Blackwood v Sustek - [2002] WASCA 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BLACKWOOD -v- SUSTEK & ANOR [2002] WASCA 365

CORAM: EM HEENAN J

HEARD: 14 NOVEMBER 2002

DELIVERED : 14 NOVEMBER 2002

FILE NO/S: SJA 1096 of 2002

BETWEEN: KURT RODNEY BLACKWOOD
Appellant
AND
SIMON ALEXANDER SUSTEK
First Respondent
MICHAEL ANTHONY WILLIS
Second Respondent

Catchwords:

Criminal law - Sentence - Appeal against sentence of imprisonment without eligibility for parole - Long record of prior offences - Offences committed while on parole for earlier offences - No error of principle in sentencing - Appeal dismissed

Legislation:

Sentencing Act, s 89

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr J D Allanson
First Respondent           :     Ms E A Benwell
Second Respondent      :     Ms E A Benwell

Solicitors:

Appellant:     Marcus Woodgush & Associates
First Respondent           :     State Director of Public Prosecutions
Second Respondent      :     State Director of Public Prosecutions

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

Garlett v The Queen (2000) 111 A Crim R 336
Thompson v The Queen (1993) 8 WAR 387

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
Cardillo v Taylor [1999] WASCA 166
Chan v The Queen (1989) 38 A Crim R337
Dobaj v The Queen [2000] WASCA 7
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1997) 95 A Crim R 516
Lowndes v The Queen (1999) ALR 483; (1999) 195 CLR 665
McLean v The Queen [1999] WASCA 209
Nebro v Duxbury [2000] WASCA 171
Neverman v The Queen (1989) 43 A Crim R 347
R v Tait (1979) 46 FLR 386
Riley v The Queen [2000] WASCA 111
Smoker v The Queen [2001] WASCA 388
Veen v The Queen (No 2) (1988) 77 ALR 385; (1988) 164 CLR 465
Wongawol v The Queen (1998) 101 A Crim R 350

EM HEENAN J: This is an appeal by Kurt Rodney Blackwood against sentences imposed upon him by his Worship T J McIntyre SM in the Court of Petty Sessions on 25 June this year following his convictions, on pleas of guilty, of two charges involving the unlawful use, that is stealing, of a motor vehicle and burglary of premises. The offences were committed, respectively, on 5 February and 29 January 2002.
On the charge of unlawful use of a motor vehicle, a Commodore sedan which had been stolen and was worth $45,000, the appellant was sentenced to a term of 6 months' imprisonment. On the charge of burglary, the appellant was sentenced to a term of 18 months' imprisonment cumulative and the learned Magistrate refused to make any order directing that the appellant should be eligible for parole under one or both of those sentences.
Leave to appeal from the sentence was granted by an order of Miller J in this Court on 7 August. There is a single ground of appeal being that the learned Magistrate erred in fact and in law in declining to make an order as to eligibility for parole pursuant to s 89 of the Sentencing Act.
That ground was developed in submissions this morning.
The circumstances of the offence were described by the learned sentencing Magistrate at page 30 of the appeal book in these terms:
"At 12.30 pm on 5 February the defendant was driving the motor vehicle, the Holden Commodore motor car worth $45,000, and was photographed by a speed camera. That vehicle has yet to be located. On 29 January he broke into a house owned by complainants and stole property worth $5700 or thereabouts. None of that property was recovered."
The sentencing of the appellant provided more than the usual difficulty because he was a young man aged 22 years, nearly 23 years at the time of sentence, with a young child. He had an established drug problem and was on parole under other sentences at the time these offences were committed.
His criminal record shows that he had offences dating back to August 1997 in the Children's Court and offences as an adult dating from March 1998 in Courts of Petty Sessions. There are a significant number of prior convictions. For the earlier of these there were fines, intensive supervision orders, community work and a variety of other non‑custodial orders.
By April 1999 he received a sentence of 6 months' imprisonment suspended, for driving without a motor vehicle licence while under suspension. In August 1999 he was convicted of the offences of burglary, breach of a suspended sentence, possessing a prohibited drug and stealing and he received an effective total sentence of 2 years' imprisonment for those offences.
In May 2001 he was convicted of burglary and received a sentence of 3 months' imprisonment concurrent with the sentences for other offences. That was only one of a series of offences which were committed in May 2001 and there was a series of orders made resulting in another term of imprisonment. On 22 May 2001, only three weeks after those sentences, he was convicted of escaping from legal custody and sentenced to a period of 4 months' imprisonment cumulative upon the sentences which he was then serving.
It therefore was the case that the appellant was a person with a significant prior history of offences when he came before the learned Magistrate for sentence on this occasion. It is not surprising therefore that he was sentenced to a period of imprisonment and that in the aggregate the head sentence was for 2 years. No complaint is made in this appeal against either of those sentences or the order making them cumulative. Rather, as already indicated, the appeal is directed to the failure of the learned Magistrate to make an order directing that the appellant should be eligible for parole.
In this respect the appellant relies upon s 89 of the Sentencing Act which requires a Court sentencing an offender to consider whether or not the offender should be made eligible for parole if being sentenced to a period of imprisonment. Subsection 89(2) directs attention to the various matters which might be considered by the sentencing officer in order whether or not to make a parole eligibility order.
It is accepted that the principles relevant to the consideration of whether or not an eligibility for parole order should be made are those which were described by the Full Court in the case of Thompson v The Queen (1992) 8 WAR 387 and set out in the joint judgment of Malcolm CJ and Pidgeon and Owen JJ at pages 395 and 396 of the report. Special reliance is placed by counsel for the appellant on one of the principles which is referred to in subpar (e). In that case the court said:
"In determining whether or not an order for eligibility for parole should be made the sentencing Judge may have regard to all or any of the following:
(1)the nature of the offence;
(2)the circumstances of the commission of the offence;
(3)the antecedents of the offender;
(4)circumstances which are relevant to the offender or which might, in the opinion of the Judge, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made;
(5)any other matter that the Judge thinks relevant."
Counsel for the appellant stressed, as was pointed out in Thompson's case, that in regard to the matter raised as to the circumstances which are relevant to the offender or which might be relevant to him at the time at which he might become eligible for parole, that this required the sentencing Judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other.
In conjunction with that submission counsel for the appellant also pointed out that the discretion to order that an offender should be eligible for parole ought usually be exercised in favour of the prisoner unless there is sufficient reason not to do so, relying upon the judgment of Anderson J in Garlett v The Queen (2000) 111 A Crim R 336, as well as other authorities. This, so counsel declared, has been described as a bias towards eligibility for parole. I accept that submission and agree that that should be the approach to the imposition of a sentence and a consideration of whether or not to make an order that the offender be eligible for parole.
It has been acknowledged on behalf of the appellant that there need to be some factors which would indicate a positive reason to consider eligibility for parole. In this case the submission made is that the youth of the offender is of itself a sufficient reason to render that a necessary and serious issue for consideration. Again I accept that submission.
Counsel for the appellant identified a series of factors relevant to the exercise of the obligation to prognosticate upon the factors which would need to be assessed in the balancing exercise as to whether or not the offender should be released on parole at the time when he might be eligible for parole. In this case the factors which were identified include; first of all, the youth of the offender, as I have already indicated; secondly, the benefits which might be derived for him personally and for the community generally by a regime of supervised parole which would assist him into rehabilitation in the community and perhaps counsel and avoid the repetition of these or other offences; next, the fact that this offender has an established record of dependence on drugs, apparently narcotic drugs, and that a process of parole would be of considerable assistance and benefit in minimising the risk of relapse into unlawful drug‑taking upon release from prison; and further, that the difficulties which the appellant has experienced in the past in adjusting to life in the community, particularly in obtaining access to social security payments or other lawful means of income would be greatly assisted if a regime of parole were to be available.
Those submissions led on to the further submission that those factors had not been addressed either directly or indirectly by the sentencing Magistrate and that therefore there had been a failure to undertake the exercise of prognostication which the principles in Thompson'scase say are pertinent. It is to be noted, however, that both under s 89 and in Thompson'scase itself, it is for the Court to decide whether all or any of the particular factors need to be addressed.
Against that background I turn to the approach taken by the learned Magistrate when coming to sentence this offender. His Worship's reasons are to be found at pages 30 to 32 of the appeal book and I have already read from some passages of them, setting out the background. They also include a description of the appellant's prior criminal record and the seriousness of prior offences. They refer to his past breaches of intensive supervision orders. They note that the commission of these offences renders him subject to the mandatory obligation for imprisonment under what has been termed the three strikes legislation. They also stress the prevalence of offences of burglary and the need for protection of the public, including the protection of individual victims. His Worship then said:
"You have had your counsel make a reference to drug use. Using drugs is your choice, Mr Blackwood, and if as a consequence of you making that choice you get involved in crime, then you simply have to live with the consequences. There have been a number of cases that have dealt with a refusal of parole. It is not a step that is taken lightly. Because it can be said it is in the interests of the community to ensure that on your release you are subject to some form of supervision, but you, Mr Blackwood, have indicated by your own behaviour that you are not prepared to respond to parole. Reference has been made to the fact that you are the father of a young child. Reference has been made to some footballing skills that you might have, but at the end of the day, Mr Blackwood, when you broke into these premises and stole the owner's property you were on parole and you have shown a total disregard not just for your parole conditions but for the law in general and in my view, on a consideration of the whole of the circumstances, it is inappropriate to make you eligible for parole."
That passage indicates that the learned sentencing Magistrate unquestionably gave consideration to whether or not the offender should be made eligible for parole under one or both of these sentences. It also indicates that the approach to sentencing was taken which accepted that usually eligibility for parole would be ordered and that refusal of parole was only a step to be taken in exceptional circumstances. The passage further suggests that the sentencing Magistrate was well aware of the desirability in the public interest that an offender upon release might be subject to some form of supervision. In those circumstances it cannot be said that the learned Magistrate failed to consider a number of the factors which have been identified as relevant in determining whether or not to make a parole eligibility order.
However, getting back to the submissions which were made on behalf of the appellant, it was contended particularly that there had been a failure to undertake the exercise of prognostication about how the balance might lie at the time when the offender might become eligible for parole if such an order were made. Again, I am obliged to reject that submission because the language used by the learned Magistrate suggests to me that the reference to his past behaviour and convictions, and in particular to his breaches of non‑custodial orders previously imposed and the fact that these offences had been committed while on parole, indicated that he was a severe risk for reoffending in the future if released early.
In my view the learned Magistrate was entitled to take that approach on the evidence which was before him and the facts which were admitted. In particular, the fact that these two offences had been committed while on parole suggests that the offender was unlikely to obtain an order for parole eligibility under the sentences. It was accepted in written submissions by the appellant that this was so, although it was pointed out that it was not a rule without exceptions.
It has not been demonstrated to my satisfaction that there has been any failure to exercise the discretion which the learned Magistrate undoubtedly had when it came to deciding whether or not to impose an order making the offender eligible for parole. It is clear from what I have already described that the learned Magistrate did give consideration to whether or not an order for parole should be made and that he did address the factors which have been identified as pertinent to that exercise.
I do not accept the submission that there was a failure to undertake the exercise of prognostication and it seems to me that the learned Magistrate was entitled to reach the conclusion which he did on the materials before him. There being no error shown in the exercise of the discretion, no failure to take into account a relevant consideration, nor any submission that an irrelevant consideration was taken into account, I do not consider that it has been demonstrated that there are any grounds to interfere with the order which was made by the learned Magistrate. For these reasons this appeal will be dismissed.