The State of Western Australia v Wells
[2005] WASCA 23
•23 FEBRUARY 2005
THE STATE OF WESTERN AUSTRALIA -v- WELLS [2005] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 23 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:188/2004 | 4 FEBRUARY 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 23/02/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA STEVEN WELLS |
Catchwords: | Criminal law and procedure Sentencing Armed Robbery Whether noncustodial sentence appropriate Turns on own facts |
Legislation: | Nil |
Case References: | Miles v The Queen (1997) 17 WAR 518 R v Shaharuddin [1999] WASCA 229 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- WELLS [2005] WASCA 23 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
STEVEN WELLS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN J
File No : INS 185 of 2004
Catchwords:
Criminal law and procedure - Sentencing - Armed Robbery - Whether noncustodial sentence appropriate - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr D Dempster
Respondent : In person
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : In person
Case(s) referred to in judgment(s):
Miles v The Queen (1997) 17 WAR 518
R v Shaharuddin [1999] WASCA 229
Case(s) also cited:
Nil
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1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I agree with it and there is nothing I wish to add, save to say that the respondent should be made eligible for parole.
2 WHEELER JA: On 1 November 2004, the respondent was convicted on his own confession of one count of armed robbery with violence in company. The offence took place on 18 July 2004 at Kalgoorlie. The respondent was placed on an intensive supervision order for a period of 18 months, with the requirement that he complete 50 hours of community work and be subject to a 3-month curfew. He was also resentenced for an offence of disorderly conduct, for which a 6-month conditional release order had initially been imposed, by way of a further 3-month conditional release order for that offence.
3 The State appeals both sentences, although the focus of the appeal is really the sentence in respect of the aggravated armed robbery. In relation to that offence, it is contended that an immediate term of imprisonment was required, having regard to the circumstances of the offence and the respondent's role in it. It is also submitted that his Honour erred in law in not taking sufficient account of the need for parity of sentencing of the respondent with the sentence imposed on a co-offender, one Banbury. In my view, the appeal should succeed on the first of the grounds to which I have referred, and I now turn to that issue.
4 It was observed in Miles v The Queen (1997) 17 WAR 518 that, by 1997, the offence of robbery had become significantly more prevalent. Sentences had therefore been "firmed up" so that, at the date of Miles, the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, would be from 6 to 9 years (per Malcolm CJ at 521). Since the Sentencing Legislation Amendment and Repeal Act 2003 (WA), that range would, of course, be from 4 to 6 years.
5 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.
6 In the present case, there were very powerful mitigating circumstances. In particular, there was the offender's youth. At the time
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- of the offence, he was 18 years and 2 months of age. While he had a record of offending in the Children's Court, there were no prior offences of violence, and his record was not a particularly lengthy one. He had not previously been sentenced to imprisonment and, at the time he came to be sentenced for this matter, he had spent some 3 months in custody in relation to this offence. The pre-sentence report revealed that his previous response to community supervision had been mixed, he having successfully completed four orders and reoffended during the course of three. His offending was attributed to alcohol use. His father had died while he was in primary school and his mother had the chaotic lifestyle of an alcoholic. He did have some employment history and positive short-term goals involving employment and sport. He was remorseful and had entered a plea of guilty on the fast-track system.
7 However, the offence was a serious one of its kind. On the evening of the offence, the respondent and three others were in a street in Kalgoorlie, one of those others being Banbury. Banbury suggested that the group should rob someone to get money. The complainant was seen leaving a tavern, entering a pizza bar, and purchasing a pizza. The respondent and his co-accused followed the complainant. Banbury first assaulted the complainant by kicking his leg, hoping to trip him over, and the respondent then took a wooden fence picket, which was apparently lying nearby, and struck the complainant on the rear of his left leg, just above the knee. That blow was struck with such force that the picket broke.
8 Banbury then punched the complainant several times to the head and face and the complainant dropped the pizza. One of the offenders then stole the pizza. The complainant backed away, but the group followed him and the respondent again struck the complainant on the left arm with a piece of wood. In the end, the complainant successfully defended himself and the group of youths ran off. However, the complainant's arm remained painful for some time afterwards. In addition, his leg was swollen where he was first attacked and it was obviously painful for him in the area of his face where he had been punched.
9 To summarise, this was an offence carried out with some - relatively minor - degree of premeditation and planning. The respondent was not the initiator of the plan, but was a willing participant in it. He was a member of a group which attacked a single person; the attack was persisted in over time while the victim attempted to defend himself; and the respondent was the person who wielded the wooden picket on two occasions, at least one of which involved considerable force.
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10 It is, of course, open to a sentencing Judge to impose a non-custodial sentence even in respect of an offence of armed robbery. In 1999, statistics indicated that a non-custodial sentence was imposed in about 7 to 10 per cent of such cases: R v Shaharuddin [1999] WASCA 229 at [13] per Malcolm CJ. More recently, it appears that by 2002 approximately 20 per cent of robberies received a non-custodial disposition: UWA Crime Research Centre "Crime and Justice Statistics for Western Australia - 2002", table VII page 73. However, it should be noted that it is not possible in that figure to distinguish between the various categories of robberies. One would expect a non-custodial disposition in the case of aggravated armed robbery to be relatively rare.
11 In the case of an armed robbery in company, where an offender personally attacks the victim with a weapon in a persistent manner, only a sentence of immediate imprisonment would be appropriate, in the absence of very exceptional circumstances. While the personal circumstances of the respondent - and particularly his youth - were significantly mitigating, they cannot, in my view, be said to be so exceptional as to justify the imposition of a non-custodial sentence. It is my view that his Honour fell into error in imposing a non-custodial disposition.
12 Although the matter was not put in this way by the State, it appears to me that one can discern the reason for his Honour's error in the remarks which he addressed to the respondent at page 30 of the appeal book. His Honour said:
"Obviously I have to seriously consider imprisonment. If you are in gaol, you could get some counselling about the problem you have with drink. [His Honour then went on to consider Banbury's sentence].
Other options which I have considered are a suspended sentence but I rule that out because you will get no counselling at all if that were to happen. Another alternative is an intensive supervision order which, if imposed, would require you to get treatment and put you under some supervision."
13 While the choice of a disposition which would facilitate the respondent's rehabilitation was obviously desirable if that could be achieved, it is my view that, at the time at which he came to consider the various alternatives, his Honour's understandable preoccupation with rehabilitation led him to overlook the fact that the objective gravity of the offence was such as to require a term of imprisonment.
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14 For the reasons I have outlined, it is my view that the sentence imposed by his Honour should be set aside and that this Court should resentence the respondent.
15 In considering what sentence should be imposed upon the respondent, it is necessary to take account of all the mitigating factors I have already mentioned. It is also necessary to take account of the element of "double jeopardy" which arises on any State appeal.
16 It is necessary also to consider questions of parity between the sentence imposed upon the respondent and that imposed upon Banbury of 18 months' detention with supervised release eligibility. There was but 5 months in age between the respondent and Banbury, so that, although Banbury was subject to the different regime applicable to juveniles, there should be some degree of proportion between the sentences imposed upon each of them. Banbury had entered a guilty plea. Banbury's record was a little worse than that of the respondent, since he had been convicted of some offences involving a minor degree of violence. Although Banbury did not himself wield the fence picket, it was, on the other hand, Banbury's plan which set in train the whole series of events, and Banbury was a full participant offering violence to the complainant.
17 Having regard to all the circumstances I have mentioned, I would set aside the intensive supervision order and would sentence the respondent to a term of 12 months' imprisonment, backdated by 3 months to take account of the time which he spent in custody prior to sentence.
18 As to the appeal in relation to the resentencing of the respondent for disorderly conduct, the State did not develop its submissions in relation to that matter. The only written submission on the point reads:
"This ground rests entirely on the Court's view as to grounds 1 & 2. The penalty for the offence of disorderly conduct is a fine only (s 44 Sentencing Act1995)."
19 It is not clear to me what error it is alleged that the learned sentencing Judge made. If he had imposed a sentence of imprisonment in respect of the armed robbery, then there would, of course, have been little practical point in making a community release order in respect of the disorderly conduct.
20 The point has now been reached, however, when the 3-month period of the community release order has expired. In view of that fact, it would seem to me inappropriate to impose any further or other sentence in
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- respect of it. That is particularly so, since it appears from the statement of material facts that the circumstances of the disorderly conduct offence were trivial. All that is asserted is that the respondent was a member of a group of people, who police asked to disperse. Other members of the group left, but the respondent failed to do so. When asked for an explanation, he said that he had not heard the request.
21 ROBERTS-SMITH JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing further to add, save to say that the respondent should be made eligible for parole.
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