Carr v The State of Western Australia
[2013] WASCA 192
•22 AUGUST 2013
CARR -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 192 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:19/2013 | 21 JUNE 2013 | |
| Coram: | NEWNES JA MAZZA JA | 22/08/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application refused Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | DAVID ROY CARR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for extension of time Application for leave to appeal against sentence Aggravated armed robbery Aggravated robbery Totality principle |
Legislation: | Criminal Code (WA), s 378, s 392 Criminal Investigation (identifying People) Act 2002 (WA), s 16(8) |
Case References: | JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 R v Nichols (1991) 57 A Crim R 391 Roffey v The State of Western Australia [2007] WASCA 246 Ugle v The State of Western Australia [2012] WASCA 104 Williams v The State of Western Australia [2010] WASCA 102 Wilson v The State of Western Australia [2010] WASCA 82 Wimbridge v The State of Western Australia [2009] WASCA 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CARR -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 192 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 153 of 2012
Catchwords:
Criminal law - Application for extension of time - Application for leave to appeal against sentence - Aggravated armed robbery - Aggravated robbery - Totality principle
Legislation:
Criminal Code (WA), s 378, s 392
Criminal Investigation (identifying People) Act 2002 (WA), s 16(8)
Result:
Application refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Henry Sklarz Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473
R v Nichols (1991) 57 A Crim R 391
Roffey v The State of Western Australia [2007] WASCA 246
Ugle v The State of Western Australia [2012] WASCA 104
Williams v The State of Western Australia [2010] WASCA 102
Wilson v The State of Western Australia [2010] WASCA 82
Wimbridge v The State of Western Australia [2009] WASCA 196
1 REASONS OF THE COURT: Before the court are applications for an extension of time and for leave to appeal against sentence.
2 The appellant pleaded guilty to robbing a convenience store on three separate occasions during June 2012. He also entered pleas of guilty in relation to several other offences committed over approximately the same period, including stealing from the convenience store on a fourth occasion. The appellant was 20 years old at the time of offending. On 9 October 2012, he was sentenced to a total effective term of imprisonment of 7 years, with eligibility for parole.
3 The appeal notice was filed over three months out of time. The principles governing the exercise of the court's discretion to extend time were set out by Wheeler JA in Wimbridge v The State of Western Australia [2009] WASCA 196. The appellant's delay has been explained in an affidavit sworn 4 February 2013 by his counsel, Mr Henry Sklarz. In these circumstances, whether an extension of time should be granted depends upon the merits of the proposed grounds of appeal.
4 The appellant seeks leave to appeal on two grounds, which amount to the same complaint. In essence, the appellant argues that having regard to his youth and his early pleas of guilty, the total effective sentence infringed both limbs of the totality principle.
5 For the reasons that follow, neither proposed ground of appeal has reasonable prospects of succeeding. Accordingly, there would be no miscarriage of justice if the application for an extension of time was refused.
The general principles applicable to this appeal
6 The general principles applicable to this appeal are uncontroversial and well known. They were accurately explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated here.
The offences
7 The appellant was charged with the following offences on indictment
(1) On 5 June 2012 at Northbridge [the appellant] stole from [the victim], with violence, a gold ring, a mobile phone, a sim card, a wallet and its contents and a sum of money the property of [the victim]
And that [the appellant] was armed with an offensive weapon, namely a baseball bat
And that [the appellant] was in company with another
And that [the appellant] did bodily harm to [the victim]
And that [the victim] was of or over the age of 60 years.
(2) On 20 June 2012 at the same place as in Count (1) [the appellant] stole from [the victim], with threats of violence, cigarettes the property of Matri Pty Ltd trading as Hot Spot Convenience Store
And that [the appellant] was in company with others
And that [the victim] was of or over the age of 60 years.
(3) On the same date and at the same place as in Count (2) [the appellant] stole from [the victim], with violence, a sum of money the property of Matri Pty Ltd trading as Hot Spot Convenience Store
And that [the appellant] was in company with others
And that [the appellant] did bodily harm to [the victim]
And that [the victim] was of or over the age of 60 years.
9 The appellant was also charged with three offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA), being two counts of stealing and one count of giving false personal details to police. The stealing offences carry a maximum penalty of 7 years' imprisonment, while the charge of giving false personal details carries a maximum penalty of 12 months' imprisonment: s 378 of the Criminal Code and s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA) respectively.
The facts of the offences
10 The facts of the indictable offences are as follows.
11 At about 4.30 pm on 5 June 2012, the victim, a 62-year-old man, was working at a convenience store in Northbridge. The appellant entered the store with another male and walked behind the counter to where the victim was standing. The appellant demanded money. The victim said that he did not have any. The appellant, agitated by that response, removed a wooden bat from inside his jacket. He struck the victim with the bat, once in the elbow and once in the opposite hand. He then punched the victim to the forehead and the mouth, causing his mouth to bleed. The appellant proceeded to remove a gold ring from the victim's hand and then pushed him to the floor. He then stood over the victim and attempted to find the key to the cash drawer. While doing so, he punched the victim to the back.
12 Unable to find the key, the appellant removed the victim's wallet, containing $170 in cash, and mobile phone from his pockets and said to the victim 'we'll come back again'. As a result of the assault, the victim suffered bodily harm, including damage to a tooth and injuries to parts of his face.
13 True to his promise, the appellant returned to the shop, this time at about 4.30 pm on 20 June 2012. On this occasion, the appellant was accompanied by five females. He approached the victim, who was behind the counter, and said 'you remember me', to which the victim replied in the affirmative. The appellant demanded cigarettes. When the victim did not respond immediately, the appellant became angry and rolled up his sleeves, as if preparing to strike the victim. Fearing for his safety, the victim handed the appellant the cigarettes. Upon receiving the cigarettes, the appellant demanded a pie and food. When he discovered that there were no pies in the pie warmer, the appellant helped himself to some confectionary and other food items and encouraged the females to do the same. The group then left the store.
14 The appellant returned to the store about 2 1/2 hours later in company with two females. As he entered the store, he said to the victim 'Remember me?' The appellant walked behind the counter and approached the cash drawer. The victim tried to stop him, but the appellant punched him twice to the face or head, causing the victim to fall to the ground. The appellant returned to the cash drawer and stole approximately $400. While he was doing so, the two females stole confectionary, drinks and other items.
15 Counts 2 and 3 were recorded on closed circuit television. The footage clearly shows the appellant committing the offences.
16 The facts of the s 32 notice offences are as follows. On 16 May 2012, the appellant stole $1,000 from a person known to him. At about 5.06 pm on 24 June 2012, the appellant gave police a false name and date of birth in relation to a separate matter. Finally, at about 6.00 pm on 24 June 2012, the appellant went to the convenience store for a fourth time. Once again, the victim was behind the counter. On seeing the appellant, the victim fled from the store. The appellant then stole the cash drawer, which contained approximately $400. The appellant then ran out of the store. The victim enlisted the help of the security staff of a nearby nightclub. They gave chase. Whilst running from the security staff, the appellant threw the cash drawer to the ground. The appellant was apprehended and handed over to the police.
17 On 25 June 2012, the appellant was spoken to by police. In his interview, he admitted what he had done and unsuccessfully tried to assist police in locating the bat he used in the armed robbery he committed on 5 June 2012.
The individual sentences imposed
18 His Honour imposed the following sentences:
Indictment
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Section 32 notice
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19 His Honour ordered that the terms of imprisonment imposed on counts 1 and 2 be served cumulatively, and that all other sentences be served concurrently. As we have said, the total effective sentence imposed was 7 years' imprisonment. At the time he was sentenced, the appellant was already serving a term of imprisonment of 6 months and 1 day for an offence of assault occasioning bodily harm. His Honour ordered that the total effective sentence imposed by him was to be served concurrently with the sentence the appellant was already serving. The appellant was made eligible for parole, and the total effective sentence was backdated to commence from 8 September 2012.
The appellant's antecedents
20 The appellant was born in Tasmania in February 1992. His parents separated when he was four years old, after his father was sentenced to a lengthy term of imprisonment for a violent offence. Since that term of imprisonment, the appellant's father has, according to the appellant, been convicted of murder and is presently incarcerated in Tasmania.
21 The appellant has had limited education and little work experience. He has a history of polysubstance abuse. Drug rehabilitation has had no effect upon his use of illicit substances. He has an extensive prior record of offending, commencing in 2007 and continuing in a more or less unabated way. The most concerning aspect of the history is his many prior offences involving violence. He has been convicted on multiple occasions of common assault, assault occasioning bodily harm and assaulting a public officer. In addition, he has been convicted of aggravated burglary, being armed to cause fear, and attempted aggravated armed robbery. Already, he has served periods of detention and imprisonment. Various forms of community orders designed to facilitate the appellant's rehabilitation have had no apparent effect on his offending
The reports
22 The sentencing judge had before him a pre-sentence report and the report of Ms Cinzia Zuin, a psychologist, dated 27 September 2012. These documents make very bleak reading.
23 The recommendation in the pre-sentence report reads:
[The appellant] presented at interview as an immature and aggressive 20-year-old man, who comes before the court on what will total his 37th violent conviction recorded. It is noted that all prior periods of community supervision have resulted in non-compliance and reoffending. [The appellant] requires long term intensive intervention to address his propensity for violence, lack of victim empathy, antisocial tendencies and emotional detachment issues. He is deemed to be not suitable for a period of community supervision at this time, as his needs would be best met within a prison treatment environment.
24 Ms Zuin described the appellant as having '[a]n alarming propensity for violent behaviour and complete lack of regard for the harm caused to others', which gave rise, in her view, 'to the impression that [the appellant] has an antisocial personality disorder'. She noted that the appellant's offending behaviour was ongoing in prison. The appellant further boasted to her about the offences he had committed but not been charged with. Throughout Ms Zuin's interview with the appellant, he made threats to harm and/or kill others. The appellant boasted to Ms Zuin that his father was serving a term of imprisonment for murder in Tasmania, and made the comment: 'I can guarantee that within 10 years I will kill someone'. The appellant expressed a desire to end up in a Tasmanian prison so that he could see his father.
25 Ms Zuin observed that the appellant had a complete lack of interest in leading a law-abiding lifestyle. However, it was noted that this was likely a reflection of the depth of the appellant's troubled personality.
26 Ms Zuin considered the appellant's prognosis for change to be poor and observed that this was likely to get worse the more often the appellant was imprisoned.
27 There is a suggestion that the appellant may have been sexually abused as a child, but he refused to discuss the matter with Ms Zuin, who said that the incident was 'likely to have shaped [the appellant's] exterior veneer of toughness to compensate for having been violated as a vulnerable child'.
28 The appellant reported to Ms Zuin that 'he [liked] to hurt people' and he commented 'I get excited when I hurt someone … an adrenaline rush … it's not my fault … the dickheads deserve it'.
29 Psychometric testing revealed the appellant to be 'a troubled man with concerning aspects of his personality functioning'. Scales measuring antisocial and aggressive personality traits were elevated. Ms Zuin said that persons 'who possess such traits typically show a blatant disregard for rules and social norms and may have limited remorse for their actions'.
The sentencing remarks
30 The learned sentencing judge's sentencing remarks are brief.
31 His Honour described the appellant as 'a dangerous young man, but a sad and pathetic one as well'. He noted that both the pre-sentence report and the psychological report indicated that the appellant was 'at very high risk of violent reoffending'. His Honour regarded the appellant's pleas of guilty as the only real matter of mitigation. His Honour also said that he was 'conscious' that the appellant was 'still young'.
The totality principle
32 The totality principle was accurately described by McLure P in Roffey v The State of Western Australia [2007] WASCA 246, who said:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] - [26].
33 The appellant submitted that the total effective sentence breached both limbs of the totality principle, having regard to the appellant's youth, his admissions to police, his pleas of guilty, and his remorse.
34 At the outset, it is appropriate to observe that there is no evidence that the appellant was in any way remorseful for his offending. In oral argument before this court, the appellant's counsel acknowledged this.
35 The focus of the appellant's arguments were on his pleas of guilty, which were entered at the earliest opportunity, and his youth.
36 With respect to the pleas of guilty, it is true they were entered at the earliest available opportunity, but they were made in the face of a very strong prosecution case, having regard to the closed circuit television footage of two of the robbery offences.
37 As to the appellant's youth, there is no question that, ordinarily, youth is a mitigating factor and a valid ground for extending leniency. Where imprisonment is inevitable, youthfulness will justify a lower sentence than would otherwise be indicated: Williams v The State of Western Australia [2010] WASCA 102 [5].
38 However, there will be cases, particularly in relation to serious violent crime, where, notwithstanding an appellant's youth, substantial terms of imprisonment must be imposed to provide public protection and proper personal and general deterrence.
39 In R v Nichols (1991) 57 A Crim R 391, Lee AJ, with whom Carruthers & Sully JJ agreed, said:
Making all the allowances that one can for youth and its enthusiastic stupidity and recklessness, the fact is that when young people have already been before the courts and have shown no inclination of reform, they cannot expect their youth to continue to be a barrier against the imposition of sentences appropriate to the gravity of the crime, without too much regard for their youth (396).
40 See also JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 [35] and [36]; Ugle v The State of Western Australia [2012] WASCA 104 [71] - [72].
41 The appellant in this case, although young at the time he committed the offences, had already committed many offences of violence. Attempts to rehabilitate him had failed and the reports before his Honour indicated that, at the time of sentencing, the appellant had no inclination to reform. Rather, the reports showed that the appellant is, unfortunately, a young man with a propensity for violence who poses a high risk of reoffending. While some allowance must still be made for youth, considerations of personal deterrence and the protection of the public must, on the facts of this case, be given considerable weight.
42 The robbery offences were serious. The appellant targeted the victim and robbed him on several occasions, showing no mercy whatever. Without doubt, the offence that was committed on 5 June 2012, involving, as it did, actual violence, was a serious example of its type. The robberies on 20 June 2012, were cruel and senseless. All of the indictable offences were committed against a victim who was vulnerable by reason of his age and occupation. Cumulative sentences were justified given that count 1 and counts 2 and 3 were committed on separate days approximately two weeks apart.
43 We do not doubt that 7 years' imprisonment for a 20-year-old is a lengthy term which will weigh heavily upon him. However, having regard to all of the circumstances of the case, including those referable to the appellant personally, it cannot reasonably be argued that the sentence infringed the first limb of the totality principle.
44 As to whether the total effective sentence is crushing, even if the appellant serves the whole of the sentence, he will be 27 years of age at its end. It could not be said that the sentence destroyed any reasonable expectation of a useful life after release. The appellant's counsel argued that a sentence of 7 years' imprisonment increases the likelihood that the appellant will not be able to rehabilitate himself or will abandon attempts towards rehabilitation. It is to be hoped that the appellant's eligibility for parole will be some incentive towards rehabilitation. In truth, the appellant's rehabilitation is largely in his own hands. Hopefully, the appellant will take advantage of the rehabilitative programs that are available to him in prison. The prospect that he may not do so is not a valid reason for any reduction in his sentence.
Conclusion and orders
45 In our opinion, the appellant has not demonstrated that it is reasonably arguable that the total effective sentence of 7 years' imprisonment with eligibility for parole infringed the totality principle. Accordingly, we would dismiss the application for an extension of time. The orders we would make are:
1. The application for an extension of time to appeal against sentence is refused.
2. The appeal is dismissed.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Limitation Periods
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Aggravated & Exemplary Damages
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Appeal
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10
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