Rowley v The State of Western Australia
[2006] WASCA 122
•28 JUNE 2006
ROWLEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 122 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:84/2005 | 19 APRIL 2006 | |
| Coram: | WHEELER JA MCLURE JA BUSS JA | 28/06/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ADRIAN PETER ROWLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Disparity of sentence giving rise to justifiable sense of grievance Turns on own facts |
Legislation: | Nil |
Case References: | Goddard v R [1999] WASCA 281; (1999) 21 WAR 541 Cameron v The Queen (2002) 209 CLR 339 Capper (1993) 69 A Crim R 64 Dickes (1983) 10 A Crim R 88 Dinsdale v The Queen (2000) 202 CLR 321 Kezkiropoulos (2002) 136 A Crim R 522 Little v The Queen [2001] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Pop (2000) 116 A Crim R 398 Postiglione v The Queen (1997) 189 CLR 295 Puls v The Queen [2000] WASCA 11 R v Cox (1996) 66 SASR 152 R v Tiddy [1969] SASR 575 Radebe v The Queen (2001) 162 FLR 313 Salihos (1987) 27 A Crim R 319 Wahby v The Queen [2004] WASCA 308 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROWLEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 122 CORAM : WHEELER JA
- MCLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
File No : INS 246 of 2003
Catchwords:
Appeal - Criminal law - Disparity of sentence giving rise to justifiable sense of grievance - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr D R Love
Respondent : Mr A L Troy
Solicitors:
Appellant : Love Klimek
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Goddard v R [1999] WASCA 281; (1999) 21 WAR 541
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
Capper (1993) 69 A Crim R 64
Dickes (1983) 10 A Crim R 88
Dinsdale v The Queen (2000) 202 CLR 321
Kezkiropoulos (2002) 136 A Crim R 522
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Pop (2000) 116 A Crim R 398
Postiglione v The Queen (1997) 189 CLR 295
(Page 3)
Puls v The Queen [2000] WASCA 11
R v Cox (1996) 66 SASR 152
R v Tiddy [1969] SASR 575
Radebe v The Queen (2001) 162 FLR 313
Salihos (1987) 27 A Crim R 319
Wahby v The Queen [2004] WASCA 308
(Page 4)
1 WHEELER JA: This case is yet another example of the problems which can arise when co-offenders are sentenced on different occasions before different Judges. The appellant appeals his sentence effectively on the basis of the disparity which is alleged to exist between it and the sentence imposed upon his co-offender, one Blackwell.
2 The offence in relation to which the sentence was imposed was that of aggravated armed robbery of a pharmacist in October 2003. The appellant and Blackwell drove to a shopping centre - in which the pharmacy was situated - in a vehicle, the registration plates of which had been turned up so that the details were unable to be noted. Both had disguised themselves by placing articles of clothing over their heads and hands. They were armed with a pair of scissors and a used syringe. The scissors seem to have been in the appellant's pocket. Precisely the manner in which the syringe was used, and by whom, is a matter I deal with in a moment.
3 They walked from the vehicle and entered the pharmacy, running to the front counter where the pharmacist was sitting. Rowley moved to the same side of the counter as the pharmacist and yelled, "Take us to the safe. Take us to the safe with the morphine", pushing him towards the dispensary. It is not in issue that there was some shouting and that the syringe was displayed in a threatening manner. The pharmacist, not surprisingly, feared for his safety, walked to the safe and opened it. He picked up a hammer in an attempt to defend himself. One of the offenders then shouted in a loud voice, "Get the gun", although it is not in issue that there was, in fact, no gun.
4 The pharmacist activated a panic alarm switch and ran through the pharmacy to the front door, which he managed to lock, causing both offenders to be trapped inside the pharmacy. One of the offenders remained at the safe and removed approximately 30 items of schedule A drugs. The offenders found their way out of the pharmacy by means of an interior roller door which gave access to the interior of the shopping complex. Police arrived, and chased them.
5 The appellant was eventually located, after a couple of attempts to capture him, in possession of empty scheduled pharmaceutical drug packets in a nearby area. He was conveyed to Royal Perth Hospital, where he received treatment in relation to the schedule A drugs which he had apparently ingested. He was unable to be interviewed due to his ingestion of drugs. The co-offender was apprehended in a nearby street, in possession of a carry case containing drugs, still wearing a blue
(Page 5)
- pillowcase over his head and socks on his hands. He was conveyed to the police station, but declined to participate in a video record of interview.
6 It is not in issue that the appellant's DNA was found in traces of blood remaining in the syringe. There was therefore no doubt that he had had some connection with the syringe. However, the plea in mitigation on behalf of each of the offenders was to the effect that the other had been armed with the syringe. The syringe was found in the area, but not in the possession of either offender. Each offender, at his sentencing, alleged that the other offender had called out, "Get the gun".
7 So far as personal circumstances were concerned, Blackwell was born in 1970 and had a lengthy record of what appears to have been minor drug-related offending, dishonesty, and driving offences. He had no prior convictions for offences involving violence. It seems to have been accepted at his sentencing that he had a heroin addiction, and that he was participating in the robbery in order to obtain morphine. It appears that he had been a drug user since his late 20s, had been able to give it up for a number of years, but had then resorted to illicit drug use again following an assault in which he received some injuries. He entered a plea of guilty. It was not at the first opportunity, but it was accepted at the time of sentencing that the reason for the delay related to discussions with the State about whether the State was prepared to accept that Blackwell had not personally used the syringe during the course of the robbery.
8 The sentence imposed upon Blackwell was one of 4 years' imprisonment (subsequent to the transitional provisions), with eligibility for parole. It was accepted by the State on the hearing of this appeal that that disposition, while a relatively lenient one, was within the appropriate sentencing range for an offence of this type, having regard to the plea of guilty and the other personal circumstances.
9 So far as Rowley's personal circumstances were concerned, he was born in 1972, so is roughly the same age as Blackwell. He, too, had minor drug-related offences, offences of dishonesty and driving offences, but his record was not as lengthy as Blackwell's. However, he had been convicted of more serious offences also. In 2002, he was sentenced to a term of imprisonment, suspended for 12 months, on two counts of conspiracy to manufacture drugs, and he was placed on an intensive supervision order for possession of a prohibited drug and other offences. His offending in the present case breached those orders. Further, he was on bail at the time of this offence for the offence of assaulting a public officer. He entered a plea of guilty on the fast-track system, and so came
(Page 6)
- to be sentenced before Blackwell. He, too, was a person with a longstanding drug habit, who had made a variety of attempts to overcome that addiction, but had not been able to persevere with them. So far as the plea of guilty was concerned, his Honour considered that there was an element of being caught red-handed and therefore of facing up to the inevitable, but he accepted that the appellant was remorseful and allowed a discount of 15 per cent in respect of the plea.
10 The sentence imposed on the appellant was one of 6 years' imprisonment, subsequent to the transitional provisions. The State submits, and the appellant's counsel agrees, that that sentence was within an appropriate sentencing range, having regard to the circumstances of the offence, the plea and the personal circumstances. However, it was towards or at the very top of an appropriate sentencing range.
11 Leaving aside for the moment the question of the syringe, it can be seen that there was relatively little to choose between the two offenders. While the appellant's record was shorter, his recent offending was plainly more serious. However, he entered a fast-track plea of guilty. Blackwell's record was lengthier, but his offending was somewhat less serious. While he did not plead guilty at the first opportunity, he did plead guilty. Both were addicts, making attempts which had largely proved unsuccessful to date to deal with their addiction.
12 The significant factor resulting in the different sentences in each case appears to have been the weight attributed to each offender's involvement, or lack of involvement, with the syringe. Miller J, who sentenced Blackwell, approached the matter in the following way. Having referred to the disguise and to the use of the syringe and scissors, his Honour said: "You have said that you were not aware of the fact that he [the appellant] was armed with a syringe and scissors before he went into the pharmacy and I accept that." His Honour also said: "The pharmacist opened the safe, he picked up a hammer and somebody said, 'Get the gun', although it's not suggested there was a gun, but it was the threat." (AB 87) His Honour there plainly was distinguishing between the role of the appellant and the role of Blackwell in relation to the syringe and, to a lesser extent, in relation to the gun. Blackwell's counsel, before his Honour, placed considerable weight on Blackwell's alleged lack of knowledge of and involvement with the use of the syringe.
13 Roberts-Smith J, in an exchange with the appellant's counsel, said: "They were each armed with a pair of scissors and a syringe. Who had what doesn't really matter too much." (AB 49) That observation was
(Page 7)
- accepted by the appellant's counsel. In sentencing the appellant, Roberts-Smith J said: "Each of you had disguised yourselves by using clothing and articles over your heads and hands and you had armed yourselves with a pair of scissors and a used syringe." (AB 61) His Honour also referred to " ... the two of you ... shouting and displaying the syringe and scissors in a threatening manner." (AB 62) His Honour there was not distinguishing between the two offenders in relation to the role each played with respect to the scissors and the syringe.
14 As a general rule, I would regard the approach taken by Roberts-Smith J as being the correct one. Each offender had entered a plea of guilty to an offence which involved each in criminal responsibility for the use of the syringe and the scissors. There may be circumstances in which it is appropriate to distinguish between offenders who are jointly responsible in that way. If it is reasonably plain that one offender becomes caught up in an enterprise much more serious than that which he had envisaged, and has to decide, at very short notice, whether to continue with or dissociate himself from the enterprise, it may be that some weight can be placed upon that factor, particularly if the personal circumstances of the offender are such as to suggest that he is unlikely to offend in that way in the future. Even there, however, an offender who freely agrees to participate in an offence cannot expect significant weight to be placed upon the fact that the offence may not be carried out in precisely the way which he had envisaged, especially where he makes no protest and takes no step to dissociate himself from the enterprise.
15 In the circumstances of the present case, Blackwell, as I have noted, was an offender with a relatively lengthy record, but with no prior convictions for any offence of the seriousness of the present offence. In those circumstances, some limited weight might be given to the fact that, as Miller J appears to have accepted, the use of the syringe was no part of his original plan. That might tend to suggest that his prospects of rehabilitation were slightly better than had otherwise appeared to be the case. Nevertheless, even without that circumstance, the offence was plainly premeditated. Blackwell had taken the precaution of disguising himself, and participated fully in an offence carried out in a determined and persistent way, with threats used and violence offered in order to overcome a degree of resistance. Any difference in Blackwell's role was certainly not such as to justify a 2-year disparity (3 years prior to the transitional provisions) in sentence. Nor was there any other circumstance which would justify such a disparity.
(Page 8)
16 Having found a disparity which is not explicable by reason of different circumstances of the offence or of the offender, it is necessary for the Court to determine whether that disparity is such as to give rise to a justifiable sense of grievance and, if so, whether and how the Court should intervene. As Kennedy J pointed out, following a detailed discussion of the relevant principles in Goddard v R [1999] WASCA 281; (1999) 21 WAR 541, it is only where there is such a disparity as to give rise to a justifiable sense of grievance that the Court may intervene. Even where an appellate court intervenes, it does not necessarily follow that the sentence imposed on an appellant must be reduced to be equal to that of the co-offender, particularly where the co-offender's sentence is unduly lenient (see [17] - [31]).
17 In the present case, it seems to me to be clear that the disparity is of such magnitude that it must give rise to a justifiable sense of grievance. It is therefore necessary to reduce it. The State submitted that it was not appropriate to reduce it so that it was identical with that imposed on Blackwell, because the sentence imposed on Blackwell was relatively lenient, having regard to the standards of sentencing customary for such offences. The State noted in that context also the appellant's breaches of the orders on which he had been placed prior to the commission of this offence.
18 However, in distinguishing between Blackwell and the appellant, weight must also be given to the important principle that an early plea of guilty should receive appropriate recognition. The appellant pleaded guilty at the earliest opportunity, and Roberts-Smith J accepted that that plea was reflective of remorse, even though a conviction may well have been, in any event, inevitable. When appropriate weight is given to that factor, it is my view that it effectively balances the circumstances which might otherwise tend to suggest that the sentence imposed upon Blackwell should be marginally more lenient.
19 For my own part, if I were sentencing both offenders afresh, I would impose a term of imprisonment of somewhat longer than that imposed by Miller J. As his Honour recognised, he had dealt with Blackwell "as leniently as I can" (AB 89). However, it is necessary to resentence the appellant in the light of the sentence imposed upon Blackwell, and it appears to me that in this case justice requires the elimination of the disparity.
20 I would allow this appeal, quash the sentence of imprisonment imposed in respect of count 1 on the indictment, and substitute for it a
(Page 9)
- sentence of 4 years' imprisonment with eligibility for parole backdated to 3 October 2003. I would not interfere with any of the sentences imposed by his Honour in relation to the various other offences for which he came to sentence the appellant by reason of the appellant's breaches of previous orders.
21 MCLURE JA: I agree with Wheeler JA.
22 BUSS JA: I agree with Wheeler JA.
0
15
1