Blasco v The Queen - [2001] WASCA 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BLASCO -v- THE QUEEN [2001] WASCA 429

CORAM: WALLWORK J
PARKER J
OLSSON AUJ

HEARD: 20 NOVEMBER 2001

DELIVERED : 20 DECEMBER 2001

FILE NO/S: CCA 79 of 2001

BETWEEN: ANTHONY BLASCO
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Application for leave to appeal against sentence - Appellant convicted of one count of robbery with violence, whilst in company and one count of assault with intent to steal using actual violence, whilst in company - Common purpose involving group of men going to Burswood Park to accost, bash and rob persons thought to be gay - Serious assaults by some members of group on two men, occasioning them significant physical injury - Appellant not primary leader of group but felled one victim with punch to the head - In common with primary instigator, sentenced to 6 years' imprisonment on first count and 5 years' imprisonment on second, served concurrently with probation - Parity principle - Consideration of relative factors of aggravation and mitigation - Insufficient distinction between appellant and primary instigator

Legislation:

Nil

Result:

Leave granted
Appeal allowed
Each sentence reduced by one year

Category: B

Representation:

Counsel:

Applicant: Mr P J Hogan
Respondent: Mr S E Stone

Solicitors:

Applicant: Patrick Hogan
Respondent: State Director of Public Prosecutions

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

Postiglione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Goddard v The Queen (1999) 21 WAR 541
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Peters v The Queen [2000] WASCA 28
R v Grein [1989] WAR 178
R v Marchesano (1992) 61 A Crim R 372
R v Olbrich (1999) 199 CLR 270
R v Tait (1979) 24 ALR 473
Wade v The Queen [2001] WASCA 252

WALLWORK J: I agree with the reasons for judgment of Olsson AUJ and to the orders proposed by his Honour.
PARKER J: I agree with the orders proposed by Olsson AUJ and with the reasons now to be published by his Honour.
OLSSON AUJ: This is third in the trilogy of applications for leave to appeal against sentence arising from the convictions of a group of offenders who attacked, robbed and injured two men in Burswood Park on 18 May 2000.
As I recited in my reasons in relation to the offender Jarrah Miller, all four accused named in the relevant indictment were convicted, by verdicts of a jury, of the offences of robbery with violence and assault with intent to steal using violence in order to obtain the thing which they intended to steal.
In the case of the present applicant (to whom I shall refer as "the appellant") the jury found that he committed the offences in company, but rightly held that he had not been armed with a weapon at the time. He was sentenced to 6 years' imprisonment on the first count and 5 years' imprisonment on the second, both sentences to be served concurrently with eligibility for parole.
It is to be noted that the sentences are identical to those pronounced in relation to the co‑offender Norton, who was armed with some form of metal object (which may well have been a baseball bat) at the time.
The relevant background narrative facts were traversed by me in detail in my reasons relating to Miller and it is unnecessary to here retrace all of the same ground. I will merely concentrate attention on some additional factual material specifically touching on the appellant.
At the time of the offences, the appellant was 19 years of age. He was about four months' older than the offender Grimshaw, and had a not insubstantial antecedent record, much of it as a juvenile. His offences stem back to 1996 and include reckless driving, driving without a licence, careless driving, stealing and attempting stealing of a motor vehicle, burglary and commit offence, criminal damage, possess cannabis, breach bail and driving with an excess of the prescribed concentration of alcohol.
Very little was put to the learned trial Judge as to the appellant's precise role in the events of 18 May 2000, beyond what was said by him

in his record of interview and what emerged from Grimshaw's evidence before the jury, the substance of which was not challenged as to its accuracy.

He was not interviewed by the police until 20 July 2000, having left Perth after the relevant incident and gone to Collie.
There is no explanation as to how it was that the appellant was with the group which came to Miller's house, prior to going over to Norton's unit. He told the police, in his record of interview, that he had ingested about ten temazepam tablets and had been considerably affected by them to the point that he was "laughing pretty much the whole time".
The appellant's record of interview, coupled with Grimshaw's evidence at trial, suggests that the topic of Burswood Park and the activities of persons referred to as "poofters" there was first raised by Norton at Norton's unit, after the smaller group had arrived from Miller's house. It was said that Norton proposed that the group go down to the park and bash some "poofters" and take their money. The others agreed. The learned trial Judge appears to have accepted that version of events.
There is no doubt that it was a group consisting of Norton, the juveniles referred to as X and Y (one of whom was Norton's younger brother) and Blasco who initially confronted the victims Bury and D'Arcy. It is also clear that the incident commenced with a demand by X for money and with X snatching Bury's car keys from his hand.
The precise detailed sequence of events thereafter is by no means clear. Bury testified that, when asked to empty his pockets, he produced his car keys and said that was all he had. He was then "frisked" and required to identify his car and the location of it. When he tried to "make a run for it" he was tripped over and beaten with some object until, eventually, he managed to escape and run away.
D'Arcy testified that, in response to the demand for money, he said that he had none on him. According to both Grimshaw and the appellant, D'Arcy, in effect, said that all that he had were some Tic Tacs, which he offered to the group. The appellant conceded to the police that he was, for some reason, incensed by that offer and punched D'Arcy in the region of the left ear, knocking him to the ground. That victim was then set upon by the group and viciously beaten with one or more weapons, until he, too, eventually escaped.
It is by no means clear as to what part, if any, the appellant took in those subsequent attacks on D'Arcy. The learned trial Judge did not make any specific findings in that regard, other than to say:
" … it is quite clear from the evidence that you played an active part in confronting the complainants and on your own admission you punched the complainant D'Arcy in the side of the head.
I'm also satisfied that you played a part in impeding his escape and by your presence provided some encouragement to those in the group who struck Bury and D'Arcy with weapons. I have already noted that you played a part in concealing some of the weapons after the incident. Your attitude on the night in question is reflected in your comment that you saw the complainants being chased and, 'I just walked through the park back towards Robert, sort of laughing because it was sort of funny at the time.'
Your counsel has reminded me of some evidence to the effect that you had been taking some temazepam which may have affected your conduct, but this cannot excuse your conduct."
Following the assaults, the appellant joined with Miller in attempting to hide one or more of the weapons used in the park. He then left with Miller and stayed at his house overnight.
The learned trial Judge noted that the appellant had completed his schooling at Manjimup at the age of 15. He had been, and continued to be, a keen sportsman.
For a time, the appellant was employed at Manjimup, but then came to Perth, where he engaged in a series of different forms of employment. In 1997 he entered into a de facto relationship from which there were two children, aged two and a half years and four and a half months respectively at the time of sentencing. It was said that he was very committed to these children.
His biological parents separated when he was only a very small child and he did not ever have a really strong paternal influence.
It was put to the learned trial Judge that the relationship with his de facto wife had broken up several months prior to the commission of the offences and he also lost his employment. He became itinerant and indulged in substance abuse. He resorted to amphetamines and ecstasy, as well as other tablets. He was under the influence of temazepam at the time of the offences.
The learned trial Judge was told that, subsequent to the offences, the appellant became reunited with his de facto wife and ceased substance abuse. He admitted that he had assaulted Miller for co‑operating with the police, but has since apologised to him. He has good family support and his last employer wrote well of him and his more recent attitude.
In formulating an appropriate sentence, the learned trial Judge said that he took as his commencement point a term of 7 years for the first offence and 6 years for the second.
Having done so he commented:
"When I turn to mitigating factors I must begin by taking into account that you are only 20 years of age. I also take account of the fact that as a member of a group your judgment may have been affected by a sense of bravado and you may not have fully appreciated the consequences of your actions. The effect of these mitigating factors and the totality principle is that the sentence I am about to pass will be less than I would otherwise have thought appropriate."
It was on that footing that he imposed the sentences earlier referred to. Unsurprisingly, he declined to suspend them, having regard to the seriousness of the offences and the fact that the appellant had "played a part in formulating the unlawful purpose and then participated directly in the assault". It is apparent that the learned trial Judge saw no valid basis for discriminating between the appellant and the offender Norton, upon whom he imposed similar sentences.
The essential thrust of the submissions made by Mr Hogan, counsel for the appellant, was that an equation, in terms of culpability, with Norton was inappropriate; and that the sentences imposed were too severe, having regard to the appellant's true role in the relevant events and the need to make due allowance for mitigating factors personal to him.
That submission necessitates some consideration of the situation concerning Norton.
He was the eldest member of the group, and almost 20 at the time of the incident. Although the material now before the Court is not fully definitive, it appears that he had a prior conviction for assault occasioning actual bodily harm in 1999 and he admitted two later minor assaults in February 2000. Norton also had a number of convictions as a juvenile.
Although it was suggested that the two juveniles may have been the real instigators of the sortie into the park, there can be no doubt that Norton played a leading role in what occurred, having said at his flat that he wanted to go down to the park and bash "poofters". Equally the evidence was quite clear that he was armed with a metal weapon (which the Crown said was a metal baseball bat) and that he struck one or more of the victims with it.
There was evidence that Norton had a past history of psychological problems. He was described as having come from a very dysfunctional family background and as being immature and emotionally fragile. On a fair reading of the papers, the submission of the Crown to the learned trial Judge that Norton presented "as a particularly disturbed young man who has a violent disposition that seems to be escalating" appears to be a fair summation. The learned trial Judge pointed out that he had shown no signs of remorse for his conduct and had endeavoured to minimise his role.
It is little wonder that the above factors were assessed to justify only a small allowance for mitigating aspects in respect of that offender.
On a careful consideration of all of the material in this case, I am compelled to the view that it was not appropriate to fully equate the appellant with Norton, in terms of relative culpability.
There can be no question that the appellant's part in the events of 18 May 2000 merited imposition of a substantial term of imprisonment, to be served immediately. These were serious offences and the appellant took an active part in the commission of them, including felling D'Arcy with his fist.
However, the evidence strongly indicated that he was not the leader and formulator of the enterprise. It is apparent that Norton and one of the juveniles jointly shared that mantle, given that the appellant willingly followed and participated, in his drug induced state. Whilst it is true that the appellant administered a heavy blow to D'Arcy with his fist, due cognisance had to be given to the jury verdict that Norton had been armed with a particularly nasty weapon, which he in fact used to strike and injure at least one of the victims. It is to be remembered that, whereas the appellant's blow did not give rise to any significant physical injury to D'Arcy, the weapon blows all produced marked injury, the symptoms of which persisted for some time.
Due allowance had to be made for the fact that the actual use of weapons by certain of the assailants, including Norton, necessarily elevated the relevant assaults by them to an extremely serious category, in relation to which the factors of personal and general deterrence both loomed large. In the case of Norton, his past history of violent behaviour indicated a need for personal deterrence far and away beyond any corresponding need in respect of the appellant. Yet another matter for contrast was a complete lack of remorse on the part of Norton, whereas there is some evidence of the appreciation by the appellant of the unacceptable nature of his conduct and of a considerable improvement in his lifestyle, post arrest.
Additionally, there was rather more to be said for the appellant than Norton as to personal aspects of mitigation. Not only does he have strong family support, but his post incident behaviour suggests a positive step towards greater maturity and a real prospect of rehabilitation. Unlike Norton, he has no prior history of violence and, generally speaking, a better employment record.
In the circumstances, I consider that a combination of the relevant considerations demanded the drawing of some degree of distinction between the appellant and Norton and that it was an error in sentencing principle to decline to do so.
I think that, on the facts, the appellant had the justifiable sense of grievance adverted to by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295. This is particularly so having regard to the circumstance of aggravation that Norton had possessed a weapon, which he actually used to inflict injury, whereas the appellant was excluded from that category.
I would grant leave to the appellant to appeal against the sentences imposed on him and allow the appeal for the purpose of reducing each of the relevant terms of imprisonment by one year.