Austin v Grapes
[2004] WASCA 102
•18 MAY 2004
AUSTIN -v- GRAPES & ORS [2004] WASCA 102
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 102 | |
| Case No: | SJA:1124/2003 | 6 MAY 2004 | |
| Coram: | SIMMONDS J | 18/05/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | SONYA LEANNE AUSTIN KENNETH GRAPES JEFFREY EVAN TAYLOR MATTHEW HOLLAND ROBERT BANDY LAURENCE GREGORY BRADY |
Catchwords: | Criminal law and procedure Sentencing Appeal against sentence imposed in Court of Petty Sessions Whether Magistrate applied the appropriate transitional period discount Whether Magistrate applied the appropriate discount for guilty plea Whether sentence imposed was manifestly excessive Whether Magistrate erred in imposing custodial sentence without eligibility for parole |
Legislation: | Criminal Code Act 1913 (WA), s 378 Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 19, s 43 Road Traffic Act 1974 (WA), s 49 Sentencing Act 1995 (WA), s 89(4) Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1 |
Case References: | Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997 Lowndes v R (1999) 195 CLR 665 Miles v R (1997) 17 WAR 518 Sheppard v Blakey [2001] WASCA 309 Williams v Franzinelli [2001] WASCA 241 Yanko v The Queen [2004] WASCA 37 Atholwood v R [2000] WASCA 76 Garlett (2000) 111 A Crim R 336 Hubbard v Fisher [2001] WASCA 182 R v Wongawol (1998) 101 A Crim R 350 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : AUSTIN -v- GRAPES & ORS [2004] WASCA 102 CORAM : SIMMONDS J HEARD : 6 MAY 2004 DELIVERED : 18 MAY 2004 FILE NO/S : SJA 1124 of 2003 BETWEEN : SONYA LEANNE AUSTIN
- Appellant
AND
KENNETH GRAPES
First Respondent
JEFFREY EVAN TAYLOR
Second Respondent
MATTHEW HOLLAND
Third Respondent
ROBERT BANDY
Fourth Respondent
LAURENCE GREGORY BRADY
Fifth Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR F CULLEN SM
File Number : PE 34832/03, PE 31340/03, PE 26154/03 & JO 54325/03
Catchwords:
Criminal law and procedure - Sentencing - Appeal against sentence imposed in Court of Petty Sessions - Whether Magistrate applied the appropriate transitional period discount - Whether Magistrate applied the appropriate discount for guilty plea - Whether sentence imposed was manifestly excessive - Whether Magistrate erred in imposing custodial sentence without eligibility for parole
Legislation:
Criminal Code Act 1913 (WA), s 378
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 19, s 43
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 89(4)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1
Result:
Appeal allowed
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr D J McKenzie
First Respondent : Mr R K Malhotra
Second Respondent : Mr R K Malhotra
Third Respondent : Mr R K Malhotra
Fourth Respondent : Mr R K Malhotra
Fifth Respondent : Mr R K Malhotra
Solicitors:
Appellant : Legal Aid of Western Australia
First Respondent : State Director of Public Prosecutions
Second Respondent : State Director of Public Prosecutions
Third Respondent : State Director of Public Prosecutions
Fourth Respondent : State Director of Public Prosecutions
Fifth Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Lowndes v R (1999) 195 CLR 665
Miles v R (1997) 17 WAR 518
Sheppard v Blakey [2001] WASCA 309
Williams v Franzinelli [2001] WASCA 241
Yanko v The Queen [2004] WASCA 37
Case(s) also cited:
Atholwood v R [2000] WASCA 76
Garlett (2000) 111 A Crim R 336
Hubbard v Fisher [2001] WASCA 182
R v Wongawol (1998) 101 A Crim R 350
(Page 4)
1 SIMMONDS J: This is an appeal against the sentence imposed on the appellant pursuant to the order granting leave to appeal with an extension of time of his Honour Justice Scott on 12 December 2003. A number of grounds upon which leave to appeal was granted were not pursued on the appeal. I list the remaining ones below. They are lettered in accordance with the scheme in the leave to appeal order:
(a) The learned Magistrate erred in law by sentencing the applicant to terms of imprisonment and not reducing those terms by one-third;
(d) The effective sentence imposed by the learned Magistrate was manifestly excessive in all the circumstances of the convictions and of the applicant's antecedents and her prospects of rehabilitation;
(f) The learned Magistrate erred in law by failing to order eligibility for parole.
Background
2 The appellant was brought before his Worship, the learned Stipendiary Magistrate on 2 October 2003 to face two charges relating to driving motor vehicles while not being the holder of the appropriate valid driver's licence and whilst being legally disentitled to hold a driver's licence, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under s 19 or s 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), contrary to s 49 of the Road Traffic Act 1974 (WA); and two charges of stealing contrary to s 378 of the Criminal Code Act 1913 (WA). All of these offences were committed over the period from early May to late June 2003. At the hearing, the accused pleaded guilty to all charges. In addition, the accused was before the learned Magistrate to answer charges of stealing three separate motor vehicles, property of three different people, over the period 27 January to 14 February 2002. She likewise pleaded guilty to those charges.
3 After hearing from the prosecutor, the learned Magistrate referred to the previous record of the accused indicating that given such record that he would obtain a pre-sentence report. Counsel for the accused, who was also counsel for the appellant before me, took the opportunity then to address the offences, as well as the accused's children, her partner and ongoing help she was receiving at the Perth Naltrexone Clinic for a drug problem. Those additional matters followed the indication by the Stipendiary Magistrate that it was "inevitable she'll go to prison".
(Page 5)
4 At the subsequent hearing, counsel for the accused handed to the learned Stipendiary Magistrate a report from the Perth Naltrexone Clinic, and indicated to the learned Stipendiary Magistrate that he had read the pre-sentence report. The pre-sentence report recommended eligibility for parole. Counsel for the accused addressed a number of matters with counterparts in the pre-sentence report. He did not, however, address the matter of parole.
5 At the subsequent hearing the learned Magistrate took a head sentence of 3 years' imprisonment and reduced it to 2 years, apparently by virtue of the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA), Schedule 1. In respect of the thefts of the motor vehicles, he sentenced the accused to 12 months' imprisonment on each, concurrent; for the driving under suspension, 12 months' imprisonment and a 2-year licence disqualification cumulative in one case and concurrent in the other; in the case of one of the charges of theft in 2003, a sentence of 6 months' imprisonment, and for the other theft in 2003, 12 months' imprisonment, concurrent, with an order for the return of the property. The learned Stipendiary Magistrate also determined that he would not make the accused eligible for parole.
Ground (a): the application of the appropriate discount
6 At the hearing it was agreed by counsel for the appellant and for the respondents that the learned Stipendiary Magistrate had recognised and intended to give a discount for the plea of guilty. It was also agreed by counsel that this plea of guilty had been given at the first opportunity to plead before the learned Stipendiary Magistrate, and that this represented a fast track plea of guilty for the purposes of the application of the discount, which the court in Miles v R (1997) 17 WAR 518, at 521, indicated should fall within the range of 20 per cent to 35 per cent. It was further agreed by counsel that this is a separate discount from that under the transitional period provisions I have referred to, and should be applied either to the original head sentence before the transitional period discount, or to the head sentence that results after the transitional period discount. Counsel further agreed that the learned Stipendiary Magistrate had not in fact approached his task in that way, having apparently only employed the transitional period discount, or having made up the discount he did use of one-third from both the transitional period and guilty plea ones.
7 Either approach, both counsel conceded, was an error causing his sentence discretion to miscarry in this respect. This remitted the matter to
(Page 6)
- me for the purpose of determination of the appropriate discount of the head sentence.
8 This resolved itself into the question, given the other grounds of appeal to which I return below, of what discount within the Miles range I should adopt. Counsel for the appellant suggested that the minimum discount should be 25 per cent, and possibly higher. This was in view of the indications favourable to the appellant in the pre-sentence report and the Naltrexone Clinic report, which needed to be set against the fact that she had not saved the police preliminary work prior to the entry of her plea, as well as her antecedents. Those antecedents were particularly stressed by counsel for the respondents. They are ones of an extensive number of convictions as an adult, numbering 79 according to the pre-sentence report, including stealing, driving without a motor vehicle licence, burglary with intent, hindering police, obstructing a railway officer, giving a false name and address, breach of bail, breach of probation, cannabis possession, disorderly conduct, escaping legal custody, and being unlawfully on premises. It is evident from the pre-sentence report that this record needs to be understood against a background of reported family violence, abandonment by her parents, alcohol abuse and addiction to illicit drugs. These crimes have been dealt with by lower courts, and she appears not to have graduated to the sort of serious offending that would engage the attention of higher courts.
9 I should also indicate that it appears from the police statement to the learned Magistrate that none of the offences appear to have raised difficult problems of proof for the police and in respect of one of them the accused made a confession to the police.
10 In all the circumstances, I have concluded that a 28 per cent discount is the appropriate one, balancing the factors I have indicated.
Ground (d): manifestly excessive sentence
11 Counsel for the appellant in his written submissions and at the hearing indicated that this ground was only being pursued in relation to the sentences of 12 months imprisonment in relation to the driving under suspension convictions. My attention was drawn to the judgment of Justice White in Williams v Franzinelli [2001] WASCA 241. In that case his Honour provides a most useful review of the authorities in connection with sentencing of persons on offences such as these. Although it was submitted to me that the range was 4 to 6 months, I note that it is difficult to extract from the judgment any range other than 2 to 6 months, other sentences above that range being established as appropriate in particular
(Page 7)
- cases. It is, at least, clear that I should take account of relevant offences, which I understand to be ones of a like kind to this one, in the appellant's criminal history; the circumstances of the commission of the offence, including any tending to reduce its significance, or indicating aggravating circumstances; and circumstances personal to the offender which would either mitigate or aggravate for these purposes.
12 In this case, there were the following offences which could be seen to be relevant:
31/01/96 no motor driver's licence MDL disqualified
16/08/96 no motor driver's licence – under suspension MDL disqualified
26/05/98 no motor driver's licence MDL disqualified
26/05/98 no motor driver's licence – under suspension MDL disqualified
30/04/99 no motor driver's licence MDL disqualified, 12 months imprisonment suspended
22/12/99 no motor driver's licence MDL disqualified
22/12/99 driver of vehicle with forged or fraudulently altered false number plate MDL disqualified
16/05/02 no motor driver's licence under fines suspension, 2 months imprisonment, MDL disqualified.
13 Pausing at that point, this record would seem to be of broadly equivalent seriousness to that in the Williams case as set out at par 5 of the judgment in that case.
14 As to the circumstances of the commission of the offences, these were unlike those of Williams, where there was only one incident of this sort at the relevant time and there was evidence that the driving was for a short period, and forced on the accused by the circumstances. Here, there were no such circumstances established, although the driving was while under suspension, unlike the driving under court suspension in Williams.
15 Finally, there is the continuing drug addiction problem that, as the pre-sentence report indicates, she is endeavouring to address, albeit against an unpromising prior history.
(Page 8)
16 I have concluded that in these circumstances the sentence was not one that could have been taken outside the normal range, and that the sentence of 12 months in each case was manifestly excessive on the Lowndes v R (1999) 195 CLR 665 standard.
17 On my exercise of the sentencing discretion here, having regard to the sentences referred to in Williams, a sentence of 6 months would be appropriate.
18 I would thus uphold this ground of appeal.
Ground (f): eligibility for parole
19 Counsel for the appellant here had two forms of error upon which he was relying. The first was that the learned Stipendiary Magistrate had made a process error, by not inviting submissions from the accused as to eligibility for parole. The other, a substantive error, was that the learned Magistrate had failed to consider the full array of circumstances relevant to the exercise of his discretion, focussing instead simply on one, being the past record of the accused in not complying with parole conditions on a regular basis.
20 With respect to the alleged process error, there is no question that the learned Stipendiary Magistrate did not invite submissions on the issue of parole, and neither did counsel for the accused in his remarks following receipt of the pre-sentence report address the matter, at least in explicit terms. I note that there was a clear recommendation in the pre-sentence report in favour of parole, based on the view that the accused would benefit from supervision and treatment programmes for her drug problems.
21 I should note that prior to receipt of the pre-sentence report, counsel for the accused addressed the learned Stipendiary Magistrate in relation to a range of matters relevant to the determination of eligibility for parole, including the pattern in the criminal history of the accused which indicated at least one significant period where she had remained offence free. He also referred to her efforts to deal with her longstanding drug problem, particularly in recent times, by reference to help she was seeking from the Perth Naltrexone Clinic. He also addressed the circumstances in relation to the commission of a number of the offences, particularly the stealing motor vehicle charges, to indicate that she had ridden in the cars without actually stealing them, or at least remembering doing so. With respect to the driving under suspension charges, emphasis was laid on the fact they were driving under fines suspension, not a court suspension. As
(Page 9)
- to the other stealing offences, submissions were made concerning the fact that she was a party to the offence, but not the taker, in at least one case. Reference was also made to the accused's two young children, aged seven and eight, and to her having a partner who was supportive. Emphasis was also laid on the fact that her current involvement with the Perth Naltrexone Clinic was her first real attempt at staying drug free, although she had made an attempt during the period after she was released from custody in 2002.
22 Counsel's submission following examination of the pre-sentence report focussed on having the learned Magistrate consider an intensive supervision order, if he were not minded to deal with the matter by referring the accused to the Drug Court. Particular emphasis was laid on strict conditions under an intensive supervision order so that there be a programme in the Perth Naltrexone Clinic which could be commenced immediately. Emphasis was also laid on the fact that the most serious offences for which sentencing was being sought, related to the theft of motor vehicles that had occurred in 2001 or the beginning of 2002, pre-dating the prior sentence of imprisonment she was given in May 2002.
23 Counsel for the appellant referred me to Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997 which undoubtedly supports the proposition that the failure to invite a submission as to parole can be a miscarriage of discretion in this area. However, as Sheppard v Blakey [2001] WASCA 309 indicates, there is no pre-emptory requirement for such an invitation if in fact counsel understood that the matter of whether or not parole would be allowed was an issue, and counsel addressed that matter. In this case, I confess to some uncertainty in this respect. Counsel for the appellant indicated to me that had he known eligibility for parole was in any doubt should a custodial sentence be imposed he might well have made further submissions, and I cannot exclude this possibility. In view of the form of the recommendation for parole, it appears to me that it was indeed possible that counsel had reasonably concluded eligibility was not in issue if a custodial sentence were to be imposed. I note, in particular, the judgment in Yanko v The Queen [2004] WASCA 37 at par 55 in connection with the significance of a clear recommendation for parole in a pre-sentence report. I thus conclude that the learned Magistrate erred in not inviting submissions as to parole in these circumstances.
24 This makes it unnecessary for me to determine whether or not the learned Stipendiary Magistrate committed the substantive error to which
(Page 10)
- the appellant had addressed argument. It does mean, however, that I must consider the issue of whether or not parole should be allowed.
25 In this connection, in view of the change in the form of the relevant provision of the Sentencing Act 1995 (WA), to the current s 89(4), as well as the approach of the Court in Yanko per Templeman J, I cannot accept the written submission of the appellant that I should consider that there is "a bias towards the ground of eligibility for parole". There is no question but that s 89(4) applies to my sentencing exercise, as it also did to that of the learned Stipendiary Magistrate, whose sentence was delivered in October 2003. While it is not entirely clear what the effect of the change in the form of the provision for eligibility for parole is, it is clear at least that there is no bias towards the grant of eligibility for parole of the sort associated with at least some of the authorities prior to the current form of the provision. However, as Justice Templeman appears to indicate in Yanko, the new provision does not substitute a bias away from parole, and the respondent in this case did not urge a different view. Rather, the discretion is one involving the weighing of the factors for and against parole. Those factors here weighing in favour of parole are the ones that I have associated with the submissions of counsel for the accused, as I have referred to them above. This is in addition to the important matter of the recommendation in the pre-sentence report.
26 Against parole are the matters of the extensive criminal record of the appellant, albeit one that has not brought her before the superior courts. In addition, there are the matters upon which the learned Stipendiary Magistrate commented in his sentencing remarks, including the one of the past record of the accused in not complying with parole conditions on a regular basis, that was referred to specifically in connection with parole. The other matters included the long-standing drug history which she had not successfully addressed. In addition, the learned Stipendiary Magistrate indicated he did not accept that at the time of commission of the offences she was by reason of her drug problem unaware of what she was doing. He further laid emphasis on the seriousness of the offences in question here. He referred to her significant criminal record involving offences of dishonesty, and to the fact she had previously had terms of imprisonment pronounced against her. He laid particular emphasis on her prior opportunities to rehabilitate herself, and to her continuous breach of orders and of parole. At the same time, he acknowledged her plea of guilty as well as her indication of some remorse at least for what she had done.
(Page 11)
27 I have concluded, based on the clear recommendation in the pre-sentence report, as well as the more recent indications of her seriousness of purpose in seeking to undergo structured treatment through the Perth Naltrexone Clinic, a matter before the learned Stipendiary Magistrate in the report from the Clinic upon which counsel for the appellant rightly placed much reliance, as well as the family situation of the accused on which counsel for the appellant also placed considerable reliance, that it would be appropriate to order eligibility for parole in this case.
28 It follows from my disposition in relation to the appeal that the sentence in this case should be calculated as follows. The reduced head sentence of 30 months should be reduced by the transitional discount of 10 months. This 20-month period should then be reduced by 6 months by reason of the discount for a plea of guilty. From all of this it follows that the discounted head sentence has been reduced from 2 years to 14 months; and in addition, the original sentence has been varied by making the appellant eligible for parole.
29 Appeal allowed.
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