Morley v The State of Western Australia
[2021] WASCA 134
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MORLEY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 134
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 22 JULY 2021
DELIVERED : 30 JULY 2021
FILE NO/S: CACR 167 of 2020
BETWEEN: MATTHEW CHARLES MORLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 985 of 2020
Catchwords:
Criminal law and sentencing - Offender pleaded guilty to one count of aggravated assault with intent to steal and one count of armed robbery - Where individual sentences ordered to be served wholly cumulatively - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), 392(c), 393(d)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chadd v The State of Western Australia [2013] WASCA 99
Clarke v The State of Western Australia [2018] WASCA 190
Gittos v The State of Western Australia [2016] WASCA 7
QJS v The State of Western Australia [2015] WASCA 9
Wallam v The State of Western Australia [2015] WASCA 132
JUDGMENT OF THE COURT:
The appellant was convicted, on his pleas of guilty, of one count of aggravated assault with intent to steal (count 1) and one count of armed robbery (count 2). He was sentenced to 2 years 8 months' imprisonment on count 1 and 3 years 4 months' imprisonment on count 2, the sentences to be served cumulatively.
Count 1 occurred when the appellant approached a volunteer at a school fundraiser, carrying a knife and demanding that she give him the money she was collecting. The appellant attempted to take the bag containing the money from the volunteer, but he was chased away by others. A week later, the appellant committed count 2 by entering a Subway store holding a boxcutter knife and demanding that the employee open the till. The employee did so and the appellant took $323 in cash.
The appellant's sole ground of appeal contends that his total effective sentence of 6 years' imprisonment breaches the first limb of the totality principle.
For the reasons that follow, the ground of appeal is not made out. The appeal must be dismissed.
The facts
The facts of the offending were not in dispute, and may be summarised as follows.[1]
[1] ts 13, 19 - 21.
The victim of count 1 was a parent volunteer assisting a primary school in raising funds by providing parking for the Perth Royal Show. She was wearing a bum bag in which she was putting cash received for parking.
The appellant formed a plan to rob a volunteer carpark attendant. He texted a friend to tell her of the plan on the morning of the offence on 29 September 2019.
Holding a knife with a blade about 15 cm long, the appellant pointed the blade at the victim as he approached her, demanding money. He then took hold of the bum bag strap and persisted in trying to take it from her while he held the knife. The victim was frantically trying to take the bag off.
Other volunteers approached and the appellant let go of the bum bag and fled, returning to his vehicle and driving away.
Count 2 occurred a week later on 6 October 2019. After what the judge described as 'some degree of forethought', the appellant entered a Subway store in Rockingham. Only one young female employee was present. He walked around the counter to the victim, demanding that she open the cash register while holding a black boxcutter knife. In fearful response to his demand, the victim opened the cash register from which the appellant took $323 in cash.
The offending was captured on CCTV footage, which showed the appellant's use of the knife and also showed tattoos on the back of his hands.
The appellant was arrested the next day.
He participated in an interview in relation to the second offence, answering 'no comment' to all relevant questions. He was subsequently interviewed in relation to count 1 and admitted to having committed the offence.
The sentencing judge observed that both offences appear to have arisen from the appellant's pressing need to pay a large drug debt. His Honour also noted that the appellant had told the author of the pre‑sentence report that he was under the influence of drugs and alcohol at the time of the offending.
Personal circumstances
The appellant was 27 years of age at the time of the offending and 28 at the time he was sentenced.
The judge observed that the appellant had a disadvantaged and somewhat dysfunctional upbringing. His parents separated before he was born. He moved between them while he was growing up, and was exposed to domestic violence and his parents' substance abuse. The judge observed that the court could make some allowance for the appellant's susceptibility to drug use arising from his exposure to drugs as a child.
The appellant offended repeatedly as a juvenile and as an adult, although he did not receive a term of imprisonment for any of his previous offences.[2] There was a significant gap in the appellant's offending between 2014 and 2019. The judge observed that this period without offending, which arose from the appellant meeting his long-term partner and ceasing using drugs for that time, indicated that he was capable of leading a productive and prosocial life.[3]
[2] ts 21.
[3] ts 14, 21.
The appellant, however, became bored during his period of abstinence, and he reverted to drug use and ultimately committed the offences which are the subject of this appeal.[4] The judge identified that the present offences represented a significant escalation in the pattern of his offending.[5]
[4] ts 21.
[5] ts 21.
The appellant had been with his partner for eight years at the time of sentencing.[6] They separated before the appellant committed the offences and they reunited in January 2020. At the time of sentencing, the appellant and his partner had two sons, aged three and five years, and his partner was pregnant with twins.[7]
[6] ts 22.
[7] ts 22 - 23.
The appellant is a qualified spray painter. He was working up until the offending and he was able to resume work after being released on bail.[8] The judge remarked that the appellant's employment boded well for his future.[9]
[8] ts 23.
[9] ts 23.
The appellant had been diagnosed with depression and anxiety and at the time of sentencing he was taking antidepressant medication.[10]
[10] ts 23.
Sentencing remarks
The judge identified a number of aggravating features of the appellant's offending:
(1)Both offences involved a degree of planning and premeditation.
(2)The appellant was armed with a knife on both occasions.
(3)The victim of each offence was vulnerable, the first being a woman in her 40s substantially shorter than the appellant and the second being a young female on her own in the store at the time of the offence.
(4)The appellant concealed his face with a scarf in committing the first offence, reinforcing the distress for the victim.
The judge discounted the individual sentences by 20% under s 9AA of the Sentencing Act 1995 (WA). The judge identified other mitigating factors. The appellant accepted responsibility for his offending and expressed remorse and victim empathy. The judge also observed that the appellant appeared to have gained significant insight into the factors that contributed to his drug use and how it impacted on his relationships. The judge observed that the appellant had taken positive steps towards rehabilitation, including engaging with the Palmerston Association to address his drug and alcohol use.
The judge considered that the appellant was motivated to stop using alcohol and drugs but that there was nevertheless a high risk of him relapsing into drug use. The judge expressed the view that if the appellant was able to maintain abstinence it was unlikely that he would reoffend in any similar way.
The judge ordered that the sentence on count 2 be the head sentence and that the sentence on count 1 be served cumulatively, to reflect that the offences were discrete episodes and that they were both serious.[11] The judge stated that the individual sentences had been 'moderated somewhat' to comply with the totality principle.[12] The order that the sentences be served cumulatively produced a total effective sentence of 6 years' imprisonment.
[11] ts 24.
[12] ts 24.
The sentence was backdated to commence on 15 May 2020, giving full credit for the 151 days the appellant spent in custody over three distinct periods,[13] and he was made eligible for parole.[14]
[13] ts 13.
[14] ts 24.
Ground of appeal
The appellant's sole ground of appeal is that the sentence of 6 years' imprisonment breaches the first limb of the totality principle.
On 13 January 2021, Buss P referred the application for leave to appeal to the hearing of the appeal.[15]
[15] AB 4.
Appellant's submissions
The appellant's submissions emphasise the mitigating factors in his favour. He submits that, taking into account that:
(1) he pleaded guilty, for which he received a 20% discount under s 9AA of the Sentencing Act;
(2) he was a 27‑year‑old at the time of the offences with a dysfunctional background who had a relatively limited criminal history and had never been to prison; and
(3) he was remorseful and had taken positive steps towards rehabilitation;
his total sentence was disproportionate to the overall criminality of his offending.
The appellant refers to three cases in support of his contention that his total effective sentence infringes the first limb of the totality principle: Gittos v The State of Western Australia;[16] Wallam v The State of Western Australia;[17] and QJS v The State of Western Australia[18].
[16] Gittos v The State of Western Australia [2016] WASCA 7.
[17] Wallam v The State of Western Australia [2015] WASCA 132.
[18] QJS v The State of Western Australia [2015] WASCA 9.
Disposition
The principles relevant to a claim of infringement of the first limb of the totality principle are well‑established, and may be summarised as follows.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
The maximum penalty for count 1 was 14 years' imprisonment and for count 2 life imprisonment. These maximum penalties are one yardstick of the seriousness of the appellant's offending.
The appellant's offence in count 1 had a number of serious aspects. It was premeditated. His use of a knife while wearing a scarf to conceal his face would, as the sentencing judge observed, have made the incident a very distressing experience for the victim. There was a degree of persistence in the appellant's offending as, when the victim did not hand over the money in response to his demand, he took hold of the strap of the victim's bum bag, trying to take it from her. Such a confrontation had the potential for serious unforeseen injury to the victim. His offending came to an end only because of the intervention of others.
Both victims of the appellant's offending were vulnerable people who were in the course of providing services to members of the public. The courts must give appropriate weight to the need to protect people in such positions, and to the need for a deterrent response to offending of this kind.
The two offences were quite distinct, occurring a week apart and having no relationship. In the circumstances, accumulation of the sentences, at least to a substantial degree, was appropriate.
The three decisions to which the appellant refers do not assist the appellant's contention that his total effective sentence infringes the first limb of the totality principle. As has frequently been observed in this court,[19] the identification of a few cases which appear, on a broad comparison, to involve similar offending, but different sentences, will rarely provide significant assistance in demonstrating error. In totality cases, the fact that different offenders have received different total sentences in respect of a different collection of offences adds complexity to any exercise in comparison, thereby diminishing the assistance which can be derived from the comparison exercise.[20]
[19] See, for example, Clarke v The State of Western Australia [2018] WASCA 190 [54].
[20] Chadd v The State of Western Australia [2013] WASCA 99 [45].
The criminality of the appellant's offence the subject of count 2 could well have justified an individual sentence for that offence which was longer than the sentence imposed by his Honour. In that regard, the judge observed that both individual sentences had been moderated somewhat by considerations of totality.
Bearing in mind the mitigating factors in the appellant's favour, summarised in [29] above, the total effective sentence can fairly be said to be high. It was open to have imposed a lower total effective sentence. However, taking into account the matters outlined in [36] ‑ [41] above, and giving full weight to the mitigating factors, we are not persuaded that error in the exercise of the sentencing discretion can be inferred. A breach of the first limb of the totality principle has not been demonstrated.
Conclusion
For the above reasons, the following orders should be made:
1.Leave to appeal is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
30 JULY 2021
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