Schischka v The State of Western Australia
[2015] WASCA 15
•21 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SCHISCHKA -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 15
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 13 JUNE 2014
DELIVERED : 21 JANUARY 2015
FILE NO/S: CACR 182 of 2013
BETWEEN: JARON KENNETH MELVERN SCHISCHKA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 616 of 2013
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after plea of guilty to two counts of aggravated robbery - Whether offences 'one transaction' - Whether sentences should have been concurrent - Totality - Whether total sentence manifestly excessive
Legislation:
Criminal Code (WA), s 391, s 392
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A L Troy
Respondent: Ms A C Longden
Solicitors:
Appellant: Justine Fisher Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barnden v The State of Western Australia [2014] WASCA 161
Birch v The State of Western Australia [2011] WASCA 101
Carr v The State of Western Australia [2013] WASCA 192
Chen v The State of Western Australia [2009] WASCA 52
Cockie v The State of Western Australia [2006] WASCA 66
Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Karolides v The State of Western Australia [2006] WASCA 240
McLeod v The State of Western Australia [2009] WASCA 233
Mills v The State of Western Australia [2007] WASCA 118
Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7
Mullane v The State of Western Australia [2007] WASCA 247
Richardson v The State of Western Australia [2005] WASCA 92
Roffey v The State of Western Australia [2007] WASCA 246
Romero v The Queen (Unreported; CCA SCt of WA; Library No 950351; 11 July 1995)
Royer v The State of Western Australia [2009] WASCA 139
Staker v The State of Western Australia [2012] WASCA 63
The State of Western Australia v Amoore [2008] WASCA 65
Walgar v The State of Western Australia [2007] WASCA 241
Wilson v The Queen (Unreported; CCA SCt of WA; Library No 990087; 26 February 1999)
Winmar v The Queen [2000] WASCA 363
Woodley v The State of Western Australia [2008] WASCA 92
MARTIN CJ:
Summary
This is an appeal against sentence. The appellant, Jaron Kenneth Melvern Schischka, was convicted after his plea of guilty to two counts of aggravated robbery. He was sentenced to 2 years imprisonment on the first count, and 1 year imprisonment on the second count, to be served cumulatively, giving a total effective sentence of 3 years imprisonment.
There are two grounds of appeal. The first ground asserts that the sentencing judge erred by imposing a cumulative term of imprisonment in respect of the second count when he should have ordered those sentences to be served concurrently, having regard to the so‑called 'one transaction rule'. The second ground of appeal asserts that the sentencing judge erred by imposing a total effective sentence that infringed the first limb of the totality principle, because the effective sentence of 3 years imprisonment was not proportionate to the overall criminality involved in the two offences committed, having regard to the circumstances of those offences and the circumstances of the appellant.
Leave to appeal was granted in respect of each ground. However, for the reasons that follow, each ground, and the appeal, should be dismissed.
The circumstances of the offences
The circumstances of the offences were not contentious at first instance, although during the course of argument on the appeal, counsel for Mr Schischka drew attention to two specific aspects of those circumstances which will be addressed below.
At approximately 4 am on 17 May 2012, Mr Schischka returned to a friend's house in Wilson, a suburb of Perth, after a night out with friends. Mr Schischka was in the company of his girlfriend and several other people, including a co‑offender whose identity at the time Mr Schischka was dealt with by the District Court was not known and who had not been charged. Mr Schischka was heavily intoxicated and argued with his girlfriend. He left the house in the company of the co‑offender in order to 'cool off'.
The victim was delivering newspapers to a café in Fern Road, Wilson. He drove his vehicle from the carpark adjacent to the café on to Fern Road, where he was forced to stop his vehicle because Mr Schischka and the unknown co‑offender were walking down the middle of the road. They effectively obstructed the victim's passage along the road.
Mr Schischka approached the driver's door of the victim's vehicle and his accomplice stood beside the passenger's door. The co‑offender asked the victim for a cigarette lighter. The victim gave a lighter to the co‑offender when, without provocation, Mr Schischka opened the driver's door and repeatedly punched the victim to the face while demanding the victim's wallet. While the co‑offender punched the victim from the passenger's side of the vehicle, Mr Schischka removed the victim's wallet from his pocket. He and his co‑offender then left.
The victim remained in his vehicle and called police to report the incident using his mobile phone. While he was on the phone, Mr Schischka and the co‑offender returned to the vehicle. Mr Schischka punched the victim to the face through the open driver's window causing the victim to drop the telephone. The co‑offender opened the passenger's door, grabbed the victim by the hands and demanded that he hand over the telephone. The victim found the telephone and handed it over. During his time, Mr Schischka continued to punch the victim striking at least one blow on his right hip. The co‑offender closed the passenger's door to the vehicle and walked away with Mr Schischka. As a result of the assaults upon the victim, he received a fractured nose, lacerations and bruising to his face. Photographs of the victim taken shortly after the offence reveal a significant amount of blood on his face and shirt.
Over seven months later, in January 2013, Mr Schischka was interviewed by police. He admitted assaulting the victim but stated that he could not remember taking any items of property. He told police that he was intoxicated and angry following the argument with his girlfriend. He entered pleas of guilty to each count at the earliest reasonable opportunity, and was sentenced on that basis.
The two matters of fact relating to the circumstances of the offences raised by counsel for the appellant each related to the second count. First, he correctly pointed out that the sentencing judge made no finding as to whether or not Mr Schischka's motive for stealing the victim's phone was to prevent him from contacting police. Accordingly, Mr Schischka was not sentenced on the basis that he had that motive and the appeal should be determined on the same basis.
Second, counsel for Mr Schischka submits that the assertion made by the prosecutor in outlining the facts, which was adopted by the sentencing judge, to the effect that Mr Schischka continued to punch the victim through the open driver's window while the co‑offender removed the telephone from him, should be understood as referring only to a punch to the right hip of the victim, having regard to the statement given by the victim to police. However, there is no ground of appeal asserting that the sentencing judge erred in the findings of fact which he made. Further and in any event, as it is clear that Mr Schischka punched the victim to the face in the course of each of the two offences which he committed, the difference between the description of the second offence given by the prosecutor and accepted by the trial judge (without objection from counsel for Mr Schischka) and the version of that offence evident from a statement given by the victim to police is not material to any issue in this appeal.
Antecedents and personal circumstances
Mr Schischka was born in New Zealand in November 1987 and was therefore 24 years of age at the time of the offences. He is the youngest of three siblings. He stated to the author of a pre‑sentence report tendered to the court that he had a 'good upbringing with the best parents one could wish for' in a close family unit in which he was instilled with Christian values. He was home schooled between the age of 9 and 13 years as a result of the family moving around New Zealand because of his father's employment. He returned to formal schooling at the age of 14 and completed his secondary education at the age of 17. He commenced an apprenticeship in New Zealand before moving to New South Wales in 2008, and then to Perth in 2009 as a result of being contracted to play for a rugby club. He gained employment in the construction industry on a 'fly in fly out' basis and had been regularly working in that capacity in the north‑west of the State at the time he came before the court for sentence. He is single and has no children.
Mr Schischka was convicted of disorderly behaviour in New Zealand in 2006. A small fine was imposed. He has committed three traffic‑related offences in Western Australia. The sentencing judge regarded those traffic offences as irrelevant and observed, correctly in my view, that Mr Schischka was entitled to the mitigatory effect of previous good behaviour, notwithstanding that he did not have a completely clear record.
Mr Schischka admitted to the author of the pre‑sentence report that he had a problem with binge drinking and that, on the night of the offences, he was extremely intoxicated. Of his own volition he had sought treatment from Holyoake, a substance abuse counselling organisation, in relation to this aspect of his behaviour. The sentencing judge noted that Mr Schischka's intoxication did not mitigate the offences he committed, although it went some way to explaining the commission of those offences, having regard to the emotional stress caused by the argument with his girlfriend.
The author of the pre‑sentence report concluded that Mr Schischka accepted responsibility for his offending conduct and the sentencing judge concluded that Mr Schischka was genuinely remorseful. A number of written references from people who had known Mr Schischka for some time and who wrote highly of his personal qualities were tendered to the court.
Observations at the time of sentence
The sentencing judge described the circumstances of the offences in the terms put by the prosecutor and summarised above. As I have already observed, in that context the sentencing judge noted that while Mr Schischka's intoxication was not mitigatory, it went some way to explain the offences which were out of character with any prior conduct, and which were likely referrable to his intoxication accompanied by the stress created by the argument with his girlfriend.
The sentencing judge referred to Mr Schischka's antecedents and personal circumstances in similar terms to those I have used. As I have noted, he concluded that Mr Schischka was genuinely remorseful and had empathy for his victim.
The sentencing judge found that Mr Schischka had pleaded guilty at the first reasonable opportunity and stated that he proposed to provide the full discount of 25% for those pleas, pursuant to s 9AA of the Sentencing Act 1995 (WA).
The sentencing judge noted that a sentence of imprisonment was a penalty of last resort and could only be imposed if justified by the seriousness of the offending or required for the protection of the community. In that context he noted that counsel appearing on behalf of Mr Schischka accepted that a term of imprisonment was justified, and submitted that the real question in the case was whether any term of imprisonment imposed should be suspended.
The sentencing judge concluded that after reducing the penalty which would otherwise be imposed by 25% to take account of the early plea of guilty, and taking account of all relevant circumstances, the appropriate sentence imposed in respect of count 1 was a term of 2 years imprisonment. He expressed the same view in relation to count 2. The sentencing judge acknowledged that while the two offences were connected, they were separated in time to some extent, and a degree of accumulation was appropriate. However, by reference to the first limb of the totality principle, the sentencing judge concluded that a total term of 3 years was the term which appropriately reflected the criminal conduct involved in both offences. In order to achieve that outcome he determined to reduce the sentence on count 2 to a term of imprisonment for 1 year, and to make that term cumulative upon the term imposed in respect of count 1.
Following the two step approach outlined by the High Court in Dinsdale v The Queen,[1] the sentencing judge then considered whether, in all the circumstances, the sentences that he was to impose should be suspended. In that context he expressly acknowledged Mr Schischka's age, the early plea of guilty, his remorse, the steps that he had taken to rehabilitate himself, the fact that he had never been to prison, and views of the referees who held Mr Schischka in high regard. However, in the view of the sentencing judge, the offences were too serious for the terms of imprisonment to be imposed to be suspended, and he sentenced Mr Schischka accordingly. As this aspect of the sentencing process is not challenged on appeal, it is not necessary to elaborate on the sentencing judge's consideration of the various factors taken into account when deciding not to suspend the terms of imprisonment imposed. The sentencing judge ordered that Mr Schischka be eligible for parole.
[1] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
The grounds of appeal
There are two grounds of appeal:
1.The learned judge erred in imposing a cumulative term of imprisonment in respect of count 2.
2.The learned sentencing judge erred in imposing a total effective sentence that infringed the first limb of the totality principle, having regard to the overall criminality involved in the two offences, viewed in their entirety and all the circumstances of the case including those referable to the appellant.
It should be noted that neither ground challenges the sentences imposed in respect of each individual count. Rather, the grounds are limited to the question of accumulation of the two sentences imposed, and an assertion implicit in the second ground to the effect that the total effective sentence imposed was manifestly excessive having regard to the total criminality involved in the two offences. The two grounds are obviously related in the sense that if the two sentences had been ordered to be served concurrently, counsel appearing on behalf of Mr Schischka accepted that the totality principle would not have been infringed. Similarly, counsel accepted that if the sentences imposed had involved a degree of accumulation, but had not exceeded a total effective sentence of 2 years imprisonment, ground 1 would not have been pursued. Despite the interrelationship between the two grounds, it is appropriate to specifically address each ground.
Ground 1
In support of ground 1 reliance was placed upon the so‑called 'one transaction rule' although it was acknowledged that the 'rule' was no more than a guide, and that even if the offences were regarded as one transaction, it did not follow that accumulation of the sentences imposed was erroneous. However, it was submitted that in this case, having regard to the facts that the two offences were closely connected in point of time, that it had not been established that the second offence caused additional discernible injury to the victim, that the form of attack was the same in relation to each offence, and that the value of the item stolen was similar, the appropriate exercise of the discretion with respect to sentence was to order that the sentences be served concurrently, in order to avoid double punishment for what was, in effect, the same criminality.
The so-called 'one transaction rule' has been considered by this court many times. It is well established that the description of the principles grouped under this heading as a 'rule' is a misnomer, as they are nothing more than a working guide to the exercise of the sentencing discretion.[2] Generally speaking, if the offences are all part of one multi‑faceted course of criminal conduct which, taken together, constitutes a single invasion of the same legally protected interest, concurrency of sentences may be appropriate.[3] However, the fact that the offences are closely connected in point of time, or even committed simultaneously, does not necessarily mean that they should be considered as a single transaction.[4] Further, even if the offences are properly considered part of one transaction, the sentencing judge must always consider whether the requirement that the sentences imposed be proportional to the total criminality involved might demand cumulative or partly cumulative terms.[5]
[2] Royer v The State of Western Australia [2009] WASCA 139 [21] (Owen JA).
[3] Walgar v The State of Western Australia [2007] WASCA 241 [9] (McLure JA, Steytler P & Miller JA agreeing).
[4] Birch v The State of Western Australia [2011] WASCA 101 [42] (Mazza J, McLure P agreeing).
[5] Walgar v The State of Western Australia [2007] WASCA 241 [9] (McLure JA, Steytler P & Miller JA agreeing); Woodley v The State of Western Australia [2008] WASCA 92 [24] ‑ [25] (McLure JA, Steytler P & Miller JA agreeing); McLeod v The State of Western Australia [2009] WASCA 233 [51] (Owen JA, McLure P & Wheeler JA agreeing).
In this case the two offences were closely related in point of time. However, they were separate and distinct transactions and constituted separate and distinct violations of the victim's interests. After assaulting the victim and stealing his wallet, Mr Schischka and the co‑offender walked away. The victim used his mobile telephone to summon assistance, and was in the course of doing so when Mr Schischka and his co‑offender returned and perpetrated another significant assault upon the victim and stole his phone. It is reasonable to infer that the victim suffered further harm as a consequence of the second attack upon him, not least because the sense of relief which he might have been expected to feel upon the conclusion of the first attack was destroyed by the commencement of the second attack and because he was deprived of the capacity to summon the assistance which he required by the theft of his mobile phone notwithstanding that Mr Schischka was not motivated by that intention. The commission of the second offence undoubtedly added to the total criminality involved, and was appropriately reflected in what was, in effect, the partial accumulation of the sentence imposed in respect of count 2.[6]
[6] Although in fact achieved by reducing the sentence which would otherwise have been imposed in respect of count 2, and ordering that it be served cumulatively upon the sentence imposed in respect of count 1.
No error has been demonstrated in respect of the sentencing judge's decision to impose an additional penalty in respect of count 2. The first ground of appeal must be dismissed.
Ground 2 - totality
The first limb of the totality principle has also been considered many times in this court. For present purposes it is sufficient to adopt the following succinct statement of the first limb of the principle:
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.
…
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).[7]
[7] Roffey v The State of Western Australia [2007] WASCA 246 [24], [26] (McLure JA).
Implicit in ground 2 is an assertion that the total effective sentence of 3 years imprisonment imposed upon Mr Schischka is manifestly excessive. An assertion of manifest excess involves an assertion of an implied error - the error being implied from the asserted disproportion between the sentence imposed and the sentence or sentences which might properly have been imposed, having regard to the maximum sentences available for the offences committed, the circumstances of the offences, including particularly their seriousness, all relevant aggravating and mitigating factors, and any established standards of sentences customarily imposed for offences of the relevant kind.
The maximum penalty and the circumstances of the offences
In this case, the maximum penalty for each of the offences of which Mr Schischka was convicted was a term of 20 years imprisonment. Although there is a wide range of conduct capable of constituting the offence of aggravated robbery, the circumstances of these offences were undoubtedly serious. The offences were perpetrated in the early hours of the morning, in company, taking advantage of a vulnerable victim who was alone and going about his business and who was completely unknown to the two offenders. The assaults perpetrated by Mr Schischka were brutal, unprovoked and persistent, in the sense that the victim was repeatedly punched by Mr Schischka on two separate occasions. For the reasons I have already given, the second offence committed by Mr Schischka compounds the total criminality involved. It is reasonable to infer that the victim would have been terrified by the offences committed against him, and he suffered bodily injury in the form of a fractured nose, bruising and lacerations to his face.
Mitigating factors
Mr Schischka was entitled to a discount on his sentence in order to reflect his pleas of guilty at the earliest available opportunity. He received the maximum benefit available under s 9AA of the Sentencing Act. He was also entitled to the benefit of the mitigating factors to which express reference was made by the sentencing judge, including his relatively good prior behaviour, his relative youth, the remorse evident in his conduct and in his early plea of guilty, his stable employment history, the regard in which he is held by other members of the community, the efforts which he had made to procure assistance for his binge drinking problem and his generally good prospects of rehabilitation.
Sentencing standards
On the question of the standards of sentencing customarily observed in relation to cases of this kind, as usual, each party to the appeal provided to the court a selected group of previously decided cases which, in the case of the appellant, were said to demonstrate manifest excess, and in the case of the respondent, were said to refute that assertion. As usual, the cases cited show a spread of sentences referrable to the particular facts and circumstances of each case, including the circumstances of the offenders.
As I have already noted, the offence of aggravated robbery can be and often is committed in a wide variety of circumstances. Accordingly, the identification of a customary 'range' of sentencing is fraught with hazard because of the breadth of circumstances in which the offence can be and is committed, with the consequence that a significant number of the cases within any data set are likely to fall outside any identified 'range'. Nevertheless, speaking very generally, sentences imposed for the offence of robbery committed in company often fall within the range of between 2 and 4 years imprisonment after taking into account the transitional provisions,[8] although in cases in which the offence is unattended by actual violence sentences tend to be lower.[9]
[8] Chen v The State of Western Australia [2009] WASCA 52 [47] ‑ [49] (Miller JA); Mills v The State of Western Australia [2007] WASCA 118 [67] (Miller AJA).
[9] The State of Western Australia v Amoore [2008] WASCA 65 [50].
On this general view of the comparable cases, the individual sentences imposed upon Mr Schischka were at the lower end of such range as may be revealed by previous sentences for aggravated robbery committed in company and attended with actual violence, and the total effective sentence of 3 years imprisonment was at the midpoint of that range. It follows that the sentences imposed upon Mr Schischka cannot be said to be so disproportionate to the sentence or sentences that might properly have been imposed having regard to the standards of sentencing customarily observed in relation to offences of this kind as to manifest implied error.
It is unnecessary to analyse in great detail each of the comparable cases identified in the written submissions filed on behalf of Mr Schischka. It is sufficient to refer to the two cases upon which particular emphasis was placed in those submissions, being Damiani v The State of Western Australia[10] and Richardson v The State of Western Australia.[11]
[10] [2006] WASCA 47; (2006) 165 A Crim R 358.
[11] [2005] WASCA 92.
In Damiani, the offender pleaded guilty to two counts of aggravated robbery and miscellaneous other offences. The total effective sentence originally imposed was a term of 4 years imprisonment. However, after concluding that the sentences imposed did not apply the discount required under the transitional provisions, this court resentenced the offender to a total effective sentence of 2 years and 8 months imprisonment.[12] The circumstances of the case involved the theft of a prime mover. When the offender was caught in the act of stealing the prime mover, he assaulted and threatened to kill his first victim. Later, when the offender bogged the prime mover after nearly crashing it, he stole the car and wallet of another person who had sought to assist him following his accident.
[12] That is, a deduction of one-third to reflect the transitional provisions.
It is arguable that the circumstances of the offending in that case were more serious than the circumstances of this case. However, the cases have different aggravating features making comparison difficult. Further, it is of some significance that the only error found by the court was the failure to apply the transitional provisions, and the sentences ultimately imposed by this court reflected the mathematical consequences of that error. It is also trite to observe that one outlying case does not establish a standard of sentencing customarily observed. In any event, it cannot be said that the total effective sentence imposed in Damiani is incommensurate with the total effective sentence imposed upon Mr Schischka.
In Richardson, the offender was also resentenced by this court to a total effective sentence of 2 years and 8 months imprisonment. In that case, the victim approached the offender, who was in a car with others, asking to buy cannabis. A co‑offender grabbed the victim's wallet and he was dragged into the car. The appellant, who was in the driver's seat, was directed to drive the vehicle and did so while the victim remained partially in the car. He was dragged approximately 30 metres, during which time he was punched by co‑offenders, who sought to loosen his grip on his wallet. Eventually the wallet was successfully stolen, and the victim was left with substantial lacerations and bruising.
While the circumstances of the offence in Richardson were undoubtedly serious, it cannot be said that they were more serious than the course of offending conduct in this case. To the contrary, in a number of respects, the circumstances of the offences committed by Mr Schischka were more serious, having regard to the sustained attack upon an isolated victim in the early hours of the morning. The sentence imposed by this court in Richardson does not suggest any implied error in respect of the sentences imposed upon Mr Schischka.
In the written submissions filed on behalf of Mr Schischka, reliance was also placed on a number of older cases.[13] However, there must be significant doubt as to the extent to which those cases can be regarded as providing any indication of the sentencing standards now customarily observed in relation to the offence of aggravated robbery, having regard to the firming up of sentences with respect to that offence.[14]
[13] Including Romero v The Queen (Unreported; CCA SCt of WA; Library No 950351; 11 July 1995); Wilson v The Queen (Unreported; CCA SCt of WA; Library No 990087; 26 February 1999); Winmar v The Queen [2000] WASCA 363.
[14] Richardson v The State of Western Australia [2005] WASCA 92 [23] (Steyler P, McLure JA agreeing).
Summary
In summary, although Mr Schischka was entitled to, and received, the benefit of a number of mitigating factors, including his pleas of guilty at the earliest available opportunity, the offences which he committed were particularly serious, involving a significant physical assault, on two separate occasions, in company, upon a vulnerable and isolated stranger in the early hours of the morning, aggravated by the theft of his wallet and his mobile phone which left him even more vulnerable and isolated. Mr Schischka's behaviour departed so far from the standards of behaviour reasonably accepted by the community as to call for a sentence which not only marked the community's denunciation of abhorrent conduct of this kind, but which also indicated to others who might be minded to commit similar offences that significant punishment would inevitably follow. The sentences imposed upon Mr Schischka reflected an appropriate balance of the competing considerations necessarily taken into account in his case, including the significant mitigating factors to which I have referred. Error has not been demonstrated and the second ground of appeal must also be dismissed.
Conclusion
The appeal should be dismissed.
BUSS JA: This is an appeal against sentence.
The appellant was convicted, on his pleas of guilty in the District Court at the first reasonable opportunity, of two counts of aggravated robbery, contrary to s 392 of the Criminal Code (WA).
The circumstances of aggravation in relation to count 1 were that the appellant was in company with an unknown co‑offender and the appellant did bodily harm to the victim.
The circumstances of aggravation in relation to count 2 were that the appellant was in company with the co‑offender.
The sentencing judge, Stavrianou DCJ, imposed individual sentences of immediate imprisonment of 2 years in respect of count 1 and 1 year in respect of count 2. His Honour reduced the individual sentence for count 2 from 2 years to 1 year in the application of the totality principle. His Honour ordered the individual sentences to be served cumulatively. The total effective sentence was therefore 3 years' immediate imprisonment. A parole eligibility order was made.
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges that the sentencing judge erred in imposing 'a cumulative term of imprisonment in respect of count 2'.
Ground 2 alleges in essence that the total effective sentence imposed by his Honour infringed the first limb of the totality principle.
On 5 November 2013, Mazza JA granted leave to appeal on each ground.
The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the appellant's personal circumstances and antecedents and the appellant's submissions in the appeal
The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the appellant's personal circumstances and antecedents and the appellant's submissions in the appeal are summarised
in the reasons of Martin CJ. I will not repeat them except to the extent necessary to explain my reasons.
Ground 1
I agree with Martin CJ, for the reasons he gives, that ground 1 is without merit.
Ground 2
An allegation that a total effective sentence infringes the first limb of the totality principle asserts the existence of implied or inferred error.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The maximum penalty for each offence committed by the appellant is 20 years' imprisonment.
I have considered numerous cases with at least some features comparable to the appellant's offending including Richardson v The State of Western Australia [2005] WASCA 92; Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358; Cockie v The State of Western Australia [2006] WASCA 66; Karolides v The State of Western Australia [2006] WASCA 240; Moody‑Jackamarra v The State of Western Australia [2007] WASCA 7; Mullane v The State of Western Australia [2007] WASCA 247; Staker v The State of Western Australia [2012] WASCA 63; Carr v The State of Western Australia [2013] WASCA 192; Barnden v The State of Western Australia [2014] WASCA 161. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in those cases.
The appellant's overall offending was, no doubt, serious. In particular:
(a)The appellant committed the offences in the early hours of the morning, in company, against a vulnerable victim in a public place. The victim was alone and merely attempting lawfully to carry out his occupation.
(b)The victim was unknown to the appellant.
(c)The appellant inflicted gratuitous violence upon the victim to relieve anger and frustration arising from an earlier dispute between the appellant and his girlfriend.
(d)The assault upon the victim was brutal, persistent and unprovoked.
(e)The victim was obviously injured as a result of the first offence. Nevertheless, the appellant returned shortly afterwards and reoffended against him.
(f)The victim suffered a fractured nose and tenderness and lacerations to his face as a result of the assaults.
The primary sentencing factors in relation to aggravated robbery, especially where the victim suffers bodily harm, are appropriate punishment and personal and general deterrence. Ordinarily, as a matter of fact, a substantial penalty must be imposed. However, aggravated robberies can be and are committed in a wide range of circumstances.
The sentence for a particular offence must be commensurate with the seriousness of the particular offending after taking into account the maximum penalty, the circumstances of the commission of the offence (including the vulnerability of the victim), any aggravating factors and any mitigating factors.
In recent years the sentencing range for aggravated robbery has been 'firmed up', especially where the victim has been violently assaulted, in recognition of the prevalence and seriousness of the offending. See, for example, Richardson [23] (Steytler P, McLure JA agreeing).
The principal mitigating features in the present case included the appellant's pleas of guilty at the first reasonable opportunity, his apparent empathy for the victim, his remorse, his reasonably good personal circumstances and antecedents, and his efforts after the offending to rehabilitate himself through counselling in relation to his alcohol abuse.
I am satisfied that the total effective sentence of 3 years' immediate imprisonment bears a proper relationship to the overall criminality involved in both of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. It was necessary, in order properly to mark the appellant's overall criminality, to order the accumulation of the individual sentences. As I have mentioned, the sentencing judge reduced the individual sentence for count 2 from 2 years to 1 year in the application of the totality principle.
The total effective sentence was within the range reasonably open to his Honour on a proper exercise of the sentencing discretion.
I am not persuaded that error should be implied or inferred from the sentencing outcome in relation to the total effective sentence. The first limb of the totality principle was not infringed.
Ground 2 fails.
Conclusion
I would dismiss the appeal.
MAZZA JA: I agree that this appeal against sentence should be dismissed for the reasons given by Martin CJ with respect to ground 1 and for the reasons given by Buss JA with respect to ground 2.
11
21
2