Bell v Van Maanen
[2005] WASC 108
BELL -v- VAN MAANEN [2005] WASC 108
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 108 | |
| Case No: | SJA:1078/2004 | 26 APRIL 2005 | |
| Coram: | JENKINS J | 1/06/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JASON EDWARD BELL PETER JASON VAN MAANEN |
Catchwords: | Criminal law Appeal against sentence One count of burglary committed whilst on parole for prior offences including aggravated burglary Effect of a sentence of 15 months' imprisonment without parole eligibility concurrent with other sentences Whether the Magistrate intended the sentence to have that effect Relevance of balance of prior sentences that appellant was required to serve due to cancellation of parole order |
Legislation: | Criminal Code (WA), s 401(2)(c) Sentence Administration Act 2003, s 67(1), s 69(1), s 69(5) Sentencing Act 1995 (WA), s 89(1), s 89(4)(d) |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 McLean v The Queen [1999] WASCA 209 State of Western Australia v Anderson [2004] WASCA 157 Garlett v The Queen (2000) 111 A Crim R 336 Harvey v Ingles (2004) 40 MVR 398 Herbert v The Queen [2003] WASCA 61 Kirby v The Queen [2003] WASCA 239 Lowndes v The Queen (1999) 195 CLR 665 Messiha v Royce [2004] WASCA 87 Nevermann v The Queen (1989) 43 A Crim R 347 Woods v Cecchele [2004] WASCA 163 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PETER JASON VAN MAANEN
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR P G MALONE SM
File No : PE 27088 of 2004
Result : Guilty of Burglary - 15 months' Imprisonment Imposed
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - One count of burglary committed whilst on parole for prior offences including aggravated burglary - Effect of a sentence of 15 months' imprisonment without parole eligibility concurrent with other sentences - Whether the Magistrate intended the sentence to have that effect - Relevance of balance of prior sentences that appellant was required to serve due to cancellation of parole order
Legislation:
Criminal Code (WA), s 401(2)(c)
Sentence Administration Act 2003, s 67(1), s 69(1), s 69(5)
Sentencing Act 1995 (WA), s 89(1), s 89(4)(d)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr E J Cade
Respondent : Ms S M De Maio
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
McLean v The Queen [1999] WASCA 209
State of Western Australia v Anderson [2004] WASCA 157
(Page 3)
Case(s) also cited:
Garlett v The Queen (2000) 111 A Crim R 336
Harvey v Ingles (2004) 40 MVR 398
Herbert v The Queen [2003] WASCA 61
Kirby v The Queen [2003] WASCA 239
Lowndes v The Queen (1999) 195 CLR 665
Messiha v Royce [2004] WASCA 87
Nevermann v The Queen (1989) 43 A Crim R 347
Woods v Cecchele [2004] WASCA 163
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1 JENKINS J: The appellant pleaded guilty to one count of burglary before a Magistrate sitting in the then Court of Petty Sessions at Perth on 12 July 2004. On the same date the appellant was convicted and sentenced to 15 months' imprisonment to be served concurrently with any sentence he was then serving or yet to serve. The learned Magistrate declined to order that he be eligible for parole. The appellant appeals against the sentence.
Grounds of Appeal
2 The Court ordered that the appellant have leave to appeal on two grounds. The first was that the Magistrate erred by failing to make the appellant eligible for parole. This ground of appeal was abandoned at the hearing of the appeal.
3 The second ground of appeal, which is the only one which requires my determination, is as follows:
"… the [appellant] seeks a review of the sentence of 15 months imprisonment pursuant to S186(1)(b) of the Justices Act on the basis that the learned Magistrate intended to add 3 months to the sentence but the effect of the sentence of 15 months concurrent with no parole was to add approximately 9 months imprisonment before the [appellant] became eligible for release."
Details of the Charge and the Proceedings
4 The complaint, numbered 27088 of 2004 alleged that the appellant between 8 and 13 April 2004 at East Victoria Park "without consent was in the place of the Department of Community Development trading as the East Victoria Park Family and Community Centre and committed the offence of stealing" contrary to the Criminal Code, s 401(2)(c).
5 After the appellant's plea of guilty and election of summary jurisdiction the prosecutor recited the facts. These were that between 1.00 pm on 8 April and 9.15 am on 13 April 2004 the appellant went to the East Victoria Park Family and Community Centre and gained entry to the Centre in an unknown manner. Once inside he went to an office which was locked and secured. He smashed the office window in order to gain entry to it. Once inside he opened the cashbox and stole $200 in cash. He then left. His fingerprints were located on the exterior of the office window. When interviewed by the police he declined to answer any questions in relation to the offence.
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6 The Magistrate was provided with a copy of the appellant's prior criminal record. The respondent has provided the court with a copy of the appellant's record. I assume that it contains the same information as the one presented to the Magistrate.
7 The record discloses that the appellant is 34 years of age and since turning 18 he has been convicted of over 100 offences in Western Australia. These include convictions for minor traffic offences and many convictions for offences involving violence and dishonesty. In particular, between 1990 and April 2004 the appellant was convicted of 17 burglary, aggravated burglary or comparable offences.
8 In November 2000 the appellant was convicted of a number of offences for which he received a total of 7 years and 6 months imprisonment. The total term included 6 years' imprisonment for aggravated burglary and 18 months' imprisonment, cumulative, for deprivation of liberty. In May 2004 the appellant was sentenced to a total of 5 months' imprisonment for breach of bail and giving false personal details to the police. On 1 June 2004 he was sentenced to a total of 15 months' imprisonment for a number of offences including two offences of aggravated burglary and two offences of burglary simpliciter.
9 The appellant's counsel presented a plea in mitigation. After reviewing the sentences imposed in June 2004, the appellant's counsel advised the Magistrate that the appellant had been made eligible for parole in respect to the 15 month sentence imposed in June and that he did not believe there was any backdating of that sentence. Consequently his counsel advised the Magistrate that the appellant's earliest release date was January 2005. This information has been confirmed by the respondent. An annexure to the affidavit of Sandra Marie De Maio sworn 20 April 2005, being a facsimile from the Department of Justice Sentence Information Unit, advises that the appellant, prior to the imposition of the sentence under appeal, was eligible for release on parole on 14 January 2005. His earliest date for release, if he is not granted parole, is 20 January 2009. The reason for this later date will become clear.
10 The appellant's counsel submitted that the appellant had a limited recollection of this offence but surmised that it may have been out of simple need. The Magistrate was told that the appellant had had a difficulty with drugs over "some period of time" and this offence may have been committed because of that and out of a desire for food. Further submissions were made in respect to the appellant's disadvantaged background.
(Page 6)
11 The Magistrate was advised that two of the appellant's convictions on 1 June 2004 took place in 2003, one took place in 2000 and the other took place on 21 February 2004. The appellant's counsel submitted that totality was a valid consideration. The Magistrate interrupted him to say that 15 months' imprisonment for four burglaries indicated to him that totality had been recognised. His Worship said that this offence was an entirely separate burglary and if he added "for example" 3 months onto the 15 months the total of 18 months became "quite a standard sentence for one burglary but it would be making it five burglaries that would end up with a sentence of 18 months". The inference from this comment appears to be that he thought that would be a lenient sentence. His Worship went on to say:
"… my view might change if [the appellant] owes a whole lot of time for the previous offences that he was one, (sic) he seems to have got 7½ years in November 2000."
12 The appellant's counsel concluded his sentencing submissions by saying that if the Magistrate was of the view that an additional sentence was warranted, the appellant may still be made eligible for parole "just in the sense of making some concession to the totality principle".
13 Before the prosecutor commenced his submissions his Worship indicated that he was thinking of adding three months and that this would not offend the totality principle. The prosecutor then submitted that such a sentence would give a message to offenders that offences committed whilst on bail or on parole did not accrue an additional penalty. The prosecutor made further submissions about the strong concern in the community in respect to burglary offences. I assume he was talking about the prevalence thereof.
14 The Magistrate said that ordinarily he would have given a sentence of something like 15 months for this type of burglary particularly as the appellant's prior criminal record offered nothing in mitigation. However, he considered that the court had already set a pattern by giving 15 months for four burglaries and therefore sentencing the appellant to 15 months imprisonment for one burglary involving the theft of $200 "effectively doubling the sentence" may not seem to be appropriate. The Magistrate remarked that he would not have thought that 3 months could be regarded as being unreasonable. In infer that at this stage the Magistrate was still minded to sentence the appellant to 3 months cumulative on the sentences imposed on 1 June 2004.
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15 The appellant then sought to speak to the Magistrate and his Worship allowed him to do so. The appellant advised the Magistrate that although he was to go up for parole in January he was also doing an extra 4 years for breach of parole. This is consistent with the information provided to me by the respondent because the parole the appellant was granted in respect to the sentence he received in November 2004 has been cancelled due to re-offending and he is, therefore, serving the balance of the 7 and a half year term.
16 It seems that as a result of receiving this information the Magistrate changed his mind about the appropriate sentence. He advised the appellant's counsel that he was looking at imposing a sentence of 15 months' imprisonment concurrent. He said "that wouldn't add to the sentence because there's the 4 years anyway, isn't there?"
17 His Worship then sentenced the appellant to 15 months' imprisonment concurrent with his existing sentences.
18 Next, the prosecutor raised the issue of parole eligibility. The appellant's counsel submitted that if he was not made eligible for parole that "would necessarily take [the appellant] past that particular day before he could be considered for parole again". I am sure the Magistrate would have understood that submission as being to the effect that if the learned Magistrate did not make the appellant eligible for parole the 15 month sentence would require him to stay in prison past his then parole eligibility date of 14 January 2005.
19 The learned Magistrate then declined to grant eligibility for parole "even if that involves an extension of [the appellant's] time". He gave short reasons for that decision and the matter then concluded.
Discussion
20 In my opinion the ground of appeal places an unwarranted gloss on the learned Magistrate's comments and reasons. It is true that initially the learned Magistrate indicated that an additional 3 month sentence would not offend the totality principle. However, when it was made clear to the Magistrate that after the appellant had served the non-parole period of the 15 month sentence imposed on 1 June 2004 he would continue to serve the balance, being approximately 4 years, of the parole term of 7 and a half years he received in 2000 the Magistrate decided that a sentence of 15 months concurrent would be appropriate. He expressed the opinion that this would not add to "the sentence" because there was the 4 years in any event.
(Page 8)
21 The appellant says that this is not correct because it lengthened the period the appellant would have to spend in custody before becoming eligible for parole. The view that the respondent prefers is that the Magistrate was correct. The sentence of 15 months' imprisonment does not add to the total length of the sentence that the appellant was then liable to serve because the total sentence includes the balance of the 2000 parole term.
22 After careful consideration of this matter I agree with the interpretation of the respondent. The Magistrate referred to "sentence" not the time in custody. It makes sense that having just been told that the appellant was required to serve the balance of the November 2000 sentence that the sentence to which the Magistrate referred was the total term that the appellant was then eligible to serve due to the cancellation of his parole. Another reason why this must be so is that logically a 15 month sentence, even with parole eligibility would extend the period which the appellant was required to spend in custody because of the six week time difference between the imposition of the 15 months' sentence on 1 June 2004 and the imposition of this sentence on 12 July 2004. I do not believe that I should adopt a meaning of the Magistrate's words which would mean that the Magistrate made an error when another meaning is more logical and does not involve error.
23 Thus, the learned Magistrate did not intend to add three months to the date on which the appellant would become eligible for parole. Rather, he intended to impose a sentence of 15 months concurrent which did not extend the total term that the appellant was liable to serve. The view the Magistrate expressed about the appropriateness of a cumulative sentence of 3 months' imprisonment was a tentative view expressed prior to his appreciation of the full circumstances relevant to sentencing.
24 The Magistrate then considered parole eligibility and, as is now conceded by the respondent, acting appropriately he exercised his discretion to decline to make a parole eligibility order. He acknowledged that the effect of this may be to require the appellant to serve extra time in custody.
25 The parties agree that the appellant will not be eligible for parole until 11 October 2005. The learned Magistrate was right to say that his decision not to grant parole eligibility "may" result in the appellant serving further time in custody. This is because prior to the imposition of this sentence the appellant would have become eligible for parole in
(Page 9)
- January 2005. However, there was no guarantee that he would be granted parole at this time.
26 I conclude that the Magistrate's sentence put into effect his intentions as expressed to the parties during the sentencing submissions. Therefore the appeal should be dismissed.
27 An issue arose during the course of the appeal as to the whether the sentence offends the totality principle, in any event.
28 In accordance with the Sentencing Act 1995 (WA), s 89(1), after sentencing the appellant to a fixed term of imprisonment the learned Magistrate considered whether he should make a parole eligibility order. He decided not to. There is no appeal from that decision. It was impermissible for the Magistrate to reduce the fixed term because he decided not to make a parole eligibility order: State of Western Australia v Anderson [2004] WASCA 157 at [22].
29 When a judicial officer is applying the totality principle in determining what overall sentence should be imposed on an offender no regard should be had to the possibility that the offender might be released on parole: Jarvis v The Queen (1993) 20 WAR 201. The Magistrate was also obliged to take the appellant's liability to serve the whole of the balance of the fixed term imposed on 6 November 2000 into account when considering the totality principle: McLean v The Queen [1999] WASCA 209. This is the case even though the parole board will have a discretion to re-release the appellant on parole in respect to that sentence. It appears to me that the Magistrate complied with these principles in that he took into account that the appellant was serving or was yet to serve terms of imprisonment that would not expire until 2009 (he was told that the appellant's sentences would not expire until 2010 but the difference is not relevant). For that reason the Magistrate ordered that the term he imposed be served concurrently with the appellant's other sentences.
30 What the appellant alleges is that the learned Magistrate did not take the possibility of the appellant's release on parole in January 2005 under the previous sentences into account when he decided to order not to make a parole eligibility order. It is said that he offended the totality principle in this way. This I do not accept to be true. First, it is wrong to speak of totality being a matter relevant to the decision whether or not to make an offender eligible for parole. The totality principle is that principle that requires a judicial officer to have a last look at the total length of the sentence or sentences imposed on an offender so as to ensure that it is not
(Page 10)
- disproportionate to the offender's criminality viewed as a whole and is not inappropriately crushing on the offender. It is not a principle applicable to the decision whether or not to grant parole. Neither, when it is applied as the last step in the sentencing process should parole eligibility be taken into account because, as I have said, the judicial officer should assume for the purpose of totality that the offender will be obliged to serve the whole of his term or terms.
31 This is not to say that the possibility of release on parole is irrelevant in the sentencing process. The judicial officer may take possible release dates on parole into account when deciding whether or not to grant a parole eligibility order, pursuant to Sentencing Act, s 89(4)(d).
32 Secondly, the Magistrate decided not to make the parole eligibility order fully aware that it may extend the period of time that the appellant was in custody. He nonetheless declined to make the order. I infer from this that he considered that he could not justify making an order for parole eligibility having regard to all of the factors referred to in the Sentencing Act 1995, s 89(4). I agree.
33 The only difference between the appellant's position prior to the imposition of this sentence and after it was the date on which he would become eligible for parole. That had been 14 January 2005 but is now 11 October 2005. The appellant's total sentence was not increased. I do not regard the certainty that the appellant will now have to serve a further 9 months' imprisonment as opposed to the previous possibility that this would occur as warranting the making of a parole eligibility order. The appellant is a mature, serious and repeat offender. I cannot comment on the sentence he received on 6 November 2000 as I do not know the facts of the relevant offences. However, in respect to the total effect of the sentences imposed on 1 June 2004 and 12 July 2004 it cannot be said that a requirement to serve 16 and a half months in custody (achieved by aggregating the sentences imposed on those two dates) for two counts of home burglary, two counts of burglary and four other less serious offences justified the exercise of the Magistrate's discretion to make the appellant eligible for parole given the criteria in the Sentencing Act, s 89(4) and the appellant's antecedents.
34 Thirdly, the appellant has abandoned the ground of appeal against the decision to decline to make him eligible for parole.
Conclusion
35 For the above reasons the appeal is dismissed.
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