Forkin v The State of Western Australia
[2013] WASCA 51
FORKIN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 51 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:56/2012 | 23 NOVEMBER 2012 & 1 FEBRUARY 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 26/02/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | LEROY PATRICK FORKIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Armed robbery Stealing Totality Turns on own facts Criminal law Appeal against sentence Early plea of guilty Sentencing Act 1995 (WA), s 9AA |
Legislation: | Sentencing Act 1995 (WA), s 8(2), s 9AA, s 150A(2) Sentencing Amendment Act 2012(WA), s 6 |
Case References: | Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Drury v The State of Western Australia [2010] WASCA 220 Giglia v The State of Western Australia [2010] WASCA 9 Nannup v The State of Western Australia [2011] WASCA 257 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Drew [2012] WASCA 86 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FORKIN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 51 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File No : INS 222 of 2011
Catchwords:
Criminal law - Appeal against sentence - Armed robbery - Stealing - Totality - Turns on own facts
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Criminal law - Appeal against sentence - Early plea of guilty - Sentencing Act 1995 (WA), s 9AA
Legislation:
Sentencing Act 1995 (WA), s 8(2), s 9AA, s 150A(2)
Sentencing Amendment Act 2012(WA), s 6
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr P D Yovich
Respondent : Mr J A Scholz & Ms S H Linton
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Drury v The State of Western Australia [2010] WASCA 220
Giglia v The State of Western Australia [2010] WASCA 9
Nannup v The State of Western Australia [2011] WASCA 257
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Drew [2012] WASCA 86
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1 McLURE P: This is an appeal against sentence. The appellant was convicted on his fast-track pleas of guilty of two counts of armed robbery and three counts of stealing, all committed on 2 October 2011 (the appeal offences).
2 The appeal offences were committed six days before the expiration of a conditionally suspended term of imprisonment imposed on the appellant on 8 April 2010 in the District Court by Scott DCJ following his conviction after trial of aggravated robbery.
3 On 1 March 2012 the appellant was sentenced by EM Heenan J to 4 years' imprisonment on each count of armed robbery (counts 1 and 4), 4 months' imprisonment on each count of stealing (counts 2, 3 and 5) and 6 months' imprisonment for the aggravated robbery the subject of the conditionally suspended term of imprisonment. The sentencing judge ordered that the terms of imprisonment for stealing (counts 2, 3 and 5) be served concurrently with the sentence on count 1 and that the first 2 years of the 4-year sentence on count 4 be served concurrently, resulting in a total sentence of 6 years' imprisonment. He also ordered that the term of 6 months' imprisonment for the aggravated robbery be served cumulatively, bringing the total sentence to 6 years and 6 months' imprisonment.
4 The sole ground of appeal is that the total sentence breaches the first limb of the totality principle.
5 The facts of the offending were as follows. Just after midnight on 2 October 2011 the appellant approached a driver of a vehicle, produced a knife and ordered the driver out of the car. The young male driver and his female passenger got out of the car. The appellant got into the car and drove off at speed onto the main road (count 1).
6 Later that morning at about 10.45 am the appellant stole a large kitchen knife from a supermarket by concealing it down his pants (count 2). The appellant approached a male in a stationary car in a nearby car park and asked for a lift to Kinross but was refused. The appellant then asked to use the driver's mobile phone and walked off with it (count 3). The appellant returned to the vehicle, produced the large kitchen knife and told the driver to get out of the car. The driver did so. The appellant got into the car and drove off (count 4).
7 Later the same day, the appellant was at another shopping centre car park at Quinns Rock where he was being spoken to by police in connection with the above offences. A man complained to police that his
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- car had been broken into and his Navman GPS and mobile phone had been stolen. The police located the GPS device on the appellant (count 5).
8 The vehicle stolen from the victim of the count 1 offence was later discovered crashed and abandoned in Joondalup. It was significantly damaged. The vehicle stolen from the victim of the count 4 offence was also damaged.
9 The facts of the aggravated robbery for which the appellant was sentenced to a conditionally suspended term of imprisonment were that he, together with a co-offender, entered a service station with the intention of stealing property. The service station attendant asked if he could check the co-offender's bag. The appellant refused and then held a clenched fist up to the attendant's face and said, 'Don't try and be fucking smart. You might get killed. We will be on the look out for you'. The appellant and his co-offender then left the store.
10 The appellant committed the appeal offences when he was almost 24 years of age. He has a deprived and dysfunctional background. From the age of 14 the appellant suffered from depression and anxiety and had been on medication since that age. He also commenced abusing prohibited drugs at an early age, having been introduced to them by his mother. In November 2008, shortly before the appellant committed the aggravated robbery offence, one of the appellant's older brothers died from a heroin overdose. In December 2010, 10 months before the commission of the appeal offences, the appellant's other older brother committed suicide. Unsurprisingly, the two events had a significant impact on the appellant.
11 Immediately before the appellant committed the appeal offences, he was living with his girlfriend in a very disrupted and dysfunctional lifestyle. In the days leading up to the offending they had been living together in a car and had been taking drugs. On the day before the offending, the appellant argued with his girlfriend and he was evicted from the car. He then decided to walk to his father's house in Quinns Rock. The appellant was at this time suicidal. When he reached his father's house the appellant's pleas for help were rejected. This led to the appellant deciding to take his own life. The prosecution accepted that the appellant's motive in stealing the cars the subject of the offences was to commit suicide. The sentencing judge concluded that 'the suicidal component of [the appellant's] mental processes at the time when these two cars were hijacked' was a mitigating factor [32].
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12 The appellant had a prior record of convictions that spanned just over three pages. The record included multiple driving-related offences and stealing offences. The most serious prior offence was the aggravated robbery for which he was re-sentenced by the sentencing judge. Prior to the commission of the appeal offences, the appellant had never been sentenced to a term of immediate imprisonment. Although his prior record is significant for sentencing purposes, it falls well short of being 'formidable', a description used by the sentencing judge [13].
13 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
14 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: Roffey [26]. The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle: Giglia v The State of Western Australia [2010] WASCA 9 [40].
15 The range of sentences commonly imposed for a single offence of armed robbery, excluding matters of mitigation, is 4 - 6 years' imprisonment: Drury v The State of Western Australia [2010] WASCA 220 [22]; Nannup v The State of Western Australia [2011] WASCA 257 [72]; The State of Western Australia v Drew [2012] WASCA 86 [41].
16 The objective circumstances of the offences of armed robbery committed by the appellant are not at the high end of the scale of seriousness when regard is had to comparable cases. Moreover, the appellant's prior record did not disclose any propensity to commit offences involving the use of a weapon or actual violence. In addition, there were significant mitigating factors, including the appellant's fast-track pleas of guilty, relative youth, deprived and dysfunctional background and suicidal mind frame when he offended. Against that background, the sentence of 4 years' imprisonment for each offence of armed robbery is properly characterised as very severe. Having regard to all these matters, and bearing in mind that this was the first occasion on which the appellant had been sentenced to a term of immediate imprisonment, I am satisfied that an aggregate sentence of 6 years 6 months was more than is fairly necessary to achieve all of the
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- recognised sentencing objectives, including punishment, retribution and deterrence. Thus, the total sentence imposed by the sentencing judge infringes the first limb of the totality principle, thereby enlivening this court's power to set aside the individual and total sentences.
Section 9AA of the Sentencing Act 1995 (WA)
17 Section 9AA of the Sentencing Act 1995 (WA) (the Act) was inserted by the Sentencing Amendment Act 2012 (WA) (the 2012 Amendment) and came into operation on 20 December 2012. Section 9AA provides:
(1) In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
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18 Section 150A(2) of the Act (inserted by s 6 of the 2012 Amendment) provides:
This Act, as amended by the Sentencing Amendment Act 2012, applies to the sentencing after commencement of an offender for an offence -
(a) even if the offence was committed before commencement; and
(b) even if the offender was convicted before commencement; and
(c) even if the sentencing is as a result of an appeal against a sentence imposed before commencement.
19 As this appeal was argued prior to the commencement of s 9AA, it was necessary to seek submissions from the parties relating to its scope and effect. A further hearing was held on 1 February 2013. The parties accepted, correctly in my view, that this court must apply s 9AA when resentencing an offender under s 31(5)(a) of the Criminal Appeals Act 2004 (WA).
20 The insertion of s 9AA was accompanied by the deletion of s 8(2) of the Act which provided that 'the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation'. These amendments to the Act involve a very significant departure from the previous legislative scheme as interpreted by the High Court majority in Cameron v The Queen (2002) 209 CLR 339.
21 The parties were in agreement on most matters pertaining to the proper construction of s 9AA. In particular, there was agreement on the following matters:
(1) where there is to be a reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons;
(2) any discount for a plea of guilty must be to the head sentence (that is, before the head sentence is discounted for any other mitigating factors);
(3) the matters specified in subs (2) ('to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea') exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. Remorse and
- the other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron), are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty;
- (4) however, remorse and the other subjective considerations referred to in (3) may be taken into account under s 9AA(6);
(5) s 9AA does not require the sentencing judge to state the extent of the reduction, individual or cumulative, given for mitigating factors other than the plea of guilty.
22 The only area of disagreement between the parties was whether remorse can be a 'stand alone' mitigating factor for the purpose of s 9AA(6). The appellant submits that it can. The respondent submits that remorse (if established) can only be a mitigating factor if it informs or affects an assessment of one or more of the accepted sentencing objectives, in particular rehabilitation or personal deterrence. The debate involves a distinction without any significant practical difference. The well-known sentencing objectives provide the yardstick for determining the relevance of, and weight to be given to, a particular sentencing factor.
23 The full ramifications of what the legislature has done by the enactment of s 9AA need not (and should not) be determined by this court in effect at first instance. The agreed positions of both parties on the proper construction and effect of s 9AA are clearly open and should be accepted.
Resentencing
24 This court has the necessary materials to re-sentence the appellant. It was conceded by the respondent that the appellant pleaded guilty at the first reasonable opportunity for the purposes of s 9AA(4)(b).
25 I would set aside the sentence of 4 years' imprisonment imposed on each count of armed robbery and in lieu thereof impose a sentence of 3 years' imprisonment. I would impose the same sentences as the sentencing judge for the other offences. The head sentence for each appeal offence has been reduced under s 9AA(2) for the plea of guilty to the extent of 25%. The appellant did not plead guilty to the aggravated robbery offence. I would impose a total sentence of 3 years 6 months' imprisonment by ordering that the sentence of 6 months' imprisonment for the aggravated robbery be served cumulatively on the sentence of 3 years
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- on count 1, with the remaining sentences to be served concurrently. The appellant should remain eligible for parole. The total effective sentence should be taken to have taken effect on 2 October 2011.
26 For those reasons, I would set aside the sentences imposed on counts 1 and 4 and the orders for cumulation and concurrence. In lieu thereof I would impose a sentence of 3 years' imprisonment on each of counts 1 and 4, order that the term of 6 months' imprisonment for the aggravated robbery be served cumulatively on the sentence for count 1, with the remaining sentences to be served concurrently, resulting in a total effective sentence of 3 years 6 months' imprisonment. The appellant will be eligible for release on parole after serving 21 months' imprisonment.
27 BUSS JA: I agree with the orders proposed by McLure P. Subject to one qualification, I agree with her Honour's reasons. The qualification is that the agreed positions of both parties on the proper construction and effect of s 9AA of the Sentencing Act 1995 (WA) are clearly open, and should be accepted for the purposes of resentencing the appellant in the present case.
28 MAZZA JA: I agree with McLure P.
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