Chen v The State of Western Australia - [2009] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHEN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 52

CORAM: WHEELER JA
BUSS JA
MILLER JA

HEARD: 10 FEBRUARY 2009

DELIVERED : 27 FEBRUARY 2009

FILE NO/S: CACR 146 of 2008

BETWEEN: CLEMENT WEI CHIEN CHEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND 1465 of 2008

Catchwords:

Criminal law - Sentence - Aggravated robbery - Circumstances of aggravation being bodily harm and complainant over 60 years of age - Bag snatched from 76yearold female in Burswood International Casino carpark - Whether sentence of imprisonment to be served immediately only disposition open - Whether open to suspend sentence - Turns on own facts

Legislation:

Criminal Code, s 392(d)
Sentencing Act 1995 (WA), s 6(4), s 39(3), s 76(1)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen
Respondent: Mr A G Elliott

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

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

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Miles v The Queen (1997) 17 WAR 518
Mills v The State of Western Australia [2007] WASCA 118
R v Catts (1996) 85 A Crim R 171
R v Pooter [2001] WASCA 67
Skipworth v The State of Western Australia [2008] WASCA 64
Steer v The Queen (Unreported, WASCA, Library No 980739, 1 December 1998)
The State of Western Australia v Amoore [2008] WASCA 65
Thomson v The Queen (1998) 105 A Crim R 150

WHEELER JA:

Background

I have had the advantage of reading in draft the reasons for decision of Miller JA. For the purposes of these reasons, I gratefully adopt his Honour's account of the facts, which is set out at [24] ‑ [28] and his Honour's summary of the course of sentencing, which is found at [29] ‑ [43]. There are, however, some brief additional observations I would make in relation to those facts. Those observations are as follows.
Although the appellant had been watching the complainant for "some time" at the casino, it appears from the surveillance footage that the period was relatively short. He seems to have been aware that she had been winning, but not of the amount that she might have; that lack of awareness is demonstrated by the fact that he apparently neglected to take from her bag the $1,500 worth of chips which it contained.
The learned sentencing judge observed that the complainant was standing near a slowly‑moving car in a carpark at the time at which the appellant snatched her bag; however, the vehicle, if it was moving, must have been moving very slowly indeed. I have watched the surveillance footage, and it is clear that the complainant was standing not behind the vehicle, but adjacent to the rear passenger side of the vehicle, and that her husband had only just shut his door at the time at which the appellant ran up to her and snatched her handbag. Although I am not able to detect any motion of the vehicle, that fact is not very significant, since there was a potential danger of the complainant stumbling relatively close to a vehicle which either was reversing or was about to be reversed; although it appears to me from the surveillance footage that such danger was relatively remote.

Remorse and rehabilitation

So far as the appellant's circumstances were concerned, although in his videotaped interview he at first denied the offence, he then not only admitted responsibility and entered a plea of guilty, but also took what steps he could to make reparation to the complainant. He met her at his solicitor's office, and there gave her a bouquet of flowers and a cheque for the amount of cash which he had taken from the bag. He also gave her a letter of apology. Having learned at that meeting that the complainant had also had $1,500 worth of casino chips in the handbag, he began to pay, by instalments, part of that amount. His payments ceased on his incarceration, since he was not able to work.
It appears that, prior to his coming to Perth, he had had gambling problems, arising out of Internet gambling. That was the subject of some comment by one of his referees. His parents were supportive and concerned to the extent that his mother had travelled from Malaysia to attend the appellant's sentencing.
The appellant had apparently attended the casino on one occasion soon after the offending. He was then spoken to by police some four or five days subsequent to the offence, and was in custody from that time until 1 August 2008. Between 1 August 2008 and his sentencing on 16 October 2008, a period of some 10 weeks, he did not attend the casino and he did not gamble. His non‑attendance at the casino was apparently in part due to his observance of a 7 pm to 7 am curfew, and in part because he had been attending Gamblers Anonymous and had been making progress towards overcoming his addiction to gambling.
Finally, in relation to his personal circumstances, it was his counsel's submission to her Honour that he had been assaulted while in remand. Counsel advised her Honour that he had "symptoms" of that assault when she had seen him on 14 July (although she did not describe what those symptoms were). Counsel said that his time in custody had been, not surprisingly, "a frightening and salutary lesson to him and ... a very effective personal deterrent".

Factors relevant to suspension

There is no challenge on this appeal, nor could there be, to her Honour's view that this offence called for a term of imprisonment. Nor is there any issue taken with the length of the term her Honour imposed. It is, however, submitted that, although her Honour said that she had "seriously considered" suspending the term of imprisonment, her Honour erred in failing to suspend it.
In considering whether her Honour erred, the following matters appear to me to be particularly relevant:
(1)The circumstances of the offence had some serious features. The complainant was an elderly and vulnerable person. The legislature has expressly recognised the additional vulnerability of the elderly, in making the advanced age of a complainant a circumstance of aggravation. The complainant in fact suffered injury. Further, the offence was committed at the casino, where there might be thought to be a particular need to deter those who wish to gamble from preying on others in order to obtain the money to do so.
(2)However, as was properly conceded by the State in careful oral submissions on this appeal, this was, nevertheless, not an offence which could be regarded as being at the higher end, or even in the middle range, of offences of aggravated robbery. Rather, it fell towards the lower range of seriousness, albeit that it was not the least serious kind of case which could be imaged.
(3)It is always open to suspend a sentence of imprisonment of 5 years or less (Sentencing Act1995 (WA) s 76(1)).
In conferring upon the court the ability to suspend a term of imprisonment of that length, the legislature must be taken to have indicated that, even where an offence is serious, it will sometimes be open to the court to suspend the term of imprisonment imposed.
(4)In relation to offences of aggravated robbery, sentences of other than immediate imprisonment are not unknown, although they are relatively rare. I use the term "relatively rare" deliberately, since, in my view, it is not helpful to say that cases in which a term of imprisonment is suspended, for serious offences, are "exceptional". Each case is different. The issue is not whether a case is "exceptional", but whether, in any given case, the particular circumstances, including the antecedents of the offender, are such that the court is satisfied that only a term of imprisonment to be served immediately is an appropriate disposition.
One example of suspended imprisonment for aggravated robbery is R v Pooter [2001] WASCA 67. That, too, was a case in which the offender had snatched a handbag. He had done so in company with another. A serious feature of that case was that the complainant became caught by the strap of the handbag and was pulled along by the moving vehicle for a short distance before the handbag came off her shoulder. Further, the offender in that case had been on parole at the time of the offence. However, because of his very good personal circumstances (which effectively consisted of very significant efforts at rehabilitation), he received an intensive supervision order.
Another case in which a sentence other than immediate imprisonment was imposed was that of Thomson v The Queen (1998) 105 A Crim R 150, which is referred to by Miller JA. In that case, a term of imprisonment was suspended. The primary reasons for suspension in that case appear to have been the very good antecedents of the appellants, their very sincere remorse (indicated not by reparation, but by an attempt at suicide), steps taken towards rehabilitation, and the pressures acting upon the appellants at the time at which they committed the offences. However, it is to be noted that those offences had some very serious features. Count 2 with which those appellants were charged involved an attempted bag‑snatching from a lady of 72, while the attempted armed robbery with which they were charged involved the use of a blood‑filled syringe.
Against that background, it was plainly correct for her Honour to give serious consideration, as she did, to the question of whether the appellant's sentence should be suspended. The case was plainly an unusual one, in the sense that the types of attempts at reparation and apology made by the appellant are not common.

Was there error?

In my view, there are two matters which her Honour appears to have overlooked in determining that only a term of imprisonment to be served immediately was appropriate. The first was the appellant's rehabilitation, in the sense that he had not only been attending Gamblers Anonymous, but had refrained from attending the casino and had not been gambling. That had, admittedly, been only during a relatively short period of 10 weeks, but it was important in the context of considering whether suspension would assist in furthering the appellant's rehabilitation, and whether, in the particular circumstances of this case, personal deterrence was a factor of significance.
Her Honour did note in her sentencing remarks that the appellant had a gambling problem, but that appears to be primarily in the context of accepting it as a factor which had impaired his judgment and was, in that sense, mitigating. Her Honour also noted that he had been attending Gamblers Anonymous, but did not refer to the cessation of gambling.
The other factor, to which her Honour did not refer at all, was the appellant's time in custody, including the apparently traumatic nature of that time, and the deep impression which it was said to have made on him. That was a very relevant circumstance.
So far as the time in custody is concerned, it is submitted that her Honour must have been aware of it, both because it had been mentioned during the submissions of counsel for the appellant during the plea in mitigation, and because her Honour took that time into account in backdating the term of imprisonment which she imposed. However, in her sentencing remarks, her Honour said that she had seriously considered suspending the sentence "in light of the positive factors that I have just mentioned". Those positive factors did not include the applicant's time in custody, which her Honour referred to after she had indicated her view that the term of imprisonment could not be suspended, and apparently only for the purpose of calculating the appropriate backdating of sentence.
It appears to me unlikely, having regard to those matters, that her Honour did regard the time in custody, and the appellant's experience of it, as a relevant factor. That view is reinforced by her Honour's observation that she did not consider that the factors in favour of the appellant outweighed the need for a sentence "which will both deter you from offending again ... " as well as serving the ends of general deterrence. It does not appear to me that there was anything, apart from the obvious fact that he had offended on this occasion, which indicated that the appellant needed to be deterred from offending again.
The two matters referred to above were not directly raised, as express error, by the appellant's ground of appeal, as would have been appropriate. However, they emerged during the course of submissions directed to particular (d) of the ground, which concerned the appellant's personal circumstances and were fully canvassed during oral argument. In the absence of any submission to the contrary, I accept that they fall within the ground as drafted, although that view requires a somewhat strained construction of it. If it had been necessary, I would have granted leave to amend.

Conclusion

Since I consider that her Honour erred in failing to take account of the two matters to which I have referred, it follows that it is necessary for me to consider afresh what would be the appropriate sentence for the appellant. By this time, the appellant has spent a further 4 months in custody. Taken together with his earlier time in Hakea, he has served in excess of 5 months. That is already a serious punishment for a young man who has not previously been imprisoned. In my view, it would be appropriate, having regard to that fact as well as to all of the appellant's personal circumstances which I have already described, to suspend the term of imprisonment imposed by her Honour. Having regard to the time the appellant has spent in custody, I would order that the term of 2 years'

imprisonment imposed by her Honour be suspended for a period of 18 months from today's date.

BUSS JA: I agree with Wheeler JA.
MILLER JA: The appellant was charged on indictment that, on 29 June 2008 at Burswood, he stole from Lillian Evelyn Ruddle with violence a large sum of money, the property of Lillian Evelyn Ruddle. There were two circumstances of aggravation alleged; namely, that the appellant did bodily harm to Mrs Ruddle and that she was over the age of 60 years.
The appellant pleaded guilty in the District Court at Perth. He was sentenced on 16 October 2008 to imprisonment for 2 years, backdated to 18 September 2008.
The appellant was granted leave to appeal on 3 November 2008. There is only one ground of appeal and it is as follows:
The learned sentencing Judge erred in law in imposing a sentence that was manifestly excessive.
Particulars
The learned sentencing Judge erred in imposing a sentence of imprisonment to be served immediately when it was open to suspend that term of imprisonment, having regard to:
a)The maximum penalty prescribed.
b)The standards of sentencing customarily observed.
c)The place that the conduct occupies on the scale of seriousness.
d)The personal circumstances of the Appellant.

The facts

The relevant facts are summarised by the sentencing judge. The appellant, who was a student at Murdoch University, was a gambler at the Burswood International Resort Casino. He was in the habit of going to the casino twice a week. The complainant was a 76‑year‑old lady who was at the casino on the night of 29 June 2008 with her husband. She did very well at the casino that night, winning approximately $3,000, made up of cash and chips.

The appellant observed the complainant's success at the casino. He had been watching her for some time and he was aware of the fact that she had a substantial quantity of cash with her.
When the complainant and her husband left the casino, the appellant followed them. Video surveillance footage from the casino clearly showed that the appellant followed the complainant and her husband whilst trying to give an impression that he was not doing so.
The appellant followed the complainant and her husband to the casino carpark. He observed the complainant at the back of a vehicle. The complainant's husband was about to reverse it out to enable her to get in without standing in a puddle of water. The appellant waited until the complainant's husband had shut the door of the vehicle and he then ran towards the complainant from behind. He grabbed the complainant's handbag with considerable force. This caused the strap of the bag to break and caused the complainant to stumble. The complainant placed her hands on the reversing vehicle to stop her falling. Although there was no attack by the appellant on the complainant, she sustained sprains to her wrist and knee and bruising to her right shoulder. She had previously had a right shoulder rotator cuff injury and the incident worsened the condition of her right shoulder.
The appellant ran off with the complainant's bag. He took the purse from it and dumped the handbag on the ground. He then entered the Burswood Convention Centre building, opposite the Burswood casino. There, he went to the male toilets where he removed $1,550 in cash from the complainant's wallet and discarded the wallet. Remaining in the wallet were a number of Burswood casino chips. They were never recovered.

Sentencing

The sentencing judge accepted that the grabbing by the appellant of the complainant's handbag had caused the complainant to stumble, but that there was no deliberate force applied to the complainant by the appellant. Nevertheless, the complainant had suffered injuries and residual effects of those injuries. The sentencing judge made the point that the 'potential for injury was high', particularly as the complainant had recently suffered a heart attack. After the incident, she was visibly shaking and medical staff at the casino had to administer oxygen to her.
The sentencing judge observed that the appellant could not have failed to appreciate that he was targeting an elderly person, and that elderly people are vulnerable to attacks such as that which the appellant made on the complainant. She observed that the complainant was standing near a slowly moving car in a concrete carpark and that the situation was potentially very dangerous. The complainant could have suffered more serious injury.
The sentencing judge referred to a victim impact statement which had been made by the complainant. In that statement, she said that she had met with the appellant and had forgiven him. She had received from the appellant one‑half of the money stolen and for that she was grateful.
The complainant added in the statement that, as a result of the incident, she had been forced to undergo physiotherapy for three months, combined with medication prescribed by her doctor. She had been prescribed 'E‑cell medic technology treatment' at a cost of $1,000 and she had to take painkillers, the expense of which strained her pension budget. Although she had recommenced housework, she was limited in her capacity for much work and required paid assistance because of her 83‑year‑old husband's limited ability to assist her.
A copy of the appellant's letter of apology to the complainant was received by the sentencing judge. It does contain a written apology and an expression of regret for what was done. The appellant contends in it that the act committed by him was 'on the spur of the moment'.
The sentencing judge observed that the victim impact statement spoke volumes for the complainant's 'kind and forgiving nature', as did her attendance with her husband in court on the occasion of the sentencing of the appellant.
A pre‑sentence report revealed that the appellant largely agreed with the statement of material facts with which he had been supplied. He told the writer of the report that he attended the casino on the night in question and gambled with money his parents had provided for him to pay rent. He lost that money and then walked around for some time before he saw the complainant with a large amount of money. He followed her until she was out of the building and then committed the offence. Although he took only $1,500 from her purse, he accepted that there were chips in the complainant's purse and he undertook to reimburse the full amount of $3,000 which the complainant had lost. He said that he had already given the complainant a bank cheque for $1,800 and would continue to pay back the money in instalments.

At the hearing of the appeal, the court was informed that no further payments had in fact been made, as the appellant was unable to keep up payments because of his incarceration.
The writer of the pre‑sentence report said that the appellant displayed little victim empathy and could not verbalise any effects on the victim other than the loss of the money. His personal history is set out in the report. He was born in Malaysia and grew up in that country before coming to Australia in February 2008 to take up studies at Murdoch University. At the time of the offence, he was residing in rented accommodation with other students. He attended the casino twice a week and had a gambling addiction. He said that he no longer gambled and that he been attending Gamblers Anonymous for counselling.
The report also reveals that the appellant was in receipt of $400 per week from his parents. $100 of that was for rent and $300 was for living expenses. In addition, he earned $200 per week in the course of his employment.
The report concluded that the offence committed by the appellant was a 'callous attack on an elderly lady which was committed without reason', but noted that the appellant had repaid some of the moneys and had intended to repay the balance.
The sentencing judge noted that the appellant was 23 years of age and single. She noted his gambling difficulties, but said that he did not suffer any financial difficulty because his parents were fully supporting him. He had no convictions in Western Australia or in Malaysia. Although the pre‑sentence report spoke of a lack of victim empathy, the sentencing judge was prepared to accept that the appellant's repayment of moneys was consistent with victim empathy.
The sentencing judge described the offence as a despicable one, but accepted that there was no gratuitous violence used. She noted that the appellant did not have a real need for money, but wanted more money with which to gamble and had an addiction to gambling. Her Honour thought that this addiction might be said to have compromised the appellant's natural judgment, but she concluded that the appellant had a premeditated intent to commit the offence. He followed the victim and her husband for some time and for some distance after they had left the casino.
The sentencing judge took full account of the appellant's plea of guilty, his apology to the complainant, his repayment of moneys, his lack of prior record and the support he had from his family. Her Honour considered, however, that a term of imprisonment was necessary and that the seriousness of the offence was too great to allow for suspension of that term. She said:
I consider the seriousness of this offence is too great to suspend the term. It's very sad that a young man of your prospects and good character should find himself in this position but elderly people are too vulnerable in our society to attacks of this kind and I think the community would be rightly outraged if a person could attack an elderly woman in this way and escape an immediate term of imprisonment.
I don't consider the factors in your favour and there are factors in your favour, outweigh the need for a sentence which will both deter you from offending again but also, importantly, send a clear message to others in the community who choose to prey on the elderly. Many, if not all of those people, will be addicts of one kind or another and the need to send a strong deterrent message is high.
The sentence of imprisonment of 2 years reflected a 25% discount for the appellant's plea of guilty and a reduction of one‑third to account for the transitional provisions, which were then applicable.

Appeal

The ground of appeal contends that the sentencing judge erred in imposing a sentence of imprisonment to be served immediately, when it was open to suspend the term of imprisonment.
The question is whether the seriousness of the offence was such that only a sentence of immediate imprisonment was appropriate, or whether, in the circumstances of the particular case, a sentence of suspended imprisonment was open. If it was open, the sentencing judge ought to have imposed it: Sentencing Act 1995 (WA) s 6(4), s 39(3). A sentence of immediate imprisonment cannot be imposed unless the court is satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence: Skipworth v The State of Western Australia [2008] WASCA 64 (McLure JA) [8].
The offence was one of aggravated robbery. The two circumstances of aggravation were that the appellant did bodily harm to the complainant and that the complainant was of or over the age of 60 years. The maximum sentence applicable for the offence was 20 years' imprisonment (Criminal Code s 392(d)).
Aggravated robbery is a serious offence, although it is less serious than the offence of armed robbery for which the maximum sentence of imprisonment is life (Criminal Code s 392(c)) and where the range of sentences applicable after application of the transitional provisions has ordinarily been 4 to 6 years (Miles v The Queen (1997) 17 WAR 518 and see Mills v The State of Western Australia [2007] WASCA 118, per McLure JA at [15]).
Sentences for robbery in company (which is aggravated robbery) have generally been within a range of 2 to 4 years, after taking account of the transitional provisions (Mills per Miller JA at [67]).
Where the offence is unattended by actual violence, the range may be lower. In The State of Western Australia v Amoore [2008] WASCA 65, Pullin JA at [50] concluded:
[The] cases suggest that in pre-transitional terms, a sentence in the range of 4 to 6 years is the type of sentence expected for aggravated robbery involving actual violence. It would therefore be reasonable to conclude that robbery in company but unattended by actual violence would attract a lesser sentence of between 3 to 4 years in pre‑transitional terms. [50]
In post‑transitional terms, the range suggested by Pullin JA is 2 years to 2 years 8 months' imprisonment.
Having regard to the views expressed in Mills and in Amoore, the sentence of 2 years' imprisonment imposed in the present case was at the bottom end of the range for an offence of its type.
A sentence of suspended imprisonment is always open in a particular case (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321), but it is clear from the cases to which I have referred that sentences of immediate imprisonment are generally imposed in cases of aggravated robbery.
In the present case, the circumstances of aggravation were two. Not only was there actual violence caused, but the advanced age of the complainant was a circumstance of aggravation. She was well over the age of 60 years.
In my opinion, the sentencing judge correctly took account of the fact that deterrent sentences are called for in cases of aggravated robbery where the circumstance of aggravation is that the complainant is of or over the age of 60 years. As the sentencing judge said, such sentences need to 'send a clear message to others in the community who choose to prey on the elderly'.
In the present case, the appellant targeted a very elderly lady whom he had observed enjoying gambling success at the Burswood International Resort casino. His offence was premeditated in the sense that, once aware of her substantial winnings, he followed her out to the carpark and there used violence to seize from her the handbag in which the money was contained. Actual violence was occasioned to the complainant who suffered bodily harm. A further relevant factor was that the offence occurred at night.
In these circumstances, it is difficult to see that there is anything exceptional about the appellant's case which would justify a sentence other than one of immediate imprisonment.
Although the appellant pleaded guilty, had no prior convictions and was generally of good character, and although he had expressed remorse and had repaid a portion of the money stolen, the offence he committed was undoubtedly a very serious one. Because a deterrent sentence was called for, the appellant's personal circumstances, although relevant, were of lesser importance than might otherwise be the case. This principle was expressed by Anderson J (with whom Rowland and Ipp JJ agreed) in R v Catts (1996) 85 A Crim R 171 at 176 in the following terms:
In cases where the dominant sentencing consideration is the need to deter others from engaging in similar conduct, the personal considerations - the matters personal to the offender - that might otherwise weigh quite heavily in favour of a lesser sentence cannot be given so much weight: see Elvin (1976) Crim L R 204; Wozencroft, (unreported Court of Criminal Appeal, WA, Library No 6606 25 February 1987).
There may be a case for a sentence other than immediate imprisonment when an offender is convicted of simple robbery; that is, stealing with violence without any circumstance of aggravation. There, the maximum penalty applicable is imprisonment for 14 years (Criminal Code s 392(e)).
A case in which a suspended term of imprisonment was imposed for one count of robbery, one count of attempted stealing and one count of attempted armed robbery was Thomson v The Queen (1998) 105 A Crim R 150. The count of robbery was punishable by 14 years' imprisonment and the count of attempted stealing by 7 years' imprisonment (Criminal Code s 393, s 378(5)(a), s 554(b)). The count of attempted armed robbery included the circumstance of aggravation that the applicants were armed with an offensive weapon, being a blood‑filled syringe. This meant that the maximum penalty applicable for that offence was 14 years' imprisonment (Criminal Code s 393 and s 554(a)).
The offences were described by Malcolm CJ in the following terms at 26:
Of the three, the offence of attempted armed robbery was the most serious, particularly having regard to the use of the blood‑filled syringe and the reference by Mr Owen to HIV. It is highly relevant, however, notwithstanding the trauma suffered by the victim, that her resistance was such that Mr Owen desisted in the attempt. There is no doubt that the prevalence of the offence of bag snatching from women is a matter of concern. It has been suggested that the increase in such offences has a relationship to amendments to pawnbroking legislation which has made it more difficult for drug addicts to dispose of stolen property such as television sets, video recorders, computers and the like, as well as the so-called 'three strikes' legislation. Deterrence has a role to play but it would be easy to over‑estimate it. (26)
The court was influenced by the fact that reports on both applicants were positive and pointed strongly towards rehabilitation from drug addiction. It was this addiction which had brought about the offending.
Malcolm CJ, at 28, made reference to the percentage of cases of robbery in which a sentence other than one of immediate imprisonment was imposed. His Honour said:
In a case of robbery, which involves stealing with violence but not armed, there is clearly more room for the imposition of a non-custodial sentence than in the case of armed robbery. According to the 1996 report of the Crime Research Centre, the offence of robbery attracted imprisonment in 83 per cent of cases compared to 92 per cent in respect of armed robbery. (28)
These observations were made more than 10 years ago and are not necessarily applicable to offences today. They do reveal that there will be cases in which sentences other than sentences of immediate imprisonment will be imposed, but such cases are relatively rare and can generally be said to involve exceptional circumstances. Indeed, Thomson (which was not relied upon by either counsel in this appeal) was later regarded by Malcolm CJ in Steer v The Queen (Unreported, WASCA, Library No 980739, 1 December 1998) as an exceptional case. Malcolm CJ (with whom Murray and White JJ agreed) said, at 12:
Thomson and Owen, above, of course, was a case of attempted armed robbery and it was in the special circumstances regarded as exceptional that the Court of Criminal Appeal set aside the sentences imposed and substituted a suspended sentence or imprisonment for 18 months on the basis that one of the main purposes of suspending sentence is to facilitate the rehabilitation of the offender while marking the seriousness of the offence: R v GP (1997) 18 WAR 196, and R v Liddington, unreported; CCA SCt of WA; Library No 970614; 14 November 1997. (12)
The question is whether this case could be said to be an exceptional one which would justify a sentence other than one of immediate imprisonment.
In my opinion, the case is not exceptional. It was a case of aggravated robbery, with two circumstances of aggravation, being the causing of bodily harm and the fact that the complainant was over the age of 60 years. It was a premeditated attack, made at night, upon an elderly woman whom the appellant had observed to be in possession of a substantial sum which she had won gambling. The appellant waited until he saw an opportunity to attack the complainant and snatch her handbag from her. In the course of doing so, he caused her bodily harm. That was clearly foreseeable in the circumstances.
The sentencing judge was correct to say that deterrent sentences are important in cases in which people choose to 'prey on the elderly'. The purpose of the circumstance of aggravation contained within s 392(b) of the Criminal Code (where the person to whom violence is used or threatened is of or over the age of 60 years) is to deter people from attacking the elderly. The vulnerability of the victim is clearly a relevant factor.
The appellant's personal circumstances were relevant. He was only 23 years of age and had no prior convictions. He was a person who was otherwise of good character. He had repaid approximately half of the money lost by the complainant and had undertaken to repay the rest. In addition, he pleaded guilty, was remorseful and had accepted responsibility for what he had done (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ at [11] ‑ [12]).
Nevertheless, in my opinion, the seriousness of the offence committed by the appellant was such that only a sentence of imprisonment to be served immediately was an appropriate disposition of the matter. I consider that the sentencing judge was correct to conclude that a deterrent sentence was called for. There is no challenge to the length of the sentence, which was at the lower end of the range of sentences that could have been imposed.
The grounds of appeal did not include any contention that, because the appellant had served approximately 1 month in custody, the sentencing judge might have taken that factor into account in determining whether or not to suspend the sentence of imprisonment. The issue was raised by the court.
At the sentencing hearing, counsel for the appellant raised the issue of the appellant's incarceration pending sentence. She said:
He was apprehended on Friday, 4 July, where he was interviewed and made some admissions about being at the casino. He was then remanded in custody. He was assaulted on his first day at Hakea Remand Centre and was placed in isolation in crisis care after that assault. When I saw him to take instructions on 14 July at Hakea, he still had symptoms near his eye where he had received four to five punches to the side of his eye. I can't remember whether it was the left or right, but to one side of his eye.
Out of fear he did not lodge a complaint and that matter has not been pursued by the prison authorities or by Mr Chen. He spent some time in custody and his time in custody has been a frightening and salutary lesson to him and it has been a very effective personal deterrent. It is unlikely that Mr Chen will ever come before the court again because the fear of ever going to prison frightened the living daylights out of him.
The sentencing judge made no particular reference to the fact that the appellant had spent a period of time in custody. Her Honour simply backdated the sentence from 16 October 2008 to 18 September 2008 'to take into account [the appellant's] time in custody on remand'.
I am not satisfied that the period of time spent in custody pending sentence should have had any bearing upon the determination of the sentencing judge to impose a term of immediate imprisonment. Although the sentencing judge made no reference to the problems referred to by the appellant's counsel, I do not consider that she was obliged to do so. Nor do I consider that her Honour was obliged to take into account the fact that the appellant had already served a term of imprisonment of 1 month when considering whether or not the seriousness of the offence was such as to lead only to the conclusion that a sentence of immediate imprisonment should be imposed.
I would dismiss the appeal.