Biggers v State of Western Australia
[2004] WASCA 47
•22 MARCH 2004
BIGGERS -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 47 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:86/2003 | 19 FEBRUARY 2004 | |
| Coram: | WHEELER J MILLER J EM HEENAN J | 22/03/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted, Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DENNIS THOMAS BIGGERS STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Armed robbery Disclosure of other offences Turns on own facts |
Legislation: | Nil |
Case References: | Ryan v R (2001) 206 CLR 267 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BIGGERS -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 47 CORAM : WHEELER J
- MILLER J
EM HEENAN J
- Appellant
AND
STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File Number : INS 134 of 2003
Catchwords:
Criminal law and procedure - Appeal against sentence - Armed robbery - Disclosure of other offences - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr R E Cock QC & Ms L J Van Der Ende
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ryan v R (2001) 206 CLR 267
Case(s) also cited:
Nil
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1 WHEELER J: This is an application for leave to appeal against sentence. On 4 June 2003 the applicant was convicted of one count of stealing a motor vehicle, two counts of aggravated armed robbery and one count of armed robbery. He was sentenced to a term of 2 years imprisonment in respect of count 1, and 8 years for each of the remaining counts. Counts 1, 2 and 3 were ordered to be served concurrently with each other, whilst count 4 was ordered to be cumulative upon those. This resulted in a total sentence of 16 years. No order for parole eligibility was made.
2 The armed robberies were serious ones of their kind. The vehicle seems to have been stolen as part of the exercise in armed robbery. On the first and last of the armed robbery occasions, the applicant went to the National Australia Bank in Maddington stealing a total of over $46,000. In relation to the third count, he stole a significant amount of money from the Commonwealth Bank at Boulder, being the same bank that he had targeted with an armed robbery in 1998. In each case, the applicant was armed with a sawn-off shotgun. He wore a balaclava to conceal his face. He was in company with another during two of the three armed robberies. He pointed the firearm at bank employees and he entered the banks at times when it could be expected that there would be customers present, as indeed there were. Although significant quantities of money were stolen, there was little actually gained by the applicant, since on two of the three occasions bank staff were able to insert dye packets into the money that was stolen, making it useless.
3 The applicant's record was not good. He had committed armed robberies in the past, and his previous parole from one of those offences had been cancelled as a result of the present offending, with the result that he would be required to serve a term expiring in January 2007 in respect of those parole days. The learned sentencing Judge appeared to take the view that he had also breached the parole granted in New South Wales in respect of an offence there, but that appears not to have been the case.
4 Although the offences were serious ones, there were mitigating factors. Not only had the applicant pleaded guilty, but it appears that when arrested and interviewed in relation to the commission of the fourth offence, he confessed to his involvement in the other three. Whether police at that time suspected his involvement in the other offences is not known. However, the applicant's confession to offences about which he was not at the time being interviewed would entitle him to a sentencing discount greater than that usually given for a simple confession and a bare plea of guilty: Ryan v R (2001) 206 CLR 267. In addition, he provided
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- certain information in relation to his co-offender, who was at the time uncooperative and evasive. He was aware that the provision of that information might have implications for his personal safety while in jail.
5 A pre-sentence report explained that the applicant said that at the time of the offences he had been dismissed from his employment, as his employer had learnt of his criminal record, and that he was experiencing significant financial problems. He needed money to pay back a loan that had compounded to $10,000, and $17,000 in arrears of child support. There was also what he saw as a pressing need to repay a debt on his son's behalf. He had led a nomadic lifestyle with his family always moving around as a child, and it appears that he had been a victim of sexual abuse during his early teens. He then began running away from home and stealing in order to support himself. As a result he spent a considerable amount of time in juvenile institutions. It was true that he had failed to complete parole successfully in the past, although when released he had initially complied with conditions of parole. By the time of his sentencing, he was 42 years of age.
6 The learned sentencing Judge took the view that the appropriate starting point for each armed robbery was a sentence of 12 years. He discounted that by 25 per cent to take account of the plea of guilty, and then further reduced it, apparently by one year, for the cooperation with police and other personal factors. He therefore sentenced the applicant in the way which I have already described. He observed that logically each of the sentences should be cumulative but that to do that would result in a total sentence which would be disproportionate to the overall criminality. His Honour observed, "By reason of your record, notwithstanding the plea made, I decline to make a parole eligibility order".
7 Turning first to the issue of parole, whilst the applicant's record of course gave rise to concern about his ability to benefit from parole, it must at the same time be recalled that the longer the sentence imposed, the more difficult it is to prognosticate with any degree of confidence about the likely position of the offender at the time at which he might become eligible for parole. There were certainly indications that the applicant was, however slowly, maturing and appreciating the seriousness of his conduct. His confession and cooperation with authorities might well give rise to the view that he could in time benefit from parole. In addition, he wrote a detailed letter to the learned sentencing Judge, pointing out what he considered to be the pressures upon him at the time of the offending, expressing the view that he was in one sense relieved to be arrested, and expressing concern both for the effect of his offending on his de facto
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- partner at the time and on the victims of his offences, in terms which suggested a degree of insight into the effect on those persons of his conduct. Notwithstanding the reservations expressed in the pre-sentence report, and the understandable concern arising from his past record and performance on parole, it seems to me that there was sufficient material before his Honour to suggest to that, particularly if a lengthy sentence was imposed, as was appropriate for such offending, parole eligibility should be ordered.
8 The question of the appropriate length of sentence is a more difficult one. The applicant correctly points out that a total term of 16 years is a very high one, and that such sentences are rare even where multiple armed robberies have been committed. It is my view that the starting point of 12 years nominated by his Honour was appropriate, having regard to the seriousness of the offences. However, it appears that there was an error in the discount which was given for the plea of guilty. As already noted, there was not only a bare plea of guilty, but there was a confession to offences which, so far as the applicant was aware, were at that time unknown to police. A plea of guilty in circumstances of that kind seems to me more appropriately to attract a discount of the order of one-third. Some allowance would also have to be made, as his Honour correctly indicated, for the cooperation with the authorities and the serious personal difficulties in the applicant's background. It would therefore appear to me with respect, that a sentence of 7 years in respect of each of the armed robberies would have been more appropriate.
9 However, even having identified error, the question arises as to whether a different sentence "should have been passed". In that context, I should note that on one view his Honour was generous to the applicant by ordering that the term which he imposed be served wholly concurrently with the parole days which were owed by the applicant, and that he made sentences for only two of the armed robberies cumulative on each other. It would obviously be inappropriate to apply the "one transaction" rule in respect of three separate armed robberies and a stealing offence. Also, it would be difficult to regard a sentence of 16 years imprisonment, although severe, as "crushing".
10 However, there is also the circumstance that all three offences were committed in a relatively short period of time, and as the applicant describes it, in response to the same set of what he regarded as extremely pressing financial circumstances following the loss of his job. With some hesitation then, I have taken the view that it would be appropriate, as the learned sentencing Judge did, to make only the sentence for count 4
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- cumulative upon the others. I would therefore substitute for the terms imposed by his Honour, terms of 7 years imprisonment in respect of each of counts 2, 3 and 4, with count 4 to be served cumulatively. Because of the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) it is necessary to reduce those terms by one-third. I would therefore impose in respect of each of those offences terms of 4 years 8 months, with an order for eligibility for parole.
11 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J. I agree with those reasons and with the orders proposed by her Honour. There is nothing I wish to add.
12 EM HEENAN J: I have had the advantage of having read in draft the reasons for decision of Wheeler J. I am in agreement with those reasons and the orders which her Honour proposes. I would therefore grant leave to appeal, allow the appeal and substitute for the terms imposed by his Honour, terms of 7 years' imprisonment in respect of each of counts 2, 3 and 4 with count 4 to be served cumulatively. For reasons explained by Wheeler J this means that, in respect of each of those offences, terms of 4 years and 8 months should be imposed and that there should be an order that the appellant is eligible for parole.
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