Gittos v The State of Western Australia
[2016] WASCA 7
•13 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GITTOS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 7
CORAM: NEWNES JA
MAZZA JA
HEARD: 17 DECEMBER 2015
DELIVERED : 13 JANUARY 2016
FILE NO/S: CACR 143 of 2015
BETWEEN: RAYMOND GEORGE GITTOS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
File No :INS 328 of 2014
Catchwords:
One count of aggravated armed robbery - One count of aggravated armed assault with intent to rob - Pleas of guilty - Complainant threatened with shotgun - Threats to kill - Five further offences on s 32 notice - Total effective term of 5 years' imprisonment - Whether infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 392(c), s 392(d), s 393(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr A G Elliott
Respondent: No appearance
Solicitors:
Applicant: Barber Legal
Respondent: No appearance
Case(s) referred to in judgment(s):
Giglia v The State of Western Australia [2010] WASCA 9
Roffey v The State of Western Australia [2007] WASCA 246
NEWNES JA: This is an application for leave to appeal against sentence.
The appellant was convicted in the Supreme Court after his pleas of guilty of one count of aggravated armed robbery, contrary to s 392(c) and (d) of the Criminal Code (WA) (count 1), and one count of aggravated armed assault with intent to rob, contrary to s 393(1) the Criminal Code (count 2). He was also convicted on his pleas of guilty of a further five offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). On 6 July 2015 Simmonds J imposed a total effective term of 5 years' immediate imprisonment with eligibility for parole.
The appellant contends, in substance, that the total effective sentence breached the first limb of the totality principle.
Background
Count 1: aggravated armed robbery
At approximately 11.00 pm on 21 June 2014, the appellant was the front seat passenger in a Toyota Prado which drove up to and parked outside a house in Merriwa. The complainant (the first complainant), who was assisting a friend move house, approached the open front passenger window and spoke to the appellant. The appellant demanded $150 from the first complainant, who stated that he did not have any money.
The appellant asked the first complainant to step back from the vehicle. The appellant then pointed a double‑barrelled shotgun at the first complainant through the open window. The end of the shotgun barrels were approximately half an inch away from the first complainant's chest. The appellant demanded that the first complainant empty his pockets and place all of his property in the vehicle on the front passenger foot‑well. No finding was made as to whether the shotgun was loaded.
The first complainant placed a number of personal belongings he had on him, including a mobile phone, a Commonwealth Bank credit card, a Commonwealth Bank key card and a firearm application letter addressed to the first complainant, on the front passenger foot‑well of the vehicle. The appellant then stated, 'Bring the $150 in cash to [a stated address] within the hour, or I'll blow your fucking head off'. The Toyota Prado then drove away.
Count 2: aggravated assault with intent to rob
At approximately 11.40 pm the same day, the appellant was at a house in Ridgewood, in company with another person. The Toyota Prado was parked outside the house. The first complainant, with two others, MA and MI, drove to the house and parked on the verge. The first complainant and MA got out of their vehicle and the first complainant handed $100 to MA to give to the appellant.
MA entered the house and the first complainant turned and began walking back to the vehicle. The appellant and another man walked out of the front door of the house. The appellant walked over to the Toyota Prado and retrieved from it the shotgun he had produced earlier that evening. The appellant aimed the shotgun at the first complainant from a distance of about 5 m.
The appellant then approached the first complainant and pressed the barrels of the shotgun against the first complainant's head. The appellant demanded the PIN for the mobile telephone that the first complainant had given up in the earlier incident and an additional $300 from the first complainant. He said to the first complainant words to the effect: 'I will blow your head off. I will hunt you down if you don't come back with the money. Now, get back in the car and fuck off'.
The first complainant got back into the car with MI, and the pair left the area and reported the incidents to police. The appellant was subsequently arrested and found to be in possession of the items of property the first complainant had placed in the Toyota Prado on 21 June 2014.
The s 32 offences
The first three of these offences arose out of, essentially, the one incident at the house at which the appellant resided with the second complainant, the mother of the appellant's 10‑month‑old son.
Criminal damage: Criminal Code, s 444(1)(b)
On 24 February 2014, the appellant was at a next door neighbour's house after an argument with the second complainant regarding the care of the 10‑month‑old child. The appellant became agitated, returned to the second complainant's house and, finding the door locked, began kicking and smashing the garage door in an attempt to gain entry to confront the second complainant. Due to his actions, the garage door was damaged to the point where it would not function properly and needed to be repaired at a cost of $2,500.
Aggravated assault: Criminal Code, s 313(1)(a)
The appellant then entered the house through a window and confronted the second complainant's mother in the hallway before punching and kicking her a number of times. While this was occurring, the second complainant entered the hallway, carrying her 10‑month‑old son, and attempted to intervene.
Aggravated assault causing bodily harm: Criminal Code, s 317(1)(a)
The appellant then punched the second complainant once in the face with his fist, causing severe swelling of her left eye. The second complainant was still carrying her 10‑month‑old son at the time.
Driving a motor vehicle with number plates not issued for the vehicle: Road Traffic Act 1974 (WA), s 97(2)(f)(iii)
On 27 June 2014, the appellant drove a Toyota sedan to a house in Embleton at which police happened to be in attendance. Enquiries revealed that the number plates on the vehicle were not number plates issued for that vehicle. The appellant told police that he had a friend put number plates on the vehicle as it was unregistered and he wanted to drive to the shops.
Possession of drug paraphernalia containing methylamphetamine: Misuse of Drugs Act 1981 (WA), s 7B(6)
Police conducted a search of the vehicle and located a glass pipe containing traces of methylamphetamine on a small shelf below the steering wheel.
The sentencing remarks
The sentencing judge noted that the appellant was 29 years of age at the time of the offending. He had experienced a dysfunctional childhood, said to have been characterised by domestic violence perpetrated by his father on both the appellant and his mother. The appellant left school at the age of 14 and worked riding racehorses until, at 18 years of age, he gained employment as a bricklayer. He had been employed almost continuously in that trade since that time. The appellant has three children with whom he does not have contact and had recently entered into a new relationship with a woman who was supportive of him.
The appellant had been diagnosed with ADHD as a child and had taken medication for that until commencing horse racing. The sentencing judge noted that the appellant had reported to the author of a psychological report that he had commenced using cannabis at 13 years of age, ecstasy at 16 years of age and methylamphetamine and alcohol at 18 years of age. Despite a number of attempts to cease its use, the appellant reported that he had continued to use methylamphetamine.
It was noted by the sentencing judge that the appellant had been convicted of assault in 2010 and aggravated assault in 2011, and had convictions for stealing, wilful damage, possession of illicit drugs and utensils, possession of methylamphetamine with intent to sell or supply, possession of a weapon, breach of a violence restraining order, breach of community‑based orders, and traffic offences. In August 2005, the appellant had been sentenced to a suspended term of imprisonment of 20 months for possession of methylamphetamine with intent to sell or supply.
The sentencing judge referred to a statement in the psychological report that the appellant appeared to have accepted responsibility for the indictable offences, having explained them as attempts to gain a refund from a drug dealer in respect of drugs which the appellant had considered to be of poor quality. His Honour noted that the psychologist had observed, however, that the appellant exhibited a number of factors known to correlate with increased risk of reoffending, namely, prior violent offending, relationship instability, substance abuse and mental health issues, against a background of early maladjustment. The psychologist had also reported that the appellant had cognitive limitations which would affect his decision‑making and impulse control, and that he lacked insight into his offending.
The sentencing judge accepted that the appellant had exhibited some indicators which reflected positively upon his rehabilitation, including recognition of problems of anger control and substance abuse. However, his Honour also considered that there were what he described as 'significant qualifications' on the appellant's prospects of rehabilitation.
In mitigation, the sentencing judge took into account the appellant's pleas of guilty; his dysfunctional childhood; his qualified acceptance of responsibility and his qualified remorse for the indictable offences; and his qualified prospects of rehabilitation.
For the appellant's pleas of guilty, his Honour reduced the sentences, pursuant to s 9AA of the Sentencing Act, by 10% for the indictable offences and 15% for the s 32 offences. He imposed the following sentences:
1.aggravated armed robbery: 4 years' imprisonment;
2.aggravated assault with intent to rob: 3 years 6 months' imprisonment;
4.criminal damage: 8 months' imprisonment;
5.aggravated assault: 6 months' imprisonment;
6.aggravated assault causing bodily harm: 10 months' imprisonment;
7.driving a vehicle with a false number plate: fine of $200; and
8.possession of drug paraphernalia: 2 months' imprisonment.
The sentencing judge ordered that the appellant serve the first 6 months of the sentence for the first indictable offence and then the balance of that term concurrently with the sentence on the second indictable offence. The first three sentences on the s 32 offences were ordered to be served concurrently with each other and the sentence on the last s 32 offence (possession of drug paraphernalia) was ordered to be served cumulatively with those sentences. All the s 32 sentences were ordered to be served cumulatively with those on the indictable offences, making a total effective term of 5 years' imprisonment for all of the offences. The appellant was made eligible for parole.
The grounds of appeal
The appellant relies on the following grounds of appeal:
1.The learned sentencing judge erred in imposing a wholly cumulative twelve-month term in respect of the offences the subject of the notice under s 32 of the Sentencing Act insofar as the total term of imprisonment was excessive and breached the [first limb of the] totality principle; and
2.The overall sentence which was imposed is manifestly excessive such that a different sentence should have been imposed.
The disposition of the application
In his written submissions, the appellant disavowed any challenge to any of the individual sentences. The contentions advanced by the appellant were, first, that the sentencing judge had infringed the first limb of the totality principle in making the sentence for the offence of possession of drug paraphernalia cumulative on the sentences for the other s 32 offences, and, secondly, that while some cumulation of the sentences on the s 32 offences and the sentences on the indictable offences was justified, the total effective sentence of 5 years' imprisonment was manifestly excessive.
On the hearing of the application, however, counsel for the appellant put the case rather differently. He submitted that the sentence of 2 months' imprisonment for the offence of possession of drug paraphernalia was manifestly excessive, a fine or suspended term of imprisonment being appropriate, and that the imposition of that sentence had led to the total effective sentence infringing the first limb of the totality principle. Counsel submitted that had the sentencing judge not erred in imposing the sentence of 2 months' imprisonment, a proper exercise of his discretion in the cumulation of the sentences on the s 32 offences and the sentences on the indictable offences would have resulted in a total effective sentence of 4 years and 6 months.
With all due respect, I simply do not follow that process of reasoning, not least the arithmetic which underlies it. In any event, the appellant's contention is misconceived. On an appeal of this nature, the issue is whether the total effective sentence offended the totality principle, not whether one or more of the individual sentences were excessive. As Owen JA pointed out in Giglia v The State of Western Australia [2010] WASCA 9:
There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive [40].
The real question raised by this appeal is whether the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle. That is, whether the total effective sentence bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
The contention that the total effective sentence breached the totality principle has no reasonable prospect of succeeding. Both indictable offences carried a maximum penalty of life imprisonment. Each involved, as the sentencing judge observed, an apparent element of premeditation and planning, albeit of a simple kind. They were calculated to force the first complainant to pay to the appellant money he considered he was owed from a drug transaction. Both involved the use of a firearm which was not simply brandished by the appellant but, in relation to the first count, pointed at the first complainant's chest at very close range and, in relation to the second count, pointed at the first complainant and then the barrels were pressed against the first complainant's head. Each act was accompanied by what was, in effect, a threat to kill. It would undoubtedly have been a terrifying experience for the first complainant, exacerbated no doubt by the fear that if the weapon was loaded it might accidently discharge with what would almost inevitably be fatal consequences. The fact that a firearm was used, and the manner in which it was used, make these offences particularly serious.
The appellant's acceptance of responsibility and remorse for these offences were, as the sentencing judge remarked, qualified, and consistent with the psychologist's observation that the appellant shows little insight into his offending.
The offences at the second complainant's house were also serious offences. Again, these offences were not the result of a momentary aberration. Having found the door of the house locked, the appellant caused substantial damage to the garage door in an unsuccessful endeavour to gain entry to the house before gaining entry through a window, following which he repeatedly assaulted the second complainant's mother, in the presence of the second complainant and the 10‑month‑old child, and then assaulted the second complainant, with whom he was in a family and domestic relationship, again in the presence of the child. Given the nature of the assaults, it is only a matter of good fortune that the victims did not suffer more serious injuries.
In relation to these offences, there appears on the part of the appellant to have been no acceptance of responsibility, remorse or insight, apart from the pleas of guilty and the appellant's understanding of his anger management problem.
Apart from the appellant's pleas of guilty (for which a discount was given) and his dysfunctional childhood, there was not a great deal by way of mitigation for any of the offences for which he was sentenced. It is
also apparent that there is cause for concern about the appellant's prospects of rehabilitation and that without substantial change on the appellant's part there is a real risk that he will reoffend. His previous criminal record indicates that he has hitherto had little regard for the law.
I have had regard to a number of cases involving offences of the present kind. It is unnecessary to canvass those cases. None of them assists the appellant. On the contrary, a consideration of those cases confirms that, having regard to the circumstances and overall criminality involved in all of the offences and the circumstances personal to the appellant, the grounds of appeal in this case have no reasonable prospect of succeeding.
I would dismiss the application for leave to appeal, with the result that the appeal is taken to have been dismissed.
MAZZA JA: I agree with Newnes JA.
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