Wale v The Queen
[2001] WASCA 418
•20 DECEMBER 2001
WALE -v- THE QUEEN [2001] WASCA 418
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 418 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:23/2001 | 5 DECEMBER 2001 | |
| Coram: | STEYTLER J WHITE AUJ OLSSON AUJ | 20/12/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| A | |||
| PDF Version |
| Parties: | JOHN DAVID WALE THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence following conviction on a plea of guilty Distinction between a fast-track guilty plea and an early plea not on the fast-track system Head sentence of 18 years for convictions on one count of robbery and eight counts of armed robbery Offender being armed with a loaded firearm on at least three occasions held not excessive Parole granted because of possibility of rehabilitation despite extensive criminal record and offences committed while defendant was serving a suspended sentence No error found on the part of the learned sentencing Judge |
Legislation: | Nil |
Case References: | Day v The Queen [2001] WASCA 284 Little v The Queen [2001] WASCA 87 McKeagg v The Queen [2001] WASCA 99 Radebe v The Queen [2001] WASCA 254 Shaharuddin v R [1999] WASCA 229 Siganto (1998) 194 CLR 656 Thomson v Houlton (2000) 115 A Crim R 104 Trescuri v R [1999] WASC 172 Verschuren v R (1995) 17 WAR 467 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WALE -v- THE QUEEN [2001] WASCA 418 CORAM : STEYTLER J
- WHITE AUJ
OLSSON AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence following conviction on a plea of guilty - Distinction between a fast-track guilty plea and an early plea not on the fast-track system - Head sentence of 18 years for convictions on one count of robbery and eight counts of armed robbery - Offender being armed with a loaded firearm on at least three occasions held not excessive - Parole granted because of possibility of rehabilitation despite extensive criminal record and offences committed while defendant was serving a suspended sentence - No error found on the part of the learned sentencing Judge
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Category: A
Representation:
Counsel:
Applicant : Ms K Farley
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Day v The Queen [2001] WASCA 284
Little v The Queen [2001] WASCA 87
Case(s) also cited:
McKeagg v The Queen [2001] WASCA 99
Radebe v The Queen [2001] WASCA 254
Shaharuddin v R [1999] WASCA 229
Siganto (1998) 194 CLR 656
Thomson v Houlton (2000) 115 A Crim R 104
Trescuri v R [1999] WASC 172
Verschuren v R (1995) 17 WAR 467
(Page 3)
1 STEYTLER J: I have had the advantage of reading the reasons for decision of White AUJ. It is consequently unnecessary for me to repeat all that his Honour has said with respect to the facts and circumstances giving rise to this appeal.
2 The offences of which the applicant was convicted were particularly serious. There were no less than eight counts of armed robbery and one count of robbery over a period of about one month. In each of the cases of armed robbery the applicant was armed with a sawn-off rifle. While it was suggested that the applicant did not know, on the first occasion on which he used the rifle, that it was loaded, it was conceded that he knew this thereafter. He was consequently prepared to run the risk that the rifle might be discharged if any kind of struggle should ensue as, in fact, occurred in the course of the last of the robberies committed by him.
3 The first ground of appeal contends that the sentencing Judge failed to give to the applicant a sufficient discount in respect of his fast-track plea of guilty, high degree of remorse and other mitigating circumstances.
4 As appears from the reasons for decision of White AUJ, this was not in fact a fast-track plea of guilty, although I accept that the applicant pleaded guilty as soon as he reasonably could do so. However that plea must be seen in a context in which the applicant was caught "red-handed" in the course of trying to effect the last of the robberies with which he was charged. While his counsel contended that, absent his co-operation, it might have been difficult for the authorities to prove his complicity in the other offences to which he pleaded guilty, I very much doubt that that was so. In the majority, at least, of the offences, the offender was wearing a black balaclava, was armed with a rifle and carried a duffle bag. When apprehended in the course of the last of his robberies the applicant was wearing a black balaclava, was armed with a rifle and was carrying a duffle bag. Moreover, he is 6 foot 7 inches tall.
5 As to the allegedly "high degree of remorse" shown by the applicant, I accept that the applicant has shown some remorse, as evidenced by a series of letters written by him. However, this was not one isolated offence and the remorse came, in my opinion, far too late. Moreover, the applicant was not so remorseful as to be prepared to identify his co-offender, although I recognise that other considerations might have come into play in that respect.
(Page 4)
6 The only other mitigating circumstances relied upon by counsel for the applicant were that he had allegedly acted under duress and that his prospects for rehabilitation were good.
7 So far as the alleged duress is concerned, counsel for the applicant contended that it had been necessary for him to commit these offences in order to pay for drugs used to feed his heroin addiction and that he and his partner were at risk of violence if he failed to do so. However, this consideration can be given little weight having regard for the other opportunities which were available to the applicant to deal with the situation in which he found himself. Moreover, the evidence established that he approached his criminal conduct with some enthusiasm. So, for example, in the course of committing the robbery the subject of count 5 on the indictment, the applicant held a gun to the shop assistant's face, pointed it at her forehead, pushed her in the shoulder with the gun and held it to her throat under her chin.
8 It also seems to me that the sentencing Judge made no error in the view which he took of the applicant's prospects for rehabilitation. The applicant had a long history of offending and had committed at least one serious offence while on probation. Three of the nine offences involved in this appeal were committed while the applicant was serving a sentence of suspended imprisonment. The applicant, aged 35 years, had also been unable, despite attempts to do so, to break his heroin addiction. It was, in those circumstances, open to the sentencing Judge to conclude that his prospects for rehabilitation were becoming "fairly slender". Notwithstanding this opinion, however, the sentencing Judge granted the applicant parole upon the basis that he might, in the course of a long imprisonment, change for the better.
9 In all of these circumstances I am not persuaded that the sentencing Judge made any error in the exercise of his discretion in allowing to the applicant a discount of 4 years' imprisonment from the starting point of 18 years' imprisonment. In my opinion, nothing has been pointed to which should lead to the conclusion that the discount was so limited as to fall outside an acceptable range or that his Honour has otherwise erred in the exercise of his discretion.
10 So far as the second ground of appeal is concerned, it seems to me, once again, that the sentence imposed by the sentencing Judge was one which was undoubtedly open to him having regard for the serious nature of the offences and the circumstances of the offender.
(Page 5)
11 I would consequently refuse leave to appeal against the sentences imposed upon the applicant.
12 WHITE AUJ: The applicant, John David Wale, applies for leave to appeal against the sentences imposed upon him following his conviction, after an early guilty plea on 10 January 2001, on one count of robbery and eight counts of armed robbery while armed with a sawn-off rifle. The offences were committed between 14 May 2000 and 14 June 2000 and the applicant obtained a total of $12,678.40 from the offences.
13 In imposing the sentences, the learned sentencing Judge took as a starting point a total of 18 years for the offences as a whole. Taking into account the early pleas of guilty on all counts and for limited assistance given to the police, his Honour reduced that sentence to one of imprisonment for 14 years, a reduction of slightly more than 22 per cent.
14 The individual sentences imposed were:
15 Count 9: 7 years; Count 1: 1 year cumulative; Count 6: 6 years cumulative; Count 2: 5 years concurrent; Count 3: 5 years concurrent; Count 4: 5 years concurrent; Count 6: 6 years concurrent; Count 7: 7 years concurrent; Count 8: 7 years concurrent.
16 In relation to counts 1, 3, 4, 5 and 9, the applicant used actual violence in the commission of the offence. In respect of at least three of the armed robbery offences, the applicant was armed with a loaded sawn-off .22 calibre rifle. In the course of committing the offence the subject of count 9, the rifle was discharged during a struggle when a customer tackled him and he was apprehended. Fortunately, no person was thereby wounded. In respect of the other counts of armed robbery, he was armed with the rifle but it is not stated as to whether or not it was loaded at the time. The fact that the applicant had a loaded firearm with which he threatened his victims suggests that he was prepared to shoot someone. It is obvious that the offences were extremely serious. In respect of each offence, the applicant was driven to the scene of the offence by a co-offender.
17 When arrested, the applicant was taken to the Cannington detectives' offices where he was questioned. He admitted the offences but declined to identify his co-offender, who has not been found.
(Page 6)
18 The applicant's prior record of offending commences in 1981, when he was about 16 years of age. He has well over a hundred convictions for a variety of offences, including offences of dishonesty and violence. At the time he was sentenced on the counts to which the present appeal relates, the learned sentencing Judge remarked that the applicant's offending has gradually worsened, unfortunately.
19 His Honour also said:
"I don't consider it's possible to treat this series of offending as one criminal episode. The counts on the indictment relate to quite separate offences against different people. As I have said, the maximum penalty in respect of eight of the offences is life imprisonment. There's nothing really to be said by way of mitigation except that your pleas of guilty must be recognised and I will recognise them."
20 The applicant is a heroin addict aged 35 years, who has been unable, despite attempts to do so, to break his addiction.
21 The amended grounds of appeal are:
"1. The Learned Sentencing Judge failed to credit a sufficient discount considering:
A. The Applicant's fast-track guilty plea;
B. The high degree of remorse shown by the Applicant; and
C. The Applicant's other mitigating circumstances.
2. In the alternative, the head sentence was itself manifestly excessive in the circumstances."
22 The applicant referred to the remarks by the learned sentencing Judge when his Honour said:
"There's nothing really to be said by way of mitigation except that your pleas of guilty must be recognized and I will recognize them …
For your pleas of guilty and limited co-operation in providing information with respect to the other offences, I deduct 4 years
(Page 7)
- from the sentence. I can see no reason to give you any other deductions."(Emphasis added.)
23 In so doing, the applicant submitted, the learned sentencing Judge failed to have regard to the "exceptionally high degree of remorse shown by the applicant, evidenced by nine separate letters of apology written to each of the persons upon whom the offences were committed". Reference was made to the decision in Day v The Queen [2001] WASCA 284, par 21 where Kennedy J said:
"Remorse may be shown by statements of contrition made by the offender, or on his behalf. It may take various forms. In Fox and Freiberg, Sentencing State and Federal Law in Victoria, 2nd edn (1999) at 305, the learned authors observed:
'It has been said that it is rare to find convincing evidence of genuine remorse, but where it is found, credit should be given. Remorse is considered to form part of the reformative component of the sentence. It is an elusive concept; it "is not to be confused either with sorrow at the fact that a victim is no longer available as a companion, nor with regret at the position in which an applicant now finds him or herself". As Asche CJ sardonically remarked [in Jabaltjari (1989) 64 NTR 1 at 10]:
"…. The difference between being sorry for what one has done and sorry for being caught is a difference which judges may not always wish to investigate too thoroughly"."
25 In the course of sentencing the applicant, the learned sentencing Judge said: "You're no longer young and the hopes for rehabilitation are becoming fairly slender."
(Page 8)
26 Counsel for the applicant submitted that, on the contrary, the applicant's prospects for rehabilitation were good; particularly evidenced by his acceptance into Edith Cowan University to do a Social Science degree and his desire to begin a family, "when considered with several positive references from both before and after his being taken into custody and successful completion of courses whilst in custody".
27 However, it is the fact that the learned sentencing Judge went on to say, after the sentence quoted above:
"You have committed at least one serious offence, burglary, while on probation in 1996 and on my reckoning the first three of the nine offences now before the court were committed while you were under suspended sentence of 12 months' imprisonment.
Normally that would disqualify you from consideration for parole eligibility. However, having read all the material that has been presented to me and having listened to your counsel's submissions made on your behalf, I have decided to make a parole eligibility order principally because this is a long sentence. You will still have to serve more than 7 years in custody, even if granted parole and, looking ahead that far, it is possible that you will have changed for the better and will benefit from a period of supervision in the community. However, I express the hope that you will not actually be considered for parole unless you have completely recovered from your addiction to drugs."
28 From those remarks it is, I think, clear that his Honour did have regard to the question of the applicant's rehabilitation, by ordering that he be eligible for parole.
29 It was submitted that a total discount of 22.2 per cent had been given by his Honour for both the applicant's fast-track guilty plea and the co-operation with the authorities and that, accordingly, the discount for the plea of guilty was "necessarily less than 22.2 per cent". Counsel submitted that that discount falls outside the accepted range for a fast-track guilty plea and referred to in Little v The Queen [2001] WASCA 87 where, in par 13 the Court (Malcolm CJ, Wallwork and Anderson JJ) said:
"The other main ground of appeal is that in deducting 1 year from the penalties that would otherwise have been imposed in respect to each of the charges in counts 4 and 5 there was an
(Page 9)
- inadequate reward for the fast track plea of guilty. We think that this ground of appeal must be upheld. It is well-established that, for reasons which are so well-known as not to require restatement, offenders must be rewarded, and really rewarded, for fast track pleas of guilty. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances. The discount may be somewhat lower or somewhat higher in particular cases. In this case, we can see no reason why this applicant should not have been rewarded by a 25 per cent discount for his fast track pleas of guilty. Whilst no doubt the Crown case against him was strong in respect to the last offence of car stealing (he was apprehended after running away from the crash), the fact is that when questioned in his video record of interview about the other offences, he freely and frankly admitted his involvement in them, and he pleaded guilty to them at the first available opportunity."
30 In par 17, the Court said:
"In light of these principles, it would be a very rare case in which a court of criminal appeal determined that a sentence of 10 years was manifestly excessive and on that ground reduced it by only 1 year. However, that is not the exercise which is involved in this case. What this Court is concerned to do is to correct a failure to properly implement an important policy in the administration of criminal justice; namely, to encourage pleas of guilty by properly rewarding them when they are made. The applicant should have been given a 25 per cent discount for his fast track plea of guilty and it is no answer to say that to give it to him now will involve a relatively small reduction of the sentence.
Where an offender is caught red-handed, it is tempting to make little reduction for a subsequent plea of guilty even if made at the first available opportunity. Nevertheless, the matters of high policy essential for the effective operation of the criminal justice system demand a substantial reduction.
Following Little, it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty. The facts of this case are not unusual. Consequently, I consider this ground of appeal is made out."
(Page 10)
31 In the course of his sentencing remarks, the learned sentencing Judge said (AB33):
"In my opinion the appropriate starting point is 18 years' imprisonment. I will give you credit for confessing to the eight offences preceding the offence when you were caught red-handed. Your co-operation and confessions in respect to those offences have saved considerable public resources in the further investigation of them. On the other hand, your co-operation stopped short of naming your accomplice or accomplices and the plea of guilty in respect of the ninth and last offence is of little mitigatory value because you were actually caught at the scene.
For your pleas of guilty and limited co-operation in providing information with respect to the other offences, I deduct 4 years from the sentence. I can see no reason to give you any other deductions."
32 In my opinion, his Honour did not err in fixing a starting point of 18 years in relation to the totality of the criminality of the offences. The fact that the applicant used a loaded firearm in the course of some of his robberies adds very considerably to the seriousness of those offences.
33 As I have mentioned, the applicant pleaded guilty by way of an early plea, but not one on the fast-track system.
34 Mr Cock QC tendered a letter dated 18 October 2000 from the applicant's then solicitors in which there was an offer to plead guilty to six of the nine offences on which the applicant was convicted. That offer was rejected on the grounds that the Crown had ample evidence to establish each count and the pleas were thereafter entered. On 17 October 2000, the applicant had written a letter, addressed "To Whom it May Concern" but apparently intended for the learned sentencing Judge, in which the applicant expresses remorse for his conduct and recounts the assaults and threats made to him by the drug suppliers to whom he owed money. In that letter he says, inter alia:
"I was never under any illusions that I would get away with these crimes due to my physical appearance. I am 6 foot 7 and of slim build so with the security footage at the south perth foodmart I thought that police couldn't be far off apprehending me."
(Page 11)
35 Mr Cock said in this regard:
"And it was the case that that identification was not particularly difficult despite the use of the balaclava because of the somewhat exceptional height and build of this applicant. I raise that in answer to the argument that the applicant's co-operation with police facilitated his conviction. With great respect to my learned friend that's not a true reflection of the matter. There was in fact a strong crown case despite an offer by the applicant to plead to only six of the nine charges."
36 There was a difference of opinion among counsel as to whether there is any significant advantage in having a fast-track plea of guilty as opposed to an early plea that is not on the fast track.
37 Ms Farley submitted, in effect, that there is no significant difference on the basis that:
" … by the time the matter reaches the final resting point, as it were, of the sentencing Judge, election papers have to be prepared in any event, in the form of sentencing papers. The statements all have to be there so there's not a great saving in that regard."
38 Mr Cock disagreed with that view, saying:
"A fast-track plea of guilty in Western Australia arises under special provisions of section 100 and 101 of the Justices Act whereby after a person is apprehended by police and charged, section 100 provides that the prosecutor may provide to the defendant a statement of material fact, a copy of any signed confession – there were none in this case – and the record of interview with the police, and there was one and that was given.
The person is then told by the justices under section 101 of the act that they may plead guilty upon which they will be remitted to this court or the District Court for sentence.
On those papers alone, with respect to my friend, it is not the case that depositions are then prepared. Indeed, on the fast-track system as introduced by those provisions of the justices Act in Western Australia a person in fact then pleads to an indictment which is then filed in this court of the district court. The statement of material facts sets out the facts upon which
(Page 12)
- they will be sentenced, and a video record of interview or any other confessional material is the only other evidence to which the court is able necessarily to have regard.
Indeed, your Honours having sat in sentences of those types will be familiar with that type of approach. There is therefore a significant saving to the Police Service at least in relation to the fast-track plea of guilty because no depositions need to be prepared. Witnesses don't need to be consulted, victims in particular don’t need to go through the trauma of reliving the matter and giving a statement to police officers, having it signed, typed up as a deposition and signed.
In this instance, your Honours, there were in fact 42 depositions prepared totalling 135 pages … they were before the learned sentencing Judge and he would have been aware of the extent to which effort was put by police officers and civilians to sign those 42 depositions; not only those but there were certificates of registration of the relevant businesses, video surveillance footage, photos of the scenes, a photoboard for identification purposes, a sawn-off rifle, a report on the rifle and the video record of interview, all prepared and collated and made available to the defence prior to the plea of guilty on, I think, 2 November of last year."
39 Ms Farley responded with the submission that the discount is given for the earliest possible pleas, not necessarily pleas on the fast-track.
40 I accept that there is indeed a significant difference between a fast-track plea of guilty and a plea of guilty entered later, after the work to which Mr Cock referred, has been done. It is true, as Ms Farley submits, that a discount is given for a plea of guilty entered at an early date, even if it is not a plea on the fast-track. However, the fast-track system has been put in place for an important reason of policy and I am of the opinion that it is necessary to retain a distinction between a plea on the fast track and a guilty plea made later. In both cases, a discount will normally be made in favour of the defendant, but the former will, in my opinion, normally attract a larger discount than the latter.
41 The decisions in Little and in Radebe related to pleas of guilty on the fast-track.
42 In all the circumstances of the present matter, I am not persuaded that the learned sentencing Judge fell into error in the sentences he
(Page 13)
- imposed upon the applicant. Accordingly, I would refuse leave to appeal against those sentences.
43 OLSSON AUJ: I have had the advantage of reading the reasons for judgment of White AUJ in draft. I am in entire agreement with the conclusions to which he has come and that leave should be refused.
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