McConkey v The State of Western Australia

[2012] WASCA 45

McCONKEY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 45

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 45
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:188/2011	Heard:	15 FEBRUARY 2012
Coram:	McLURE P MAZZA JA	Delivered:	2/03/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for extension of time refused Appeal dismissed
Category:	B
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Parties:	BRADLEY SCOTT McCONKEY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Totality Turns on own facts
Legislation:	Sentencing Act 1995 (WA), s 32
Case References:	Roffey v The State of Western Australia [2007] WASCA 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McCONKEY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 45 CORAM : McLURE P

MAZZA JA

HEARD : 15 FEBRUARY 2012 DELIVERED : 2 MARCH 2012 FILE NO/S : CACR 188 of 2011 BETWEEN : BRADLEY SCOTT McCONKEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

Citation : THE STATE OF WESTERN AUSTRALIA -v- McCONKEY [2011] WASCSR 12

File No : INS 172 of 2011

Catchwords:

Criminal law - Appeal against sentence - Totality - Turns on own facts

(Page 2)

Legislation:

Sentencing Act 1995 (WA), s 32

Result:

Application for extension of time refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : No appearance

Solicitors:

Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)

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

Roffey v The State of Western Australia [2007] WASCA 246


(Page 3)

1 McLURE P: This is an application for an extension of time and leave to appeal against sentence. The appellant was convicted on his fast-track pleas of guilty of one count of stealing, one count of stealing a motor vehicle, two counts of aggravated armed robbery, one count of armed robbery and one count of criminal damage by fire.

2 He was also convicted of four offences the subject of a notice under s 32 of the Sentencing Act 1995 (WA), being two charges of driving without authority, one charge of reckless driving and one charge of failing to stop.

3 The appellant was sentenced on 4 February 2011 by Murray J to a total effective sentence of 8 years' imprisonment. He was made eligible for parole. The appellant challenges the total effective sentence on the sole ground that it infringes the first limb of the totality principle.

4 The relevant facts of the offending are as follows. On 3 September 2010 the appellant was at the Burswood Casino. He stole a motorcycle helmet and a motorcycle. On 5 September 2010 the appellant and a co-offender (McKellar) travelled to a supermarket in Mundaring on the stolen motorcycle. The appellant entered the supermarket, produced a handgun and approached the shop assistant demanding money from the cash register. The assistant opened the cash register and handed the appellant approximately $900 in cash. As the assistant was attending to the appellant's demands, the store manager approached him. The appellant pointed the firearm at the store manager and threatened to shoot him if he did not stop. The appellant then left the supermarket and he and the co­-offender departed on the stolen motorcycle. The supermarket was busy with customers when the robbery was committed.

5 On 6 September 2010 the appellant and the same co-offender attended a pharmacy in Erskine on the stolen motorcycle. They entered the pharmacy. Both were wearing full-faced helmets and were armed with handguns. They produced the guns and threatened staff, requesting them to open the safe and the cash register. They stole $15,000 in cash and departed on the stolen motorcycle.

6 Later the same day, the appellant and the co-offender were travelling on the stolen motorcycle on Stock Road, Munster. The appellant was driving and the co-offender was a passenger. The motorcycle travelled at high speed, estimated to be in excess of 140 km per hour. It swerved to overtake another vehicle and in doing so the appellant lost control of the motorcycle which crashed. A good Samaritan (the complainant) driving a

(Page 4)

black Toyota landcruiser pulled over in order to render assistance to the appellant. The appellant approached the complainant, produced a handgun and threatened to shoot him if he did not give over the vehicle. After the complainant got out of the vehicle, the appellant got in and drove it to Cullacabardee where he set the vehicle on fire and left the scene. The vehicle, valued at approximately $50,000, was destroyed by the fire.

7 The appellant was aged 30 at the time of the offences. He had a lengthy prior criminal record. Most significantly, on 12 September 2003 he was sentenced by Roberts-Smith J to a total effective sentence of 6 years and 8 months for multiple offences including attempted robbery, three counts of armed robbery, stealing a motor vehicle, driving without authority and failing to stop. The sentencing judge noted that in the sentencing proceedings before Roberts-Smith J, the appellant had expressed a determination to turn his life around and expressed remorse for his offending.

8 The appellant started using drugs and alcohol and committed his first offence at age 12. He was using amphetamines and heroin around the time he committed these offences. He was assessed by a psychologist as being at a moderate risk of violent reoffending. The psychologist also noted that the appellant had exhausted the range of available programmes offered in prison and although he had performed well in them, it had not translated to any meaningful or enduring change when the appellant was released back into the community. The psychologist also noted that the appellant's drug use and inability to cope with setbacks were his main treatment needs and concluded that unless the appellant was motivated to stop his drug use, further interventions would have little effect on him and his resultant offending behaviour.

9 The appellant engaged in mediation with those victims of his offending who were willing to participate. The appellant continues to have the support of his mother and other members of his immediate family.

10 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

(Page 5)

11 The only significant mitigating factor in this case was the appellant's pleas of guilty. It is clear the appellant's good intentions and his actions whilst within the criminal justice system do not translate to his conduct in the community. However, the sentencing judge accepted the assessment of the psychologist that there was some prospect of rehabilitation which would be assisted by individualised psychological counselling to address the appellant's depressive features, his psychological distress and his associated resort to drugs. In light of the nature and extent of his offending to date, this prospect does not weigh heavily in the sentencing process.

12 The appeal has no reasonable prospect of succeeding. As the facts disclose, the total criminality of the appellant's offending in September 2010 is at the upper level of seriousness. Having regard to that and his bad prior record, significant weight had to be given to the need for personal deterrence and punishment.

13 The appellant requires an extension of time within which to appeal. The appeal notice was filed nine months out of time. As the ground of appeal has no reasonable prospect of succeeding, I would refuse the application for an extension of time and dismiss the appeal.

14 MAZZA JA: I agree with McLure P.