Richardson v The State of Western Australia
[2005] WASCA 92
•26 MAY 2005
RICHARDSON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 92 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:197/2004 | 20 APRIL 2005 | |
| Coram: | STEYTLER P MCLURE JA PULLIN JA | 26/05/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence quashed New sentence imposed | ||
| B | |||
| PDF Version |
| Parties: | MARC RICHARDSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Practice and procedure Application for leave to appeal against sentence Whether sentence manifestly excessive Turns on own facts |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1 |
Case References: | Fleming v The Queen, unreported; CCA SCt of WA; Library No 990206; 23 April 1999 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Madden v The Queen, unreported; CCA SCt of WA; Library No 970244; 1 May 1997 Miles v The Queen (1997) 17 WAR 518 R v Hood (2000) 111 A Crim R 556 R v Pooter [2001] WASCA 67 R v Roworth [2003] WASCA 120 Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997 Valentine v The Queen [2003] WASCA 7 Wilson v The Queen, unreported; CCA SCt of WA; Library No 990087; 26 February 1999 Wong v The Queen (2001) 207 CLR 584 Dinsdale v The Queen (2000) 202 CLR 321 Duncan v The Queen (1983) 47 ALR 746 Grimshaw v The Queen [2001] WASCA 427 Krencej v The Queen [1999] WASCA 20 Miller v The Queen [2001] WASCA 426 R v Aloia [1983] WAR 133 R v Thomson (1998) 105 A Crim R 150 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RICHARDSON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 92 CORAM : STEYTLER P
- MCLURE JA
PULLIN JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 1785 of 2004
Catchwords:
Criminal law - Practice and procedure - Application for leave to appeal against sentence - Whether sentence manifestly excessive - Turns on own facts
(Page 2)
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1
Result:
Appeal allowed
Sentence quashed
New sentence imposed
Category: B
Representation:
Counsel:
Applicant : Mr J I Brash
Respondent : Ms L Petrusa & Ms G Colborne
Solicitors:
Applicant : Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fleming v The Queen, unreported; CCA SCt of WA; Library No 990206; 23 April 1999
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Madden v The Queen, unreported; CCA SCt of WA; Library No 970244; 1 May 1997
Miles v The Queen (1997) 17 WAR 518
R v Hood (2000) 111 A Crim R 556
R v Pooter [2001] WASCA 67
R v Roworth [2003] WASCA 120
Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997
Valentine v The Queen [2003] WASCA 7
(Page 3)
Wilson v The Queen, unreported; CCA SCt of WA; Library No 990087; 26 February 1999
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Duncan v The Queen (1983) 47 ALR 746
Grimshaw v The Queen [2001] WASCA 427
Krencej v The Queen [1999] WASCA 20
Miller v The Queen [2001] WASCA 426
R v Aloia [1983] WAR 133
R v Thomson (1998) 105 A Crim R 150
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1 STEYTLER P: This is an application for leave to appeal against sentence.
2 The applicant, who was 23 years old when sentenced, has an extensive criminal history in New South Wales, primarily encompassing such offences as possession or receiving of stolen property, breaking and entering and car theft. He and his siblings had developed substance problems in their early teens and this led to associated criminal patterns of behaviour. The applicant's pre-sentence report suggests that there were other contributing problems. His father is a paranoid schizophrenic, who developed co-morbid conditions of gambling and alcoholism. Even more significantly, the applicant was sexually abused by a teacher, with whom he lived, between the ages of 13 and 21. He suffers from ongoing depression.
3 The applicant's escalating pattern of offending brought him repeatedly before the courts in New South Wales. A number of community based dispositions were tried. However, his overall response to these was poor and he continued to reoffend while subject to them.
4 In 2001 the applicant's mother decided to relocate to Perth in an attempt to break the cycle of offending which had commenced with the applicant's younger twin brothers. The applicant remained in Sydney, where he had been living, until early 2003, when he came to Perth to visit his family and stayed with them for a while, until October 2003.
5 The offence the subject of these proceedings was committed while he was in Perth. On the evening of 25 April 2003 he was the driver of a hire car in which there were two other adult males, one in the front passenger seat and one in the back. They were on their way to obtain some drugs. They stopped at a bus stop to talk to some young girls who they saw standing there. The complainant, a teenage schoolboy, approached the rear passenger side window of the car and asked the occupants of the car if they had any cannabis to sell. The applicant overheard one of his co-offenders (the back seat passenger) say that he intended to take the complainant's wallet (the complainant said that he had taken it out in order to pay for his bus fare) and, within seconds, the rear seat passenger grabbed hold of the wallet. The complainant held on to his wallet and his head and shoulders were dragged into the car. The co-offender who had grabbed the wallet yelled to the applicant to "Go, go, go". The applicant drove the car away from the kerb and, realising that the complainant was still partly within the car, accelerated and braked a number of times in order to dislodge the complainant who, during this time, was being
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- punched by the other two offenders in an attempt to get him to loosen his grip on his wallet. The complainant was eventually dislodged, after being dragged for approximately 30 metres. He was left with substantial bruising and lacerations requiring medical treatment. His wallet and contents, valued at $110, was stolen.
6 In October 2003 the applicant returned to Sydney. While there, he was dealt with by the Parramatta Drug Court for a period of time. After five months he decided to leave New South Wales and move to Perth, so that he could be with his family. Within a month of relocating to Perth, he was dealt with by the courts for a number of offences committed in January 2003. He first appeared in the Drug Court on 29 March 2004. He was placed on a pre-sentence report order on 25 June 2004. In the interim, in April 2004, he was questioned about the offence the subject of these proceedings. He was then charged. He pleaded guilty on the fast track, ultimately being sentenced on 5 November 2004.
7 In the period leading up to his sentencing, the applicant's response to the regime imposed upon him by the Perth Drug Court was generally favourable. He reported for urinalysis as required and also engaged in psychological counselling. He attended nine appointments with a psychologist between 21 April 2004 and 30 June 2004. In a report which was provided to the sentencing Judge, the psychologist said that the applicant "presented positively" as regards his commitment to deal appropriately with his drug taking and associated criminal behaviour. He engaged in weekly substance abuse counselling and attended a residential treatment programme at Palmerston Farm between 31 August 2004 and 21 September 2004. He attended a group counselling session at Holyoake on 22 October 2004. The applicant's toxicology results indicate an absence of amphetamine use (amphetamine had been his drug of choice) as from 4 August 2004 and his urinalysis reports had been "clear" in April, May and June 2004.
8 A pre-sentence report prepared in respect of the applicant suggests that his compliance with the Drug Court regime became "questionable" in the days immediately preceding his sentencing for the subject offence, but this seems to be based only upon his failure to attend one scheduled interview with his psychologist. He had, by then, obtained full-time work with a concreting firm by which he had previously been employed on a casual basis. His employer said that he found him to be "hardworking, honest and polite" and that he had been punctual and "of a sober and clean mind".
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9 The applicant has two children from prior relationships. One is five years old and the other is seven years old. Both reside in New South Wales. He appears to have little contact with either of them, although he does telephone them on a fortnightly basis.
10 The psychological report prepared in respect of the applicant suggests that his adverse childhood experiences underlie the development of his depressed affect and that he suffers from persistent feelings of worthlessness and hopelessness, leading to generalised feelings of anxiety. These feelings, combined with the trauma suffered as a consequence of the sexual abuse perpetrated on the applicant, are said to "maintain" his problems with substance abuse. The following paragraph appears in a summary towards the end of the report prepared by the psychologist:
"[The applicant] is cognisant that his substance use is likely attributed to the trauma of his protracted sexual assault issue, and that this would need to be processed in order for him to be completely drug free. He maintained that he is not prepared at the present time to address his trauma which is problematic given this is a necessary component to achieving full abstinence from substance use. However, it is important to note that he is currently undergoing psychological counselling … and whilst not addressing his trauma directly, a therapeutic relationship has been established, and he is making some changes to his previous antisocial lifestyle."
The Primary Judge's Sentencing Remarks
11 The sentencing Judge, when he came to make his sentencing remarks, took into account the applicant's plea of guilty and also some of the background circumstances to which I have referred.
12 He said that he considered that the applicant's role in the offending was significant and that the applicant's mode of driving could "only have been to enable the complainant to be thrown off and his wallet to be taken". He said that he considered that a term of imprisonment of 8 years was appropriate. However, he reduced that to 6 years as a consequence of the applicant's plea of guilty on the fast-track system and then further reduced that to a term of 4 years' imprisonment in order to take into account the requirement to reduce that term by one third imposed by Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions"). He directed that the applicant should be eligible for parole and ordered that the sentence should be taken to have
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- commenced on 3 November 2004, in order to allow for time spent in custody.
Grounds of Appeal
13 There are two grounds of appeal. The first is that the sentence was manifestly excessive in all the circumstances, having regard, in particular, for the applicant's youth, the fact that he was not the principal offender and the fact of his "demonstrated rehabilitation since the commission of … [the] offence". The second ground contends that the sentencing Judge "inappropriately" took into account aggravating facts not admitted by the applicant without having found those facts after a trial of the issues. This ground refers to the finding that the applicant's mode of driving was undertaken in order to enable the complainant to be thrown off the car "and his wallet to be taken", when counsel for the applicant had said that only the former was admitted and not the latter. This ground also relies upon a finding, by the sentencing Judge, that there had been a "verbal altercation with the complainant" by "[t]hose persons present in the car" and that "[d]iscussion was had in respect to stealing … [the complainant's] wallet" when the applicant contended that he had not been party to any verbal altercation or discussion as regards the stealing of the complainant's wallet.
Ground 1 - "Manifestly excessive"
14 It is necessary for me only to deal with ground 1.
15 It is well recognised that an appellate court does not lightly interfere in the exercise of a sentencing Judge's discretion. Some error in the exercise of that discretion must be shown: House v The King (1936) 55 CLR 499 at 505 and Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. However, this is, in my respectful opinion, a case in which the sentence is so manifestly excessive as necessarily to reflect an error of principle (see Wong v The Queen (2001) 207 CLR 584 at 605).
16 The offence, while serious, was one which was entirely opportunistic, having been committed on the spur of the moment. Also, although the complainant was punched, and dragged by the car, no weapon was used. In these circumstances, and given the applicant's fast-track plea of guilty, a sentence of 4 years' imprisonment (6 years' imprisonment under the former regime) is beyond the range of sentences customarily imposed for this kind of offence. This can be illustrated by a number of examples (including some mentioned by counsel for the
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- respondent). All of the cases referred to involve sentences imposed prior to the operation of the transitional provisions.
17 In Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997 the applicant, a 25-year-old man with a long criminal history, robbed a record store in order to obtain money for drugs. In the course of doing so, he grabbed the store attendant by the back of his shirt and forced him into the storeroom in circumstances in which the attendant thought it obvious that, if he had struggled, he would have been attacked. The offence was committed while the applicant was on parole. The applicant pleaded guilty on the fast-track system. He was sentenced to a term of 5 years' imprisonment.
18 In Madden v The Queen, unreported; CCA SCt of WA; Library No 970244; 1 May 1997 the applicant, a 22-year-old heroin addict, committed a number of offences, including one of robbery with actual violence in company. One of the robbers was armed with a screwdriver. They held up a pharmacy, punching the pharmacist in the head and stealing money and tablets. The applicant had a long criminal history and had recently escaped from Wooroloo Prison when he committed the offences. He had turned himself in to the police and had pleaded guilty. He was sentenced to a term of 6 years' imprisonment.
19 In Wilson v The Queen, unreported; CCA SCt of WA; Library No 990087; 26 February 1999 the applicant and another man followed the complainant down a road. The applicant then walked up to the complainant, punched him on the right side of his face and threw him against a wall, causing the complainant to sustain a fractured cheekbone and a fractured elbow. His mobile telephone and his wallet were taken. The applicant, who had poor antecedents and who had showed no remorse, was convicted, after trial, and sentenced to a term of 5 years' imprisonment.
20 In Fleming v The Queen, unreported; CCA SCt of WA; Library No 990206; 23 April 1999 the applicant, a 24-year-old man, made a plan with two others to rob a stranger in the park. The applicant grabbed the complainant around the neck and pulled him to the ground. One of the co-offenders kicked and punched the victim (although the applicant had not been aware that he would do so). The offenders were unable to get the complainant's wallet and the complainant ran off. The applicant, who had a drinking problem and was drunk at the time of the offence, pleaded guilty on the fast-track system. The offence was said to be out of
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- character and his antecedents were good. He was sentenced to a term of 2 years' imprisonment.
21 In R v Hood (2000) 111 A Crim R 556 the applicant, who, when sentenced, was 26 years old, snatched a sum of money from the complainant immediately after he had drawn it from an automatic teller machine. The complainant got hold of the applicant's collar and shirt, but the applicant ran away notwithstanding this. The complainant was dragged along by the applicant's momentum until the applicant's shirt came off and the complainant fell to the ground. The applicant was a drug addict at the time. He was convicted, after a trial by jury, and sentenced to a term of 4 years' imprisonment. He had made some efforts to rehabilitate himself by the time of sentencing.
22 In R v Pooter [2001] WASCA 67 the respondent in a Crown appeal against sentencing was a 24-year-old man with a large number of prior convictions. While on parole he committed a number of offences, including one of aggravated robbery. The complainant had been doing some shopping. She opened the boot of her car in order to load bags of groceries into it. She had a handbag hanging over her left shoulder. The respondent and an accomplice were nearby in a stolen motor vehicle. The respondent, who was driving the stolen vehicle, drove it close to the complainant. His accomplice grabbed the complainant's handbag and the respondent drove off. However, the complainant was caught up on the strap of her handbag and was dragged along behind the stolen car for a short period of time before the handbag was wrenched off her shoulder. She suffered abrasions on her left arm. The respondent was convicted after a trial by jury. However, some two years had passed between the time of commission of the offence and the time of sentencing. During that time he had disassociated himself from his former friends, got a permanent job, formed a stable relationship, abstained from drug abuse and moderated his consumption of alcohol. He was placed on an intensive supervision order for a period of 24 months and was ordered to carry out 240 hours of community work and to undergo counselling, assessment, testing and treatment in respect of his use of drugs. The Court of Criminal Appeal declined to interfere with the sentence imposed, saying that it was not in the best interests of the community or of the respondent for the respondent to be returned to prison.
23 While these cases are, of course, merely examples, with each turning on its own peculiar circumstances, in my respectful opinion they do illustrate that the sentence imposed in this case is manifestly excessive (even accepting that there has been a "firming up" of sentences in recent
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- years) when regard is had to the applicant's early plea of guilty, the opportunistic nature of the offence and the fact that it had not been instigated by the applicant. I would consequently give the applicant leave to appeal, allow the appeal and set aside the sentence imposed by the sentencing Judge.
24 It seems to me that, given the circumstances of the offence (and taking into account, also, the fact that the applicant does appear, at last, to have made a genuine, and relatively sustained, attempt to rehabilitate himself), a sentence of 4 years' imprisonment would, were it not for the operation of the transitional provisions, have been appropriate. Because that sentence must be reduced by one third as a consequence of the operation of the transitional provisions, I would impose upon the applicant, in lieu of the sentence imposed by the sentencing Judge, a sentence of 2 years and 8 months' imprisonment, commencing on 3 November 2004. He will remain eligible for parole.
25 This conclusion renders it unnecessary for me to deal with the second ground of appeal.
26 MCLURE JA: I agree with Steytler P.
27 PULLIN JA: I would not disturb the sentence imposed by the learned sentencing Judge.
28 Under the old provisions, robbery attracted a sentence of between 6 to 9 years. See Miles v The Queen (1997) 17 WAR 518; Valentine v The Queen [2003] WASCA 7; R v Roworth [2003] WASCA 120. Six years was not an unusual sentence for a robbery when violence was threatened but not actually perpetrated; up to 9 years if there was actual violence resulting in bodily harm to victims.
29 In this case the boy who was the complainant was the subject of actual violence, and the offenders were fortunate that the boy was not thrown under the wheels of the car and seriously injured or worse. The boy was partially dragged into the vehicle, punched, dragged along by the car, dislodged 30 metres away from where he was seized, robbed of cash and left with bodily injuries as a result of the attack.
30 The applicant was the driver of the vehicle. He claimed that he panicked. However he made the choice to participate. If he had not wished to participate he should not have accelerated away and braked and accelerated as he did. Added to this is the fact that the applicant had a bad
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- record including stealing and breaking and entering with intent to use violence.
31 In my view, taking into account points made in mitigation, 8 years under the old law would have been a heavy sentence but well within the range of a proper exercise of discretion. The 8 years was reduced by his Honour by reason of the plea of guilty and again reduced because of the transitional provisions in the Sentencing Act. He was therefore sentenced to 4 years' imprisonment with eligibility for parole. He was told, as required under the Sentencing Act,that he would serve one-half of his 4 year sentence before being eligible for parole.
32 In my opinion that is not a manifestly excessive sentence. I would therefore dismiss ground 1.
33 The second ground is that the learned sentencing Judge took into account aggravating factors which were read out by the prosecution but which were not accepted by the applicant. Particulars of these factors were set out in ground 2 and read as follows:
"(a) The verbal altercation alleged to have taken place between the co-offenders and the complainant.
(b) That the Applicant had not been involved in discussions prior to the commission of the robbery offence and that the co-offender had expressed his intention to rob the complainant immediately before the commission of the offence.
(c) It had been asserted on behalf of the Applicant that the Applicant had accelerated and braked the motor vehicle with the intention of dislodging the complainant so as to avoid harm caused by taking off at speed. This assertion was not challenged by the State. The learned sentencing Judge expressly referred to the Applicant's intention to dislodge the complainant in the context of an intention to commit the offence. 'Your mode of driving can only have been to enable the complainant to be thrown off and his wallet to be taken'. This fact was unable to be found on the material before the learned sentencing Judge."
34 As to particular (a), the prosecution did say that the offender and the other occupants were involved in a verbal altercation. Counsel for the applicant said after the facts had been read out that the "facts are
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- substantially admitted" and gave an explanation on behalf of the applicant which was that the boy approached the rear passenger window. The submissions do not expressly say that the applicant did not engage in conversation, but I agree that it can be inferred that the conversation was between the boy and the passengers in the back. His Honour said:
"The facts are that at about 10.30 pm on the evening of Friday 25 April 2003 you were the driver of a hire car in company with two adult males, one in the front passenger seat and one in the back. Those persons present in the car entered into a verbal altercation with the complainant who was waiting on the bus stop …" (I have added the italics for emphasis)
36 I now refer to the second part of particular (b). That alleges that the learned sentencing Judge wrongly took into account the fact that the co-offender had expressed his intention to rob the complainant immediately before the commission of the offence.
37 The prosecutor in reading out the prosecution account of the facts said:
"The offender and the other males discussed stealing the complainant's wallet."
38 Counsel for the applicant said:
"The facts say that the accused and the other males discussed stealing the complainant's wallet. I'm instructed that there was no premeditated discussion but Mr Richardson overheard his co-offender in the back seat state his intention to take the wallet and within a second, sir, it had occurred. Mr Richardson told the police that and it's recorded in the video.
The co-offender yelled out to Mr Richardson, 'Go, go, go.' He turned around to see what had happened and in panic he pulled
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- away from the kerb. He turned around a few times to see where the complainant was and realising that the complainant was still within the car, he agrees that he bunny-hopped the car a few times in panic and wanting to dislodge the complainant before driving away at any speed."
39 His Honour did not make a finding that the applicant discussed stealing the wallet. He merely noted, as a result of hearing the submissions, that:
"Discussion was had in respect of stealing his wallet. The passenger in the rear seat grabbed hold of the wallet. The complainant held on to the wallet and his head and shoulders were dragged into the car. The two passengers then proceeded to punch the complainant to loosen his grip on his wallet. You mean while, as the driver of the car, accelerated and braked a number of times. The intention being to dislodge the complainant."
40 In my opinion his Honour made a finding open to him on the materials placed before him and the admissions made. I see no merit in particular (b).
41 As to particular (c), this is an attempt to make a fine distinction about what the applicant intended to do when he accelerated the vehicle and braked and accelerated ("bunny-hopped") the car. In my opinion there is no significant distinction between the prosecution statement that the applicant "accelerated and braked a number of times in an attempt to dislodge the complainant from the vehicle" and counsel for the applicant's submission that:
"He [the applicant] agrees that he bunny-hopped the car a few times in panic and wanting to dislodge the complainant before driving away at any speed."
42 His Honour's finding that the applicant "as driver of the car accelerated and braked a number of times. The intention being to dislodge the complainant" is entirely consistent with the information placed before him by the prosecution and accepted by the applicant's counsel.
43 I would therefore dismiss ground 2.
44 The result is that I would refuse the application for leave to appeal.
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