Slater v The Queen
[2000] WASCA 365
•22 NOVEMBER 2000
SLATER -v- THE QUEEN [2000] WASCA 365
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 365 | |
| COURT OF CRIMINAL APPEAL | 22/11/2000 | ||
| Case No: | CCA:177/2000 | 1 NOVEMBER 2000 | |
| Coram: | WALLWORK J MURRAY J MILLER J | 1/11/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | NIGEL JOHN SLATER THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Armed robbery in company Small amount of property stolen Violence used Robbery a type of "street mugging" Relevance of personal circumstances Sentence of six years imprisonment upheld |
Legislation: | Nil |
Case References: | Miles v The Queen (1997) 17 WAR 518 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 73 ALJR 1007 Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997 Moulds v The Queen, unreported; CCA SCt of WA; Library No 9804147; 4 March 1998 Mulligan v The Queen [2000] WASCA 5 Munro v The Queen, unreported; CCA SCt of WA; Library No 970022; 6 February 1997 Nicole Lynette Romero v The Queen, unreported; CCA SCt of WA; Library No 950351; 11 July 1995 R v Ryan, unreported; CCA SCt of WA; Library No 8553; 22 October 1990 R v Shaharuddin [1999] WASCA 229 R v Tait (1979) 46 FLR 386 Taylor v The Queen, unreported; CCAQ SCt of WA; Library No 980152; 6 April 1998 Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SLATER -v- THE QUEEN [2000] WASCA 365 CORAM : WALLWORK J
- MURRAY J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Armed robbery in company - Small amount of property stolen - Violence used - Robbery a type of "street mugging" - Relevance of personal circumstances - Sentence of six years imprisonment upheld
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Representation:
Counsel:
Applicant : Mr C L J Miocevich
Respondent : Mr S P Pallaras QC
Solicitors:
Applicant : Aboriginal Legal Service of WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Miles v The Queen (1997) 17 WAR 518
Case(s) also cited:
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 73 ALJR 1007
Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997
Moulds v The Queen, unreported; CCA SCt of WA; Library No 9804147; 4 March 1998
Mulligan v The Queen [2000] WASCA 5
Munro v The Queen, unreported; CCA SCt of WA; Library No 970022; 6 February 1997
Nicole Lynette Romero v The Queen, unreported; CCA SCt of WA; Library No 950351; 11 July 1995
R v Ryan, unreported; CCA SCt of WA; Library No 8553; 22 October 1990
R v Shaharuddin [1999] WASCA 229
R v Tait (1979) 46 FLR 386
Taylor v The Queen, unreported; CCAQ SCt of WA; Library No 980152; 6 April 1998
Weng Keong Chan (1989) 38 A Crim R 337
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Murray J.
2 MURRAY J: Having heard argument in support of the application for leave to appeal against sentence in this case, the Court refused leave. These are my reasons for joining in that order.
3 The applicant was tried before Heenan J and a jury upon an indictment charging him with one offence of armed robbery in company. Following his conviction of the offence in the circumstances of aggravation charged, Heenan J sentenced the applicant to 6 years imprisonment with eligibility for parole. Taking into account time spent in custody on remand, his Honour backdated the sentence to 16 June 2000.
4 The circumstances of the offence can be described no better than in the words used by Heenan J when imposing sentence:
"On Thursday, 22 July 1999, you came to Perth from Manjimup where you had been living with your grandparents. That afternoon you went to the home of your cousin, Mark Butler, at Mirrabooka. For a while you and others were drinking beer there, but then you started drinking Fruity Lexia, an alcoholic drink sold in casks. That evening Mark Butler drove you and Joseph Slater, another cousin of yours, to Northbridge where you and Joseph met up with several other young people of Aboriginal descent. It seems that you had intended to spend the night with Joseph's family in their home at Clarkson, but time went by and you missed the last bus.
At about 30 minutes after midnight, you were with a group of young people in Wellington Street in front of the Perth railway station. Some of the group were trying to persuade a taxi driver to take them in his car. Meanwhile you noticed a 20-year-old man shorter and more lightly built than yourself on the other side of the street. He also was looking for a taxi. You went across to him and asked him to give you a cigarette. As he was reaching into his jacket or shirt, you took him by the throat with your right hand and told him to shut up and give you all his money. Telling him also that you had a knife, you hit him across the face with your left hand.
Your cousin Joseph and another member of your group had followed you across the street. The three of you pushed or pulled your victim down some stairs into an underground
(Page 4)
- carpark. From his front pockets you took a $5 bank note, a disposable cigarette lighter and a tobacco pouch. One of the others pulled his wallet from his back trouser pocket, took $30 in notes which it contained, and threw the wallet on the ground. Then the other two ran off. You walked back across Wellington Street towards the railway station. The young man whom you had robbed followed you and asked for his tobacco pouch. At first you refused, but then, apparently having seen a police van parked nearby, you gave it to him and walked on."
5 In those circumstances, to my mind the seriousness of the offence is manifest and the aggravating features of the case were referred to by his Honour. The applicant was the leader of those who committed the offence. It was boldly carried out in a public place, forcefully removing the victim into the underground carpark, a more private location. Although it was not charged as a circumstance of aggravation, personal violence was used. The victim was grabbed by the throat: he was struck on his face. In view of the fact that there were three offenders, he had little prospect of defending himself and there was little chance that others might come to his assistance. It must, no doubt, have been a terrifying experience for the victim and it was fortunate that he suffered no real physical harm.
6 The victim was threatened with a knife which the applicant well knew he possessed. It assists him not at all, in my opinion, that the knife may have been a relatively small penknife and that it was not shown to the victim in a threatening manner. Given the violent manner in which the robbery was carried out, it seems to me to be of little moment that the property stolen was of small value and I do not consider there is much mitigation to be found in the fact that the offence was apparently committed on the spur of the moment. In his conduct after the incident the applicant appears to have displayed a degree of bravado.
7 Although he was said to be remorseful for what occurred, a fact which was accepted by Heenan J, the applicant did not translate that contrition into an early or any plea of guilty and so he had not the benefit of the mitigation that such a plea would provide. When the applicant came to be sentenced he was 22 years of age. He had suffered an early childhood of considerable deprivation and instability while with his parents, who were both alcoholics. It involved physical neglect and abuse. Protracted difficulties with bed-wetting and faecal soiling were met by physical punishment rather than supportive remediation. The applicant's situation appears to have improved only towards the end of his
(Page 5)
- childhood when, after his parents separated, his mother commenced an unsupportive defacto relationship and the applicant went to live with his maternal grandparents. They, and other close relatives, demonstrated their support for the applicant in letters written on his behalf to the trial Judge.
8 There is no doubt much to be said of the applicant's good qualities, but by the time the applicant acquired some significant support, including a defacto relationship of his own, which appears to have been formed at about the time the offence of robbery was committed, he had already acquired a significant history of convictions. His first appearance before the Children's Court was at the age of 11. Since then, there has been a steady series of offences of dishonesty and violence, particularly as a child and less significantly in his adult years, during which period the rate of offending appears to have dropped and most of the convictions are of traffic offences. No doubt the record could be much worse, but the applicant hardly came before the court as a person of prior good character. Nonetheless, the robbery offence was a significant escalation in the seriousness of his offending behaviour.
9 There is no doubt, as Heenan J found, that this offence was committed against a background of over-indulgence in alcohol. The applicant has long had a problem of dependence on alcohol which has undoubtedly been associated with his offending. A psychological report which accompanied the pre-sentence report obtained by Heenan J records that the applicant appears to have suffered adverse effects as a result of a head injury received during a fight. For that and other reasons he appears to have what are described as "cognitive difficulties", but it was not suggested that they were of a kind which would reduce his culpability in respect of the commission of the offence. What was said of him was that he was a simple person who relied heavily upon the supportive environment where he lived in Manjimup, to which he wished to return. He appears to have suffered from depression for some years. In addition to alcohol abuse, it appears that for some years the applicant has been using illicit drugs, particularly amphetamines. No doubt that also has some connection with his offending. It was recommended that the applicant undertake treatment and counselling for both alcohol and substance abuse generally, which he appears not to have previously attempted to control.
10 Having noted the circumstances of the commission of the offence which marked its seriousness, but having also referred to the applicant's personal circumstances so far as they were mitigatory in effect, with
(Page 6)
- particular reference to the applicant's youth, his deprived circumstances, his remorse and his psychological state, Heenan J expressed the view that the robbery was "far worse than bag snatching or the usual type of mugging offence", by which his Honour said he meant a robbery committed in a public place without any element of deprivation of liberty or the use, actual or threatened, of a weapon. Because of the seriousness of the offence, his Honour considered that "a long term of imprisonment is the only appropriate penalty." However, having regard to the applicant's personal circumstances which at least attracted sympathy, his Honour said that the term which he imposed was one which he thought to be at the bottom of the appropriate range.
11 The applicant, however, sought leave to appeal on the ground that the sentence imposed was manifestly excessive, having regard to the standards of sentencing customarily observed for offences of this nature, the seriousness with which it might properly be categorised and the applicant's personal circumstances, including particularly his age and history of psychological problems.
12 As to the applicant's personal circumstances, I have mentioned what they were and that they were discussed by Heenan J in his sentencing remarks. To my mind, as to that of his Honour, they had little capacity, relatively speaking, to mitigate punishment. Such offences committed in like circumstances to this case are distressingly prevalent in our community. They are serious offences and members of the public need such protection as the courts may provide by visiting upon offenders appropriately severe punishment for purposes of both particular and general deterrence. Those considerations applied in this case with the force which they customarily bear.
13 The decision of this Court in Miles v The Queen (1997) 17 WAR 518 was referred to in argument. Some general observations about what might be an appropriate range of sentences were there made, not solely in connection with the armed robbery of banks, building societies and the like, but in connection with armed robberies generally, and I would include in that category of offending a case such as this where the applicant was armed, as he well knew, even though the robbery was effected without the need to actually display the weapon. The commission of the robbery was facilitated both by being armed and telling the victim that the applicant had a knife, and by the personal violence used against him.
(Page 7)
14 In Miles, Malcolm CJ at 521, made some general observations, with which Pidgeon J agreed and which were echoed by White J at 522. His Honour said that since 1989:
"…sentences have tended to firm up as a result of the increasing prevalence of the offence by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender in the manner described by Burt CJ in R v Peterson [1984] WAR 329 at 332. The offence of armed robbery has become significantly more prevalent since 1989 and sentences have been firmed up in that period. At present, the range of sentences commonly imposed for a single offence, depending upon the circumstances, would be from six to nine years. In the present case, the victims were both persons in a vulnerable position endeavouring to provide a service to the community at night. In the first case the victim was the person in charge of a delicatessen and in the second case the victim was a taxi driver."
15 In my opinion that was the appropriate range of penalty which Heenan J was to bear in mind in this case and his Honour expressly said that he had regard to that range. I can detect no error in the approach taken by his Honour or in respect of the matters considered by him as affecting the penalty to be imposed. Having regard both to the applicant's personal circumstances, as his Honour found them to be, for what relatively little weight they bore in mitigation of punishment, and to the circumstances of the commission of the offence, which undoubtedly had attendant upon them some significant circumstances of aggravation, I am quite unable to conclude that the sentence imposed was so manifestly excessive as to require the intervention of this Court. For that reason I joined in the order made.
16 In leaving the case I must say that I found unhelpful the emphasis in argument on behalf of the applicant to this robbery being a rather more serious than usual street mugging. To my mind, viewed as an offence which may be described colloquially in that way, this robbery retained significant circumstances of aggravation in the manner of its commission which elevated its seriousness and required the imposition of a substantial term of imprisonment. No doubt the punishment would have been reduced had there been no element of the threatened use of a weapon, no personal violence, no group of offenders in company one with the other, and no element of detention of the victim, but that would have been a quite different case.
(Page 8)
17 MILLER J: I have read the reasons to be published by Murray J. I am in agreement with those reasons and have nothing further to add.
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