Hayes v The Queen
[2002] WASCA 56
•18 MARCH 2002
HAYES -v- THE QUEEN [2002] WASCA 56
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 56 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:137/2001 | 15 FEBRUARY 2002 | |
| Coram: | WALLWORK J ANDERSON J WHEELER J | 18/03/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against sentence allowed in part | ||
| B | |||
| PDF Version |
| Parties: | RIKI NEIL HAYES THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Totality principle Offender's antecedents Remorse Gravity of offences Turns on own facts Criminal law and procedure Appeal against sentence Drug addiction Lack of maturity Need for rehabilitation Mitigation Turns on own facts |
Legislation: | Nil |
Case References: | Nil Cable v The Queen [2001] WASCA 390 Gordon v The Queen (1994) 71 A Crim R 459 Jeffree v The Queen, unreported; SCt of WA; Library No 980258, 1 May 1998 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Sikaloski v The Queen [2000] WASCA 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HAYES -v- THE QUEEN [2002] WASCA 56 CORAM : WALLWORK J
- ANDERSON J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Totality principle - Offender's antecedents - Remorse - Gravity of offences - Turns on own facts
Criminal law and procedure - Appeal against sentence - Drug addiction - Lack of maturity - Need for rehabilitation - Mitigation - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal against sentence allowed in part
Category: B
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Cable v The Queen [2001] WASCA 390
Gordon v The Queen (1994) 71 A Crim R 459
Jeffree v The Queen, unreported; SCt of WA; Library No 980258, 1 May 1998
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Sikaloski v The Queen [2000] WASCA 387
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Wheeler J.
2 There is nothing I wish to add.
3 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree with them and have nothing to add.
4 WHEELER J: On 9 January 2001 the applicant was convicted on his own plea of guilty of three counts of burglary (human habitation), one count of aggravated burglary (human habitation, armed and in company), two counts of armed robbery, one count of stealing and a breach of bail. These convictions placed him in breach of an intensive supervision order imposed in the Court of Petty Sessions on 17 August 2000 in relation to 31 offences, consisting of two breaches of bail, seven burglaries (human habitation), 17 frauds and five counts of stealing. The applicant also admitted breach of an intensive supervision order imposed on 18 August 2000 in the Children's Court in respect of one count of burglary (human habitation). On 31 January 2001 he was sentenced to an effective term of 9 years' imprisonment backdated to 3 November 2000 to take account of time in custody, with an order that he be made eligible for parole.
5 He applies for leave to appeal against the entirety of the sentence imposed upon him. It appears that he does not appeal in respect of any particular sentence, or in respect of the structure of the sentences imposed (which were effectively all concurrent) but rather simply asserts that the sentence of 9 years' imprisonment in its entirety was manifestly excessive, and failed to take account of relevant mitigating factors. It is also suggested by the grounds of appeal that the learned sentencing Judge erred in making a finding of lack of remorse and in failing to take account of the totality principle.
6 For the purposes of this appeal, it is only necessary to describe the more serious of the offences of which the applicant was convicted. Most of the offences were what could be described as relatively standard examples of offences of their kind, and in relation to some of them the applicant admitted the offences and co-operated with police (although it should be noted that in relation to at least one of the offences the applicant was apprehended in a vehicle with the stolen items in its boot).
7 However, counts 4 and 5 on the indictment concerned burglary and robbery in relation to certain premises in Morley. At about 4.25 pm on 1 November 2000 the applicant and a juvenile co-offender went to those
(Page 4)
- premises with the intention of entering and stealing property. At the time the only people in the house were three girls aged 10 and 11 years of age who were playing there after the mother of two of them had left with her husband to collect a car. The applicant and his co-offender did not expect to find anyone in the house. However, they were carrying a meat cleaver as a weapon in case they did encounter someone. When they encountered the children the applicant brandished the meat cleaver. The little girls huddled in a corner and were, of course, very frightened. They were told that if they kept quiet and did not tell anyone they would not get hurt. The applicant and the juvenile then removed various items from the house. In relation to these offences, the applicant refused to take part in a videotaped record of interview.
8 Count 7 on the indictment was an armed robbery of a taxi driver. At about 3.20 am on 2 November 2000 the applicant and a juvenile co-offender caught a taxi, directing it to the Morley area. When they arrived at Aerial Place in Morley the applicant demanded money from the taxi driver while his co-offender produced a meat cleaver and smashed the vehicle's surveillance camera. As the driver removed money from his pockets the co-offender got out of the taxi. The applicant then also produced a meat cleaver and struck the centre console of the taxi while making further demands for money. The taxi driver handed over a total of $100 before the applicant left the taxi. When questioned by police about this offence the applicant initially denied involvement in it, and when confronted with photographs from the taxi camera he declined to answer further questions. It can be appreciated from this brief description that these offences were extremely serious ones and that a custodial term of significant duration was the only appropriate disposition of them.
9 So far as the applicant's personal circumstances were concerned, his Honour had before him a pre-sentence report. His family background was set out in some detail. His Honour clearly appreciated that it was, as his Honour described it, a "sad and depressing" one. He was raised in a highly dysfunctional family environment, involving domestic violence. When he was in his early teens, his mother was imprisoned for armed robbery in company and spent a considerable amount of time in custody. Upon her release she had a heroin addiction, and it appears that she and the applicant used heroin together on occasions. He left high school at a relatively early age because of difficulties with his father with whom he was then living. Apart from four months of employment upon leaving school, he has not had any form of employment since that time nor undertaken any form of study or skills development. Having been born in April 1982, he was aged only 18 at the time of the relevant offences.
(Page 5)
10 The applicant began using cannabis and heroin at the age of 14 and had used them on a daily basis since then. His explanation for committing the offences was that he required the money in order to purchase heroin. Unfortunately, the pre-sentence report observed that he had little insight into his offending behaviour, apart from the fact that it related to his substance abuse. He was in the process of being breached for non-compliance with the counselling requirement of his intensive supervision order when he was remanded in custody for these offences. He failed to attend counselling in October 2000 or urinalysis in September 2000 as required. The pre-sentence report suggested that the applicant showed no remorse or guilt for his offending. He had, however, completed two brief periods of supervision as a juvenile successfully.
11 It is convenient to deal briefly with the particular factors relied upon by the applicant, before turning to questions of whether the sentence as a whole was manifestly excessive or failed to reflect the totality principle. His Honour expressed the view that there were no mitigating factors other than the applicant's youth and plea of guilty. It is clear, however, from his Honour's references to the applicant's background in his sentencing remarks that his Honour was also aware of, and took into account, the applicant's family background. Those matters were in my view the only mitigating factors.
12 The applicant refers also to his drug addiction, lack of maturity and need for rehabilitation as being mitigating. However, while lack of maturity might explain the offences, lack of maturity and lack of insight into his offending are factors which mean that the applicant is likely to remain a danger to the community, and can hardly be considered mitigating. The fact that the offences were committed for the purpose of obtaining heroin is not an unusual explanation for offences of this kind. It is an explanation, but it is not a matter of mitigation. Such an explanation may act in mitigation of sentence if it is coupled with a recognition of the undesirability of the addiction and with signs of some determined effort to overcome the addiction. In that case, it may be thought that the risk otherwise posed to the community by the offender is somewhat diminished, and somewhat greater weight may be placed upon the need to encourage further efforts towards rehabilitation. Those considerations are not applicable here.
13 Contrary to the submissions made by the applicant, it is my view that the learned sentencing Judge did not err in finding that the applicant had no remorse whatsoever. The applicant did receive credit for his plea of guilty. However, the history of his dealings with police suggests that he
(Page 6)
- was prepared to admit to guilt only in circumstances where no alternative explanation was available to him and, in the case of the offence involving the taxi driver, he made no admissions even in the face of the photographic evidence. That is consistent with the finding in the pre-sentence report that the applicant displayed no remorse.
14 So far as the totality of the sentence itself is concerned, I would reject the relevance of the applicant's assertion that the offences which I have described "could not be categorised as being at the top end scale for offences of this type". It is to be observed that the offences, involving the type of weapons which they did and their use to intimidate small children in one case, and a person in a vulnerable position in another, are somewhat more serious than the usual type of armed robbery. It is true that more serious offences of their type can be imagined and have been encountered in the courts, but, a term of imprisonment of 9 years – or even his Honour's starting point of 14 years – is far from the maximum penalty available in respect of two separate offences of armed robbery.
15 Having regard to the applicant's youth and plea of guilty, it is my view that it would be appropriate to impose a somewhat lesser sentence in respect of each of the two armed robberies I have described, of the order of 6 years. However, as they were entirely separate transactions it would be appropriate to make those sentences cumulative. It would then, having regard to the applicant's age, be necessary to discount one or both of them in order to take account of the totality principle. The overall effect however, would not be different from the sentence imposed by his Honour. It is my view that a sentence of 9 years' imprisonment was entirely appropriate for two offences of this kind (that is, even leaving aside all of the other offences of which the applicant was convicted), having regard to the applicant's circumstances, youth, and plea of guilty. The sentence may be considered a severe one for a person of the applicant's age. However, having regard to the gravity of the offences involved, a lesser sentence would be inadequate to reflect the gravity of the offences and the need for deterrence and protection of the community from offences of this kind.
16 Although the grounds of the application are concerned only with the overall sentence imposed, it is my view that the preferable course, for the reasons expressed above, is to allow the application, and to allow the appeal with respect to counts 5 and 7 to the extent of substituting a sentence of 6 years in respect of count 5 and 3 years in respect of count 7, to be served cumulatively. The effective sentence is the same as that imposed by his Honour. I would otherwise dismiss the appeal.
0
6
1