Copperwaite v The State of Western Australia

[2012] WASCA 224

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   COPPERWAITE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 224

CORAM:   BUSS JA

MAZZA JA

HEARD:   24 OCTOBER 2012

DELIVERED          :   7 NOVEMBER 2012

FILE NO/S:   CACR 119 of 2012

BETWEEN:   COLIN ANDREW COPPERWAITE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1473 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Assault with intent to rob in circumstances of aggravation - Whether sentence imposed was manifestly excessive - Whether sentence breaches the parity principle

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Criminal Code (WA), s 393(d)

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr G M Rodgers

Respondent:     No appearance

Solicitors:

Appellant:     Gary Rodgers, Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Mills v The State of Western Australia [2007] WASCA 118

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Wilson v The State of Western Australia [2010] WASCA 82

1. BUSS JA:  I agree with Mazza JA.

2. MAZZA JA:  This is an application for leave to appeal against sentence.  The appellant and Narongsak Rodchompoo were jointly charged as follows:

   On 20 May 2011 at Fremantle Colin Andrew Copperwaite and Narongsak Rodchompoo, with intent to steal money, used violence to Julius Frederick Welke in order to obtain the money which they so intended to steal

   And that Colin Andrew Copperwaite and Narongsak Rodchompo were in company with each other

   And that Colin Andrew Copperwaite and Narongsak Rodchompo did bodily harm to Julius Frederick Welke.

3. The maximum penalty for this offence is 14 years' imprisonment: s 393(d) of the Criminal Code (WA).

4. The appellant and Mr Rodchompoo pleaded guilty on the fast‑track system as charged.  On 19 April 2012, Scott DCJ sentenced the appellant to 3 years and 6 months' imprisonment with eligibility for parole to commence on 27 October 2011.  Mr Rodchompoo was sentenced at the same time to 2 years' imprisonment with eligibility for parole to commence on 28 September 2011.  Mr Rodchompoo also received a further 2 months' imprisonment for an offence of breach of bail.

5. The appellant seeks leave to appeal on two grounds.  The first ground alleges that the sentence imposed upon him was manifestly excessive.  The second ground alleges a breach of the parity principle. 

6. The legal principles applicable to the appellate review of sentences are well known.  I adopt the statement of those principles made by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

The facts of the offending

1. At about 10.30 pm on 20 May 2011, the appellant and Mr Rodchompoo were walking through the grounds of the Fremantle Primary School when they came across the victim who was affected by alcohol and was being sick.  They had a short conversation with the victim and then the appellant punched him in the face and knocked him to the ground.  The learned sentencing judge described the blow as 'significant'.  A demand was made for money.  At the time the victim only had $3.50 on him.  A 'soft' kick was delivered to the victim by one or

other of the appellant and Mr Rodchompoo.  Further demands for money were made.  Out of fear, the victim said he would go to an automatic teller machine to get more money. 

1. The appellant, Mr Rodchompoo and the victim all walked towards Fremantle.  As they did so, the victim was struck in the head but the victim was unable to say who hit him.  As the group walked past the entrance to the Fremantle Hospital, the victim ran into the emergency department and reported what had happened.  The police acted quickly and apprehended the appellant and Mr Rodchompoo.  Both men declined to participate in a record of interview.

2. As a result of the attack, the victim received multiple cuts and abrasions to his face and neck and a bruise to his left eye to the extent that it closed over (ts 13). 

3. The learned sentencing judge described the victim as vulnerable and the assault as unprovoked.  He described it as being 'undoubtedly terrifying for the victim' (ts 29). 

The appellant's antecedents

1. The learned sentencing judge had before him a pre‑sentence report, a psychological report prepared by Ms C Lynn dated 19 December 2011, and a psychiatric report prepared by Dr S D Febbo dated 4 March 2012. 

2. At the time he was sentenced, the appellant was 27 years of age.  He has a long and entrenched history of alcohol abuse. 

3. In Dr Febbo's opinion the appellant suffers from a pre‑existing significant depressive syndrome complicated by alcohol abuse.

4. Ms Lynn noted 'a remarkable tolerance for, desensitisation to and readiness to utilise violence automatically to cope with perceived threat or to achieve goals' (Ms Lynn's report, page 2).  In Ms Lynn's opinion, this indicated a high potential for future violence (Ms Lynn's report, page 6).  She also noted that the appellant had found attempts to cease using alcohol 'too hard' and typically struggled to control the impulse to drink excessively.

5. The appellant has a disturbing record of violent offending which is associated with his alcohol abuse.  The appellant's criminal history reveals the following convictions:

Date	Court	Offence	Result
22 July 2010	Fremantle Magistrates Court	Assault occasioning bodily harm with circumstances of aggravation:  Criminal Code (WA) s 317(1)	7 months' imprisonment
19 June 2007	District Court	Three counts of assault occasioning bodily harm and one count of assaulting a public officer	30 months' imprisonment
12 August 2003	Fremantle Court of Petty Sessions	Four counts of assaulting a public officer	6 months' imprisonment suspended for 18 months and a $500 fine
20 November 2002	Fremantle Court of Petty Sessions	Common assault	$250 fine

In addition to these offences the appellant has convictions for damaging property, disorderly conduct, stealing a motor vehicle, resisting arrest, stealing, and street drinking.

Mr Rodchompoo's antecedents

1. At the time of sentencing Mr Rodchompoo was 31 years of age.  He was said by the learned sentencing judge to have had an unremarkable family history.  He was a regular user of cannabis.

2. Mr Rodchompoo had a lengthy criminal history of minor offending but only one prior conviction involving violence.  In 2004 he was convicted in the Perth Magistrates Court of unlawful wounding and sentenced to 12 months imprisonment suspended for 18 months.

The sentencing remarks

1. His Honour described the offence as constituting a cowardly attack on a vulnerable and defenceless victim which occurred over a period of time.

2. He accepted that the appellant struck the first and most significant blow.  His Honour described that blow as knocking 'the wind out of [the victim's] sails' and said that it was the precursor to the victim's understandable apprehension that if he did not do what he was told he was likely to be assaulted again (ts 29).  His Honour found that Mr Rodchompoo was not merely an observer.  He noted that from the victim's perspective Mr Rodchompoo was available to assist and participate in the crime if necessary.  Further, Mr Rodchompoo at no stage discouraged the appellant from acting violently.  In respect of both offenders, his Honour emphasised the need for personal and general deterrence (ts 36).

3. His Honour expressly had regard to the parity principle.  He drew two distinctions between the appellant and Mr Rodchompoo.  First, he considered that the appellant played a greater role in the commission of the offence because he was the one who struck the first and most serious blow to the victim.  Second, the appellant's history of violent offending, and the likelihood of him being a risk to the community in the future, meant that personal deterrence played an even more important role in his sentencing when compared to Mr Rodchompoo (ts 37).

The grounds of appeal

1. Was the sentence manifestly excessive?

1. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily imposed, the place in which the criminal conduct occupies on a scale of seriousness of offences of the type in question and the offender's personal circumstances:  Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

2. As I have already observed, the maximum penalty for the offence is 14 years' imprisonment.

3. The only case cited by the appellant is Mills v The State of Western Australia [2007] WASCA 118 although that case concerned an appellant who was convicted of robbery in company. The appellant's written submissions assert that this case demonstrates that the sentence imposed upon the appellant fell outside the range of sentences customarily imposed. Of course, the outcome in a single case does not establish a sentencing range. In any event, the case is of no assistance in respect of the complaint of manifest excess. Mills was sentenced to 4 years and 10 months' imprisonment after trial. On appeal, that was reduced to 3 years and 4 months' imprisonment. The majority (Steytler P and McLure JA) upheld Mills' appeal for parity reasons. As a result it was unnecessary to determine whether the sentence imposed on him by the primary judge was manifestly excessive [20].

4. The offence committed by the appellant was serious although not at the upper end of seriousness for offences of this type.  The appellant and his co offender took advantage of a vulnerable victim.  His Honour was correct to characterise the offence as cowardly.  The appellant struck a significant blow and once embarked upon, the attempt to steal money from the victim was persistently pursued.  It is the kind of unprovoked and random personal attack which requires personal and general deterrence.

5. There was nothing mitigatory in the appellant's antecedents.  He had a bad record of violent offences which have, over the years, been escalating in their seriousness.  His offending was linked with his entrenched alcohol abuse, which has remained resistant to rehabilitation.  There remains a real risk that he will reoffend in a violent way in the future.  The only significant mitigating factor was the appellant's fast track plea of guilty.  However, his Honour found that the plea of guilty was not accompanied by any remorse.  The pre‑sentence report writer noted that the appellant 'lacked appropriate victim empathy'.

6. In my opinion, having regard to all of these circumstances, it is not reasonably arguable that the sentence imposed was plainly unjust or unreasonable.

1. Did the sentence offend the parity principle?

1. The appellant's main submission in respect of this ground was that the extent of the disparity between the sentences imposed upon the appellant and Mr Rodchompoo was too great.  The appellant submitted that the differences in their respective roles in the commission of the offence and antecedents did not justify a disparity of 18 months.  A smaller disparity was called for.

2. The parity principle requires that there be a proper relationship between the sentences imposed on co offenders involved in an offence.  It was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 as follows:

   It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (606).

3. Before an appellate court can intervene, any disparity or lack of disparity must give rise to an objectively justifiable sense of grievance or an appearance that justice is not being done: the fact that an appellant feels a sense of grievance is not determinative: Lowe (610); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301, 338. In order to determine whether there is a proper relationship between the sentences imposed on co offenders it is necessary to have regard to the circumstances of the co offenders and the part each played in the relevant criminal conduct: Postiglione (302); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].

4. The differences between the appellant and Mr Rodchompoo were:

   (1)the appellant played a more significant role in the commission of the offence than Mr Rodchompoo in that it was the appellant who struck the first and telling blow to the victim; and

   (2)the appellant's antecedents were worse than Mr Rodchompoo's.  The appellant had a recent and escalating history of violence.  Consequently, although personal deterrence was an aspect relevant to the sentencing of each offender, it had greater significance in the case of the appellant.

5. To my mind, these differences were such as to justify the significant difference in the sentences imposed upon the appellant and Mr Rodchompoo.  I am not persuaded that the appellant has a reasonable prospect of establishing that the difference in the sentences is capable of giving rise to an objectively justifiable sense of grievance.

Conclusion

1. For these reasons, neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal is refused. Consequently the appeal is to be taken to have been dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).

2. The orders that I would make are:

   (1)Leave to appeal is refused.

   (2)The appeal is dismissed.