Pryor v The State of Western Australia

[2014] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PRYOR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 143

CORAM:   NEWNES JA

MAZZA JA

HEARD:   16 JUNE 2014

DELIVERED          :   6 AUGUST 2014

FILE NO/S:   CACR 49 of 2014

BETWEEN:   DERRICK BRADLEY PRYOR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :INS 168 of 2012

Catchwords:

Criminal law and procedure - Application for leave to appeal against sentence - Whether appropriate discount for plea of guilty given - Whether manifestly excessive - Whether totality principle infringed - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e), s 41(4)(a)
Criminal Code (WA), s 378, s 392, s 401(2)(a)
Sentencing Act 1995 (WA), s 8(2), s 8(4), s 9AA

Result:

Application to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Dedman v The State of Western Australia [2009] WASCA 135

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Mejtska v The State of Western Australia [2009] WASCA 80

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Nicolaides v The State of Western Australia [2012] WASCA 199

Roffey v The State of Western Australia [2007] WASCA 246

Satonick v The State of Western Australia [2008] WASCA 145

Sinclair v The State of Western Australia [2014] WASCA 22

Wilson v The State of Western Australia [2010] WASCA 82

1. REASONS OF THE COURT:    This is an application for leave to appeal against sentence.  The appellant requires an extension of time.  His appeal notice was filed approximately 16 months out of time.  The delay is gross by any measure and has not been adequately explained.  Whether an extension of time will be granted depends upon the merit of the appeal. 

Introduction

1. The appellant was charged on indictment in the Supreme Court with four counts of aggravated burglary, two counts of stealing a motor vehicle and one count of aggravated armed robbery.  These offences were committed in a spree between 21 and 29 June 2012.  On 12 October 2012, the appellant pleaded guilty to the charges at the first available opportunity.  Later that day, the learned sentencing judge imposed a total effective sentence of 6 years' imprisonment with eligibility for parole, to commence from 29 June 2012.  The details of the charges and the individual sentences that were imposed are contained in an annexure to these reasons.

2. There are three grounds of appeal.  Ground 1 alleges that the learned sentencing judge did not give 'an appropriate discount' for the appellant's early pleas of guilty.  Ground 2, when read with the written submissions, alleges that the sentence for the aggravated armed robbery was manifestly excessive.  Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle. 

Legal principles

1. The general principles applicable to appeals against sentence are well‑known and well‑established.  They were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] in these terms:

   The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

   1.The imposition of a sentence involves the exercise of a discretion.  An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways.  The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration.  The second is referred to as implied or inferred error.  It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.

   2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.

   3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).

   4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).

   5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

The facts of the appellant's offending

1. Sometime between 9.30 am and 3 pm on 21 June 2012, the appellant entered the complainant's house in Shenton Park via an unsecured rear door.  The complainant was home at the time, but was distracted by a teleconference in which she was participating.  Knowing that the occupant was inside and distracted, the appellant took a set of car keys found in the kitchen and dining area.  He then left the house and stole the victim's Ford Territory vehicle, using the keys.  The vehicle was not recovered (counts 1 and 2).

2. At approximately 3.30 pm on 26 June 2012, the appellant entered the garage of residential premises in Thornlie.  The occupier of the house, who was busy with her two small children, had left the adjoining garage door open.  The appellant saw that the victim had left the keys in her Toyota Rav4 motor vehicle.  He got in the vehicle and started it.  The victim heard the car start.  She ran into the garage and attempted to open the car door which the appellant pulled shut.  The victim called upon the appellant to stop, but he refused.  Instead, he drove away.  During her efforts to stop the theft, the victim fell to the ground and grazed her left leg.  The vehicle was subsequently recovered (counts 3 and 4).

3. Later that day, at about 5.20 pm, the appellant and an accomplice whose identity is not known went to a residential address in Brentwood.  The appellant and the accomplice entered the premises through an unsecured door.  Once inside, they conducted a search and located computer equipment, a wallet and personal items belonging to the occupants.  While they were committing the offence, the appellant and the accomplice heard one of the occupants arrive home.  As a result, they fled the scene.  None of the property that was stolen was recovered (count 5).

4. At 3.15 am on 27 June 2012, the appellant and his accomplice drove to a service station on Albany Highway, Armadale, in the Toyota Rav4 motor vehicle that the appellant had stolen the day before.  The appellant and his accomplice entered the service station's shop, having formed the intention to carry out a robbery.  The appellant was carrying a lighter and a plastic bottle which contained petrol.  The appellant approached the counter area while the accomplice stole a bottle of soft drink from the display area.  The appellant spoke to the lone staff member and opened the plastic container.  The victim could smell petrol vapours.  The appellant said to the victim, 'Give me all your money, cunt, or I'll throw this petrol at you and light you up'.  Fearful for his safety, the victim backed away into an office area.  The appellant and the accomplice fled the scene (count 6).

5. At about 3.15 am on 27 June 2012, the appellant and his accomplice, again using the stolen Toyota Rav4 motor vehicle, drove to business premises in Southern River that were closed at the time.  They did so with the intention of entering the building and stealing property.  The appellant used a brick to smash a glass door at the front of the premises and the two men entered together.  While inside, they stole food and drink valued at $15. 

6. On 28 June 2012, the appellant, accompanied by a relative, went to the Kensington Police Station.  There, he made full and frank admissions in respect of all of the offences he committed. 

The appellant's antecedents

1. The appellant was 36 years of age at the time of the commission of the offences and when he was sentenced.  He told the author of the pre‑sentence report that his childhood was unstable.  He has four young children from his relationship with his ex‑partner.  The material before the learned sentencing judge was to the effect that this relationship was marred by incidents of domestic violence perpetrated by the appellant.  The appellant is currently in another relationship and his present partner is supportive of him. 

2. The appellant commenced using illicit substances at the age of 14 and began offending at that time.  In his discussions with the author of the pre‑sentence report, he was unable to identify a period of time since then in which he had completely abstained from the use of illicit substances. His illicit substance of choice is amphetamines.  The appellant lacks the ability to manage his emotions without resorting to drugs. 

3. The appellant has an extensive history of offending, largely linked to his use of illicit substances.  His criminal history as an adult is long, regular and varied.  He has many convictions for breaching a violence restraining order and multiple convictions for assault and assault occasioning bodily harm.  In addition to these, he has convictions for driving under suspension, stalking, possession of prohibited drugs and burglary, although, with respect to the last mentioned matter, he has only one prior conviction for burglary as an adult which was recorded in the District Court in 1998.  The appellant has been placed on various community orders and on suspended imprisonment orders, which he has breached. 

4. With respect to the offences with which this appeal is concerned, it appears that the appellant was lucratively employed in the Pilbara in 2011.  However, to his great disappointment, he was dismissed from that employment.  He slid into what he described as 'a state of depression' and began using large quantities of methylamphetamine.  He committed the present offences in the context of a methylamphetamine binge.

5. The appellant expressed remorse for the harm he had caused to the victims of his offending to the author of the pre‑sentence report.  He repeatedly expressed the belief to the author that his actions were out of character. 

His Honour's sentencing remarks

1. His Honour's sentencing remarks are succinct.  They may be quoted in full:

   You have pleaded guilty this morning, indeed at the first available opportunity to seven counts of offending between 21 and 27 June this year, a little over a week.  The first two, an aggravated burglary and a stealing a motor vehicle, are linked, as are the next two counts, 3 and 4.  So there are three counts of aggravated burglary, one count of armed robbery and three counts of stealing.

   Apart from your plea of guilty, which is significant, there is very little else going for you.  You are aged 36 and you have been offending pretty much all your adult life.  These offences, and I suspect many others, occurred when you were in the middle of an amphetamine spree.  I have heard what Mr Hope has said about your employment and the fact remains that that is why I intend to give you a parole eligibility order, because it shows that you are capable, at least for a time, of living another sort of life.  Whether you get parole is a matter entirely for you because you have got to get your amphetamine addiction under control or you are likely to spend the rest of your life in prison, and your life is already half over.  You have lived 36 years and for what?  What do you have to show for it? 

   You are by nature fairly violent.  The conviction for robbery is concerning because of the threat of fire that it was.  In your pre-sentence report, and through Mr Hope, you have continually advised of feelings of remorse and stated your behaviour was 'not like me', but I am afraid to say it is, it's exactly like you.  You use copious amounts of amphetamines and this is what happens.

   In structuring the sentences I am about to impose I have had regard to the total sentence reflecting your criminality over a period of a little more than a week.  Your record, including your various breaches of community orders, gives little comfort to the community but, as I said, I am prepared to give you the advantage of a parole eligibility order.

   The sentences I now impose will take effect from 29 June 2012.  On count 1, you are sentenced to a term of 2 years' imprisonment; on count 2, 3 years; on count 3, 3 years; on count 4, 1 year; count 5, 2 years; count 6, 4 years; count 7, 1 year.  Counts 2, 3, 4, 5 and 7 will be made concurrent with count 6.  Count 6 is made cumulative on count 1.  Your total sentence is one of 6 years' imprisonment.  I make a parole eligibility order so you will be eligible for parole 4 years after 29 June this year [1] ‑ [5].

The appellant's submissions

1. The appellant was self‑represented before this court. 

2. In support of ground 1, the appellant submitted that the learned sentencing judge failed to make a proper and appropriate evaluation as to the mitigatory value of his pleas of guilty.  With respect to ground 2, the appellant contended that, having regard to the circumstances of the offence and the range of sentences customarily imposed, the sentence for the aggravated armed robbery (count 6) was manifestly excessive.  In support of ground 3, the appellant submitted that the total effective sentence of 6 years' imprisonment was not a proper reflection of the appellant's overall criminality having regard to, in particular, his personal circumstances.

3. In his oral submissions before this court, the appellant made what was, in substance, an impassioned plea for mercy.  The appellant assured the court that he had reformed and that he would not offend again.  He sought to adduce additional evidence in this appeal as to his personal circumstances and at the hearing handed to the court a number of documents.  We will deal with this material later in our reasons.

The merit of the grounds of appeal

Ground 1 - The pleas of guilty

1. The appellant was sentenced prior to the commencement of s 9AA of the Sentencing Act 1995 (WA) on 20 December 2012. Accordingly, ground 1 must be considered in light of the law relating to pleas of guilty as it existed prior to that date. Those principles were stated by Steytler P (with whom McLure JA agreed) in H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 and confirmed in Moody v French [2008] WASCA 67; (2008) 36 WAR 393.

2. As it stood at the time, s 8(2) of the Sentencing Act provided that a plea of guilty was a mitigating factor and the earlier in the proceedings that it was made the greater the mitigation. Section 8(4) of the Sentencing Act provided that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender the court must state that fact in open court. 

3. Prior to the commencement of s 9AA, the amount of any discount to be given for a plea of guilty was discretionary having regard to all of the circumstances of the individual case. That said, it was well established that ordinarily fast‑track pleas of guilty attracted a reduction of somewhere between 20% ‑ 35%, depending on the circumstances. However, a sentencer was not obliged to specify the amount of the discount to be given for a plea of guilty.

4. The present case is not one where the learned sentencing judge failed to refer to the effect of the pleas of guilty.  Here, the learned sentencing judge not only referred to the fact of the pleas, but also their effect by describing them as 'significant' and stating that apart from them there was 'very little else' in his favour.  The real question here is whether it is clear that a proper reduction was, in fact, made on account of the plea.  This court must evaluate the sentences that were imposed in light of all of the relevant circumstances and decide whether proper account has been made for the pleas of guilty.  The answer to this question is revealed by a consideration of the other grounds of appeal in this case.  It is sufficient to say at this point that, in our opinion, the pleas of guilty were given proper mitigatory weight by the learned sentencing judge.

Ground 2 - Was the sentence for the armed robbery manifestly excessive?

1. In order to determine whether a sentence is manifestly excessive it is necessary to have regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily involved for offences of that kind, the seriousness of the circumstances of the offence, and the personal circumstances of the appellant.

2. The maximum sentence for aggravated armed robbery is life imprisonment (not 20 years' imprisonment as stated in the appellant's written submissions).  The ranges of sentences customarily imposed for a single offence of armed robbery is between 4 and 6 years' imprisonment before matters of mitigation are taken into account:  Nicolaides v The State of Western Australia [2012] WASCA 199 [61]. The range is flexible not rigid. Whether a sentence is manifestly excessive ultimately depends on all of the particular circumstances of the case in question.

3. There are cases, and the appellant has cited some, where sentences of less than 4 years' imprisonment have been imposed for armed robbery after a plea of guilty, for example, Sinclair v The State of Western Australia [2014] WASCA 22; Dedman v The State of Western Australia [2009] WASCA 135; Mejtska v The State of Western Australia [2009] WASCA 80; and Satonick v The State of Western Australia [2008] WASCA 145. We have re‑read these cases. There is no need to repeat the facts and circumstances of them. Each of them has circumstances which distinguishes them from the present case.

4. On any analysis, the aggravated armed robbery committed by the appellant was a serious example of its type.  There were several serious features.  First, the offence involved a degree of premeditation and planning.  Second, the appellant and his co‑offender targeted a service station in the dead of night when the victim was alone and plainly vulnerable.  Third, the appellant threatened to set fire to the victim.  Fourth, the appellant held in his hands the means to do so.

5. His Honour was correct to say that the only significant matter in mitigation was the plea of guilty.  The appellant is a mature man who has persistently and regularly offended throughout his adult life.  He has an entrenched substance abuse problem, which he has been unable to effectively address.  Although he has not committed any similar offence in the past, he has committed several offences of violence.  It cannot be said that he is a stranger to violent behaviour or offending generally.  While the appellant has made efforts towards his reformation, those efforts have not been successful.  His assurances that he will not offend again cannot, at this point, be accepted.  He is not a person of good character.  General and personal deterrence, punishment and the need to provide public protection were the predominant sentencing considerations in this case.

1. In our opinion, it is not reasonably arguable, having regard to all of the circumstances of the case, that the sentence of 4 years' imprisonment with respect to the offence of aggravated armed robbery is manifestly excessive.

Ground 3 - Did the total effective sentence infringe the totality principle?

1. The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246 as follows [24] ‑ [26]:

   The appellant relies on the totality principle which comprises two limbs.  The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Woods v The Queen (1994) 14 WAR 341.

   The second limb is that the court should not impose a 'crushing' sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release:  Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

   The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences:  R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

2. The appellant alleges a breach of the first limb of the totality principle.  We will not repeat what we have said about the seriousness of the aggravated armed robbery, nor will we say anything more about the appellant's personal circumstances.  As to the fast‑track pleas of guilty, they were, as his Honour said, significant.  They were entered at the first opportunity and had substantial utilitarian value and, it appears, were remorseful. 

3. Although the burglaries were not the most serious cases of their type, they were serious enough.  The three burglaries on houses occurred when the occupants were home.  On two occasions the appellant stole motor vehicles.  One of those vehicles was used in the commission of other offences.  Another vehicle was not recovered.  The burglary on the business premises was premeditated.

4. Clearly the aggravated armed robbery was the most serious offence.  Some accumulation of the sentences for the other offences was called for in order to properly reflect the appellant's overall criminality.  To do otherwise would have resulted in the appellant not being punished for offences which were plainly serious.

5. In our opinion, it cannot be reasonably argued that the total effective sentence of 6 years' imprisonment did not properly reflect the overall criminality involved in all of the offences viewed in their entirety, having regard to their facts and the circumstances of the appellant personally, including his pleas of guilty.

Additional material

1. By application filed 30 May 2014, the appellant sought to adduce additional evidence in the appeal.  The additional evidence was contained in the appellant's affidavit sworn 19 May 2014.  The materials related to employment opportunities that the appellant has if he was released, certificates and other documents showing that the appellant has undertaken rehabilitative programs since his incarceration, a letter from the appellant's current partner and a letter from the appellant himself. 

2. In addition to this material, prior to the hearing of the appeal, the appellant forwarded to the court a document entitled 'My plan for my future'.  During the hearing of the appeal, he handed to the court some medical records concerning his mental health and, in particular, episodes which occurred in 2011 and early 2012.  These documents indicate that the appellant may suffer from paranoid schizophrenia and that the episodes the records speak of followed from his voluntary illicit drug use.

3. An appeal court must decide an appeal on the evidence and material that was before the lower court:  Criminal Appeals Act 2004 (WA), s 39(1). However, this subsection does not affect the power of this court in s 40 to admit evidence. Section 40(1)(e) provides that an appeal court may, amongst other things, 'admit any other evidence'. Section 41(4)(a) allows this court to take into account any matter relevant to the sentence that has occurred between when the lower court dealt with a person and when the appeal was heard, in the event that the court allows the appeal and decides that a different sentence should be imposed.

4. As the appellant's affidavit expressly acknowledges, the material annexed to that document is only relevant in the event that this court decides to resentence the appellant.  As none of the appellant's grounds of appeal have reasonable prospects of succeeding, the question of any resentencing does not arise.  Accordingly, the material in the affidavit is irrelevant.

5. However, we will treat the material in the affidavit and all of the other material that the appellant has sought to put before this court as an application by him pursuant to s 40(1)(e) of the Criminal Appeals Act.  On that basis, we would not admit the evidence.  This is because none of it, either individually or in combination, would justify the imposition of a different sentence in this case.

Conclusion and orders

1. None of the proposed grounds of appeal have any reasonable prospects of success.  None of the additional evidence sought to be adduced would give rise to the imposition of a different sentence.  There is no point extending the time within which the appellant may appeal.

2. The orders that we would make are as follows:

   1.The application of the appellant to adduce additional evidence is dismissed.

   2.Leave to appeal out of time is refused.

   3.The appeal is dismissed.

ANNEXURE

Count	Date	Offence	Maximum penalty	Sentence imposed
1	21 June 2012	Criminal Code (WA) (CC) s 401(2)(a) - Aggravated burglary and commit offence in dwelling	20 years' imprisonment	2 years' imprisonment, cumulative on count 6.
2	21 June 2012	CC s 378 - steal motor vehicle to use without the consent of the owner	7 years' imprisonment	3 years' imprisonment, concurrent.
3	26 June 2012	CC s 401(2)(a) - aggravated burglary and commit offence in dwelling	20 years' imprisonment	3 years' imprisonment, concurrent.
4	Between 25 June 2012 and 29 June 2012	CC s 378 - steal motor vehicle to use without the consent of the owner.	7 years' imprisonment	1 year's imprisonment concurrent.
5	26 June 2012	CC s 401(2)(a) - aggravated burglary and commit offence in dwelling	20 years' imprisonment	2 years' imprisonment, concurrent.
6	27 June 2012	CC s 392(c) & (d) - aggravated armed robbery	Life imprisonment	4 years' imprisonment, cumulative on count 1.  Head sentence.
7	27 June 2012	CC s 401(2)(a) - aggravated burglary and commit offence in place.	20 years' imprisonment	1 year's imprisonment concurrent.
Total Term	6 years' imprisonment.  Effective from 29 June 2012.  Eligible for parole.