Mills v The State of Western Australia
[2011] WASCA 199
•27 SEPTEMBER 2011
MILLS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 199 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:47/2011 | ON THE PAPERS | |
| Coram: | McLURE P BUSS JA | 27/09/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DWAYNE ANTHONY MILLS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Manifest excess Parity Turns on own facts |
Legislation: | Criminal Code (WA), s 371A, s 378, s 392, s 401(1) |
Case References: | Lowe v The Queen (1984) 154 CLR 606 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MILLS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 199 CORAM : McLURE P
- BUSS JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURPHY JA
Citation : THE STATE OF WESTERN AUSTRALIA -v- MILLS [2011] WASCSR 19
File No : INS 86 of 2010
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Parity - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 371A, s 378, s 392, s 401(1)
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Lowe v The Queen (1984) 154 CLR 606
(Page 3)
1 McLURE P: This is an application for leave to appeal against sentence. There was no appearance on behalf of the appellant at the leave hearing on 3 August 2011. Accordingly, the application will be dealt with on the papers.
2 On 22 November 2010 the appellant pleaded guilty to one count of aggravated burglary contrary to s 401(1) of the Criminal Code (WA) (the Code), two counts of aggravated armed robbery contrary to s 392 of the Code and one count of stealing a motor vehicle contrary to s 371A and s 378 of the Code. Murphy JA sentenced the appellant to a term of 3 years 6 months' imprisonment for the aggravated burglary, 7 years 6 months' imprisonment for each offence of aggravated armed robbery and 1 year 6 months' imprisonment for stealing a motor vehicle. He ordered that all the sentences be served concurrently, resulting in a total effective sentence of 7 years 6 months' imprisonment.
3 There are two grounds of appeal. The appellant claims first, that the sentences for the offences of aggravated armed robbery are manifestly excessive and second, that the total sentence offends the parity principle. Neither ground has reasonable prospects of succeeding.
4 The facts of the offending are as follows. At about 8.30 pm on 8 March 2010 the appellant, in company with his co-offender, Annette Teakle, went to the male complainant's home in Southern River. The appellant, who was wearing a balaclava pulled down to conceal his face, forced the front door by kicking it open and charged into the front lounge room brandishing a handgun. The co-offender followed him into the lounge room holding a long screwdriver. Her face was also concealed.
5 A 60-year-old male and a 59-year-old female were sitting in the front lounge watching television. The appellant ordered the two to lie on the ground, pointing the gun towards both of them. A 32-year-old female entered the room and the appellant pointed the gun at her (the third victim). Both the appellant and the co-offender demanded money from the victims, asking where the cash was located and where the safe was hidden. The third victim said she had to get her 7-year-old daughter and began walking to a rear bedroom. The appellant followed her and held the handgun to her head. The co-offender remained with the other victims, holding the screwdriver towards them. The third victim collected her 7-year-old daughter, who was hiding in the bedroom, and returned to the lounge room.
(Page 4)
6 The male victim stood up and the appellant held the gun to his forehead, again demanding money and the safe. He replied that there was no safe and was escorted to the kitchen by the appellant. The co-offender called out to grab the victims' handbags. The appellant also demanded the keys to a car parked in the garage. The third victim gathered her handbag and the keys to the vehicle, handing it to the appellant who also grabbed another handbag belonging to the second victim. The appellant was told the bag contained prescribed heart medication. However, he took the bag and its entire contents. The appellant and his co-offender drove off in the car. Unknown to the victims, the handgun was a replica.
7 Initially the appellant denied any involvement in the offending and claimed he had an alibi. On the morning of the first day of trial, he pleaded guilty.
8 The appellant was aged 31 at the time of sentencing. He and his de facto partner have a young daughter. The appellant commenced using cannabis at age 13 and amphetamines at age 15. He then progressed to heroin. The current offences were committed under the influence of morphine. The appellant has a very lengthy record of serious offending which commenced when he was a juvenile. In particular he has prior convictions for armed robbery, robbery, aggravated burglary and assault occasioning bodily harm. The appellant was on bail for the offence of stealing a motor vehicle and driving it recklessly at the time he committed these offences.
Manifest excess
9 There is no merit in the claim that the sentence of 7 years 6 months' imprisonment for each of the offences of aggravated armed robbery are manifestly excessive. The circumstances of the offending are at the high end of the scale of seriousness. Having regard to the appellant's antecedents, personal deterrence was a weighty sentencing consideration. Finally, and perhaps most significantly, the sentences were constructed with totality considerations in mind. An individual sentence towards the high end of the customary range is frequently appropriate in circumstances where total concurrency is to be ordered. A total sentence of 7 years 6 months for the total criminality of the appellant's offending is entirely appropriate. There is no merit in ground 1.
Parity
10 The appellant's co-offender was sentenced in June 2010 to 2 years' imprisonment for aggravated burglary, 4 years' imprisonment for each
(Page 5)
- offence of aggravated armed robbery and 18 months' imprisonment for stealing the car. The sentences were ordered to be served concurrently resulting in a total effective sentence of 4 years' imprisonment. The sentences imposed on the co-offender reflected an 18 month discount for her cooperation with authorities. She had agreed to give evidence against the appellant. Moreover, she pleaded guilty on the fast-track system and had a more limited history of prior offending. Finally, the appellant was more actively involved in the commission of the offences than his co-offender.
11 Persons who have been parties to the commission of the same offences should, if other things are equal, receive the same sentence. However, other things are not always equal and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account: Lowe v The Queen (1984) 154 CLR 606, 609. The question is whether the disparity in sentence is capable of giving rise to a justifiable sense of grievance. The differences in the sentencing factors in this case justify the disparity in the individual and total sentences imposed on the co-offenders. This ground is without merit.
12 I would refuse leave to appeal and dismiss the appeal.
13 BUSS JA: Generally for the reasons given by McLure P, I would refuse leave to appeal and dismiss the appeal.
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