Fogg v The State of Western Australia
[2011] WASCA 11
•18 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FOGG -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 11
CORAM: McLURE P
NEWNES JA
MAZZA J
HEARD: 7 DECEMBER 2010
DELIVERED : 18 JANUARY 2011
FILE NO/S: CACR 59 of 2010
BETWEEN: BRAD ALLAN DEREK FOGG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :INS 16 of 2010
Catchwords:
Criminal law - Sentencing - Offender and cooffender forced way into complainant's home - Convicted of aggravated armed robbery, deprivation of liberty and other offences - Effective sentence of 2 years' imprisonment - Offender aged 18 years - No prior convictions - Plea of guilty - Whether imprisonment should have been suspended
Legislation:
Nil
Result:
Application for leave to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J A Sutherland
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: McDonald & Sutherland
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Coal and Allied Operations v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
JTP v The State of Western Australia [2010] WASCA 191
Lovatt v The State of Western Australia [2004] WASCA 265
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Robinson v The State of Western Australia [2007] WASCA 45
Satonick v The State of Western Australia [2008] WASCA 145
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Wells [2005] WASCA 23
TL (a child) v The State of Western Australia [2005] WASCA 173
Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518
McLURE P: I agree with Newnes JA that the appeal should be dismissed. I propose to make some short additional comments.
As explained by the appellant's counsel at the hearing of the appeal, the express error relied on in ground 1 is that, after indicating that a sentence of imprisonment would be imposed, the sentencing judge failed to determine the length of each term before considering and determining whether to suspend (conditionally or otherwise) the terms. The appellant claimed this approach was inconsistent with what the High Court required in Dinsdale v The Queen (2000) 202 CLR 321. As I have explained elsewhere, Dinsdale does not in my view mandate the order in which relevant matters under s 6(4), s 39(3) and s 76 of the Sentencing Act 1995 (WA) are to be considered: Duong v The State of Western Australia [2006] WASCA 110 [12]. What is critical to the sentencing process is not the order in which relevant matters are considered but that all relevant matters are properly considered.
In any event, the order in which a sentencing judge informs an offender, in the offender's presence, of the conclusions he has reached says nothing about the order in which the sentencing judge gave reasoned consideration to relevant matters prior to the oral delivery of the reasons. In this case it is clear that the sentencing judge did not want to keep the appellant in undue suspense about the fate of the submission put on his behalf that the terms of imprisonment be suspended. It cannot be said that the sentencing judge had not considered the length of the individual sentences or the total effective sentence before considering whether or not to suspend. There is no merit in ground 1.
The appellant also claims the sentences were manifestly excessive in the type of sentence imposed, not the length of the term. It is said that the sentencing judge erred in failing to suspend the terms of imprisonment on conditions under pt 12 of the Sentencing Act.
In the course of an exchange between bench and bar at the hearing of the appeal, an issue of principle emerged. Senior counsel for the State contended that the appellant had the onus of demonstrating that the trial judge had erred in imposing a term of immediate imprisonment. That is, the appellant had to demonstrate that a term of immediate imprisonment for the offences was unreasonable or unjust (manifestly excessive). The State contends this approach is consistent with the preservation of the sentencing discretion unless it is infected by error, express or implied. That object would be undermined says the State if the appellant's only task was to demonstrate that the option of suspension (conditional or otherwise) was reasonably open in all the circumstances of the case.
The difference in the formulation of the relevant question will only be material, in the sense of potentially affecting the outcome, if different types of sentence (in this case immediate imprisonment and suspension) could both be reasonably open.
That issue needs to be addressed against the backdrop of the statutory framework. Under s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. It was common cause in this case that the only appropriate sentencing option was a term of imprisonment.
Section 39(2) of the Sentencing Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. The term 'appropriate' in its statutory context signifies the conclusion reached by the decision‑maker after the exercise of the sentencing discretion. The concept of a discretion is explained by the High Court in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said:
'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment [19].
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision‑maker has to be positively satisfied that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option.
A further issue of principle arising in the appeal is the consequence of a State concession before the sentencing judge as to the appropriate sentencing option. In this case counsel for the State, after identifying the different sentencing factors relevant to the co‑offender and the appellant said:
[W]e would submit that there is sufficient to justify a different sentence in relation to [the appellant], one that your Honour might properly suspend on conditions (ts 21).
A sentencing judge (and an appeal court) is not bound by concessions made by the Director of Public Prosecutions on behalf of the State: Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518 [100]. Indeed the sentencing judge is obliged to make an independent determination as to the appropriate sentence, having regard to all relevant sentencing considerations and the submissions made on behalf of the parties. Those submissions may inform, but cannot dictate, the sentencing judge's assessment and judgment as to the appropriate sentence.
I turn now to the decision under challenge. The courts do not ordinarily impose a term of immediate imprisonment on young or youthful offenders of prior good character without considerable pause and reflection. However, there are circumstances where the seriousness of the nature and circumstances of the offending require the ultimate penalty, even if the offenders are young children: JTP v The State of Western Australia [2010] WASCA 191; A Child v The State of Western Australia [2007] WASCA 285; TL (a child) v The State of Western Australia [2005] WASCA 173 [19]. Other circumstances where youthful offenders of prior good character will ordinarily receive the ultimate penalty is if the offence is prevalent among young people, as in drug trafficking: The State of Western Australia v Johnson [2010] WASCA 187 [25].
Ordinarily, a term of immediate imprisonment is imposed for the serious offences of burglary of a dwelling and armed robbery. The
seriousness of the circumstances and nature of the offending can in appropriate circumstances outweigh mitigatory factors personal to the offender. This is such a case. The circumstances of the appellant's offending are at the high end of the scale of seriousness of crimes of this nature. The level of actual and/or threatened violence was very high. The effect of the many mitigating facts is in my view appropriately reflected in the significant abridgement of the length of the sentences.
The appellant has not demonstrated that the sentencing judge erred in concluding that terms of immediate imprisonment were the appropriate sentencing options.
NEWNES JA: This is an appeal against a total effective sentence of 2 years' immediate imprisonment imposed on the appellant by Murray J on one count of deprivation of liberty, one count of aggravated burglary with intent in a dwelling, one count of aggravated armed robbery and one count of gaining a benefit by fraud. The appellant contends that his Honour erred in not suspending the sentence of imprisonment. On 25 June 2010, the appellant's application for leave to appeal was referred to the hearing of the appeal.
Background
On 30 November 2009, the appellant, then 18 years of age, and two other men, Munnee and Graham, travelled in the appellant's car to Dunsborough. Munnee and Graham were older than the appellant, being approximately 23 and 24 years of age respectively. On the way to Dunsborough, Munnee suggested that they go to the complainant's house in nearby Quindalup to recover a debt he said he was owed by the complainant. The appellant agreed to accompany Munnee and Graham. The appellant did not know the complainant.
At about 11.00 pm that night, the appellant, Munnee and Graham went to the complainant's house and Munnee knocked on the back door. When the complainant opened the door, the offenders pushed past him and walked into the house. The appellant and Graham were each carrying an iron bar approximately 60 cm in length which they had taken from the boot of the appellant's car.
Munnee abused the complainant and ordered him to sit on the couch. The complainant sat on the couch and the appellant stood near him, holding the iron bar. Munnee continued to shout abuse at the complainant. While holding a 15 cm long knife, Munnee approached the
complainant and threatened to slit his throat. Munnee then struck the complainant in the face.
The appellant told police that he could see the complainant was 'very scared'. He said he gave the complainant a beer and a cigarette to calm him down but the complainant was shaking so much he was unable to drink the beer.
At some stage, the appellant went into the kitchen and took a knife from among the kitchen utensils. The knife was a kitchen utility knife of approximately 10 cm in length. The appellant returned, holding the knife in front of him, to where the complainant was sitting.
The offenders removed a number of items of the complainant's property from the house including a 42 inch LG LCD television, a LG blu‑ray player, a Pioneer surround sound system with four tall free standing speakers, a Yamaha DVD player, an LG DVD recorder and three blu‑ray DVD disks.
On 1 December 2009, the appellant, Munnee, Graham and another man took some of the stolen property to a Cash Converters store. The fourth man signed a receipt declaring that he was the lawful owner of the property and received $330 in cash for it. The group used the money to purchase alcohol which was shared between them all. According to Munnee, some amphetamine was also purchased.
On 2 December 2009, the police executed a search warrant at the appellant's home and located part of the stolen property. The appellant was arrested and taken to Warwick police station where he admitted the offences.
The appellant and Munnee pleaded guilty and were sentenced together. Graham pleaded not guilty and was awaiting trial at the time of sentencing.
Sentencing remarks
The sentencing judge set out the circumstances of the offending. His Honour noted that the appellant had a 'lesser role' in the sense that it was not his idea to commit the offences, although he agreed to participate in them. His Honour observed, however, that the appellant did not at any stage withdraw from the commission of the offences, including the subsequent disposition of the stolen property. His Honour accepted that the appellant was intoxicated by alcohol and/or drugs at the time of the commission of the offences.
The sentencing judge considered that the offences called for a substantial sentence but observed that there were mitigating factors. His Honour noted the appellant's age, his lack of any prior criminal record, the early plea of guilty and the appellant's remorse. His Honour considered that the appellant had sound rehabilitation prospects.
His Honour then said:
I have had regard to all those matters and it seems to me that the outcome is clear, and I should say straightaway at this point, Mr Fogg, that I do not accept the submission which is put on your behalf that your case can be appropriate[ly] dealt with by a suspended sentence. I am afraid, in my view, despite those matters personal to you and the mitigation to which I have referred, it seems to me that your involvement in the offences and their seriousness is such that the only possible avenue of sentence open to me is a sentence of imprisonment to be immediately served, and that's what I propose to impose (ts 31).
His Honour said he would impose a term of imprisonment of 3 years for the armed robbery offence but would reduce that to 2 years for the appellant's agreement to cooperate with the authorities in prosecuting Graham.
His Honour sentenced the appellant as follows:
Count
Charge
Sentence
1
Deprivation of liberty
1 year concurrent with count 2
2
Aggravated burglary with intent in a dwelling
2 years
3
Aggravated armed robbery
2 years concurrent with count 2 (reduced from 3 years to reflect promised cooperation with authorities)
4
Gaining a benefit by fraud
3 months concurrent with count 2
The total effective sentence was 2 years' imprisonment, which was to commence from 8 April 2010. The appellant was made eligible for parole.
Grounds of appeal
It is unnecessary to set out the grounds of appeal. As elaborated in oral argument, the appellant appealed, in substance, on two grounds: first, the sentencing judge, having found that imprisonment was the only appropriate sentence, failed to give proper consideration to whether the sentences should be suspended in that he failed to determine the length of the term of imprisonment before considering whether it should be suspended (appeal ts 2 ‑ 3); and secondly, the sentencing judge erred in concluding that a suspended sentence of imprisonment was not an appropriate sentence and that the only appropriate sentence was one of immediate imprisonment (appeal ts 4).
Disposition of the appeal
Ground 1
This ground alleges express error. In my view, it has no merit.
In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J explained the two‑step approach to be taken in considering a suspended term of imprisonment:
The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise [79].
Kirby J pointed out that the second step requires the sentencing judge to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender [85]. See also Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246.
The contention of counsel for the appellant that the sentencing judge was required to determine the length of the term of imprisonment before turning to the question of whether the term should be suspended, seems to me, with respect, to be the triumph of form over substance. The requirements are not so prescriptive and a sentencing judge is not so circumscribed. What is essential is that the matters relevant to the sentencing process are properly considered and are properly explained in the sentencing remarks. How that is best done in a particular case may well vary depending upon the circumstances of the case: Duong [12].
In this case, the sentencing judge found that a term of imprisonment was warranted and immediately made it clear to the appellant that, contrary to the submission put by his counsel, it could not be suspended, before dealing with the length of the term. In my view, no error has been shown in the approach taken.
Ground 2
This ground relies on implied error. The appellant did not challenge any of the individual sentences but contended that the sentencing judge erred in not suspending the terms of imprisonment.
It is well‑established that an appellate court is not entitled to interfere with the decision of a sentencing judge merely because the appellate court would have exercised its discretion in a different manner. It may interfere only where it is shown that the sentencing judge has failed properly to exercise his or her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
In determining whether a sentencing judge's discretion has miscarried, some guidance may be obtained from considering sentences imposed in cases involving the same offence, but it is clear that in making such comparisons the significant variations in relevant sentencing factors must always be borne in mind and ultimately each case must depend upon its own facts.
As a general proposition, however, it can be said that sentences of immediate imprisonment are usually imposed in cases of armed robbery and a non‑custodial sentence is exceptional: Robinson vThe State of Western Australia [2007] WASCA 45 [21]. In The State of Western Australia v Wells [2005] WASCA 23 [4], Wheeler JA (with whom Steytler P and Roberts‑Smith JA agreed) said that the range of sentences commonly imposed for a single offence of armed robbery was from 4 ‑ 6 years. Her Honour observed that while the sentence would be reduced where there was a plea of guilty under the fast track system, and may be reduced for other mitigating factors, generally in cases of armed robbery greater weight is given to the requirements of deterrence and less to personal circumstances.
That is not, of course, to say that a suspended sentence would never be a proper disposition. Thus, in Lovatt v The State of Western Australia [2004] WASCA 265, the offender, who was 22 years of age, drove with an accomplice to a service station at night and waited until there were no customers present. The offender then entered the service station armed with a machete supplied to him by his accomplice. He displayed the machete to the service station attendant and demanded the cash in the cash register. He was given about $830. He left the service station and was driven away by his accomplice. A few days later the offender was apprehended and interviewed by police on video. He was cooperative and fully admitted what he had done. He told the police about the existence of the co‑offender, whom he named and against whom he offered to give evidence. The offender and his accomplice were drug addicts and the money from the robbery was to pay drug debts and to purchase drugs. The offender entered a fast track plea of guilty to a charge of armed robbery. While on bail he had undertaken a drug rehabilitation course which he undertook to the court to continue and he had saved the money necessary to make restitution to the service station. He had not previously committed any serious offence. A sentence of 2 years 8 months' immediate imprisonment was set aside on appeal and a suspended sentence imposed.
In Satonick vThe State of Western Australia [2008] WASCA 145, the offender, who was 20 years of age, entered a liquor store and placed several items on the counter and asked for a packet of cigarettes. When he received the cigarettes he told the attendant that he was not going to pay for the items and removed a knife hidden in his pants and placed it on the counter. He then placed the knife back in his pants and left the store with the items. He was apprehended the same day and admitted the offence. He pleaded guilty at the first opportunity. The offender had no relevant criminal record, he expressed remorse and sympathy for the complainant, the offence occurred under the pressure of emotional upset aggravated by alcohol, and the offender recognised prior to the offending that he had a problem with alcohol which he was undertaking steps to overcome, having commenced a treatment programme. In what was described by the court as a 'borderline case', a sentence of 18 months' immediate imprisonment was set aside on appeal and a suspended sentence imposed.
In the present case, the offending was very serious. The appellant entered the complainant's home, late at night, armed initially with an iron bar which he later supplemented with a knife and in company with two others who were also armed. The appellant stood guard over the complainant while his co‑offenders removed a good deal of valuable property. As was to be expected, the complainant was subjected to a terrifying ordeal, throughout which he feared for his safety.
There were, as the appellant's counsel stressed, significant mitigating circumstances. The appellant was 18 years of age at the time of the offences, he had no prior criminal record and he was remorseful. He cooperated with police and pleaded guilty at the first opportunity. And it was the case, as the sentencing judge found, that the appellant was not the initiator of the offences. There is nothing, however, to suggest that the appellant was overborne by his co‑offenders or that he had to be coaxed into taking part. When it was first suggested by Munnee in the car on the way to Dunsborough, the appellant willingly went along with it and after the offences had been committed at the complainant's home the appellant participated in the disposal of some of the goods the following day and he kept other goods at his house. On both occasions the appellant had time to withdraw from participation in the offences but did not do so.
Counsel for the appellant submitted that it was a relevant factor that the appellant was significantly younger than his co‑offenders, the suggestion being that he had participated in the offences because he was under their influence. It is by no means evident, however, that that was the case and the appellant's own description of his participation in the offences provides no support for it.
Counsel for the appellant further submitted that an important mitigating factor was the appellant's agreement to give evidence against his co‑offender Graham. The sentencing judge, however, made proper allowance for that in reducing the sentence for the offence of armed robbery from 3 years to 2 years.
The appellant's age and his lack of any prior criminal record, in particular, are substantial factors in his favour. Nevertheless, the offending in this case was so serious that, notwithstanding the appellant's youth and the other mitigating circumstances, I am not persuaded that his Honour erred in finding that a suspended sentence was not an
appropriate option. In my opinion, an effective sentence of 2 years' immediate imprisonment was within the appropriate range of sentences for these offences.
Conclusion
I would allow the application for leave to appeal but dismiss the appeal.
MAZZA J: I agree with McLure P.
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