Sweeney v The Queen

[2003] WASCA 192

SWEENEY -v- THE QUEEN [2003] WASCA 192

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 192
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:72/2002	Heard:	19 JUNE 2003
Coram:	MURRAY J HASLUCK J ROBERTS-SMITH J	Delivered:	27/08/03
No of pages:	22	Judgment Part:	1 of 1
Result:	Application for leave to appeal against conviction granted Appeal allowed Convictions quashed Leave to appeal against sentence refused
Category:	B
PDF Version

Parties:	JAMES ANDREW SWEENEY THE QUEEN MATTHEW DEAN SWEENEY
Catchwords:	Criminal law and procedure Theft of motor vehicle and armed robbery Sufficiency of evidence to support convictions Turns on own facts Sentencing Two offences each of stealing motor vehicles and armed robbery in company Two offenders Both sentenced to aggregate term of 11 years imprisonment Effect of orders for partial accumulation Whether manifestly excessive totality principle Questions of parity Turns on own facts
Legislation:	Nil
Case References:	Kirby v The Queen [2002] WASCA 164 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 77 ALJR 139 Miles v The Queen (1997) 17 WAR 518 Postiglione v The Queen (1997) 189 CLR 295 Smith v The Queen (2001) CLR 650 Castagna v The Queen [2001] WASCA 142 Gipp v The Queen (1998) 194 CLR 106 Lowe (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Mickelberg v The Queen (1989) 167 CLR 259 Morris v The Queen (1987) 163 CLR 454 Osland v The Queen (1998) 197 CLR 316 R v Privitera [1966] WAR 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SWEENEY -v- THE QUEEN [2003] WASCA 192 CORAM : MURRAY J

HASLUCK J
ROBERTS-SMITH J

HEARD : 19 JUNE 2003 DELIVERED : 27 AUGUST 2003 FILE NO/S : CCA 72 of 2002

CCA 77 of 2002

BETWEEN : JAMES ANDREW SWEENEY

Applicant

AND

THE QUEEN
Respondent

FILE NO/S : CCA 73 of 2002 BETWEEN : MATTHEW DEAN SWEENEY

Applicant

AND

THE QUEEN
Respondent

(Page 2)

Catchwords:

Criminal law and procedure - Theft of motor vehicle and armed robbery - Sufficiency of evidence to support convictions - Turns on own facts

Sentencing - Two offences each of stealing motor vehicles and armed robbery in company - Two offenders - Both sentenced to aggregate term of 11 years imprisonment - Effect of orders for partial accumulation - Whether manifestly excessive - totality principle - Questions of parity - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal against conviction granted

Appeal allowed
Convictions quashed
Leave to appeal against sentence refused

Category: B

Representation:

CCA 72 of 2002

CCA 77 of 2002

Counsel:

Applicant : Mr B Hanbury
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions

(Page 3)

CCA 73 of 2002

Counsel:

Applicant : Mr R D Young
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Gunning Young
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Kirby v The Queen [2002] WASCA 164
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 77 ALJR 139
Miles v The Queen (1997) 17 WAR 518
Postiglione v The Queen (1997) 189 CLR 295
Smith v The Queen (2001) CLR 650

Case(s) also cited:

Castagna v The Queen [2001] WASCA 142
Gipp v The Queen (1998) 194 CLR 106
Lowe (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Mickelberg v The Queen (1989) 167 CLR 259
Morris v The Queen (1987) 163 CLR 454
Osland v The Queen (1998) 197 CLR 316
R v Privitera [1966] WAR 12

(Page 4)

1 MURRAY J: These applications for leave to appeal, one in respect of conviction and two in respect of sentences passed, were heard together. The applicants are brothers. So far as is presently material they were indicted in this Court on two counts of stealing a motor vehicle and two counts of armed robbery in company. One of the brothers faced a further count of armed robbery in company, of which his brother was acquitted by direction. It will be convenient to refer to the applicants by their given names.

2 The counts on the indictment were:

(1) On 21 October 2000, at Carlisle, Matthew and James stole a motor vehicle.

(2) On that date, in Carlisle, Matthew and James committed an armed robbery in company with each other on the Carlisle South Post Office and stole money owned by the operator of the post office and money owned by the Bank of Western Australia Ltd, operating the BankWest Carlisle Handymart. The two businesses were evidently operating in the same premises.

(3) On 23 October 2000, at Albany, Matthew committed an armed robbery on the Spencer Park Newsagency and Gift Shop and Post Office. He was alleged to be in company with another.

(4) On 29 October 2000, at Como, Matthew and James stole a motor vehicle.

(5) On that date, at Como, Matthew and James committed an armed robbery on the Busy Bee Delicatessen in company with each other.

3 There were other charges upon which the jury were directed to acquit and so it was the case that in respect of the charges in the indictment upon which the verdict of the jury was required in the ordinary way, Matthew was liable to conviction of one more offence of armed robbery in company than was James.

4 The trial having commenced on 11 March 2002, the jury returned verdicts of guilty in respect of all matters before them, on 19 March. On 19 April 2002, sentence was passed.

(Page 5)

5 Matthew was sentenced for the first offence of stealing a motor vehicle, to 2 years imprisonment. For the associated offence of armed robbery in company, he was sentenced to 6 years imprisonment, concurrent. For the offence of armed robbery in company of which he alone was convicted, he was sentenced to 7 years imprisonment. The trial Judge said that 4 years of that term were to be concurrent with the 6 years imprisonment previously imposed, and 3 years of that term were to be cumulative on that sentence. His Honour later clarified that by saying that eligibility for parole having been ordered, his intention was, and the order he made was, that the sentence of 7 years imprisonment should commence upon the date when, in relation to the 6-year term, Matthew would become eligible for parole, ie, 2 years after its commencement. The sentences were backdated to commence on 30 October 2000. For the remaining offence of stealing a motor vehicle, a further 2 years imprisonment was imposed, to be served concurrently. In relation to the final offence of armed robbery in company, Matthew was sentenced to 5 years imprisonment, 3 years of which was to be served concurrently with the other terms imposed and 2 years of which was to be served cumulatively.

6 His Honour's intention is clear. The sentences of 2 years imprisonment for theft of motor vehicles can be disregarded because they were ordered to be served concurrently. Given the order for partial accumulation, the aggregate term in respect of the first two offences of armed robbery in company was 9 years imprisonment. If that were all that was to be considered, having regard to the order of eligibility for parole, the applicant would become eligible after serving 4 years of that aggregate term. His Honour meant, however, that by the third sentence of imprisonment for armed robbery in company he would add only 2 years cumulative upon the previous two terms. Hence the terms of his order for further partial accumulation of this sentence which his Honour said would give a total term of 11 years imprisonment. I shall return, in due course, to the effect of the orders made.

7 So far as James is concerned, the matter is more straightforward. He also was sentenced on 19 April 2002. In his case also, sentences of 2 years imprisonment were imposed for each of the offences of stealing motor vehicles. For the first offence of armed robbery in company, he was sentenced to imprisonment for 6 years. For the second such offence, he was sentenced to imprisonment for 5 years. His Honour thought in the case of James also, despite the fact that he was to be sentenced for one offence less than Matthew, the appropriate aggregate term was 11 years imprisonment. His Honour imposed the 5-year sentence cumulatively

(Page 6)

upon the 6-year term. Again, eligibility for parole was ordered and the sentences were backdated to commence from 25 June 2002. Again, I may need to return to the effect of and a consideration of the severity of those sentences, but first it is appropriate to deal with the application for leave to appeal against conviction by James.

CCA 77 of 2002 – James' appeal against conviction

8 The application for leave to appeal proceeded on grounds which effectively asserted that the verdicts of the jury were unreasonable and not supported by the evidence because there was insufficient evidence to identify the applicant as the offender in the counts I have numbered (4) and (5) above, ie, the armed robbery in company of the Busy Bee Delicatessen, the co-offender being Matthew, and the associated stealing of a motor vehicle in Como on 29 October 2000.

9 There is no challenge to James' conviction in respect of the armed robbery in company of the Carlisle South Post Office and BankWest Handymart and the associated theft of a motor vehicle. It will be observed that there is no complaint made about the directions given by the trial Judge in respect of the question of identification, which was the issue at trial.

10 Expressed as they are, the grounds reflect the provisions of the Criminal Code, s 689(1), which provides that the Court of Criminal Appeal is to allow an appeal against conviction "if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, … ." In MFA v The Queen (2002) 77 ALJR 139, it was held in relation to the equivalent provision of the Criminal Appeal Act1912 (NSW) that the test to be applied by an appellate court under such a section is that formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487.

11 The question becomes, by way of a gloss upon the provision, whether the verdict is unsafe or unsatisfactory and the test may be simply put in terms of the question whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. Formulated in that way, the test pays respect to the advantage enjoyed by the jury derived from their participation in the trial and it recognises that it is upon the jury that primary responsibility for determining guilt is reposed. Nonetheless, it is accepted that in most cases, if, upon reviewing the evidence, the Court of Criminal Appeal has a doubt that upon the whole of the evidence the guilt

(Page 7)

of the accused was established beyond reasonable doubt, that is a doubt which a reasonable jury ought to have experienced and the conviction will be quashed.

12 It will be recalled that the first robbery involving the two brothers occurred in Carlisle on 21 October 2000. This theft of a motor vehicle and robbery occurred in Como, 8 days later. In relation to the first robbery there was direct evidence identifying the applicant as one of the two offenders. One witness, who said that he had seen the applicant and his brother before the day of the robbery, made a dock identification, but there was photoboard identification by a Mr McDonald which seems to me to have been strong evidence, although the witness also accepted that he had seen the applicant at the Handymart on previous occasions. In addition, there were photographs before the jury, which were still photographs taken from a surveillance tape which captured the incident. The respondent conceded on this appeal that no similar fact argument was available in relation to the two offences of armed robbery so as to make the evidence directly establishing the applicant's complicity in the first armed robbery, evidence to which the jury could have regard in relation to his guilt of the second robbery, his conviction for which he now challenges.

13 As to the offences in question, the evidence established that a yellow Ford Telstar, registration number 7LA-163, was stolen in Como on the Sunday, 29 October 2000. At about 3 pm that afternoon, a Ms Darlington was working as a shop assistant at the Busy Bee Deli in Como. Two men rushed in and shouted that it was a holdup. They wanted the till opened, but she froze. One man jumped over the counter and opened the till, which did not contain a great deal of money. Cigarettes were taken. The men ran from the store.

14 They both wore baseball caps and sunglasses. One was taller than the other. Both had knives about 6 inches long. She could identify neither man. She did not go outside the store after the robbery, but soon a customer came in and gave her the registration number of a motor vehicle. She wrote it down. It was 7LA-163, the yellow Telstar.

15 The person who took that number was a Mr Blakers, who, as he walked to the delicatessen, saw a yellow car just outside the shop. It was parked on the wrong side of the road, facing in the wrong direction, and that drew his attention to it. He went to a phone box to phone OOO, thinking that something suspicious was happening. As he did so, a man ran from the delicatessen. He was wearing a black baseball cap. He ran

(Page 8)

to the driver's door of the car and as he got there a second man came out of the delicatessen. He was a taller man. He became entangled in the plastic strips over the doorway. His cap came off. As he tried to retrieve it, Mr Blakers noticed that he was carrying a bag of some kind in his other hand.

16 The other man, by now sitting behind the wheel of the car, called to him. He disentangled himself from the plastic strips, ran to the passenger's side of the car, got in and the car accelerated away and drove off at a high speed. Mr Blakers took the vehicle's number and, as I have said, went into the shop and gave it to Ms Darlington. Mr Blakers later identified the second of the robbers. It was Matthew. He said he could not identify the other man, the shorter of the two.

17 The applicant and his brother Matthew were arrested on the following day. They were at a fast food outlet, seated in a Commodore sedan. A third occupant of the vehicle, a Ms Young (also identified as Edwards) was with them. Matthew had apparently been living in a caravan, parked at a residence in Bentley. The police searched both the caravan and the car. Various items, particularly of clothing, were seized. Buccal swabs were taken from Matthew, James and Ms Young.

18 It will be understood that the Commodore was not the vehicle used in the robbery on the previous day. That vehicle had been found abandoned in Como, a mere 10 minutes or so after the robbery was committed. The coin tray of the cash register taken during the robbery of the delicatessen was found in the car.

19 When the Commodore was searched, a considerable amount of clothing and footwear was found. In a bag in the boot, with various items of clothing, a machete was found. There were two pairs of joggers and another pair of shoes. Another item of interest found in the vehicle was a red and blue baseball cap, with the word "wrong" embroidered on the front and back. A mustard-coloured tee shirt with a "Jag Jeans" motif on the front was also recovered from the car.

20 A Mr Webb, a forensic biologist, gave evidence that there was a mixed DNA profile recovered from the cap and the tee shirt. In Mr Webb's opinion it was overwhelmingly likely (to the point of absolute certainty, I would have thought) that the DNA mixture recovered from both the cap and the tee shirt was contributed by four people, three of whom were the brothers James and Matthew, and Ms Young. It would seem that all three and a fourth person, whose identity was unknown, had

(Page 9)

at one time or another worn both the cap and the tee shirt. The shoes were not examined for DNA. A pair of Nike runners was alleged to be linked to the commission of the Carlisle robbery.

21 Ms Young was called by the Crown. She said that she also was arrested with the two brothers on 30 October 2000. They were proposing to "score" heroin for her when arrested. She was James' girlfriend. She only knew Matthew as James' brother. She had supplied the Commodore. It was owned by a friend and kept at the place where she and James were living in Cottesloe. Matthew lived in the caravan in Bentley. Young was a hostile witness, declared so by the trial Judge and cross-examined by all parties.

22 A further important Crown witness was a Det Flatman, who was in charge of the police investigation. The witness had obtained surveillance videos, taken at the respective premises the subject of the robberies in Carlisle and Como. He had had still photographs made and caused photoboards to be compiled, upon which were juxtaposed photographs of items seized in the circumstances I have described, and the still photographs, linked by lines intended to demonstrate the similarities.

23 I would make the following observations. The still photographs taken from the surveillance videos are small, often blurred and in black and white. The two offenders in the Carlisle robbery are depicted. They are dressed in dark clothing. One appears to be wearing a pair of gloves and a pair of gardening gloves was found in the possession of the accused and the others. One appears to be holding a weapon. It may be a machete, similar to that recovered from the Commodore. A dark coloured backpack is carried by one of the offenders. Such a thing was found in the car. One is wearing what might be a pair of runners of a kind similar to the Nike runners found in the car. The two men appear to be wearing dark-coloured beanies.

24 The video stills in respect of the Como robbery are poor quality. They are blurred and again in black and white. The two offenders on this occasion are differently dressed in what appears to be light-coloured clothing. One appears to be wearing a tee shirt which has a logo across the chest. It will be recalled that a fawn-coloured tee shirt with a logo "Jag Jeans" across the chest was seized. It is impossible to say it was the same garment. One of the offenders is carrying what appears to be a large knife, or maybe a machete of a kind similar to that recovered from the Commodore. Again, one offender appears to be carrying a small carryall, which may be similar to the backpack seized from the car.

(Page 10)

25 One offender appears to be wearing runners. The clearest picture shows that they might well be shoes similar to the Nike runners found in the Commodore, but it would be quite impossible to identify them as the same shoes. Finally, one offender is wearing a dark-coloured baseball cap, with a white or lighter coloured brim. There is something written on the front and the back, but what is written cannot be deciphered. It will be recalled that a cap found in the car was blue with a red brim and the word "wrong" embroidered on the front and the back of the cap. That worn by one of the offenders might well be a similar item, but again it would be quite impossible to make an identification.

26 In giving his evidence-in-chief, Mr Flatman was not asked if he could identify either person shown in any of the still photographs. However, when cross-examined on behalf of the applicant, counsel referred to one of the offenders in the still photograph on the right-hand side of the photoboard. The person is behind the counter, but with his back to the till, apparently reaching towards some shelving. It is the only photograph which shows either offender with his head up. It is possible to see an eye, his nose and mouth and that he is clean-shaven, but it is quite impossible to identify facial features with any clarity.

27 Nonetheless, counsel asked the witness if he knew who that person was. Det Flatman answered that it was the applicant. The witness was asked who the other person was, the offender holding what might be a machete. He said that was Matthew. But I repeat it is quite impossible to see any of that person's facial features, although from one photograph it does appear that he may be wearing dark glasses.

28 However that may be, when asked further questions about his identification of the applicant and whether he could make the identification "conclusively", the witness answered:

"From my experience from viewing video footage of the robberies and from dealing with the two accused, in my opinion, yes, and if it is viewed quite clearly and repeatedly as I have done, you can identify quite clearly who is who involved in these robberies."

29 It will be observed that although the witness initially offered the opinion upon a perusal of the still photograph, his later elaboration of the answer relied upon his knowledge of and familiarity with the appearance of James and Matthew and repeated viewings of the surveillance videos which, as I understand it, were not in evidence before the jury.
(Page 11)

30 Matthew gave evidence in his own defence. He confirmed that he lived in the caravan in Bentley. He said that from time to time he had friends over. Male friends sometimes slept the night. He did not commit the robberies. He said that he had not met Ms Young before 30 October 2000, when she was with his brother. He did not own any of the items taken from the car and he did not know to whom they belonged. He gave no evidence which could implicate James.

31 James gave evidence in his own defence. He confirmed that he knew Ms Young and that she had provided the Commodore vehicle on 30 October 2000. He said that there were quite a few clothes in the vehicle and he tried some on "to have a look at them". None of the items were his. He said, however, that he and his brother "wore each others clothes all the time". He was shown the baseball cap with the word "wrong" embroidered on it and he said that, although he could not recall doing so, it was possible that that may have been an item which he tried on while in the Commodore. He denied any implication in the offences charged.

32 There is no criticism of the directions given by the trial Judge to the jury in relation to the question of the identification of James as being a participant in the Como motor vehicle theft and robbery. Nor is there any suggestion that his Honour did not properly direct the jury in relation to the available circumstantial evidence. No application was made at trial to take the case against James from the jury and indeed, if for no other reason than having regard to the evidence of Det Flatman, any such application would have been doomed to fail. There was evidence to go to the jury, but that is not the question before us. We are concerned with the question whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. I do not think it was.

33 In the first place, there was insufficient evidence to demonstrate that the offenders who committed the Como robbery were those who, 8 days earlier, committed the robbery in Carlisle and there is no doubt that the case against James and Matthew in relation to that robbery was much stronger. To my mind, when one looks at the evidence against James solely in respect of the Como robbery, and therefore also directed to proof of his implication in the theft of the yellow Telstar, the evidence was very thin.

34 It was not, I think, open to the jury to rely upon the identification made by Flatman. That evidence was not led by the Crown and when one examines the photograph put to the witness it is frankly impossible to

(Page 12)

make any identification. Neither does it appear that Det Flatman made his identification from that photograph. His opinion was based upon his viewing of the surveillance videotape and that material was not before the jury. It would be dangerous in the extreme to suggest that the jury might have been satisfied of guilt beyond reasonable doubt by relying upon the evidence of identification given by Mr Flatman.

35 So far as the circumstantial evidence was concerned, there was strong evidence to show that the applicant had worn the embroidered baseball cap and the fawn Jag Jeans tee shirt, but the applicant gave an explanation as to how that might have happened and, if that was rejected by the jury, as presumably it must have been, they were left with the video surveillance photographs as the only evidence available to make the link between the wearing of those items and the commission of the robbery and the theft, at least by its use, of the stolen motor vehicle. As to that, in my opinion, it is again not reasonably open to draw a reliable conclusion that the items in question were worn by one of the robbers.

36 I would grant leave to appeal against the convictions in question, allow the appeal and quash those convictions. It follows in the circumstances that I would not order a retrial.

CCA 72 of 2000 - James' appeal against sentence

37 This application was not heard. Following the argument in respect of the application for leave to appeal against conviction, the Court decided that the application for leave to appeal against sentence should be adjourned sine die pending the determination of the appeal against conviction. It did so because there was no complaint about the individual sentences, but the complaint was about the total term imposed for all the offences of which the applicant was convicted, which term was alleged to be manifestly excessive, and further, questions of parity between James and Matthew were raised by the ground of appeal.

38 These matters evaporate with the quashing of the convictions for the Como robbery and consequently for the theft of the motor vehicle involved. In the result, although the applicant would be obliged to serve the balance of a previous parole term which would not expire until December 2002, the backdating of the sentences which survive to 25 June 2002 means that for the theft of the motor vehicle involved and for the armed robbery in company committed in Carlisle, the applicant is sentenced to 2 years and 6 years imprisonment respectively, the sentences

(Page 13)

to be served concurrently. In my opinion, the total term might be regarded as lenient.

39 In the circumstances, I would refuse the application for leave to appeal without further argument, but before doing so I would invite the applicant's concurrence in that disposition and I would consider the arguments advanced if it was desired to pursue this application for leave to appeal against sentence to a full hearing.

CCA 73 of 2002 - Matthew's appeal against sentence

40 At the outset in these reasons I set out the sentences imposed and the way in which they were structured, the intention being to achieve an aggregate term of 11 years imprisonment. As argued, the application for leave proceeded upon grounds expressed as follows:

"The learned sentencing Judge erred in that:

(i) the sentence of eleven years imprisonment was manifestly excessive having regard to the age and antecedents of the applicant;

(ii) the sentences of 6 years imprisonment for count 2 and five years imprisonment for count 7 were imposed on both the applicant and the co-offender without due weight being given to the applicant's more favourable antecedents which should have been reflected in a lower sentence for those two offences;

(iii) in seeking to balance out the sentences imposed on the applicant and the co-offender, the sentence imposed on the applicant was effectively increased."

41 The first ground raises the totality principle, the second ground is concerned with parity of treatment as between Matthew and James, an issue which can now only apply to the motor vehicle theft and armed robbery in company of the Carlisle Handymart. I am not sure that I understand, even after argument, what is added by ground 3, but none of the grounds appear to challenge the length of the individual terms imposed.

42 Before it is possible to address the merits of the application it is necessary to understand the legal effect of the sentencing process. His Honour's intentions were clear enough. He always intended that the

(Page 14)

2 year terms imposed for the motor vehicle thefts committed on 21 and 29 October 2000 were to be served concurrently with all other terms. That is shown by the fact that, after his Honour announced the individual sentences, he said that if cumulative terms were imposed for the three armed robberies the aggregate would be 18 years imprisonment, the sum of the sentences of 6 years imprisonment imposed for the Carlisle robbery, 7 years imprisonment imposed for the Albany robbery and 5 years imprisonment imposed for the Como robbery.

43 His Honour then turned to consideration of the totality principle and, expressly having regard to that principle, made orders for partial accumulation. His Honour said that 4 years of the sentence of 7 years imprisonment imposed for the Albany robbery should be served concurrently with the sentences thus far imposed, an aggregate term of 6 years, and 3 years of the 7-year term were to be served cumulatively. In my opinion, bearing in mind that they were all parole terms, an order made in that form complies with the Sentencing Act1995 (WA), s 88(3)(d)(iv). The power of the sentencing court to order partial accumulation is provided by s 88(3). The manner in which the power is to be exercised is dealt with in s 88(4) as follows:

"If under subsection (3)(d) a court orders that a term is to be served partly cumulatively upon another fixed term, the court must specify the period of the other fixed term that is to be served before the partly cumulative term is to begin; but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term."

44 To say that 4 years of the 7-year term was to be served concurrently with the previously imposed 6-year term is tantamount to saying that the service of the 7-year term is to commence after serving 2 years of the 6-year term. By s 94(1), the calculation of the time when an offender is eligible to be released on parole and the parole period is to be made having regard to the aggregate of the terms in question, if they are to be aggregated. Section 94(2) deals with aggregation when parole terms are imposed at the same time. The effect of the section is that the aggregation will be made where the terms are imposed cumulatively. There will only be partial aggregation where they are to be served partly cumulatively and there will be no aggregation where they are to be served concurrently.

45 By s 94(5), the calculation of eligibility for parole and the parole period is to be done by treating as one term the aggregate of a number of

(Page 15)

terms. Section 93(1) provides the appropriate calculation of eligibility for parole. Under that provision, if the term is 6 years or less, eligibility for parole arrives when the offender has served one-third of the term. If the term is more than 6 years, eligibility for parole arrives when the offender has served 2 years less than two-thirds of the term. The scheme of the Sentencing Act and the Sentence Administration Act, read together, is that the parole period may never be longer than 2 years. Generally as to the above review of the provisions of the Sentencing Act, see Kirby v The Queen [2002] WASCA 164.

46 Returning to this case and to the point in the sentencing process reached thus far, the aggregate of the terms imposed for the motor vehicle theft and the Carlisle robbery committed on 21 October 2000 was 6 years because they were to be served concurrently. Eligibility for parole would arrive after 2 years. By s 88(4), therefore, the 7-year sentence could not be ordered by way of partial accumulation to commence longer than 2 years after the commencement of the other two terms (remembering that that service was to commence on 30 October 2000). No problem arises thus far and the result of the application of s 94(2) to the three sentences imposed, having regard to the partial accumulation, is an aggregate term of 9 years.

47 Again, if the Court was considering further partial accumulation of the sentence of 5 years imprisonment imposed for the robbery committed in Como on 29 October 2000 then, as they are all parole terms, it was necessary to identify the point in the service of the 9-year term when eligibility for parole would arrive. By s 93(1)(b), that was 2 years less than two-thirds of the term, ie: after service of 4 years of the aggregate term comprising all the sentences imposed thus far.

48 Again his Honour dealt with the case by way of an order of further partial accumulation by saying that so far as the 5-year sentence was concerned, 2 years of that sentence was to be served cumulatively upon the other sentences and the remaining 3 years was to be served concurrently with them, giving, as his Honour proposed, a total term of 11 years rather than the 18-year term previously mentioned. The problem, however, is that to make merely 3 years of the 5-year term concurrent with the previously imposed term meant that the service of that term would not commence until after 6 years of the previous aggregate term had been served. Having regard to the terms of s 88(4), that was 2 years longer than the maximum period of the previously imposed term which could be ordered to be served before this further partly cumulative term was to begin.

(Page 16)

49 If the procedure adopted by his Honour was to be employed, the maximum partial accumulation which could be ordered would be to have the 5-year term commence to be served after 4 years of the previous term had been served. That would have the odd result that it would not extend the aggregate term beyond the period of 9 years. By s 93(1)(b) and s 94(5), the further odd result would be that coincident with the commencement of the service of that term, Matthew would become eligible for parole.

50 However, in my opinion, it is not possible to so construe the sentencing process as to have that result. The order of the sentencing Judge was clear in its terms. Section 88(4) provides that the period of the other term to be served before the partly cumulative term is to begin "must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term." There has, in my opinion, because the proviso to s88(4) has not been complied with, been no effective order for the cumulative service of the 5-year term, to any extent.

51 By s 88(2), when an offender is sentenced to a number of fixed terms of imprisonment at the one time, those terms are to be served concurrently unless the Court makes an order under subsection (3). I take that to be a reference to an order which has effect, in this case, to achieve partly cumulative service. The result, in my opinion, is that the sentence of 5 years imprisonment was to be served concurrently as from 30 October 2000. The aggregate term of imprisonment achieved in relation to all the sentences imposed was the term of 9 years rather than the term of 11 years which his Honour had in mind.

52 The effect that the sentencing Judge was endeavouring to achieve could be achieved by quashing the sentence of 5 years imprisonment and imposing instead a sentence of 7 years imprisonment, the service of which would be ordered to commence after serving 4 years of the other sentences imposed. This Court would have that power even on an application for leave to appeal by a convicted person, if that appeal was allowed. But the exercise of that power is limited in s 689(3) by the circumstance that the Court of Criminal Appeal is only to allow an appeal against sentence, "if they think that a different sentence should have been passed … ."

53 The sentencing Judge took care in this case to make a comparative evaluation of the seriousness of the three robbery offences before him. As to the 5-year term for the Como robbery, his Honour said:

(Page 17)

"In this case, however, although the circumstances were terrifying for the shop assistant, the offence did not yield a very significant sum of money. In my view, an appropriate sentence for the offence of armed robbery in this instance would be 5 years with 2 years for the stealing of a Ford Telstar motor vehicle, subject to the application of the totality principle."

54 For myself, having regard to the facts of the case in question, I can see no justification to take the view that the sentence of 5 years imprisonment imposed for this offence was not an appropriate exercise of sentencing discretion in Matthew's case.

55 It is against that background that the arguments advanced in the grounds, upon which counsel expanded in his submissions, must be considered.

56 The parity argument survives in respect of the respective involvement of Matthew and James in the Carlisle robbery in the context of their respective personal circumstances. Both were convicted of the robbery in circumstances of aggravation in that they were in company with each other and armed with a machete.

57 Both participated in the theft of the motor vehicle so that it could be used in the commission of the robbery. Both entered the shop, disguised with balaclavas. Matthew carried the machete and James a screwdriver. They stole the sum of $690, damaging the cash register which had to be replaced at a cost of about $400. The sentencing Judge referred to a victim impact statement by the owner of the business. The robbery had a devastating effect, not only personally so far as the owner was concerned, but also upon the business which the owner was forced to sell at a substantial loss because he could not continue to operate it.

58 A pre-sentence report had been obtained in relation to Matthew. He was 26 when the offences were committed and he now acknowledged his guilt. He had a criminal history, but it was relatively minor and he had not previously been imprisoned. Matthew was accepted to be remorseful. He was the oldest of three brothers, members of what was clearly, by the description of the sentencing Judge, a dysfunctional family. Having left school early, he completed an apprenticeship as a plasterer and was in regular employment in that trade. At the time of the commission of the offences, Matthew was the victim of a substantial heroin habit from which he maintained, at the time he came to be sentenced, he had now extricated himself. He was, however, willing to undertake substance abuse

(Page 18)

counselling. The sentencing Judge thought that the relatively lengthy period during which Matthew had been in custody appeared to have had a beneficial effect in relation to his rehabilitation.

59 James is a year younger than Matthew. His criminal history, however, is extensive, with previous convictions for robbery and the whole gamut of offences of dishonesty, together with drug offences and some offences of violence. His performance under parole supervision had not been marked by any great success. Indeed, having been released on parole on 31 March 2000, James failed to comply with conditions imposed by the parole order, which was suspended on 13 July 2000 and cancelled on 27 July 2000. However, as the sentencing Judge noted, James was not arrested until 30 October 2000 in the circumstances to which I have previously referred. It is to be noted that in his case, as well as in the case of Matthew, an order of parole eligibility was made on the grounds of James' youth and his need for parole supervision when ultimately released into the community. There is no doubt that James' prospects of rehabilitation were not so good as those of Matthew. Much of James' offending was related to the abuse of drugs and alcohol. He had done little with his life. Most of his adult years had been spent in custody. He did not accept his responsibility for any of the offences with which he was charged and, unless his attitude changed, his future looked bleak.

60 For present purposes, it is unnecessary to go beyond the summary of the parity principle contained in the joint judgment of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301.

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike, but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances."

61 As I have said, it was undoubtedly the case that there were relevant differences in the personal circumstances of Matthew and James. While Matthew was the elder of the two, he had more favourable personal circumstances and his history of past offending was much less serious than that of James. But sentencing for the offence of armed robbery in company is primarily concerned to provide a proportionate response by the court to the seriousness of the offence itself, having regard to the circumstances in which it was committed. Less weight in sentencing is

(Page 19)

given to favourable personal circumstances. In the commission of the offence there was nothing to distinguish between the involvement of Matthew and James.

62 It was not only a serious offence of itself, but it was an armed robbery of a type which is sadly all too prevalent in our community. The victim was the owner and shopkeeper of a small business, a handymart and post office agency. So far as the owner was concerned, the commission of the offence effectively destroyed his business. To my mind, in all the circumstances, it would indeed have been quite wrong to endeavour to distinguish between the two offenders by reference to their personal circumstances. Their equal culpability in the commission of this serious offence of robbery and the associated motor vehicle theft justified their equal treatment.

63 I turn then to a consideration of all the offences for which Matthew was sentenced and the question whether the aggregate term of 9 years imprisonment, which was in fact imposed, infringes the totality principle. To my mind, it does not and would not have done so had the total term been the period of 11 years imprisonment which it was the intention of the sentencing Judge to impose.

64 I have mentioned the facts of the Carlisle and Como armed robberies in company. The remaining offence, for which Matthew was sentenced to 7 years imprisonment, was an offence of armed robbery in company committed in Albany at the Spencer Park Newsagency and Gift Shop, involving also the Spencer Park Post Office agency. The total amount taken was about $1400. The owner of the store, a female employee and the owner's 8-year-old daughter were present in the newsagency. Again, the two offenders entered the shop, Matthew being armed with a machete and the accomplice with a screwdriver. They demanded that the cash register be opened. The offenders' behaviour caused great fear to all present, particularly the child. Again, it was the case that since the robbery, the newsagency had been sold. It is apparent the sentencing Judge thought this to be the most serious of the three offences of robbery, "having regard to the high degree of aggression displayed in carrying out the offence."

(Page 20)

65 There can be no argument that the individual sentences are of an appropriate length, proportionate to the gravity of the offending in each case. There was little, apart from belated remorse after the event of his conviction, to mitigate punishment in Matthew's case. Each of the robbery offences merited a cumulative sentence. In my opinion, while it may be right to say that a total term of 18 years imprisonment for the three offences would offend the totality principle, as a term proportionate to the total criminality involved in their commission, the same could not be said of an aggregate term of 11 years imprisonment and it can certainly not be said of an aggregate term of 9 years imprisonment, given that each of the sentences for an individual offence of the kind was well within the range of sentencing discretion: Miles v The Queen (1997) 17 WAR 518. I would refuse this application for leave to appeal.

66 HASLUCK J: I agree with the reasons for judgment of Murray J and to the orders proposed. There is nothing I wish to add.

67 ROBERTS-SMITH J: I have had the benefit of reading the judgment of Murray J in draft, with which I agree. I would make the following further observations.

68 Surprisingly, the evidence of Detective Flatman "identifying" James and then Matthew Sweeney as the offenders, was elicited in cross-examination by James' own counsel, as were the witnesses' reasons then for so identifying them.

69 The initial answers would not have been admissible if sought to be led by the Crown, but may arguably have become admissible given Detective Flatman's elaboration of how he had come to that conclusion, although in the circumstances I express no particular view on that (see Smith v The Queen (2001) CLR 650). The questions of admissibility or exclusionary discretion do not arise because the evidence was elicited by counsel for the applicant in cross-examination. Be that as it may, the weight which can be attributed to that testimony, is in my view non-existent, for the reasons given by Murray J.

70 I further agree with his Honour, for the reasons he gives, that those convictions are unsafe and unsatisfactory. In my view it

(Page 21)

was not open to the jury on the evidence in this case, to be satisfied beyond reasonable doubt of the guilt of the accused. I would quash James' convictions for the armed robbery of the Busy Bee Delicatessen and the associated stealing of a motor vehicle in Como on 29 October 2000. As the evidence is incapable of sustaining the convictions, there should be no order for a re-trial. The appropriate order would be to substitute judgment of acquittal.

71 As to James' appeal against sentence, I again agree with what has been said by Murray J.

CCA 73 of 2002 - Matthew Sweeney's application for leave to appeal against sentence

72 With respect, I agree with the observation of Murray J that to say 4 years of the 7 year term for the Spencer Park armed robbery was to be served concurrently with the 6 year term for the robbery of the Carlisle Post Office was tantamount to saying that 7 year term is to commence after serving 2 years of the 6 year term, is correct. But for a sentencing Judge to express it that way is confusing to say the least. The appropriate course is to follow the terms of s 88(4) of the Sentencing Act 1995 (WA), which requires the Court to specify the period of the other term that is to be served before the partly cumulative term is to begin. If it is done in that way, it will be immediately apparent whether or not the date of commencement of the partly cumulative term falls within or outside the earliest date upon which the offender could be released (whether on parole or not) in relation to the other fixed term.

73 There was another difficulty with the way in which the learned sentencing Judge expressed his orders in this case. His Honour said in relation to the 5 year sentence for the Busy Bee armed robbery, that 3 years was to be concurrent and 2 years cumulative "with the other terms". Section 88 is concerned with cumulation of fixed terms (ie not that part of a fixed term which is to be served before eligibility for parole). It requires a sentencing court to specify the period of a particular term that is to be served before the partly cumulative term is to begin. That is, the order for cumulation or partial cumulation must be made upon a specific sentence for a specific offence - not some aggregate of a number of fixed terms. To determine the effect of an order as expressed by the learned sentencing Judge in respect of the 5 year term for the Busy Bee armed robbery here, it becomes necessary to analyse the effect of all the orders made, so as to determine which particular sentence is operative at the latest date and then to add the partly cumulative term to that. More

(Page 22)

importantly though, as I have said, s 88 requires a partly cumulative term to be attached to a clearly specified particular sentence for a particular offence.

74 These observations made, I agree with the reasons and conclusions of Murray J.