Majok v The State of Western Australia - [2006] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAJOK -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 140

CORAM: ROBERTS-SMITH JA
MCLURE JA
BUSS JA

HEARD: 18 MAY 2006

DELIVERED : 10 JULY 2006

FILE NO/S: CACR 55 of 2005

BETWEEN: RIAK MAJOK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 154 of 2004

Catchwords:

Criminal law - Sentence - Totality principle - Turns on own facts

Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr J Sutherland
Respondent: Mr J Randazzo

Solicitors:

Appellant: McDonald & Sutherland
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Holder and Johnston (1983) 13 A Crim R 375
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Atholwood (1999) 109 A Crim R 465
Heferen (1999) 106 A Crim R 89
Herbert v The Queen (2003) 27 WAR 330
Hill (1982) 6 A Crim R 202
Krencej v The Queen [1999] WASCA 20
McKenna v The Queen (1992) 7 WAR 455
McLachlan v The Queen [1999] WASCA 255
Miles v The Queen (1997) 17 WAR 518
Slater v The Queen [2000] WASCA 365
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Ward (1999) 109 A Crim R 159

ROBERTS-SMITH JA: I have read in draft the reasons to be published by McLure JA. I agree with those reasons and have nothing to add.
McLURE JA: This is an appeal against sentence. The appellant was charged with three counts of aggravated armed robbery (counts 1, 3 and 4) and one count of deprivation of liberty (count 2). On 14 February 2005, the appellant pleaded guilty to counts 1, 3 and 4 but not guilty to the circumstance of aggravation of pretending to be armed (count 1) and of being armed (counts 3 and 4). The appellant also pleaded not guilty to count 2. Following his plea of not guilty, the appellant was tried before a judge and jury and found guilty on count 2 later the same day.
On 15 February 2005, there was a trial before Justice Murray of the issues relating to aggravation. Justice Murray found each of the circumstances of aggravation proved beyond reasonable doubt.
On 8 April 2005, the appellant was sentenced to a total term of 7 years' imprisonment as follows:
1.Count 1 – 4 years' imprisonment;
2.Count 2 – 2 years' imprisonment (concurrent);
3.Count 3 – 4 years' imprisonment (concurrent); and
4.Count 4 – 3 years' imprisonment (cumulative).
The appellant was made eligible for parole and the sentences were back‑dated to commence on 15 February 2005.
The sentencing Judge did not identify the factual findings on which his sentences were based other than to say that he accepted the evidence of the prosecution witnesses. That evidence was as follows. At about 9.30 pm on 31 August 2003, the first complainant, Mr S Batho, walked with a friend from the Cottesloe Hotel to a car park where their cars were parked. Both men went to their cars to drive away separately. As the first complainant got into the driver's seat of his vehicle and went to close the door, the appellant's co‑offender moved into the space between the door and the vehicle preventing the first complainant from closing it. The appellant then moved around the co‑offender and punched the first complainant in the face near his right eye, causing swelling and bruising. The first complainant was then pulled from the car, causing his shirt to be torn. The co‑offender demanded the first complainant's wallet and took out all the notes. The co‑offender began looking through the first complainant's vehicle while the appellant grabbed the wallet and took out

all the coins. The appellant asked whether that was all the first complainant had to which he responded that the co‑offender already had it all. The appellant then took the first complainant's watch and mobile phone. The co‑offender said he did not want to hurt the first complainant but that the first complainant had better not be lying as he was armed with a gun. The co‑offender patted his lower back indicating he had a gun there. The appellant then asked the first complainant if he had any money in his bank account to which the first complainant said no. The appellant then said words to the effect that the first complainant better not be lying because "we've got a gun". The first complainant finally admitted he had more money in his bank account and the appellant then demanded that the first complainant get in the car and drive them to an automatic teller machine (ATM). The co‑offender got in the front passenger seat and the appellant got in the rear seat on the driver's side.

After driving for some time at the direction of the co‑offender, the first complainant stopped the car and everyone got out. The first complainant was told to open his boot and get out anything that was valuable. The three got back into the car and the first complainant drove to an ATM and was told by the co‑offender to get out and go to the ATM. The co‑offender followed the first complainant, taking with him a shredder blade from a mulcher that was in the first complainant's car. The appellant stayed in the car at the direction of the co‑offender. The appellant yelled to the co‑offender to check the balance to make sure they got all the money.
The first complainant checked his account balance and was told to withdraw $400 which he did. Both men returned to the car. The first complainant drove both offenders for some time until eventually he stopped the car and they got out and left. These are the facts relating to counts 1, 2 and 3.
At about 10 pm on 30 November 2003, the second complainant, Mr D Govus, left the Cottesloe Hotel with two friends to walk to the train station to catch a train. As they were walking, the second complainant heard bottles roll and smash behind him and someone asked the time. The second complainant looked back and saw three males walking behind him, one of whom was the appellant. The second complainant then heard more bottles smash and roll behind him and looked around to see the three men walking faster. The second complainant and his friends began to walk faster and then began to run.
The second complainant ran in a different direction to his friends and at one point tripped but got up and continued running. He ran to a doorway and pressed the bell. Nobody opened the door. The appellant arrived at where the second complainant was standing and grabbed the second complainant around the neck and pulled him down to the start of the driveway. The appellant demanded the second complainant's mobile phone, which he gave. One of the appellant's co‑offenders then pulled a gun from his pocket and put it into the second complainant's stomach just above his left hip.
The appellant asked the second complainant for his money. He gave him 50 cents which was all he had. The appellant then asked the second complainant for his bank cards and he complied. The appellant said to his co‑offender words to the effect "You don't need to use that now" at which point the co‑offender lowered the gun. The appellant then said to the second complainant words to the effect that he had 30 seconds to run away or "we're going to shoot you". The second complainant ran off.
The appellant relies on one ground of appeal which is in the following terms:
"Having regard to the nature and circumstances of the Appellant's offending behaviour, the learned sentencing Judge erred in law in that he failed to have proper regard to, or alternatively had insufficient regard to:
(a)the Appellant's antecedents, including:
(i)his upbringing as a refugee in Africa which involved significant trauma both physical and psychological, and
(ii)his subsequent upbringing in Australia from the age of 13 years, and the problems he experienced in this country which led to further psychological problems and his abuse of alcohol,
(b)the Appellant's age at the time of offending, which in the case of the offences in counts 1 ‑ 3 in the indictment was 18 years and 3 months and in the case of count 4, 18 years and 6 months,
(c)the steps the Appellant had taken to rehabilitate himself since the commission of the offences, including obtaining employment and qualifying for and enrolling at university, and
(d)the fact that the Appellant substantially admitted his guilt … and demonstrated remorse for his offending conduct
and as a consequence imposed sentences which were excessive in the aggregate."
The essence of the challenge is that the aggregate sentence of 7 years was excessive because it breached the totality principle.
An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. It is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if the result is unreasonable or unjust, either because it is manifestly inadequate or manifestly excessive. In situations where the total sentence for multiple offences is challenged, reliance is placed on the totality principle.
The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295. An aggregate sentence may be inappropriately long even if it cannot be described as "crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216. The word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 12 per Anderson J.
The usual consequence of the application of the totality principle is to arrive at an ultimate aggregate sentence that is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone: Holder and Johnston (1983) 13 A Crim R 375 at 389 per Street J.
The question is whether the total sentence of 7 years bears a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J.
The appellant was aged 18 years when he committed the offences. He had a minor record of prior offending that had not resulted in the imposition of a sentence of imprisonment (suspended or immediate).
The sentencing Judge had before him a psychological and psychiatric report. The appellant was born in Sudan. His childhood was marred by an environment of trauma, death and violent events. When he was 6 months old his family moved to Ethiopia as refugees and then to Kenya. The appellant was aged 13 when his family immigrated to Australia. The appellant is described as alcohol‑dependent and his offending is alcohol‑related.
The psychological report notes that as a result of the appellant's childhood exposure to significant levels of violence, it was difficult for him to fully appreciate the seriousness of his own actions and the effect his offending behaviour had on the victims.
However, the sentencing Judge accepted that there was significant evidence of rehabilitation which reduced the need for personal deterrence. He referred to the appellant's renewed participation in his community, which included coaching basketball, becoming involved in a Sudanese church, working full‑time in Kalgoorlie and taking steps to secure acceptance to study law at Murdoch University in 2005. The sentencing Judge was satisfied that the focus of the appellant's life had completely changed since the commission of the offence for which he was entitled to substantial mitigation.
The total sentence of 7 years equates to 10 years and 6 months under the sentencing regime that applied prior to the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). On any view, the total sentence is very severe. Indeed, having regard to the appellant's youth, his lack of any significant prior record of offending, his demonstrated rehabilitation and his late and limited pleas of guilty, I am satisfied that the total term of 7 years does not bear a proper relationship to the overall criminality involved when regard is had to matters personal to the appellant; the sentence is too long. Due weight is given to the serious nature and circumstances of the offences by imposing a total sentence of 5 years which can be achieved by making the sentences on counts 2 and 4 cumulative and the balance of the sentences concurrent.
For these reasons I would allow the appeal, set aside the orders of the sentencing Judge relating to concurrency and cumulation and order that the sentence of 2 years on count 2 and 3 years on count 4 be served

cumulatively. The sentences of 4 years on count 1 and 4 years on count 3 are to be served concurrently with each other and with the sentences on counts 2 and 4. The appellant will remain eligible for parole and will serve a minimum term of 3 years.

BUSS JA: I agree with McLure JA.