The State of Western Australia v Barton
[2008] WASCA 152
•24 JULY 2008
THE STATE OF WESTERN AUSTRALIA -v- BARTON [2008] WASCA 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 152 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:167/2007 | 16 JUNE 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 24/07/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 2 years' imprisonment increased to 3 years 6 months | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA PETER GEORGE BARTON |
Catchwords: | Criminal law Sentence Prosecution appeal Principles to be applied Two counts of aggravated armed robbery One count of attempted aggravated armed robbery Sentences of 2 years' imprisonment and 18 months' imprisonment respectively Whether individual sentences manifestly inadequate Whether aggregate sentence of 2 years' imprisonment manifestly inadequate Aggregate sentence increased |
Legislation: | Criminal Appeals Act 2004 (WA), s 41(4)(b) |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) HCA 29; (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 The State of Western Australia v Collier [2007] WASCA 250 The State of Western Australia v Richards [2008] WASCA 134 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- BARTON [2008] WASCA 152 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
PETER GEORGE BARTON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 164 of 2007
Catchwords:
Criminal law - Sentence - Prosecution appeal - Principles to be applied - Two counts of aggravated armed robbery - One count of attempted aggravated armed robbery - Sentences of 2 years' imprisonment and 18 months' imprisonment respectively - Whether individual sentences manifestly inadequate - Whether
(Page 2)
aggregate sentence of 2 years' imprisonment manifestly inadequate - Aggregate sentence increased
Legislation:
Criminal Appeals Act 2004 (WA), s 41(4)(b)
Result:
Appeal allowed
Sentence of 2 years' imprisonment increased to 3 years 6 months
Category: B
Representation:
Counsel:
Appellant : Mr S E Stone
Respondent : Mr I A Morison
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) HCA 29; (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Richards [2008] WASCA 134
(Page 3)
1 STEYTLER P: I agree with Miller JA.
2 McLURE JA: I agree with Miller JA.
3 MILLER JA: The respondent was charged on indictment with two counts of aggravated armed robbery and one count of attempted aggravated armed robbery. The circumstances of aggravation in relation to each count were that the respondent was armed with an offensive weapon, namely a crowbar, and that on each occasion he was in company with others.
4 The respondent pleaded guilty to all counts in the District Court at Bunbury on 10 December 2007 and was sentenced by McKechnie J that day to terms of imprisonment of 2 years in respect of each of the counts of aggravated armed robbery and 18 months in respect of the count of attempted aggravated armed robbery. The sentences on all counts were made concurrent and the respondent was made eligible for parole. The sentence dated from 9 October 2007.
Appeal
5 The appellant was granted leave on 5 February 2008 to appeal the sentences imposed by the sentencing judge. The grounds are as follows:
1. The learned sentencing Judge erred in law in imposing a sentence that was manifestly inadequate, in that the individual sentences and the head sentence:
(a) failed to reflect adequately the serious nature of the offences, in particular having regard to:
(i) The degree of violence used;
(ii) The nature of the offensive weapon used;
(iii) The terror to which the victims were subjected by the actions of the Respondent and the party he was with;
(iv) The sustained nature of the offending; and
(v) The fact that the offences were committed on victims who were vulnerable
(b) failed to reflect adequately the need for both personal and general deterrence.
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- 2. The learned sentencing Judge erred in law in giving undue weight to factors personal to the Respondent, having regard to the seriousness of the offences and the need to give paramount consideration to general deterrence in cases of armed robbery in company.
3. The learned sentencing Judge erred in law in failing to accumulate or partly accumulate any of the sentences.
4. The learned sentencing Judge erred in law in failing to give adequate reasons for -
(a) arriving at the individual sentences imposed; and
(b) making all sentences concurrent.
6 The statement of facts presented by the prosecutor to the sentencing judge on 10 December 2007 revealed that each of the three offences was committed on 9 October 2007. The first offence was committed at about 5.30 pm on that afternoon when the complainant and two of his friends were at the Centrepoint Shopping Centre in Stirling Street, Bunbury. There one of the complainant's friends had withdrawn money from an ATM. The complainant and his friends were approached by three males who demanded that they hand over their money. The person who had withdrawn the money had a bicycle and he rode away without giving up any of his money. The complainant and his remaining friend went to walk away but the respondent took a crowbar from his backpack and raised it in the air in a manner threatening to the complainant. He demanded that the complainant and his friend hand over their telephones and give up their wallets. The complainant said that they did not have anything and pleaded for the respondent to stop. The complainant's friend also pleaded with the respondent to stop.
7 A co-offender took out a knife and threatened the complainant's friend. Another co-offender also produced a knife and threatened the complainant and demanded money from him. The respondent then pushed the complainant into a wall behind some bushes. He ripped a silver metal necklace from the complainant's neck, put his hand into the complainant's pocket and removed a number of plastic cigarette lighters. He put all items in his backpack and walked away with his co-offenders. The total value of the property stolen was approximately $60.
8 The second offence occurred later on the same day. The complainant in relation to this offence was at the top level of the Centrepoint car park
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- in Stirling Street, Bunbury. He heard somebody shout to him to give up his wallet and he looked over the car park wall. He observed the respondent standing below on the ground floor. The respondent called out to him 'give me your wallet' and whilst at first the complainant thought the respondent was joking he then saw the respondent take a small crowbar, which he estimated at about 15 inches in length, from his backpack. The respondent then began to scale the stairs towards the complainant. The complainant ran to his vehicle which he unlocked and got into. It was his intention to get away from the area to avoid a confrontation with the respondent. The respondent ran to the complainant's vehicle and struck the left front window with the crowbar smashing it. The respondent demanded that the complainant hand over his wallet but the complainant was able to drive away from the car park.
9 The third offence occurred shortly thereafter. The respondent walked to the Charles Street car park where the complainant in the third offence was seated in her Ford Laser sedan. The respondent confronted the complainant and demanded that she give him her mobile telephone and her purse. He had the crowbar in his right hand. He swung it at the window of the right hand door and smashed it. The complainant was showered with broken glass. She tried to protect herself and the respondent then reached into the car, grabbed her handbag and ran from the area. At the same time a co-offender stood by. He waved a knife at a member of the public who approached. Police located the respondent a short distance from the incident. He was bleeding from a laceration to his hand. Property stolen from the first and third complainants was found in his backpack.
10 The respondent was taken to Bunbury Hospital for treatment of his injury. He was later interviewed and in a video record of interview made a number of admissions. He said that he consumed amphetamines and drunk cask wine on the day of the offences and could not recall all that had happened.
Sentencing
11 Having heard submissions on behalf of the respondent the sentencing judge dealt with the matter immediately. He said of the offences committed by the respondent:
Sometimes these offences are called muggings but that conceals what they really are and what they were in your case, which is serious criminal conduct.
(Page 6)
- Members of the Bunbury community are entitled to go about their business within having thugs such as you attack them in the street, and in two cases steal their property and in a third case probably would have done but for the fact that the person got away. Nevertheless you damaged their car and damaged the next car and stole the handbag. As I say, the members of the community in Bunbury are entitled to live in safety.
12 The sentencing judge then turned to matters personal to the respondent. He noted that he was 25 years of age, single and unemployed. He had pleaded guilty at an early opportunity. He had not previously been sentenced to imprisonment but he had offended 'more or less continuously' since he had become an adult. The offences of themselves were not thought to be particularly serious, but on several occasions the respondent had been given community service sentences and had failed to comply with any of them.
13 The respondent's record shows that prior to 10 December 2007 he had been convicted of offences of attempted aggravated burglary, trespass, possession of a housebreaking implement, breach of a violence restraining orders (three offences), burglary, committing offences in a place (four offences), disorderly conduct, resisting arrest, and stealing.
14 The sentencing judge considered that the respondent had a significant and entrenched drug problem and concluded that this problem had caused his offending. He described the offences as being 'the sort of typical amphetamine-fuelled offences that one sees all too often'.
15 The sentencing judge noted the pre-sentence and psychological reports without detailing their contents. His Honour said he found them helpful.
Pre-sentence report
16 The summary in the pre-sentence report described the respondent as a person whose offending had escalated during the preceding seven years. The writer noted that response to previous community supervision had been poor and said that the benefit of further community supervision was questionable. The conclusion in the report was summarised as indicating that the respondent appeared to have some form of personality disorder which required further psychiatric assessment. Drug and alcohol issues required treatment.
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Psychological report
17 The psychological report 'recommendations' described the respondent as experiencing a significant level of some form of personality disorder, most likely narcissistic and/or antisocial. The author said:
Personality disorders are pervasive chronic psychological conditions that are difficult to treat and manage. Whilst such individuals may attend a therapeutic environment when directed to do so, they are likely to become defensive, with much difficulty engaging with a therapist. It is suggested that this would be the case for [the respondent]. He is unlikely to accept the possibility of an underlying personality disturbance, and instead, maintain his belief connecting his aggression with his use of cocaine. It is suggested that because of such a rigid manner of thinking, [the respondent] remains at high risk of continued use of illicit substances and as such use progresses, high risk of other criminal behaviour.
18 The author of the report recommended that whatever sentence the respondent received he should be assessed by a psychiatrist to determine the likelihood or presence of a personality disorder and the possibility of appropriate medication.
19 The sentencing judge concluded his remarks by saying:
[I]n all cases the dominant consideration is the safety and protection of the community. A part of that is the need for general and specific deterrence. In your case your past response to community supervision tells against you. I have little confidence that you can comply. I do take into account however, as I have said, your plea of guilty, your background and the fact that that you have not previously been to prison.
Principles applicable to prosecution appeals
20 The principles applicable to prosecution appeals have been stated many times. In Dinsdale v The Queen (2000) 202 CLR 321, 340 - 341, Kirby J expressed those principles in the following terms:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' … such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced … The consequence is
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- that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences … This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.
21 In this court they were recently re-stated by Steytler P in The State of Western Australia v Collier [2007] WASCA 250 [18] - [23]. These principles are applicable to the present appeal, because the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which has done away with the 'double jeopardy' principle and its consequence that when re-sentencing an offender on a prosecution appeal a sentence will ordinarily be less than the sentence which should have been imposed at first instance is not retrospective in operation. The section applies only to cases in which the sentence appealed dates after 3 January 2008: see The State of Western Australia v Richards [2008] WASCA 134.
Grounds of appeal
22 The first ground contends that the sentencing judge imposed manifestly inadequate individual sentences and a manifestly inadequate head sentence. It is complained that the sentences failed to adequately reflect the serious nature of the offences and failed to reflect adequately the need for personal and general deterrence. The second ground contends that the sentencing judge gave undue weight to matters personal to the respondent. The third ground contends that the sentencing judge erred in law in failing to accumulate or party accumulate any of the sentences and the fourth ground contends that the sentencing judge erred in failing to give adequate reasons for arriving at the individual sentences imposed and in making all sentences concurrent. These grounds can be dealt with together.
23 In my opinion, the sentencing judge did fail to recognise the seriousness of the respondent's criminal conduct. They were in fact serious aggravated armed robberies and an aggravated attempted armed robbery. In each case, the respondent was armed with a crowbar and he was in company with two others.
24 The sentencing judge recognised that members of the community in Bunbury were entitled to live in safety, but failed to reflect that fact in the ultimate sentence that was imposed.
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25 There is no doubt that the individual offences of 2 years' imprisonment on each of counts 1 and 3 and 18 months' imprisonment on count 2 were at the low end of the scale. For the offence of aggravated armed robbery in circumstances such as occurred on counts 1 and 3 the range of sentences applicable (after application of the transitional provisions) was 4 to 6 years' imprisonment: Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ). The appellant was entitled to a discount for his early plea of guilty, and matters personal to him undoubtedly led to the sentences imposed by the sentencing judge on each count being low.
26 In my opinion, the individual sentences were not so low as to demonstrate manifest inadequacy. Merely because I would have exercised my discretion in a manner different from the manner in which the sentencing judge exercised his discretion it is an inadequate basis upon which to interfere: Lowndes v The Queen (1999) HCA 29; (1999) 195 CLR 665 [15].
27 In my opinion, the real error which has been demonstrated in this case is that the sentencing judge failed to recognise that a degree of cumulation was necessary to reflect the seriousness of the offences committed by the respondent. Although the three offences were all committed on the one day, they were a succession of serious offences committed against three separate individuals, two of whom were at the Centrepoint Shopping Centre in Bunbury and the third at the Charles Street car park in Bunbury. These were people going about their lawful business who (as the sentencing judge recognised) were entitled to do so in safety. The multiplicity of offences committed by the respondent on the day in question necessitated in my view a degree of cumulation of sentence.
28 The sentencing judge failed to explain why he thought it appropriate to order that the three sentences be served concurrently. In my opinion there was no justification for such an order for concurrency in relation to all counts. The offences were not such as to fall within the 'one transaction rule' for the reasons given by McLure JA in Walgar v The State of Western Australia [2007] WASCA 241. At [9], her Honour re-stated the relevant principles as follows:
The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24;
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- (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent.
29 In the present case, there was no single invasion of the same legally protected interest, but three separate and distinct offences against different interests.
30 Having regard to the principles applicable to prosecution appeals against sentence, I consider that an appropriate aggregate sentence would result from ordering that the sentences imposed on counts 1 and 2 should be served cumulatively, but the sentence on count 3 should be served concurrently with those sentences. The resultant aggregate sentence would be one of 3 years 6 months' imprisonment, which, in my view, is the appropriate sentence for the respondent to serve.
31 I would therefore allow the appeal, quash the order that all sentences be served concurrently and substitute an order that the sentences imposed in relation to counts 1 and 2 should be served cumulatively so as to make an aggregate sentence of 3 years 6 months imprisonment. The sentence imposed on count 3 should be served concurrently with that imposed on count 1. The order for eligibility for parole will remain, as will the order that the sentences date from 9 October 2007. The aggregate sentence reflects the established principles relating to the prosecution appeals.
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