Nicolaides v The State of Western Australia
[2012] WASCA 199
•9 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NICOLAIDES -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 199
CORAM: BUSS JA
MAZZA JA
HEARD: 24 JULY 2012
DELIVERED : 9 OCTOBER 2012
FILE NO/S: CACR 76 of 2012
BETWEEN: BRADLEY CHRISTOPHER NICOLAIDES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BLAXELL J
File No :INS 64 of 2003
Catchwords:
Criminal law - Sentencing - Application for an extension of time to appeal - Delay of more than 6 years - Appellant an armed robber with a very serious criminal history - Totality principle - Parity principle
Legislation:
Criminal Code (WA), s 317A(a), s 333, s 371A, s 378, s 392(c)
Sentencing Act 1995 (WA), s 3(3)(a)
Result:
Application for an extension of time to appeal, and leave to appeal, dismissed
Category: D
Representation:
Counsel:
Appellant: Mr D N Ryan
Respondent: No appearance
Solicitors:
Appellant: Talbot Olivier
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barnes v The State of Western Australia [2004] WASCA 258
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Drury v The State of Western Australia [2010] WASCA 220
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Henderson v The State of Western Australia [2007] WASCA 198
Jardim v The State of Western Australia [2011] WASCA 83
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nannup v The State of Western Australia [2011] WASCA 257
Narkle v Hamilton [2008] WASCA 31
Nicolaides v The Queen [2005] WASCA 186
Nicolaides v The State of Western Australia [2007] WASCA 203
Nicolaides v The State of Western Australia [2008] HCATrans 163
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Pan [2005] NSWCCA 114
R v Taudevin [1996] 2 VR 402
Robertson v The State of Western Australia [2009] WASCA 83
Smith v The State of Western Australia [2012] WASCA 91
The State of Western Australia v Tik [2009] WASCA 122
The State of Western Australia v Wells [2005] WASCA 23
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wimbridge v The State of Western Australia [2009] WASCA 196
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
BUSS JA: On 25 November 2005, the appellant was convicted, after a trial in the Supreme Court before Blaxell J (the primary judge) and a jury, on four counts in an indictment.
On 9 February 2006, he was sentenced to an overall total effective term of 8 years 6 months' imprisonment.
The last date for the appellant to appeal against sentence was 2 March 2006.
On 3 April 2012, the appellant filed an application for an extension of time to appeal, and leave to appeal, against sentence.
The appellant's appeal against conviction
The appellant appealed, within time, against his conviction. This appeal was dismissed. See Nicolaides v The State of Western Australia [2007] WASCA 203.
The application for an extension of time to appeal against sentence
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
The appellant has filed an affidavit, sworn by him on 28 March 2012, in support of his application. I will refer to this affidavit in some detail after I have examined the merits of the proposed ground of appeal.
The counts in the indictment
The counts in the indictment alleged that the appellant and his co‑offender, Claudio Gabriel Simion, committed these offences: assault with intent to facilitate the commission of a crime (count 1), aggravated armed robbery (count 2), deprivation of liberty (count 3) and stealing a motor vehicle (count 4).
All of the offences occurred on 30 September 2002. They concerned or arose out of a robbery committed at the Bayswater Hotel at or about 9.15 pm.
The alleged circumstances of aggravation in relation to the robbery were that the appellant and Mr Simion were armed with a dangerous weapon (namely, a handgun) and an offensive weapon (namely, a baseball bat); they were in company with each other; and they threatened to kill Robert Steven Letizia.
There was a joint trial of the appellant and Mr Simion.
As I have mentioned, the appellant was convicted on each of the counts. All of the circumstances of aggravation in relation to the robbery were proved against him.
Mr Simion was acquitted on count 1. He was convicted on count 2, except that the alleged aggravating circumstance of the threat to kill was not proved against him. He was convicted on counts 3 and 4.
The primary judge's sentencing of the appellant
On 9 February 2006, the primary judge sentenced the appellant. He imposed the following individual terms of immediate imprisonment:
Count 1:2 years 6 months;
Count 2:7 years;
Count 3:3 years;
Count 41 year.
His Honour ordered that the sentences for counts 1 and 4 be served concurrently with each other and concurrently with the sentence for count 2. His Honour also ordered that the sentence for count 3 be served partly concurrently with the sentence for count 2; in particular, his Honour ordered that the sentence for count 3 commence at the expiration of 5 years of the sentence for count 2. The total effective sentence for the counts in the indictment was therefore 8 years' imprisonment.
On 24 November 2005, the primary judge convicted the appellant of three offences of contempt of court committed during the trial of the counts in the indictment. On that date, his Honour sentenced him to a total effective sentence of 9 months' immediate imprisonment for the contempt offences.
On 9 February 2006, while sentencing the appellant for the counts in the indictment, his Honour ordered that the total effective sentence of 8 years' imprisonment for those counts commence at the expiration of 6 months of the total effective sentence for the contempt offences.
The overall total effective sentence was therefore 8 years 6 months' imprisonment.
His Honour declined to make a parole eligibility order in respect of the counts in the indictment.
The primary judge's findings of fact: the counts in the indictment
The primary judge, in his sentencing remarks in relation to the counts in the indictment, made unchallenged findings of fact, as follows.
The appellant and Mr Simion went to the Bayswater Hotel with the intention of committing a robbery. The appellant was the mastermind. He prepared for and planned the robbery over a number of days. The strategy was to enter the hotel shortly before closing time, and force the bar manager (Mr Letizia) to open the office safe so that the appellant and Mr Simion could steal the takings (ts 6335).
The appellant had at least two meetings with a person who was familiar with the hotel's staffing arrangements and internal operations. Also, the appellant inspected a laneway in Bayswater where he later left a getaway vehicle. On the evening of the robbery, the appellant telephoned the hotel to confirm the closing time. The appellant and Mr Simion wore disguises and armed themselves, the appellant carrying a loaded handgun and Mr Simion wielding a baseball bat (ts 6335).
At about 9.15 pm on the evening in question, the appellant and Mr Simion walked into the public bar of the hotel. The appellant shouted to the 30 or 40 patrons that they were to get down onto the floor. He then approached a barmaid and repeatedly demanded that she tell him where the bar manager was. The appellant's harassment of the barmaid prompted one of the patrons, Ross Michael Ciraulo, to pick up a bar stool and advance towards the offenders. The appellant instructed Mr Simion to strike Mr Ciraulo with the baseball bat. Mr Simion failed to comply. As a result, the appellant committed the offence, the subject of count 1, by lifting the loaded handgun and firing a single shot in the direction of Mr Ciraulo. Although the appellant did not aim the gun at Mr Ciraulo, the trajectory of the bullet was parallel to the full length of the bar. It was merely good fortune that the bullet did not hit anyone (ts 6335 ‑ 6336).
The bar manager was, at this time, in the lounge area of the hotel. As a result of the disturbance created by the appellant and Mr Simion, including the discharge of the handgun, the bar manager pressed an alarm button in his office. He then entered the front bar and identified himself to the offenders. The appellant forced the bar manager, at gun point, into the manager's office and demanded that he open the safe. He did so. While Mr Simion removed the takings from the safe, the appellant demanded to be shown where the hotel's video surveillance equipment was located. The bar manager told the appellant, as was the fact, that the equipment was not working. The appellant disbelieved him. As a result, the appellant forced the bar manager to kneel on the floor. The appellant held the handgun to the bar manager's head and threatened to kill him. This conduct constituted count 4. The bar manager reiterated that the equipment was not working and, eventually, the appellant accepted that this was so (ts 6336).
After Mr Simion had placed the takings into a bag, the appellant used the handgun to force the bar manager to produce the keys to his motor vehicle, to accompany him and Mr Simion to the place where it was parked, and to drive them a few hundred metres. The appellant then released the bar manager and, with Mr Simion, made his getaway in the vehicle (ts 6336).
The amount stolen in the robbery was about $9,500. This was substantially less than the appellant had anticipated (ts 6336).
The contempt of court offences
As I have mentioned, on 24 November 2005, the primary judge convicted the appellant of three offences of contempt of court and sentenced him to a total effective sentence of 9 months' immediate imprisonment.
His Honour said that there had been numerous instances of conduct by the appellant which had either disrupted the trial or had a tendency to interfere with the course of justice (ts 6272).
The three offences were:
(a)on 21 October 2005, the appellant shouted from the dock that the robbery, the subject of count 2, had been committed by Mr Simion and a witness, Sean Burgess;
(b)on 2 November 2005, while connected by video link to the courtroom, the appellant held up a sign which read, 'You are a biased dog, Blaxell'; and
(c)on 18 November 2005, while connected by video link to the courtroom, the appellant deliberately spat towards the camera.
The primary judge said that the first offence was 'very serious', the second was 'moderately serious', and the third was 'of lesser seriousness but [was], nevertheless ... representative of a course of conduct' (ts 6281).
His Honour imposed immediate terms of imprisonment for each offence, namely, 9 months for the first offence, 6 months for the second, and 3 months for the third (ts 6281 ‑ 6282). He ordered that the sentences be served concurrently (ts 6282).
The total effective sentence was therefore 9 months' immediate imprisonment.
Criminal contempt of court is a common law offence. Section 3(3)(a) of the Sentencing Act 1995 (WA) provides that that Act does not apply to or in respect of a person being punished by the Supreme Court or any other court for or as for contempt of court. Accordingly, no question of eligibility for parole arises where a person is sentenced to a term of immediate imprisonment for contempt.
The primary judge's sentencing remarks: the counts in the indictment
The primary judge, in his sentencing remarks in relation to the counts in the indictment, referred to the appellant's personal circumstances.
The appellant was aged 38 when sentenced. He had a very significant prior criminal record including eight prior convictions for robbery. Two of these robberies were committed while in company and seven of them were committed while armed. The previous robberies were punished by substantial terms of imprisonment. In 1997 the appellant received a total effective sentence of 9 years' imprisonment for armed robbery while in company and for other offences.
The appellant was on parole in respect of the 1997 sentence when he committed the four counts in the indictment. He was also on bail at the time for other alleged offences, and was in breach of a curfew requirement when the offending in question occurred.
His Honour noted that the appellant had an entrenched history of poly‑substance abuse. The appellant commenced using opiates at a young age. He stole prescriptions for opiates from a pharmacy operated by his mother's partner. By the age of 16 he was using heroin on a daily basis. Over the years he had used a variety of other illicit drugs, including amphetamines, cocaine, cannabis and ecstasy.
Since October 2002, while in prison, he was the subject of 23 prison charges including six charges of possession of cannabis, one of possession of methylamphetamine, one of possession of Tramal, three of possession of syringes and four of refusing to provide a urine sample.
The pre‑sentence report before the primary judge stated that the appellant had no remorse for his offending and no victim empathy. His Honour said that these observations in the pre‑sentence report were consistent with the appellant's demeanour and behaviour during the trial.
A victim impact statement from the bar manager (Mr Letizia) revealed that the offending had caused him to suffer significant psychological trauma. He thought the appellant would kill him. The offences had a devastating impact on his personality and enjoyment of life.
A significant aggravating factor in the appellant's offending was that he not only armed himself with a loaded handgun, but he discharged it in the reasonably crowded hotel bar. His willingness to use the gun to terrorise his victims was demonstrated again when he held the loaded handgun to the head of the bar manager and threatened to kill him if he did not answer his questions about the surveillance system.
His Honour said that the appellant had a very callous and casual attitude towards the use of violence. This was shown by his gratuitous conduct in abducting the bar manager after he had shown the appellant and Mr Simion to his motor vehicle and, in effect, provided them with a means of escape.
The primary judge was of the view that there were no mitigating factors.
His Honour made these observations about the totality principle:
I also need to have regard to the totality principle, including the totality of your situation, given that you have been in custody since 8 October 2002 while on suspension for parole. Furthermore, you are now serving a term of nine months' imprisonment imposed by me on 24 November 2005 for three offences of contempt of court. That term should ordinarily be cumulative on all other terms. It is also my understanding [that] at the expiration of that nine‑month term and of the sentences to be imposed today, you will still have what's to be 1126 but I'm now told 339 breach of parole days to serve in respect of your 1997 sentence (ts 6338).
After imposing the individual sentences for the four counts in the indictment, the primary judge said that these sentences 'could arguably be made concurrent on the basis of the one transaction rule' (ts 6339). However, he was of the view that this would not be an appropriate measure of the appellant's total criminality.
Ultimately, his Honour concluded in relation to totality:
I direct that the terms totalling eight years' imprisonment imposed today are to be concurrent with all terms other than the terms totalling nine months for contempt of court. In respect of those terms totalling nine months for contempt of court, I direct that the present sentences are to be partially concurrent and to commence at the expiration of six months of those other terms imposed in November for contempt of court. Arriving at that element of partial concurrency, I have allowed for the 76 days that [the appellant] has spent in custody purely in respect of the present matter (ts 6340).
As I have mentioned, the primary judge decided that the appellant should not be made eligible for parole.
The proposed ground of appeal
The sole proposed ground of appeal alleges, in substance, that the primary judge erred in law in that the overall total effective sentence infringed the first limb of the totality principle.
The particulars of the proposed ground read:
1.1The fact that the offence of aggravated armed robbery and the associated offences occurred on the same day and arose out of the same course of offending;
1.2The significant amount of time the Appellant had spent in custody prior to being sentenced;
1.3The sentence with respect to the contempt of court offence was effectively made wholly cumulative on the sentence for the aggravated armed robbery and the associated offences;
1.4The Appellant's co‑accused, Claudio Gabriel Simion, received a total sentence of 7 years imprisonment, which was backdated to at least 7 July 2003; and
1.5The sentence with respect to the unlicensed handguns and other charges, dealt with in the Perth Magistrates court on 16 December 2003 and said to have breached the Appellant's parole, was an effective sentence of only 3 months, which ran concurrently with a sentence imposed by the District Court on 12 December 2003, that was subsequently quashed.
The proposed ground and the particulars reveal some confusion of thought. Particular 1.4 appears to assert a breach of the parity principle. This is not a proper particular of a ground which is concerned with the totality principle.
The appellant does not challenge the length of any of the individual terms of imprisonment. Nor does he challenge his Honour's refusal to make a parole eligibility order.
The organisation of the balance of these reasons
I will deal, first, with some general matters relating to the proposed ground. Next, I will address each of the particulars of the proposed ground. Finally, I will consider whether the proposed ground has any merit.
The proposed ground of appeal: general
The totality principle applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence or offences.
The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. The second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well‑established by the case law.
Also, the totality principle may have application, in some circumstances, by way of analogy, where an offender has already served a term or terms of imprisonment for a prior offence or offences. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 ‑ 67 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J, Templeman J generally agreeing); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [7] (McLure JA, Steytler P agreeing).
At the material time, the maximum penalty for count 1, being assault with intent to facilitate the commission of a crime, contrary to s 317A(a) of the Criminal Code (WA) (the Code), was 5 years' imprisonment.
At the material time, the maximum penalty for count 2, being aggravated armed robbery, contrary to s 392(c) of the Code, was life imprisonment.
At the material time, the maximum penalty for count 3, being deprivation of liberty, contrary to s 333 of the Code, was 10 years' imprisonment.
At the material time, the maximum penalty for count 4, being stealing a motor vehicle, contrary to s 378 read with s 371A of the Code, was 7 years' imprisonment.
As I have mentioned, the primary judge ordered that the sentence for count 3 (deprivation of liberty) be served partly concurrently with the sentence for count 2 (aggravated armed robbery). The sentences for count 1 (assault with intent to facilitate the commission of a crime) and count 4 (stealing a motor vehicle) were ordered to be served concurrently with each other and concurrently with the sentence for count 2.
The range of sentences commonly imposed for single offences of armed robbery is 4 to 6 years' imprisonment. This range, which is expressed in terms of the transitional provisions in force under the Sentencing Legislation Amendment and Repeal Act 2003 (WA), does not take into account mitigating factors. See Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ, Pidgeon J agreeing); The State of Western Australia v Wells [2005] WASCA 23 [4] ‑ [5] (Wheeler JA, Steytler P & Roberts-Smith JA agreeing); Drury v The State of Western Australia [2010] WASCA 220 [22] (Mazza J, McLure P agreeing); Nannup v The State of Western Australia [2011] WASCA 257 [72] (Buss JA, McLure P & Mazza J agreeing). Also, the range of 4 to 6 years' imprisonment does not take into account aggravating factors. As Malcolm CJ noted in Miles, significant weight is ordinarily given to the requirements of personal and general deterrence in cases of armed robbery (521). See also Wells [5].
In Robertson v The State of Western Australia [2009] WASCA 83, I (Owen & Miller JJA agreeing) rejected a submission that the sentencing range for 'an inveterate armed robber who is being sentenced for offences of armed robbery committed while on parole' is 7 to 10 years' imprisonment [25], [37]. In that case, I (Owen & Miller JJA agreeing) enunciated two important propositions. First, the totality principle does not necessarily preclude a sentencing judge from making the sentences he or she is imposing on an inveterate armed robber, for multiple armed robbery offences, cumulative on other terms of imprisonment the offender has served, is serving or is about to serve (whether the new offences have been committed on parole or not). Secondly, a sentencing judge is not precluded from sentencing an inveterate armed robber to a total effective sentence of 7 to 10 years' immediate imprisonment (or, indeed, to a term in excess of 10 years), for multiple armed robbery offences (whether or not the offences were committed while the offender was on parole), if the seriousness of the offences, when viewed in their entirety and in all the circumstances of the case, including those referable to the offender personally, requires the imposition of such a sentence.
No tariff exists for the offence of deprivation of liberty because of the great variation attending the commission of this offence. The sentence to be imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum penalty and the personal circumstances of the offender.
In Henderson v The State of Western Australia [2007] WASCA 198, Owen JA (Wheeler & Miller JJA agreeing) said:
It is not easy to make comparisons for the offence of unlawful detention because, like crimes such as manslaughter, it covers a broad spectrum of factual possibilities. Many of these cases are associated with sexual offences. I will not mention cases of that type because I think they raise quite different considerations. In Cook v The Queen [2001] WASCA 16, during the course of an armed robbery the offender detained the sole occupant of the premises and bound her wrists with tape to prevent her escaping while he collected money. A sentence of 2 years (16 months under the present sentencing regime) for the unlawful detention (part of an overall term of 6 years and 5 months) following a guilty plea was left undisturbed. In Iveson v The State of Western Australia [2005] WASCA 25 the offender, in breach of a Violence Restraining Order, went to the residence of a former partner and assaulted her. She tried to escape but the offender stopped her at the front door and closed the door. He then assaulted her again. He was charged with one count of unlawful detention, two of assault occasioning bodily harm and one breach of a restraining order. The sentence imposed for the unlawful detention was 2 years (as part of an aggregate sentence of 4 years and 10 months). The offender's application for leave to appeal against the sentence was rejected [61].
Similarly, in The State of Western Australia v Tik [2009] WASCA 122, Pullin JA (Wheeler & Miller JJA agreeing) commented:
This type of offence is most commonly committed in conjunction with a robbery offence or a sexual assault offence. The cases of Krencej v The Queen [1999] WASCA 20; Cook v The Queen [2001] WASCA 16; Kometer v The State of Western Australia [2005] WASCA 131; Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469; Thorn v The State of Western Australia [2008] WASCA 36 and The State of Western Australia v Goodin [2008] WASC 116 reveal sentences (in post-transitional terms) ranging from 1 year 4 months to 3 years 4 months' imprisonment for deprivation of liberty charges. Two of the cases (Seroka and Cook) reveal sentences imposed after pleas of not guilty and in the other four cases there were pleas of guilty. However, the deprivation of liberty in each case was for one relatively short period of time and in circumstances markedly different from this case. There can be no tariff for this type of offence because the circumstances and length of detention can vary markedly [45].
The proposed ground of appeal: particular 1.1
Particular 1.1 of the proposed ground alleges that the overall total effective sentence infringed the first limb of the totality principle in that the aggravated armed robbery and the related offences occurred on the same day and arose out of the same course of offending.
In Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585, Steytler P examined the so‑called one transaction 'rule' or continuing episode 'rule'. His Honour said:
It is plain that this 'rule' is not a rule at all, but merely a guideline or, as it was described in Ruanne v The Queen (1979) 1 A Crim R 284, a 'good working rule'. Each case must, in the end, depend upon its own circumstances and it is for the sentencing judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien [1997] 2 VR 714 at 720 ‑ 721 [23].
In the present case, the primary judge correctly understood that the critical issue was the proper sentence to be imposed for the overall criminality involved in all of the offences in question.
In my opinion, his Honour appropriately refused to apply the one transaction 'rule'. The abduction of the bar manager from the hotel was a discrete act of criminality which was not an integral part of the earlier offending. Also, as I will explain when considering the merits of the proposed ground, wholly concurrent sentences on all of the counts in the indictment would not have been an appropriate measure of the appellant's overall criminality. The allegation in particular 1.1 is not reasonably arguable.
The proposed ground of appeal: particular 1.2
Particular 1.2 of the proposed ground alleges that the overall total effective sentence infringed the first limb of the totality principle in that the appellant had spent a significant amount of time in custody prior to being sentenced.
The appellant was born on 11 July 1967. As at 9 February 2006, when he was sentenced by the primary judge, the appellant had spent, as an adult, a total of about 18 1/2 years in custody, either on remand or under sentence.
As I have mentioned, in 1997 the appellant was sentenced to 9 years' imprisonment for an armed robbery in company and for other offences.
On 6 October 2001, the appellant was released on parole.
On 15 January 2002, his parole was suspended as a result of his having been charged with further offences, and he was re‑imprisoned.
On 17 May 2002, the suspension of the appellant's parole was rescinded and he was released from custody.
On 8 October 2002, the appellant and a co‑accused were arrested and charged with one count of unlawful wounding with intent to do grievous bodily harm and one count of going armed in public to cause terror. This offending allegedly occurred on 29 September 2002 at the Taipan Room, a nightclub in Northbridge.
On 30 September 2002, the appellant and Mr Simion committed the offences at the Bayswater Hotel.
On 8 October 2002, in addition to being arrested and charged with the Taipan Room offences, the appellant was arrested and charged with two counts of carrying a firearm whilst not licensed, one count of possession of unlicensed ammunition, one count of possession of a contrivance known as a silencer, one count of possession of a prohibited drug (cannabis) and one count of possession of a smoking utensil.
On 9 October 2002, the appellant was remanded in custody.
On 8 November 2002, the appellant was charged with the Bayswater Hotel offences.
On 14 November 2002, the appellant's parole in relation to the 1997 sentence was suspended.
On 12 December 2003, the appellant was sentenced, following his conviction after a trial in the District Court before Jenkins DCJ and a jury, on both of the Taipan Room charges. He received a total effective sentence of 3 years 4 months' immediate imprisonment. The sentence was backdated to 6 October 2003.
On 16 December 2003, the appellant was sentenced, following his conviction in the Magistrates Court, on the firearms and drug related offences with which he was charged on 8 October 2002. He received a total effective sentence of 3 months' immediate imprisonment. This sentence was ordered to be served concurrently with the sentence he was then serving for the Taipan Room offences.
Also on 16 December 2003, the appellant's parole in relation to the 1997 sentence was cancelled with effect from 8 October 2002.
On 10 June 2004, the appellant escaped from legal custody. He was recaptured two days later.
On 8 August 2005, an appeal by the appellant against his conviction for the Taipan Room offences was allowed. This court quashed the convictions and ordered a new trial. See Nicolaides v The Queen [2005] WASCA 186. Later, the Director of Public Prosecutions (WA) decided not to retry the appellant.
The trial of the Bayswater Hotel offences occupied the period from 17 October 2005 to 25 November 2005. This was the third trial for these offences. Two earlier trials had been aborted.
On 24 November 2005, the primary judge imposed the total effective sentence of 9 months' immediate imprisonment for the contempt offences.
On 9 February 2006, the primary judge imposed the total effective sentence of 8 years' imprisonment, without parole, for the Bayswater Hotel offences, and ordered that this total effective sentence commence at the expiration of 6 months of the total effective sentence for the contempt offences.
As at 9 February 2006, the appellant 'owed' 339 breach of parole days in respect of the 1997 sentence (ts 6338).
On 13 March 2006, the appellant was sentenced in the District Court to 2 years' immediate imprisonment, without parole, for the offence of escaping from legal custody, which he committed on 10 June 2004. He was also sentenced to 6 months' immediate imprisonment for the offence of stealing a motor vehicle with violence, which he committed on the day he escaped from legal custody. The sentencing judge, HH Jackson DCJ, ordered that both sentences be served concurrently with each other and concurrently with the sentences the appellant was then serving, except for 3 months of the sentence for escaping from legal custody which his Honour ordered be served cumulatively (ts 521).
The appellant has completed serving the breach of parole days he 'owed'.
The appellant will complete his outstanding sentences, including the sentences the subject of this application, and be released from custody on 23 August 2014.
The appellant's application relates to the primary judge's sentencing decision made on 9 February 2006. Plainly, in considering whether the primary judge made the error of law alleged in the proposed ground of appeal (that is, whether the overall total effective sentence infringed the first limb of the totality principle) later sentences imposed on the appellant for other offences are irrelevant.
His Honour considered that the breach of parole was triggered by the appellant's conviction on the firearms and drug related offences (ts 6325). It is important to appreciate that, irrespective of which conviction triggered the breach of parole, the primary judge ordered that the total effective sentence of 8 years' imprisonment for the Bayswater Hotel offences be served concurrently with all other subsisting terms of imprisonment, except for 6 months' of the total effective sentence for the contempt offences (which was to be served cumulatively), but including the balance of the breach of parole days he still 'owed' in respect of the 1997 sentence.
For the reasons I give in considering particular 1.5 and in considering the merits of the proposed ground, the allegation in particular 1.2 is not reasonably arguable.
The proposed ground of appeal: particular 1.3
Particular 1.3 of the proposed ground alleges that the overall total effective sentence infringed the first limb of the totality principle in that the total effective sentence for the contempt of court offences was 'effectively made wholly cumulative on' the total effective sentence for the aggravated armed robbery and related offences.
The total effective sentence of 8 years' imprisonment for the Bayswater Hotel offences was made partly cumulative upon the total effective sentence of 9 months' imprisonment for the contempt offences. The period of accumulation was 6 months. This accumulation was necessary in order properly to mark and punish the appellant for his serious misbehaviour during the trial before the primary judge. As his Honour observed in his sentencing remarks, the three contempt offences were representative of the appellant's course of conduct throughout the trial. The appellant engaged in numerous episodes of serious misbehaviour (apart from those with which he was charged) which either disrupted the trial or had a tendency to interfere with the course of justice. Some but not all of the episodes were recorded on transcript (ts 6272).
The allegation in particular 1.3 is not reasonably arguable.
The proposed ground of appeal: particular 1.4
Particular 1.4 of the proposed ground alleges that the overall total effective sentence infringed the first limb of the totality principle in that Mr Simion received a total effective sentence of 7 years' imprisonment for the aggravated armed robbery and related offences, which was backdated to 'at least 7 July 2003'. As I have mentioned, particular 1.4 appears, erroneously, to rely on a breach of the parity principle as an aspect of the alleged infringement of the totality principle. I will, however, treat particular 1.4 as a separate complaint about the disparity between Mr Simion's sentencing disposition and the appellant's sentencing disposition.
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co-offenders:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but 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 (609).
The object of the principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe (610) (Gibbs CJ), (613) (Mason J), (623 - 624) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] ‑ [32] (French CJ, Crennan & Kiefel JJ). The applicable test is objective not subjective. See R v Pan [2005] NSWCCA 114 [34] (Johnson J, Giles JA & Hoeben J agreeing); Green [31]. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
In the present case, the primary judge sentenced Mr Simion on 3 February 2006, imposing individual terms of immediate imprisonment of 6 years for count 2, 3 years for count 3, and 1 year for count 4. His Honour ordered that the sentence for count 3 commence at the expiration of 4 years of the sentence for count 2. The total effective sentence was therefore 7 years' imprisonment. A parole eligibility order was made. At the sentencing hearing, his Honour reserved for further consideration the question of whether the total effective sentence should be backdated to 7 July 2003 or 31 March 2003 (ts 6322). In the event, it was backdated to 7 July 2003.
It is not reasonably arguable that the total effective sentence of 8 years' imprisonment imposed on the appellant infringed the parity principle. Numerous objective factors required the imposition of a lesser total effective sentence on Mr Simion. First, Mr Simion was acquitted on count 1. Secondly, the aggravating circumstance of the 'threat to kill' made by the appellant to Mr Letizia was not proved against Mr Simion. Thirdly, the primary judge found that the appellant was more culpable than Mr Simion in that the appellant was the mastermind of the Bayswater Hotel offences (ts 6320 ‑ 6321). Further, Mr Simion did not comply with the appellant's instruction to strike Mr Ciraulo with the baseball bat (ts 6317). Fourthly, after he was convicted, Mr Simion, unlike the appellant, admitted his guilt and evinced some remorse (ts 6321). Fifthly, although Mr Simion had a bad prior criminal record, the appellant's was worse. Sixthly, Mr Simion's personal conduct during the trial was exemplary compared to the appellant's (ts 6321).
The proposed ground of appeal: particular 1.5
Particular 1.5 of the proposed ground alleges, in substance, that the overall total effective sentence infringed the first limb of the totality principle in that:
(a)on 16 December 2003, the appellant was sentenced in the Magistrates Court to only 3 months' immediate imprisonment on the firearms and drug related offences with which he was charged on 8 October 2002;
(b)this term of 3 months was ordered to be served concurrently with the sentence of 3 years 4 months' immediate imprisonment imposed in the District Court on 12 December 2003 for the Taipan Room offences;
(c)on 8 August 2005, this court quashed the appellant's conviction for the Taipan Room offences and ordered a new trial, but the Director of Public Prosecutions did not proceed with the retrial; and
(d)the 3‑month term of imprisonment imposed in the Magistrates Court triggered the appellant's breach of parole in respect of the 1997 sentence.
Counsel for the appellant made the following written submission:
The ramifications of the 3 month term of imprisonment for the firearm offences were severe, because the learned sentencing judge found this to be the trigger for the breach of parole, [T 6325] causing the Appellant to serve breach of parole days and preventing the Appellant from the opportunity to have his sentenced [sic] backdated to the full extent allowable pursuant to s 87 of the Sentencing Act 1995.
Although the learned sentencing judge indicated that he [sic] would be his intention to backdate, to the extent that is possible within the provisions of s 87 of the Act, [T 6292] he found that he could only backdate with respect to 78 days [T 6341].
It is not apparent, from the papers filed in support of the appellant's application, when the Director of Public Prosecutions decided not to retry him on the Taipan Room charges. This point is not, however, of any significance for the purposes of particular 1.5.
Where an offence is committed after serving time in custody in respect of a charge upon which the offender is subsequently acquitted, there is ordinarily no reason to take the prior period of custody into account so as to reduce the sentence imposed for the current offence. See Narkle v Hamilton [2008] WASCA 31 [43] (Steytler P, McLure & Buss JJA); Smith v The State of Western Australia [2012] WASCA 91 [25] (McLure P, Buss & Newnes JJA).
In the present case, the appellant was not acquitted on the Taipan Room charges. His convictions were quashed but a new trial was ordered. The observations in Narkle and Smith therefore apply with even greater force.
The primary judge was not bound, in fixing the sentences for the Bayswater Hotel offences, to discount those sentences for the time the appellant had spent in custody in relation to the Taipan Room charges.
Further, his Honour was not bound, in fixing the sentences for the Bayswater Hotel offences, to discount those sentences to reflect the fact that the appellant 'owed', and had already served some of, the breach of parole days relating to the 1997 sentence as a result of his having committed the firearms and drug related offences for which he was sentenced in the Magistrates Court on 16 December 2003.
The time spent in custody by the appellant as a result of the Taipan Room charges was, at least to a substantial extent, served concurrently with some of the breach of parole days he 'owed'.
The firearms and drug related offences which resulted in a breach of the appellant's parole in relation to the 1997 sentence and his having to serve the breach of parole days he 'owed' in respect of that sentence were, in the context of the appellant's prior criminal record, serious matters. When the appellant was arrested and charged on 8 October 2002 for the firearms and drug related offences, he had, on 30 September 2002, committed the Bayswater Hotel offences. Also, at that time he had eight prior convictions for robbery and seven of them had been committed while armed. The firearms and drug related offences included, relevantly, two counts of carrying a firearm whilst not licensed, one count of possession of unlicensed ammunition and one count of possession of a contrivance known as a silencer. The sentence of 3 months' imprisonment for these offences was lenient. The leniency was, no doubt, attributable to totality considerations.
In any event, it was a matter for the Parole Board to determine whether and, if so, when the appellant should again be released on parole in relation to the 1997 sentence.
It is not reasonably arguable that the primary judge made an error in failing to discount the total effective sentence of 8 years' imprisonment for the Bayswater Hotel offences, either on account of the time the appellant had spent in custody as a result of the Taipan Room charges or on account of the breach of his parole in relation to the 1997 sentence having been triggered by the firearms and drug related offences.
Further, for the reasons I give when considering the merits of the proposed ground, the overall total effective sentence imposed by the primary judge did not infringe the first limb of the totality principle.
The merits of the proposed ground of appeal
The appellant was the mastermind of the Bayswater Hotel offences. He executed a brazen and reckless plan with ruthlessness. The plan involved intimidating and subjugating a large number of people in the hotel. They were extremely vulnerable. The appellant carried a loaded handgun and Mr Simion wielded a baseball bat. They wore disguises. The offences were not committed impulsively. There was substantial premeditation. The offending was extremely serious.
After Mr Simion failed to comply with the appellant's instruction to strike Mr Ciraulo with the baseball bat, the appellant used the loaded handgun to fire a bullet along the hotel bar in the vicinity of a number of patrons. It was fortuitous that no‑one was hit by the bullet. Later, the appellant terrorised the bar manager by holding the loaded handgun to the manager's head and threatening to kill him. The bar manager suffered severe and ongoing psychological trauma as a result of this incident.
The decision of the appellant to continue unlawfully to detain the bar manager in his motor vehicle, after the manager had surrendered the keys to the vehicle, was a callous and gratuitous act.
The appellant committed the Bayswater Hotel offences while he was on parole and in breach of his conditional bail in relation to other charges. These aggravating factors demonstrated a contempt for the law. Personal deterrence was an important sentencing consideration.
The appellant had an appalling prior criminal record. As I have mentioned, his previous convictions included eight prior robberies, two of which were committed while in company and seven while armed.
Between October 2002 and 9 February 2006 (when he was sentenced by the primary judge), the appellant had been dealt with for 23 prison charges relating to illicit drugs.
The appellant evinced no remorse or contrition. He continued to deny his criminal conduct.
The appellant did not have the benefit of the mitigation that a plea of guilty would have brought. Indeed, his extremely serious offending was not ameliorated by any mitigating factors.
The appellant had an entrenched history of illicit drug abuse. His prospects of rehabilitation were, to say the least, poor.
The appellant's criminal history (notably, the numerous robberies he had committed) showed that crime was his chosen career. He manifested, in his commission of the Bayswater Hotel offences, a continuing attitude of disobedience of the law. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 ‑ 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Although the appellant could not be (and was not being) punished again for past criminal behaviour, his prior record reflected on his moral culpability for the Bayswater Hotel offences. It also showed that these offences were not an uncharacteristic aberration.
In the circumstances, and after having regard to the matters raised in the particulars of the proposed ground of appeal, the overall total effective sentence was appropriate. It bore a proper relationship to the overall criminality involved in all of the offences in question (including those in respect of which the appellant had served, was still serving or had yet to serve a term or terms of imprisonment), viewed in their entirety, having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in comparable cases.
Some accumulation of the individual sentences for the Bayswater Hotel offences, and some accumulation of the total effective sentence for those offences and the total effective sentence for the contempt offences, was required in order to satisfy all relevant sentencing principles.
The overall total effective sentence was not disproportionate to the appellant's overall offending, and it did not infringe the first limb of the totality principle, either directly or by analogy. Further, it cannot reasonably be said that the appellant was left without any reasonable prospect of useful life after his release.
The proposed ground of appeal has no reasonable prospect of success.
The appellant's delay in making application for leave to appeal against sentence
The appellant filed his appeal notice, seeking an extension of time to appeal, and leave to appeal, against sentence, more than six years after the last date for appealing.
In his affidavit sworn 28 March 2012, the appellant deposes, in the context of his appeal against conviction, which was commenced within time:
I was confident of winning the appeal against conviction, so I saw no need to appeal the sentence, because in my mind, if the conviction appeal was successful, then any sentence would automatically fall away [12].
The appellant was represented by senior and junior counsel in his appeal against conviction.
The appellant also deposes that he did not consider appealing against his sentence until after 18 April 2008, when the High Court dismissed his application for special leave to appeal against his conviction. See Nicolaides v The State of Western Australia [2008] HCATrans 163. According to the appellant:
I [then] turned my attention to the sentence which seemed to me to be quite excessive, considering I had been in prison since 9 October 2002 and did not have a release date until May 2014, a sentence of over 11 1/2 years for one armed robbery and the offences associated with it [16].
The court's power to extend time to appeal against sentence is broad and flexible. Its purpose is to enable the court to achieve justice in the particular case. However, the achievement of justice in the particular case is not confined to justice from the appellant's perspective. There is a public interest in compliance with the time limit for appealing.
Although the appellant has given an explanation for his extraordinary delay, the explanation is not satisfactory. No cogent and substantial
reason exists for granting an extension. A miscarriage of justice will not occur if an extension is not granted.
Conclusion
I would, for two separate and discrete reasons, dismiss the appellant's application for an extension of time to appeal, and leave to appeal, against sentence. First, the proposed ground of appeal is without merit. Secondly, the appellant's delay is extraordinary, his explanation for the delay is not satisfactory and no miscarriage of justice will occur if an extension is not granted.
MAZZA JA: I agree with Buss JA.
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