Watson v The Queen

[2000] WASCA 8

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   WATSON -v- THE QUEEN [2000] WASCA 8

CORAM:   KENNEDY J

WALLWORK J
MURRAY J

HEARD:   9 DECEMBER 1999

DELIVERED          :   21 DECEMBER 1999

PUBLISHED           :  3 FEBRUARY 2000

FILE NO/S:   CCA 231 of 1999

BETWEEN:   BENJAMIN WATSON

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Armed robbery in company - Aggravated burglary - Youthful offender - Good antecedents - Appeal against sentences of 3 years' imprisonment to be served concurrently with eligibility for parole - Sentences ordered to be suspended for a period of two years

Legislation:

Nil

Result:

Sentences varied by directing that they be suspended for two years

Representation:

Counsel:

Applicant:     Mr L W Roberts-Smith QC

Respondent:     Mr R E Cock QC & Mr J W M Foulsham

Solicitors:

Applicant:     Blair Doncon & Co

Respondent:     State Director of Public Prosecutions

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

Lowndes v The Queen (1999) 73 ALJR 1007

Miles v The Queen (1997) 17 WAR 518

R v Barber [1999] NSWCCA 110

R v Edwards (1993) 67 A Crim R 486

R v GP (1997) 18 WAR 196

R v Lewfatt (1993) 70 A Crim R 66

R v Liddington (1997) 18 WAR 394

R v Molina (1984) 13 A Crim R 76

R v Shaharuddin [1999] WASCA 229

R v Valentini (1980) 2 A Crim R 170

R v Voegeler (1988) 36 A Crim R 174

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Case(s) also cited:

AB v R [1999] HCA 46; (1999) 165 ALR 298

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621

Brazier v Police (1994) 75 A Crim R 404

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Graham v The Queen, unreported; CCA SCt of WA; Library No 6973; 15 December 1987

Heferen v The Queen [1999] WASCA 81

House v King (1936) 55 CLR 499

Howett v The Queen, unreported; CCA SCt of WA; Library No 7521; 20 February 1989

Nguyen v The Queen [1999] WASCA 54

Paterson v Stevens (1992) 57 SASR 213

R v Gillan (1991) 54 A Crim R 475

R v Hogon (1987) 30 A Crim R 399

R v McAndrew [1999] WASCA 124

R v Peterson [1984] WAR 329

R v Swain [1999] WASCA 22

R v Wacyk (1996) 66 SASR 530

R v Weaver (1973) 6 SASR 265

R v Weng Keong Chan (1989) 38 A Crim R 337

Sein-Thet v The Queen [1999] WASCA 186

Swayn v The Queen, unreported; CCA SCt of WA; Library No 7041; 26 February 1988

Vartzokas v Zanker (1989) 44 A Crim R 243

Weetra v Beshara (1987) 29 A Crim R 407

1. KENNEDY J:  The facts are set out in the reasons for judgment of Wallwork J and it is unnecessary for me to repeat them in detail.

2. In a recent decision, R v Barber [1999] NSWCCA 110, the Court of Criminal Appeal in New South Wales delivered a guideline judgment on sentencing for armed robberies. What was said in that case, in my opinion, relevantly reflects the established position in this State. Spigelman CJ, in describing some aspects of that court's prior consideration of Crown appeals from sentences for armed robberies, said:

   "113.  First, and most important, is the frequency with which the Court has stated that a non-custodial sentence for this offence could only be imposed in exceptional circumstances.  As Hunt CJ at CL said in Roberts (1994) 73 A Crim R 306 at 308:

   "This Court has always made it clear that armed robbery is to be regarded as an offence of the utmost gravity which, except in the most exceptional circumstances, must carry a full time custodial sentence:  Murray (unreported, 11 September 1986) at p 5; Kingsbeer (unreported, 29 July 1988) at p 7; Valentini (1989) 46 A Crim R 23 at 26; Readman (1990) 47 A Crim R 181 at 104 ‑ 105; Diamond (unreported, 18 February 1993) at p 2; Hetherington (unreported, 25 February 1993) at p 4; Maddocks (unreported, 25 November 1993) at pp 2, 6.  That view has been said by this Court to be a sentencing principle resulting from its considered decisions to which sentencing Judges should not merely pay lip service, Maddocks (at p 6).  Wood J, delivering the principal judgment, went on to say:

   'I would repeat, although I wonder why it is necessary that I should do so, that it is only in the most exceptional circumstances that anything other than a non-custodial sentence should be imposed for armed robbery.  Necessarily, there will be cases which constitute an exception but they will be few and far between.'

   With those observations, I express my complete agreement.  I prefer the phrase "most exceptional circumstances" which he used to the phrase "wholly exceptional and unusual circumstances" subsequently employed in Crotty (unreported, NSWCCA 28 February 1994) at p 5."

   114.  The cases referred to by Hunt CJ at CL indicate the frequency with which this Court had reiterated this basic proposition prior to 1994.

   115.  The proposition, as summarised and reiterated in Roberts, has been applied subsequently in successful Crown appeals (Wright (1997) 93 A Crim R 48; Bragias NSWCCA 12 March 1997; Khoury NSWCCA 5 December 1994; Amohanga NSWCCA 25 May 1995.

   116.  It has also been referred to in Crown appeals in which the Court has found the first instance sentence to be manifestly inadequate but, in the exercise of its discretion, decided to dismiss the appeal.  (Sharpe NSWCCA 27 September 1994; Randall NSWCCA 19 September 1994; Kerr NSWCCA 26 August 1997; Gitt NSWCCA 18 May 1998).

   117.  The Court has affirmed the basic proposition on occasions on which it has held that a finding of exceptional circumstances was open to the trial Judge (Jones NSWCCA 15 April 1994; Georges NSWCCA 30 May 1996; Latouff NSWCCA 12 December 1996; Tocknell NSWCCA 28 May 1998)."

3. Having reviewed a number of authorities, Spigelman CJ continued:

   "162.  It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

   (i)Young offender with no or little criminal history

   (ii)Weapon like a knife, capable of killing or inflicting a serious injury

   (iii)Limited degree of planning

   (iv)Limited, if any, actual violence and a real threat thereof

   (v)Victim in a vulnerable position such as a shopkeeper or taxi driver

   (vi)Small amount taken

   (vii)Plea of guilty, the significance of which is limited by a strong Crown case.

   163.  Whilst it is possible to determine a starting point in a case of this kind, ie a sentence of x years' imprisonment, I do not believe that the Court should do so.  Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

   164.  There are two principal reasons why a sentencing range is appropriate for this offence:

   (i)The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise

   (ii)Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi).

   165.  In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term.  I have arrived at this figure after drawing on the collective knowledge of the other four members of the court with respect to sentence ranges.  I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies.  The proposed range is broadly consistent with this body of prior decisions in this Court."

4. Although not all the characteristics listed by Spigelman CJ in the category of armed robbery chosen by him are present in this case, the majority of them are present.  There was present here the circumstance of aggravation that the applicant was in company with two other offenders.  The victims might not have been as vulnerable as shopkeepers or taxi drivers, but there was, in my view, a clear threat of actual violence.

5. It is, I believe, no coincidence that each of the principal authorities upon which counsel for the applicant relied in support of the proposition that a suspended sentence may be an appropriate disposition, even in case of armed robbery, was a Crown appeal against a non-custodial sentence - R v Valentini (1980) 2 A Crim R 170; R v Molina (1984) 13 A Crim R 76; R v Voegeler (1988) 36 A Crim R 174; R v Edwards (1993) 67 A Crim R 486 and R v Lewfatt (1993) 70 A Crim R 66. They were cases in which the Courts of Criminal Appeal declined to interfere with the exercise by the sentencing Judge of his discretion. R v Shaharuddin [1999] WASCA 229 fell into the same category, the concept of double jeopardy playing a dominant role in the decisions.

6. The proper approach by courts of criminal appeal to the discretionary judgments of sentencing Judges was summarised by the High Court in Lowndes v The Queen (1999) 73 ALJR 1007, at 1010:

   "[15] The principles according to which an appellate court may interfere with such a discretionary judgment [under sections 89 and 98 of the Sentencing Act 1995 (WA)] by a sentencing judge are well established.  …  Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.  This is basic.  The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

7. As his Honour the sentencing Judge observed, there was no really acceptable explanation for the applicant's participation in the offences of which he was convicted on his own pleas of guilty, and there was no known reason for his conduct.  Prior to the commission of the offences, the applicant had driven his two co‑offenders, at their request, to a hotel in order that they might collect from some unidentified men money which, he was informed while driving them to the hotel, was owing in relation to the sale of drugs by one of the co‑offenders.  When no moneys were forthcoming from that source, the applicant drove them back to the house where they were staying.  It was here that the double barrelled shotgun was produced.

8. The applicant having driven the co‑offenders to the place where the offences were committed, it was apparent that one of the co‑offenders was armed with a knife and the other with the gun.  The applicant did not leave it to them to enter the premises to extract the money they claimed was owing while he waited in the car for their return.  Having claimed never to have handled a gun before, and not knowing whether or not the

gun was loaded or whether it had a safety catch, on his evidence, he volunteered to participate in the venture in order to avoid anyone being injured.  He then took the gun and adopted a disguise.  Surprisingly, there was no indication as to the reaction of the co‑offenders to his offer.

1. The applicant denied the claim that he had kicked in the rear gate of the property; but, having entered the property, he did not demonstrate either by his language or by his other conduct any reluctance to participate actively in the offences.  The applicant did not behave like one who was participating in the activities only for the purpose of minimising the risk of harm to the victims.  He pointed the shotgun at the head of one of the victims from a distance of one foot and forced him to his knees.  He subsequently pointed the shotgun at the chest of another of the victims from a distance of some three feet while one of the co‑offenders stole $20 from a wallet.  The offences were committed by the three offenders without any regard to the impact which they might have upon the victims.

2. His Honour's sentencing remarks were directed to the applicant.  They did not purport to be an exposition of the rules relating to sentencing, and they did not need to be so.  Importantly, his Honour was fully aware that in rare and exceptional circumstances it was open to him to impose a suspended sentence upon the applicant, but he was not prepared to make such an order in this case.  In particular, he was not prepared to treat these serious offences simply as a "foolish mistake" on the part of the applicant.  Nor, obviously, did he accept that the applicant had not realised he was going to be involved with anything serious.  It should not be overlooked that, unusually, the applicant having pleaded guilty to the offences, the learned sentencing Judge had the advantage of seeing and hearing him give his explanations as to what had occurred, and why.  He was well placed to evaluate those explanations.

3. In my opinion, no error was demonstrated on the part of the learned sentencing Judge in the exercise of his discretion.  The sentence which his Honour imposed was one which was open to him.  I joined in granting the applicant leave to appeal against his sentences, but I would have dismissed his appeal.

4. WALLWORK J:  The applicant in this matter became 18 years of age on 7 May 1999.  On 1 November 1999 he was sentenced to two terms of three years imprisonment to be served concurrently.  He was made eligible for parole.  The offences for which he was sentenced were aggravated burglary and armed robbery in company.  The two offences had been committed on 14 August 1999 at Padbury in Western Australia.

1. The applicant had previously been convicted of two traffic offences on 15 December 1998.  They are not of great significance for the purposes of this decision.

2. This appeal raises the question of whether a young offender with this applicant's background and no serious prior offences should have been sentenced to the terms of imprisonment in all the circumstances of this case.

3. The circumstances of the offences as related to the learned sentencing Judge on 1 November 1999 by counsel for the DPP were that on about 8 pm on Saturday 14 August 1999, the applicant and two co‑offenders went to a house at 56 Lushington Drive, Padbury with the intention of taking money from a person who was alleged to owe money for drugs purchased from a co‑offender.  The applicant, in an attempt to hide his identity, was wearing a bandanna across his nose and the lower part of his face.  He was armed with a loaded double barrelled shotgun.  One of the other two co‑offenders was armed with a knife.  On their arrival at the premises the applicant had kicked in the gate on the back fence.  The three offenders entered the yard.  One of the persons in the premises then armed himself with a baseball bat.  The applicant who was approximately 5 feet away, pointed the shotgun at that person's  head so that the barrel was about a foot from his face.  That person retreated into the house.  He was allegedly followed by the applicant who repeatedly demanded that he get on his knees.  That person complied.  The applicant then backed out of the house with the shotgun still covering the person in the house and joined the co‑offenders at a shed at the side of the house where there was another person and his four friends.  A co‑offender pushed one of those people in the chest several times and demanded money from him.  Whilst this was happening the applicant pointed the shotgun at a person's chest.  The third co‑offender stood near the door with a knife in his hand.  One of the co‑offenders picked up a person's wallet and removed $20 from it.  He then replaced the wallet.  The three offenders, including the applicant, then left.

4. Approximately one week later the applicant was arrested.  He declined to participate in a video record of interview.  He was then charged and spent three days in custody.

5. Counsel for the applicant advised the learned sentencing Judge that the plea of guilty had come before him as a fast‑track plea of guilty.  The facts were that the applicant, who is a champion skateboard rider, had met another person, Aiden, (the brother of a co‑accused) who is also a champion skateboard rider.  They saw each other about once a week and also during skateboard practice.  Aiden was 17 years of age.  One of the co‑offenders, Garry Ross, was Aiden's older brother.  Garry Ross was about 19 years of age.  He had been using drugs, as had the other co‑offender, Domenic Van De Worp.

6. Counsel for the applicant advised the learned Judge that both of the co‑offenders "were into drugs to some extent", although the applicant had not known that until the night of the offences.  On the night in question the applicant had telephoned the Ross house to speak to Aiden.  Garry Ross told him that Aiden would be back later.  Garry had then asked the applicant whether or not he had a car.  When the applicant answered "Yes", Garry Ross had told him they needed a ride and that they would give the applicant petrol money if he drove them where they wanted to go. 

7. The applicant was told by Garry Ross that he and Domenic (the second co‑offender) wanted to go around to a mate's place to collect some money that the mate owed them.  They would then go night-clubbing after that.  The applicant agreed to drive the other two as asked, and had driven over to a house where they were.   He had then driven the co‑offenders to a hotel where the persons were, who were said to have owed Garry and Domenic the money. 

8. Counsel said that on the way to the hotel, the applicant had first learned that the two co‑offenders "were actually into drugs of some kind".  He had been told by Garry Ross that the people at the hotel owed him money for drugs which they had bought from him when he had been dealing in drugs at the Maylands flats.

9. The three offenders went into the hotel.  They were told by the persons there that those persons had not been paid and that they were not going to be paid until the following week.  When they were paid they would be able to repay the money owing.  The applicant had then driven the two co‑offenders back to a house.  He was then told that the next people they were going to visit had been Garry Ross' best mates.  They had all "flatted together" at the Maylands flats where they were all dealing in drugs.  He was told that those other people had allegedly taken money from Garry's wallet, and things of that kind.  At the house the applicant had been shown a double barrelled shotgun.  Garry Ross had picked it up and said words to the effect "Well, if you see this Ben.  If they don't pay, they will pay", or words to that effect.

10. The applicant was said to have been nervous and somewhat worried by this development.  Domenic had got himself a bandanna and a bush knife.  Domenic had told the applicant that if the two co‑offenders did not obtain the money, they were about to be evicted.  They were desperate and would be on the streets.  They had no place to live and no food.  The two co‑offenders had told the applicant that they needed the gun and the knife to scare the others.

11. It was said for the applicant that the whole situation had been totally foreign to him.  The three of them had driven to the house where the offences were committed.  The applicant had become extremely nervous.  He could see that the others were "hyped up and agitated".  He had realised that the situation with the gun was particularly dangerous.  He had thought that the only way he could do anything about the situation and reduce the element of danger, would be for him to take the gun.  He knew he was not going to shoot anybody but he was afraid that the others might.  He had never handled a gun in his life before.  He had not known whether the gun was loaded or not.  The applicant had not asked if the shotgun was loaded.  He had told the others to give him the gun and that he would use it to hold up the people in the house.  The person Domenic had kicked the gate.  They had then run into the house.  Garry Ross was yelling at the persons there to give him the money.  None of them had any money, although there was one wallet on the table.  Garry Ross had taken $20 out of that.  The three offenders had then turned to leave, but one of the persons from the house had come running out with a baseball bat.  The applicant had pointed the gun at that person and yelled at him to drop the bat and said words to the effect "Drop the bat.  You don't want to fuck with the Mafia.  Drop the bat and get on your knees."  That person had dropped the bat and got onto his knees.

1. Counsel for the applicant said that at no time did the applicant enter the house, but he had been on the patio area.  Garry Ross had gone into the house.  As soon as the person at the house had got on his knees, the three of them had run back to the car.  The gun had been thrown into the boot and they had all driven away.  The applicant had taken the two co‑offenders to Garry Ross' uncle's house, where he had dropped them off.  He had then driven home. 

2. On any account the applicant had never been promised anything arising from the robbery.  It had had nothing to do with him initially and he had not obtained any benefit from it.

3. The applicant gave evidence to the learned Judge.  He said he had probably met Garry three times before the incident, through being at Garry's brother's house.  He had also met Domenic once or twice through skating.  He told the Judge that two of his close friends had obtained employment for the two co‑offenders at an earlier time. He had not known they were involved in drugs prior to 14 August.  He had first learnt of that on the night of the offences.  They had told him that they were "into speed".  He had been told that the persons at the house where the offences were committed had been Garry's mates.  He had been living with them in Maylands in some flats.  The co‑offenders had told him that they had been evicted and that Garry's uncle was about to evict them from the house.  They did not have any money and they would be on the streets.  This was a last resort to get going again.

4. The applicant said that he had originally gone to the house to see Garry's brother Aiden.  The co‑offenders had asked him if he would give them a ride over to the house of their friends who owed them money.  They had told him that they would give him petrol money.  He had agreed to that.  After they had obtained the shotgun, he had just wanted to help them get the money and that was that.  He had not thought of any consequences.  He said he "was just going to drive them over there".  It was not until they had arrived at the park near the house that he had realised that he was involved and that if they shot anyone, or if anything happened, he would be an accomplice to that.  That was when he had said he would hold the gun and would hold the others up, because he knew he would not shoot anybody:

   "I was just trying to make, really … all I can say, is the best of a worse situation and it wasn't, like I said, until then that I realised or thought about any consequences."

5. When he was asked if it had occurred to him to try and leave then, he said:

   "No, because then I knew I was involved and we were already there.  I didn't think of leaving them."

6. The applicant said he had not thought to check the gun, or open it up to see if it was loaded.  He had never had anything  whatsoever to do with guns in the past.  He had said:

   "Look, give me the gun and I will hold them up.  You just get the money off them."

7. Garry Ross had told him that the people to be held up had been his best friends since school.  When they had walked into the yard, Garry had walked into the shed and was yelling at them demanding his money.  It was when he had been turning around to leave that a person had came running out of the house with the baseball bat.  The applicant had walked over to that person and told him to drop the bat and "not to fuck with the Mafia".  After that they had left straight away. 

8. The applicant told the Judge that he felt deep remorse about the incident.  He said he was "the number two" skateboarder in Australia.  He had started a business which had the potential to be Australia's biggest skateboarding company in a very short time.  He had come up with an idea and "practically every skateboarder would buy it". 

9. In cross‑examination the applicant said that he had hardly known Garry Ross and Domenic.  Garry was the elder brother of his friend Aiden, who was one of his friends through skating.  He told counsel that he did not realise that what he was going to be involved in was serious.  When he had originally gone with the other two with the shotgun, he did not think it was going to have anything to do with him.  He knew they were going to use it when they went to get the money.  It was when they had pulled up in the car that he had told them he would hold the gun, because he knew he was not going to shoot anyone, or anything like that.  When he had pointed the gun he had been at the door of the shed.  The other persons had been sitting around in a group.  He said it would not surprise him if one of those persons had said that he had had the shotgun pointed at his chest area from about three feet away.  When he was asked by the learned prosecutor why he had not withdrawn from the operation at the park he said:

   "Like I said, I was just trying to make the best of a worst situation really.  I knew that if they were going to do it and something happened, if they shot someone, when they seemed quite capable of it, that would be a lot worse."

10. He said he did not think he had been in a position to be able to talk them out of it.  He did not even try.

11. As can be seen from the above facts, these were most serious offences.  The question on the appeal is whether the learned trial Judge erred in sending the applicant to prison. 

12. In his sentencing remarks his Honour said that the applicant and two co‑offenders had gone to a house in Padbury with the intention of taking money from a man named Matthews, which money was allegedly owed for drugs purchased from a co‑offender.  He accepted that the applicant had not known that the shotgun was loaded.  But the applicant had pointed a shotgun at Matthews' head and the barrel had been within one foot of his face.  When that person retreated into the house the applicant had followed him to the patio area and had forced him to his knees.  He had also pointed the shotgun at a man named Wallace's chest, while his co‑offenders had demanded money from him.  $20 had been stolen by a co‑offender from Wallace's wallet.

13. His Honour said that the applicant had had a very happy childhood and a supportive home environment.  The pre‑sentence report had described him as an intelligent young man from a seemingly stable family environment.  His Honour said that the motivation for the commission of the offences appeared to be a mystery.  He noted that the applicant's father had suggested that the applicant may have acted impulsively to show bravado.  When interviewed the applicant had taken full responsibility for his part in the offence and had stated that he had made a foolish mistake.

14. The pre‑sentence report stated that the applicant appeared to have a bright future ahead of him, with full support from his family.  His Honour said that the applicant had no criminal convictions apart from a few minor traffic matters which were of no concern.  His Honour said that the Court of Criminal Appeal had stressed that sentences for armed robbery must be firmed up in the light of the fact that the incidence of armed robbery had grown substantially in recent times.  That the tariff for armed robbery was in the range of 6 to 9 years imprisonment for a single offence, depending on the circumstances.

15. His Honour said it was true that in rare and exceptional cases, or in extraordinary circumstances, a non‑custodial sentence might be appropriate, particularly where the offender had no, or no significant record and the prospects of rehabilitation were good.  It had been submitted to him that this was a rare and exceptional case.  However, his Honour said that he needed to take into account first, the gravity of the two offences which were extremely serious, and the use of the double barrel shotgun and the way it had been pointed at the victims.  The offences had been extremely grave.  His Honour took into account a victim impact statement from one of the victims who had said that due to the crime, he had been having difficulty in sleeping and restless nights, remembering how close he had come to being shot to death.  That person had had a double barrelled shotgun pointed at his head.  It was not surprising that from his point of view he had a very deep concern.

16. His Honour noted that the applicant had excellent references.  He accepted that he was regarded as being a person of good character.  He had excelled as a sportsman, achieving success in athletics, rugby, freestyle wrestling and more recently board skating.  Because of this he had become capable of earning substantial money.  His Honour said it was very much in his favour that he had no criminal convictions.  Also that he had strong family support.  His Honour took into account the fact that the applicant and his father were working  on a major skateboard enterprise.  He accepted that the applicant had remorse for what he had done and now realised the seriousness of it.  He had pleaded guilty at the earliest possible opportunity.

17. His Honour said that punishment and deterrence were important in relation to these offences.  The applicant had been disguised and had been holding a potentially dangerous weapon in circumstances which his Honour said were so serious, that they called for a deterrent sentence.  He said that the applicant did not seem to need rehabilitation.  He accepted that the applicant was not likely to offend again.  The applicant had jeopardised a very promising commercial enterprise but he had chosen to do that and should have appreciated that at the time. 

18. His Honour considered that the seriousness of the crimes was such that only a sentence of imprisonment could be imposed.  His Honour said he had looked very carefully at the question of suspending that sentence but had reached the view that the seriousness of the offences was such that he was unable to do that.  He said it did not appear that the applicant was a person who needed rehabilitation.  His Honour did not consider that any of the factors which had been identified by Steytler J in R v Liddington (1997) 18 WAR 394, as key factors in relation to the suspension of sentence were applicable and required, demanded, or entitled the applicant to the suspension of the sentence. The applicant was a person who had offended for really no good reason. He had no relevant prior record of convictions. There was no drug problem which would cause him to commit the offences:

    "In short, you committed them for no justifiable reason and in circumstances in which you don't appear to be needing rehabilitation for what you have done.  Rather, as I see it, the community expects a deterrent sentence to deter others from doing what you have done."

19. His Honour said that the sentence which he would impose would reflect the applicant's excellent antecedents, his pleas of guilty and his remorse.  The sentences imposed were three years imprisonment on both counts to be served concurrently with eligibility for parole.  The sentences dated from 1 November 1999.

20. At the appeal it was put for the applicant that rehabilitation in this case was an important consideration.  It was further submitted that a suspended sentence may be an appropriate disposition even in the case of an armed robbery: Valentini (1980) 2 A Crim R 170; Molina (1984) 13 A Crim R 76; Voegeler (1988) 35 A Crim R 174; R v Edwards (1993) 67 A Crim R 486; Lewfatt (1993) 70 A Crim R 66.

21. It was submitted that in this case, the principles of reformation and rehabilitation should have resulted in the sentences being suspended.  That there had been an error when his Honour said that the applicant did not appear to be a person who needed rehabilitation.  The real question was what was in the best interests of the community.

22. It was further submitted that the learned Judge had erred in holding that none of the factors identified by Steyler J in the Liddington case were applicable or required a suspension of the prison terms in this case.  Some factors were plainly applicable and militated in favour of suspension of the sentences.  It was further submitted that the learned sentencing Judge had erred when he had said:

    "I have looked very carefully at the question of suspending that sentence, but I have reached the view that the seriousness of the offences is such that I am unable to do so."

23. It was submitted that this was an exceptional case and that the imprisonment of the applicant was positively contrary to the interests of the community.  A suspended sentence would have been both just and in accordance with the best interests of the community:  R v Shaharuddin [1999] WASCA 229 per Malcolm CJ at [13].

24. In my opinion this was a most exceptional case.  Most unusually the applicant had nothing to gain by his offences.  From all the information the Court has at its disposal, the offences appear to have been committed without the applicant giving the matter serious thought.  He was young and had no relevant criminal record at all.  It was not as if he had been attempting to obtain money for drugs, or anything similar.  He was apparently asked by his co‑offenders to drive them to commit the offences for their purposes and not his own.

25. In Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998, which was a decision concerned with the punishment for armed robbery, Malcolm CJ said:

    "A sentence below the range commonly imposed may well be justified by specific mitigating factors such as an early plea of guilty, the youth of the offender and other mitigating circumstances.  In exceptional circumstances there may be a rare case in which a disposition other than by way of the imposition of a substantial term of imprisonment would be appropriate.  Counsel for the applicant referred to Lochowicz and Soutar in which intensive supervision orders were made."

26. According to the 1996 report of the Western Australian Crime Research Centre, the offence of robbery attracted imprisonment in 83 per cent of cases, compared to 92 per cent in respect of armed robbery.

27. There is nothing in the material before this Court to suggest that the applicant is likely to re-offend in any way.  In my view it is important in all the circumstances of these offences, that the future of a young man with this applicant's background be not unduly jeopardised if the interests of the community do not demand an immediate prison sentence.  It is not the case that every offence of armed robbery must be followed by a term of imprisonment.  There are, as can be seen from the previous decided cases, exceptional cases where sentences of immediate imprisonment are not imposed.  In my view, in this case, it was not necessary in the community's interests that the applicant be sentenced to a term of immediate imprisonment.

28. In R v Liddington (supra) at 406, Steytler J said:

    "Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence … whether there is any element of persistence … general deterrence … factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at … the need to demonstrate the condemnation of the community for offences of

that kind … and reasons militating in favour of an exercise of mercy … That list is, of course, not exhaustive."

1. In this case there was no element of persistence.  There is no real prospect of the applicant lapsing into further offences, but there is, in the community's interests, a need that this young man be rehabilitated, in the sense of being encouraged to get on with his life and to put these offences behind him.  In my opinion, error on the part of the sentencing Judge has been demonstrated. 

2. It was for those reasons that I concurred in the order to grant leave, allow the appeal and vary the order made, by ordering that the sentences of imprisonment be suspended for two years.

3. MURRAY J:  I am grateful in this case to have been able to read in draft the reasons for decision published by Kennedy J and Wallwork J.  I agree with Wallwork J that leave to appeal should be granted, the appeal should be allowed and the sentences of 3 years imprisonment to be served concurrently imposed by the learned sentencing Judge should be ordered to be suspended for 2 years under the Sentencing Act 1995 (WA), s 76.

4. I joined in making orders with considerable diffidence because of the thoroughness with which the case was presented to his Honour and because of the care and attention that his Honour gave to it.  The sole ground of the application was that the learned sentencing Judge erred in failing to order that the sentences of imprisonment he imposed be suspended.  There was not, and could not be, any challenge to his Honour's conclusion that, subject to the question of suspension of imprisonment, sentences of imprisonment for the terms imposed by his Honour were appropriate in all the circumstances.  Indeed they were arguably lenient sentences reflecting a very substantial allowance for the mitigation provided by the matters personal to the applicant and the early pleas of guilty which were entered. 

5. His Honour took the view which, with respect, was undoubtedly correct, that these were offences of very substantial gravity in which the applicant played a principal role.  He provided the transport and continued to do so when it was clear to him that his co‑offenders, two young males of about the same age as himself, were intent upon committing an offence of armed robbery to obtain payment of money said to be owing in respect of the supply of illicit drugs.  They were apparently affected by drugs at the time.  The applicant took possession of the loaded shotgun, although of course he was found by the learned sentencing Judge not to have

known that it was loaded.  It was accepted that he took possession of the weapon to ensure that it would not be deliberately discharged during the course of the commission of the offences in question.

1. Upon their arrival at the house the applicant played a substantial role in the aggravated burglary offence and in the commission of the armed robbery in company  It was he who menaced with the weapon a victim of the offence who showed signs of resistance, and it was he who at that time made threatening statements designed to prevent any further resistance to the theft of the $20 from the wallet of another victim.  No‑one was hurt, but the high level of danger that someone would be is self evident.

2. Although, as the learned sentencing Judge said, it provides no excuse or acceptable explanation for the applicant's involvement, it was accepted that once it became clear to the applicant what his co‑offenders planned, the applicant did not think of withdrawal as he should have done, but only of how his involvement might be managed in such a way as to minimise the prospect of harm occurring to any victim upon whom the offences were to be committed, offences from which he was to gain nothing.  While that is not an acceptable explanation for his involvement, it is understandable, particularly when one is speaking of such a decision taken by an obviously naïve young man just three months after his 18th birthday, on the spur of the moment when he was already caught up in the process of driving his co‑offenders to the place where they wished to confront those from whom they sought to obtain money.  It was not on that basis so much a matter of bravado, as surmised by the applicant's father, as appalling misjudgment which allowed him to be not only carried along by the events of the night, but also to become centrally involved in their perpetration.

3. In my view the acceptance of those facts reveals that the offences in question were committed by the applicant in highly unusual circumstances, which set him apart from his two co‑offenders who were also before the court and who were dealt with by the same sentencing Judge.

1. The position of the applicant is in my opinion rendered even more unusual by the fact that he is not a person who uses prohibited drugs, and he had only met one of the co‑offenders on a couple of prior occasions.  He was employed as a professional skateboarder and his capacities were accepted by the learned sentencing Judge to be such that he had a bright future ahead of him and was "capable of earning substantial monies."  He has no criminal convictions and enjoys strong support from a very worthwhile family.  The learned sentencing Judge accepted that the applicant's antecedents were extremely favourable.  There was every prospect that, the applicant having involved himself on this particular occasion in the commission of two very serious offences in the circumstances described above, he had by the time he came before the court quite recovered his previous good character and was back on track to function as a law abiding and worthwhile member of the community.

2. The learned sentencing Judge remarked that the applicant appeared not to be in need of rehabilitation, by which I think it is clear that his Honour meant that even at the time the applicant appeared before him he had achieved that goal and needed no further assistance by any order the court might make to achieve the recovery of his good character for the future.  His Honour accepted that the applicant was remorseful and now realised the seriousness of what he had done.  He was not, his Honour said, at all likely to offend again.

3. However, the learned sentencing Judge concluded that not only was imprisonment the only appropriate punishment, but that the seriousness of the offences were such as to preclude the suspension of imprisonment.  His Honour referred to various factors relating to that question identified, although not as an exhaustive list, by Steytler J in R v Liddington (1997) 18 WAR 394 at 406 before he expressed his conclusion about the offences and the question whether the imprisonment he was to impose should be suspended, by saying to the applicant:

   "In short, you committed them for no justifiable reason and in circumstances in which you do not appear to be needing rehabilitation for what you have done.  Rather, as I see it, the community expects a deterrent sentence to deter others from doing what you have done."

   In my respectful opinion, it is in the conclusion that the offences were too serious to allow for the suspension of imprisonment that the exercise of discretion has miscarried.

4. In R v GP (1997) 18 WAR 196 at 234 I said:

   "For myself, I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non‑custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful.

   Given that the ultimate aim is the protection of the community from further offending of a like kind by this and other like minded offenders, it should be the case that sufficient general deterrence will be found in the term of imprisonment fixed, which might indeed require to be served in accordance with the law.  The fixing of the appropriate term should satisfy the denunciatory requirements of the imposition of sentence.  There should be seen to be sufficient particular deterrence in respect of the offender before the court in the expectation that the sentence will most likely have to be served if a further offence punishable by imprisonment is committed, or in other words, if the conditions of suspension are breached.  In addition, the circumstances of the case should be such that, not only is it desirable from the offender's point of view that immediate imprisonment should be avoided, but that the suspension of the sentence in the light of the prospect that the imprisonment may yet ultimately have to be served will provide for the offender a positive impetus towards the continuation of a process of rehabilitation and the achievement of his or her ultimate reformation, or that there are affirmative reasons which require the court to extend mercy to the offender."

5. The learned sentencing Judge appreciated that in exceptional or unusual cases, offences such as those committed by the applicant may be dealt with other than by the imposition of imprisonment to be immediately served, although, speaking generally, it is necessary to remember that because of the prevalence of such offences, there is a need to firm up the sentencing approach of the courts in an effort to effectively serve the principle of general deterrence so as to better protect the community from those who would commit such offences: Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521; Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 per Malcolm CJ at 11.

6. In R v Shaharuddin [1999] WASCA 229; 1 November 1999 at [12 ‑ 13] Malcolm CJ did, however, caution that:

   "While personal and general deterrence remain accepted objectives to be achieved in sentencing, the courts and the public must accept the limited effectiveness of firming‑up or increasing sentences to deter offenders from re‑offending or deterring others for offending.  The greater emphasis is on the protection of the community by taking offenders out of circulation and marking disapproval of the behaviour by imposing imprisonment as a punishment.  In furthering these purposes, the obligation of the courts is to do what is in the best interests of the community.  It has been recognised that in some cases it is in the best interests of the community not to imprison a particular offender, even for a serious offence."

7. This in my opinion was, in its most unusual circumstances, such a case.  I am moved by the unusual, indeed bizarre, circumstances surrounding the commission of the offences by the applicant, his youth, his remorse, his unblemished character prior to his involvement in the commission of these offences and the powerful mitigation provided by his antecedents, to the conclusion that particular deterrence was not required and general deterrence could be sufficiently served by the imposition of sentences of imprisonment and their length. 

8. But in my view the circumstances were not such as to demand that this young offender should be immediately sent to prison for the first time.  The particular circumstances of the case were such that a merciful disposition by suspending imprisonment was required.  It was an exceptional case.  The best interests of the community were served by a merciful disposition which built upon the remedial shock of the pronouncement of his Honour's view that imprisonment was the appropriate punishment to reinforce in the applicant the necessity never again to behave in such a way as to bring him before a criminal court.

9. I agree with Wallwork J and with the orders made.