Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Armed robbery - Young offender - No relevant record - Exceptional circumstances

Sentencing Act 1995 (WA)

2 PULLIN JA: This is an appeal against sentence. The appellant was indicted on a charge that on 27 December 2007 at Carey Park he stole with violence a case of Jim Beam bourbon and a packet of cigarettes and that he was armed with an offensive weapon, namely a knife, contrary to s 392 of the Criminal Code.

3 The appellant pleaded guilty at the earliest opportunity and he was sentenced by the sentencing judge to a term of immediate imprisonment of 18 months to commence on 11 April 2008. He was made eligible for parole.

4 The facts found by the trial judge in relation to the offence were as follows. At 9.50 am on 27 December 2007, the appellant attended at a liquor store in Carey Park. He selected a carton of Jim Beam bourbon and cola cans and placed them on the counter before asking for a packet of cigarettes. When the shop assistant placed the cigarettes on the counter, the appellant said, 'These are free. I have had a bad week and I don't want to do this. I'm not going to hurt anyone'. He then lifted his shirt to show a 15 cm knife with a brown handle hidden in his pants on the left hip. He extracted the knife and rested it on the counter. The manager of the store, who was also behind the counter, said 'Just take it'. The appellant then put the knife back in his pants, picked up the carton and the cigarettes and left the store. In the evening on the same day the police attended at the appellant's address in Bunbury for reasons which will be mentioned later. He was identified as a person of interest concerning the incident at the liquor store. The police located at his premises, a knife, clothing and alcohol. Shortly afterwards he was interviewed on video on which occasion he made full admissions and he was arrested and the charge was then preferred.

5 The trial judge had before him a pre-sentence report and a psychological report. He also had before him medical reports and a report from the South West Community Drug Service team concerning the appellant's involvement with that team. He also had before him a number of favourable references.

6 It is relevant that there had been some turmoil in the appellant's life shortly before the offence was committed. On 16 December 2007, the appellant and his girlfriend of some 20 months, separated, leaving him, according to the psychological report 'teary' and 'angry inside'. Then a few days later, in the week before Christmas, he had a motor vehicle

accident when he was travelling alone in his car from Perth to Bunbury. This resulted in significant damage to his car, a minor head injury and mild concussion. The appellant had a previous problem with alcohol, details of which and details of the treatment for which, will be referred to below, but he had until the day before the offence been abstinent for about three months. On the day before the offence he was with friends and began drinking, apparently being motivated to do so by the recent events in his life. He drank for most of the day and into the evening and told the psychologist that he could not remember arriving home. On the morning of the offence, he awoke feeling depressed and consumed some more alcohol, took several Valium and Panadol tablets which he said to the psychologist, was a lame suicide attempt.

7 He did not have his wallet and wanting further alcohol, he took a steak knife from his kitchen and went on his skateboard to the liquor store where the offence was committed.

8 After the offence was committed, he returned to his house and consumed the stolen alcohol. His father arrived and the appellant threatened self-harm in his father's presence. As a result, his father rang the police and when they attended, they recognised that the appellant was the person who had committed the offence at the liquor store and he was arrested.

9 The trial judge noted that the appellant was 20 years of age; that he was born in Perth and was an only child. His parents separated when he was four years old and this led to an unsettled childhood. The appellant's mother remarried and moved to Bunbury and the appellant moved with her.

10 The appellant completed Year 12 and at 17 years of age, went on to commence a Diploma of Tourism which he did not complete. He obtained work in a variety of semi-skilled jobs. At some stage he went to America with his father to see family members and upon his return he again found employment and worked until his motor vehicle accident. The appellant has not worked since the accident. At the time of sentencing he was in receipt of a youth allowance of $310 a fortnight from Centrelink. He owned a house and was struggling to keep up with mortgage payments which he did with the assistance of his family.

11 The appellant's physical health is sound but he had been diagnosed with anxiety and depression and was taking medication for those conditions. The appellant acknowledged that he had a problem associated with alcohol consumption and that he had received counselling to address this issue. He has experimented with other drugs. The appellant's problem with alcohol began with recreational use when he was about 15 years old and he commenced a heavy consumption of alcohol while in Bali when he was about 18 years old. Upon his return to Perth from Bali, he continued drinking heavily on the weekends, becoming inebriated at least once a week. However, he recognised that he had an alcohol problem and he voluntarily entered a rehabilitation clinic. He admitted to the psychologist that he had used cannabis until he was about 15 years old, but claimed that he had only used the substance twice since he was about 16 years of age. He admitted to experimental use of amphetamines, ecstasy and cocaine, none of which he said he continued to use.

12 The sentencing judge had before him a report from Dr Burgar, who expressed the opinion that he had considerable insight into his problems and had sought treatment with her since 2006 for both the alcohol problem and for his anxiety disorder. After his arrest and admission to bail, he again saw Dr Burgar who reported that he was committed to stopping all alcohol intake and was taking medication to treat his chronic anxiety. Her report of 29 January 2008 also revealed that he was attending counselling at the South West Community Drug Service team and she had referred him to a psychiatrist to assess whether he was on the optimal treatment for his chronic anxiety disorder.

13 A further report dated 29 March 2008 from Dr Burgar reported that the appellant had commenced Antabuse medication which is a strong deterrent to alcohol consumption. This medication works by creating a chemical reaction with alcohol so that the consumption of alcohol makes the person on the medication feel unwell. Dr Burgar reported that this had been very effective and that the appellant had not consumed any alcohol since commencing Antabuse.

14 Also before his Honour was a report from the South West Community Drug Service team, showing that the appellant had attended at the Service two months before the offence was committed. He was admitted to the inpatient withdrawal unit for four days and then had subsequently attended on 29 October, 5 November, 16 November, 23 November and 21 December 2007. There had also been seven telephone contacts with the appellant during this episode. The report from the team confirmed that he had been abstinent from alcohol until he had relapsed after the separation from his girlfriend and the car accident. The report also reported that work had been done in the sessions, including identifying triggers to alcohol use and developing strategies to address them.

15 The psychologist's report stated that it was unlikely that the appellant would receive appropriate personal counselling in gaol.

16 The reference letters spoke well of the appellant and suggested that the offence was uncharacteristic conduct. He was described by an employer as reliable, hardworking and conscientious.

17 The appellant had previously committed some traffic offences and alcohol-related driving offences. He also had a conviction for breach of a violence restraining order but there were no relevant previous convictions. His family is supportive.

18 The sentencing judge correctly directed himself as to the sentencing options available to him by reference to provisions of the Sentencing Act 1995 (WA) and noted authorities indicating that before the transitional provisions, sentences of 6 to 9 years' of immediate imprisonment were commonly imposed for a single offence of armed robbery. The trial judge considered that taking into account the aggravating and mitigating factors, that a term of 2 years 4 months would have been imposed under the old provisions and that taking into account the transitional provisions, he had in mind a sentence of 1 year 6 months. The trial judge then turned his mind to the question of whether a suspended sentence should be imposed and then concluded:

The cases put to me by counsel certainly weigh in favour of the notion that in the case of a young offender of your background there are persuasive reasons why the term proposed should be suspended.

This has certainly caused me difficulty in determining where the matter should come to rest. However, in the present case, in the end I cannot overlook the fact that you were armed, the property was stolen from a vulnerable shopkeeper, and that shopkeeper has been severely affected by what occurred. In my mind the seriousness of the offence and the need for general and personal deterrence weighs against suspension of the proposed term.

As a result a sentence of 18 months' immediate imprisonment was imposed and the appellant was made eligible for parole.

19 There is one ground of appeal which is in effect that the sentence was manifestly excessive because in the exceptional circumstances of this case, a suspended sentence was a sentencing option open and that the wrong sentence was therefore imposed. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

20 In R v Shaharuddin [1999] WASCA 229 [13] Malcolm CJ said:

It has been recognised that in some cases it is in the best interests of the community not to imprison a particular offender, even for a serious offence. In the case of armed robbery statistics published by the Crime Research Centre indicate that, while imprisonment is imposed in 90-93 per cent of armed robbery cases, a non-custodial sentence has been imposed in 7-10 per cent of cases. In Thomson v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998 at 10 Malcolm CJ, Wallwork and Murray JJ noted in their joint judgment that there had been 20 examples of armed robbery offences dealt with in the Supreme Court between 1994 and 1998 in which persons aged between 18 and 28 who had committed the offence of armed robbery had not been imprisoned. Commenting on these cases, the Court said, at 10:

'We note that these were all exceptional cases, as more than 90 per cent of armed robberies attract a sentence of imprisonment.'

21 In that case the sentencing judge had imposed a non-custodial sentence. The State appealed. Malcolm CJ dismissed the appeal and White J agreed. Ipp J would have allowed the appeal.

22 There were some similarities between Shaharuddin's case and this case in that both offences were robberies involving a knife; in both cases the offenders had was no significant criminal record; their families remained supportive; both offenders had enjoyed stable employment for periods of time; there was a problem for both offenders with alcohol and drugs; both offenders had cooperated with the police and assisted in the speedy disposition of the offence. However, it is important to note that Shaharuddin's case was a State appeal which were then governed by principles which were set out in R v Grein [1989] WAR 178, 179 - 180 and R v Tait (1979) 46 FLR 386, 387 - 388 to which the court referred. Applying those principles, Malcolm CJ and White J dismissed the appeal.

23 The case of Miles v The Queen (1997) 17 WAR 518 stated that the range of sentences commonly imposed for a single offence of armed robbery would be from 6 to 9 years. The Court of Appeal repeated that view in The State of Western Australia v Wells [2005] WASCA 23 [4], where Wheeler JA explained (Steytler P and Roberts-Smith JA agreeing) that the range is now 4 to 6 years because of the transitional provisions. That is the range which would generally be imposed without regard being paid to matters of mitigation. A sentence would fall to be reduced in the case of a plea of guilty under the fast-track system and could be reduced by reason of other relevant mitigating circumstances, although generally greater weight is given to the requirement of deterrence, and less to personal circumstances in cases of armed robbery. In Robinson v The State of Western Australia [2007] WASCA 45, Wheeler JA said at [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.

24 The fact that in both cases the court said that immediate imprisonment was 'generally' the only appropriate disposition was a recognition that there may be cases involving exceptional circumstances and where a sentence other than immediate imprisonment may be appropriate. In Shaharuddin's case, the issue was whether in that case there were exceptional circumstances warranting a sentence other than immediate imprisonment. The majority considered that the circumstances were exceptional. Ipp J considered that they were not.

25 The question then is, whether the circumstances of this case were exceptional so that the sentence of suspended imprisonment was a disposition open in this case. The sentencing judge, after expressing reluctance, in effect came to the view that a sentence of suspended imprisonment was not open.

26 It is true that the case is borderline, but in my opinion the correct conclusion was that a sentence of suspended imprisonment was open because of the exceptional circumstances of this case. Those circumstances are as follows: the appellant was young, he was only 20 years old at the time of the offence; he had no relevant previous criminal record; he pleaded guilty at the earliest opportunity; he expressed remorse and empathy for the victim; the offence occurred under pressure of emotional upset aggravated by a bout of alcohol consumption triggered by the break-up with his girlfriend and the car accident; the offence was prompted by his desire to obtain alcohol; and he had acknowledged that alcohol consumption was a problem for him and which was a problem to be overcome. It is very unusual for a man of such a young age to voluntarily submit himself to a treatment programme in relation to alcohol consumption, but this is what the appellant had done. At the age of about 19 he had first seen Dr Burgar concerning his problems and then two months before the offence he had committed himself to treatment with the South West Community Drug Service team. Since the commission of the offence, he has continued treatment. The community would be very much better served by the appellant being given the opportunity to continue this treatment programme and to continue his treatment for his chronic anxiety syndrome.

27 All of those factors lead me to the conclusion that this was one of those exceptional cases which meant that a suspended sentence was a sentence which was open and that being the case, the learned sentencing judge erred when he concluded that the only sentencing option open was a sentence of immediate imprisonment.

28 The appeal should therefore be upheld. The sentence of immediate imprisonment should be set aside.

29 It then falls to this court to re-sentence the appellant. All of the factors which have been mentioned lead me to the conclusion that the appropriate disposition is to impose the sentence of 18 months' imprisonment with parole eligibility commencing on 11 April 2008 which should be suspended for 18 months subject to the standard obligations in s 83 of the Sentencing Act 1995 (WA) and subject to a program requirement under s 84A.