Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted of one count of stealing, two counts of being armed with offensive weapons in circumstances likely to cause fear and two counts of threats to unlawfully kill - Appellant aged 23 at the time of offending and 24 when sentenced - Reasonably extensive prior criminal record - Prospects of rehabilitation doubtful - Whether sentencing judge erred in declining to reduce the appellant's sentence on account of his age

Ugle v The State of Western Australia [2012] WASCA 104

1 BUSS JA: The appellant has made application for leave to appeal against sentence.

2 He was convicted in the District Court, on his pleas of guilty, on five counts in an indictment.

3 On 30 April 2012, being the date of commencement of his trial, the appellant pleaded guilty to count 1. On the second day of the trial, he changed his pleas on the other counts from not guilty to guilty.

4 Count 1 alleged that on 9 June 2011, at Maddington, the appellant stole a bottle of Fifth Leg wine, the property of Woolworths Supermarkets Ltd trading as Woolworths Liquor Maddington, contrary to s 378 of the Criminal Code (WA) (the Code).

5 Count 2 alleged that on the same date and at the same place as in count 1, the appellant was armed with offensive weapons, namely a knife and a wine bottle, in circumstances likely to cause fear to Sylvester Wreh, contrary to s 68 of the Code.

6 Count 3 alleged that on the same date and at the same place as in count 1, the appellant was armed with offensive weapons, namely a knife and a wine bottle, in circumstances likely to cause fear to John George Maskiell, contrary to s 68 of the Code.

7 Count 4 alleged that on the same date and at the same place as in count 1, the appellant made a threat to unlawfully kill Mr Wreh, contrary to s 338B of the Code.

8 Count 5 alleged that on the same date and at the same place as in count 1, the appellant made a threat to unlawfully kill Mr Maskiell, contrary to s 338B of the Code.

9 On 21 June 2012, the sentencing judge, O'Neal DCJ, imposed individual sentences as follows:

(d) Count 4: 14 months' immediate imprisonment; and

10 His Honour ordered that the sentences for counts 2, 3 and 4 be served concurrently with each other, and that the sentence for count 5 be served cumulatively on the sentence for count 4. The total effective sentence for counts 2, 3, 4 and 5 was therefore 28 months' immediate imprisonment. His Honour backdated the total effective sentence to 20 March 2012 to give credit for time the appellant had spent in custody on remand. A parole eligibility order was made.

The facts and circumstances of the offending

11 The sentencing judge made the following findings in relation to the facts and circumstances of the offending:

(a) At about 6.00 pm on 9 June 2011, the appellant went to Woolworths Liquor at the Centro Maddington Shopping Centre with two friends - a man and a young woman (ts 245).

(b) The appellant and the other man drew attention to themselves by appearing to be interested in stealing something. The manager of the store, Mr Zaccaria, paid close attention to them (ts 245).

(c) The appellant and his male friend became irritated by this close attention. The friend walked to the counter and asked Mr Zaccaria, 'Would you like to check my bag? Because you've been looking at me like I'm a criminal'. When Mr Zaccaria did check his bag, the friend walked out of the store (ts 245).

(d) The appellant remained in the store. Mr Zaccaria continued to observe him while he was serving other customers. Eventually the appellant said to him, 'What the fuck do you want?'. Mr Zaccaria asked the appellant to leave (ts 245).

(e) Instead of leaving, the appellant grabbed a bottle from a shelf. Mr Zaccaria removed it from his hands. The appellant then picked up a bottle of bourbon, and in the ensuing struggle it was dropped (ts 245 - 246).

(f) In the meantime, a security guard, Mr Wreh, arrived. He escorted the appellant from the store with the assistance of Mr Zaccaria. The appellant's two friends returned saying, 'Don't touch him. Leave him alone'. While the appellant was being escorted from the store, he grabbed the security guard's neck tag and keys. The female friend ran behind him and stole a bottle of wine (ts 246).

(g) Mr Zaccaria and the security guard retrieved the neck tag and keys from the appellant. When they returned to the shop the appellant's male friend re-appeared and said, 'Did you want to get stabbed?' The appellant and his two friends then left (ts 246).

(h) The security guard realised that a bottle of wine had been taken and pursued the appellant. In the meantime, another security guard, Mr Maskiell, approached the liquor store. He saw the appellant and his male friend. The two security guards chased them (ts 246).

(i) As the security guards ran toward the appellant in the parking lot outside the shopping centre, the appellant became aggressive. He had been given the wine bottle by his female friend. The appellant shouted and wielded the wine bottle, raising and swinging it at the security guards who were standing close together (ts 246).

(j) The security guards began moving away from the appellant because they were taken aback by his reaction and wanted to avoid aggravating the situation. As the security guards moved backwards, the appellant yelled to his female friend, 'Give me the shank. Give me the shank'. Mr Maskiell knew that a shank is a knife and the appellant knew that there was a knife in his friend's purse (ts 246).

(k) As the security guards continued to move backwards, the female friend reached into her purse and pulled out a knife. The knife was in a sheath. She gave it to the appellant, who pulled the knife from the sheath and threw the sheath behind him (ts 246).

(l) The knife was a large dagger with a blade about 19 cm long. The appellant moved towards the security guards with the knife shouting, 'I'm going to fucking kill you'. When he began threatening the security guards he was about 4 m to 5 m away from them. Brandishing the knife, he ran to within a couple of metres. The appellant was not close enough to actually stab the men, but was close enough to engender fear (ts 247).

(m) When the appellant pulled the knife from the sheath the female friend shouted at the security guards, 'What are you going to do now?' The male friend shouted, 'I've got a dirty syringe. I'm going to fucking stab you' (ts 247).

(n) After the appellant had run within a couple of metres of Mr Maskiell, the female friend shouted, 'Let's go. Let's go', and the three of them ran to a nearby train station (ts 247).

(o) Most of the appellant's actions were captured on closed circuit television at the shopping centre. At the train station, other closed circuit television showed the appellant disposing of the knife and bottle. Soon after they arrived at the train station, they were arrested (ts 247).

(p) The appellant participated in a video recorded interview with the police after he had slept for five or six hours, while the police pursued their investigations (ts 247).

(q) After the appellant was fully awake, he declined to answer most of the police officers' questions, encouraged them to disclose the evidence they had against him, made some admissions, denied the most serious offending, lied to the police and acted in a manner that was 'aggressive and rude in the extreme' (ts 247).

The psychological report and the psychiatric report

12 The information before the sentencing judge included a psychological report dated 8 June 2012 from Daniela Barbuzza, a clinical psychologist, and a psychiatric report dated 7 June 2012 from Dr Adam Brett, a consultant forensic psychiatrist.

The offending appears to have occurred in the context of [the appellant] associating with negative peers, being under the influence of substances, having a reaction to feeling judged and expressing his anger inappropriately, together with distorted views around violence. [The appellant] admitted to some of the current offending but maintained that he did not threaten the victims and minimised the role of the knife involved in the offending and the impact of his offending on the victims, despite making comments to portray remorse and victim empathy when challenged by the interviewer.

[The appellant] has an entrenched history of substance abuse, which he seems to use to 'self medicate' for his social anxiety, depression, and lack of confidence (7).

14 The trial judge recorded in his sentencing remarks that Ms Barbuzza noted in her report that the appellant had told her that he had been 'abstinent from all substances since his arrest for the [current] offences' (ts 10). The appellant's statement to Ms Barbuzza was untrue.

15 His Honour made findings about the appellant's personal circumstances, as follows:

(a) The appellant was born on 15 February 1988. He was aged 24 years when he was sentenced and was 23 at the time of the offending (ts 248).

(b) He is the youngest of three children born to his parents (ts 248).

(c) The appellant described his childhood as 'confusing' as his mother was mentally unwell and a heavy drinker. He said his father was largely absent while he was growing up because of his work as a guitar teacher and musician (ts 248 - 249).

(d) His parents separated when he was 14. Initially, the appellant lived in Perth with his father, but then relocated to Pemberton to live with his mother and her new partner. That lasted just three months because of what the appellant described as 'feral conditions' (ts 249).

(e) The appellant returned to the city to live with his father. He now has a good connection with his father and his father is supportive of him (ts 249).

(f) The appellant has been in a relationship for about 12 months and his current girlfriend does not abuse drugs or alcohol, unlike women he has been involved with in prior relationships (ts 249).

(g) He left school during Year 9. He began working in a factory with his mother. This lasted two months. He then spent significant periods of time at a skate park with friends who, like him, had an interest in drugs and alcohol (ts 249).

(h) At some point he had a job in a bakery for about six months. Otherwise, apart from what is revealed by his criminal record, it is not apparent what he has done with his life to date (ts 249).

(i) The appellant's abuse of drugs and alcohol underpins his criminal behaviour (ts 249).

(j) He started drinking alcohol and using marijuana at age 13 or 14. While he only uses marijuana occasionally, he drank heavily until his arrest for these offences (ts 250).

(k) The appellant began abusing benzodiazepines from age 16 or 17, which he obtained by 'doctor shopping'. Typically, he combined benzodiazepines and alcohol so that he would feel confident and not experience social anxiety and paranoia (ts 250).

16 The appellant has a reasonably extensive prior criminal record. The sentencing judge made these observations about it:

(a) The appellant's first offence as an adult, of which he was convicted in March 2006, involved carrying an article with intent to cause fear that someone would be injured or disabled. A $500 fine was imposed (ts 250).

(b) In June 2006, he was convicted of trespass and fined (ts 250).

(c) In February 2007, he was convicted of two offences of unlawful damage, one offence of obstructing public officers, one offence of assaulting a public officer, and one offence of criminal damage. The offence of criminal damage attracted a community based order for 9 months while the other offences were punished by fines (ts 250). The offence of assaulting a police officer involved the appellant pushing a female officer in the chest, grabbing her in a headlock and attempting to pull her to the ground (ts 251).

(d) The community based order was cancelled because the appellant reoffended. In August 2007, he was convicted of 13 offences of unlawful or criminal damage, a number of which were committed in March 2007, one month after the community based order was imposed. He was fined (ts 251).

(e) In November 2007, he was convicted of two offences, one of them being a breach of the community based order. He was given a conditional release order for 6 months on a $500 undertaking (ts 251).

(f) In June 2008, he was convicted of offences committed in January 2008, including two offences of stealing, one offence of unlawful damage and one offence of possession of things for graffiti. A $500 fine was imposed (ts 251).

(g) In November 2008, he was convicted of offences of unlawful damage and possession of things for graffiti, committed in September 2008. Larger fines were imposed (ts 251).

(h) An offence of criminal damage committed in August 2008 was dealt with in December 2008 by a suspended imprisonment order. He was also convicted of obstructing public officers and was fined (ts 251).

(i) In August 2009, he was convicted of one offence of breaching the suspended imprisonment order, two offences of aggravated armed robbery, and one offence of being an accessory after the fact to an indictable offence. He was sentenced to 18 months' immediate imprisonment. A further sentence of 3 months' immediate imprisonment (concurrent) for burglary was imposed in September 2009 (ts 251).

(j) His application for parole while serving those sentences was refused by the Prisoners Review Board because of his high risk of reoffending and the risk to the safety of the community (ts 251 - 252).

(k) In December 2010, about one month after he was released from prison, he was convicted of unlawfully destroying property and possessing things used for graffiti. He was sentenced to a community based order for 12 months and fined. The community based order was breached (ts 252).

(l) On 17 December 2010, he committed the offence of stealing, for which he was fined $400 in January 2011 (ts 252).

(m) In May 2011, he committed the offence of failing to obey an order given by a police officer and was fined (ts 252).

17 The sole ground of appeal alleges that the sentencing judge erred 'when, contrary to accepted principles of sentencing, he determined to sentence the appellant without regard to his youth because he had shown no inclination to reform'.

18 Particulars of the proposed ground assert that the appellant's youth 'was such that he did not have the maturity and judgment of an older person' and that his Honour accepted that the appellant had made an effort to rehabilitate.

19 The sentencing judge dealt with the appellant's age, as an alleged mitigating factor, as follows:

The other factor raised here is your youth. You're now 24; you were 23 at the time of this offending. And, as your counsel rightly says, that youth is normally recognised as a mitigating factor, because ordinarily it holds the greatest possibility of reform, because the immaturity of youthful judgement is well known ... [However,] with respect to crimes of violence and serious offences, its mitigating effects are limited.

Despite that, even so, if imprisonment is the norm and inevitable for the type of crime, youth as a mitigating factor may still warrant a lower sentence than would otherwise be warranted to avoid what might otherwise be a crushing sentence.

A time has to come though when the mitigating effects of youth are diminished. In terms of your chronological age, you're just about there anyway. But when, as here, a young offender has already been before the courts and, as here, has shown no inclination to reform, they should expect that sentences appropriate to their offending will be imposed without regard to their youth.

A factor that I have to have regard to is your prospects for rehabilitation and indeed efforts that you've made at your rehabilitation since this offending. I acknowledge that there have been efforts by you to deal with your drug and alcohol problems and rehabilitate yourself, and those are factors that are properly taken into [account] in mitigation. I have to say though, so far as the prospects of your rehabilitation, it's difficult to be optimistic.

I've referred to the way that you reverted to drug use, even after the Holyoake sessions and the sessions with Dr Kumar and while you were on bail. I'm concerned, I have to say, at the way in which you minimise your offending, notwithstanding what I've been told you now say. All of those are matters of real concern (ts 13).

The merits of the proposed ground of appeal

20 In Ugle v The State of Western Australia [2012] WASCA 104, I made these observations (Pullin JA agreeing) in relation to the mitigating force of an offender's youth:

Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing [71]).

21 In the present case, the appellant's offending (in particular, the threats to unlawfully kill) was serious. There was little by way of mitigation. As the trial judge noted, the appellant's pleas of guilty were 'virtually worthless in mitigation' (ts 13) and he had evinced no remorse (ts 13). The appellant has a reasonably extensive criminal record. Most of his prior offences have involved relatively minor antisocial behaviour (for example, criminal or unlawful damage and possession of things for graffiti), but he also has recent convictions for burglary (one count) and aggravated armed robbery (two counts). His Honour found that the appellant had made some effort towards rehabilitation since his arrest, but he had minimised his offending behaviour and it was difficult to be optimistic about his prospects of rehabilitation (ts 13).

22 In my opinion, it was open to the trial judge to form the view that, in the circumstances, the sentences to be imposed on the appellant should not be reduced on account of his age. His Honour's view was justified by the following matters:

(a) The seriousness of the current offences (notably, the threats to unlawfully kill).

(b) The dominant sentencing considerations were appropriate punishment and personal and general deterrence.

(c) The appellant was a young adult, but he was 23 at the time of the offending and 24 when sentenced. He was not especially youthful. It was not suggested that he was unusually immature for his age. His offending was driven by substance abuse.

(d) The justice system had previously attempted, unsuccessfully, to rehabilitate the appellant. His prior offending had been dealt with primarily by fines, community based orders and suspended imprisonment. His prospects of rehabilitation were doubtful.

23 The fact that the appellant has a prior criminal record and that the previous sentences have not achieved the purposes for which they were imposed are not, of course, aggravating factors.

24 However, the matters to which I have referred, when evaluated and weighed in combination, formed a proper basis for his Honour's decision that the appellant should not be extended any leniency, or any discount on an otherwise appropriate sentencing outcome, because of his relative youth.

25 The proposed ground of appeal is without merit. The appellant does not have a reasonable prospect of establishing that the trial judge made the alleged error.

26 Leave to appeal should be refused and the appeal dismissed.