The State of Western Australia v Bropho

[2013] WASCA 44

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROPHO [2013] WASCA 44

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   27 NOVEMBER 2012

DELIVERED          :   30 NOVEMBER 2012

PUBLISHED           :  22 FEBRUARY 2013

FILE NO/S:   CACR 204 of 2012

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

LEON KENNETH BROPHO
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 - Young offender - Plea of guilty at the first available opportunity - Serious prior criminal record as a juvenile - Sentencing judge imposed a suspended term of imprisonment - Whether sentence manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 392(c)
Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed
Sentencing decision of primary judge set aside
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr J McGrath SC

Respondent:     Mr K J Farley

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Legal Aid (WA)

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

The State of Western Australia v Drew [2012] WASCA 86

The State of Western Australia v Munda [2012] WASCA 164

The State of Western Australia v Wells [2005] WASCA 23

Ugle v The State of Western Australia [2012] WASCA 104

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, Gordon John Boundry, 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 3 years' imprisonment, conditionally suspended for 2 years.  The co‑offender, Mr Boundry, was sentenced to 2 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.

6. The State's appeal was heard on 27 November 2012.  On 30 November 2012, the court made, relevantly, the following orders:

   (a)Appeal allowed.

   (b)The sentencing decision of the primary judge is set aside.

   (c)The respondent is re‑sentenced to a term of 3 years' immediate imprisonment.

   (d)The new sentence is to be taken to have taken effect on the date which is 3 months and 20 days before the date on which the respondent is taken into custody pursuant to this court's resentencing decision.

   (e)The respondent is eligible for parole.

7. The court said that reasons for decision would be published later.  These are my reasons.

The facts and circumstances of the offending

1. On the afternoon of 5 May 2012, the respondent and his co‑offenders agreed to steal alcohol from a liquor store.

2. Later that afternoon, at about 4.00 pm, they entered the Altone Liquor Store in Beechboro and selected bottles of liquor from the shelves.

3. The juvenile ran to a side door with a bottle and fled without paying.

1. The respondent and Mr Boundry attempted to leave with a bottle through the main entrance without paying.

2. Gary Wilson, who was the manager of the store, approached Mr Boundry and grabbed him as he attempted to leave.  Mr Wilson told Mr Boundry to stop.  Mr Boundry struggled with Mr Wilson.  They moved from the interior of the store to the exterior.  The respondent was about 2 m from Mr Wilson while Mr Wilson sought to detain Mr Boundry by holding him.  During the struggle Mr Boundry broke Mr Wilson's grip and struck him in the face with a 1.125 litre bottle of whisky.  The blow was not forceful.  The bottle fell to the ground without breaking.  The respondent 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.

3. The respondent and Mr Boundry fled.

4. Most of the interaction between Mr Wilson, the respondent and Mr Boundry was captured on closed circuit television.  I have watched the footage.  It does not clearly depict the respondent's action in picking up the bottle and throwing it forcefully at Mr Wilson.

5. 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.

6. 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

1. The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.

2. 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].

3. 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 May 1990. He was 21 at the time of the offending and turned 22 three days later.

4. The respondent has been in a relationship since he was 16 and he has two children.

5. His Honour mentioned a pre‑sentence report and a psychological report that had been prepared in relation to the respondent, including the opinion of the forensic psychologist, Ms Julie Hasson, that unless the respondent undertook programmes or addressed certain features of his lifestyle he would be at 'a high risk of reoffending' [20]. The respondent has a prior criminal record in the Children's Court and the Magistrates Court.

6. 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].

7. His Honour said that he 'would begin with the period of 4 years' imprisonment for [the respondent] which [he] would reduce to 3 years' imprisonment because of the plea of guilty and his youth' [22].

8. 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 … 3‑year [term] which I have decided upon' [23].

9. 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 respondent's purpose in striking Mr Wilson with the bottle

1. The sentencing judge did not make a finding of fact as to the respondent's purpose in striking Mr Wilson with the bottle.

2. The prosecutor had submitted at the sentencing hearing that the respondent's action was 'just gratuitous violence' (ts 17).

3. This submission was repeated before this court by counsel for the State.  He submitted that the violence was not inflicted because Mr Wilson was preventing the offenders' escape (appeal ts 4).  Rather, it was 'a gratuitous act of violence … [and] was unnecessary' (appeal ts 4).

4. The respondent, in his video‑recorded interview with the police, said that he threw the bottle 'like when you do … a baseball throw', 'you're winding right up' and 'you're throwing down and you're looking away' (VROI 35).

5. The police questioned the respondent as to why he threw the bottle and what he hoped to achieve.  The respondent did not provide a meaningful explanation.  He said that he did not hope to achieve 'anything really' (VROI 34).  Later, he said that he could not give any explanation as to why he threw the bottle (VROI 35).

6. In these circumstances (in particular, the absence of a trial of issues and a finding of fact by his Honour and the absence of clarity in some relevant parts of the closed circuit television footage), this court should proceed on the basis most favourable to the respondent, namely that he threw the bottle at Mr Wilson for the purpose of facilitating Mr Boundry's and his escape.

The ground of appeal

1. The State's sole ground of appeal is that, by ordering that the term of 3 years' imprisonment be conditionally suspended, the sentencing judge imposed a sentence that was manifestly inadequate. 

2. On 14 October 2012, Mazza JA granted leave to appeal.

The merits of the appeal

1. The maximum penalty for aggravated armed robbery under s 392(c) of the Code is life imprisonment.

2. 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 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].

3. 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.

4. 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).

5. 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].

6. 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 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.

7. 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 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].

8. 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].

9. In Satonick, the appellant pleaded guilty, at the earliest opportunity, to one count of armed robbery.  The primary judge sentenced him to 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.

   (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.

1. Nevertheless, despite these exceptional circumstances favouring the suspension of the term of imprisonment, the court in Satonick considered that the case was 'borderline' [26].

2. Mobilia, Lovatt and Satonick are readily distinguishable from the present case.  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.  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.  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.  By contrast, in the present case, the offence of stealing was planned and premeditated, Mr Wilson was viciously assaulted to facilitate Mr Boundry's and the respondent's escape, Mr Wilson suffered severe injuries, and the respondent had a significant prior criminal record including previous convictions for aggravated armed robbery, aggravated burglary and common assault.

3. 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).

4. In the present case, the respondent had a transient, deprived and unstable upbringing.  He witnessed domestic violence, excessive alcohol consumption and illicit drug use.  The respondent ceased his schooling in year 10.  He has never been employed.  His relationship with his partner appears to have been positive, although there has been some violence arising from his response to her disapproval of his lifestyle.  The respondent commenced smoking cannabis and drinking alcohol at age 8.  These substances have been a continuing problem for him.  The respondent is otherwise physically healthy.

5. Ms Hasson noted in her psychological report that the respondent's history reflects 'a pattern of antisocial behaviour and problematic drug and alcohol use' (4).  Also, she noted that the respondent was 'a depressed individual' (4).  According to Ms Hasson, the respondent 'acknowledged getting "angry real quick" and often getting into fights' (6).  He told Ms Hasson that he was aware he is 'impulsive and acts without thinking of the consequences' (6).  Ms Hasson expressed the view that the respondent was at 'a high risk of reoffending in the same or similar manner without intervention' (6).

6. The respondent's prior criminal record reveals the following.  In 2005 he was convicted of aggravated robbery, burglary and stealing.  In 2007 his convictions included aggravated armed robbery (three counts), aggravated burglary (three counts), breach of a community based order (two counts), breach of bail and numerous traffic offences.  In 2010 he was convicted of common assault.  In 2011 he was convicted of numerous driving offences.  The sentences for the respondent's 2007 convictions included 2 years' detention from 16 August 2007.

7. In the present case, the respondent's offending was very serious.  It is true that the violence inflicted on Mr Wilson was not planned or premeditated and that the respondent had the benefit of a number of mitigatory factors including his youth, his plea of guilty at the first available opportunity and his remorse.  However, 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.  The respondent's attack upon Mr Wilson was callous and dangerous, and engaged in for the base purpose of enabling Mr Boundry and him to evade apprehension.  Despite Mr Wilson's recovery, the severity of his injuries cannot be understated.  The potential for a tragic outcome is obvious. 

8. In my opinion, it was not reasonably open to the sentencing judge to suspend the 3‑year term of imprisonment.  Suspended imprisonment was not, as a matter of fact, an appropriate sentencing option.  His Honour attached unjustified significance to the respondent's age in deciding to suspend. 

9. The suspension of the term of imprisonment was not commensurate with the seriousness of the offence.  The seriousness of the offending (in particular, the nature and circumstances of the respondent's violence towards Mr Wilson and the severe injuries resulting from it) was such that only immediate imprisonment could be justified.

10. I am satisfied, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors, that, by ordering the suspension of the 3‑­year term of imprisonment, his Honour imposed a sentence that was manifestly inadequate.  This is the only conclusion reasonably open when his Honour's sentencing disposition is viewed from the perspective of the maximum penalty (life imprisonment), the objective seriousness of the offending, the severe injuries suffered by Mr Wilson, the necessity for denunciation of the respondent's conduct and the importance of personal and general deterrence as sentencing considerations, after taking into account the general standards of sentencing applicable to aggravated armed robbery, the respondent's personal circumstances and antecedents, and his youth, plea of guilty and remorse.

11. The ground of appeal has been made out.

12. Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be applied. See The State of Western Australia v Munda [2012] WASCA 164. This is not an appropriate case for the application of the discretion. The sentence imposed by the sentencing judge was not reasonably open on a proper

exercise of the sentencing discretion.  The State has very clearly established the error about which it complains.  The maintenance of proper sentencing standards for the very serious offence of aggravated armed robbery requires this court's intervention.

1. MAZZA JA:  I agree with Buss JA.