The State of Western Australia v O'DRISCOLL
[2022] WASCA 65
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- O'DRISCOLL [2022] WASCA 65
CORAM: BUSS P
MAZZA JA
SMITH J
HEARD: 4 MAY 2022
DELIVERED : 9 JUNE 2022
FILE NO/S: CACR 138 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MATTHEW JOHN O'DRISCOLL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 695 of 2020
Catchwords:
Criminal law - State appeal against sentence - Appellant sentenced to 2 years 6 months' imprisonment for one count of aggravated armed robbery and 12 months' imprisonment, to be served concurrently, for one count of stealing a motor vehicle - Appellant was already serving a total effective sentence of 3 years 6 months' imprisonment for two counts of criminal damage by fire and one count of criminal damage - Whether sentence of 2 years 6 months' imprisonment was manifestly inadequate - Whether overall total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 333(1)(b), s 378, s 392(c), s 444(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | LM Fox SC |
| Respondent | : | S A Auburn |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Pathways |
Case(s) referred to in decision(s):
Francis v The State of Western Australia [2019] WASCA 43
Hayward v The State of Western Australia [2020] WASCA 57
Hiemstra v The State of Western Australia [2021] WASCA 96
Kabambi v The State of Western Australia [2019] WASCA 44
Labrook v The State of Western Australia [2016] WASCA 127
The State of Western Australia v Doodson [2021] WASCA 148
JUDGMENT OF THE COURT:
Background
On 23 July 2021, following a five‑day trial in the District Court before Stewart DCJ, the respondent was convicted of one count of aggravated armed robbery, contrary to s 392(c) of the Criminal Code (WA) (the Code) (count 1), and one count of stealing a motor vehicle, contrary to s 378 of the Code (count 2). The maximum penalties for these offences are life imprisonment and 7 years' imprisonment, respectively.
On 14 September 2021, the respondent was sentenced to 2 years 6 months' imprisonment on count 1 and 12 months' imprisonment on count 2, to be served concurrently. The total effective sentence was 2 years 6 months' imprisonment. The respondent was made eligible for parole.
At the time he was sentenced, the respondent was serving a total effective sentence of 3 years 6 months' immediate imprisonment in respect of three other offences, being two counts of criminal damage by fire, contrary to s 444(1)(a) of the Code, and one count of criminal damage, contrary to s 444(1)(b) of the Code. This sentence had been imposed by Massey DCJ on 24 November 2020. Massey DCJ ordered that the respondent be eligible for parole and that the sentences commence on 30 October 2019.
Accordingly, having regard to the sentences imposed by both Stewart DCJ and Massey DCJ, the respondent has been sentenced to an overall total effective sentence of 6 years' imprisonment with eligibility for parole, commencing on 30 October 2019.
The appeal
The State appeals against the sentences imposed by Stewart DCJ, on two grounds. Ground 1 alleges that the sentence of 2 years 6 months' imprisonment on count 1 is manifestly inadequate. Ground 2 alleges that the imposition of a total effective sentence of 2 years 6 months' imprisonment, to be served cumulatively on the sentence of 3 years 6 months' imprisonment imposed by Massey DCJ, which resulted in an overall total effective sentence of 6 years' imprisonment, infringed the first limb of the totality principle because it failed to reflect the overall criminality of the respondent's offending in its entirety.
On 25 November 2021, Buss P granted leave to appeal on both grounds.
For the reasons that follow, we are of the opinion that both grounds of appeal have been made out and the appeal should be allowed. We would set aside the sentences imposed by Stewart DCJ and resentence the respondent, with the effect that he is now liable to serve an overall total effective sentence of 8 years 6 months' imprisonment, with eligibility for parole, backdated to 30 October 2019.
The facts of the offending as found by Stewart DCJ
There is no challenge to Stewart DCJ's findings as to the facts of counts 1 and 2 .[1]
[1] ts 355 - 356.
On the night of 1 September 2019, the victim, Mr W, went to visit a friend who lived at an address in Katrine Way, Hamersley. A little after 10.30 pm, Mr W left his friend's home and began walking up the driveway to where his vehicle, a Ford utility, was parked. As he did so, he was confronted by the respondent, who was holding a firearm. Mr W described the firearm as a sawn‑off shotgun, but it may have been another kind of firearm. The respondent was aggressive and demanded that Mr W hand over his car keys, saying, 'Give me your keys and your money or I'll shoot you'.
Mr W was shocked and did not immediately comply. The respondent grabbed Mr W by the front of his shirt and tried to drag him towards the road. He kept pointing the gun in Mr W's face, who kept pushing it away. The respondent told Mr W to stop touching the weapon. The respondent then struck Mr W to the side of his ear with the firearm. The respondent then tussled with Mr W. At one point, Mr W was bent over forward with his jacket over his head. The respondent struck him with an object (probably the firearm) on the back of his head. Mr W felt blood running down the side of his face and the back of his neck. While holding the firearm, the respondent obtained a tomahawk from Mr W's vehicle and demanded, 'Give me your keys or else I'm going to shoot you'.
Ultimately, Mr W put his keys on the bonnet of his vehicle. Her Honour described what happened next:
[The appellant] told [Mr W] to fuck off and that is what he did. He left the area and ended up calling a taxi.
Using the keys, the respondent started the vehicle and drove from the area. The vehicle was located the following day, crashed into a tree in a park, with the keys still in the ignition.
Mr W suffered a 3 cm long laceration to the back of his head, which required the insertion of three staples. He also had a small abrasion below his mouth, an abrasion to his left ear and bruising to his left shoulder. The victim impact statement which was provided to the sentencing judge reveals that the offences traumatised Mr W. While he has recovered from his physical injuries, psychologically he has not. As a result of the offences, Mr W has lost his job, has panic attacks and no longer feels safe. He has not been able to find work since the commission of the offence because of anxiety. He feels as though he is a shadow of his former self.
The proceedings before Massey DCJ
The respondent pleaded guilty to the offences before Massey DCJ. His Honour made the following unchallenged findings of fact.[2]
[2] ts 26 - 27.
On 30 October 2019, the respondent attended the carpark of his brother's business premises in Osborne Park. He had with him a hammer and two Molotov cocktails, each made with a beer bottle containing liquid accelerant and a rag protruding from its top. He approached a 2014 Range Rover vehicle owned by a person he did not know. He used the hammer to smash the front passenger side window. The respondent then lit one of the Molotov cocktails and threw it inside the vehicle, causing the interior to catch fire. The fire caused significant damage to the interior and exterior of the vehicle. Massey DCJ described the damage as 'reasonably extensive'.
Next, the respondent approached a Mercedes Benz vehicle owned by his brother's company. The respondent used the hammer to smash the front passenger side window and threw the other Molotov cocktail into the vehicle, causing the interior to catch fire. Massey DCJ described the damage to the interior and exterior of the vehicle as 'significant'.
After setting fire to the two vehicles, the respondent approached the glass‑panelled doors at the front of the nearby office premises. The respondent struck the glass doors several times with the hammer, causing damage to a glass panel. As the respondent's brother locked the glass door from inside the building, he was hit in the face by several shards of glass caused by the respondent striking the door with the hammer. The respondent's brother later attended hospital to have several pieces of glass removed from his face.
Massey DCJ described the offences as serious. He noted that the offences were committed as a result of 'issues' the respondent had with his brother. The respondent damaged two vehicles in the hope that one of them, at least, belonged to his brother.[3]
[3] ts 28.
Massey DCJ found that the offending was aggravated by the fact it was premeditated. It was also motivated by revenge, and involved the use of Molotov cocktails. His Honour, having watched and listened to mobile telephone recordings of the offending, observed that the respondent's actions caused considerable terror to those nearby. His Honour had regard to the injuries sustained by the respondent's brother and the potential for more serious injury as a result of the smashing of glass. Massey DCJ characterised the offending 'as about in the middle of the range for offending of this type, although any offence of arson is very serious'.[4] His Honour observed that the fire which damaged the Range Rover and Mercedes vehicles could have spread to other vehicles in the carpark and it was fortunate that no one, apart from the respondent's brother, was injured.[5]
[4] ts 28.
[5] ts 29.
At the time the respondent was dealt with by Massey DCJ he was 37 years of age. He was 36 years old at the time of the offending. Massey DCJ's description of the respondent's personal circumstances is consistent with that described by Stewart DCJ, which we will describe below.
Massey DCJ took into account as mitigating factors the respondent's pleas of guilty, for which he was given a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), his remorse, the degree of insight that he had developed as to the effects of his offending, and his upbringing.[6]
[6] ts 33 - 34.
Massey DCJ was satisfied that there was a significant need for the sentences he imposed to reflect the objectives of personal and general deterrence.[7]
[7] ts 35.
For each offence of arson the respondent was sentenced to 2 years 6 months' imprisonment and, for the offence of damage, the respondent was sentenced to 8 months' imprisonment. Massey DCJ had regard to the totality principle. He did this by reducing the sentence he would have imposed on one of the arson offences to 12 months' imprisonment. His Honour ordered that the sentences for the arson offences be served cumulatively and that the sentence for the damage offence be served concurrently. Thus, as we have said, Massey DCJ imposed a total effective sentence of 3 years 6 months' imprisonment.[8]
[8] ts 36.
Sentencing remarks - Stewart DCJ
Stewart DCJ, in effect, identified the following aggravating circumstances:[9]
(a)the offending involved a degree of premeditation having regard to the fact that the respondent was already holding the firearm at the time he first engaged Mr W;
(b)Mr W was vulnerable and suffered serious psychological harm;
(c)the respondent armed himself, not only with the firearm, but also with a tomahawk;
(d)the respondent used actual violence against the victim, striking him to a vulnerable part of his body, his head, first to the left ear and then to the back of his head, injuring him;
(e)the offending conduct was persistent, lasting, on Mr W's estimate, about 7 or 8 minutes; and
(f)the respondent left the scene without, in any way, assisting Mr W.
[9] ts 357.
Her Honour said that there was nothing in the circumstances surrounding the commission of the offences that mitigated the seriousness of the respondent's conduct. However, her Honour gave the respondent credit for facilitating the efficient conduct of the trial by making admissions pursuant to s 32 of the Evidence Act 1906 (WA) and she took into account 'the disadvantage and trauma' suffered by the respondent in his childhood.
Her Honour found that the respondent was not remorseful for what he had done and did not accept responsibility for his offending.[10]
[10] ts 358.
Her Honour expressly had regard to the operation of the totality principle both in respect of the offences before her and the effect of the total effective sentence which had been imposed by Massey DCJ. On count 1, her Honour imposed a sentence of 2 years 6 months' imprisonment, which she reduced from 5 years' imprisonment to reflect the totality principle. Her Honour sentenced the respondent to 12 months' imprisonment on count 2 and ordered that this sentence be served concurrently with the sentence for the aggravated armed robbery to further reflect the totality principle. Stewart DCJ ordered that the total effective sentence of 2 years 6 months' imprisonment be served cumulatively upon the term imposed by Massey DCJ. The respondent was made eligible for parole.
The respondent's personal circumstances
At the time he committed the offences dealt with by Stewart DCJ and Massey DCJ, the respondent was 36 years of age. He has an older brother and an identical twin brother. His upbringing was marred by tragedy. When the respondent was 12 years of age his father completely disappeared while on holiday in India. This loss affected the respondent significantly. The respondent was also the victim of sexual abuse.[11]
[11] ts 358 - 359.
In high school the respondent engaged in destructive behaviours. He left school in year 11 and since that time he has struggled to hold down a job.[12]
[12] ts 359.
The respondent had been in three significant personal relationships as an adult. He has a daughter who was 17 years old at the time of sentencing. At that time he had been with his current partner for eight years. She remains supportive of him.
The respondent has a history of substance abuse which commenced with alcohol and cannabis at the age of 14 years and progressed to the use of amphetamines at the age of 17 years. Despite previous attempts at intervention, the respondent's amphetamine use has persisted over time. While the respondent claims to have ceased using amphetamine, his criminal history suggests otherwise.
The respondent has a long criminal history which, as her Honour noted, features convictions for possession of prohibited drugs, unlawful possession of weapons and traffic offences. He has also been convicted of assault and burglary offences.[13]
[13] ts 360.
The respondent has previously been sentenced to orders involving community supervision which he has not complied with. He has served a number of terms of imprisonment since 2005, including for possession of prohibited drugs with intent to sell or supply in 2011 (3 years' imprisonment), traffic offences in 2015 (18 months' imprisonment) and further traffic offences in 2017 (19 months' imprisonment).
Relevant general principles
The grounds of appeal allege implied error. The relevant general principles are well established and were recently stated in Kabambi v The State of Western Australia.[14]It is unnecessary to repeat them.
[14] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The State's submissions
On behalf of the State, it was acknowledged that Stewart DCJ did not fall into error merely by reducing, for totality, the sentence on count 1. However, it was submitted that the sentence her Honour would have imposed but for the operation of the totality principle on count 1, namely 5 years' imprisonment, was, if not itself manifestly inadequate, at least, very lenient. The State submitted that to reduce the sentence on count 1 to 2 years 6 months' imprisonment resulted in a plainly inadequate sentence for that offence. In other words, while her Honour was entitled to reduce, to some extent, the sentence to be imposed on count 1 for reasons of totality, the reduction by 50% was too great and led to the imposition of a manifestly inadequate sentence.[15]
[15] Appeal ts 2 - 3.
Senior counsel for the State acknowledged the statement made in Hiemstra v The State of Western Australia,[16] that a sentence of 5 to 6 years' imprisonment (before having regard to any aggravating or mitigating factors) is not unusual for a single count of armed robbery, contrary to s 392 of the Code. Senior counsel also acknowledged that a sentence outside this range will not necessarily be manifestly excessive or inadequate, having regard to the particular circumstances of the offending and offenders.
[16] Hiemstra v The State of Western Australia [2021] WASCA 96 [134].
It was submitted by the State that having regard to the serious nature of the offence, bearing in mind the aggravating circumstances identified by her Honour and the modest mitigation that was available to the respondent, the sentence of 2 years 6 months' imprisonment on count 1 was manifestly inadequate, even when regard is had to the effect of the totality principle.
Further, it was submitted that an overall total effective sentence of 6 years' imprisonment for the totality of the respondent's offending did not adequately reflect its overall seriousness. The State submitted that when regard was had to the seriousness of both instances of offending, the overall total effective sentence of 6 years' imprisonment did not properly reflect the respondent's overall criminality.
The respondent's submissions
Counsel for the respondent relied on the written submissions that had been filed and declined to make oral submissions on behalf of the respondent.
As to ground 1, in the written submissions it was accepted that the individual sentence on count 1 was 'on the low side', but was not so low as to be plainly unjust or unreasonable.[17] As to ground 2, the respondent submitted that there was no infringement of the first limb of the totality principle because the overall total effective sentence of 6 years' imprisonment was a proper reflection of the respondent's overall criminality.
[17] WAB 29.
Disposition
We will deal first with ground 1.
We have already set out the maximum penalty for the offence of aggravated armed robbery.
The sentences customarily imposed for armed robbery have recently been discussed by this court in Hayward v The State of Western Australia[18] and in Hiemstra.[19]
[18] Hayward v The State of Western Australia [2020] WASCA 57 [35] ‑ [44].
[19] Hiemstra [133], [134].
In Hayward, this court acknowledged that, in numerous cases since 2005, it has been stated that the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, was 4 to 6 years' imprisonment. In Hiemstra, it was said that it is not unusual for a court to impose a sentence of 5 to 6 years' imprisonment after trial for a single count of armed robbery. Of course, a sentence outside that range will not necessarily be manifestly inadequate (or manifestly excessive). The range of sentences imposed in the past serves as a yardstick, but does not define the possible range of sentences to be imposed in a particular case.
The facts of count 1 reveal a particularly serious example of aggravated armed robbery. This conclusion is borne out by a consideration of the combined effect of the aggravating features described in [24] above. The respondent used a firearm and later brandished a tomahawk to steal Mr W's motor vehicle. He pointed the firearm at the victim's head and threatened to shoot him, terrifying the victim. He then struck Mr W to the head with the weapon, causing him to suffer a head injury. Eventually, the respondent obtained the car keys, drove off in the vehicle and later damaged it. The offence was prolonged and has left Mr W with serious and ongoing psychological consequences.
Her Honour recognised, as mitigating factors, the adverse circumstances of the respondent's childhood and his cooperation in the conduct of the trial. The respondent had no other mitigation available to him. The respondent did not have the advantage of a plea of guilty. He was not youthful, nor was he remorseful for what he had done. He did not accept responsibility for his offending. As the criminal history reveals, the respondent is not a person of prior good character. The respondent's criminal history is not an aggravating factor, but its length, the nature of the offending, and its persistence underscore the need for the sentence to properly reflect the sentencing objectives of personal deterrence and public protection.
Her Honour stated that on count 1, but for the totality principle, she would have imposed a sentence of 5 years' imprisonment. Instead, in order to reflect the fact that the respondent was already serving the term of imprisonment imposed upon him by Massey DCJ, she reduced the term to 2 years 6 months' imprisonment. Her Honour was correct to have regard to the totality principle in arriving at an appropriate sentence for count 1. Accordingly, in our consideration of ground 1, we must consider whether the proper application of the totality principle provides a satisfactory explanation for the imposition of what might otherwise be regarded as an unreasonably low sentence for the offence.[20]
[20] Francis v The State of Western Australia [2019] WASCA 43 [82]; The State of Western Australia v Doodson [2021] WASCA 148 [46].
In our opinion, the proper application of the totality principle does not provide a satisfactory explanation for the imposition of a sentence of 2 years 6 months' imprisonment on count 1. Having regard to all of the circumstances of the case, the sentence of 5 years' imprisonment her Honour would have imposed but for the totality principle was, at least, lenient. But to reduce that sentence by 50% for totality was too great a discount for this purpose and has resulted in the imposition of a manifestly inadequate sentence for the offence. Ground 1 is made out.
We now turn to ground 2.
The totality principle applies in relation to a sentence which the offender is serving at the time of sentencing for another offence.[21]
[21] Labrook v The State of Western Australia [2016] WASCA 127 [33] ‑ [40].
The offences dealt with by Massey DCJ were serious. They involved offending committed at a separate time and in different circumstances to that before her Honour. Stewart DCJ was, in the circumstances, obliged to impose a total effective sentence on counts 1 and 2 that was cumulative on the sentences imposed by Massey DCJ. In doing so, her Honour was obliged to ensure that the overall total effective sentence properly reflected the total criminality of all of the offences committed by the respondent, including those dealt with by Massey DCJ.
As we have said, the aggravated armed robbery offence was a particularly serious example of its type. The sentence imposed by her Honour was, as we have found, manifestly inadequate. When this offence is considered, along with all of the respondent's other offending, the total effective sentence of 6 years' imprisonment does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all matters in mitigation and all relevant sentencing principles. In our opinion, an overall total effective sentence of only 6 years' imprisonment for all of the respondent's offending resulted in an overall total effective sentence which was unreasonable or plainly unjust. Ground 2 has been made out.
The residual discretion
The respondent expressly acknowledged in his written submissions that there was no reason to exercise the residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The residual discretion is a discretion not to interfere with the primary judge's exercise of the sentencing discretion, in the context of a State appeal, even though appellable error has been established.[22] Of course, it is not for the respondent to a State appeal to establish that the residual discretion should be exercised in their favour. It is for the State to negative any reason why the residual discretion of this court should be exercised.
[22] Doodson [58].
The residual discretion should not be exercised in this case because the intervention of this court is required to maintain proper standards of sentencing for serious offences of aggravated armed robbery and to maintain proper standards in relation to the application of the totality principle for serious and discrete multiple offences.
Resentencing
This court has all the material necessary to resentence the respondent for the offences that were before Stewart DCJ. In respect of count 1, having regard to the circumstances of the offending and the mitigating circumstances, we would have, but for totality, imposed a sentence of 6 years 6 months' imprisonment for count 1. However, having regard to totality, we would reduce this sentence to 5 years' imprisonment. On count 2, we would impose a sentence of 18 months' imprisonment. As the offences were committed as part of one transaction, and to avoid any perception of double punishment (even though the aggravated armed robbery offence related to the car keys and not the car), we would order that the sentences on counts 1 and 2 be served concurrently. Thus, we would impose a new total effective sentence for counts 1 and 2 of 5 years' imprisonment.
We would order that this sentence be served cumulatively upon the sentences imposed by Massey DCJ, with the result that there should be a new overall total effective sentence of 8 years 6 months' imprisonment. In our opinion, this is an appropriate reflection of the respondent's overall offending and the mitigation that was properly available to him. We would order that the respondent be eligible for parole and that the new overall total effective sentence be backdated to 30 October 2019.
Conclusion and orders
The grounds of appeal have been made out and the State's appeal must be allowed. The orders we would make are as follows:
(1)The appeal is allowed.
(2)The sentences imposed by Stewart DCJ are set aside and, in substitution, the respondent is sentenced as follows:
(a)on count 1: 5 years' imprisonment;
(b)on count 2: 18 months' imprisonment.
(3)These sentences are to be served concurrently with each other, but cumulatively on the sentences imposed by Massey DCJ.
(4)The respondent remains eligible for parole.
(5)For the avoidance of doubt, the new overall total effective sentence is 8 years 6 months' imprisonment, with eligibility for parole, backdated to 30 October 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
9 JUNE 2022
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