R v Roskell - [2002] WASCA 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- ROSKELL [2002] WASCA 188

CORAM: ANDERSON J
STEYTLER J
PARKER J

HEARD: 9 MAY 2002

DELIVERED : 17 JULY 2002

FILE NO/S: CCA 181 of 2001

BETWEEN: THE QUEEN
Appellant
AND
ZACHARY JAMES ROSKELL
Respondent

Catchwords:

Criminal law - Sentence - Crown appeal - Young adult male - Two counts of aggravated burglary, one of threat to influence witness and one of assault occasioning bodily harm - Serious violent offences - No remorse - Bad antecedents - Aggregate term of 2 years and 8 months' imprisonment set aside as manifestly inadequate - Aggregate sentence of 6 years substituted

Legislation:

Sentencing Act 1995, s 32

Result:

Appeal allowed
Sentence of 2 years 8 months set aside and aggregate sentence of 6 years substituted
Eligibility for parole

Category: B

Representation:

Counsel:

Appellant: Mr R E Cock QC
Respondent: Ms A E Horrigan

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Andree Horrigan

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

R v Petersen [1984] WAR 329

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: This is a Crown appeal against the inadequacy of an aggregate sentence of 2 years and 8 months' imprisonment imposed in the District Court by Williams DCJ on 30 November 2001.
The respondent had been presented on an indictment containing two counts of aggravated burglary and one count of making a threat with intent to influence. He also asked the court to deal with two pending charges, one of damage and one of assault occasioning bodily harm. The sentencing Judge agreed to pass sentences in respect to these charges as he was authorised to do by s 32 of the Sentencing Act1995.
It will be convenient to give an account of the five offences in chronological sequence.
At about 2.30 pm on 15 May 2001, Mr Scott Muir was at the Carousel shopping centre doing some shopping with his mother and girlfriend. The respondent approached Mr Muir from behind and drove his knee into Mr Muir's legs. When Mr Muir turned around, the respondent punched Mr Muir hard to the head with his fist. While Mr Muir was reeling from this punch, the respondent took hold of Mr Muir's head, pulled Mr Muir down forwards and drove his knee into Mr Muir's face. In the struggle that followed, Mr Muir fell to the ground and the respondent then thrust his fingers into Mr Muir's eyes. Someone came to Mr Muir's assistance and the respondent left the scene. Mr Muir received a fractured left cheekbone and required surgery to repair an injury to the orbital floor of his left eye; the injury being described as a "blow‑out". He also required four stitches to repair a cut to his left cheek and he sustained severe bruising to the face and severe emotional trauma.
Mr Muir reported the matter to the police. Apparently, the respondent was an acquaintance of the brother of Mr Muir's girlfriend. There was some antipathy between Mr Muir and the brother which may have provided the motive for the attack.
These events are the subject of the second matter on the s 32 notice; that is, charge number 36324 of 2001.
At about 8.05 pm on 30 July, the respondent entered a delicatessen in Albany Highway, Victoria Park, purchased a small item, spoke to the attendant and left. He approached the store next door and began to kick and punch the glass window beside the entrance door. The blows were landed with such force that the glass broke, propelling pieces of glass up to six metres inside the store. The respondent received a cut to his hand and did not try to enter the store, nor is it clear that he ever intended to do so. The papers do not reveal any motive for this offence. It is the subject of the first matter on the s 32 notice; that is, a charge of damage being charge number 34044 of 2001.
A little more than an hour after committing that offence, the respondent returned to his home address (which was a unit in a block of flats in East Victoria Park) and found that he had locked himself out. His attempts to get in were unsuccessful and he commenced to bang loudly on the kitchen window of the unit next door and on the front security screen of that unit. At the same time, he was shouting racial comments and threats at the occupier, a Mr Beeton. According to the statement of facts read to the sentencing Judge, he shouted threats such as, "If you come outside I will kill you" and "If I see you in Victoria Park I will do the same". He then commenced to kick the aluminium grille of the security door until he had made a hole large enough to climb through and he then climbed through the hole, and entered Mr Beeton's unit. Mr Beeton was on the telephone calling the police and the respondent attacked him, throwing him away from the telephone and across the lounge room. The respondent then hit Mr Beeton with his clenched fist to the face and to the rear of his head, and continued this assault for an appreciable time until two neighbours came to Mr Beeton's assistance restraining the respondent until the police arrived. The respondent appeared to have completely lost control of himself, according to the statement of one of these neighbours, a Mr Hills. He continued to struggle and to act in an extremely aggressive manner and to shout death threats at Mr Beeton, even after the arrival of the police. He was handcuffed and placed into a security van.
Mr Beeton, both neighbours and the three police officers who attended were covered in the respondent's blood, coming from the cut he had received in his attack on the store earlier that night. No doubt, in order to alarm them, the respondent told the police that he was hepatitis‑C positive and HIV positive, although this has not been confirmed. There is no suggestion that anyone was infected in consequence of their encounter with the respondent.
These are the events giving rise to count (1) on the indictment.
The respondent was charged with respect to the attack on Mr Beeton and released to bail on 31 July 2001. A day or two later, he was spoken to by the police concerning the assault on Mr Muir. Later still, on 21 September 2001, he went to Mr Muir's premises in Rivervale wearing a balaclava. He looked through a window into the premises and saw Mr Muir, and several other people in the house. He then went to the meter box and turned off the power and then called out to Mr Muir, telling him to come out and threatening several times to kill him. Mr Muir, in fear of his safety, left the house by the back door and his visitors hid behind furniture in the house. The respondent smashed his way in through the front lounge room window, pushing over a television cabinet in front of the window and commenced to search the house, shouting threats against Mr Muir. These threats were to the effect that he would kill Mr Muir if he had to go to court in respect to the earlier assault and that he had a gun and would use it to shoot Mr Muir. The respondent stole a guitar and amplifier and a mobile phone valued at about $1,200 and in due course left the premises.
It is the respondent's conduct on this occasion which gives rise to counts (2) and (3) on the indictment - aggravated burglary and threatening a potential witness with intent to influence.
There is no need to expatiate upon the seriousness of this sequence of offending. The facts speak for themselves.
The maximum penalty for the offences of aggravated burglary and making threats with intent to influence is 20 years' imprisonment and 10 years' imprisonment respectively. We add that the charge of damage, being the first charge on the s 32 notice, carries a maximum penalty of 6 months' imprisonment and the charge of assault occasioning bodily harm carries a maximum penalty of 5 years' imprisonment.
In respect to each of the counts of aggravated burglary, the respondent was sentenced to 12 months' imprisonment. In respect to the count of threatening with intent to influence, the respondent was sentenced to 8 months' imprisonment. These sentences were ordered to be served cumulatively. Sentences of 3 months' imprisonment and 12 months' imprisonment respectively were imposed with respect to the charges listed on the s 32 notice and these sentences were ordered to be served concurrently with each other and with the other sentences, thus giving an aggregate sentence of 2 years and 8 months.
The grounds of appeal plead that the sentences imposed with respect to the two charges of aggravated burglary and the sentence imposed with respect to the charge of assault occasioning bodily harm were each manifestly inadequate. It is also pleaded that the sentences with respect to the charges listed on the s 32 notice should not have been made concurrent with each other or with the sentences with respect to the counts on the indictment. Finally, it is pleaded that the overall sentence failed to reflect the need for specific and general deterrence.
We have reached the conclusion that these grounds of appeal have been made out.
As to the charges of aggravated burglary, the provision in the Criminal Code of a maximum penalty of 20 years' imprisonment is an expression by the legislature of its evaluation of the seriousness of the offence. The courts have a duty to accept that evaluation and to reflect it in sentencing: R v Petersen [1984] WAR 329 per Burt CJ at 334. In this case, these burglaries were home burglaries accompanied by serious assaults and threats of the utmost gravity. There was behaviour of an exceedingly violent and aggressive kind, calculated to terrorise the occupiers. The assault occasioning bodily harm was a very serious assault, resulting in serious injuries to Mr Muir's eye and to his cheekbone. The assault with intent to influence must be met with particular disapproval, because it was done with the intention of dissuading Mr Muir from giving evidence against the respondent in relation to his earlier assault on Mr Muir. Further, the offences the subject of the second and third counts on the indictment were committed whilst the respondent was on bail for the first count.
The respondent showed no genuine remorse. When questioned at the police station, he continued to make disparaging remarks about his victims and proffered absurd conspiracy theories in an effort to explain why the complaints had been made against him.
With the greatest respect, the sentences imposed by the learned sentencing Judge individually and in the aggregate were so far below that which was appropriate that this Court must intervene.
As to the respondent's personal circumstances, there seems to be no particular reason why he should be treated with leniency. Youth is no longer on his side. He appears to have a long history of drug abuse and is a heroin addict, but there would appear to be nothing else in his background deserving of particular attention . Certainly, the learned sentencing Judge found nothing of which to make special mention. As his Honour said, "there is very little to be said on your behalf" (AB 25).
It is to be observed that, in November 1997, the respondent was convicted before Muller DCJ on his plea of guilty of three counts of aggravated burglary, one charge of possession of methylamphetamine and three charges of possessing unlicensed firearms. He was then a self‑confessed heroin‑user. Muller DCJ adjourned sentencing in order to obtain a pre‑sentence report and granted bail, at which time he told the respondent that he was considering imposing suspended sentences in view of the respondent's young age (then 21 years) and in the light of submissions made on his behalf by his counsel to the effect that the respondent was remorseful and determined to stop using drugs and to turn over a new leaf. A court diversionary programme was imposed during the period of bail which required the respondent to report regularly and to provide urine samples for testing. The respondent's response to this programme was most unsatisfactory. It is quite obvious from the record before the Court when he finally came to be sentenced that whilst on bail he had relapsed into drug use and had failed to report for testing on a number of occasions. Muller DCJ told the respondent that in these circumstances suspended sentences were out of the question, but, nevertheless the aggregate sentence actually imposed was very lenient. The respondent was sentenced to 12 months' imprisonment on each of the three charges of aggravated burglary, to be served concurrently and he was fined with respect to the other offences. In imposing these sentences, Muller DCJ said:
"I do accept … what your counsel has said in mitigation and I am prepared to reduce this sentence substantially to reflect your plea of guilty and most importantly of all, your age. I hope that during your period of incarceration you will be able to overcome your addiction so that when you are released on parole, you can live a drug free life and continue to live a drug free life after your period on parole has been completed."
It is quite apparent that the respondent has failed to take advantage of the leniency extended to him on that occasion and he has failed dismally to live up to the hopes of the learned sentencing Judge. The offences which brought the respondent before Williams DCJ in the District Court in November 2001 were significantly more serious.
After making full allowance for the pleas of guilty and also for the element of double‑jeopardy involved in every Crown appeal against sentence, and after giving careful consideration to the totality principle, we have come to the conclusion that the sentences below must be set aside and the following sentences imposed.

Indictment:

Count 1 - aggravated burglary of Mr Beeton - 3 years' imprisonment
Count 2 - aggravated burglary of Mr Muir - 3 years' imprisonment concurrent
Count 3 - threat to influence witness - 15 months' imprisonment cumulative

Section 32 notice:

Item 1 - damage - 3 months' imprisonment concurrent
Item 2 - assault occasioning bodily harm to Mr Muir - 21 months' imprisonment cumulative.

There should be an order for eligibility for parole in respect to each of these sentences.