Woodcock v The State of Western Australia

[2011] WASCA 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WOODCOCK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 227

CORAM:   McLURE P

MAZZA J

HEARD:   15 SEPTEMBER 2011

DELIVERED          :   24 OCTOBER 2011

FILE NO/S:   CACR 45 of 2011

BETWEEN:   HARRISON STEPHEN WOODCOCK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

File No  :IND 193 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Attempted armed robbery - Whether sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)
Criminal Code (WA), s 392, s 552

Result:

Leave refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

McDonald v The State of Western Australia [2008] WASCA 132

MOD v The State of Western Australia [2011] WASCA 23

The State of Western Australia v Wells [2005] WASCA 23

Wilson v The State of Western Australia [2010] WASCA 82

Wong v The State of Western Australia [2004] WASCA 286

1. McLURE P:  I agree with Mazza J.

2. MAZZA J:  This is an application for leave to appeal against sentence.

3. On 4 February 2011, the appellant pleaded guilty on the fast‑track system before Stavrianou DCJ to three counts of attempted armed robbery, contrary to s 392 and s 552 of the Criminal Code (WA). His Honour imposed a total effective sentence of 2 years' immediate imprisonment with eligibility for parole. That sentence was made up as follows:

   Count 1:18 months' imprisonment (concurrent)

   Count 2:18 months' imprisonment (concurrent)

   Count 3:2 years' imprisonment (head sentence)

4. There are two proposed grounds of appeal.  Ground 1 alleges that the sentence imposed on count 3 was manifestly excessive.  Ground 2 alleges that his Honour erred in his application of what the appellant says is the range of sentences customarily imposed for offences of attempted armed robbery.

5. For a ground of appeal to receive a grant of leave, it must have a reasonable prospect of success: s 27(2) of the Criminal Appeals Act 2004 (WA). The test must be seen in light of the general principles applicable to sentence appeals which are conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

The facts of the offending

1. All the offences occurred within a short period of time in the area of Leederville in the early hours of 18 November 2010. 

2. At about 12.20 am, the appellant, in company with a co‑offender who was armed with half a brick, went to the carpark of Medibank Stadium with the intention of stealing a car and using it to drive home.  The complainant, accompanied by a friend, was in the process of entering her parked vehicle, a Honda Jazz belonging to her father.  As they entered the vehicle, the appellant and his co‑offender approached them.  The co‑offender pointed the brick at the complainant and shouted, 'We're hijacking your car'.  The complainant and her friend, fearing for their safety, ran to a nearby group of people for help, taking the vehicle's keys with them.  The appellant and his co‑offender followed the complainant briefly, but then fled the scene (count 1).

1. The appellant and his co‑offender, who was still in possession of the half‑brick, then walked to a laneway close to the Leederville Village Shopping Precinct.  The complainant, a male, was sitting in his motor vehicle, a Subaru Forester.  The appellant and his co‑offender approached the vehicle with the intention of stealing it.  The co‑offender opened the driver's side door and confronted the complainant.  The co‑offender pointed the half‑brick at the complainant's face and attempted to steal the car keys from the vehicle's ignition, shouting, 'I'm going to smash you with this brick if you don't get out of the car'.  The complainant took the keys from the ignition, slid across the front seat and exited the vehicle via the front passenger door.  The appellant attempted to block the complainant's path and tackle him as he ran away, but the complainant managed to avoid any attempt to stop him, and ran towards a nearby police vehicle.  The appellant and his co‑offender left the scene (count 2).  They returned to the carpark at Medibank Stadium.

2. There they saw the father of the complainant in count 1.  He had cycled to the carpark to collect his Honda Jazz, in order to drive it home.  While he was dismantling his bicycle to place it in the vehicle, the appellant and his co‑offender approached him.  The co‑offender struck him with a glass bottle to the back of his head and his left arm.  The complainant turned around and saw the co‑offender preparing to strike him with the bottle, shouting, 'Give me the keys.  We're taking the car or we'll bash you'.  The complainant refused to hand over the keys, and the co‑offender attempted to strike him with the bottle.

3. The appellant and his co‑offender began to wrestle with the complainant, punching and kicking him.  The appellant kicked the complainant in the upper left leg with his right foot.  The co‑offender threw the glass bottle at the complainant before picking up the complainant's bicycle and attempting to strike him with it.  The complainant took hold of his bicycle and used it as a shield from the attack. 

4. At this point, a police vehicle entered the carpark, causing the appellant and his co‑offender to flee the area.  The appellant evaded the police and returned to his home.

5. As a result of this offence, the complainant suffered a headache, cuts, abrasions and general soreness to his left shoulder, arm and hands, as well as pain and swelling to his left thigh and a chipped bone in his left thumb.

6. Later, at about 4.20 pm on 18 November 2010, the appellant was arrested and subsequently interviewed by police. 

The appellant's antecedents

1. Prior to sentencing the appellant, his Honour was provided with a pre‑sentence report, a psychological report and various character references on behalf of the appellant.  The appellant himself wrote to his Honour.  At the time of committing the offences, the appellant was 18 years and 8 months old.  He was about 1 month short of his 19th birthday when he was sentenced.  He was employed as an apprentice roof carpenter and came from a supportive family.  It is clear from the character references that he is well‑regarded by those who know him.  Apart from two minor traffic offences, he had no prior record of offending.  His use of both alcohol and cannabis had become problematic.  He was under the influence of both substances when he committed the offences.  The psychological report revealed criminogenic issues and needs which required, according to the author of the report, redress in order to minimise the risk of further offending.  These issues included his choice of peer group and substance abuse.  The appellant was remorseful.

His Honour's sentencing reasons

1. His Honour found that the appellant's conduct was premeditated, persistent and serious:  ts 23.

2. His Honour expressly acknowledged, as mitigating factors, the appellant's youth:  ts 23; his fast‑track pleas of guilty:  ts 25; and his remorse:  ts 23.  His Honour acknowledged that the appellant had no relevant record of convictions and that he had a supportive family and employer.

3. His Honour drew attention to aspects of the pre‑sentence and psychological reports that were before him, in particular the need for drug and alcohol counselling. 

4. In light of the seriousness of the offending, his Honour considered that the choice he faced was between imposing a term of imprisonment to be immediately served, or suspending the term, either conditionally or otherwise:  ts 25.  His Honour ordered that the sentences be served concurrently 'because of [the appellant's] age' and 'because of the circumstances of the offending on that particular night':  ts 26.  In considering whether to suspend the term of imprisonment, his Honour expressly adopted the two‑step approach mandated by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, and reconsidered all of the factors relevant to the imposition of the terms of imprisonment. Once again, he gave express attention to the appellant's age and his fast‑track pleas of guilty. However, his Honour was not persuaded, given the nature, gravity and extent of the offending, that suspension was warranted: ts 27.

The appellant's submissions

1. The appellant's counsel did not dispute the serious circumstances involved in count 3.  It was acknowledged that the offence involved actual violence and that the complainant suffered bodily injury 'as a result of a relatively sustained and nasty attack'.  It was conceded that the offence only ceased because a police car happened to enter the area. 

2. Against this, particular emphasis was given by counsel to the appellant's youth, the pleas of guilty, his lack of a relevant prior criminal record, his supportive family, his employment record and his remorse.  It was submitted that having regard to these mitigating factors, the sentence of 2 years' imprisonment was unreasonable. 

3. It was not submitted that this court should impose a suspended term of imprisonment; rather, it was submitted that a shorter term of immediate imprisonment should be imposed.

4. In respect of ground 2, it was submitted that the range of sentences customarily imposed for attempted armed robbery offences was between 2 and 3 years, before taking into account mitigating factors.  It was submitted that his Honour mistakenly considered the range was 2 to 3 years' imprisonment, after taking into account the relevant mitigatory factors.

Analysis of the grounds of appeal

1. Whether the sentence on count 3 is manifestly excessive, as alleged in ground 1, is to be gauged from the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the level of seriousness of the circumstances of the offence and the personal circumstances of the offender. 

2. The maximum penalty for the offence of attempted armed robbery is 14 years' imprisonment. 

3. There is no range of sentences customarily imposed for the offence of attempted armed robbery.  His Honour and the appellant's counsel in this application thought that as the range of sentences customarily imposed for completed offences of armed robbery was between 4 and 6 years without consideration of mitigating factors (see The State of Western Australia v Wells [2005] WASCA 23), the range of sentences customarily imposed for an attempted armed robbery should be half this, that is, between 2 and 3 years.

4. With respect, this approach is wrong for a number of reasons.  First, it adopts an unduly mathematical approach to the task of ascertaining the range of sentences customarily imposed.  Second, the circumstances in which an attempted armed robbery can occur are many and varied.  There will be occasions when the circumstances of an attempt will justify the imposition of a sentence close to or greater than some instances of a completed offence.  Third, the case cited in the sentencing proceedings in support of the range of 2 to 3 years imprisonment, McDonald v The State of Western Australia [2008] WASCA 132, does not bear out the proposition.

5. The sentences imposed in cases such as McDonald v The State of Western Australia; Wong v The State of Western Australia [2004] WASCA 286; and MOD v The State of Western Australia [2011] WASCA 23 show that significant sentences of immediate imprisonment for attempted armed robbery are not unusual, even for young offenders.

6. Count 3 was self‑evidently serious.  It was committed at night, against the backdrop of the two earlier offences.  The appellant and his co‑offender approached the complainant from behind and attacked him using a weapon.  They persisted in their attack and would have succeeded, in all likelihood, were it not for the fortuitous arrival of the police.  People going to their cars at night in parking areas are, to some extent, vulnerable to the kind of attack embarked upon by the appellant.  Accordingly, general deterrence is a matter of significance in this case.

7. The most significant mitigating factors were those personal to the appellant, including his very young age and his fast‑track pleas of guilty.  As McLure P observed in Fogg v The State of Western Australia [2011] WASCA 11 [13], courts do not ordinarily impose a term of immediate imprisonment on young or youthful offenders of prior good character without considerable pause and reflection. However, there are circumstances where the seriousness of the nature and the circumstances of the offending require the imposition of an immediate term of imprisonment, despite youth and good character.

8. In light of the seriousness of the offending, the sentence of 2 years' immediate imprisonment was not, despite the appellant's age and other mitigating factors, unjust or unreasonable.  The sentence was within a sound exercise of his Honour's sentencing discretion.  This court is not entitled to interfere with it.

9. With respect to ground 2, as I have already said, there is no basis for the proposition which underpins this ground that the range of sentences customarily imposed for offences of attempted armed robbery is between 2 and 3 years.  This ground must fail.

Conclusion

1. In my opinion, neither ground of appeal has a reasonable prospect of succeeding.  I would refuse leave to appeal on both grounds.  Accordingly, the appeal must be dismissed.