Marshall v The State of Western Australia
[2016] WASCA 171
•29 SEPTEMBER 2016
MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 171
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 171 | |
| THE COURT OF APPEAL (WA) | 29/09/2016 | ||
| Case No: | CACR:106/2016 | 23 SEPTEMBER 2016 | |
| Coram: | NEWNES JA MAZZA JA | 23/09/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DARREN JOHN MARSHALL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Armed robbery Extensive criminal record Late plea of guilty Sentence of 4 years and 2 months' imprisonment |
Legislation: | Nil |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Drury v The State of Western Australia [2010] WASCA 220 Fenton v The State of Western Australia [2015] WASCA 255 Forkin v The State of Western Australia [2013] WASCA 51 Nannup v The State of Western Australia [2011] WASCA 257 The State of Western Australia v Drew [2012] WASCA 86 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 171 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 11 of 2015
Catchwords:
Criminal law - Appeal against sentence - Armed robbery - Extensive criminal record - Late plea of guilty - Sentence of 4 years and 2 months' imprisonment
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Henry Sklarz
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Drury v The State of Western Australia [2010] WASCA 220
Fenton v The State of Western Australia [2015] WASCA 255
Forkin v The State of Western Australia [2013] WASCA 51
Nannup v The State of Western Australia [2011] WASCA 257
The State of Western Australia v Drew [2012] WASCA 86
- REASONS OF THE COURT:
(This judgment was delivered extemporaneously on 23 September 2016 and has been edited from the transcript).
1 This is an application for leave to appeal against sentence. On 13 January 2016, the appellant was convicted on his plea of guilty of one count of armed robbery. He was sentenced to 4 years and 2 months' imprisonment, with eligibility for parole. The sole ground of appeal is that the sentence was manifestly excessive. The appellant requires an extension of time to appeal.
The offending
2 At about 7.00 pm on 28 August 2014, the appellant went into a resort in Scarborough. He approached the reception desk, holding a jumper over his face with one hand and holding a hotel laundry bag with the other. He threw the bag at the staff member at the desk, pulled a large carving knife from his jeans, pointed it at the staff member, and demanded money. The staff member ran to a rear office. The appellant then removed $30 in cash, which he claims was in an envelope on the reception desk, and ran from the premises.
3 A subsequent forensic examination of the laundry bag identified the appellant's DNA on an empty knife packet left in it and, on 24 September 2014, he was arrested and charged with the offence.
The sentencing remarks
4 The sentencing judge noted that the appellant was 34 years of age. He was born in Western Australia and raised by his grandparents because his parents were very young when he was born. His grandparents are now deceased. The appellant left school after completing year 8 and has never been employed. He has a partner who is some years younger than he is. His partner gave birth to the appellant's child last year, while the appellant was in custody.
5 The appellant has a long history of drug abuse, heroin being his drug of choice. He has made some efforts to overcome his substance abuse problems, all of which have been unsuccessful including a number of naltrexone implants which failed because he continued to use other drugs at the same time. The sentencing judge found that the appellant was drug affected at the time he committed this offence.
6 The sentencing judge noted that the appellant has a very long prior criminal record, including a conviction for armed robbery in 2003. The appellant's convictions for summary offences occupy more than 11 pages. Her Honour considered that the pre-sentence report indicated the need for a sentence that would personally deter the appellant and protect the community from his criminal activity.
7 While the appellant had pleaded guilty to the offence, he did so only on what was to be the first day of his trial. For the late guilty plea, the sentencing judge gave a discount of 8% pursuant to s 9AA of the Sentencing Act 1995 (WA).
Disposition of the application and the appeal
8 The principles applicable to an appeal of this nature are well established. In determining whether a sentence is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, life imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
9 The range of sentences customarily imposed for the offence provides a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency in outcomes: Fenton v The State of Western Australia [2015] WASCA 255 [17]. However, it does not mark the boundaries within which the sentencing discretion must be exercised.
10 It was submitted on behalf of the appellant that the range of sentences imposed for a single offence of armed robbery has been held to be between 4 years' and 6 years' imprisonment, excluding matters of mitigation. Reference was made to Drury v The State of Western Australia [2010] WASCA 220; Nannup v The State of Western Australia [2011] WASCA 257; The State of Western Australia v Drew [2012] WASCA 86; and Forkin v The State of Western Australia [2013] WASCA 51. Counsel for the appellant argued that the offending in this case fell at the low end of that range, given the short duration of the offending and the very limited contact between the appellant and his victim.
11 Counsel for the appellant also submitted that since the appellant had been in custody for the offence he had displayed victim empathy and remorse, and had discussed possible strategies for overcoming his drug addiction. The offending had been committed while the appellant was detoxifying from both legal and illegal drugs and suffering from depression, and had occurred out of desperation to free his mother from threats made against her by his drug suppliers. The appellant was described by his counsel as having been inspired by the birth of his child to focus his attention on living a law-abiding lifestyle.
12 The appellant's submission that the offending was of short duration and involved very limited contact with the victim rather understates the seriousness of the offending. The appellant was armed with a potentially lethal weapon, a carving knife, which he used to threaten the victim, who fled into a rear office in obvious alarm. The appellant then took the money that the victim had left behind on the counter. The encounter between the appellant and the victim may have been brief but it was undoubtedly a terrifying experience for the victim. It was plainly serious offending.
13 The appellant does not have the benefit of good character. On the contrary, he has a previous conviction for armed robbery and a long history of persistent offending over many years including drug, weapon, firearm, stealing, fraud, assault, and burglary offences. The pre-sentence report notes that the appellant has spent time in custody in each year since he turned 19 years of age and the longest period he has spent in the community is nine months. While the appellant is not to be punished again for his previous offending, that offending demonstrates that the appellant has little regard for the law and that personal deterrence is of particular importance in this case.
14 The only significant mitigating factor was the appellant's plea of guilty, but that came at a very late stage and the lateness of the plea sits rather uneasily with the appellant's claimed remorse and victim empathy. The fact that the offending was carried out while the appellant was affected by drugs is not a mitigating factor.
15 The author of the pre-sentence report has also observed that a claim by the appellant that his partner and child are the primary factors motivating him to reform is doubtful in light of his continued offending during the relationship with his partner (including while she was expecting the child) and his poor prison behaviour while on remand for this offence, involving 32 warnings, incidents and charges. It was further noted in the pre-sentence report that, whilst the appellant has said that he is motivated to address his substance abuse through programmatic intervention, that assertion has appeared in most of the previous pre-sentence reports without any lifestyle changes being subsequently made. It is evident from the pre-sentence report that the appellant was regarded as being at a high risk of re-offending.
16 We have had regard to a number of cases of comparable offending, including the cases referred to by counsel for the appellant. It is unnecessary to canvass them. Suffice it to say that the sentence in this case is broadly comparable with the outcome in those cases.
17 Having regard to all the relevant circumstances, a sentence of 4 years and 2 months clearly fell within a sound exercise of the sentencing discretion.
Conclusion
18 We would grant an extension of time to appeal, the substantial part of the delay being due to factors outside the appellant's control. But the appeal has no reasonable prospect of succeeding and the application for leave to appeal must therefore be dismissed. It follows that the appeal is dismissed.
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