TRK v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 90

CORAM: McLURE P
PULLIN JA

HEARD: 17 MARCH 2011

DELIVERED : 12 APRIL 2011

FILE NO/S: CACR 197 of 2010

BETWEEN: TRK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :PRESIDENT REYNOLDS
File No  :CC 8112 of 2009, CC 4467 of 2010, CC 4468 of 2010, CC 4469 of 2010, CC 4470 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether totality principle infringed - Turns on own facts

Legislation:

Young Offenders Act 1994 (WA), s 46, s 124, s 125

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P B Cassidy
Respondent: No appearance

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Woods v The Queen (1994) 14 WAR 341

McLURE P: The appellant applies for leave to appeal against sentence. He was sentenced on 22 October 2010 following his conviction on his pleas of guilty of one offence of disorderly conduct, one offence of obstructing police, one offence of aggravated robbery and one offence of aggravated armed robbery. These offences resulted in a breach by the appellant of a 12‑month conditional release order imposed on 13 May 2010 for aggravated burglary.
The President of the Children's Court imposed a sentence of 9 months' imprisonment for the aggravated robbery, 2 years' imprisonment for the aggravated armed robbery, cancelled the conditional release order and in lieu thereof, imposed a term of 12 months' imprisonment for the aggravated burglary. The appellant was fined for the remaining offences.
The President ordered that the sentences of imprisonment for the robberies be served cumulatively and concurrently with the sentence for the aggravated burglary, resulting in a total effective sentence of 2 years and 9 months' imprisonment. The President had reduced the sentence for the aggravated robbery from 1 year and 3 months to 9 months to give effect to totality considerations. The appellant contends that the total effective sentence of 2 years and 9 months infringes the totality principle.
The facts of the offending are as follows. At around 2.00 am on the morning of 20 June 2010, the appellant was arrested in Northbridge for disorderly behaviour and obstructing police. Around six hours after his arrest, the appellant in company with two adults approached the male complainant, who was in his parked vehicle, intending to steal the vehicle. The appellant asked the complainant for the keys. The complainant refused. The appellant tried grabbing the keys from the complainant's hand without success. A co‑offender then punched the complainant from the side causing injuries to his left eye. The other co‑offender grabbed the keys from the complainant's hand causing his little finger to dislocate. The three offenders then got into the complainant's car and drove from the scene.
Around 40 minutes later, the appellant and the co‑offenders went to a service station in Ocean Reef with the intention of committing an armed robbery. The appellant drove the stolen car to the scene and parked it at the side of the service station building. The co‑offenders went into the premises and approached the counter where the female complainant was serving. A co‑offender demanded cash and produced a screwdriver from his clothing. The complainant, thinking it was a joke, said she did not have any money. The co‑offender threatened to jump the counter and ram the screwdriver into her head. Without warning, the co‑offenders threw cans of cool drink at short range towards the complainant, striking her in the face and back. Fearing for her life, the complainant ran into the manager's office and locked the door. As a result of the assault, the complainant received bruising and swelling to her face, head and back. A co‑offender then jumped the counter and attempted to remove the cash till from the counter while the other co‑offender kept the entry door open and kept a lookout. While this was happening, the appellant in one motion ran into the service station and jumped the counter. He took the cash till from one of the other co‑offenders and went to get another one. The offenders then left the scene.
The appellant has a very long record of prior convictions for serious offences. The commission of the aggravated robberies enlivened the application of s 124 of the Young Offenders Act 1994 (WA) with the consequence that, under s 125, the sentencing court had to give primary consideration to the protection of the community ahead of all the other principles and matters referred to in s 46 of the Act. The background to that is as follows. The appellant had been sentenced on 30 September 2008 to 12 months' detention for burglary of a dwelling. After being released from detention, the appellant in February 2009 committed a long string of offences (including aggravated burglaries) for which he was sentenced on 20 April 2009 to a further total term of detention of 14 months. After having been released from that sentence of detention, the appellant committed the current offences of aggravated robbery on 20 June 2010.
The appellant was aged 17 at the time the offending and 18 at the time of sentencing. He was raised in a highly dysfunctional, unstable environment and was surrounded by negative adult role models. He began sniffing solvents and using cannabis at 11 and had, and continues to have, significant substance abuse problems. The pre‑sentence report notes that the appellant downplayed his involvement and responsibility in the offending for which he was being sentenced and that his offending behaviour has become normalised.
The totality principle requires that the total effective sentence bear a proper relationship to the overall 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: Woods v The Queen (1994) 14 WAR 341.

There is no doubt that the appellant's long history of serious offending and associated long‑term substance abuse is directly linked with the tragic circumstances of his childhood. As a result, he has spent a significant proportion of his still young life in detention. The detention for the current offences will for the first time be served in an adult prison. However the reality is that the appellant is at a high risk of re‑offending and will remain so unless and until he takes personal responsibility for his conduct and comes to understand the unacceptability of his offending behaviour. The President was required by statute to focus on the protection of the community. Notwithstanding the appellant's youth and other mitigating factors, there is simply no arguable basis to contend that the total effective sentence is more than what is required to reflect the total criminality of the appellant's offending.
Leave to appeal should be refused and the appeal dismissed.
PULLIN JA: I agree with McLure P.

The appellant, TRK, was convicted in the Supreme Court of Western Australia for a series of criminal offences. TRK appealed against the sentences imposed by the trial judge, contending that they constituted a disproportionate punishment and violated the totality principle. The appeal was heard by the Court of Appeal of the Supreme Court of Western Australia. The totality principle in sentencing is a judicial guideline that requires the aggregate of sentences for multiple offences to be proportionate to the overall gravity of the criminal conduct. The appellant argued that the cumulative sentence was excessive and unjust, given the nature and circumstances of the offences.

The legal issues before the Court of Appeal were whether the total sentence imposed by the trial judge was in breach of the totality principle and whether the trial judge had adequately considered the principle in arriving at the sentence. The Court examined the sentencing principles and authorities to determine if the trial judge had appropriately balanced the severity of the individual offences and the cumulative sentence. It was necessary for the Court to consider whether the sentence imposed by the trial judge was excessive when viewed in the context of the totality of the appellant's criminal conduct.

The Court of Appeal found that the trial judge had not adequately considered the totality principle in imposing the sentence. The aggregate sentence was deemed disproportionate to the overall gravity of the criminal conduct, and thus, the Court of Appeal allowed the appeal. The Court concluded that the trial judge had failed to sufficiently weigh the cumulative effect of the sentences for the multiple offences, leading to a sentence that was unjust. As a result, the sentences imposed by the trial judge were quashed, and the matter was remitted back to the Supreme Court for re-sentencing, with instructions to consider the totality principle.

In light of the findings, the Court of Appeal ordered that the sentences imposed by the trial judge be quashed and the matter be remitted to the Supreme Court for re-sentencing. The Court emphasised the importance of the totality principle in sentencing and instructed the trial judge to appropriately balance the severity of the individual offences and the cumulative sentence when re-sentencing the appellant. The Court did not alter the appellant's convictions but directed that the sentences be reconsidered in accordance with the totality principle.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established