Smith v The Queen
[2001] WASCA 93
•23 MARCH 2001
SMITH -v- THE QUEEN [2001] WASCA 93
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 93 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:3/2000 | 6 FEBRUARY 2001 | |
| Coram: | KENNEDY J ANDERSON J STEIN AJ | 23/03/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentences dismissed | ||
| PDF Version |
| Parties: | DAVID IAN SMITH THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Armed robbery, stealing with violence and breach of intensive supervision order imposed on conviction for sale of heroin Effective head sentence of 9 years' imprisonment Not set aside as excessive |
Legislation: | Nil |
Case References: | Miles v The Queen (1997) 17 WAR 518 Lowndes v The Queen (1999) 195 CLR 665 Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 3 April 1998 R v Peterson [1984] WAR 329 Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SMITH -v- THE QUEEN [2001] WASCA 93 CORAM : KENNEDY J
- ANDERSON J
STEIN AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Armed robbery, stealing with violence and breach of intensive supervision order imposed on conviction for sale of heroin - Effective head sentence of 9 years' imprisonment - Not set aside as excessive
Legislation:
Nil
Result:
Application for leave to appeal against sentences dismissed
(Page 2)
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC & Ms J A Girdham
Solicitors:
Applicant : In person
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:
Lowndes v The Queen (1999) 195 CLR 665
Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 3 April 1998
R v Peterson [1984] WAR 329
Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
(Page 3)
1 KENNEDY J: On 13 January 2000, the applicant pleaded guilty under the fast track system to one count of armed robbery with actual violence, and to one count of robbery with threats of actual violence.
2 On Saturday, 24 July 1999, the complainant's husband was working at their haberdashery store in Inglewood. At approximately 7.25 am, the applicant drove his car into the area and parked it near the haberdashery store. The applicant put on a pair of rubber gloves and a partial disguise, which included a scarf and a beanie. Prior to entering the store, the applicant filled a syringe with his own blood. Having entered the store, he approached the complainant's husband, who was at the time in the kitchen area. He then produced the syringe, which he pointed at the complainant's husband, telling him that he had AIDS. The applicant demanded money from the till. In response to this demand, the applicant was given the contents of the till, amounting to $40. He then left the store. On 20 September 1999, detectives interviewed the applicant, who admitted committing the offence. The money stolen from the store has not been recovered.
3 In relation to the second count, early in the afternoon of Monday, 23 August 1999, the applicant drove his own car to the complainant's pharmacy in Nollamara. The applicant entered the pharmacy, locking the door behind him, and told the pharmacist that it was a hold-up. At the time, the applicant was wearing a wig, a baseball cap and surgical gloves. He had concealed the lower portion of his face with cloth, so that only his eyes were visible. He demanded drugs from the safe. The pharmacist opened the safe and the applicant took several packets and ampoules of predominantly morphine-based drugs. He then demanded that the till be opened. The pharmacist complied with the demand and the applicant stole $540 from the till. As he was about to leave the pharmacy, the applicant took 10 bottles of sleeping tablets from a display stand and he then departed through the rear door, scaled a fence and ran to his car. On 9 September 1999, the applicant was interviewed by detectives and made admissions regarding the offence.
4 These offences constituted breaches of two intensive supervision orders on which the applicant had been placed in the District Court at Port Hedland on 8 April 1999 and in the Court of Petty Sessions at Port Hedland on 16 April 1999, for 18 months and 9 months respectively.
5 The offence which led to the first intensive supervision order involved the sale of heroin to an undercover police officer for the sum of $500. The undercover officer had handed the sum of $500 to the
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- applicant, who subsequently contacted a third party. Later that day, the applicant passed to the undercover officer five small plastic bags containing white powder, which was found on subsequent analysis to be heroin. The total weight of that powder was 0.11 grams. The applicant was interviewed in relation to the offence and admitted his involvement in it; but he refused to identify the third party who had been his supplier.
6 The offences which led to the making of a global intensive supervision order were of assaulting a public officer, hindering police and resisting arrest. They were committed after the police had been called to a unit in South Hedland to be present while the applicant's girlfriend removed her personal belongings from the house where they had been living. The applicant and his girlfriend were shouting and swearing at each other, and the police had to intervene. They directed the applicant's girlfriend to leave the premises in her motor vehicle. The applicant, however, removed the keys from the vehicle and refused to reveal where they were. They were subsequently located. As the police were attempting to arrest the applicant, he lunged forward, pushing one of the police officers in the chest and causing him to fall backwards. A struggle then ensued before he was eventually subdued and handcuffed. The police officer who had been assaulted suffered only a minor discomfort in his chest region and no medical attention was required.
7 The intensive supervision orders, as I have indicated, were made in April 1999. The armed robbery was committed in July 1999 and the robbery in August 1999.
8 The applicant, who at the time of sentencing was nearly 31 years of age, was born in England. He was adopted at birth and came to Australia with his adoptive parents in 1972. His adoptive father was an alcoholic and his adoptive parents' marriage was later dissolved. The applicant moved back to England in 1978, but he returned to Australia in 1982, due to family problems, and he then resided with his father until his father died in 1986. The family had been constantly on the move. The applicant attended school until Year 8, but after finishing that year he received no further education. He obtained employment immediately after leaving school. Since that time, he has done casual labouring work; but his longest period of employment has been about 4-1/2 years, during which period he was employed as a truck driver.
9 Some six years prior to the offences which resulted in the sentences with which we are presently concerned, following a motor cycle accident, the applicant had been using heroin. At the time the offences were
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- committed, the applicant was said to be in the grip of a rather serious heroin habit, which was costing him between $200 and $400 a day. He also had an alcohol problem. He has tried on a number of occasions to resolve his addiction; but he has been unsuccessful. Since he has been in custody, it is said that he has undertaken all the drug courses which have been available to him.
10 The learned sentencing Judge took as a starting point for the armed robbery a sentence of 10 years and for the robbery a sentence of 5 years. Having regard to matters personal to the applicant and to his pleas of guilty, he reduced those sentences to 5 years and 3 years respectively. For the offence of selling heroin, which had resulted in the making of the first of the intensive supervision orders, his Honour cancelled the order and imposed a sentence of 1 year. He directed that these three sentences be served cumulatively. In relation to the three offences which resulted in the second intensive supervision order, the order was cancelled and in its place his Honour sentenced the applicant to a term of 1 year's imprisonment on each of the three offences and directed that each of them be served concurrently with the sentence for armed robbery. The learned sentencing Judge directed that the applicant be eligible for parole in respect of each sentence.
11 The applicant seeks leave to appeal against his sentences on the following ground:
"1. The sentence imposed by the learned sentencing Judge was manifestly excessive in all the circumstances having regard to
(a) the antecedents of the applicant
(b) the nature of the offence
(i) the starting point of five years for the robbery offence was higher than is commonly imposed for offences of that type
(ii) the robbery offence was at the lower end of such offences as it involved no violence or threats of violence."
(Page 6)
- 1989, and he stressed that he had not been convicted of any offence for the next 10 years, save for minor traffic offences. What were described as minor property offences included being on premises for an unlawful purpose, entering a dwelling house with intent to commit an offence during the night time and breaking, entering and stealing. In respect of the first and third of these offences, he was fined $20 and $200 respectively. In relation to the second offence, he was placed on probation for 18 months and ordered to undertake 100 hours of community service.
13 The applicant argued that the first offence, involving the use of the blood filled syringe, was committed while he was under the influence of stupefying drugs, namely heroin and temazepam, and although he recognised that this did not excuse his conduct, he argued that it should be taken into account that he was not fully aware of his actions. The fact that he was under the influence of stupefying drugs, however, cannot constitute a mitigatory factor. On the other hand, the use of the syringe was an aggravating factor, in respect of which it was indicated in Miles v The Queen (1997) 17 WAR 518 that the use of a blood filled syringe as a weapon in the course of an armed robbery should normally attract a sentence of at least 1 year's imprisonment above that which would otherwise have been imposed.
14 In relation to the offence of robbery, the applicant submitted that the offence was less serious because it did not involve the use of any weapon or force. However, the fact that the applicant told the pharmacist that it was a hold-up clearly amounted to a threat to use actual violence. Robberies, whether or not force is in fact used, are rightly regarded as offences of violence. The impact upon the victims of robberies is often severe. Such offences are all too frequently perpetrated against pharmacies and small businesses which are providing a service to the community. These factors, together with the increasing prevalence of offences of robbery, have, over a number of years, led to a firming up of sentences, with greater weight being given to the requirements of personal and general deterrence and less weight to matters personal to the offender.
15 It is well established that a court of criminal appeal may not substitute its own opinion for that of the sentencing Judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. In this case, in my opinion, having regard to the circumstances which have been identified, the sentences imposed upon the applicant clearly fall
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- within the range of the exercise of a sound discretionary judgment, and I would dismiss the application for leave to appeal against the sentences.
16 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by the Hon Kennedy J. I entirely agree with those reasons and have nothing to add.
17 STEIN AJ: I agree with Kennedy J, with his Honour's reasons and proposed orders.
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