Wheeler v The State of Western Australia
[2007] WASCA 109
•15 MAY 2007
WHEELER -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 109
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 109 | |
| THE COURT OF APPEAL (WA) | 29/05/2007 | ||
| Case No: | CACR:110/2006 | 15 MAY 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER AJA | 15/05/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | ROBERT WILLIAM WHEELER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Four counts of armed robbery Totality principle Turns on own facts |
Legislation: | Criminal Code (WA), s 392 |
Case References: | Braham (1994) 73 A Crim R 353 Dinsdale v The Queen (2000) 202 CLR 321 Jarvis v The Queen (1993) 20 WAR 201 Kiesey v The State of Western Australia [2005] WASCA 229 Lowndes v The Queen (1999) 195 CLR 665 Maroney v The State of Western Australia [2006] WASCA 130 Nancarrow v The State of Western Australia [2006] WASCA 238 Postiglione v The Queen (1997) 189 CLR 295 Readhead v The State of Western Australia [2005] WASCA 191 Seroka v The State of Western Australia [2006] WASCA 284 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHEELER -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 109 CORAM : STEYTLER P
- McLURE JA
MILLER AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 43 of 2005
Catchwords:
Criminal law - Appeal against sentence - Four counts of armed robbery - Totality principle - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 392
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr P D Yovich
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Braham (1994) 73 A Crim R 353
Dinsdale v The Queen (2000) 202 CLR 321
Jarvis v The Queen (1993) 20 WAR 201
Kiesey v The State of Western Australia [2005] WASCA 229
Lowndes v The Queen (1999) 195 CLR 665
Maroney v The State of Western Australia [2006] WASCA 130
Nancarrow v The State of Western Australia [2006] WASCA 238
Postiglione v The Queen (1997) 189 CLR 295
Readhead v The State of Western Australia [2005] WASCA 191
Seroka v The State of Western Australia [2006] WASCA 284
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
(Page 3)
1 JUDGMENT OF THE COURT: In a trial commencing on 19 June 2006, the appellant was charged with seven counts of armed robbery in contravention of s 392(c) of the Criminal Code (WA) and one count of assault with intent to rob in contravention of s 393(c)(i) of the Code. On 22 June 2006, after the complainants had given evidence and been subjected to cross-examination, the appellant indicated that he would plead guilty to four charges of armed robbery (being the charges the subject of counts 5, 6, 7 and 8 on the indictment). He did so on 27 June 2006. The State accepted those pleas of guilty in full satisfaction of the indictment. The remaining charges were discontinued. The appellant was sentenced to terms of 5 years' imprisonment in respect of each of counts 5 and 6 and to terms of 4 years' imprisonment in respect of each of counts 7 and 8. The two 5-year terms were ordered to be served cumulatively upon each other. The terms imposed in respect of counts 3 and 4 were ordered to be served concurrently with that imposed in respect of count 1. All of the sentences were ordered to be served concurrently with some 2318 outstanding parole days then owed by the appellant, giving a total effective sentence of 10 years' imprisonment. The trial Judge declined to order that the appellant be eligible for parole. The appellant appeals against the aggregate sentence imposed on him.
2 There were initially two grounds of appeal. The first contends that the total sentence imposed was manifestly excessive, being "contrary to the totality principle and parity principle of sentencing". The second ground is to the effect that the sentencing Judge was misinformed by the prosecution that the appellant owed 2318 parole days when, in fact, he did not owe any parole days. Counsel for the appellant pursued only the first ground. The second was abandoned at the commencement of the appeal in the light of further information that had been made available to counsel for the appellant in respect of it. At the conclusion of argument we dismissed the appeal upon the basis that the first ground had not been made out and said that we would provide our reasons in due course. We now do so.
3 It is established that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently. It must appear that some error has been made in the exercise of the sentencing judge's discretion: Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672; Dinsdale v The Queen (2000) 202 CLR 321 at 324 - 325. Error may be inferred when the result of the sentencing process is unreasonable or unjust. A ground of appeal which alleges, in effect, that the length of the aggregate sentence is unreasonable or unjust simply because it is manifestly excessive is
(Page 4)
- necessarily one which asserts the existence of an implicit error in the application of the totality principle. In Dinsdale at 325 [6], Gleeson CJ and Hayne J said of a ground of this kind that:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
5 There are two limbs to the totality principle. Both are relied upon by counsel for the appellant. The first is that in the case of multiple offences the aggregate of the sentences imposed should be a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J. The second limb requires the court (ordinarily) not to impose a "crushing" sentence. A sentence will be crushing when it deprives the offender of any reasonable expectation of useful life after release. An aggregate sentence may be inappropriately long under the first limb of the principle even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J.
6 We are not persuaded that either limb of the principle has been ignored or misapplied in this case.
7 As to the first limb, there are, as McLure JA pointed out in Seroka v The State of Western Australia [2006] WASCA 284 at [57], two different theories as to its rationale. The first is the "exponential theory", to the effect that the severity of imprisonment increases exponentially as it increases in length: Jarvis at 207 per Ipp J, at 213 per Murray J. The second, and in our respectful opinion preferable, theory is based on assumed rehabilitation and reduced demand for retribution after the offender has served the first sentence: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J. Either way, the aggregate sentence imposed should, as we have said, be a just and appropriate measure of the total criminality of the offending as a whole.
(Page 5)
8 Offences of the kind committed by the appellant are regarded extremely seriously by the legislature. That is evident from the fact that s 329(c) of the Code provides for a maximum sentence of life imprisonment for an offence of armed robbery. In the case of each of these robberies the appellant was armed with what appeared to be a handgun. On each occasion it was pointed at the complainant in question in a threatening manner. The businesses targeted by the appellant were two service stations and two TAB outlets. During the course of each robbery the appellant was disguised with a black stocking-like mask pulled over his head. In the course of the robbery the subject of count 5 on the indictment, the appellant approached a woman who was paying for petrol at the time of the robbery, pushed her up against the counter with his arm against her shoulder blade and pinned her there throughout the robbery. In the case of the robbery charged in count 8 on the indictment, the appellant pointed the handgun at a male customer who was in the TAB at the time of the robbery and who was crouched on the floor.
9 There was little by way of mitigation. The appellant was, at the time of sentencing, 58 years old and had an extensive history of convictions for armed robberies and other dishonesty and property offences. His history of offending behaviour had been contributed to by a gambling problem, although the sentencing Judge was told by the appellant's counsel that he no longer suffered from it, "albeit he still does dabble in horses". Whatever may be the position in that respect, there seems to be little prospect of rehabilitation. The appellant's record reveals that he has made a career out of crime. His latest convictions took the total number of armed robberies committed by him to 14.
10 The appellant was entitled to some reduction in sentence as a result of his pleas of guilty. However, even these did not carry the usual weight, given that they were entered only part-way through the trial (and immediately after the tendering of evidence of an intercepted telephone call in which the appellant had admitted to his mother that he had committed four robberies).
11 In all of these circumstances, and especially when regard is had to the seriousness of the appellant's offending and the limited nature of the available mitigation, it seems to us to be impossible to argue that the total sentence imposed, even when looked at together with the time spent in custody by the appellant (he was remanded in custody on 21 October 2004 and remained there, arising out of his breach of parole in respect of unrelated sentences, until he was sentenced for the present offences), was so excessive as to reveal an error in the application of the first limb of the
(Page 6)
- totality principle. That is especially so in circumstances in which the sentences imposed were ordered to be served concurrently with the outstanding breach of parole days.
12 This conclusion is reinforced by an examination of the cases. It is sufficient, in this respect, to refer to four cases, each of which has comparatively recently come before this Court.
13 In Kiesey v The State of Western Australia [2005] WASCA 229, the appellant pleaded guilty to two counts of aggravated armed robbery and two counts of stealing a motor vehicle, the offences having been committed while he was on parole. He was a 25-year old man with a long record arising out of a drug problem. He was sentenced to a total of 7 years' imprisonment to be served cumulatively upon an existing sentence with 465 unexpired parole days to be served. His appeal against sentence was dismissed.
14 In Readhead v The State of Western Australia [2005] WASCA 191, the appellant had pleaded guilty to five counts of armed robbery and one of attempted armed robbery. Once again, the offences were committed while he was on parole. He had a long record. He was 35 years old. He was a drug user and had a long standing schizophrenic illness. On the appeal, he was sentenced to 7 years' imprisonment to be served cumulatively upon an existing term of 3 years' imprisonment. That sentence took account of his pleas of guilty and his mental illness.
15 In Maroney v The State of Western Australia [2006] WASCA 130, the appellant was convicted of five offences of armed robbery, some with actual or personal violence and two in company. He was also convicted of attempted armed robbery, robbery with violence, stealing a motor vehicle and driving recklessly, unlawful detention, assault of a police officer and a number of minor offences. Most of the offences were committed while he was on parole for previous offences. After a successful appeal he was sentenced to a total term of 9 years and 6 months' imprisonment to be served cumulatively upon an existing term of 4 years' imprisonment. It is not apparent from the judgment of the Court of Appeal whether the appellant had pleaded guilty on all charges.
16 In Nancarrow v The State of Western Australia [2006] WASCA 238, the appellant had been convicted, on his plea of guilty, of five offences of armed robbery in company and one of assault occasioning bodily harm. He was an amphetamine addict and had cooperated with the police. There was an element of coercion by a co-offender. He was
(Page 7)
- sentenced to a total term of 8 years and 3 months' imprisonment. This sentence was upheld on appeal.
17 Given the seriousness of the appellant's offending in this case, the large number of parole days that were owed by him and the limited mitigation available to him, there is nothing in any of these cases (or in any other case to which we were referred) to suggest that the aggregate sentence imposed upon the appellant, to be served concurrently with his outstanding parole days, was disproportionate to his offending, whatever may be the rationale for the first limb of the totality principle.
18 As to the second limb, counsel for the appellant contends that the sentence imposed upon the appellant is crushing when regard is had to the fact that he will be 68 years old before he is released (he was about 58 years old at the time of sentencing). He says that, for this reason, the effect of the total sentence imposed upon him is that he is left with no reasonable prospect of useful life after his release.
19 It is true that advanced age, like youth, sometimes calls for leniency. However, much depends upon the individual circumstances of the case. In Braham (1994) 73 A Crim R 353 at 366, Angel J said (omitting citations):
"Whether leniency on account of youth or advanced age is called for in any particular case depends on the circumstances of the case. Undoubtedly there are some offences so heinous that long sentences of imprisonment are appropriate whatever the age of the offender. Aggravated armed robberies carried out with loaded firearms, particularly in dwelling houses at night … offences involving serious violence, the unlawful use of firearms to maim, planned crime for wholesale profit and active large scale trafficking in dangerous drugs are examples of crimes where ordinarily, little, if any, account is taken of age in mitigation of penalty … "
- It seems to us that repeated armed robberies carried into effect by a career criminal are in a similar category. It was the appellant's choice to embark upon his offending behaviour notwithstanding that he must have appreciated that it would result in a long term of imprisonment if he was apprehended. Moreover, his age is not so advanced that it justifies leniency without more. In any event, any weight that his age might have carried in the sentencing process is overwhelmed by the seriousness of the appellant's offending behaviour, and its sustained character. He is plainly
(Page 8)
- a man from whom the community should be protected. We are not persuaded that the aggregate sentence should be regarded as crushing for this, or any other, reason.
20 While this is not directly raised in any of his grounds of appeal (and nor was it pursued in oral submissions), the appellant contended in his written submissions that the trial Judge erred in not making him eligible for parole. Although it is unnecessary to deal with this contention in the absence of any ground of appeal to that effect, we will comment on it, if only for the sake of completeness.
21 Section 89(4) of the Sentencing Act 1995 (WA) provides that a court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least two of four factors. Those are that the offence is serious; that the offender has a significant criminal record; that the offender, when released from custody under a release order made previously, did not comply with the order; and any other reason the court considers relevant.
22 Each of the first three factors was present in this case. As to the first of them, each of the offences was plainly serious. As to the second of them, we have already said that the appellant has a significant criminal record, encompassing repeated offending of a serious kind. However, it was the third factor which seems to have carried the most weight with the sentencing Judge. The appellant had previously been released on parole on no less than 12 occasions. On every occasion he had breached parole. In an oral pre-sentence report provided by a community corrections officer, the sentencing Judge was told of the unsuccessful attempts that had previously been made to have the appellant meet his parole conditions. The court was told that the appellant "responds only superficially with attempts at intervention and has no real insight into the pathology of his behaviour". The corrections officer suggested that he had "lost the ability to function in the wider community, due to his having internalised a means of functioning which is inconsistent with community values", by which he appeared to refer to the fact of institutionalisation of the appellant. He said, in that respect, that the appellant seemed to function well in the prison environment and generally seemed quite comfortable there. The appellant was considered to be unlikely to benefit from further involvement in community supervision.
23 In these circumstances it was undoubtedly open to the sentencing Judge to decline to make a parole eligibility order. No error has been demonstrated in the exercise of his discretion in that regard.
(Page 9)
Conclusion
24 We accordingly dismissed the appeal.
411
10
1