Bastian v The Queen
[2000] WASCA 310
•25 OCTOBER 2000
BASTIAN -v- THE QUEEN [2000] WASCA 310
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 310 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:105/2000 | 11 OCTOBER 2000 | |
| Coram: | KENNEDY J IPP J MURRAY J | 25/10/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| PDF Version |
| Parties: | JOHN FRANCIS BASTIAN THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Eligibility for parole Offender with poor prior parole history and long record Prognostication into the future Turns on own facts |
Legislation: | Sentence Administration Act 1995 (WA), s 8 Sentencing Act 1995 (WA), s 89 |
Case References: | Thompson v R (1992) 8 WAR 287 Edwards v The Queen [2000] WASCA 211 Lowndes v The Queen (1999) 195 CLR 665 Urquhart v The Queen [2000] WASCA 265 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BASTIAN -v- THE QUEEN [2000] WASCA 310 CORAM : KENNEDY J
- IPP J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Eligibility for parole - Offender with poor prior parole history and long record - Prognostication into the future - Turns on own facts
Legislation:
Sentence Administration Act1995 (WA), s 8
Sentencing Act 1995 (WA), s 89
Result:
Application for leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Mr M Mischin
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Thompson v R (1992) 8 WAR 287
Case(s) also cited:
Edwards v The Queen [2000] WASCA 211
Lowndes v The Queen (1999) 195 CLR 665
Urquhart v The Queen [2000] WASCA 265
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I agree entirely with those reasons and have nothing to add. I would therefore refuse leave to appeal.
2 IPP J: I have read the reasons to be published by Murray J. I am in agreement with those reasons and have nothing further to add.
3 MURRAY J: This is an application for leave to appeal against sentences imposed upon the applicant by Pidgeon J on 28 April 2000 for two offences of armed robbery in company and two associated offences of stealing a motor vehicle committed on 18 and 19 January 2000 respectively.
4 The sentences imposed by his Honour were ordered to be served cumulatively upon the unexpired balance of a previously imposed term of imprisonment. That was a term of 4 years and 9 months imprisonment imposed in this Court on 6 February 1998 for an offence of armed robbery in company. The sentence was to date from 17 November 1997. On that occasion, eligibility for parole was ordered, but the eligibility date would have been extended because, on 21 May 1999 in the District Court, the applicant received a sentence of 4 months imprisonment cumulative for an offence of escaping from custody. The applicant was released on parole on 4 November 1999. The parole period was to expire on 4 June 2001; ie, after serving a period of 19 months on parole. It will be apparent from the above that the first of the group of offences of which the applicant was convicted before Pidgeon J was committed about 10 weeks after the applicant had been released on parole.
5 The sentences imposed on the applicant were reduced by his Honour to provide an appropriate credit for early pleas of guilty before a Court of Petty Sessions. The sentences imposed for the armed robberies were 6 years imprisonment for each of the offences, the second such sentence to be served partly cumulatively after service of 2 years of the first term. In the result, therefore, for these two offences an aggregate term of 8 years imprisonment was imposed. His Honour imposed sentences of 6 months imprisonment for the two offences of stealing motor vehicles, ordered one such sentence to be served cumulatively and ordered the second to be served concurrently. The aggregate term imposed was, therefore, 8 years and 6 months imprisonment. The application for leave to appeal against sentence now before the Court presents no challenge to those sentences or the way in which they were structured.
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6 Pidgeon J declined to order eligibility for parole. His Honour remarked that the applicant was 30 years of age when he committed the offences before the Court. His Honour noted that the applicant only survived a short period on parole before he committed the offences presently before the Court. He noted that the applicant proffered as an excuse for the commission of these offences that he was under a threat to pay a drug debt. This excuse, his Honour rightly said, provided no mitigation.
7 Pidgeon J referred to a pre-sentence report which was before the Court. He said it indicated that the applicant was not reporting properly in respect of drug counselling. Having regard to the early breach of parole involved in the commission of the offences before the Court and the applicant's performance on the parole order which was operative at that time and on earlier orders for supervision, his Honour expressed the view that there was nothing to justify the making of a further parole eligibility order.
8 Pidgeon J contrasted the case of the applicant with that of a co-offender, one Bonwick, who was also before the Court to be sentenced for his part in the offences described above. Having considered the relevant circumstances, his Honour said that, in the case of that offender, he was persuaded that there were sufficient positive factors to warrant the grant of parole eligibility.
9 The applicant seeks leave to appeal against the sentences imposed upon him only to the extent of seeking an order of eligibility for parole. He argues that in declining to make such an order Pidgeon J erred in failing to have regard to the circumstances which might relate to the applicant at the time when, if a parole eligibility order were made, the applicant would become eligible for release on parole. In addition, reference is made to the alleged failure of Pidgeon J to have regard to various matters personal to the applicant which bore upon the question of eligibility for parole and to the contents of the pre-sentence report. The ground of appeal also puts the proposition that there was little to distinguish the applicant from Bonwick and, therefore, that if it was considered that Bonwick was properly to be made eligible for parole, the same conclusion ought to have followed in the case of the applicant. This argument was rightly, in my opinion, not pursued at the hearing of the application.
(Page 5)
10 Put shortly, and without, I hope, doing it injustice, the applicant's argument is that, whilst there may not be much to be said in favour of the grant of eligibility for parole if regard is had merely to the applicant's present situation, there are sufficient indications in the applicant's recent personal history that his determination to overcome problems of substance abuse, a substantial trigger producing his offending behaviour, was increasing and he was acting more effectively to overcome this problem. In addition, it is put that there are indications of improvement when the opportunity for parole is available. Therefore, it is submitted, if one projects that situation into the future to the point where, if parole eligibility was granted, it would become available, there is warrant for the view that the applicant would be able to take advantage of the opportunity to serve a portion of his sentences while conditionally at large on parole.
11 The effect of the Sentencing Act, s 94(1) and (2), is that if parole eligibility had been ordered in respect of the terms imposed by Pidgeon J, they would have been aggregated, not entirely, but to the extent of the accumulation of the terms ordered by his Honour. Under s 85(1), the expression "parole term" used in s 94 means a term to which a parole eligibility order applies. By s 89(3), a parole eligibility order is not to be made in respect of a term of less than 12 months "except where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously." In that context, "previously" means prior to the imposition of the second sentence, including on the same occasion. By s 89(5), if the Court decides upon parole eligibility in respect of two or more of the terms of imprisonment imposed, it is to make a single parole eligibility order in respect of those terms.
12 Pidgeon J might, therefore, having regard to those provisions, have made a single parole eligibility order in respect of all of the terms imposed and, to the extent that they were accumulated, they would be regarded as one term. In that event, under s 93(1)(b), the earliest date of eligibility for parole would be after service of 2 years less than two-thirds of the aggregate term.
13 The order of service of the terms of imprisonment imposed by Pidgeon J on 28 April 2000 and that imposed on 6 February 1998, to the extent that it remained unserved, is provided in the Sentence Administration Act1995 (WA), s 8, the effect of which would be that, as from 28 April 2000, the applicant would commence to serve the non-parole period of the aggregate parole term if an order had been made in respect of the sentences then imposed. Then, unless and until released on parole, the balance of the parole terms would be served. While the
(Page 6)
- balance of the term imposed on 6 February 1998 would, by virtue of the Sentence Administration Act, s 8(2), be suspended to permit the non-parole period to be served first, it would be reactivated upon the expiry of that period because the sentences imposed on 28 April 2000 were imposed cumulatively upon the unexpired portion the of previous sentence. For that reason, unless and until again released on parole, if that earlier sentence was then entirely served to the two-thirds date, then, again unless and until released on parole, the applicant would commence to serve out the balance of the aggregate term imposed on 28 April 2000.
14 As has been seen, the parole period when the applicant was released on parole in respect of the sentence of 6 February 1998 was a period of 19 months. That was the maximum period available in respect of that sentence of 4 years 9 months. The offences for which the applicant was dealt with by Pidgeon J, having been committed on 18 and 19 January 2000, when the applicant was arrested and remanded in custody on 28 January 2000 his parole order was suspended and ultimately cancelled by force of the convictions which were in fact sustained on 3 April 2000. So, as from 28 January 2000, the applicant resumed service of the sentence imposed on 6 February 1998 and that continued to be his situation until he was sentenced on 28 April 2000, three months later. That being the case, as I understand the position, there remains a period of 16 months of eligibility for parole related to the earlier sentence.
15 As to the aggregate term imposed on 28 April, had a parole eligibility order been made, the non-parole period would have been a period of 3 years and 8 months and the maximum parole period would have been a period of 2 years. The period of 3 years and 8 months would expire on 28 December 2003 and so it would be to the end of 2003 that the prognostication envisaged by the Sentencing Act, s 89(2)(d) would take his Honour's deliberations in respect of eligibility for parole.
16 As to the question whether Pidgeon J erred by not ordering eligibility for parole, the following factors would appear to be relevant. In each case, the motor vehicles were stolen in order to provide the applicant and the co-offender with transport to and from the places where the robberies were to be committed. They were offences which were, in themselves, of a serious kind. As Pidgeon J put it, "the public are becoming sick and tired of having their motor vehicles stolen, particularly from shopping areas, and having them stolen for the purposes of armed robbery." The applicant and his co-offender disguised themselves with balaclavas and gloves. In the case of each robbery, they were armed with a sawn-off shotgun.
(Page 7)
17 The first offence was committed upon a video store and the victim was a lone female attendant. In the second video store, an attendant and customers were present. In each case, the victims were threatened with the weapon. When the applicant and co-offender were apprehended after the commission of the second offence, the weapon was found to be loaded with live ammunition. At the very least, that circumstance aggravated the seriousness of the offences by reason of the risk attendant upon the accidental discharge of the weapon. The offences were committed whilst on parole and in breach of the parole order, after that had been operative for only a short time. As his Honour put it, the only available mitigation was the applicant's early pleas of guilty.
18 The applicant had a very long criminal history, dating back to February 1982 when he was 12. He had offended steadily since then, committing numerous offences of dishonesty, motor vehicle offences, offences of violence, escaping legal custody and, finally, a previous offence of armed robbery. He had breached bail, breached probation, breached recognisances and generally revealed an incapacity to take advantage of any leniency extended to him by the courts.
19 The pre-sentence report before the Court showed that the applicant recognised, as was evidently the case, "that substance abuse was a significant factor in his prior offending behaviour" which, the writer of the report noted, had become more serious in its nature over the past few years. The report provided detail to support the general observation that the applicant had been the subject of several previous periods of community based supervision, in respect of which his performance had been poor. Efforts to amend his behaviour while on supervised release in the community seem to have been entirely unsuccessful until he successfully completed a 6-month parole period between September 1996 and March 1997. He had, of course, spent many years in detention centres as a child and in prison as an adult.
20 As to the parole order breached by the latest offences, it was reported to the Court that the applicant had "generally reported as directed", although it appears that he had some difficulty with the drug and alcohol counselling which was ordered. This was stopped after he attended two appointments with the counsellor, but thereafter he was to attend urinalysis three times a week. His attendance was described as erratic and he would sometimes attend on days which had not been arranged. But, on the occasions when he did attend, he returned clean results for opiates and amphetamines. However, as has been seen, these robberies and thefts of motor vehicles were committed because the applicant had incurred a debt
(Page 8)
- for heroin, said to be in the sum of $2,500, the drug having been obtained on credit.
21 The author of the pre-sentence report concluded that the applicant presented a very high risk of reoffending, as indicated by his past behaviour and his "very poor response to supervision". The reporter concluded:
"In the event that Bastian receives a custodial sentence he would be able to access prison-based programmes to address his substance abuse issues and violent offending. Should he successfully address his offending behaviour whilst in prison Bastian is considered a marginal candidate for parole supervision."
22 I have discussed above the various matters to which the Court may have regard as they are set out in the Sentencing Act, s 89(2), so far as they arise in this case. They were dealt with in a summarised way by Pidgeon J in his remarks upon sentence. The judgment his Honour had to make was of a discretionary character and, whilst it is accepted that the Court will lean towards making an order, there must be something in the materials before the Court which may trigger or point positively to the appropriateness of a parole eligibility order: Thompson v R (1992) 8 WAR 287, 395 - 6. Pidgeon J found nothing, or insufficient indicators, to warrant parole eligibility. In my respectful opinion it cannot be said that his Honour erred and that he was bound to exercise his discretion so as to order parole eligibility.
23 It is often said that, absent something particular to indicate a change in attitude and in the capacity of the offender to lead a law-abiding way of life, the past is a good predictor of future behaviour. Such behaviour would seem to be well-entrenched in the case of this offender. Nor was there anything to demonstrate a change of heart or newfound determination to amend his ways. Indeed, he told the Community Corrections Officer who was to report upon him to the court that, having lapsed into the use of heroin and having no financial capacity to pay, he knew of no other way to obtain the money he owed the dealer except by the commission of armed robberies. Repeated previous efforts to provide the applicant with the assistance of supervision in the community had come to naught and there was nothing to indicate that by the end of 2003 the applicant would have any greater capacity to keep away from illicit substances and to resist the temptation to offend. There is nothing to
(Page 9)
- indicate that in the three-year period involved the applicant would acquire any newfound capacity to benefit from early release under supervision.
24 If, however, the applicant can demonstrate, between now and the completion of his service of the term imposed upon him by Pidgeon J, that he has acquired the maturity and strength of character to take advantage of a period on parole, such an avenue of release for the period of 16 months remains available under the parole eligibility order previously made. However that may be, in respect of the sentences imposed by Pidgeon J, I am unable to conclude that his Honour fell into error in the exercise of his discretion by declining to make a parole eligibility order. For that reason I would dismiss the application for leave to appeal.
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