Anthony v The State of Western Australia
[2007] WASC 277
•26 OCTOBER 2007
ANTHONY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 277
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 277 | |
| Case No: | SJA:1049/2007 | 26 OCTOBER 2007 | |
| Coram: | McKECHNIE J | 26/10/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence reduced Parole eligibility ordered | ||
| D | |||
| PDF Version |
| Parties: | RICHARD SHANE ANTHONY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Plea of guilty Whether a discount is appropriate Parole eligibility Road traffic Driving while disqualified Turns on own facts |
Legislation: | Nil |
Case References: | Findlay v The State of Western Australia [2007] WASC 61 Kearney v Rinaudo [2007] WASC 104 Moody v French [2007] WASC 190 Narkle v Hamilton [2007] WASCA 236 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L H JONES
File No : AR 3268 of 2006, AR 3269 of 2006, NG 510 of 2006, AR 2730 of 2007, AR 2731 of 2007
Catchwords:
Criminal law and procedure - Plea of guilty - Whether a discount is appropriate - Parole eligibility - Road traffic - Driving while disqualified - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Sentence reduced
Parole eligibility ordered
Category: D
Representation:
Counsel:
Appellant : Mr C J L Miocevich
Respondent : Mr S F Rafferty
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Findlay v The State of Western Australia [2007] WASC 61
Kearney v Rinaudo [2007] WASC 104
Moody v French [2007] WASC 190
Narkle v Hamilton [2007] WASCA 236
(Page 3)
1 McKECHNIE J: I start by expressing my gratitude to both counsel for being in a position to come along, at fairly short notice, and give detailed assistance to the court on this matter.
2 The appellant was convicted on 6 March 2007 of a series of offences and received terms of imprisonment totalling 2 years without parole. The offences included assault occasioning bodily harm, breach of a violence restraining order, no motor vehicle driver's licence, and two breaches of bail.
3 The magistrate accumulated the breaches of bail, the assault and the no motor vehicle driver's licence offence to make a total of 2 years' imprisonment. The appellant, being in prison, filed an inadequate notice of appeal on 11 July 2007, but wrote to the court explaining that he had been waiting for transcript and had received no response. The state, very properly, does not oppose an application for extension of time in these circumstances.
4 Because nothing was happening, on 4 October 2007 I brought the matter on before me because an unrepresented person, in prison, obviously has some disadvantages. On that occasion, I made some tentative observations and suggested that the appellant might contact Mr Miocevich, whom he had seen before. I gave him 14 days to consider what to do, and if nothing had happened I would dismiss the application.
5 Since that time, Mr Miocevich has prepared submissions and has sought to put in grounds of appeal which, without objection, have been put into the record as follows:
1. The learned magistrate erred in failing to give a discount for the plea of guilty on charge NG 510/06 (No motor vehicle driver's licence).
2. The learned magistrate erred in failing to make the applicant eligible for parole on the basis that it does not seem to be working.
6 This is a hearing of both an application for leave to appeal and the appeal itself. I will deal with ground 1 first. There seems to be a division in the court, or at least in the trial division, as to the significance of a plea of guilty. What the magistrate said was:
[T]he only possible option open to me … is a term of imprisonment, and it has to be the maximum term allowable under section 49(1)(a) and (2)(a) of the Road Traffic Act. That is a sentence for 18 months maximum, but I have to have regard to the new sentencing regime and take a third off in relation to that, so the maximum term is a term of imprisonment for
(Page 4)
- 12 months, and that is what I have imposed. That will be the head sentence - imprisonment for 12 months.
7 On an arithmetical basis, it is obvious that the magistrate did not allow anything for the plea of guilty. I recently dealt with this in the case of Narkle v Hamilton [2007] WASCA 236. The Sentencing Act 1995 (WA) provides:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. (s 8(2))
- To my mind, there is a statutory obligation to take a plea of guilty into account.
8 Once upon a time, pleas of guilty were said to be expressions of remorse, indications of help to the justice system and the like. I use the words 'once upon a time' because that is the way most fairy stories commence. In practical terms, on occasions, a plea of guilty is entered for remorse, but even in cases where the offender is caught red-handed, there is a utilitarian aspect in acknowledging the early plea of guilty. Indeed the whole fast-track system for indictable offences is predicated on that basis.
9 In my view, a plea of guilty should always attract some specific discount of an otherwise proper sentence, although the weight to be attributed to it, and the extent of the discount, relates to many factors. Counsel have cited three cases today: Findlay v The State of Western Australia [2007] WASC 61 (Martin CJ), Moody v French [2007] WASC 190 (Johnson J), and the decision of Kearney v Rinaudo [2007] WASC 104 (Hasluck J).
10 If there is a difference between those cases, and I acknowledge there is a difference between at least Hasluck J and the Chief Justice, I prefer the reasoning of Hasluck J.
11 I am satisfied that, in relation to the offence of NG 510/06, no motor vehicle driver's licence, the magistrate was in error in failing to give some weight to the plea of guilty. The sentence he imposed was 12 months.
12 The magistrate intended to impose the maximum which, but for the plea of guilty, was entirely appropriate, this being the appellant's 19th conviction for such an offence. Acknowledging the fact that no other factor is present which would justify a great reduction, I would reduce the sentence of 12 months to one of 11 months.
(Page 5)
13 I turn to ground 2 in relation to parole. What the magistrate said was:
On each of those charges you will be imprisoned for a period of three months, and each of those terms will be cumulative. On my addition, that is an imprisonment for a period of two years. I am not making an order for parole. That does not seem to be working either and it is a definite term of two years. Thank you.
14 That approach, I think, is in error in two respects. First, it does not properly reflect the Sentencing Act s 89 as a factor or, if it does, it is only a factor in relation to s 89(4)(b); and, secondly, it may not be entirely accurate, because it does seem that the appellant, while not ceasing his offending behaviour between 2003 and 2006, when these offences occurred, had not received a term of imprisonment and had apparently successfully completed a CRO, factors which ought to have been taken into account.
15 Because there is an error, that throws the matter open for my re-consideration. The respondent submits, following s 89(4), the offence is serious and the appellant has a significant criminal record. Each of those is manifestly true. The appellant's criminal record, in relation to driving, is particularly bad: 19 previous convictions for similar offence says it all. His other record is also not good in relation to matters of violence. There is no doubt that the appellant falls within s 89(4)(a) and (b), and the discretion is then enlivened to refuse to make a parole eligibility order. If such a discretion were exercised to refuse parole it could hardly be complained about.
16 On the other hand, the fact that the discretion is enlivened does not mean that it should be necessarily exercised; that still is a matter of judgment. The appellant is 34 years old and clearly has a very significant problem with alcohol. There are however indications that, perhaps, he is beginning to appreciate the consequences of his behaviour. He does seem to have held a job for a time and, as I say, seems to have satisfactorily completed a conditional release order. These are factors which weigh in the balance. In the end, the purpose of parole is rehabilitation, because the community is served best if a person is rehabilitated. Parole remains part of the sentence, but served within the community. Notwithstanding the fact that clearly, under s 89(4), the discretion exists not to make a parole eligibility order in the end by (as Chief Judge Hammond used to say) the merest of margins, I am persuaded that the appellant ought to be given the opportunity of parole, to see whether, in truth, he is beginning to learn the consequences of his behaviour. If he has not, then of course if
(Page 6)
- he commits an offence while on parole, he will be instantly required to serve the balance of the term.
17 The orders I make are:
1. Extension of time within which to appeal is granted;
2. leave to appeal is granted; appeal is allowed; the sentence of 12 months reduced to one of 11 months, to make the total sentence one of 23 months.
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