Lovatt v The State of Western Australia
[2004] WASCA 265
•17 NOVEMBER 2004
LOVATT -v- WA [2004] WASCA 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 265 | |
| COURT OF CRIMINAL APPEAL | 17/11/2004 | ||
| Case No: | CCA:72/2004 | 1 NOVEMBER 2004 | |
| Coram: | MALCOLM CJ MURRAY J ROBERTS-SMITH J | 1/11/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentence suspended for 2 years | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW KEITH LOVATT STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing One offence of armed robbery in company Early plea of guilty by young offender No relevant previous conviction Cooperation with authorities including offer to give evidence against co-offender Offence committed to assist co-offender to meet drug debt Good prospects of rehabilitation Whether sentence manifestly excessive Whether sentence should have been suspended Turns on own facts |
Legislation: | Nil |
Case References: | Dinsdale v R (2000) 202 CLR 321 Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 Mobilia v R [2002] WASCA 130 R v Grein [1989] WAR 178 R v James (1985) 14 A Crim R 364 R v Liddington (1997) 18 WAR 394 R v McAndrew [1999] WASCA 124 R v Shaharuddin [1999] WASCA 229 R v Tait (1979) 24 ALR 473 Smith v Pritchard [2003] WASCA 6 Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LOVATT -v- WA [2004] WASCA 265 CORAM : MALCOLM CJ
- MURRAY J
ROBERTS-SMITH J
- Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CCA 72 of 2004
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
Citation : WA v LOVATT
File No : INS 71 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing - One offence of armed robbery in company - Early plea of guilty by young offender - No relevant previous conviction - Cooperation with authorities including offer to give evidence against co-offender - Offence committed to assist co-offender to meet drug debt - Good prospects of rehabilitation - Whether sentence manifestly excessive - Whether sentence should have been suspended - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Sentence suspended for 2 years
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC & Mr G C Astill
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v R (2000) 202 CLR 321
(Page 3)
Case(s) also cited:
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Mobilia v R [2002] WASCA 130
R v Grein [1989] WAR 178
R v James (1985) 14 A Crim R 364
R v Liddington (1997) 18 WAR 394
R v McAndrew [1999] WASCA 124
R v Shaharuddin [1999] WASCA 229
R v Tait (1979) 24 ALR 473
Smith v Pritchard [2003] WASCA 6
Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
(Page 4)
1 JUDGMENT OF THE COURT: On 1 November 2003 the applicant, in company with an accomplice, committed an armed robbery upon a service station in Yokine. The applicant was the man who went into the store. He was armed with a machete which had just been purchased from an army surplus store by his accomplice, who had given the weapon to the applicant. The offence was committed at night. The accomplice drove the two men to the service station in a motor vehicle. When they judged that the time was favourable because no-one else was in the service centre, the applicant left the car and entered the shop. He displayed the machete to the service station attendant and demanded the cash in the cash register. He was given about $830. He left the service station and was driven away by his accomplice.
2 At the sentencing proceedings there was a dispute about what had been done with the machete in the course of committing the robbery. The service station attendant was called to give evidence. The sentencing Judge found that contrary to the assertion of the applicant, who said that he kept the machete at all times substantially concealed in his sleeve, the applicant did display the machete to the service station attendant to reinforce his demand to be given the money from the till.
3 A few days later the applicant was apprehended and interviewed by police on video. He was cooperative and fully admitted what he had done. He told the police about the existence of the co-offender, whom he named, and against whom he offered to give evidence. Although it was he who revealed the circumstance of aggravation that the offence was committed in company, it was also in his interest to do so because he said in mitigation of his involvement, that he had been prevailed upon to commit the offence by his accomplice.
4 Both men were afflicted with a drug habit. The applicant's friend, he said, had been threatened by drug dealers, to whom he owed money. The money to be obtained from the robbery was to be used to meet this debt. $700 was expended in that way. The remaining sum of about $130 was used by the two men to obtain amphetamines.
5 After the applicant was charged with the offence of armed robbery in company he was released to bail. It was a condition of his bail that he not attend the premises of the service station he had robbed.
6 As we understand it, at the first available opportunity before the Court of Petty Sessions, the applicant pleaded guilty. He was committed for sentence to this Court by the process of expedited committal known
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- colloquially as "the fast track". He appeared in this Court and renewed his plea on 3 May.
7 On that date he was sentenced to a term of 2 years and 8 months imprisonment, with eligibility for parole. He would therefore be obliged to serve a period of 16 months imprisonment before becoming eligible for parole. He made an application for leave to appeal against the severity of his sentence and when the matter came before us, he had served nearly 6 months of the term of imprisonment imposed upon him.
8 We granted him leave to appeal and allowed his appeal, ordering that the sentence of 2 years and 8 months imprisonment be varied by directing its suspension for a period of 2 years from the date of our order. We took that course upon the applicant undertaking to the Court that he would resume a drug rehabilitation programme in which, whilst on bail, he had been engaged with an organisation known as NextStep. In addition we required the applicant to undertake that he would obtain of his own motion individual psychological counselling, as recommended by the psychologist who reported to the sentencing Court, a Ms Zuin.
9 Further, the applicant told us, and provided evidence to support the assertion, that while on bail awaiting appearance in this Court, he had saved the $830 stolen from the service station. He had the money in a bank account but he had not made restitution because, he said, of the condition of his bail that he was not to attend upon the service station. It appears that despite the fact that he was represented in the Court of Petty Sessions and before the sentencing Judge, the applicant had taken no steps to make restitution without involving himself in a breach of bail.
10 Nor had he done so since his incarceration, despite the fact that he had been ordered to compensate the owner of the service station by paying the sum of $830. We were satisfied that he had not discharged that order because he did not understand how he might do so while in prison and without, as he thought, access to the funds in his bank account. We required the applicant's undertaking that within seven days of the date of our orders he should discharge the compensation order by payment to the Director of Public Prosecutions. These are our reasons for the orders so made.
11 We have mentioned the circumstances of the commission of the offence. The sentencing Judge was right to regard it as being a serious case of armed robbery in company. A machete is, as his Honour described it, a "vicious weapon" and it was used as a threat to reinforce
(Page 6)
- the demand. The vulnerability of persons in the position of the service station attendant is made manifest by the ease with which the applicant and his accomplice achieved their end and completed the commission of the offence. The courts rightly take the view that, having regard to the prevalence of such offences and the vulnerability of such victims, severe punishment is generally meted out to offenders in an attempt to deter people from committing such offences and thereby to secure a measure of protection for the community.
12 On the other hand, the sentencing Judge did not overlook the mitigatory circumstances. The applicant had committed the offence for very little personal benefit and to assist his co-offender. He had revealed the existence of the co-offender, named him and offered to give evidence against him. The accomplice has not been charged, but that is because when questioned by the police, he provided an alibi which they have not been able to break, except by the evidence of the applicant, and so as we understand the position, prosecution of the co-offender would depend entirely upon the applicant's evidence.
13 The sentencing Judge knew and commented upon the fact that the applicant was only 22 years of age. He had amply demonstrated his contrition for the commission of the offence. His plea of guilty was regarded as powerful affirmation of that fact. His Honour commented upon the fact that while on bail, the applicant had actively pursued his rehabilitation. He had sought to overcome his dependence upon illicit drugs by enrolling in the rehabilitation programme offered by the organisation known as NextStep. As at the time of his appearance in this Court he had been successful in remaining drug free and, as we have said, during the period while he was at liberty on bail he had saved the money so that he could compensate the victim of the offence, although he had not actually discharged that obligation.
14 This was the applicant's first offence of any magnitude and he had solid family support and every prospect that he could successfully pursue the process of rehabilitation and would not offend again, particularly if, as the applicant proposed, he undertook individual psychological counselling for the purpose of addressing a number of issues of a personal nature, which need not be discussed here, which the reporting psychologist felt were having an impact upon his behaviour in a manner relevant to his commission of the offence before the Court.
15 The pre-sentence report provided to the sentencing Judge observed that the applicant lacked emotional maturity. He took full responsibility
(Page 7)
- for the commission of the offence but did not acknowledge the full extent of the contribution made to its commission by his use of illicit drugs. He therefore needed help in that regard, although as the pre-sentence report put it, the applicant admitted "that he found himself in a lifestyle which involved the heavy use of illicit substances on an every day basis and he does acknowledge how dysfunctional it made him". Hence the undertakings we required of the applicant before we suspended his imprisonment.
16 As to the application for leave to appeal, we consider that the trial Judge overlooked none of the relevant circumstances to which we have referred above; nor did his Honour overvalue the seriousness of the offence. His Honour expressly accepted that the applicant had done as much as he possible could to pursue his rehabilitation from the use of illicit substances. He had distanced himself from drug-using associates. He had given up drugs since his arrest and he was accepted to be at a low risk of reoffending.
17 However, when his Honour commented upon the suggestion that any period of imprisonment his Honour might impose should be suspended, he said that although he had looked carefully at that possibility, he considered the offence to be simply too serious. Only imprisonment to be immediately served would suffice, although having regard to the matters of mitigation to which we have referred, his Honour considered the appropriate term might be much less than it would otherwise have been. His Honour thought that had he been sentencing the applicant before the Sentencing Legislation Amendment and Repeal Act 2003 came into effect, he would have imposed a term of 4 years imprisonment. Having regard to the requirements of the transitional provisions associated with that amending legislation, his Honour reduced the term by a third to one of 2 years and 8 months imprisonment.
18 It is in relation to the decision that the circumstances of the commission of the offence were too serious to allow for suspension of the service of the term imposed that in our opinion, his Honour erred in the exercise of his discretion. The Court is guided in respect of the question when the discretion to impose a term of suspended imprisonment may properly be exercised, by the decision of the High Court in Dinsdale v R (2000) 202 CLR 321. The Court held there that the exercise of the discretion to suspend service of a term of imprisonment was to be informed by consideration of all the circumstances of the case relevant to the sentence to be imposed. We were referred to all those matters.
(Page 8)
19 To put our conclusion briefly, it is that although the offence in the circumstances of its commission was clearly a most serious offence, nonetheless, the mitigatory circumstances applicable to the applicant to which we have referred were of considerable power. We took the view that his Honour was not precluded by the seriousness of the offence from a favourable exercise of his discretion to suspend service of the term imposed. On the contrary, in our opinion, this was a case of a kind ideally suited to suspension of service of the term.
20 The principle of general deterrence and the Court's recognition of the seriousness of the offence was adequately marked by the decision that only imprisonment in the term imposed by his Honour would suffice as a punishment proportionate to the criminality involved. However, the mitigatory circumstances were of such power in this case that in our opinion, they compelled the conclusion that the principles of sentencing generally would be adequately served if the term was suspended. We conditioned that order by requiring of the applicant that he give undertakings designed to reinforce the obligation that he should continue to pursue the efforts already undertaken, with good effect, to secure his rehabilitation from the use of illicit drugs and to make reparation for the commission of the offence.
21 It was for those reasons that in this case we were driven to the conclusion that the exercise of sentencing discretion had miscarried.
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