O'bryan v The State of Western Australia
[2005] WASCA 43
•11 MARCH 2005
O'BRYAN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 43 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:117/2004 | 3 FEBRUARY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 11/03/05 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | ROBERT MATHEW O'BRYAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentence Application for leave to appeal Series of offences committed in breach of community based orders Totality Factual circumstances Unresolved conflict between prosecution and defence Sentencing Judge sentencing on view adverse to applicant |
Legislation: | Nil |
Case References: | Cameron v The Queen (2002) 209 CLR 339 Cameron v The Queen (2004) 142 A Crim R 424 Jarvis v The Queen (1993) 20 WAR 201 Langridge v The Queen (1996) 17 WAR 346 Magee v The Queen [1980] WAR 117 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 Verschuren v The Queen (1997) 17 WAR 467 Gavin v The Queen (1992) 6 WAR 195 Jensen v The Queen (1991) 52 A Crim R 279 R v Bradley [1979] 2 NZLR 262 R v Everett (1994) 73 A Crim R 550 R v Grein [1989] WAR 178 R v Stickland [1989] 3 NZLR 47 Rafferty v The Queen (2002) 135 A Crim R 282 Ryan v The Queen (2001) 206 CLR 267 Wong v The Queen (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'BRYAN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 43 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 173 of 2003
Catchwords:
Criminal law - Sentence - Application for leave to appeal - Series of offences committed in breach of community based orders - Totality - Factual circumstances - Unresolved conflict between prosecution and defence - Sentencing Judge sentencing on view adverse to applicant
(Page 2)
Legislation:
Nil
Result:
Application for leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Applicant : In person
Respondent : Mr S E Stone & Mr C G Astill
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 209 CLR 339
Cameron v The Queen (2004) 142 A Crim R 424
Jarvis v The Queen (1993) 20 WAR 201
Langridge v The Queen (1996) 17 WAR 346
Magee v The Queen [1980] WAR 117
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
Verschuren v The Queen (1997) 17 WAR 467
Case(s) also cited:
Gavin v The Queen (1992) 6 WAR 195
Jensen v The Queen (1991) 52 A Crim R 279
R v Bradley [1979] 2 NZLR 262
(Page 3)
R v Everett (1994) 73 A Crim R 550
R v Grein [1989] WAR 178
R v Stickland [1989] 3 NZLR 47
Rafferty v The Queen (2002) 135 A Crim R 282
Ryan v The Queen (2001) 206 CLR 267
Wong v The Queen (2001) 207 CLR 584
(Page 4)
1 STEYTLER P: I have had the advantage of reading the judgment of Roberts-Smith JA. I agree with it and with his Honour's conclusions. There is nothing I wish to add.
2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons, and with the orders his Honour proposes.
3 ROBERTS-SMITH JA: This is an application for extension of time for leave to appeal against sentence and an application for leave to so appeal.
4 Here the application for leave to appeal against sentence was filed almost 12 months after the date of sentence. That is substantially outside the time limit of 21 days stipulated in s 695(1) of the Criminal Code.
5 The greater the application is out of time the more cogent will the applicant's reasons for the delay have to be. More importantly though, this Court will not ordinarily grant a substantial extension of time unless satisfied the appeal will probably succeed and there would be a miscarriage of justice if the extension were not granted (Cameron v The Queen (2004) 142 A Crim R 424 at [28]). That of course necessitates examination of the grounds of appeal.
6 The applicant's reasons for the delay are set out in his affidavit sworn 2 July 2004. They are expressed very briefly as follows:
"3. This is my first term of imprisonment, and I was not aware of the restrictive time limits after sentencing. Nor was I advised of the correct procedures for lodging or conducting an appeal.
4. It has taken me months to obtain a professional legal opinion on the merits, and likely success of an appeal. Having now been advised that there is merit for an appeal I wish to proceed …
5. I am an unrepresented applicant. As such I will be reliant on the resources within the prison to research and document my appeal".
7 In his notice of application for extension of time the applicant notes that he is an unrepresented applicant, having been denied funding for an appeal by Legal Aid. He explains that this being his first time in prison,
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- he was not made aware of the time limits nor the correct process required for lodging an appeal against sentence. He states that without funding it has taken months to obtain the legal opinion as to the merits of appeal and he was only recently advised there were grounds for an appeal.
8 These reasons are wholly inadequate. I acknowledge the obvious difficulties self-represented applicants confront, but on his own account the applicant has been in contact with Legal Aid. Basic legal advice is available without a grant of legal aid. Legal Aid (WA) also makes available on its website and at the prisons, information about criminal appeals, time limits and the requirements for application and appeal books. Many other prisoners in the same position as the applicant are able to obtain the necessary information and to institute their appeals or applications. There is nothing in the applicant's expressed reasons which in themselves justify an extension of time.
9 I turn to a consideration of the grounds of appeal. They are to be looked at against the background of the offences committed and the actual sentences imposed, which resulted in an aggregate term of 9 years' imprisonment. Those were:
| Offence | Maximum Penalty | Cumulative/ Concurrent |
2 years |
| 7 years |
|
2 years |
| 20 years |
|
2 years |
| 20 years |
|
9 months |
| 7 years |
|
9 months |
| $2,000 and/or 2 years |
|
5 years |
| Life Imprisonment |
|
(Page 6)
3 months + 6 months MDL disqualification |
| $1000 or 9 months 6 months MDL disqualification |
|
3 months |
| $500 or 6 months |
|
1 year |
| 8 years |
|
$150 |
| $300 | |
$450 |
| $1,500 | |
1 year |
| 7 years |
|
10 The grounds of appeal are that:
1. The sentence was manifestly excessive in all the circumstances;
2. There was insufficient discount for early pleas of guilty;
3. The sentences offend the totality principle;
4. Disparity in sentencing co-offenders, and
5. The sentence was not commensurate with sentences imposed on comparable offenders.
11 At the hearing before Murray J on 1 August 2003, the Crown Prosecutor conveniently summarised the facts of the offences in chronological order. He began with the offences of stealing and possessing dexamphetamine tablets on 29 December 2002 and concluded with the offences of aggravated burglary on 28 February 2002.
12 About 8.15 pm on Sunday 29 December 2002 the applicant drove a blue Holden Commodore sedan along Lewis Road, Kalamunda. He was stopped for other reasons and as a result the vehicle he was driving was then taken to the Kalamunda police station where a subsequent search of it located a pair of Ariel sunglasses, a Fuller spanner, a Hyde scraper, a Maglight torch, a Stanley knife, a screwdriver, a Hanimex camera, a telescope, duct tape, some aftershave, and a packet of Winfield cigarettes, all to a total value of some $100. The items were seized by police and
(Page 7)
- following inquiries it was found they had been stolen from the complainant's white Ford Falcon.
13 That Falcon was a utility which had been stolen from the Kalamunda Hotel at 7.40 pm the same evening and abandoned 30 minutes later on the same road upon which the applicant was stopped by police.
14 While the applicant was in police custody at the Kalamunda police station he was searched and was found to be in possession of a plastic container containing 100 dexamphetamine tablets. The container had been concealed in the applicant's right pocket. He told the police that he had found the container and was going to keep the tablets. He told them he knew dexamphetamine was a prescription drug and that it was illegal to have that drug without a prescription. He was charged and released to bail.
15 A few days later, on Friday 3 January 2003, he attended the Midland police station and participated in a video record of interview in which he was asked about the property that had been stolen from the utility. He denied stealing the property, effectively claiming that he knew nothing about it. Nonetheless he was charged with that and again released to bail.
16 At this time the applicant was already the subject of two 12 month community based orders imposed by her Honour Judge French on 8 August 2002.
17 About 10 pm on Saturday 25 January 2003 the applicant and his co-accused stole a green Ford F100 utility from an address in Maylands. About 12.40 pm on Tuesday 28 January the two of them went to the rear of the Foodland supermarket at Williams Road, Beckenham with the intention of committing an armed robbery to obtain cash.
18 According to the facts outlined by the prosecutor, the applicant and his co-accused were armed with a pistol. They forced the rear doors of the business premises and while wearing balaclavas, threatened Mr Raymond Rose and his brother David, who were 55 and 57 years of age respectively. The prosecutor stated that during the course of the robbery the applicant forced Mr David Rose onto the floor and maintained a watch on him. At the same time, the co-accused, in possession of the handgun, forced Mr Raymond Rose to a safe in the rear of the store and demanded that it be opened, threatening to shoot if he did not comply with the demands for money.
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19 Mr Rose opened the safe and handed over nearly $19,000 in cash, which the co-offender placed in a bag. The applicant and his co-offender fled from the store together, returning to the green Ford that had previously been parked at the rear of the store and the applicant then drove to the vicinity of Lunar Way, Beckenham where the vehicle was abandoned. It was later recovered by police.
20 The applicant and his co-offender ran to Wickens Street, Beckenham where another co-offender was waiting to collect them in a Ford Falcon.
21 Following police investigations the pistol used in the commission of the offence was located and a forensic examination of the vehicle revealed a latent fingerprint of the applicant. He was not interviewed until 16 April 2003 in relation to that matter. At that time he made full admissions, saying he had split the proceeds of the offence with his co-offender and that he had received $8,500.
22 About 8 am on Thursday 30 January 2003, a Ms Faye Councillor parked and locked her Ford Falcon in the car park in Raleigh Street in Carlisle. When she returned about 1 pm she found the vehicle had been stolen.
23 About 1.03 am on Friday 31 January 2003 the applicant was driving the vehicle in a southerly direction in Munday Road in High Wycombe when he was seen by police. They activated the emergency lights and siren on the police car in an endeavour to make the applicant stop, but he immediately turned left in Macao Road and accelerated heavily.
24 That resulted in the first charge of failing to stop when called upon.
25 Having turned left into Macao Road and accelerated heavily, the applicant turned right into Marshall Road, which is a built-up area, accelerating to 110 kms per hour. He then turned left into Sorensen Road and left again into Newburn Road, left then into Smith Crescent and then right into Marshall Road and then left again into Otway Crescent. He completed a full loop of Otway Crescent and then turned left into Marshall Road and left into O'Connell Way.
26 Throughout that pursuit he drove at high speed and erratically in such a way as to cause the wheels of his vehicle to lock up when negotiating most corners. That made smoke come from the rear of the tyres. He lost control of the vehicle temporarily. He entered O'Connell Way on the corner, cut across the front lawn of a house, kicking up dust and rock and on the second corner cut across onto the incorrect side of the
(Page 9)
- road and onto the verge again throwing up dust and rocks. He eventually attempted to stop the vehicle on the front verge of a house and jumped out of the vehicle in an attempt to evade the police, leaving the vehicle in gear, causing it to roll forward into a fence which was damaged. He ran from the scene on foot with police in pursuit and calling on him to stop. He hid in a garden where he was later discovered with the use of a police dog, and arrested. When searched, a dipstick adapted to car stealing and a toggle switch were located in his trouser pocket.
27 About 9.40 am on Friday 7 February 2003 the applicant was at his house at Wittenoom Road in High Wycombe when police attended to execute a search warrant in relation to another matter.
28 During the course of the search they found a Honda motor cycle valued at $30,000 parked in the hallway inside the applicant's house near the front door. The registration plate had been removed. Police officers found the registration plate in the applicant's vehicle parked in the front driveway. Further police inquiries revealed that the motor cycle had been stolen at a car park at Mindarie Keys at 5.30 am on Sunday 2 February 2003. It had been secured to a pole by a chain.
29 The applicant took part in another video record of interview with police, in the course of which he told them he had bought the motor cycle at Maylands for $700 the day after it had been stolen. He admitted knowing it had been stolen when he had purchased it.
30 In relation to the charge of receiving jewellery in respect of which a community based order had been imposed by Judge French on 8 August, sometime between 25 and 27 February the applicant purchased some $10,000 worth of jewellery knowing it was stolen when he did so. That jewellery was returned to the complainant.
31 There was also a charge of aggravated burglary with intent in respect of which the second community based order was imposed. As to that, about 2.18 am on 28 February 2002 the applicant and others went to the Kingsway Shopping Centre in a white Mitsubishi Pajero. They gained entry to the premises by smashing the plate glass window. Once inside the centre, the applicant made his way to Zamel's jewellery store with the intention of committing a burglary, which is what they did. The applicant and his co-offenders smashed a window gaining entry to the premises and once inside the shop stole various watches to the value of $5000 from the display cabinets. The offenders were found by cleaners and chased from
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- the premises, leaving the Pajero at the scene. They fled into the bush. Property from that burglary was found at the applicant's residence.
32 The applicant was arrested on 6 March 2002 and taken to the Joondalup police station where, in a police video record of interview, he made full admissions. $800 worth of jewellery was returned to the complainant.
33 Mr Rebbeck, who appeared for the applicant before Murray J, conceded at the outset that the appropriate sentence was an immediate term of imprisonment. He submitted there might be an issue whether any re-sentence on the District Court community based order offences should be concurrent or cumulative. The defence accepted that the offences could very easily as a matter of law attract cumulative terms, although it was submitted that exercise might be overpowered to some extent by the totality principle, which was ultimately a matter for his Honour.
34 It was put to his Honour that in November 2002 the applicant's former partner of over four years had left him with their 3-year-old daughter to live with her father because of problems with their personal relationship. By early December 2002 the applicant was living by himself in their mortgaged home. About that time he fell into the company of his co-offender who was a friend of a friend. He and others were "hanging around" the applicant almost daily because in early December the applicant had obtained $8000 worth of amphetamine on credit and was sharing it with them. It ran out about one week prior to the robbery. By that time the applicant was under pressure by the supplier to pay. That was essentially his motivation for the offences.
35 The circumstances of the offences were put to the learned sentencing Judge by Mr Rebbeck in the following way.
36 In relation to the Foodland supermarket offence on 28 January 2003, the co-offenders arrived at the applicant's home in the stolen Falcon station wagon and told him to get in the car to "do a job". They told him about it on the way. He was given a balaclava and told that he was to keep watch on things. There was no mention of the use of a gun.
37 When they arrived at the supermarket the applicant went in the front to look around as they had discussed. That took a matter of minutes. The others drove around the back and parked. By the time the applicant had got to the back, the principal co-offender had knocked on the door, which had been opened and he had forced his way in. The applicant entered shortly thereafter to find a man already lying on the floor (at the hearing
(Page 11)
- of the appeal the applicant said that when he entered the man was against a wall and was already sliding to the floor obviously suffering some kind of illness). The primary co-offender was heading into another room with the second man.
38 The man on the floor was clutching his chest and the applicant thought he was having a heart attack so he stayed beside him holding his hand and reminding him to breathe, telling him they were not there to hurt anybody and were only interested in money. He did not himself threaten anybody and was not himself armed.
39 The co-offender then ran out from the other room with the money and it was only when the applicant saw the second man come from the office that he too left. Counsel told his Honour that the applicant wished to be sure that if an ambulance had to be called for the man on the floor, there was someone else there to do that.
40 It was put to his Honour that the applicant received $8500 from the robbery of which $8000 went immediately to the drug supplier.
41 For present purposes it is unnecessary for me to canvass any further details of the other offences, nor indeed, of the applicant's personal circumstances or background.
42 The applicant has filed a very comprehensive and well presented outline of submissions, which really has, I think, advanced every argument that could properly be put. I am obliged to say the quality of that outline is excellent and indeed better than many which are presented to this Court even by experienced counsel.
43 In broad terms, the applicant's submissions are that the learned sentencing Judge imposed an aggregate sentence that, in all the circumstances, was so excessive as to manifest error. The error, it is suggested, involved a failure to adequately consider the totality principle, comparative sentencing for like offenders and insufficient recognition of matters of mitigation.
44 There is no doubt about the principle of totality as it applies to sentencing. It requires that the overall or aggregate sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with.
45 In Mill v The Queen (1988) 166 CLR 59 at 62 - 63 the High Court said:
(Page 12)
- "The totality principle is a recognised principle of sentencing formulated to assist a court where sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-7 as follows (omitting references):
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; "when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".'
When the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
46 The rationale underlying the principle was articulated by Wickham J (with whom Burt CJ and Wallace J agreed) in Magee v The Queen [1980] WAR 117 at 119:
"… is longer than is necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest. In addition to the matter of public expense, one of the purposes of sentencing might be frustrated in that the offender might come out of prison worse
(Page 13)
- than he went in and thus be more likely rather than less likely to be a continuing community problem.
I have many times repeated in one form or another what I said on 19 March 1973 in Thomson v R (CCA No 45 of 1972, unreported) and I repeat it yet again:-
'In the area of sentencing, enough to meet all the various considerations is enough. More than enough is wrong because the excess is not only purposeless but might be harmful in that the prisoner might become hopeless, aggressive or otherwise intractable, and thus one of the purposes of punishment will be defeated through making it more rather than less likely that he will eventually offend again.
…
I am mindful of persuasive authority which warns a sentencing judge against being "weakly merciful" but in sentencing in a particular case it is also necessary not to be "weakly severe", which latter mistake is as easy to make as the former.
Indeed the problem does not involve questions of leniency or severity, or any other abstract notion, but a hard-headed attempt to work out a sentence which in all its aspects is most likely "in the long run" to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending.'
I have not since found any persuasive or binding authority to suggest to me that those views are wrong. I adhere to them, although I have since concluded that a slight modification is necessary because I now think that the public demand for retribution, at least in some quarters, is stronger than I once thought."
47 The applicant submits that an aggregate sentence arrived at by simply adding the individual sentences will invariably be too long, not because of abstract notions of exponentiality, but because the quantity of years in the sentence, is more than is fairly necessary to achieve the purposes of punishment.
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48 It was the applicant's submission that his Honour did not consider the exponential effect of imposing three consecutive cumulative sentences on top of the first sentence. The submission was founded upon the notion explained by Ipp J and to which Murray J expressly referred in Jarvis v The Queen (1993) 20 WAR 201 at 213:
"And so it is in my opinion, that where there is a multiplicity of offences and sentences to be passed, the totality of the sentence must be proportionate to the totality of the criminal behaviour involved, whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must at the one time serve the sentences. In that regard, I would with respect expressly concur in the view of Ipp J that the explanation for the fact that to apply the totality principle in such circumstances will generally effect a reduction in the total term, is to be found in the fact that 'the severity of a term of imprisonment increases exponentially as it increases in length'."
49 At this point it is necessary to look at what the learned sentencing Judge actually did and why he did it.
50 His Honour noted that the applicant had committed a series of offences including some of very considerable seriousness over an extended period of time, although at the commencement of that activity he was a person of good character and still relatively young. Notwithstanding the necessity to recognise the mitigatory factors as much as possible, the court had a responsibility to recognise the seriousness of the offending and he imposed penalties appropriate to that. His Honour noted that all of the offences, with the exception of those committed in February 2002, had been committed in breach of community based orders and that the applicant's performance under those orders had in itself been unsatisfactory.
51 His Honour reiterated that some of the offences had been committed whilst the applicant was on bail and were serious in themselves. In his Honour's view, the robbery offence was one of particular seriousness. It is apparent that he regarded that as the offence which ought to attract a sentence which would be the foundation of the overall accumulation of sentences.
52 As to that his Honour said (AB 49):
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- "I'm prepared to accept that you may not have been aware of the pistol, the imitation or replica, until your co-offender produced it at the outset of the robbery, but you continued to lend your aid to the process by your presence and encouragement by your activity, despite the fact that you knew that that weapon was being used or that pretend weapon was being used to put Mr Rose and his brother in fear, to make them comply with your demands and all of that you continued with, despite the fact that one of those involved as your victims had been put into a considerable state of physical distress." (My emphasis)
53 At AB 50 his Honour said that he took that generally put view of the circumstances of the robbery "subject to matters of totality" and subject to the fact that the principal co-offender played a very much more active role in the commission of the offence than did the applicant.
54 His Honour then turned to the facts of the other offences and in particular that relating to the series commencing on 31 January with the theft of Ms Councillor's motor vehicle and the subsequent "most extraordinary chase" which had great potential for harm to other innocent persons.
55 The learned sentencing Judge referred to the pre-sentence report and then added (at AB 51) that having tried to indicate something of the seriousness with which the offences must be regarded:
"Individually many of them and certainly in their combination they require me to impose sentences which punish adequately, which are, in other words, proportionate to the gravity of the offending conduct. That is so because I think in your case there is a need for deterrence and a real lesson to be brought home to you."
56 His Honour then explained the need for general deterrence, acknowledging that against that had to be put the applicant's previous good character and his prospect of rehabilitation, which his Honour accepted had already been demonstrated. His Honour noted the applicant's attitude and the (positive) change was manifest by the fact that the applicant was quite remorseful and contrite, by his early pleas of guilty and the fast-tracking of the process which he said (AB 52):
"… will earn you very considerable discount of a total term that has to be imposed upon you as well as in relation to the individual terms for particular offences which I assure you
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- would have merited considerably greater punishment than I am proposing to impose were it not for the matters of mitigation to which I have referred …"
57 Proceeding to the imposition of sentence, his Honour imposed a sentence of 2 years' imprisonment in respect of the receiving of the Goldmark jewellery in February 2002. He noted that the two aggravated burglary offences committed on 28 February 2002 had nothing to do with that and might be allowed to run concurrently in themselves, but ought to be cumulative upon any other sentence that was imposed. But his Honour then went on to say that he had however taken the view - because he wanted to mark the major offending with cumulative terms - that he must "for totality reasons", sentence the applicant to concurrent terms of imprisonment with respect to those two aggravated burglary offences.
58 Passing then to the offences of 29 December 2002, namely stealing the various items of property from the motor car in Kalamunda and the possession of dexamphetamine, his Honour considered sentences of 9 months' imprisonment in respect of each were appropriate, but "again having regard to totality considerations" he made each of those run concurrently with the previous terms. That brought his Honour to the armed robbery committed on 28 January 2003, in respect of which he said, had it not been for the matters of mitigation to which he had referred and the lesser role which he accepted the applicant performed in the commission of the offence "subject to the limitations" he had mentioned, he would have felt compelled to impose for that very serious offence a much greater sentence. He imposed a term of 5 years' imprisonment, ordering that to be served cumulatively on the previous terms.
59 In relation to the aggravated theft with reckless driving of Ms Councillor's motor vehicle on 31 January 2003, his Honour said that was a serious offence and one which "warrants a greater penalty than I am about to impose upon you". His Honour said that again "solely for considerations of totality and having regard to the mitigatory circumstances personal to [the applicant]" he would impose a sentence of 1 year imprisonment but that had to be ordered to be served cumulatively.
60 His Honour then dealt with the various offences associated with a high speed chase. As to those his Honour said (AB 54):
"These must be separately recognised with appropriate punishment, but you will see as I do it that I'm not proposing - and again it's solely for totality reasons - that any of the
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- punishments I impose should have any impact upon the overall term of imprisonment". (Emphasis added).
61 His Honour ordered those terms of imprisonment to be served concurrently.
62 Finally, in relation to the receiving of the motor cycle on 7 February 2003, which his Honour regarded as quite an independent offence of some seriousness in itself, committed in circumstances which seemed to him to exacerbate that seriousness, was an offence which merited a much greater term than he was about to impose, namely 1 year imprisonment which his Honour ordered to be served cumulatively.
63 As I have observed the aggregate term was one of 9 years' imprisonment.
64 It is clear both from the particular sentences actually imposed and the remarks made by his Honour, that they were individually reduced both because of mitigatory factors and because of his Honour's appreciation of the need to apply the totality principle. I am satisfied his Honour had clearly in mind the need to impose sentences which were in themselves appropriate to the offences to which they related and also that the aggregate was "just and appropriate" with respect to the applicant's overall criminal conduct and not a crushing sentence having regard to his record and prospects (Postiglione v The Queen (1997) 189 CLR 295, 308, 340). Were it to be left at that I would see no reason to interfere with the sentences imposed.
65 What does concern me in relation to this however, is the basis upon which his Honour apparently sentenced the applicant in respect of the armed robbery offence committed on 28 January 2003.
66 Whilst his Honour acknowledged and accepted the applicant had played a lesser role than the principal co-offender, his remarks seemed to indicate that he sentenced on the basis of the facts as alleged by the prosecution which were however, in conflict with what had been put to his Honour by the applicant's counsel. The difference was material insofar as it impacted on the applicant's criminal culpability, but the point appears not to have been appreciated.
67 His Honour's remarks suggest he sentenced the applicant on the basis that he became aware of the (replica) pistol at the outset of the robbery and that he then continued to lend his aid by his presence and encouragement by his activity. The prosecution version was that the
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- pistol was produced prior to their entry into the premises which was achieved by the applicant and his co-offender forcing the rear doors and that the applicant forced Mr David Rose onto the floor and maintained a watch on him. What had been put to his Honour on behalf of the applicant was that by the time he got to the rear door, the co-offender had forced his way in and the applicant followed him to find a man already lying on the floor or at least already collapsing to it, and he then remained there to assist that man. On that account it is very difficult to see what actual activity the applicant engaged in from that point, going to his culpability, other than by his presence and subsequently running from the premises with his co-offender and sharing the proceeds.
68 The view his Honour took appears to me to involve a far more serious view of the applicant's criminality in those circumstances than would have been so on what had been put on behalf of the applicant. It made a difference to the sentence his Honour imposed. For his Honour to have acted on that view where it was contested by the applicant, his Honour would have to have specifically resolved it and he could not have found adversely to the applicant, unless satisfied of it beyond reasonable doubt (Langridge v The Queen (1996) 17 WAR 346). His Honour did not address the question, no doubt because the prosecution had not expressly challenged it, once raised. In that situation his Honour ought to have sentenced the applicant on the basis of the circumstances as presented by counsel for the applicant.
69 I move to the applicant's next submission. That was that his Honour failed to adequately reflect in his sentences, the principles behind the fast-track procedure and offenders having matters finalised pursuant to a s 32 notice.
70 As was explained in Verschuren v The Queen (1997) 17 WAR 467 at 484:
"The making of an early plea of guilt, and the participation of an offender in the fast track procedure of expedited committal is a relevant mitigating factor, because it reveals an acceptance of responsibility for the commission of the offence, a desire to bring proceedings to a conclusion as expeditiously as possible, with minimal adverse effect upon the victims of the offence/s and the publicly funded system of the administration of justice; as well as because it is an expression of genuine remorse and contrition."
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71 An offender who pleads by way of the fast track procedure will be given a substantial discount simply by reason of the assistance rendered to the system of the administration of criminal justice through the courts (Cameron v The Queen (2002) 209 CLR 339 at 343).
72 The applicant contends his Honour implicitly recognised his remorse and contrition, which factor he says, in combination with his early guilty pleas and the expedited administration of justice adds weight to the applicant's argument that the aggregate sentence is excessive.
73 The applicant does not say, and nor could he, that the learned sentencing Judge failed to have regard to these matters. The argument can only be that his Honour failed to give them sufficient weight in the circumstances. That is a very difficult argument on which to succeed on an appeal against a discretionary judgment, unless the end result is so much outside the range of a proper exercise of the sentencing discretion as necessarily to demonstrate error. In my view it is not.
74 But the applicant's submission here is rather more subtle than that.
75 As I understand the submission, it is that the approach taken by his Honour risked subverting the policy considerations underlying s 32 in as much as it would work as a disincentive. It is submitted that offenders are unlikely to use the s 32 procedures to have charges pending in Courts of Petty Sessions brought before superior courts for fear that they will receive much greater sentences than if the charges had remained in the Court of Petty Sessions.
76 I do not accept this submission. The sentencing discretion cannot be constrained in the way suggested by this submission. It cannot be the situation that sentences in respect of offences before the court by way of a s 32 notice must always be concurrent with other sentences then imposed. The quantum of the individual sentences will always have to be fixed on the basis of what is appropriate and proportionate to the circumstances of the individual offence and the circumstances of the offender. They will have to accommodate the ordinary sentencing principles, including that of totality, and reduction for mitigating factors such as the plea of guilty and the process of bringing the offending conduct before the court by way of a s 32 notice. The offender cannot necessarily expect to receive a sentence which does not have any additional cumulative component on what he would have received had the s 32 offences not been before the court. What the offender can often expect is that the sentence, either individually or in the aggregate, will be less than they would have been had they not
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- been put before the court in that way. That was the outcome for the applicant in this case. It is quite wrong to suggest that he was subjected to a "harsher" punishment for doing so.
77 The applicant next turns to his age and good character.
78 The applicant actually acknowledges it to be clear from his Honour's comments that he was of the impression that the applicant was a person of good character and expressed confidence in the prospects of his rehabilitation. The question of what weight to give those considerations was a matter entirely for his Honour.
79 Ground 4 raises the issue of disparity in the sentencing of co-offenders.
80 At the time the applicant was sentenced, his co-accused had entered pleas of not guilty and accordingly had not been sentenced. The issue of parity between co-offenders simply does not arise. As it happened, on 22 March 2004 the principal alleged co-offender, one Hiemstra, stood trial in the Supreme Court on charges of stealing a motor vehicle and stealing with violence whilst armed and was acquitted of both charges. The second alleged co-offender, one Jessica Downey, was remanded to appear for trial on 22 March 2004 but failed to appear. A bench warrant was issued for her arrest but she has yet to come back before the court.
81 As to the comparability of the applicant's sentences with those of offenders in other cases, the individual sentences are well within the general range of such sentences and indeed, at the lower end of that range because of the adjustments made by his Honour in regard to both the applicant's personal circumstances and mitigating factors and his accommodation of the need for proportionality overall.
82 It follows that the only error which has been demonstrated is that with respect to the aggravated armed robbery of the Foodland store in respect of which his Honour imposed a sentence of 5 years' imprisonment.
83 For the reasons given above, I consider his Honour's discretion with respect to that did miscarry and the appeal in relation to that sentence should be allowed. I should emphasise however, that had the applicant been aware of the use of the firearm earlier than he said and/or he had taken a physically active part in threatening or restraining the complainants or either of them, I would have seen no basis whatsoever upon which the sentence imposed by his Honour could be set aside.
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84 However, given that the sentence must be set aside, it would fall to this Court to re-sentence the applicant in relation to that offence. Making the necessary adjustment for the circumstances I have mentioned, a sentence of 4 years' imprisonment would be appropriate. That would produce an aggregate sentence of 8 years' imprisonment.
85 In resentencing the applicant this court is bound to apply the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 which have the effect of reducing, by one-third, a sentence calculated in accordance with the law before the amendment. I would therefore impose a sentence of 2 years' 8 months' imprisonment for the aggravated armed robbery offence, but would otherwise leave the orders made by the sentencing Judge undisturbed.
86 I would accordingly grant the application for extension of time, allow the appeal to the extent I have indicated and substitute a sentence of 2 years' 8 months imprisonment in respect of the aggravated armed robbery to be served cumulatively upon the sentences of 2 years' imprisonment imposed for the breaches of the District Court community based orders.
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