Gullello v The Queen
[2005] WASCA 12
•4 FEBRUARY 2005
GULLELLO -v- THE QUEEN [2005] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 12 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:87/2003 | 12 AUGUST 2004 | |
| Coram: | MURRAY J WHEELER J MILLER J | 4/02/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN CLINT GULLELLO THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Aggregate term of 12 years imprisonment with eligibility for parole imposed for three offences of armed robbery in company, one offence of attempted armed robbery in company, three offences of stealing motor vehicles, one offence of stealing registration plates and assault occasioning bodily harm Whether manifestly excessive Turns on own facts |
Legislation: | Nil |
Case References: | Cameron v The Queen (2002) 209 CLR 339 Herbert v The Queen (2003) 27 WAR 330 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 House v The Queen (1936) 55 CLR 499 McKenna v The Queen (1992) 7 WAR 455 Miles v The Queen (1997) 17 WAR 518 Mulligan v The Queen [2000] WASCA 5 Pearce v The Queen (1998) 194 CLR 610 R v Atholwood (1999) 109 A Crim R 465 R v Henry (1999) 106 A Crim R 149 Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998 Trescuri v The Queen [1999] WASCA 172 Van Den Berg v The Queen [1984] WAR 162 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GULLELLO -v- THE QUEEN [2005] WASCA 12 CORAM : MURRAY J
- WHEELER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
File No : INS 176 of 2002
Catchwords:
Criminal law and procedure - Sentencing - Aggregate term of 12 years imprisonment with eligibility for parole imposed for three offences of armed robbery in company, one offence of attempted armed robbery in company, three offences of stealing motor vehicles, one offence of stealing registration plates
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and assault occasioning bodily harm - Whether manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Dempster
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 209 CLR 339
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
Case(s) also cited:
House v The Queen (1936) 55 CLR 499
McKenna v The Queen (1992) 7 WAR 455
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Miles v The Queen (1997) 17 WAR 518
Mulligan v The Queen [2000] WASCA 5
Pearce v The Queen (1998) 194 CLR 610
R v Atholwood (1999) 109 A Crim R 465
R v Henry (1999) 106 A Crim R 149
Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998
Trescuri v The Queen [1999] WASCA 172
Van Den Berg v The Queen [1984] WAR 162
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1 MURRAY J: This application for leave to appeal against sentence was difficult to deal with because the applicant appeared in person without legal representation and he had had no assistance to prepare for the hearing of the application. He had, however, prepared written submissions. The necessary papers were provided to the Judges by the administrative staff of the Court. The applicant was provided with the respondent's outline of submissions and heard counsel for the respondent speak to them. We then adjourned the matter and arranged for the applicant to be provided with the transcript of the hearing. Our purpose was to give the applicant the opportunity to absorb the material placed before the Court thus far and to respond to it in writing. This proved to be more difficult than we had supposed would be the case. It appears that some of the documents went astray. The Court finally received the applicant's written submissions in reply to those of the respondent under cover of a letter dated 1 December 2004.
2 I am satisfied that we now have before us all that the applicant wishes us to consider by way of argument in respect of the application for leave to appeal against sentence. There is but one ground of the application, that the total sentence imposed was excessive in all the circumstances. His written submissions effectively flesh out that bald proposition and provide the reasons why the applicant makes that assertion.
3 There were two indictments before the Court. The first in time contained the following counts:
(1) On 28 February 2001 stealing a motor vehicle.
(2) On 28 February 2001 armed robbery in company committed upon a pharmacy in Yokine; stole $1883.35 and a quantity of drugs.
(3) On 19 January 2002 stealing a motor vehicle.
(4) On 22 January 2002 armed robbery in company committed upon the ANZ Bank North Perth; stole $7578.57.
4 The second indictment charged a series of offences committed between those the subject of the first indictment, on 13 November 2001. The counts on this indictment were:
(1) Stealing a motor vehicle.
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- (2) Attempted armed robbery in company with the use of personal violence to the victim.
(3) Assault occasioning bodily harm.
(4) Stealing two motor vehicle registration plates.
(5) Armed robbery in company with the use of personal violence committed upon the South Lakes Pharmacy to steal a quantity of drugs, money, a wallet, a laptop computer and other property.
5 The applicant pleaded guilty to all offences in this Court on 1 May 2003, but it is to be noted that in respect of the offences committed on 28 February 2001 and 19 and 22 January 2002 the applicant had pleaded guilty in the Court of Petty Sessions and came before this Court by the process of expedited committal. In relation to the offences committed on 13 November 2001, the applicant was committed for trial, but he pleaded guilty at the first opportunity in this Court. The pleas of guilty led to what the sentencing Judge described as a "significant reduction" in the sentences imposed.
6 On 29 May 2003, for the offences the subject of the first indictment mentioned above, the following sentences were imposed in respect of the various counts:
(1) Imprisonment for 1 year.
(2) 6 years imprisonment concurrent.
(3) Imprisonment for 1 year cumulative.
(4) 6 years imprisonment concurrent with count 3 but cumulative on count 2, resulting in an aggregate term of imprisonment of 12 years in respect of this indictment.
7 As to the second indictment, the following sentences were imposed for the offences the subject of the various counts:
(1) Imprisonment for 1 year.
(2) 5 years imprisonment.
(3) 2 years imprisonment.
(4) 3 months imprisonment.
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- (5) 6 years imprisonment.
8 All these sentences were ordered to be served concurrently with each other, but cumulatively upon the 6 years imprisonment imposed for count 2 of the first indictment. The aggregate term of imprisonment imposed, therefore, remained 12 years. Eligibility for parole was ordered and the sentences were backdated to 21 August 2002, upon which date the applicant was first in custody on remand.
9 Of course, at this stage the Sentencing Legislation Amendment and Repeal Act 2003 had not been enacted. That legislation relevantly did not come into effect until 31 August 2003. By cl 5(2) of Sch 1 to the amending Act, the transitional provisions, the unamended provisions of the Sentencing Act 1995 (WA) would therefore continue to apply for the purpose of determining when an offender would become eligible to be released on parole, the parole period and when the person would be finally discharged from the sentence.
10 In this case, that would mean that the applicant will become eligible for parole after serving 6 years of the aggregate term of 12 years, commencing on 21 August 2002. The parole period, if the applicant is then released, will be a period of 2 years. If that period of service of the sentence on parole is completed, then the balance of 4 years of the term imposed is remitted.
11 None of that, of course, has anything to do with this Court's evaluation of the sentences imposed, but I mention those matters because this Court's consideration of the severity of those sentences, having regard to their individual length and the manner in which they were constructed, is against the background of the relevant statutory provisions as they operated at the time when sentence was imposed and without having regard to the fact that the same sentences imposed today under the new sentencing regime, operative from 31 August 2003, would be one third shorter.
12 There is another matter of which the applicant complains which I think the sentencing Judge could not properly pay regard to. I have mentioned that the sentences imposed were backdated to 21 August 2002 when the applicant went into custody on remand. Prior to that time he had been in prison serving sentences, having been arrested shortly after the commission of the third group of offences in January 2002. The applicant says he was required to serve 55 days for unpaid fines. The record shows a series of offences of which the applicant was convicted between January
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- 1999 and January 2002 for which fines were imposed. Then, on 24 June 2002, the applicant was convicted of an offence of burglary and two drug offences for which he received a total of 9 months imprisonment, backdated to 21 February 2002. As these sentences were too short to attract an order of parole eligibility, 6 months was served, expiring on 21 August 2002.
13 All of these were entirely separate matters and, in respect of the matters presently under consideration, the sentencing Judge had no capacity under the Sentencing Act to backdate the sentence beyond the point where the service of the previous sentences expired. His Honour could not, therefore, take account of the other terms served to any greater degree, nor would it have been proper to have reduced the sentences he imposed on account of the service of the earlier terms, although it would, of course, be appropriate to have regard to them to the extent required by the application of the totality principle, a matter to which I shall return in due course.
14 In support of the ground upon which the application is based, the applicant argues that he was provided with an insufficient discount, having regard to the fast-track guilty plea, the degree of remorse that he had shown, his mitigating circumstances, the differences between the circumstances surrounding the commission of the individual offences and the need to differentiate between the discount to be allowed for the pleas of guilty, depending on whether they were of the fast-track variety applicable to the four-count indictment or the rather later plea of guilty applicable to the indictment concerning the offences committed on 13 November 2001. It is necessary then to see how the sentencing Judge regarded the different offences and how his Honour structured the sentences he imposed.
15 The facts of each group of offences may be taken to be those found by the sentencing Judge. One may commence with the offences committed on 28 February 2001, counts 1 and 2 on the four-count indictment, and therefore subject to fast-track pleas of guilty. It will be recalled that these offences were the theft of a motor vehicle and an armed robbery in company committed upon a pharmacy in Yokine. The vehicle was stolen from a shopping centre carpark on the day of the robbery, which involved the applicant and a co-offender. The applicant was armed with a screwdriver and the co-offender with a knife. Staff were threatened, money and drugs were demanded and nearly $1900 was stolen. One of the offenders spoke to the female staff members when leaving the pharmacy, apologising for their conduct and saying that the
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- robbers would not take the purses of the women because they were "junkies". The vehicle was recovered nearby. About $100 worth of damage had been done to the driver's side door lock and ignition, obviously during the process of entering the vehicle and getting it started.
16 The applicant says the sentencing Judge should have noted that, unlike later robberies, the car was stolen very shortly before the robbery which was unplanned, being, as the applicant puts it, "a quick solution to get access to drugs easily and fast." The parting words of apology spoken by one of the robbers, the applicant says, were demonstrative of "some remorse and contrition". These matters he describes as mitigatory circumstances which ought to have led to a lesser penalty for this robbery than for the others, but, the applicant points out, in each case of a completed armed robbery in company he received a sentence of 6 years imprisonment.
17 For myself, I think the matters described as mitigatory circumstances in relation to this particular robbery carry little weight in that regard. It seems to me to be of no great moment that the car was stolen immediately before, rather than days before, the commission of the robbery, when it was stolen for the purpose of providing transport to and from the place to be robbed. Further, the target of the robbery was obviously chosen as an easy mark. So much is made clear by the terms in which the applicant puts his submission that the robbery was a quick solution to satisfy a need for drugs and money. Nor, in my opinion, was the rather offhand remark made by one of the robbers at the conclusion of the event a matter which carried any substantial mitigation. It certainly did not demonstrate any remorse or contrition. This was, after all, the first of a series of such offences which the applicant committed over a period of a year or so.
18 The courts have often made the point, appreciated by the applicant and his co-offender, that pharmacies are a type of business particularly vulnerable to the commission of offences of this kind by persons who need to acquire drugs for their illicit use. They are often staffed by women or by persons who have little capacity to defend themselves or the pharmacy against robbers. They are easy targets and the courts must strive to offer a degree of protection to the persons involved in the operation of these businesses and the valuable community service they provide. The only way they can do so is by ensuring that offenders who are brought before the courts are punished with a degree of severity appropriate to the seriousness of the offence committed. That is done not only to punish the offender for the offence committed but to deter that offender and others who may also see the robbery of such shops as an
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- easy means to satisfy a craving for drugs. In my opinion, it cannot be argued that a 6-year term for a robbery of this kind, committed while armed and in company, is in any way manifestly excessive.
19 The offences of 13 November 2001 were committed in the following circumstances. A motor vehicle had been stolen from an address in Victoria Park on 3 November 2001. It was used by the applicant and a co-offender 10 days later, on 13 November, to drive to the Kenwick Village Newsagency. Both men were disguised with masks. It was early in the morning. The complainant shopkeeper was in the process of opening the newsagency. The two men approached him. One was armed with a shotgun. They attacked the shopkeeper, knocking him to the ground and kicking him several times, causing injuries which required medical attention.
20 A person who worked nearby saw what was occurring and intervened. He too was attacked and suffered bruising, hence the charge of assault occasioning bodily harm. This person was able to escape and return to his workplace where he called the police. Because they were disturbed, the applicant and his co-offender left the scene in the stolen vehicle, which bore false registration plates which had apparently previously been stolen.
21 The offences committed in relation to this incident were therefore counts 1 - 4 of the relevant indictment. In my opinion, the offence of attempted armed robbery in company with personal violence was a particularly serious example of the type. There was clear evidence of planning. Disguises had been obtained, the identify of the vehicle was concealed, the offenders had equipped themselves with a shotgun and they chose their target and committed the offence when the shopkeeper was alone and vulnerable. The attempt was made worse by the violence they employed towards him and, in addition, by the violence they used upon the person who intervened to aid the shopkeeper.
22 The sentences imposed were in aggregate a term of 5 years imprisonment. Such a term could not be said to be manifestly excessive, having regard to the surrounding circumstances. It is clear that the sentencing Judge reduced the term because the robbery was not completed. That was proper and reveals the fact that the sentencing Judge was clearly differentiating between the offences and the circumstances of their commission in the length of the terms imposed.
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23 The offence of armed robbery in company which was the remaining count on this indictment was committed shortly after the offences just described. The applicant and his co-offender drove from Kenwick to the South Lakes Pharmacy, part of the shopping centre in that suburb. They were still disguised with masks when they again approached a staff member of the pharmacy who, shortly after 8 am, was in the course of unlocking the shop. The complainant was forced into the pharmacy and forced to open the safe. Prohibited drugs, money and other property to a total value of just under $6000 were stolen, together with a wallet containing money and cards, the property of another person. Again personal violence was used. The shotgun was used to strike the complainant on the head, causing a laceration, but fortunately no more serious injury. The stolen vehicle was used by the offenders to make their escape and was recovered later on the same day. Again, for reasons similar to those given in respect of the first armed robbery described, the sentence of 6 years imprisonment for this offence was well merited. Indeed, it seems to me that there could have been no complaint had the sentence been greater, particularly having regard to the use of personal violence.
24 Finally, there were the offences which were counts 3 and 4 on the first indictment, the stealing of the motor vehicle on 19 January 2002 and its use some three days later in the course of an armed robbery in company committed at the North Perth branch of the ANZ Bank, where something over $7500 in money was stolen. Again it is clear that the vehicle was stolen for the purpose of providing transport in order to facilitate the commission of the armed robbery. There were two offenders, the applicant and another. The applicant was disguised by wearing pantyhose over his head. He carried a large carving knife. His co-offender carried a firearm. Staff and customers were threatened and made to lie on the floor. The manager of the bank branch was made to collect the money and place it in a bag. Because of difficulties in making their escape in the stolen vehicle, to which I need not refer in any detail, the applicant ran away. He hid nearby and was later arrested. The vehicle was shortly afterwards recovered in Maylands on 24 January 2002. Again it seems to me that there can be no complaint about a sentence of 6 years imprisonment for this offence, given the amount of money stolen, the number of people, staff and customers, who were menaced by the offenders and the evident preparation and planning which went into its commission.
25 It was said on the applicant's behalf that the firearm used had been modified so that it could not be fired, but clearly that could provide no
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- mitigation of punishment. To say that that has been done attracts the obvious retort that those who were the victims of the commission of the offence, put in fear by being menaced with a firearm, were unaware that they would not be shot.
26 The sentencing Judge had before him an antecedent report and criminal history for the applicant and a pre-sentence report obtained upon the entry of pleas of guilty in the Court of Petty Sessions. In addition, there is a letter addressed to the sentencing Judge by the applicant's partner, not really pleading for leniency so much as setting out relevant matters of history concerning the applicant's drug addiction and his attempts to escape from that dependency.
27 The applicant was 24 or 25 when he committed the offences. He was nearly 27 when he was sentenced. At that stage he had a baby daughter about a year old. The antecedent report noted that he would not reveal the identity of his accomplice or accomplices, an understandable decision but one which deprived him of significant mitigation. He had a very long record dating from 1990 when he was 14. One of his first convictions was for robbery and there were innumerable offences connected with the illicit use of prohibited drugs. There were many associated crimes of violence and motor vehicle offences, not to mention burglary and other offences of dishonesty. However, the previous offences, although repeated, were nowhere near the order of seriousness of those before the Court.
28 The applicant been on parole when he commenced this series of offences. Initially he had done well and complied with urinalysis requirements, but he did not remain in contact with his supervising officer after 23 February 2001 and, as has been seen, shortly thereafter he committed the first of these offences. His parole was cancelled. He had previous periods on parole and on probation. All of his community supervision orders were breached. It was recognised that his incapacity to comply was a direct result of his heroin addiction.
29 Typically, he had a disturbed and disrupted childhood associated with marital break-up and early use of illicit substances. His de facto relationship was supportive, but his partner was also dependent on heroin and was using the drug, as was the applicant, during the period when these offences were committed. Since his arrest his de facto partner has been able to more successfully tackle her heroin dependency. She has obtained treatment and is succeeding in combating the drug. The applicant, of his own motion, had been making efforts in that regard, having voluntarily engaged with an agency in November or December 2001. He commenced
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- a regular attendance on 21 January 2002, immediately before the commission of the last of the armed robbery offences. He is said to be progressing well on the buprenophine program. The writer of the pre-sentence report accepted the applicant's contrition and desire to break from his drug dependency and lead a law-abiding way of life. The recommendation of the pre-sentence report was therefore that, despite the applicant's history, he be declared eligible for parole.
30 The sentencing Judge did not overlook any of this material. His Honour said that he accepted that the applicant had a powerful incentive in his de facto wife and baby to overcome his drug addiction. His Honour accepted that the applicant had a degree of insight into the problems caused by his drug use. He accepted that there had been a genuine effort made to overcome them. For that reason, his Honour said he would impose a sentence overall which was less than would otherwise have been imposed. His Honour added:
"I also propose to allow a significant reduction because of your pleas of guilty and your express determination and efforts to make good for yourself, your de facto wife and your daughter."
31 His Honour continued:
"Nonetheless the offences you have committed are extremely serious offences and they must attract a substantial term of immediate imprisonment. It is necessary for me to fix sentences which are appropriate to each of the individual offences but which also in their total reflect the overall criminality of them and which take into account the mitigatory factors I have mentioned."
32 It has to be said that the mitigation available to the applicant was not great. His youth was getting to the point where it could not count in his favour. He had a very long criminal history, although of offences of generally less serious character.. It was only his recent attempts to free himself of his drug addiction which could possibly support the favourable pre-sentence report and its recommendation of eligibility for parole. Nonetheless, the most powerful mitigation available to him was the acceptance by the Court that his contrition was genuine, as was his determination, belatedly and dating only from about the time of the commission of the last of the offences, to seek assistance to overcome his drug addiction.
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33 The letter from his de facto wife and the evidence of her attempts also to combat her drug addiction for the sake of their child provided evidence of the genuineness of these attempts, but, of course, soon after they were commenced he was taken into custody and commenced to serve other sentences. There he has remained ever since and that interrupted his capacity to demonstrate his prospects of success in removing what was quite evidently the major cause of his offending, his drug addiction.
34 That leaves the pleas of guilty. The Sentencing Act, s 8(2) makes it clear that a plea of guilty is always to be regarded as mitigatory in its effect and the earlier it is made, the more powerful is the mitigation it affords. It is a very pragmatic process to discount a sentence for a plea of guilty and it involves an evaluation of the character of the plea: Cameron v The Queen (2002) 209 CLR 339.
35 In that case the High Court made it clear that the sentencing Judge should consider the quality of the plea. To what extent did it have a capacity to assist the processes of the administration of justice? To what extend did it reveal a willingness on the part of the offender to accept responsibility for the offence or offences committed and to facilitate the processes of the criminal law? To what extent did it reveal genuine contrition or remorse for the commission of the offence or offences? To what extent, therefore, might the plea be regarded as being illustrative of a capacity in the offender ultimately to achieve his or her rehabilitation?
36 This case is interesting in this regard because the charges of the offences committed on 28 February 2001 and in January 2002 were the subject of the fast-track pleas, whereas the indictment charging the various offences committed on 13 November 2001 was the subject of later pleas. There had been a committal for trial. However, the pleas were made at the earliest opportunity when the applicant first appeared in the Supreme Court. There was, I think, in those circumstances, little distinction to be drawn between the value of the pleas. They merited a substantial discount and his Honour the sentencing Judge said that he had drawn the same conclusion. I would not for myself think that there is any point of error in principle available to the applicant because the sentencing Judge did not differentiate between the mitigatory power of the pleas entered in the two different circumstances described.
37 To my mind, the only question which is live in this case is whether the sentencing Judge gave sufficient weight to the application of the totality principle as most recently described by this Court in Herbert v The Queen (2003) 27 WAR 330. In that case, following the decision of
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- the High Court in Mill v The Queen (1988) 166 CLR 59 and Postiglione v The Queen (1997) 189 CLR 295, together with the earlier decision of this Court in Jarvis v The Queen (1993) 20 WAR 201, the Court described the totality principle as being a reference to that part of the sentencing process which occurred at the end of the process when the Judge, having decided upon sentences for individual offences which were properly proportionate to the criminality involved in their commission and having decided on the basis of the proper application of principle which of those sentences should be served cumulatively and which might be allowed to be served concurrently, would consider the overall effect of what was proposed to be done.
38 The court is to ask itself the question whether the total effect of the sentences proposed is proportionate to the total criminality of the offences committed, bearing in mind that the severity of a term of imprisonment increases exponentially with its length. By that is meant that a graph measuring severity against the length of a term is not a straight-line graph but a graph which rises more and more steeply as a measurement of severity as the term of imprisonment increases in length. In short, for example, a term of 6 years imprisonment is more than twice as severe as a term of 3 years imprisonment.
39 The question then, in this case, is whether an aggregate term of 12 years imprisonment was manifestly excessive when added to the sentences previously served from 21 February 2002 and backdated to the date when those terms ended, 21 August 2002.
40 In that regard, it should not be overlooked that the trial Judge considered the application of the totality principle and, in my opinion, his Honour did apply the principle. So much is demonstrated by the fact that the aggregate term of 6 years for the offences the subject of the second indictment, those committed on 13 November 2001, did not add in the slightest to the aggregate term derived from the sentences imposed in respect of the offences the subject of the first indictment, those committed in February 2001 and January 2002. That was only justifiable on totality grounds because, at the very least, the offences committed separately in February 2001, November 2001 and January 2002 merited separate punishment and cumulative sentences.
41 And yet it seems to me that, having regard to the totality principle and the mitigation available to the applicant, particularly in those aspects which showed a belated determination to overcome his drug addition for the sake of his de facto wife and child and a belated acceptance of
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- responsibility for his behaviour and contrition for the offences committed, the total term of 12 years was too great to be properly proportionate to the total criminality involved, particularly when considered on top of the other sentences served.
42 In my opinion, on the totality ground, and only upon that ground, the sentences had to be reduced. The sentencing Judge had sacrificed to the fullest extent possible proper accumulation of the terms of the sentences and yet the resulting aggregate term was still too great. What had to be done was to reduce the terms imposed for the robbery and attempted robbery offences. I would emphasise that that was only to be done on totality grounds.
43 In my opinion, as at the time when the sentences were imposed, if each of those terms was reduced by a year and the orders as to accumulation and concurrency were left in effect, the resultant aggregate term would represent the aggregate term properly proportionate, having regard to the application of the totality principle, to the total criminality involved. The aggregate term would be reduced from 12 years to 10, with eligibility for parole, backdated to 21 August 2002. In my view, the exercise of discretion by the sentencing Judge miscarried accordingly.
44 In those circumstances, it would become necessary for this Court to resentence the applicant. I would do so only by reducing by one third all the sentences imposed by the sentencing Judge after reducing by a year the sentences imposed for the robbery and attempted robbery offences.
45 The result would be as follows, for the first indictment containing four counts:
(1) Stealing a motor vehicle - 8 months imprisonment.
(2) Armed robbery in company committed on 28 February 2001 - 3 years, 4 months imprisonment concurrent.
(3) Stealing a motor vehicle - 8 months imprisonment.
(4) Armed robbery in company committed on 22 January 2002 - 3 years, 4 months imprisonment cumulative, but concurrent with count 3, making an aggregate in relation to this indictment of 6 years, 8 months imprisonment.
46 As to the second indictment and the offences committed on 13 November 2001, I would impose the following sentences, all to be
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- served concurrently with each other and with the sentences imposed for the offences charged by the first indictment:
(1) Stealing a motor vehicle - 8 months imprisonment.
(2) Attempted armed robbery in company with personal violence - 2 years, 8 months imprisonment.
(3) Assault occasioning bodily harm - 16 months imprisonment.
(4) Stealing registration plates - 2 months imprisonment.
(5) Armed robbery in company with personal violence - 3 years, 4 months imprisonment.
48 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. His Honour has set out very fully the circumstances of each of the relevant offences. It can be seen that they were particularly serious. Count 4 on the first indictment and counts 2 and 5 on the second indictment involved offences of armed robbery and attempted armed robbery in company in circumstances where the offenders were disguised and a firearm was employed.
49 As Murray J points out, those menaced with the firearm were not to know that it had been modified so that it could not be fired, so that any modification to the firearm would attract no mitigation. I would observe that in my view the use of a firearm which was able to be fired would have been an aggravating circumstance, since that would demonstrate a still greater degree of criminality and of risk to the public.
50 In counts 2 and 5 of the second indictment, personal violence was employed in circumstances where, the complainant in each case being outnumbered and being faced with a firearm, each complainant would have been unable to make any effective self-defence. Those attacks must have been terrifying experiences for the victims of them.
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51 I agree with Murray J that the sentences for the individual offences were properly proportionate to the criminality involved in the commission of those offences, having regard to the fact that there had been an early plea of guilty and that there were prospects of rehabilitation for the applicant. Had those mitigating circumstances not been present, significantly longer sentences would have been appropriate.
52 I also agree with Murray J that the trial Judge properly applied the totality principle. I would, however, respectfully disagree with Murray J's ultimate conclusion that the total term of 12 years was too great to be properly proportionate to the total criminality involved, even when that is considered on top of the sentences served between 21 February 2002 and 21 August 2002.
53 A sentence of 12 years' imprisonment is indeed lengthy and, subjectively, it may well be perceived by the applicant as harsh. However, when regard is had to the degree of premeditation and planning necessarily involved in obtaining a vehicle beforehand and in obtaining and using a disguise (in the majority of cases), to the use of the firearm, and to the degree of personal violence employed in two of the cases, I would not, for myself, be prepared to disagree with the learned sentencing Judge's assessment that, having already made the majority of the sentences concurrent with each other, the totality principle did not justify any further reduction in any sentence so as to reduce the aggregate term of 12 years which resulted. I therefore would grant the application for leave to appeal, but would dismiss the appeal.
54 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Murray J. I am unable to agree with his Honour that the total term of 12 years' imprisonment imposed by the learned sentencing Judge was too great to be properly proportionate to the total criminality involved.
55 In my opinion, the learned sentencing Judge properly considered and applied the totality principle and the aggregate sentence imposed upon the applicant, even taking account of the six months served immediately before it took effect, "fairly and justly reflect(ed) the total criminality of the offender's conduct": Jarvis v The Queen (1993) 20 WAR 201 per Ipp J at 207.
56 Although it is arguable that an overall sentence of 10 years may have more properly served the interests of rehabilitation of the applicant in this case, to reduce the sentence in that way would, in my view, offend the
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- principles according to which an appellate court should act. These principles were stated by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at [15] in the following terms:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
I would respectfully apply this statement to the present case and in so doing I would decline to interfere with the sentence imposed by the learned sentencing Judge. I would grant leave to appeal but dismiss the appeal.
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