Roffey v The State of Western Australia
[2007] WASCA 246
•14 NOVEMBER 2007
ROFFEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 246 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:160/2006 | 8 NOVEMBER 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 13/11/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant re-sentenced | ||
| D | |||
| PDF Version |
| Parties: | KENNETH MARTIN JAMES ROFFEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Multiple offences Totality principle Turns on own facts |
Legislation: | Nil |
Case References: | Armstrong v The Queen (Unreported, WASCA, Library No 980231, 21 April 1998) Biggers v The State of Western Australia [2004] WASCA 47 Crutch v The Queen [1999] WASCA 187 Herbert v The Queen (2003) 27 WAR 330 Jarvis v The Queen (1998) 20 WAR 201 Martino v The State of Western Australia [2006] WASCA 78 Nancarrow v The State of Western Australia [2006] WASCA 238 R v Holder [1983] 3 NSWLR 245 Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998) Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROFFEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 246 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 128 of 2006
Catchwords:
Criminal law - Sentencing - Multiple offences - Totality principle - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Appellant re-sentenced
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Armstrong v The Queen (Unreported, WASCA, Library No 980231, 21 April 1998)
Biggers v The State of Western Australia [2004] WASCA 47
Crutch v The Queen [1999] WASCA 187
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1998) 20 WAR 201
Martino v The State of Western Australia [2006] WASCA 78
Nancarrow v The State of Western Australia [2006] WASCA 238
R v Holder [1983] 3 NSWLR 245
Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998)
Woods v The Queen (1994) 14 WAR 341
(Page 3)
1 STEYTLER P: I agree with McLure JA.
2 McLURE JA: This is an appeal against sentence. The appellant pleaded guilty on the fast-track system to 15 counts of armed robbery, 3 counts of attempted armed robbery, 13 counts of deprivation of liberty, 3 counts of damage by fire, 5 counts of stealing a motor vehicle, 1 count of possession of an altered firearm and 1 count of causing bodily harm with intent. The appellant also pleaded guilty to seven offences the subject of a s 32 notice including possession of a weapon and traffic offences.
3 On 13 October 2006 Murray J sentenced the appellant to a total effective sentence of 18 years' imprisonment (which equates to 27 years' imprisonment under the former sentencing regime). The sole ground of appeal is as follows:
The learned sentencing judge erred in imposing a sentence that was manifestly excessive and did not adequately reflect the application of the totality principle having regard to the offender's young age, his pleas of guilty, and the time already spent in custody prior to sentencing.
4 The individual sentences and the orders for cumulation and concurrence are as follows:
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s 392 Criminal Code |
Counts 7, 14, 31, 36 cumulative Remainder concurrent |
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ss 392, 552 Criminal Code |
All concurrent. |
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ss 333 Criminal Code |
All concurrent |
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s 444 Criminal Code |
Count 30 cumulative. Remainder concurrent. |
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ss 371A, 378 Criminal Code |
All concurrent |
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s 19(1)(c) Firearms Act |
Count 13 cumulative. |
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s 304 Criminal Code |
Count 41 Cumulative. |
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5 With the exception of the offence of causing bodily harm with intent, all the indictable offences occurred in a three month period between 2 April 2005 and 9 July 2005. Those offences were committed whilst the appellant was on parole for an armed robbery offence for which he was sentenced in July 2003 to 5 years' imprisonment. The sentence of 18 years was ordered to commence on 31 October 2006 and be served concurrently with the unserved portion of the earlier sentence.
6 The facts of the offences the subject of the indictment are as follows. On 2 April 2005 the appellant and a co-offender went to a service station in Huntingdale. The appellant was armed with a large kitchen knife which he used to demand cash from an employee. The employee locked himself in an office at the rear of the store. The co-offender then managed to pull the cash drawer out of the till and the pair attempted to leave the store through the locked entry doors. After throwing several items at the entry doors the appellant used a microwave oven to smash the glass and flee the premises with the drawer containing approximately $700 (count 1).
7 On that same day the appellant and a co-offender attended another service station in Thornlie. The appellant used a large kitchen knife to demand money from an employee. The employee promptly locked himself in a rear office area. The co-offender then jumped the counter and took several packets of cigarettes and a cash drawer which contained $530 while the appellant kept watch. At some stage a member of the public drove into the service station and threatened to call the police. The appellant chased the patron away while brandishing the kitchen knife before leaving the service station with the money (count 2).
(Page 5)
8 On 3 April 2005 at approximately 5.40 pm the appellant and a co-offender went to a Forrestdale newsagency armed with a large rusted knife. The appellant approached the attendant and demanded the safe while making a stabbing motion with the knife. The attendant informed the appellant that there was no safe and instead told him to take the cash drawer which contained $45. The appellant walked behind the counter and approached the cash till. He attempted to open the cash till with the knife but was unsuccessful and instead pulled it from the counter before leaving the store. The co-offender who was armed with a baseball bat took approximately $1,000 worth of lottery tickets (count 3).
9 In the morning of 13 April 2005, the appellant stole a Mitsubishi motor vehicle from a car park at Brighton Beach in Scarborough (count 4). He drove the car to the Beechboro shopping centre where he grabbed a female complainant and demanded her purse. He was armed with a knife and told her not to make a scene. A brief struggle ensued and the appellant managed to take the complainant's purse and drive off in the stolen Mitsubishi (count 5). The complainant received minor cuts to her hands.
10 On 31 May 2005 the appellant stole a Holden Commodore motor vehicle parked at the Cambridge Forum shopping centre in Wembley (count 6). On the following day he drove the vehicle to a pharmacy and postal agency located in Applecross. The appellant entered the store wearing a balaclava and armed with a hand gun concealed in his pants. He demanded cash and drugs from the staff. At some stage he removed the hand gun from his pants and held it to an employee's head while he ushered her to the front of the store. The employees complied with the appellant's demands and the appellant left the store with a total of $4,144.35 and a box containing a number of prescription drugs (count 7). There were three customers in the store at the time and the appellant threatened to shoot each of them if they did not stay in the store giving rise to counts 8, 9 and 10 for deprivation of liberty. The appellant then drove off in the stolen Holden Commodore which was recovered burnt out on 1 June 2005 in Applecross (count 11).
11 On 6 June 2005 the appellant and two other offenders attended a video store in South Perth wearing balaclavas. The appellant was armed with an unlicenced sawn off shotgun (count 13) while the co-offenders were armed with a hammer and crow-bar. The appellant and one of the co-offenders forced the female employee to the rear of the store, pushed her to the ground near the safe and told her to open it. The safe was already open and the offenders left the store with two video cases which
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- contained $4,170 in addition to a bank bag and a tin containing money (count 12). Approximately 20 minutes later the offenders attended another video store in Applecross once again armed and wearing balaclavas. The appellant forced a male employee to the rear of the store stating 'Where's the safe? Take us to the safe'. One of the co-offenders placed a weapon into the employee's back and demanded that he open a locked office door which he did. They all entered the office and the employee opened the safe. The appellant told the employee to lie on the ground (count 20 - deprivation of liberty) and instructed one of the co-offenders to take the employee's wallet (count 16). One of the co-offenders also took a female employee's handbag which was located behind the store counter (count 15). When the female employee approached the co-offender he pointed a shot gun at her and said 'Don't or I'll shoot'. The offenders left the store with $8,551 (count 14). It seems that counts 17, 18 and 19 were deprivation of liberty offences relating to three customers.
12 On 13 June 2005 the appellant stole a Hyundai motor vehicle from Victoria Park (count 21). Later that evening the appellant and two co-offenders drove the vehicle to a supermarket in Rossmoyne with the intention of committing a robbery (count 22). The appellant was once again armed with a sawn-off shotgun and the co-offenders were armed with a hammer and crowbar. The store was closed when the offenders arrived and the appellant knocked on the door and demanded to be let in. The three shop assistants in the store at the time feared for their safety and hid behind the counter. The offenders left the premises. They then went to a supermarket in Inglewood with the intention of committing a robbery. The offenders walked up to the front doors which were closed and the appellant showed the sawn-off shotgun to a female employee working inside. The offenders were unsuccessful in gaining entry to the store and they left the premises (count 23).
13 At approximately 5 pm or 6 pm on 17 June 2005 the appellant and two co-offenders went to a newsagency in Como wearing balaclavas. The appellant was once again armed with the sawn-off shotgun. Only the appellant and one of the co-offenders entered the store. The appellant pointed the shotgun at two employees and demanded that they open the safe which the female employee did. The offenders left the store with cash and property to a value of $949. Later that day the stolen Hyundai (the subject of count 21) was found in Como damaged by fire (count 25).
14 At approximately 8.20 pm on 19 June 2005 the appellant and another entered a video store in Subiaco respectively armed with a sawn-off
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- shotgun and machete. The pair forced the female employees into the office of the store where the co-offender waved the machete around. The appellant demanded money from the store owner who removed it from the safe and placed it on the floor. The appellant placed the money in a bag and instructed his co-offender to empty the cash till which he did. The offenders left the store with $6000 (count 26). One week later on 26 June 2005 the appellant and another attended a video store in Mount Lawley wearing balaclavas and respectively armed with a machete and a hammer. They forced an employee to open the cash register which she did. The appellant then forced the attendant into a back room where she opened the safe and handed over $7,000 in takings. The offenders left the store with $7100 (count 27).
15 The next group of offences commenced with the theft of a Mitsubishi Magna motor vehicle from Belmont on 30 June 2005. On 2 July 2005 the appellant was a passenger in the vehicle which he knew to be stolen (count 28). At approximately 11 am he was driven to a bank in Bayswater which he and the co-offender entered armed with a knife and pistol respectively. The offenders ordered the customers to fall to the ground and threatened to hurt them if they failed to comply. The staff activated the security shutters on the front counters prompting the co-offender to fire two rounds from the pistol into the access door to the tellers. The co-offender proceeded to kick the access door and eventually managed to force it open. He and the appellant then went behind the counter and forced the bank staff to the ground. The appellant removed $8,807 from the cash drawers and the pair ran out to the stolen vehicle where an accomplice was waiting (count 29). Later that day the vehicle was found damaged by fire (count 30).
16 On 3 July 2005 at approximately 8.40 pm the appellant and two co-offenders went to a video store in Wembley disguised in balaclavas. The appellant was armed with a machete while the co-offenders each had a hammer. The offenders entered the store and ordered the three customers in the store to lie on the ground with their hands on their heads (counts 32, 33 and 34). The appellant removed $1,000 from the front cash register and then demanded that the female employee open the safe however she did not know the combination and was unable to do so. The offenders rummaged through the front counter area before leaving the store with the money (count 31).
17 Approximately 20 minutes later the three offenders went to a Kingsley video store where a female employee was counting the day's takings. The appellant was still armed with a machete while the
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- co-offenders were armed with a hammer and crow-bar. The door was locked and one of the co-offenders struck a glass pane with a crowbar several times causing it to crack before the three offenders casually walked off (count 35).
18 The offences giving rise to counts 36 to 39 took place after the three offenders went to a video store in Joondanna some 30 minutes after the attempted robbery giving rise to count 35. The offenders wore balaclavas and were armed as in count 35. They entered the store, demanded money and forced an employee to open a safe below the counter. The employee placed approximately $30 into a bag which the appellant held and then opened the cash register and removed $200 in assorted notes and placed them in the same bag. The appellant threatened to harm and kill the employee at various times during the offending. One of the co-offenders then forced three customers onto the ground (counts 37, 38, 39). The appellant ordered another employee to open the bank safe and he walked to the office with a co-offender following close behind while another kept watch. The employee opened the safe and handed over $200. The appellant noticed a floor safe and ordered the employee to open it. The appellant told the employee to contact the store owner when the employee informed him that he did not know the combination. During the course of the telephone conversation the appellant yelled and threatened to harm and kill the employee. They fled the store with $1,614 (count 36).
19 Count 40 relates to the theft of a motor vehicle from Victoria Park on 9 July 2005.
20 The final count contained in the indictment arose while the appellant was in custody. He used a sharp instrument to cause bodily harm to another prisoner. In particular, the appellant stabbed the prisoner's arm and torso a number of times.
21 The appellant was aged 21 at the time of sentencing. He commenced offending at the age of 15. His record as a juvenile is not particularly lengthy but included 11 offences of armed, and attempted, armed robbery for which he was sentenced in the Children's Court to 4 years and 6 months' detention. The appellant has spent most of his adult life in custody. A previous psychological report indicated that his parents tended to normalise the appellant's criminal and antisocial behaviours to a high degree. The appellant's father, a long time member of a motor cycle gang, has himself served repeated periods of imprisonment. The appellant commenced using amphetamines at around 15 and was out of control as a result of using amphetamines at the time of the present offences. The
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- pre-sentence report identifies him as being highly impulsive, without inhibitions when entering high risk situations and having only limited insight into his offending behaviour.
22 In addition to entering a fast-track plea of guilty to the offences, the appellant co-operated with police by making admissions in respect of offences which the authorities may have had difficulty proving.
23 The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
24 The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
25 The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
26 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
27 The parties referred the court to a number of cases in which an offender has been sentenced for multiple offences of the type under consideration. As the circumstances of the offending and those of the offender vary greatly, the cases can only provide broad guidance on the question whether a total effective sentence offends the totality principle.
(Page 10)
- The cases referred to include Armstrongv The Queen (Unreported, WASCA, Library No 980231, 21 April 1998); Crutch v The Queen [1999] WASCA 187; Herbert v The Queen (2003) 27 WAR 330; Robertson v The Queen (Unreported, WASCA, Library No 980500, 9 September 1998); Nancarrow v The State of Western Australia [2006] WASCA 238; and Biggers v The State of Western Australia [2004] WASCA 47.
28 In Armstrong, the offender pleaded guilty to seven counts of armed robbery in company, 17 counts of attempted armed robbery in company and four counts of stealing a motor vehicle. He was sentenced to a total effective sentence of 11 years 4 months' imprisonment (which equates to 7 years 6 months under the current sentencing regime). The offences were committed whilst the offender was on parole in respect of a sentence of 5 years and 3 months for a similar offence. An appeal against a refusal to order eligibility for parole was dismissed.
29 In Crutch, the offender pleaded guilty to 10 counts of armed robbery, three counts of attempted armed robbery, one count of stealing a motor vehicle and one count of assault. The Full Court dismissed an appeal against a total effective sentence of 18 years' imprisonment (which equates to 12 years under the current sentencing regime). The appellant was in his thirties when he committed the offences, had amassed a significant criminal record and committed the offences whilst on parole.
30 In Herbert, the offender was convicted after trial of one count of armed robbery. Thereafter he pleaded guilty to 32 further offences including armed robbery, burglary, stealing, fraud and threats to injure. He received a total effective sentence of 15 years (which equates to 10 years under the current sentencing regime).
31 In Robertson, the offender pleaded guilty to 33 counts of armed robbery, eight counts of stealing a motor vehicle, one count of unlawful wounding and one count of possessing heroin. He was sentenced to a total effective sentence of 13 years (which equates to 8 years and 8 months under the current sentencing regime). The offender was aged 25 when he committed the offences and had an extensive record of prior offending. His appeal against the refusal of parole was dismissed.
32 In Nancarrow, the offender pleaded guilty to five counts of armed robbery and a serious assault occasioning bodily harm. He received a total effective sentence of 8 years and 3 months under the current sentencing regime. An appeal against sentence was dismissed.
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33 In Biggers, the 42-year-old offender pleaded guilty to three counts of armed robbery and one count of stealing a motor vehicle. He was sentenced under the former sentencing regime to a total effective sentence of 16 years (which equates to 10 years and 8 months under the current system). The offences involved the use of a sawn-off shotgun and balaclavas. The offender had committed armed robberies in the past and had committed the offences in question whilst on parole. The total effective sentence was reduced on appeal to 14 years (9 years and 4 months).
34 As previously noted, a sentence of 18 years equates to a sentence of 27 years under the former sentencing regime. Having regard to the mitigatory factors in this case including the fast-track plea of guilty to all offences, the appellant's co-operation with police and his relative youth, the sentencing judge's starting point for the total sentence must have been in excess of 40 years' imprisonment.
35 Many of the offences committed by the appellant were part of, or closely connected with, a number of the armed robberies. It can thus be misleading to undertake a case comparison solely by reference to the number of offences committed by different offenders. However, it is clear that the circumstances of many of the offences committed by the appellant were at the very high end of the scale of seriousness of crimes of the type committed. The nature and frequency of the offending require that the appellant receive a very lengthy custodial sentence. The central issue is whether, having regard to the circumstances of mitigation, 18 years is more than what is fairly required to achieve all the sentencing objectives including punishment, retribution and deterrence. In my view it is, a conclusion that is supported by the authorities to which I have referred. I would impose a term of 13 years and 6 months' imprisonment (which equates to 20 years 3 months under the former sentencing regime). I would set aside the orders for cumulation and concurrency made by the sentencing judge and in lieu thereof order that the sentences on counts 14 (3 years), 31 (3 years), 36 (3 years), 40 (18 months) and 41 (3 years) be served cumulatively with the balance of the sentences of imprisonment to be served concurrently. I would not interfere with the order that the appellant be made eligible for parole.
36 MILLER JA: I agree with McLure JA.
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