Little v The Queen
[2001] WASCA 87
•23 MARCH 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: LITTLE -v- THE QUEEN [2001] WASCA 87
CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J
HEARD: 8 MARCH 2001
DELIVERED : 23 MARCH 2001
FILE NO/S: CCA 256 of 2000
BETWEEN: ROGER WADE LITTLE
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Discount for prompt plea of guilty - Discount insufficient - Sentence of 10 years reduced to 9 years
Criminal law - Sentencing - Victim impact statement - Statement of material facts different from facts in victim impact statement - Victim impact statement not challenged - Sentencing Judge allowed to use victim impact statement when sentencing
Legislation:
Sentencing Act 1995, s 24, s 26(2)
Criminal Code, s 378(2)
Result:
Appeal allowed
Representation:
Counsel:
Applicant: Mr C L J Miocevich
Respondent: Mr R E Cock QC
Solicitors:
Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Morley v The Queen [2001] WASCA 49
Postiglione v The Queen (1997) 189 CLR 295
Sikaloski v The Queen [2000] WASCA 387
Case(s) also cited:
Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89
House v The King (1936) 55 CLR 499
Hume v The Queen [2000] WASCA 306
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
R v Peterson [1984] WAR 329
R v Pezzino (1997) 92 A Crim R 135
R v Tait (1979) 46 FLR 386
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Yarran v The Queen, unreported; CCA SCt of WA; Library No 960556; 4 April 1996
JUDGMENT OF THE COURT: On 10 July 2000, the applicant pleaded guilty in this Court to five offences comprising three counts of stealing a motor vehicle, one count of aggravated burglary and one count of armed robbery in company. All of these offences were committed in a four‑day period between 20 and 23 April 2000 in the suburbs of Thornlie, Karrinyup, Marmion and Como. At the time of the offences, the applicant was on parole, having been released to parole a little more than a month previously after serving the custodial part of an aggregate sentence of 2‑1/2 years for five aggravated burglary offences. At the time of sentence, he was of the age of about 22. His antecedent report reveals that he had some 257 prior convictions. A great many of these are driving offences, but there are also numerous unauthorised use of motor vehicle, stealing, stealing motor vehicle, burglary, break and enter and two armed robberies. He commenced offending in 1989 when he was of the age of about 12.
The maximum penalty for the offences charged on this indictment were:
1.Steal motor vehicle - 7 years (or 8 years if the vehicle is then driven by the offender recklessly or in a dangerous manner).
2.Aggravated burglary - 20 years.
3.Armed robbery in company - life.
The learned sentencing Judge passed the following sentences:
Count 1:Stealing motor vehicle - 1 year
Count 2:Stealing motor vehicle - 1 year
Count 3:Aggravated burglary - 2 years
Count 4:Stealing motor vehicle - 3 years
Count 5:Armed robbery - 7 years
He directed that the sentences in respect to counts 1, 2 and 3 be served concurrently with each other and concurrently with the sentence imposed with respect to count 5. He directed that the sentence imposed with respect to count 4 be served cumulatively on the count 5 sentence. In that way he arrived at an aggregate sentence of 10 years which he backdated to 25 June 2000. He declined to make an order for eligibility for parole.
In passing these sentences his Honour expressly recognised the need to reward the applicant for his fast track plea of guilty. This he did by reducing the sentences he would otherwise have imposed on counts 4 and 5 each by 1 year. In other words, had it not been for the fast track plea of guilty, the sentence in respect to count 4 would have been four years and the sentence in respect to count 5 would have been 8 years, giving an aggregate of 12 years.
On behalf of the applicant, it was submitted that this was too high a starting‑point.
Having regard to the maximum penalties prescribed by parliament for these offences, and having regard to the objective criminality involved in this crime spree, it cannot be said that a starting‑point of 12 years was manifestly excessive for all five offences. As the Director of Public Prosecutions, Mr Cock QC, pointed out the offences in question, all of them, are serious and prevalent. Two of the three vehicles which were stolen were damaged. The vehicle the subject of count 4, valued at about $42,000, was involved in a high‑speed pursuit with police and was crashed and destroyed. The burglary the subject of count 3 was a domestic burglary committed in company. $3,374 worth of property was stolen.
The armed robbery was committed with a syringe which was apparently loaded and with the assistance of an accomplice. It was an attack upon a 51‑year‑old woman walking in a suburban street, carrying a handbag. It was a brazen and violent attack of the kind which causes ordinary, law‑abiding citizens to be frightened to be on the streets. The complainant's victim impact statement reveals that she was in great fear for her personal safety and that she was seriously traumatised by the experience.
On behalf of the applicant, it was submitted that the sentence offended the totality principle in that it was a "crushing" sentence in light of the applicant's age and of the fact that he "owed the Parole Board approximately 1159 days at the time of sentencing".
We do not accept this submission. Youth is not really on the applicant's side any longer. He was approaching the age of 23 years at the time of sentence. As has been pointed out, he has been habitually offending since the age of 12 and it is apparent from the sentences imposed in the past that the courts have shown him as much leniency as possible. He has been in custody many times. He can no longer be regarded as a young man who has temporarily lost his way. His criminality appears to be entrenched and the only conclusion that can be reached on an appraisal of his antecedents is that, in order to achieve the sentencing objectives of deterrence and protection of the community, the time has come to be very firm with him. In these circumstances, his age has practically no mitigatory significance. As to the submission that the applicant "owes" the Parole Board 1159 days, this was not developed in argument, but the fact is that the applicant chose to offend whilst on parole. The collateral consequences of doing so are of his own making and do not require a sentencing court to reduce an otherwise appropriate sentence: Sikaloski v The Queen [2000] WASCA 387 at par 19.
Another point which was sought to be made on behalf of the applicant is that in sentencing for the offence of stealing motor vehicle charged in count 4, his Honour wrongly took the view that the applicant came within s 378(2)(a) or (b) of the Criminal Code. These provisions add one year to the 7‑year maximum for stealing a motor vehicle if the offender subsequently drives that motor vehicle in a reckless or dangerous manner. On behalf of the applicant, it was pointed out that there was no evidence that it was the applicant who drove the vehicle in question in that manner, and that, indeed, it was the applicant's case that he was not the driver.
It is true that the learned sentencing Judge did make reference to the high‑speed car chase and the crashing of the stolen car in terms which indicated that in his opinion these matters elevated the level of the appellant's criminality in stealing the car. However, we do not accept that there was any sentencing error. On a proper understanding of his Honour's remarks, all that he was concerned to do was to point out that the objective criminality of a car theft is higher where the stolen vehicle is then driven at high speeds which endanger the public, and which result in a crash and the destruction of the vehicle; and that this is so whether the offender or a co‑offender was actually the driver. We note in passing that the co‑offender in this case was a prison escapee.
The other main ground of appeal is that in deducting 1 year from the penalties that would otherwise have been imposed in respect to each of the charges in counts 4 and 5 there was an inadequate reward for the fast track plea of guilty. We think that this ground of appeal must be upheld. It is well‑established that, for reasons which are so well‑known as not to require restatement, offenders must be rewarded, and really rewarded, for fast track pleas of guilty. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances. The discount may be somewhat lower or somewhat higher in particular cases. In this case, we can see no reason why this applicant should not have been rewarded by a 25 per cent discount for his fast track pleas of guilty. Whilst no doubt the Crown case against him was strong in respect to the last offence of car stealing (he was apprehended after running away from the crash), the fact is that when questioned in his video record of interview about the other offences, he freely and frankly admitted his involvement in them, and he pleaded guilty to them at the first available opportunity.
The discount given by the learned sentencing Judge amounted to 16.7 per cent; ie, 2 years off 12 years. In the circumstances of this case, we are of the opinion that that was not an adequate reward for the fast track pleas.
Mr Cock QC submitted that to make the adjustment from 16.7 per cent to 25 per cent (in this case a further discount of 1 year) would attract the criticism that this Court had merely tinkered with the sentence imposed below.
It is true that courts of criminal appeal do not tinker with sentences. There are basic reasons for this. They were explained recently in Morley v The Queen [2001] WASCA 49 at par 8. A court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing judges a wide measure of latitude. The discretion which the law commits to sentencing judges is of vital importance: Lowndes v The Queen (1999) 195 CLR 665 at 672; Postiglione v The Queen (1997) 189 CLR 295 at 336.
In light of these principles, it would be a very rare case in which a court of criminal appeal determined that a sentence of 10 years was manifestly excessive and on that ground reduced it by only 1 year. However, that is not the exercise which is involved in this case. What this Court is concerned to do is to correct a failure to properly implement an important policy in the administration of criminal justice; namely, to encourage pleas of guilty by properly rewarding them when they are made. The applicant should have been given a 25 per cent discount for his fast track plea of guilty and it is no answer to say that to give it to him now will involve a relatively small reduction of the sentence.
For these reasons, we would set aside the aggregate term of imprisonment imposed by his Honour and resentence the applicant to an aggregate term of imprisonment of 9 years. This is best done by setting aside the sentence of 3 years' imprisonment on count 4 and resentencing the applicant to 2 years' imprisonment on that count. The sentences in respect to each of the other charges should stand, as well as the orders for cumulation and concurrency.
There is one other matter which should be mentioned. It is contended that in considering the degree of criminality involved in the armed robbery offence, his Honour took some of the facts from the victim impact statement. These are facts which it was submitted made the offence more serious than it appeared to be if the facts had been only those set out in the statement of facts read out by the prosecutor to the sentencing court. It was contended on behalf of the applicant that his Honour should have confined himself to the facts contained in the statement of facts, as it was only with respect to those facts that the applicant had pleaded guilty. The statement of facts was as follows:
"On Saturday 22nd April 2000 at about 7.20pm the accused has approached the complainant, a 51‑year‑old female who was walking along Preston Street in Como.
She was at the front of Riverside Cellars situated at number 24 Preston Street when the accused produced a syringe and pointed it at the complainant.
He demanded the complainant to give him her handbag and in her panic she has stumbled back and dropped her bag. The accused has picked up the bag and ran off to a nearby vehicle (stolen Holden Commodore sedan registered number 32 VP) and the car has driven off (driver yet to be spoken to).
The complainant was uninjured in the assault.
Nil property recovered."
As to this offence, the learned sentencing Judge made the following remarks:
"The principal and the most serious charge is that of armed robbery which was committed in circumstances where a 51‑year‑old lady was threatened by you with a syringe and her handbag stolen from her. You have visited upon that middle‑aged woman a degree of violence which had been absent from her life."
On behalf of the applicant, it was submitted that these remarks reveal that his Honour was sentencing on the basis of a description of the offence contained in the victim impact statement in which the complainant asserted that she was, in fact, assaulted. The victim impact statement contains the following:
"He used a syringe as a weapon on us. When he was striking down with his hand that had the weapon I thought (he) had a knife. He kept hitting, pushing and shoving, trying to get my bag. He was yelling and swearing at me: 'give me your bag you f….. bitch'."
It is by no means clear to us that the learned sentencing Judge did, in fact, go beyond the statement of facts read out by the prosecutor, but if he had regard to additional facts contained in the victim impact statement, we are not persuaded that he was wrong to do so. The statutory function of a victim impact statement is "to assist the court in determining the proper sentence for the offender": Sentencing Act s 24(1). This means that the court is not confined to the statement of facts read out by the prosecutor, upon which the offender may have based his plea of guilty, but is expressly authorised to take into account the contents of the victim impact statement. Adequate protection against inaccurate or inflammatory victim impact statements is given to the offender by the provisions of s 26(2) which authorise the court to "rule as inadmissible the whole or any part of a victim impact statement". In this case, no objection was taken to any part of the victim impact statement in question and no part of it was ruled inadmissible. Under these circumstances, we cannot see that it would have been wrong for his Honour to make use of the contents of it for sentencing purposes.
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