R v Herbert
[2003] WASCA 27
•4 MARCH 2003
R -v- HERBERT [2003] WASCA 27
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 27 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:106/2002 | 18 NOVEMBER 2002 | |
| Coram: | TEMPLEMAN J WHEELER J ROLFE AJ | 4/03/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed (CCA 106/02) Appeal dismissed (CCA 161/02) | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN JASON ROBERT HERBERT |
Catchwords: | Criminal law and procedure Sentencing Crown appeal Necessity to identify error in individual sentences Armed robbery Background of similar offences Offence committed on parole Risk of re-offending Psychological disposition Whether "conventional" armed robbery Combination of parole and non-parole terms Totality |
Legislation: | Sentence Administration Act 1995 (WA), s 30(2), s 8(1) Sentencing Act 1995 (WA), s 87 |
Case References: | Goundar (2002) 127 A Crim R 331 McLean v The Queen [1999] WASCA 209 Miles v R (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Robinson v R, unreported; CCA SCt of WA; Library No 980587; 9 October 1998 The Queen v Masterton, unreported; CCA SCt of Vic; 31 August 1982 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- HERBERT [2003] WASCA 27 CORAM : TEMPLEMAN J
- WHEELER J
ROLFE AJ
- CCA 161 of 2002
- Appellant
AND
JASON ROBERT HERBERT
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Crown appeal - Necessity to identify error in individual sentences - Armed robbery - Background of similar offences - Offence committed on parole - Risk of re-offending - Psychological disposition - Whether "conventional" armed robbery - Combination of parole and non-parole terms - Totality
Legislation:
Sentence Administration Act 1995 (WA), s 30(2), s 8(1)
Sentencing Act 1995 (WA), s 87
(Page 2)
Result:
Appeal allowed (CCA 106/02)
Appeal dismissed (CCA 161/02)
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates
Respondent : Mr H C Quail
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Hylton Quail
Case(s) referred to in judgment(s):
Goundar (2002) 127 A Crim R 331
McLean v The Queen [1999] WASCA 209
Miles v R (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Robinson v R, unreported; CCA SCt of WA; Library No 980587; 9 October 1998
The Queen v Masterton, unreported; CCA SCt of Vic; 31 August 1982
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: These are two Crown appeals against sentence.
The first appeal – 106 of 2002
2 On 17 April 2002, the respondent was convicted after trial in the Supreme Court on one offence of armed robbery with threats of actual violence and one offence of stealing a motor vehicle. These were counts 1 and 2 on the indictment.
3 During the course of submissions relating to sentence, the respondent made it known through his counsel that he intended to plead guilty to a further offence of armed robbery in company with his brother. This was count 6 on the indictment. The respondent was due to be tried for that offence in the following month. The respondent requested that he be sentenced in relation to the three offences.
4 The respondent committed the first armed robbery on 1 May 2001, at Wanneroo. He threatened the proprietor of a general store by showing her a metal bar or rod which was tucked into his trousers. Faced with that threat, the proprietor opened the till, allowing the respondent to take money from it. The respondent then demanded that the proprietor give him the contents of another drawer, which she did. In addition, the respondent took two packets of cigarettes before leaving the store.
5 The respondent drove away from the store in a motor vehicle which he knew to have been stolen. That was the substance of the second count.
6 The second armed robbery was committed two weeks later, on 14 May 2001. At about 8 am on that day, the respondent threatened the franchisee of a service station and his female employee with a loaded, cut-down .22 rifle. The respondent demanded money and was given about $7,500 in cash. This was the previous day's takings which had been placed in a bag in preparation for banking.
7 In the course of the robbery, the respondent said to his two victims "The gun is real. Do you want me to use it on you?"
8 The respondent was apprehended shortly after the robbery. However, the rifle was not recovered, nor was all but $475 of the money which the respondent had stolen.
9 On 31 May 2002, the respondent was sentenced to imprisonment for 6 years for the first armed robbery, imprisonment for 1 year for stealing the motor vehicle and imprisonment for 8 years for the second armed
(Page 4)
- robbery. All sentences were concurrent. The respondent was not made eligible for parole.
10 In his sentencing remarks, the learned sentencing Judge recited the relevant facts, which I have summarised above. His Honour said that those facts reveal "a very serious chapter of criminality, particularly because of the use of a firearm in the robbery".
11 His Honour then noted that the respondent had a long criminal history, involving a substantial number of serious offences. On 17 January 1995, the respondent had been convicted of armed robbery, for which he was sentenced to a term of 3 years and 10 months imprisonment. On the same day, the respondent was sentenced to a further 12 months' imprisonment for assault to prevent arrest. That sentence was to be served cumulatively, making a total sentence of imprisonment of 4 years and 10 months.
12 Then on 12 October 1995, the respondent was convicted of eight counts of armed robbery. For those offences he was sentenced to a total term of 10 years' imprisonment without parole. However, on appeal, parole was granted.
13 In sentencing for the most recent offences on 31 May 2002, the learned sentencing Judge referred to a report by a Senior Community Corrections Officer indicating that the respondent's performance on parole had been "extremely poor". The Community Corrections Officer said that the respondent had been disinclined to participate in any programmes or to cooperate with parole supervision. Although the respondent's behaviour was said to have improved in recent times, within the prison system, the respondent was still facing a serious assault charge arising out of his behaviour while in custody.
14 The learned sentencing Judge had the benefit of a psychological report from which it appeared that during his time in custody, the respondent had successfully completed a university entrance examination and a computer programming course. His Honour said:
"I am persuaded that you do have ability and the capacity to live a worthwhile and law abiding life should you chose to embark upon a career. However, it seems unlikely that you will adopt that path in the near future."
15 During earlier submissions, the respondent had made it known that he did not wish to be made eligible for parole. However, as the learned
(Page 5)
- sentencing Judge then pointed out, it was not a matter for the respondent alone. In the event, his Honour declined to make an order for parole eligibility, for reasons which included the respondent's poor performance whilst on parole. His Honour concluded by saying that the sentence would run from 31 May 2002, because the respondent had been serving earlier sentences during the period of his remand in custody. In fact, the respondent "owed" some 1,704 breach of parole days when he came to be sentenced on 31 May 2002.
The grounds of appeal
16 There are three grounds of appeal. They are as follows.
"1. The sentencing Judge erred in imposing an overall term that in the circumstances was manifestly inadequate.
PARTICULARS
The overall term imposed:
(a) Failed to adequately reflect the seriousness of the offences, and in particular
(i) the lack of any significant mitigatory features in the circumstances in which the Respondent committed the offences;
(ii) the lack of any identified mitigatory features by way of the Respondent's age, or in his antecedents, criminal history, or other matters personal to him;
(iii) the fact that in the case of Count (6) the Respondent was armed was a loaded firearm, and overtly threatened to use it;
(iv) the lack of any mitigation by way of the Respondent pleading 'guilty' at an earlier reasonable opportunity.
(v) the Respondent's lack of remorse or contrition or motivation to reform;
(Page 6)
- (vi) the fact that each of the offences were committed shortly after his release on parole for like crimes.
- (b) Failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community, and manifests a decline in sentencing standards for crimes of armed robbery.
- 2. The sentencing Judge erred in that he ordered that the sentences for Counts (1), (2) and (6) be served concurrently.
3. The sentencing Judge erred in that he failed to order that the sentences imposed on 31 May 2002 be served cumulatively upon what remained of the Respondent's sentence for earlier offences of armed robbery."
17 In relation to ground 1, counsel for the appellant accepted that there was "no great complaint" about the individual sentences imposed on the respondent. Counsel said that the appellant placed greatest reliance on ground 2. That was because, accepting that the sentence of imprisonment of 1 year for stealing the motor vehicle could properly have been made concurrent with the first armed robbery, a total of 14 years' imprisonment, would have been the result of aggregating the sentences for the two armed robberies. Counsel submitted that this would have been appropriate and would not have offended the totality principle.
18 However, it is necessary for the Court to identify error not only in the sentences as a whole, but in the individual sentences which combine to form the total: Pearce v The Queen (1998) 194 CLR 610 at 623 – 4, par [45] – par [49]. That being so, it is necessary to consider whether any of the sentences imposed by the Judge involved an error of principle.
19 The sentence of 6 years' imprisonment for the first armed robbery was within the range of 6 to 9 years' imprisonment which this Court has held to be appropriate for offences of that kind: Miles v R (1997) 17 WAR 518 at 521, per Malcolm CJ.
20 In relation to the first armed robbery, there were no mitigating factors. The offence was aggravated by the fact that the respondent committed it while on parole. However, the offence was, in my view, at the lower end of the range of seriousness for armed robberies.
(Page 7)
21 For those reasons, I am not persuaded that the appellant has demonstrated error in the sentence of 6 years' imprisonment imposed for the first armed robbery.
22 In my view, the same may be said also of the sentence of imprisonment of 1 year in respect of the use of the stolen motor vehicle. Although the offence is serious and is a particularly unpleasant one for the victim, the respondent had not himself stolen the motor vehicle, although he used it knowing it to have been stolen.
23 I am, however, of the view that the sentence of 8 years' imprisonment for the second armed robbery is manifestly inadequate, and therefore discloses error. That error is, I think, identified in ground 1(a)(iii) above. The range of 6 to 9 years' imprisonment established by Miles v The Queen (supra) applies to "the conventional armed robbery of a bank or similar premises". However, the present case was not a "conventional" armed robbery. That is because a loaded firearm was used to threaten the victims. Furthermore, this was a robbery of a service station, a much more vulnerable target than a bank.
24 Although the learned sentencing Judge referred to the use of the firearm, his Honour made no mention of the fact that the firearm had been loaded. That information was, however, before his Honour in the psychological report to which he referred. The author of the report said that the respondent:
"acknowledged that the gun he carried at the time of the offence was loaded and when asked why he took a loaded gun (the respondent) said 'I've always had a loaded gun … used to guns, came into contact with guns on my grandparents property shooting ducks and stuff'.
Clinical impressions of (the respondent's) comments and demeanour when explaining his offending suggested that he used a gun during the offence as a means to 'fit' with the criminal image he has of himself as being a member of the criminal hierarchy."
25 Later in the report, the psychologist expressed the view that the respondent suffered from a personality disorder which is characterised by "a pervasive pattern of disregard for and violation of the rights of others" and that his current risk of further violent re-offending was high. Although the psychologist recommended that the respondent be assessed
(Page 8)
- for participation in a Violent Offender Treatment Programme, she apparently had some reservations about its utility in this case.
26 This case therefore involves the following factors:
• the use of a loaded firearm by an offender who regards it as normal to carry such a weapon
• an offender who regards himself as a member of the criminal hierarchy
• an offender who has committed a number of similar offences
• an offence committed while on parole
• a personality disorder of the kind identified by the psychologist
• a high risk of re-offending
27 Taking all these circumstances into account, I consider that a sentence of imprisonment above the 6 – 9 year range is called for, I would impose a sentence of 12 years' imprisonment, which I would discount to 10 years to take account of the respondent's relatively late plea of guilty. I would discount it further, to 9 years, to take account of the fact that this is a Crown appeal, and double jeopardy is a consideration. In these circumstances, it is appropriate to impose a sentence slightly lower than that which might have been imposed at first instance: see Goundar (2002) 127 A Crim R 331 at par [57].
28 I would now grant parole. The respondent did not ask for parole: and he does not ask for it now. However, despite the psychologist's somewhat gloomy prognosis, there are signs that justify cautious optimism. As the learned sentencing Judge noted, the respondent's behaviour in prison has improved, and he has undertaken some worthwhile computer studies. As I have already noted, the Judge said that the respondent had "the ability and the capacity to live a worthwhile and law-abiding life should you choose to embark upon a career". However, the Judge went on to say that it seemed unlikely that the respondent would take that path.
29 It may be that despite the respondent's high degree of criminality in the past, he will mature into a responsible member of the community. If, when the time comes, the respondent does not demonstrate to the Parole Board that he is no longer a risk to the community, he will not be released
(Page 9)
- on parole. But in my view, given the opportunity to reform which a long term of imprisonment will afford the respondent, he should be given the incentive of a parole eligibility order.
30 Thus far, the aggregate of the sentences imposed is 15 years' imprisonment. But that is not the end of the matter. Account must be taken of the 1,704 parole days (4 years 8 months) which the respondent "owed", when he was sentenced on 31 May 2002: McLean v The Queen [1999] WASCA 209. In that case, Ipp J with whom Wallwork and Parker JJ agreed, noted that by s 30(2) of the Sentence Administration Act 1995, if an offender is sentenced to imprisonment for an offence committed while on parole, the parole order is automatically cancelled. That being so, the Court held, because the outstanding parole days constitute a term of imprisonment which the offender is obliged by statute to serve, this term must be taken into account when assessing the totality of the overall term of imprisonment to be imposed in respect of offences committed subsequently.
31 In so holding, Ipp J applied the decision of the Court of Criminal Appeal of Victoria in The Queen v Masterton, unreported; CCA SCt of Vic; 31 August 1982. There, the Court held:
"If the sentence to be imposed is to be another term of imprisonment … for an offence committed during the parole period, the Judge must take into account the liability of the prisoner to serve the unexpired portion of the parole period. That liability may be reduced or even obliterated by the Parole Board but it is not relevant for the sentencing Judge to take into account the policy of the Board in such cases: see R v Bruce [1971] VR 656."
32 Adding the parole days increases the term of imprisonment to 19 years 8 months: and this raises questions of totality. In my view, despite the number and seriousness of the offences the respondent has committed, a sentence of this length would be crushing. I think that 14 years would be sufficient in all the circumstances.
33 It therefore becomes necessary to structure the sentence so as to reflect the fact that it is derived from a combination of parole and non-parole terms. This requires a consideration of s 8(1) of the Sentence Administration Act 1995, which provides that a prisoner who is sentenced to serve two or more fixed terms, is to serve those terms in the following order:
(Page 10)
- "(a) firstly, those that are not parole terms are to be served according to whether they are concurrent or cumulative with one another;
(b) secondly, the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent or cumulative with one another;
(c) thirdly, unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served according to whether they are concurrent or cumulative with one another."
34 In short, the scheme of the legislation is to require an offender to serve non-parole terms before parole terms.
35 As I see it, the term of 14 years' imprisonment should include the 4 years 8 months which the respondent "owes" to the Parole Board. This Court has no jurisdiction to interfere with that sentence. In my view, the sentences imposed in respect of the later offences should be served cumulatively upon the 4 years 8 months outstanding, because the offences are quite separate. I would achieve the objective by imposing a sentence of imprisonment of 3 years 4 months in respect of the second armed robbery (count 6), to be served cumulatively on the sentence of 6 years' imprisonment on counts 1 and 2, and on the outstanding term of the previous sentences. I would therefore structure the sentence as follows:
1. Count 1 – 6 years without parole.
2. Count 2 – 1 year without parole, to be served concurrently with the 6 years.
3. Count 6 – 3 years 4 months with parole, to be served cumulatively on the 6 years.
4. The sentence of 9 years 4 months to be served cumulatively on the 4 years 8 months outstanding from previous sentences.
36 The total is therefore 14 years.
37 I would order the sentences to commence from 31 May 2002. They cannot be backdated, having regard to s 87 of the Sentencing Act, because the respondent was serving a parole term while in custody from 14 May 2001, until he was sentenced. His parole had been cancelled on 12 April 2001.
(Page 11)
38 Having reached the result that the appeal should be allowed on this ground, it is not necessary to consider grounds 2 or 3.
The Second Appeal – 161 of 2002
39 On 5 August 2002, the respondent pleaded guilty before another Judge of this Court to two further charges of armed robbery. These were counts 3 and 5 on the original indictment.
40 Count 3 related to an offence committed at about 8.45 pm on 3 May 2001, when the respondent robbed a Chemmart store after threatening a 16-year-old female counter attendant with a knife. The respondent, who was wearing a jacket with a hood over his head, stole $7,201.35 in cash. None of this money was recovered.
41 The respondent committed the offence charged in count 5 a few days later, on 13 May 2001, at about 8.15 pm. He then robbed a delicatessen after threatening the owner, the owner's daughter and two customers with a loaded .22 calibre rifle. The respondent emptied the till. However, it is not clear how much money was stolen.
42 The learned sentencing Judge imposed sentences of imprisonment for one year in respect of count 3 and two years in respect of count 5. These sentences were to be served cumulatively on one another, and on the sentences imposed by the previous Judge, on 31 May 2002.
43 The respondent was made eligible for parole.
The Grounds of Appeal
44 The Crown now appeals on the ground that the "overall term" of three years imprisonment was "manifestly inadequate". The following particulars are relied on:
"The overall term imposed:
(a) Failed to adequately reflect the seriousness of the offences, and in particular
(i) the lack of any significant mitigatory features in the circumstances in which the Respondent committed the offences;
(Page 12)
- (ii) the lack of any identified mitigatory features by way of the Respondent's age, or in his antecedents, criminal history, or other matters personal to him;
(iii) the fact that in the case of Count (5) the Respondent was armed with a loaded firearm, and overtly threatened to use it;
(iv) the lack of any mitigation by way of the Respondent pleading 'guilty' at an earlier reasonable opportunity;
(v) the Respondent's lack of remorse or contrition or demonstrated motivation to reform;
(vi) the fact that each of the offences were committed shortly after his release on parole for like crimes;
(vii) the fact that the crimes were part of a course of offending that only ceased when the offender was caught escaping the scene of an armed robbery he committed the morning following his commission of the armed robbery the subject of Count (5)
- (b) Failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community, and manifests a decline in sentencing standards for crimes of armed robbery."
45 Although there is merit in each of these contentions, they are subject to what I regard as a consideration of paramount importance in the present circumstances: namely, the totality principle.
46 The learned sentencing Judge, as he was obliged to do, applied that principle in adding to sentences totalling 8 years' imprisonment which had been imposed less than three months earlier: Mill v The Queen (1988) 166 CLR 59. I do not think it necessary, now, to decide whether an additional 3 years' imprisonment was inadequate. That is because, on the view I take of the first appeal, the totality principle applies a fortiori in relation to this appeal. The offences committed by the respondent were very serious, especially those involving loaded firearms and vulnerable targets. The respondent has not, until recently, given any indication that he is likely to reform. He has now done so: but the offences nevertheless
(Page 13)
- call for substantial sentences of imprisonment. There is an obvious need to protect the public. However, to subject the respondent to anything more than 17 years' imprisonment would, I think, offend against the totality principle. It would impose a crushing burden on the respondent. He has spent almost all his adult life in prison, and now shows some potential for reform.
47 I would not, therefore, disturb the sentences imposed by the learned sentencing Judge. It follows that this appeal should be dismissed.
48 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I am in agreement with them. I would agree with the orders proposed by his Honour.
49 There is however one further matter upon which I wish to comment. It relates to the relevance of the fact that this was a robbery of a service station, which was a "vulnerable" target. I appreciate that there is authority for the proposition that those who provide services to the community, particularly during holiday periods and at night, must be protected by sentences of sufficient severity to satisfy the requirements of personal and general deterrence, eg Robinson v R, unreported; CCA SCt of WA; Library No 980587; 9 October 1998, per Murray J at 11 (Ipp and Wallwork JJ concurring).
50 However, the view that a selection of a "vulnerable" target is something which is invariably aggravating and will invariably increase the appropriate sentence, seems to me to be an approach which may on occasion lead to error. Often, a target which is apparently vulnerable attracts an offender whose offence is committed more or less impulsively, and the offender is often able to effect his or her purpose with a relatively low level of threat, such as by showing an implement such as a stick or a rock, or threatening the use of a knife but not actually producing it. By contrast, it is often the case that a target which is known to be less vulnerable, such as a bank, will be the subject of an offence carried out with a greater degree of premeditation and planning, and offenders who attack such a target will often be better armed, or may be presumed to be more likely to intend actually to use the weapons they possess if the need should arise. All of these factors interact. It may be that where a target is a particularly tempting one, and particularly where offences against a business of a particular kind appear to be prevalent, there is justification for giving greater weight to considerations of deterrence, and less weight to other factors such as personal factors, in relation to offences against a business of that kind.
(Page 14)
51 In the present case, what seems to me to put the offence committed on 14 May 2001 into a particularly serious category is the carrying of a loaded firearm, the pointing of the firearm at two persons, and the determined manner in which the respondent proceeded over a period of time, while in the service station, to ensure that he obtained cash and to attempt to obtain a vehicle in which to escape. In my view, those circumstances, whatever the nature of the business targeted, would amply justify the sentence of 12 years' imprisonment which Templeman J suggested as an appropriate reflection of the seriousness of the offence.
52 ROLFE AJ: I have had the advantage of reading in draft form the reasons of Templeman J. I agree with his Honour and have nothing to add.
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