Sentencing - Denial of eligibility for parole - Imprisonment for total of four years for 20 offences including four offences of driving without a licence whilst disqualified - Extensive history of similar offences - Consistent course of re-offending and defiance of law - No basis for eligibility for parole

Thompson v R (1992) 8 WAR 387; Swayne v R (1981) 41 A Crim R 214, applied

Legislation:

Road Traffic Act 1974 (WA), s 49

Sentencing Act 1995, s 89

Result:

Appeals dismissed

Representation:

Counsel:

Appellant (Defendant) : Mr R G W Bayly
Respondent (Complainant) : Mr N C Monahan

Solicitors:

Appellant (Defendant) : Bayly & O'Brien
Respondent (Complainant) : State Crown Solicitor

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

Cardillo v Pownall, unreported; SCt of WA; Library No 950625; 23 October 1995
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
Swayne v The Queen (1981) 41 A Crim R 214
Thompson v The Queen (1992) 8 WAR 387
Veen v The Queen (No 2) (1988) 164 CLR 465

Case(s) also cited:

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 1 October 1998
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 3 March 1999
Tonkin v Pountney, unreported; SCt of WA; Library No 980247; 21 April 1998

MALCOLM CJ: This was an appeal against sentence pursuant to leave granted by Templeman J under s 187 of the Justices Act 1902. That grant of leave was limited to the refusal of the learned Magistrate to order eligibility for parole in respect of cumulative sentences of imprisonment totalling four years imposed upon the appellant for four offences of driving without a licence while under disqualification. The appellant also appealed under s 189 of the Act against the refusal by Templeman J to grant leave to appeal against the total sentence so imposed.
At the conclusion of the argument on 22 July 1999 the Court was unanimously of the opinion that the imposition of a total sentence of four years was within the scope of the exercise of the discretion of the learned Magistrate and no reason had been advanced to interfere with that sentence. So far as the question of eligibility for parole is concerned, by a majority, the Court was of the opinion that it had not been established that there was any error in the exercise of the discretion by the learned Magistrate to refuse to grant parole.
The result was that the Court ordered that the appeal against the refusal of leave to appeal against the imposition of the sentences totalling four years should be dismissed, and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cardillo v Taylor

Details

AGLC: Cardillo v Taylor [1999] WASCA 166
Case: [1999] WASCA 166
Decision Date: 10 SEPTEMBER 1999

CaseChat Overview and Summary

Cardillo v Taylor was a sentencing matter heard in the Supreme Court of Western Australia. The respondent, Cardillo, was sentenced to imprisonment for a total of four years for 20 offences including four offences of driving without a licence while disqualified. The case presented an opportunity for the court to consider the principles of sentencing, particularly in relation to parole eligibility, in the context of an extensive history of similar offences and consistent re-offending. The court was required to balance the principles of general deterrence with the individual circumstances of the offender.

The legal issues at the heart of this appeal revolved around the denial of parole eligibility for the respondent. The court was tasked with determining whether the cumulative effect of the respondent's criminal history and the nature of the current offences warranted a denial of parole eligibility. This involved an analysis of the principles set out in Thompson v R and Swayne v R, which establish that the court may, in certain cases, deny parole eligibility based on the offender's history of re-offending and defiance of the law. The court had to consider whether the respondent's extensive history of similar offences and his consistent course of re-offending justified such a decision.

In delivering the judgment, the court meticulously examined the respondent's criminal history, which was marked by numerous offences of a similar nature. The court concluded that the respondent's persistent disregard for the law and his pattern of re-offending despite previous sentences demonstrated a significant level of defiance. Given the totality of the circumstances, the court found that there was no basis for the respondent to be eligible for parole. The court's decision was grounded in the principles that the denial of parole eligibility was appropriate to achieve general deterrence and to reflect the gravity of the respondent's persistent offending behaviour. The court's reasoning was consistent with the established authorities that support denying parole eligibility in cases of habitual offenders.

The final orders of the court confirmed the original sentencing decision, upholding the denial of parole eligibility for the respondent. The court's judgment underscored the importance of considering the cumulative effect of an offender's criminal history when determining parole eligibility, particularly in cases where there is a clear pattern of re-offending and defiance of the law.

Orders