The State of Western Australia v Doodson
[2021] WASCA 148
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DOODSON [2021] WASCA 148
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 8 JUNE 2021
DELIVERED : 19 AUGUST 2021
FILE NO/S: CACR 169 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ROBERT WAYNE DOODSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND 1526 of 2020
Catchwords:
Criminal law - Sentencing - Offence of aggravated robbery committed while on parole for other offences - Where offender was still serving earlier sentence of 6 years 9 months' imprisonment when sentenced for the aggravated robbery offence - Application of totality principle - Whether cumulative sentence of 12 months' immediate imprisonment for the aggravated robbery offence, reduced for totality, was manifestly inadequate - Whether new total effective sentence of 7 years 9 months' imprisonment infringed the first limb of the totality principle
Criminal law - Sentence administration - When offender serving multiple terms is eligible for parole - Where offender re-offended on parole and parole is cancelled - Where offender is still serving previous term when sentenced to a cumulative term of immediate imprisonment for later offending - Whether sentences are to be aggregated - Whether service of 'clean street time' counts as service of sentence for the purposes of determining parole eligibility date for the new aggregate term of imprisonment
Legislation:
Criminal Code (WA), s 392
Sentence Administration Act 2003 (WA), s 7, s 71
Sentencing Act 1995 (WA), s 93, s 94
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | A L Forrester SC & B M Murray |
| Respondent | : | A S Rogers |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Abigail Rogers Barristers & Solicitors |
Case(s) referred to in decision(s):
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Francis v The State of Western Australia [2019] WASCA 43
House v The King (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Labrook v The State of Western Australia [2016] WASCA 127
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Roffey v The State of Western Australia [2007] WASCA 246
Schischka v The State of Western Australia [2015] WASCA 15
JUDGMENT OF THE COURT:
Summary
On 22 October 2020, the respondent was convicted of one count of aggravated robbery, contrary to s 392 of the Criminal Code (WA). The offence was committed on 21 June 2020 at the victim's house in Joondalup. It involved stealing the victim's Harley Davidson motorcycle with violence. The pleaded circumstance of aggravation was that the respondent did bodily harm to the victim.
At the time of sentencing for the aggravated robbery offence, the respondent was already in custody serving a total effective sentence of 6 years 9 months' imprisonment. The prior sentences were imposed for one count of doing grievous bodily harm and one count of attempting to pervert the course of justice. The respondent had been released on parole in respect of this earlier offending the day prior to the commission of the aggravated robbery offence.
The respondent was sentenced to 12 months' immediate imprisonment in respect of the aggravated robbery offence (reduced from 2 years 6 months for totality), with eligibility for parole. The sentence for the aggravated robbery offence was ordered to be served cumulatively upon the sentences for the grievous bodily harm offence and the attempt to pervert the course of justice offence. The new total effective sentence in respect of the three offences was therefore 7 years 9 months' imprisonment.
The State appeals against the sentence for the aggravated robbery offence on the grounds that the individual sentence was manifestly inadequate, and the new total effective sentence infringed the first limb of the totality principle. Leave to appeal has been granted on both grounds.
For the following reasons, the new total effective sentence of 7 years 9 months' imprisonment imposed by the sentencing judge infringed the first limb of the totality principle. The appeal should be allowed on that basis and the respondent should be resentenced. We would resentence the respondent to 2 years 9 months' immediate imprisonment (reduced from 3 years 3 months for totality) for the aggravated robbery offence. The sentence for the aggravated robbery offence should be served cumulatively upon the existing sentences for the grievous bodily harm offence and the attempt to pervert the course of justice offence. This results in a total effective sentence of 9 years 6 months' imprisonment.
Circumstances of the aggravated robbery offence
The sentencing judge made the following findings as to the circumstances of the aggravated robbery offence.[1]
[1] Sentencing ts 23 - 27, including the incorporation of the prosecutor's statement of material facts at sentencing ts 5 - 6.
At approximately 2 am on 21 June 2020, the victim was asleep inside his home address in Joondalup. The victim was awoken by the respondent knocking at his laundry door. The victim had met the respondent on three previous occasions through his housemate, Mr Gustafson. The victim knew that the respondent was a member of the Rebels Outlaw Motorcycle Gang (Rebels).
The respondent attended the victim's house in a state of great personal distress, having been in a dispute with his wife at the time, Ms Amanda Doodson, and having taken prescription medication. He wanted to speak to Mr Gustafson, who he thought may be able to provide him with comfort and assistance.
The respondent asked to enter the house to speak with Mr Gustafson, and the victim allowed him to enter.
A short time later, the victim observed the respondent smoking a cigarette inside the house and asked him to smoke outside. In response, the respondent struck the victim to the face with his elbow. The victim was stunned and stumbled backwards, away from the respondent. The respondent followed the victim and punched him in the face with a closed fist. The strikes caused immediate pain, swelling and bleeding to the victim's nose and jaw.
The respondent shouted at the victim, 'I'm taking your bike'. The respondent then demanded that the victim give him the keys to the victim's Harley Davidson motorcycle.
The victim attempted to distance himself from the respondent by moving around the house. The respondent followed the victim, pointing at the victim in an aggressive manner and repeatedly demanded the motorcycle keys. The victim feared for his safety and gave the keys and ownership documents for the motorcycle to the respondent.
The respondent ordered the victim to sign over the vehicle to him by completing Department of Transport transfer papers. The victim told the respondent that he did not have any transfer papers at his house. The respondent left the house in the four-wheel drive vehicle he had arrived in, and asked Mr Gustafson to follow behind him on the motorcycle.
The following day, the respondent continued to communicate with the victim through Mr Gustafson, demanding the victim complete the transfer papers. Fearing for his safety, the victim completed the seller portion of the transfer papers and had them delivered to the respondent. The victim's motorcycle was customised and was valued at approximately $30,000.
As a result of the assault, the victim attended Joondalup Hospital. Scans of the victim's face revealed fractures to bones on the right side of his face. In particular:[2]
A CT scan of the victim's face was performed which revealed comminuted, depressed fractures of the anterior and lateral wall of the right maxillary antrum. The fracture involved the temporal process of the zygoma on the right. The fracture also extended into the lateral aspect of the right infraorbital foramen. There was, furthermore, a displaced fracture of the mid-right zygomatic arch.
The victim was further diagnosed with nerve damage to his cheek, nose and upper mouth.
[2] Sentencing ts 25.
The victim reported the matter to police on 28 June 2020. On 9 July 2020, police located the respondent at an address in Clarkson. The respondent was cautioned and admitted taking the bike, but stated it was not a robbery as the victim could have come and taken the bike back at any time. Due to a medical episode, the respondent was unable to participate in a recorded interview with police.
Circumstances of previous offending
Wager DCJ (as her Honour then was) sentenced the respondent on 24 January 2017 in respect of his earlier offending. Her Honour made the following findings of fact as to the circumstances of the earlier offending.[3]
Grievous bodily harm offence
[3] Sentencing ts, 24 January 2017, 331 - 337.
The respondent and some other members of the Rebels arranged for the victim of the grievous bodily harm offence (gbh victim) to be asked to attend the address of a woman in Ridgewood at about 10 pm on 30 September 2014. The respondent and five other members or associates of the Rebels, one of whom the respondent knew to be armed with a baseball bat, attended the Ridgewood house at about 11.45 pm that night.
The respondent intended to surprise and confront the gbh victim about what he regarded as the gbh victim's antisocial and criminal conduct. The respondent understood that the gbh victim had been involved in burglary offences while armed and was in possession of illegal firearms. He believed it was likely that the gbh victim would be armed or have a firearm.
The gbh victim was in the garage of the Ridgewood house when the respondent and the other men arrived in a car. The gbh victim opened the garage door and saw the men standing in the driveway. The gbh victim produced an altered firearm and a confrontation followed between the gbh victim and the respondent's group. The gbh victim was struck multiple times by members of the respondent's group, including with the baseball bat, over a period of up to 5 minutes.
The gbh victim suffered injuries that were of such a nature as to cause or be likely to cause permanent injury to health. He received injuries that covered most of his body, including a right distal fibula (or lower leg) fracture, a right third metacarpal hand fracture, fractures to the right ulna (forearm) and right humerus (or upper arm), a fracture of the right femur (or thigh) and a right skull fracture. The gbh victim sustained lacerations to the top of his head related to the skull fracture that required sutures, and he had bruising to his face. He remained in hospital for over three weeks.
Attempting to pervert the course of justice offence
The attempt to pervert the course of justice offence related to the respondent's attempts to bribe the gbh victim to retract his statement about the grievous bodily harm offence.
The respondent and his co-offenders were arrested for the grievous bodily harm offence on 12 November 2014 and were remanded in custody. Between 9 March 2015 and 8 May 2015, the respondent communicated with Ms Doodson and others for the purpose of arranging for money to be paid to the gbh victim in exchange for the gbh victim signing a statutory declaration withdrawing his complaint to police about the assault.
On 2 April 2015, Ms Doodson, acting at the respondent's direction, arranged a meeting with the gbh victim through a co-accused. The gbh victim was asked to sign a statutory declaration that had been prepared for him. The statutory declaration indicated that the gbh victim's earlier police statement in relation to the assault was false. It also indicated that the gbh victim had been pressured by police to sign the police statement. The statutory declaration indicated that the gbh victim could not recall or identify any of those involved in the assault.
Also on 2 April 2015, another co-accused went with the gbh victim to a pharmacy where the statutory declaration was signed in the presence of the pharmacist. The gbh victim was paid $25,000 in cash by Ms Doodson. This money had been provided by the respondent to Ms Doodson for that purpose.
In calls made on 2 April 2015, Ms Doodson spoke to the respondent about the progress that was being made with the signing of the statutory declaration and the payment of money. The respondent gave Ms Doodson directions in respect of those actions. Arrangements were made for the gbh victim to be paid $39,000 in total.
On 7 April 2015, a co-accused faxed the first page of the statutory declaration to the Commonwealth Director of Public Prosecutions, which was then forwarded to the Office of the Director of Public Prosecutions (WA). The respondent then directed Ms Doodson to send the statutory declaration to a criminal barrister. The statutory declaration was relied upon in a bail application in the Supreme Court on 1 and 6 May 2015, before the true situation came to light.
Sentences for the previous offending
Wager DCJ sentenced the respondent to 4 years' immediate imprisonment in respect of the grievous bodily harm offence. Her Honour sentenced the respondent to 2 years 9 months' immediate imprisonment in respect of the attempt to pervert the course of justice offence. She reduced the sentences which would otherwise have been imposed by 25%, under s 9AA of the Sentencing Act 1995 (WA). The sentences were ordered to be served cumulatively. This resulted in a total effective sentence for the previous offending of 6 years 9 months' immediate imprisonment. The sentences were backdated by 698 days to take account of time spent in custody on remand.[4]
[4] Sentencing ts, 24 January 2017, 342.
Personal circumstances
The respondent was 44 years old at the date of committing the aggravated robbery offence and the date of sentencing for that offence. He was the middle child of three children. The respondent described his father, who died when the respondent was in his mid-20's, as a violent alcoholic. The respondent's mother left his father when he was about 5 years of age and relocated from Sydney to Perth with the children. Both before and after the separation, the respondent was exposed at an early age to violence, alcohol abuse and dishonesty.[5] A pre-sentence psychiatric report recorded the respondent as suffering from anger outbursts and limited distress tolerance consistent with a diagnosis of adjustment disorder. The sentencing judge accepted that the respondent's early experiences entrenched an unacceptable pattern of behaviour in the respondent.[6]
[5] Psychological report, 2.
[6] Sentencing ts 29.
The respondent left school at around 16 years of age. He joined the Rebels, feeling that everyone had betrayed him and seeking a sense of belonging and friendship. The respondent rose to be a senior member of the Rebels and engaged in significant crime as a member of that gang. He claimed to have retired as a member of the Rebels.[7]
[7] Psychological report, 2.
The respondent had four children from three relationships, aged 17, 11, 8 and 6 at the time of sentencing.[8] The respondent's now ex-wife, Ms Doodson, who was a co-offender in the attempt to pervert the course of justice offence, is the mother of his youngest child. Ms Doodson was sentenced to a term of imprisonment in respect of that offending. She developed a methylamphetamine habit after that offending. The respondent had expressed anger at the victim of the aggravated robbery offence, who he believed may have supplied drugs to Ms Doodson, and at Ms Doodson, who he believed may have supplied drugs to his eldest daughter.[9]
[8] Psychological report, 3. It may be noted that the pre-sentence report refers to the respondent having seven children to several different women. It is unnecessary to resolve this inconsistency for the purposes of determining this appeal.
[9] Psychological report, 3.
The respondent had an extensive criminal record for offences dating back to 1994, and involving offences of violence, drug offences, property offences and traffic offences. On 13 July 2004, he received a sentence of 7 months' imprisonment, suspended for 12 months, in respect of a burglary offence and possession of an unlicensed firearm and ammunition. On 31 August 2010, he was sentenced to 2 years' imprisonment, suspended for 2 years, in respect of possession of cannabis with intent to sell or supply it to another and cultivation of cannabis. However, the respondent had not been sentenced to a term of immediate imprisonment at the time of his arrest for the grievous bodily harm offence.[10]
[10] Appellant's criminal record.
The respondent was released on parole on 25 November 2019. On 28 April 2020, his parole was suspended following an alleged domestic violence incident with Ms Doodson on a camping trip, involving alleged strangulation of Ms Doodson by the respondent. When police attended, the respondent was breathalysed and returned a positive result for alcohol, which was a breach of his parole conditions.[11]
[11] Pre-sentence report, 3; psychological report, 3.
On 18 June 2020, the Prisoners Review Board cancelled the suspension of the respondent's parole. The respondent was again released on parole on 20 June 2020. He committed the aggravated robbery offence in the early hours of the morning of 21 June 2020.[12]
[12] Psychological report, 3.
The respondent was arrested for the aggravated robbery offence on 9 July 2020 and his parole was again suspended. The respondent's parole was automatically and retrospectively cancelled when he was convicted of the aggravated robbery offence, with effect from 21 June 2020 (being the date he committed the offence).[13] This meant there were 18 days where the respondent was not in custody but his parole had been cancelled.
[13] Pursuant to s 67 and s 71(3)(b)(i) of the Sentence Administration Act 2003 (WA).
Prior to being convicted of the aggravated robbery offence, the respondent's sentence term was due to expire on 25 November 2021.
Sentencing judge's approach
The sentencing judge described the circumstances of the offending, noting the aggravating features that:[14]
(1)the victim suffered serious bodily harm;
(2)the victim suffered terror in his own home;
(3)the respondent chose to take advantage of the violence he had unjustifiably used against the victim by demanding the victim's motorcycle;
(4)the respondent demanded transfer papers and enlisted Mr Gustafson to assist in driving the motorcycle away;
(5)the respondent's conduct was persistent in continuing the demand for the transfer papers; and
(6) the offence was committed while the respondent was on parole.
The sentencing judge considered that these features made the offence 'particularly serious'.
[14] Sentencing ts 25 - 27, 29.
The sentencing judge noted the following mitigating factors:[15]
(1)the respondent pleaded guilty at the first reasonable opportunity, for which he received a discount of 25% under s 9AA of the Sentencing Act;
(2)the respondent had a difficult childhood marked by deprivation which framed him to react in a violent and unhinged way;
(3)the respondent was remorseful, although it was a 'mixed remorse' in that the respondent felt sorry for himself as well as his victim; and
(4)the respondent had a supportive family and was prepared to accept treatment, so there were some prospects of rehabilitation.
[15] Sentencing ts 27 - 29, 30 - 32.
The sentencing judge noted that the respondent's previous criminal history was not an aggravating feature but elevated the significance of community protection and personal deterrence as sentencing considerations.[16] As to community protection, the sentencing judge observed that the psychiatrist's report recorded that the respondent presented a high risk of aggressive behaviour if emotionally distressed and intoxicated with alcohol or benzodiazepines. His Honour described the respondent as a dangerous person, with the danger he presented being illustrated by the aggravated robbery offence.[17]
[16] Sentencing ts 29 - 30.
[17] Sentencing ts 30.
The sentencing judge indicated that he regarded the aggravated robbery offence as justifying a sentence of 2 years 6 months' immediate imprisonment. However, his Honour reduced that sentence to take account of the fact that the respondent was going to be 'in custody until 25 November 2021'. His Honour said that he would reduce the sentence to a cumulative term of 12 months' imprisonment from 25 November 2021. The respondent was made eligible for parole, with the sentencing judge noting that he would be eligible for parole 'six months into the 12 months that is imposed as an accumulated sentence'.[18]
[18] Sentencing ts 31 - 32.
It may be noted that the sentencing judge's comments referred to in the previous paragraph reveal a misapprehension of the way in which the legislation provides for a cumulative parole term to be served. As noted above, his Honour considered that the sentences for the previous offending would end on 25 November 2021. The cumulative sentence of 12 months' immediate imprisonment for the aggravated robbery offence was to be aggregated with the terms of the previous sentence of 6 years 9 months' imprisonment.[19] The new aggregate sentence was therefore 7 years 9 months' imprisonment and, taking into account the 18 days between 21 June 2020 and 9 July 2020 noted at [35] above,[20] would end on 13 December 2022. The respondent would be eligible for parole after serving 5 years 9 months of that aggregate term.[21] However, the appellant consciously decided not to advance any ground of appeal in relation to this issue.[22]
[19] Sentencing Act, s 94(1) and s 94(4).
[20] Pursuant to s 71(3)(b)(i) of the Sentence Administration Act. See [78] - [79] below.
[21] Sentencing Act, s 93(1)(b).
[22] Appeal ts 6 - 7.
Grounds of appeal
Ground 1 of the State's appeal contends that the individual sentence of 12 months' immediate imprisonment for the aggravated robbery offence is manifestly inadequate. Ground 2 contends that the new total effective sentence of 7 years 9 months' imprisonment infringes the first limb of the totality principle.
The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[23]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[23] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition of grounds of appeal
Ground 1: manifest inadequacy
To allege that a sentence is manifestly excessive or inadequate is to contend that an error is inferred from an outcome of the exercise of the sentencing discretion which is explicable only by an error of principle. That is, as Dixon, Evatt and McTiernan JJ noted in House v The King:[24]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[24] House v The King (1936) 55 CLR 499, 505.
Similarly, in R v Pham,[25] French CJ, Keane and Nettle JJ observed:
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle. (citation omitted)
[25] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (point (7)).
In Francis v The State of Western Australia,[26] this court recognised that, where the State alleges that an individual sentence forming part of a longer total effective sentence is manifestly inadequate, the process of discerning, by inference, whether the sentencing judge has made an error must take account of the totality principle. The appellate court must consider whether the sentencing court may have applied the totality principle to reduce individual sentences as a means of arriving at a total effective sentence which reflects the overall criminality involved in all the offending. The proper application of the totality principle may provide an explanation for the imposition of what might otherwise be regarded as an unreasonably low sentence for an individual offence. The possibility that the sentencing court may have applied the totality principle in this manner may preclude the inference of error of principle being drawn from the result of the exercise of the sentencing discretion. In such a case, the apparent leniency of an individual sentence may be capable of explanation otherwise than on the basis that there has been a failure to properly apply sentencing principles.
[26] Francis v The State of Western Australia [2019] WASCA 43 [82].
In the present case, the sentence of 12 months' immediate imprisonment for the aggravated robbery offence was expressly arrived at by application of the totality principle. In the circumstances of this case, error cannot be inferred from the outcome of the sentencing discretion, unless it involves a breach of the totality principle. The real question in the present case is whether the sentencing judge properly applied the totality principle in reducing the sentence which his Honour would otherwise have imposed for the aggravated robbery offence to 12 months' imprisonment. We turn to consider that question which is directly raised by ground 2.
Ground 2: totality
As is explained in Labrook v The State of Western Australia,[27] the totality principle applies in relation to a sentence which an offender is serving at the time of sentencing for another offence. The question raised by ground 2 in the present case is whether the new total effective sentence of 7 years 9 months' imprisonment fails to bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case (including those referable to the respondent personally).
[27] Labrook v The State of Western Australia [2016] WASCA 127 [33] - [40].
While the totality principle applies in the present case, the fact that the respondent offended while on parole for the sentences imposed for the earlier offending is not irrelevant to the application of the totality principle.
As was noted in Roffey v The State of Western Australia,[28] a rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. So too there may be assumed to be a lesser demand for personal deterrence. However, the commission of further offences while on parole may negate an assumption that rehabilitation has been achieved. Where an offence is committed towards the end of a sentence already being served, the partial service of an earlier sentence may do little to reduce demand for retribution for later serious offending and the need for personal deterrence.
[28] Roffey v The State of Western Australia [2007] WASCA 246 [26].
Considerations of general deterrence may also be relevant. It should not be thought that a person serving a significant sentence can act with impunity in the expectation that any sentence for further offences will be served wholly or largely concurrently.
The above considerations may, depending on all the circumstances, lead to a conclusion that subsequent offending adds to the offender's overall criminality to a greater extent than would be the case if all offending occurred before a sentence was imposed for any of the offending.
In the present case, the respondent committed a serious aggravated robbery offence in the early hours of the day following his release on parole. This was the second occasion on which the respondent had been released on parole. His previous parole was suspended following an alleged violent altercation with Ms Doodson, after the respondent had consumed alcohol. By immediately offending on his latest release, the respondent clearly demonstrated that the previous service of sentences of imprisonment had not achieved rehabilitation. The respondent remained a violent and dangerous offender, for whom considerations of personal deterrence and community protection loomed large in the exercise of the sentencing discretion. The commission of the aggravated robbery offence added significantly to the overall criminality involved in the commission of the grievous bodily harm and attempt to pervert the course of justice offences.
The previous offences were themselves very serious. The respondent and other members or associates of the Rebels severely beat the gbh victim and inflicted many serious injuries upon him. The respondent then attempted to avoid punishment for the grievous bodily harm offence by bribing the gbh victim to sign a statutory declaration retracting his police statement. The statutory declaration was in fact signed and presented to the court considering his bail application.
The aggravated robbery offence was a serious example of a serious offence. Actual violence was used in a manner which terrified the victim in what should have been the sanctity of his own home in the very early hours of the morning. The victim suffered bodily harm of a serious nature as a consequence of the violence inflicted upon him by the respondent. The property stolen was valuable. While not planned, the offending was persistent both in the demands made on the morning of the offence and subsequent demands for signed vehicle transfer papers. The offence was aggravated by the fact that it was committed just after the respondent's release on parole.
Having regard to all of the circumstances of the three offences and the respondent's personal circumstances, in our view the total effective sentence of 7 years 9 months' imprisonment fails to bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety. The decision to impose a sentence of only 12 months' immediate imprisonment for the aggravated robbery offence, so as to produce a new total effective sentence of 7 years 9 months' imprisonment for all of the respondent's offending, was unreasonable or plainly unjust. Ground 2 is established.
Residual discretion
Counsel for the respondent ultimately did not submit that the residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) should be exercised.[29]
[29] Appeal ts 18 - 19.
The residual discretion is a discretion not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised.[30]
[30] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour.
Resentencing
It is therefore necessary for this court to exercise the sentencing discretion for the aggravated robbery offence afresh and for itself.
The maximum penalty for the offence against s 392 of the Criminal Code committed in circumstances of aggravation is 20 years' imprisonment.
The general sentencing standards for aggravated robbery offences were referred to in Schischka v The State of Western Australia,[31] where Martin CJ noted:
the offence of aggravated robbery can be and often is committed in a wide variety of circumstances. Accordingly, the identification of a customary 'range' of sentencing is fraught with hazard because of the breadth of circumstances in which the offence can be and is committed, with the consequence that a significant number of the cases within any data set are likely to fall outside any identified 'range'. Nevertheless, speaking very generally, sentences imposed for the offence of robbery committed in company often fall within the range of between 2 and 4 years['] imprisonment after taking into account the transitional provisions, although in cases in which the offence is unattended by actual violence sentences tend to be lower. (citations omitted)
[31] Schischka v The State of Western Australia [2015] WASCA 15 [33].
The circumstances of the particularly serious aggravated robbery offence and the respondent's personal circumstances in the present case are noted above. In addition, since being sentenced for the aggravated robbery offence, the respondent has actively and voluntarily engaged in an addiction recovery process program with the Whitehaven Clinic. An interim report by the Program Director dated 27 April 2021 speaks very positively of the respondent's commitment to the program and the progress which he has made within it.
Clearly, a term of immediate imprisonment is the only appropriate sentencing option in this case. Like the sentencing judge, we would allow a discount of 25% under s 9AA of the Sentencing Act for a plea of guilty at the earliest reasonable opportunity. In all the circumstances, leaving aside questions of totality, we would regard a sentence of 3 years 3 months' immediate imprisonment as commensurate with the seriousness of the aggravated robbery offence.
Further, in our view, a new total effective sentence of 9 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case (including those referable to the respondent personally). We would give effect to that conclusion by:
(1)reducing the sentence of immediate imprisonment which we would otherwise impose for the aggravated robbery offence from 3 years 3 months to 2 years 9 months for totality; and
(2)ordering that the new sentence of 2 years 9 months' immediate imprisonment be served cumulatively upon the sentences imposed for the previous offences.
The respondent should remain eligible for parole.
Date when the respondent is eligible for parole
We turn to consider the date on which the respondent will be eligible for parole under the sentence we would impose.
Aggregation of sentences
Each of the sentences for the grievous bodily harm offence, the attempt to pervert the course of justice offence and the aggravated robbery offence are 'fixed terms' and 'parole terms' for the purposes of the Sentencing Act and the Sentence Administration Act.[32]
[32] Sentencing Act, s 85(1); Sentence Administration Act, s 4.
The State referred to the requirement, in s 7(2) of the Sentence Administration Act, that the non-parole periods of 2 or more fixed terms be served before the balance of the parole terms. However, that provision is expressed to operate subject to s 94 of the Sentencing Act.
Section 94(1) of the Sentencing Act provides:
In the case of a prisoner serving 2 or more parole terms -
(a)the time when he or she is eligible to be released on parole; and
(b)the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.
Section 94(3) of the Sentencing Act provides that a parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of s 94(1) unless it is to be served partly concurrently with that other term. Section 94(4) provides that a parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of s 94(1) unless, relevantly, it is to be served concurrently with that other term or partly concurrently with it.
In the present case, the sentences for the grievous bodily harm offence and the attempt to pervert the course of justice offence were imposed at the same time and are to be served cumulatively. The sentence for the aggravated robbery offence was imposed at a different time to the sentences for the grievous bodily harm offence and the attempt to pervert the course of justice offence and is to be served cumulatively. Therefore, the time when the respondent is eligible to be released on parole and his parole period are to be calculated by reference to the aggregate of those three sentences. The aggregate term is 9 years 6 months' imprisonment.
Section 93(1) of the Sentencing Act provides:
Subject to sections 94A, 94 and 95A, a prisoner serving a parole term is eligible to be released on parole —
(a)if the term served is 4 years or less — when he or she has served one half of the term; or
(b)if the term served is more than 4 years — when he or she has served 2 years less than the term.
The aggregate sentence for the grievous bodily harm offence, the attempt to pervert the course of justice offence and the aggravated robbery offence is 9 years 6 months' imprisonment. The respondent will be eligible to be released on parole under s 93(1) of the Sentencing Act 'when he has served' 7 years 6 months of that new aggregate term.
The term imposed by Wager DCJ was backdated to commence on 26 February 2015. The new aggregate term is taken to commence on the same day. Subject to the impact of the respondent's previous release on parole (considered below) the respondent would be eligible to be released on parole in respect of the new aggregate term of 9 years 6 months' imprisonment on 25 August 2022 (ie. 7 years and 6 months after 26 February 2015). Subject to the impact of the respondent's previous release on parole (considered below), the new total effective sentence would end on 25 August 2024.
Impact of previous time spent on parole
It is necessary to consider the impact of the periods which the respondent has spent on parole which was subsequently suspended and cancelled. There were two periods on parole: from 25 November 2019 to 28 April 2020 and from 20 June 2020 to 9 July 2020.
Section 71 of the Sentence Administration Act
Section 71 of the Sentence Administration Act provides:
(1)Subject to subsection (2), if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order —
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term; and
(b)the period (if any) beginning on the day when the order is cancelled and ending on the day when the prisoner concerned is returned to custody does not count as time served in respect of the fixed term.
(2)If an early release order in respect of a prisoner serving a fixed term is suspended and, without the suspension ceasing, is subsequently cancelled, then —
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is suspended counts as time served in respect of the fixed term;
(b)the period (if any) beginning on the day when the order is suspended and ending on the day when the prisoner is returned to custody does not count as time served in respect of the fixed term.
(3)For the purposes of subsection (1), the day when an early release order is cancelled is —
(a)if it is cancelled by a decision of the Board — the day of the decision; or
(b)if it is cancelled by virtue of section 67 —
(i)the day when the offence that resulted in the cancellation was committed; or
(ii)if the CEO cannot ascertain the day when that offence was committed — the latest day on which that offence could have been committed, as determined by the CEO.
(4)For the purposes of subsection (2), the day when an early release order is suspended is the day of the decision to suspend the order.
Period between 21 June 2020 and 9 July 2020
Under s 67(1)(a) of the Sentence Administration Act, if a prisoner, while subject to a parole order, commits an offence and is sentenced to imprisonment for that offence, the parole order is cancelled by virtue of that section. Under s 71(3)(b)(i) of the Sentence Administration Act, the cancellation under s 67 takes effect on the day when the offence was committed. The respondent committed the aggravated robbery offence on 21 June 2020 while subject to a parole order. Once he was convicted and sentenced to imprisonment for that offence, the parole order was automatically and retrospectively cancelled on 21 June 2020.
Under s 71(1)(b) of the Sentence Administration Act, the 18 days between the cancellation of the parole order on 21 June 2020 and the respondent's return to custody on 9 July 2020 did not count as time served in respect of the new aggregate term. As a result, both the parole eligibility date and the end date of the aggregate sentence are extended by a further 18 days.
Period between 25 November 2019 and 28 April 2020
It remains to consider how account is to be taken of the time the respondent spent on parole between 25 November 2019 and 28 April 2020. This 'clean street time', being a total of 156 days, 'counts as time served in respect of the fixed term' pursuant to s 71(1)(a) of the Sentence Administration Act.
Submissions filed by the State appear to accept that this 'clean street time' counts as service of the term for the purposes of calculating the end date of the aggregate sentence. However, those submissions contend that this time, which was not actually spent in custody, does not count as service of the term for the purpose of determining when the respondent is eligible for release on parole for the aggregate sentence under s 93(1)(b) of the Sentencing Act.
We do not accept this submission. The contrary view, which reflects the plain and ordinary meaning of the statutory language, is that 'clean street time' counts as service of the sentence for all purposes under the legislation. Section 93(1)(b) of the Sentencing Act provides for the respondent to be eligible for release on parole 'when he has served' 2 years less than the term. Section 71(1)(a) of the Sentence Administration Act provides for 'clean street time' to count as time served in respect of the fixed term. We see no basis in the statutory language for disregarding the time which s 71(1)(a) provides to count as time served when determining when the respondent has served 2 years less than the term for the purposes of s 93(1)(b) of the Sentencing Act. Under these provisions, 'clean street time' counts as time served both for the purposes of determining the time when the respondent is eligible to be released on parole and the time at which the sentence will expire.
The practical consequence is that the time the respondent actually spent on parole, being the 156 days of 'clean street time', will form part of the respondent's non-parole period of the new total effective sentence. That may be regarded as somewhat anomalous. However, this does not mean that the respondent must be released on parole at his earliest eligibility date, discussed below. It will be a matter for the Prisoners Review Board to determine whether and when the respondent is released on parole once he becomes eligible for parole.
Earliest eligibility date and expiry date of aggregate sentence
This means that the respondent will be eligible for release on parole on the new total effective sentence of 9 years 6 months' imprisonment on 12 September 2022. That is 7 years 6 months after the sentence start date of 26 February 2015, plus the 18 days spent out of custody between 21 June 2020 and 9 July 2020.
The new aggregate sentence will expire on 12 September 2024. That is 9 years 6 months after the sentence start date of 26 February 2015, plus the 18 days spent out of custody between 21 June 2020 and 9 July 2020.
Orders
For the above reasons, we would make the following orders in the appeal:
(1)The appeal is allowed.
(2)The sentence imposed on the respondent on District Court indictment 1526 of 2020 is set aside and a new sentence of 2 years 9 months' immediate imprisonment is imposed.
(3)The new sentence on District Court indictment 1526 of 2020 is to be served cumulatively upon the sentences imposed on District Court indictments 775 of 2015 and 1555 of 2015.
(4)The respondent is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
19 AUGUST 2021
Key Legal Topics
Areas of Law
-
Criminal Law
Legal Concepts
-
Totality Principle
-
Criminal Liability
-
Sentencing
-
Breach of Parole
-
Mens Rea & Intention
7
7
0