Criminal law - Leave to appeal against sentence - Attempted armed robbery - Manifest excess

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)

Wilson v The State of Western Australia [2010] WASCA 82

Woodcock v The State of Western Australia [2011] WASCA 227

2 MAZZA JA: This is an application for an extension of time and for leave to appeal against sentence.

3 The appellant pleaded guilty on the fast-track system to two counts of attempted armed robbery. On 2 November 2012, he was sentenced by Curthoys DCJ to 16 months' imprisonment on each count, to be served concurrently. Thus, the total effective sentence imposed upon the appellant was 16 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 23 October 2012.

4 The appeal was filed some 2 1/2 weeks out of time. The affidavit supporting the application for an extension of time is not particularly illuminating but, in the circumstances, I am prepared to extend time.

5 The facts of the offending are as follows. At approximately 8.45 pm on 9 July 2012, the appellant and his co-offender, Daniel Paul Cooke, drove in the appellant's car to a fast-food store in Kalamunda. Mr Cooke put a balaclava over his head and gloves on his hands. He then entered the fast-food store armed with a large machete and demanded that the staff hand over money. When the first employee did not comply, Mr Cooke turned to a second employee and repeated the demand. After waiting unsuccessfully for a few moments, Mr Cooke slammed his machete onto the counter and left the store empty-handed. He returned to the appellant who remained, at all times, in the car, and the pair drove away.

6 Undeterred, the appellant and Mr Cooke drove to another fast-food store in Midland. At approximately 9.35 pm, Mr Cooke again put a balaclava over his head and gloves on his hands. He entered the fast-food store armed, as before, with the machete and demanded that the staff hand over money. The two employees did not comply, and after waiting a few minutes Mr Cooke left the store with nothing. He returned to the appellant, who had remained in the vehicle, and they drove away.

7 A short time later, the vehicle being driven by the appellant was stopped by police. A search of the vehicle revealed the machete, balaclava and gloves. The offenders were arrested and conveyed to the Midland police station. The appellant was interviewed and made full admissions.

8 There is one proposed ground of appeal. It alleges that the sentences imposed for each of the two offences were manifestly excessive. For a ground of appeal to receive a grant of leave it must have a reasonable prospect of success. If the ground does not reach this threshold, the appeal must be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA). The relevant general principles applicable to sentence appeals are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

9 At the time of the offending, the appellant was 19 years of age. His parents separated when he was very young. For the most part he was raised by his mother. At the age of 18, he left home as a result of friction with his mother's partner. He moved into a house with a number of drug users and became, as he put it, 'hooked' on methylamphetamine. His habit got to the point where he was no longer able to afford to buy the drug. He resorted to drug dealing and the motivation behind his participation in the attempted armed robberies was to obtain money to finance his drug use. After his arrest, the appellant went to live with his father, who has had a positive influence upon him. The appellant voluntarily undertook drug rehabilitation counselling and obtained full-time employment. He has a minor and irrelevant prior criminal history.

10 His Honour found that the offences were premeditated and persistent. He observed that the victims of the offences were vulnerable night workers at fast-food outlets and that the offences were committed at night in an attempt to avoid detection. He noted the use of the machete.

11 His Honour found that although the appellant did not enter the fast-food stores, he was fully aware of what his co-offender intended to do.

12 His Honour acknowledged the appellant's favourable antecedents, including his age, and positive changes in his life since the commission of the offence. He also acknowledged that the appellant had taken responsibility for his actions and expressed empathy for his victims.

13 His Honour considered that notwithstanding the mitigating factors, the only appropriate penalty was a term of imprisonment.

14 Mr Cooke was sentenced to a term of 18 months' imprisonment.

15 Mr Watters, on behalf of the appellant, did not argue that his Honour had erred by imposing the wrong type of sentence. He conceded that a term of immediate imprisonment was the only appropriate sentence. Mr Watters' primary argument was that the length of the sentence imposed was too long, having regard to the appellant's youth, his favourable antecedents, prospects for the future and pleas of guilty. There was no complaint that the sentences imposed upon the appellant breached the parity principle.

16 Whether a sentence is manifestly excessive is to be gauged from the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender.

17 The maximum penalty for the offence of attempted armed robbery is 14 years' imprisonment. In Woodcock v The State of Western Australia [2011] WASCA 227, I discussed a number of cases in respect of attempted aggravated armed robbery and attempted armed robbery. The sentences imposed in other cases show that significant sentences of immediate imprisonment for attempted armed robbery are not unusual, even for young offenders. The individual sentences imposed in this case are not out of kilter with sentences imposed in other cases.

18 Each offence committed by the appellant was serious. The offences were, as his Honour pointed out, premeditated and persistent. Although the appellant's role was as the getaway driver, he was well aware of the intended actions of Mr Cooke. In particular, he was aware that Mr Cooke was disguised and was armed with a large machete. The appellant was not dissuaded from the plan to steal money when the robbery on the first fast-food shop was unsuccessful.

19 The victims in each case were vulnerable. Fast-food establishments which open late into the night are soft targets for this kind of offending. There is a need to protect those who work in this industry, who are frequently young and suffer emotionally as a result of this kind of offending. Thus general deterrence was a matter of importance in this case.

20 It must be said that the appellant's antecedents were favourable. His youth, in particular, was a weighty mitigating factor, as was the fast-track pleas of guilty. His Honour took these matters into account. However, they had to be balanced against the seriousness of the offences and the need to provide general deterrence.

21 Having regard to all of the circumstances, I am not persuaded that it is reasonably arguable that the sentences were manifestly excessive. They were a sound exercise of his Honour's sentencing discretion. They were not plainly unreasonable or unjust. The appeal must be dismissed.

1. An extension of time to appeal is granted.
2. Leave to appeal is refused.
3. The appeal is dismissed.