Mooney v The State of Western Australia
[2007] WASCA 54
•9 MARCH 2007
MOONEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 54 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:226/2005 | 17 NOVEMBER 2006 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA McLURE JA | 8/03/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | JUSTIN GEORGE MOONEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Appeal against sentence Aggravated armed robbery Two offenders Robbery of jewellery store 6 years' imprisonment without eligibility for parole Prior offences for armed robbery Offence committed while on parole Whether sentence manifestly excessive Turns on own facts |
Legislation: | Nil |
Case References: | Dauphin v The Queen [2002] WASCA 104 R v S [2001] QCA 531; [2003] 1 Qd R 76 R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOONEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 54 CORAM : WHEELER JA
- ROBERTS-SMITH JA
McLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 35 of 2005
(Page 2)
Catchwords:
Criminal law and procedure - Appeal - Appeal against sentence - Aggravated armed robbery - Two offenders - Robbery of jewellery store - 6 years' imprisonment without eligibility for parole - Prior offences for armed robbery - Offence committed while on parole - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Ms J D Whitbread
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dauphin v The Queen [2002] WASCA 104
R v S [2001] QCA 531; [2003] 1 Qd R 76
R v Shrestha [1991] HCA 26; (1991) 173 CLR 48
(Page 3)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: Following trial before Jenkins J and a jury in the Supreme Court at Perth on 16 August 2005, the appellant was convicted of aggravated armed robbery. The circumstances of aggravation were that he was armed with an offensive weapon, that he was in company with another and that he did bodily harm to Donald Jose ("Jose") and Stephen McKiver ("McKiver").
3 At the time the offence was committed, the appellant was on parole and had his parole suspended. He remained in custody from 6 July 2004 until his conviction. Following his conviction, he was remanded in custody for sentence on 2 November 2005. He was then sentenced to 6 years' imprisonment without parole, backdated to 16 August 2005.
4 At the time of sentencing, the appellant owed approximately 3 years by way of breach of parole days. The sentence imposed by Jenkins J took effect concurrently with the breach of parole days.
5 The appellant filed a notice of appeal against sentence on 25 November 2005. That was filed two days out of time, but the Registrar subsequently granted the necessary extension of time. Leave to appeal was granted by Wheeler JA on 9 June 2006.
The facts
6 The facts may be summarised as follows. Around 5 pm on Thursday 17 June 2004, the appellant and the co-offender, Maroney, attended Diamondon's Jewellery Design ("the business"). The proprietor of the business, Jose and his employee, McKiver, were working there that afternoon. There was a knock on the door and two men gained entrance; one of them was the appellant. The appellant produced a business card and introduced himself as Detective Duthie. The business card was actually a card that the accused received from Constable Duthie of the Cannington Police Station at a meeting they had on 9 June 2004, when Constable Duthie gave the appellant his card with his name, rank and police number.
7 The appellant was offered a seat and he told Jose that he was looking for some stolen gold which they believed Jose might have. Jose said he did not deal in stolen gold. The appellant asked a lot of questions,
(Page 4)
- representing himself to be a police officer. He carried on the charade by pretending to take a call from the Cannington Police Station.
8 Some time elapsed and the appellant asked if he could look at the jewellery in the complainant's safe. Jose took him to the safe, which was closed but not locked, and opened the safe door. The appellant and the co-offender were standing behind Jose when he was doing this. Jose showed the appellant and the co-offender a box and placed it back on the shelf in the safe. He then removed several items from the safe, including a drawer containing six 22-carat gold bars, a container of diamonds and some other gold.
9 The appellant then reached over and moved the items around in a drawer. He asked about another item of jewellery and started grabbing things from the safe, at which point, Jose asked the appellant what he was doing. The appellant then punched Jose to the face. He punched Jose another four or five times and dragged him away from the area where the safe was, to the kitchen area, where he was told to "stay down". The appellant pulled a board that had a dartboard attached to it down on top of Jose and it struck Jose's arm, scratching it. Jose tried to get up but the appellant kicked him in the head at least three times. Jose was bleeding from the nose and the mouth, but was still conscious.
10 Meanwhile, McKiver was pinned down at a point near the office desk and the pool table. The co-offender was sitting on top of McKiver, holding him down.
11 In the course of the incident, the co-offender assaulted McKiver. McKiver's face was smashed into the ground and he lost a tooth from a dental plate. He received a "bust lip" and bruising on his face and neck.
12 There was a pool table in the room. As the appellant completed his assault on Jose, he picked up a home-made cue rest, which was nearby, he examined it and armed himself with it, probably so he could use it to overcome resistance in making his escape. The appellant left the premises with the cue rest and it was not recovered.
13 The appellant and the co-offender took most of the contents of the safe. These included approximately six small 22-carat gold bars, altogether weighing approximately 600 grams, and a quantity of jewellery including rings, bangles and gemstones. None of these items were recovered. After they left, Jose tried to call the police but the phone was dead. The line had been pulled out of the wall. After discovering this,
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- McKiver called the police on his mobile phone and they attended the scene.
The co-offender
14 Maroney pleaded guilty at an early stage. He also pleaded guilty to eight other offences on indictment and a number of other offences on a notice under s 32 of the Sentencing Act 1995 (WA). These included six other robbery, or similar, offences. For the offence he committed with the appellant, Maroney received a sentence of 6 years' imprisonment. The aggregate sentence imposed upon him was 12 years' imprisonment, which had been substantially reduced from what it would otherwise have been, because of the need to accommodate the principle of totality in sentencing.
The grounds of appeal
15 The grounds of appeal are that:
"1. The learned sentencing Judge, having accepted that the appellant only armed himself at the very end of the incident, did not expressly threaten or cause injury with the weapon, and that the use of the weapon was not a significant factor in the sentencing, nonetheless imposed a sentence that was consistent with a serious example of a conventional armed robbery;
2. The learned sentencing Judge erred in applying the principle of parity as between the appellant and his co-offender given the difference in their circumstances, namely that the sentence of 6 years imprisonment imposed on the co-offender was to be served concurrently with a sentence of 12 years imprisonment for other serious armed robbery offences."
The Judge's reasons for sentence
16 Her Honour began by noting that the appellant had been convicted after trial and that the statutory maximum penalty for the offence of aggravated armed robbery is life imprisonment. She then stated the facts as she found them to be, broadly as I have outlined them above. She accepted there was minimal planning of the offence. Turning to the appellant's personal circumstances, she said that he was 47 years of age, in a long-term relationship with a woman who, her Honour accepted, is of good character and who continued to stand by the appellant. Her Honour
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- noted the appellant had various jobs, but also had periods of unemployment and lengthy periods in custody. She referred to a letter she had received from the appellant and in particular, noted that its form and content said much about his intelligence and education. She referred to the appellant's history of poly-substance abuse, as detailed in a pre-sentence report. Most of the appellant's offending had been drug related in that he had committed offences to support his substance abuse. She acknowledged the present case was slightly different in that he committed the offence to retrieve possession of jewellery that he had pledged for a drug debt.
17 Her Honour noted it was not to the appellant's credit that he had been unwilling to address his drug abuse over the years. He had been released to parole in October 2003. There were conditions on his parole which required him to undergo urinalysis. A number of those samples indicated continuing illicit drug use. Consequently, the appellant was remanded back into custody. He was released to parole on 14 June 2004 on condition that he participate in a residential drug rehabilitation programme. He did not do so. Her Honour found it difficult to accept the sole reason for that was that Bridge House was not prepared to accept the appellant because he was on the methadone programme. The appellant also failed to report to the Community Justice Service during the release period.
18 The Judge referred to various health problems experienced by the appellant due to his continued drug use.
19 The appellant had been subject to five periods of parole since 1995, all of which had been breached as a result of non-compliance or reoffending.
20 A submission had been made to her Honour to take into account the possibility of the appellant's deportation following his release from prison. She referred to a number of authorities (Dauphin v The Queen [2002] WASCA 104; R v Shrestha [1991] HCA 26;(1991) 173 CLR 48 at CLR 58; and R v S [2001] QCA 531; [2003] 1 Qd R 76 at [6]) which establish that a sentencing Judge may not take an applicant's potential deportation into consideration when sentencing. Nonetheless her Honour noted that the risk of the appellant's deportation would mean that he will remain a high security prisoner throughout his sentence and as a consequence, imprisonment would be more onerous for him than would otherwise be the case. The latter was a matter her Honour was entitled to take into account in mitigation of sentence and she did so.
(Page 7)
21 Turning to the appellant's previous criminal history, her Honour described it as "appalling". He had six previous convictions for armed robbery or robbery and one for conspiracy to commit armed robbery. She pointed out that whilst his prior criminal record did not aggravate nor increase the objective seriousness of his offending, it did indicate that deterrence and protection of society were important considerations in the sentencing process for him.
22 So far as the offence itself was concerned, her Honour observed that armed robbery, especially one involving the infliction of bodily injury on two people and the theft of a considerable amount of property, required a personally and generally deterrent penalty to be imposed. She then said (AB 116):
"… I acknowledge that the weapon that the jury found aggravated the offence was only picked up at the very end of the offence and no express threats were made with it and no injuries were caused by it. Therefore, I don't see the use of the weapon as being a significant factor in the determination of the appropriate penalty on you. It seems to me that even if you had not picked it up, you probably would have made good your escape in any event because the complainants were not physically in a position to give chase.
In terms of aggravating features really the significant ones are that the offence was committed whilst you were on parole. It caused bodily injury to two victims and that a substantial amount of property was stolen but has not been recovered and, finally, that it was committed whilst you were in company."
23 Her Honour thought there were few mitigating factors. She referred again to the fact the appellant would serve his imprisonment in maximum security and there were what appeared to be health problems. She said there was limited credit that she could give for what the appellant and his partner had told her was "the other side" of him and that given his history, she was very cautious in accepting his self-serving comments in his letter to her.
24 The sentencing Judge then expressly adverted to the principle of parity. All things being equal, she said, co-offenders should receive the same penalty for the same offence - but things are not always equal. Where there are significant differences between co-offenders, the sentences imposed on them should reflect those differences. She then
(Page 8)
- mentioned what had happened to the appellant's co-offender, who she noted was 43 years of age, had a bad record of offending, including other armed robbery offences and was on a community based order at the time of his offending. He had a substantial drug habit which motivated his offending. She properly pointed out that one factor Maroney had in his favour which the appellant did not, was that he pleaded guilty.
25 She said she was satisfied beyond reasonable doubt that the appellant played the greater role in the commission of this offence. He had acknowledged that Maroney became involved at his request; it was the appellant who had the motivation to go there and take the property from the business and when they were there, he did virtually all of the talking. Her Honour said there certainly would be no justification for her imposing a lesser sentence on the appellant than was imposed upon his co-offender. Indeed, principle would indicate rather that he should receive a higher sentence than the co-offender because the appellant could not receive credit for showing remorse by an early plea of guilty and because of the greater role he played in the commission of the offence.
26 Her Honour noted the appellant was still liable to serve the balance of the term of imprisonment for which he was on parole at the time he committed the present offence; she also said she would take into account "in a general sense" the fact that he had been in custody for 12 months prior to the commencement of the sentence she was about to impose, again serving the balance of the previous term.
27 She then turned to the issue of parole eligibility and noted the appellant had a demonstrated pattern of breaching parole by reoffending. She declined to make an order that he be eligible for parole.
28 The Judge turned then to the issue of totality and to accommodate that, reduced the sentence she would otherwise have imposed upon him. She then imposed the sentence of 6 years' imprisonment.
Are the grounds made out?
29 Counsel for the appellant submits that the appeal really is a simple complaint that the sentence is simply too long. That submission is made primarily on the basis of comparison with other cases. He acknowledges that the range for armed robberies was ordinarily 6 to 9 years' imprisonment prior to the amendments to the Sentencing Act coming into force on 31 August 2003, and accordingly, 4 to 6 years' imprisonment thereafter. The appellant's sentence is therefore at the top of the current range. Counsel accepted from the outset that there were few, if any,
(Page 9)
- mitigating factors in the appellant's case. He was sentenced after trial, had a bad record and was on parole at the time of the offence. Counsel further conceded that there were very few mitigating features, so the submission really came to a proposition that the circumstances of the offending, serious though they were, should not have attracted a sentence at the "very outer limit" of the range.
Ground 1
30 The preamble to this ground focuses on the appellant's use of the billiard cue rest. It implies that the sentencing Judge must have been influenced by that to impose a sentence greater than that which ought to be have been imposed if the insignificance of that factor had been properly appreciated. There is no room for that implication. The appellant's use of the billiard cue rest as a weapon, as an implied threat, was an express circumstance of aggravation, which the jury found proved. It could not therefore be entirely ignored. But her Honour particularly acknowledged the appellant picked it up only at the very end of the commission of the offence, that no express threats were made with it and no injuries were caused by it. She made it quite clear that she did not see the use of the weapon as being a significant factor in imposing sentence. In taking this approach, her Honour was entirely correct. Given her careful attention to it, there is no scope for a view that she must somehow still have been influenced by it to impose a more severe sentence than was appropriate.
31 In support of this ground counsel conceded that his submission really had to be that the sentence of 6 years' imprisonment was outside the range. He relied upon a schedule of some 49 cases to support this submission. Having reviewed those cases, it is sufficient to make a couple of observations. The first is that they do generally confirm that the ordinary range of sentence imposed for a single offence of this kind is currently 4 to 6 years (equivalent to a range of 6 to 9 years prior to 31 August 2003). A sentence of 6 years would normally be expected where the offence was a serious example of the kind, albeit lacking any factor markedly adding to the gravity of it, but also where there was no particularly significant mitigating factor. Mitigating features would be expected to result in a sentence less than 6 years to an appropriate degree. The second observation which may be made is that the cases on the schedule repeatedly reveal such factors as youth, an early plea of guilty, particular medical or psychological features justifying mitigation, demonstrated remorse, lack of previous convictions, prior good character, minimal participation in the offence and a range of other matters properly
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- going to mitigation. As counsel for the appellant frankly conceded, not only were there no such mitigating factors here, but the matters identified by her Honour did make the appellant's position far more serious.
32 Given then that the circumstances of the offence itself were serious, that it was committed only days after the appellant had been re-released on parole, that he had a number of prior convictions for robbery and armed robbery, that he was convicted after trial (and so could have no benefit for a plea of guilty) and there were no mitigating circumstances, the sentence of 6 years' imprisonment stands indeed, where it appropriately ought to stand, in the range. This ground must fail.
Ground 2 - Parity
33 Her Honour correctly identified the need to consider the principle of parity. However, as I understand the submission advanced here, it is that the 6 year sentence imposed on Maroney was manifestly excessive and her Honour was therefore wrong to have regard to it for the purpose of parity.
34 There are substantial obstacles to this submission.
35 The argument is put on the basis that Maroney had pleaded guilty, and so making allowance for the credit he received for that, the sentence he would otherwise have received must have been about 8 or 9 years. The flaw in that reasoning is obvious. Were it correct, it would mean that if the appellant had been sentenced on a true parity basis with his co-offender in that way, he would have received a sentence of 8 or 9 years' imprisonment - which, of course, he did not.
36 Further, the appellant's own trial counsel (not counsel who appeared on the appeal), contended that the same sentence should be imposed on the appellant, notwithstanding that her Honour had found him to be the initiator and prime mover. As counsel put it to her Honour (AB 108):
"… It is my submission that in fact parity should apply. Mr Maroney would appear on the state's [sic] statement of facts to have played as significant a role as Mr Mooney."
- and again at AB 109:
"… It is my submission that there really shouldn't be any distinction made between Mr Maroney and Mr Mooney because at the end of the day when you take one thing with another, there is a certain balance there."
37 At that point her Honour commented:
"Except that Mr Maroney would have got the credit for the early plea of guilty."
38 Counsel said that had to be taken in the context of the fact that Maroney was pleading guilty to 21 charges, so in that context he was a far worse offender overall. He reiterated his submission that no distinction should be made between the two of them in terms of sentence.
39 As counsel for the respondent pointed out, the circumstances bearing on the sentence of the co-offender did afford a useful comparison with the appellant. Maroney was 43 years old; the appellant was 47. The co-offender had a bad record including armed robbery offences; so did the appellant. The co-offender was on a community based order at the time of the offence; the appellant was on parole. The co-offender's offending was motivated by a substantial drug habit; although the instant offence was not attributable to that so far as the appellant was concerned, he has had a significant drug problem over the years which was ongoing and which he had failed to address. Furthermore, in fact when allowance is made for the co-offender's plea of guilty, the appellant was treated more leniently, notwithstanding his greater role in the offence.
40 In light of these considerations it seems to me ground 2 also must fail.
Conclusion
41 I would dismiss the appeal.
42 McLURE JA: I agree with Roberts-Smith JA.
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