Miller v The State of Western Australia

[2009] WASCA 79

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MILLER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 79

CORAM:   OWEN JA

BUSS JA
MILLER JA

HEARD:   2 APRIL 2009

DELIVERED          :   7 MAY 2009

FILE NO/S:   CACR 158 of 2008

BETWEEN:   JASON KIRK MILLER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :SIMMONDS J

Citation  :THE STATE OF WESTERN AUSTRALIA v MILLER

File No  :INS 119 of 2008

Catchwords:

Criminal law and procedure - Sentencing - Appeal against severity of sentence - Multiple offences - Totality principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters & Mr P B Cassidy

Respondent:     Mr G J Huggins

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Gullello v The Queen [2005] WASCA 12

Henderson v The State of Western Australia [2007] WASCA 198

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1998) 20 WAR 201

Otway v The State of Western Australia [2008] WASCA 165

Owens v The Queen [1998] WASCA 152

Pollock v The State of Western Australia [2004] WASCA 280

Ricciardello v The Queen [2001] WASCA 416

1. OWEN JA:  The appellant pleaded guilty in the Supreme Court to a large number of offences, many of a violent nature, committed in a series of related incidents.  He was sentenced to a total term of 7 years and 5 months' imprisonment.  He appeals against the sentence.

Background

1. The appellant and Nadia Bradshaw (both drug users) had been living together for about seven months but the relationship had become strained.  On 22 June 2008 they consumed a large quantity of drugs and that evening they argued.  This seems to have precipitated a chain of events occurring over a period of about 12 to 14 hours into the following day.

2. The argument escalated and the appellant forcefully removed Bradshaw from the house and, while having her under physical restraint, marched her around the surrounding suburbs.  This happened for about three hours.  Over the next three hours or so the appellant (while still forcibly restraining Bradshaw) tried to steal a car from one residence chosen at random, did steal a car and a bankcard from another and drove the stolen car around the suburbs.  During this time the appellant continued to berate and hit Bradshaw.  He was armed with a knife and swung the blade at her, causing cuts to her hands as she tried to defend herself.

3. The appellant then drove to a bank and forced Bradshaw to attempt to withdraw money using the stolen card.  These attempts, too, were unsuccessful.  Bradshaw managed to escape to a nearby fast food outlet that was then operating.  She ran inside and screamed for help.  The door was locked.  The appellant damaged the premises and eventually gained access.  He searched for Bradshaw (who had been hidden by employees) and, in the process, assaulted one of the employees.  He could not find Bradshaw and left when he realised the police had been called. 

4. The appellant got back into the vehicle and was pursued by police.  He reached speeds in excess of 140 kms per hour, failed to obey traffic signals and drove on the wrong side of the road.  He caused four separate traffic crashes involving six vehicles.  After the last of these collisions he got out of the vehicle and, seeing an approaching police motorcycle, ran off.  By now it was about 8.40 am.  He went to a nearby residence and smashed his way in with a view to stealing another vehicle.  Police attended the premises a short time later and located and arrested the appellant.  The appellant participated in a video record of interview and admitted the offences. 

5. The appellant was charged on indictment with nine offences and pleaded guilty at what the sentencing judge accepted was the earliest opportunity.  At his sentencing hearing he agreed to a further 13 offences being dealt with by notice under the Sentencing Act 1995 (WA) s 32. I have set out details of the offences included on the indictment and in the s 32 notice in the Schedule to these reasons.

6. On 17 October 2008 the appellant was sentenced to a total effective term of 8 years and 11 months' imprisonment with an order for parole eligibility. The sentencing judge also imposed a total fine of 41 penalty units and disqualified the appellant from holding a motor vehicle driver's licence for 24 months. The sentences imposed for individual offences are set out in the Schedule. At some point after the sentencing hearing it was brought to his Honour's attention that there had been a calculation error in the sentences imposed for some of the s 32 notice offences. On 31 October 2008 the sentencing judge formally corrected the sentences resulting in the effective total term being 7 years and 5 months' immediate imprisonment.

The facts

1. I need to set out the facts in more detail. The events I am about to describe happened over a period of about 14 hours between 6 pm or thereabouts on 22 June 2008 and 9 am on 23 June 2008. As I move through the events I will identify the factual matrix for the individual charges on the indictment by the relevant count number and for those in the s 32 notice by a number such as '32.1', which will correspond to the number it bears in the notice.

2. The appellant and Bradshaw had known one another for approximately six years and had been living together in Attadale for about seven months.  Both were users of methamphetamine.  For some time prior to these events the relationship between the appellant and Bradshaw had been under strain.  The appellant believed that Bradshaw had been having an affair with another man. 

3. On 22 June 2008 the appellant, Bradshaw and a friend had been consuming drugs.  At about 5 pm the friend left and from that point the appellant and Bradshaw argued about the state of their relationship and Bradshaw's alleged infidelity.  Later that evening the argument escalated.  The appellant became convinced that Bradshaw was having an affair and (or) was working as a prostitute.  He claims that she admitted to engaging in prostitution to pay for her methamphetamine use but denied the affair.  He also says he formed the belief that she had arranged to have him murdered that evening by some of her associates.  He claims he was to be murdered because Bradshaw was frightened about his reaction when he discovered she was a prostitute.

4. When Bradshaw denied that she was having an affair, the appellant became very angry.  He punched her several times in the face and body, causing her pain and discomfort.  At one point he struck her on the head with his fists, creating a 3 cm laceration on her scalp that began to bleed (count 1).

5. The appellant's violent actions continued for several hours.  He became so paranoid that he armed himself with a knife.  At about 1 am on 23 June 2008 he forced Bradshaw to leave their house in Attadale and accompany him as he walked through Bicton and Palmyra.  To prevent her fleeing during the walk, he held her by the hair and around the waist (count 2).

6. At about 4.30 am the appellant walked Bradshaw to an address in Palmyra.  He did not know the occupants of the address; he had chosen it at random.  The appellant told Bradshaw he wanted a car so he could leave the area.  He forced her to go to the door of the house while he stood behind her.  Bradshaw knocked on the door and it was opened by the occupant, Gary Robinson (in the indictment called Robertson).  The appellant told Robinson that his car had broken down and asked to use a phone.  Robinson handed a mobile phone to Bradshaw who, after dialling a few numbers, handed the phone back to Robinson.  As Robinson took the phone the appellant lunged at him and pulled a knife from his trouser pocket.  Robinson managed to pull the security door closed.  The appellant stood at the door, brandishing the knife in his right hand, and told Robinson that he wanted his car (count 3).  Robinson closed the front door and called the police.

7. The appellant and Bradshaw left Robinson's house and walked to another house in Palmyra, again chosen at random.  They hid in the front yard for some time in order to avoid the police who were now patrolling the area.  At about 5.50 am Adam Gibbons emerged from the house.  As Gibbons walked to his car, which was parked on the front lawn, he was confronted by the appellant.  The appellant was holding Bradshaw by the hair and wielded a knife in his right hand. The appellant demanded his car and Gibbons, fearing for his safety, handed over his keys.  The appellant also demanded cash from him and Gibbons handed over his bankcard and a false PIN (count 4).  The appellant forced Bradshaw to get into the car.  He then drove the car away from the house (count 5) and, later in the day, drove it recklessly at speeds in excess of 140 kms per hour (the circumstance of aggravation in count 5).

8. Between 5.50 am and 7.30 am that morning the appellant drove around the streets of Bicton and Palmyra with Bradshaw in the front passenger seat.  He was still armed with a knife and was in a highly aggressive state.  He continued to question her about their relationship and other matters.  During this time he subjected her to numerous physical assaults, punching her in the face and body with his fists and striking her with the butt of the knife.  Several times she used her hands to block the blows and as a result she received a number of cuts and lacerations to her hands and fingers.  Bradshaw was concerned for her safety and wanted to leave, but was frightened that he would assault her further (part of count 2).

9. During this period, while still armed with a knife, the appellant threatened to kill Bradshaw several times (count 6).  He told her he was going to kill her and bury her body in the bush.  She feared him and believed that he was capable of carrying out his threats.

10. At around 7.30 am the appellant drove Bradshaw to a bank ATM on Leach Highway in Myaree.  He forced her to attempt to make a fraudulent transaction using the bankcard that he had earlier stolen from Gibbons.  While she was attempting to draw money from the machine, she observed some people inside a nearby fast food outlet.  She saw this as an opportunity to escape from him.  She ran to the outlet and, as she entered the building, shouted to the staff that the appellant was trying to kill her.  A customer locked the door and staff members took her to the rear of the premises to which the public has no access.  The appellant approached the building with a knife in his hand.  When the appellant was unable to enter the building he drove to the rear of the premises.  He then drove the vehicle directly into the rear roller door of the premises, causing substantial damage to the premises.

11. Still unable to enter the premises, he drove back to the front of the restaurant.  He then drove the vehicle directly into a large concrete planter box, causing the box to shatter.  He got out of the car and threw a large slab of concrete at one of the glass front doors of the building.  The glass shattered, but he could still not gain entry.  He picked up another slab of concrete and, after smashing a hole in another of the glass front doors, entered the premises (count 7).

12. Once inside the premises, the appellant began looking for Bradshaw.  He entered the kitchen area but could not find her because she was hiding in the staff toilet.  While searching the area he pushed a 16‑year‑old female employee into the wall.  Frustrated that he could not find Bradshaw, the appellant approached Benjamin Harrison, a 20‑year‑old employee.  He yelled at Harrison and wanted to know where Bradshaw was.  When Harrison told him that Bradshaw was not there, the appellant punched him several times in the face, head and stomach.  As a result, Harrison received swelling to his face and a cut to his head (count 8).  The appellant continued searching the premises for Bradshaw, but left when he realised that the police had been called.  Bradshaw was later treated in hospital for her injuries.

13. When the police arrived at the fast food outlet, they observed the appellant drive off in the stolen car. He was not the holder of a current valid driver's licence (s 32.1). A marked police car attempted to stop the appellant, activating its emergency lights and siren. The appellant, however, refused to stop and became involved in a pursuit with the police, reaching speeds of about 140 kilometres per hour (s 32.2 and s 32.3).

14. The appellant drove the car in an easterly direction along Leach Highway.  He approached the rear of a car travelling in the left hand lane and another car travelling in the centre lane.  Both of those cars were travelling in the same direction as the appellant.  He forced his car in between the two cars in front of him, colliding with them and damaging both those cars and the car he was driving.  He continued driving, failing to stop or report the incident to the police (s 32.4 and s 32.5).

15. The appellant continued to drive east along Leach Highway.  He travelled onto the incorrect side of the carriageway and approached an intersection at high speed.  He collided with a vehicle as it travelled past him, a crash that damaged both vehicles.  The female driver of the other car was injured in the collision and required hospitalisation.  He kept driving, failing to stop, failing to report the incident and failing to render assistance to the injured woman (s 32.6, s 32.7 and s 32.8).

16. The appellant continued driving on the incorrect side of the carriageway east along Leach Highway.  As he approached an intersection he collided with another vehicle as it travelled past him, damaging both vehicles.  Once again, he did not stop and report the incident to the police, but continued to drive (s 32.9 and s 32.10).

17. The appellant then turned and travelled north along Riseley Street, Booragoon.  He approached a car travelling in front of him in the same direction.  In attempting to overtake the car by driving either on the median strip or in the kerbside lane, he collided with the side of the other car and caused damage to both vehicles.  He drove on.  The appellant approached the rear of another car, also travelling north along Riseley Street.  He collided at high speed with the rear of the other car, causing it to leave the carriageway and crash into a tree.  The driver of that car was injured as a result of the crash and required hospitalisation.

18. The car being driven by the appellant was by now so badly damaged it could not be driven any further.  He got out of the car and thought of going to assist the driver of the other car, who was injured.  But when he saw an approaching police motorcycle he fled without stopping, reporting the incident or providing assistance (s 32.11, s 32.12 and s 32.13)

19. At about 8.40 am the appellant, having run from the scene of the last collision, went to a residential property in Ardross.  The residence was unoccupied.  He approached the rear door, smashed the lower glass panel and entered the property.  His intention in entering the residence was to steal another motor vehicle (count 9).  Police came to the Ardross property a short time later and found the appellant hiding there. He was arrested and later participated in a video record of interview, where he admitted all of the offences.

The sentencing remarks

1. The sentencing remarks are relatively long. Much of the text is taken up with a recitation of the facts and a matching of the facts to the counts in the indictment and the s 32 notice. Having commented on the various sentencing options that were open and the importance of general deterrence in armed robbery cases, his Honour turned to the aggravating and mitigating factors that were relevant to the sentencing exercise.

2. The sentencing judge noted that the appellant had pleaded guilty at the earliest opportunity and that he was entitled to a significant discount.  The appellant's guilty plea indicated remorse.  It was also to be recognised that he had apologised to Gibbons for taking his car and invited him to remove his personal effects from it.  He had claimed that he did not want other people to get injured during the pursuit and had tried to drive attentively at intersections.  A number of references were tendered on the appellant's behalf.  People who had known him since primary school wrote letters describing him as considerate and compassionate. The appellant had taken part in programmes in an effort to deal with the underlying causes of his problems. The appellant had also written a letter to the judge expressing his remorse and disgust about what he had done.

3. On the other hand, the presentence report and psychological report indicated that the appellant still had a tendency to blame others for what had happened, particularly Bradshaw. The psychiatric report indicated that the appellant had superficial remorse without any real understanding of his behaviour.

4. The sentencing judge concluded that the appellant had experienced 'significant elements' of remorse and responsibility, but nowhere near the amount that his letter would suggest. The sentencing judge would allow a discount of 25% for these matters.

5. The appellant's criminal record is made up of traffic offences aside from an offence of aggravated burglary and common assault.  It seems those charges related to a domestic dispute with a former girlfriend.   The appellant had not previously been sentenced to a term of imprisonment.

6. The appellant had a troubled family background.  He did not meet his father until he was seven years of age and his mother had a serious substance abuse problem.  He reported witnessing violence in the home, but no violence was directed against him. The appellant's mother had moved in with the appellant when she began suffering health problems, and he cared for her until her death when he was 30.  He was 31 years of age at the time the offences were committed.

7. The appellant had a history of drug use since his teenage years.  He began experimenting with cannabis at age 13 and by 15 was smoking cannabis daily.  From 18 years of age he was also accustomed to use amphetamines, although he described his use as 'sensible'.  At about age 28 he stopped using cannabis but after his mother's death his amphetamine habit escalated.  He was using methamphetamine on the day of his offending, and the sentencing judge accepted that his behaviour was influenced by the drug.  The appellant had been employed in various jobs.  His last job had been a shift manager, but he had lost that job because his drug use had made him increasingly unreliable.

8. The authors of the presentence and psychological reports investigated the possibility that the appellant may have an underlying mental illness and recommended that the appellant be referred to a psychiatrist.  The psychiatric report mentioned that the appellant's beliefs about Bradshaw's infidelity and the murder plot 'may' have been psychotic.  The report also said that the appellant may have a personality disorder which caused feelings of jealously, and led to fears of abandonment and a vulnerability to narcissistic injury. The author recommended participation in a number of training programmes.

9. The sentencing judge took the psychiatric report into account.  But he concluded that it did not support the view that the appellant suffered from a serious or major psychiatric illness which contributed to the offending such as to diminish the appellant's moral culpability.  There was no reason not to make an example of him for general deterrence or to think that he would be unable to respond to his punishment.  His Honour found that the appellant's personality problems in addition to his drug use and lack of community support meant that there was a moderate to high risk of future violence.

1. The sentencing judge considered that only an immediate term of imprisonment would be appropriate.  He structured the sentences (after correction) in the way set out in the Schedule.  The total effective sentence, taking into account the accumulation and concurrency of the sentences, was 7 years and 5 months' imprisonment.  The appellant was made eligible for parole.

2. There is an aspect of the sentencing remarks that, I think, calls for comment.  In relation to the armed robbery offence, the sentencing judge noted that greater weight is to be given to general deterrence and lesser weight to personal factors.  But when he came to count 7 (aggravated burglary), his Honour said:

   There is not the same emphasis on general and special deterrence for this offence as there is for armed robbery.

3. The sentencing judge expressed views to similar effect when dealing with count 3 (assault with intent to rob) and count 2 (deprivation of liberty).  I am not sure what his Honour had in mind in making those comments.  If they are taken literally they do not accord with my understanding of sentencing principles.  General deterrence is just as important in relation to aggravated burglary (and the other offences mentioned) as it is with armed robbery.  This is made clear in, for example, Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [5] and [168].

The ground of appeal

1. There is a single ground of appeal; namely that the sentencing judge erred in imposing:

   a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences when viewed in their entirety and in all the circumstances of the case, including those referable to the appellant personally.

2. There is no challenge to any of the individual sentences imposed in respect of particular counts.  Nor is it said that the sentencing judge misunderstood the facts, overlooked relevant considerations or acted on a wrong principle.  The gravamen of the challenge is best summarised by reference to the concluding paragraph in the appellant's written submissions:

   Although it is conceded the offences were serious, varied and continued over an intense period of time, given that early pleas of guilty were entered, together with the circumstances of the offences themselves, the total effective sentence of seven years [sic] (being approximately eleven years five months imprisonment pre-transitional provisions), seen against the sentences imposed in the comparable cases … was manifestly excessive and beyond an appropriate sentencing range.

The totality principle

1. It is rare to find an appeal against sentence that does not call in aid the totality principle and complain that the principle has been infringed.  The decisions of this court are, therefore, replete with descriptions of the juridical nature of the totality concept:  see, in particular Jarvis v The Queen (1998) 20 WAR 201, 207 (Ipp J). I can content myself with a brief description of the principle.

2. A sentencing judge who is imposing a series of sentences must calculate the sentence for each offence and decide which of them are properly to be made consecutive, but must then review the aggregate sentence and consider whether the aggregate is just and appropriate.  It is often expressed in this way: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'. 

3. If the aggregate needs to be adjusted to effect a just result it can be done in one of two ways.  First, by reducing individual sentences below what would otherwise be imposed.  Secondly, by making some sentences concurrent or partly concurrent when, on a strict application of sentencing principle, they ought to be served consecutively. 

The criminality of the appellant's conduct

1. On any view of the facts, the degree of criminality in the appellant's conduct was high.  It had a large number of aggravating factors, including these:

   (a)the offences occurred over a long period and in stages which would have (and should have) permitted the appellant to calm down and come to his senses;

   (b)it covered a broad spectrum of criminal conduct, including violent offences, property offences and traffic violations;

   (c)members of the public (road users, the two householders and the staff and patrons of the food outlet) were put seriously at risk;

   (d)the offences against Bradshaw amounted to domestic violence and they included a threat to kill (a threat which she believed the appellant was capable of carrying out);

   (e)the appellant was armed with, and used, a knife (although he did not inflict any deep wounds);

   (f)at least four people (Bradshaw, Harrison and two road users) sustained injuries and three of them were hospitalised;

   (g)innocent members of the public, including the two householders and staff and patrons at the food outlet, would have been in fear of what the appellant might do to them; and

   (h)the traffic incidents encompassed a variety of forms of extremely dangerous driving over significant distances and they resulted in four separate crashes involving six cars.

2. The next question is whether there are, in the circumstances of the events or in the appellant's personal circumstances, any features that ameliorate the innate seriousness of the offending conduct.  In the plea in mitigation made on the appellant's behalf there are two dominant, and apparently related, themes.  First, that the appellant had a drug abuse problem, particularly methamphetamine.  This fuelled his obsession concerning Bradshaw's alleged infidelity and may have contributed to some psychotic beliefs.  Secondly, he was under stress following the illness and death of his mother and his drug abuse escalated as a result.

3. The appellant's conduct was, in his own words, irrational.  At the hearing the appellant addressed the sentencing judge in these terms:

   I was not thinking clearly and I was disillusioned mate but I was more or less just fleeing for my life. … [Bradshaw] has divulged [to] me she was a prostitute and she has conspired to have me bloody murdered.  Why would I leave the house?  Why would I arm myself with a knife?  Why would I go and steal a frigging car when we were sitting at home having a nice night?  Then I confronted her ... [and] she had conspired to murder me, so I fled the house and perpetrated all these ridiculous ‑ I'm incredibly regretful and remorseful.  I really am.

4. The sentencing judge gave careful consideration to the presentence and psychiatric reports.  Having described the appellant as having insecure attachment, being prone to jealously and being vulnerable to narcissistic injury, the psychiatrist said this:

   His accusations of infidelity appear to have been fuelled by intoxication with crystal methamphetamine.  Furthermore, there may have been a psychotic quality to some of his beliefs at the time of the offences but there is currently no convincing evidence that this is enduring.

5. Read as whole, and read in conjunction with the presentence and psychological reports, I can find no fault with the sentencing judge's conclusion that there was no serious or major psychiatric illness that contributed to the offending.  His Honour took the view that the appellant's moral culpability was not diminished by reason of psychiatric considerations.  I agree with that conclusion and I can see nothing in the delusional beliefs said to have been held by the appellant or in the irrationality of his conduct that would lessen the innate criminality of what he did.

6. By their very nature the events embarked on by the appellant were serious.  They were bound to have serious consequences for the direct victims and members of the public.  That is what happened.  Taken in their entirety the degree of criminality that attaches to these events is, in my view, at the higher end of the scale for offences of this nature.

Mitigating factors

1. On the other hand, the mitigating factors are few.  The appellant was 31 years of age at the time the offences were committed and cannot claim youth as an ameliorating factor.  The appellant's early guilty plea and his expressions of remorse (subject to the caveat applied by the sentencing judge) were deserving of credit.  But the sentencing judge had those matters in mind and it seems to me that he dealt with them appropriately.  The fact that the appellant had no significant prior record for violent offences and had not before been sentenced to a term of imprisonment is a factor to be considered but it is of limited weight.  It is also to the appellant's credit that since his incarceration he has participated in programmes, including those relating to substance abuse. 

2. I have already mentioned the contribution that the appellant's drug abuse had (or may have had) in relation to these offences.  This issue falls to be considered again in the context of the appellant's personal circumstances in the search for mitigating factors.  But the answer is the same: it has no mitigating effect.  Self induced drug affection (at least in the circumstances of this case) can never be an excuse for criminal conduct.  It may provide some explanation but it will rarely be of any weight as a mitigating factor.  The loss of a loved family member is seldom easy to accommodate and stress is a not unusual result.  But such a situation cannot shield an offender from the consequences of criminal activity and nor does it make the resumption or escalation of drug use of greater weight as a mitigating factor.

3. In summary, there is little in the personal circumstances of the appellant that could have a material ameliorating effect on the more objective seriousness of the offending conduct.

Comparative cases

1. Counsel for the appellant drew attention to a number of previous cases said to be comparable and which support the contention that the term of 7 years and 5 months was beyond an appropriate sentencing range.

Pollock v The State of Western Australia [2004] WASCA 280

1. The offender and his co-offender carried out a revenge attack on two people, one of whom he believed had taken advantage of him sexually on an earlier occasion.  They tied up the men in their (the victims') home and assaulted them.  One of the victims was stabbed in the thigh and foot.  They stole one of the men's credit cards and other items, including a car.  They also committed other property offences at other properties.  The offender received a sentence of 12 years, reduced to 10 years on appeal.

2. The offences on the indictment were committed in a single home invasion.  The other property offences involved (in the main) burglaries on garden sheds.  No threats to kill were made and there was no police pursuit endangering road users and other members of the public.

Gullello v The Queen [2005] WASCA 12

1. The offender and a co-offender carried out a number of armed robberies at pharmacies, a newsagency and a bank.  They stole vehicles to carry out the robberies, and used guns in some of the robberies.  The offender's sentence of 12 years' imprisonment was upheld on appeal.

2. The offender was 24 years of age at the time.  Again, no threats to kill were made and the use of the stolen cars did not involve a police pursuit.

Ricciardello v The Queen [2001] WASCA 416

1. The offender was sentenced to imprisonment for 4 years for robbery with violence, 5 years for deprivation of liberty (kidnapping) and 7 years and 9 months for aggravated burglary.  Those sentences were made concurrent with one another but cumulative upon a sentence already being served, making a total of 13 years and 9 months without parole.  This in turn was cumulative upon a sentence of 6 years and 22 days for breach of parole making an overall total sentence of 19 years and 9 months. 

2. The offender had presented himself at the complainant's business premises and assaulted him in the course of stealing some property.  He then took the complainant to other premises where he met with his co‑offenders.  They then took the complainant to the complainant's home in order to rob it.  None of the individual sentences were held to be manifestly excessive, but the totality principle was infringed, largely because of the number of parole days owed by the offender.  The total sentence was reduced to 16 years and 9 months on account of the principle.

3. In each of Pollock, Gullello and Ricciardello, the sentence imposed was considerably higher than that visited on the appellant.

Henderson v The State of Western Australia [2007] WASCA 198

1. Following a trial by jury, the offender was convicted of one count of aggravated burglary, three counts of unlawful detention, one count of stealing a motor vehicle and one count of unlawful assault occasioning bodily harm resulting from a punch to the complainant's head.  The offences were committed in an attempt to enforce a drug debt and occurred over the space of three hours. The offender was 27 years of age at the time of the offences, had no prior criminal record and came to the court with an excellent employment record.  His total effective sentence of 4 years' imprisonment was not disturbed by the Court of Appeal.

2. The offender had been charged with one count of making a threat to kill but was acquitted.  The offences arose from a single incident and did not involve danger to members of the public other than the complainants.

Owens v The Queen [1998] WASCA 152

1. The offender stole a vehicle with a co‑offender and then waited in the car while the co offender carried out an armed robbery in a shop.  She also committed some thefts at shops and some burglaries at residential premises.  Her sentence of 7 years' imprisonment (4 years and 8 months post‑transitional) was not considered to be excessive.

2. The offender was 21 years of age at the time.  For the most serious offence her role was as the driver of the getaway car.  None of the offences involved a threat to kill, violence or a police pursuit.

Otway v The State of Western Australia [2008] WASCA 165

1. The offender (who was only 19 years of age at the time of sentencing) and a co‑offender broke into a person's home and, armed with a letter opener, threatened to stab the occupant unless he handed over the keys to his car.  They then stole the man's car and some other items.  Over the next few days the offender, the co‑offender and some teenage girls drove around and committed a number of burglaries on homes and business premises.  The appeal against the offender's sentence of 5 years and 6 months' imprisonment on totality grounds was rejected, although a minor reduction was made for a calculation error. 

2. As with Owens (and to a lesser extent Gullello), the age of the offender is in marked contrast to that of the appellant.  So too is the absence of bodily harm to individuals, threats to kill and reckless driving.

3. All I need say is that none of these cases is comparable in the relevant sense.  None of them supports the proposition that there is a range against which this sentence falls to be considered.  The sentencing judge had to assess the degree of criminality involved in the offences and, after taking into account personal and other mitigatory factors, arrive at a sentence that properly marked the seriousness of the conduct in which the appellant had engaged.  I cannot discern error in the way his Honour approached that task.

Conclusion

1. I am not persuaded that the sentence of 7 years and 5 months offended the totality principle or was otherwise an inappropriate exercise of the sentencing discretion.  I would dismiss the appeal.

2. The record includes an application dated 1 April 2009 by the appellant for leave to rely on a letter of 30 March 2009 that he wrote and which is addressed to the members of this court.  But it was intended for use if he came to be resentenced following a successful appeal.  As the appeal has not been upheld the application in respect of the letter falls away. 

3. BUSS JA:  I agree with Owen JA.

4. MILLER JA:  I agree with Owen JA.

The Schedule

Count/charge	Offence	Sentence (after correction)
Count 1	Unlawful assault occasioning bodily harm (Bradshaw)	7 months' imprisonment
Count 2	Deprivation of liberty (Bradshaw)	12 months' imprisonment
Count 3	Assault with intent to rob (Robinson)	30 months' imprisonment
Count 4	Armed robbery (Gibbons)	41 months' imprisonment
Count 5	Stealing a motor vehicle (and driving it recklessly)	7 months' imprisonment
Count 6	Unlawful threat to kill (Bradshaw)	7 months' imprisonment
Count 7	Aggravated burglary (food outlet)	30 months' imprisonment
Count 8	Unlawful assault occasioning bodily harm (Harrison)	5 months' imprisonment
Count 9	Aggravated burglary (Ardross house)	12 months' imprisonment
S 32.1	Driving while disqualified	5 months' imprisonment Licence disqualification:  12 months
S 32.2	Failing to stop when required	Fine:  3 penalty units
S 32.3	Reckless driving	4 months' imprisonment Licence disqualification:  8 months

S 32.4	Failing to stop after traffic incident involving property damage	Fine:  15 penalty units
S 32.5	Failing to report traffic incident involving property damage	Fine:  4 penalty units
S 32.6	Failing to stop after traffic incident involving bodily harm	12 months' imprisonment Licence disqualification:  24 months
S 32.7	Failing to ensure assistance after traffic incident involving bodily harm	12 months' imprisonment Licence disqualification:  24 months
S 32.8	Failing to report a traffic incident involving bodily harm	3 months' imprisonment Licence disqualification:  12 months
S 32.9	Failing to stop after traffic incident involving property damage	Fine:  15 penalty units
S 32.10	Failing to report traffic incident involving property damage	Fine:  4 penalty units
S 32.11	Failing to stop after traffic incident involving bodily harm	12 months' imprisonment Licence disqualification:  24 months
S 32.12	Failing to ensure assistance after traffic incident involving bodily harm	12 months' imprisonment Licence disqualification:  24 months
S 32.13	Failing to report a traffic incident involving bodily harm	3 months' imprisonment Licence disqualification:  12 months

Notes:

1.Terms of imprisonment on counts 1, 2, 6 and 7 to be served concurrently with one another (total of 30 months) and cumulatively on the s 32 notice sentences.

2.Terms of imprisonment on counts 3, 4, 5 and 9 to be served concurrently with one another (total 41 months) and cumulatively on all other sentences.

3.Terms of imprisonment on s 32.1, s 32.3. s 32.11, s 32.12 and s 32.13 to be served concurrently with one another (total 12 months).

4.Terms of imprisonment on s 32.6, s 32.7 and s 32.8 to be served concurrently with one another for 12 months and partially concurrent with the terms in Note 3 for a further 6 months.

5.The total effective term of the sentences in Notes 1 and 2 is 5 years and 11 months.  The total effective term of the sentences in Notes 3 and 4 is 18 months.  The total effective term overall is 7 years and 5 months.

6.The sentences were backdated to 24 June 2008 and the appellant was made eligible for parole.

7.The several periods of motor vehicle driver's licence disqualifications were made concurrent but cumulative on the unexpired balance of disqualifications from prior sentences.  The effective term (for these events) is 24 months to take effect on his release from custody.

8.In addition, fines totalling 41 penalty points were imposed.