Abbott v The State of Western Australia

[2007] WASCA 105

ABBOTT -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 105

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 105
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:121/2006	Heard:	15 MAY 2007
Coram:	STEYTLER P McLURE JA MILLER AJA	Delivered:	24/05/07
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	D
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Parties:	CANDICE JOY ABBOTT THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentencing Relevance of sentencing range for armed robbery Whether open to impose suspended imprisonment Turns on own facts
Legislation:	Nil
Case References:	Chivers v The State of Western Australia [2005] WASCA 97 Lowndes v The Queen (1999) 195 CLR 665 Markarian v The Queen (2005) 215 ALR 213 Miles v The Queen (1997) 17 WAR 518 R v Shaharuddin [1999] WASCA 229 The State of Western Australia v Wells [2005] WASCA 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ABBOTT -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 105 CORAM : STEYTLER P

McLURE JA
MILLER AJA

HEARD : 15 MAY 2007 DELIVERED : 24 MAY 2007 FILE NO/S : CACR 121 of 2006 BETWEEN : CANDICE JOY ABBOTT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JOHNSON J

File No : INS 22 of 2006

Catchwords:

Criminal law - Sentencing - Relevance of sentencing range for armed robbery - Whether open to impose suspended imprisonment - Turns on own facts

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Legislation:

Nil

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant : Mr A Karstaedt
Respondent : Mr P Yovich

Solicitors:

Appellant : Anthony Karstaedt
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chivers v The State of Western Australia [2005] WASCA 97
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 215 ALR 213
Miles v The Queen (1997) 17 WAR 518
R v Shaharuddin [1999] WASCA 229
The State of Western Australia v Wells [2005] WASCA 23


(Page 3)

1 STEYTLER P: I agree with McLure JA.

2 McLURE JA: The appellant was convicted on her own plea of guilty of one count of armed robbery. She was sentenced to a term of immediate imprisonment of 3 years and 5 months and was made eligible for parole.

3 The appellant appeals against the sentence on the grounds that:

(1) the sentence is manifestly excessive;

(2) the sentencing Judge erred in treating the sentencing range of 7 - 10 years as a mandatory sentencing range;

(3) alternatively, the sentencing Judge erred in treating the sentencing range of 7 - 10 years as applicable in the circumstances;

(4) the sentencing Judge erred in giving a 30 per cent discount for all mitigating factors;

(5) the sentencing Judge erred in concluding that a sentence of suspended imprisonment was not open on the authorities and in not considering that sentencing option.

4 The facts are as follows. The appellant and her partner are addicted to morphine. On 20 November 2005 the appellant and her partner, who usually reside in Albany, were in Perth after attempting to detoxify. However, the appellant could not tolerate the withdrawal effects and she and her partner went to a pharmacy in Bentley at around 9 am. The appellant entered the pharmacy and explained her situation to the pharmacist on duty. She requested some MS Contin tablets, a prescription drug containing morphine. The pharmacist said she could not give them to her without a prescription and informed the appellant there was a medical centre nearby but that it did not open for several hours.

5 The appellant left the pharmacy. Using a syringe, the appellant withdrew some of her blood. She was aware she had Hepatitis C. The appellant returned to the pharmacy and again spoke to the pharmacist. The appellant rejected other medication offered to her. The appellant then walked around the counter. She was holding the syringe in her hand which was down by her side. She said "I'm sorry to have to do this but I need morphine".

6 The pharmacist went to the back room to get the morphine and the appellant followed her. The pharmacist opened the safe and took out two 30 milligram ampoules. The appellant said she needed 300 milligrams.

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The pharmacist removed 10 ampoules and put them on the prescription counter. The appellant left the store with the ampoules. The value of the drugs taken was $20. The appellant injected herself with the morphine a short time later.

7 The following day the appellant voluntarily went to the Albany Police Station after being told by her mother that the police were looking for her. She participated in a video-recorded interview and admitted the offence. The appellant made a fast track plea of guilty.

8 The complainant pharmacist stated in her deposition that the appellant spoke very softly and sounded apologetic. The pharmacist declined to provide a victim impact statement stating that the offence did not have a huge impact on her and she felt the offender needed help and was happy for the court to be told her view in that respect.

9 The appellant was aged 24 at the time of the offence. She has a 7-year old child. The appellant commenced using drugs in her early teenage years. She was the victim of emotional, physical and sexual abuse as a child. Notwithstanding these considerable disadvantages, the appellant has held a number of responsible employment positions. Her last position with the Southern Aboriginal Corporation ended as a result of the collapse of that corporation. She had also worked in the Health Department and at one time was an assistant to the manager of the Albany Regional Hospital. The appellant had no relevant prior record of offending.

10 On 23 February 2006 the sentencing Judge imposed a pre-sentence order under Pt 3A of the Sentencing Act 1995 (WA) ("the Act"). On a review under s 33C(2) of the Act the pre-sentence order was cancelled on 27 June 2006 as a result of a report from the appellant's Community Corrections Officer made pursuant to s 33I to the effect that it was unlikely the appellant could achieve a drug-free lifestyle in the foreseeable future. No issue is taken with the conditions the subject of the pre-sentence order or its cancellation.

11 Upon cancellation of the pre-sentence order, the sentencing Judge was required to sentence the appellant. In her reasons, the sentencing Judge said that "the appropriate range for an offence of armed robbery involving the use of a syringe is between seven to 10 years" (T 60).

12 After referring to some of the circumstances, including the fact that the offence occurred on the spur of the moment after the appellant was unable to obtain substitute drugs, that the appellant was very remorseful

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and that the offence had minimal effect on the complainant, the trial Judge stated that she proposed "to set the term of imprisonment at the lowest end of the scale available to me and that is at seven years" (T 61).

13 She then reduced that term by one third as required by the transitional provisions. After referring to the mitigating factors including the appellant's fast track plea of guilty and her personal antecedents, the sentencing Judge said (T 61):

"I have considered that in all the circumstances the appropriate deduction that is to be made on your sentence is that of 30 per cent. That takes into account your plea and all the other matters personal to you. On my calculation at least that brings the sentence of imprisonment that I now impose on you to three years and five months."

14 The sentencing Judge did not expressly consider in her reasons the sentencing option of suspending imprisonment. The reason for that emerges from an exchange between the sentencing Judge and counsel during the course of oral submissions in which the sentencing Judge noted that she could not in the circumstance suspend the sentence because it would not be open to her on the authorities (T 57).

15 The applicable legal principles for the disposition of an appeal against sentence are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge (Lowndes v The Queen (1999) 195 CLR 665). It is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons. Alternatively, error may be inferred if the sentence is manifestly excessive. I propose to start with ground of appeal 2.

Ground 2 - Sentencing range

16 The Court of Criminal Appeal in Miles v The Queen (1997) 17 WAR 518 provided guidance as to the range of sentences commonly imposed for the offence of armed robbery, before taking into account mitigating factors. The range is not prescriptive or mandatory but rather identifies that which is generally regarded as the range.

17 The seriousness of the circumstances of the offending can vary widely and towards the extremes may fall outside the upper and lower limit of the range. In each case, a sentencing judge must consider whether the circumstances of the case at hand are of a scale of seriousness as to

(Page 6)

fall outside the range. The State correctly conceded that if the sentencing Judge in this case regarded the range as mandatory, that would constitute a material error that enlivened this Court's power to intervene to set aside the sentence and re-exercise the sentencing discretion. It is apparent from the language used by the sentencing Judge quoted above that she regarded the sentencing range of 7 to 10 years under the former sentencing regime (4 years and 8 months to 6 years and 8 months under the new sentencing regime) as mandatory thereby improperly fettering her sentencing discretion. I would uphold ground of appeal 2.

18 In the circumstances, it is unnecessary to determine the remaining grounds of appeal. However, I should mention that the appellant at the hearing did not press her submission that the term of imprisonment should have been suspended. With the effluxion of time, such a course would be to her disadvantage. However, I note for the record that the trial Judge erred in concluding that a sentence of suspended imprisonment was not open on the authorities. It is open to a sentencing judge to impose suspended imprisonment or a non-custodial sentence for an offence of armed robbery in appropriate circumstances: The State of Western Australia v Wells [2005] WASCA 23. As Wheeler JA noted in Wells at [10], 1999 statistics indicated that a non-custodial sentence for armed robbery was imposed in about 7 to 10 per cent of cases, citing R v Shaharuddin [1999] WASCA 229 at [13] per Malcolm CJ. In 2004 75.8 per cent of convictions for armed robbery resulted in imprisonment (UWA Crime Research Centre "Crime and Justice Statistics for Western Australia 2004", table IX, p 73).

Re-exercise of sentencing discretion

19 I propose to adopt the preferred instinctive synthesis approach to sentencing rather than the two-tiered approach (see Markarian v The Queen (2005) 215 ALR 213; Chivers v The State of Western Australia [2005] WASCA 97 at [20] - [27] per Steytler P).

20 Notwithstanding the use of a syringe containing contaminated blood, the circumstances of the appellant's offending are low on the scale of seriousness of crimes of this type. The primary basis for this conclusion is the complainant's description of and reaction to the appellant's conduct. The appellant was softly spoken, apologetic and kept the syringe in the most passive and non-aggressive position consistent with a threat of violence. I infer the complainant did not perceive that her safety was seriously in jeopardy. In addition, there are numerous mitigating factors. The appellant entered a fast track plea of guilty; she cooperated with

(Page 7)

police and was found to be truly remorseful; she was relatively young at the time she committed the offence; notwithstanding her longstanding addiction to morphine, she had no relevant prior record of offending. I have also had regard to the disadvantage she suffered in her early years and what she has achieved to overcome that disadvantage in the responsible positions she has secured. Having regard to all relevant matters I would impose a term of immediate imprisonment of 2 years (which equates to 3 years under the former sentencing regime).

21 For these reasons, I would set aside the sentence imposed by the sentencing Judge and in lieu thereof impose a sentence of imprisonment of 2 years backdated to commence from 27 June 2006. The appellant will remain eligible for parole.

22 MILLER AJA: I have had the advantage of reading in draft the reasons for judgment of McLure JA. I agree with those reasons and the conclusion reached by McLure JA. I have nothing to add.