Eldridge v The Queen
[2000] WASCA 41
•1 MARCH 2000
ELDRIDGE -v- THE QUEEN [2000] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 41 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:218/1999 | 2 FEBRUARY 2000 | |
| Coram: | KENNEDY J STEYTLER J WHEELER J | 1/03/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| PDF Version |
| Parties: | BRADLEY ELDRIDGE THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Seven counts of armed robbery and two counts of armed robbery in company Total sentence of 12 years' imprisonment Offenders' co-operation with authorities with respect to one armed robbery Whether failure to give appropriate discount |
Legislation: | Nil |
Case References: | Pearce v The Queen (1998) 194 CLR 610 Verschuren v The Queen (1996) 17 WAR 467 House v The King (1936) 55 CLR 499 Miles v The Queen (1997) 17 WAR 518 R v Arnold, unreported; CCA SCt of WA; Library No 9002; 21 August 1991 Rudd v The Queen, unreported; CCA SCt of WA; Library No 970225; 15 May 1997 Spence v The Queen, unreported; CCA SCt of WA; Library No 920697; 22 December 1992 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ELDRIDGE -v- THE QUEEN [2000] WASCA 41 CORAM : KENNEDY J
- STEYTLER J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Seven counts of armed robbery and two counts of armed robbery in company - Total sentence of 12 years' imprisonment - Offenders' co-operation with authorities with respect to one armed robbery - Whether failure to give appropriate discount
Legislation:
Nil
Result:
Application for leave to appeal dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr P J Hogan
Respondent : Mr J Mactaggart
Solicitors:
Applicant : State Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Pearce v The Queen (1998) 194 CLR 610
Verschuren v The Queen (1996) 17 WAR 467
Case(s) also cited:
House v The King (1936) 55 CLR 499
Miles v The Queen (1997) 17 WAR 518
R v Arnold, unreported; CCA SCt of WA; Library No 9002; 21 August 1991
Rudd v The Queen, unreported; CCA SCt of WA; Library No 970225; 15 May 1997
Spence v The Queen, unreported; CCA SCt of WA; Library No 920697; 22 December 1992
(Page 3)
1 KENNEDY J: The applicant was presented in the Supreme Court on an indictment containing seven counts of armed robbery and two counts of armed robbery in company. The applicant pleaded guilty to each count.
2 The facts placed before the learned sentencing Judge with respect to the applicant's offences were as follows.
3 Count 1: At about 4.45 o'clock in the afternoon of Wednesday, 10 February 1999, the applicant went to the Amazon Drive Pharmacy in Beechboro with the intention of stealing drugs. He entered the pharmacy and proceeded to browse for several minutes to allow the customers who were present to leave the shop. After they had left, he produced a silver coloured replica handgun and threatened the female pharmacist while demanding a particular drug, MS Contin, known more widely as Morphine. The applicant followed the pharmacist to the safe at the rear of the premises, where he was given four boxes of MS Contin. He demanded more drugs and he was handed an additional box of MS Contin before running away from the pharmacy.
4 Count 2: At about 10.35 o'clock in the morning of Saturday, 20 February 1999, the applicant went to Sargent's Chemist in Inglewood with the intention of stealing drugs. He approached the owner, produced a machete and then demanded drugs. He was given five packets of assorted drugs, valued at $19. He then left the premises.
5 Count 3: At about 10.05 o'clock in the morning of Monday, 15 March 1999, the applicant went to the Bedford Fair Pharmacy in Bedford with the intention of stealing drugs. He entered the pharmacy, approached the complainant, produced a machete and demanded MS Contin. He was advised that there was none on the premises. He thereupon grabbed the complainant's upper arm and once again demanded that drug. When the complainant repeated that there was no MS Contin on the premises, the applicant took $55 in cash from the counter before running from the pharmacy.
6 Count 4: At about 1.25 o'clock in the afternoon of Monday, 15 March 1999, the applicant, in company with another adult male person, went to Crawford's Pharmacy in East Perth with the intention of stealing drugs. The two of them entered the pharmacy. He approached the assistant and asked to speak to the pharmacist. The assistant went into the pharmacist's office. The applicant followed her, produced a machete and demanded MS Contin. He was given a quantity of prescription drugs
(Page 4)
- valued at $144 and shortly afterwards ran out of the pharmacy with his accomplice.
7 Count 5: At about 9.20 o'clock in the morning of Saturday, 27 March 1999, the applicant went to Trinh's Pharmacy in Perth with the intention of stealing drugs. He was accompanied by the same accomplice who had been with him in committing the previous offence. The applicant was armed with a machete. They entered the pharmacy. The applicant approached the female assistant, pushed her backwards, and demanded MS Contin. She told him that they did not stock that drug. He then demanded Pethidine and again was told that the pharmacy did not stock that drug. In the meantime, the accomplice had taken $200 in cash from the till. They both then left the pharmacy.
8 Count 6: At about 3.50 o'clock in the afternoon of Saturday, 27 March 1999, the applicant went once again to the Amazon Drive Pharmacy in Beechboro. Armed with a machete, he entered the pharmacy. He ran to the rear of the premises and approached a female assistant, demanding Morphine. The applicant was given five boxes of Morphine, valued at $104.13. He then left the pharmacy.
9 Count 7: At about 12.45 o'clock in the afternoon of Thursday, 1 April 1999, the applicant went to the Bassendean Pharmacy in Bassendean with the intention of stealing drugs. He entered the pharmacy, armed with a replica pistol. He approached a female assistant, grabbed her by the arm and demanded MS Contin. He then grabbed the pharmacist and led her to the rear of the pharmacy, where she handed him nine packets of Morphine-based drugs, valued at $279. He then left the pharmacy.
10 Count 8: At about 8.00 o'clock in the morning of Monday, 12 April 1999, the applicant went to the Night and Day Pharmacy in Bayswater with the intention of stealing drugs. He entered the pharmacy, once again being armed with a machete. He approached the pharmacist and demanded drugs. He was given a large quantity of Morphine based drugs, valued at $400. He then left the pharmacy.
11 Count 9: At about 1.15 o'clock on Tuesday, 27 April 1999, the applicant again went to Crawford's Pharmacy in East Perth with the intention of stealing drugs. He entered the pharmacy, armed with a knife. He approached the pharmacist and demanded specific drugs. He was given a quantity of a Morphine-based drug, valued at $115. He then left the premises and ran down a laneway to where his vehicle was parked.
(Page 5)
- He was observed by detectives and was apprehended while trying to drive away from the scene. The drugs and the knife were then located in a plastic bag on the front passenger seat of the vehicle.
12 The applicant was born on 6 November 1977. He is the elder of two children. His parents had separated when he was two years of age and he was raised by his mother and step-father. They have been supportive of him since he has been charged with these offences. At the time of the offences, he was living with a woman in a de facto relationship, which has since been terminated. He has two young sons, aged approximately one year and two years, from that relationship, and a five year old daughter from a previous relationship. He has had a small number of convictions for driving offences, for disorderly conduct and for resisting arrest. In addition, he has two convictions for more serious offences, namely, a burglary, in respect of which he was fined the sum of $2,000, and an armed robbery in company, in respect of which he was sentenced to imprisonment for a period of 18 months. In that armed robbery he had been an accomplice, with the role of keeping a lookout for his co-offender.
13 The learned sentencing Judge accepted that the present offences had been committed by the applicant principally to feed a severe heroin habit, although he was at the same time also using other drugs. His Honour noted that, in each of the cases before him, the targets of his crimes had been pharmacies, which supply a vital service to the community. By the very nature of these businesses, pharmacists and their assistants who provide this service are particularly vulnerable to predatory attacks. The present robberies were aggravated by reason of their having been committed by the applicant with weapons designed to terrorise the occupants of the shops into obeying his directions. While accepting that the crimes had been committed in desperation, stemming from the applicant's continuing heroin addiction, his Honour pointed out that this provided no excuse or mitigation having regard to the traumatic invasion of the lives of ordinary people which occurred during and following the commission of these offences. In view of the nature, extent and circumstances of each offence, he placed these offences in the more serious of the categories of armed robberies.
14 His Honour accepted that the applicant was genuinely shocked at his actions and remorseful for what he had done; but, as he went on to indicate, this would probably provide cold comfort to the many victims of his crimes. He noted in particular that the applicant had volunteered the information to the police that he had committed the first of the armed
(Page 6)
- robberies at a time when he had not been charged with that offence. His co-operation with the police in relation to count 1 was also a matter on which counsel for the applicant placed some stress.
15 His Honour noted that he had taken into account all of the matters which had been urged upon him by counsel for the applicant and, in particular, his pleas of guilty and his relative youth. He indicated that, by reason of the applicant's pleas of guilty, he had reduced by approximately 20 per cent the total sentence which he would otherwise have imposed upon the applicant.
16 The learned sentencing Judge told the applicant that, if he were to sentence him appropriately for each offence, the total term would be disproportionate to the overall criminal conduct, it would be crushing, and it would give him no hope for the future. He indicated that he had therefore reduced the sentence for each count to arrive at an appropriate total sentence. That procedure, it should be said, does not accord with the views expressed by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610, at 623 - 624, which require an appropriate sentence to be fixed for each offence before consideration is given to questions of cumulation or concurrence, as well as to the question of totality. This has, however, no practical significance in the present case. Having regard to the totality principle, his Honour ordered that a number of the sentences should be served concurrently. The sentences he imposed were as follows:
Count 1: 4 years' imprisonment
Count 2: 5 years' imprisonment
Count 3: 8 years' imprisonment
Count 4: 7 years' imprisonment
Count 5: 8 years' imprisonment
Count 6: 5 years' imprisonment
Count 7: 6 years' imprisonment
Count 8: 5 years' imprisonment
Count 9: 5 years' imprisonment
- His Honour directed that the sentence on count 1 should be served cumulatively upon the sentence imposed on count 3 and he directed that the balance of the sentences should be served concurrently with that imposed on count 3. An order was made for the applicant's eligibility for parole on each sentence.
(Page 7)
17 The applicant seeks leave to appeal against his sentences on the single ground that the learned sentencing Judge erred in law in imposing a total sentence which was manifestly excessive, because he had failed to make any, or any sufficient, allowance for the applicant's co-operation with the authorities - see Verschuren v The Queen (1996) 17 WAR 467, and in particular per Malcolm CJ at 470. At the beginning of the hearing, counsel for the applicant limited the suggested error of principle to a failure to make any, or any sufficient, allowance for the applicant's co-operation with the authorities in relation only to count 1. It is, however, quite clear that his Honour did reduce the sentence imposed by him in respect of count 1 below that which he would otherwise have imposed. That sentence was at least one year less than any of the other sentences which he imposed for comparable offences.
18 In my opinion, the sentence on count 1 imposed by his Honour does not fall outside the range of a sound discretionary judgment. But even if it had done so, in a case in which a prisoner is being sentenced for numerous offences, it is necessary to have particular regard to the overall effective sentence. In my opinion, an overall effective sentence of 12 years' imprisonment clearly falls within the permissible range. It is undoubtedly a deterrent sentence; but a deterrent sentence was called for having regard to the number and nature of the offences of violence committed by the applicant. Had this court seen fit to reduce the sentence on the first count, it would have been a case in which it was appropriate, pursuant to s 693(1) of the Criminal Code, to resentence the applicant on another of the sentences, or on other sentences, in order to restore the total sentence to the figure of 12 years.
19 In the circumstances, I would refuse the applicant leave to appeal.
20 STEYTLER J: I have had the advantage of reading the reasons to be delivered by Kennedy J. I agree with them and would consequently refuse the applicant leave to appeal. I have nothing to add.
21 WHEELER J: I have read in draft the reasons for judgment to be delivered by Kennedy J. I agree that the applicant should be refused leave to appeal, for the reasons given by his Honour.
3
4
1