Pratt v The Queen
[2000] WASCA 110
•5 MAY 2000
PRATT -v- THE QUEEN [2000] WASCA 110
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 110 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:135/1999 | 3 APRIL 2000 | |
| Coram: | WALLWORK J MURRAY J SCOTT J | 5/05/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | SCOTT ANTHONY PRATT THE QUEEN |
Catchwords: | Criminal law and procedure Application for leave to appeal against sentence Armed robbery Use of blood-filled syringe Syringe as a weapon warranting of a higher sentence Deterrence Totality principle Sentence not outside appropriate range |
Legislation: | Criminal Code, s 391, s 393 Sentencing Act, s 32 |
Case References: | House v The Queen (1936) 55 CLR 499 Miles v The Queen (1997) 17 WAR 578 Taylor v The Queen, unreported; SCt of WA; Library No 980152; 6 April 1998 R v Henry (1996) 46 NSWLR 346 Shooter v R, unreported; CCA SCt of WA; Library No 970628; 21 November 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PRATT -v- THE QUEEN [2000] WASCA 110 CORAM : WALLWORK J
- MURRAY J
SCOTT J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for leave to appeal against sentence - Armed robbery - Use of blood-filled syringe - Syringe as a weapon warranting of a higher sentence - Deterrence - Totality principle - Sentence not outside appropriate range
Legislation:
Criminal Code, s 391, s 393
Sentencing Act, s 32
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : In person
Respondent : Mr M Mischin
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
House v The Queen (1936) 55 CLR 499
Miles v The Queen (1997) 17 WAR 578
Taylor v The Queen, unreported; SCt of WA; Library No 980152; 6 April 1998
Case(s) also cited:
R v Henry (1996) 46 NSWLR 346
Shooter v R, unreported; CCA SCt of WA; Library No 970628; 21 November 1997
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Scott J and to the order proposed by his Honour.
2 MURRAY J: I have read the reasons to be published by Scott J and I agree that in this case leave to appeal should be refused.
3 In my opinion also the total term is not too severe for the criminality involved and there is insufficient disparity between this case and that of Orchard to warrant interference.
4 SCOTT J: The applicant has applied for leave to appeal against a sentence of 9 years' imprisonment with an order for eligibility for parole following his conviction on two counts of armed robbery, the first of which was alleged to have occurred in circumstances where he used personal violence.
5 In addition, the applicant pleaded guilty to two offences charged in a notice under s 32 of the Sentencing Act, namely, having possession of cannabis and possession of a smoking utensil.
6 In relation to the first count of armed robbery, the applicant was sentenced to a term of 9 years' imprisonment. In respect of the second count on the indictment, the applicant was sentenced to a term of 7 years' imprisonment, and in relation to the two offences under the notice presented pursuant to s 32 of the Sentencing Act, the applicant was sentenced to a term of 14 days' imprisonment on each. All sentences were made concurrent. The end result was that the applicant was sentenced to a total of 9 years' imprisonment and an order was made that he be eligible for parole in relation to each term.
7 The facts and circumstances surrounding the offences on the indictment were particularly serious. They are best summarised in the sentencing remarks of the learned trial Judge:
"Shortly before midday on Sunday, 8 November, 1998, taking with you a syringe filled with blood from one of your arms, you went to a supermarket in Dianella. After other customers had left the store you went to the counter with a can of Coca-Cola which you had selected. A 26-year-old man, whose sister was the owner of the store, was at the counter. You grabbed his right wrist, pricked him with the syringe and demanded money.
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- He moved away from the counter. You opened the cash register and took a bundle of notes. The owner was standing nearby. You pushed her to one side, left the store and ran down the road. A 27-year-old woman following you in her car and eventually got out and confronted you some distance away. By then other people were around as well. You put your hand on her shoulder and tried to push past her. She pushed you back and you pushed at her, hitting her in the mouth. Then you ran off again and escaped before the police arrived.
At about 8 o'clock on the evening of Wednesday, 9 December, you returned to the same store, again armed with the syringe filled with your own blood. This time you jumped the counter causing the owner and her brother to back away. After threatening the owner with the syringe you took the day's takings, then you jumped back over the counter and ran off. You spent the stolen money on amphetamines.
On the morning of Friday, 11 December, police officers went to your home. There they found a quantity of cannabis seeds and a utensil used for smoking the drug. They interviewed you shortly afterwards. The videotaped recording of the interview shows that in the course of it you admitted the two robberies. You said that at the time you were hanging out for amphetamines and although it seems your relationship with your girlfriend had come to an end a short time before, you told the police officers that you wanted money to buy some more drugs for yourself and your girlfriend.
You told them that you had committed the second robbery because your girlfriend had said - I'm sorry, I'm not sure whether that was said in the videotaped interview or not, but you have claimed since the offences that you committed the second robbery because your girlfriend had said that unless you got money for drugs she would get it by working as a prostitute in Hyde Park. In the course of the interview you did admit the robberies and you expressed remorse, which I accept is genuine.
You denied that on the first occasion you pricked the owner's brother on his wrist with the needle of the syringe. Also you denied that the amounts stolen respectively were $900 and $1455 as the owner of the store has alleged. You said that on
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- the first occasion the amount you took was only $120 and on the second occasion it was only $300 of something."
8 It was not disputed by the applicant that in the course of the first robbery the applicant pricked the wrist of a male attendant at the supermarket with the blood-filled syringe that he was carrying. At the time of sentence, while tests had been taken upon the victim, there was no indication that the victim had contracted any disease from the contact with the syringe. However, tests in that regard were on-going.
9 The learned trial Judge properly regarded the offences as extremely serious, not only because armed robbery was a prevalent offence, but because the use of a syringe as a weapon, added to the gravity of the conduct.
10 In relation to armed robbery offences, the Court of Criminal Appeal has said in Miles v The Queen (1997) 17 WAR 578 at 521 that sentences for this offence should be firmed up "by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender". In addition, the court recognised in the same judgment that the offence is the more serious where the victims, because they are required to serve the community at night, are persons in a vulnerable position.
11 In this case it is to be noted that the first count with which the applicant was charged occurred shortly before midday but the second count occurred at about 8 o'clock on the evening. The offences were committed on the same supermarket and occurred approximately one month apart.
12 In addition to the seriousness of armed robbery, the Court of Criminal Appeal has recognised that were a syringe is used as the weapon to commit an armed robbery, the offence is regarded as warranting a higher penalty. In Miles v The Queen (supra), White J, with whom Malcolm CJ and Pidgeon J agreed, said at 523-524:
"I am of the opinion that courts should, by the severity of sentences imposed, discourage offenders from the use of a syringe filled, or apparently, filled with blood as a weapon in the course of an armed robbery. The use of any weapon in the course of a robbery is extremely serious and warrants condign punishment, of course, but I am of the view that a more serious view should be taken of this choice of weapon. The reason is that the use of such a weapon is as terrifying as that of any other
(Page 6)
- dangerous weapon, such as a knife or firearm, but carries with it the risk that, if used, it can lead to a victim, wounded by such a weapon, suffering perhaps months of mental anguish while awaiting the result of tests designed to ascertain whether or not the victim has contracted a lingering, humiliating and eventually fatal disease. There is always the danger of the unintentional infliction of such an injury in the course of a robbery, leading to the same result. In my opinion, the use of such a syringe in the course of an armed robbery should, normally, attract a sentence of at least one year's imprisonment above that which would otherwise have been imposed for the robbery in question, had some other weapon been used and that this fact should be stated in the course of the sentencing Judge's remarks".
13 In Taylor v The Queen, unreported; SCt of WA; Library No 980152; 6 April 1998, Malcolm CJ said at 10:
"… the range of sentences now commonly imposed in relation to a single offence of armed robbery, depending upon the circumstances, is imprisonment for six to nine years: Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997 at 6-7 per Malcolm CJ; and at 3 per White J. It was also accepted that the use of a blood filled syringe in the course of an armed robbery should normally attract a sentence of at least one year's imprisonment above that which would otherwise have been imposed for the robbery in question: Miles v The Queen at 4-5 per White J (with whom Malcolm CJ and Pidgeon J agreed)."
14 Whilst it could possibly be said that a sentence of 9 years' imprisonment for a single offence of armed robbery in the present circumstances was excessive, in this case, the learned trial Judge was dealing with not one offence but two. In saying that, it is clear that both offences occurred on the same premises but nonetheless on each occasion the applicant was armed with a blood-filled syringe. Whilst the two offences were only approximately one month apart, that, in no way, lessens the gravity of each of them. Particularly in these circumstances where on the first occasion one of the victims had been pricked with the syringe, the second offence would likely have been even more terrifying for the victims, bearing in mind that the circumstances were similar.
15 In dealing with the offences, his Honour appears to have been aware of the totality principle because he made the term of imprisonment for the
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- second offence concurrent with the first, thus making the total term of imprisonment one of 9 years. In my opinion there was no basis for making the terms of imprisonment concurrent, other than by reason of the application of the totality principle.
16 In looking at the application for leave to appeal against sentence, I note that the applicant does not have a serious criminal record, although he has previously been convicted of drug related offences. Significantly, he has never received a term of imprisonment. In addition, the pre-sentence report and the forensic psychologist's report each indicate that these offences were committed whilst the applicant was suffering from an amphetamine addiction and in circumstances where his partner was threatening to engage in prostitution if her drug needs were not met. It was said that that was, in part, the motivation for the applicant becoming involved in these offences.
17 The applicant was born on 14 July 1969 and the pre-sentence report comprehensively dealt with his personal circumstances and background. That information was before the learned trial Judge. In addition, the applicant pleaded guilty at an early stage and in the course of the inquiry co-operated with the police. The reports before the trial Judge indicated that the applicant was seeking to overcome his addiction to amphetamines and to live a law-abiding life.
18 The applicant also maintains that his sentence is unduly severe by comparison with the sentence of one Justin Grant Orchard ("Orchard"), who, he maintains, was sentenced on the same day for more offences and of greater severity than his own. The applicant maintains that as his sentence was similar to that of Orchard, he has a justifiable sense of grievance.
19 In dealing with that submission, I have had the opportunity of reviewing the transcript of the hearing of the case involving Orchard, which was also dealt with by Heenan J on 2 June 1999. Orchard pleaded guilty to a number of District Court charges, being four counts of receiving. Orchard also pleaded guilty to one count of stealing a motor vehicle and three counts of armed robbery.
20 The armed robberies involved a commercial premises, a primary school and a bank. The offences occurred whilst armed with a sawn-off rifle. All of the robberies were alleged to have occurred on the same date and the total amount of money stolen was something over $12,000.
(Page 8)
21 The applicant is correct in saying that Orchard had a criminal record which was far more extensive than his own.
22 In dealing with Orchard, the learned trial Judge referred to the facts surrounding the offences and Orchard's age (he was then 29) and the fact that his offences were committed at a time when he was involved with drugs.
23 Having reviewed those sentencing remarks, all other things being equal, there is merit in what the applicant says about his sentence being, on its face, more severe than that imposed upon Orchard. However, the difference between the applicant's situation and that of Orchard, is that the applicant used a blood filled syringe as a weapon, whilst Orchard used a sawn-off shotgun. In addition, in the course of the first robbery, the applicant pricked one of the victims with the blood filled syringe. The fact that the pricking was accidental was of little comfort to the victim who faced the agonising prospect of having to wait many months to determine whether or not he had contracted a fatal illness.
24 Whilst it may properly be said that the applicant's sentence was towards the top end of the range for the conduct involved, this Court is not involved in the process of re-sentencing, unless an appealable error is demonstrated. The issue is whether the sentence fell outside the appropriate sentencing range for the applicant's conduct: House v The Queen (1936) 55 CLR 499.
25 I am not persuaded that the applicant has demonstrated that the sentence falls outside the appropriate sentencing range, even although it may be said to be at the top of the range for the conduct involved.
26 I would refuse leave to appeal.
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