Miller v The State of Western Australia
[2013] WASCA 84
•28 MARCH 2013
MILLER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 84 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:235/2012 | 21 FEBRUARY 2013 | |
| Coram: | BUSS JA MAZZA JA | 28/03/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEORGE WILLIAM MILLER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Aggravated burglary Section 32 notice offences Totality principle |
Legislation: | Nil |
Case References: | Carr v The State of Western Australia [2006] WASCA 125 Jarvis v The Queen (1993) 20 WAR 201 Maroney v The State of Western Australia [2006] WASCA 130 Readhead v The State of Western Australia [2005] WASCA 191 Robertson v The State of Western Australia [2009] WASCA 83 Wheeler v The State of Western Australia [2007] WASCA 109 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MILLER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 84 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 35 of 2012
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Section 32 notice offences - Totality principle
(Page 2)
Legislation:
Nil
Result:
Extension of time granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : No appearance
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Carr v The State of Western Australia [2006] WASCA 125
Jarvis v The Queen (1993) 20 WAR 201
Maroney v The State of Western Australia [2006] WASCA 130
Readhead v The State of Western Australia [2005] WASCA 191
Robertson v The State of Western Australia [2009] WASCA 83
Wheeler v The State of Western Australia [2007] WASCA 109
Wilson v The State of Western Australia [2010] WASCA 82
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1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for an extension of time and for leave to appeal against sentence. The appeal notice was filed 19 days late. The delay was not lengthy and has been explained. I would grant the extension of time.
3 The appellant was charged in the District Court on indictment with one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). This offence carries a maximum penalty of 20 years' imprisonment. He was also charged on a notice pursuant to s 32 of the Sentencing Act 1995 (WA) with driving without a motor driver's licence, stealing a motor vehicle, obstructing a public officer, possession of a smoking implement, possession of cannabis and two counts of possession of a controlled weapon.
4 The appellant was convicted after trial of the aggravated burglary. He pleaded guilty to all of the offences in the s 32 notice. At the time he was sentenced, the appellant was serving a sentence imposed by E M Heenan J of 5 years' imprisonment with eligibility for parole, backdated to commence on 23 August 2011, for an offence of armed robbery.
5 On 7 September 2012, Scott DCJ sentenced the appellant as follows.
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6 His Honour said that but for totality he would have imposed terms of imprisonment of 6 years and 1 year for the offences of aggravated burglary and stealing a motor vehicle (ts 10).
7 The total effective term of imprisonment imposed by his Honour was 4 years. He ordered that this term be served cumulatively upon the term imposed by E M Heenan J. A parole eligibility order was made.
8 The sole ground of appeal is that the total effective term of imprisonment infringed the first limb of the totality principle having regard, in particular, to the fact that when added to the sentence imposed by E M Heenan J it resulted in the appellant serving a total term of 9 years' imprisonment. Counsel emphasised that the practical effect of Scott DCJ's sentence was to increase the appellant's non-parole period from 3 years to 7 years.
9 The appellant makes no complaint with respect to the fines that were imposed upon him. I need say nothing more about them.
Facts of the offending
10 I will first describe the facts of the offending before Scott DCJ and then before E M Heenan J.
The indictable offence - aggravated burglary
11 The appellant had been buying drugs on a long-term basis from the complainant, Mr Baird-Orr. At about 6.30 to 7 am on 20 August 2011, the appellant, in company with three others, went to Mr Baird-Orr's house with the intention of stealing money and drugs by force. The appellant and another offender knocked on the front door and were let in by the appellant's partner, Ms Downing. Once inside, a co-offender pulled out a handgun and pointed it at Mr Baird-Orr and demanded money and drugs. At this point, one of the co-offenders began ransacking the house. In the meantime, Mr Baird-Orr went to his bedroom. There he tried to arm himself with a shotgun. He was then set upon by the appellant and two co-offenders. In the process, Mr Baird-Orr was stabbed with either a knife or a samurai sword. The appellant and the co-offenders left the house with a sum of cash, a sword, the shotgun and other items.
12 His Honour found that the appellant and his co-offenders were engaged in a common enterprise in which one of them was armed with a handgun, knowing that it was 'probably inevitable' there would be resistance and, in all likelihood, violence (ts 3).
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The s 32 notice offences
13 On the night of 9 and 10 August 2011, the appellant stole a motorcycle from outside the complainant's home unit. In order to do so, he cut a security chain with bolt cutters and then hotwired the ignition. Although the motorcycle was later recovered, it was damaged.
14 At about 12.20 am on 12 August 2011, police officers stopped a vehicle in which the appellant was a passenger. The police attempted to arrest the appellant, but he physically resisted. During the struggle an extendable baton that the appellant was carrying dropped to the ground. Later he was also found to be carrying a canister of pepper spray and a knife. The charges of possession of a controlled weapon related to the extendable baton and the pepper spray.
The armed robbery dealt with by E M Heenan J
15 On 1 August 2011, the appellant and a co-offender drove to a lunch bar in Willagee with the intention of robbing it. The registration plates of the vehicle were covered. The co-offender left the vehicle, armed with a large knife and wearing a hooded jacket. The hood was pulled over his head to obscure his identity. The co-offender entered the shop, jumped over the counter and struck the 68-year-old shop assistant with the butt end of the knife. The victim suffered a cut to the eye and was knocked unconscious. He fell and broke his wrist. The co-offender stole the cash register which contained approximately $700 in cash and then left the scene in the car driven by the appellant. A short time later, the two offenders shared the cash that had been stolen. On 23 August 2011, the appellant was arrested and made admissions to the police. He entered an early plea of guilty.
The appellant's antecedents
16 At the time Scott DCJ sentenced him, the appellant was 28 years of age. He told the author of the pre-sentence report that his childhood was 'okay'. The appellant has a long history of illicit drug abuse, with his drugs of choice being cannabis and amphetamines. Apart from periods of imprisonment, his use of these drugs has been constant since his teenage years. The appellant has a long and serious criminal history which commenced at the age of 14 years. As an adult he has been convicted of multiple burglaries and dishonesty offences for which he has received various penalties including terms of immediate imprisonment. Significantly, in 2006 he was sentenced to 4 years' imprisonment for an
(Page 6)
- offence of aggravated armed robbery. Also, in 2006 he was sentenced to a term of imprisonment for aggravated burglary.
The pre-sentence report
17 A pre-sentence report was prepared in respect of the appellant. He told the pre-sentence report author that he had been forced to commit the aggravated burglary by his co-offenders. The learned sentencing judge expressly rejected this. The author observed that the appellant exhibited a 'poor attitude to the victims' and no victim empathy. According to the pre-sentence report author, the appellant had limited insight into his offending.
Scott DCJ's sentencing remarks
18 It is unnecessary, given that the appellant alleges implied error, to detail Scott DCJ's sentencing remarks. It is sufficient to observe that his Honour gave particular emphasis to general and personal deterrence as well as the protection of the public (ts 8). His Honour made express reference to the totality principle and, as I indicated earlier, reduced two of the sentences he imposed because of it.
Legal principles
19 The general principles applicable to appeals against sentence are well known and were succinctly and accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].
20 The totality principle is well known. It comprises two limbs. First, the total effective sentence imposed on an offender must bear a proper relationship to the overall criminality involved in all of the offences, including any offence for which the appellant is already serving a term of imprisonment, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally. Second, the total effective sentence must not be 'crushing' in the sense that it should not destroy any reasonable expectation of a useful life after release: Carr v The State of Western Australia [2006] WASCA 125 [6] (McLure P) and [66] (Buss JA).
21 The appellant only alleges an infringement of the first limb.
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The merits of the appeal
22 The overall criminality involved in all the offences committed by the appellant was very high. In the offence dealt with by E M Heenan J, the appellant participated in a deliberate and planned armed robbery upon a vulnerable victim who sustained significant physical injuries as the result of the use of a weapon. Although the appellant did not actually enter the lunch bar, his role was important. He drove his co-offender to the scene, knowing full well what he intended to do. He enabled his co-offender to leave the scene quickly, with the obvious purpose of evading detection.
23 The aggravated burglary dealt with by Scott DCJ was a very serious offence of its type. Again, the appellant, in company, hatched and carried out a plan to steal property by force with the use of weapons. As before, physical harm was inflicted on the victim. The appellant did not plead guilty. This is not an aggravating factor, but his plea is not a matter which affords him any mitigation.
24 The stealing of a motorcycle involved the use of bolt cutters and resulted in damage to the machine.
25 The offences dealt with by Scott DCJ were entirely separate from the offence dealt with by E M Heenan J. Cumulation of the individual sentences for the offences dealt with on indictment and the offence of stealing a motor vehicle was justified.
26 General deterrence was a significant consideration. In light of the appellant's prior offending and the violent nature of the aggravated burglary, his Honour was right to emphasise personal deterrence and the need to protect the public.
27 The appellant's antecedents are poor. There was nothing to indicate that he is motivated to deal with his illicit drug use which drives much of his offending. The appellant has little insight and displays no real remorse for what he has done. At the moment, his prospects of rehabilitation appear bleak.
28 The appellant's counsel sought to support her argument that the sentences imposed by Scott DCJ infringed the first limb of the totality principle by reference to other cases said to be similar. She cited Robertson v The State of Western Australia [2009] WASCA 83; Wheeler v The State of Western Australia [2007] WASCA 109; Readhead v The State of Western Australia [2005] WASCA 191; and Maroney v The State of Western Australia [2006] WASCA 130. All of
(Page 8)
- these cases involve offenders who committed multiple armed robberies with poor records of prior offending.
29 It is not necessary to deal with these cases in detail. They are all, in one way or another, distinguishable from the present case and provide only limited assistance. For example, in Robertson, the appellant pleaded guilty. In Wheeler, the appellant owed 2,318 parole days at the time of sentence. In Readhead, the appellant pleaded guilty and suffered from a psychiatric illness. In Maroney, the appellant was sentenced to a total effective sentence of 13 years 6 months' imprisonment, a considerably longer period than in the present case.
30 I appreciate that the severity of a sentence increases exponentially as the length of it increases: Jarvis v The Queen (1993) 20 WAR 201, 201 (Ipp J). This is the essence of the point Ms Rogers made about the practical effect of Scott DCJ's sentence.
31 However, as I have said, the overall criminality involved in all the offences committed by the appellant and dealt with by E M Heenan J and Scott DCJ was very high. When all of the offences and their circumstances, including those referable to the appellant personally, are considered, I do not think that it is reasonably arguable that the cumulative sentences imposed by Scott DCJ infringed the first limb of the totality principle. I would dismiss the application for leave to appeal against sentence.
Orders
32 I would make the following orders:
1. The extension of time is granted.
2. Leave to appeal is refused.
3. The appeal is dismissed.
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