Bourne v The Queen - [2003] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BOURNE -v- THE QUEEN [2003] WASCA 26

CORAM: MALCOLM CJ
TEMPLEMAN J
MILLER J

HEARD: 3 FEBRUARY 2003

DELIVERED : 3 FEBRUARY 2003

PUBLISHED : 4 MARCH 2003

FILE NO/S: CCA 174 of 2002

BETWEEN: BRYAN VINCENT BOURNE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Armed robbery in company - Whether significant if rehabilitation occurs in the years between offence and apprehension - Whether sufficient account taken of age, culpability and early plea of guilty after apprehension

Legislation:

Criminal Code, s 689(3)

Sentencing Act 1995 (WA), s 8(4)

Result:

Application for leave refused

Category: B

Representation:

Counsel:

Applicant: Mr J D Allanson
Respondent: Mr K P Bates

Solicitors:

Applicant: Marcus Wood-Gush & Associates
Respondent: State Director of Public Prosecutions

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

Miles v The Queen (1997) 17 WAR 518
R v Leggett [2000] WASCA 327

Case(s) also cited:

Nil

MALCOLM CJ: This was an application for an extension of time within which to make an application for leave to appeal against sentence. The Court dealt with the application for leave on the merits on 3 February 2003. Without calling on counsel for the respondent, the Court refused leave to appeal and indicated that the reasons for that refusal would be published later. The reasons to be published by Templeman J sufficiently state my reasons for joining in the order made by the Court.
TEMPLEMAN J: The applicant, Bryan Vincent Bourne was sentenced on 30 August 2002 to 5 years' imprisonment for an offence of armed robbery in company which he committed on 8 December 1998.
The applicant sought to leave to appeal, out of time, against that sentence. The Court heard the application on 3 February 2003, and dismissed it, without calling on counsel for the respondent. The Court said that reasons for dismissing the application would be delivered later. These are my reasons for joining in the order made by the Court.
The main point of the application for leave to appeal is that during the four years which elapsed between the commission of the offence and the applicant's apprehension, he had rehabilitated himself to a very considerable extent, a matter which (it is said) was not given sufficient attention by the learned sentencing Judge. This is the point arising from ground 1 of the applicant's notice of appeal.
The offence was committed by the applicant and a co‑offender, Mr Olomi, at a jewellery and pawnbroking business in Victoria Park. The offenders entered the shop and demanded that the proprietor hand over his stock. Mr Olomi had a black handgun replica which he showed the proprietor. The offenders asked the proprietor where the safe was. He told them it was at the back of the shop. The proprietor then unlocked a rear door at the premises and escaped. He called for help.
The offenders were unable to leave the premises by the front door because it had a remotely operated lock. They therefore ran out of the back entrance where they were chased by bystanders. Mr Olomi was apprehended, but the applicant escaped.
Mr Olomi went to trial and was convicted of armed robbery in company. On 31 January 2000, he was sentenced to a term of imprisonment of 6 years and 6 months.
The applicant was not apprehended until 25 March 2002. On 8 April he was committed to the District Court for sentencing, having pleaded

guilty to the charge of attempted stealing with violence which had then been brought against him. The applicant appeared in the District Court on 24 May, but no indictment was then presented. Later, the Crown presented an indictment alleging an offence of armed robbery in company. This required the matter to be remanded to the Supreme Court.

On 1 August 2002, the applicant pleaded guilty before Heenan J to the offences with which he had been charged on indictment. Despite the plea, there was some suggestion from the applicant's counsel (who was not counsel on this application) that money had not been stolen as alleged in the indictment: or at least, that the applicant had not himself stolen any money. However, as Heenan J pointed out, the plea of guilty was an unqualified admission of all the essential elements of the offence with which the applicant had been charged. The applicant acknowledged that, through his counsel.
Following the plea of guilty, the applicant's counsel made a plea in mitigation. Counsel told his Honour that the offence had been committed at a low point in the applicant's life, shortly after he had broken up with his fiancée by whom he had a son, who was then about 4 months old.
The applicant lost his job and got into bad company with the result that he started using drugs. After experimenting with an assortment of illicit substances, the applicant settled on amphetamines as his preferred drug. The robbery which he committed with Mr Olomi was carried out for the purpose of obtaining money to discharge a drug debt owed by Mr Olomi, in which the applicant was also implicated.
After the robbery, the applicant returned to Albany, where he had been living. Apart from an overseas trip, apparently for the purpose of pursuing his business interests, the applicant remained in Albany where he obtained employment with an electronics company. He has done well in that position. He has been offered a promotion to Store Manager.
In the course of the plea in mitigation before Heenan J, the applicant's counsel referred to a number of authorities in support of the proposition that this was one of the exceptional cases of armed robbery which warranted the imposition of a suspended sentence of imprisonment or an intensive supervision order. The factors on which counsel relied in support of that submission were:
•the applicant's youth – he was 21 years old at the time of the offence;
•the applicant's plea of guilty at the earliest available opportunity;
•the applicant's remorse, expressed during his interview with police officers;
•the applicant's very minor criminal record involving shoplifting for which he was fined $100;
•the applicant's role in the armed robbery was less than that of the co-offender;
•the applicant did not instigate the offence, but was drawn into it at a time in his life when he was emotionally vulnerable and susceptible to inappropriate peer pressure;
•the support of the applicant's family – particularly his mother; and
•the applicant's successful employment record and prospects since committing the offence.
Heenan J did not sentence the applicant immediately. His Honour took time to consider the submissions made on the applicant's behalf and to research the authorities which had been cited to him.
The applicant was sentenced some four weeks later. In his sentencing remarks, Heenan J accepted that Mr Olomi had a more dominant role than the applicant in the commission of the offence. His Honour then went on to set out the applicant's personal circumstances, including his secure employment, prospects of promotion and the fact that he was paying off some debts. His Honour then said:
"There is, unfortunately, and all too common, a history of substance abuse. You have stated that you enjoy occasional alcoholic beverage with friends and do not consider that there is any difficulty or threat from alcohol consumption, but you have also admitted to experimental drug use, including ecstasy, amphetamines, LSD and cannabis.
You have stated that following a short period of experimental drug use your choice of drug became intravenous amphetamine and you reported involvement with amphetamine use for the past 3 years but claim that you have dramatically reduced your drug use since you were charged with this offence in March. At the time of this report in May you said that you had used amphetamines 2 weeks ago.
It does seem that there is some prospect that you may be responsive to a community based supervision order but I'm afraid that having regard to your offence, the circumstances of aggravation and the prevalence of robbery of this kind, particularly associated with drug dealing, only a term of imprisonment is an adequate disposition of this case.
I have considered the other alternatives including a suspended sentence or an intensive supervision order but the gravity of the offence is such that I do not think that anything but a term of imprisonment can be imposed. You are sentenced to a term of 5 years' imprisonment and you will be eligible for parole."
At the hearing of this application, Mr Allanson, the applicant's counsel, urged on the Court the proposition that the applicant had substantially rehabilitated himself: that he had obviously matured in the four years which had passed since he committed the offence and that to sentence him now to a term of imprisonment would be to reverse the process of rehabilitation.
Mr Allanson submitted further that apart from these factors, the applicant's circumstances were quite different from those of Mr Olomi. Mr Olomi was 28 years old at the time of the offence and had committed previous offences (although McKechnie J, who sentenced him, did not take these into account) and Mr Olomi was the instigator. These factors, it was submitted, would be sufficient to break the usual requirement for parity.
Although I accept that Mr Olomi was the instigator, I consider that the applicant was only slightly less culpable. The robbery was pre‑meditated. The applicant was involved in planning it, together with Mr Olomi: and he was a party to the use of the replica firearm. The applicant did, of course plead guilty, which Mr Olomi did not. However, the starting point for Mr Olomi was a sentence of 8 years' imprisonment, which McKechnie J discounted to 6 years and 6 months to take account of mitigating factors not available to the applicant.
Mr Allanson submitted further that Heenan J placed no weight at all on the applicant's rehabilitation, which was to set at nought all that the applicant had achieved since he committed the offence.
I accept Mr Allanson's submission that where there has been a delay in dealing with an offender, who has therefore enjoyed a lengthy period of rehabilitation, the punitive and deterrent aspects of sentencing may be given a lesser role. The authorities to this effect were set out by Wheeler J in R v Leggett [2000] WASCA 327 at [31] – [37].
There are two kinds of delay in this context. The first is where those in authority delay in deciding whether to prosecute an offender. That is a mitigating circumstance because of the unfairness which that course visits upon the offender. That is not this case.
The second category of circumstances is where the time between the commission of the offence and the sentence is such as to demonstrate to the Court that an offender has become rehabilitated or that the rehabilitation has made good progress. It was that aspect of delay on which Mr Allanson relied.
However, I am unable to accept that the applicant's rehabilitation has progressed to anything like the extent for which Mr Allanson contended. By his own admission, the applicant had been, for the three years prior to his sentence, a substantial user of amphetamines. Although the extent of his use is not clear, according to the author of a pre-sentence report on 13 May 2002, the applicant claimed that he had "dramatically reduced drug use since he was charged". A "dramatic" reduction suggests a high level of drug use before the reduction.
In the course of the hearing before Heenan J, it was submitted by the applicant's counsel that he no longer had a serious drug problem. However, Heenan J said, referring to the pre-sentence report which I have mentioned above:
" … It seems to me there's a continuous significant drug use problem which may or may not be in abeyance."
I respectfully agree with his Honour. It may be accepted that the applicant has not committed any serious offence in the past four years. However, his continued use of illicit drugs itself constitutes the commission of a series of offences during that period. I infer that the applicant has been able to support his habit from the earnings of his employment. If that ceased for any reason, it seems to me that there would be a further risk that the applicant might re-offend.
It was settled by the decision of this Court in Miles v The Queen (1997) 17 WAR 518, that as a result of the increasing prevalence of armed robberies, sentences in the range of 6 to 9 years' imprisonment are appropriate for "conventional" offences of that kind: and that greater weight should be given to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender. However, there may be exceptional cases in which it is appropriate to impose non‑custodial sentences.
The offence to which the applicant pleaded guilty was extremely serious, because it involved the use of a replica firearm. The offence was aggravated by the fact that the offenders were in company with one another. A substantial sentence of imprisonment was warranted, despite the applicant's conduct over the past four years.
In my view, to have imposed a suspended, or non‑custodial sentence on the applicant would not only have offended the parity principle: it would have given no weight at all to the need for punishment and general deterrence. It must be clearly understood in the community, that persons who commit armed robberies can expect to be dealt with severely by the Courts. Offenders who are not apprehended promptly should not be allowed to avoid the consequences of their actions simply by leading blameless lives in the community thereafter. I emphasise that the applicant's life was not blameless in any event.
I am not persuaded, therefore, that this is an exceptional case in which a non‑custodial sentence was justified: or that Heenan J failed to give the applicant's rehabilitation the weight it deserved.
Mr Allanson submitted, correctly, that the applicant was entitled to a substantial discount for his early plea of guilty. He pointed out that Heenan J did not make reference to this in his sentencing remarks. However, I have no doubt that Heenan J did take into account the early plea of guilty. I say that because his Honour put questions to counsel during the course of submissions to satisfy himself that the applicant had in fact pleaded guilty at the earliest opportunity. But, in my view, the need for parity would have justified, as a starting point, a sentence of imprisonment only slightly less than the 8 years which would have been appropriate for Mr Olomi had there been no mitigating factors. The sentence of 5 years' imprisonment imposed on the applicant therefore reflects a considerable degree of mitigation.
The Sentencing Act 1995, by s 8(4) provides that:

"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

I therefore accept that, assuming Heenan J did allow a discount, he should have stated the fact in open court.
However, taking all the circumstances into account (including the applicant's conduct over the past four years) I am not persuaded that the sentence imposed by Heenan J represents anything other than the exercise of a proper sentencing discretion. And ultimately, that is the criterion by which sentence should be judged. That is because, by s 689(3) of the Criminal Code:
"On an appeal against sentence the Court of Criminal Appeal shall if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law … as they ought to have been passed and in any other case shall dismiss the appeal." (my emphasis)
Having considered the applicant's submissions and the arguments advanced on his behalf by Mr Allanson, I came firmly to the view, during the hearing of the application, that no different sentence should have been passed.
There was a second ground of appeal: that Heenan J wrongly referred to the applicant as having a history of dealing in LSD and amphetamines. However, as Mr Allanson rightly conceded, there is little substance to this ground. In any event, I have no doubt that the references in Heenan J's sentencing remarks to "dealing", given their context, were intended to reflect the fact that the applicant had purchased drugs: not that he had supplied them to others.
Mr Allanson said all that could be said on behalf of the applicant. But at the conclusion of his submissions I was of the view that there was no merit in the application, and that it should therefore be dismissed.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Templeman J and I am of the view that for the reasons expressed by his Honour the application for leave to appeal should be dismissed.