Court of Appeal (WA)|2004-08-27|Before: Kennedy J, Murray J, Templeman J, Wheeler J, Lure J

Thwaites v The State of Western Australia [2004] WASCA 197 (27 August 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THWAITES -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 197

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Whether verdict unreasonable or not supported by evidence - Admissibility of hearsay and video interview - Whether inadequate police investigation - Whether correct direction on what constitutes bodily harm

Assafiri v Horne [2004] WASCA 40

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

R v Valentine [2003] WASCA 7

Shaw v The Queen (1952) 85 CLR 365

A Child v Andrews (1994) 12 WAR 552

Clohessy v The Queen [2001] WASCA 314

Etrelezis v R [2001] WASCA 327

Fletcher v The Queen [1999] WASCA 18

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Kakai v R, unreported; CCA SCt of WA; Library No 990082; 23 February 1999

Mobila v R [2002] WASCA 130

Pickett v Fuderer, unreported; FCt SCt of WA (Kennedy J); Library No 980475; 27 August 1998

R v Arrol [1999] SASC 293

R v Shaharuddin [1999] WASCA 229

Watson v R [2000] WASCA 8

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 MURRAY J: I agree with Templeman J that, for the reasons given by his Honour, to which I have nothing to add, the appeal against conviction should be allowed to the extent necessary to set aside the finding of the circumstance of aggravation that the appellant did bodily harm.

2 In the particular circumstances of this case, I agree that the State's appeal against sentence should be dismissed.

3 TEMPLEMAN J: The appellant, Timothy Mark Thwaites was convicted after trial by jury of a single offence of aggravated armed robbery. He appeals against that conviction on a number of grounds, to which I shall refer below.

4 The appellant was sentenced to a term of 1 year and 8 months' imprisonment, suspended for 12 months. At the same time, an intensive supervision order was imposed on him in respect of an offence of burglary in relation to which he had pleaded guilty in the District Court and had been remanded to the Supreme Court for sentencing.

5 The State of Western Australia ("the State") appeals against the sentences on the ground that they were inadequate and that the term of imprisonment should not have been suspended.

7 At about 3.20 am on Saturday 16 February 2002, a young male, wearing a bandana and a hat and having his right arm in a sling, was admitted to the Caltex service station located on the corner of Beach Road and Crocker Drive, Malaga. The process of admission involved the attendant on duty operating the sliding glass door of the service station by remote control from the counter. The door comprised two panes of glass set in a metal frame with a horizontal dividing bar at about one metre from the ground.

8 The subsequent events were monitored by a surveillance camera and were recorded on a videotape. The videotape shows the male person approaching the counter and facing the attendant, a Mr Munut. The offender (as I shall now refer to him) then took a capsicum spray which had been concealed in his sling and sprayed Mr Munut's face. While Mr Munut was incapacitated, the offender reached over the counter and took a bag containing money. He then attempted to leave the premises.

9 As is clear from the video, the offender approached the door. Because the door was subject to manual operation, it remained closed. The offender then placed his hands on the door at about shoulder height. Being unable to exit the premises, the offender returned to the counter. He leaned across the counter, apparently in an attempt to locate the switch which would have activated the door opening mechanism.

10 The offender then returned to the door, where he waved his hands under the sensor, presumably in an attempt to activate the opening mechanism. This was unsuccessful and the offender returned again to the counter, where he made another attempt to locate the operating mechanism. Having failed to do so, the offender again approached the door. It is clear from the video that he lifted his right leg to the horizontal and kicked the lower part of the upper glass panel and then pushed the glass with his hands, at about shoulder height.

11 Although, it is not apparent from the video, there is no doubt that the offender's actions caused the upper glass panel of the door to fall outside the building. The offender can be seen climbing out of the premises through the upper section of the door.

12 From a photograph of the outside of the door taken shortly after the offence, it is apparent that the glass fell face downwards. That is to say, the outside face of the glass was in contact with the ground. This is to be inferred from the fact that the offender kicked the upper glass panel along its bottom edge. It is clear from the photograph of the glass panel on the ground that the point of impact was at that point of the panel which is closest to the door. In other words, the panel fell outwards from the top. This is consistent with the offender's action of pushing the glass panel after he had kicked it.

13 Following a forensic examination, the appellant's fingerprint was found on the upper side of the glass panel. That is to say, at a point which would have been a little under two metres from the ground on the inside of the door before the panel was pushed out.

14 The appellant was interviewed by police officers on 25 March 2002, some four weeks after the offence had been committed. The appellant denied that he had been involved in the offence. He was unable to offer any explanation for the presence of his fingerprint on the door other than to say that he had visited the service station many times previously and that he may have leaned on the door on some earlier occasion. The appellant said he had last visited the service station in December 2001, before he moved out of that area.

15 When asked by police officers if he had known his whereabouts in mid February 2002, the appellant said he could not say, but he had then been living in Guildford. At his trial, however, the appellant relied on an alibi defence.

16 The critical issue at trial was whether the appellant was the offender. The jury were clearly satisfied beyond reasonable doubt that he was: they returned a unanimous verdict of guilty after deliberating for some 21/2 hours. However, the appellant contends, on a number of grounds, that the verdict of the jury was unreasonable and should be set aside. I therefore turn to consider each of the grounds in turn.

Ground 1: The verdict the jury is unreasonable or cannot be supported by the evidence

"(i) The critical issue in this trial was whether the robber was the appellant.

(ii) The only possible evidence as to the identity of the robber was:

(a) a security video of the robbery;

(b) the evidence of Flavio Munut;

(c) the evidence of Jo-Anne Samuel;

(d) fingerprints;

(e) shoe or footprints;

(f) DNA evidence.

(iii) Much of that evidence did not tend to prove that the appellant was the robber and indeed in some cases tended to prove the opposite.

(iv) Even given the cumulative effect of circumstantial evidence, the only real evidence suggesting that the appellant was the robber was the fingerprint evidence.

(v) On its own, it is submitted that evidence could not have been sufficient to convince a jury beyond reasonable doubt that the appellant was the robber."

18 Included in the evidence tendered at trial was a video recording, taken from a surveillance camera at the premises, which showed the appellant at the counter a year after the date of the offence.

19 The appellant contends that when the video recording of the robbery is compared with this later video, there is a marked difference in appearance between the offender and the appellant. In particular, it is said, the appellant is much shorter than the offender and has different features.

20 Having viewed the videos and still photographs taken from them (as we were invited to do by counsel for the appellant) I am unable to accept that submission. Although the quality of the videos and the photographs is not good, my impression is that the offender and the appellant have at least the same shaped head and shoulders. The lack of definition does not enable me to make any valid comparison of the facial features.

21 Mr Munut's evidence was that he had thought the offender was approximately 185 cm tall. During the cross-examination of Mr Munut the appellant was asked to stand so that his height could be assessed. Mr Munut then said he would not describe the appellant as being 185 cm tall. The appellant gave evidence that he was in fact 164 cm tall.

22 In my view, the weight to be given to Mr Munut's evidence of the offender's height must be questionable, having regard to the fact that within a very short time after the offender entered the service station he discharged the capsicum spray at Mr Munut. This affected his vision to a very considerable extent.

23 The appellant contends that some support for the proposition that the offender and the appellant were persons of different height is to be gained from measurements taken from the still photographs. In cross-examination, one of the investigating police officers was asked to measure the heights of the appellant and the offender as shown in the still photographs. The officer noted that the height of the offender was 34 mm while that of the appellant was 27 mm, measured from the same datum point.

24 The difficulty with this evidence is that the height of the subject from the datum point depends on the distance of the subject from the camera. This appears to be different in the two photographs. The point is demonstrated easily by looking down on two objects of identical height, one placed nearer to the viewer than the other. The closer object appears to be shorter.

25 Neither Mr Munut nor a Ms Samuel, who witnessed the offender running away from the service station, was asked to make a positive identification of the appellant, either by way of an identification parade or from a photoboard. Ms Samuel's evidence was that the person she saw was "fairly thin, dark hair ... had a longish face ... was light skinned, very fit". As the appellant accepts, this evidence adds nothing to the surveillance video.

26 A partial shoe print was found on the same glass panel as the fingerprint but did not match any shoes identified as belonging to the appellant. Further, some shoe or footprints found in the sand in the area of the track taken by the offender when running away, were not photographed or measured and are therefore of no probative value.

27 A grey and black jumper or windcheater, apparently worn by the offender, was found near the crime scene and was submitted for DNA analysis. Under cross-examination, one of the investigating police officers was referred to the report containing the DNA analysis.

"A complex DNA mixture was recovered from the windcheater, which could be separated into major and minor components at 6 from a possible 10 loci."

29 The conclusion of the report was that the appellant could be excluded as having contributed to "the major component DNA profile".

30 That conclusion presumably left open the possibility that the appellant may have contributed to the minor component. However, the prosecution did not call the author of the report, nor any witness who had been involved in the DNA analysis. The DNA analysis must therefore be regarded as inconclusive.

31 There remains the fingerprint evidence. As I have already noted, the appellant's fingerprint was found on the upper panel of the glass door at a point consistent with the point at which the offender is seen in the surveillance video as touching the door. I have already referred to my conclusion that the fingerprint was on the inside of the glass panel.

32 Mr Munut gave evidence that he had last cleaned the inside of the door approximately 24 hours before the offence. If this evidence was accepted, it would eliminate the possibility of the appellant's fingerprints having remained on the door after some previous visit to the service station.

33 Further, there was in evidence a video recording of the door opening and closing. Having regard to the speed of operation, it seems unlikely that a person approaching the door would have touched it at the point where the appellant's fingerprints were found: at least when the door was in automatic mode.

34 In my view, given the location of the appellant's fingerprint on what must have been the inside of the glass door, and the fact that the glass had been cleaned only 24 hours earlier, the fingerprint evidence was compelling. I do not accept the appellant's submission that that evidence alone could not have been sufficient to convince a jury beyond reasonable doubt of the appellant's guilt.

35 The appellant contends that the learned trial Judge directed the jury that the appellant had offered no explanation for the presence of his fingerprint on the inside of the glass door. This, it is said, ignores the statements made by the appellant during his interview with police officers and in his evidence that he had been to the service station many times before the date in question and that the last time "would have been" in December 2001.

36 This contention is incorrect. In the course of a supplementary direction, immediately before the jury retired to consider their verdict, the Judge reminded them of the appellant's evidence that he had been to the service station "many times". Although the Judge did not refer to the last occasion as being in December 2001, that omission was, I think, favourable to the appellant (AB 187).

Ground 2: The learned trial Judge erred in law in failing to give an adequate direction as to inferences

"(i) The learned trial judge directed the jury as to inferences (at 176-177).

(ii) It is submitted that that direction was inadequate for three reasons.

(iii) Firstly, the direction was not attached to the circumstantial evidence, most significantly, the fingerprint evidence.

(iv) Secondly, the direction was not even attached to the relevant element in dispute, namely identity. Rather, it was discussed in the context of intention, which was not an element in dispute, nor even an element of the offence.

(v) Thirdly, the inference direction did not refer to the ultimate inference of guilt, but only to the drawing of any inference adverse to the accused."

38 The appellant accepts that the learned trial Judge gave a proper direction in relation to the drawing of inferences. However, he points out that the direction was given in relation to proof of intention; although intention was not in issue at the trial. Nor was it an element of the offence.

39 Although the Judge did not refer specifically to the drawing of inferences from fingerprint evidence, her Honour told the jury:

"It's also clear that the Crown relies on the fingerprint evidence. That's its case." (AB 179)

40 Furthermore, the Judge emphasised that the central issue in the trial was whether the jury were satisfied that the appellant was the person who had committed the offence. And her Honour made it plain that the jury must be satisfied beyond a reasonable doubt before they could convict, there being no onus on the appellant to prove anything. The appellant had, of course, offered an explanation for the presence of his fingerprint on the door.

41 In these circumstances, I am not persuaded that the fact that the Judge did not give an inference direction related specifically to the fingerprint evidence is of any consequence.

Ground 3: There was a miscarriage of justice due to the admission of the video record of interview

"(i) The State tendered an edited version of a video record of interview with the appellant (Exhibit 28). (The edited material dealt with an unrelated matter.)

(ii) The video record of interview contained no admissions, as conceded by the prosecutor (at 190).

(iii) The video was therefore inadmissible.

(iv) The video contained numerous matters that were prejudicial, for example:

(a) the police officer asserted 'you were pretty much seen on that camera', referring to the security tape (p 4 of transcript of video record of interview);

(b) the police officer made assertions as to how the fingerprints got on to the glass (p 6, 11-12);

(c) the police officer repeatedly said to the appellant that he was the robber, which was repeatedly denied (p 7, 11-12, 17);

(d) the police officer asserted that where the fingerprints were found were 'not a normal place for an individual going in or out of a shop to touch the door' (p 9);

(e) the police officer stated to the appellant 'you've got to come up with an explanation' (p 10, and see p 17).

(v) Although it is acknowledged that the learned trial judge did direct the jury to some extent to disregard questions and statements about fingerprints (at 183), the direction was insufficient to cure the prejudice."

43 The video record of interview, having been edited in accordance with the agreement reached between the prosecution and defence, was admitted into evidence without objection. Strictly, it should not have been admitted because it contained no admissions. This was conceded by the prosecutor. Further, the video did contain the prejudicial material referred to in ground 3(iv).

44 Against that, the appellant, in effect, adopted the statements he had made during the interview as part of his evidence. He said he had told the police officers the truth (AB 185). Further, the Judge directed the jury that they should decide the case only on the evidence they had heard in the Court. Her Honour continued immediately to give an example "of what is not evidence", referring specifically to questions asked and statements made by one of the interviewing police officers about fingerprints.

45 In a redirection, her Honour emphasised to the jury that the appellant adopted what he had said out of Court in the interview with police officers (AB 187).

46 The appellant relies on Shaw v The Queen (1952) 85 CLR 365 at 381 for the well established proposition, in the joint judgment of Dixon, McTiernan, Webb and Kitto JJ that:

"The prosecution must take the responsibility for leading the inadmissible evidence."

"The failure of counsel to object to inadmissible evidence may provide ground for an inference that the reception of the evidence can give rise to no substantial miscarriage of justice."

In my view, that is the position here. There is a strong inference that because the video record was edited in accordance with the appellant's wishes, he intended that it should be placed before the jury who would then see and hear his protestations of innocence.

47 Given the trial Judge's direction about the use to which the video record of interview might be put and the compelling fingerprint evidence to which I have referred above, I do not think the admission of the video into evidence caused any miscarriage of justice.

Ground 4: There was a miscarriage of justice due to the admission of hearsay evidence

"(i) Senior Constable Hancock gave hearsay evidence that the manager (another witness, Mr Dale) had said that the camera could have been moved (at 123). Mr Dale had not given that evidence.

(ii) This evidence was not admissible, and having been admitted required at least a direction to the jury.

(iii) The learned trial judge did not give such a direction. On the contrary, when discussing the defence argument that there was a difference in heights (between the height of the robber as shown on the security video and the height of the appellant on a comparative video), the learned trial judge referred only to the hearsay evidence of Hancock on this point, and not the direct evidence of Munut .... Nor did the learned trial judge mention the fact that Hancock's evidence had been hearsay evidence, nor Hancock's description of Mr Dale as being unclear."

49 Mr Munut did give direct evidence about the location of the surveillance camera. However, in my view, that evidence was equivocal: Mr Munut said only that the camera which had been in place on the date of the offence was still there (AB 38). He said nothing about its location.

50 The hearsay evidence was given by the investigating officer under cross-examination. He had been shown still photographs taken from the surveillance videotape of the offence and from the later video recording made when the appellant attended at the service station for that purpose.

51 At trial the appellant's counsel sought to make the point in cross-examination that the photographs of the offender did not match those of the appellant. Counsel asked the police officer whether he had tried to match the photographs by computer technology or to overlap them to "see whether those two persons matched".

52 The police officer replied that he had not, because the photographs had been taken from different locations. The police officer said that the photograph taken from the later video recording seemed different "... and it looked as though the camera had been moved at a different angle". The police officer had therefore revisited the premises:

" ... and I had a discussion with the manager with regards to whether the camera had been moved and whether the focus of the camera had been changed. He was unaware of whether the focus had been changed but he said that the camera could have been moved which had caused this - the difference in distances when you compare the originals with the video you have with the stills of the video you had supplied." (AB 117)

53 Although the statement that the manager had said the camera "could have been moved" was clearly hearsay, no objection was taken to its admission at the time.

54 In these circumstances, the question would arise as to the use the jury might make of that evidence - if, indeed, it could be regarded as evidence given the speculative nature of the comment.

55 Roberts-Smith J discussed issues of this kind in Assafiri v Horne [2004] WASCA 40, at [97], where his Honour referred to R v Radford (1993) 66 A Crim R 210 at 232-3. Put shortly, the issue in these circumstances is the direction to be given to the jury about the way in which (if at all) they may use hearsay evidence.

56 The appellant complains that the learned trial Judge gave an inadequate direction. It was in the following terms:

"The next point is the height of the offender shown in (the surveillance) video ... compared with the video of the accused taken earlier this year, and that's a matter for you, members of the jury. You have heard the police officer Hancock's evidence about the focus of the camera and the angle of the camera and it's for you to compare whether those two images are comparing apples with apples." (AB 181)

57 Although the Judge made no reference to the hearsay evidence that the camera may have been moved, I do not think there was any risk of a miscarriage of justice. That is because the jury were in no better position than the police officer to assess whether the camera angle or focus had changed between the date of the offence and the subsequent recording of the appellant's attendance at the premises. This was not a matter for expert evidence. The question for the jury was whether the photographs matched. If they did not, the reason was immaterial.

58 In my view, therefore, the direction given to the jury was adequate.

"(i) On its own, an inadequate police investigation will not inevitably mean that the trial was unfair. However, it is relevant in evaluating the fairness of the trial, in the context of the grounds above, and in particular whether the evidence actually adduced was adequate.

(ii) Here, the police investigation appeared to be focussed solely on gathering evidence that would assist the State's case only."

60 The appellant was critical of the police investigation into the offence with which he was charged. He contends that no proper steps were taken to record evidence favourable to him. For example, as I have noted, shoe or footprints were found in the sand in the region of the track taken by the offender when running from the scene.

61 One of the investigating officers said that the prints were not photographed or measured because they were only indentations which were not amenable to forensic examination. The officer said, they would not be of any value for the prosecution.

62 Similarly, neither of the investigating officers had referred in their respective statements to the partial shoe or footprint found on the broken panel of glass from the sliding door on which the appellant's fingerprint had been found. The officer who lifted the print said he had made no reference to it in his statement because he had been told that it did not match any of the shoes apparently belonging to the appellant.

63 In addition, no attempt was made to have either Mr Munut or Ms Samuel identify the appellant either in an identification parade, or from a photoboard.

64 In Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316 at [18] Callinan J, with whom the other members of the High Court agreed, held that although in the case in question a better investigation may, and probably should have been conducted:

"There is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed, there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case."

65 Applying that principle in R v Williams [2001] QCA 324; (2001) 1 Qd R 212, at [7], the Queensland Court of Appeal, in a joint judgment, said:

"In the end, however, the question is whether the evidence actually adduced was adequate and whether the trial was fair. The unsatisfactory nature of the investigation must therefore be kept in mind as a potential factor when this overall question is considered."

66 There can be little doubt that in the present case, those responsible for investigating the offence took the view that the evidence of the appellant's fingerprint, high up, on the inside of the glass door, at the point where the offender was seen to have pushed the door, was compelling evidence against him. The inference that the appellant was the offender was strengthened immeasurably by the evidence that the glass had been cleaned only about 24 hours earlier.

67 That evidence was adequate: and the trial was fair. That being so, I am satisfied that no miscarriage of justice resulted from the failure of the investigating officers to pursue their enquiries and investigations any further than they did.

Ground 6: The learned trial judge erred in law in failing to give an adequate direction as to what constitutes bodily harm

"(i) The victim gave evidence that, as a result of being sprayed with pepper spray, he could not keep his eyes open for long, he had a bad burning sensation, and it was very painful (at 38, 39 and 42).

(ii) The learned trial judge directed the jury as to what bodily harm meant, and then said that a burning sensation, pain and temporary blindness could be a bodily injury (at 179).

(iii) Later, the learned trial judge directed the jury that a bodily injury is anything which interferes with the health or comfort, and then said that a burning sensation and temporary blindness could be bodily harm (at 184).

(iv) These were misdirections."

69 The appellant was charged with doing bodily harm to Mr Munut who gave evidence that after he had been sprayed by the offender, the effect on him was "very painful". He said:

"I couldn't see anything because I couldn't keep my eyes open at all." (AB 32)

Then a little later in his evidence, Mr Munut said:

" ... I couldn't do anything much because I just couldn't keep my eyes open long enough to see what I could do." (AB 34)

Later still, when asked about his eyes immediately after he had been sprayed he said:

"Very had (sic bad) burning sensation." (AB 36)

70 The term "bodily harm" is defined in s 1 of the Criminal Code to mean:

"Any bodily injury which interferes with health or comfort."

However, in her charge to the jury, the trial Judge told the jury that "bodily harm" meant:

"Any bodily injury which interferes with a person's health and comfort.: (AB 173)

This was a misdirection, although, of course, technically at least, it was favourable to the appellant. However, given the appellant's use of the capsicum spray, I do not think the point to have any real substance. Her Honour went on to say:

"It's open to you to conclude as a matter of law that Mr Munut's evidence, burning sensation, pain, temporary blindness, is bodily injury." (AB 173)

"The second aggravating factor that the charge alleges against the offender is that he caused or did bodily harm to Mr Munut. I have to say I described that offence to you earlier and I said bodily injury is anything which interferes with the health and comfort of the person. It's 'health or comfort', so you've got an alternative. It is open as a matter of law for you to conclude that the burning sensation and the temporary blindness, of which Mr Munut gave evidence, is capable of constituting bodily harm. Once again, it's a question for you, members of the jury, as to whether you reach that view." (AB 178)

71 In my view, with respect to the learned Judge, these were a misdirection. In Scatchard (1987) 27 A Crim R 136, this Court held that pain alone cannot constitute bodily harm: the complainant must have suffered some bodily injury. Thus, the burning sensation or pain experienced by Mr Munut would not have qualified as bodily harm.

72 Blindness, albeit temporary, might, I think, have constituted bodily harm if it involved some injury. The Judge's reference to Mr Munut's temporary blindness was justified by his evidence, which was not challenged in cross-examination. Indeed, in the course of cross-examination Mr Munut said:

73 To become blind is to lose the power of sight. But there was no evidence in the present case that the capsicum spray so injured Mr Munut's eyes as to result in blindness, in the strict sense, albeit temporary. Rather, I think the effect of Mr Munut's evidence was that the pain he suffered prevented him from opening his eyes.

74 In my view, the jury should have been directed that only a bodily injury which interfered with health or comfort could constitute bodily harm, but that pain alone was not an injury. It was for the jury to consider whether the temporary blindness was any more than a reaction to pain, there being no medical evidence to assist them.

75 Had the jury been directed properly in relation to the meaning of bodily harm, I think they may well have found the appellant not guilty of the aggravating circumstance. Thus, the misdirection caused a miscarriage of justice in relation to that aspect of the trial, with the result that the jury's finding of the aggravating circumstance of causing Mr Munut bodily harm should be set aside.

76 In my opinion, for the reasons set out above, grounds 1 to 5 of the appellant's amended grounds of appeal are without substance and should be dismissed. Ground 6 should succeed. The appeal should be allowed to the extent that the finding the appellant did bodily harm should be set aside, leaving intact the conviction for robbery while armed.

77 If an offence of robbery is committed in that particular circumstance of aggravation, the maximum penalty increases from 14 to 20 years. However, the fact that the appellant was armed with an offensive weapon - namely the capsicum spray - when he committed the offence, of itself resulted in a maximum penalty of life imprisonment. In that context the matter should not be remitted to the trial Judge for re-sentence. That is because, for the reasons I shall give in relation to the State's appeal against sentence, the sentence imposed on the appellant was very lenient in all the circumstances.

78 As I have noted above, the Judge imposed sentences of 1 year and 8 months' imprisonment suspended for 12 months in relation to the armed robbery. In relation to the burglary, the sentence was an intensive supervision order of 12 months duration with a programme requirement. In addition, there was a community service requirement of 50 hours.

79 The State appeals against both of those sentences on the following grounds:

"1. The learned sentencing Judge erred in imposing a sentence of 1 year and eight months in respect of the offence of aggravated armed robbery the subject of Supreme Court of Western Australia Indictment number 154 of 2002 in that the length of such sentence was manifestly inadequate in all the circumstances of the offence.

PARTICULARS

(i) failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed, including:

(a) the deliberate use of capsicum spray as a weapon to assist the Respondent in committing the robbery;

(b) the bodily harm suffered by the complainant; and

(c) the use of subterfuge to secure admission to the service station by the Respondent having his hand in a sling which detracted from the suspicion that would arise from wearing a hat and bandana in the middle of the night;

(ii) place undue emphasis on factors personal to the Respondent; and

(iii) was in the circumstances so inadequate as to manifest error in the sentencing discretion.

2. The learned sentencing Judge erred in suspending the sentence imposed in respect of the offence of aggravated armed robbery the subject of Supreme Court of Western Australia Indictment number 145 of 2002 having regard to the seriousness of that offence and the circumstances in which it was committed, particulars of which are set out under Ground 1 above, and the failure of the Respondent to accept responsibility for his offending behaviour.

3. The learned sentencing Judge erred in imposing an intensive supervision order having regard to the serious nature of the burglary the subject District Court of Western Australia Indictment number 1324 of 2002 in that the sentence

(i) failed to adequately reflect the seriousness of the offence and the need for specific and general deterrence for those who break into and steal from the premises of others;

(ii) placed undue emphasis on factors personal to the Respondent; and

(iii) was in the circumstances so inadequate as to manifest error in the sentencing discretion."

80 In sentencing the respondent, the Judge first set out the facts, to which I have referred above. It is not necessary to repeat them. However, it should be noted that the Judge sentenced the respondent on the basis that he had caused bodily harm to Mr Munut.

81 The Judge then referred to the burglary, which involved the theft of a computer valued at $3,000 from the Ballajura Medical Centre. The respondent had obtained access to the Centre by smashing a window. The respondent pleaded guilty to that offence.

82 The Judge went on to deal with matters personal to the respondent. Her Honour noted that he was 19 years old when he committed both the armed robbery and burglary offences. He had left school at 15 after completing Year 10. His occupation was given in the pre-sentence report as an unemployed painter. It appeared that he worked on an occasional basis and otherwise relied on Centrelink payments.

83 The respondent had used cannabis from the age of 16 and had admitted to consuming a considerable amount of alcohol. The pre-sentence report noted that the respondent's excessive alcohol consumption and the influence of his associates had contributed to his offending behaviour. He had apparently consumed a considerable quantity of alcohol before committing the armed robbery, an offence which he had denied persistently.

84 The pre-sentence report noted that the respondent had been raised by his parents until the age of 17 but that at the date of the report, he had "limited community support and even less family support".

85 Although her Honour did not refer to the respondent's criminal record, the prosecutor had summarised the record in the course of her submissions. There were some relatively minor offences committed by the respondent between the ages of 15 and 18, for which he was sentenced in the Childrens' Court. There were also some motoring offences which had resulted in his being disqualified from driving; and offences of causing damage and stealing for which the respondent had been sentenced in the Court of Petty Sessions.

86 The respondent had been in prison from 23 August to 13 October 2003, the date on which he was sentenced.

87 In sentencing the respondent for the armed robbery, the Judge referred to "the continuing high incidence of armed robberies in WA, especially in vulnerable places such as 24-hour service stations". Because of that, her Honour said, general deterrence remained "a weighty factor in sentencing".

88 Her Honour then referred to the fact that the respondent had shown no remorse. I take this to be a reference to the respondent's persistent protestations of innocence and his reliance on an alibi defence, which the jury obviously rejected.

89 Despite these matters, her Honour said that because of the respondent's youth, and particularly because this was the first occasion on which he had committed a serious offence of this nature, she proposed to reduce substantially what would otherwise have been the appropriate term as indicated by this Court.

90 Her Honour said that had she been sentencing under the law as it stood before the recent amendments to the sentencing legislation, she would have sentenced the respondent to 21/2 years' imprisonment. By reason of the amendments to the legislation, that sentence would be reduced to 1 year and 8 months' imprisonment. The respondent would be made eligible for parole.

91 Pausing there, it must be said that before the amendments to the sentencing legislation, offences of the kind committed by the respondent would usually have resulted in the imposition of terms of imprisonment within the range of 6 to 9 years. As a result of the amendments, the range would be 4 to 6 years' imprisonment, before adjustment to allow for aggravating or mitigating circumstances.

92 In the present case, the use by the respondent of the capsicum spray is clearly an aggravating factor. Accepting that the respondent may have been convicted wrongly of causing bodily harm to Mr Munut, he clearly caused Mr Munut considerable pain and distress, as is clear from the surveillance video.

93 In addition, the offence was pre-meditated. The respondent disguised himself by means of a hat and bandana. He affected an injured arm by wearing a sling. This subterfuge was undoubtedly calculated to trick the service station attendant into believing that the respondent was harmless whereas, in fact, the respondent used the sling to conceal the capsicum spray.

94 Further, the respondent caused considerable damage in his attempts to escape from the service station premises.

95 Against that, as the learned sentencing Judge said, the only mitigating feature of any significance was the respondent's young age and the fact that he had not previously been imprisoned. In other words, he had not had the opportunity of addressing his criminal behaviour by means of community based orders.

96 In R v Valentine [2003] WASCA 7 this Court upheld a Crown appeal against sentence of 21/2 years' imprisonment imposed on an armed robber who had used a capsicum spray in an attempt to avoid arrest. The Court did so, despite the fact that the mitigating circumstances were of greater significance than in the present case. There, the respondent was not only young, he had pleaded guilty on the fast track system, although his apparent remorse was somewhat reduced by the false explanation he had given for carrying the capsicum spray. The respondent was, however, in breach of two intensive supervision orders.

97 The Court restated the well known principle applying in Crown appeals against sentence, as set out by the High Court in a number of cases including Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. There, Kirby J reminded Courts of Criminal Appeal that disturbance of a sentencing Judge's disposition requires a careful indication of the error that has been made, so as to justify that course.

98 In Valentine, the submission had been made to the Court that the sentencing Judge's disposition reflected a compassionate approach on his part - although his Honour had not expressed himself in those terms.

99 The Court was not persuaded by that submission. Making due allowance for the fact that the appeal had been brought by the Crown, the Court held that a sentence of 5 years' imprisonment should have been imposed. This is now equivalent to a sentence of 3 years and 4 months: exactly twice that imposed by the learned sentencing Judge in the present case.

100 In the present case, the learned sentencing Judge suspended the sentence for a period of 12 months. In relation to that her Honour said:

"The decision on whether to suspend the sentence was a difficult one, particularly having regard to the circumstances of the offence, however I decided to suspend the sentence having particular regard to the matters that I took into account in relation to the nature and length of the penalty to be imposed but particularly your youth and your antecedents." (AB 15)

101 In my view, with all respect to the learned sentencing Judge, the sentences imposed on the respondent in this case do demonstrate error. Although it is not possible to identify any specific error in the Judge's approach to the sentencing process, that error is, I think, manifested by the extreme leniency of the term of imprisonment imposed, and the fact that it was suspended. I consider that the seriousness of the offence was such that a term of immediate imprisonment was warranted. I say that, despite the fact that the appellant had not had the opportunity of addressing his offending behaviour by way of a sentence served in the community. The sudden escalation in the seriousness of his offending made that course inappropriate.

102 Given that the appellant had not previously been the subject of an intensive supervision order, I consider that an appropriate sentence, at the time would have been 3 years imprisonment, with eligibility for parole; somewhat less than what would ordinarily be appropriate for a robbery of this seriousness, having regard to the fact that this is a State appeal, and to the other matters to which I shall refer below.

103 I turn to the sentence imposed on the respondent in respect of the burglary.

104 In relation to that offence, her Honour said that having regard to the nature and circumstances of the offence, together with the respondent's youth, antecedents and remorse demonstrated by his early plea of guilty, it would be inappropriate to impose a term of imprisonment. Her Honour concluded that the appropriate punishment was an intensive supervision order for a period of 12 months.

105 That order was to be combined with a programme requirement which had regard to the respondent's alcohol problems and his occasional drug abuse. There would be a community service requirement involving 50 hours' work.

106 The State accepts, rightly in my view, that viewed in isolation the imposition of an intensive supervision order would have been adequate had the burglary been the only offence of which the respondent was convicted. However, the State submits that the intensive supervision order was inappropriate, given that immediate imprisonment should have been ordered in relation to the armed robbery.

107 I accept that submission. I think the appropriate course in all the circumstances would have been to impose a term of 12 months' imprisonment on the respondent in relation to the burglary, that term to be served concurrently with the sentence imposed for the armed robbery.

108 Despite my view that the sentences imposed on the respondent were manifestly inadequate, I think it would now be unfair to the respondent to sentence him to a term of imprisonment. I take that view because of the long delay before the appeal against sentence has been heard. We do not know the reason for the delay, but it would appear to have been caused by delay in progressing the appeal against conviction and the desirability of having the appeal against conviction and the appeal against sentence dealt

with on the same occasion. However, the effect of the delay has been that the respondent has virtually completed the term of the suspended sentence and the intensive supervision order. For that reason alone I would dismiss the State's appeal against sentence.

109 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with those reasons and have nothing to add.

Thwaites v The State of Western Australia [2004] WASCA 197

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