Herz v The State of Western Australia

[2022] WASCA 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HERZ -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 73

CORAM:   BUSS P

MAZZA JA

HEARD:   10 MARCH 2022

DELIVERED          :   27 JUNE 2022

FILE NO/S:   CACR 150 of 2021

BETWEEN:   MARK RONALD HERZ

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   WALLACE DCJ

File Number            :   IND 696 of 2020

Catchwords:

Criminal law - Appeal against sentence - Aggravated burglary - Robbery - Deprivation of liberty - Appellant convicted after trial of four counts - Total effective sentence of 7 years 3 months' imprisonment - Whether sentencing judge infringed rule against double punishment - Whether sentence infringed totality principle

Legislation:

Criminal Code (WA), s 333, s 392, s 401

Result:

Leave to appeal refused on grounds 1 and 2
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	P N Bevilacqua
Respondent	:	No appearance

Solicitors:

Appellant	:	Paul Bevilacqua
Respondent	:	Director of Public Prosecutions (WA)

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

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

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

The State of Western Australia v ADS [2021] WASCA 99

JUDGMENT OF THE COURT:

1. The appellant and Craig Anthony Ugle were together charged with four offences, all of which occurred on or about 6 July 2019 at Hammond Park. 

2. The four counts were as follows:

   (1)On or about 6 July 2019 at Hammond Park [Mr Ugle] and [the appellant], while in the place of [Ms Sproat] without her consent, committed the offence of stealing

   And that [Mr Ugle] and [the appellant] were armed with an offensive weapon, namely a tomahawk

   And that [Mr Ugle] and [the appellant] were in company with each other

   And that immediately before the commission of the offence [Mr Ugle] and [the appellant] knew or ought to have known that there was another person in the place

   And that the place was ordinarily used for human habitation

   And that [Mr Ugle] is a repeat offender.

   (2)On the same date and at the same place [Mr Ugle] and [the appellant] unlawfully detained [Ms Sproat].

   (3)On the same date and at the same place [Mr Ugle] and [the appellant] unlawfully detained [Ms Palmer].

   (4)On the same date and at the same place [Mr Ugle] and [the appellant] stole from [Ms Palmer] with threats of violence, money, the property of [Ms Palmer]

   And that [Mr Ugle] and [the appellant] were in company with each other.

3. Mr Ugle was charged with 10 additional offences.  None of these concerned the appellant and it is unnecessary to say anything about them.  

4. The appellant (and Mr Ugle) were convicted of counts 1 to 4 after a trial in the District Court before Wallace DCJ and a jury. 

5. On 22 June 2021, the appellant was sentenced by her Honour as follows:

Count 1	4 years' imprisonment (head sentence)
Count 2	2 years' imprisonment
Count 3	2 years' imprisonment
Count 4	3 years 3 months' imprisonment

1. Her Honour ordered the sentences on counts 1 and 4 be served cumulatively and the sentences on counts 2 and 3 be served concurrently.  Thus, the total effective sentence imposed by her Honour was 7 years 3 months' imprisonment.  The appellant was made eligible for parole and the total effective sentence was backdated to commence on 10 May 2021. 

2. The appellant seeks leave to appeal on two grounds.  Ground 1 alleges that her Honour erred in law by infringing the principle against double punishment by ordering that the terms of imprisonment for counts 1 and 4 be served cumulatively.  Count 2 alleges, in substance, that the total effective sentence infringed the first limb of the totality principle. 

3. In our opinion, neither ground of appeal has a reasonable prospect of succeeding.  Accordingly, this appeal must be dismissed.  Our reasons for these conclusions are as follows.

The facts

1. The appellant does not challenge any of her Honour's findings of fact as set out in the sentencing remarks.  The facts are as follows.

2. The victims, Ms Sproat and Ms Palmer, were friends.  At about 11.20 pm on 6 July 2019, they arrived at Ms Sproat's home in Hammond Park.  Ms Sproat was, at the time, a low‑level drug user and dealer.  About a month earlier, Mr Ugle had purchased some methylamphetamine from her.

3. About five minutes after Ms Sproat and Ms Palmer arrived, the appellant and Mr Ugle approached the Hammond Park home in the appellant's car.  They were accompanied by two other unidentified male associates.  Mr Ugle's intention was to steal what he believed was a large quantity of cash kept by Ms Sproat in her home.  What was planned was described as a 'classic run‑through'.  The appellant was aware of the plan. 

4. The appellant parked his vehicle 100 or 200 m down the road from Ms Sproat's house.  One of the unidentified male associates remained in the car as the driver.  The appellant, Mr Ugle and the other associate approached the home.  The other associate stood outside as a lookout.

5. At about 11.26 pm, the appellant and Mr Ugle knocked on the front door of the house.  When Ms Sproat asked, 'Who is it?' either the appellant or Mr Ugle responded, 'the neighbours'.  Ms Sproat, who had a good relationship with her neighbours, opened the door slightly to see who was there.  The appellant and Mr Ugle then physically forced the door open.

6. Mr Ugle was armed with a tomahawk and his hands were covered in what appeared to be dark‑coloured socks.  Ms Sproat, who did not initially recognise Mr Ugle, screamed and ran to the back of the house.  Ms Palmer, who had been preparing to leave, was standing in the hallway.  As the appellant and Mr Ugle walked past Ms Palmer, one of them asked, 'What's she doing here?' and then, addressing Ms Palmer, said, 'You're not going anywhere'.

7. Ms Sproat and Ms Palmer were separated in the open‑plan area of the house.  The appellant stood over Ms Palmer, who was on the living room couch, and Mr Ugle, armed with the tomahawk, kept Ms Sproat in the dining room.  Ms Palmer's handbag was taken from her and placed at the end of the couch.  Mr Ugle instructed her not to retrieve her belongings.  Mr Ugle then directed Ms Sproat to hand over all mobile telephones and her house and car keys with the aim of preventing the victims from leaving the property or seeking assistance.  Both victims were terrified. At this point, Ms Sproat recognised Mr Ugle.

8. Mr Ugle, still armed with the tomahawk, demanded cash from Ms Sproat.  She told him she did not have any and showed him her mobile telephone which showed a bank balance of $40.  Mr Ugle demanded $4,000 and stated that if he did not receive this sum he would steal her car and everything in her house.  Ms Sproat was scared, in shock and began to cry.  She was told to sit on the couch with Ms Palmer.  Mr Ugle then trashed the home, looking for cash or valuable items to steal.  While this occurred, the appellant guarded the victims.

9. While Mr Ugle was demanding money from Ms Sproat, she saw that the appellant had observed a bag of, what appeared to be, methylamphetamine on the kitchen bench.  She offered the bag to Mr Ugle and the appellant.  Mr Ugle was concerned that there was something wrong with the drugs and directed Ms Palmer to use some of it.  Ms Sproat stepped in and volunteered to be injected with it.  Mr Ugle injected her for that purpose.

10. Eventually, Mr Ugle reversed Ms Sproat's BMW into the garage, shut the garage door and loaded stolen items of property into the boot.  Mr Ugle had left the tomahawk on the couch and, at some point, the appellant picked it up and placed it behind his back.  At one stage, Ms Sproat stood up from the couch because she could hear the commotion and wanted to know what Mr Ugle was doing.  The appellant told her to sit down and be quiet, otherwise she would make matters worse.  Both victims were terrified and helpless, and feared being seriously harmed by the tomahawk. 

11. Ms Palmer questioned the appellant about the tomahawk and whether they would be killed.  The appellant told her she would not be killed if she did as she was told, but she would be if she did not do so.  The appellant also told her that she needed to calm down.

12. Mr Ugle discovered CCTV equipment in the garage.  He realised that he and the appellant had been video‑recorded when they arrived at the house.  He brought Ms Sproat into the garage and demanded she delete the footage.  She was unable to do so.  Mr Ugle pulled out the CCTV recorder and hard drive and bundled them into the boot of Ms Sproat's car, along with the other items stolen from her home. 

13. Mr Ugle became agitated about the apparent absence of cash in Ms Sproat's home.  Ms Palmer was terrified and desperate.  Believing it may provide an opportunity to escape, she made an offer to Mr Ugle to withdraw money from her bank account.  She said to Mr Ugle, 'If you need money, take mine if we can go.  If you can let us go, take whatever you need'.

14. The appellant and Mr Ugle decided that the appellant would escort Ms Palmer to an ATM to obtain the cash.  Mr Ugle held the tomahawk above Ms Sproat's head and threatened to kill her and Ms Palmer's family if Ms Palmer called the police or failed to return with the cash.

15. The appellant and Ms Palmer drove to an ATM, but she was unable to withdraw any cash.  They then drove to another ATM in Cockburn.  The appellant instructed Ms Palmer to park away from CCTV cameras.  The appellant handed Ms Palmer her ATM card but kept her car keys.  Ms Palmer withdrew cash to her daily limit of $1,000.  She returned to the car and gave the money and the ATM card to the appellant.  They then returned to Ms Sproat's home. 

16. When they arrived, the appellant gave Mr Ugle the $1,000.  Mr Ugle then gave some cash to the appellant and thanked him for his assistance.  In the appellant's presence, Mr Ugle demanded that Ms Palmer continue to withdraw $1,000 for the next three days to reach the sum of $4,000.  Mr Ugle informed Ms Palmer that he would keep Ms Sproat hostage until the full amount was paid.  Mr Ugle made further threats to kill Ms Sproat, Ms Palmer and her family if she did not comply with his demands. 

17. Eventually, Ms Palmer was allowed to go.  She was escorted to her car by the appellant.  She asked the appellant what she should do.  The appellant told her to get in her car and to do what Mr Ugle said.  He told Ms Palmer, 'He's [Mr Ugle] a man of his word.  You need to drive and not call the police.  And if you do those things and comply, he won't hurt [Ms Sproat]'.  The appellant asked for, and received, Ms Palmer's PIN.  Ms Palmer, who was terrified, then left.  She did not alert authorities because of Mr Ugle's threats.  After Ms Palmer's departure,  Mr Ugle told the appellant to leave, which he did.  Later, Mr Ugle rang the appellant and arranged for him to deliver methylamphetamine to Ms Sproat's home. 

The appellant's personal circumstances

1. At the time of the commission of the offences the appellant was 54 years old.  He was 56 years of age when he was sentenced.

2. The appellant was born in Perth, but grew up predominantly in Sydney in what her Honour described as 'a loving and supportive family environment'.  He was educated to year 11. 

3. The appellant has been employed in a number of positions.  He also owned and ran a successful creative textile coating business.  After he ceased operating this business, the appellant relocated to Broome and then to Sydney, where he was employed in the construction industry.  In 2017 he returned to Perth.

4. The appellant has used cannabis since about the age of 16 years and has used the drug, on and off, since then.  He commenced using methylamphetamine when he was about 39 years old in an attempt to deal with the stress he experienced managing his business and with difficulties at home.  He became addicted to methylamphetamine.

5. After a period of rehabilitation, the appellant remained abstinent from methylamphetamine for eight years, until he returned to Perth in 2017.  He has used methylamphetamine since his arrival in Perth, including while he was on bail awaiting trial, despite a bail condition that he not use illicit substances.

6. The appellant has two adult children from a previous long‑term relationship.   He has, in the past, been diagnosed with depression.  In 2008, he took what he described as a 'massive overdose o[f] prescription drugs'.  In the pre‑sentence report that was provided to the sentencing judge, the appellant denied any current thoughts of suicide or self‑harm, but admitted that he had contemplated suicide as a result of his recent situation and likely sentence of imprisonment.  The appellant suffers from back pain as a result of a bulging disc and a degeneration in his spine.

7. The appellant has a relatively short criminal history.  He has been convicted in Western Australia of possession of illicit drugs and drug paraphernalia, various traffic offences and breaching a violence restraining order.  He was convicted of minor public disorder offences in 1985 and 1986.   Prior to being imprisoned for the current offences, the appellant had never been imprisoned. 

The sentencing remarks

1. Her Honour sentenced the appellant on the basis that he was not the principal offender in respect of the offences.  The appellant was sentenced on the basis that he 'aided and assisted Mr Ugle'.  Her Honour found that the appellant's moral culpability and overall criminality was somewhat less than that of Mr Ugle.[1]  She found that the appellant followed the instructions and directions given to him by Mr Ugle, who made all the decisions during the offending.   Further, the appellant tried to defuse or de‑escalate the situation by encouraging the victims to simply comply with Mr Ugle's demands so that they would remain safe.

   [1] Sentencing ts 33.

2. In the context of her sentencing remarks concerning the appellant, her Honour described the offending as involving 'serious criminal behaviour'.  She emphasised the seriousness of the aggravated home burglary (count 1) and the aggravated robbery (count 4).  Her Honour noted that the appellant and Mr Ugle committed the offences, in company and armed with an offensive weapon, against vulnerable women who were subjected to threats to kill.  Her Honour characterised the severity of the offending as being 'at the very least mid‑range' when compared with other offences of the same nature.

3. Her Honour said that there was very little by way of mitigation for the appellant.  She recognised that the appellant had cooperated in the smooth running of the trial.  She noted that the appellant's not guilty plea made it difficult for the court to find genuine remorse or victim empathy.

4. Her Honour had regard to the impact the offending had upon the victims, describing them as being 'severely and adversely traumatised'. 

Appellate sentencing principles

1. The general principles upon which this appeal must be decided are well known and well established.  They were recently described in this court in Kabambi v The State of Western Australia.[2]  We incorporate the statement of principles made in that case into these reasons, without repeating them. 

Ground 1:  double punishment

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

1. In Pearce v The Queen, the principle against double punishment was explained by McHugh, Hayne and Callinan JJ in these terms:[3]

   To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

   …

   It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements'.  It should be approached as a matter of common sense, not as a matter of semantics.  (footnotes omitted)

   [3] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] - [42].

2. These principles were recently considered in The State of Western Australia v ADS, where the court said:[4]

   No single correct mechanism exists for avoiding double (or more) punishment.  For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences.    

   [4] The State of Western Australia v ADS [2021] WASCA 99 [72].

3. The appellant submitted that there was considerable overlap between the facts and circumstances of the offending on counts 1 and 4.  The appellant submitted that her Honour did not refer to the commonality between counts 1 and 4 and thus did not reduce the sentences for them on account of that commonality.

4. There is no merit in this submission.  Counts 1 and 4 arose in the course of one overall series of criminal actions, but they included materially different acts.  Her Honour did not expressly refer to the double punishment principle, but the absence of an express reference does not, of itself, constitute an error.  A fair reading of the sentencing remarks as a whole and an evaluation of the length of the individual sentences for counts 1 and 4 indicates that her Honour did not make the alleged error. 

5. The sentencing remarks reveal that her Honour was conscious that counts 1 and 4 concerned different offending.  The stealing the subject of count 1 involved, as the State alleged at trial, the theft of various items belonging to Ms Sproat that were in her house.  The stealing the subject of count 4 involved the theft at the ATM of the $1,000 belonging to Ms Palmer.  Each offence had some significantly different circumstances.  Notably, each theft involved a different victim.  Each offence also involved some significantly different legal and factual elements.  Although the offences occurred in the course of one overall series of criminal actions, there is nothing in the sentencing remarks to indicate that her Honour infringed the principle against double punishment.  Each individual sentence for counts 1 and 4 was towards the lower end of the range open to her Honour on a proper exercise of her discretion.  This avoided, no doubt, double punishment in respect of any possible overlap in the circumstances of aggravation. 

6. In any event, even if the error alleged in ground 1 had been made out, it is not reasonably arguable that different individual sentences for counts 1 and 4 or a different total effective sentence should have been imposed.  As we have mentioned, each individual sentence for counts 1 and 4 was towards the lower end of the range open to her Honour on a proper exercise of her discretion.  On a re-exercise of the sentencing discretion, which had proper regard to all relevant facts and circumstances and all relevant sentencing factors (including the double punishment principle), no lesser individual sentences or total effective sentence (than those imposed by her Honour) would have resulted.

7. Ground 1 has no reasonable prospect of succeeding.

Ground 2:  totality

1. The offences for which the appellant was convicted carry substantial maximum penalties.  The maximum penalty for count 1 is 20 years' imprisonment.  For counts 2 and 3 it is 10 years' imprisonment.  For count 4 it is life imprisonment.

1. The appellant does not challenge any of the individual sentences that were imposed.  This is understandable as, having regard to the seriousness of the offending and the absence of any significant mitigation, they were well within a proper exercise of her Honour's sentencing discretion.  While the appellant's involvement in the offending was less than that of Mr Ugle, it was significant.  He actively assisted Mr Ugle to forcibly enter Ms Sproat's house.  He offered support, encouragement and muscle in subduing the victims, both of whom were vulnerable, and terrifying them into submission.  The appellant stood watch over Ms Sproat and Ms Palmer while Mr Ugle searched the house and stole various items.  He accompanied Ms Palmer to the ATM to ensure that she withdrew $1,000 in cash and obtained from her the PIN to her ATM card, which Mr Ugle intended to use to withdraw, over a period of three days, another $3,000.  The appellant's actions in trying to calm the victims is of little consequence and was, it appears, designed primarily to make the commission of the offences easier.  The sentencing judge characterised the appellant's role with respect to counts 2 and 3 as 'crucial'.  This characterisation is correct. 

2. There is no challenge to her Honour's finding that there were very few mitigating factors in favour of the appellant.  The appellant is a mature man who willingly was involved in the offences.  He knew that Mr Ugle was armed and, if he did not know this when he entered the house, he would have known shortly after entering the premises.

3. Despite the fact that the offences were part of one criminal transaction, they were multi‑faceted.  Some accumulation was required in order to appropriately reflect the appellant's overall criminality. 

4. In our opinion, the total effective sentence imposed upon the appellant of 7 years 3 months' imprisonment was a proper reflection of the appellant's overall criminality, having regard to all of the relevant circumstances, including the appellant's personal circumstances and antecedents, and all relevant sentencing factors.  The appellant has fallen a long way short of persuading us that the total effective sentence imposed has infringed the first limb of the totality principle.  Ground 2 has no reasonable prospect of succeeding.

Conclusion and orders

1. Neither of the proposed grounds of appeal has a reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal dismissed.  The orders we would make are as follows:

   1.Leave to appeal is refused on grounds 1 and 2.

   2.The appeal is dismissed.

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

KW

Associate to the Honourable Justice Buss

27 JUNE 2022