, Ipp J (Wallwork and Parker JJ concurring) noted that the applicant relied on Wroblewski for a submission that a starting point of 3 years for the particular offence resulted in a manifestly excessive sentence. Ipp J said at par [11]:

"As I understand Anderson J's reasons in Wroblewski, the starting point of 2 1/2 years assumed by his Honour was intended to be no more than an expression of opinion that 2-1/2 years' imprisonment was an appropriate starting point in the particular circumstances of that case."

Ipp J accepted that the sentence of 3 years was at the high end of the scale but was not persuaded that the sentence was wrong.

42 In Hintz v The Queen [2002] WASCA 38, Anderson J (Wallwork and Steytler JJ concurring) held that a sentence of 4 years with parole eligibility for an offender with a bad record, who conducted a ram-raid, resulting in the theft of $24,000 worth of cigarettes, was not excessive.

43 These authorities do not support the proposition by the Crown that a sentence of 12 months imprisonment for an offence committed by a 19 or 20 year old on commercial premises is so inadequate as to manifest error. There is nothing intrinsic in the facts of either burglary to suggest that a sentence of 12 months imprisonment was manifestly inadequate.

44 The Judge imposed concurrent sentences for those other offences not part of Supreme Court indictment 89/2002, but ordered that they be served cumulatively on the sentence for aggravated armed robbery and assault occasioning bodily harm (indictment 89/2002). In my opinion he was right to make these sentences cumulative. They were committed at different times and in different circumstances. I infer that he did not further accumulate the sentences one with the other because of an application of the totality principle.

45 It is generally appropriate to apply a degree of moderation in respect of a re-sentence arising from a successful Crown appeal. Further, I acknowledge and take account of the fact that the respondent is still young and that this sentence represents his first sentence of imprisonment. I would therefore vary the order to the extent of making those other sentences concurrent with the sentence of 5 years in respect of the aggravated armed robbery and assault occasioning bodily harm (indictment 89/2002).

46 There remains the offence which was overlooked on District Court indictment 428/2001. The count reads:

(1) On or about 9 January 2001 at Kenwick, JAMES TREVA DOUGLAS VALENTINE, entered the place of KEITH RICHARDSON trading as KEIRIC INDUSTRIES without his consent, with intent to commit an offence therein.

AND THAT JAMES TREVA DOUGLAS VALENTINE was in company with another."

47 I would impose a sentence of 12 months imprisonment to be served concurrently with all other sentences. I do not interfere with the order for

eligibility for parole or the order that the sentences take effect from 15 March 2002.

48 In respect of Supreme Court indictment 89/2002, the sentences of 2-1/2 years for count 1 and 6 months to be served concurrently for count 2 be set aside. In lieu there be a sentence of 5 years imprisonment in respect of count 1 and 9 months imprisonment in respect of count 2. I direct that those sentences be served concurrently.

49 The respondent be sentenced to a period of 12 months imprisonment in respect of count 1 of District Court indictment no 428/2001. That sentence and all other sentences imposed be served concurrently with each other and concurrently with the sentences imposed in respect of Supreme Court indictment 89/2002.

50 I confirm that there is a parole eligibility order in respect of all sentences and that each sentence commence on 15 March 2002.

51 ROLFE AJ: I have had the advantage of reading in draft the reasons of McKechnie J in this matter. I respectfully agree with them and with the orders his Honour proposes.

52 I would, however, wish to add several comments about the offences of armed robbery and assault occasioning bodily harm, which, as has been recognised, are serious offences.

53 Mr Hall did not dispute that the range of sentences commonly imposed for a single count of armed robbery in this Court is between 6 and 9 years, and he agreed that the sentence of 2-1/2 years was "light" and "lenient". In those circumstances, as McKechnie J has noted, his only explanation for the sentence was compassion.

54 I cannot accept his submission in the light of what Anderson J said, which is set out in McKechnie J's reasons at par 24. Far from supporting any theory of compassion, those remarks had the significance McKechnie J has attributed to them.

55 The Crown, on an appeal such as this, must show that the discretionary sentencing exercise is vitiated by error. It may be possible to identify specific error or it may be that the result is such that it demonstrates that it could only have been reached by error. In the present case, the error, in my opinion, falls within the latter category.

56 A brief recital of the facts helps to show this. They established that the respondent:

(a) set out with the intention of stealing items from the store, with a view, no doubt, to selling them for financial gain;

(b) armed himself with a can of capsicum spray to use in the event that he was sought to be apprehended, Anderson J rejecting his explanation for having the spray;

(d) when approached by security enforcement officers used the spray with the serious consequences to which McKechnie J has referred. But for the intervention of the second officer, he may well have escaped.

57 Those were serious offences evidencing nothing to justify a "light" and "lenient" sentence, falling well below the range commonly imposed. The sentence of 2-1/2 years, being inexplicable on the ground of compassion, is, therefore, vitiated by at least unexplained error.

58 The offence of armed robbery clearly called for a sentence beyond the minimum of 6 years. In my opinion, a period of 7 years imprisonment would both reflect the seriousness of the crime and act as a deterrent. From this period, the respondent is, in my view, entitled to a discount of 25 per cent, reducing the term to 5 years and 3 months. Thus the period proposed by McKechnie J is wholly appropriate.