Jose v The State of Western Australia
[2015] WASCA 13
•20 JANUARY 2015
JOSE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 13 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:141/2014 | 1 DECEMBER 2014 | |
| Coram: | NEWNES JA MAZZA JA | 20/01/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SCOTT ERNEST JOSE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Attempted armed robbery Appeal against sentence Sentenced to 2 years 9 months' imprisonment Whether sentence manifestly excessive Long delay in bringing appeal |
Legislation: | Nil |
Case References: | Fogg v The State of Western Australia [2011] WASCA 11 House v The King (1936) 55 CLR 499 McDonald v The State of Western Australia [2008] WASCA 132 MOD v The State of Western Australia [2011] WASCA 23 Wong v The State of Western Australia [2004] WASCA 286 Woodcock v The State of Western Australia [2011] WASCA 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JOSE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 13 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 440 of 2013
Catchwords:
Criminal law - Attempted armed robbery - Appeal against sentence - Sentenced to 2 years 9 months' imprisonment - Whether sentence manifestly excessive - Long delay in bringing appeal
Legislation:
Nil
Result:
Application for extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fogg v The State of Western Australia [2011] WASCA 11
House v The King (1936) 55 CLR 499
McDonald v The State of Western Australia [2008] WASCA 132
MOD v The State of Western Australia [2011] WASCA 23
Wong v The State of Western Australia [2004] WASCA 286
Woodcock v The State of Western Australia [2011] WASCA 227
1 REASONS OF THE COURT: This is an application for an extension of time to appeal and, if granted, an application for leave to appeal against sentence.
2 On 5 September 2013, the appellant pleaded guilty in the District Court at the first reasonable opportunity to one count of attempted armed robbery contrary to s 392 and s 552 of the Criminal Code (WA). He was sentenced to 2 years and 9 months' imprisonment with eligibility for parole, backdated to commence on 11 May 2013.
3 The appeal was filed on 29 July 2014, some 10 months out of time. The application for an extension of time is supported by a brief affidavit sworn by the appellant on 18 July 2014. The long delay in filing the appeal has not been adequately explained. Whether an extension of time should be granted in this case will depend upon the merits of the appeal.
The facts of the offending
4 The facts of the offending were not challenged by the appellant and are as follows. At about 9.45 pm on 25 February 2013, the appellant and a co-offender, Jay Michael Smith, entered the Reading Cinema complex in Mandurah. Before doing so, the men covered their faces with their T-shirts and armed themselves with a metal pole.
5 Upon entering the complex, the appellant and the co-offender demanded the keys to the cash registers from one of the two cinema employees who were on duty that night. The employee was unable to provide the keys, so the appellant and the co-offender went behind the counter and attempted to force open the cash registers. These attempts were unsuccessful, but, in the process, a number of cash registers were damaged. Eventually, the appellant and the co-offender left the premises empty handed. Soon afterwards they were apprehended by police and taken to the Mandurah police station. The appellant participated in an electronic record of interview and essentially admitted the offence.
6 The offending was, in large part, recorded by a CCTV system installed at the cinemas. A DVD of this footage was tendered without objection to the learned sentencing judge. His Honour described the conduct of the appellant and the co-offender as being:
… very physical, very active, a lot of movement, use of the metal stakes in banging and hitting things. Damage was caused to the property (ts 30).
7 Having viewed the footage for ourselves, his Honour's description is accurate.
The appellant's antecedents
8 The appellant was, at the time of the offence, 19 years of age. Both the pre-sentence report and psychological report describe him as presenting as an emotionally immature man. He possesses below-average intelligence, but is not intellectually disabled. However, his level of intelligence is likely to have adverse effects upon, amongst other things, his judgment, reasoning ability and consequential thinking. The appellant reported to the author of the psychological report long-term poor emotional regulation skills. Consequently, his behaviour is characterised by an erratic pattern of explosive anger, followed by periods of guilt and shame. He has a lengthy criminal history as a juvenile. Relevantly and most recently, on 12 September 2011 he was convicted of a number of offences including common assault, threats to kill and threats to injure, for which he was placed on a 6-month youth conditional release order.
9 The appellant has a significant alcohol problem.
10 The authors of the reports noted that the appellant presented with limited comprehension of the consequences of his offending behaviour on the victims.
11 The author of the psychological report assessed the appellant as posing a high risk of reoffending in a violent manner in the future, although that risk is likely to be reduced if he addresses his substance abuse issues and other difficulties he has.
12 The appellant has two young children from two different relationships. At the time he was sentenced, he and his current partner had the care of their son who was approximately 3 months old.
The sentencing remarks
13 After outlining the facts of the offence, his Honour immediately recognised the mitigating factors of the appellant's plea of guilty and his youth. As to the former, he gave a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA). He described the plea of guilty and the appellant's youth as 'important factors in mitigation' (ts 30).
14 His Honour described in some detail the appellant's personal circumstances and the reports which had been prepared. He said that it was 'difficult to be optimistic' about the appellant's future. He expressed the view that the appellant did not have the advantage of good character. He emphasised the need for general and personal deterrence.
15 After weighing all of the relevant factors, his Honour took the view that the only appropriate sentence was a term of imprisonment of 2 years and 9 months. His Honour then considered whether he should suspend the term. After revisiting all of the relevant circumstances, his Honour said that he was 'positively satisfied' that the term of imprisonment should not be suspended.
The proposed ground of appeal
16 In the appellant's case, dated 3 October 2014, the only ground of appeal alleges that the sentence was manifestly excessive. This is, of course, an allegation of implied error on the part of the learned sentencing judge and requires the appellant to demonstrate that the sentence was so unreasonable or unjust that this court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. Confusingly, the appellant's counsel, at the outset of his oral submissions in this court, appeared to submit that there had been a miscarriage of justice in the sentencing proceedings. Counsel had difficulties precisely identifying the nature of the miscarriage of justice, but it seemed that he was alleging that the learned sentencing judge took into account facts and circumstances beyond those set out in the statement of material facts as read by the prosecutor. After some discussion, the appellant's counsel did not pursue the matter and did not seek leave to amend the grounds of appeal. Nothing more needs to be said about this, save that it is apparent that no miscarriage of justice of the kind tentatively suggested by the appellant's counsel could reasonably be sustained.
The appellant's arguments
17 The appellant submitted that the sentence was manifestly excessive having regard to:
(a) the 'amateurish and drunken' nature of the offence;
(b) that no actual physical violence was inflicted upon the employees of the cinema; and
(c) the appellant's youth, his cooperation with the investigating officers, his plea of guilty and that the attempted armed robbery was his 'first and only adult offence'.
18 The appellant submitted that the sentence imposed upon the appellant was, in effect, out of step with sentences imposed in other cases. Counsel cited Wong v The State of Western Australia [2004] WASCA 286; McDonald v The State of Western Australia [2008] WASCA 132; Fogg v The State of Western Australia [2011] WASCA 11 and MOD v The State of Western Australia [2011] WASCA 23.
19 Counsel submitted that the learned sentencing judge should have made a suspended imprisonment order; alternatively, the term of immediate imprisonment was erroneously long.
Disposition of the ground of appeal
20 The orthodox approach to an allegation of manifest excess is to view the sentence imposed in light of the maximum sentence for the offence, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, the standards of sentencing customarily observed and the personal circumstances of the offender.
21 The maximum sentence for attempted armed robbery is 14 years' imprisonment.
22 Without question, the offence was serious. The offence was committed at night, upon vulnerable workers. The appellant and his co-offender behaved in a very aggressive and intimidating way, clearly designed to instil fear and subdue those employees. When they failed to hand over the keys to the cash registers, the appellant and his co-offender took it upon themselves to go behind the counter and attempt to open them by force. The offending behaviour was both determined and persistent. The fact that the appellant was under the influence of alcohol at the time of the offence may explain the offending, but does not excuse it. The appellant and his co-offender sought to disguise their identities and acted in concert, indicating some degree of planning. Although the offence was an attempt, the offenders did not fail to achieve their aim for any want of trying. While no actual physical injury was inflicted upon the victims, that ignores the potential for such injury in offences of the kind committed by the appellant and the psychological effects that may readily be inferred as a consequence of his behaviour.
23 We now turn to sentences customarily imposed for the offence of attempted armed robbery. As was said in Woodcock v The State of Western Australia [2011] WASCA 227 [25], there is no range of sentences customarily imposed for the offence. The offence may be committed in a wide and varying range of circumstances. The circumstances of offenders are also variable. The cases cited by the appellant show that significant sentences of immediate imprisonment for attempted armed robbery are not unusual, even for young offenders. We have re-read the cases cited by the appellant. Predictably, the circumstances of each of these cases is different to the present case. While the sentence imposed in the present case is longer than the sentences imposed in the cases cited by the appellant, it remains broadly consistent with them.
24 There were, in this case, relevant mitigating factors. The appellant cooperated with the police and pleaded guilty at the first opportunity. Youth too was a mitigating factor, but against this had to be balanced his prior offending, giving rise to the need for personal deterrence and the assessment that he posed a high risk of further violent offending. General deterrence is also a matter of significance.
25 Having regard to all of the relevant circumstances that we have mentioned, it is not reasonably arguable that the sentence imposed by the learned sentencing judge was so unreasonable or unjust that this court must conclude that a substantial wrong has occurred. In our opinion, the sentence that was imposed was, having regard to all of the circumstances, a proper exercise of his Honour's sentencing discretion. Accordingly, this court cannot intervene and impose a different sentence.
Conclusion and orders
26 Having regard to the long delay in bringing this appeal, the lack of any satisfactory explanation for the delay and the absence of any reasonable prospect that the appeal will succeed, it is not appropriate to grant an extension of time. The orders of the court will be as follows:
1. The application for an extension of time is refused.
2. The appeal is dismissed.
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