Adams v The Queen - [2003] WASCA 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ADAMS -v- THE QUEEN [2003] WASCA 91

CORAM: SCOTT J
TEMPLEMAN J
HASLUCK J

HEARD: 16 APRIL 2003

DELIVERED : 2 MAY 2003

FILE NO/S: CCA 99 of 2002

BETWEEN: JOANNE FAYE ADAMS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Convictions for two discrete offences of extortion - Sentence of 3 years' imprisonment in respect of each offence to be served cumulatively - Offender pregnant and with two young children - Deprivation of a child's parental care held to be a factor justifying reduction of the sentence - Sentence reduced to sentence of imprisonment of 2 years 3 months for each offence to be served cumulatively

Legislation:

Criminal Code (WA), s 397(1)

Sentencing Act 1995 (WA), s 6, s 39, s 76(1), s 89(5)

Result:

Leave to appeal granted
Appeal against sentence allowed

Category: B

Representation:

Counsel:

Applicant: Mr J R Noble
Respondent: Mr D Dempster

Solicitors:

Applicant: Maughan & Leach
Respondent: State Director of Public Prosecutions

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

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Cooper v The Queen [2001] WASCA 379
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 202 CLR 321
Dodd v Hoogewerf [2002] WASCA 15
Etrelezis v The Queen [2001] WASCA 327
Latham v The Queen (2000) 117 A Crim R 74
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Nguyen v The Queen (2001) 160 FLR 284
Postiglione v The Queen (1997) 189 CLR 295
R v Holder and Johnston [1983] 3 NSWLR 245
R v Liddington (1997) 18 WAR 394
R v Tait (1979) 46 FLR 386
R v Wilhelm (1988) 39 A Crim R 469
Roffey v The Queen, unreported; CCA SCt of WA; Library No 940601; 2 November 1994

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Jarvis v The Queen (1993) 20 WAR 201
R v Grein [1989] WAR 178
R v Jeffree, CCA SCt of WA; Library No 980150; 13 February 1998
R v Ruane (1979) 1 A Crim R 284
R v Shaw (1989) 39 A Crim R 343

SCOTT J: I have had the opportunity of reading in draft the reasons to be published by Hasluck J.
I agree with those reasons and with the proposed disposition of the matter.
In my view, it is only the fact that the applicant will be separated from her child when that child turns one year of age that justifies a more lenient sentence than that imposed by the learned sentencing Judge. But for that factor, in my opinion, the sentence imposed by his Honour was entirely appropriate.
If, as the applicant says, she wishes to remain with her child and take custody of her other children, then it will be for her to demonstrate to the Parole Board that she should be granted parole.
I would add that had I been of the view that the applicant became pregnant in order to obtain a more lenient sentence, then I may have taken a different view of this matter. However, there is no evidence to suggest that this was a deliberate action planned by the applicant for such a purpose.
I agree that the 6‑year term should be reduced to 4‑1/2 years, as outlined by Hasluck J, and that the sentences of imprisonment should run from 5 April 2002.
TEMPLEMAN J: I have read in draft, the reasons to be published by Hasluck J. I agree with those reasons, and the orders proposed by his Honour.
HASLUCK J: The applicant, Joanne Faye Adams, was charged on indictment with various offences of extortion. She was convicted of two offences of extortion and sentenced to a term of 3 years' imprisonment for each offence to be served cumulatively, with eligibility for parole. She has applied for leave to appeal against these sentences.

The charges

The charges in question were brought to trial before the District Court at Perth. For present purposes, it will be sufficient to refer to the businessman, the subject of the extortion demands, as the "complainant".

The five counts on the indictment included count 1 that on or about 18 June 2000 at North Fremantle the applicant and Anthony Leslie Cooper caused the complainant to receive a writing, demanding from him a sum of money without reasonable cause, and containing threats of injury and detriment, with the intent to extort money from the complainant.
This charge was brought pursuant to s 397(1) of the Criminal Code which provides, in effect, that any person who, with intent to extort, causes any person to receive any writing demanding anything from any person, without reasonable cause and containing threats of any injury or detriments of any kind if the demand is not complied with, is guilty of a crime. The offender is liable to imprisonment for 14 years.
Count 3 on the indictment was to the effect that on 27 June 2000 at North Fremantle the applicant and Kathryn Myrtle Knapp caused the complainant to receive a writing, demanding from him a sum of money without reasonable cause, and containing threats of injury and detriment to the complainant if he did not comply with the demand. This charge of extortion was brought pursuant to s 397(1) of the Criminal Code also.
Kathryn Myrtle Knapp, being the co‑accused referred to in count 3 on the indictment, pleaded guilty to counts 3 and 5 on the indictment prior to the applicant's trial. She gave evidence for the Crown at the applicant's trial.
Knapp was sentenced to a term of imprisonment of 18 months with respect to count 3 and a term of imprisonment of 14 months in respect of count 5 which was to be cumulative upon the term of imprisonment attributed to count 3. The sentencing Judge was of the view that the sentences should be cumulative because they related to separate and discrete incidents. It is apparent from his sentencing remarks that he discounted the sentences that might otherwise have been imposed, having regard to the pleas of guilty entered by the offender Knapp and her co‑operation with the Crown. She was made eligible for parole.
The applicant and another co‑accused, Mr S, pleaded not guilty to the charges brought against them on the indictment. On 15 May 2002, at the conclusion of the trial, the applicant was convicted of counts 1 and 3. I note in passing that she was acquitted of three other counts on the indictment. Her co‑accused, Mr S, was acquitted of the charge brought against him pursuant to count 5 on the indictment.

The sentences

The learned trial Judge proceeded to sentence the applicant. He described the events underlying the relevant convictions in a summary form. He said that on or about 26 May 2000 the applicant had met the complainant in the course of her work as a prostitute. She attended his home and formed a view that he was financially secure. Shortly afterwards, she formulated the idea of obtaining money from him by making threats, including the threat that she would expose the complainant's relationship with a prostitute to his wife. In order to enforce these threats she enlisted the aid of others including the offender Knapp.
The learned sentencing Judge proceeded to review various factors bearing upon the sentence to be imposed, including the seriousness of the offending behaviour and the personal circumstances of the applicant. He then imposed a sentence of 3 years' imprisonment in respect of each conviction, and directed that the sentences be made cumulative. This resulted in a total effective term of 6 years' imprisonment, with eligibility for parole.
I digress briefly to note that the sentencing remarks do not include any reference to the applicant having been in custody and they do not purport to back date the sentence. It was common ground upon the hearing of the appeal that the first of the two sentences should have been back dated to 5 April 2002.

Grounds of appeal

The applicant has now applied for leave to appeal against the sentence.
The grounds of her appeal are set out in a minute of proposed amended grounds of appeal dated 14 April 2003. The minute states that the existing grounds of appeal are to be amended to insert in their place the following grounds of appeal:
"1.The learned sentencing judge erred by finding that the offences were so serious that despite any mitigating factors a term of imprisonment was the only possible sentencing option.
2.If a custodial sentence were warranted the learned sentencing Judge erred by not suspending that sentence to take into account the negative impact imprisoning the Applicant would have on her children.
3.The two (2) offences of which the Applicant was convicted formed a continuing course of conduct and as such should have been the subject of concurrent terms of imprisonment.
4.The learned sentencing Judge erred in not discounting the sentence to take into account the time that the Applicant had spent in custody."
At the hearing of appeal the applicant was granted leave to rely upon the facts and matters set out in her own affidavit sworn 14 April 2003. The applicant said in her affidavit, inter alia, that at the time the sentences were imposed she was in a stable relationship with her partner, Michael. She was 13 weeks pregnant to Michael and had the full time care of her two children, M (who was 6 years old) and B (who was 3 years old). M and B had been living with her for over 2½ years. They had previously spent brief periods with their father, Mark. At the time of the sentencing, and as at the date of the affidavit, she considered Mark to be a highly unsuitable parent.
The applicant went on to say in her affidavit that, immediately after she was sentenced, Mark took her children from her partner's care with the result that they are now living with him in Collie. She provided other details in support of her assertion that the father was not a suitable carer. She said that she was extremely concerned for the welfare of her children and has instituted family law proceedings to get the full time care of them when she is released from prison.
The applicant said further that while in custody she gave birth to the child A on 14 October 2002. She has signed a contract with the prison which provides that when the child A turns one year of age she must leave the prison. This arrangement was entered into pursuant to the Prison Directors rules.
Before turning to the various grounds of appeal, it will be useful to take a closer look at the facts and matters underlying the two convictions.

Circumstances

The learned trial Judge's outline of the relevant circumstances reveals a pattern of premeditated and calculating conduct on the part of the applicant.
It was the Crown case that the applicant, in combination with various other persons, delivered threatening text messages on the complainant's mobile telephone. Demands were made that he deliver money to specific locations after the applicant had formed a view (as a consequence of the complainant using her services as a prostitute) that the complainant would be a suitable target for extortion.
It seems that the complainant paid out $2,000 in order to settle a demand made by the applicant on 18 June 2000, this being the subject of count 1 on the indictment. In regard to count 3, being the other matter in respect of which the applicant was convicted, the allegation was that the applicant, with the assistance of Knapp, blackmailed the complainant a week or so later on 27 June 2000. On that occasion the complainant paid out $2,000 in order to settle their demand.
The Crown opened the case upon the basis that in order to make the relevant demands, the applicant combined with one of her co‑accused, in order to obtain a mobile telephone service which was then put to use in the course of making the demands. The text message, the subject of the count 1 charge, was presented in graphic and threatening terms and was likely to have evoked a sense of acute apprehension on the part of the recipient.
It was apparent from a handwritten note found at premises associated with the applicant's boyfriend that the co‑accused had formulated the text message in draft before transmitting the same to the complainant's mobile phone. It seems that the applicant and her co‑accused gave careful thought to the way in which the threatening message should be expressed.
The message concerning count 3 was again couched in threatening terms and made specific reference to the address of the complainant. This was obviously done with a view to convincing him that the threat was real and could be enforced. The offenders were eventually apprehended when the complainant went to the police and gave them sufficient information for surveillance to be undertaken which led to the arrest of the applicant and the subsequent prosecution of herself and her co‑accused.

The first and third grounds of appeal

By the first ground of appeal the applicant contends that the learned sentencing Judge erred in finding that the offences were so serious that despite any mitigating factors a term of imprisonment was the only sentencing option.
It is not enough in a sentencing matter that an appellate Court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made: Lowndes v The Queen (1999) 195 CLR 665. The error may appear in what the sentencing Judge said, or the sentence itself may be so excessive or inadequate as to manifest the error: R v Tait (1979) 46 FLR 386 at 388.
Principles of sentencing in this State are reflected in s 6 of the Sentencing Act 1995 and related provisions. The sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.
In R v Wilhelm (1988) 39 A Crim R 469 Walsh J observed that most cases of extortion which come before the courts are almost invariably treated seriously and attract a sentence of imprisonment.
In Roffey v The Queen, unreported; CCA SCt of WA; Library No 940601; 2 November 1994 the Court of Criminal Appeal affirmed this view. That was a case in which the applicant was being sentenced for extortion in addition to other offences. Owen J observed at 10 that if the applicant were being sentenced for the extortion offence without the complicating factor of the other sentences, a term of somewhere in the region of 6 years would have been within the requisite range.
Where the applicant and other offenders are in a situation demanding comparison and contrast, then the persons involved in the offending should receive the same punishment as a matter of parity if the relevant sentencing factors are equal between them: Postiglione v The Queen (1997) 189 CLR 295.
Counsel for the applicant in the present case drew attention to a passage in the transcript in which the learned sentencing Judge indicated that a pre‑sentence report was unlikely to assist him. His Honour went on to say that the appropriate penalty clearly was imprisonment. Counsel submitted that the learned Judge erred in deciding, before any mitigatory material had been put before the Court, that he would not consider a sentence other than imprisonment after being urged by counsel to adjourn for the preparation of a pre‑sentence report.
I am not persuaded that the appeal should succeed on this ground. The observations made by the learned sentencing Judge reveal his awareness of the applicant's personal circumstances. It follows from earlier discussion that the applicant and her associates had embarked upon a calculated plan to obtain money by extortion, and proceeded to do so. The learned Judge was familiar with these events as a result of having presided at the trial and had a basis for concluding that the applicant was a prime mover in the making of the extortion demands.
In the course of his sentencing remarks, the learned Judge had this to say about the respective positions of the co‑offenders:
"It is also necessary that I take into account what is called the parity principle. That is that persons who behave in like manner should be observed to be dealt with in similar fashion.
If the position was otherwise then the justice system would of course suffer in the eyes of the community and properly so. The co‑offender Knapp received for count 5, that is the extortion attempt on 11 July 2000 before discount for her plea and cooperation, a sentence of 3 years' imprisonment and in my view, notwithstanding that your position is more serious than hers, that is the appropriate penalty in respect of each counts 1 and 3. Those counts were separate, distinct and required separate consideration and implementation and in accordance with normal sentencing principles it is appropriate that those sentences be made cumulative one on the other, that is making a total effective head term of 6 years' imprisonment."
It follows from my review of the decided cases that in applying the parity principle, it was appropriate for the learned Judge to draw a distinction between the Knapp case and the applicant's case. It follows from my review also that the term of 3 years' imprisonment for each of the two offences of which the applicant was convicted, is consistent with the approach usually adopted by the courts in regard to offences of extortion, especially when the demands cannot be characterised as opportunistic but were made, as in this case, pursuant to a calculated plan.
By the third ground of appeal, the applicant contends that the two offences of which the applicant was convicted formed a continuing course of conduct and as such should have been the subject of concurrent terms of imprisonment.
This ground of appeal can be disposed of briefly. It is quite clear from my description of the circumstances giving rise to counts 1 and 3 of the indictment, that the applicant was involved in two discrete transactions. When the first demand for money produced a favourable result the applicant and her associates proceeded to make a further demand.
In these circumstances, the sentencing principles reflected in the Sentencing Act suggest that the offender should not only be sentenced to a term of imprisonment in order to reflect the seriousness of the offence but also that the sentences of imprisonment imposed should be cumulative rather than concurrent, in order to reflect the separation between the relevant events. It appears from the passage I have just quoted that the learned sentencing Judge approached the matter in this way, and I consider that he was correct in doing so.

The second and fourth grounds of appeal

By the fourth ground of appeal the applicant contends that the learned sentencing Judge erred in not discounting the sentence to take into account the time that the applicant had spent in custody.
It emerges from earlier discussion that this ground of appeal must be upheld. Counsel on both sides at the hearing of the appeal recognised that the first of the two sentences must be back dated to 5 April 2002. In the case of cumulative sentences, this has a consequential effect upon the commencement of the second of the two terms of imprisonment.
By the second ground of appeal, the applicant contends that if a custodial sentence were warranted the learned sentencing Judge erred by not suspending that sentence to take into account the negative impact that imprisoning the applicant would have on her children.
Section 39 of the Sentencing Act sets out the sentencing options and requires that a Court must not use a prescribed sentencing option unless satisfied, having regard to the sentencing principles, that it is not appropriate to use any of the options listed before that option. The list of options concludes with suspended imprisonment, then a term of immediate imprisonment.

Section 76(1) of the Sentencing Act provides that a court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less, may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
Previously decided cases indicate that a court need not refer explicitly to each option, for the conclusion that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate: Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998.
It seems that a court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 346 which was subsequently approved by Parker J in Latham v The Queen (2000) 117 A Crim R 74 and by the Full Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: R v Liddington (1997) 18 WAR 394.
In Cross v Cook [2001] WASCA 242 Miller J concluded that after Dinsdale (supra) it was not correct to say that a suspended sentence of imprisonment would only be allowed in exceptional circumstances. Such a sentence was always open and only if it is decided that it is not appropriate to impose such a sentence, may a court impose a term of immediate imprisonment.
The decided cases indicated that the deprivation of a child's parental care is a relevant consideration when sentencing an offender, and the rights of children in this respect need to be protected: Nguyen v The Queen (2001) 160 FLR 284 per Wallwork J at par 71; Cooper v The Queen [2001] WASCA 379 at par 16.
The relevant case law was recently reviewed by Miller J in Dodd v Hoogewerf [2002] WASCA 15. After a careful review of the authorities, he concluded at par 22 that there must be exceptional circumstances present before a court will decide not to impose an immediate sentence of imprisonment because of the deprivation of parental care that would be suffered by a child.
His Honour Justice Miller considered that the case before him was an exceptional one, primarily because of the tender age of the offender's 13 month old child and the fact that she was 3½ months pregnant at the time the sentencing judicial officer in the Court below had imposed the term of imprisonment. He went on to hold that these circumstances and the personal antecedents of the appellant in that case, should have led the learned Magistrate to suspend the sentences of imprisonment imposed upon the appellant.
In the present case, counsel for the applicant submitted that the learned sentencing Judge had fallen into error because he did not expressly consider the possibility of suspending any term to be imposed. Further, the learned sentencing Judge should have held that this was a case in which the term of imprisonment should have been suspended having regard to the role of the applicant as a carer of children. The facts and matters described in her affidavit were said to amount to exceptional circumstances of the kind mentioned in Dodd v Hoogewerf (supra). The applicant was the mother of young children and unless the total term of 6 years' imprisonment was varied on appeal, with provision for suspension of the term of imprisonment, she would be separated from her youngest child on the first birthday of the child A on 14 October 2003.
I pause to observe that in addressing the personal circumstances of the applicant the learned Judge said this in the course of his sentencing remarks:
"In determining the appropriate term of imprisonment it is necessary that I take into account matters personal to you. I note that you're 27 years old having been born on 18 September 1974. You have young children. I am told that you are presently pregnant. It, I think, can be inferred from all the material that has been placed before me both by way of evidence and in the documentary material, that you have not had the advantages that are perhaps enjoyed by others in the community more fortunate than you, but having said all that at the time these offences occurred you were of an age where you had the maturity to make sensible and socially acceptable decisions and you chose to do otherwise."
I consider that it is open to the Court of Criminal Appeal in the circumstances of the present case to take account of and give weight to the role of the applicant as a mother, especially in regard to her role as the mother of a young child of less than 12 months of age. It appears to me that in balancing the various considerations to be taken into account in the course of exercising his discretion, the learned Judge did not give sufficient weight to this aspect of the matter, and that his failure to address the implications of the applicant's pregnancy at greater length can be characterised as an error.
Nonetheless, I consider that the learned Judge was obliged to give substantial weight to the need for general and personal deterrence in a case such as this where the applicant had been convicted on two counts of extortion. The seriousness of the two offences required the imposition of a term of immediate imprisonment.
However, in order to give practical effect to the conclusion I have come to that an error was made in the course of the sentencing process, I consider that some adjustment should be made to the sentences of imprisonment imposed with a view to reflecting the considerations I have mentioned.
The totality principle requires a sentencing officer who has passed a series of sentences, each properly calculated in relation to the offence, to consider whether the aggregate is just and appropriate. This may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate: R v Holder and Johnston [1983] 3 NSWLR 245; Mill v The Queen (1988) 166 CLR 59.
For the reasons given earlier, the first sentence of imprisonment must be back dated to 5 April 2002. If the term of imprisonment in total amounted to 4 years and 6 months with eligibility for parole then there is a prospect that the applicant would be released upon parole shortly before 14 October 2003 being the date upon which her youngest child turns 1 year of age. On this scenario, an opportunity would be afforded to the applicant to retain possession of her child and avert the prospect of the child being removed from her pursuant to the arrangements that would otherwise apply.
Accordingly, in order to arrive at a just and appropriate disposition of the case on appeal, I consider, that for the reasons I have just given, each of the two sentences should be reduced from 3 years to a term of imprisonment of 2 years 3 months with the intent that the total term of imprisonment will be 4 years 6 months with eligibility for parole.
I am not satisfied that the terms of imprisonment now proposed should be suspended in the manner contended for by counsel for the applicant, notwithstanding reasoning of the kind reflected in Dodd v Hoogewerf (supra). The extortion offences in the present case place the relevant convictions at a higher level of seriousness. The factors relied upon by the applicant are outweighed by the seriousness of the offences.
In summary, then, I consider that the applicant should be granted leave to appeal and that the appeal should be allowed upon grounds 2 and 4 for the reasons I have outlined. The orders I propose are that for count 1 of the indictment the applicant be sentenced to a term of imprisonment of 2 years 3 months and for count 3 a term of imprisonment of 2 years 3 months. These terms are to be served cumulatively. In the manner allowed for by s 89(5) of the Sentencing Act there will be a single parole eligibility order in respect of the aggregate term of 4 years 6 months.