Fitzgerald v The State of Western Australia
[2024] WASCA 58
•24 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FITZGERALD -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 58
CORAM: BUSS P
MITCHELL JA
HEARD: 21 MAY 2024
DELIVERED : 24 MAY 2024
FILE NO/S: CACR 24 of 2024
BETWEEN: MARCUS-SCOTT GERARD FITZGERALD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 865 of 2022
Catchwords:
Criminal law - Sentencing - Application for leave to appeal - Aggravated home burglary - Threats with intent to rob - Whether trial judge made alleged factual errors - Whether sentences manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 68, s 317, s 393, s 401, s 444
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Creusot v The State of Western Australia [2022] WASCA 117
Kabambi v The State of Western Australia [2019] WASCA 44
Labrook v The State of Western Australia [2016] WASCA 127
Lovatt v The State of Western Australia [2004] WASCA 265
Mobilia v The Queen [2002] WASCA 130
MYB v The State of Western Australia [2024] WASCA 53
Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149
Satonick v The State of Western Australia [2008] WASCA 145
The State of Western Australia v Doodson [2021] WASCA 148
The State of Western Australia v McDonagh [2022] WASCA 108
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Slater [2023] WASCA 105
The State of Western Australia v Tawhitapou [2024] WASCA 25
The State of Western Australia v Wells [2005] WASCA 23
JUDGMENT OF THE COURT:
Summary
On 23 March 2023, the appellant was convicted after trial by jury of four counts on an indictment. All four offences were committed on 5 October 2021 at Coolbellup. On 26 May 2023, the appellant was sentenced to a total effective sentence of 6 years 6 months' imprisonment in respect of this offending. The sentences were backdated to 2 July 2022 to take account of time spent in custody on remand. The appellant was made eligible for parole.
The offences of which the appellant was convicted, and the sentences imposed for those offences, are set out in the following table:
Count
Offence (Criminal Code section)
Sentence
Accumulation
1
Aggravated home burglary (s 401(2)(a))
4 years
Head sentence
2
Criminal damage (s 444(1)(b))
No penalty
3
Aggravated threats with intent to rob (s 393(c) and (d))
2 years 6 months
Cumulative
4
Aggravated threats with intent to rob (s 393(c) and (d))
2 years 6 months
Concurrent
Total effective sentence
6 years 6 months
The appellant seeks leave to appeal against sentence on five grounds. For the following reasons, none of the grounds of appeal has any reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeal should be dismissed.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the appellant's offending.
Counts 1 and 2: aggravated home burglary and criminal damage
The appellant and the victim of counts 1 and 2, who we will refer to as A, lived in separate units at the same complex in Coolbellup and had known each other for almost two years.
Around midday on Tuesday, 5 October 2021, A was in the lounge area of his unit playing games on his mobile phone. The appellant smashed the patio sliding door and entered A's unit through the smashed sliding door. Whilst holding a samurai sword in his hand, the appellant said words to the effect of, 'give me some drugs', before he charged at A with the sword. A then ran to his bedroom and tried to close the door, pushing against the door to stop the appellant entering.[1]
[1] Sentencing remarks ts 2.
The appellant began stabbing the samurai sword at the bedroom door seven times as A was trying to hold the bedroom door closed, narrowly missing him on one occasion. Due to the repetitive stabbing of the bedroom door, the door lost its structural integrity and collapsed, which caused the appellant to stumble into the bedroom and fall on the floor. At that point, A saw the opportunity to run out of the bedroom and out of his unit through the smashed sliding door.[2]
[2] Sentencing remarks ts 2 - 3.
Damage to the door of A's bedroom constituted the offence of criminal damage which was the grounding offence of the aggravated home burglary charged in count 1 and the offence of criminal damage charged in count 2 of the indictment. Ultimately, no penalty was imposed for count 2 under s 11 of the Sentencing Act 1995 (WA). The circumstances of aggravation for the burglary offence were that the appellant was armed with a dangerous weapon, namely a samurai sword, and that the place was ordinarily used for human habitation.
Counts 3 and 4: threats with intent to rob
After the events described above, A ran to a property about 300 m away from his unit and approached a 60‑year‑old woman whom he knew, who it is convenient to refer to as B. Two young males, who we will refer to as R and S, were doing work in the back garden at B's address. A asked the men for help.[3]
[3] Sentencing remarks ts 3.
A returned to his unit with B, R and S. The appellant was still inside A's unit with A's dog and was still holding the samurai sword. R walked to the front of the unit to attempt to get the dog out of the unit.[4]
[4] Sentencing remarks ts 3.
At this point, the appellant walked out of A's unit through the smashed sliding door carrying the sword in his right hand. R saw the sword and immediately began to back away from the appellant. S and B were standing close by. The appellant walked towards R and S and demanded they each give the appellant their mobile phones. Whilst saying this, the appellant was swinging the sword from side to side towards them and threatened to kill both R and S if they did not give him their mobile phones. Neither R nor S handed over their mobile phones to the appellant. R and S began to walk backwards to get away from the appellant. B also backed away from the appellant and rang the police.[5]
[5] Sentencing remarks ts 3.
The threat to use violence to S with intent to steal his mobile phone was the subject of count 3 on the indictment. The threat to use violence to R with intent to steal his mobile phone was the subject of count 4 on the indictment. For both counts, it was a circumstance of aggravation that the appellant was armed with a dangerous weapon, namely a samurai sword, and threatened to kill the victim.
We note that count 5 charged the appellant with a similar offence in relation to threats made to B. However, the trial judge acquitted the appellant of this charge on a no case submission.[6]
Apprehension of appellant
[6] Trial ts 174 - 175.
After the events described above, the appellant fled towards a park across the road. At about 12 pm, police attended at A's address. They located and seized a black samurai sword sheath laying on the ground near the base of the broken internal door to the bedroom. A DNA swab was subsequently taken from the sword sheath and was found to contain the appellant's DNA profile.[7]
[7] Sentencing remarks ts 3.
About 10 minutes later, the appellant boarded a Transperth bus to Fremantle. He was captured on closed‑circuit television footage sitting at the rear of the bus. At approximately 2.30 pm that afternoon, the appellant was arrested in the High Street Mall in Fremantle and conveyed to the Fremantle Police Station.[8]
[8] Sentencing remarks ts 3.
On 6 October 2021, police attended the Transperth O'Connor Bus Depot and seized a samurai sword with a black handle, restraining order paperwork in A's name and a black purse near the back seats of the Transperth bus.[9]
[9] Sentencing remarks ts 3 - 4.
Personal circumstances
The trial judge made the following findings as to the appellant's personal circumstances.
Family relationships
The appellant was 44 years old at the time of sentencing. He was born in Perth and had a good relationship with his parents, with whom he lived until the age of 18 years. The appellant was engaged to a person who he has been in a relationship with for approximately 10 years and intended to get married on his release from prison. The appellant had two previous long‑term relationships and a 25‑year‑old son who he has not seen since the son was 5 years old.[10]
[10] Sentencing remarks ts 4.
The appellant's parents and brother remain supportive of him. On release from prison, the appellant intends to live with his partner, his brother, or his parents. [11]
Education and employment history
[11] Sentencing remarks ts 4.
The appellant finished high school in Newman in the northwest of Western Australia. He worked for about 16 years in the mining and construction industries in a variety of jobs, with periods of unemployment associated with the loss of his driver's licence. The appellant's prospects of employment on his release were good. He has a variety of relevant tickets and all he must do is update his white card and return negative drug and alcohol screens.[12]
Substance use
[12] Sentencing remarks ts 4 - 5.
The appellant started using cannabis at the age of 13. Around the age of 18, he started using various other prohibited drugs. The appellant had used prohibited drugs in the past to cope with the trauma of sexual abuse which he experienced as a child, for which he had not received counselling. The appellant committed offences around that time to support his drug habit. At the time of sentencing, the appellant had not used prohibited drugs for a number of years.[13]
[13] Sentencing remarks ts 4 - 5.
The appellant was diagnosed with attention deficit hyperactivity disorder as a child but did not take medication for this issue at the time of sentencing. At the time of sentencing, the appellant was prescribed medications for mood stabilising and insomnia. The appellant had historically been prescribed with anti‑depressants and on occasions abused alcohol. At the time of the offences, the appellant was not on his medications as they had been stolen. Ceasing to take the anti‑depressant medication did not have a causal connection to the charged offending. The appellant denied that he was under the influence of alcohol or prohibited substances when he committed the charged offending.[14]
[14] Sentencing remarks ts 9.
The appellant was attending Narcotics Anonymous meetings every week at Casuarina Prison.[15] The appellant had participated in numerous courses while in custody.[16]
Prior criminal record
[15] Sentencing remarks ts 5.
[16] Sentencing remarks ts 6.
The trial judge observed that the appellant had a significant and continuing record of offending since the age of 12. He had a record for damaging property, disorderly behaviour, unlawful assault, being armed in public, obstructing public officers, trespass, breach of bail conditions, burglary, fraud, stealing, breach of police orders or violence restraining orders, possession of drugs, cultivating prohibited plants and a number of traffic related offences. The appellant received a variety of sentences for these offences, including sentences of imprisonment. The appellant had also been placed on community‑based orders and had breached those orders.[17]
[17] Sentencing remarks ts 5.
The appellant had been in custody since 6 October 2021. A sentence imposed on 28 June 2022 by the Magistrates Court of Western Australia took account of 270 days of that time. The appellant completed the Magistrates Court sentence on 1 July 2022.[18]
[18] Sentencing remarks ts 6.
Trial judge's approach
The trial judge noted that the appellant's previous record was not an aggravating factor but required some weight to be given to the principles of specific deterrence and protection of the community. The judge also observed that there was a gap in the appellant's prior offending which indicated that he could rehabilitate himself and remain free from offending.[19]
[19] Sentencing remarks ts 5.
The trial judge expressed the view that the appellant needed to obtain better insight to the causes of his offending behaviour and have some victim empathy. The appellant had mood issues and could act impulsively. He clearly had an anger management problem which could manifest in aggression and violent acts. The appellant required psychological assistance to help him address the underlying issues causing his offending behaviour, including the traumatic events the appellant experienced earlier in his life. The trial judge expressed the view that, without such assistance, the appellant presented a considerable risk of reoffending.[20]
[20] Sentencing remarks ts 6.
The trial judge identified the following aggravating factors in the appellant's offending:[21]
1.This was a home invasion‑style burglary where the home occupant, A, was threatened.
2.A was a vulnerable victim, being a person living in Homeswest accommodation who suffered from a brain injury.
3.There was persistence in the appellant's offending. After committing the burglary and damage offences in A's unit, the appellant committed further offences against two people who were trying to help A.
4.The offending caused A to suffer from depression and to feel anxious about further attacks. A fears other occupants of the units in which he resides, and he has felt suicidal at times. Property damaged in the offence has taken some time and cost for A to replace, as he had to wait for approval of various government authorities.
[21] Sentencing remarks ts 6 - 7.
The trial judge observed that, as the appellant had proceeded to trial, he was not entitled to any discount pursuant to s 9AA of the Sentencing Act. However, the judge recognised that the appellant was not to be punished for proceeding to trial.[22]
[22] Sentencing remarks ts 7.
The trial judge identified the following mitigating factors:[23]
1.The appellant made a number of admissions in the beginning of his trial which confined the issues in dispute and shortened the length of the trial as a number of witnesses were not required.
2.The appellant had attended many courses in prison to assist him in obtaining employment on release and also to deal with the underlying issues that have caused him to offend.
3.The appellant suffered a traumatic childhood.
[23] Sentencing remarks ts 7.
The trial judge made the following observations in relation to the issue of remorse:[24]
As to the issue of remorse, you've shown limited remorse for your offending behaviour. I found that your evidence at the trial was an attempt to minimise your responsibility or to excuse or justify your behaviour on the day in question. The [pre‑sentence] report writer suggests you have minimised your involvement in the offences and taken a victim stance.
I'm mindful of what the Court of Appeal recently said about remorse and the principles of remorse as a mitigating circumstance in [The State of Western Australia v Rayapen [2023] WASCA 55]. I cannot find that you're genuinely remorseful for your offending behaviour.
[24] Sentencing remarks ts 7.
The trial judge then referred to general principles of sentencing and observations by this court as to sentencing for home invasion burglaries. In relation to the appellant's offence, the trial judge observed: [25]
Your offending in relation to the home burglary was serious. You smashed your way into a vulnerable person's home when you were armed with a Samurai sword. You threatened the occupant, [A].
He retreated to his bedroom and you further damaged his unit trying to get access to him. As I've said, you were armed with a dangerous weapon, a Samurai sword, and used it to threaten the victim and damage the door. It was fortunate [A] was not injured in your stabbing of the bedroom door, given he was on the other side pushing back.
[25] Sentencing remarks ts 8.
The trial judge made the following observations about what he described as the 'armed robbery offences':[26]
When [A] went and got people to help him, you turned your attention on them. Two young men were threatened with the Samurai sword and you threatened to kill them.
…
[T]here's also the aggravating factor that you threatened to kill the victims. General deterrence is an important consideration in sentencing you for these two types of offences. Cases generally where a sentence of immediate imprisonment is not imposed is unusual.
The robbery‑type offences I accept were spontaneous acts by you. No property was taken and neither victim was physically hurt. They were offences of a relatively short duration. The threats to kill you made to each victim of the robbery offences were serious as you were armed with a Samurai sword at the time.
[26] Sentencing remarks ts 8.
The trial judge accepted that the appellant had been the victim of criminal offences while living at the Homeswest units in Coolbellup leading up to the charged offences. However, the judge described the appellant's behaviour on the day of the offences as a 'gross overreaction'.[27]
[27] Sentencing remarks ts 8 - 9.
The trial judge found that the seriousness of each offence was such that a sentence of imprisonment is the only appropriate sentence in respect of each offence. The trial judge indicated that the appropriate individual sentences were 4 years' immediate imprisonment for count 1, no penalty for count 2, and 3 years' immediate imprisonment for each of counts 3 and 4. The trial judge said that the sentences for the 'aggravated armed robbery' offences charged in counts 3 and 4 would be reduced to 2 years 6 months' immediate imprisonment for totality. In relation to totality, the trial judge observed:[28]
I need to consider both the first and second limbs of the totality principle and in reducing counts 3 and 4, the robbery offences, I have given some consideration of the totality principle in that Act. All these offences were a sequence of events which occurred in less than one hour.
It was continuing offending behaviour by you, but involved separate criminal acts and, most importantly, three separate victims. As a result, in particular as there's three separate victims and perhaps two separate locations, in [A's] house and in the public area down the road, there should be some accumulation of the sentences of imprisonment to reflect this. (emphasis added)
I order that counts 1 and 3 of the sentences of imprisonment be served cumulatively. Count 1 is the head sentence. Counts 2 and 4 can be served concurrently. So the total effective sentence is therefore six years and six months.
I consider that sentence bears a proper relationship to the overall criminality involved for all four offences viewed in their entirety and having regard to the circumstances of your case, including those circumstances of you personally.
[28] Sentencing remarks ts 9 - 10.
The trial judge backdated the sentences to commence on 2 July 2022 and made the appellant eligible for parole.[29]
[29] Sentencing remarks ts 10.
Ground 1: alleged factual error
The appellant's first ground of appeal contends that:
The learned judge made a mistake in sentencing + overlooked the fact that I was on my property not 'the public area down the road'.
The trial judge made reference to the 'public area down the road' in the second paragraph quoted at [35] above. That finding was consistent with the evidence of both R and S to the effect that they had backed away to the street when the appellant threatened to kill them and demanded their mobile phones.[30] The earlier findings by the trial judge indicated that his Honour appreciated that the offending against R and S occurred outside A's unit. The area in which the offences charged in counts 3 and 4 occurred was not properly described as the appellant's property. In any event, the precise location where the offending occurred was not material to the exercise of the sentencing discretion and the trial judge properly appreciated the conduct involved in counts 3 and 4.
[30] Trial ts 107 - 108 (evidence of R), 142 (evidence of S).
Therefore, the trial judge's finding was supported by the evidence adduced at trial and the error alleged by the appellant would not have been material even if it were established. There is no merit in ground 1.
Ground 2: appellant's 'attempt to plead guilty'
By ground 2, the appellant contends:
In regard to my personal circumstances the learned judge failed to recognise the fact that I tried to plead guilty at the start of the trial on the aggravated burglary.
When the appellant was arraigned before the jury, he is recorded in the transcript as pleading guilty to count 1. It appears that after the appellant conferred with his trial counsel, counsel confirmed that the plea was not guilty to all counts on the indictment. The other counts were put to the appellant, and he pleaded not guilty to those counts.[31]
[31] Trial ts 52 - 53.
Ultimately, the appellant maintained a plea of not guilty to all counts on the indictment and denied the offending when he gave evidence at trial. He was not entitled to any reduction for the mitigating effect of a guilty plea to count 1. There is no merit in ground 2.
Ground 3: finding as to remorse
By ground 3, the appellant contends:
Also in regards to my personal circumstances the learned judge failed to recognize my remorse as he said 'I had limited remorse' even though I had sent letters [apologising] to everyone I scared on that day in question + asking them for [forgiveness] for my actions. This was not taken into account.
In written sentencing submissions to the trial judge, the appellant's trial counsel indicated that the appellant had instructed him that, about a year prior, the appellant wrote a letter to A and B 'apologising for his behaviour'.[32] The appellant's sentencing counsel did not expand on that contention in his oral sentencing submissions.[33] The prosecutor observed that the court had not been provided with a copy of that letter. The prosecutor submitted that, without a copy of the letter, the judge should place no weight on the instructions as demonstrating genuine remorse.[34]
[32] Further submissions on sentence on behalf of the Appellant dated May 2023, par 5.
[33] Trial ts 274.
[34] Trial ts 277.
It was open to the trial judge to give no weight to the appellant's instructions to his counsel about having written a letter to A and B when no copy of the letter was produced. In any event, the instructions were that the letter was written prior to the appellant defending the charges at trial on the basis that the offences had not occurred and giving evidence to that effect. That subsequent conduct at trial counts strongly against relying on evidence of a letter written prior to trial as demonstrating genuine remorse. As the court noted in Rayapen:[35]
Nor, in evaluating the existence and degree of remorse, should a court confine itself to moments in time, or consider particular words or conduct in isolation. As Redlich JA and Curtain AJA said in Phillips v The Queen [[2012] VSCA 140; (2012) 222 A Crim R 149 [69], [72]]:
The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists. (original emphasis)…
In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court.
[35] Rayapen [147].
In the present case, the trial judge had the advantage of observing the appellant give evidence at trial. As set out at [31] above, the trial judge found the appellant was attempting to minimise his responsibility or to excuse or justify his behaviour on the day of the offences. The appellant maintained that position when interviewed for his pre‑sentence report. It was well open to the trial judge to fail to be satisfied, on the balance of probabilities, that the appellant was genuinely remorseful for his offending. Ground 3 has no reasonable prospect of succeeding.
Ground 5: inferred error
By ground 5, the appellant contends:
The sentence imposed on me is manifestly excessive in regards the circumstances of the offences, the personal circumstances of the appellant (me) + the sentencing standards reflected in other cases considered on Appeal.
We will treat this ground as contending that the individual sentences for counts 1, 3 and 4 were manifestly excessive and that the total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle.
General principles
The relevant general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are summarised in Kabambi v The State of Western Australia:[36]
[36] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls 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 (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) 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 unreasonable or plainly unjust.
Individual sentence for the aggravated burglary offence
There is no merit to the appellant's submission that the individual sentence for the aggravated burglary charged in count 1 is manifestly excessive.
The maximum penalty for that offence is 20 years' imprisonment.
The general sentencing standards for aggravated home burglary were recently discussed in The State of Western Australia v Tawhitapou.[37] As was noted, the circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. There has long been a recognition that sentences for home burglary need to be firmed up.
[37] The State of Western Australia v Tawhitapou [2024] WASCA 25 [69].
The present case involves a serious example of a home invasion burglary. The appellant smashed the patio sliding door of A's unit and entered through the smashed sliding door. He approached A with a dangerous weapon, namely a samurai sword, and demanded drugs. When the appellant charged at A with the sword, A ran to his bedroom and attempted to shut the door to prevent the appellant entering. The appellant responded by stabbing the sword at the bedroom door on numerous occasions. The sword narrowly missed A on one occasion. The stabbing caused the bedroom door to collapse. A managed to escape when the collapse of the door caused the appellant to stumble and fall. The experience was terrifying for A and the trauma of the offence has had an ongoing psychological impact upon him.
There are few mitigating factors. The appellant did not have the mitigating benefit of a plea of guilty. At the age of 44, he did not have any mitigation from youth. The appellant's long history of offending showed he was not a person of prior good character and elevated the significance of personal deterrence and community protection as sentencing considerations. The appellant did not suffer from any psychiatric condition causative of the offending. The mitigating factors were confined to those identified at [30] above.
In our view, having regard to the above matters and all other relevant sentencing considerations, the contention that the individual sentence for count 1 was manifestly excessive has no reasonable prospect of succeeding. The sentence imposed for count 1 was, given the serious circumstances of the offending and the limited mitigating circumstances, lenient.
Individual sentences for the threats with intent to rob offences
It may be noted that at various points the trial judge referred to the offences charged in counts 3 and 4 as armed robbery offences. We note that the charge was of an offence against s 393 of the Code (threatening to use violence with intent to steal a thing) rather than the offence of armed robbery (threatening to use violence to steal a thing) provided for in s 392 of the Code. There is no basis for apprehending from this use of language that the trial judge misunderstood the offences with which the appellant was charged. In any event, the maximum penalty for both offences is life imprisonment when committed while armed with a dangerous weapon. Having regard to the similarity of the elements, cases dealing with the two kinds of offences are likely to be broadly comparable.
This court has acknowledged that:[38]
[T]he range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, was 4 to 6 years' imprisonment. … [I]t is not unusual for a court to impose a sentence of 5 to 6 years' imprisonment after trial for a single count of armed robbery. Of course, a sentence outside that range will not necessarily be manifestly inadequate (or manifestly excessive). The range of sentences imposed in the past serves as a yardstick, but does not define the possible range of sentences to be imposed in a particular case. (citations omitted)
[38] Creusot v The State of Western Australia [2022] WASCA 117 [190]. See also to the same effect The State of Western Australia v McDonagh [2022] WASCA 108 [69] and The State of Western Australia v Slater [2023] WASCA 105 [30] - [32].
The appellant refers to several older decisions in relation to sentences for armed robbery.[39]
[39] Mobilia v The Queen [2002] WASCA 130; Lovatt v The State of Western Australia [2004] WASCA 265; The State of Western Australia v Wells [2005] WASCA 23 and Satonick v The State of Western Australia [2008] WASCA 145.
The sentence of 2 years 6 months' immediate imprisonment imposed for each of counts 3 and 4 falls below that commonly imposed range. The offences charged in counts 3 and 4 were relatively serious examples of the offence provided for in s 393 of the Code. While the offending was spontaneous, it involved waving a dangerous weapon at R and S while demanding their mobile phones and threatening to kill them. Our observations about the limited mitigating circumstances in relation to the aggravated burglary offence apply equally here.
The individual sentences imposed for counts 3 and 4 were lower than would ordinarily be expected in the circumstances. They are explicable only by a reduction of the sentences that would otherwise be commensurate with the seriousness of the offences in the application of the totality principle. The argument that the individual sentences of 2 years 6 months' imprisonment for each of counts 3 and 4 were manifestly excessive has no reasonable prospect of succeeding.
Totality
We leave aside for the moment the impact of the offences for which the appellant was sentenced by the Magistrates Court on 28 June 2022 (considered below). On that basis, the total effective sentence imposed for the offences charged on the indictment is not arguably unreasonable or plainly unjust. While the offending all occurred at about the same time, some degree of accumulation of the individual sentence was required in order to reflect the separate offences committed against R and S. The total effective sentence of 6 years 6 months' imprisonment was not even arguably more than was required to reflect the overall criminality involved in all the offending charged in the indictment.
Ground 4: Magistrates Court sentences
Ground 4 contends that:
The learned judge also failed to recognise my Fremantle Magistrates Court charges (FR 6893 ‑ 6894 of 2021) which strongly relate to these [District Court] charges + should have been mentioned in my sentencing.
The appellant contends that the sentences on the charges on the indictment ought to have run concurrently with the sentences imposed by the Magistrates Court.
The appellant's criminal record provided to the District Court shows that, on 28 June 2022, the appellant was sentenced by the Magistrates Court to a total effective sentence of 9 months' imprisonment for two offences. According to the criminal record, these offences were:
1.One count of 'being armed or pretending to be armed in a way that may cause fear', contrary to s 68(1) of the Code, for which the appellant received an individual sentence of 6 months' immediate imprisonment.
2.One count of 'unlawfully assault and thereby did bodily harm with circumstances of aggravation' contrary to s 317(1) of the Code, for which the appellant received an individual sentence of 9 months' immediate imprisonment.
The offences were recorded as both being committed on 23 September 2021, less than two weeks prior to the offences charged in the indictment. The sentences in the Magistrates Court were ordered to be served concurrently with each other. The sentences imposed by the District Court were backdated to begin when service of the Magistrates Court sentences ended.
The trial judge referred to the Magistrates Court sentences for the purposes of determining the date to which the sentences on the indictment should be backdated. However, the passage quoted at [35] above indicates that the trial judge considered only the indicted offences in the application of the totality principle.
As is explained in Labrook v The State of Western Australia,[40] the totality principle applies in relation to a sentence which an offender is serving at the time of sentencing for another offence. The application of that principle was considered in The State of Western Australia v Doodson.[41] It has also been held that the totality principle may apply, at least by way of analogy, even when the sentences for prior offences have been completed.[42]
[40] Labrook v The State of Western Australia [2016] WASCA 127 [33] - [40].
[41] The State of Western Australia v Doodson [2021] WASCA 148 [48] - [52].
[42] MYB v The State of Western Australia [2024] WASCA 53 [88].
The totality principle was capable of being applied, at least by analogy, in relation to the combination of offences for which the appellant was sentenced on 28 June 2022 and 26 May 2023. However, neither the prosecutor nor the appellant's sentencing counsel made submissions that the trial judge should do so. No material was placed before the trial judge as to the particulars or circumstances of the offending which was the subject of the Magistrates Court sentences. The District Court was therefore not in a position to determine the total sentence which would reflect the overall criminality of offending which included the Magistrates Court offences. It is difficult to see that the trial judge erred in failing to have regard to the sentences imposed by the Magistrates Court for totality purposes.
In any event, even if the error alleged is established it is not reasonably arguable that a different lesser total effective sentence should have been imposed.
As we indicated to the appellant at the hearing of the leave application, we have obtained the transcript of the sentencing proceedings in the Magistrate's Court on 28 June 2022. The circumstances of the offending on 23 September 2021 arose out of the appellant becoming involved in an altercation with a resident of the Coolbellup unit complex (being a person other than A) as the appellant rode a bicycle through Fremantle.
The sentencing magistrate made the following findings as to the circumstances of the offences. The complainant, a passer‑by not known to either man, became involved in the altercation and participated in a physical struggle with the appellant. During the struggle, the appellant brought out a metal baseball bat he was carrying in a bag. The complainant tried to back away. The appellant then swung the bat at the complainant, making contact with the complainant's head on one occasion. The complainant suffered grazing and bruising of his scalp, which was the bodily harm charged in the prosecution notice.
In our view, a total effective sentence of 7 years 3 months' imprisonment was not more than was required to bear a proper relationship to the overall criminality involved in all of the offences committed on 23 September 2021 and 5 October 2021, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally) and all relevant sentencing factors. Further, given the moderate sentences imposed for the offences charged in the indictment, an argument that a different lesser total effective sentence should have been imposed for the offences committed on 5 October 2021, having regard to the sentences for the offending on 23 September 2021, has no reasonable prospect of succeeding.
Leave to appeal should therefore be refused on ground 4.
Orders
For the above reasons, none of the appellant's grounds of appeal against sentence have any reasonable prospect of succeeding. The following orders should be made:
1.Leave to appeal is refused on all grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
24 MAY 2024
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