Miller v The State of Western Australia - [2006] WASCA 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MILLER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 163

CORAM: STEYTLER P
WHEELER JA
BUSS JA

HEARD: 4 AUGUST 2006

DELIVERED : 4 AUGUST 2006

FILE NO/S: CACR 37 of 2005

BETWEEN: ROBERT OSWALD MILLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 204 of 2004

Catchwords:

Sentencing - Totality - Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Time at which onethird reduction to be applied

Legislation:

Nil

Result:

Appeal allowed
Sentence varied

Category: A

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr K P Bates

Solicitors:

Appellant: Henry Sklarz
Respondent: State Director of Public Prosecutions

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

McGee v The Queen [1980] WAR 117

Case(s) also cited:

Casbolt v The State of Western Australia [2005] WASCA 41
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Pieri v The Queen [2001] WASCA 357
Postiglione v The Queen (1997) 189 CLR 295
R v S (A child) (No 2) (1992) 7 WAR 434
R v White [2002] WASCA 112
Ricciardello v The Queen [2001] WASCA 416
Ruane v The Queen (1979) 1 A Crim R 284
Vaitos (1981) 4 A Crim R 238
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

STEYTLER P: I agree with Wheeler JA.
WHEELER JA: The single ground of appeal (although expressed in the form of two grounds) in this matter alleges a breach of the totality principle. It is submitted that the term of 11 years' imprisonment imposed upon the appellant is crushing. There is no suggestion that any of the very many individual sentences is excessive, nor is there identified any error in the learned sentencing Judge's detailed and careful sentencing remarks.
It is necessary therefore to consider the nature and circumstances of the relevant offences and the appellant's personal circumstances in order to evaluate the ground.
So far as the circumstances of the offences were concerned, there were before her Honour two indictments and a s 32 notice. The effective sentence is made up of a variety of terms of imprisonment imposed in relation to certain counts on the two indictments. The s 32 notice, however, is an important part of the relevant sentencing context. It is important to note that concurrent terms of imprisonment were imposed, so that the appellant received no additional penalty in respect of any of the matters on the s 32 notice. They were seven breaches of community based order, three counts of reckless driving, three of having no motor driver's licence, two of failure or refusal to stop and one each of excess of 0.05, attempted stealing, assault occasioning bodily harm, damage and stealing. That is, there was a total of 20 further offences, some of which were very serious.
So far as the indictments were concerned, they were as follows: Indictment 243 of 2004 contains one count of aggravated armed robbery and one of assault intending to do grievous bodily harm. On 11 July of 2004, the appellant was driving on Canning Highway in company with three young females. He and the three others decided to steal a handbag. He produced a syringe which he gave to one of the co‑offenders, who placed it in the pocket of her jumper. The learned sentencing Judge accepted that it was not originally his intention that it be used as a weapon, although it was so used. They arrived at Rosie O'Grady's Irish Pub in the early hours of the morning and parked near a front entrance. Two of the co‑offenders, including the one with the syringe, left the vehicle and entered the foyer of the pub, while the appellant and another waited in the vehicle to facilitate an escape.
The two co‑offenders began an argument with the female complainant and two of her friends. A co‑offender assaulted one of the

friends and, when the complainant put her handbag down to assist her friend, one of the co‑offenders grabbed the handbag and ran to the vehicle with it. The complainant's boyfriend attempted to retrieve the handbag from the vehicle, and the appellant and another co‑offender who had been waiting in the vehicle got out of it and began to assault him, hitting him about the head. The complainant pulled one of the co‑offenders away, and that co‑offender then punched the complainant. Another co‑offender pulled out the syringe and held it up to the complainant in a threatening manner. The complainant's boyfriend was successful in retrieving the handbag. The complainant and her boyfriend then went to a safe area around the back of the pub and the offenders left in the vehicle.

The second count of assault intending grievous bodily harm was not one which arose out of the determined physical confrontation which I have just described, but arose when, about five minutes later, the appellant was seen pointing to and threatening a person who had been one of the friends attempting to assist the complainant in count 1. The appellant got into the vehicle which the offenders had been driving, drove it against the flow of traffic towards this complainant who was standing on the footpath, accelerated, mounted the kerb and continued to drive at him. The complainant was forced to jump towards the pub and the appellant missed him by a distance estimated in some of the witness statements to be roughly one metre.
I should add that the conduct in this indictment breached a suspended sentence for an earlier offence of assault occasioning bodily harm. In relation to this indictment, it was only that earlier offence of assault occasioning bodily harm in relation to which any cumulative sentence was imposed by her Honour. She imposed 1 year cumulative in relation to that offence, but made both the 3‑year term in relation to the aggravated armed robbery and the 1 year and 4 months in relation to the assault intending to do grievous bodily harm concurrent with other sentences, notwithstanding that those were plainly, having regard to the circumstances I have described, very serious offences of their kind.
Indictment 204 of 2004 contained five counts, being three of aggravated armed robbery, one of aggravated assault with intention to rob and one of stealing a motor vehicle and driving it recklessly. Those matters arose in this way: A burglary was committed in Como on 25 June 2004, in the early hours of the evening, and keys and the complainant's red Laser vehicle were stolen. Later on the same evening, at about 9.30, the appellant drove that vehicle in Northbridge. Police conducting foot patrols attempted to stop the vehicle. However, the appellant drove onto

the incorrect side of James Street, turned left into William Street through a red traffic light in front of the traffic heading south, and continued along William Street. About 11.30 that night, the appellant drove the car south on West Coast Drive in Sorrento. He parked it about 150 metres short of a "booze bus" checkpoint. Police approached the vehicle, and the appellant got out of the driver's seat and ran away on foot. Police who gave chase found him hiding nearby. The vehicle was damaged and effectively written off. That conduct comprised count 1.

In relation to count 2, on the afternoon of Thursday, 8 July 2004, the complainant, a woman of 65, was leaving the Pinnaroo Valley Memorial Park chapel, having attended a funeral service. The appellant, in company with his 13‑year‑old sister, walked into the memorial park and approached mourners, asking them for cigarettes. They approached the complainant, who was unlocking her car. The sister demanded money while the appellant stood at the rear of the vehicle, watching others leaving the chapel. When the complainant refused to hand over money, the appellant pointed a syringe at her, yelling, "Give me your fucking money or I'll stab you with the syringe." The complainant gave the sister $80.
The conduct giving rise to count 3 is that immediately following that behaviour, the sister demanded the complainant's car keys. The complainant refused to hand them over, and the sister grabbed hold of the complainant's handbag, which was looped over her left arm, and violently pulled at it. A struggle ensued. The complainant called for assistance, and three men who were nearby ran to help her. The appellant threw a rock at one of them, hitting him in the forearm and causing a four‑centimetre laceration. The sister let go of the handbag, enabling the complainant to escape. The two offenders ran into bushland. Despite her very brave conduct, the complainant was, understandably, shaken and distressed.
About a week later, the appellant, again with his 13‑year‑old sister, was in the car park of the Greenwood shopping centre. He approached a woman, who was in the process of getting into her car. He was holding a pair of metal scissors. He twice said to the complainant, "Get out of the car or I'll stab you." Although the complainant did not see the scissors, she discerned that there was something in the appellant's hand and was frightened. She got out of the car. The appellant's sister told her to leave her bags in the vehicle. The appellant got into the driver's seat and his sister into the front passenger seat. The appellant was attempting to reverse out of the car park when a witness in a Volvo sedan drove into the rear of the vehicle in an attempt to block it in the bay. However, the appellant drove over the kerb and out of the car park. He hit the kerb and punctured a tyre. He abandoned the vehicle in Greenwood. Damage to it was valued at approximately $5000. All of that conduct was the subject of count 4.
Count 5 arose on the same day, later in the evening around 7 pm. Again with his sister, the appellant approached a woman who was about to get into her vehicle, which was parked outside a video shop. The sister approached the complainant and asked for a lift, while the appellant stood a little way away, pretending to make a mobile telephone call. The sister said to the complainant, "We need a car", and the appellant approached her and said, "Give me your bag", snatching the handbag from her. The complainant grabbed her bag back, but the appellant took her car keys, which were in her other hand. The appellant attempted to start the car, while the complainant tried to stop him. The appellant punched her in the mouth with a clenched fist, and also struck her on the side of her head. The appellant and his sister drove away from the shop. Again, the vehicle was damaged and the damage was valued at a little over $13,500.
Looking to his personal circumstances, the appellant was born in 1982, so at the time of sentencing was 22 years of age, having been 21 at the time most of the offences were committed. He is the third eldest of eight siblings, the 13‑year‑old sister previously mentioned being the seventh. Most of his family have been in serious trouble at one time or another. There is a family history of domestic violence between his parents, and associates that his father brought to the house were violent also. His desensitisation to, and acceptance of, violence is very clear from the level of aggression displayed in this offending and also in the offending the subject of the s 32 notice. His Children's Court record commences when he was about 13 years of age, and he has in the past, as an adult, been convicted of offences which included stealing, damage, assaults and disorderly conduct.
Although the appellant appeared to enjoy school and had done reasonably well at school, particularly considering his background, he left school at year 10. He has been employed in the past, but two periods of employment have terminated because of disagreements with his employers.
The appellant has problems with the use of a variety of substances. He abuses alcohol, uses cannabis, has an apparently relatively serious amphetamine problem and has, from time to time, used solvents. He pleaded guilty to the offences the subject of the indictments at an early stage.
It can be seen from the brief recitation of the circumstances of the offences, and from a discussion of the appellant's personal circumstances, that the individual sentences imposed by her Honour were not only entirely proper, but were on the whole lenient, having regard to the very serious nature of the offending. As her Honour noted, the appellant chose vulnerable victims, generally women doing their shopping, or in some cases older people; he used weapons on some occasions; he displayed a high level of aggression; and in some cases he was on bail at the time at which he committed the offences. Her Honour gave the fullest possible weight to the mitigating factors of youth, co‑operation with police in respect of the majority of matters, pleas of guilty and the appellant's disadvantaged background.
I now turn to the only aspect of her Honour's sentencing remarks which gives rise to some concern in relation to totality issues. Her Honour said:
"Amendments to the sentencing laws in 2003 require me to determine what sentence I would have imposed on your [sic] prior to the commencement of those changes and then to reduce that sentence by one‑third. The resulting figure is the sentence to be imposed.
I indicate that I have already gone through that process and the sentences that I will now indicate are the final sentences that I have arrived at after having reduced the penalties by one‑third."
Her Honour then announced the individual sentences, and then finally turned to consider questions of cumulation and concurrency.
It is plain from the length of the individual terms that her Honour had, indeed, gone through the process she described. However, the result of approaching the task in this way, although entirely proper, was that when her Honour came to consider questions of totality, she was looking at a total which was not then to be further reduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
There is a danger in adopting that course where there is a considerable number of offences which may potentially give rise to a very long term of imprisonment. The danger is that the overall sentence may on its face appear not to be unduly long, although it is longer than would have been imposed if the pre‑transitional provision terms had been aggregated and the final sentence then reduced by one‑third. The danger is perhaps particularly acute for experienced trial Judges, who will, over a long period of time, have gained a feeling for what is or is not to be considered a sentence which is so lengthy as to destroy any hope of rehabilitation.
It would be preferable in my view to apply the one‑third reduction at the very end of the sentencing process after the questions of totality have been considered, so that the "last look" at the sentence is done against the background of all the Judge's experience gained prior to the transitional provisions; or alternatively, in order to check again whether the total sentence is appropriate, some notional reconversion to equate the sentence with that which would have prevailed prior to the transitional provisions may be desirable.
In the present case, the total term of 11 years equates to one of 16½ years' imprisonment prior to the transitional provisions. That is a very long sentence for a man who is barely into his twenties, and who has never previously received a sentence of imprisonment to be served immediately.
It is recognised that one of the reasons for reducing an otherwise appropriate sentence of imprisonment, in order to avoid a crushing result, is that too long a term runs the risk that:
" ... the prisoner might become hopeless, aggressive, or otherwise intractable, and thus one of the purposes of punishment will be defeated through making it more rather than less likely that he will eventually offend again."
(McGee v The Queen [1980] WAR 117 at 119 per Wickham J, Burt CJ and Wallace J agreeing.)
There is, in the present case, a real risk that a term of this length will cause the appellant to become intractable, will leave him with very little incentive to undertake the various programmes which may be available to him to assist with his rehabilitation, and that he is at risk, having been imprisoned at a relatively young age for such a length of time, of becoming institutionalised, with the result that he is more likely rather than less likely to reoffend on his release.
Because of the very serious nature of the appellant's offending, it is my view that, even having regard to the considerations I have mentioned

above, a very significant term of imprisonment must be imposed in order to appropriately mark the seriousness of that offending. However, it is my view that an appropriate term, prior to the transitional provisions would have been an overall term of imprisonment of 14 years. That equates, after making the statutory reduction, to one of 9 years and 4 months' imprisonment.

In order to achieve that result, I would allow the appeal, and for that reason only would reduce the term imposed in respect of count 5 on indictment 204 of 2004 to one of 1 year and 10 months' imprisonment. I would leave unchanged the backdating to 16 July 2004 and the order for eligibility for parole. The appellant will be obliged to serve a term of 7 years and 4 months' imprisonment before becoming eligible for parole.
BUSS JA: I agree with Wheeler JA.