McDonald v The State of Western Australia
[2008] WASCA 132
•27 JUNE 2008
McDONALD -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 132
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 132 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:150/2007 | 16 JUNE 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 27/06/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | KIM PETER McDONALD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Attempted armed robbery Sentence by trial judge more in accordance with sentence for armed robbery Turns on own facts |
Legislation: | Sentencing Act 1995 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Miles v The Queen (1997) 17 WAR 518 Mobilia v The Queen [2002] WASCA 130 The State of Western Australia v Reynolds [2006] WASC 31 The State of Western Australia v Wells [2005] WASCA 23 Wong v The State of Western Australia [2004] WASCA 286 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McDONALD -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 132 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 1723 of 2007
Catchwords:
Criminal law - Sentencing - Attempted armed robbery - Sentence by trial judge more in accordance with sentence for armed robbery - Turns on own facts
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Legislation:
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S E Stone
Solicitors:
Appellant : Donna Webb & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Miles v The Queen (1997) 17 WAR 518
Mobilia v The Queen [2002] WASCA 130
The State of Western Australia v Reynolds [2006] WASC 31
The State of Western Australia v Wells [2005] WASCA 23
Wong v The State of Western Australia [2004] WASCA 286
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1 STEYTLER P: On 12 October 2007 the appellant was sentenced, after pleading guilty, on a charge of attempted armed robbery. He had also pleaded guilty, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), to charges of stealing, common assault and attempted theft of a motor car. He was sentenced in respect of these at the same time. Because the commission of the offence of attempted armed robbery breached the terms of an intensive supervision order that had previously been imposed on the appellant, he was sentenced also in respect of the convictions giving rise to that order. These were convictions for the offence of giving false details to police and for the offence of attempting to steal a car. He was sentenced to a total term of 4 years and 6 months' imprisonment. He appealed. At the conclusion of argument on the appeal we allowed the appeal in respect of the sentence imposed on the charge of attempted armed robbery and re-sentenced the appellant for that offence. We said that we would later give our reasons for doing so. These are my reasons.
The attempted armed robbery
2 On 26 May 2007 the 23-year-old appellant was at a house in Beechboro, babysitting three small children. He was drinking 'Wild Turkey cans' and was also taking prescribed pills. In the early evening he contacted Domino's Pizza in Morley and ordered a delivery of two pizzas, garlic bread and a bottle of coke. At about 9.25 pm the delivery driver arrived at the Beechboro house in order to deliver the order. By then the appellant had consumed, as he claimed, two cartons of 'Wild Turkey cans'. He was, on any view, significantly under the influence of the alcohol consumed by him. This was compounded by the effect of the prescribed pills that he had been taking.
3 The appellant met the delivery driver at the front door of his house. He handed the driver a $20 note. The driver told him that the cost was $30.95. The appellant reached into his left side trouser pocket and produced what appeared to be a grey metal handgun. He put the gun to the back of the delivery driver's head and forced him to his knees. The driver was terrified. The appellant demanded that the driver hand over all of his money and the food and drink that had been ordered. The driver moved his hands up to his head. He heard a spring in the gun move when the gun was shifted. This led him to believe that the gun was a replica. He pushed it away from his head, stood up, picked up the food order and walked back to his vehicle. The appellant cocked the gun and pointed it at the driver. He told the driver that he had enough money to pay for the
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- order and that he wanted to pay. The driver ignored him and returned to the Domino's store.
4 On the following day police went to the Beechboro house with a firearm search warrant. They found a grey metal replica handgun under the appellant's bed. They also found a Domino's Pizza baseball cap in the rear yard and a $20 note in the appellant's trousers.
The May 2007 convictions
5 A 12 month intensive supervision order had been imposed upon the appellant on 10 May 2007, only 16 days prior to the commission of the attempted armed robbery. As I have said, it had been imposed in respect of two convictions, one for giving false personal details and one for attempted car theft. The offence of giving false personal details to the police had been committed on 30 March 2007. Police had caught the appellant crossing a street against a red-man signal. He gave them a false address. The offence of attempting to steal a car was committed on 19 March 2007 in Mount Lawley.
The s 32 notice
6 The facts giving rise to the three charges that came before the court on the s 32 notice were as follows.
7 The offence of attempted stealing of a motor car took place between 19 - 20 March 2007, when the appellant broke into a car in Joondalup and caused damage in an unsuccessful attempt to start it. He was under the influence of drugs and/or alcohol at the time.
8 The stealing and assault offences were committed on 9 April 2007. The appellant approached a young man in Central Park in Perth and asked him for money. When told by the young man that he had no money, the appellant reached into the young man's pocket and stole his mobile telephone. A friend of the complainant came up to the appellant. He asked the appellant to return the telephone. The appellant declined to do so unless he was given money. The appellant then challenged the friend to a fight and grabbed his throat. The victim broke the appellant's grip and tried to back off while the appellant kept challenging him to a fight. The appellant and a female friend then walked off. He was arrested a short time later.
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The appellant's background
9 The appellant had an unfortunate childhood. He had begun living on the streets from the age of 12 or 13 years. He developed a daily intravenous heroin habit. He also used amphetamines. At the time of the attempted armed robbery he was suffering from ongoing stress because of the break-up of a relationship some two weeks before.
10 The appellant has an unprepossessing criminal record. This encompasses offences of stealing, including the theft of a motor vehicle. However, most of these offences were committed while he was a juvenile. His only prior conviction for stealing as an adult is that concerning the attempted theft of the motor car on 19 March 2007.
11 The sentencing judge rightly said that the most positive thing to be said for the appellant is that he had pleaded guilty to all charges. However, she added that the case against him had, in each instance, been compelling. She accepted that, notwithstanding this, the appellant's pleas had shown that he was able to face up to what he had done and that he was prepared to take responsibility for it.
12 Pre-sentence and psychological reports unsurprisingly confirmed that the appellant needed to address his substance abuse issues. He was assessed by the psychologist as presenting a moderate risk of re-offending.
The individual sentences imposed
13 The sentencing judge imposed a term of 3 years' imprisonment in respect of the attempted armed robbery. This was arrived at after allowing a 25% discount for the plea of guilty and the further reduction of 1/3 required by the operation of the transitional provisions contained in the schedule to the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The sentencing judge cancelled the intensive supervision order that had been imposed on 10 May 2007. In respect of the offence of giving false details she imposed a term of 1 month's imprisonment. For the offence of attempting to steal a car she imposed a term of 6 months' imprisonment. Each of these last two terms of imprisonment was ordered to be served concurrently with each other and with the other terms imposed.
14 On the charge of stealing the mobile telephone the sentencing judge imposed a term of 16 months' imprisonment. She ordered that it be served cumulatively upon the term for the attempted armed robbery. She
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- sentenced the appellant to a further term of 2 months' imprisonment in respect of the common assault, also to be served cumulatively. She imposed a term of 6 months' imprisonment in respect of the attempted stealing of the car. She ordered that term to be served concurrently with the other sentences imposed. The total sentence of 4 years and 6 months' imprisonment was backdated to 27 May 2007, when the appellant was taken into custody. He was declared to be eligible for parole.
The ground of appeal
15 There is only one ground of appeal. It is that the total sentence imposed offended the totality principle, because the sentence for the attempted armed robbery failed to reflect the impulsive nature of the offence and because it did not sufficiently have regard for the appellant's antecedents.
16 Although the ground raises a totality issue, the particulars challenge only the sentence imposed in respect of the attempted armed robbery. The submissions advanced on behalf of the appellant also challenged only that sentence.
The respondent concedes the appeal
17 At the commencement of the appeal, counsel for the respondent conceded that the term of 3 years' imprisonment imposed in respect of the attempted armed robbery was manifestly excessive. In making that concession he referred to The State of Western Australia v Reynolds [2006] WASC 31.
18 In that case the offender had pleaded guilty on the fast track to six charges. These comprised two counts of attempted armed robbery (one of them committed in circumstances of aggravation), two counts of armed robbery (one of which was committed in circumstances of aggravation) and two counts of burglary. The offences were committed on separate occasions commencing on 18 April 2005 and ending on 24 October 2005. The offender was 25 years old at the time and had a relatively minor criminal record. He showed genuine remorse. His problems arose from alcohol and drug abuse combined with mental difficulties from which he had suffered.
19 The attempted armed robbery was committed by the offender when he entered a bakery, disguised and armed with a large bladed knife and an adjustable wrench. He confronted two employees and demanded money. He was told that no money was kept on the premises and he left. He
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- claimed to have been severely intoxicated at the time. After making allowance for the pleas of guilty and for the operation of the transitional provisions, the sentencing judge arrived at a sentence of 2 years and 2 months' imprisonment in respect of the attempted armed robbery, one of 2 years and 8 months' imprisonment in respect of the armed robbery, one of 2 years and 3 months' imprisonment in respect of the attempted aggravated armed robbery and one of 3 years and 1 month's imprisonment in respect of the aggravated armed robbery. All of those sentences were ordered to be served concurrently. Then, he imposed terms of 1 year and 4 months' imprisonment in respect of each of the burglary offences. Those terms were ordered to be served concurrently with each other but cumulatively upon the concurrent sentences for counts 1 to 4. This gave rise to a total sentence of 4 years and 5 months' imprisonment with eligibility for parole.
20 The respondent supports his concession by reference to the sentence of 2 years and 2 months' imprisonment imposed in respect of the attempted armed robbery. He suggests that a comparison between that sentence and the sentence imposed in the present case demonstrates that the latter was manifestly excessive. He pointed, in this respect, to the fact that in the present case the sentencing judge necessarily took a starting point of 6 years' imprisonment, before allowing for the 25% discount for the plea of guilty (resulting in 4 years and 6 months' imprisonment) and then making the mandatory reduction of one-third (giving rise to the sentence of 3 years' imprisonment). That starting point, as counsel for the respondent recognised, is more consistent with the offence of armed robbery than it is with the offence of attempted armed robbery (which carries a much lower maximum sentence). The range of sentences commonly imposed for armed robbery has been said to be 4 to 6 years' imprisonment: Miles v The Queen (1997) 17 WAR 518; The State of Western Australia v Wells [2005] WASCA 23. Consequently, in my respectful opinion, the trial judge erred in adopting that starting point, resulting in a sentence that was manifestly excessive.
21 The respondent's concession is supported by other cases. In the circumstances, it is unnecessary to refer to them in detail. I will give three examples. These are Wong v The State of Western Australia [2004] WASCA 286; The State of Western Australia v Wells [2005] WASCA 23; and Mobilia v The Queen [2002] WASCA 130.
22 Wong involved multiple offences. However, they included an offence of aggravated attempted armed robbery, in respect of which the appellant was sentenced to a term of 2 1/2 years' imprisonment. The
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- appellant was in company with three others. The offenders told the complainant that they had been hired by another person to collect a debt owing to him. He was threatened with violence if he did not pay. He refused to pay, saying that he did not owe the money. The appellant threatened him with a metal baton and then struck him on the leg with the baton. A passing car distracted the appellant and his co-offenders and the complainant was able to run to a neighbour's house. The appellant, who was 19 years old, pleaded guilty on the fast-track. Leave to appeal was refused.
23 Wells concerned an armed robbery by three youths, acting in company. They stole a pizza by violent means. The 18-year-old appellant, who pleaded guilty on the fast track, was sentenced to a term of 12 months' imprisonment after a successful State appeal.
24 Mobilia involved an amateurish armed robbery committed on the spur of the moment and under the influence of drugs by a 24-year-old man. He pleaded guilty on the fast track. After a successful appeal, he was sentenced to a post-transitional term of 2 years and 8 months' imprisonment, suspended for 2 years.
25 Because the respondent's concession seemed to us to have been properly made in the unusual circumstances of the present case, we allowed the appeal, set aside the sentence of 36 months' imprisonment imposed with respect to the offence of attempted armed robbery and substituted, for that sentence, a term of 24 months' imprisonment. We left the remaining sentences undisturbed. This resulted in a total term of 3 years and 6 months' imprisonment, with effect from 27 May 2007. The appellant remains eligible for parole.
26 McLURE JA: I agree with Steytler P.
27 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Steytler P. Those reasons reflect the reason for which I joined in the order of the court that the appeal should be allowed, the sentence of 36 months' imprisonment for attempted armed robbery should be set aside and for that sentence a term of 24 months' imprisonment should be substituted. The remaining sentences were left undisturbed and the resultant sentence was one of 3 years 6 months' imprisonment with effect from 27 May 2007.
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