Fredericks v The State of Western Australia - [2011] WASCA 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FREDERICKS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 270

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 4 NOVEMBER 2011

DELIVERED : 23 DECEMBER 2011

FILE NO/S: CACR 66 of 2011

BETWEEN: JEREMY STEPHEN FREDERICKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- FREDERICKS [2011] WASCSR 39
File No  :INS 153 of 2010

Catchwords:

Criminal law - Appeal against sentence - Totality - Relevance of individual sentences - Turns on own facts

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal allowed
Order for cumulation set aside
Order that sentence of 3 years' imprisonment for aggravated armed robbery be served concurrently with all other sentences

Category: B

Representation:

Counsel:

Appellant: Ms H Prince
Respondent: Ms S Linton

Solicitors:

Appellant: Morris Criminal Law
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Giglia v The State of Western Australia [2010] WASCA 9
McKey v The State of Western Australia [2010] WASCA 210
Medlen v The State of Western Australia [2011] WASCA 91
Robinson v The State of Western Australia [2007] WASCA 45
Roffey v The State of Western Australia [2007] WASCA 246

McLURE P: This is an appeal against sentence. The appellant was convicted on his fast‑track plea of guilty of one count of aggravated armed robbery. On 6 April 2011, he was sentenced by Murray J to a term of 3 years' imprisonment for that offence.
The appellant's conviction for the offence of aggravated armed robbery resulted in him breaching a community based order imposed on him in the Magistrates Court on 13 May 2010 for the offences of burglary, stealing, obstructing a police officer, trespass (2) and breach of bail. He was resentenced by Murray J to 1 year's imprisonment for each of the burglary and stealing offences and 3 months' imprisonment for each of the other offences.
Murray J ordered that the sentence of 1 year's imprisonment for the burglary be served cumulatively with the sentence of 3 years' imprisonment for the aggravated armed robbery. All the other sentences were ordered to be served concurrently, resulting in a total effective sentence of 4 years' imprisonment.
Although the first ground of appeal is in terms that the sentence is manifestly excessive, it is apparent from the written and oral submissions that the actual basis for the appellant's challenge is that the total sentence of 4 years' imprisonment breaches the first limb of the totality principle. Leave to appeal was given on this ground. The appellant also contends the sentencing judge erred in failing to take into account the appellant's indication to the victim during the course of the robbery that he would not hurt him. The application for leave to appeal on this ground was referred to the hearing of the appeal.
The facts of the appellant's offending are as follows. At about 4.25 am on 27 July 2010 a service station attendant, who was working alone at the time, let the appellant and his three co‑offenders into the service station premises. All were wearing sunglasses and hooded jumpers in an attempt to prevent identification. Two of the appellant's co‑offenders were armed, one with a bottle and the other with a syringe. The syringe had been partly filled with a red coloured liquid to create the impression that it was blood. The appellant was armed with scissors. One of the co‑offenders remained at the door and acted as a lookout while the co‑offenders armed with the bottle and syringe approached the counter. They threatened the attendant with violence and demanded cash and cigarettes. Fearing for his safety, the attendant handed the men a small quantity of cash. The appellant joined his co‑offenders at the counter. He threatened the attendant with scissors in order to gain access to the area behind the counter where he stole cigarettes and cigarette filters. All of the offenders then entered the rear office and stole personal items belonging to the attendant before fleeing on foot. Following a police forensic examination of the service station, the appellant was arrested. He made full admissions.
The facts of the offences the subject of the community based order are as follows. At about 4.30am on 19 February 2010, the appellant gained entry to a restaurant in Mount Lawley by smashing the front window. He removed a quantity of liquor and left the premises. He was located by police a short distance away, arrested and made full admissions.
The obstructing a police officer and trespass offences occurred on 1 February 2010 when the appellant ran from police in an attempt to evade them. The police gave chase. In the course of the chase, the appellant entered two private properties. He was located by police and arrested at the second property.
The appellant was admitted to bail for the burglary and stealing offences. He was required to appear in the Magistrates Court on 4 March 2010. He failed to appear and a warrant was issued for his arrest.
The appellant was aged 18 when he committed the armed robbery. Notwithstanding his youth, he has an entrenched alcohol and substance abuse problem. He also has an extensive record as a juvenile, including numerous convictions for property related offences (including stealing, receiving and unlawful/criminal damage). Notwithstanding the frequency of his prior offending, the only period of detention he had served was 3 months for 11 counts of breaching a youth conditional release order.
The sentencing judge accepted that the appellant had genuine remorse. He entered a fast‑track plea of guilty, wrote a letter to the victim apologising for his offending and the impact it had on him and offered to engage in victim mediation.
The sentencing judge had before him a psychological report and a psychiatric report. The psychological report states:
[The appellant] admitted having limited regard to community based orders, commenting that he resents the structure of orders and the requirement to attend for supervision. However, he also candidly admitted that due to his juvenile experience of breaching orders with few perceived and/or actual consequences he had little regard for his most recent order.
The appellant was under the influence of amphetamines at the time of the armed robbery. He had previously participated in drug treatment and counselling programmes but had relapsed. Based on the appellant's admissions, the psychologist concluded that it was highly likely he would continue to use various illicit drugs for the foreseeable future.
The psychiatrist was of the opinion that the appellant's lengthy history of alcohol and substance abuse appeared to have had a major impact on his level of function and development. He concluded that the appellant fulfils the diagnostic criteria for both an antisocial personality disorder and a borderline personality disorder. He also had a history of intermittent depressive symptoms. The psychiatrist concluded that the combination of severe substance abuse, major personality pathology and the appellant's general attitude towards offending suggested a significant risk of further violence.
This court can only intervene if the sentencing judge made an express or implied material error of fact or law in sentencing the appellant. I will deal with ground 2 first.

Ground 2

I would refuse leave to appeal on this ground. It is the case that the sentencing judge made no express reference in his sentencing remarks to the appellant's claim that during the armed robbery he told the attendant 'I won't hurt you, man. Can you open that lock?', referring to the locked cigarette cabinet. Failure to expressly refer to a matter falls short of establishing that the sentencing judge failed to take it into account: McKey v The State of Western Australia [2010] WASCA 210 [5]. Moreover, even if the appellant established a failure to take the matter into account, it would have no material impact on the sentencing judge's assessment of the seriousness of the offence. Although the circumstances of the offence fall well short of being in the worst category, they are serious. The attendant was confronted in the early hours of the morning by four offenders, three of whom were armed, who threatened him with violence in order to steal property from the service station and himself. The impact on the victim was substantial. He was a foreign student who was so traumatised by the incident that he had to reduce his course load which will extend the time required to obtain his engineering qualification. This ground has no reasonable prospect of success.

Ground 1

The appellant contends the sentencing judge erred in failing to conditionally suspend the term of imprisonment; alternatively, that the length of the total sentence of 4 years offends the first limb of the totality principle.
The relevant sentencing principles governing the suspension, conditional or otherwise, of a term of imprisonment have been canvassed in detail by this court: Fogg v The State of Western Australia [2011] WASCA 11; Collins v The State of Western Australia [2007] WASCA 108 [9] ‑ [17], [21]. The statutory scheme in the Sentencing Act 1995 (WA) requires the court to be positively satisfied that the option of suspending the term of imprisonment is not appropriate before it can impose a term of immediate imprisonment. The same considerations relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term, with or without conditions: Dinsdale v The Queen (2000) 202 CLR 321.
Ordinarily, a term of immediate imprisonment is the only appropriate sentencing option for armed robbery, the maximum penalty for which is life imprisonment. See Fogg [14]; Medlen v The State of Western Australia [2011] WASCA 91 [14]; Robinson v The State of Western Australia [2007] WASCA 45 [21].
In those rare cases where a term of immediate imprisonment is not imposed, the offenders are likely to be youthful first offenders. The appellant is young but has had very frequent contact with the criminal justice system from the age of 16. He is at significant risk of further offending. Moreover, based on his dismissive attitude to past sentencing dispositions, the sentencing objectives of personal deterrence and rehabilitation are highly unlikely to be achieved by anything other than a term of immediate imprisonment. The appellant's claim that the sentencing judge ought to have imposed a non‑custodial sentence is without merit.
I turn now to the length of the total sentence. A total sentence will offend the first limb of the totality principle if it is disproportionate 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 appellant personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

The sentence of 3 years' imprisonment for the offence of aggravated armed robbery is at the very high end of the sentencing range for a young man who had entered a fast‑track plea of guilty, was genuinely remorseful and who had not previously committed an offence of such a nature as to itself require the imposition of a term of immediate imprisonment. The only time the appellant had spent in detention was as a result of breaching a youth conditional release order.
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: Giglia v The State of Western Australia [2010] WASCA 9. Owen JA said in that case:
[G]enerally 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 [40].
In my view, the total sentence of 4 years is excessive; it is more than is fairly necessary to achieve all of the recognised sentencing objectives including punishment, retribution and deterrence. Giving due weight to the mitigating factors, in particular the appellant's youth but also his fast‑track plea of guilty and genuine remorse, I would order that the term of imprisonment of 3 years for the offence of aggravated armed robbery be served concurrently with all the other sentences imposed by Murray J, producing a total sentence of 3 years' imprisonment.
Thus, I would allow the appeal, set aside the order for cumulation and in lieu thereof order that the sentence of 3 years' imprisonment for the offence of aggravated armed robbery be served concurrently with the sentences for all the other offences. The appellant will be eligible for parole after serving 18 months' imprisonment.
BUSS JA: I agree with the orders proposed by McLure P generally for the reasons she gives.
MAZZA JA: I agree with McLure P.