R v Roworth

[2003] WASCA 120

R -v- ROWORTH [2003] WASCA 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 120
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:212/2002	Heard:	1 MAY 2003
Coram:	MALCOLM CJ MCKECHNIE J PULLIN J	Delivered:	13/06/03
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal allowed Total of sentences increased from 9­1/2 years to 12­1/2 years
Category:	B
PDF Version

Parties:	THE QUEEN SHAWN MEECHAM ROWORTH
Catchwords:	Criminal law and procedure Sentencing Series of armed robberies and stealing motor vehicles Crown appeal Totality principle Whether sentences manifestly inadequate
Legislation:	Criminal Code (WA), ss 371A, 378(2), 392 Road Traffic Act 1974 (WA), ss 60, 61
Case References:	Dinsdale v The Queen (2000) 202 CLR 321 Miles v The Queen (1997) 17 WAR 518 Pearce v The Queen (1998) 194 CLR 610 Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 R v Wright [2003] WASCA 56 Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Valentine v The Queen [2003] WASCA 7 Jarvis v The Queen (1993) 20 WAR 201 McKenna v The Queen (1992) 7 WAR 455 Mulligan v The Queen [2002] WASCA 5 R v Ward (1999) 109 A Crim R 159 Woods v The Queen (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- ROWORTH [2003] WASCA 120 CORAM : MALCOLM CJ

MCKECHNIE J
PULLIN J

HEARD : 1 MAY 2003 DELIVERED : 13 JUNE 2003 FILE NO/S : CCA 212 of 2002 BETWEEN : THE QUEEN

Appellant

AND

SHAWN MEECHAM ROWORTH
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Series of armed robberies and stealing motor vehicles - Crown appeal - Totality principle - Whether sentences manifestly inadequate

Legislation:

Criminal Code (WA), ss 371A, 378(2), 392

Road Traffic Act 1974 (WA), ss 60, 61

(Page 2)

Result:

Appeal allowed

Total of sentences increased from 9­1/2 years to 12­1/2 years

Category: B

Representation:

Counsel:

Appellant : Mr D Dempster
Respondent : Ms J T Fisher

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Justine Fisher

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

Dinsdale v The Queen (2000) 202 CLR 321
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398
R v Wright [2003] WASCA 56
Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Valentine v The Queen [2003] WASCA 7

Case(s) also cited:

Jarvis v The Queen (1993) 20 WAR 201
McKenna v The Queen (1992) 7 WAR 455
Mulligan v The Queen [2002] WASCA 5
R v Ward (1999) 109 A Crim R 159
Woods v The Queen (1994) 14 WAR 341

(Page 3)

1 MALCOLM CJ: This was a Crown appeal against sentence. The circumstances are fully set out in the reasons to be published by McKechnie J. On 4 November 2002, the respondent was convicted on his plea of guilty to seven counts of armed robbery contrary to s 392 of the Criminal Code ("the Code") and five counts of stealing motor vehicles contrary to ss 371A and 378 of the Code. The respondent was aged 25 at the time of the commission of the offences.

2 The learned sentencing Judge, Parker J, sentenced the respondent to a total of 9½ years' imprisonment for the offences. The sentences imposed were imprisonment for 5½ years for each of the seven counts of armed robbery and 1 year for each of the five counts of stealing a motor vehicle. The sentences on one of the armed robbery offences and four of the stealing a motor vehicle offences were ordered to be served cumulatively. All of the other sentences were ordered to be served concurrently. The sentences were directed to commence on 13 July 2002. An order was made that the respondent be eligible for parole in respect of each of the sentences.

3 The Crown appeal was originally on two grounds. Ground 1 was that the overall term of imprisonment was manifestly inadequate. Ground 2 was that the learned sentencing Judge was in error in ordering that the sentences for the armed robbery offences, the subject of counts (5), (6), (8), (9) and (12) be served concurrently with the other sentences imposed. At a late stage in the hearing of the appeal, the Crown was given leave to add a third ground, namely, that:

"The learned sentencing Judge erred in failing to fix an appropriate sentence for each offence before proceeding to apply the totality principle."

4 The maximum penalty for each of the armed robbery offences is life imprisonment under s 392 of the Code. The maximum penalty for each of the offences of stealing a motor vehicle contrary to s 371A of the Code is 7 years under s 378, if no other penalty is provided. Under s 378(2), if a motor vehicle is stolen and the offender either wilfully drives the motor vehicle in a manner which constitutes reckless driving under s 60 of the Road Traffic Act 1974 (WA) ("Road Traffic Act"); or drives the vehicle in a manner which constitutes dangerous driving under s 61 of the Road Traffic Act, the maximum penalty is imprisonment for 8 years.

5 As the facts recounted by McKechnie J demonstrate, there were five separate episodes of offences involved in the commission of the various

(Page 4)

offences, three of which involved the stealing of a motor vehicle which was then used to commit at least one armed robbery in company.

6 I agree with McKechnie J that the respondent had an appalling record prior to the commission of this latest series of offences. He was an unemployed, single male who had left school at the age of 13. He was born in Queensland in 1977 and came to Western Australia with his parents in the same year. His criminal career commenced at the age of 11 when he was convicted of stealing in 1988. By January 1996, he had been convicted of 51 offences of unauthorised use of or stealing a motor vehicle. He had also been convicted of 66 offences of burglary, being unlawfully on premises or stealing property other than motor vehicles. In 1996 he was convicted of a number of offences for which he was sentenced to imprisonment for a total of 5 years and 9 months on 19 January 1996. He was released from prison on parole on 24 April 2002.

7 The first of the present series of offences was committed just over a month later on 28 May 2002, when he stole the first motor vehicle. The two armed robbery offences, the subject of counts (2) and (3) on the indictment, were committed on 18 June 2002. The respondent was charged and taken into custody on 18 June 2002 but, surprisingly, he was released on bail on 17 July 2002. While he was on bail, even more surprisingly, in respect of the offences the subject of counts (1), (2) and (3), he committed the offences, the subject of counts (4) to (12) between 24 July and 8 August 2002. He was not then on parole.

8 This being a Crown appeal, the well-known principles applicable to such appeals must be applied. These were recently stated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321 at [3] – [4] per Gleeson CJ and Hayne J; at [21] per Gaudron and Gummow J; and at [57] – [62] per Kirby J.

9 In Western Australia, the range of sentences commonly imposed for armed robbery, depending on the individual circumstances, was increased from 5 to 7 years to 6 to 9 years in Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521, and White J at 522, with both of whom Pidgeon J agreed. In particular, those persons who provide services to the community, such as workers in service stations, delicatessens, pharmacies and similar premises which are vulnerable, need to be protected by sentences which will serve the interests of personal and general deterrence: Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998; Robinson v The Queen, unreported; CCA SCt

(Page 5)

of WA; Library No 980587; 9 October 1998 at 11 per Murray J (with whom Wallwork and Ipp JJ agreed); and Valentine v The Queen [2003] WASCA 7.

10 The particulars relied upon in support of ground 1 have been set out in full in the reasons to be published by McKechnie J, who has also conveniently set out the relevant facts which constitute five quite separate episodes of criminal conduct. As McKechnie J has demonstrated, the learned Judge considered that the offences committed were serious examples of armed robbery which left a large number of people physically threatened and traumatised, with one man seriously shaken and physically injured and with many people having suffered loss of property and the inconvenience of having their vehicles stolen.

11 The process followed by the learned Judge in imposing the various sentences has been described in detail by McKechnie J. His Honour was required by the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 at [45] – [48] in which McHugh, Hayne and Callinan JJ said:

"[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v R (1988) 166 CLR 59].

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision [cfHouse v R (1936) 55 CLR 499]. It is, then, all the more important that proper principles be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules [See Crimes Act s 444 (2) and (3); Sentencing Act 1989 (NSW) s 9; see also Sentencing Act 1991 (Vic) s 16]. If, in fixing the appropriate sentence for each offence, the proper

(Page 6)

principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences [R v Lomax [1998] 1 VR 551 at 564, per Ormiston JA]."

12 The way in which the learned Judge approached the sentencing task has been described by McKechnie J. I agree with his Honour that the reduction of the individual terms of imprisonment to take account of the totality principle in the manner adopted was not in accordance with the approach described by the High Court in Pearce v The Queen (supra). Consequently, the appellant is entitled to succeed on ground 3. I also agree with McKechnie J that the approach adopted by the learned sentencing Judge failed to reflect the seriousness of each of the individual offences, except in relation to the offence of stealing the motor vehicle, the subject of count 1.

13 The result of this conclusion is that this Court is required to resentence the respondent. So far as the second episode of offending was concerned, the respondent was armed with a tomahawk and his co-offender was armed with a knife. An 80-year-old customer was assaulted by the respondent's co-offender and fell heavily onto the floor. He suffered a number of injuries as a result but, fortunately, none were serious, although the assault caused bodily harm and was aggravated by the fact that the victim was aged over 60. The respondent's offence of armed robbery in these circumstances was further aggravated by the fact that he was in company. In these circumstances, I consider that ground 2 succeeds because the sentence for the armed robbery, the subject of this episode failed to conform to the sentencing standard set in Miles v The Queen (supra) and Taylor v The Queen (supra) without any adequate justification.

14 After taking into account the pleas of guilty and all other relevant matters, I agree with McKechnie J that a sentence of 7 years should be substituted in respect of the offence, the subject of count (2) on the indictment.

15 The third episode of offending occurred while the respondent was on bail for the earlier offences. The stolen vehicle, the subject of count (4)

(Page 7)

was used to commit the armed robberies, the subject of counts (5) and (6). It was destroyed by fire and was valued at $18,000. I agree with McKechnie J that the sentence of 1 year imposed was manifestly inadequate and that the sentence should be increased to 3 years.

16 So far as the sentences imposed for counts (5) and (6) are concerned, I am not satisfied that a case has been made out for interfering with the sentences imposed.

17 The two offences of stealing a motor vehicle, the subject of counts (7) and (10) and the two offences of armed robbery, the subject of counts (8) and (9) which comprised episode 4, have been described by McKechnie J. I agree with McKechnie J that it is not necessary to interfere with the length of any of the sentences imposed. Nor would I interfere with the sentences imposed in respect of counts (11) and (12) in respect of which sentences of 1 year for stealing a motor vehicle and 5½ years for armed robbery were imposed.

18 I agree with McKechnie J that the course of criminal conduct only ceased when the respondent was arrested and taken into custody. It is also appropriate that when more than one offence of armed robbery was committed in a particular episode, the sentences should be made concurrent. However, each episode represented a separate and distinct course of criminal conduct and should lead to the imposition of cumulative sentences. In this respect, I agree with McKechnie J that the logical result of imposing appropriate sentences would be a total term of imprisonment of 24 years and 6 months. When the totality principle is taken into account so as to avoid a crushing sentence, while providing an appropriate level of punishment, I agree with McKechnie J that a proportionate response to the multiple offences committed by the respondent consistent with the totality principle would be to imprison him for a total of 12 years and 6 months. Such a reduction is warranted in the context of the respondent's liberty being in jeopardy for a second time as a result of the Crown appeal. For these reasons, I agree with the orders proposed by McKechnie J.

MCKECHNIE J:

Introduction

19 This is a Crown appeal against sentence and is subject to the principles which govern such appeals: R v Wright [2003] WASCA 56.

(Page 8)

20 On 4 November 2002, the respondent appeared before Parker J and pleaded guilty to seven counts of armed robbery and five counts of stealing motor vehicles. His plea of guilty was made at the first available opportunity and thus entitled him to a significant reduction in sentence. There were few other mitigating factors. The respondent was aged 25 and had an appalling record. These offences occurred shortly after the respondent had been released from prison after serving a term for armed robbery in company, burglary and grievous bodily harm. His conduct in prison was such as to disentitle him from parole.

21 Counts 2 to 12 on the indictment were committed while the respondent was on bail for count 1, and counts 4 to 12 were committed while the respondent was on bail for counts 2 and 3.

22 The Judge had information on the respondent's antecedents including a pre-sentence report and a psychological report. Additionally, he was provided with letters from the respondent's grandmother and mother and had the benefit of realistic submissions by counsel for the respondent.

23 The Judge imposed sentences of 5-1/2 years in respect of each armed robbery. He ordered each sentence be served concurrently. He imposed sentences of 1 year's imprisonment for each stealing of a motor vehicle. He ordered four of these sentences to be served cumulatively. The total sentence was therefore one of 9-1/2 years which was backdated to commence from 13 July 2002. The backdating of the sentence is not challenged.

24 The Judge made a parole eligibility order which is also unchallenged.

Grounds of appeal

25 The Crown appeals against the sentences on the following grounds:

"1. The learned 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:

(Page 9)

(i) the lack of any significant mitigatory feature in the circumstances in which the Respondent committed the offences;

(ii) the lack of mitigatory features by way of the Respondent's antecedents or criminal history;

(iii) the fact that all the offences save for Count (1) were committed whilst the Respondent was on bail;

(iv) the period of time over which the offences were committed;

(v) the number and seriousness of the offences;

(vi) the fact that Counts (2) and (3) involved a man 80 years of age being pushed to the ground;

(vii) the fact that Counts (5), (6), (8) involved the offenders either forcing entry or forcibly holding open doors to gain access; and

(viii) the fact that in the case of each armed robbery more than one offender was armed; and the offenders were armed with a variety of frightening weapons namely knives, tomahawks, crowbars, hammers, wood splitters and bricks.

(b) Failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community (and, in particular, those in vulnerable positions such as shop attendants) and manifests a decline in sentencing standards for crimes of armed robbery.

2. The learned sentencing Judge erred in that he ordered the sentences for the armed robbery offences in Counts (5), (6), (8), (9) and (12) to be all served concurrently.

(Page 10)

3. The learned sentencing Judge erred in failing to fix an appropriate sentence for each offence before proceeding to apply the totality principle."

Ground 3 was added by leave at the hearing of the appeal.

Summary of the criminal conduct

26 The offences can be conveniently divided into five episodes.

Episode 1

27 The Judge summarised the facts as follows:

"Count 1 was the theft of a motor vehicle, a Commodore, in May at Floreat. It was parked outside of a house. With a juvenile female relative you smashed the rear quarter window to gain entry and forced the ignition, cutting the wires to the immobiliser. The car was recovered but the young owner had to pay for the repairs. You denied any involvement in that even though the police found you hiding near the car with the young female accomplice."

Episode 2

28 The Judge summarised the facts as follows:

"… [Counts 2 and 3] were both committed on a pharmacy on 18 June this year at Wembley. For the offences you were both each armed with a knife and a tomahawk and you were, of course, with each other. During the first of them the further aggravating circumstance was that a very elderly man was thrown aside, causing him to fall heavily and he sustained numerous injuries as a consequence.

Roworth, you seem to have been armed with the tomahawk and you used that to threaten the chemist to give you the contents of the till. Having got the till takings you then demanded that the safe be opened and from those you took a large quantity of drugs. You then demanded that he hand over a wallet, the chemist, and from that you took some $300.

You, Reid, then demanded the wallet of a student pharmacist - and this is now count 3; those early effects were count 2 - and

(Page 11)

you took the money the student pharmacist had in his wallet, which was some $70, and you also took a number of other banking and other cards from the wallet. You then demanded (sic) to you the surveillance tape, but he couldn't operate the equipment and we have seen today what occurred.

You then both fled from the pharmacy. It seems some $295-odd was taken from the till, as well as the money from the two wallets and the drugs were valued close on $380. …"

Episode 3

29 The Judge summarised the facts as follows:

"Count 4 was another theft of a motor vehicle, another Commodore, on 24 July at Joondanna from the driveway of the owner's unit. It was recovered 3 days later. It had been burnt out. It was used to commit the robbery the subject of count 5.

Count 5 was an armed robbery whilst armed and in company. It was in the early hours of 27 July with another offender. You pumped fuel into your car at the Warnbro Caltex service station and then your co-offender went into the premises as if to pay. He, though, produced a crowbar which he brandished at the attendant and demanded money. He was given $200. While that was happening, you were holding the sliding glass doors of the premises open with a wood splitter. Both of you then fled in the stolen car.

Count 6 was another armed robbery whilst in company. It was some 2 hours after count 5. Just after 6.00 in the morning on 27 July with another offender you entered a shop at Spearwood. You, Roworth, again had the wood splitter and the co-offender a crowbar.

The woman, who was one of the owners of the shop, closed an internal door to protect herself but you smashed it open. You threatened the woman by raising the wood splitter above your head as though to strike her. You demanded money. She was in immediate fear of her life and she gave you the till tray, a cash bag and the money from her handbag. All told, it was some $220. You then made off with the co-offender."

(Page 12)

Episode 4

30 The Judge set out these facts as follows:

"The seventh charge was another stealing of a motor vehicle. On the night of 29 to 30 July you stole another Commodore from a house in Orelia. It was later used by you in two armed robberies that are counts 8 and 9. The sedan was later abandoned with front end damage in South Lake.

Count 8 was an armed robbery in company. At about 1.00 in the morning of 30 July with a juvenile co-offender you entered a Mobil service station at Hamilton Hill. You were brandishing a claw hammer and the co-offender a steel crowbar and a third offender, a juvenile, held open the sliding door. You demanded money from the attendant. You took the contents of the till tray. You then searched unsuccessfully for further money. You also took phone cards, cigarettes and soft drinks. The total value of what was taken is said to be some $2320. You then fled in the stolen car.

About half an hour after that offence you committed another armed robbery in company, which is count 9, at the Caltex service station in South Lake. You were brandishing a claw hammer, a co-offender a crowbar. There was an attendant servicing a pump when you drove up. You forced him back inside and forced him to open the cash register.

You took $320 from that and then phone cards valued, it seems, at some $2000 which you found in cupboards. You also forced the attendant to hand over his wallet. He just doesn't know what was in it. You then fled in the stolen Commodore but shortly afterwards you collided with a barrier and you had to leave the vehicle there and depart on foot.

The tenth charge was another stealing of a motor vehicle. On 30 July with a co-offender you stole a Nissan coupe at Hamilton Hill from a house. You forced the door lock and the ignition. The vehicle was later found abandoned at Orelia."

Episode 5

31 The Judge set out these facts:

(Page 13)

"Count 11 is the stealing of a motor vehicle on the night of 7, 8 August. With a juvenile co-offender you stole a Ford Fairlane from a house at Cooloongup. It was later found abandoned in Leda with front body damage. The vehicle had been used in an armed robbery which was count 12.

Count 12 was an armed robbery in company. In the morning of 8 August you entered the Mobil service station at Leda with other offenders. You were brandishing a brick and another offender a crowbar and another juvenile waited at the door. You threatened the attendant, forcing him to open the cash register, and you took the money from it, some $140. You all then drove off but a little later the juvenile who was driving ran into a bus seat and you had to abandon the car and make off on foot."

Seriousness of the offences

32 It is clear that the Judge regarded the offences seriously. This can be seen by his summary:

"All told, Roworth, some seven armed robbery offences, two of them with Reid, and five offences of stealing motor vehicles; a large number of people physically threatened and left with many forms of mental hurt and disability, and one gentleman quite seriously shaken and physically injured, and very many people having suffered losses of property and inconvenience with vehicles taken."

The structure of the total sentence

33 The Judge imposed terms of 5-1/2 years on counts 2 and 3, regarding them as one episode. He made the second sentence concurrent with the first.

34 He then imposed sentences of 5-1/2 years' imprisonment in respect of the remaining counts of armed robbery, each to be served concurrently with the sentence on count 2. He did not provide specific reasons for this course, but it is clear that he did so having in mind the effect of the total sentence.

35 For the offences of stealing motor vehicles, he imposed a sentence of 1 year's imprisonment for each count, the first four sentences to be served

(Page 14)

cumulatively on the others and on count 2, and the fifth sentence to be served concurrently. The total sentence imposed on the respondent was 9 years and 6 months backdated to 13 July 2002.

36 The Judge explained the sentence:

"… In reaching those terms they are less than they otherwise would be, significantly so, because of your pleas of guilty, because of what is said in your favour in the pre-sentence and the psychological reports and the pleas from your mother and your grandmother and especially because of the totality of these sentences.

By the time 9 and a half years is reached, even though there are a lot of armed robberies there, I think that the point has been reached where the total effect is about right as the measure of your total criminality, …

… I might indicate that with respect to the totality principle I have reduced both the individual terms and the total periods to which you might otherwise have been sentenced. …"

37 The reduction of the individual terms to take account of the totality is wrong in principle: Pearce v The Queen (1998) 194 CLR 610 at [45] - [48].

38 Consequently appeal ground 3 has been made out.

39 In the present case I consider that this error has resulted in the imposition of terms which failed to reflect the criminality of each individual offence, except for episode 1. I regard the sentence of 1 year for count 1 as within the range of a sound sentencing discretion.

40 In the course of the offences comprising episode 2, the respondent was armed with a tomahawk and the co-offender with a knife. The co-offender threw an 80 year old customer aside, causing him to fall heavily and slump to the floor. The customer sustained numerous though not, of themselves, overly serious injuries. However, the effect of the assault can be imagined. The respondent accepted culpability for doing bodily harm and acknowledged by his plea the circumstance of aggravation that the complainant was over the age of 60.

41 The fact that the respondent was armed exposed him to liability for a sentence of life imprisonment. The other circumstances of aggravation to

(Page 15)

which I have referred, together with the aggravating circumstance that he was in company with another, made this a serious example of the offence.

42 In Miles v The Queen (1997) 17 WAR 518, Malcolm CJ noted, at 521, that the range of sentences commonly imposed for a single offence of armed robbery, depending on the circumstances, would be from 6 to 9 years' imprisonment. That approach was confirmed in Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998; see also Valentine v The Queen [2003] WASCA 7:

43 In the words of the grounds of appeal, the sentence in respect of the counts of armed robbery in episode 2 failed to reflect the need for general and specific deterrence, the need for condign punishment, and manifests a decline in sentencing standards for crimes of armed robbery. I therefore uphold ground 1(b) of the appeal. Taking into account the plea of guilty on all other matters, I consider the criminality and the need for general and particular deterrence required a sentence of 7 years' imprisonment.

Episode 3 - offences committed while on bail

44 The vehicle, the subject of count 4, was stolen on 23 July 2002 from a driveway in Tyler Street, Joondanna, and was used in the commission of the two robberies, counts 5 and 6, and thereafter burnt. Its value was $18,000.

45 In my opinion a sentence of 1 year's imprisonment for the stealing of a motor vehicle in these circumstances is manifestly inadequate. Having regard to the plea of guilty, I consider an appropriate sentence to be one of 3 years' imprisonment.

46 The sentences for counts 5 and 6 and for the balance of the counts failed to reflect the significant aggravating circumstance that the latter offences occurred whilst the respondent was on bail. The offences committed were in reality a continuation of the criminal conduct the subject of earlier charges: Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 at [89]. It is not easy to discern whether the Judge gave specific attention to the fact that the offences occurred while the respondent was on bail. However, he may well have done so.

47 Whilst this aggravating circumstance should have been taken into account, having regard to the moderation to be applied in respect of Crown appeals, I decline now to increase these sentences.

(Page 16)

48 Counts 5 and 6 are properly to be regarded as attracting concurrent sentences.

Episode 4

49 The motor vehicle, the subject of count 7, appears to have been stolen in order to facilitate the armed robberies, counts 8 and 9. This vehicle was abandoned with a damaged front end close to the Caltex service station, the subject of count 9.

50 I am unable to say that the sentence for stealing the motor vehicle, the subject of count 7, is manifestly inadequate. Nor, having regard to the plea of guilty am I able to say that a sentence of 5-1/2 years' imprisonment for each robbery, counts 8 and 9, is manifestly inadequate. In view of the closeness in time of those offences, the Judge did not err in making those sentences concurrent with each other.

51 The vehicle, the subject of count 10, appears to have been stolen because the vehicle the subject of count 7 collided with the barrier at a railway line. The vehicle, the subject of count 10, was taken to enable the respondent to return home to Orelia where the vehicle was later found. The sentence was within the range of a sound sentencing discretion.

Episode 5

52 The vehicle, the subject of count 11, was stolen for the purposes of the robbery, count 12, and was later abandoned in Leda with front body damage because, again, it was crashed shortly after the crime.

53 I would not interfere with these sentences. I cannot say that the sentences of 1 year and 5-1/2 years are themselves manifestly inadequate.

The total sentence is manifestly inadequate

54 Apart from episode 1 and episode 2, the balance of the offences occurred between 24 July and 8 August 2002. It is a fair inference that the criminal conduct only ceased when the respondent was arrested and thereafter held in custody.

55 Before considering the question of totality, it is appropriate to consider the question of cumulation and concurrency of sentence.

(Page 17)

56 I have already remarked on the appropriateness of making concurrent sentences for the armed robbery offences committed within each episode. However, each episode represents separate and distinct criminal conduct and logically should lead to the imposition of cumulative sentences as follows:

Episode 1 (Count 1) 1 year

Episode 2 (Count 2 & Count 3) 7 years total

Episode 3 (Counts 4, 5 7 6) 5-1/2 years total

Episode 4 (Counts 7, 8, 9 & 10) 5-1/2 years total

Episode 5 (Counts 11 & 12) 5-1/2 years

_____

Total sentence:24-1/2 years

57 While this is a logical result, it remains necessary to consider the total effect of such a sentence on the respondent aged 25. The total sentence must provide condign punishment and deterrence, while at the same time avoid a crushing effect which leaves no hope to the offender, and consequently little desire for rehabilitation. With great respect to a very experienced Judge, I consider that a sentence of 9-1/2 years for the totality of the criminal conduct is manifestly inadequate to reflect the need for general and specific deterrence, the need for condign punishment to protect the community, and to maintain sentencing standards for crimes of armed robbery. I hold that the grounds of appeal have been made out.

Re-sentence

58 I would increase the sentences on counts 2, 3 and 4, as I have previously indicated, and restructure the cumulative and concurrent effect of the sentences to achieve a total sentence of 12-1/2 years' imprisonment. I make the observation that I have arrived at that total by expressly taking into account a degree of moderation due to the double jeopardy inherent in Crown appeals. Without that moderation I would have imposed a total sentence of 13-1/2 years.

59 To achieve the total of 12-1/2 years' imprisonment I would make the following orders:

1. The appeal be allowed;

2. The sentences imposed in the sentencing court be set aside;

(Page 18)

3. In lieu the following sentences be imposed:

Count 1: sentence of 1 year

Count 2: sentence of 7 years concurrent with count 1

Count 3: sentence of 7 years concurrent with counts 1 and 2

Count 4: sentence of 2 years

Count 5: sentence of 5-1/2 years

Count 6: sentence of 5-1/2 years


Counts 4, 5, 6 to be served concurrently with each other but cumulative upon the sentence for count 2

Count 7: sentence of 1 year

Count 8: sentence of 5-1/2 years

Count 9: sentence of 5-1/2 years

Count 10: sentence of 1 year

Count 11: sentence of 1 year

Count 12: sentence of 5-1/2 years


Counts 7 to 12 to be served concurrently with all other sentences.

A parole eligibility order on each sentence.

Sentences on counts 1, 2, 3, 7, 8, 9, 10, 11, 12 to commence from 13 July 2002.

60 PULLIN J: I agree with the reasons of McKechnie J and the orders proposed by him.