Williams v The State of Western Australia
[2016] WASCA 232
•23 DECEMBER 2016
WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 232 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:222/2015 | 15 DECEMBER 2016 | |
| Coram: | NEWNES JA MAZZA JA BEECH J | 23/12/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | BRONWYN ANNE WILLIAMS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and sentencing Offences of aggravated armed robbery, armed robbery, attempted armed robbery, robbery and stealing Mentally impaired offender Whether total effective sentence of 7 years' imprisonment infringed first limb of totality principle Turns on own facts |
Legislation: | Nil |
Case References: | Fisher v The State of Western Australia [2015] WASCA 114 Garraway v The State of Western Australia [2015] WASCA 240 Gillespie v The State of Western Australia [2016] WASCA 216 Gok v The State of Western Australia [2010] WASCA 185 Krijestorac v The State of Western Australia [2010] WASCA 35 McNab v The State of Western Australia [2010] WASCA 66 Morris v The State of Western Australia [2011] WASCA 47 Pryor v The State of Western Australia [2014] WASCA 143 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Williams [2015] WASC 347 The State of Western Australia v Williams [2015] WASCSR 245 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 232 CORAM : NEWNES JA
- MAZZA JA
BEECH J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTINO J
File No : INS 212 of 2014
Catchwords:
Criminal law and sentencing - Offences of aggravated armed robbery, armed robbery, attempted armed robbery, robbery and stealing - Mentally impaired offender - Whether total effective sentence of 7 years' imprisonment infringed first limb of totality principle - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms K J Farley SC
Respondent : Mr L M Fox
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fisher v The State of Western Australia [2015] WASCA 114
Garraway v The State of Western Australia [2015] WASCA 240
Gillespie v The State of Western Australia [2016] WASCA 216
Gok v The State of Western Australia [2010] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
McNab v The State of Western Australia [2010] WASCA 66
Morris v The State of Western Australia [2011] WASCA 47
Pryor v The State of Western Australia [2014] WASCA 143
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Williams [2015] WASC 347
The State of Western Australia v Williams [2015] WASCSR 245
Wheeler v The Queen [No 2] [2010] WASCA 105
1 REASONS OF THE COURT: This is an appeal against sentence.
2 The appellant was tried in the Supreme Court by Martino J alone on eight counts in an indictment.1
3 Count 1 alleged that on or about 11 November 2012, at Tuart Hill, the appellant stole a motor vehicle, contrary to s 371A and 378 of the Criminal Code (WA) (the Code).
4 Count 2 alleged that on 12 November 2012, at Wembley, the appellant stole, with threats of violence, a sum of money the property of the Wembley Hotel and that at the time the appellant was armed with an offensive weapon, namely a knife, contrary to s 392 of the Code.
5 Count 3 alleged that on 27 November 2012, at Padbury, the appellant attempted to steal, with threats of violence, a motor vehicle, and at the time the appellant was armed with an offensive weapon, namely a knife, contrary to s 392 and s 552 of the Code.
6 Count 4 alleged that on 27 November 2012, the appellant stole a mobile telephone, contrary to s 378 of the Code.
7 Count 5 alleged that on 27 November 2012, at Warwick, the appellant stole, with threats of violence, a motor vehicle the property of HH, who was over the age of 60 years, and at the time the appellant was armed with an offensive weapon, namely a knife, contrary to s 392 of the Code.
8 Count 6 alleged that on 27 November 2012, at Dianella, the appellant stole, with threats of violence, a sum of money the property of the Westpac Banking Corporation, contrary to s 392 of the Code.
9 Count 7 alleged that on 27 November 2012, at Booragoon, the appellant stole, with threats of violence, a sum of money the property of the ANZ Banking Corporation and at the time the appellant was armed with an offensive weapon, namely a knife, contrary to s 392 of the Code.
10 Count 8 alleged that on 31 March 2015, at Rivervale, the appellant attempted to steal, with threats of violence, a motor vehicle, and at the time the appellant was armed with an offensive weapon, namely a knife, contrary to s 392 and s 552 of the Code.
11 On 21 September 2015, the appellant was convicted of all eight counts.2
12 On 18 November 2015, the appellant was sentenced as follows:
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13 The learned sentencing judge ordered that the sentences on counts 2 and 7 be served cumulatively. The other sentences were ordered to be served concurrently with each other and concurrently with the sentence on count 2. Thus the total effective sentence was 7 years' imprisonment. The appellant was made eligible for parole and the total effective sentence was backdated to commence on 13 July 2013.
14 The appellant requires an extension of time within which to appeal. The respondent did not oppose the appellant's application to extend time. The delay in filing the appeal was short and adequately explained.3 An extension of time should be granted.
15 The appellant originally relied on two grounds of appeal. At the hearing of the appeal, senior counsel for the appellant abandoned ground 2 (appeal ts 22). The appellant does not challenge any of the individual sentences that were imposed upon her. Nor does she allege that the sentencing judge made any factual or legal error. Ground 1 alleges that the total effective sentence infringes the first limb of the totality principle. Leave to appeal has been granted in respect of this ground.
The facts and circumstances of the offending
16 At trial, the appellant did not dispute the facts of the alleged offences.4 She claimed that the offences had been committed under duress, pursuant to s 32 of the Code. In broad terms, she testified that she was selling illicit drugs, and that other drug dealers had 'fined' her for doing so. These 'fines' built up to a considerable sum of money which she refused to pay. As a result, threats were made to the effect that if she did not pay up, she or her children would be harmed. It was in response to these threats that she said she committed counts 1 - 7. With respect to count 8, she testified that, while travelling on a bus, she was told that a man 'had [her] children' and was taking them away. She said that she got off the bus and took the first car that she saw in order to get her children back.
17 His Honour rejected Ms Williams' testimony as to her indebtedness and being told of threats to harm her or her children. In rejecting her evidence, his Honour noted that the appellant 'appeared to believe what she was saying' and concluded that she did in fact believe those matters.5
18 In his Honour's sentencing remarks, he described the facts of the offences in these terms.6
The facts of count 1, the offence of stealing a motor vehicle, are that between 9.00 pm on Sunday 11 November 2012 and 5.10 am on Monday 12 November 2012 the victim's car was stolen. At about 6.20 pm on 12 November 2012 you used that stolen vehicle to commit an armed robbery at the Wembley Hotel. The vehicle was later located by police abandoned in Dianella.
The facts of count 2, an offence of armed robbery, are that at about 6.20 pm on Monday 12 November 2012 you went to the bottle shop at the Wembley Hotel. You attempted to conceal your identity by wearing a hat, sunglasses and a bandana covering the lower half of your face.
You walked to the side of the counter, approached a staff member and you grabbed him on the right arm. You held a large kitchen knife above your head, with the blade pointing towards the staff member. At the time the staff member was on the phone to the hotel manager. You repeatedly yelled at him to open the till. The staff member tried to open the till but was unable to do so.
The hotel manager attended the bottle shop. You let go of the staff member and moved towards the manager. You held the knife in front of your chest in a threatening manner and repeated your demands to the manager. The manager attempted a couple of times to open the register. You moved towards the manager, who told you to go back. You did move back. Eventually, the till was opened. You reached into the register, stole $500 and left.
The facts of count 3, an offence of attempted armed robbery, are that, at approximately 6.55 am on 22 November 2012 a mechanic was at a petrol station in Padbury and was putting air into the tyres of a customer's motor vehicle. You drove into the petrol station in a stolen car and parked next to the motor vehicle. You walked up to the mechanic and produced a knife. You then demanded the keys for the motor vehicle and got into it. The mechanic did not give you the keys, but ran up to the service station window and asked the attendants to call police.
The facts of count 4, the offence of stealing, are that the mechanic returned to the car and saw you rummaging through it. He held the driver's door shut to prevent you getting out. You took his mobile phone, which was inside the car and then left.
The facts of count 5, the offence of aggravated armed robbery, are that, on 27 November 2012 you drove a stolen car into the Warwick Shopping Centre. At the same time the victim, a woman aged 75, parked her car in that shopping centre. She got out of her car to check if she had parked correctly. You walked towards her and yelled at her to give you her keys, saying you needed her car. The victim had her car keys in her hand and was clutching onto them. You grabbed her hand with your left hand. With your right hand, you held a knife to the left side of her neck just below the chin and you shouted, 'I have to do this for my children', and then grabbed the victim's keys, pushed her aside, got into the driver's seat of her car and commenced to reverse the car.
The victim shouted for help. A passerby pulled the victim out of the way. Had she not been pulled out of the way she could have been seriously injured.
You drove off in her car. The victim was physically and emotionally shaken by the incident. When you drove off, a passerby chased the car and managed to open a back door, but you sped off with the door open.
The facts of count 6, an offence of robbery, are that at approximately 10.30 am on 27 November 2012 you went to the Westpac Bank branch located at the Dianella Shopping Centre. You attempted to conceal your identity by pulling the hood of your jumper over your head and wearing large sunglasses. You waited in the teller queue until it was your turn to be served.
You approached the counter and said to the teller that you wanted her to get a bag and put all the money into it. Your hands were initially in your jumper and below the counter, moving in an agitated manner. You then reached out your right hand towards the teller, pointing to an open drawer where cash was clearly visible. Your other hand remained inside your jumper pocket below the counter.
The teller pressed the duress alarm and the bank manager approached. The teller told the bank manager that she was being held up. The teller reached into the cash drawer and removed $700 and handed it to you, which you took.
The facts of count 7, an offence of armed robbery, are that at about 11.45 am on 27 November 2012 you went to the ANZ Bank branch in Booragoon. You attempted to conceal your identity by pulling the head of your jumper over your head, wearing large sunglasses and concealing the lower half of your face with a piece of white cloth.
You approached the counter and repeatedly yelled at the teller to give you money. You then produced a fold-out knife about 10 cm long and pointed it towards the teller, telling her to hurry up. The teller reached into her cash drawer and removed cash and handed it to you. You took the cash and demanded more, and produced another knife. The teller gave you some more notes and you then left, taking with you the stolen $1,450 in cash.
The facts of count 8, an offence of attempted armed robbery, are that at approximately 11.50 am on 31 March 2015 you were in the Red Rooster car park on Great Eastern Highway, Rivervale. You approached the victim, who was sitting in his Ford Territory car at the Red Rooster transaction window. You walked up to the driver's side window, produced a kitchen-style knife, pointed it at the victim and demanded he get out of the car, stating you wanted his car.
The victim refused to get out of his car and you tried to open the door while pointing the knife at the victim. The victim pushed you away and you ran away from the area towards Armadale Road in Rivervale. The victim followed you and telephoned the police. Ultimately, police found you and you provided a false name, but you were identified through fingerprints.
19 There is a gap of approximately two years and four months between the commission of counts 1 - 7 and count 8. The appellant was remanded in custody, after the commission of count 7, between 28 November 2012 and 8 August 2014. On 9 August 2014, she was granted bail in the Stirling Gardens Magistrates Court, essentially on compassionate grounds to care for her terminally ill mother.7 The appellant's mother passed away in December 2014. Count 8 was committed about three months later while the appellant was on bail.8 She was arrested shortly after she committed this offence, and remained in custody on remand until she was sentenced.
The appellant's personal circumstances
20 The appellant was born in January 1981. At the time she committed counts 1 - 7, she was 31 years old. She was 34 when she committed count 8.9
21 The appellant's childhood was troubled. Her father died when she was very young. She did not regularly attend school. The appellant was subject to abuse from the age of 14 years. She left home at the age of 16.10 She has no real vocational skills. The appellant has four children. They are being cared for by others. The appellant started using illicit drugs and alcohol during her adolescence.11 Since then, her illicit drug use has been more or less constant. Her preferred drugs are methylamphetamine and heroin. The appellant has participated in rehabilitation programmes, and has had periods of abstinence, most notably while she was caring for her terminally ill mother. However, after her mother's death, the appellant resumed using drugs.12
22 The appellant has a long history of mental illness. She was diagnosed with schizophrenia when she was 17. She has been admitted to hospital on several occasions due to her mental illness. She has also been treated by various community mental health services.13 Dr Mircea Schineanu, a consultant psychiatrist, noted in a report addressed to Martino J dated 25 October 2015 that the appellant has a tendency to avoid psychiatric follow-up treatment when she is in the community, and has impaired insight into her mental illness.14 The appellant suffers from chronic paranoid psychosis, which seems to have evolved independently of her illicit drug use. The main symptoms of this psychosis are auditory hallucinations and persecutory delusions. The appellant does not fully appreciate that her psychotic experiences and hallucinations are delusions.15
23 The appellant's illicit drug use has also given rise to mental and behavioural disorders. Moreover, she has an antisocial personality. Her mental illness, drug use and antisocial personality have contributed to her offending.16
24 According to Dr Schineanu, the appellant's entrenched history of substance abuse has been a major destabilising factor of her mental illness, with adverse consequences upon her personality and behaviour.
25 The appellant has a lengthy criminal history which is comprised of many minor or relatively minor offences. She has not previously committed offences of the magnitude and seriousness of this case.
The sentencing remarks - mental illness
26 As the appellant does not allege any express error on the part of the sentencing judge, it is unnecessary to canvass the sentencing remarks in detail. As the arguments in support of her ground of appeal focus upon the appellant's mental illness, it is relevant to describe how his Honour dealt with this issue in the sentencing remarks.
27 His Honour said that the appellant's mental illness was relevant in a number of distinct ways. He found that, at the time she committed the offences, her judgment was impaired and her ability to control her actions was reduced. These factors, he said, reduced her moral blameworthiness. His Honour also found that they reduced the need for general deterrence. However, his Honour also found that there was a 'strong need' to ensure that the community was protected from her. In this regard, he noted that counts 2, 3, 5, 6, 7 and 8 were 'extremely serious'. His Honour observed that, other than in count 6, the appellant was armed with a knife when she committed the offences. His Honour addressed the question of the appellant's risk of reoffending. He found that, if the appellant returned to taking illicit drugs and failed to comply with her medication for her mental illness, the appellant's risk of reoffending was 'medium to high'.17
Principles applicable to appeals against sentence
28 Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Express error involves acting on a wrong principle, for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.18
29 An alleged infringement of the totality principle involves an allegation of implied error. The principles relevant to an appeal on grounds of totality were stated in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]. The totality principle has two limbs, the first of which is relevant to this appeal. The first limb is that the total effective sentence must bear a proper relationship to the total criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at simply by adding up all the terms appropriate for the individual sentences.
The appellant's submissions
30 Senior counsel for the appellant expressly did not maintain a number of contentions raised in the appellant's written submissions. She did not pursue arguments raised in the appellant's case to the effect that the sentences infringed the so-called one transaction rule or that his Honour erred in his assessment of the appellant's risk of reoffending or that his Honour did not have regard to a psychiatric report written by Dr Vicki Pascu, dated 15 October 2014. With respect to this latter point, senior counsel acknowledged that the report was not before Martino J and that, in any event, nothing turned on its contents.
31 Senior counsel's oral submissions were focused on the appellant's mental illness. It was submitted that, having regard to its causative effect on the appellant's offending behaviour and, in particular, that it reduced her moral blameworthiness and the need to provide general deterrence, the total effective sentence of 7 years' immediate imprisonment was plainly unjust or unreasonable.
Disposition of the ground of appeal
32 His Honour was correct to characterise the offending in counts 2, 3, 5, 6, 7 and 8 as 'extremely serious'. In all of these offences, save for count 6, the appellant was armed with, and brandished, a knife. Count 5 was particularly bad. The appellant held a knife against the neck of a 75-year-old victim and almost collided with her as she drove away.
33 The offending encompassed by counts 1 to 7 occurred over a period of just over two weeks, and involved repeated acts of serious violence. While no-one suffered actual physical injury, her actions must have instilled a high degree of fear in those she robbed or attempted to rob.
34 Count 8 occurred while the appellant was on bail and was similar in its method to the robbery offences she had committed more than two years before. By then, the appellant had relapsed into illicit drug use.
35 The principles with respect to mental impairment are well established and have been described in a number of decisions of this court, including Krijestorac v The State of Western Australia [2010] WASCA 35 [18] - [19] (Wheeler JA); Wheeler v The Queen [No 2] [2010] WASCA 105 [5] - [10] (McLure P) and Gok v The State of Western Australia [2010] WASCA 185 [53] - [61] (Mazza J).
36 The existence of a causal relationship between a mental illness and the offences does not automatically result in the offender receiving a lesser sentence. While the existence of a causal connection might reduce moral blameworthiness and the importance of general deterrence, it might also, in some cases, increase the importance of specific deterrence or the need to protect the public. This is such a case.
37 The protection of the public was an important sentencing factor in this case, having regard to the nature of the offending, its repetitive nature and the risk of reoffending posed by the appellant. Although general deterrence was not significant, personal deterrence remained important, as senior counsel for the appellant accepted in her oral submissions (appeal ts 23).
38 The appellant relied upon the following cases as comparators: Fisher v The State of Western Australia [2015] WASCA 114; Pryor v The State of Western Australia [2014] WASCA 143; McNab v The State of Western Australia [2010] WASCA 66; Garraway v The State of Western Australia [2015] WASCA 240 and Morris v The State of Western Australia [2011] WASCA 47. These cases do not require individual or lengthy analysis. It is sufficient to say that none of them involved offending as serious as the offending in the present case.
39 The appellant did not have the benefit of such mitigating factors as pleas of guilty, good character or youth. Her prospects of rehabilitation, which depend upon her remaining abstinent from illicit drugs and being compliant with the medication that is prescribed to her for her mental illness, are, having regard to past performance, moderate at best.
40 Some accumulation of the individual sentences that were imposed was required to properly reflect the appellant's criminality. That said, his Honour expressly had regard to the totality principle and ordered that all but two of the sentences be served concurrently. Moreover, given the seriousness of the appellant's offending, especially on count 5, it would have been open to impose individual sentences higher than those imposed by his Honour. Taking into account all relevant sentencing considerations, including the appellant's mental illness and other matters personal to her, we have not been persuaded that the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle. The sentence is not plainly unjust or unreasonable. Ground 1 has not been made out. The appeal must be dismissed.
Orders
41 The orders that we would make are:
1. An extension of time is granted.
2. The appeal is dismissed.
1 AB 51 - 52.
2The State of Western Australia v Williams [2015] WASC 347 (Williams (No 1)).
3 Affidavit of Alixandra McGregor AB 6 - 7.
4Williams (No 1) [5].
5Williams (No 1) [122] - [126].
6The State of Western Australia v Williams [2015] WASCSR 245 [2] - [17] (Williams (No 2)).
7Williams (No 2) [33].
8Williams (No 2) [31].
9Williams (No 2) [19].
10Williams (No 2) [20].
11 Report Dr Schineanu, 25 October 2015, p 5.
12Williams (No 2) [34].
13Williams (No 2) [22].
14 Report of Dr Schineanu, 25 October 2015, p 8 and p 9.
15Williams (No 2) [25] and [26].
16Williams (No 2) [26].
17Williams (No 2) [27], [28] and [35].
18Gillespie v The State of Western Australia [2016] WASCA 216 [40].
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