The State of Western Australia v Slater - [2023] WASCA 105

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SLATER [2023] WASCA 105
CORAM:   MAZZA JA
HALL JA
VANDONGEN JA

HEARD:   19 JUNE 2023
DELIVERED          :   19 JUNE 2023
PUBLISHED           :   5 JULY 2023
FILE NO/S:   CACR 38 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

SOLOMON ROBERT SLATER
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
File Number            :   BUN 71 of 2022

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his plea of guilty to one count of armed robbery - Sentenced to 2 years' immediate imprisonment - Whether sentence manifestly inadequate

Legislation:

Criminal Code (WA), s 392
Sentence Act 1995 (WA), s 9AA
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr R F Owen
Respondent	:	Mr D Hunter & Mr R W M Shea

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Fawcus v The State of Western Australia [2013] WASCA 86
Hayward v The State of Western Australia [2020] WASCA 57
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Krencej v The State of Western Australia [2019] WASCA 82
Miles v The Queen (1997) 17 WAR 518
Norman v The Queen (Unreported, Court of Criminal Appeal, WA, Library No 7489, 1 February 1989)
Satonick v The State of Western Australia [2008] WASCA 145
The State of Western Australia v Barton [2008] WASCA 152
The State of Western Australia v Boundry [2013] WASCA 46
The State of Western Australia v Drew [2012] WASCA 86
The State of Western Australia v Wells [2005] WASCA 23

REASONS OF THE COURT:

On 19 June 2023, we dismissed this State appeal against sentence. We stated that the reasons of the court would be published at a later date. These are our reasons.
The respondent was charged on indictment in the District Court that on 6 March 2022, at Eaton, he stole, with violence, groceries the property of Woolworths (WA) Pty Ltd, while armed with an offensive instrument, namely a syringe, contrary to s 392 of the Criminal Code (WA). This offence carries a maximum penalty of life imprisonment.
On 27 March 2023, the respondent was convicted on his plea of guilty of the charged offence. He was sentenced by Vernon DCJ to 2 years' immediate imprisonment with eligibility for parole, backdated to commence on 7 March 2022.
The State appeals against the sentence on a single ground, which alleges that the sentence was manifestly inadequate. Leave to appeal on this ground has been granted. As the respondent has served the non‑parole period of the sentence, the State's appeal was heard urgently.

The facts

The facts may be summarised as follows.
On 6 March 2022, the respondent, who was, at the time, in the grip of a methylamphetamine addiction and had limited money to buy food, placed about $100 worth of groceries in a shopping trolley at a Woolworths store in Eaton. He then proceeded to leave the store via the entry, without paying for the items he had chosen. The store manager confronted the respondent as he was leaving. The respondent pushed the trolley away and allegedly said, 'Fuck off mate. I will smash you'. The respondent did not remember saying these words, but it is clear enough from the CCTV footage of the incident (which we have viewed) that he said something to the store manager. The respondent then shoved the manager backwards with his hands and tried to retrieve the trolley, but the store manager grabbed the trolley before the respondent could retrieve it. At this point, the respondent pulled a capped syringe out of his pocket and allegedly said, 'Fuck off. I will stick you', four or five times. The respondent denied making these threats.
As found by the sentencing judge, the respondent repeatedly moved towards the store manager, walking quite quickly and with quite a degree of aggression, while holding the capped syringe in his hand which was down by his side. It is evident from the CCTV footage that, at all times, the capped syringe remained at the respondent's side and that he did not uncap it, hold it up or in any other way brandish it towards the store manager. The store manager then released the trolley, and the respondent's partner took it away. The store manager began to record the respondent on his mobile telephone. Upon seeing this, the respondent walked aggressively towards the store manager a number of times. The entire incident lasted about a minute.[1]
[1] ts 24 - 26.
The sentencing judge made the following findings about the circumstances and seriousness of the offending:
(1)It did not matter whether or not the respondent said the threatening words to the store manager, as the respondent had physically assaulted the store manager by shoving him backwards and threatened him with the syringe.[2]
(2)While the syringe was capped and not large, it was a serious weapon because it created 'the fear of a serious blood‑borne infection'.[3]
(3)It was not at the most serious end of offending because the value of what was stolen was low, and the violence used and the level of threat was towards, although not at, the lower end. Moreover, the victim was unhurt.[4]
(4)The type of offending engaged in by the respondent was 'too common in … stores'.[5]
(5)The respondent showed a degree of persistence in his conduct in that he acted, and continued to act, aggressively towards the store manager, even after the store manager let go of the trolley.
(6)At the time of the offence, the respondent was on a community‑based order.[6]
(7)Although the respondent needed food and was using amphetamines which badly affected his judgment, it was no excuse for the offending.[7]
[2] ts 24.
[3] ts 24.
[4] ts 25.
[5] ts 25.
[6] ts 25.
[7] ts 25.

The respondent's personal circumstances

The respondent committed the offence the day before his 25^th birthday. He was 26 years old at the time of sentencing. The respondent grew up in Brookton, in what was described as a 'Christian family'. His parents and grandparents remain supportive of him.
The respondent completed his schooling up to year 7, but left after being the victim of an assault by an employee of the school he was attending. Since leaving school, he has done a variety of farm jobs and has been employed in the construction industry. At the time of the offending he was unemployed.
Besides his illicit drug use, the respondent is in good health. He began using cannabis at the age of 13, and was introduced to methylamphetamine at the same age. Until his remand in custody, he was using methylamphetamine on a daily basis, apart from a period when his first daughter was born.
The respondent has been in a relationship with his current partner since he was 16 years old. They have four children aged between 4 and 8 years at the time of sentencing.
In the year or so that he was in custody prior to being sentenced, the respondent has undertaken a number of vocational and rehabilitation programs. The respondent has completed a Certificate I in general education, and has participated in a parenting program. He has attended weekly Narcotics Anonymous meetings, and has participated in the Journey Ways program. While in custody, the respondent became a peer support prisoner mentor.
The sentencing judge received letters of support from the chaplain at Bunbury Regional Prison, a family friend, his grandmother and his father.
The respondent has a reasonably lengthy criminal history as an adult, which largely reflects his drug addiction. He has been convicted on numerous occasions for possession of drugs. He has also been convicted of weapons and ammunition offences, including being armed in public (in 2019). In 2018, he was convicted of aggravated burglary and placed on an intensive supervision order. However, other than the offence the subject of this appeal, the respondent had never been sentenced to a term of imprisonment. In 2022, he was sentenced to an 8‑month community‑based order for criminal damage. He was subject to this order at the time of the commission of the armed robbery.

The sentencing remarks

After setting out the facts of the offending and the respondent's personal circumstances, her Honour identified a number of mitigating factors, including the respondent's:
(a)plea of guilty for which her Honour gave a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA);
(b)relative youth;
(c)genuine remorse; and
(d)commitment towards his rehabilitation.
As to the last matter, it is clear from the sentencing remarks that her Honour accepted, based on the evidence which had been provided to her, including a letter sent to her by the respondent, that she took a favourable view of the respondent's prospects of rehabilitation, notwithstanding his prior criminal history.
Her Honour said that a very important sentencing consideration was general deterrence. Her Honour concluded that the only appropriate sentence was a term of immediate imprisonment 'given the seriousness of [the respondent's] conduct and the need for deterrence'.[8]
[8] ts 29.

The appellant's submissions

It was submitted on behalf of the appellant that the sentence of 2 years' immediate imprisonment was so inadequate as to manifest error. It was argued that this court's intervention was required in the present case in order to uphold appropriate sentencing standards for the offence of armed robbery. The State pointed to a number of sentencing cases decided by this court, including Miles v The Queen,[9] which show that the range of 4 ‑ 6 years' imprisonment for a single offence of armed robbery remains applicable, and that the outcome in the present case is so far below that range as to manifest error. This is because the appellant submits that there is nothing in the respondent's personal circumstances or matters in mitigation which would justify a sentence so far below the range.
[9] Miles v The Queen (1997) 17 WAR 518.

The respondent's submissions

It was submitted on behalf of the respondent that having regard to all of the circumstances, particularly her Honour's characterisation of the offence as 'not at the most serious end of the offending' and the mitigating factors, the sentence that was imposed was not manifestly inadequate. It was submitted by the respondent that there were a number of comparable cases which showed that the sentence imposed by her Honour was within the range of a sound exercise of the sentencing discretion.

Legal principles

The ground of appeal asserts an implied, rather than an express, error. In other words, the State asserts that the sentence imposed upon the respondent was so unreasonable or unjust that this court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
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 on the scale of seriousness of crimes of that type, and the offender's personal circumstances.[10]
[10] Krencej v The State of Western Australia [2019] WASCA 82 [55].

Disposition

As already mentioned, the maximum penalty for an offence of armed robbery contrary to s 392 of the Criminal Code is life imprisonment.

Customary sentencing standards

The range of sentences customarily imposed 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 are the unifying principles which sentences imposed in comparable cases reveal and reflect.[11]
[11] Krencej [55].
The standards of sentencing customarily imposed for single offences of armed robbery were recently discussed by this court in Hayward v The State of Western Australia.[12] We adopt, without repeating, that analysis.
[12] Hayward v The State of Western Australia [2020] WASCA 57 [35] ‑ [45].
As we have already noted, a central plank of the appellant's case was that the sentence imposed upon the respondent fell outside the range of 4 ‑ 6 years' imprisonment. In assessing the merit of this submission, it is necessary to say something about how this range came about, beginning with Miles.
Miles was decided in 1997, at a time when armed robbery offences were prevalent. The offender in that case committed two armed robberies in company with a juvenile offender. The first armed robbery was on a delicatessen. The offender brandished a blood‑filled syringe and demanded the contents of the till. The second armed robbery occurred some hours later. The victim of this offence was a taxi driver. The juvenile offender demanded money from the taxi driver with the threat that his co‑offender would stick 'a dirty pick' into the victim's neck if the demand was not met.
In his reasons, Malcolm CJ referred to the statement he made some years earlier in Norman v The Queen[13] in which he said that 'for what one might describe as the conventional armed robbery of a bank or similar premises, the range of sentences which has been imposed in the recent past would seem to be between five and seven years or upwards, depending upon the seriousness of the offence'. His Honour observed that since Norman, sentences had firmed up as a result of the increasing prevalence of the offence of armed robbery. His Honour then said:[14]
The offence of armed robbery has become significantly more prevalent since 1989 and sentences have been firmed up in that period. At present, the range of sentences commonly imposed for a single offence, depending upon the circumstances, would be from six to nine years.
[13] Norman v The Queen (Unreported, Court of Criminal Appeal, WA, Library No 7489, 1 February 1989) 3.
[14] Miles (521).
This statement, made in the context of what had been said in Norman, concerns the range of sentences imposed for what Malcolm CJ described as 'conventional armed robbery of a bank or similar premises'.[15]
[15] Miles (521), see also (522) (White J).
In The State of Western Australia v Wells,[16] Wheeler JA (with whom Steytler P & Roberts‑Smith JA materially agreed) referred to the decision in Miles. Her Honour observed that the range of 6 ‑ 9 years referred to by Malcolm CJ would, since the Sentencing Legislation Amendment and Repeal Act 2003 (WA), convert to 4 ‑ 6 years' imprisonment. Her Honour then said:[17]
That would generally be the sentence imposed without having regard to matters of mitigation. It would, of course, fall to be reduced if there had been a plea of guilty under the fast‑track system, as here. It would also fall to be reduced by reason of relevant mitigating circumstances, although, as Malcolm CJ observed in Miles (at 521), generally greater weight is given to the requirement of deterrence and less to circumstances personal to the offender in cases of armed robbery.
[16] The State of Western Australia v Wells [2005] WASCA 23 [4].
[17] Wells [5].
As this court recently observed in Hayward, the range of 4 ‑ 6 years referred to by Wheeler JA in Wells, and referred to in this case as the 'Miles range', has been referred to in numerous cases since 2005. However, as this court recognised in Hayward, and consistently with the principles referred to above at [21] ‑ [22], this range, while well recognised, does not lead to a rigid approach to the sentencing of offenders for armed robbery.[18] This is well illustrated by the outcomes in such cases as Satonick v The State of Western Australia;[19] The State of Western Australia v Barton;[20] The State of Western Australia v Drew;[21] The State of Western Australia v Boundry;[22] and Fawcus v The State of Western Australia.[23]
[18] Hayward [37].
[19] Satonick v The State of Western Australia [2008] WASCA 145.
[20] The State of Western Australia v Barton [2008] WASCA 152.
[21] The State of Western Australia v Drew [2012] WASCA 86.
[22] The State of Western Australia v Boundry [2013] WASCA 46.
[23] Fawcus v The State of Western Australia [2013] WASCA 86.
As the High Court emphasised in Hili v The Queen,[24] the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, sentence. It cannot be overlooked that the administration of criminal law involves individualised justice.[25] Each offender must be sentenced according to the facts and circumstances of their particular case.[26] Armed robbery is an offence where there is a great variation in the circumstances of offenders and the offending itself.[27]
[24] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].
[25] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 494 ‑ 495.
[26] Hayward [39].
[27] Hayward [39].
There is no doubt that the offence committed by the respondent was serious. In our opinion, having regard to the wide range of circumstances in which the offence is committed, her Honour's characterisation of it as being not at the most serious end of the offending of this type is justified. Although the victim was shoved at one point, he was not physically injured. The respondent produced the syringe from his pocket, but did not brandish it. The syringe remained capped at all times and, thus, the risk of the victim being injured or suffering a serious blood‑borne infection was nowhere near as great as in other cases such as Miles. The offence was not premeditated and although somewhat persistent, lasted about a minute.
We have already described the mitigating factors found by the sentencing judge. Her Honour took into account the respondent's early plea of guilty, his relative youth, his remorse, and the positive steps that he had taken towards his rehabilitation. It appears from the materials that were provided to the sentencing judge that the respondent used the year or so he was in custody to address his drug addiction and to improve his vocational and parenting skills.
The circumstances of the offending and offender were such that an immediate term of imprisonment was inevitable. However, the mitigating circumstances were sufficient to justify a reduction in the term of immediate imprisonment that might otherwise have been imposed. While the sentence of 2 years' immediate imprisonment was lenient, it was not manifestly inadequate. Accordingly, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
5 JULY 2023