TRKKH v The State of Western Australia
[2011] WASCA 36
•22 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRKKH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 36
CORAM: McLURE P
BUSS JA
HEARD: 28 JANUARY 2011
DELIVERED : 22 FEBRUARY 2011
FILE NO/S: CACR 176 of 2010
BETWEEN: TRKKH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :CC 4048 of 2010, CC 4049 of 2010
Catchwords:
Criminal law - Appeal against sentence by offender - Aggravated armed assault with intent to rob - Two years and 6 months' immediate imprisonment - Appellant aged 17 at the time of offending and 18 when sentenced - Significant prior record of offending - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Code (WA), s 393
Young Offenders Act 1994 (WA), s 50B(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted, on his pleas of guilty, in the Children's Court of Western Australia on one count of aggravated armed assault with intent to rob, contrary to s 393 of the Criminal Code (WA) (the Code) and one count of common assault, contrary to s 313 of the Code.
On 29 September 2010, Judge Scott sentenced the appellant to 2 years and 6 months' immediate imprisonment for the aggravated armed assault with intent to rob and 2 months' immediate imprisonment for the common assault. His Honour ordered that the sentences be served concurrently and that they be back‑dated to commence on 8 July 2010. A parole eligibility order was made.
The appellant has applied to this court for leave to appeal against the sentence imposed for the offence of aggravated armed assault with intent to rob.
The material facts and circumstances of the offending
On 5 July 2010, at about 8.00 pm, the appellant, his co‑accused and another individual were in Balcatta near the Balcatta Mini Mart. They had previously discussed a plan to bash the proprietor of the store and commit a robbery. They knew that the proprietor was an elderly Asian male. At about 8.00 pm, the three assailants discussed again the proposed offending. At about 8.40 pm, the appellant disguised his appearance by placing a black hood over his head and covering his face with two black bandanas and dark sunglasses. He armed himself with a metal baseball bat. The co‑accused also donned a disguise, and armed himself with a metal pole, being a shopping trolley handle.
The appellant and his co‑accused then approached the Balcatta Mini Mart. The other individual acted as a lookout. Shortly afterwards, the lookout signalled to the appellant and his co‑accused that the area was clear of passers‑by. The appellant then entered the Balcatta Mini Mart and assaulted the 58‑year‑old victim. The appellant struck the victim several times to the rear of his skull with the baseball bat. The victim fell to the ground and screamed for help. His skull was fractured and he began bleeding profusely.
The facts and circumstances I have recounted constituted the offence of aggravated armed assault with intent to rob.
The victim's son heard his father's screams and approached the appellant. The victim's son wrestled the appellant to the ground and away from his father. The appellant hit his (the appellant's) head on a counter when he was falling. The baseball bat fell from his grasp. The appellant returned to his feet and saw the victim's son attending to his father. The appellant grabbed the baseball bat and struck the victim's son with the bat. The victim's son was struck several times on the body as he leaned over to shield his father. These facts and circumstances constituted the charge of common assault.
Shortly afterwards, the appellant left the shop, and he, his co‑accused and the lookout made their escape.
When the appellant was originally interviewed by police he denied any involvement with the incidents in question. However, in a second interview, he made several admissions.
The proposed ground of appeal
The sole ground of appeal alleges that the sentence of 2 years and 6 months' immediate imprisonment for the offence of aggravated armed assault with intent to rob was manifestly excessive.
The appellant's submissions
Counsel for the appellant noted that the appellant was aged 18 years and 6 days when he was sentenced. Counsel conceded that a term of immediate imprisonment was 'open' to the sentencing judge. However, it was contended that his 'tender age' when he committed the offence combined with his plea of guilty rendered the sentence manifestly excessive. It was submitted that the sentence 'was simply too long such as to imply error'.
The appellant's age
The appellant was born on 23 September 1992. He was aged 17 years and 9 months when the offence was committed and, as I have mentioned, was 18 years and 6 days at the time of sentencing. By s 50B(2) of the Young Offenders Act 1994 (WA), subject to the Sentencing Act 1995 (WA), the sentencing judge was bound to dispose of the matter by sentencing the appellant under the Sentencing Act, and that Act and the Sentence Administration Act 2003 (WA) applied to and in respect of the sentence imposed.
The appellant's prior record of offending
The appellant has a significant prior record of offending. The previous offences of significance are as follows.
On 16 November 2005, the appellant was convicted of two counts of stealing, two counts of causing an explosion likely to do serious injury to property and two counts of doing an act with intent to cause an explosion likely to do serious injury to property.
On 5 June 2007, the appellant was convicted of armed robbery in company, giving false personal details to police, failing to produce a valid ticket on leaving a public transport service and obstructing public officers.
On 9 October 2007, the appellant was convicted of two counts of wilfully and unlawfully destroying or damaging property.
On 2 November 2007, the appellant was convicted of wilfully and unlawfully destroying or damaging property.
On 18 March 2008, the appellant was convicted of two counts of stealing and one count of damaging property.
On 1 February 2010, the appellant was convicted of dangerous driving and driving a motor vehicle whilst not being legally entitled to do so.
The court report from Community Justice Services
A court report from Community Justice Services indicates that the factors which contributed to the appellant's offending behaviour on 5 July 2010 are his substance abuse, lack of reasonable judgment, absence of a structured daily activity, his father's death on 5 January 2009 and his negative peer associations.
The merits of the proposed ground of appeal
The appellant committed a very serious criminal offence. The maximum penalty for aggravated armed assault with intent to rob pursuant to s 393 of the Code is imprisonment for life.
The offending was premeditated. The appellant mounted a vicious attack on an unprepared and unarmed 58‑year‑old man. As the sentencing judge noted:
[I]t was always intended that [the victim] was going to be belted and in circumstances where he was not given any opportunity to protect himself or, alternatively, to hand over the money or whatever you wanted without being brutally assaulted (ts 28).
A sentence of immediate imprisonment is, of course, a sentence of last resort. It was necessary that the appellant's youth, his plea of guilty and his disadvantaged and other personal circumstances be taken into account.
I am satisfied, however, that the sentence of 2 years and 6 months' imprisonment was not manifestly excessive. Indeed, the sentence was reasonably lenient. The circumstances of the offending (in particular, the level of planned and actual violence), and its impact on the victim, were dreadful. There was no scope for greater leniency despite the appellant's youth and the other matters of mitigation. The justice system had already made a significant (and unsuccessful) attempt to rehabilitate the appellant. His previous offending had been dealt with by community based orders or other non‑custodial dispositions. Punishment of the appellant and personal and general deterrence in relation to the offences the subject of this appeal were important sentencing considerations.
The proposed ground of appeal has no reasonable prospect of success. I would refuse leave to appeal.
0
0
2