Pilling v The State of Western Australia
[2014] WASCA 146
•12 AUGUST 2014
PILLING -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 146 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:176/2013 | 1 JULY 2014 | |
| Coram: | McLURE P HALL J | 12/08/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW RYAN PILLING THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Armed robbery Whether psychiatric report should have been ordered Totality principle |
Legislation: | Nil |
Case References: | Carr v The State of Western Australia [2013] WASCA 192 Chadd v The State of Western Australia [2013] WASCA 99 Drury v The State of Western Australia [2010] WASCA 220 F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125 Forkin v The State of Western Australia [2013] WASCA 51 Gavin v The Queen (1992) 6 WAR 195 Gok v The Queen [2010] WASCA 185 Krijestorac v The State of Western Australia [2010] WASCA 35 McConkey v The State of Western Australia [2012] WASCA 45 Nannup v The State of Western Australia [2011] WASCA 257 Pelemis v The State of Western Australia [2009] WASCA 151 Robertson v The State of Western Australia [2009] WASCA 83 Samson v The State of Western Australia [2011] WASCA 173 The State of Western Australia v Drew [2012] WASCA 86 The State of Western Australia v Eades [2011] WASCA 157 Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 Topic v The State of Western Australia [2013] WASCA 157 Turnbull v The State of Western Australia [2013] WASCA 5 Wheeler v The Queen [No 2] [2010] WASCA 105 Wroth v The State of Western Australia [2013] WASCA 155 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PILLING -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 146 CORAM : McLURE P
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 12 of 2013
Catchwords:
Criminal law - Appeal against sentence - Armed robbery - Whether psychiatric report should have been ordered - Totality principle
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Not applicable
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Carr v The State of Western Australia [2013] WASCA 192
Chadd v The State of Western Australia [2013] WASCA 99
Drury v The State of Western Australia [2010] WASCA 220
F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125
Forkin v The State of Western Australia [2013] WASCA 51
Gavin v The Queen (1992) 6 WAR 195
Gok v The Queen [2010] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
McConkey v The State of Western Australia [2012] WASCA 45
Nannup v The State of Western Australia [2011] WASCA 257
Pelemis v The State of Western Australia [2009] WASCA 151
Robertson v The State of Western Australia [2009] WASCA 83
Samson v The State of Western Australia [2011] WASCA 173
The State of Western Australia v Drew [2012] WASCA 86
The State of Western Australia v Eades [2011] WASCA 157
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Topic v The State of Western Australia [2013] WASCA 157
Turnbull v The State of Western Australia [2013] WASCA 5
Wheeler v The Queen [No 2] [2010] WASCA 105
Wroth v The State of Western Australia [2013] WASCA 155
1 McLURE P: I agree with Hall J.
2 HALL J: This is an application for leave to appeal against sentence.
3 On 19 August 2013, the appellant was sentenced to a total effective sentence of 10 years' imprisonment following his pleas of guilty to seven charges of armed robbery and one charge of attempted armed robbery contrary to s 392 of the Criminal Code (WA). Four of the armed robbery offences were aggravated by being committed whilst the appellant was in company.
4 The sentences imposed on the individual counts were as follows:
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5 The sentencing judge ordered that counts 1, 3, 4 and 5 were to be served concurrently and that counts 6, 7, 8 and 9 were to be served concurrently, but that counts 5 and 8 were to be served cumulatively. His Honour ordered that the appellant be eligible for parole.
6 The ground of appeal is that the total effective sentence of 10 years infringed the first limb of the totality principle. That is, it is submitted that the sentence is disproportionate to the total criminality having regard to all the circumstances of the case, including those referable to the appellant personally. In his written submissions, the appellant asserts that the sentencing judge erred by failing to order a fresh psychiatric report and by taking into account older reports which did not correctly reflect his state of health at the time the offences were committed or at the time he came to be sentenced. He also submits that the sentencing hearing was unfair because he and his lawyer were given insufficient time to prepare.
The facts
7 At 3.15 pm on Wednesday 3 October 2012 the appellant entered a chemist store in Carlisle wearing a black balaclava. He approached the counter brandishing a large screwdriver and demanded that the two female staff members place cash from the till into a black shopping bag. He also demanded money from the safe and packets of Sudafed. He was told there was no safe and after receiving $2,000 in cash from the till, he left the store. He drove from the scene in a blue Lexcen sedan that was parked at the rear of the store. That conduct relates to count 1on the indictment. Count 2 was discontinued.
8 At 2.45 pm on Friday 12 October 2012 the appellant entered an Australia Post Office in Mount Hawthorn. He was wearing a black stocking over his face and yellow plastic gloves. He brandished a small black replica handgun and demanded cash from the staff. He then attempted to get behind the counter himself and in doing so knocked a female staff member out of the way. He continued to demand cash and grabbed it from the tills after staff members opened them for him. He then jumped over the counter and left the store, running away from the area on foot. A total of $250 in cash was stolen. That conduct constitutes count 3 on the indictment.
9 At 5.15 pm the following day, 13 October 2012, the appellant entered a Subway store in Stirling. He wore a windcheater with the hood over his head and held black material over his lower face and mouth. He was also wearing a black glove on his right hand. He was carrying a black replica handgun which he pointed at a male employee and demanded money from the till. The employee took cash from the till and placed it in a bag held by the appellant. The appellant then walked to a back room and demanded that a female employee get money for him from the safe. She opened the safe and handed him more cash. After telling staff members not to move, the appellant left the store. A total of $500 in cash was stolen. This conduct constitutes count 4 on the indictment.
10 At 4.25 pm on Wednesday 17 October 2012 the appellant entered a pharmacy in Joondanna wearing a cap, a dark coloured windcheater with the hood over his head, a black stocking over his head and face and a black glove on his left hand. He walked behind the counter and produced a small black replica handgun and demanded that a male staff member give him money from the till. The appellant then asked where the safe was and was told that there was no safe. He walked to some computers behind another counter, pointed his gun towards them (apparently thinking that they were tills) and asked for more money. He was told that there was no money. After being given $600 from the main till, he fled the premises and got into the passenger side of a blue Lexcen vehicle which was parked at the rear of the store. He was followed by an employee of the pharmacy who noted the registration number of the vehicle. The vehicle was driven off at speed by an unknown co-offender. This conduct constitutes count 5 on the indictment. Subsequent checks revealed that the car had been recently stolen from the Warwick train station.
11 At 5.40 pm on Saturday 20 October 2012 the appellant entered a Jesters Pies store on Main Street in Tuart Hill. He was wearing a black stocking over his face and carried a black replica handgun and a dark coloured bag. He walked behind the counter, pointed the gun at the head of the proprietor and demanded money. The male proprietor took approximately $1,500 from the till and placed it in the bag. The appellant then demanded money from the safe and was told that there was no safe. He then demanded money from the proprietor's pockets and was given a further $500. He then fled the store and ran along Eldorado Street where he was observed getting into the passenger side of a blue Lexcen sedan which was driven off at speed by an unknown co-offender. This conduct constitutes count 6 on the indictment.
12 At 6.15 pm on Tuesday 23 October 2012 the appellant, in company with a co-offender, entered a pharmacy in Yokine. The appellant was wearing a black stocking over his face and a hoodie covering his head. He carried a replica handgun and a shopping bag. He immediately went behind the counter and began taking packets of Sudafed medication from a shelf and placing it into the bag. At the same time he demanded money from the staff. Two staff members took money from the tills as directed and placed it in the appellant's bag. The appellant then pointed his replica handgun at a security guard and yelled at him to lie down on the floor, which the security guard did. As the appellant was walking away the security guard lifted his head. The appellant noticed this and said 'If you lift your head again I'll shoot you'. Both offenders then ran from the store. They stole a total of $1,904 in cash and $423 worth of medication. A staff member followed them and took a photograph of them driving from the scene in a green Holden Commodore. This conduct constitutes count 7 on the indictment.
13 On 24 October 2012, the appellant was stopped by police while driving the same green Commodore as part of a random traffic stop. He gave his details to police who later noted that the vehicle had been used during the offence at the pharmacy in Yokine the day before. As a result the police arranged surveillance on the appellant.
14 On the morning of Friday 26 October 2012 covert police officers followed the appellant as he drove the green Commodore to Northbridge where he met with Jason Hapke who was driving the light blue Lexcen. The appellant and Hapke then drove to the appellant's girlfriend's house in Joondanna. A short time later they both left in the green Commodore. At 3.07 pm the appellant and Hapke stopped near the Marmion Shopping Village and got out of the car. They both entered the Marmion pharmacy wearing black stockings over their heads. The appellant was armed with a tyre lever and Hapke was armed with a black replica handgun. They were both carrying shopping bags. The appellant demanded pseudoephedrine and cash from the till. A female staff member complied with this direction. Hapke made similar demands and was also given cash from the tills, the safe and a quantity of pseudoephedrine. A total of $5,791 in cash and medication to the value of $1,516 was stolen. This conduct constitutes count 8 on the indictment.
15 As the appellant and Hapke were committing the armed robbery at the Marmion pharmacy police parked-in the green Commodore to prevent them from escaping. When they ran from the pharmacy and realised the car had been parked-in they approached one of the unmarked police cars in which a covert police officer was sitting. The appellant attempted to open the door of that car, which was locked. He then used the tyre lever to smash the passenger side window and yelled at the officer to get out of the car. Hapke then pointed the replica handgun at the officer through the window and demanded that he get out of the car. The officer pulled his own firearm out and pointed it at Hapke. Hapke was distracted by another police officer who was approaching with his firearm drawn. Hapke turned towards the other officer, pointed the replica gun at him and then attempted to flee on foot. The appellant also attempted to flee. Both offenders were apprehended by police. The appellant had to be tasered when he violently resisted arrest. This conduct constitutes count 9 of the indictment.
16 The appellant participated in a recorded interview in which he admitted having committed several armed robberies, though he was reluctant to provide details. He told police that upon being released from prison in late September 2012 he ran out of medication and began 'self-medicating' with prescription medications and methylamphetamine. He said that he committed the offences to obtain money to fund his drug addiction.
17 A total of $13,045 in cash and $1,939 worth of medication was stolen in the offences. Aside from the cash and medication stolen from Marmion pharmacy, none of the other cash or medication was recovered by police.
18 The co-offender in relation to counts 8 and 9, Jason Hapke, entered fast-track pleas of guilty to both offences. In relation to the aggravated armed robbery on the Marmion pharmacy, he was sentenced to 4 years and 6 months' imprisonment. In relation to the attempted carjacking, he was sentenced to 3 years and 9 months' imprisonment. Those sentences were ordered to be served concurrently.
Personal circumstances
19 The appellant was born in Perth. His parents separated when he was 12 and he remained with his father. The separation of his parents caused marked instability in his life. He ran away from home on two occasions and there was significant antisocial behaviour, including frequent stealing and fighting. As a result, the appellant has been intermittently in detention and then in prison since the age of 13.
20 The appellant did not perform well at school and was frequently truant. Much of his education occurred in juvenile detention. After finishing school he worked for a few months as a car detailer and then in a bar. However, he became addicted to drugs and this affected his ability to hold down a job.
21 The appellant maintains a good relationship with his mother who has continued to visit him in prison. He also has an older brother who he maintains contact with. His father now lives in Queensland, though the appellant speaks to him regularly by telephone.
22 The appellant was 30 years old by the time he came to be sentenced. He has a significant record of prior offending. As an adult this includes numerous offences of burglary and stealing for which he has received sentences of imprisonment. He was released from prison on the last occasion on 24 September 2012 and committed the first of the present offences less than two weeks later.
23 A psychiatrist's report dated 29 May 2011, that had been prepared for the Prisoners Review Board, was available at the time of sentencing. This report stated that the previous burglary offences had been committed in order to fund the appellant's drug habit. At that time he had been using heroin and amphetamines on a daily basis. Whilst in prison he had participated in programmes and told the psychiatrist that he had improved self-awareness and had learned alternate ways to deal with risk situations.
24 At the time of the 2011 psychiatric report the appellant's mental state was considered to be stable. There was no evidence to suggest the presence of a current mood disorder or a psychotic illness. There were some indications that he had experienced some mood destabilisation as a side effect of Interferon that was being taken to treat Hepatitis. However, these symptoms had resolved with the use of an antipsychotic and a mood stabiliser. The appellant described having experienced in the past what the psychiatrist described as 'a scatter of intermittent depressive symptoms' but these symptoms did not reach the level required for a major depressive episode. It was considered that the appellant fulfilled the diagnostic criteria required for an antisocial personality disorder. This conclusion was based on a history of significant antisocial behaviour, a failure to conform to social norms as indicated by repeatedly performing acts that were grounds for arrest, a history of impulsivity, a failure to plan ahead and irresponsibility as indicated by repeated failure to sustain consistent work behaviour.
25 The psychiatrist also noted the presence of borderline personality traits and that the appellant's level of functioning and behaviour was likely to deteriorate considerably as a result of substance abuse. The appellant was considered to have significant risk factors in relation to reoffending. These included a history of previous violence, a young age when involved in his first violent incident, employment problems, substance abuse problems and prior supervision failure. These risks were compounded by the antisocial personality disorder and borderline personality traits. It was considered that these factors were static and that there was little potential for the appellant to change them. However, there were some dynamic factors that were associated with the risk of reoffending. It was noted that the appellant at that time had developed significant insight into his offending and had responded well to programmes in a prison environment. The psychiatrist also noted that there was no evidence to suggest the presence of active symptoms of a major mental illness. However, he noted that 'it would be expected that, after spending a lengthy period of time in prison, it is likely that [the appellant] will experience stress and will need to address possible destabilisers' on release.
26 An earlier psychiatrist's report prepared for the District Court in 2007 was also available. That report was consistent with the later one from 2011 in regard to the appellant's personal history and substance abuse problems. The report concluded that the appellant's offending behaviour was predominantly impulsive and directly related to funding his drug abuse. He was considered to be at risk of reoffending if he relapsed into substance abuse on leaving prison. He had some depressive symptoms but did not meet the criteria for a major depressive disorder.
27 At the sentencing hearing it was submitted on behalf of the appellant that he was released from prison on 24 September 2012 with minimal support. He found it difficult on his release to readjust to life in the community and became stressed and anxious. He reverted to drugs to deal with these feelings. Not having the money to pay for drugs he committed the offences.
28 The appellant had been released from prison with a 14-day supply of his medication. However, he ran out of these drugs because he overused them and did not obtain a further prescription from a doctor. He said he had no one to turn to because his brother was away overseas and he did not like to ask his mother for money.
29 The pleas of guilty were entered on what was to have been the first day of the appellant's trial. This was said to be because the appellant did not have confidence in his original lawyer. A new lawyer was appointed in the week prior to trial. When the new lawyer explained to the appellant the nature of the evidence and the fact that he had made admissions to the police in his interview, he agreed to enter pleas of guilty. It was said that the delay was not due to any intention on the part of the appellant to deny the offending but rather was due to his lack of a clear memory of what had occurred.
The application for reports
30 At the sentencing hearing on 19 August 2013 counsel for the appellant sought a pre-sentence report and a psychiatric report. The reasons for this were said to be that the appellant had been taking antidepressant and antipsychotic medication in prison prior to his release on 24 September 2012. It was suggested that a new report might indicate 'where he was at that time and the previous issues that he's had'.
31 The sentencing judge referred to the fact that there was a 2011 psychiatrist's report. The matter was then stood down to give both the judge and the appellant's counsel an opportunity to read that report. Having done so, the appellant's counsel renewed her application for a further psychiatric report. When asked why a further report was needed, counsel said:
A report, a current report, which I understand now he has different medication, it's clear in looking at the final page, point one, for him to remain on his antipsychotic [sic] and mood stabilisers when he re-enters the community. A report would be appropriate to find out from the psychiatric [sic] regarding his status during this time and the effect of the drugs upon him.
Those are my instructions, that things have changed over the last two years (ts 38).
32 The sentencing judge was not convinced that a new report was needed. He did indicate a willingness to adjourn the sentencing until later in the day but defence counsel said that she had had the opportunity to take instructions and had prepared 'a full plea in mitigation'.
33 In the course of the plea in mitigation, the appellant's counsel detailed his reasons for committing the offences. This included quoting from explanations that the appellant had given to the police at the time of his interview, in particular:
I've done a lot of gaol, I have minimal support and then I stress out … I find it hard to mingle with normal people. I find it hard to keep a job down, get nervous in big crowds … I was just looking to get drugs on the outside when I get out. Drugs make me feel normal. That's why I have drugs. I don't stress out. I'm not edgy, I'm not anxious. It relaxes me, so it really is just money for the drugs. I go and I get the money. I can't get a job. I'm not sure. If it weren't to pay for the drugs for the whole week, I know it's very stupid, you know what I mean, like, it's just a quick fix (ts 41).
Sentencing remarks
34 In his remarks on sentence, the sentencing judge referred to the appellant having engaged in a crime spree over a three week period. He noted the seriousness of the offences and the vulnerability of the small businesses which were the subject of the robberies.
35 His Honour noted that he had received letters from the appellant, the appellant's girlfriend, the psychiatric reports which had been obtained earlier and 'a very thorough and comprehensive plea in mitigation' by the appellant's counsel. He noted that the appellant had a long history of offending and that the appellant was lacking in social skills and probably institutionalised. His Honour noted that the offending began shortly after the appellant was released from prison on 24 September 2012 when he 'ran out of medication and returned, perhaps inevitably, to [his] old ways'. This was a reference to the fact that the money that had been stolen had been spent on drugs.
36 His Honour concluded that there was very little by way of mitigation. The appellant was no longer young, was a 'seasoned criminal' and had an 'unregulated and raging substance abuse problem'. Whilst his Honour accepted that the appellant did not intend to hurt anyone, this was said to be a measure of his distorted thinking.
37 As to the appellant's plea of guilty, his Honour noted that this came at a very late stage and that the appellant was not entitled 'to either a 25% discount, or, in fact, to any real discount for the plea of guilty, save for a small acknowledgement that you have saved, in the end, both the cost of a trial and the need for the victims to have to relive their experience in court'. It would seem from this that his Honour gave no, or only a nominal, discount for the plea of guilty. If a discount was given, it was not quantified in accordance with s 9AA(5) of the Sentencing Act 1995 (WA), but no complaint is made in that regard. That is unsurprising because on any view the plea was very late and any discount given would be correspondingly small. The failure to quantify the discount is not an error that, in the circumstances of this case, could possibly be material: Pelemis v The State of Western Australia [2009] WASCA 151.
38 In regard to the application for a psychiatric report, his Honour said:
Your counsel suggested that I adjourn sentencing to obtain a psychiatric report. There is no need; I have reports from Dr Watt in 2007 and Dr Febbo in 2011. Both point to traits of antisocial personality disorder. Dr Febbo's case, a diagnosis to that effect.
Both detail your personal history, which I have taken into account. It conforms with what Ms McGregor has told me. Dr Watt said in 2007:
'Mr Pilling's offending appeared predominantly impulsive and directly related to funding his drug abuse. He will be at continuing risk of reoffending should he relapse into substance abuse on leaving prison.'
Apart from the fact that that was written six years ago it very well could be expressed yesterday in relation to you. Dr Febbo noted in 2011 that you have significant risk factors in relation to re-offending (ts 54).
Merits of the appeal
39 In his written submissions, the appellant argues that the sentencing judge should have ordered a new psychiatric report and that the old reports contained incorrect information. He has then set out what he describes as a chronology of his treatment whilst in prison before his release on 24 September 2012. This includes extracts from what appear to be prison medical records.
40 The first thing that must be noted is that there was no suggestion by the appellant's counsel at the sentencing hearing that the reports that had previously been prepared by Dr Watt and Dr Febbo were incorrect in any respect. Indeed, counsel referred to Dr Febbo's report in her plea in mitigation. Her submission was not that the earlier reports were irrelevant, but that a new report may provide more up-to-date information. However, there was nothing put before the sentencing judge that indicated that a new report would add anything to what was already known about the appellant. The suggestion that the appellant may have been affected by his medication at the time of the offending was not supported by anything said by the appellant in the police interview. Indeed, his explanation was that he had run out of his medication and committed the offences to obtain illicit drugs because they made him feel better.
41 Insofar as the appellant's submissions contain extracts from prison medical records, they rely on new information which was not put before the sentencing judge and is not verified in any affidavit filed on this appeal. Nor is there any application to adduce new or fresh evidence on the appeal. Whether the extracts are accurate or give the entire picture is unknown. However, even accepting that information at face value, it does not advance the appellant's argument.
42 The extracts indicate that prior to his release the appellant had shown some symptoms of a paranoid psychotic disorder, but this was never diagnosed and the symptoms improved in response to medication. A month prior to release the appellant reported that the medication was helping with his concentration and mood and that he was sleeping well. He had markedly reduced paranoid ideation. He complained of periods of getting agitated but this was non-specific, non-themed, not delusional and short-lived. His emotional dysregulation was said to be consistent with his personality style. These notes do not support a suggestion that the appellant was suffering any significant psychiatric illness at the time that he committed the offences. Rather, they tend to indicate that the conclusions reached by Drs Watt and Febbo in the earlier reports continued to be relevant.
43 The appellant's written submissions also suggest that he relied upon the prison authorities to make an appointment with a doctor in the community. He says that he was not advised of any such appointment and therefore ran out of his medication. In fact, there was nothing in the records that the appellant has extracted which support his argument. An extract for 11 September 2012 states that the appellant had taken the initiative and sourced his own private psychiatrist in the community. It states that a referral was faxed to the offices of the psychiatrist in question and a copy of the referral letter was sent at the appellant's request to his mother's address. There is no indication that the prison authorities had made an appointment or were expected to. Indeed, somewhat inconsistently, the appellant told the police in his interview that he had made contact with a doctor, had been referred to a specialist, had telephoned the specialist but had then been 'side-tracked'.
44 A decision as to whether to order a pre-sentence, psychiatric or psychological report is a matter within the discretion of the sentencing judge: s 20(1) Sentencing Act. A failure to order such a report does not in itself indicate any error in the sentence: Gavin v The Queen (1992) 6 WAR 195 and Topic v The State of Western Australia [2013] WASCA 157 [28]. On the information before the sentencing judge in this case it was open to conclude that a further psychiatric report would not be of assistance and was, therefore, not necessary. What the facts indicated was that the appellant's conduct was consistent with his previously diagnosed anti-social personality disorder and his personality type. There was no reason to think that there was any relevant information that was not contained in the existing reports or that could not be provided by the appellant's counsel.
45 Mental illness can be relevant to sentencing in a number of different ways. The issue has been considered by this Court in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105 and Gok v The Queen [2010] WASCA 185. It is unnecessary to re-state those principles. However, it must be recognised that the mitigating effect of mental illness may be offset by other factors. An example of this is where a particular condition or illness raises the risk of reoffending: Samson v The State of Western Australia [2011] WASCA 173.
46 In this case, the appellant had been diagnosed in 2011 with antisocial personality disorder and dysfunctional personality traits. That was said at the time to be a position that was unlikely to change. Those factors were relevant to the appellant's risk of reoffending. That risk may have been reduced by medication, but the appellant ran out of his medication and all the indications are that this was as a result of his own failure to take steps to obtain a new prescription. In my respectful view, the sentencing judge was correct to conclude that the appellant had simply relapsed into drug use and committed the offences to feed that habit.
47 The suggestion that the appellant and his counsel had inadequate time to prepare is without substance. The pleas were very late, but counsel accepted that she had adequate opportunity to take instructions. She gave a lengthy and detailed plea in mitigation. There was no suggestion that further time was needed. The sentencing judge also allowed a short adjournment for counsel to read the psychiatric reports.
48 The totality principle has two limbs. The first limb is relied upon here. It 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, having regard to all relevant circumstances, including those referable to the appellant personally.
49 The maximum penalties for the offences in this case were life imprisonment in the case of the seven armed robbery offences (s 392 Criminal Code) and 14 years' imprisonment for the attempted armed robbery offence (s 552 Criminal Code).
50 The range of sentences commonly imposed for a single offence of armed robbery, excluding matters of mitigation is 4 to 6 years' imprisonment: Drury v The State of Western Australia [2010] WASCA 220 [22]; Nannup v The State of Western Australia [2011] WASCA 257 [72]; The State of Western Australia v Drew [2012] WASCA 86 [41]; and Forkin v The State of Western Australia [2013] WASCA 51 [15].
51 Neither the individual sentences nor the total effective sentence imposed in this case is inconsistent with sentences imposed in other comparable cases. In that regard, I have considered the following cases: Carr v The State of Western Australia [2013] WASCA 192; Wroth v The State of Western Australia [2013] WASCA 155; Chadd v The State of Western Australia [2013] WASCA 99; Turnbull v The State of Western Australia [2013] WASCA 5; McConkey v The State of Western Australia [2012] WASCA 45; The State of Western Australia v Eades [2011] WASCA 157 and Robertson v The State of Western Australia [2009] WASCA 83.
52 The offending in this case was very serious. It involved targeting vulnerable small businesses in order to obtain cash and drugs. On at least four occasions the appellant was in company with a co-offender, who either entered the premises or drove a getaway car. Whilst the appellant disclaims any intention to use actual violence, he made threats both explicit and implicit in that regard. His behaviour was clearly intended to cause fear and obtain compliance. There was a suggestion that the first offence occurred on the spur of the moment, but that claim could not be made of the other offences. They clearly involved some element of planning given that the appellant obtained a replica firearm and took steps to disguise his identity. General deterrence was a very significant sentencing factor.
53 There was little by way of mitigation. The appellant's pleas of guilty had been entered at the latest possible time and his explanation for that was unconvincing. The fact that the offences had been committed in order to obtain drugs and money for drugs did nothing to mitigate the conduct. The appellant's history of offending with similar motivation indicated that the need for personal deterrence and protection of the community loomed large.
Conclusion
54 In my view, the ground of appeal has no reasonable prospects of succeeding. Leave to appeal should be refused. I would make the following orders:
1. leave to appeal refused; and
2. the appeal is dismissed.
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