Moyle v The State
[2004] WASCA 166
•9 AUGUST 2004
MOYLE -v- THE STATE [2004] WASCA 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 166 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:14/2004 | 19 JULY 2004 | |
| Coram: | STEYTLER J LE MIERE J JENKINS J | 9/08/04 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG LAWRENCE MOYLE THE STATE |
Catchwords: | Criminal law Appeal against sentence Totality principle Applicant convicted of aggravated armed robbery, attempted aggravated armed robbery, assault with intent to prevent arrest, stealing and breach of intensive supervision orders Total sentence of 6 years' imprisonment Unfavourable antecedents No error by sentencing Judge in exercise of his discretion as regards issue of totality Turns on own facts |
Legislation: | Nil |
Case References: | House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Dermish v The Queen [2000] WASCA 418 Munro v The Queen, unreported; CCA SCt of WA; Library No 970022; 6 February 1997 Norman v The Queen, unreported; CCA SCt of WA; Library No 7489; 1 February 1989 Postiglione v The Queen (1997) 189 CLR 295 R v Valentine [2003] WASCA 7 R v White [2002] WASCA 112 Stone v The Queen, unreported; CCA SCt of WA; Library No 7417; 1 December 1988 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MOYLE -v- THE STATE [2004] WASCA 166 CORAM : STEYTLER J
- LE MIERE J
JENKINS J
- Applicant
AND
THE STATE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
File Number : INS 244 of 2003
Catchwords:
Criminal law - Appeal against sentence - Totality principle - Applicant convicted of aggravated armed robbery, attempted aggravated armed robbery, assault with intent to prevent arrest, stealing and breach of intensive supervision
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orders - Total sentence of 6 years' imprisonment - Unfavourable antecedents - No error by sentencing Judge in exercise of his discretion as regards issue of totality - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr H Sklarz
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Henry Sklarz
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
Dermish v The Queen [2000] WASCA 418
(Page 3)
Munro v The Queen, unreported; CCA SCt of WA; Library No 970022; 6 February 1997
Norman v The Queen, unreported; CCA SCt of WA; Library No 7489; 1 February 1989
Postiglione v The Queen (1997) 189 CLR 295
R v Valentine [2003] WASCA 7
R v White [2002] WASCA 112
Stone v The Queen, unreported; CCA SCt of WA; Library No 7417; 1 December 1988
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1 STEYTLER J: This is an application for leave to appeal against sentence.
2 On 27 January 2004 the applicant was convicted of three offences charged in an indictment dated 1 December 2003 and of one other offence which was dealt with together with those the subject of the indictment pursuant to s 32 of the Sentencing Act 1995. The indictable offences were one of aggravated armed robbery, one of attempted aggravated armed robbery and one of assault with intent to prevent arrest. The offence the subject of the notice under s 32 of the Sentencing Act 1995 was one of stealing. Additionally, he was dealt with for a breach of an intensive supervision order imposed on 17 February 2003 in respect of an attempted aggravated robbery and a breach of a second intensive supervision order imposed on 12 March 2003 in respect of an offence of common assault. The applicant, then 19 years old, pleaded guilty to all charges at the first opportunity.
3 He was sentenced to a term of 2 years and 8 months' imprisonment on the charge of aggravated armed robbery (count 1), to a term of 4 years' imprisonment in respect of the attempted aggravated armed robbery (count 2), to a term of 8 months' imprisonment with respect to the assault with intent to prevent arrest (count 3) and to a fine of $200 in respect of the stealing charge (count 4). The intensive supervision orders were cancelled and, instead, he was sentenced to a term of 12 months' imprisonment in respect of the attempted aggravated robbery which led to the intensive supervision order imposed on 17 February 2003 (count 5) and to a term of 4 months' imprisonment in respect of the common assault which led to the intensive supervision order imposed on 12 March 2003 (count 6). The terms of imprisonment imposed on counts 1 and 2 were ordered to be served concurrently, but those imposed in respect of counts 3, 5 and 6 were ordered to be served cumulatively upon each other and upon those imposed in respect of counts 1 and 2. Consequently, the applicant was required to serve, in total, a term of 6 years' imprisonment, backdated to 1 August 2003 on which date he was first taken into custody. He was declared to be eligible for parole.
4 There is only one ground of appeal. It is to the effect that the sentencing Judge erred in failing adequately to apply the totality principle because a sentence of 6 years' imprisonment, as the applicant puts it, "does not fairly and justly reflect the total criminality of … [his] conduct". The applicant's contention is that the sentences imposed on counts 3, 5 and 6 should have been made concurrent with each other and with those imposed on the first two counts, resulting in a total sentence of 4 years'
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- imprisonment. His counsel's submission is that any greater sentence overestimates the applicant's level of criminality and gives too little weight to his youth, personal characteristics, unfortunate background, remorse and what are said to be generally favourable antecedents.
5 The applicant's offending behaviour in respect of the offences for which he was sentenced occurred over a period of some seven months.
6 On the afternoon of Saturday, 9 November 2002 the applicant, then 18 years old, and a co-offender attempted to rob a 15-year-old boy of his BMX bicycle, valued at about $700. While the co-offender attempted to pull the complainant away from the bicycle, the applicant lifted the rear wheel of the bicycle and attempted to pull the bicycle from the complainant's grasp. The complainant would not let go and fell over. While he was on the ground, the applicant and his co-offender repeatedly hit and punched him in an attempt to free the bicycle from his grip. Fortunately for the boy, bystanders intervened and the applicant and his co-offender ran away. The applicant was subsequently charged with and convicted of the offences of attempted aggravated robbery and common assault. On 17 February 2003 an intensive supervision order for a term of 12 months was imposed upon him in respect of the attempted aggravated robbery. On 12 March 2003 a similar order was imposed upon him in respect of the assault.
7 Both orders were breached not long thereafter.
8 On 26 June 2003, the applicant committed the aggravated armed robbery the subject of count 1. At about 3 pm on that day he armed himself with a screwdriver for the purpose of robbing the Mandurah Bakery and Hot Bread Shop at Mandurah Terrace in Mandurah. When he entered the shop, he confronted the shop assistant, a 16-year-old girl, by producing the screwdriver and demanding money. She gave him $800 from the cash register. He then fled from the store.
9 About a month later, on the morning of 31 July 2003, the applicant armed himself with a metal bar and disguised his appearance by covering his head and face with a beanie and bandanna, again with the intention of robbing the Mandurah Bakery and Hot Bread Shop. He entered the shop and, seeing no-one behind the counter, attempted to open the drawer of the cash register. The owner of the business, who was disabled by a broken leg, saw him doing so and reached out to take hold of a crutch. The applicant head-butted the owner in the face, making his nose bleed and also making him stumble backwards. Notwithstanding this, the
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- owner managed to get hold of the crutch and struck the applicant with it on the left shoulder. The applicant swung his iron bar in retaliation, striking the complainant and causing a small laceration to his left elbow. The applicant then fled from the shop and, in the course of doing so, pushed over a 64-year-old man who had entered the doorway of the bakery. The 64-year-old man fell to the ground, suffering torn ligaments to his ankle. This chain of events gave rise to count 2.
10 The applicant was pursued from the bakery to a house in Nestor Way, Mandurah. Police were summoned. They saw the applicant in the rear yard of the house and confronted him, with the intention of arresting him. The applicant took hold of a broom and, having snapped off its head, threatened to use the handle to kill the police officers if they came any closer to him. When the police officers attempted to arrest him, he swung the broom handle at them. He was ordered, at gun point, to put the handle down. He did so, but then struggled violently when the police officers attempted to arrest him. These events gave rise to count 3.
11 The stealing charge the subject of count 4 resulted from an offence committed by the applicant on the afternoon of 22 July 2003. On that day he stole a bottle of bourbon from a Liquorland store in Sholl Street, Mandurah.
12 As will already be apparent, counts 5 and 6 related to the breaches of the intensive supervision orders imposed on 17 February and 12 March 2003 respectively.
13 The applicant's antecedents were not favourable. Prior to the commission of these offences he had been convicted of an offence of armed robbery in company (although he was then still a child) and of another of assault occasioning bodily harm. However, he had had a troubled youth. His mother had commenced a new relationship when he was two years old and he had received many beatings at the hands of his stepfather. These occurred when he attempted to intervene in order to stop verbal and physical abuse perpetrated on his mother by his stepfather. While his stepfather's conduct improved during the applicant's teenage years, the applicant had, by then, developed behavioural problems, perhaps brought about by the fact that he suffered from attention deficit hyperactivity disorder ("ADHD"). He was susceptible to fits of anger, resulting in frequent clashes with his stepfather.
14 The applicant's pre-sentence report indicates that he is an immature young man, with a history of alcohol, cannabis and amphetamine abuse.
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- He still suffers from impulsivity and uncontrolled anger, presumably related to his ADHD. His schooling ended with the completion of year 10 and he has since generally been able to obtain employment in the scallop-fishing industry, where he worked during each fishing season over the three years preceding his imprisonment. He has also done some work as a tiler's assistant (helping his stepfather) and on a prawn trawler.
15 The applicant is well spoken of by others and has favourable references from his mother, from a social worker who has dealt with him and from a man who has employed him on an irregular basis over the past three years. He has the support of his mother and his sister.
16 The applicant expressed considerable remorse for his offending behaviour. He said that the armed robbery committed on 26 June 2003 was motivated by a need to repay a debt to a friend who owed someone else money for drugs and who was being threatened as a result of his non-payment. He explained the attempted robbery on 31 July 2003 as a bid to have "revenge" on his girlfriend who had left him for someone else. He believed that she would be sorry if he was sent to prison for a long time.
17 All of these circumstances were taken into account by the sentencing Judge. There is no suggestion that he overlooked any of them. His Honour also took into account the fact that the applicant was aware of his difficulty in controlling his anger and the fact of the applicant's preparedness to undergo anger management counselling. The sole question, in the appeal, is consequently that of whether his Honour misapplied the totality principle.
18 There is nothing surprising about that principle. It requires a sentencing Judge, when sentencing an offender in respect of multiple offences, to review the aggregate sentence imposed and to consider whether it is "just and appropriate": see Thomas, "Principles of Sentencing", 2nd ed (1979), pages 56 - 57, applied in Mill v The Queen (1988) 166 CLR 59 at 62 - 63. In this jurisdiction the principle has been described in the following way, by Anderson J in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, at 6:
"… [I]t is well settled that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences even where more than one sentencing court is involved: Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517. The general rule that individual crimes
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- must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole …".
19 However, it is not only the aggregate sentence that is important. As was pointed out by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 623 - 624:
"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)."
20 In this case, the sentencing Judge did fix an appropriate sentence for each offence (there is no suggestion to the contrary). That his Honour then considered the totality principle is readily apparent from the fact that he ordered that the sentences imposed on counts 1 and 2 should be served concurrently, although there was no requirement that he should do so (the two offences having been unconnected and the second having been committed a month after the first). It is also apparent, from his sentencing remarks when read as a whole, that he considered that the total aggregate sentence of 6 years' imprisonment was just and appropriate, even given the various mitigatory circumstances, because of the seriousness of the offences with which he had to deal. He said that, while the applicant presented "a very difficult sentencing problem", he was influenced by the fact that the offences were serious and also by the fact that the applicant's criminal history, while relatively short, was one of violent offences. He expressed the opinion, with considerable justification, that the applicant presently constitutes a real danger to the community if his drug and alcohol problems, and his personality difficulties, are not resolved.
21 In my respectful opinion, the conclusions arrived at by the sentencing Judge were open to him.
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22 It must not be overlooked that the task of this Court is that of determining whether or not there was error made in sentencing the applicant in the sense explained in the well-known dictum of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505. In Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672, Gleeson CJ and Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ said:
"The principles according to which an appellate court may interfere with … a discretionary judgment by a sentencing judge are well established … Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic (House v The King (1936) 55 CLR 499). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
23 I have said that in my opinion it was open to the sentencing Judge to exercise his discretion as regards the issue of totality in the manner in which he did so. While the sentence might be regarded as severe, given the youth of the applicant, it is not so severe as to reveal error. No other error has been shown. I would consequently dismiss the application for leave to appeal.
24 LE MIERE J: I have had the advantage of reading the reasons for judgment of Steytler J. I agree that the application for leave to appeal should be dismissed for the reasons given by his Honour.
25 JENKINS J: I have had the advantage of reading, in draft, the reasons to be published by Steytler J. I agree with those reasons and have nothing to add.
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