Abdullah v The Queen - [2002] WASCA 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ABDULLAH -v- THE QUEEN [2002] WASCA 57

CORAM: MURRAY J
STEYTLER J
HASLUCK J

HEARD: 11 MARCH 2002

DELIVERED : 11 MARCH 2002

FILE NO/S: CCA 93 of 2001

BETWEEN: ANGUS BERNARD ABDULLAH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Parole eligibility - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Garlett v The Queen (2000) 111 A Crim R 336; [2000] WASCA 72
Lowndes v The Queen (1999) 195 CLR 665
Thompson v The Queen (1993) 8 WAR 387

Case(s) also cited:

Nil

STEYTLER J: This is an application for leave to appeal against sentence.
On 6 June 2001 the applicant was convicted on his own confession of one count of armed robbery with violence and one count of unlawful wounding. On the same day he was sentenced to 4 years' imprisonment for the armed robbery and to a sentence of 2 years' imprisonment, to be served cumulatively, for the unlawful wounding, making a total effective sentence of 6 years' imprisonment.
A suspended sentence had earlier been imposed on the applicant on 21 September 2001 in respect of two prior offences committed by him. The applicant was resentenced in respect of those offences. He was ordered to serve a period of 6 months' imprisonment on a charge of assaulting a police officer and one of 4 months' imprisonment on a charge of breach of bail. Those sentences were made concurrent with each other and with the sentence imposed in respect of the armed robbery. The sentence for the armed robbery was directed to take effect from 30 March 2001 (on which date the applicant had been taken into custody). The applicant was not made eligible for parole.
There is only one ground which the applicant seeks to advance by way of appeal and that is that the learned sentencing Judge erred in the exercise of his discretion by failing to order that the applicant be eligible for parole in respect of the sentences imposed upon him.
Counsel for the applicant contends that there were three factors which pointed positively towards parole and should have led to the applicant being declared to be eligible for parole.
The first was the applicant's fast-track plea of guilty and what was said to be his genuine remorse in respect of his offending.
The second was what was said to be the applicant's insight into his substance abuse and his resolve to remain drug free. We were referred, in this respect, to the summary which concludes a pre‑sentence report prepared in respect of the applicant on 31 May 2001. That summary reads as follows:
"Despite his long history of poly drug abuse, … [the applicant] presents as lucid and intelligent. He is fully aware of the seriousness of his current situation and is resigned to a prison sentence. He said 'I am prepared to pay my dues, I just hope the judge won't give me too long so I can break the cycle (of offending). I know my track record isn't very rosy, but I can't live like this anymore'. He intends to utilise his time by studying to enhance his opportunities of employment when he is released. Notwithstanding his previous poor response to supervision, should the Court deem a parole sentence is appropriate, this Service is prepared to persevere with … [the applicant] on community supervision at some future date."
The third factor which was advanced was that, prior to this offence, the longest sentence which the applicant had received was one of 3 years' imprisonment imposed upon him in 1992. Counsel for the applicant contends that, if the applicant should be granted parole in respect of his present sentence, he will still have to spend 2 years in custody and will have to "prove his resolve" in order to be released on parole.
The sentencing Judge, in considering what should be done in respect of the applicant, commenced by outlining the circumstances of the offence giving rise to the sentence. He expressed them as follows:
"In the early morning of 30 March this year at about 6 am you went to the Kardinya Ezy Plus 24-hour convenience store with your face covered. You carried a knife and demanded the store attendant give you money. You slashed him on the arm, causing a minor wound, and then stabbed him in the thigh, causing a wound which later required three stitches. It is that wound which is count 2 on the indictment. You forced him into the rear office and required him to divulge the location of the safe and another till.
You emptied the till contents to the sum of $415 into a bag and also demanded and received two packets of cigarettes. Unbeknown to you, the attendant had locked the door so you could not leave for a time. You threw a number of cans at the attendant, who eventually opened the door. The circumstances were, beyond doubt, terrifying in the extreme for the attendant, who was simply going about his business making a living when you brought violence into his workplace and left him wounded."
His Honour then turned to matters personal to the applicant. He remarked that the applicant was then aged 30 years and that his adult record of offending was very extensive, including past armed robbery and robbery offences and many violent offences. His Honour then noted that the applicant had pleaded guilty at the earliest available opportunity. His Honour also said that the applicant was clearly addicted to alcohol and cannabis, that he was genuinely remorseful for what he had done and that his counsel had presented a very persuasive case that he should make a parole eligibility order. However, his Honour said, having regard to the applicant's performance on supervised release for a long period, he remained unpersuaded that a parole eligibility order would be in either the community's interests or those of the applicant.
His Honour's reference to the applicant's prior poor performance as regards parole was, in my respectful opinion, well based. The applicant had breached every supervised order which he had previously been given. Since 1990 he had been granted parole on six occasions. He breached four orders by recidivism and the other two by failing to comply with conditions of parole. He had also breached a home detention order, a community service order and a work and development order. I have already mentioned that the commission of the offences in respect of which his Honour sentenced the applicant breached the term of suspended imprisonment which the applicant was then serving.
It is also plain that the learned sentencing Judge had regard to the applicant's extensive criminal record which, as his Honour said, included previous convictions for robbery offences as well as many other violent offences.
The principles upon which an appellate court approaches an appeal by an offender against a sentence imposed upon him or her are well established. The Court does not substitute its own opinion for that of the sentencing Judge merely because it might have exercised its discretion in a different way. It must be shown that the Court at first instance has failed properly to exercise its discretion. (See Lowndes v The Queen (1999) 195 CLR 665 at 671, 672).
The discretion whether an eligibility for parole order should be made cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole. While it is true that there may be a bias towards eligibility, that bias does not mean that the Court must start from a presumption in favour of the grant of parole. (See, respectively, Thompson v The Queen (1993) 8 WAR 387 and Garlett v The Queen (2000) 111 A Crim R 336; [2000] WASCA 72 at [87]). Rather, as has been pointed out in Garlett, the bias is such that, provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to

grant parole will be exercised in favour of the prisoner unless there is a sufficient reason not to exercise that discretion in his or her favour.

In this case the sentencing Judge took into account the seriousness and nature of the applicant's offences, the circumstances of the commission of his offences, his antecedents, the circumstances relevant to the applicant and in particular the issue of his prior poor response to supervision. He was aware of the applicant's plea of guilty and the contents of the pre‑sentence report. There is nothing to suggest that, in considering the applicant's antecedents, his Honour did not have regard to the sentences previously imposed upon him. It was, in my respectful opinion, open to his Honour, especially in the light of the applicant's poor prior response to supervision, to conclude that, notwithstanding the matters referred to on behalf of the applicant, this was not a case in which the applicant should be declared to be eligible for parole. I would consequently refuse the application for leave to appeal.
MURRAY J: I am of the same opinion. I agree entirely with his Honour's reasons. I have nothing to add.
HASLUCK J: I agree with his Honour and have nothing to add.