Dedman v The State of Western Australia

[2009] WASCA 135

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DEDMAN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 135

CORAM:   MILLER JA

HEARD:   24 JULY 2009

DELIVERED          :   6 AUGUST 2009

FILE NO/S:   CACR 70 of 2009

BETWEEN:   TACE MAREE DEDMAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :INS 31 of 2009

Catchwords:

Criminal law - Leave to appeal - Aggravated armed robbery - Sentence of 3 years' imprisonment - Whether manifestly excessive

Criminal law and procedure - Leave to appeal - Failure by trial judge to state that plea of guilty taken into account - Whether any miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)
Sentencing Act 1995 (WA), s 8, s 32

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr P B Cassidy

Respondent:     No appearance

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2007] WASCA 105

Mejtska v The State of Western Australia [2009] WASCA 80

Miles v The Queen (1997) 17 WAR 518

Moulds v The Queen (Unreported, WASCA, Library No 980147, 4 March 1998)

Pickett v The State of Western Australia [2004] WASCA 291

R v Valentine [2003] WASCA 7

Royer v The State of Western Australia [2009] WASCA 139

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sein‑Thet v The Queen [1999] WASCA 186

Slater v The Queen [2000] WASCA 365

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

1. MILLER JA: The appellant pleaded guilty to the offence of aggravated armed robbery in company and to a number of offences which were the subject of a s 32 notice (s 32 Sentencing Act1995 (WA)).

2. On 4 May 2009, the sentencing judge imposed upon the appellant a term of 3 years' imprisonment for the offence of aggravated armed robbery and imposed fines on each of the offences the subject of the s 32 notice. Those offences were criminal damage ($500 fine), possession of cannabis ($200 fine), stealing ($500 fine on each of three charges), and common assault ($1,000 fine).

Appeal

1. The appellant seeks leave to appeal against the sentence of 3 years' imprisonment imposed in relation to the offence of aggravated armed robbery in company.  There are two grounds of appeal which are in the following terms:

   Ground 1

   1.The learned sentencing Judge erred both in law and in fact when he failed to allow sufficient discount for a mitigating factor, namely the spontaneity of the offending, such that, in all the circumstances, the sentence imposed for the Indictable offence was manifestly excessive;

   Particulars of circumstances:

   i)the early plea of guilty;

   ii)the Appellant's antecedents;

   iii)the circumstances of the offence.

   Ground 2

   2.Contrary to Section 8 (4) of the Sentencing Act 1995 the learned sentencing Judge erred in law when he failed to state that he had taken the plea of guilty into account such that, in all the circumstances, the sentence imposed for the Indictable offence was manifestly excessive;

   Particulars of circumstances:

   i)the early plea of guilty;

   ii)the Appellant's antecedents;

   iii)the circumstances of the offence.

2. For leave to appeal to be granted, the court must be satisfied that the ground has a reasonable prospect of succeeding:  Criminal Appeals Act 2004 (WA), s 9(2). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

The facts

1. The sentencing judge referred only briefly to the facts.  He said:

   On 17 January this year while under the influence of Valium, with a hammer, with a co‑offender, you held up a woman for her handbag. When she resisted you urged your co‑offender, who apparently is related to you in some way, to stab her. As a direct result of your actions an innocent person was terrorised.

   I accept that your actions were spur of the moment and came after news that your partner, who had allegedly seriously assaulted you, was about to be released on bail, although the effect of the Valium you had taken that day must have also impacted on your mind. By all accounts this was a serious robbery.

2. It appears that the offence occurred at around 7.25 pm on 17 January 2009.  The appellant was in a motor vehicle with a person to whom she referred as her step‑daughter.  This person was a co‑offender.  Both the appellant and the co‑offender were passengers in the vehicle, which was travelling in a westerly direction along Chesterfield Road, Mirrabooka. 

3. The appellant observed the victim of the aggravated armed robbery walking through a carpark.  The appellant directed the driver to stop and he did so.  She then left the vehicle and approached the victim.  The appellant had a hammer raised in a threatening manner.  She demanded that the victim hand over her purse.  The victim refused and the appellant grappled with her in an attempt to remove the handbag.  The appellant then called for her co‑offender to stab the victim.  The co‑offender left the vehicle carrying a knife.  She approached the victim.  Meanwhile, the appellant swung the hammer towards the victim, but the victim avoided the blow.  The co‑offender then told the victim to hand over her purse to prevent herself getting hurt.  The victim did so because she was in fear for her life.  She handed over $140 and the offenders then walked back to the vehicle.  The appellant removed the rear registration plate from the vehicle and both offenders left the scene in the vehicle.  The appellant and her co‑offender used the money which had been taken from the victim to purchase cannabis, cigarettes and alcohol. 

4. The appellant was arrested on 5 February 2009 and taken to the Mirrabooka police station.  There, she made partial admissions.

Sentencing

1. After referring to the facts of the case, the sentencing judge turned to matters personal to the appellant.  He said that she was 23 years of age and had experienced a difficult life, occasioned by the death of her partner and other matters.  He described her life as having been 'more turbulent than most and marred by, amongst other things, misuse of drugs and other issues'.

2. The sentencing judge thought that the appellant might be showing some signs of maturity and might be beginning to realise the significant difficulties she had, and that these difficult needed to be dealt with through long‑term counselling. His Honour thought that the s 32 offences, which included stealing food, to be indicative of a 'disorganised and chaotic lifestyle'.

3. The sentencing judge said that the usual penalty for armed robbery in company, especially when armed as the appellant was, is a term of immediate imprisonment, and that it is unusual for anything else to be imposed.  His Honour said that he had adjourned the case to consider carefully whether there was any other course open, but, in the end, his Honour thought that the principles of deterrence and the need for protection of the community required a sentence of immediate imprisonment.  A sentence of 3  years' imprisonment was, thus, imposed.

Submissions of appellant

1. The appellant's submissions rely primarily upon comparable cases.  It is accepted that Miles v The Queen (1997) 17 WAR 518 sets the relevant range of sentences for the offence of armed robbery to be 6 to 9 years' imprisonment (prior to the application of the transitional provisions), but it is submitted that the circumstances of each case can cause the offending to be viewed as either above or below this range. So much is quite clear. Further, the appropriate range for the purposes of this case is 4 ‑ 6 years, and not 6 ‑ 9 years: The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129.

2. The primary submission made on behalf of the appellant is that the criminality of the appellant was limited to a 'spur of the moment' offence and, when compared to other cases, the sentence of 3 years' immediate imprisonment was manifestly excessive.  It is accepted, however, that the appellant was in company and encouraged her co‑offender to stab the victim.  It is also accepted that the appellant herself was armed with a weapon. 

3. The cases which the appellant contends to be comparable begin with Abbott v The State of Western Australia [2007] WASCA 105. In that case, the appellant pleaded guilty to one count of armed robbery for which she was sentenced to a term of immediate imprisonment of 3 years 5 months. That sentence was reduced by the Court of Appeal (Steytler P, McLure and Miller JJA) to one of 2 years' imprisonment.

4. The case involved an armed robbery on a pharmacy.  The appellant was addicted to morphine.  She normally resided in Albany, but was in Perth after attempting to detoxify.  She went to a pharmacy, explained her situation to the pharmacist on duty and requested some tablets.  The tablets were a prescription drug which contained morphine.  The pharmacist would not give them to the appellant without a prescription and told her to go to a nearby medical centre.  The appellant left the pharmacy, withdrew some blood with a syringe and then returned to the pharmacy.  There, she walked around the counter, held the syringe in her hand (by her side) and said, 'I'm sorry I have to do this but I need morphine'.  The pharmacist went to the back room, where she opened a safe and took out some morphine, which she put on the counter.  The appellant took the morphine and left the store.

5. The appellant was 24 years of age at the time of the offence and had a 7‑year‑old child.  She had been a drug‑user from an early age and had been the victim of emotional, physical and sexual abuse as a child.  Despite these disadvantages, she had held a number of responsible positions of employment.  The sentencing judge considered that the offence had occurred on the spur of the moment and that the appellant was very remorseful.  The offence had minimal effect upon the complainant. 

6. McLure JA, at [20], said that notwithstanding the use of a syringe the circumstances of the appellant's offending were low on the scale of seriousness of crimes of this type.  The appellant was softly‑spoken and apologetic, and she kept the syringe in a passive and non‑aggressive position.  There were numerous mitigating circumstances, including the fast‑track plea of guilty, co‑operation with the police, true remorse, youth and lack of any prior record of offending.

7. In my opinion, the case of Abbott is not comparable with the present case.  There were very special circumstances which led to the Court of Appeal reducing the term of imprisonment from 3 years 5 months to 2 years.  One of the things that marks out the present case as different from that of Abbott is the aggressive use of the weapon by the appellant and the role of the co‑offender at the instigation of the appellant. 

8. The second case relied upon by the appellant is Slater v The Queen [2000] WASCA 365. This was a decision of the Court of Criminal Appeal (Wallwork, Murray and Miller JJ) in which leave to appeal was refused. A sentence of 6 years' imprisonment (4 years after application of the transitional provisions) was imposed upon an offender who had been convicted after trial of one count of armed robbery in company. The offence occurred when the appellant was in Perth from Manjimup, where he had been living with his grandparents. He went to the home of a cousin in Mirrabooka, where the appellant and others did a considerable amount of drinking. A number of the group, including the appellant, went to Northbridge that evening. There, they met up with other young people and ended up in front of the Perth railway station some time after midnight. While some of the group were attempting to persuade a taxi driver to take them in his vehicle, the appellant noticed a 20‑year‑old man, shorter and more lightly built than himself, on the other side of the street. This man was also looking for a taxi. The appellant went to him and asked for a cigarette. When the victim reached into his jacket or shirt, the appellant took him by the throat and told him to shut up and give him all his money. The appellant said that he had a knife and he hit the victim across the face with his left hand. The appellant's cousin and another member of the group followed from across the street, and the three men pushed or pulled the victim down some stairs into an underground carpark. From his front pockets, a $5 note was taken, together with a cigarette lighter and a tobacco pouch. From the victim's back pocket, $30 in notes was taken from a wallet. The wallet was then discarded on the ground.

9. Murray J (with whom Wallwork and Miller JJ agreed) said that, in these circumstances, the seriousness of the offence was manifest.  The appellant was the leader of those who had committed the offence.  It was carried out in a public place, from where the victim was taken into an underground carpark which was a more private location.  Although it was not charged as a circumstance of aggravation, personal violence was used.  The experience must have been terrifying to the victim.  Murray J said:

   Given the violent manner in which the robbery was carried out, it seems to me to be of little moment that the property stolen was of small value and I do not consider there is much mitigation to be found in the fact that the offence was apparently committed on the spur of the moment.  [6]

10. The appellant's personal circumstances were detailed.  He was 22 years of age at the time of sentencing, had an early childhood of deprivation and instability, but appears to have settled his life upon going to live with his maternal grandparents.  He had a significant history of convictions, constituted mainly by offences of dishonesty and violence and could not be said to be a person of good character. 

11. Murray J said, at [12], that the personal circumstances of the appellant had little capacity to mitigate punishment.  Offences such as that committed by the appellant were described as:

    [D]istressingly prevalent in our community.  They are serious offences and members of the public need such protection as the courts may provide by visiting upon offenders appropriately severe punishment for purposes of both particular and general deterrence.  [12]

12. The appellant in the present case suggests that because Mr Slater went to trial his sentence of 6 years' imprisonment would, in the event of an early plea of guilty, have been more like one of 4 years' imprisonment.  It is then said that the sentence of 3 years' imprisonment imposed upon the appellant in this case is towards the top of the range for the level of offending in which she was involved, and does not reflect a 'spur of the moment' offence such as she committed. 

13. Counsel for the appellant did not appreciate that Slater was a pre‑transitional case.  The sentence of 6 years' imprisonment imposed upon the appellant would be one of 4 years' imprisonment under the present regime:  see The State of Western Australia v BLM per Wheeler and Pullin JJA, at [43].

14. I am not convinced that the case of Slater is sufficiently comparable to the present case.  Here, the appellant was in possession of a dangerous weapon and her co‑offender was also in possession of a weapon.  Those weapons were used against the victim.  The hammer was swung at the victim and the knife was used in a threatening manner.  This is what caused the victim to hand over her money.  In Slater, there was a threat of using a knife, but no knife was used against the victim.  Assuming the post‑transitional sentence imposed upon Mr Slater to be one of 4 years' imprisonment, and assuming that he had pleaded guilty rather than gone to trial, the sentence would arguably still have been one of approximately 3 years' imprisonment.  That is the sentence which was imposed upon the appellant in this case, and, arguably, the appellant's offence was more serious than that committed by Mr Slater. 

15. The third case to which reference is made is Sein‑Thet v The Queen [1999] WASCA 186. This case was referred to in the recent decision of the Court of Appeal in Mejtska v The State of Western Australia [2009] WASCA 80, at [29] ‑ [35], and I repeat what is there set out in my judgment:

    Sein-Thet was a case in which the appellant had pleaded guilty to five charges of armed robbery.  She had pleaded guilty on the fast‑track and had been remanded to the Supreme Court for sentence.  All offences occurred on the same day (14 August 1998) and between the hours of approximately 3.00 pm and 4.30 pm.  The first offence occurred at a bus stop in Ballajura where the appellant approached a 15-year-old female and began talking to her.  She produced a knife, pressed it against the left side of the girl's abdomen and demanded she hand over her money, jewellery, clothing and her bag.  She did all of this and the appellant walked away with the property.  It was valued at approximately $460. 

    The second and third charges arose out of an incident that occurred at a shopping centre in Ballajura.  The offences occurred about 15 minutes after the first offence.  The appellant picked up a backpack belonging to a 13-year-old boy.  When the boy confronted her, she produced a knife, grabbed the boy's right arm and pushed it behind his back.  She pressed the knife to his right side.  A second boy, aged 12 years, then approached and the appellant demanded his bag.  She was given it.  She made both boys sit on the ground while she went through their bags and removed various items.  She also asked for their wallets and a watch.  These were handed over and she left with property to the value of approximately $140.

    The fourth offence occurred at about 3.50 pm on the same day.  The appellant approached a 16-year-old female walking in a street in Ballajura.  She grabbed her from behind by the hair, turned her around, threatened her with the knife and demanded money.  She had only $2 which she gave to the appellant.  She refused to give jewellery.  She pushed the knife away and ran off. 

    The fifth offence occurred at about 4.20 pm, on the same day at a bus stop in a street in Ballajura.  The appellant approached a 19-year-old female and started talking to her, produced her knife and demanded money from her.  When the female said she had no money the appellant pressed the knife hard against the girl's right thigh and demanded her jewellery.  She handed over jewellery to the value of $100. 

    At the time of sentencing, the appellant was 18 years of age.  She had no prior convictions.  She was a drug user and had been using heroin since the age of 14 years.  On the day in question, she had taken about 50 valium tablets.  She was taking part in the Naltrexone programme and was thought to be under good control at the time of the commission of her offences.  A number of character references were tendered to the court. 

    The trial judge took account of the appellant's age, her lack of prior convictions, her continuing attempts at rehabilitation, her remorse and her pleas of guilty.  Sentences of 3 years, 2 years, 2 years, 2 years, and 3 years were respectively imposed on each count.  They were all ordered to be served concurrently, with the result that the aggregate term of imprisonment was 3 years. 

    In the Court of Appeal, it was argued that the terms of imprisonment should have been suspended having regard to the appellant's good antecedents and the fact that her rehabilitation would be better met within the community. The Court of Appeal refused to interfere with the sentence, taking the view that it was a 'very moderate total sentence in all the circumstances' [13].

16. In Mejtska, the appellant was sentenced to 5 years' immediate imprisonment for two offences of armed robbery.  She was 21 years of age and had a significant substance abuse problem.  She had sought to rehabilitate herself without success.  In comparing her case with that of Sein‑Thet, I said, at [36], that there were a number of points of distinction. One of those was that Ms Sein‑Thet was only 18 years of age at the time she committed the offences. She had no prior convictions. She was a very young drug user who was taking part in the Naltrexone programme and she was thought to be under good control at the time of the commission of her offences.

1. When compared with the present case, the case of Sein‑Thet seems to me to be clearly distinguishable.  Ms Sein‑Thet committed a number of offences with the use of a knife, but they were nowhere near as violent as the offence committed by the appellant and her co‑offender in the present case.  The knife was held against the side of some of the victims, but it seems clear that Ms Sein‑Thet had no real intention of using the knife.  One victim actually pushed the knife away.  The sentence of 3 years' immediate imprisonment imposed upon Ms Sein‑Thet has to be seen in the context of her extreme youth and good prior record.

2. The next case upon which counsel for the appellant relies is R v Valentine [2003] WASCA 7. This was a Crown appeal against sentence. The respondent had pleaded guilty at the first opportunity to one count of aggravated robbery and one count of assault occasioning bodily harm. The convictions triggered a breach of two intensive supervision orders.

3. The robbery occurred in a Kmart store in Armadale, when the respondent selected a cordless drill which was in a box.  He removed the drill from the box and placed it down his long pants.  He also selected a number of DVDs and placed these down his pants.  He left the store without declaring the items for purchase.  He was approached outside the store by a store loss prevention officer.  The respondent became aggressive and sprayed the officer at least twice in the face with capsicum spray, causing her bodily harm.  He also sprayed another officer who came to her assistance.  He was eventually overpowered. 

4. The respondent was sentenced to 2 1/2 years' imprisonment for the offence of aggravated armed robbery.  Other sentences were imposed in relation to the assault occasioning bodily harm and the breach of supervision orders. 

5. When dealing with the offence of armed robbery, McKechnie J, at [31], said that it has been consistently held that the range of sentences commonly imposed for a single count of armed robbery is between 6 and 9 years.  The case of Miles was cited. It was also accepted, at [32], that a discount of 25% ‑ 35% was appropriate for a fast‑track plea of guilty. McKechnie J (with whom Templeman J generally agreed and with whom Rolfe AJ agreed) considered that the sentence imposed for the armed robbery was manifestly inadequate. The offence was very serious and it could be said that armed robberies were all too common and required strong sanction ([34]). The sentence imposed manifestly failed to reflect the seriousness of the offence ([35]). The sentence for armed robbery was increased to one of 5 years' imprisonment.

6. Counsel for the appellant in the present case contends that in Valentine there was an aggravating feature being the actual use of force; namely, the spraying of the capsicum spray which caused bodily harm to the loss prevention officer.  It is said that the offending in Valentine was planned and that the offender clearly carried the spray with an intention to use it if cornered. 

7. It is not clear exactly why Valentine is said to be a comparable case.  It bears very little comparison to the present case.  It was a 'pre‑transitional' case, so that the 5 years imposed for the offence of armed robbery would be one of 3 years 4 months' imprisonment.  I am unable to glean how this sentence makes the sentence imposed upon the present appellant manifestly excessive.

8. The final case referred to by the appellant is Pickett v The State of Western Australia [2004] WASCA 291. This was a decision of the Court of Criminal Appeal (Miller, McKechnie and McLure JJ). The appellant had pleaded guilty to one count of armed robbery and one count of stealing a motor vehicle and driving recklessly. He was also convicted on his plea of guilty of a number of offences on a s 32 notice. A sentence of 4 years' imprisonment was imposed in relation to the offence of armed robbery. No sentence was imposed in relation to the offence of stealing a motor vehicle and driving recklessly, and fines were imposed in relation to the s 32 notice.

9. The appeal concerned the sentencing judge's refusal to order eligibility for parole.  The sentence for armed robbery was not under review. 

10. In post‑transitional terms, the sentence of 4 years' imprisonment represented one of 2 years 8 months' imprisonment.  As there are insufficient facts relating to the offence of armed robbery referred to in the judgment and as the sentence was not under review, I find it difficult to see how the case can be said to be comparable to that of the present appellant.

Conclusion

1. It seems to me that a sentence of 3 years' imprisonment to be served immediately was inevitable in this case.  The sentence was below the range fixed for offences of armed robbery in Miles v The Queen, and it reflected the appellant's plea of guilty and such other factors in mitigation as were put to the court.  In my opinion, there is no substance in the contention that the sentence was manifestly excessive and leave to appeal on that ground should be refused.  There is no reasonable prospect of the ground succeeding. 

2. The second ground of appeal relates to the failure of the sentencing judge to make any specific reference to the fact that he had taken into account the appellant's plea of guilty. 

3. Clearly, the sentencing judge must have been aware of the fact that the appellant pleaded guilty.  He took the plea.  He should, however, have stated in open court the fact that the sentence imposed upon the appellant was reduced from what it would otherwise have been by reason of the plea:  Sentencing Act s 8(1), s 8(2) and s 8(4).

4. The failure to comply with s 8(4) of the Sentencing Act by omitting to state in open court that a reduction has been made for a plea of guilty is not an appellable error.  It is a failure to implement a public policy designed to help the person being sentenced (and those with an interest in the proceedings) to understand how the result has been arrived at:  Royer v The State of Western Australia [2009] WASCA 139 per Owen JA, at [59]. Non‑compliance with s 8(4) does not invalidate the sentence: Moulds v The Queen (Unreported, WASCA, Library No 980147, 4 March 1998) per Malcolm CJ, at 6.

5. In the present case, it seems apparent to me that the sentencing judge must have made an allowance for the plea of guilty, but that he failed to mention it in accordance with s 8(4) of the Sentencing Act.  In my opinion, the sentence imposed upon the appellant was not manifestly excessive for the reasons I have previously stated.  I therefore consider that there is no substance in the second ground of appeal.  The ground of appeal has no prospects of success and leave to appeal should be refused.