Mulligan v The Queen - [2000] WASCA 5

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MULLIGAN -v- THE QUEEN [2000] WASCA 5

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 1 NOVEMBER 1999

DELIVERED : 31 JANUARY 2000

FILE NO/S: CCA 120 of 1999

BETWEEN: NATHAN BRENT MULLIGAN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Armed robbery and stealing motor vehicles - Multiple offences committed whilst on parole - Total sentence of 12 years imprisonment with early parole order - Whether totality principle succeeded - Sentence confirmed - Turns on own facts

Legislation:

Sentencing Act 1995 s 22

Result:

Leave refused

Representation:

Counsel:

Applicant: Mr H C Quail
Respondent: Mr R E Cock QC & Ms J Andretich

Solicitors:

Applicant: Hylton Quail
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen [1998] 20 WAR 201

Case(s) also cited:

Australian Coal v Commonwealth (1956) 94 CLR 621
Holland v The Queen (1999) WASCA 43
House v The King (1936) 55 CLR 499
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Postiglione v The Queen (1997) 189 CLR 295
R v Heryadi (1998) 98 A Crim R 578
R v Verschuren (1996) 91 A Crim R 1
R v Weng Keong Chan (1989) 38 A Crim R 337

PIDGEON J: The applicant was born on 10 March 1977. He was first convicted at the age of 12 years in the Children's Court for unauthorised use of a motor vehicle and was guilty of a subsequent offence the following year. Since then, he was regularly before the courts for offences relating to the unauthorised use of motor vehicles and breaking and entering. On 21 February 1995, he was placed on probation for 12 months in respect of 11 burglary offences. Probation conditions were breached and on 27 July 1995, when he was 18 years of age, he was sentenced to a total effective term of 18 months' imprisonment for burglary and stealing a motor vehicle. He was released on parole on 24 February 1996, but his parole conditions were breached by reason of his committing a further 25 burglary offences. He received a further term of imprisonment, but was made eligible for parole. He was released to a second period of parole on 25 August 1998, and this parole period was due to expire on 4 May 1999. It was whilst he was serving this parole period that he committed a series of offences involving armed robbery or attempted armed robbery, the sentences for which are the subject of this appeal.
The offences I am about to described occurred on 11 December, 12 December and 22 December. On each of these days, he stole a motor vehicle and either committed an armed robbery offence or attempted to do so. On 11 December, between 8 and 11.30 am, the applicant and another entered a locked Holden Commodore sedan parked at the Melville Plaza shopping centre. They then drove it to a bank they intended to rob. The applicant was armed with a large kitchen knife and was wearing a hood and shirt to cover his head and face. His accomplice was armed with a shotgun. Both the offenders entered the bank, but a security screen was activated. This screen, when activated, hit the firearm being carried by the accomplice, dislodging the wooden butt. The applicant ran into the tellers' area and attempted to force a security door open. He made demands on the staff to open the door and they refused. He ran back to the customer area and demanded that he be given the customers' cash. The bank staff did not comply and the two offenders ran from the bank and escaped in the stolen car. It was left abandoned.
The following day, the applicant committed similar offences. He and a co‑offender went to a locked Ford Meteor sedan parked in an underground car park. They entered and stole the vehicle. They drove it to another bank for the purpose of robbing that bank. The applicant was armed with a knife or a screwdriver and his accomplice was armed with a hand gun. Both were in possession of balaclavas. The applicant and his co‑offender waited for a staff member to attend the bank and, once the door was open, they both rushed forward, produced their weapons and forced the staff member inside the bank. Once inside, both offenders put on the balaclavas. The staff member was taken to the rear of the premises, where there was a second member of the staff. The applicant demanded that this second staff member open the safe. The member of the staff complied. The offenders stole $55,000, none of which was recovered. The car was abandoned and damaged to the extent of $974.
On 21 December, the applicant again stole a vehicle which was used in a further robbery that occurred on 22 December. The applicant and an accomplice stole a locked Ford Laser that had been left locked in the car park of a health club. Early the following morning, at about 8.10 am, the applicant and a co‑offender went to a bank at Mandurah. Each was armed with a knife. They again waited for a staff member to open the bank and, when this was done, they attempted to force the staff member inside the bank. Other members of the staff saw what was occurring and pushed against the door, so that the offenders could not gain entry. The applicant's hand was stuck in the door, but he managed to remove it and the two ran off. The car was abandoned.
The applicant appeared before Wheeler J and pleaded guilty to each of these offences. Her Honour referred to the fact that two of the counts involved only attempts of armed robbery, but she said that they were serious attempts in that they involved a degree of premeditation and they were persisted in. For this reason, her Honour said she could make only a minor distinction between the attempts and the completed offence in each of the cases. She said that the modus operandi was essentially the same, but in one case it was successful. Her Honour said that she was aware of the need to ensure that the sentences she imposed were not crushing. She said that she considered the appropriate sentence for a conventional armed robbery of a bank is in the range of 6 to 9 years. She then said that, having regard to the early plea of guilty and the limited mitigating factors, she considered the sentences in each case would be a year in respect of each of the motor vehicle thefts, 3‑1/2 years in respect of the two attempts and 4 years in respect of the completed armed robbery.
Her Honour referred to the fact that in respect of the first offence of car stealing, she was prepared to treat the applicant as though he were a passenger in the vehicle and, for that reason, would regard that offence and the first armed robbery as the one transaction. She proposed to make the sentence for that offence concurrent on the sentence for count 2. That meant that there was a sentence of 3‑1/2 years' imprisonment for the first two counts. The sentences imposed for the offences which occurred the following day were a cumulative term of 1 year's imprisonment for the car stealing and 4 years' imprisonment for the armed robbery. The sentence imposed for the final two offences was a 3‑1/2 year cumulative term for the attempted armed robbery and a 1 year concurrent term for the car stealing. This made a total effective term of 12 years' imprisonment. The essence of the live grounds of appeal is that the total effective term of 12 years' imprisonment did not pay sufficient regard to the totality principle and was manifestly excessive, having regard to the applicant's early plea of guilty, his co‑operation with the police and lack of prior violent convictions.
There was a further ground which was added by way of amendment and falls away. It was claimed her Honour imposed a term of 13 years' imprisonment, whereas her intention was to make it no more than 12 years. Her Honour very clearly imposed the specific terms I have outlined and made clear which were to be cumulative and which were to be concurrent. The terms so imposed and articulated by her Honour came to 12 years. After her Honour did this, she did make reference to the fact that the applicant had been sentenced to 13 years' imprisonment, but it was clear from what her Honour had earlier said that this was not so. Her Honour's intention was made perfectly clear by the calendar which shows that the terms imposed for each offence are as I have outlined and, when added together, come to 12 years. Her Honour made her intention clear on the calendar, which is consistent with the sentences her Honour pronounced and which also come to 12 years.
There was a further argument submitted in respect of the totality principle which also falls away. Her Honour was informed that at the time of his sentencing, the applicant "owed the Parole Board 384 days". His earlier parole had been cancelled, which means that this length of time must be served as part of his earlier term. It was submitted that, in taking into account the totality principle, this period must also be taken into account. Her Honour, however, did not make her sentences cumulative on the earlier term and it would follow, under s 22 of the Sentencing Act 1995 that the first sentence imposed by her Honour will run concurrently with that period of the earlier sentence which must now be served.
There is no argument that her Honour was correct in saying that the normal tariff for armed robberies of the type her Honour was considering is from 6 to 9 years. The circumstances of the actual armed robbery offence, having regard to the amount of money stolen and the degree of violence offered to members of the bank, would place this offence in the higher category. Her Honour's term of 4 years was heavily discounted.
I would also agree with her Honour's assessment that, in the circumstances of this case, the distinction between the completed offence and the attempted offences is not great. This is because the gravamen of the offences and the attempted offence on the last occasion offered more violence than normal. The sole question which arises is whether the sentences imposed by her Honour gave sufficient weight to the totality principle. The first matter of importance is the degree of seriousness of the offences and this her Honour commented on. The first is the stealing of locked cars from parking areas. Members of the public are becoming greatly concerned at the prospect that vehicles cannot be left safely locked in public car parks. The loss of a car by theft imposes an initial shock and subsequent distress to the owner. Her Honour was correct in saying that, in ordinary circumstances, it must carry a cumulative term. She made the term concurrent in the two cases where she saw the offender's role for that particular offence as being comparatively minor. The completed offence of armed robbery was particularly serious, having regard to the amount taken and the fact that bank officers were deprived of their liberty and were required to act under a threat and duress. It is important to remember, as was said in Jarvis v The Queen [1998] 20 WAR 201, that when applying the totality principle the sentence finally arrived at must be proportionate to the totality of the criminal behaviour. Here, the criminal behaviour was very great. It is of deep concern that the applicant should so persistently act in this manner whilst on parole. It is of great concern that, having taken an amount in excess of $50,000 on one day, he should, some 10 days later, be attempting another offence of the same type. Offences of that type cannot be explained by drug‑addiction and it is indicative of significant criminality.
There was very little mitigation apart from the plea of guilty and his admitting to the police, at any early stage, his participation. No mitigation can be found in his previous background. Her Honour went out of her way to make sure her sentence was not crushing. She imposed sentences as low as possibly could be. She made them concurrent with the earlier sentence and, despite the fact that there were very little positive factors to activate a parole order, she made a parole order. It was not supported by the pre‑sentence report, but it was indicative of her Honour's desire that the sentence not be crushing. I do not consider her Honour's discretion miscarried and I would see any lesser sentence resulting in a sentence that would not have been in proportion to the seriousness of the offence or of the total criminal behaviour.
I would refuse leave.

WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the order proposed by his Honour.
MURRAY J: I too would refuse leave to appeal. I have nothing to add to the reasons published by Pidgeon J.