Fawcus v The State of Western Australia
[2013] WASCA 86
•4 APRIL 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | FAWCUS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 86 |
| CORAM | : McLURE P |
BUSS JA
MAZZA JA
| HEARD | : | 23 NOVEMBER 2012 |
| DELIVERED | : | 4 APRIL 2013 |
| FILE NO/S | : | CACR 123 of 2012 |
| BETWEEN | : JONATHON DAVID FAWCUS |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | SUPREME COURT OF WESTERN AUSTRALIA |
| Coram | : SIMMONDS J | ||
| File No |
| ||
| Catchwords: |
Criminal law - Appeal against sentence - Armed robbery - Two counts of stealing on s 32 notice - Manifest excess - Totality - Re-sentencing
[2013] WASCA 86
Legislation:
Criminal Code (WA), s 378, s 426(4) Sentencing Act 1995 (WA), s 54, s 59
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A J Robson |
| Respondent | : | Ms S H Linton |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Giglia v The State of Western Australia [2010] WASCA 9
Hollingsworth v Keates [2002] WASCA 86
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Fawcus [2012] WASCSR 70
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826
[2013] WASCA 86
McLURE P
BUSS JA
MAZZA JA
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: The appellant pleaded guilty on the fast-track system to one count of armed robbery and, on a notice pursuant to s 32 of the Sentencing Act 1995 (WA), to two counts of stealing.
4 On 1 May 2012, he was sentenced by Simmonds J to 2 years and
10 months' imprisonment for the armed robbery and 6 months' imprisonment for each of the stealing offences. His Honour ordered that the sentences for the stealing offences be served concurrently with each other, but cumulatively upon the sentence he imposed for the armed robbery. Thus, the appellant received a total effective sentence of 3 years and 4 months' immediate imprisonment. The appellant was made eligibility for parole: The State of Western Australia v Fawcus [2012] WASCSR 70.
5 There are two grounds of appeal. Ground 1 alleges that the
individual sentences for the stealing offences were manifestly excessive. Ground 2, which the appellant's counsel said in oral argument was an alternative ground, alleges that the total effective sentence infringed the first limb of the totality principle. Specifically, it is said that his Honour erred by making the sentences for the two stealing offences cumulative with the sentence for the armed robbery (appeal ts 2).
6 The facts of the appellant's offending are as follows. On
7 November 2011, the appellant, having armed himself with a samurai sword, went to a liquor store intending to rob it. Upon entering the store, the appellant put a stocking over his head. He then approached a female employee, pulled the sword out and aggressively demanded cash from her. After obtaining $650 in cash, the appellant fled the store. As he went, he disposed of the sword, the scabbard it came in, and the stocking.
7 The incident was captured on closed-circuit television. The appellant
was later identified because of a distinctive tattoo that was seen in the
video footage of the incident.8 On 22 December 2011, the appellant stole, from the frozen food
section of a supermarket, frozen food comprising a turkey and some prawns, the total value of which was $79.95. The appellant was pursued by staff members who managed to retrieve the turkey. The appellant apparently stole the food to provide a Christmas meal for his children.
[2013] WASCA 86
MAZZA JA
9 On 22 January 2012, the appellant drove his motor vehicle into a
service station in Canning Vale and pumped $70.20 worth of fuel into it.
He then drove off without paying.10 The appellant was apprehended by police, and on 23 January 2012 he
participated in a video record of interview where he made full admissions in relation to each of the offences I have described. His professed motive for the armed robbery was that he owed money for illicit drugs.
11 At the time he committed the offences, the appellant was aged either
34 or 35 years of age. He had a difficult childhood. He left school at the end of year 10. His record of employment was sporadic. He has four children aged between five and 14 years.
12 The appellant has a long history of drug and alcohol abuse. He had
what his Honour described as a 'relatively moderate history of offending' (AB 42). On 13 May 2010 in the Perth Magistrates Court, he was sentenced to a 6-month community based order for an offence of aggravated burglary upon a place and two counts of stealing. On 6 March 2009, he was fined a total of $550 for two counts of stealing. In addition to these offences, he has been convicted of several public disorder offences and relatively minor contraventions of the Road Traffic Act 1974 (WA). The offence of armed robbery was a significant escalation in his offending. Up until the sentence imposed by Simmonds J, the appellant had never received a custodial term, whether immediate or suspended.
13 The learned sentencing judge found that the pleas of guilty were
entered at the very earliest opportunity. In respect of the armed robbery, his Honour accepted that the appellant was remorseful. It was noted that he had written a letter of apology to the female employee of the liquor store and had engaged in victim mediation. His Honour considered the mitigatory credit for these factors should be 'at the top of the relevant range' (AB 41). In addition to these factors, but to a lesser extent, his Honour gave mitigating weight to the pressure which had been imposed upon him by those to whom he owed money for drugs (AB 43).
14 With respect to the offence of armed robbery, his Honour expressly
found that the vulnerability of the victim was an aggravating factor and recognised the importance of specific and general deterrence (AB 43, 44).
15 In relation to the offences of stealing, the sentencing judge concluded
that 'neither of the stealings was one of any particular seriousness'
(AB 11).
[2013] WASCA 86
MAZZA JA
His Honour articulated the approach he took to the task of sentencing the appellant for more than one offence in this way:
Because I am sentencing you for more than one offence I must determine how to relate those offences to one another. For that purpose I must determine the sentence for each offence considered individually and then have a second look at the offences, at those sentences and how they might be combined to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to the circumstances of the case including those that can be referred to you personally (AB 45 - 46).
Having these considerations in mind, his Honour then sentenced as
follows:
With respect to the armed robbery offence I have determined that the appropriate sentence of imprisonment to be immediately served is a sentence of 2 years and 10 months' imprisonment. With respect to each of the stealing offences I have considered that the appropriate sentence of imprisonment is 6 months in each case.
I would combine the sentences as follows. The armed robbery offence should be the head sentence, served first. The stealing offences should be served concurrently with one another and cumulatively on the armed robbery offence. I consider that the stealing offences were distinct in date and other context terms from the armed robbery offence but as between the two of them, concurrency is the appropriate way of dealing with them.
The overall total effective sentence then, if I have correctly reckoned it, is 3 years and 4 months of immediate imprisonment. I have carefully reviewed both that total effective sentence and the individual sentences by way of second look to ensure that it properly reflects the overall criminality and is not crushing, as I have explained (AB 46).
Legal principles applicable to this appeal
18 The general principles applicable to appeals against sentence are
well-known and were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court can only intervene if the sentencing judge made an express or implied material error of fact or law in sentencing the appellant.
Neither ground of appeal alleges that his Honour made an express error. The grounds allege implied error.
20 When it is alleged that an individual sentence is manifestly
excessive, it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the
[2013] WASCA 86
MAZZA JA
standards of sentencing customarily imposed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
21 The orthodox approach to sentencing an offender for more than one
offence was explained by the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. A sentencing judge is required to determine the appropriate sentence for each offence, then consider cumulation or concurrence and, finally, totality. There is some flexibility to be applied to this approach: Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. For example, a sentencer may lower an individual sentence that is to be accumulated with other sentences in order to accommodate totality.
22 The principles relating to totality are well-accepted in this State and
were described in Roffey v The State of Western Australia [2007]
WASCA 246 [24] - [26] (McLure JA).23 The totality principle comprises two limbs. The first limb is that the
total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb, which is not relied upon by the appellant, is that the court should not impose a crushing sentence.
24 The severity or otherwise of an individual sentence is relevant to an
assessment of whether the total sentence infringes the first limb of the totality principle as Owen JA explained in Giglia v The State of Western Australia [2010] WASCA 9:
… There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive. In this case, such a question is raised by the second ground of appeal [40].
[2013] WASCA 86
MAZZA JA
The merits of the appeal
Ground 1
25 Stealing is a crime pursuant to s 378 of the Criminal Code (WA) and carries a maximum penalty of 7 years' imprisonment. Where the value of the property stolen is less than $1,000 the offence may be dealt with summarily, in which case the maximum penalty is a fine of $6,000: s 426(4) of the Criminal Code. Of course, this is the jurisdictional limit: Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 826. Where a superior court deals with an offence of this kind pursuant to s 32 of the Sentencing Act, the summary jurisdictional limit does not apply. Thus, in this case the offender was liable to the maximum penalty of 7 years' imprisonment.
26 There are no decisions of this court concerning individual sentences
imposed for stealing property under $1,000. This is not surprising given that the offence will almost always be dealt with by a magistrate who is subject to the maximum summary penalty of a fine.
27 The parties referred to cases decided by single judges of this court. It
is unnecessary to deal with these individually. It is sufficient to say that all but one, Hollingsworth v Keates [2002] WASCA 86, were of no assistance. In Hollingsworth v Keates, an offender with a prior record for stealing was sentenced to 6 months' imprisonment (the then relevant summary maximum penalty) for stealing various items of property worth a total of $128. Wheeler J noted that the offence was not a particularly serious example of its type and that offences like it did not, by and large, attract sentences of imprisonment. Taking into account that the appellant had already spent 6 weeks in custody prior to the hearing of the appeal, her Honour allowed the appeal, set aside the sentence of imprisonment and imposed a fine at the lower end of the scale of $200. I accept, of course, that one case does not establish a range of sentences customarily imposed.
28 As Simmonds J rightly observed, neither of the stealing offences
before him were of any particular seriousness. There was nothing in the materials before his Honour to suggest any more than limited premeditation or planning and not much by way of concealment. The property stolen was of very modest value and, in the case of the stealing from the supermarket, some of the property was recovered. Although there was not much mitigation to be found in the appellant's personal circumstances, he pleaded guilty at the first available opportunity and was remorseful for what he had done.
[2013] WASCA 86
MAZZA JA
29 Shoplifting and stealing petrol are prevalent offences and require
general deterrence. In light of the appellant's previous history of stealing, some specific deterrence was also required. Notwithstanding this, and having regard to all of the circumstances of the case, the sentences imposed for each offence of stealing were disproportionate to the overall circumstances of the case. With great respect to the learned sentencing judge, they were plainly unjust and unreasonable. I would uphold ground 1 and set aside the sentences that were imposed for the stealing offences.
Ground 2
30 Having upheld ground 1, it is unnecessary to decide ground 2 as it
was expressed to be an alternative to ground 1. However, the respondent submitted that when his Honour's sentencing remarks were read as a whole, it is clear that the sentence his Honour imposed on the armed robbery was reduced by his Honour's decision to add a cumulative term of imprisonment for the stealing offences. I reject this submission. It is clear from the passages in his Honour's sentencing remarks referred to earlier in these reasons, that his Honour's approach was to impose appropriate individual sentences for the offences and, having done so, consider the question of totality. There is nothing in the remarks or the sentence he imposed to indicate that his Honour reduced the sentence for the armed robbery to take into account the sentences for the stealing offences. This was not a case of the type envisaged by Owen JA in Giglia where a sentence has been softened having regard to another sentence or sentences. Nor did his Honour reduce the penalty he would otherwise have imposed for the armed robbery to take into account the totality principle.
Resentencing
31 The error established in ground 1 enlivens this court's power to
resentence the appellant in respect of all of the offences that were before
his Honour. The court has all the necessary materials to do so.32 I would impose the same sentence as the sentencing judge for the
armed robbery. In doing so, I have considered the respondent's submission that the sentence for that offence was lenient. In my opinion, having regard to all of the circumstances of the case, including those personal to the appellant, a sentence of 2 years 10 months' imprisonment with eligibility for parole is appropriate.
[2013] WASCA 86
MAZZA JA
33 In respect of the stealing offences, the appellant pleaded guilty on the
fast-track system at what appears to be the first reasonable opportunity. I would impose 3 weeks' imprisonment for each offence, having reduced the head sentence by 25%, pursuant to s 9AA(2) and (4) of the Sentencing Act. I would order that the sentences be served concurrently with each other and concurrently with the sentence imposed for the armed robbery.
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