Bowe v The State of Western Australia
[2011] WASCA 225
•20 OCTOBER 2011
BOWE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 225 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:78/2011 | 15 SEPTEMBER 2011 | |
| Coram: | McLURE P MAZZA J | 20/10/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal against sentence refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | COLIN CRAIG BOWE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Sentence governed by sentencing legislation as it stood prior to commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) Effect of parole upon remission Totality Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Criminal Code (WA), s 130(3) Sentence Administration Act 1995 (WA), s 22, s 74 Sentence Administration Act 2003 (WA) Sentencing Act 1995 (WA), s 93, s 95, s 95(1), s 95(2) Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2(1), sch 1 cl 5(2)(a) |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218 Worthington v The State of Western Australia [2005] WASCA 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOWE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 225 CORAM : McLURE P
- MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BLAXELL DCJ
File No : IND 1669 of 2000
Catchwords:
Criminal law - Appeal against sentence - Sentence governed by sentencing legislation as it stood prior to commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Effect of parole upon remission - Totality - Turns on own facts
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Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 130(3)
Sentence Administration Act 1995 (WA), s 22, s 74
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), s 93, s 95, s 95(1), s 95(2)
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2(1), sch 1 cl 5(2)(a)
Result:
Extension of time to appeal against sentence refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218
Worthington v The State of Western Australia [2005] WASCA 72
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1 McLURE P: The appellant seeks an extension of time and leave to appeal against a sentence of 18 months' imprisonment imposed on him by Blaxell DCJ on 27 February 2002. The appellant was made eligible for parole.
2 The sentence was for the offence of attempting to obtain a benefit upon an agreement or understanding to give false testimony in a judicial proceeding contrary to s 130(3) of the Criminal Code (WA). At the time of sentencing, the appellant was serving a total sentence of 10 years' imprisonment which was imposed on 18 November 1999 for multiple offences of robbery. The total sentence of 10 years' imprisonment was backdated to commence on 19 August 1999.
3 Having regard to totality considerations, Blaxell DCJ reduced the otherwise appropriate sentence of 2 years and 6 months to 18 months and ordered that it be served cumulatively on the existing sentences.
4 The appellant filed his notice of appeal on 12 May 2011, more than nine years outside the time limit for commencing an appeal. An extension of time is required. An appellant seeking an extension of time must provide a satisfactory explanation for the delay. Having regard to the gross delay in this case, the appellant will not get an extension of time unless he establishes that there has been a miscarriage of justice. There can be no miscarriage of justice unless the appellant establishes that the sentencing judge made a material error in the exercise of the sentencing discretion and that a different sentence should have been imposed. The reason for the gross delay in this case stems from events as they have played out some years after the sentence was imposed. Further background is required.
5 The facts of the offending are as follows. On 28 May 1999 the appellant was travelling in a vehicle south of Broome which collided with another vehicle driven by Robert Hughes. Mr Hughes was subsequently charged with dangerous driving causing grievous bodily harm and dangerous driving causing bodily harm to other occupants of the vehicle in which the appellant was travelling. The appellant gave a statement to police in which he stated that he had seen Mr Hughes' vehicle cross to the wrong side of the road prior to the collision. Whilst in prison for the robberies to which I have referred, the appellant effectively offered to give evidence at Mr Hughes' trial that he could not remember what happened in the accident in return for a payment of $50,000.
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6 The appellant was aged 39 at the time of the sentencing. He had a very significant record of prior convictions which was closely associated with a drug habit. When referring to the sentence of 10 years' imprisonment the appellant was then serving, the sentencing judge said:
I am told that your earliest date for release on parole is 18 April 2004 and if you were not to receive parole then the earliest date for release would be in April 2006 (ts 262).
7 The sentencing judge then went on to refer to the cause of the appellant's offending and explained the nature and rationale for the seriousness of the offence for which he was being sentenced. He said it was inevitable that the appellant receive a term of immediate imprisonment and that it be cumulative on the sentences the appellant was then serving. He continued:
Having regard to all of the circumstances I have outlined, I consider that ordinarily you could have expected a sentence of approximately 2 and a half years' imprisonment but I have regard to the totality of your situation and the fact that you are now serving a sentence, in respect of which you may [have] to serve time until April 2006 and having regard to your total situation I am going to impose a sentence of 18 months' imprisonment. I direct that that should be cumulative on your existing sentences and I also rule that you are eligible for parole … (ts 262).
8 On 9 June 2005 the appellant was released on parole in respect of both the total term of 10 years' imprisonment and the term of 18 months' imprisonment imposed by Blaxell DCJ. On 18 July 2005 the appellant's parole order was suspended. That suspension was lifted and he was released from custody on 31 October 2005. On 3 March 2006 the appellant's parole order was again suspended. That parole suspension was lifted and he was released from custody on 11 December 2006. On 29 January 2007, the appellant's parole order was suspended once again. On 14 March 2007 the appellant's parole order was cancelled. On 13 June 2007 the appellant received a further total sentence of 12 months' imprisonment with parole eligibility which sentence was ordered to be served cumulatively upon the sentences he was then serving.
9 On 18 February 2008 the appellant was again released on parole. The appellant's parole order was suspended and he was returned to custody on 6 November 2008. On 23 October 2009 the appellant was sentenced to 26 months' imprisonment to be served concurrently with his existing sentences and parole eligibility was granted. The appellant was also sentenced on 26 October 2009 to a further 3 months' imprisonment to
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- be served concurrently. No details have been provided of the convictions which resulted in the additional sentences imposed from June 2007.
10 At the time the appellant was sentenced by Blaxell DCJ in February 2002 the statutory framework governing parole and remission was the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA) (the 1995 Acts). The appellant's earliest date for release on parole was 19 April 2004. If the appellant had not been released on parole before having served two-thirds of the 10-year term, he was eligible to have his sentence discharged when he had served two-thirds of the term (that is, in April 2006): s 95(2) of the 1995 Sentencing Act. The maximum release date of the 10-year sentence was 18 August 2009.
11 Very substantial amendments to the sentencing system were made by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the 2003 Amendment and Repeal Act). The Sentencing Act 1995 was amended and the Sentencing Administration Act 1995 repealed and replaced by the Sentence Administration Act 2003 (WA). A significant aspect of the amendments was the abolition of one-third remission and in place thereof an obligation was placed on sentencing judges to impose a fixed term that was two-thirds of the fixed term they would have imposed had the 1995 Acts been in operation at the time of sentencing (sch 1 cl 2(1) of the 2003 Amendment and Repeal Act). Clause 2(1) of sch 1 of the 2003 Amendment and Repeal Act was repealed by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA). It is unnecessary to refer to the 2008 amendments.
12 Section 95 of the 1995 Sentencing Act was considered by the Full Court in King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218. The question in issue in that case was whether the offender was entitled to one-third remission under the 1995 Acts if the offender was granted parole prior to having served two-thirds of the fixed term but parole was cancelled after the commencement of the 2003 Amendment and Repeal Act. The court held that the effect of cl 5(2)(a) of sch 1 of the 2003 Amendment and Repeal Actwas that the 1995 Acts continued to apply to a person (like the appellant) who was sentenced to a parole term under the 1995 Acts. The court also held that s 95(2) of the 1995 Sentencing Act did not apply to a person released on parole before the expiration of two-thirds of the fixed term, even if parole was subsequently cancelled.
13 Thus, the statutory scheme under the 1995 Acts is as follows. First, a prisoner serving a fixed term that is neither a prescribed term nor a parole
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- term is to be discharged from that sentence when he or she has served two-thirds of the term (s 95(1)). Secondly, if a prisoner serving a parole term has not been released on parole before he or she has served two-thirds of the term, then the prisoner is discharged from that sentence when he or she has served two-thirds of the term (s 95(2)). Thirdly, a person released on parole before serving two-thirds of the term, even if the parole is subsequently cancelled, is not entitled to be discharged from the sentence after serving two-thirds of the term. However, if the person released on parole complies with the parole order, including any subsequent parole order, the person will be deemed to be discharged from the sentence at the end of the parole period which cannot exceed two years: 1995 Sentence Administration Act, s 22, s 74; 1995 Sentencing Act, s 93.
14 If the appellant had been sentenced for the robberies after the commencement of the 2003 Amendment and Repeal Act, he would have been sentenced to a total term of 6 years and 8 months' imprisonment. However, if the appellant had successfully completed his parole when first released in June 2005, his sentence would be deemed to be discharged at the expiration of that parole period, which would have coincided with commencement of the period of remission, or following the successful completion of any other subsequent parole term.
15 The length of the appellant's incarceration has been dictated by the statutory framework governing these matters, not the sentence of 18 months' imprisonment imposed by Blaxell DCJ. The gravamen of the appellant's complaint is that the 1995 sentencing regime produced an outcome that was, in the circumstances as they played out, less advantageous than the 2003 sentencing regime. However, much of the disadvantage is attributable to the appellant's continued failure to successfully complete his multiple opportunities for parole. It is also of significance that the judicial officers who sentenced the appellant for offences committed whilst he was on parole would have taken into account the fact that the sentence imposed by Blaxell DCJ in 2002 was cumulative. These matters provide strong discretionary grounds for refusing an extension of time.
16 I turn now to the appellant's ground of appeal which is that Blaxell DCJ erred when applying the totality principle. In particular, it is said the sentencing judge took into account an irrelevant consideration, namely the appellant's earliest release date, with and without parole, and failed to take into account a relevant consideration, namely that the
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- appellant may have been required to serve the total term of 10 years in custody.
17 It is certainly the case that in determining the appropriate length of a sentence of imprisonment under the 1995 Acts, matters relating to parole and remission in respect of that sentence were not to be taken into account: Worthington v The State of Western Australia [2005] WASCA 72; Jarvis v The Queen (1993) 20 WAR 201. The rationale for this position is equally applicable if, at the time of sentencing, the offender was a serving prisoner who was not yet eligible for parole for other sentences then being served. I will assume that the proper course in this case was to have regard to the total sentence actually imposed (10 years) rather than to the time the appellant may spend in custody in respect of that sentence. In any event, the sentencing judge did not have regard to the fact that remission may be lost as a result of cancellation of parole and that the appellant may have to serve the full term of 10 years for the robberies. However, I am not persuaded that the error was material.
18 This court cannot uphold an appeal unless it is of the opinion that a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). I am not persuaded that a different sentence ought to have been imposed. Corruption of the criminal justice system by a witness is a very serious offence. It was committed by the appellant whilst he was in prison for the robberies. The otherwise appropriate sentence was reduced by 12 months for totality considerations. Total accumulation was entirely appropriate in those circumstances. The fact that the statutory framework subsequently changed in a way that would have been to the appellant's advantage cannot alter that judgment.
19 An extension of time to appeal against sentence should be refused and the appeal dismissed.
20 MAZZA J: I agree with McLure P.
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