Duff v The State of Western Australia - [2023] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DUFF -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 124
CORAM:   BUSS P
HALL JA

HEARD:   11 AUGUST 2023
DELIVERED          :   25 AUGUST 2023
FILE NO/S:   CACR 86 of 2023
BETWEEN:   JEREMY WILLIAM DUFF
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 1456 of 2021

Catchwords:

Criminal law - Appeal against sentence - Robbery of jewellery store - Whether sentence of 3 years 2 months' immediate imprisonment manifestly excessive

Legislation:

Criminal Code (WA), s 392(e)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

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

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

Arnold v The State of Western Australia [2019] WASCA 27
Kabambi v The State of Western Australia [2019] WASCA 44
Mogridge v The State of Western Australia [2016] WASCA 205
Schischka v The State of Western Australia [2015] WASCA 15
The State of Western Australia v PJW [2015] WASCA 113

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted on his plea of guilty of one count of robbery, contrary to s 392(e) of the Criminal Code (WA). He was sentenced to 3 years 2 months' immediate imprisonment. He seeks leave to appeal against that sentence on the ground that it was manifestly excessive.
For the reasons that follow, we are not satisfied that this ground has a reasonable prospect of succeeding. Leave to appeal must be refused and the appeal dismissed.

The admitted facts

The facts of the offence are as follows.
At 2.41 pm on Tuesday, 20 October 2020 the appellant attended a jewellery store in the Midland Gate shopping centre. He spoke to a store employee and asked to see a small gold chain which was valued at about $1,300. After viewing the chain, he asked to see a yellow gold, 60 cm, curved chain, valued at $5,299. The store employee asked to see the appellant's identification before showing him the more expensive chain. The appellant refused to supply his identification. The store employee retrieved the more expensive chain from a secure display cabinet for the appellant to view but held onto the chain whilst the appellant viewed it and tried it on.[1]
[1] ts 29.
As the store employee went to put the more expensive chain back in the cabinet, the appellant reached forward and snatched it from the employee's hands. The appellant ran towards the exit. He ran towards the store manager who had been observing the interaction with the employee and had positioned himself near the exit approximately 2 m ‑ 3 m away. The appellant ran directly at the store manager and forcibly struck him with outstretched arms. This caused the manager to be knocked off his feet and to fall heavily on his buttocks onto the floor. As a result, the manager experienced pain.[2]
[2] ts 29.
The appellant ran from the shopping centre and out of sight. The incident was captured on CCTV footage. The footage was available to the sentencing judge and has also been viewed by us. It shows the appellant running directly at the store manager and, without pause or hesitation, pushing the store manager forcibly over when the store manager attempts to block his way.
On Thursday, 10 December 2020 the appellant was arrested at his home and conveyed to the Midland police station. He declined to participate in an interview. The gold chain was not recovered.[3]
[3] ts 29, 43.
The appellant entered a plea of guilty on what would have been the first day of his trial. By that time, the State's trial preparation was complete and its witnesses had been proofed. Although the jewellery store witnesses were unable to identify the appellant, the quality of the CCTV footage, which showed the appellant's face and distinctive arm tattoos, meant that the prosecution case was strong. Nonetheless, the State conceded that the plea of guilty had some limited value.[4]
[4] ts 39 - 40.

The appellant's personal circumstances

The appellant was 47 years old at the time of sentencing. He had an unhappy childhood and was exposed to domestic violence and alcohol abuse as a young child. He did not enjoy school and left as soon as he could.[5]
[5] ts 44.
The appellant later obtained some qualifications, including as a forklift driver. He has done some work as a forklift driver.[6]
[6] ts 44.
The appellant has four adult children and shares the care of three stepchildren with his partner. Although he is in a long‑term relationship, he and his partner have lived separately because they prefer separate houses due to the number of children that they have together. His partner remains supportive of him.[7]
[7] ts 44.
The appellant has experienced long periods of homelessness. He did have a home at the time of the offence, though he had struggled with spending long periods of time at home during COVID‑19 lockdowns. He was in financial difficulty and had borrowed money from various people.[8]
[8] ts 44.
The appellant has a lengthy criminal record that reveals a pattern of persistent offending. His offending commenced as a juvenile between 1990 and 1993 when he was aged between 14 and 17. He was first convicted as an adult in 1993, committing offences that included burglary, resisting arrest, assaulting a public officer and stealing, for which he was placed on 12 months' probation. In January 1994 he was convicted of stealing a motor vehicle and sentenced to 15 months' imprisonment. In August 1994 he was convicted of burglary and fined $1,200. In July 1995 he was convicted of two counts of stealing a motor vehicle and sentenced to 12 months' imprisonment. In 1996 he was convicted of aggravated home burglary and other offences and placed on a 12‑month community‑based order. In 1998 he was convicted of dangerous driving and stealing a motor vehicle for which he was sentenced to 8 months' imprisonment. Later that year he received a further 4 months' imprisonment for an offence of escaping legal custody. In June 2001 he was placed on a 12‑month community‑based order after being convicted of offences of making threats. In September 2002 he was convicted of aggravated home burglary, assault and breach of bail. These offences also breached a previous suspended imprisonment order. For those offences he was placed on a 2‑year intensive supervision order. He later breached that order in 2004, when he was convicted of offences including stealing, assault and burglary. He was placed on a further 2‑year intensive supervision order. That order was also breached when, in 2005, he was convicted of burglary and stealing a motor vehicle. He was sentenced to a suspended term of imprisonment of 18 months. In 2007 he was again convicted of offences including stealing a motor vehicle and aggravated home burglary. Those convictions breached another suspended imprisonment order. He was sentenced to a total of 4 years 2 months' imprisonment. In 2012 he was again convicted of aggravated burglary and sentenced to 12 months' imprisonment. In July 2015 he was convicted of home burglary and sentenced to 12 months' imprisonment. From 2017 ‑ 2019 he was convicted of various offences, including drug offences, stealing, trespass, breaches of bail and aggravated burglary, and placed on orders or fined. On 4 April 2019 he was convicted of aggravated burglary and sentenced to 7 months' imprisonment, suspended for 12 months.[9] This summary is not comprehensive, it includes only the more serious offences committed by the appellant.
[9] ts 45 - 46.
The appellant was interviewed by a psychiatrist for the purposes of sentencing. He told the psychiatrist that he blamed his mental health for the offending and said that at the time of the offence he was in a low mood, fed up with life and was experiencing depression and hearing voices. He told the psychiatrist that he was stressed about money and admitted that he had planned to steal the gold chain.[10]
[10] ts 43.
The psychiatrist described the appellant as not showing signs of any formal thought disorder or mood disturbance. The appellant appeared to have normal cognition. The psychiatrist assessed the appellant as being evasive in answering questions and in providing information. He concluded that the appellant has an antisocial personality disorder. That disorder is not amenable to treatment. Although the appellant reported psychotic features, the psychiatrist doubted these claims and did not find that there was a causal link between any mental health condition and the offending. The psychiatrist also concluded that the appellant was at high risk of reoffending, particularly as he has limited supports in the community.[11]
[11] ts 46 - 48.

Sentencing remarks

The learned sentencing judge noted that when interviewed by the psychiatrist, the appellant claimed that he did not make strong physical contact with the store manager. His Honour found that, on the basis of the CCTV footage, he was satisfied that the appellant did make forcible contact with the store manager.[12]
[12] ts 43.
As to the seriousness of the offence the sentencing judge referred to the following matters:[13]
1.The appellant entered the jewellery store with the intention of stealing an item of jewellery.
2.The chain that was stolen has not been recovered and was valued at in excess of $5,000.
3.The appellant used violence to commit the robbery by forcibly pushing the store manager as he tried to block the appellant's exit, causing the manager to fall to the ground. The appellant struck the manager with both hands to the chest.
4.It was likely that both the store manager and the store employee were traumatised by the incident and likely to feel less safe in the future when undertaking their employment duties.
5.People working in jewellery stores are vulnerable to this type of offending. They are entitled to undertake their work without the fear of being subjected to physical violence. There is a risk of serious physical injury being caused where violence is used.
[13] ts 43.
The sentencing judge found that, other than the appellant's plea of guilty, there were few mitigating circumstances. Furthermore, the guilty plea was entered at a very late stage. His Honour accepted that, notwithstanding the lateness, the plea had assisted the State to some extent, though he was doubtful that it was the product of any genuine remorse on the part of the appellant. His Honour allowed a discount of 7.5% for the plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[14]
[14] ts 43, 45, 50.
As regards the appellant's criminal record, the sentencing judge acknowledged that the appellant's prior record was not an aggravating feature and that he was not to be further punished for those offences. However, the fact that the appellant had been sentenced to terms of imprisonment and increasingly harsher penalties, which did not deter him from further offending, underlined the need for personal deterrence and the need to protect the community from the appellant's high risk of reoffending.[15]
[15] ts 46.
The sentencing judge accepted that the appellant had suffered from significant disadvantage in his life, including the lack of any proper family structure, support or guidance from a young age. This resulted in the appellant being exposed to negative influences and associating with others who engaged in antisocial and criminal behaviour. His Honour accepted that the appellant's deprived background may, to some extent, explain his offending and may have compromised his capacity to mature and learn from experience. However, the appellant's inability to control or cease his offending behaviour increased the importance of protecting the community from the high risk of reoffending. His Honour said that given the importance of personal and general deterrence, less weight could be given to mitigating factors personal to the appellant.[16]
[16] ts 48 - 49.
The sentencing judge concluded that the only appropriate sentence was one of immediate imprisonment. He imposed a sentence of 3 years 2 months' immediate imprisonment, which was backdated to 3 April 2023 to take into account time that the appellant had already spent in custody. An order was made that the appellant be eligible for parole.[17]
[17] ts 49 - 50.

The merits of the appeal

The appellant appeals his sentence on one ground, alleging implied error in that the sentence imposed was manifestly excessive in its length.
An appeal on the ground of manifest excess is an allegation of implied error. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate are well established. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law, the standard of sentencing customarily imposed with respect to offences of that type, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the offender's personal circumstances.[18]
[18] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not of itself establish that the sentencing discretion has or has not miscarried. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. The sentences imposed in comparable cases do not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellate court dismisses an appeal against sentence or resentences an offender, that decision does not of itself fix the upper or lower limit of the range. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalties and all relevant sentencing factors.[19]
[19] The State of Western Australia v PJW [2015] WASCA 113 [36] - [39].
The maximum penalty for the offence of robbery, absent circumstances of aggravation, is 14 years' imprisonment: s 392(e) of the Criminal Code.
The offence in this case was a serious example of robbery for the reasons referred to by the sentencing judge. The offence was planned in that the appellant went to the jewellery store with the intention of stealing an item of jewellery. He may not have planned to use violence, but the risk that violence would be required to achieve his objective or to overcome resistance was obvious. Although the store manager received no serious injury, that was fortuitous. The value of the item stolen was significant and it was not recovered. Jewellery stores are particularly vulnerable to this type of offence and those who work in them have a right to expect that they will not be the victims of robberies.
The appellant's personal circumstances provided very little by way of mitigation. Although he had experienced a deprived childhood, he showed little insight into his behaviour and presented as a high risk of reoffending. His persistent record of offending, including offences of dishonesty and violence, whilst not an aggravating factor, heightened the need for personal deterrence and community protection. There was no reason to think that any mental illness had contributed to the offending. The appellant pleaded guilty at a very late stage and the sentencing judge did not accept that he was truly remorseful.
In written submissions the appellant relied on the following cases as being comparable: Schischka v The State of Western Australia;[20] Mogridge v The State of Western Australia[21] and Arnold v The State of Western Australia.[22] There are relatively few cases dealing with a single count of robbery that is not accompanied by circumstances of aggravation. The circumstances in which such an offence can be committed can vary widely. There is no fixed range for sentences for this offence. Referring to a small sample of cases, each of which turned on its own particular facts, provides little assistance. In any event, the cases referred to do not, on examination, support the contention that the sentence in this case was manifestly excessive.
[20] Schischka v The State of Western Australia [2015] WASCA 15.
[21] Mogridge v The State of Western Australia [2016] WASCA 205.
[22] Arnold v The State of Western Australia [2019] WASCA 27.
In Schischka the offender committed two offences of aggravated robbery. The offences involved the appellant and an unknown co‑offender attacking the victim, who was seated in his vehicle, and demanding his wallet. The appellant and the co‑offender returned a short time later, attacked the victim again and stole his mobile telephone. The offender in that case was aged 24 at the time of the offending and found to be of previous good character. His offending was triggered by alcohol and stress as a result of an argument with his girlfriend. He pleaded guilty at an early opportunity and received a 25% discount. He was remorseful, had empathy for the victim and had made efforts to rehabilitate himself. He received a total effective sentence of 3 years' immediate imprisonment, consisting of 2 years' imprisonment for the first offence and 1 year imprisonment for the second, cumulative. The offender's appeal against sentence was dismissed.
Schischka is not a useful comparator. It involved two offences of robbery aggravated by being committed whilst in company. A higher maximum penalty applied. The violence used in Schischka was more serious and resulted in injuries to the victim. On the other hand, the offender in Schischka had much more favourable personal circumstances, was remorseful, comparatively young with good antecedents, and had pleaded guilty at the earliest opportunity.
In Mogridge, the offender committed an offence of robbery. The offender entered a café and grabbed an iPad and two bags belonging to the owner. In the course of a struggle, the owner was punched by the offender. The offence breached a community‑based order and a suspended imprisonment order for prior offences. The offender was sentenced to 3 years' immediate imprisonment for the robbery offence. The offender in that case pleaded guilty, although the discount was not quantified (an error that was held to be immaterial because it was not established that any other sentence should have been imposed). The offender was not a youthful offender and had a very long and serious criminal history. Leave to appeal against the sentence for the robbery offence on the ground that it was manifestly excessive was refused.
Mogridge does not assist the appellant. The sentence imposed in that case was comparable to that imposed on the appellant. Whilst there were some features of the two cases that were similar there are also differences, some of which were favourable to the appellant and some not.
Arnold is not a case that assists the appellant because in that case the single ground related to an alleged infringement of the parity principle. Leave to appeal on that ground was refused. There was no consideration of whether the sentences imposed on the offenders in that case were otherwise appropriate.
Taking into account all relevant sentencing considerations, including the maximum penalty, the seriousness of the offending, factors personal to the appellant, and the limited guidance afforded by comparable cases, it is not reasonably arguable that the sentence of 3 years 2 months' immediate imprisonment imposed on the appellant was unreasonable or plainly unjust. The claim that the sentence is manifestly excessive is without merit. For these reasons leave to appeal should be refused and the appeal dismissed.

Orders

The orders we would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
25 AUGUST 2023