Barry v Beverly

[2009] WASC 291

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BARRY -v- BEVERLY [2009] WASC 291

CORAM:   McKECHNIE J

HEARD:   17 SEPTEMBER 2009

DELIVERED          :   17 SEPTEMBER 2009

FILE NO/S:   SJA 1078 of 2009

BETWEEN:   DANIEL LOUIS BARRY

Appellant

AND

NIGEL MARK BEVERLY
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S R MALLEY

File No  :PE 10069 of 2009, PE 10071 of 2009, PE 11989 of 2009

Catchwords:

Sentencing - Totality - Sentence cumulative on existing sentence - No new principle

Legislation:

Nil

Result:

Appeal allowed
Sentence varied

Category:    D

Representation:

Counsel:

Appellant:     Mr A J Robson

Respondent:     Mr R P K Soh

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

McLean v The Queen [1999] WASCA 209

Reid v Quigg [2007] WASC 35

1. McKECHNIE J:  On 22 June 2006, the appellant was sentenced in this court to a term of imprisonment of 5 years and 4 months for the offence of unlawful wounding with intent to do grievous bodily harm.  He was released on parole on that sentence on 22 September 2008 and his sentence in respect of that conviction would expire on 10 July 2010.

2. Sadly, the appellant did not remain crime free and committed a series of offences shortly thereafter and so it was that on 16 June 2009 he came to be sentenced for seven offences to which he had pleaded guilty.  Of those seven, three offences were offences of burglary.  He received terms of 6 months' imprisonment on each, cumulative on each other and cumulative on the existing term and he was made eligible for parole.

3. The appellant appeals against that conviction on the single ground that the learned magistrate erred in law by failing to adequately take into account the totality principle and the length of the appellant's prior sentence when making the sentence for the present offences cumulative on that prior sentence.

4. The appellant was represented by counsel and, quite frankly, it was counsel's duty to inform the magistrate in detail and accurately as to what the effect of the sentences would be as to the time to be spent in custody and release dates, having regard to the offender's position which was that he was returned to custody.  Counsel did not do that accurately and, as a result, the magistrate was given incorrect information as to time for release, albeit information that had an effect of some 2 months.

5. In the appeal I am grateful to counsel for the respondent who has received information from the Sentence Information Unit, information that, quite frankly, should have been received and put before the magistrate.  I hasten to add that counsel for the appellant in this Court was not the counsel at the hearing so no blame is attributed to him.  The letter from the Sentence Information Unit reads, in relation to the sentence:

   On 16 January 2009 Mr Barry was returned to custody as a remand prisoner and on 28 January 2009, Mr Barry's parole was suspended for the reasons: 'Fail to comply with conditions', 'Remanded in custody' and 'Serious alleged re-offending'.  Mr Barry is eligible to have his term backdated by 13 days for the period he spent as a remand prisoner from 16 January to 28 January 2009. 

   On 16 June 2009 Mr Barry received a total term of 18 months' imprisonment cumulative.

6. One of the offences for which the appellant was sentenced on 16 June 2009 was committed on 21 November 2008, thus breaching his parole and resulting in his being liable to serve 458 breach days.  The 18 months' imprisonment that the appellant received on 16 June 2009 was ordered to be served cumulatively on his breach of parole days resulting in his sentence maximum being 16 March 2012; that is, 16 June 2012 plus 458 days, plus 18 months.

7. The offender is eligible to be released to parole after serving one‑half of his 18 month term from 16 June 2009.  As a result the offender's earliest eligibility date for parole is 16 March 2010.

8. That latter paragraph is correct but apt to be misleading to a sentencing court because he is eligible for release on the Supreme Court sentence at any time, he being returned to serve out his time, but may be released at any time thereafter.  He is not, of course, eligible for the first 9 months because he is serving a fixed period of imprisonment.  That is really the effect of the Sentence Administration Act.

9. However, it has long been established by authority in this Court, and I refer to the case of McLean v The Queen [1999] WASCA 209, that in calculating issues of totality, a sentencing judicial officer should take into account the possibility that the person may serve their full term.

10. In relation to this aspect, when the magistrate came to sentence he said:

    I am mindful of your age and I am mindful of your plea of guilty and I am mindful that you have got some time to serve but at the same time these offences in totality could well result in a custodial term in terms of years.  In relation to each of the burglaries I take into the plea of guilty and the usual tariff for these sorts of matters, on each of those there will be six months' imprisonment and on each of those they will be cumulative on each other and cumulative on existing term.

    So there's a total of 18 months' imprisonment cumulative on existing term, all to be eligible for parole.

11. It is not clear that the magistrate really appreciated the effect of the sentence, having regard to McLean, the effect being that the maximum possible sentence may be to a period to 16 March 2012 although, as I said, the magistrate did not have the assistance of counsel to the extent to which he was entitled.  Nevertheless, I consider that the ground of appeal has been made out in that I consider that the magistrate's discretion miscarried in a way similar to that in Reid v Quigg [2007] WASC 35 because he was not armed with all the relevant information.

12. That being so I set aside the sentences.  It is necessary to re‑sentence.  It does not necessarily follow that a different sentence would be imposed.  The aggravating features of these offences are that they were committed within a relatively short time after the appellant was released on parole, and that is a seriously aggravating feature, and there were a number of offences including three burglaries.

13. As against that there were pleas of guilty, which the magistrate could and did take into account, and there is the age which, to my mind, is the only significant mitigating factor.  The appellant is still a young man, having been born on 8 July 1986 which would make him nearly 23 when he was sentenced by the magistrate.

14. For that reason alone, I consider that, when one has regard to the total possible sentence that he might serve with a period of 18 months' imprisonment added, that total exceeds a sentence to a degree which must have an effect.  The appellant's counsel argues that an appropriate outcome would be that the sentences be served concurrently.  I would not accede to that submission for the reasons that I have given.

15. These offences were aggravated by the appellant being on parole, they were serious offences and I would want to discourage any feeling of discount for bulk.  There needs to be separate punishment for quite serious depredations of other people's property.  I consider that overall the proper outcome which would not leave a sentence that offended the totality principle, but would provide for further punishment, would be a sentence of 12 months' imprisonment which I will arrive at restructuring the sentences imposed by the magistrate, each of which were appropriate sentences by themselves.

16. I will order that that the sentence of 6 months on PE 10071/09 be served cumulatively on the sentence of 6 months on PE 10069/09, and that the sentence of 6 months on PE 11989/09 be served concurrently, making a total sentence of 12 months' imprisonment.   I will make an order for parole eligibility.

17. Having regard to the issue which the Sentence Information Unit raised, I will backdate the sentence to commence on 3 June, 2009.   The term of 12 months' imprisonment will be cumulative on the sentences already being served by the appellant.