Brewster v Robins
[2006] WASC 87
BREWSTER -v- ROBINS [2006] WASC 87
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 87 | |
| Case No: | SJA:1011/2006 | 19 APRIL 2006 | |
| Coram: | MCKECHNIE J | 19/05/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Parole eligibility order made | ||
| D | |||
| PDF Version |
| Parties: | TIMOTHY JOHN BREWSTER WADE CHRISTOPHER ROBINS |
Catchwords: | Criminal law and sentencing Whether parole eligibility order should be made No new principles |
Legislation: | Sentencing Act 1995 (WA), s 89 |
Case References: | Pickett v State of Western Australia [2004] WASCA 291 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WADE CHRISTOPHER ROBINS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE C D ROBERTS
File No : MI 9016 of 2005, MI 9017 of 2005
Catchwords:
Criminal law and sentencing - Whether parole eligibility order should be made - No new principles
Legislation:
Sentencing Act 1995 (WA), s 89
(Page 2)
Result:
Appeal allowed
Parole eligibility order made
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : Ms L B Black
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Pickett v State of Western Australia [2004] WASCA 291
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: The appellant is a litigant pro se and is in custody. When the appellant first appeared on 16 March 2006, I granted an extension of time and ordered that the application for leave and the appeal be heard together. I also ordered a pre-sentence report. On the next appearance on 19 April 2006 the respondent was represented by counsel.
2 The appellant pleaded guilty to one charge of burglary and one charge of reckless driving. On 4 November 2005 he was sentenced to a term of 19 months for burglary and 4 months cumulative for reckless driving making a total sentence of 23 months. He was not made eligible for parole.
3 The amended grounds of appeal are as follows:
"1. The Magistrate erred in fact in determining that the appellant had four previous convictions for burglary when in fact he only had three.
2. The Learned Magistrate erred by imposing a sentence that was manifestly excessive.
PARTICULARS
i) The Learned Magistrate placed too much weight on the prior record of the Appellant in sentencing the Appellant.
ii) The Learned Magistrate erred by making the sentence for dangerous driving cumulative on the sentence for the burglary by failing to take into account the totality principle.
3. The Learned Magistrate erred in refusing to make the Appellant eligible for parole.
PARTICULARS
i) The Learned Magistrate failed to adequately consider factors relevant to parole.
ii) The Learned Magistrate failed to order a pre-sentence report and a psychiatric report when these reports were appropriate."
(Page 4)
Ground 1 and 2 i)
4 Grounds 1 and ground 2 i) depend for their success on a proposition that the Magistrate made an error in describing the appellant as having four prior convictions for burglary. The appellant asserted that he had only three prior convictions. However, review of his record reveals eight previous burglary offences. Consequently, there is no merit in this ground. Moreover, the Magistrate specifically said that the appellant would not get an increased sentence based on his record. The Magistrate's sentence for burglary is within the range of a discretionary judgment.
Ground 2 ii)
5 The appellant advanced an argument that the conviction for driving was an error because he had been convicted of dangerous driving not reckless driving. The record shows that the appellant pleaded guilty to an offence under Road Traffic Act 1974 (WA) s 60(1). I can understand the appellant's confusion. Although the section is entitled "Reckless Driving" the statement of the offence does not use the word "reckless" but describes the manner of driving as "inherently dangerous". The Magistrate did not make a mistake about the offence.
6 The appellant complains that the sentence for reckless driving was made cumulative on the sentence of burglary.
7 The Magistrate said:
"The wilful driving was a very serious driving in that the police had to abort the chase. You put not only yourself but more particularly other road users at risk in your manner of driving. I believe imprisonment is the only appropriate sanction.
You'll be imprisoned for a period of 4 months and I'll make that cumulative. …"
8 This was a bad case of reckless driving. A sentence of imprisonment to be served immediately was appropriate. There remains the matter of the accumulation. The incident of driving followed shortly after the burglary and effectively involved the appellant trying to evade police. It had links with the earlier offence and was connected with it. On the other hand, it was different criminal conduct. Concurrent sentences would not properly reflect the total criminal conduct. The decision to make the sentence cumulative was not a miscarriage of the sentencing discretion. Nor is a total sentence of 23 months a miscarriage of the sentencing discretion.
(Page 5)
Ground 3
9 Ground 3 challenges the refusal to make a parole eligibility order. The Magistrate directed his attention to the Sentencing Act s 89 and concluded that the offence was serious, especially having regard to the appellant's criminal history and the fact that he was on parole at the time for exactly the same type of offence.
10 The Magistrate did not order a pre-sentence report. To some extent that is understandable. While the failure to obtain a pre-sentence report cannot of itself be a substantive ground of appeal, a pre-sentence report can inform the sentencing discretion, particularly the decision whether or not to grant parole. When there has been no pre-sentence report it is often easier to infer error.
11 The respondent conceded that in this case the Magistrate did fall into error in his consideration of parole and he would have been assisted by a pre-sentence report.
12 The pre-sentence report now obtained discloses that the appellant has an extensive court history and has been under supervision on several occasions and has completed all but the last period of parole. The report is cautiously positive and parole is supported by the report writer.
13 The grant or refusal of parole remains an exercise of discretion at large: Pickett v State of Western Australia [2004] WASCA 291. However, I conclude in the circumstances that despite the appellant's record and the fact that the offences were committed while on parole, a parole eligibility order should have been made in light of the positive indications and his past satisfactory performance.
Order
14 Leave to appeal granted; appeal allowed; parole eligibility order made in respect of the cumulative sentence of 23 months.
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