Davis v The State of Western Australia
[2007] WASCA 147
•13 JULY 2007
DAVIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 147 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2007 | 6 JULY 2007 | |
| Coram: | MILLER JA | 13/07/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | JASON PHILIP DAVIS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal Whether grounds have reasonable prospect of succeeding Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 8(4), s 32 |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 Pearce v The Queen (1998) 194 CLR 610 Worthington v The State of Western Australia (2005) 152 A Crim R 585 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAVIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 147 CORAM : MILLER JA HEARD : 6 JULY 2007 DELIVERED : 13 JULY 2007 FILE NO/S : CACR 43 of 2007 BETWEEN : JASON PHILIP DAVIS
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 145 of 2006, INS 145A of 2006, INS 173 of 2006
Catchwords:
Criminal law - Leave to appeal - Whether grounds have reasonable prospect of succeeding - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 8(4), s 32
(Page 2)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
Worthington v The State of Western Australia (2005) 152 A Crim R 585
(Page 3)
1 MILLER JA: The appellant was sentenced in the Supreme Court at Perth on 26 March 2007 on eight counts of armed robbery, one count of aggravated armed robbery, one count of attempted armed robbery, two counts of assault with intent to prevent arrest and one count of fraud.
2 In addition, the appellant was dealt with under s 32 of the Sentencing Act1995 (WA) for eight charges of fraud and one of stealing.
3 The appellant was sentenced to an effective term of imprisonment of 10 years with eligibility for parole. The sentences were backdated to 16 February 2006.
4 The appellant seeks leave to appeal on five grounds. They are as follows:
"1. The sentencing process lacked transparency
2. The learned Sentencing Judge failed to give sufficient weight to the early guilty plea
3. The sentence offends the totality principle
4. The learned Sentencing Judge failed to give any consideration to the One Transaction Rule
5. The sentence is manifestly excessive"
The facts
5 The facts reveal that the appellant committed all but one offence over a period of two and a half months. The robbery offences occurred over a 20-day period. They were described by the learned sentencing Judge as representing "an escalation in the seriousness of (the appellant's) offending which had been then going on for nearly two months". The offending only stopped when the appellant was arrested.
6 The first of the armed robberies occurred on 4 November 2004,when the appellant approached an attendant at the Carrington Liquor Store in Palmyra and demanded that he fill a bag from the till. Money was handed over to the appellant and the attendant punched the appellant in the mouth. Another store attendant approached to assist and the appellant pointed what appeared to be a pistol, warning that he would be back later. $1000 was stolen.
(Page 4)
7 The second armed robbery occurred on 27 January 2006, when the appellant went to an Australia Post office and demanded money from a female attendant. He received $650 in cash and when told there were no other tills in the store in which money was held he left. On leaving, he told the attendant that he was armed with a firearm.
8 On 1 February 2006, the appellant committed an aggravated armed robbery at the Kenwick Village newsagency and post office. He approached a 61-year-old male attendant and revealed a double-barrelled shotgun. It was protruding from his jacket. He demanded money and was given a total of $439.
9 On 8 February 2006, the appellant committed an armed robbery at a Caltex service station in Rivervale. He was armed with a firearm and pointed it at two male attendants. He received $490.
10 On 9 February 2006, the appellant committed an armed robbery at an Australia Post office in Beechboro. He pointed a firearm at a 60-year-old male attendant and demanded cash. He received $3700. As he was leaving the store, a security officer attempted to apprehend him. He pushed the security officer away and revealed a double-barrelled shotgun inside his jacket. He ran from the store. He was pursued by the security officer. He turned and again displayed the firearm at him. He then ran away from the security officer.
11 On 11 February 2006, the appellant committed an armed robbery at an Australia Post office in Victoria Park. He went to a female attendant and lifted his shirt to reveal a concealed firearm. He received $510.
12 On 13 February 2006, the appellant went to the Home Building Society in Morley. He approached a 51-year-old teller and informed her that he was in possession of a firearm. He was handed $1465.
13 On 13 February 2006, some four hours after the previous armed robbery, the appellant went to Red Rooster, Noranda, where he approached a young female attendant, revealed a firearm and demanded money. He was handed $500. As he was leaving the scene, the store manager chased the appellant through the carpark. The appellant stopped, turned towards his pursuer and removed a firearm from inside his pants. He held it in his hand and told his pursuer not to be a hero. He then got away.
14 On 16 February 2006, the appellant went to the Crimea newsagency in Morley, where he approached the counter and showed a female
(Page 5)
- attendant a firearm and demanded money. He received $200. When the owner of the store approached him, he pointed the firearm at him and then ran from the store. As he was leaving, he was pursued by several members of the public. They included a former serving police officer. She pursued the appellant in her motor vehicle. She pulled up alongside the appellant and told him to give himself up. However, he raised a firearm and held it approximately 30 centimetres from her head, demanding that she give up her vehicle. She at first refused, but was again threatened with the firearm. Fearing for her safety, she got out of the vehicle, but she refused to hand over her keys. The appellant then ran off. Shortly afterwards, he was apprehended in a shed on a property in Morley Drive, Morley. A replica pistol was recovered.
15 The count of fraud was related to the offences which are the subject of the s 32 notice. Those offences involved the appellant and a co-offender defrauding a person who had been befriended by the co-offender. A considerable sum of money (approximately $25,000) was the subject of these offences.
Sentencing comments
16 The learned sentencing Judge's sentencing comments were extensive. After dealing with the facts, her Honour dealt with matters personal to the appellant. She noted that he contended that, at the time of commission of the offences, he was under the influence of Interferon, a drug that he was taking for the treatment of hepatitis C. However, there was no evidence before the learned sentencing Judge that this drug had played any significant part in the appellant's offending. Her Honour's conclusion was that she was not satisfied, on the balance of probabilities, that any effect of Interferon was a significant one. Nevertheless, the learned sentencing Judge did indicate that she was prepared to reduce the sentences that would otherwise have been pronounced to take into account the likelihood that Interferon reduced to some extent the appellant's moral responsibility for his offending.
17 The learned sentencing Judge noted that the appellant was 37 years of age and had a prior record of offences which included armed robbery as a 20-year-old. For this offence, the appellant was put on probation. In 2005, he spent nearly a year in custody for traffic-related convictions.
18 The appellant had abused illicit drugs and alcohol since he was a young teenager. He had more recently been a heroin user, but had not used heroin since November 2004.
(Page 6)
19 The learned sentencing Judge concluded that the principal sentencing considerations were general and personal deterrence. She noted particularly that the armed robberies were conducted on service stations and small businesses and that there was a prevalence of these offences which necessitated the imposition of deterrent sentences.
20 The learned sentencing Judge also noted that vulnerable people had been threatened with frightening weapons and that a total of approximately $10,000 had been obtained, of which only $605 had been recovered.
21 The learned sentencing Judge took into account the appellant's plea of guilty and the mitigatory effect of the use of Interferon, and its effect upon the appellant's moral responsibility. Sentences were then imposed.
22 The sentences of 3 years' imprisonment for each of counts 1 and 7 on indictment 145 of 2006 were for offences where the appellant had told the complainants he was armed with a weapon. The sentences of 3-1/2 years' imprisonment for each of count 1 on indictment 173 of 2006 and counts 2, 6 and 8 on indictment 145 of 2006 were in circumstances where the appellant showed the weapon to the complainants. The sentences of 4 years' imprisonment for each of counts 3, 4 and 10 on indictment 145 of 2006 were where the appellant had displayed the weapon and threatened the complainants directly with it. The escalation in sentences thus reflected the extent to which the weapon or weapons were used.
23 For the assaults with intent to prevent arrest, the appellant was sentenced to 18 months' imprisonment on each count (counts 5 and 9 on indictment 145 of 2006). For the offence of attempted armed robbery (count 11 on indictment 145 of 2006), the appellant was sentenced to 3 years' imprisonment. For the offence of fraud, the appellant was sentenced to 12 months' imprisonment. On the s 32 notice matters, the appellant was sentenced to 6 months' imprisonment in relation to each charge.
24 The learned sentencing Judge addressed the question of concurrency and/or accumulation. She addressed particularly the question whether the offences arose out of the same set of facts or whether they disclosed entirely different conduct. Whilst noting that the "one transaction rule" generally attracts concurrent sentences, the learned sentencing Judge noted that the principle remained that the overall criminal conduct had to be appropriately recognised.
(Page 7)
25 The learned sentencing Judge declined to limit the sentencing process by application of the "one transaction rule", but took the view that the totality principle was the guiding factor. Her Honour recognised that the final sentence could not be a crushing sentence. In the result, cumulative sentences were imposed in relation to counts 1, 7 and 10 on indictment 145 of 2006, making a total of 10 years' imprisonment. All other sentences were ordered to be served concurrently with those sentences and with each other.
26 The learned sentencing Judge recognised that the sentence equated to 15 years prior to application of the transitional provisions. She had a "last look" at the sentence in this light. Her Honour recognised that the sentence was a long one, but noted that the appellant had terrorised at least 10 people on different occasions with a firearm, or replica firearm. She considered that the overall sentence was not crushing, but decided to grant the appellant eligibility for parole.
Grounds of appeal
Ground 1
27 This ground contends that the sentencing process "lacked transparency". It is said that it lacked transparency because the learned sentencing Judge failed to state the discount for the early plea of guilty. Section 8(4) of the Sentencing Act1995 (WA) is called in aid.
28 However, s 8(4) of the Sentencing Act1995 provides only that if because of a mitigating factor a Court reduces the sentence it would otherwise have imposed on an offender, the Court must state that fact in open court. This, the learned sentencing Judge did. The Court is not required to state what precise discount was given for the plea of guilty. This ground of appeal has no prospect of success. Leave to appeal is not granted.
Ground 2
29 This ground contends that the learned sentencing Judge failed to give sufficient weight to the early guilty plea. However, the learned sentencing Judge did take full account of the plea of guilty and made specific reference to it.
30 The submissions in support of the ground also contend that the learned sentencing Judge failed to give weight to the appellant being on Interferon at the time of commission of the offences. This is not included in ground 2 of the grounds of appeal. However, notwithstanding this, it
(Page 8)
- can be said that the learned sentencing Judge did accept that there was a reduction in moral responsibility by reason of the possible effect of Interferon. Her Honour rightly concluded that there was no evidence before her to lead to the conclusion that the effect of Interferon was, in any way, a significant factor. In my view, this ground has no reasonable prospect of success. I refuse leave.
Ground 3
31 This ground contends that the sentence offends the totality principle. It can best be considered in combination with ground 5.
Ground 4
32 This ground contends that the learned sentencing Judge failed to give any consideration to the "one transaction rule". In fact, the learned sentencing Judge did give consideration to the one transaction rule. Her Honour made specific reference to it when considering the question of concurrency or accumulation of sentence.
33 The one transaction rule, or "continuing episode rule", was comprehensively dealt with by Steytler P in Worthington v The State of Western Australia (2005) 152 A Crim R 585 at [20] et seq. The "rule" is essentially to the effect that concurrent sentences should be imposed in the case of a number of offences which arise from substantially the same act, or same circumstances, or a closely related series of offences. In Pearce v The Queen (1998) 194 CLR 610, Kirby J, at [120], made reference to multiple offences which are "considered to be manifestations of the one criminal enterprise, transaction or episode".
34 In Worthington, at [21] - [24], Steytler P said:
"21 The underlying principle of the 'rule' has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) p 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency if they have been committed within a short period of time: see, for example, R v Scanlon (1987) 89 FLR 77.
22 In Dicks v Asherton [sic Dicker v Ashton] (1974) 65 LSJS 150 at 151 (cited with approval by Asche CJ in Scanlon, at 80 - 81), Wells J said:
- '… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct.'
- 23 It is plain that this 'rule' is not a rule at all, but merely a guideline or, as it was described in Ruane The Queen (1979) 1 A Crim R 284, a 'good working rule'. Each case must, in the end, depend upon its own circumstances and it is for the sentencing judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien [1997] 2 VR 714 at 720 - 721.
24 In Pearce (at [40]), McHugh, Hayne and Callinan JJ said:
'To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts'."
(Page 10)
35 In the present case, each of the armed robbery offences was clearly a separate and distinct offence. In my view, the learned sentencing Judge was quite correct in declining to apply the one transaction rule to those offences. The learned sentencing Judge appreciated that the real question was the proper sentence to be imposed for the total criminality involved in the offences committed by the appellant.
36 It cannot be said that the learned sentencing Judge failed to give any consideration to the one transaction rule. Her Honour specifically addressed it. I therefore consider that ground 4 has no reasonable prospect of success and I refuse leave to appeal.
Grounds 3 and 5
37 These grounds contend that the sentences imposed upon the appellant were manifestly excessive, primarily because they offend the totality principle. That principle has been expressed in many cases, but was succinctly put by Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 207 in these terms:
"The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1998) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312."
38 In the present case, the learned sentencing Judge took full account of the totality principle. Reference was made to it several times. The ultimate effective sentence imposed upon the appellant took full account of the fact that the sentence should not be a crushing one.
39 The question is whether the sentences in totality were manifestly excessive. In my view, they were not. The appellant committed a series of very bad offences. As the learned sentencing Judge said, vulnerable people were threatened with frightening weapons and a very substantial amount of money was stolen. They were multiple offences in which at least 10 different people were terrorised on different occasions with a firearm, or a replica firearm.
40 In these circumstances, deterrent sentences of substantial length were called for. In my view, a total sentence of 10 years' imprisonment (which equated to 15 years' imprisonment before the transitional provisions) could not be said to be manifestly excessive. In my view, grounds 3 and 5
(Page 11)
- have no reasonable prospect of success and I would refuse leave in relation to each.
2
9
1