Sinclair v The State of Western Australia
[2014] WASCA 22
•29 JANUARY 2014
SINCLAIR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 22 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2013 | 10 SEPTEMBER 2013 | |
| Coram: | BUSS JA MAZZA JA HALL J | 29/01/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence on count 1 imposed by Simmonds J on 4 February 2013 is set aside and in lieu thereof a sentence of 2 years and 9 months' immediate imprisonment imposed Simmonds J's orders for parole eligibility and backdating shall stand | ||
| B | |||
| PDF Version |
| Parties: | HARRY READ SINCLAIR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Aggravated armed robbery Manifest excess- Application of s 9AA of Sentencing Act where guilty plea entered on count for which the appellant not sentenced per s 11 of the Sentencing Act Whether open to make suspended imprisonment order |
Legislation: | Criminal Code (WA), s 317(1), s 392 Sentencing Act 1995 (WA), s 6(4), s 9AA, s 11, s 39(2), s 39(3) |
Case References: | Drury v The State of Western Australia [2010] WASCA 220 Lovatt v The State of Western Australia [2004] WASCA 265 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mobilia v The Queen [2002] WASCA 130 Robinson v The State of Western Australia [2007] WASCA 45 Satonick v The State of Western Australia [2008] WASCA 145 The State of Western Australia v Boundry [2013] WASCA 46 The State of Western Australia v Bropho [2013] WASCA 44 The State of Western Australia v Wells [2005] WASCA 23 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SINCLAIR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 22 CORAM : BUSS JA
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
File No : INS 128 of 2012
Catchwords:
Criminal law - Appeal against sentence - Aggravated armed robbery - Manifest excess- Application of s 9AA of Sentencing Act where guilty plea entered on count for which the appellant not sentenced per s 11 of the Sentencing Act - Whether open to make suspended imprisonment order
Legislation:
Criminal Code (WA), s 317(1), s 392
Sentencing Act 1995 (WA), s 6(4), s 9AA, s 11, s 39(2), s 39(3)
Result:
Appeal allowed
Sentence on count 1 imposed by Simmonds J on 4 February 2013 is set aside and in lieu thereof a sentence of 2 years and 9 months' immediate imprisonment imposed
Simmonds J's orders for parole eligibility and backdating shall stand
Category: B
Representation:
Counsel:
Appellant : Mr H C Quail
Respondent : Mr L M Fox
Solicitors:
Appellant : Marilyn Loveday
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Drury v The State of Western Australia [2010] WASCA 220
Lovatt v The State of Western Australia [2004] WASCA 265
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mobilia v The Queen [2002] WASCA 130
Robinson v The State of Western Australia [2007] WASCA 45
Satonick v The State of Western Australia [2008] WASCA 145
The State of Western Australia v Boundry [2013] WASCA 46
The State of Western Australia v Bropho [2013] WASCA 44
The State of Western Australia v Wells [2005] WASCA 23
Wilson v The State of Western Australia [2010] WASCA 82
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an appeal against sentence.
3 The appellant was charged on indictment in the Supreme Court with aggravated armed robbery contrary to s 392 of the Criminal Code (WA) (count 1) and assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (count 2). The maximum penalty for count 1 is life imprisonment and for count 2 is 5 years' imprisonment. The charges read as follows:
(1) On 23 September 2011 at Warwick [the appellant] stole from [the victim], with violence, wallet and mobile phone the property of [the victim].
And that [the appellant] was armed with an offensive instrument, namely a brick
And that [the appellant] was armed with an offensive instrument, namely a screwdriver
And that [the appellant] was armed with an offensive instrument, namely a pole
And that [the appellant] was in company with another
And that [the appellant] did bodily harm to [the victim].
(2) On 23 September 2011 at Warwick [the appellant] unlawfully assaulted [the victim] and thereby did him bodily harm.
4 The appellant pleaded guilty to count 2 on arraignment and not guilty to count 1. On 14 November 2012, after a three-day trial, the appellant was found guilty by the jury of count 1.
5 On 4 February 2013, his Honour sentenced the appellant to 3 years 11 months' imprisonment on count 1, with eligibility for parole, to commence on 21 July 2012. In respect of count 2, no sentence was imposed pursuant to s 11 of the Sentencing Act 1995 (WA) because the evidence necessary to establish that offence was also necessary to establish count 1.
6 The grounds of appeal as amended at the hearing are as follows:
1. The learned sentencing judge imposed a sentence which was manifestly excessive having regard to all of the circumstances of the case.
Particulars
1.1 The court should have suspended any sentence of imprisonment.
1.2 Further, and also in the alternative, a lesser term of imprisonment should have been imposed.
Alternatively,
2. The learned sentencing judge erred in law in allowing a sentencing discount of 12.5% only for the circumstance of aggravation of causing bodily harm, and failing to apply a similar discount for the other elements of the assault which were included in the offence of aggravated armed robbery.
The facts of the offending
7 There is no dispute as to the facts of the offending.
8 The appellant knew the victim and held a grudge against him because of the way the victim had behaved towards his mother. On the evening of 23 September 2011, the appellant was in company with his two co-offenders. The co-offenders (but not the appellant) had made an arrangement to meet the victim at a park for the purpose of a drug transaction which did not, as things turned out, take place. When the appellant and the co-offenders got to the park, the appellant recognised the victim.
9 The appellant and his associates chased the victim. The appellant and his co-offenders had different reasons for chasing the victim. The co-offenders, who were armed, one with a screwdriver and the other a pole, intended to rob him. The appellant, who was armed with a brick and motivated by his grudge, intended to assault him. Once the appellant and his co-offenders caught up with the victim, they each used the implements they had to rob and assault the victim. The appellant came to know that his co-offenders were robbing the victim. He knowingly assisted and encouraged his co-offenders. The co-offenders succeeded in stealing the victim's ATM card and extracting from him an incorrect personal identification number. The appellant's assault on the victim enabled his co-offenders to extract the correct PIN from the victim.
10 The appellant and his co-offenders inflicted serious injuries on the victim. His Honour was unable, on the evidence adduced at trial, to make a finding attributing particular injuries to each offender. However, he found that the appellant's assault 'undoubtedly' contributed to these injuries. At the sentencing hearing, the prosecutor referred to medical evidence adduced in the trial which described the injuries as lacerations to the face, a fractured nose and a broken elbow. As a result of the injuries sustained, the victim was hospitalised, although his injuries did not require surgical intervention. No finding was made that the appellant was engaged in any of the planning of the robbery. His Honour found that the appellant derived no benefit from it.
11 The appellant's co-offenders were not apprehended and, it appears, have never been dealt with.
The appellant's personal circumstances
12 The appellant was 18 years of age at the time of the offending. He had just turned 20 at the time he was sentenced. The appellant's parents separated prior to his birth. The appellant's father has lived in Japan for many years and has shown only intermittent interest in him. The appellant has had no positive adult male role model in his life so far. His mother has been, and remains, supportive of him.
13 When he was 8 years old, the appellant was diagnosed with attention deficit hyperactivity disorder (ADHD). He was prescribed stimulant medication for this condition. At the age of 15, he ceased taking the medication, probably due to his father's hostility towards it. From this point, the appellant began offending.
14 His Honour described the appellant's record of convictions as 'reasonably extensive'. His prior offending was constant and made up of a series of relatively minor offences of dishonesty and public disorder, as well as one offence of common assault. His history of complying with court orders made by the Children's Court with a view to his rehabilitation is poor.
15 The appellant has a history of alcohol and substance abuse. Efforts so far have failed to rehabilitate him.
The psychological report
16 His Honour had before him a report by clinical psychologist, Jane Sampson, dated 17 December 2012. In Ms Sampson's opinion, the appellant's offending behaviour was driven in part by, as she put it, 'impulsivity as a result of untreated attention deficit hyperactivity disorder' (Ms Sampson's report, 17 December 2012, page 6). She noted that the appellant was developmentally immature and consequently had very little emotional awareness and insight. In her opinion, the appellant posed a moderate risk of future violent offending. She recommended a number of rehabilitative programs and that the appellant be medicated once again for his ADHD.
The sentencing remarks
17 His Honour identified the aggravating factors of the offending as being:
(a) that the appellant was in company with others;
(b) that the appellant and his co-offenders were each armed with and used offensive weapons;
(c) that the appellant and his co-offenders inflicted 'significant bodily injury' to the victim; and
(d) that there was an element of persistence in the offending.
18 His Honour characterised the aggravated armed robbery as 'a serious example of a serious offence'. However, he found that the criminal responsibility of the appellant was less than his co-offenders, although the difference was 'not vast'.
19 His Honour accepted that the appellant's ADHD was a significant, although not the predominant or most substantial, contributor to the offending. He said that the ADHD reduced the appellant's culpability and moderated the need for general deterrence. He expressed the view that, with proper medication and treatment, the appellant's ADHD can be addressed.
20 In his Honour's view, apart from the appellant's ADHD, the only substantial matter in mitigation was the appellant's plea of guilty 'in relation to the aggravation for bodily harm'. He said that some mitigatory weight could be given to the appellant's youth, his limited remorse and acceptance of responsibility, and the appellant's 'embarkation on a process of rehabilitation'.
21 The method by which his Honour arrived at the sentence of 3 years 11 months' imprisonment on count 1 was unorthodox. He expressed it in this way:
My sentence then is the following. I must explain it to you in this way: I am required to determine what the sentence would have been without any mitigating factors whatsoever, none at all, but just determined simply upon your offending which I believe should also take account of your culpability in relation to your offending, the result of all the factors that I have described but, particularly, the ADHD. My starting point for offending this serious [sic] is 4 years and 6 months. Now, that includes 8 months for the statutory circumstance of aggravation, doing bodily injury. I would reduce that 8 months to 7 months to allow for the 12 1/2% discount that I have described. That reduces 4 years 6 months to 4 years 5 months.
I would then reduce the sentence for other mitigating factors. In this respect, I find particularly that the factor which when all these matters are reviewed together and notwithstanding the qualified indications in this regard I have referred to, is, most significantly, a combination of your youth and the progress, qualified as it is and limited as it is, to rehabilitation. This would reduce the sentence of 4 years 5 months to one of 4 years which would then reduce to 3 years and 11 months with 1 month allowed for your home detention, as I believe I am in a position to do.
I have considered very carefully whether I should suspend that sentence, particularly, in view of my consideration of your youth and your prospects for rehabilitation. I believe, in view of the matters that I have referred to and I particularly note in that regard that your criminal record means that I cannot treat you as a person of prior good character and must extract, as well, the qualified indications as to rehabilitation that I have described, that it is not an appropriate exercise in my sentencing discretion to suspend the term of imprisonment here. You may be assured, if not comforted, by the fact that I have taken full account, I believe, of the submissions of your counsel in that regard [58] - [60].
22 It appears that his Honour adopted this unusual approach in part so that the plea of guilty to count 2, for which he ultimately imposed no sentence, was taken into account [62].
The appellant's submissions in this appeal
23 Mr Quail, on behalf of the appellant, submitted that having regard to the appellant's lesser culpability than that of his co-offenders, his ADHD, his plea of guilty to count 2 and his youth, the sentence of 3 years 11 months' imprisonment was manifestly excessive.
24 In his oral submissions, Mr Quail conceded that, were it not for the period that the appellant had spent in custody (198 days) and on home detention (207 days), it would not have been open to his Honour to make a suspended imprisonment order (appeal ts 9). With respect to the alternative ground, ground 2, Mr Quail submitted that while his Honour's sentencing approach was unorthodox, it was not erroneous. However, he submitted that it was evident from the approach his Honour had taken that he gave 'insufficient weight' to the appellant's admission of guilt to count 2.
The respondent's submissions in the appeal
25 Mr Fox, on behalf of the respondent, submitted that an examination of the decisions of this court and its predecessor, the Court of Criminal Appeal, revealed that, even for young offenders, immediate imprisonment for offences of aggravated armed robbery was the norm. He submitted that in the handful of cases where suspended imprisonment had been upheld or imposed on appeal, the appellants in those cases, unlike the appellant here, had pleaded guilty and had either no prior record or only a minor record.
26 Mr Fox submitted that, bearing in mind that the appellant did not have the benefit of a plea of guilty, the sentence imposed upon the appellant was in accordance with broadly comparable cases and was, in the circumstances, a proper exercise of his Honour's sentencing discretion.
27 With respect to ground 2, Mr Fox submitted that the plea of guilty had no, or very little, mitigatory weight. Despite the plea, the State was required to call all of its witnesses at the trial, including the doctor who had treated the victim. In that regard, Mr Fox noted that the doctor was cross-examined by defence counsel with a view to eliciting information from which it might be suggested that the victim had given inconsistent testimony about the circumstances of the offence.
Relevant general principles
28 The general appellate principles with respect to appeals against sentence are well established. They were conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.
Merit - Ground 1
29 The appellant alleges that the sentence on count 1 was manifestly excessive. The primary argument is that his Honour imposed the wrong kind of sentence and that he should have made a suspended imprisonment order. Alternatively, if immediate imprisonment was appropriate, the length was unjust and unreasonable.
30 To determine whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness for offences of the kind in question and the personal circumstances and antecedents of the offender.
31 As I have already said, the maximum sentence for count 1 is life imprisonment.
32 As the cases make clear, generally speaking, as a matter of fact, a sentence of immediate imprisonment is imposed for an offence of armed robbery. A non-immediate custodial disposition is exceptional. The range of sentences customarily imposed for a single offence of armed robbery is 4 to 6 years' imprisonment. However, this takes no account of mitigating or aggravating factors: see The State of Western Australia v Boundry [2013] WASCA 46; The State of Western Australia v Bropho [2013] WASCA 44; Drury v The State of Western Australia [2010] WASCA 220; Robinson v The State of Western Australia [2007] WASCA 45 and The State of Western Australia v Wells [2005] WASCA 23. Having said this, ultimately each case must be decided on its own particular facts and, while immediate imprisonment is the usual disposition, a sentencer must be satisfied that no other disposition is appropriate: Sentencing Act 1995 (WA) s 6(4), s 39(2) and s 39(3).
33 The appellant sought to support his submission that a suspended term of immediate imprisonment should have been imposed by reference to the cases of Mobilia v The Queen [2002] WASCA 130; Lovatt v The State of Western Australia [2004] WASCA 265; Satonick v The State of Western Australia [2008] WASCA 145 and The State of Western Australia v Boundry. In all of these cases, suspended terms of imprisonment were imposed.
34 The cases of Mobilia, Lovitt and Satonick were recently analysed by Buss JA in Bropho [40] - [43] and Boundry [32] - [36]. There is no need to repeat what his Honour wrote. I respectfully adopt it. It is sufficient to observe that the present case is distinguishable from these cases because, unlike in this case, each offender in the other cases:
(a) entered a fast-track plea of guilty;
(b) was either a first offender or did not have a significant record of offending; and
(c) did not commit any actual violence upon the victim.
35 Boundry is somewhat different from these cases in that actual violence was inflicted on the victim. However, it too is distinguishable from the present case. In contrast to this case, in Boundry:
(a) the violence inflicted by the respondent was relatively minor (particularly when compared to that inflicted by his co-accused Bropho);
(b) the respondent entered a fast-track plea of guilty; and
(c) the respondent's record was less serious.
36 The sentencing judge at first instance imposed a term of 2 years' imprisonment suspended conditionally for 2 years. A State appeal against this sentence was dismissed.
37 Even when due weight is given to all the mitigating factors and the time that the appellant had spent in custody and on home detention prior to sentencing, the circumstances of the offending were simply too serious to justify any other disposition apart from a term of immediate imprisonment.
38 The appellant was not, as his Honour found, as culpable as his co-offenders, but his level of culpability was far from minor. Motivated by a grudge, he took up the opportunity that presented itself and inflicted reasonably serious injuries upon the victim.
39 The appellant chose, as is his right, to go to trial on count 1. Of course, this is not an aggravating factor, but he cannot claim the mitigation to be gained from a plea of guilty.
40 Although by his plea of guilty to count 2 he admitted hitting the victim with a brick and causing him bodily harm, that admission was only made on arraignment and was of no utilitarian value and does not appear to reflect any remorse. Any mitigation because of it was, at best, very minor.
41 I now turn to the length of the term of imprisonment. This was something of an unusual case. The offence was not initiated by the appellant. It was his co-offenders who formed the plan to rob the victim. Further, as his Honour found, the co-offenders were more culpable in the commission of the offence than the appellant. It cannot be overlooked that the offence was committed by a developmentally immature 18-year-old and that a significant contributor to that offending was his ADHD. On the evidence before his Honour, that condition was not only a significant contributor to the offending, but it was also a contributor to his prior criminal history. Up to the age of 15 years, when he was medicated for this condition, the appellant committed no offences. After he went off his medication, apparently because of the influence of his father, his offending began. As his Honour recognised, the appellant's rehabilitation will be facilitated by the appellant resuming his medication, and it appears that he is willing to do so. It must also be remembered that his Honour concluded that because the appellant's ADHD was a contributor to the appellant's offending, the need for general deterrence was somewhat moderated.
42 With great respect to his Honour, in all of the circumstances of this case, the term of 3 years 11 months' imprisonment was more than was reasonably required to satisfy the sentencing aims of punishment, deterrence, retribution and rehabilitation. Implied error has been established. The sentence was, in all of the circumstances, unjust and unreasonable. I would uphold ground 1 and set aside the term of imprisonment imposed at first instance. This court has all of the materials necessary to resentence the appellant. I would impose a sentence of 2 years and 9 months' immediate imprisonment. I would not interfere with his Honour's orders for parole eligibility and backdating.
43 As ground 2 is an alternative ground, it is unnecessary to deal with it. However, it is appropriate to make the following observations.
44 As I mentioned earlier in these reasons, the way his Honour arrived at the sentence of 3 years 11 months' imprisonment was unorthodox.
45 The orthodox approach to sentencing for an offence in which circumstances of aggravation are pleaded does not involve, either as a matter of law or practice, the allocation of some specific portion of the sentence to one or more of the circumstances of aggravation. Thus, in this case, his Honour, with respect, ought not to have allocated part of the head sentence he would have imposed to the circumstance of aggravation that the appellant had inflicted bodily harm.
46 It appears from a reading of the transcript for the sentencing proceedings that his Honour was troubled by the application of s 9AA of the Sentencing Act, having regard to the fact that the appellant pleaded guilty to count 2, an offence for which his Honour decided to imposed no penalty pursuant to s 11 of the Sentencing Act. It appears that his Honour considered that s 9AA had some applicability to the sentencing on the count of aggravated armed robbery.
47 Section 9AA, which only applies to pleas of guilty, had no application to the sentencing of count 1, given that the appellant was convicted of this offence after trial. Having regard to the complete factual overlap between counts 1 and 2, it was open to his Honour to regard the plea of guilty on count 2 as a mitigating factor in sentencing on count 1 as something which facilitated the course of the trial. It was of similar effect to an accused who makes an admission of fact in a trial with the object of narrowing the issues or obviating the need for witnesses to be called or shortening the length of the trial.
48 In this case, his Honour, having decided that the plea of guilty to count 2 merited some mitigation of the penalty on count 1, needed only to have taken it into account as part of the intuitive synthesis of all of the relevant circumstances of the case: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. His Honour was not required to express the amount of any discount for this factor.
Orders
49 I would make the following orders:
1. The appeal is allowed.
2. The sentence on count 1 imposed by Simmonds J on 4 February 2013 is set aside and in lieu thereof a sentence of 2 years and 9 months' immediate imprisonment is imposed.
3. Simmonds J's orders for parole eligibility and backdating shall stand.
50 HALL J: I agree with Mazza JA.
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