HDS v The State of Western Australia

[2015] WASCA 69

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HDS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 69

CORAM:   McLURE P

MAZZA JA

HEARD:   16 MARCH 2015

DELIVERED          :   2 APRIL 2015

FILE NO/S:   CACR 191 of 2014

BETWEEN:   HDS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :REYNOLDS P

Citation  :[2014] WACC 6

File No  :CCBS 142 of 2013, CCBS 143 of 2013, CCBS 170 of 2013, CCBS 171 of 2013, CCBS 172 of 2013, CCBS 173 of 2013, CCBS 174 of 2013, CCBS 176 of 2013, CCBS 177 of 2013, CCBS 178 of 2013, CCBS 179 of 2013, CCBS 180 of 2013, CCBS 183 of 2013, CCBS 184 of 2013, CCBU 623 of 2013, CCBU 624 of 2013, CCBU 625 of 2013, CCBU 626 of 2013, CCBU 627 of 2013, CCBU 628 of 2013, CCBU 629 of 2013, CCBU 318 of 2014

Catchwords:

Criminal law - Leave to appeal against sentence - Various offences - Total effective sentence 2 years' immediate imprisonment and $1,000 fine - Whether sentencing judge disregarded sentencing magistrate's finding of fact - Whether infringement of first limb of totality principle

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 50
Young Offenders Act 1994 (WA), s 67

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr A C McIntosh

Respondent:     No appearance

Solicitors:

Appellant:     Gabrielle Clarke Legal

Respondent:     Director of Public Prosecutions (WA)

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

CAW (a child) v Jacob [2011] WASC 238

MC (a child) v The Queen [2003] WASCA 205

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

The State of Western Australia v HDS [2014] WACC 6

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P:  I agree with Mazza JA.

2. MAZZA JA:  The appellant seeks leave to appeal against sentences imposed by Reynolds P in the Children's Court of Western Australia on 7 November 2014: The State of Western Australia v HDS [2014] WACC 6.

3. The proceedings in the court below have something of a chequered history.  The appellant was convicted after trial by a Children's Court magistrate of ten charges arising out of an incident which occurred on 8 October 2013 at a house in suburban Bunbury. 

4. When the magistrate came to sentence the appellant for these offences on 29 August 2014, she also sentenced him in respect of 12 offences to which the appellant had pleaded guilty that were unrelated to the offences which occurred on 8 October 2013.

5. The magistrate sentenced the appellant to 11 months' detention in respect of four of the offences committed on 8 October 2013. She imposed no further punishment in respect of all of the other offences, purporting to act pursuant to s 67 of the Young Offenders Act 1994 (WA).

6. Pursuant to s 40 of the Children's Court of Western Australia Act 1988 (WA), Reynolds P reconsidered the sentences and orders made by the learned magistrate. His reasons for doing so are set out in The State of Western Australia v HDS.  It is unnecessary for present purposes to set out his Honour's reasons for taking this course.  It is sufficient to observe that the appellant does not challenge the course taken by his Honour.  Based on the findings of fact made by the learned magistrate, and having obtained an up‑to‑date pre‑sentence report and psychological report, his Honour set aside the sentences and orders imposed by the magistrate.  He resentenced the appellant as follows:

Charge	Offence	Maximum penalty		Sentence imposed by Reynolds P
Offences committed 8 October 2013
170/2013	Aggravated burglary and committing an offence in a dwelling (s 401(2)(a) of the Criminal Code)		20 years' imprisonment	16 months' immediate imprisonment concurrent

171/2013	Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) of the Criminal Code)		7 years' imprisonment	6 months' immediate imprisonment cumulative on the sentence on 173/2013
172/2013	Unlawful assault causing bodily harm in circumstances of aggravation (s 317(1) of the Criminal Code)		7 years' imprisonment	6 months' immediate imprisonment concurrent
173/2013	Aggravated armed robbery (s 392(c) and (d) of the Criminal Code)		Imprisonment for life or 20 years' imprisonment	18 months' immediate imprisonment
174/2013	Aggravated armed robbery (s 392(c) and (d) of the Criminal Code)		Imprisonment for life or 20 years' imprisonment	18 months' immediate imprisonment concurrent
176/2013	Threat to kill (s 338(B)(a) of the Criminal Code)		7 years' imprisonment	3 months' immediate imprisonment concurrent
177/2013	Stealing (s 378 of the Criminal Code)		7 years' imprisonment	1 month immediate imprisonment concurrent
178/2013	Common assault (s 313(1)(b) of the Criminal Code)		18 months' imprisonment and a fine of $18,000	3 months' immediate imprisonment concurrent
179/2013	Common assault (s 313(1)(b) of the Criminal Code)		18 months' imprisonment and a fine of $18,000	3 months' immediate imprisonment concurrent
180/2013	Unlawful damage (s 445 of the Criminal Code)		2 years' imprisonment and a fine of $24,000	1 month's immediate imprisonment concurrent
Offence committed 17 September 2013
142/2013	Possession of drug paraphernalia in or on which there was a prohibited drug or plant (s 7B(6) of the Misuse of Drugs Act)	A fine of $36,000 or 3 years' imprisonment or both		$100 fine
143/2013	Possession of drug paraphernalia in or on which there was a prohibited drug or plant (s 7B(6) of the Misuse of Drugs Act)	A fine of $36,000 or 3 years' imprisonment or both		$100 fine
Offence committed 29 October 2013
623/2013	Disobeyed a summons served in accordance with s 32(2) of the Criminal Procedure Act (s 181(1) of the Criminal Procedure Act)	12 months' imprisonment or a fine of $12,000		$100 fine
Offence committed 4 November 2013
184/2013	Possessing stolen or unlawfully obtained property (s 428(1) of the Criminal Code)	2 years' imprisonment and a fine of $24,000		$100 fine
Offence committed 5 November 2013
183/2013	Stealing (s 378 of the Criminal Code)	7 years' imprisonment		$100 fine
Offences Committed 6 November 2013
624/2013	Possession of drug paraphernalia in or on which there was a prohibited drug or plant (s 7B(6) of the Misuse of Drugs Act)	A fine of $36,000 or 3 years' imprisonment or both		$100 fine
625/2013	Breach of protective bail conditions (s 51(2a) of the Bail Act)	Liable to a fine not exceeding $10,000 or 3 years' imprisonment or both		$100 fine
626/2013	Stealing (s 378 of the Criminal Code)	7 years' imprisonment		$100 fine
627/2013	Stealing (s 378 of the Criminal Code)	7 years' imprisonment		$100 fine
628/2013	Assault with intent to prevent arrest of a person (s 317A of the Criminal Code)	5 years' imprisonment		3 months' imprisonment, to be served concurrently with 629/2013 and concurrent on the total effective sentence of 2 years' imprisonment for offences committed on 8 October 2013
629/2013	Threats to injure, endanger or harm any person (s 338B(b) of the Criminal Code)	3 years' imprisonment		3 months' imprisonment,  to be served concurrently with 628/2013 and concurrent on the total effective sentence of 2 years' imprisonment for offences committed on 8 October 2013
318/2014	Possessing stolen or unlawfully obtained property (s 428(1) of the Criminal Code)	2 years' imprisonment and a fine of $24,000		$100 fine

1. Thus the total effective sentence imposed upon the appellant was 2 years' immediate imprisonment with eligibility for parole, to commence on 6 November 2013, and fines which totalled $1,000.

The proposed grounds of appeal

1. The appellant seeks leave to appeal on two grounds.  Ground 1 alleges that the learned sentencing judge 'disregarded … the finding by the trial magistrate that the appellant was a young person who was coaxed into the offending by older offenders'.  Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle. 

The general principles governing this appeal

1. The general principles which govern this appeal are well‑know and were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

The facts

1. The appellant was born on 10 June 1996.  He turned 18 on 10 June 2014. 

2. At the time of his offending, the appellant was 17 years and 4 months of age.  By the time of his sentencing, whether before the magistrate or Reynolds P, he was 18 years of age. 

3. It is convenient to deal first with the offences that were committed on 8 October 2013 and were the subject of the trial by the magistrate (170/2013 ‑ 180/2013). 

4. At about 8.30 pm on 7 October 2013, the appellant's cousin, NL, a female, in company with another woman, LS, went to a house in Glen Iris, a suburb of Bunbury.  They were looking for Ms KM.  It appears that NL and KM were at loggerheads.  After some persuasion, LS and NL left the house.  However, in the early hours of 8 October 2013, they returned, along with the appellant and an older man who has not been identified.  Evidence led at the trial supported the suggestion that NL called the appellant to assist her in her dispute with KM.  The plan was for the appellant and the others to enter the house and inflict personal violence upon the occupants.  The appellant and at least one other were armed with a baseball bat.

5. The appellant and the others forced their way into the house.  Two of the offenders seriously assaulted KM and inflicted injuries upon her which constituted bodily harm.  The appellant then entered a bedroom where he assaulted the occupant of that room, CR, with the baseball bat.  The appellant inflicted bodily harm upon CR.  The appellant then grabbed a knife and robbed CR and another occupant of the room of their wallets and mobile telephones.  The appellant, while armed with both the baseball bat and the knife, threatened to kill another occupant of the house.  Two other occupants of the house were assaulted by the appellant's co‑offenders.

6. The facts of the offences the subject of the guilty pleas are as follows.

7. On 17 September 2013, police found the appellant with a cannabis smoking implement and a coffee grinder which had been used to grind cannabis (142 and 143 of 2013).

8. On 29 October 2013, the appellant failed to appear in the Busselton Children's Court in answer to a summons which had been served upon him (623 of 2013). 

9. On 4 November  2013, the appellant came into possession of a bicycle reasonably suspected of being stolen (184 of 2013).

10. On 5 November 2013, the appellant entered the complainant's unlocked motor vehicle parked in a driveway and stole his wallet which contained $400 in cash and a number of cards (183 of 2013). 

11. On 6 November 2013, the appellant was at a shopping centre in Bunbury in company with his girlfriend. The appellant and his girlfriend stole clothing from two stores in the shopping centre.  A security guard became suspicious of the appellant's behaviour and approached two police officers for assistance.  When the police officers began approaching the appellant, he ran away from them.  A bystander stepped into his path to assist the pursuing police officers.  The appellant pulled out a pair of scissors and threatened the bystander.  The bystander tackled the appellant to the ground and, in doing so, received minor injuries to his face and arms from the scissors.

12. After the police officers arrested the appellant, the appellant verbally threatened the bystander, saying that he knew where the bystander worked and that he would kill him and 'have the bikies come after him' (626, 627, 628 and 629 of 2013).

13. A search of the appellant's belongings revealed that he was carrying a smoking implement with detectable traces of tetrahydrocannabinol on it (624 of 2013).  The appellant was, at the time, on bail.  His presence at the shopping centre was in breach of the conditions of his bail (625 of 2013).

14. The search of the appellant also revealed that he was carrying keys and a lanyard which had been stolen during a burglary on 5 November 2013 (318 of 2014). 

The appellant's personal circumstances

1. As I have already said, the appellant was 17 years of age at the time of the offending.  His parents separated when he was approximately 9 years of age.  Since then he has predominantly lived with his mother.  His education is limited and he has not ever been in employment.

2. He began smoking cannabis and intravenous use of amphetamines and methylamphetamine from a very young age.  He was also a user of benzodiazepines. 

3. The appellant has a long and extensive record of convictions, including for armed robbery, endangering the life, health or safety of a person, stealing, wilful damage, burglary and aggravated burglary, various driving offences and breaching a restraining order.

4. At the time of the offences on 8 October 2013, the appellant was subject to a supervised release order for a 'third strike' burglary on a dwelling.

The reports

1. The pre‑sentence report and the psychological report written by Ms Cinzia Zuin were both negative. 

2. Ms Zuin observed that the appellant displayed a 'blatant disregard for rules and social norms and lack of remorse and empathy'.  She observed that the appellant had 'a sense of entitlement' to commit crime for the 'thrill of it'.  He indicated to Ms Zuin that he had no interest in addressing his drug use and told her that he will 'probably' keep using drugs, describing them as 'part of life'.  Ms Zuin wrote that the appellant has no interest in gaining employment or furthering his education.  He has no goals for the future and no interest in curbing his antisocial lifestyle. The appellant exhibits many of the features typically associated with an antisocial personality disorder.

3. Both Ms Zuin and the author of the pre‑sentence report expressed considerable concern as to the appellant's risk of reoffending.

4. His Honour said that he had 'the advantage of knowing and being able to proceed on the basis of the findings of fact made by [the magistrate]' (ts 29).  His Honour noted that, with respect to the offences committed on 8 October 2013, the appellant was not entitled to any discount which would have been given if he had pleaded guilty.  He noted that in respect of these offences, the appellant had little or no remorse (ts 52). 

5. Although the appellant was an adult at the time he was sentenced, it is clear that he was sentenced according to the principles of juvenile justice set out in the Young Offenders Act.  His Honour gave mitigating weight to the appellant's youth and to the need to facilitate his rehabilitation.  His Honour also had regard to the fact that any custodial sentence he imposed would be served in an adult prison.  To be weighed against these matters were considerations of general and personal deterrence, the need to protect the community and the need to provide a proper measure of punishment.  His Honour said that the only appropriate sentence to be imposed upon the appellant was an immediate term of imprisonment.  As his Honour put it, the real question was how long that term should be.  His Honour took into account issues of concurrency, cumulacy and totality. 

The grounds of appeal

Ground 1 - Reynolds P's alleged disregard of the magistrate's finding of fact

1. The appellant submits that Reynolds P disregarded the finding of the magistrate that the appellant, due to his youth, was led to offend by older offenders:  written submissions, par 139.

2. The particulars in support of the appeal allege that the magistrate found that the appellant was 'coaxed' into the offending by older offenders.  That was not the magistrate's finding.  The word 'coaxed' does not appear in her sentencing remarks and, to the extent that it may suggest that the appellant was reluctant or unwilling, is inaccurate.

3. As to the appellant's role in the commission of the offences on 8 October 2013, the magistrate said:

   Whilst your role to some extent may have been influenced by the older people you were with, you were, in my view, a very active participant in what happened (ts 29).

4. She continued:

   Notwithstanding [that] you were, in my view, the younger player in all of this, that only in some way mitigates your behaviour (ts 29).

5. Reynolds P expressly had regard to the magistrate's findings of fact.  He referred to the circumstances of the offending and the appellant's antecedents, including his age.  While he did not specifically refer to the appellant being the youngest of the offenders, and that the appellant may have been influenced by them, it cannot realistically be argued, having regard to his sentencing reasons as a whole, that his Honour disregarded these things. 

6. Ground 1 has no reasonable prospect of success.  Leave to appeal should be refused.

Ground 2 - totality

1. The totality principle is well known.  A generally accepted statement of it is contained in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25]. The first limb of the totality principle is that the total sentence must bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

2. The appellant's argument in support of ground 2 relies upon a contention that the total effective sentence imposed in the present case was inconsistent with what was said to be broadly comparable cases, namely CAW (a child) v Jacob [2011] WASC 238 and MC (a child) v The Queen [2003] WASCA 205.

3. It is relevant to a consideration of a claim that the total effective sentence breaches the first limb of the totality principle, to have regard to sentences imposed in similar cases.  The purpose of this exercise is to ensure broad consistency in sentencing.  However, two cases, one of which is a decision of a single judge, hardly represent a sufficient basis upon which to ground a claim that, in the present case, the first limb of the totality principle has been infringed.  The cases cited, in any event, are not apt comparators. 

4. The offences committed by the appellant on 8 October 2013 were extremely serious.  While the appellant was young and may have been influenced by others, there was no hint of reluctance on the appellant's part.  He arrived at the house armed with a baseball bat and, when the opportunity presented itself, he further armed himself with a knife.  After assaulting one of the occupants of the house, he robbed another two of the occupants.  He, accompanied by the others, completely terrorised those who were in the house.  He was, at the time of these offences, the subject of a supervised release order.

5. There were some serious features of some of the offences for which the appellant pleaded guilty.  The offences which occurred in the shopping centre were disturbing, having regard to the appellant's use of scissors to prevent his capture. 

6. Apart from the appellant's youth and his pleas of guilty, there was regrettably very little to be said in mitigation.  The appellant's personal circumstances are unfavourable.  Given his present attitude, his risk of reoffending is high. 

7. Reynolds P was right to emphasise personal and general deterrence, protection of the public and punishment.

8. In my opinion, it is not reasonably arguable that the total effective sentence imposed by Reynolds P infringed the first limb of the totality principle.  I would not give leave to appeal in relation to ground 2.

Conclusion and orders

1. Leave to appeal should be refused in respect of both grounds of appeal.  The appeal should be taken to be dismissed. 

2. The orders I would make are:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.