Criminal law and procedure - Sentencing - Applicant sentenced for armed robbery of a bank, aggravated burglary and three offences of unlawful detention - Sentence of 9 years' imprisonment - Whether adequate discount allowed for plea of guilty

Sentencing Act 1995 (WA), s 8(2), s 8(4)

Doherty v R, unreported; CCA SCt of WA; Library No 970518; 14 October 1997

El Ali v R, unreported; CCA SCt of WA; Library No 940506; 14 September 1994

Hellings v R, unreported; CCA SCt of WA; Library No 940440; 24 August 1994

R v Grein [1989] WAR 178

R v Law [1995] QCA 444; (1995) 84 A Crim R 142

R v Tait (1979) 46 FLR 386

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

The Queen v Benetto, unreported; CA SCt Q; 2 December 1997

The Queen v Cooms, unreported; CA SCt Q; 19 June 1998

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 2 April 2003, the applicant was convicted on his plea of guilty to one count of armed robbery committed on 21 January 2003, at the Bank of Western Australia Pty Ltd, when pretended to be armed with a dangerous weapon, namely a firearm. The maximum penalty for that offence is life imprisonment pursuant to s 392 of the Criminal Code.

2 The applicant was also convicted on his plea of guilty to an offence of aggravated burglary committed on the same day at a house at Rivervale, where he entered the place of a Ms Andrews without her consent, with intent to commit an offence therein, contrary to s 401(1) of the Criminal Code. There were three circumstances of aggravation: that he was armed with an offensive weapon, namely, a knife; that he unlawfully detained Ms Andrews; and that the place where the offence was committed was ordinarily used for human habitation. The maximum penalty for aggravated burglary is imprisonment for 20 years.

3 Finally, the applicant was convicted of four additional offences of unlawful detention of Ms Andrews, one Daniel John Blake, one Andrew Laurence Priest, and one Sean David O'Reilly, contrary to s 333 of the Criminal Code. These offences were committed in the house at Rivervale or elsewhere. The maximum penalty for each of those offences is imprisonment for 20 years, which indicates the seriousness with which Parliament has viewed such offences.

4 On 30 April 2003, Anderson J sentenced the applicant to imprisonment for 7 years for the armed robbery; 8 years and 6 months for the aggravated burglary; 3 years for the deprivation of liberty of Ms Andrews; and 2 years for the deprivation of liberty of each of Mr Blake, Mr Priest, and Mr O'Reilly. His Honour then considered and applied the totality principle by making a number of the sentences concurrent.

"Each of the sentences for deprivation of liberty will run concurrently with each other and concurrently with the sentence in respect of the bank robbery. The sentence for the aggravated burglary, however, will not commence to run until 6 months of the sentence with respect to the armed robbery of the bank has been served. The total aggregate sentence is therefore 9 years. I wish to make it clear that arriving at this sentence I have taken into account the fact that when you have completed serving the finite term of it you may have to resume serving the parole days which you owe to the Parole Board for previous breaches of parole.

As to parole, you have plainly demonstrated in the past that you are quite incapable of complying with the basic requirements of supervision in the community. Your very bad record whilst on parole and the serious nature of the offences which you have committed, coupled with the unfavourable pre-sentence reports, lead me to decline to make an order that you be eligible for parole. The sentence is therefore an aggregate of 9 years' imprisonment with no eligibility for parole."

6 The applicant seeks leave to appeal against the sentences so imposed on the single ground that the learned sentencing Judge failed to give weight or failed to give significant weight to the applicant's fast-track plea of guilty.

7 The facts as found by the learned sentencing Judge were as follows. As to the armed robbery, in the early afternoon of 21 January 2003, the applicant was recorded by security officers on video surveillance loitering around the Karrinyup shopping centre. At about 1.30 pm, the applicant entered the Karrinyup branch of BankWest, situated adjacent to the shopping centre complex. The applicant approached a female bank teller and handed her a note which indicated that he was committing a hold-up. He then demanded money from the teller, stating that he was armed with a gun. The teller notified the second female bank teller and activated the panic alarm button. The applicant demanded money from the second teller and was handed $4880 in banknotes.

8 The applicant then left the bank on foot, dropping all but $2300 of the money on the floor in his haste to leave the scene. He managed to catch a taxi to the Inglewood Hotel, arranging for the driver to return 45 minutes later and pick him up. When he was picked up, he asked the taxi driver to take him to Kewdale. While the taxi was in transit to Kewdale, it was stopped by a marked police van. The applicant jumped out and ran off. The police did not apprehend the applicant and none of the $2300 with which the applicant escaped was recovered.

9 As to the aggravated burglary and the first count of deprivation of liberty, which were counts 2 and 3 on the indictment, at about 4.30 pm on the same day that he had robbed the bank, the applicant broke into a house in Gladstone Road, Rivervale. There was a 21-year-old woman in the house. The applicant forced her to sit down and not move. After a time, he forced her to follow him into the kitchen where he took a kitchen knife, about 30 centimetres in length, and held it in his hand in a threatening manner.

10 For a period of approximately 3 hours, the applicant walked about the house, forcing the woman to follow him. Throughout this time he held the knife in his hand, occasionally placing it in his pocket. The applicant refused to allow the woman to leave or move around of her own free will. During this time, he boasted to her about the bank robbery he had committed earlier that day. Included in his peculiar actions was the act of handing her a quantity of cash and making her count it, which she did, fearing for her safety. This was the conduct which formed the basis of counts 2 and 3 on the indictment, namely, the aggravated burglary and the deprivation of liberty.

11 The second count of deprivation of liberty, which was count 4 on the indictment, occurred at about 7.30 pm on the evening of the same day when a young man, who also lived at the house, returned, entering it through the back door. He was met by the applicant and forced to sit down on a chair and remain in the premises. He did so, fearing for his own safety and that of the woman. He sat on a chair beside her. The applicant continued to boast to them both about the bank robbery.

12 The third and fourth counts of deprivation of liberty, being counts 5 and 6 on the indictment, occurred when, at about 7.45 pm that evening, while the applicant was still at the house, detaining the young woman and the young man, two other young men, who apparently also lived at the house, arrived. When they came in, the applicant forced them to sit down in the lounge room. The applicant held all four of them until about 9 pm when he asked whether one of them would drive him to the Belmont Tavern.

13 Two of them agreed to do so. In transit, the applicant used the mobile phone of one of them to speak to an associate and made an arrangement for him to collect the applicant at the tavern. When the car arrived at the tavern, the applicant simply walked away and was collected by a male and a female in another vehicle and went off with them.

14 Throughout what his Honour accurately described as "this ordeal" all four complainants, namely, the young woman and the three young men, feared for their own safety and for the safety of each other. In passing sentence, the learned Judge said:

"It was submitted on your behalf by your counsel that some kind of amicable relationship developed between you and your victims or captives by the time the two of them agreed to drive you to the tavern. If it did, which I consider to be highly unlikely, it was an irrational development and in no way mitigates the extreme serious nature of the offences which you had committed upon them."

15 His Honour noted that the applicant was arrested the following day, on 27 January, and taken to the Scarborough police station to participate in a video record of interview, but he declined to do so. In that context, his Honour remarked:

"I have read a pre-sentence report, including two psychological reports, with respect to you and all in all they are not very favourable. You are assessed as having a high risk of reoffending and as possessing little or no insight into the effect of your actions upon your victims on your victims. You justify your actions by blaming drugs and you tend to view yourself as a victim of what you think of as the system and society in general."

16 At the time of sentencing the applicant was aged 26 and the youngest of three male children. His parents had separated when he was 2 years of age. He remained living with his mother, who remarried while he was still an infant. His Honour noted that it was clear from the reports which he had obtained that the applicant had suffered difficulties during the time he was growing up and had suffered trauma as a child, including both physical and sexual abuse. The applicant also had a long history of poly-substance abuse from a young age. He had begun using heroin at the age of 16 and freely admitted to having a highly-entrenched and long-term heroin and amphetamine addiction. He had hardly ever, if ever, been gainfully employed and tended to place the blame for this on other people and on other things, indeed on everything except himself.

17 The learned Judge noted that the applicant had an extensive criminal record which dated back to 1990, when he was aged 14. On it there were a total of some 132 convictions, including convictions for serious offences. He had been convicted many times for stealing, breaking and entering, burglary and drug offences. There were many motor vehicle offences on his record. Of relevance to the commission of the offences for which he was to be sentenced on this occasion, his Honour noted that there were at least forty previous break and enter offences, as well as many offences of a similar nature such as being on the curtilage of premises without lawful excuse.

18 The applicant's previous response to supervision had been, "quite unacceptable". His Honour noted that the applicant had consistently re-offended while on parole and that he had a long history of suspension and cancellation of parole orders. His Honour took into account the fact that the applicant had pleaded guilty to the charges on the indictment and that he was entitled to "some degree of leniency" on account of his plea, although it seemed that he had little alternative other than to plead guilty in view of the strength of the evidence against him. In these circumstances, the plea did not reflect any genuine feeling of remorse. His Honour went on to say:

"Your counsel, Ms Boston, submitted that your action should be regarded as not premeditated but the result of a momentary impulse spurred by the effect of drugs. In the light of the long history of repeat offending this is of little weight and can be given little credence. In the case of serious repeat offenders it is not much comfort to the community to be told that the offending is impulsive. Anyway, I don't think the bank robbery was impulsive. You spent some time loitering around the premises and you had prepared the note which you handed to the teller. As for the aggravated burglary and the deprivation of liberty you spent hours in this house."

19 His Honour noted that armed robbery carries a maximum penalty of life imprisonment and that aggravated burglary carries a maximum penalty of imprisonment for 18 years. As his Honour said:

"None of the four young people concerned in the burglary offending could possibly anticipate what you might do next while you were boasting to them with a knife in your hand and the case highlights why the community is so concerned about the level of home invasion burglaries. You were armed and behaving in an unpredictable manner, which to them must have been very alarming, and you kept them captive in this house for several hours."

20 The applicant seeks leave to appeal against sentence on the single ground that the learned sentencing Judge failed to give weight or failed to give significant weight to the applicant's fast-track plea of guilty. It may be accepted that the applicant entered a plea of guilty pursuant to the "fast-track" procedure in the Perth Court of Petty Sessions on 18 February 2003 and was committed to the Supreme Court for sentence at the sittings commencing on 1 April 2003.

21 Section 8(2) of the Sentencing Act 1995 (WA) provides that:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

22 Section 8(4) of the Sentencing Act requires a Judge to reduce a sentence on account of a mitigating factor only " ... to state that fact in open Court".

23 It is clear from his Honour's sentencing remarks that the learned sentencing Judge took into account the plea of guilty. As his Honour said:

"I take into account the fact that you have pleaded guilty to the charges on this indictment. You are entitled to some degree of leniency on account of your plea, although it seems that you had little alternative than to plead guilty in view of the strength of the evidence against you. The plea does not reflect any genuine feeling of remorse."

24 There was no other reference by the learned Judge to the plea of guilty and his Honour did not indicate what discount, if any, was given for the plea. In this context, reliance was placed by counsel for the applicant on the judgment in Verschuren v The Queen (1995) 17 WAR 467 in which I said, at 470:

"Judicial opinion in this court has differed on the question whether the sentencing Judge should inform the offender what his sentence would have been but for the early plea, or indicate that the sentence has been reduced by a specific figure or percentage on that account, whether alone or in conjunction with other mitigating factors."

25 I note that differing views on this subject had been expressed in a number of judgments in this Court referred to in Verschuren at 470. I also noted that differences of opinion had been expressed in other Courts and that there was a body of opinion which supported the view that, where a discount is justified by a plea of guilty or co-operation with the authorities or both, it should be made clear by what amount the sentence has been reduced so as to emphasise not only the reduction involved, but the severity of the sentence which would have otherwise been imposed. I also said, at 470, that this had the advantage that the offender knows what credit he has received, which may in turn encourage other offenders to plead guilty and may encourage others to come forward under similar circumstances. Such a process has the advantage that a proper comparison can be made between the sentence imposed upon a person who enters an early plea of guilty and the sentence imposed upon a co-offender who does not plead guilty. The process also facilitates the consideration of applications for leave to appeal against sentence.

26 These considerations, however, have not found favour with the High Court of Australia: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ or [73] -[79].

27 This Court has made it clear that for an armed robbery of the kind committed by the applicant, the appropriate range of sentence is 6 to 9 years. The fact that the applicant pretended to be armed does not, in my opinion, constitute a circumstance of mitigation. He pretended to be armed with a weapon by handing the bank teller a note indicating that he was committing a hold-up, demanding money from the teller, and stating that he was armed with a gun concealed in a paper bag. In my opinion, the applicant was entitled to very little by way of discount, having regard to the seriousness of the offence and the nature of the circumstances of its commission. The plea of guilty was recognition of the inevitable, but was still worth some consideration.

28 The aggravated burglary was a completely separate and distinct offence, although the reason for it may have been in an attempt to avoid apprehension for the armed robbery. Each of the offences of deprivation of liberty was a separate invasion of the liberty of each of the three persons who the applicant detained. No complaint could be made about the individual terms of imprisonment imposed for the deprivation of liberty.

29 In my opinion, the end result reflects not only an adequate and proper application of the totality principle, but also reflects an appropriate sentence insofar as it reflects overall a significant discount for the pleas of guilty as well as all other matters of mitigation, set against a significant prior record. I am quite unable to accept that the applicant was entitled to a discount for his pleas of guilty of 20 to 30 per cent as was submitted by counsel for the applicant, although his Honour was in error in stating that the penalty for aggravated burglary was 18 years as opposed to 20 years. That operated to the applicant's benefit.

30 In this case, the learned Judge clearly avoided the application of the two-tiered approach to sentencing which was held to be erroneous by McHugh J in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, at [13] - [19]. In Wong v The Queen (supra) at [76] - [77], Gaudron, Gummow and Hayne JJ rejected the "two-stage" approach of arriving at a sentence in which an "objective" sentence is first determined and then "adjusted" by some mathematical value "given to one or more features of the case, such as a plea of guilty or assistance to authorities."

31 Their Honour's view now represents the law on this subject in Western Australia unless and until Parliament sees fit to modify it.

32 As a result of the adoption of the "intuitive synthesis" approach, while there can be no doubt that the learned sentencing Judge gave credit to the applicant in relation to his pleas of guilty, the size of the discount cannot be ascertained. In my opinion, counsel for the respondent was right to postulate that a 20 per cent discount overall could well have been allowed. If that is right, I consider it would have been a generous discount in the circumstances. Such a discount was applied in relation to pleas of guilty at the first opportunity in Cameron v The Queen (2002) WASCA 81. Had the intuitive synthesis approach not been adopted, a 20 per cent discount would indicate a starting point of 11 years and 3 months for the totality of the offences. In my opinion, such a starting point could not be described as excessive, given the number and level of seriousness of the offences concerned. At all events, I am quite unable to conclude that in all of the circumstances of the case, including the pleas of guilty, a sentence of imprisonment for 9 years was manifestly excessive, taking into account that the pleas of guilty were made on the "fast-track" system and indicated a degree of remorse, as well as a desire to facilitate the course of justice and the strength of the case against the applicant. For these reasons, while I would grant the applicant leave to appeal, I would dismiss the appeal.

33 TEMPLEMAN J: I have had the advantage of reading in draft the reasons of the Chief Justice. I agree, for the reasons given by his Honour, that although the applicant should be given leave to appeal, his appeal should be dismissed.

34 WHEELER J: In this application for leave to appeal against sentence, I am in agreement with the orders proposed by the Chief Justice. However, I have reached the same conclusion by a somewhat different route.

35 The Chief Justice has set out all of the facts which are necessary to understand the nature of this application, and I gratefully adopt his Honour's summary of those facts. The only point in issue is, as it appears from the Chief Justice's reasons, whether any or adequate discount has been given for the pleas of guilty entered by the applicant.

36 A plea of guilty attracts a reduction in the sentence otherwise imposed for a number of reasons. It may demonstrate remorse and acceptance of responsibility, and it facilitates the course of justice: Cameron v The Queen (2002) 209 CLR 339 at [11] per Gaudron, Gummow and Callinan JJ. Even where a plea is made late (which this was not) and even where an offender has been apprehended in circumstances which suggest that a finding of guilty is inevitable there should still be a substantial discount: R v Radebe [2001] WASCA 254; (2001) 122 A Crim R 559. In this Court, the range of appropriate discounts is from 20 to 35 per cent and it is an unusual case in which the discount is not at least 25 per cent: R v Ma [2001] WASCA 325; (2001) 125 A Crim R 349 at [101-103]. Of course, none of these authorities requires precise mathematical computation to be performed and as the Chief Justice has observed, the present law on the subject is to the effect that it is inappropriate to arrive at a sentence and then adjust it by some mathematical formula having regard to one or more features of the case such as a plea of guilty.

37 The sentence customarily imposed in this Court for an offence of armed robbery following on from a plea of guilty has been, prior to the Sentencing Legislation Amendment and Repeal Act 2003 of the order of 4 to at most 61/2 years' imprisonment. This reflects the fact that the range of sentencing for a conventional armed robbery was, prior to the passage of that legislation, considered to be in the range of 6 to 9 years' imprisonment. In the present case then, even accepting the view taken by his Honour the learned sentencing Judge that in view of the evidence the applicant had little choice but to plead guilty, a sentence of 7 years for what could well be described as a classic "conventional" armed robbery would appear to be excessive.

38 So far as the aggravated burglary is concerned, sentences for that offence are more variable, reflecting the considerable variation which can exist in relation to the circumstances of burglary offences. However, even allowing for the fact that sentences in respect of aggravated burglaries have "firmed up" in recent years, a sentence of 8 years and 6 months' imprisonment following on from a plea of guilty is a very high one. It is particularly high, when regard is had to the fact that there was a sentence of 3 years' imprisonment imposed for the deprivation of liberty of Ms Andrews, which was one of the circumstances of aggravation in respect of the aggravated burglary.

39 Having regard to the fact that this was a case in which, as his Honour the learned sentencing Judge observed, the applicant was entitled to be given some credit - and presumably some credit within the usual range - for his plea of guilty at the earliest opportunity, and having regard to the circumstances of the offences, it would be my view that the sentences of 7 years in respect of the armed robbery and 8 years and 6 months in respect of the aggravated burglary were excessive and did not adequately reflect the plea of guilty.

40 However, that is not the end of the matter. His Honour made those sentences only partly cumulative, leading to an effective sentence of 9 years' imprisonment. The sentences in respect of the other deprivations of liberty were made wholly concurrent. As a matter of principle, the two sets of offences were distinct, each involving the invasion of the rights of distinct persons or sets of persons, and being committed at a different time. The only connection between the two was that the aggravated burglary was apparently motivated by an attempt to avoid apprehension in respect of the armed robbery. Only totality considerations would justify partial concurrency.

41 Were I approaching the matter afresh, I would have been inclined to impose sentences of 5 years' imprisonment in respect of each of the armed robbery and the aggravated burglary, but to order that they be served cumulatively upon each other, with the sentences in respect of the other offences being made concurrent. That would produce a total effective sentence of 10 years' imprisonment which is not, in my view, so lengthy that considerations of totality would require any reduction. That total effective sentence is close to, although somewhat in excess of, that imposed by the learned sentencing Judge. It is the total effective sentence which is challenged by this applicant. I am unable to agree with the contention of the applicant that "a different sentence should have been passed" (s 689(3) Criminal Code). I would therefore grant leave to appeal but dismiss the appeal.