Eades v The Queen
[2001] WASCA 205
•20 JULY 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: EADES -v- THE QUEEN [2001] WASCA 205
CORAM: WALLWORK J
MILLER J
PIDGEON AUJ
HEARD: 7 JUNE 2001
DELIVERED : 20 JULY 2001
FILE NO/S: CCA 37 of 2001
BETWEEN: IAN DOUGLAS EADES
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Attempted armed robbery - Armed robbery in company - Three offences committed in succession against passengers at a railway and bus station - Whether aggregate sentence excessive - Totality principle
Legislation:
Nil
Result:
Total effective sentence of 10 years confirmed
Representation:
Counsel:
Applicant: Mr M J Aulfrey
Respondent: Mr R E Cock QC
Solicitors:
Applicant: Ian Hope
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
Case(s) also cited:
Lowndes v R (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Puls v The Queen [2000] WASCA 11
R v Peterson [1984] WAR 329
R v Ward [1999] WASCA 157
Ruane v R [1979] 1 A Crim R 284
Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996
Trescuri v R [1999] WASCA 172
WALLWORK J: I have had the benefit of reading in draft the reasons for judgment of Pidgeon AUJ. I agree with his Honour's reasons and conclusions and have nothing further to add.
MILLER J: I have had the benefit of reading in draft the reasons to be published by Pidgeon AUJ. I am in agreement with those reasons and have nothing further to add.
PIDGEON AUJ : The applicant is seeking leave to appeal against a total effective sentence of 10 years' imprisonment imposed on him by Roberts‑Smith J, following his plea of guilty to a charge of attempted armed robbery and two charges of armed robbery whilst being in company.
The applicant was born on 15 November 1980. He has a very long record in the Children's Court, commencing in July 1993. It includes a number of counts of burglary and of armed robbery. He has served periods of detention. On 19 May 1998, when he was approximately 17-1/2 years of age, he was sentenced to a period of 2 years detention in respect of a series of offences including burglary and armed robbery.
The offences with which his Honour was dealing occurred on 4 July 2000, which was not long after his release from detention on the earlier armed robbery offence. The offences occurred shortly after 7.00 am at or near the Glendalough Railway Station and they occurred against persons walking to the station to catch either a train or a bus. The applicant was with a 19-year-old woman with whom he had a relationship. There is adjacent to the railway station a carpark and a bus station as the railway station is a transfer point for passengers. The first complainant, an 18 year old woman, was on her way to the station at about 7.00 am, intending to catch a train. She was crossing the carpark towards the main entrance to the station. She was approached by the applicant, who asked her if she had any money for a bus fare. The complainant told the applicant that she did not have any money and she walked into the railway station. About a minute later, the applicant approached her again and stood in front of her and asked her the time. She told him the time. The applicant then said to her, "Can I have your purse?" She said, "No". The applicant pulled up his T‑shirt so the complainant could see the handle and the hammer of what she considered was a gun which she described as a metallic plastic colour, dark grey and silver. It was in fact a replica weapon. The complainant did not give the applicant her purse and walked away. She was distressed and crying. She told some men who were sitting nearby
what had occurred. The applicant in the meantime started walking towards the stairs, but then went back to the complainant and stood a metre in front of her. More passengers started to enter the station and the applicant then walked away and down the stairs. The complainant then boarded a train. These facts constituted the first count which was a count of attempted armed robbery. The woman accompanying the applicant was not charged in respect of this particular offence.
The applicant and the woman remained in the area. About 15 minutes later they approached a woman, 18 years old who was going to the station to catch a bus. This complainant saw two persons standing near the entrance to the bus bay. They were facing her. The applicant approached her, excused himself and started to ask a question. He then said, "Give me your purse. I want your purse, your phone, your money." She saw that his hand was under his jacket and, when he pulled his jacket up, he pointed to the replica gun. He said to her, "I'll shoot you, I'll shoot you". The woman accompanying the applicant and who was standing next to him, said, "I want your bag. Give me your bag." The complainant told them that the bag contained nothing. She repeated that and the applicant said, "I'll shoot you". The complainant then took her bag off her shoulder and handed it to the woman. The bag contained a pair of jeans, a uniform, some house keys, a wallet, $4 in coins, a key card and some personal papers. The woman put the bag on her shoulder and walked away from the bus bay. The complainant walked to another area of the bus station where she saw a police car and spoke to the officers. These facts constituted the second count with which both persons were charged.
It can now be inferred that following this offence the offenders went to the woman’s home in Pollard Street as the stolen bag was found there shortly after the third offence was committed. This street is near but not adjoining the railway. The third offence was committed in Pollard Street at about 8.10 am. A 19-year-old overseas student was approaching the station to go to college. As he was walking along Pollard Street towards the station, he saw the two offenders and they both began to walk towards him. The applicant then asked this complainant whether he had $1 to catch a bus to enable him to get home. To this the complainant replied that he only had a few dollars to get himself to school. The applicant then drew out the replica pistol and pointed it at the complainant's chest. He was a metre away. The applicant said, "Give me all your money". The complainant removed his wallet and started to open it. The applicant said, "Give me the whole wallet or I'll shoot you. I just feel like shooting somebody today." The complainant still tried to remove the money from his wallet and the applicant said, "Give me all your cards". The complainant handed him $12 or $13 from the wallet. The woman offender said to the applicant, "That's enough. Leave him alone." However, the applicant said, "Do you have a mobile phone on you?" The complainant then handed over his mobile phone and lighter. The applicant wanted to know what was in the complainant's bag and demanded that it be opened. The complainant showed him the contents and the applicant took out a calculator. The woman was protesting about the applicant doing this and again said, "That's enough. Let's go." The woman then apologised to the complainant and the two offenders then walked off towards the railway station, leaving the complainant behind. A person living nearby approached the complainant and helped him ring the police.
By this time the Major Incident Group had mounted an intensive search. At about 8.30 am they found the offenders walking along Leeder Street which intersects Pollard Street. The applicant was searched and the police found the replica pistol and the mobile phone. The offenders were then arrested. The woman took the police to an address in Pollard Street, where she showed them the bag that had been stolen from the second complainant. The applicant was clearly affected by heroin. He tried to blame his co‑offender and denied possession of the handgun. He said that the woman offender was the one to hand him the mobile phone.
The applicant appeared in the Court of Petty Sessions and was committed for trial. There was a plea of not guilty, but the trial Judge was informed that there were some discussions on foot with the Director of Public Prosecutions about some aspects of the charges. The woman indicated she was ready to plead guilty. The applicant did not plead guilty on his next appearance on 9 January 2000, but did so on 30 January 2001. It was accordingly a plea, not at the earliest opportunity, but at a time before proceedings were put in hand for a trial date to be set. The woman did not have nearly as extensive a record as the applicant. There was a favourable pre‑sentence report and there was the factor of her endeavouring to stop the applicant to a degree. His Honour imposed on the woman a sentence of 4 years' imprisonment and suspended it for a period of 2 years. He also, in respect of one of her counts, made an intensive supervision order.
His Honour, in sentencing the applicant, indicated that he considered that the appropriate sentence for the attempted armed robbery sentence was one of 6 years, but reduced it to 4 years by reason of the plea of guilty. His Honour said that in respect of the second count, being robbery whilst pretending to be armed and in company, he considered a sentence of 8 years was appropriate, but he reduced it to 5-1/2 years by reason of the plea of guilty. In regard to the last offence of armed robbery and in company, his Honour considered that the sentence of 9 years would be appropriate, but he reduced it to 6 years by reason of the plea of guilty. His Honour then said:
"The question then is whether the sentences should be concurrent or cumulative. If I make them cumulative, it would be a total of 15 and a half years. That would be out of proportion to the overall criminality of your criminal conduct on that day. Given your age, it would also be a crushing sentence. I propose to make the sentence of 4 and 6 years cumulative, to make a total of 10 years' imprisonment, which I consider would be proportionate and appropriate to your overall conduct on that day, as reflected in those sentences.
You are certainly in need of some community supervision on release, although on present indications there is no great reason to think you will benefit from it, but two factors which have in the end led me to decide you should be eligible for your parole are your plea of guilty and your youth.”
The applicant is seeking leave to appeal on the following grounds, which are drawn with commendable conciseness:
"The learned Sentencing Judge erred in law in that he:-
1.Imposed a sentence that was manifestly excessive in all the circumstances, taking into account the age of the Applicant, the relatively early plea of guilty, and all other antecedents personal to the Applicant.
2.Imposed a sentence that failed to take into account the principle of totality thereby imposing a crushing sentence.
3.Imposed a sentence that was manifestly excessive in all the circumstances by ordering a cumulative sentence."
The grounds do not suggest, nor could it ever be argued, that there is a question of parity to consider.
The terms of imprisonment referred to by his Honour prior to his making any reduction are terms well within range for offences of armed robbery in regard to what has previously been said by this Court. Offences of this type against passengers or intending passengers on public transport are particularly serious and are becoming prevalent. Persons taking part in them must except condign punishment and except, in exceptional circumstances, long terms of imprisonment. The fact that the money may be needed for drugs cannot be accepted as a reason for reduction in these circumstances. The final offence was very serious, having regard to the fact that a realistic weapon was pointed at the chest of the complainant, accompanied by words that would indicate that the offender had an intention of firing the weapon. Apart from the plea, there was no mitigation. The youth of an offender is a fact that must be taken into account. The applicant was 19-1/2 years old at the time of offending. This aspect has been negated to an extent by the applicant's previous record. The pre‑sentence report before his Honour was not a favourable one. The discount actually allowed for the pleas of guilty was a generous one and would accommodate any discount that might be given by reason of the youth of the offender. I would see no merit in the first proposed ground.
The third ground claims that the effect of making the sentences cumulative has resulted in an excessive sentence. As I see it, the ground recognises the fact that these were entirely separate offences which in the absence of other considerations would call for cumulative sentences. There was however reference in argument to the one transaction rule. Each offence was an entirely separate transaction involving three different persons. The second and third offences took place after the previous offence was complete. The only factor in the present case which would call for other than a cumulative sentence is the totality principle and this is covered by the second ground to which I shall now turn.
The second ground claims that his Honour failed to take into account the totality principle. It is clear from his Honour’s sentencing remarks which I have set out that his Honour was conscious of two things - firstly, of the need of totality and, secondly, of the unfortunate background of the applicant. The applicant was born in a prison by reason of his mother serving a term and spent much of his youth in institutions. It was submitted to his Honour that there was a risk of his being institutionalised. The applicant has not responded to lenient treatment in the past and there were a number of factors before his Honour that would point against parole. His Honour, however, on balance, ordered that there be parole. His Honour weighed up carefully what would be a crushing sentence and what would be a sentence out of proportion to the overall criminality of the applicant's conduct on that day. His Honour was referring to the principles referred to by this Court in Jarvis v The Queen (1993) 20 WAR 201. His Honour had a difficult task to perform, but I am not in any way persuaded that his discretion miscarried. I would refuse leave.
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