TT v The State of Western Australia - [2011] WASCA 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TT -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 40

CORAM: McLURE P
BUSS JA

HEARD: 28 JANUARY 2011

DELIVERED : 22 FEBRUARY 2011

FILE NO/S: CACR 188 of 2010

BETWEEN: TT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS DCJ
File No  :CC 8136 of 2009, CC 486 of 2010, CC 487 of 2010, CC 488 of 2010, CC 3968 of 2010, CC 529 of 2010, CC 530 of 2010, CC 531 of 2010, CC 4161 of 2010, CC 929 of 2010, CC 930 of 2010

Catchwords:

Criminal law - Appeal against sentence by offender - Armed assault with intent to rob - Assault occasioning bodily harm - Total effective sentence of 2 years and 6 months' immediate detention - Offender aged 16 at the time of offending and 17 when sentenced - Appalling prior record of offending - Whether totality principle infringed - Whether immediate detention only appropriate disposition - Whether parity principle infringed - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1)(b), s 393

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: No appearance

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Billing v The State of Western Australia [No 2] [2008] WASCA 11
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted, after a trial in the Children's Court before Judge Reynolds, of armed assault with intent to rob (CC 8136 of 2009), contrary to s 393 of the Criminal Code (WA) (the Code).
The State had alleged that:
(a)the appellant was armed with a dangerous weapon, namely a Stanley knife; and
(b)he was in company with another person.
At the commencement of the trial, the appellant pleaded guilty to the substantive charge but denied that he was armed or in company.
After a trial of issues, the appellant was found guilty of having been armed with a dangerous weapon but was acquitted of being in company with another person.
The appellant was also convicted, on his pleas of guilty, of:
486/10Assault Occasioning Bodily Harm;
487/10Assault Occasioning Bodily Harm;
3968/10Give False Details;
487/10Stealing;
488/10Common Assault;
529/10Damage;
530/10Damage;
531/10Damage;
4161/10Damage;
929/10No Railway Ticket; and
930/10Give False Details.
On 28 September 2010, the sentencing judge imposed terms of immediate detention, as follows:
8136/10Armed Assault with Intent to Rob

2 years' immediate detention;

486/10Assault Occasioning Bodily Harm
3 months' immediate detention (cumulative);

487/10Assault Occasioning Bodily Harm
3 months' immediate detention (cumulative); and

488/10Common Assault
2 months' immediate detention (concurrent).

The total effective term of detention was therefore 2 years and 6 months. The term was back‑dated to commence on 28 January 2010. His Honour ordered, pursuant to s 121 of the Young Offenders Act 1994 (WA), that the appellant remain in custody for 1 year and 3 months before he can be released under a supervised release order.
The appellant has applied to this court for leave to appeal against the sentences imposed for the armed assault with intent to rob and the two counts of assault occasioning bodily harm.

The material facts and circumstances of the offending

On 18 December 2009, the appellant, with intent to steal, used violence against a young man for the purpose of stealing his backpack. The appellant placed the blade of a Stanley knife to the victim's throat.
In the late evening of 16 January 2010, the appellant entered a residential property in Claremont that was occupied by two girls aged 14 and 15 respectively. The appellant was known to the girls. When he entered the property they asked him to leave. A short argument ensued. The appellant remained outside the premises for a few minutes but would not depart despite repeated requests by the girls, who lightly pushed him to 'encourage' him to walk away. The appellant then lashed out and kicked one of the girls four times to her left leg, with sufficient force to cause her to fall to the ground. He then punched the other girl with similar force, also causing her to fall to the ground. The appellant then ran from the area.

The proposed grounds of appeal

There are two proposed grounds of appeal. First, it is alleged that the total effective sentence of 2 years and 6 months' immediate detention offended the totality principle. Secondly, it is alleged that his Honour erred in determining that 'immediate detention was the only appropriate disposition' and, also, that he erred in 'the length [of the term] which he determined was appropriate'. Further, it is alleged that the sentencing outcome offended the parity principle in that the appellant's alleged co‑offender received a non‑custodial term.

The appellant's submissions

As to ground 1, counsel for the appellant submitted that the total effective term of 2 years and 6 months' immediate detention offended both limbs of the totality principle. The total effective term was 'crushing'. Also, it was disproportionate to the overall criminality. Counsel referred to the facts that the appellant pleaded guilty to the substantive charge (although he denied being armed or in company), he was a juvenile, he had a supportive family network, he had expressed genuine remorse for his offending and the sentencing outcome was 'above the range commonly imposed for like offending by a juvenile'.
As to ground 2, counsel for the appellant submitted that the sentencing judge erred in determining that immediate detention was the only appropriate disposition and in the length of sentence which he decided was appropriate. Counsel mentioned that the appellant's alleged co‑offender received an intensive youth supervision order for a period of 15 months, with a requirement that he undertake 50 hours of community service within that period, and comply with an agenda attached to the court report relating to him.

The appellant's age

The appellant was born on 17 July 1993. He was aged 16 years when the offences were committed and was 17 years and 2 months at the time of sentencing.

The appellant's prior record of offending

The appellant has an appalling prior record of offending.
On 10 November 2008, the appellant was convicted of aggravated armed assault with intent to rob (committed on 16 August 2008), assault occasioning bodily harm and two counts of aggravated armed robbery (all committed on 23 August 2008), unlawful assault and thereby doing bodily harm with circumstances of aggravation (committed on 27 May 2008), disorderly behaviour in public (committed on 25 March 2008) and aggravated robbery (committed on 11 September 2008).
On 13 January 2009, the appellant was convicted of disorderly behaviour in public (committed on 10 May 2008).
On 31 March 2009, the appellant was convicted of two counts of armed robbery (committed on 30 August 2008).
On 10 November 2009, the appellant was convicted of two counts of disorderly behaviour in public (committed on 13 September 2009 and 27 August 2009) and one count of disorderly behaviour in a police station (committed on 27 August 2009).

The merits of the proposed grounds of appeal

The offence of armed assault with intent to rob is very serious. The maximum penalty is 14 years' imprisonment. See s 393 of the Code. If the offender is armed and the offence is committed in 'circumstances of aggravation' (see the definition in s 391 of the Code), the maximum penalty is imprisonment for life.
The sentencing judge said:
I found that you committed it alone even though you knew that you had backup if it was necessary, and whilst the victim wasn't injured, the fact is you put a blade to his throat. I know you said you didn't, but I found you did. You put a blade to his throat. There was just never any justification for you acting in this way.
Mr Maughan says one of the mitigating factors is that you didn't steal anything. The reality was there was nothing to steal in your terms. There was a backpack, there was a jumper and there was a mobile phone. I don't know whether I give you any credit. It seems to me I don't and I won't give you credit for the fact you didn't knock off everything he had, but it was a very serious offence.
I suppose it gets more serious if someone is hurt, but someone not being hurt, it doesn't get more serious than putting a blade to some young man's neck as he's going off for some training, particularly when you've got some blokes behind you (ts 25 ‑ 26).
The counts of assault occasioning bodily harm are also serious. The maximum penalty is imprisonment for 5 years. See s 317(1)(b) of the Code.
The appellant had a reasonably stable upbringing. He completed year 11 at school and he had some employment at Red Rooster for about five or six months. However, he has been a regular user of alcohol and cannabis.
The sentencing judge did not accept the prosecutor's submission that some of the appellant's answers in the witness box, in the course of the trial of issues, indicated a lack of remorse (ts 24). But his Honour noted that the appellant did not cooperate with the police and did not admit having been armed with a dangerous weapon in relation to the most serious count (ts 24).
As I have mentioned, the appellant has an appalling prior record of offending. The prior offending includes six convictions for armed robbery, including aggravated armed robbery, and aggravated armed assault with intent. There is no mitigating feature to be found in his prior record.
Although a sentence of detention is, of course, a sentence of last resort, and it was necessary that the appellant's youth, plea of guilty and personal circumstances be taken into account, the sentencing judge had no alternative but to impose a lengthy custodial term.
I am satisfied that the total effective sentence of 2 years and 6 months' detention did not offend either limb of the totality principle. In my opinion, it could not reasonably be described as 'crushing' in the relevant sense. It did not destroy any reasonable expectation of useful life after release from custody. Also, in my opinion, the total effective sentence bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally. Proper punishment of the appellant, and personal and general deterrence, were important sentencing considerations. The decision of the sentencing judge to impose a total effective sentence of 2 years and 6 months' detention was not plainly unreasonable. No error should be inferred. The total effective sentence appropriately marked and reflected the appellant's overall criminality, despite his youth and the other limited mitigating features.
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co‑offenders:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
This principle is subject to the qualification that parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offences in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
On 28 September 2010, the sentencing judge sentenced the appellant's alleged co‑offender, JG. His Honour said, relevantly:
You [JG] have been convicted of aggravated armed [sic] assault with intent to rob in circumstances of aggravation. Those circumstances of aggravation, as I found them after the trial, were that you were at the time in company. I found that you committed the offence by using violence against the victim, by trying to remove his backpack from his possession, and that the circumstance of aggravation was, as I say, you were in company.
The offence carries a maximum sentence of 14 years' imprisonment. That's how serious our parliament considers offences of this nature. Importantly for you, I did not find that you committed the crime for which [the appellant] has been found guilty. You weren't an accessory and nor were you part of what's called an agreed joint enterprise. In other words, you didn't have a plan to rob the complainant. [The appellant] I found, did that all by himself initially, and that you were not a party to that crime which involved, as I found it, the use of a Stanley trimmer.
You came along shortly afterwards, but you continued to perpetrate the assault against the complainant, and you were in company, which means you … were backed up by three or four other young men (ts 10).
JG was aged 16 years at the time of sentencing. He had a prior record of offending but, as the sentencing judge put it, 'nothing for which you have received significant punishment' (ts 11).
In my opinion, the appellant's submission, based on the parity principle, is without merit. The circumstances of the appellant's offending were more egregious than the circumstances of JG's offending. The appellant was armed with a dangerous weapon (that is, the Stanley knife) which he placed to the victim's throat. JG was not armed, although he was in company. Also, the appellant's prior criminal record was substantially more serious than that of JG.
The sentence imposed on JG was not such as to give rise to a justifiable sense of grievance on the appellant's part, or create the appearance that justice has not been done. See Lowe (623) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ).
Each of the proposed grounds of appeal has no reasonable prospect of success. I would refuse leave to appeal.