HLJT v Hart
[2012] WASCA 120
•15 JUNE 2012
HLJT -v- HART [2012] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 120 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:39/2012 | 11 MAY 2012 | |
| Coram: | McLURE P MAZZA JA | 15/06/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | HLJT CAMERON JOHN HART |
Catchwords: | Criminal law Application for leave to appeal against sentence Armed robbery Whether totality principle infringed Whether parity principle infringed Turns on own facts |
Legislation: | Criminal Code (WA), s 392 |
Case References: | Lowe v The Queen (1984) 154 CLR 606 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Tyson (Unreported, WASCSR, INS 116 of 2008, 28 August 2009) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HLJT -v- HART [2012] WASCA 120 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
CAMERON JOHN HART
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS DCJ
File No : CC 4801 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Armed robbery - Whether totality principle infringed - Whether parity principle infringed - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 392
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Gabriel
Respondent : No appearance
Solicitors:
Appellant : Stephen Gabriel
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Lowe v The Queen (1984) 154 CLR 606
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Tyson (Unreported, WASCSR, INS 116 of 2008, 28 August 2009)
(Page 3)
1 McLURE P: This is an application for leave to appeal against a sentence of 12 months' immediate detention for an offence of armed robbery contrary to s 392 of the Criminal Code (WA) (the Code). The appellant committed the offence on 4 October 2011 when he was aged 16 years and 10 months.
2 On 20 May 2011 the appellant was sentenced for multiple offences, including an offence of aggravated robbery for which he was sentenced to 8 months' detention. That offence was committed on 4 February 2011.
3 On 12 October 2011 the appellant was sentenced to 6 months' detention for offences (stealing a motor vehicle, receiving and burglary) committed in November 2010. The sentence of 6 months was backdated to 5 August 2011.
4 The sentence the subject of this appeal was imposed by the President of the Children's Court of Western Australia on 6 February 2012. The facts of the offending are as follows. At about 10.20 pm on 4 October 2011 the appellant was at Loch Street Train Station on Railway Road in Karrakatta, having just left the Perth Royal Show with three friends, one of whom was the co-offender. The appellant and the co-offender followed the complainant and his friend down Railway Road towards their vehicle. The appellant, armed with a 35 cm metal hand axe, ran up to the complainant. He raised the axe above shoulder level in a striking position and held it approximately 5 cm from the complainant's face. The appellant demanded that the complainant hand him the gold neck chain that he was wearing otherwise he would 'chop his face'. The gold neck chain was valued at $1,800. The appellant took possession of the gold neck chain and made threats to the complainant's friend saying 'remember my face because I remember yours. Don't go to the cop or I'll get youse'. The co-offender approached the rear of the complainant's friend's vehicle and read out its registration plate.
5 The appellant and the co-offender then ran to the Loch Street Train Station where they boarded the train to Perth. A subsequent police search of the appellant's bedroom located items of clothing worn during the incident. The appellant was wearing the gold neck chain stolen during the offence.
6 On 6 December 2011 the co-offender was sentenced by Magistrate Hogan to 3 months' detention for the offence of armed robbery. He was sentenced on the basis that he aided the commission of the offence by his presence and by reading out the registration plate.
(Page 4)
7 The ground of appeal is in the following terms:
1. The appellant seeks leave to appeal against the above sentence on the basis that it was excessive in that breached:
• the parity principle; and/or
• the totality principle.
- Particulars
1.1 The Court erred in failing to adequately take into account, the penalty imposed on the co-offender of 3 months detention; and
1.2 The Court failed to consider whether the sentence imposed could be crushing and did not have a last look at the total effective sentence imposed, by reference to the sentence that the appellant had been serving prior to this sentence being imposed and whether it was proportionate to the Appellant's offending conduct viewed as a whole.
- I take the sentence referred to in particular 1.2 as being the sentence of 6 months' detention, backdated to 5 August 2011, imposed on 12 October 2011.
8 The sentencing judge expressly took into account issues of parity and totality. On the subject of parity he said:
But as between you and [the co-offender], yes, you're a bit younger but it was you that made the threat and had the axe and the other thing of relevance is that on your record is the aggravated robbery ... that you committed in February last year ... and that's not the case for [the co-offender], he had no prior offence of an aggravated robbery. Then in addition to all of that can I just say it seems to me that perhaps that sentence of [the co-offender's] might have been a bit on the light side as well. So there's good reason to distinguish you from [the co-offender].
9 On the subject of totality, the sentencing judge said:
Totality is something that has weighed heavily in my mind because I am mindful that this offence was committed on 4 October [2011] and on 12 October [2011], so that's just over a week later, you were actually sentenced to six months' detention which was backdated to 5 August last year and so that sentence has now expired. I am aware that those matters are quite separate and distinct from this matter.
Those matters happened in late 2010 and this offence happened in October 2011, so they're quite separate but the point that I want to make is that you were sentenced subsequent to it, you have spent a considerable amount of
(Page 5)
- time in detention from last year until now and you had spent a fair amount of time in detention earlier last year, from January last year; but more particularly, I'm concerned about totality so far as the sentencing on 12 October [2011] which was subsequent to this offence on 4 October.
I have had regard to the length of time that you have been in detention up until now and I'm a bit concerned that in your case, given that you're only 17, if the sentence is one that doesn't take all of this into account it could be so long as to extinguish hope on your part and I don't think that's in your interests or in the interests of the community. So in the end I have borne all of that in mind as well and in the end I have arrived at a sentence that I think is appropriate, taking into account everything and that [is] 12 months' immediate detention to date from today.
10 At the time of sentencing on 6 February 2012 the appellant had a very significant record of prior convictions for a person so young. They included multiple convictions for burglary, stealing a motor vehicle, stealing, receiving and possession of an article with intent to injure.
11 Reports before the sentencing judge disclosed that the appellant's childhood was chaotic within the family home and that he had witnessed a significant amount of violence and substance misuse by his father. The appellant's peers, the majority of which were young family members (brothers or cousins), had a negative influence on his behaviour. The appellant left school after completing year 9 and has substance abuse issues, consuming significant amounts of alcohol and cannabis on a regular basis. He said he was heavily intoxicated when he committed the armed robbery.
12 The claim that the sentence infringes the totality principle is completely devoid of merit. There is no arguable basis for a claim that the sentence of 12 months' detention is 'crushing', as that term is properly understood. See Roffey v The State of Western Australia [2007] WASCA 246 [25].
13 The purpose of the parity principle is to ensure an appropriate level of consistency in the sentencing of persons who participate in the commission of an offence: Lowe v The Queen (1984) 154 CLR 606, 609 - 610. The issue is whether the disparity in sentence is capable of giving rise to a justifiable sense of grievance.
14 There is little to distinguish between the appellant and the co-offender in terms of their age and background. Both pleaded guilty. Although the appellant had a more extensive criminal history, the co-offender had committed more serious offences. He had a conviction
(Page 6)
- for manslaughter and unlawfully doing grievous bodily harm with intent, for which a total effective sentence of 3 years imprisonment was imposed on 28 August 2009: The State of Western Australia v Tyson (Unreported, WASCSR, INS 116 of 2008, 28 August 2009). He committed these offences when he was aged 13.
15 However, the part played by the appellant in the commission of the offence of armed robbery was very significantly greater than that of the co-offender. Accordingly his level of culpability was much higher than that of the co-offender. It is also significant for parity purposes that the appellant had a prior conviction for an aggravated robbery committed eight months before the offence of armed robbery the subject of this appeal. In sentencing the appellant, personal deterrence was a weighty sentencing consideration.
16 In all the circumstances the appellant has no reasonable prospect of establishing that the difference in sentencing dispositions is capable of giving rise to a justifiable sense of grievance.
17 Accordingly, leave to appeal should be refused and the appeal dismissed.
18 MAZZA JA: I agree with McLure P.
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