Barker v The Queen - [2003] WASCA 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BARKER -v- THE QUEEN [2003] WASCA 70

CORAM: MURRAY J
ANDERSON J
MCKECHNIE J

HEARD: 14 MARCH 2003

DELIVERED : 14 MARCH 2003

FILE NO/S: CCA 15 of 2002

BETWEEN: GARRY JOHN BARKER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Refusal of eligibility for parole - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 89(2)

Result:

Extension of time refused

Category: B

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr K P Bates and Ms A D Kurtze

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

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

R v Garlett (2000) 111 A Crim R 336
Rawcliffe v The Queen (2000) 22 WAR 490
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Dempsey v The Queen, unreported; SCt of WA; Library No 960059; 9 February 1996
Fleming v The Queen [2000] WASCA 298
King v The Queen [2001] WASCA 198
Lowndes v The Queen (1999) 195 CLR 665
Mitchell v The Queen (1998) 20 WAR 257
R v Hough [2002] WASCA 42
R v Wale (2001) 126 A Crim R 370
R v Wongawol (1998) 101 A Crim R 350
Riley v The Queen [2000] WASCA 111
Smoker v The Queen [2001] WASCA 388
Truica v The Queen [2001] WASCA 221

MURRAY J: There are two applications before the Court. One is for an extension of time to enable the pursuit of an application for leave to appeal against sentence. The sentences in question were imposed on 21 August 2001. The application for leave to appeal was made on 14 January 2002. In those circumstances, it is established that the application was 4 months out of time. It is a not insignificant delay.
The application for an extension of time is supported by an affidavit of the applicant's solicitor. It has to be said, I think, that the materials contained within that document reveal little which would be calculated to persuade the Court of itself that there were good reasons for the delay and that an extension of time would be warranted. The time would not be extended, therefore, unless it was abundantly clear to the Court that the point which is sought to be ventilated on the application for leave to appeal against sentence so commanded support that to fail to rectify what occurred below would leave some injustice in relation to the sentences imposed.
The application for leave to appeal against sentence is advanced, against that background, on the sole ground that the learned sentencing Judge erred in not ordering eligibility for parole.
There were convictions in the District Court at Carnarvon after trial for a very large number of offences, including a count of threat to harm, deprivation of liberty, three offences of making threats to kill, an assault occasioning bodily harm, three offences of indecent assault and no less than eight offences of aggravated sexual penetration, or sexual penetration simpliciter. Those offences were committed as part of one continuing course of events, as her Honour the sentencing Judge noted, in the vicinity of Carnarvon and also Exmouth on 8 and 9 May 2000 against the one complainant.
It is sufficient to note that the recitation of the facts within her Honour's sentencing remarks reveals a series of offences of quite astonishing violence and calculated cruelty involving elements of premeditation and the infliction of what must have been a terrifying experience of a kind from which it would be difficult ever to recover.
The present application does not require that the facts be dealt with in detail, in my view, and I simply note that her Honour the sentencing Judge observed that worrying features of the commission of the offences included what her Honour described as features of power play, sadism and a complete and utter lack of respect for the victim who, when the applicant had, as her Honour put it, finished with her, was abandoned, the applicant driving off with her clothes and leaving her penniless, demonstrating, in her Honour's view, (formed upon very good grounds) a "callous indifference to her feelings and her welfare". The offences were committed over a period of about 24 hours, and there were elements of premeditation in their commission. In addition, her Honour noted that the applicant had a complete lack of remorse and her Honour, despite searching, could find no mitigation at all to be gleaned from the circumstances of the offences.
Her Honour, on 21 August 2001, imposed sentences which resulted in an aggregate term of 13-1/2 years imprisonment backdated to the relevant date in relation to time spent in custody, which was 6 April 2001. The individual sentences themselves need not be noticed except that her Honour imposed most of the sentences to operate concurrently, ordering two of the terms of 6 years imprisonment imposed for the sexual assault offences to be served cumulatively upon each other and cumulatively upon the initial offence of threatening harm for which a sentence of 18 months imprisonment was imposed. So the aggregate term, as I say, was one of 13-1/2 years imprisonment made up of two cumulative terms of 6 years imprisonment and one additional cumulative term of 18 months.
The sentencing Judge noted with some particularity the criminal history of the applicant, and she particularly noted the commission in 1990, some 10 years or more prior to the offences before her, of sexual offences described by her Honour as being against a female friend in her own home. There were a number of them which her Honour detailed for which, upon his plea of guilty on that occasion, the applicant was sentenced in November of 1991.
Her Honour spoke of reading reports about the applicant as at that time, and the updating of reports relevant to his circumstances, in the form of a psychiatric report from Dr Srna dated 10 August 2001 and a psychological report from a clinical psychologist, Mr Cicchini, dated 12 August 2001.
Her Honour commented upon the applicant's personal history of a deprived and significantly abnormal kind. She mentioned his drug abuse, his addiction to alcohol and spoke in detail of the applicant's personal circumstances. The Judge particularly drew from the reports to which I have referred and an additional report of the sexual offenders treatment unit, a concern about aspects of sexual dominance to deal with unresolved emotional issues and the suggestion that there was a compulsive repetitive quality to the offending.
Her Honour noted, bringing the criminal history up to date, an offence of assault which she described, committed just shortly before the offences before her, and her Honour noted that that was of itself an offence which appeared to have overtones of preparation for more serious sexual offences.
Her Honour said that the reporting indicated that the applicant posed a very significant danger to the community, a constant danger at present, but that he had declined to undergo psychological testing. Her Honour was concerned that his circumstances were such that, as she put it, quoting from the report of Dr Srna:
"Judging from the increasingly escalating character of his offences and their seriousness it is likely that his dangerousness is to increase with time and the crimes become gradually more serious. His prognosis in terms of rehabilitation and reintegration into society are extremely poor. The coexistence of severe polysubstance abuse and dependence in the past and the future as well as sex offending significantly worsens his prognosis."
Addressing the question of eligibility for parole, her Honour referred to the provisions of the Sentencing Act 1995 (WA) and, in effect, quoted those which are contained in s 89(2). Her Honour discussed the way in which the question was to be approached and did so in terms which are not suggested to be in any way incorrect as a matter of law, saying:
"The discretion whether to make an order of eligibility for parole cannot be triggered unless there is something which points positively towards the appropriateness of parole. There is a bias towards eligibility for parole, but that is provided there is material before the sentencing Judge which points positively towards the appropriateness of parole."
As a summation of the task before her Honour, it is not suggested that that statement contains any error. It is law which may be drawn from the decisions of this Court in Thompson v The Queen (1992) 8 WAR 387 at 395 to 396, and Rawcliffe v The Queen (2000) 22 WAR 490. In addition, reference may be made to the decision of R v Garlett (2000) 111 A Crim R 336, and particularly to the judgment of Anderson J at [87], where his Honour spoke of the bias towards eligibility as standing for the proposition that, provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole would be exercised in favour of the prisoner unless there is sufficient reason not to exercise that discretion in his or her favour.
Expressly then in the context of the question of parole eligibility, her Honour reviewed the circumstances of the commission of the offence and the extensive criminal history. She noted that there had previously been a parole order which was breached by further offending and finally concluded, having regard to the circumstances of the commission of the offences, the history and those matters which were personal to the applicant, that there was nothing positive to trigger the exercise of the Court's discretion to make a parole eligibility order.
As the application is presented to us, I think it is a fair observation that counsel does not suggest that there is anything particularly positive or affirmative which points to the eligibility for parole, but he argues that one of the factors to which the court must direct attention is that contained in s 89(2)(d). The court must have regard to the circumstances of the offender which, in the court's opinion, might be relevant to the offender at the time when he or she would be eligible for release on parole if a parole eligibility order was made.
Counsel notes that the Crown before the sentencing Judge were, in addition to the imposition of finite terms of imprisonment, seeking the imposition of a term of indefinite detention. Her Honour was not persuaded that the applicant would at the time when he was eligible for release from the sentence she was imposing present such a constant and continuing danger, particularly of the commission of violent offences, to society or any part of it as to warrant the making of an order of that exceptional character.
If that is the case, as counsel puts it rhetorically, surely her Honour's decision about eligibility for parole should have been to grant eligibility upon the ground that it might well be that by the time the offender would be eligible for release on parole, his circumstances would

be different from those which were overwhelmingly presented to the sentencing Judge, and parole eligibility might be justified.

In my opinion, that puts incorrectly the task which confronted her Honour in respect of parole eligibility which was a judgment to be made in the context of the aggregate term of imprisonment which was to be imposed having regard to the various circumstances set out in s 89(2) and the nature of the prognostication to which s 89(2)(d) refers. The questions were different and, to my mind, her Honour's answers to them cannot be the subject of criticism in relation to her exercise of the discretion in relation to parole eligibility.
For those reasons, I find nothing of merit in the application for leave to appeal against sentence. I would therefore refuse the application for an extension of time.
ANDERSON J: I agree, for the reasons given by Murray J, that the application for an extension of time should be refused.
MCKECHNIE J: I also agree.