Haylock v The Queen - [2000] WASCA 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HAYLOCK -v- THE QUEEN [2000] WASCA 287

CORAM: IPP J
WALLWORK J
PARKER J

HEARD: 1 AUGUST 2000

DELIVERED : 10 OCTOBER 2000

FILE NO/S: CCA 150 of 1999

BETWEEN: CHAD DANIEL HAYLOCK
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - 12 offences including 4 counts of armed robbery - Totality principle - Whether sentence of 12 years imprisonment with eligibility for parole excessive - 21 year old offender with difficult background

Legislation:

Nil

Result:

Leave to appeal refused

Representation:

Counsel:

Applicant: Ms J A Wager
Respondent: Mr R E Cock QC & Mr J R N Rowe

Solicitors:

Applicant: Unrepresented Criminal Appellants Scheme
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen (1993) 20 WAR 20
Mill v The Queen (1988) 166 CLR 59

Case(s) also cited:

Nil

IPP J: I have read the reasons to be published by Parker J. I am in agreement with those reasons and have nothing further to add.
WALLWORK J: I agree with the reasons for judgment of Parker J and to the order proposed by his Honour.
PARKER J:

Introduction

The applicant seeks leave to appeal against sentences totalling 12 years imprisonment with eligibility for parole, passed upon him by Murray J on 16 July 1999 for a number of offences committed during a four week period in November and December 1998. The offences were committed whilst the applicant was on parole in respect of previous sentences imposed in Victoria. Furthermore, between the commission of the offences the subject of this appeal and sentencing, the applicant breached an Intensive Supervision Order (ISO) imposed for offences he committed in 1997 and was sentenced at the Perth Court of Petty Sessions to 21 months imprisonment.
At the time of sentencing the applicant was aged 21 and was a sentenced prisoner. The sentences imposed by the sentencing Judge were cumulative upon the sentences the applicant was serving at the time, so that service of them commenced from the 11 August 1999.
Murray J sentenced the applicant in respect of four counts of armed robbery, four counts of stealing a motor vehicle, two counts of burglary, one count of assaulting a police officer and one count of stealing. Many of these sentences were ordered to be served concurrently.
The following table indicates the sentences he imposed:-

COUNT	OFFENCE	SENTENCE	CUMULATIVE	CONCURRENT	EFFECTIVE TOTAL (PROGRESSIVE)
1	Stealing MV	2 years imprisonment	2 years
2	Stealing MV	2 years imprisonment	With counts 1,5 & 9	2 years
5	Stealing MV	2 years imprisonment	With counts 1,2 & 9	2 years
9	Stealing MV	2 years imprisonment	With counts 1,2 & 5	2 years

COUNT	OFFENCE	SENTENCE	CUMULATIVE	CONCURRENT	EFFECTIVE TOTAL (PROGRESSIVE)
3	Burglary	3 years imprisonment	With counts 1,2,5, 9 & 4	3 years
4	Aggravated Burglary	3 years imprisonment	With counts 1,2,5,9 & 3	3 years
6	Armed Robbery	4.1/2 years imprisonment	On counts 1,2,5,9,3 & 4	With count 8	7 1/2 years
8	Armed Robbery	4.1/2 years imprisonment	On counts 1,2,5,9,3 & 4	With count 6	7 1/2 years
7	Aggravated Assault	2 years imprisonment	With all previous counts	7 1/2 years
10	Armed Robbery	4.1/2 years imprisonment	On counts 1,2,5,9,3,4,6 & 8	With count 11	12 years
11	Armed Robbery	4.1/2 years imprisonment	On counts 1,2,5,9,3,4,6 & 8	With count 10	12 years
12	Stealing	3 years imprisonment	With counts 10 & 11	12 years

The effect of these and the earlier sentences is that the earliest date on which the applicant will be eligible for release on parole is 1 April 2006.

Facts

The applicant pleaded guilty to all the offences on 16 July 1999.
Count one occurred on 30 November 1998 in Osborne Park. The applicant stole an unmarked police vehicle from a car carrier truck. The car had the keys in its ignition as it was about to be driven off the carrier truck. The applicant drove the vehicle to the Innaloo Cinema Centre where it was given to another person. Nine days later the vehicle was recovered by the Police.
Count two occurred on 3 December 1998 when the applicant stole a Holden station wagon from the Karrinyup Shopping Centre carpark. Police officers later recovered the vehicle in Balcatta. The car had damage to the front bumper and some accessories were missing.
Count three occurred on 5 December 1998 at Karrinyup, where the applicant entered a person's home without the owner's consent. The applicant knocked on the front door, received no answer, walked to the garage door and opened it. From the garage he entered the house through an unlocked door. In the passageway he was confronted by the complainant. She had been alerted when she heard the garage door open. The applicant had a short conversation with the complainant, telling her he was looking for a friend of his. The complainant told him to leave the house and he did so, via the front door.
The offence the subject of count four occurred on 17 December 1998. The applicant, with another offender not identified at the time of sentencing, forced entry to the Churchlands Post Office by smashing a glass panel of the front door with two dumbbell weights. Once inside the two of them ransacked drawers and cupboards and stole Transperth Multirider tickets valued at $3000, $400 worth of telephone cards and two cash registers each valued at $2600. One of the cash registers contained $1000 in cash. The total value of the property stolen was $8300 and the damage to the premises was to the value of $400.
Count five was committed on 18 December 1998 when the applicant, with several other offenders, stole a Commodore sedan motor vehicle from the Floreat Forum shopping centre and drove it to a set of units in Wembley. From there the applicant drove, again, to the Churchlands Post Office. After using the vehicle for the purposes of counts six to nine, the applicant and his co-offenders drove it back to the units in Wembley, where they set fire to it.
Count six was a charge of armed robbery in company committed on 18 December 1998. The applicant ran into the Churchlands Post Office in company with two co-offenders. He kicked open a gate that led from the main store area to the staff counter section. There were approximately 12 customers and staff in the store, whom he threatened and told to "keep back" . He was armed with a tyre lever. He opened drawers and stole the contents. The applicant took the cash register from the counter, dropped it, and caused $500 worth of damage to it. The applicant and the co-offenders then ran from the Post Office, got into the stolen car the subject of Count 5, and left. The applicant drove the vehicle. The Churchlands Post Office suffered a further loss of $8000 in stolen property and related damage.
Count seven was a charge of assault occasioning bodily harm. The applicant assaulted one of the customers in the Post Office the subject of count six. The customer was an off-duty police officer who had attempted to detain the applicant. The applicant repeatedly punched and kicked the police officer, whilst one of the co-offenders moved behind the counter and stole $2000 cash from the drawer. The co-offender then hit the police officer across the head with the cash drawer, wounding him and forcing him to release his grip on the applicant who made off.
Count eight followed counts six and seven. The applicant and the co-offenders, who were still in the stolen Commodore sedan, drove to a shop in Wembley. The applicant entered the store armed with a hammer. He threatened the proprietor and demanded money. The proprietor handed over $250 and the applicant left the premises.
Count nine occurred between 10.30am and 1pm on 24 December 1998. The applicant stole a Toyota sedan which was parked in a Golf Club carpark at Neerabup. He forced his way into the vehicle, started it, and drove away. After the events that concern counts ten, eleven and twelve, the vehicle was dumped at the carpark of the Gwelup shopping centre. When police recovered the car it was found to have been damaged at the front end and side panels.
Count ten, an offence of armed robbery in company, occurred shortly after count nine, when the applicant entered a newsagency in Scarborough with a co-offender. The applicant was armed with a knife. He threatened the shop attendant by jabbing at her with the knife. He moved behind the counter and opened one cash register. He demanded the attendant open up the second cash register, which she did. He then demanded Post Office money, and after being told there was none, still continued to demand money. The offender told his co-offender to remove the cash register trays, which he did. He then turned again to the shop attendant and demanded her handbag. At the time he was still threatening her with the knife. She told him it was in her car. Both offenders then left the store and drove away in the stolen Toyota sedan the subject of Count nine.
Counts eleven, robbery with personal violence, and twelve, stealing, relate to the an incident where the applicant, at about 1.40pm on the 24 December 1998, drove to Flamborough Street in Doubleview and stopped near the premises at Number 219 on that street. Two women were at the front of those premises, packing their car. The applicant, in company with a co-offender, walked over to them. The applicant grabbed the handbag of one woman and wrestled it from her, grazing and bruising the woman's arm. The applicant also instructed his co-offender to steal the handbag of the other woman from inside the vehicle. He did so. The two offenders drove away in the stolen vehicle. The offenders were later found with the stolen vehicle.

The Appeal

It was conceded for the applicant at the hearing of the appeal that each of the individual sentences comprising the total sentence were within a sound discretionary range. That may be misleading, however, as it is clear when the circumstances of many of the offences are considered that the terms imposed for them are less than would normally have been appropriate. It is apparent they have been decreased out of regard for the totality principle.
The appeal was advanced essentially on the ground that the sentences were, in their totality, manifestly excessive. Emphasis was placed on the particular circumstances of the applicant, especially his age, troubled background and what was submitted to be a new positive start in his life.

Applicant's Background

It was submitted to the sentencing judge that the applicant has suffered a lack of even the most rudimentary parenting in his life. The applicant's parents separated when the applicant was three. He lived with his mother and her new partner for a short time, but was subjected to physical and mental abuse by his stepfather. At the age of ten he left school and entered various foster homes. He ended up living on the streets by the time he was 11 where his life was characterised by drug abuse.
The applicant's first appearance in court was at the age of 12 years and 3 months, by which time, it appears, he had experienced violence at the hands of his stepfather and was no longer welcome in either the home of his stepfather and mother, or the home of his natural father.
It can be accepted that the applicant's childhood and early teenage years were characterised by addiction to illicit drugs, a lack of appropriate care, guidance and role-modelling, and some violence at the hands of people who were meant to be care-givers.
The tragedy of this is obvious. It is to be observed, however, that there may not be a clear differentiation of cause and effect, as it appears that from his early years the applicant had serious behavioural problems that at least exacerbated the problems with his home life and parents.

Grounds of Appeal

The applicant submits that the sentencing Judge failed to take into account or give sufficient weight to various mitigating circumstances many of which arose from the applicant's unfortunate background, the applicant's youth, his early pleas of guilty and cooperation with the police, and a new commitment which it was submitted the applicant had to dealing with his past problems.
It was the applicant's submission that his extensive record prior to the age of 18 was largely due to what was then his growing addiction to illicit substances and his life without parental supervision or adult support. It is apparent from psychological reports that the applicant's drug addition had developed during this time. It was submitted that the applicant's record relating to dishonesty was due to his drug addiction and a need for money to support his drug habits.
The applicant's record also involved violent offences. The reports submitted on behalf of the applicant indicate that the applicant has not learned how to handle anger or disappointment. He attributes his violent reactions to the fact that he lacks trust in others and does not like authority because of the treatment he had received from his stepfather. While there may well be some substance in much of this, it also involves a failure by the applicant to recognise the role of his own misbehaviour, especially this uncontrolled anti-social behaviour in which he has indulged since quite early years, in causing or contributing to the problems experienced with his parents, stepfather and others.
It is well recognised in the reports on the applicant, which were before the sentencing Judge, that, until the applicant's problems of anger management, inappropriate seeking of risks and drug addiction are dealt with, he remains at real risk of re-offending. It is apparent from the record that until now the opportunities given to the applicant to rehabilitate have failed because he has not taken them up.
It was submitted, however, that during the six months the applicant served in prison for the breach of the ISO before being sentenced for the offences the subject of this appeal, the applicant had shown some change in his attitude towards the counselling and assistance he could receive within the prison system. These changes included the applicant becoming involved in the "Prison to Parole Drug Program" and one anger management program. He was due to commence a further anger management program at the time of the hearing and had started formal counselling for drug rehabilitation. This does indicate a change from his previous attitude.
It is submitted that the applicant's new positive attitude towards these problems should be encouraged and justifies the court offering to the applicant some hope for release in the reasonably foreseeable future. For the first time in his life, it is submitted, the applicant has displayed a degree of enthusiasm towards the programs available to help him, that enthusiasm being demonstrated before the 12-year sentence was imposed. It was submitted there is a grave danger that the applicant's enthusiasm could not be sustained during the term he must serve pursuant to the sentences totalling 12 years before being eligible for release on parole.
While there is reason for some reservation about the objectivity and reliability of all that is advanced by the applicant as to his childhood and youth, there is every justification for the clearly sympathetic understanding and evaluation of those circumstances that are revealed in the sentencing comments of Murray J, which include the following passage:-
"How one copes as a young person in the situation in which you were found beggars belief but there it is, it is history now and you are coming up to your 22nd birthday, you are still a young person and one would hope you have still got a future in front of you.
You will have to address these personal difficulties. The psychological damage which has been done to you will need attention and care and you are on the right track. I am delighted to hear that you are proposing to make good use of your time in prison. Mind you, you won't be able to fill the period of time that I must impose upon you which will need to be served in prison in that way, so the more you can do to keep yourself active and keep yourself working on projects which give you qualifications and things of that sort, the better off you will ultimately be.
I can only wish you luck with that process because it seems to me that you have now brought yourself to the state, after a very long period of offending when all sorts of things have been tried, where you are showing some signs for the first time ever of having sufficient maturity and strength within yourself to actually start to make a go of it. If you succeed it will be down to you entirely that you have managed it, it won't be anybody else, but you won't be able to manage it by yourself, you will need help, and that help may be difficult to obtain, it may be difficult to obtain in sensible form, but you must keep trying. That is all I can say to you really about that by way of encouragement and advice."
The record reveals that all the relevant information was before his Honour and the sentencing remarks confirm that his Honour was well conscious of the matters now advanced and sought to give due weight to them.
In my view, it is clear that the background of the applicant, his age, his cooperation with the police and his early plea of guilty, the encouraging recent signs of a change in attitude by the applicant and his attempts to address his personal difficulties combined to lead his Honour to impose individual terms which, in respect of many of the offences, are significantly below those which might otherwise have been warranted for the individual offences.
The effect which his Honour gave to these considerations cannot be viewed entirely in isolation, however, as there is a substantial overlap with the issue of totality, to which I now turn.
It is further contended that insufficient regard was had to the totality principle. His Honour expressly stated that he was applying the totality principle and it is quite clear that, in addition to reducing terms of imprisonment that would otherwise have been appropriate, Murray J ordered many of the sentences to be served concurrently even though they would normally have warranted cumulative terms. By the combination of these means the effective total term was very substantially reduced. Nevertheless, it was the applicant's contention that, in the result, his Honour did not give sufficient effect to the totality principle and that the overall sentence should be reduced even further.
In Mill v The Queen (1988) 166 CLR 59 at 62-63 the following statement of the totality principle in Thomas' Principles of Sentencing (2nd ed. 1979) at 56 was approved:-
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.… It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all offences."
The High Court went on to say at 63:-
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
As Murray J observed in Jarvis v The Queen (1993) 20 WAR 201 at 213:-
"It was Wickham J in Thomson v The Queen (unreported, Court of Criminal Appeal, WA, 19 March 1973) who first expressed the totality principle in the phrase "enough is enough" which seems to me to succinctly express the final result to be achieved in terms of proportionality of the aggregate penalty to the total criminality to which it is to be applied. In my opinion there is no other or additional content to the principle, and when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of a "a crushing result", that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total terms having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence.
That is not I think, a consideration to be applied entirely subjectively, having regard to the particular position and circumstances of the offender before the court. Rather, although the correlation of the sentences and their application to the particular offender are to be regarded, it is the objective consideration of their potential total effect by which the court must ultimately be led to the conclusion that the totality principle has been properly served, or alternatively infringed; see Vaitos v The Queen (1981) 4 A Crim R 238."

Of course the totality principle has regard not only to the total effect of the sentences imposed on one occasion but also to their effect in conjunction with other existing offences. No issue as to the second of these situations is raised in this application.
With respect to the sentences imposed by Murray J the issue may be seen to be whether an effective total of 12 years imprisonment is "just and appropriate" to the totality of the criminal behaviour of the applicant. Is the total effect unduly severe?
The circumstances of the individual offences have been detailed earlier. They were committed over some four weeks and while the applicant was on parole for earlier offences. They cannot be said, even if regarded as one extended episode which they were not, to be isolated or uncharacteristic of the applicant. His record is significant indeed. A number of offences, especially the armed robberies, involved very serious criminal conduct. A number of victims were threatened with violence or were dealt with violently in what must have been very disturbing circumstances. The offences demonstrate that over several weeks there was a complete lack of respect for the law, other persons and their property. The armed robbery offences alone warranted terms totalling more than double the effective total of 12 years imposed by his Honour.
I am not persuaded that the matters advanced with respect to the applicant's pleas and cooperation, his age, antecedents including his disadvantaged childhood, and the signs of an improved attitude have not been fully and sympathetically considered and appropriately weighed by his Honour, along with the nature and circumstances of the offences and the total criminality which they represent. It appears to me that by the imposition of terms which in many cases are significantly less than would otherwise be justified, and by the very extensive use of concurrent terms which could not otherwise have been justified as a matter of principle, his Honour has clearly considerably mitigated the sentences that might have been imposed and has sought to give due effect to the totality principle. The submissions of the applicant to the contrary fail, in my view, to have due regard to the nature and extent of the applicant's total criminality over the period of some four weeks. This cannot be put aside, indeed it becomes the essence of the sentencing task and the touchstone for the application of the totality principle once appropriate sentences for each individual sentence have been determined as a starting point. The gravity of that conduct viewed overall is such, in my view, that an effective term of 12 years cannot be said to be too harsh or unjustified.
I have not been persuaded that the sentences imposed and their effective total of 12 years imprisonment, with eligibility for parole, is other than the product of a sound exercise of sentencing discretion in the circumstances.

Result

For the reasons given I would refuse leave to appeal.