Wong v The State of Western Australia
[2004] WASCA 286
•1 DECEMBER 2004
WONG -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 286 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:89/2004 | 1 NOVEMBER 2004 | |
| Coram: | MALCOLM CJ MURRAY J ROBERTS-SMITH J | 1/12/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| C | |||
| PDF Version |
| Parties: | ANDREW NGUYEN WONG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Concurrent sentences of 18 months' imprisonment on each of two counts of aggravated burglary, 2 years and 6 months on one count of aggravated attempted armed robbery, and 2 years and 6 months cumulative for possession of methylamphetamines with intent to supply Whether sentences manifestly excessive and proper account taken of the totality principle Drug offences separate from the other offences |
Legislation: | Criminal Code (WA), s 393, s 401(1), s 502 Misuse of Drugs Act 1981 (WA), s 6(1)(a) Police Act 1892 (WA), s 68 |
Case References: | Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Herbert v The Queen (2003) 27 WAR 330 Jarvis v The Queen (1993) 20 WAR 2001 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Everett (1994) 73 A Crim R 550 R v Smith (1988) 33 A Crim R 95 R v Ward [1999] WASCA 157 Samuel v State of WA [2004] WASCA 154 Schlenka v The Queen [2004] WASCA 142 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WONG -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 286 CORAM : MALCOLM CJ
- MURRAY J
ROBERTS-SMITH J
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CCA 89 of 2004
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
Citation : STATE OF WA v WONG
File No : INS 529 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing - Concurrent sentences of 18 months' imprisonment on each of two counts of aggravated burglary, 2 years and 6 months on one count of aggravated attempted armed robbery, and 2 years and 6 months cumulative for possession of methylamphetamines with intent to supply - Whether sentences manifestly excessive and proper account taken of the totality principle - Drug offences separate from the other offences
Legislation:
Criminal Code (WA), s 393, s 401(1), s 502
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Police Act 1892 (WA), s 68
Result:
Leave to appeal refused
Category: C
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Mr R E Cock QC & Mr C G Astill
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 2001
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
(Page 3)
Postiglione v The Queen (1997) 189 CLR 295
R v Everett (1994) 73 A Crim R 550
R v Smith (1988) 33 A Crim R 95
R v Ward [1999] WASCA 157
Case(s) also cited:
Samuel v State of WA [2004] WASCA 154
Schlenka v The Queen [2004] WASCA 142
(Page 4)
1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 2 June 2004 the applicant was convicted in the Supreme Court on his plea of guilty to four counts on an indictment, namely, two counts of attempted aggravated burglary contrary to s 401(1) and s 502 of the Criminal Code (WA), one count of aggravated attempted armed robbery contrary to s 393 of the Code and one count of possessing methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
2 On the same date the applicant was sentenced by Miller J to imprisonment for 18 months on both of counts 1 and 2, being the attempted aggravated burglaries; 2 years and 6 months for the offence of aggravated attempted armed robbery the subject of count 3; and 2 years and 6 months for the possession of methylamphetamine with intent to sell or supply it to another.
3 The learned sentencing Judge directed that the first three sentences be served concurrently with each other, with the fourth sentence for the possession of methylamphetamine to be served cumulatively, because that offence was quite separate from the other three.
4 As his Honour said, when sentencing the applicant:
"Now if all these were added together, you would be serving eight years' imprisonment but I clearly have to take into account the totality principle and impose a sentence consistent with your overall criminality, and one which is not crushing, having regard to your age and the need for your rehabilitation.
Because the first three counts arose out of a series of events occurring over a period of two days, I will make those concurrent, but the offence the subject of count 4 is quite separate and, in my view, has to be treated independently and the sentence necessarily cumulatively upon [the] other sentences."
5 In the result, the total of the sentences imposed was imprisonment for 5 years. An order was made that the applicant be eligible for parole in respect of each of the sentences. The sentences took effect from 2 June 2004. There was an order for the destruction of the drugs and equipment seized.
6 As to count 1, the facts were that at about 11 pm on Monday, 15 September 2003, the applicant was in his vehicle with three
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- accomplices. They drove to the complainant's home in Jandakot with the intention of entering the house and stealing money. The complainant was a 23-year-old Indonesian male and the only occupant of the house. At the time, the complainant's vehicle was parked in the driveway and the interior lights of the house were on. The offender and an accomplice went to the rear of the house and the remaining two co-offenders went to the front door and knocked. To conceal their identities all four involved were wearing gloves and face masks. The two at the rear attempted to enter the house by smashing a window. They did not succeed. In preparing to smash another window, they placed masking tape over the glass to stop it falling out when it was smashed. Unable to gain entry by this means, they went to the front of the house and met the other two accomplices who were waiting there. At this time the applicant saw the complainant through an upper level window of the house. After further knocking at the front door and being unable to gain entry, the applicant and his accomplices left the house without entering it.
7 In relation to the offence the subject of count 2, at about 3.30 pm on Tuesday, 16 September 2003 the applicant, accompanied by the same three accomplices, drove to the complainant's house in Jandakot again with the intention of entering it and stealing money. The applicant and an accomplice went to the rear of the house and again placed masking tape over the window. They attempted to open a rear door when they were disturbed by the complainant. The complainant then left the house by the front door and was confronted by the applicant and two accomplices. A fourth accomplice then approached the complainant from the applicant's vehicle which was parked in the driveway of the house.
8 One or other of the group told the complainant that they had come to collect $7000 that he owed for security and that if he did not have the money, he could pay $100 per week. The complainant was told to go back inside his house and threatened with violence if he did not. The complainant refused, stating that he did not owe any money. One of the applicant's accomplices took hold of the complainant by the shirt and again threatened him with violence if he did not return inside the house, but the grip was released and the complainant was told by one of the group that they had been hired by another person to recover from him the sum of $7000.
9 The complainant then attempted to leave by walking away from his house, but was confronted by the applicant who had the metal baton. The applicant told the complainant to get into his house or he (the applicant) would break his leg. Fearing for his safety, the complainant attempted to
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- calm the situation when the applicant struck him on the left leg with the baton. At that moment a car driving past the house distracted the applicant and his accomplices which enabled the complainant to run to a neighbour's house. The applicant and his accomplices then left the premises in the applicant's vehicle.
10 The learned Judge commented on this episode as follows:
"On any view of it, the combination of these three offences [was] very serious and in particular the offence which involved the violence that you imposed, inflicted upon the complainant."
11 On 27 October 2003 the applicant was interviewed by detectives at the Murdoch detectives' office and admitted committing the offences the subject of counts 1, 2 and 3.
12 As to the offence the subject of count 4, while he was under arrest, the applicant was taken to premises at 82 Palmerston Street, Northbridge where the room he occupied was searched pursuant to s 68 of the Police Act 1892 (WA). Detectives located a backpack belonging to the applicant in which was found a bag containing 20 grams of methylamphetamine and six smaller bags containing methylamphetamine. The total weight of the methylamphetamine was approximately 26 grams. It was only 6 per cent pure which the Court was told was street level purity. The applicant told the detectives that he was going to sell the drugs to recover his money from the purchase of them. There was also found in the backpack a set of electronic scales, a knife, a jar of Metasulfon dietary powder and a quantity of small plastic bags which the applicant admitted were used in bagging the amphetamine for sale.
13 At the conclusion of the search the applicant was conveyed to Murdoch detectives' office where he was charged with the offences the subject of the indictment.
14 An order was made by the learned Judge for the destruction of the drugs and the associated equipment.
15 The application for leave to appeal against sentence is made on the following grounds:
"The learned sentencing Judge erred in that he failed properly to consider:
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- 1. the standards of sentencing customarily observed for offences of this nature;
2. the place which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature;
3. the Applicant's age and antecedents; and
4. the totality of the Applicant's criminal behaviour and then failed to reduce the aggregate of the sentences imposed."
16 The maximum penalty for each of the aggravated burglary offences is 20 years. The maximum penalty for the aggravated attempted armed robbery in the circumstances was life imprisonment.
17 At the time he was sentenced, the applicant was 19 years of age, single and unemployed. He was born and raised in Perth but his parents divorced when he was very young. After his mother returned to Singapore to work, he resided with an uncle and aunt who lived in Perth. The applicant had contact with his mother following her return to Singapore. When he was 13, he travelled to Singapore and lived there with his mother and his stepfather for some two years before returning to Australia. There was apparently some conflict between the applicant and his uncle and aunt with whom he was staying which resulted in him leaving their house several months prior to the commission of the subject offences.
18 More recently, the applicant had begun to reside with the mother of one of his close friends. The applicant was educated to year 12 at Tuart College and commenced studying for a degree in business management at Edith Cowan University. However, he ceased those studies after about six months because, as he told the author of the pre-sentence report, he found it boring.
19 The applicant then travelled to Malaysia to train as a quality controller. He has said he would wish to return to Malaysia in the future. The learned Judge noted that he had the support of his family in that respect.
20 This was recognised by the learned Judge as important, but it was noted that the applicant had a substance abuse problem. He started smoking cannabis at a young age and had used methylamphetamines at least weekly since the age of 18. The author of the pre-sentence report thought that the applicant had withheld information in relation to the
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- extent of his drug use. The learned Judge was unable to reach any conclusion about that. His Honour remarked:
"It's sufficient to say that you have got some problem which has involved the use of drugs."
22 The learned Judge noted that the offences which the applicant had committed were "extremely serious". The applicant told the author of the pre-sentence report that he took the metal expandable baton to the house of Mr Suherman, the complainant, for the purposes of intimidation. The applicant said that he only used the baton to hit the complainant because he had been pushed by him. The author of the report, however, was of the opinion that the applicant seemed to be focusing mainly on the fact that he had been arrested rather than the impact of his conduct on the victim.
23 So far as the possession of drugs with intent to sell or supply was concerned, the applicant told the author of the pre-sentence report that another drug dealer had given him the drugs to sell so that he could make a profit.
24 While acknowledging the seriousness of the offences, and that it would be appropriate for a term of imprisonment to be imposed, it was submitted by counsel for the applicant to the sentencing Judge that, in terms of rehabilitation and the arrangements to be made for his future accommodation and the opportunity to be employed in a family business, it was contended that a suspended sentence combined with an intensive supervision order would be appropriate.
25 It was the fact that while remanded on bail, the applicant had spent a significant period in south-east Asia and had returned to Western Australia to answer to his bail.
26 As against that, counsel for the State stressed the seriousness of the offences, pointing out that the quantity of the drugs involved fell just short of the quantity required for a drug trafficker declaration. In these circumstances, it was submitted that despite the mitigating factors,
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- including the absence of any prior record, the early plea of guilty and the opportunities of rehabilitation and future employment, the case was not one in the exceptional category where anything other than a custodial sentence should be imposed. It was contended on behalf of the State that a sentence should be imposed which properly reflected the need of the community to be protected from the type of behaviour involved in the aggravated burglary. Consequently, notwithstanding what was accepted by counsel for the State as "a strong opportunity of some rehabilitation", the combination of offences was serious enough to conclude that no sentence other than immediate imprisonment was open.
27 The total of the sentences imposed by the learned Judge reflected the legislative requirement that the sentences imposed for each offence be each two-thirds of the sentence which would have been imposed prior to the amendments coming into force under the Sentencing Legislation Amendment and Repeal Act 2003. It follows that the sentences were the equivalent of sentences of 7 years and 6 months under the former legislation. An order was made that the applicant be eligible for parole.
28 It was submitted that the youth of the applicant, combined with the fact that he had no previous convictions of any kind was a consideration which the Court was obliged to take into account and for which some credit was generally to be given in imposing a sentence.
29 It was further submitted that these were matters which should have had a significant mitigating effect in the context of sentencing. Counsel for the applicant referred the Court to R v Smith (1988) 33 A Crim R 95 in which Young CJ said that in such circumstances these were significant mitigating factors. As the Chief Justice put it:
"The first is the youth of the offender, it being a general principle of sentencing that a youthful offender is not, if it can be avoided, to be sent to gaol for a first offence. That is by no means to say that a youthful offender who commits this offence will inevitably escape gaol, for there are many cases where young offenders guilty of culpable driving causing death have been sent to gaol. Nevertheless the youth of the offender is a prime consideration for a sentencing Judge, and not only the fact that he is a young man, but also that he is a young man without any previous convictions of any kind."
30 The Chief Justice went on to say:
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- "Next, the fact that the respondent pleaded guilty is a consideration which the Court is obliged to take into account and for which some credit is generally to be given in imposing a sentence."
31 It was acknowledged on behalf of the applicant that the penalties for the offences the subject of the first three counts on the indictment were correctly made concurrent in the circumstances. It was contended, however, that the learned Judge erred in the exercise of his discretion in concluding that these offences, coupled with the drug offence the subject of count 4, were "far too serious for any other disposition" than immediate imprisonment. In particular, it was contended that his Honour failed to have regard or sufficient regard for the circumstances of mitigation which were clearly present.
32 The offences were committed over a brief period between 15 September and 27 October 2003, as set out in the indictment. It was also pointed out that the applicant had been associating with persons who had an adverse influence on him which had led him into offending behaviour. It was the case that since his arrest the conduct of the applicant had improved significantly and his lifestyle and behaviour had been subject to close family supervision.
33 It was contended that in the seven months which had elapsed between his arrest and sentencing the applicant had substantially rehabilitated himself, he faced no further charges and it was contended that the probability of the applicant re-offending was low.
34 At the same time, it is necessary to take into account that the offence of assault with intent to rob under s 393, which was introduced into the Criminal Code by an amendment in 2001 provides that:
"A person who, with intent to steal a thing, uses or threatens to use violence to any person or property in order –
(a) to obtain the thing intended to be stolen; or
(b) to prevent or overcome resistance to its being stolen,
is guilty of a crime and is liable –
(c) if –
(i) immediately before or at or immediately after the commission of the offence the offender is armed
(Page 11)
- with any dangerous or offensive weapon or instrument or pretends to be so armed; and
- (ii) the offence is committed in circumstances of aggravation,
- to imprisonment for life …"
35 In the present case, the offence was committed in circumstances of aggravation so that the applicant was liable to a maximum penalty of imprisonment for life.
36 In my opinion, it is necessary for this Court to acknowledge the seriousness of the offence. It was the fact that the applicant was prepared to use the metal baton and did in fact use it. But for the fact that a car was driven past at the time, the inference is clearly open that the applicant may well have carried out his threat to break the complainant's leg. Because the passing car distracted the applicant, it enabled the complainant to run to a neighbour's house. The applicant and his accomplices then left in the applicant's vehicle.
37 In my opinion, while the sentences imposed were severe, the attempted armed robbery offence in which the applicant was both armed and in company, as well as demonstrating that he was prepared to use violence in the context of the attempted armed robbery in company, was a serious example of such an offence. In my opinion, the seriousness of the offence, particularly when coupled with the separate, yet related, drug offence in circumstances which indicated that the applicant was involved in the drug trade, was such that the imposition of sentences of imprisonment immediately to be served did not involve any error in the exercise of the sentencing discretion.
38 Insofar as it was contended that there was a failure to correctly apply the totality principle, the learned Judge was first required to impose a sentence for each of the offences which was appropriate having regard to the maximum sentence fixed by Parliament and the assessment of the Judge where on the scale of seriousness the relevant offence should be placed. Such a sentence is then open to mitigation having regard to factors personal or special to the offender and discounted by any other relevant considerations.
39 Finally, it is necessary to determine whether any further adjustment is necessary by application of the totality principle: Postiglione v The Queen(1997) 189 CLR 295 per Kirby J at 341. In such a case, the
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- question is whether the total of the sentences imposed is "just and appropriate": Mill v The Queen (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; and Jarvis v The Queen (1993) 20 WAR 2001. In my opinion, this was a case in which the total of the sentences was appropriate having regard to the nature and circumstances of the offences committed and taking into account the considerations personal to the offender: Jarvis v The Queen (supra) per Ipp J at 205-207, Murray J at 211-214 and Anderson J at 215-217; and R v Everett (1994) 73 A Crim R 550 per Pidgeon J (with whom Ipp and Kennedy JJ agreed) at 558-561.
40 In the present case there were three related offences committed against the complainant Suherman on 15 and 16 September 2003. The drug offence was entirely separate. It is well established that where a number of offences arise out of what may be called the same transaction, in that they together constitute a single invasion of the same legally protected interest, it is appropriate to order that the sentences of imprisonment imposed be served concurrently. Where the offences occur on separate occasions and involve separate transactions, the sentences should be imposed cumulatively unless the totality principle would require another approach. The learned Judge was clearly alert to the need to apply the totality principle. Having indicated the sentences to be imposed for each of the four counts, the learned sentencing Judge said:
"Now, if all of these were added together, you would be serving 8 years' imprisonment but I clearly have to take into account the totality principle and impose a sentence consistent with your overall criminality, and one which is not crushing, having regard to your age and the need for your rehabilitation.
Because the first three counts arose out of a series of events occurring over a period of two days, I will make those concurrent, but the offence the subject of count 4 is quite separate and, in my view, has to be treated independently and the sentence necessarily cumulatively upon [the] other sentences."
41 In this case, the two sets of offences occurred on separate occasions and involved separate transactions. In these circumstances, it was appropriate for the learned Judge to apply the totality principle in the way in which he did: cfR v Ward [1999] WASCA 157 at [9] per Malcolm CJ and Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 per Murray J at 15 - 16.
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42 For these reasons I would refuse leave to appeal.
43 MURRAY J: I have read in draft the judgment of Malcolm CJ, with which I respectfully agree. In my opinion also, leave to appeal should be refused in this case.
44 ROBERTS-SMITH J: This is an application for leave to appeal against sentence. The two primary contentions advanced on behalf of the applicant were, first, that given the applicant's age and antecedents a term of immediate imprisonment ought not to have been imposed and secondly, in the alternative, an overall term of 5 years imprisonment was too long.
45 The aggregate sentence was one of 5 years imprisonment. Malcolm CJ has set out in his reasons how the separate sentences imposed in respect of two offences of attempted aggravated burglary, one offence of aggravated attempted armed robbery and one of possessing methylamphetamine with intent to sell or supply.
46 To succeed on his first argument the applicant would have to demonstrate the imposition of immediate imprisonment was outside the range of a proper exercise of the sentencing discretion. To succeed on his second argument the applicant would have to demonstrate an aggregate of 5 years imprisonment was disproportionate to the totality of his criminality (Postiglione v The Queen (1997) 189 CLR 25, per McHugh J at 307-308; Pearce v The Queen (1998) 194 CLR 610). This was not a case in which the cumulation of sentences could be said to have resulted in a "crushing" sentence, that is, one which would run well past that period of imprisonment required to satisfy the recognised purposes of sentencing (Herbert v The Queen (2003) 27 WAR 330).
47 For the reasons given by Malcolm CJ, the applicant has failed to demonstrate error in either respect.
48 I too would refuse leave for the reasons given by the Chief Justice.
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