Greeney v The State of Western Australia

[2020] WASCA 135

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   GREENEY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 135

CORAM:   BUSS P

MITCHELL JA

HEARD:   19 AUGUST 2020

DELIVERED          :   4 SEPTEMBER 2020

FILE NO/S:   CACR 50 of 2020

BETWEEN:   CRAIG ROBERT GREENEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BURROWS DCJ

File Number            :   BUN IND 99 of 2019

Catchwords:

Criminal law - Sentencing - Whether total effective sentence of 6 years 6 months' imprisonment for armed robbery and various other offences infringes the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 68, s 371A, s 378, s 392, s 409(1)(c), s 444(1)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Kabambi v The State of Western Australia [2019] WASCA 44

Roffey v The State of Western Australia [2007] WASCA 246

JUDGMENT OF THE COURT:

Summary

1. The appellant was convicted, on his pleas of guilty, of 16 offences committed between 11 pm on Sunday 10 March 2019 and 4 pm on Monday 11 March 2019.  He was sentenced to a total effective sentence of 6 years 6 months' immediate imprisonment, comprised of the following individual sentences:

Count	Offence	Maximum penalty	Sentence	Cumulative / concurrent
1	Criminal damage (s 444(1)(b) of the Criminal Code (WA))	10 years	3 months	Concurrent
2	Criminal damage (s 444(1)(b) of the Code)	10 years	3 months	Concurrent
3	Criminal damage (s 444(1)(b) of the Code)	10 years	3 months	Concurrent
4	Criminal damage (s 444(1)(b) of the Code)	10 years	3 months	Concurrent
5	Steal motor vehicle (s 371A and s 378 of the Code)	7 years	6 months	Concurrent
6	Criminal damage (s 444(1)(b) of the Code)	10 years	3 months	Concurrent
7	Stealing (s 378 of the Code)	7 years	6 months	Concurrent
8	Stealing (s 378 of the Code)	7 years	6 months	Concurrent
9	Armed robbery (s 392 of the Code)	Life imprisonment	3 years (reduced from 4 years for totality)	Head sentence
10	Being armed to cause fear (s 68 of the Code)	7 years	1 year (reduced from 18 months for totality)	Cumulative
11	Armed robbery (s 392 of the Code)	Life imprisonment	2 years 6 months (reduced from 3 years 10 months for totality)	Cumulative
12	Stealing (s 378 of the Code)	7 years	6 months	Concurrent
13	Fraud (s 409(1)(c) of the Code)	7 years	2 months	Concurrent
14	Fraud (s 409(1)(c) of the Code)	7 years	2 months	Concurrent
15	Fraud (s 409(1)(c) of the Code)	7 years	2 months	Concurrent
16	Fraud (s 409(1)(c) of the Code)	7 years	2 months	Concurrent
Total effective sentence		6 years 6 months

1. The sentence was backdated to 14 March 2019 to take account of time spent in custody on remand.  The appellant was made eligible for parole.

2. The appellant seeks leave to appeal against these sentences on the sole ground that the total effective sentence of 6 years 6 months' imprisonment infringes the first limb of the totality principle.

3. For the following reasons, that ground of appeal has no reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal should be dismissed.

Circumstances of offending

1. The following circumstances of the offending were alleged by the prosecution in the primary court,[1] were not materially contested by the appellant,[2] and were facts found by the sentencing judge.[3]

Counts 1 - 4: criminal damage

[1] Primary ts 73 - 77.

[2] Primary ts 80 - 83.

[3] Primary ts 100 - 103.

1. Counts 1 - 4 all relate to incidents occurring between 11 pm on 10 March 2019 and 12.05 am on 11 March 2019 in Giblett Street Manjimup.  The appellant threw bricks through the windows or glass door panes of a bank (count 1), a newsagency (count 2), the Royal Life Saving Society (count 3) and a hotel (count 4).  The damage caused was valued at $763 (count 1), $834.90 (count 2), $476.30 (count 3) and $625.40 (count 4).

Count 5: steal motor vehicle

1. At around 3.30 am on 11 March 2019, the appellant was at his first victim's address in Manjimup.  The appellant took the victim's car keys and drove off in the victim's beige Hyundai Elantra, which was parked on the verge in front of the victim's house.  The appellant did not have the victim's permission to take the Hyundai. 

2. The appellant ultimately drove to Nannup in the Hyundai.  He drove the vehicle off the sealed road and caused extensive damage to it.  The car became bogged in soft sand off Miller Road in Nannup.  The car had significant damage to the right wheels, with both tyres ripped off.  The appellant made no attempt to notify the victim of where the car was bogged.

Count 6: criminal damage

1. At 6.30 am on 11 March 2019, the appellant drove the stolen Hyundai into the glass sliding door of a service station in Manjimup, causing it to smash.  The cost of replacing the glass door was $1,049.60.  The appellant later told police that he drove into the window because he knew someone was in the station and wanted to get fuel.

Counts 7 and 8: stealing

1. At around 6.50 am on 11 March 2019, the appellant drove the stolen Hyundai to a different service station in Manjimup and pumped approximately $30 worth of unleaded petrol into the car.  He departed without making any attempt to pay for the fuel.  The appellant later told police that he needed the fuel to drive to Busselton to see his children.

2. Sometime between 7 am and 7.30 am on 11 March 2019, the appellant entered the unlocked vehicle of his second victim, which was parked at an orchard in Dixvale while the victim was picking fruit.  He stole the victim's wallet from the glove box, which contained a credit card (later used in fraud offences), identification documents and other papers.  The appellant later told police he was looking for property to steal, and to swap or sell for drugs.

Count 9: armed robbery

1. At about 7.50 am on 11 March 2019, the appellant drove the stolen Hyundai to his third victim's house in Dixvale.  The victim, who lived at the house with her two children, observed the appellant drive up onto her lawn.  She went outside to see who was driving the car, which she did not recognise.  The appellant got out of the car when the victim was about 10 m away.  He was holding a claw hammer in his right hand up alongside his head.

2. The appellant saw an electronic safe on the veranda of the victim's house and repeatedly asked what was inside the safe.  The victim told the appellant that it was empty.  The appellant said, 'Give it to me now or I'll shoot you' three times.  Fearing for her own and her children's safety, the victim picked up the safe and threw it towards the appellant.  The appellant picked up the safe, put it in the back of the Hyundai and drove away.

3. A short time later, the appellant smashed open the safe and found that it was empty.  He discarded it over a bridge into a river between Manjimup and Nannup.

Count 10: being armed so as to cause fear

1. At about 12.30 pm on 11 March 2019, the appellant walked to a house in Nannup where his fourth victim lived with her daughter.  The victim was in her car, preparing to leave the house, while her daughter remained inside.  The appellant approached the victim's car when it was a short distance from the house and asked for a lift.  He was carrying a large hunting knife which he exposed by pulling it out of a bag.  The victim was fearful of the appellant attending her property and had a short conversation with him.  The appellant asked the victim for her car, which she declined to let him have.  The appellant walked through the victim's property and onto another property.  The victim and her daughter attended a neighbour's property and reported the matter to police.

Counts 11 and 12: armed robbery and stealing

1. At about 1.08 pm on 11 March 2019, the appellant walked onto another property in Nannup.  His fifth and sixth victims lived in a caravan at the rear of the property, and were present sitting at a table.  The appellant approached his victims carrying a large hunting knife.  He demanded the keys to the car of one of the victims, stating that he needed to go to hospital.  Scared about what could happen, the victim gave the appellant his car keys.  The appellant drove away at speed in the victim's silver Toyota Corolla. 

2. The victims attempted to follow the appellant in another vehicle, but soon lost sight of him.  The victims drove to the hospital but could not see the Toyota.

3. The appellant did not go to the hospital, and ultimately drove the Toyota to Busselton, where he abandoned it and buried the keys next to a tree.  After getting in the vehicle, the appellant located $150 in the centre console, which belonged to the vehicle's owner.  He later spent the $150 on alcohol, cigarettes and methylamphetamine.

Counts 13 - 15: fraud

1. At about 2.56 pm on 11 March 2019, the appellant attended a liquor store in Busselton with an associate.  The appellant gave his associate the credit card stolen from the second victim, and asked him to purchase goods with the stolen card.  The male associate purchased goods, in three separate transactions, to the value of $50, $51.99 and $25 respectively.

Count 16: fraud

1. At about 3.52 pm on 11 March 2019, the appellant drove a vehicle to a supermarket/service station in Geographe.  He asked a stranger to use the stolen credit card to pre-purchase $30 worth of fuel, which the stranger did.  The appellant pumped fuel into the vehicle and departed.

Arrest and interview

1. The appellant was arrested and interviewed in relation to the above offending on 14 March 2019, admitting to many of the offences.

Personal circumstances

1. The appellant is an indigenous man who was 41 years old at the time of committing the offences.  He has two children (aged 17 and 20 years at the time of sentence) and one grandchild (aged 14 months at the time of sentence).  The appellant had been with his partner, whom he had subjected to domestic violence, for some 20 years.  The appellant's partner remained supportive of him.

2. The appellant was born and raised in Mount Barker, remaining with his father after his parents divorced when the appellant was a teenager.  The appellant's childhood was marred by witnessing domestic violence, and he was assaulted by his father, who was an alcoholic.  The appellant had no contact with his mother and younger sister after the divorce until he was 18 years old.  His father died of liver failure in 2012, when the appellant was in custody on remand.  The appellant presented with unresolved grief over the death of several family members whilst he was in custody previously, including his grandparents, which had a significant impact upon the appellant.

3. The appellant last worked when he was in his mid-20s.  He intended to obtain work as a labourer with a friend who runs a plastering business upon release from custody.

4. The appellant has an entrenched drug addiction.  He started smoking cannabis at the age of 14 years, and moved on to intravenous methylamphetamine at the age of 19 years.  The appellant's methylamphetamine use escalated two years later.  The appellant has been offered a number of opportunities to engage in substance abuse counselling but has consistently failed to engage when in the community.

5. The appellant has a very extensive criminal record, having been convicted of various property, aggravated burglary, drug and traffic offences.  He has served multiple sentences of imprisonment, the most recent being a total effective sentence of 3 years 6 months' immediate imprisonment imposed by the District Court on 24 March 2015 and the Magistrates Court on 4 May 2015.  That most recent prior sentence of immediate imprisonment related to a string of offences committed between 2010 and 2013.  On 27 September 2018, the appellant was sentenced to 9 months' imprisonment, suspended for 18 months, in respect of an attempted burglary offence.  The appellant was subject to that suspended sentence when he committed the offences on 10 - 11 March 2019.

Sentencing judge's approach

1. After referring to the circumstances of the offending and the appellant's personal circumstances, the sentencing judge said:[4]

   Your lengthy criminal record demonstrates a persistent defiance and disregard for the law.  It indicates it's necessary for the court to impose a firm penalty to both deter you from committing these types of offences in the future and to protect the community.

   [4] Primary ts 106.

2. The sentencing judge accepted that the appellant had shown a degree of remorse and acknowledged the impact of his offending on his victims.  The sentencing judge also took account of the appellant's disadvantaged background as a mitigating factor, and the matters adverted to by the High Court in Bugmy v The Queen.[5] Her Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA) in respect of pleas of guilty which, while not entered at the first reasonable opportunity, were entered before trial dates were set.[6]

   [5] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

   [6] Primary ts 106 - 107.

3. As to the seriousness of the offending, the sentencing judge observed:[7]

   In terms of the aggravating factors, you were on a suspended sentence.  The damage that you caused to property was wanton and senseless.  It caused significant damage to local businesses in the small regional town of Manjimup, and significant inconvenience to the operators of such businesses in having to get their property repaired.

   Count 9 is particularly serious.  It occurred on a rural property with a woman who was alone with her young children.  You threatened to shoot her.  You were armed with a hammer.  It must have been a terrifying experience for that woman and her children. In relation to count [10], that's another extremely serious offence.  It involved another woman and a young girl going about their business at their home when you approached them, armed with a knife.

   In relation to count 11, again, a significantly serious offence.  You again approached people going about their business at their home, armed with a knife.  And you stole a motor vehicle belonging to one of the complainants.

   All three of those offences must have been particularly terrifying, in circumstances where you caused terror to people. You caused significant damage to vehicles and property.  You stole money and property all in your quest to fund your drug addiction.  It is quite properly characterised as a rampage in a rural community, where people should be entitled to feel safe and secure in their own homes. And I view the offences – particularly as I say, counts 9 to 11, as extremely serious.

   [7] Primary ts 107 - 108.

4. The sentencing judge said that the protection of the community and the seriousness of the offending demanded an immediate and lengthy term of imprisonment.  After referring to the totality principle, the judge said:[8]

   In my view, some accumulation of the individual sentences is necessary in order to mark the very serious nature of the overall offending and to properly reflect the separate victims who have been the subject of your offending. And to reflect the important sentencing considerations of personal and general deterrence.

   So personal, to stop you doing these things again.  And general, to send a clear message out to the community that such offending will not be condoned.  And in your case, I need to ensure that the sentence I impose properly protects the community.

   [8] Primary ts 108.

5. The sentencing judge noted that the appellant had expressed a desire not to be made eligible for parole.  Her Honour nonetheless decided to make the appellant eligible for parole, on the basis that it was in the interests of the community for the appellant to have a graduated release into the community under supervision if he was successful in gaining parole.[9]

   [9] Primary ts 108 - 109.

6. The sentencing judge then imposed the sentences referred to in the table above.

The appeal to this court

1. The appellant's sole ground of appeal contends that the sentencing judge erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the appellant personally.  As such, the ground contends that the sentence infringed the first limb of the totality principle.[10]

   [10] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

2. In his written submissions, after referring to authorities dealing with the totality principle, the appellant submits that his offending all took place over a period of 17 hours, and can properly be described as 'constituting manifestations of the same episode of criminal conduct'.  The appellant submits that, having regard to his offending and his pleas of guilty, the total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle.

3. At the hearing of the appellant's application, the appellant (who is self-represented) referred to a three page letter which he said had been sent to the Court of Appeal office.  The letter had not been received by the court.  At our request, the appellant read aloud the three page letter at the hearing as part of his oral submissions.  We subsequently received and read the letter.

4. In the letter and his oral submissions, the appellant contended that his total effective sentence of 6 years 6 months' imprisonment was excessive, particularly having regard to the following mitigating factors:

   (1)his plea of guilty;

   (2)his mental health issues, which resulted from a number of tragic family events, at the time of the offending;

   (3)his remorse for the impacts of his offending on the victims, his family and all involved in the case; and

   (4)the insights he has gained from participating in counselling.

5. The appellant indicated that he has been unable to support his family following two recent deaths while he has been in custody.  He also indicated that he had attempted to complete rehabilitation programs in prison but had been unable to secure a transfer to a prison where he could do so.

Disposition

1. The principles relevant to allegations of implied error such as breach of the totality principle are well established, and were summarised in Kabambi v The State of Western Australia.[11]  It is unnecessary to repeat those principles here.

   [11] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

2. The appellant does not, and could not reasonably, complain about any of the individual sentences imposed for his offending.

3. The overall criminality involved in the appellant's offending was undoubtedly very serious.  Although the offences were all committed over two days, there were separate incidents involving the production of weapons and two separate armed robbery offences.  It was an aggravating feature of the overall offending that it was committed while the appellant was subject to a suspended sentence.

4. While the appellant was not to be sentenced for the offending disclosed in his prior criminal record, his offending history elevated the significance of community protection and personal deterrence as sentencing considerations.  The sentencing judge rightly recognised this to be the case.  Those considerations, as well as general deterrence, needed to be balanced against the mitigating factors of the pleas of guilty, remorse, cooperation and the appellant's disadvantaged background.

1. Having regard to all relevant sentencing principles, it is not reasonably arguable that the total effective sentence fails to bear a proper relationship to the overall criminality involved in all the appellant's offences, viewed in their entirety and having regard to the circumstances of the case (including those referable to the offender personally).  Leave to appeal on the sole ground of appeal should be refused, and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MT
Research Orderly to the Honourable Justice Mitchell

4 SEPTEMBER 2020