Alford v The State of Western Australia
[2018] WASCA 186
•23 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALFORD -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 186
CORAM: MAZZA JA
BEECH JA
HEARD: 5 SEPTEMBER 2018
DELIVERED : 23 OCTOBER 2018
FILE NO/S: CACR 41 of 2018
BETWEEN: AARON TOBIAS ALFORD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEVY DCJ
File Number : IND 576 of 2017
Catchwords:
Criminal law - Appeal against sentence - Two counts of assaulting public officer - Whether total effective sentence infringed first limb of totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 318(1)(d)
Sentencing Act 1995 (WA), s 9AA, s 32
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Minton v McAlinden [2017] WASC 99
Roncevic v The State of Western Australia [2012] WASCA 43
Stickells v The State of Western Australia [2018] WASCA 160
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
JUDGMENT OF THE COURT:
At about 7.05 am on 1 April 2016, police officers from the Organised Crime Squad executed a search warrant at the appellant's house in Morley.[1] During the search, the appellant armed himself with a loaded .22 calibre revolver and pointed it, at close range, at the heads of two police officers.[2] Each of them thought that he was about to be killed.[3] The appellant did not discharge the firearm. He was quickly disarmed and arrested. The appellant was not licensed to possess the revolver. The police found in the house a quantity of cannabis and methylamphetamine, as well as various drug paraphernalia and ammunition.[4]
[1] ts 24.
[2] ts 36.
[3] ts 34.
[4] IND 593 of 2016, ts 25 ‑ 28.
The appellant was charged with various offences in two indictments (indictment 593 of 2016 and indictment 576 of 2017) and a notice under s 32 of the Sentencing Act 1995 (WA).
On 30 September 2016, the appellant was sentenced by Schoombee DCJ in respect of five offences in indictment 593 of 2016, and eight offences contained in the notice under s 32 of the Sentencing Act. All of these offences arose out of the search conducted on 1 April 2016. It is unnecessary to particularise the individual offences and the sentences that were imposed. For present purposes, it is sufficient to note that the appellant received a total effective sentence of 2 years' immediate imprisonment with eligibility for parole to commence from 1 April 2016.[5]
[5] IND 593 of 2016, ts 39.
By indictment 576 of 2017, the appellant was charged with two counts of assaulting a public officer who was performing a function of his office or employment in a circumstance of aggravation, being that the appellant was armed with a dangerous weapon, namely a handgun, contrary to s 318(1)(d) of the Criminal Code (WA) (Code). This offence carries a maximum penalty of 10 years' imprisonment.
On 18 August 2017, the appellant was convicted on his pleas of guilty of the charges in indictment 576 of 2017. On 20 February 2018, Levy DCJ sentenced the appellant on each charge to 2 years' immediate imprisonment (reduced from 3 years to take into account totality, including in respect of the total effective sentence imposed by Schoombee DCJ) to be served cumulatively.[6] Thus, the total effective sentence imposed on indictment 576 of 2017 was four years' immediate imprisonment with eligibility for parole to commence on 1 April 2017.[7] The overall effect of the sentences imposed by Schoombee DCJ and Levy DCJ was that the appellant was required to serve 5 years' immediate imprisonment with eligibility for parole to commence on 1 April 2016.
[6] ts 44.
[7] ts 43 - 44.
The appellant does not complain about the sentences that were imposed upon him by Schoombee DCJ. This appeal concerns only the sentences imposed by Levy DCJ. The sole ground of appeal alleges that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle.
There is no merit to the proposed ground of appeal. Leave to appeal should be refused and the appeal dismissed. Our reasons for these conclusions are as follows.
The facts
We have already set out in general terms the facts relating to the offences of aggravated assault on a public officer. However, to appreciate the seriousness of these offences it is necessary to refer to some of the facts as found by Levy DCJ.
His Honour found that the two officers lawfully executed a search warrant on the appellant's premises. Before entering the premises, the police officers yelled out, 'Police'.[8] Each of them was wearing a police ballistic vest. After the police gained entry, the appellant came out of his bedroom and pointed a loaded revolver directly at the head of the first officer through the front door. The appellant then, separately, trained the revolver at the head of the other officer. The officers yelled at the appellant, 'Police, do not move, drop the gun'.[9] The appellant did not obey this command. He then attempted to close the hallway door and, again, raised the revolver, pointing it at the head of the first officer.[10]
[8] ts 36.
[9] ts 36.
[10] ts 36.
By this time, the other officer had aimed his police‑issued firearm at the appellant's body and begun to pull the trigger. However, he made the split‑second decision not to pull the trigger after the appellant retreated behind the hallway door.[11] It is a testament to the officer's training and experience that he did not fire his weapon at the appellant. He reholstered his weapon and, ultimately, the appellant was disarmed.[12] The appellant was extremely fortunate not to suffer death or serious injury.[13]
[11] ts 37.
[12] ts 37.
[13] ts 37.
The victim impact statements
The offences have had a serious adverse impact on each victim. The first officer resigned from the WA Police following the offences. His emotional state has significantly changed for the worse. He relives the incident every day and vividly sees the barrel of a gun pointing at his head. He has trouble sleeping most nights. His relationships with his family have become strained.[14]
[14] ts 38.
The other officer described how immediately following the incident he suffered from insomnia, hypervigilance, irritability and stress which affected his home life and relationship with his wife.[15] He has etched permanently into his memory the picture of the appellant 'holding a loaded silver revolver in his right hand aimed towards my face with his finger on the trigger … '.[16]
[15] ts 38.
[16] Victim impact statement of the other officer.
The reports
In sentencing the appellant, Levy DCJ obtained a pre‑sentence report and a report by forensic psychologist, Ms Claire Lynn, dated 5 October 2017.
According to the author of the pre‑sentence report the appellant sought to justify his offending behaviour by claiming that he believed the police officers were associates conducting a 'home invasion'. He reportedly minimised the seriousness of his actions towards the police officers. He said that a month prior to the offences he was the victim of a home invasion as a result of which he experienced extreme feelings of anxiety and paranoia. He maintained that when the police attended his home he panicked and wielded the gun with the intention of 'protecting himself'.
Ms Lynn noted that psychological testing revealed 'prominent anxiety' and 'a level of depression'. She observed that the appellant 'seemed somewhat detached from appreciating the threat and risk he posed to the physical and psychological integrity of the [police] officers'. Further, the appellant 'felt justified in having the gun and other weapons while preoccupied with fear and choosing to have them ready at hand for self protection'. She observed that the appellant lacked insight in that he focused on how others were contributing to his fear and distress and perceived need to defend himself, as opposed to his decisions and actions to associate with offenders and drug users as well as his own illicit drug use.
In letters the sentencing judge received from the appellant's parents, they mentioned that he had previously been diagnosed with ADHD.[17] The appellant's mother told Ms Lynn of the diagnosis.[18] There is nothing in the materials to indicate that the appellant was suffering from ADHD at the time of the offences or if he was, it had any causal connection to them.
[17] ts 40.
[18] Ms Lynn's report, page 3.
The appellant's personal circumstances
The appellant was 27 at the time of the offences and 29 when he was sentenced.[19] The appellant was brought up by loving and stable parents.[20] At the age of 13, the appellant's brother died in tragic circumstances, something he and his family have (understandably) struggled to cope with.[21]
[19] ts 38.
[20] ts 39.
[21] ts 40.
At school he struggled academically, although he was an excellent sportsman. He won a cricket scholarship. He did not complete year 12. After leaving school he worked in various jobs, including in a warehouse, up until about 2015.[22] He and his partner have a young child.[23]
[22] ts 39.
[23] ts 39.
The appellant has had problems with alcohol and illicit drugs since about the age of 16. A few months prior to his arrest, he was using and dealing in methylamphetamine.[24]
[24] ts 39.
As an adult the appellant has a lengthy criminal history, including possession and cultivation of cannabis, assault occasioning bodily harm and multiple driving offences.
The sentencing remarks
His Honour described the case as being 'in a category of its own'.[25] He categorised it as being, in his view, an extremely serious example of this sort of offence that fell towards 'the upper end of the scale'.[26] He quite properly remarked that as a result of the appellant's conduct, the appellant came very close to, if not death, serious injury.[27]
[25] ts 42.
[26] ts 42.
[27] ts 37.
His Honour observed that the appellant pleaded guilty to the offences at a trial listing hearing, and gave a discount pursuant to s 9AA of the Sentencing Act of 17.5%.[28] His Honour took into account that the appellant had, albeit belatedly, given some indications of remorse.[29] His Honour acknowledged that the appellant had not fully recovered from the profound effect of his brother's death, and that he retained the support of his family and partner.[30] The appellant's risk of violent reoffending was regarded as low.
[28] ts 42.
[29] ts 42.
[30] ts 40 - 41.
His Honour expressly took into account the totality principle.[31] He expressly reduced the individual sentences he imposed for the offences in indictment 576 of 2017 from 3 years' imprisonment to 2 years' imprisonment. He did so, in part, because of the sentences the appellant was already serving that had been imposed by Schoombee DCJ.[32]
[31] ts 43.
[32] ts 43.
General principles
The principles relevant to an appeal on the ground that the sentence infringes the totality principle may be summarised as follows:[33]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
[33] Stickells v The State of Western Australia [2018] WASCA 160 [36].
Submissions
The appellant did not challenge the individual sentences imposed by Levy DCJ. He submitted that his Honour should have ordered that the two sentences be served concurrently, having regard to the so‑called 'one transaction rule'.[34] He submitted that the two offences 'were essentially identical in character, they involved the same subject matter, and they were the manifestation of the same criminal incident or transaction'.[35] The appellant further asserted that the criminality of his conduct did not increase by the fact that the incident involved two police officers, not one.[36]
[34] Appellant's written submissions, par 22.
[35] Appellant's written submissions, par 27.
[36] Appellant's written submissions, par 28.
The appellant cited two cases decided by this court: Worthington v The State of Western Australia[37] and Roncevic v The State of Western Australia,[38] and a decision of a judge of the General Division of the Supreme Court: Minton v McAlinden,[39] in support of his argument that the total effective sentence infringed the totality principle.
[37] Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585.
[38] Roncevic v The State of Western Australia [2012] WASCA 43.
[39] Minton v McAlinden [2017] WASC 99.
In oral submissions, the appellant asserted that the incident was an 'accident', and that his conduct was somehow excused because he was 'on drugs' at the time.[40] Further, he 'thought his house was getting run through by … junkies'.[41]
[40] Appeal ts 11.
[41] Appeal ts 12.
Disposition
As we have already said, the maximum penalty for the offences committed by the appellant is 10 years' imprisonment.
The overall criminality engaged in by the appellant was unquestionably of a very high order. There was nothing 'accidental' about the appellant's conduct. He armed himself with a loaded revolver and aimed it directly at the head of one of the officers and then, separately, at the head of the other officer. He did not obey the command, 'Police, do not move, drop the gun' and, again, pointed the revolver at the first officer's head.[42]
[42] ts 24.
Whether the appellant was panicked, anxious or affected by drugs does not in any way mitigate his conduct. Being in any one or a combination of these states does not, in any way, justify being armed with a loaded firearm. The obvious and present potential for the unintended discharge of the revolver was, if anything, heightened by these factors. Had the appellant's revolver discharged, it is highly likely that the consequences would have been fatal. Of course, the appellant, by his actions, put himself in harm's way. It is extremely fortunate that the police officers did not, in justifiable self‑defence, fire at him.
There is a high need for general deterrence in cases such as this. Police officers acting lawfully in the execution of their duty must be protected. Offenders who threaten or use firearms against police officers have to expect serious punishment.
The appellant's conduct has had devastating and enduring consequences for both his victims.
Despite the sentencing judge's assessment that the appellant posed a low risk of violent reoffending, personal deterrence is of some relevance in this case. It is of concern that the appellant continues to maintain that he was justified in possessing a loaded firearm and using it. Accepting that he was the victim of a 'run through' some weeks before the commission of the offences cannot justify obtaining and having near him a firearm for his own protection.
There were mitigating factors, most significantly his pleas of guilty. However, it could not be said that the appellant was a person of previous good character. Nor did he have youth on his side.
We are unable to accept the appellant's submission that the so‑called 'one transaction rule' justified the imposition of totally concurrent sentences in this case. As this court has said on numerous occasions, the 'one transaction rule' is no more than a rule of thumb, and is not to be understood as an immutable rule that offences committed in the one transaction will always attract concurrent sentences. The duty of a sentencing judge is to impose a just and appropriate measure of the total criminality involved in the commission of multiple offences which occur in the one incident. Sometimes the imposition of concurrent sentences does not provide a just and appropriate measure of the total criminality involved. In such cases, a sentencer is obliged to impose a measure of cumulacy. The present case is one where to impose totally concurrent sentences would have resulted in a total effective sentence that did not adequately reflect the total criminality involved in the offences. Contrary to the appellant's submission, his criminality was increased by the fact that the incident involved two police officers, not one. By his conduct, the appellant put two victims through the terrifying ordeal of having a gun pointed at their head.
In our opinion, his Honour properly applied the totality principle. He reduced the individual sentences he would have otherwise imposed to give effect to the totality principle and took into account the total effective sentence that had been imposed by Schoombee DCJ.
The cases cited by the appellant were unhelpful. As his Honour correctly observed, the case was in a category of its own. The decision of a single judge in Minton is of little assistance. The outcomes in Worthington and Roncevic provide no real guidance.
In our opinion, the total effective sentence imposed by Levy DCJ did not infringe the totality principle. It bore a proper relationship to the overall criminality involved in the offences the appellant committed, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. In our opinion, the sentence imposed by his Honour was an entirely appropriate exercise of the sentencing discretion.
The proposed ground of appeal has no merit. Leave to appeal should be refused and the appeal dismissed.
The orders we would make are:
1.Leave to appeal is refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICES MURPHY AND MAZZA23 OCTOBER 2018
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