King v The State of Western Australia
[2013] WASCA 131
•24 MAY 2013
KING -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 131 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:159/2012 | 18 MARCH 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 24/05/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant sentenced to 12 months' imprisonment on count under s 68(1) of Code Total effective sentence not disturbed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW GRAHAM KING THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Four counts One count of being armed with an offensive instrument in circumstances likely to cause fear Criminal Code (WA), s 68(1) Hammer brandished during theft from shop 2 years' imprisonment manifestly excessive Total effective term of 3 years' imprisonment on all counts not disturbed |
Legislation: | Criminal Code (WA), s 68(1) Criminal Appeals Act 2004 (WA), s 41(2) |
Case References: | Chan (1989) 38 A Crim R 337 Dunks v The State of Western Australia [2009] WASCA 82 JKL v The State of Western Australia [2012] WASCA 215 Lawrie v The State of Western Australia [2009] WASCA 45 MC (A Child) v The Queen [2003] WASCA 205 Quigley v The State of Western Australia [2013] WASCA 9 Richardson v Pickett [2008] WASC 203 Roffey v The State of Western Australia [2007] WASCA 246 Wayman v The Queen [2001] WASCA 326 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KING -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 131 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 431 of 2012
Catchwords:
Criminal law - Sentencing - Four counts - One count of being armed with an offensive instrument in circumstances likely to cause fear - Criminal Code (WA), s 68(1) - Hammer brandished during theft from shop - 2 years' imprisonment manifestly excessive - Total effective term of 3 years' imprisonment on all counts not disturbed
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Legislation:
Criminal Code (WA), s 68(1)
Criminal Appeals Act 2004 (WA), s 41(2)
Result:
Appeal allowed
Appellant sentenced to 12 months' imprisonment on count under s 68(1) of Code
Total effective sentence not disturbed
Category: B
Representation:
Counsel:
Appellant : Mr P W Catalano
Respondent : Mr J A Scholz
Solicitors:
Appellant : Henry Sklarz
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dunks v The State of Western Australia [2009] WASCA 82
JKL v The State of Western Australia [2012] WASCA 215
Lawrie v The State of Western Australia [2009] WASCA 45
MC (A Child) v The Queen [2003] WASCA 205
Quigley v The State of Western Australia [2013] WASCA 9
Richardson v Pickett [2008] WASC 203
Roffey v The State of Western Australia [2007] WASCA 246
Wayman v The Queen [2001] WASCA 326
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1 JUDGMENT OF THE COURT: This is an appeal against sentence. The appellant pleaded guilty in the District Court to, among other things, one count of stealing a motor vehicle, contrary to s 371A read with s 378 of the Criminal Code (WA), for which he was sentenced to 12 months' imprisonment, and one count of being armed with an offensive instrument in circumstances likely to cause fear, contrary to s 68(1) of the Code, for which he was sentenced to 2 years' imprisonment. He appeals against each of those sentences on the grounds that they were manifestly excessive.
Background
2 Between 12.45 pm on 10 January 2012 and 1.30 pm on 1 February 2012, the appellant took a Piaggio scooter from the intersection of Brisbane Street and Beaufort Street in Perth, where it had been left by its owner. The scooter had a value of $2,500. The appellant replaced the number plates on the scooter with number plates from a trailer which the appellant owned. That was presumably done to lessen the risk of the scooter being identified. (Why the appellant thought that attaching distinctive trailer number plates was less likely to attract attention to the scooter is not immediately apparent.)
3 On 1 February 2012, the appellant rode the scooter into the car park of a shopping centre in Balcatta. He parked the scooter near the entrance of a shop which sold watches. The appellant entered the shop carrying a small hammer. He used the hammer to smash the glass of a display cabinet, from which he removed five watches to the value of $17,949. A customer in the shop retreated from the area of the display cabinet as that occurred. The shop owner came to the front of the shop when he heard the glass break. The appellant brandished the hammer in the direction of the shop owner and then ran from the store. The appellant was apprehended in the car park by employees from the shop who pursued him. Police were called and the appellant was arrested. The watches and the motor scooter were recovered. All of the relevant events, including the appellant's apprehension, were captured on CCTV footage.
4 The appellant subsequently pleaded guilty to one count each of stealing a motor vehicle (count 1); unlawfully causing damage to property, being the display case (count 2); stealing (count 3); and being armed with an offensive instrument ('a sledge hammer') in circumstances likely to cause fear to the shop owner (count 4).
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Sentencing remarks
5 The sentencing judge noted that the appellant was 41 years of age at the time of sentencing. His upbringing was unremarkable. He had, however, a history of substance abuse, commencing with cannabis and alcohol as a teenager, and moving on to amphetamines between the age of 19 and his early 30s. There was then a period of abstinence until he relapsed into amphetamine use again in early 2011. The appellant was addicted to amphetamines at the time of the offences, the theft of the watches having been intended to provide money to buy drugs for his addiction.
6 His Honour noted that the appellant had two children, a boy and a girl. The appellant's son had died at the age of three while the appellant was in prison. His Honour said that the appellant has had great difficulty in coping with that tragic loss but at that time ceased substance abuse and learned a trade as a cabinet-maker in order to provide for his daughter. The appellant has since been regularly employed in that trade. More recently, difficulties with his mother and sister relating to the upbringing of his daughter and the use of antidepressant medication to deal with unresolved grief issues over the death of his son led the appellant back into the use of methylamphetamine.
7 The sentencing judge observed that the appellant had co-operated with police and pleaded guilty at the first opportunity. He accepted that the appellant was remorseful. His Honour noted that the appellant had an extensive criminal record, mostly involving offences of dishonesty or violence, although with significant periods of non-offending.
8 The sentencing judge imposed the following sentences:
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9 The total effective sentence was therefore 3 years' imprisonment. It was to commence from 1 February 2012. The appellant was made eligible for parole.
The grounds of appeal
10 The grounds of appeal are as follows:
1. The learned sentencing judge erred in law in imposing an effective sentence of 2 years for the offence of going armed to cause fear, which is excessive in all of the circumstances.
2. The learned sentencing judge erred in law in imposing a sentence of 12 months for the stealing of the Piaggio Scooter, which is excessive in all of the circumstances.
The disposition of the appeal
Ground 1
11 The relevant principles are well-established and can be shortly stated. An appellate court is not entitled to intervene simply because it would have imposed a different sentence. It can only intervene if the sentencing judge made an express or implied material error of fact or law.
12 A claim of manifest excess depends upon the inference of error from the sentence itself. In order to determine whether a sentence is manifestly excessive it is necessary to have regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed for offences of that kind, the seriousness of the circumstances of the offence, and the personal circumstances of the appellant: Chan (1989) 38 A Crim R 337, 342.
13 The maximum penalty for the offence is 7 years' imprisonment. Counsel referred to the sentences imposed in a number of earlier cases for comparative purposes. Some of those cases are set out below. They provide, however, only limited assistance, the circumstances of those cases being quite different to the present case. Our own research, however, has not unearthed any cases that are more helpful.
14 In Wayman v The Queen [2001] WASCA 326, the offender had stolen firearms and ammunition from a store, in the course of which he doused two employees of the store with petrol and threatened to set them alight. He also caused substantial damage to the store. The offender subsequently discharged the firearms, among other places, in a street in the middle of Bunbury on a weekday afternoon, causing people to flee the
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- scene or barricade themselves indoors. The offender pleaded guilty to a number of offences arising out of the incidents including one count of armed robbery, one count of going armed in public so as to cause terror, and one count of wilful damage. He was sentenced to 1 year's imprisonment for going armed in public so as to cause terror and to a total effective finite term of 5 years' imprisonment for all of the offences. An appeal against an order that the offender be imprisoned indefinitely under s 98 of the Sentencing Act 1995 (WA) and the refusal to make the offender eligible for parole was upheld.
15 In MC (A Child) v The Queen [2003] WASCA 205, the offender and a co-offender were involved in a premeditated armed attack on two strangers who were asleep in their vehicle in an isolated area. The co-offender struck the passenger several times with a crowbar resulting in injuries which required in excess of 60 stitches. The offender intervened in the initial stage of the assault. Whilst the co-offender was violently attacking the passenger, the driver of the car armed himself with a piece of wood with the intention of intervening to assist the passenger. The offender saw this and advanced on the driver with a knife and when she got close to him, the driver abandoned his plan to assist his friend. The offender videotaped the entire incident. The offender, who was 17 years of age at the time, had no prior convictions. The offender pleaded guilty to unlawful wounding, common assault, criminal damage and going armed in public so as to cause fear. She was sentenced to 12 months' imprisonment for the offence of going armed in public so as to cause fear, to be served concurrently with terms of imprisonment on the other counts, resulting in a total effective term of 20 months' imprisonment. Leave to appeal against sentence was refused.
16 In Richardson v Pickett [2008] WASC 203, the 18-year-old offender and two co-offenders pursued the complainant into a service station. The three were armed, the offender with a machete. They pursued the complainant around the service station, wielding the weapons. As the complainant attempted to run out, the offender struck him twice to the head area with the machete. A co-offender struck the complainant several times to the head and body with two tomahawks. The complainant suffered skull fractures, loss of sensation in the left ear, broken bones in his left hand and lacerations to his right hand and forearm. The offender pleaded guilty to one count of assault with intent to do grievous bodily harm and one count of being armed in a way that may cause fear. He was sentenced to 16 months' imprisonment on the first count and 6 months' imprisonment on the second, both terms being suspended for 2 years. A State appeal against sentence was upheld and the suspension of the terms
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- of imprisonment was set aside. The terms of imprisonment were not disturbed.
17 In Lawrie v The State of Western Australia [2009] WASCA 45, the offender returned to a bar after an earlier altercation with a security guard. He took a knife and his sister took a sawn-off pool cue with nails taped to one end. When they arrived at the bar, his sister attacked the security guard with the pool cue and while staff tried to restrain her, the offender tried to stab the security guard. In the ensuing melee, the offender slashed at another security guard, striking him on the left wrist causing bleeding and permanent nerve and tendon damage, and stabbed a patron who tried to restrain him, causing a wound to the thigh which required sutures. The offender was 26 years old with no criminal record of violence. The offender pleaded guilty to one count each of being armed with an offensive instrument in circumstances likely to cause fear, unlawfully causing grievous bodily harm, unlawful wounding and common assault. On the count of being armed with an offensive instrument in circumstances likely to cause fear he was sentenced to 8 months' imprisonment, and to a total effective sentence of 32 months' imprisonment for all of the offences. An appeal against sentence was dismissed.
18 In Quigley v The State of Western Australia [2013] WASCA 9, two security guards had approached the offender and his two friends whom they suspected of having stolen a bottle of wine from a Woolworths Liquor outlet. The offender began shouting and swinging the wine bottle at the security guards. The offender then called upon one of his friends to give him a knife. The friend drew a knife with a 19 cm blade from her purse and gave it to the offender. The offender moved to within a couple of metres of the security guards, threatening to kill them. The offender and his two friends then ran from the scene. The offender was 23 years old at the time of the offence and had a quite extensive criminal record. He pleaded guilty (relevantly) to two counts of being armed with offensive weapons (a knife and a wine bottle) in circumstances likely to cause fear and two counts of making an unlawful threat to kill. He was sentenced to 12 months' imprisonment on each of the counts of being armed with offensive weapons in circumstances likely to cause fear, to be served concurrently, and to a total effective term of 28 months' imprisonment for the offences. An application for leave to appeal against sentence was dismissed.
19 In our view, this offence was not in the more serious category of offences of this kind. In that connection, we have had the benefit of
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- viewing the CCTV footage of the relevant events. It is evident that the hammer was a small hammer or mallet, rather than the 'sledgehammer' described in the indictment. Whilst the appellant brandished the hammer in a threatening manner to the shop owner, the appellant was several metres from the shop owner and clearly about to flee the scene. The obvious intention was to deter pursuit rather than to threaten immediate harm. It failed to have the desired effect and, as it turned out, the appellant did not attempt to use the hammer as a weapon on his pursuers even when tackled to the ground.
20 The appellant pleaded guilty at the first opportunity and the sentencing judge accepted that he was remorseful. While the appellant has a significant criminal record, much of it is more than 10 years old. His only convictions since 2001 have been for traffic offences, apart from two convictions on 4 January 2011 for assaulting the appellant's mother and sister respectively. For each of those offences an intensive supervision order for 12 months was imposed. (On 30 November 2011, the appellant was convicted of breaching those orders and fined $400.) As the sentencing judge noted, the penalties for the assault offences indicated that there may have been extenuating circumstances.
21 In our view, in the circumstances a sentence of 2 years' imprisonment for this offence was manifestly excessive. We would allow this ground of appeal.
Ground 2
22 We do not consider there is any merit in this ground.
23 The maximum penalty for the offence is 7 years' imprisonment. In this case, while the scooter was of relatively modest value, the owner was deprived of its use for a period of some three weeks and the appellant, having substituted different number plates in an endeavour to conceal its theft, used it to facilitate the commission of other offences.
24 In JKL v The State of Western Australia [2012] WASCA 215 [52], [137], this court considered a number of cases involving sentences for the theft of a motor vehicle, including Dunks v The State of Western Australia [2009] WASCA 82 to which reference was made by the appellant's counsel. It is unnecessary to canvass JKL or the cases referred to in it. Suffice it to say that having regard to those cases, including Dunks, the circumstances of the offence in this case, and the personal circumstances of the appellant, it cannot be said that the sentence of
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- 12 months' imprisonment fell outside the exercise of a sound sentencing discretion.
25 We would dismiss this ground of appeal.
Resentencing
26 As error on the part of the sentencing judge has been established under ground 1, the sentence imposed by his Honour on count 4 should be set aside and the appellant resentenced. This court has the material to resentence the appellant and it is appropriate that it do so. We should note at the outset that when an appellant is sentenced for multiple offences and this court varies one of those sentences, it does not automatically follow that the total effective sentence will be varied. Relevantly to this case, s 41(2) of the Criminal Appeals Act 2004 (WA) provides:
If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -
(a) that was imposed at or after the time when sentence A was imposed; and
(b) that took into account sentence A.
27 A consequence of this provision is that, in appropriate circumstances, other sentences imposed at the same time as an erroneous sentence which took into account that erroneous sentence may be varied so that the total effective sentence is not disturbed.
28 The expression 'any other sentence' in s 41(2) includes any orders as to cumulation or concurrency made in respect of the other sentence.
29 In the present case, the preconditions to variation as set out in s 41(2) are satisfied. The sentences on counts 2 and 3 may be varied because they were imposed at the same time as the erroneous sentence on count 4 and took that sentence into account (ts 17 - 18).
30 As the learned sentencing judge rightly pointed out in his sentencing remarks, the theft of the motor scooter (count 1) was committed separately and in different circumstances to counts 2, 3 and 4.
31 Counts 2, 3 and 4 involved a relatively high degree of criminality. The appellant's use of the stolen motor scooter, the efforts that he made to disguise his identity and the way in which he executed the theft showed considerable premeditation. He stole property of some value, albeit that it was quickly recovered. No doubt the appellant chose the shop as a 'soft
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- target' that was vulnerable to the kind of smash and grab raid he engaged in. It is the type of offending which requires general deterrence.
32 The only matter of substantial mitigation was his pleas of guilty. While the appellant has not committed any serious offences for some 10 years, his antecedents are not particularly favourable. Although the appellant expressed some remorse for the theft of the motor scooter, he expressed no remorse for his offending on 1 February 2012. The reports before the court at first instance were to the effect that he had no empathy for the shop owner. This, coupled with his record of convictions, underscores the need for personal deterrence.
33 Notwithstanding the imposition of the erroneous sentence on count 4, we consider that a total effective sentence of 3 years' imprisonment was a proper reflection of the appellant's 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 appellant personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
34 Having regard to the matters canvassed in relation to ground 1, we consider that an appropriate sentence for count 4 is a term of 12 months' immediate imprisonment. We would vary the sentences on counts 2 and 3 by making them concurrent with each other and cumulative on count 1. We would make the new sentence on count 4 cumulative on the sentences on the other counts. The total effective sentence will therefore remain 3 years' imprisonment.
35 We note that we have reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act)for count 4 by 20% in order to recognise the benefits to the State, and to any witnesses to the offence, resulting from the plea of guilty.
36 There is one other matter. In the course of his oral submissions before this court, the appellant's counsel said that, in the event the court varied any sentence, the appellant wanted this court when resentencing him to refuse to make a parole eligibility order. The appellant's reasons for making this unusual request were confused.
37 Section 89(4) of the Sentencing Act sets out the circumstances in which a court may decide not to make a parole eligibility order in respect of a fixed term of imprisonment. A court's power not to make a parole eligibility order is enlivened only if at least two of the four factors set out in s 89(4) exist. It was not argued that any of the four factors existed. We
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are not satisfied that at least two of them exist. Accordingly, this court does not have the power to make the order sought by the appellant. The appellant will be eligible for parole.
Conclusion
38 The orders we would make are as follows:
1. the sentence on count 4 is set aside;
2. the appellant is sentenced to 12 months' immediate imprisonment on count 4, to be served cumulatively on the sentences on the other counts;
3. the orders for concurrency and cumulation on counts 2 and 3 are set aside and it is ordered that the sentences on those counts are to be served concurrently with each other and cumulatively on the sentence on count 1;
4. the sentences are to be taken to have taken effect on 1 February 2012; and
5. the appellant is eligible for parole.
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