The State of Western Australia v Boundry
[2013] WASCA 46
•22 FEBRUARY 2013
THE STATE OF WESTERN AUSTRALIA -v- BOUNDRY [2013] WASCA 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 46 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:203/2012 | 27 NOVEMBER 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 22/02/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GORDON JOHN BOUNDRY |
Catchwords: | Criminal law State appeal against sentence Respondent and co-offender convicted on one count of aggravated armed robbery Victim severely injured but made a full recovery Injuries inflicted by the co-offender Young offender Plea of guilty at the first available opportunity Respondent not previously imprisoned or detained Sentencing judge imposed a suspended term of imprisonment Whether sentence manifestly inadequate |
Legislation: | Criminal Code (WA), s 392(c) Sentencing Act 1995 (WA), s 6(2), s 6(4), s 39(2), s 39(3) Sentencing Legislation Amendment and Repeal Act 2003 (WA) Young Offenders Act 1994 (WA), s 33(2) |
Case References: | Ainsworth v D (a child) (1992) 7 WAR 102 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Drury v The State of Western Australia [2010] WASCA 220 Fogg v The State of Western Australia [2011] WASCA 11 Lovatt v The State of Western Australia [2002] WASCA 265 Miles v The Queen (1997) 17 WAR 518 Mobilia v The Queen [2002] WASCA 130 Nannup v The State of Western Australia [2011] WASCA 257 Satonick v The State of Western Australia [2008] WASCA 145 Skipworth v The State of Western Australia [2008] WASCA 64 The State of Western Australia v Bropho [2013] WASCA 44 The State of Western Australia v Drew [2012] WASCA 86 The State of Western Australia v Wells [2005] WASCA 23 Ugle v The State of Western Australia [2012] WASCA 104 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- BOUNDRY [2013] WASCA 46 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
GORDON JOHN BOUNDRY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File No : INS 99 of 2012
Catchwords:
Criminal law - State appeal against sentence - Respondent and co-offender convicted on one count of aggravated armed robbery - Victim severely injured but made a full recovery - Injuries inflicted by the co-offender - Young offender - Plea of guilty at the first available opportunity - Respondent not previously
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imprisoned or detained - Sentencing judge imposed a suspended term of imprisonment - Whether sentence manifestly inadequate
Legislation:
Criminal Code (WA), s 392(c)
Sentencing Act 1995 (WA), s 6(2), s 6(4), s 39(2), s 39(3)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Young Offenders Act 1994 (WA), s 33(2)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Mr W B Harris
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : William Berkley Harris
Case(s) referred to in judgment(s):
Ainsworth v D (a child) (1992) 7 WAR 102
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Drury v The State of Western Australia [2010] WASCA 220
Fogg v The State of Western Australia [2011] WASCA 11
Lovatt v The State of Western Australia [2002] WASCA 265
Miles v The Queen (1997) 17 WAR 518
Mobilia v The Queen [2002] WASCA 130
Nannup v The State of Western Australia [2011] WASCA 257
Satonick v The State of Western Australia [2008] WASCA 145
Skipworth v The State of Western Australia [2008] WASCA 64
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The State of Western Australia v Bropho [2013] WASCA 44
The State of Western Australia v Drew [2012] WASCA 86
The State of Western Australia v Wells [2005] WASCA 23
Ugle v The State of Western Australia [2012] WASCA 104
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is a State appeal against sentence.
3 The respondent and his co-offender, Leon Kenneth Bropho, pleaded guilty, at the first available opportunity, to one count of aggravated armed robbery, contrary to s 392(c) of the Criminal Code (WA) (the Code).
4 On 28 August 2012, EM Heenan J sentenced the respondent to 2 years' imprisonment, conditionally suspended for 2 years. The co-offender, Mr Bropho, was sentenced to 3 years' imprisonment, conditionally suspended for 2 years.
5 A third co-offender, a juvenile, was only charged with stealing in connection with his role in the offending. As at 28 August 2012, the juvenile had not been sentenced.
The State's appeal against Mr Bropho's sentence
6 The State appealed against Mr Bropho's sentence.
7 This court allowed the appeal and resentenced Mr Bropho to a term of 3 years immediate imprisonment with eligibility for parole. See The State of Western Australia v Bropho [2013] WASCA 44.
The facts and circumstances of the offending
8 On the afternoon of 5 May 2012, the respondent and his co-offenders agreed to steal alcohol from a liquor store.
9 Later that afternoon, at about 4.00 pm, they entered the Altone Liquor Store in Beechboro and selected bottles of liquor from the shelves.
10 The juvenile ran to a side door with a bottle and fled without paying.
11 The respondent and Mr Bropho attempted to leave with a bottle through the main entrance without paying.
12 Gary Wilson, who was the manager of the store, approached the respondent and grabbed him as he attempted to leave. Mr Wilson told the respondent to stop. The respondent struggled with Mr Wilson. They moved from the interior of the store to the exterior. Mr Bropho was about 2 m from Mr Wilson while Mr Wilson sought to detain the respondent by holding him. During the struggle the respondent broke Mr Wilson's grip and struck him in the face with a 1.125 litre bottle of whisky. The blow
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- was not forceful. The bottle fell to the ground without breaking. Mr Bropho picked up the bottle and used it as a weapon by throwing it forcefully at Mr Wilson from a distance of about 2 m. The bottle struck Mr Wilson's head. The bottle broke upon contact with his head and he fell unconscious to the ground.
13 The respondent and Mr Bropho fled.
14 Most of the interaction between Mr Wilson, the respondent and Mr Bropho was captured on closed circuit television. I have watched the footage. It does not clearly depict Mr Bropho's action in picking up the bottle and throwing it forcefully at Mr Wilson. It does, however, plainly show the respondent's earlier action in striking Mr Wilson with the bottle.
15 Mr Wilson was taken by ambulance to the Swan Districts Hospital. He had a depressed fracture of his skull and blood clots on his brain. He received sutures to a 3 inch cut across the top of his head. Mr Wilson was transferred to Royal Perth Hospital for further treatment. He was not discharged from hospital until 16 May 2012, being 11 days after the robbery. He then spent two weeks in bed at home. He had six weeks sick leave from work. Fortunately, Mr Wilson has made a complete recovery from his injuries.
16 The respondent was arrested on 8 May 2012. He participated in a video-recorded interview with the police and made full admissions as to his involvement in the offence. The respondent was in custody on remand between 8 May 2012 and 28 August 2012, when he was sentenced.
The sentencing judge's sentencing remarks
17 The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
18 After referring to the general sentencing principles embodied in the Sentencing Act 1995 (WA), his Honour said that the offence committed by the respondent was 'of such severity that only a sentence of imprisonment can be justified' [14]. He added that 'the protection of the community requires it because of the opportunistic effects of stealing leading to violence and injury to innocent shopkeepers or managers' [14].
19 The sentencing judge said that a factor which he considered 'to be very prominent' was the respondent's youth [16]. The respondent was born on 8 July 1991. He was 20 at the time of the offending and was 21 when sentenced.
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20 The sentencing judge was impressed with the attitude of Mr Wilson towards the offenders:
Nevertheless, this is a situation which raises difficult issues for sentencing mostly because of the initial triviality of the offence which was planned which escalated in an unintended way from the stealing to a robbery. I am much impressed by the tolerance of the store owner, Mr Wilson, who as I have already said, has met in a mediation with these two young men and has made it plain to them how foolish they were in assaulting him. They seem to have benefited from that experience [21].
21 His Honour said that he 'would begin with a head sentence of 3 years' imprisonment for [the respondent], which because of his plea of guilty and youth [his Honour] would reduce to 2 years' imprisonment' [22].
22 The sentencing judge decided that the sentence of imprisonment should be suspended. He said that 'after much deliberation, [he had] come to the conclusion that the [sentence] should be suspended essentially because of the youth of [the respondent] and realising that any breach of the terms of the suspended imprisonment will render [the respondent] susceptible to serving the 2-year [term] … which I have decided upon' [23].
23 Finally, his Honour told the respondent 'in parting' that he had 'avoided [a long period of immediate imprisonment] solely because of [his] youth' [30].
The ground of appeal
24 The State's sole ground of appeal is that, by ordering that the term of 2 years' imprisonment be conditionally suspended, the sentencing judge imposed a sentence that was manifestly inadequate.
25 On 14 October 2012, Mazza JA granted leave to appeal.
The merits of the appeal
26 The maximum penalty for aggravated armed robbery under s 392(c) of the Code is life imprisonment.
27 The range of sentences commonly imposed for a single offence of armed robbery is 4 to 6 years' imprisonment. This range, which is expressed in terms of the transitional provisions in force under the Sentencing Legislation Amendment and Repeal Act 2003 (WA), does not take into account mitigating factors. See Miles v The Queen (1997) 17 WAR 518, 521 (Malcolm CJ, Pidgeon J agreeing); The State of Western
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- Australia v Wells [2005] WASCA 23 [4] - [5] (Wheeler JA, Steytler P & Roberts-Smith JA agreeing); Drury v The State of Western Australia [2010] WASCA 220 [22] (Mazza J, McLure P agreeing); Nannup v The State of Western Australia [2011] WASCA 257 [72] (Buss JA, McLure P & Mazza J agreeing); The State of Western Australia v Drew [2012] WASCA 86 [41] (Buss JA, McLure P & Newnes JA agreeing). Also, the range of 4 to 6 years' imprisonment does not take into account aggravating factors. As Malcolm CJ noted in Miles, significant weight is ordinarily given to the requirements of personal and general deterrence in cases of armed robbery (521). See also Wells [5].
28 By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
29 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The court must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
30 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
31 Ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for the offence of armed robbery. Cases where the offence of armed robbery has not attracted a term of immediate imprisonment are, as a matter of fact, exceptional. It is useful to examine three cases in which the Court of Criminal Appeal or this court
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- imposed on appeal a suspended term of imprisonment for armed robbery. The cases are Mobilia v The Queen [2002] WASCA 130, Lovatt v The State of Western Australia [2002] WASCA 265 and Satonick v The State of Western Australia [2008] WASCA 145.
32 In Mobilia, the appellant pleaded guilty on the fast-track system to one count of armed robbery. The primary judge sentenced him to 4 years' immediate imprisonment. The appellant and a friend drove to a suburban shopping centre at about 9.00 pm on the night in question. The appellant parked their vehicle in the car park near an automatic teller machine (ATM). The victim withdrew some money from the ATM and walked towards his vehicle. The appellant approached the victim, pointed a replica handgun at him, threatened him and demanded his wallet. The victim handed the appellant his wallet which contained $40 cash, some credit cards and sundry papers. The appellant ran away leaving his friend sitting in their vehicle. The appellant was apprehended soon after the commission of the offence. He was aged 24. He had been employed for an eight-year period before the offence. Although he had been a regular drug user, he had been on a methadone programme and had not used illicit drugs in the eight-month period prior to the offence. The appellant had no prior criminal record other than some traffic offences. About three weeks prior to the offence the appellant injured his back at work. He had been in considerable pain and was taking Serapax and Temazepan to enable him to sleep. Nevertheless, he had difficulty in sleeping, heightened anxiety, pain in his legs and associated symptoms. On the day of the offence the appellant and his friend had consumed a bottle of Serapax and had taken a considerable quantity of Temazepan. The majority of the Court of Criminal Appeal (Wallwork & Murray JJ) allowed the appeal and ordered that the term of 4 years' imprisonment be suspended for 2 years, back-dated to the date on which the appellant was taken into custody for the offence. Murray J said:
It was a very serious offence, involving as it did predation upon an innocent member of the community using an automatic teller machine. But it was not established to be other than an offence foolishly committed on the spur of the moment by an offender who had no need of the small sum of money obtained. The purpose for which they had originally come was so that the friend might use the automatic teller machine. The applicant made no attempt to disguise himself. Having fled the scene, having taken the money from the wallet and disposed of the wallet and replica pistol, he returned to the place where the offence had been committed after a short period of time, apparently to use the vehicle in which he and his friend had driven to that place. It appears that the applicant was not dissuaded from returning to the motor vehicle by the
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- presence in the vicinity of the victim and police officers interviewing his friend. It was certain that he would be identified as the robber, as he was [29].
33 In Lovatt, the appellant pleaded guilty on the fast-track system to one count of armed robbery. The primary judge sentenced him to 2 years 8 months' immediate imprisonment. The appellant and a co-offender committed the armed robbery at night upon a suburban service station. They drove to the service station in a motor vehicle. The appellant, who was armed with a machete, entered the store of the service station. The accomplice remained in their vehicle. The appellant displayed the machete to the service station attendant and demanded the cash in the cash register. He was given about $830. He left the service station store and escaped in the vehicle, which was driven by the accomplice. A few days later the appellant was apprehended by the police. He was cooperative and made full admissions. He told the police about the accomplice, whom he named and against whom he offered to give evidence. Both men suffered from a significant drug addiction. The Court of Criminal Appeal allowed the appeal and ordered that the sentence imposed by the primary judge be varied by directing its suspension for a period of 2 years from the date of the Court of Criminal Appeal's order. At that stage the appellant had served nearly 6 months in custody. The court noted:
(a) The appellant was aged 22 at the time of the offending.
(b) He committed the offence for 'very little personal benefit' and to assist his co-offender [12].
(c) He revealed the existence of the co-offender, named him and offered to give evidence against him [12].
(d) He 'amply demonstrated his contrition' by his plea of guilty on the fast-track system [13].
(e) While on bail, he actively pursued his own rehabilitation to overcome his dependence on illicit drugs [13].
(f) The offence in question was his 'first offence of any magnitude' [14].
(g) He had 'solid family support' and 'every prospect that he could successfully pursue the process of rehabilitation' [14].
34 In Satonick, the appellant pleaded guilty, at the earliest opportunity, to one count of armed robbery. The primary judge sentenced him to
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- 18 months' immediate imprisonment. Eleven days prior to the offence, the appellant's girlfriend of 20 months ended their relationship. A few days later, he was involved in a car accident in which he suffered a minor head injury and mild concussion. The appellant had a problem with alcohol for which he had been receiving treatment and, until the day before the robbery, had abstained for about three months. On the day before the offence, motivated by the recent events in his life, he drank for most of the day with friends. On the morning of the day of the robbery, he awoke feeling depressed. He consumed alcohol, Valium and Panadol. Later, he described this behaviour to a psychologist as a 'lame suicide attempt'. He did not have his wallet with him and, wanting more alcohol, he took a 15 cm steak knife from his kitchen and went on his skateboard to the liquor store where the offence was committed. Upon entering the liquor store, the appellant selected a carton of bourbon and cola cans and placed them on the counter. He asked the attendant for some cigarettes. When the attendant placed the cigarettes on the counter the appellant said, 'These are free. I have had a bad week and I don't want to do this. I'm not going to hurt anyone'. He lifted his shirt to show the knife hidden in his pants. He took out the knife and placed it on the counter. The manager of the store, who was also behind the counter with the attendant, said, 'Just take it'. The appellant put the knife back in his pants, picked up the carton and cigarettes, and departed. He returned to his home and drank the stolen alcohol. His father arrived and the appellant threatened self-harm in his father's presence. As a result, his father telephoned the police. The appellant's involvement in the robbery was recognised and he was arrested. This court held that it was open, in the exceptional circumstances of the case, to suspend the term of imprisonment. These circumstances included:
(a) The appellant's youth. He was aged 20 at the time of the offending.
(b) The lack of a relevant prior criminal record.
(c) The plea of guilty at the earliest opportunity.
(d) The appellant's expression of remorse and empathy for the victim.
(e) The offence occurred under the pressure of emotional distress aggravated by a bout of alcohol consumption triggered by the break up of his relationship and his car accident.
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- (f) The offence was prompted by the appellant's desire to obtain alcohol, in the context of his having voluntarily submitted himself to a treatment programme both before and after the commission of the offence.
(g) The community interest would be better served by the appellant being able to continue treatment for his alcohol problem and his chronic anxiety syndrome.
35 Nevertheless, despite these exceptional circumstances favouring the suspension of the term of imprisonment, the court in Satonick considered that the case was 'borderline' [26].
36 So:
(a) in Mobilia, the offence was not planned or premeditated, the victim was not physically assaulted and did not suffer any injury, and the offender had no relevant prior criminal record;
(b) in Lovatt, the victim was not physically assaulted and did not suffer any injury and the offence in question was the offender's first offence of any magnitude; and
(c) in Satonick, the victim was not physically assaulted and did not suffer any injury and the offender did not have a relevant prior criminal record.
37 Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offence which has been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); Ugle v The State of Western Australia [2012] WASCA 104 [71] (Buss JA, Pullin JA agreeing).
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38 In the present case, the respondent was raised by his parents in Port Hedland until the age of about five, when his parents separated. He then moved to Perth with his father. He had little contact with his mother while growing up. The respondent's father died when the respondent was 18.
39 The respondent left school after completing year 10. He has not had secure employment since that time.
40 The respondent commenced experimenting with cannabis when he was 18. Initially, he used the drug 'on and off' but in the two year period before the offence in question he had escalated to daily use. He drank alcohol about once every fortnight and enjoyed becoming intoxicated. However, he informed the author of the pre-sentence report that he was aware that alcohol misuse could be a trigger for his anger. He had become involved in fights and had acted out anger by punching walls. He told the author that he would like assistance in overcoming the loss of his father and his propensity for alcohol misuse.
41 The respondent is in a relationship with a young woman. He claims that she is a positive influence on him because she does not misuse alcohol or use illicit substances.
42 According to the author of the pre-sentence report, the respondent appears to have 'good intentions' but lacks maturity and does not have any realistic plans to fulfil his intentions. The author said he may benefit from 'programmatic intervention'.
43 The respondent has a prior criminal record but most of the convictions have been for relatively minor offences. All of the offences have been punished with fines, except for two counts of aggravated burglary, committed as a juvenile, where the charges were dismissed under s 33(2) of the Young Offenders Act 1994 (WA) and he was referred to a juvenile justice team. The respondent has not previously been sentenced to a term of imprisonment or detention.
44 In the present case, the respondent's offending was very serious. Although the violence inflicted on Mr Wilson was not planned or premeditated, the decision to steal the alcohol was planned and premeditated and, in the circumstances, there was a real prospect that violence would result if the respondent and his co-offenders chose to overcome any attempt by employees of the liquor store to resist the theft of property.
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45 There is a material distinction, in my opinion, between the respondent and Mr Bropho, both in relation to their role in the offending and their personal antecedents.
46 As to their role in the offending, the respondent struck Mr Wilson in the face with the bottle but the blow was not forceful. By contrast, Mr Bropho picked up the bottle and used it as a weapon by throwing it forcefully at Mr Wilson from a distance of about 2 m. The respondent's action did not occasion Mr Wilson any significant bodily injury whereas Mr Bropho's action caused him severe injuries. Counsel for the respondent accepted in his written submissions that 'what occurred [was] clearly foreseeable'. However, the respondent did not aid, counsel or procure Mr Bropho's action in throwing the bottle forcefully at Mr Wilson.
47 As to their personal antecedents, Mr Bropho's prior criminal record is more serious than the respondent's. For example, Mr Bropho has previously been sentenced to periods of detention whereas the respondent has not.
48 As at 28 August 2012, when the respondent was sentenced by the sentencing judge, he had been detained in custody for about 3 1/2 months in relation to the offence in question.
49 The sentencing judge was bound to impose a sentence on the respondent that was commensurate with the seriousness of the offence. This involved an evaluation of the factors set out in s 6(2) of the Sentencing Act. Although the respondent's offending was, as I have mentioned, very serious, his offending was mitigated by his youth, plea of guilty and remorse. Also, it was relevant, in deciding upon sentence, that the respondent had spent about 3 1/2 months in custody, he did not personally inflict the severe injuries suffered by Mr Wilson and he had not previously been imprisoned or detained. I am satisfied that, in the circumstances, it was appropriate for his Honour to suspend the 2-year term of imprisonment. No error is to be implied from the sentencing outcome.
50 The ground of appeal fails.
Conclusion
51 I would dismiss the appeal.
52 MAZZA JA: I agree with Buss JA.
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