ROBINSON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 45 (27 February 2007)

Court of Appeal (WA)|2007-02-27|Before: Wheeler JA

1 WHEELER JA: These are applications for leave to appeal against conviction and against sentence. Because it seemed to me, on a preliminary view, that neither had a reasonable prospect of success, I heard submissions from the appellant's counsel on 16 February 2007. For some reason, counsel did not have available copies of unreported decisions upon which he wished to rely, so I adjourned the proceeding, after hearing submissions, so that I could read them. It is necessary to emphasise, once again, that an appellant's case should be drafted in such a way that (save perhaps in all but the most lengthy or complex of matters) an application is able to be dealt with on the papers. If a reasonable prospect of success appears from the papers, it will not be necessary for any hearing to take place prior to a grant of leave. Where a leave application is listed for hearing therefore, counsel is on notice that the written case is not persuasive, and should be properly prepared.

2 I turn first to the appeal against conviction. This was a very simple case. Indeed, it was really a one issue case. The only question for the jury was whether the appellant was a participant in the aggravated armed robbery which had undoubtedly occurred, or merely an unconnected bystander.

3 The principal evidence against the appellant was that of a Mr Jovanov. He was at the front of his house, mowing the lawn, when he heard the complainant crying out: "Help, help". He turned to look and noticed a man and a woman running after the complainant. On his account, the complainant arrived at his neighbour's gate and tried to open the gate, but "they" pushed her. He clarified by saying that the man had pushed her. The woman hit the complainant on the head with something that looked like a baton, and the man grabbed the complainant's handbag. The complainant fell to the ground and the man and the woman ran away.

4 There was evidence from a number of witnesses who had chased the woman holding the baton. It was clear that that woman was the appellant. One of the witnesses chasing her caught up with her at a nearby shopping centre. It was clear that she had been holding the baton at one stage, and that she had thrown it into or near a bin in the shopping centre. She admitted having been at one time in possession of the baton. It was also not in dispute that the complainant had been struck on the head. A number of witnesses described her complaining of pain in her head immediately afterwards, and there was a medical report describing tenderness and swelling.

5 The appellant's account was that she did not know the male person involved, but had met him just prior to the incident when she asked him for a cigarette and they started chatting. She was walking along the street with him, and had not even noticed the complainant, when suddenly he had "sort of done like a jog skip across the road". The complainant then ran to the front of a house and the appellant had taken a couple of steps, but, so far as one can tell from the transcript (in which the appellant is plainly indicating something on a map or a plan), she had remained some little distance away. Both the complainant and the man had gone through the gate and then the man had run out and handed a "stick" to her. She saw a man charging towards her and screaming (apparently Mr Jovanov) and she simply turned and ran.

6 It is alleged by the sole ground of appeal against conviction that his Honour erred in failing to provide the jury with an accurate direction as to culpability pursuant to s 7 of the Criminal Code (WA). The portions of which the appellant complains are the following:

"Now, we know that it was the male who took the bag so it's important therefore that I tell you that if - let's assume that the state can prove beyond reasonable doubt that the male and this female were together in this robbery. That's the state case. I know she denies it but just assume for the moment that that's what you conclude. The fact that only one of two people involved in a robbery actually does the stealing, or indeed the fact that only one actually uses the violence, doesn't mean that the other is not guilty. If two people form a plan to rob something - and they don't have to sit down and plan it over a breakfast table, premeditated, but if they form a plan at any stage to go and rob someone - and that's the state's case here. They decided to go and rob this girl on the day - then if in furtherance of that plan the person is chased and robbed in the sense that the bag is stolen and hit, then each is equally liable. If you're satisfied beyond reasonable doubt that there was a robbery and if you're satisfied beyond reasonable doubt both the unknown male and this accused were there at the gate when the events occurred, then it wouldn't matter who exactly took the bag, or indeed who exactly hit with the baton. They would both be equally responsible, both equally liable at law."

The appellant's complaint is in relation to the portion of the direction which is italicised.

7 His Honour went on immediately after the passage quoted to give to the jury the example of a complex robbery where one person keeps guard, one takes a shotgun and perhaps shoots a teller, and another waits outside in a car to enable the getaway. His Honour explained that, in those circumstances, everyone involved was responsible and said to the jury:

"... so you can see how the law doesn't allow people to get away just because they say 'Well, I didn't do it. I didn't shoot anybody. I was just part of it but I didn't do anything.' People who are involved in joint action like this are equally criminally responsible. That's the position here."

Again, the portion italicised is the subject of complaint.

8 His Honour then went on to explain to the jury the elements of robbery and to explain to the jury the various circumstances of aggravation which were alleged, and what they legally entailed. Having done so, his Honour said:

"But the question remains: Did this accused do what she is alleged to have done?"

9 He then reviewed in some detail the most critical portions of the evidence. He pointed out that the State relied primarily on the evidence of Mr Jovanov. He explained to the jury why the State asserted that that evidence was reliable. His Honour then said:

"Now, the defence case. Mr Ryan [counsel for the appellant] says that the main question - or it's the only question really. The only question is did the accused hit [the complainant] on the head with that baton?"

10 His Honour then summarised the defence contentions in relation to the evidence. It is submitted in relation to the direction I have described, that his Honour omitted to direct the jury that the appellant had to actively participate in the offending before she could be regarded as a party to the offence. The submission goes so far as to contend that his Honour's direction removed from the jury "the key factual issue of whether the appellant actively participated and intentionally assisted in the offending". It is submitted that the jury might well have considered that if the appellant was present at a robbery, she should be convicted.

11 I accept that his Honour's direction would have been inadequate to a case in which there was any complexity in the issues, or any real difficulty in applying the concept of a party to the facts alleged. However, it seems to be very plain, when his Honour's direction is considered as a whole, that it was clear that only if the jury found that the appellant had actively participated in the robbery in the way alleged - that is, by striking the complainant with the baton - could she be convicted. The purpose of the passages about which the appellant complains was, clearly, to explain to the jury that it was not necessary for the appellant personally to commit all of the acts constituting the robbery before she could be convicted; in particular, it was to explain how it was that she could be convicted notwithstanding that she had not personally taken the handbag.

12 It should be noted that the passage of which the appellant complains is clearly said by his Honour to be subject to the assumption that the State could prove beyond reasonable doubt that the appellant and the male were "together in this robbery". In other portions of the direction, it was made plain that that was a question for the jury, and the critical question in the case.

13 It seems to me, against the background of the evidence which I have described, that his Honour's reference to the unknown male and the appellant being "there at the gate when the events occurred" was a shorthand way of referring to the critical contested facts. The State case was that the appellant and the male had been at the gate behaving in the way described by Mr Jovanov, while the appellant's case was that the male alone had moved away from her, towards the gate, and had there struck, and stolen from, the complainant. Again, his Honour's reference to people "who are involved in joint action like this" is plainly a reference to the joint action which was the State's case.

14 The appellant's complaint, it seems to me, is not so much about a misstatement of s 7, as about an absence from it of certain matters which it is said his Honour should have covered, particularly in relation to the need for active participation. A trial Judge is, however, only required to deal with so much of the law as is necessary to assist the jury in performing their task. In the present case, the issues for the jury were very clear. There was simply no need for his Honour to add anything to the direction which he gave. In my view, the contention that his Honour's direction may have had the effect that the jury believed that, as a matter of law, the appellant should be convicted even if she was an innocent and non-participating bystander, has no reasonable prospect of success.

15 I would therefore refuse leave and dismiss the appeal.

16 Turning then to the appeal against sentence, his Honour had the benefit of a pre-sentence report and a psychological report. Those matters were canvassed with his Honour in some detail. The salient features, briefly summarised, were the following. The appellant was 22 years of age. She had no prior convictions for any offence. She was otherwise an "honest and decent" person. She was described as a vulnerable young woman suffering anxiety and depression at the relevant time, and was described as being at low risk of reoffending in a similar manner. She had been a recreational user of amphetamines and had also used alcohol, with some binge drinking. It was suggested that alcohol use had been a factor in her commission of this offence. Counsel submitted that she had found her time in custody between the date of her conviction and the date of her sentence (roughly 2½ months) very traumatic, and his Honour accepted that that would have been so. She had been a volunteer worker with elderly people.

17 His Honour outlined the circumstances of the offence and referred in some detail to the various matters which I have described above, which were personal to the appellant. It is not suggested he made any error in respect of any of those matters. His Honour then said this:

"Now the factors I must take into account in sentencing you are these: firstly, the gravity of this offence. Now, as the prosecutor has said, this is a very serious offence. It is punishable by life imprisonment which indicates how seriously parliament regards this offence. Armed robberies of this type are common in our community. The fact that the victim was injured requires a deterrent sentence. People must be entitled to expect to get off a bus and walk home in broad daylight without being attacked in the way in which this woman was.

I have mentioned all the matters personal to you, particularly your lack of prior convictions, but in imposing sentence in this case I need to take into account what is just punishment, the need for deterrent sentences for armed robbery, the prevalence of the offence of armed robbery; balanced against that, your prospect of rehabilitation and your antecedents, which means your good character.

In sentencing you I am conscious of all the options which are open to me, but in my view - please stand while I indicate my conclusion - there is only one sentence which can be imposed and that is a sentence of imprisonment, and in my view it must be served immediately. This offence is too serious to allow of any other disposition. I have looked carefully at the question of whether the sentence of imprisonment could be suspended but I consider the offence too serious. The victim suffered what was clearly bodily harm and in circumstances where she was hit by you on the head with a potentially dangerous weapon, but the sentence that I am about to pronounce is a merciful one in the circumstances."

18 After allowing for the transitional provisions, his Honour sentenced the appellant to 3 years' imprisonment and ordered that she be eligible for parole. The sentence was backdated to the first date on which the appellant had been taken into custody.

19 The sole ground of appeal is that his Honour the learned sentencing Judge erred in law "by failing to adequately consider the option of a suspended term of imprisonment". As developed in submissions, it is plain that it is not suggested that his Honour made any error of law in the way in which he went about considering that option. He plainly did consider it, and it was clear that he considered that all of the factors to which he had referred - that is, the circumstances of the offence, and all factors personal to the appellant - were relevant to his decision as to whether or not a suspended term of imprisonment should be imposed. The submission therefore boils down to a submission that a suspended term was the only appropriate sentencing option in the circumstances of this case. That submission cannot, in my view, be made out.

20 The facts of this case have some similarity with those in The State of Western Australia v Wells [2005] WASCA 23, a case in which the Court made certain observations about the circumstances in which a non-custodial sentence, or a sentence other than a term of imprisonment to be served immediately, will be appropriate in respect of an aggravated robbery. In that case, the respondent to the Crown appeal had been convicted on his own confession of a count of armed robbery with violence in company. He was but 18 years of age. He had a very minor record. His offending was attributed to alcohol use. His father was dead and his mother had the chaotic lifestyle of an alcoholic. He had some employment history and positive short-term goals, and was remorseful. He had been involved in an attack, in company with three others, on a young man who had been in a pizza bar purchasing a pizza. Others had first assaulted the complainant by kicking him, but the respondent's role in that case was to take a wooden fence picket and to strike the complainant with considerable force. The similarities with the present case are that the offence was carried out with only minor premeditation and that Wells was not the initiator of the plan, but a willing participant in it, and that Wells' participation involved striking with a stick. Other features of Wells' case were more serious, particularly the persistence of the attack and the fact that there were three offenders in company. In reasons with which Steytler P and Roberts-Smith JA agreed, I said the following:

"10 It is, of course, open to a sentencing Judge to impose a non-custodial sentence even in respect of an offence of armed robbery. In 1999, statistics indicated that a non-custodial sentence was imposed in about 7 to 10 per cent of such cases: R v Shaharuddin [1999] WASCA 229 at [13] per Malcolm CJ. More recently, it appears that by 2002 approximately 20 per cent of robberies received a non-custodial disposition: UWA Crime Research Centre 'Crime and Justice Statistics for Western Australia - 2002', table VII page 73. However, it should be noted that it is not possible in that figure to distinguish between the various categories of robberies. One would expect a non-custodial disposition in the case of aggravated armed robbery to be relatively rare.

In the case of an armed robbery in company, where an offender personally attacks the victim with a weapon in a persistent manner, only a sentence of immediate imprisonment would be appropriate, in the absence of very exceptional circumstances. While the personal circumstances of the respondent - and particularly his youth - were significantly mitigating, they cannot, in my view, be said to be so exceptional as to justify the imposition of a non-custodial sentence. It is my view that his Honour fell into error in imposing a non-custodial disposition."

21 Wells is but one case in a long line of authorities which are all to the effect that, in relation to armed robbery, a non-custodial disposition is exceptional and that, in relation to armed robbery where an offender personally uses a weapon, a sentence of immediate imprisonment is generally the only appropriate disposition.

22 In the present case, it is true that the appellant had very good antecedents. As against that, however, she had personally struck the complainant, on the head, with a steel baton. In addition, although it was not his Honour's finding that she lacked remorse, there do not appear to have been any indications of any significant degree of remorse. It is, therefore, my view that any attempt to argue that the exceptional disposition of a suspended sentence was the only appropriate disposition in this case, is doomed to failure.

23 For completeness, I should mention two cases to which the appellant's counsel referred. One was Watson v The Queen [2000] WASCA 8. That was a case in which, on appeal, the Court of Criminal Appeal ordered to be suspended for a period of 2 years the term of imprisonment which had been imposed by the sentencing Judge in relation to, what was, on its face, a very serious armed robbery in company. However, the facts were quite extraordinary. The appellant was only just 18 years of age at the time of the offence. The appellant had become involved in the robbery when he had agreed with the co-offenders to drive them to the house of friends who owed them money. There is nothing to suggest that initially he knew that a robbery was contemplated. However, the others had then produced a number of weapons, including a double-barrelled shotgun, which was loaded. The appellant had not known whether it was loaded or not, never having had anything previously to do with guns. Although he said he volunteered to take the shotgun, and although he participated in the robbery by pointing the shotgun at a person's head at close range, his explanation was that he had done so because he thought that there was a real possibility that one of the others might use the shotgun to shoot someone. He did not see how he could remove himself from the plan, being somewhat intimidated by the other offenders, and he was concerned that if someone was shot, he would be an accomplice to that. He therefore took the gun, trying to make what he described as "the best of a worst situation". The appellant gained nothing from the offence. He had no criminal record. The Court of Criminal Appeal obviously took the view that his decision, although not the result of the sort of extraordinary emergency which might result in a defence, was a decision made by a panicked and immature young man who honestly believed that he was preventing a bad situation from deteriorating into even more serious violence.

24 Miller v The Queen [2001] WASCA 426 was a case involving a quite serious robbery with violence whilst armed and in company. The appellant and six others had formed a plan to go to Burswood Park to assault gay men and possibly rob them. A number were carrying weapons, and the appellant was carrying what was referred to as a wooden bat, being a round piece of wood about 60 centimetres in length and of a thickness rather similar to the baton in this case. The appellant went with the others to the park. Once there, however, the appellant and two others did not form part of the group who confronted, surrounded, assaulted and robbed the complainants. The evidence clearly indicated that the appellant and one of the others did not at any stage participate in the actual physical assaults on the complainants, but remained in their original locations, some little distance away, watching. The appellant assisted in hiding two of the weapons after the robbery. The appellant was one of those interviewed by police on the following day and admitted his involvement. Although the objective circumstances of the offending were very serious, then, the most important points so far as the Court of Criminal Appeal were concerned were that the appellant's participation was, at its highest, no more than encouragement of the principal offenders by his presence, that he was 18 years of age and had no antecedent record, and that he had promptly admitted and regretted his involvement. In the 12 months following the offences, the pre-sentence report had suggested that he had made significant changes in his behaviour. The obvious and significant differences between his case and that of the present appellant are that she was some years older, had not promptly admitted and regretted her involvement, and had actively participated in the robbery by being the person who had used the most significant violence. It is plain that neither of Watson nor Miller provide assistance to the appellant in the present case.

25 I would refuse leave in relation to the ground of appeal and would, therefore, dismiss the appeal.

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