Chadd v The State of Western Australia

[2013] WASCA 99

CHADD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 99

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 99
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:163/2012	Heard:	21 FEBRUARY 2013
Coram:	BUSS JA MAZZA JA	Delivered:	15/04/13
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for extension of time refused Appeal dismissed
Category:	B
PDF Version

Parties:	DEAN JOSEPH NORMAN CHADD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Aggravated armed robbery Armed robbery and attempted armed robbery Reduction for guilty pleas Manifest excess Parity Totality principle
Legislation:	Criminal Code (WA), s 392, s 552, s 444(1), s 371A, s 378 Road Traffic Act 1974 (WA), s 49(1)(a) Misuse of Drugs Act 1981 (WA), s 6(2)
Case References:	Armstrong v The Queen (Unreported, WASCA, Library No 980231, 21 April 1998) Barry v The State of Western Australia [2012] WASCA 175 Chan v The Queen (1989) 38 A Crim R 337 Dedman v The State of Western Australia [2009] WASCA 135 Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 Mejtska v The State of Western Australia [2009] WASCA 80 Nicolaides v The State of Western Australia [2012] WASCA 199 Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998) Roffey v The State of Western Australia [2007] WASCA 246 Satonick v The State of Western Australia [2008] WASCA 145 Sein-Thet v The Queen [1999] WASCA 186 The State of Western Australia v Chadd [2011] WASCSR 143 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 : CHADD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 99 CORAM : BUSS JA

MAZZA JA

HEARD : 21 FEBRUARY 2013 DELIVERED : 15 APRIL 2013 FILE NO/S : CACR 163 of 2012 BETWEEN : DEAN JOSEPH NORMAN CHADD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

File No : INS 118 of 2011

Catchwords:

Criminal law - Appeal against sentence - Aggravated armed robbery - Armed robbery and attempted armed robbery - Reduction for guilty pleas - Manifest excess - Parity - Totality principle

(Page 2)

Legislation:

Criminal Code (WA), s 392, s 552, s 444(1), s 371A, s 378

Road Traffic Act 1974 (WA), s 49(1)(a)
Misuse of Drugs Act 1981 (WA), s 6(2)

Result:

Application for extension of time refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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

Armstrong v The Queen (Unreported, WASCA, Library No 980231, 21 April 1998)
Barry v The State of Western Australia [2012] WASCA 175
Chan v The Queen (1989) 38 A Crim R 337
Dedman v The State of Western Australia [2009] WASCA 135
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Mejtska v The State of Western Australia [2009] WASCA 80
Nicolaides v The State of Western Australia [2012] WASCA 199
Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998)
Roffey v The State of Western Australia [2007] WASCA 246

(Page 3)

Satonick v The State of Western Australia [2008] WASCA 145
Sein-Thet v The Queen [1999] WASCA 186
The State of Western Australia v Chadd [2011] WASCSR 143
Wilson v The State of Western Australia [2010] WASCA 82
Wimbridge v The State of Western Australia [2009] WASCA 196


(Page 4)

1 BUSS JA: I agree with Mazza JA.

2 MAZZA JA: Before the court are applications for an extension of time and for leave to appeal against sentence.

3 The appeal notice was filed over 8 months out of time. This is, on any account, a long delay. The appellant, who acts on his own behalf, has filed an affidavit to explain the delay. The explanations are unsatisfactory. In these circumstances, an extension of time will be refused unless a miscarriage of justice will occur if it is not granted: Wimbridge v The State of Western Australia [2009] WASCA 196.

4 The appellant was charged on indictment with one count each of aggravated armed robbery in company, armed robbery and attempted armed robbery.

5 He was also charged on a notice, pursuant to s 32 of the Sentencing Act 1995 (WA), with one count each of unlawful damage, stealing a motor vehicle, driving without a motor driver's licence and possession of cannabis.

6 He pleaded guilty, on the fast-track system, to all charges. On 3 October 2011, his Honour sentenced the appellant to a total effective sentence of 7 years' imprisonment and fines totalling $250: The State of Western Australia v Chadd [2011] WASCSR 143.

7 The individual sentences imposed are as follows:

Offence	Maximum penalty for offence	Sentence imposed
Count 1 Armed robbery in circumstances of aggravation: Criminal Code (WA) s 392(c) and s 392(d)	Life imprisonment	3 years' imprisonment
Count 2 Armed robbery: Criminal Code s 392(c)	Life imprisonment	4 years' imprisonment: concurrent with count 3, cumulative on count 1

(Page 5)

Count 3 Attempted armed robbery: Criminal Code s 392(c) and s 552	14 years' imprisonment	3 years' imprisonment: concurrent with count 2, cumulative on count 1
Unlawful damage: Criminal Code s 444(1)(b)	10 years' imprisonment	6 months' imprisonment: concurrent with count 1
Steal motor vehicle and drives or assumes control without consent: Criminal Code s 371A and s 378	7 years' imprisonment	8 months' imprisonment: concurrent with count 1
Driving motor vehicle whilst not being legally entitled to do so: Road Traffic Act 1974 (WA) s 49(1)(a)	$300 fine	$200 fine
Possess a prohibited drug (cannabis): Misuse of Drugs Act 1981 (WA) s 6(2)	Fine not exceeding $2,000 or 2 years' imprisonment or both	$50 fine

8 The appellant was made eligible for parole and the sentences of imprisonment were ordered to commence on 10 May 2011.

9 The appellant seeks leave to appeal on four grounds which in essence allege:

1. the learned sentencing judge failed to reduce the sentences for the appellant's guilty pleas;

2. the sentence for each armed robbery was manifestly excessive;

3. the sentence for the armed robbery in company infringed the parity principle; and

4. the total effective sentence infringed the first limb of the totality principle.

10 These grounds must be considered having regard to the well-known principles applicable to appeals against sentence which were accurately and succinctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

(Page 6)

The facts of the appellant's offending

11 I will deal first with the indictable offences and then the offences on the s 32 notice.

The indictable offences

Armed robbery in company

12 On 27 April 2011, the appellant and a co-offender (his younger brother) went to a liquor store in Riverton. There they stole bottles of liquor, secreting them in their clothing. The appellant and the co-offender were confronted by a shop assistant. The appellant threatened the shop assistant with a small axe. The shop assistant moved away. The appellant and the co-offender took more liquor and then ran from the shop.

Armed robbery and attempted armed robbery

13 In the early hours of 7 May 2011, the appellant was in an intoxicated state in the suburb of Carlisle, wanting to go home. He approached a man who was in his car with a woman. The appellant asked the man if he could call him a taxi. The man obliged. The appellant then ripped a picket off a fence and approached the man and the woman, yelling, 'Get out of the way or I'll kill you.' At this point, the appellant yelled at the woman, who was sitting in the driver's seat, demanding that she leave the car keys and her handbag in the car or he would kill her. He then demanded that the man give him his mobile phone. The man refused. While still holding the picket, the appellant then chased the woman, demanding that she give him the keys and the bag. He managed to snatch the car keys and the handbag from her (the armed robbery). The couple ran inside a house and called the police. Meanwhile, the appellant was unable to start the car (the attempted armed robbery). Eventually, the taxi arrived. The appellant got in it and went home. He had in his possession the woman's handbag.

14 At the time the appellant committed these offences he was on bail for stealing a motor vehicle and was subject to a curfew.

The offences in the s 32 notice

Unlawful damage

15 On 14 April 2011, the appellant went to a house in Thornlie. After abusing the occupants, he threw a large paving stone through a window. He then threw a brick through another window.

(Page 7)

Stealing a motor vehicle and driving without a motor driver's licence

16 Some time in the early hours of 12 February 2011, the appellant met a friend at a nightclub. The friend informed him that he had stolen a car. The appellant left the nightclub with his friend and, over the next 24 hours, drove the vehicle, eventually leaving it in Thornlie. The appellant did not have a driver's licence.

Possession of cannabis

17 On 10 May 2011, police discovered in the appellant's wallet 1 g of cannabis head material which the appellant had for his own use.

The appellant's antecedents

18 At the time of sentencing the appellant was 24 years of age. He has a long criminal history involving serious offending. As an adult he has multiple convictions for aggravated burglary, aggravated armed robbery and stealing a motor vehicle. His juvenile record, which commenced at the age of 11, includes multiple convictions for aggravated burglary, robbery, robbery in company and aggravated armed robbery.

19 The pre-sentence and psychological reports paint a bleak picture. They reveal that:

(a) offending is an entrenched part of the appellant's life and is committed with relative ease, without concern for the consequences;

(b) the appellant has spent much of his life in prison and is considered to be institutionalised;

(c) he is addicted to cannabis and alcohol and, despite the link between his alcohol consumption and his offending, he 'love[s]' drinking and is not ready to give it up;

(d) when in the community, he is unable to resist family pressures and the expectation that he will involve himself in feuding;

(e) the appellant is not motivated to abstain from offending;

(f) he has no insight into his offending or empathy with his victims; and

(g) he poses a significant risk of reoffending.

(Page 8)

Merits of the proposed grounds of appeal

Ground 1 - Did his Honour fail to take into account the appellant's pleas of guilty?

20 It is clear that his Honour did take into account the pleas of guilty. After reciting the facts of the indictable offences, his Honour said:

To the credit of each of you, you co-operated and have pleaded guilty at an early opportunity.

21 His Honour's use of the expression 'to the credit' conveys that he regarded the appellant's pleas as mitigatory. Although it might be thought that his Honour was only addressing the offence for which the appellant and his co-offender were convicted, it is clear from the context in which the statement was made that his Honour was referring to all of the indictable offences committed by the appellant.

22 The sentencing judge acknowledged the fact of the plea of guilty in relation to the s 32 matters. Although he did not expressly state that he reduced the sentences on account of the appellant's pleas, it is evident from the length of the sentences that his Honour did not overlook the pleas and took them into account.

Ground 2 - Were the individual sentences for the armed robbery offences manifestly excessive?

23 It is unclear from the ground of appeal and the appellant's written and oral submissions which of the armed robbery sentences he alleges is manifestly excessive. I will assume that he alleges that each sentence was manifestly excessive. To determine whether a sentence is manifestly excessive, it is necessary to examine it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

24 The maximum sentence for aggravated armed robbery and armed robbery is life imprisonment. The ranges of sentences commonly imposed for a single offence of armed robbery is between 4 and 6 years before matters of mitigation or aggravation are taken into account: Nicolaides v The State of Western Australia [2012] WASCA 199 [61]. The range is flexible not rigid. Whether a sentence is manifestly excessive depends on the particular circumstances of the case in question.

(Page 9)

25 The appellant cited a number of cases where sentences after a plea of guilty of less than 4 years for a single offence of armed robbery have been upheld, including Dedman v The State of Western Australia [2009] WASCA 135; Sein-Thet v The Queen [1999] WASCA 186; Satonick v The State of Western Australia [2008] WASCA 145; and Mejtska v The State of Western Australia [2009] WASCA 80. All of these cases are distinguishable on their facts and circumstances from the present offending. In any event, they do not establish that the range of sentences customarily imposed for armed robbery after a plea of guilty is less than 4 years.

26 In Dedman, although the offending had some similarities to the offences of armed robbery and attempted armed robbery committed by the appellant, the offender had experienced difficulties in her life, some of which were not of her making, and the primary judge discerned some prospects for her rehabilitation.

27 In Sein-Thet, the offending was not as violent as the present case, and the appellant there was only 18 years of age and had no prior convictions.

28 In Satonick, again, the offending was not as violent as in the present case. He was young and had only a minor record. His prospects for rehabilitation were good.

29 In Mejtska, the issue was not manifest excess, but whether the total effective sentence offended the totality principle.

30 Each of the offences of armed robbery committed by the appellant was a serious example of its type. The aggravated armed robbery involved the threatened use of a weapon and showed determination and persistence. In the course of the armed robbery and the attempted armed robbery, the appellant made threats to kill while brandishing a weapon (prosecution brief 38 - 39, 46 - 47). Again his actions showed determination and persistence. He chased the victim and forcibly took the car keys from her hand and the handbag from her shoulder.

31 In light of the appellant's antecedents, personal deterrence was an important sentencing consideration. So also was general deterrence. The only mitigating factor in each case was the plea of guilty.

32 In my opinion, it cannot be reasonably argued that the individual sentences imposed by his Honour for the offences of aggravated armed robbery and armed robbery were plainly unjust or unreasonable.

(Page 10)

Ground 3 - Did the sentence imposed upon the appellant for the aggravated armed robbery infringe the parity principle?

33 In Barry v The State of Western Australia [2012] WASCA 175, I said this about the parity principle:

The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).

Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 609 - 610 (Gibbs CJ).

What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents: MGM v The State of Western Australia [2012] WASCA 24 [43] (Mazza JA, McLure P & Buss JA agreeing) [55] - [57].

34 This proposed draft ground of appeal concerns the sentence imposed by McKechnie J in respect of the aggravated armed robbery. His Honour sentenced the appellant's brother to 2 years' imprisonment suspended for 18 months for this offence.

35 His Honour observed, with respect to the co-offender, that he was just 18 years old when he committed the offence, although his Honour acknowledged that the co-offender had a lengthy record in the Children's Court, including convictions for aggravated robbery, stealing, criminal damage and traffic offences. His Honour noted that the pre-sentence report indicated that he had some insight into the effect of his offending upon the victim. His Honour acknowledged some positive aspects in the co-offender's life, including that he had shown an ability to work and that he was in a relationship, and that he and his partner had the responsibility for bringing up a 7-month-old daughter. In effect, his Honour regarded it as appropriate to give the co-offender a chance to prove that he could live a law-abiding life and, perhaps leniently, imposed a suspended term of imprisonment.

36 On the other hand, with respect to the appellant, having regard to his age, his record of offending and his bleak prospects for rehabilitation, his Honour was not prepared to extend to him the same leniency.

(Page 11)

37 The question is whether, objectively speaking, the disparity between the appellant and his co-offender gave rise to a justifiable sense of grievance on the appellant's part.

38 In my opinion, the differences between the appellant and his brother were such as to objectively justify the different outcomes in this case. I have reached this conclusion for the following reasons:

1. It was the appellant rather than the co-offender who introduced the small axe. His criminality is therefore materially greater than that of the co-offender.

2. The appellant was approximately 6 years older than the co-offender and had, as an adult, committed serious offences.

3. Unlike the appellant, the co-offender had some insight into his offending and some prospects for rehabilitation.

4. Although personal deterrence was a relevant factor in respect of both the appellant and his co-offender, it played a greater part in the appellant's sentencing.

39 In my opinion, there is no reasonable prospect of establishing the error alleged in ground 3.

Ground 4 - Did the total effective sentence infringe the totality principle?

40 The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246 as follows:

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

(Page 12)

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].

41 The appellant submitted that the total effective sentence imposed upon him breached the first limb of the totality principle.

42 I have already outlined the serious elements of the appellant's offending and his antecedents. I have also observed that personal and general deterrence were important factors in the case. Save for the pleas of guilty on the fast-track system, there were no other mitigating factors.

43 His Honour was correct to accumulate the sentence for the aggravated armed robbery with the sentences for the armed robberies, having regard to their separate nature.

44 The appellant cited a number of cases involving offenders who had been sentenced for multiple offences of the type under consideration, all of whom had poor antecedents. In particular, he referred to Armstrong v The Queen (Unreported, WASCA, Library No 980231, 21 April 1998); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330; Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998); and Roffey. The appellant argued that the criminality involved in the present case is not to the same degree as in Armstrong and Robertson, yet the total effective sentence he received is comparable to the total effective sentences imposed in those cases. I have read these cases and taken them into account. They and others were analysed in Roffey [28] - [33].

45 It is relevant to refer to comparable cases when considering whether the totality principle has been infringed. However, their utility is limited. They may provide broad guidance, but it must be borne in mind that there will often be significant differences in the circumstances of the offending and the offenders. In the end, each case must be determined having regard to its own particular circumstances.

46 I do not think that it is reasonably arguable that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle. As I have said, the offences were serious, the need for general and specific deterrence was high and cumulative sentences were called for, having regard to the separate nature of the offending. In my opinion,

(Page 13)

the total effective sentence of 7 years' imprisonment properly reflected the appellant's overall criminality in its entirety, having regard to all of the circumstances including those personal to him.

Conclusion and orders

47 None of the proposed grounds of appeal have a reasonable prospect of succeeding. There would be no miscarriage of justice if the application for the extension of time was refused.

48 The orders that I would make are as follows:

1. The application for an extension of time is refused.

2. The appeal is dismissed.