Connolly v The Queen
[2000] WASCA 74
•22 MARCH 2000
CONNOLLY -v- THE QUEEN [2000] WASCA 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 74 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:234/1999 | 1 MARCH 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 22/03/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | JAMES PATRICK CONNOLLY THE QUEEN |
Catchwords: | Criminal law Sentencing Parole Applicant not declared eligible for parole Relevant offences committed within two months of release from prison on parole after prior offences Also very poor response to that parole |
Legislation: | Sentencing Act 1995 s 89 |
Case References: | House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Bellissimo v R 84 A Crim R 465 House v The King (1936) 55 CLR 499 Howell v The Queen (1989) 2 WAR 600 Mulligan v R [2000] WASCA 5 R v Tait (1979) 46 FLR 386 Swain v The Queen (1989) 41 A Crim R 214 Thompson v The Queen (1992) 8 WAR 387 Weng Keong Chan (1989) 38 A Crim R 337 Williams v The Queen, unreported; CCA SCt of WA; Library No 980146; 18 March 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CONNOLLY -v- THE QUEEN [2000] WASCA 74 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Parole - Applicant not declared eligible for parole - Relevant offences committed within two months of release from prison on parole after prior offences - Also very poor response to that parole
Legislation:
Sentencing Act 1995 s 89
Result:
Application refused
(Page 2)
Representation:
Counsel:
Applicant : Mr R W Keeley
Respondent : Mr R E Cock QC & Ms A C Longden
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Bellissimo v R 84 A Crim R 465
House v The King (1936) 55 CLR 499
Howell v The Queen (1989) 2 WAR 600
Mulligan v R [2000] WASCA 5
R v Tait (1979) 46 FLR 386
Swain v The Queen (1989) 41 A Crim R 214
Thompson v The Queen (1992) 8 WAR 387
Weng Keong Chan (1989) 38 A Crim R 337
Williams v The Queen, unreported; CCA SCt of WA; Library No 980146; 18 March 1998
(Page 3)
1 PIDGEON J: I agree with the reasons to be published by Wallwork J and with the orders proposed.
2 WALLWORK J: On 1 November 1999 the applicant was sentenced to an effective term of 8 years imprisonment in the Supreme Court at Perth. That term was comprised of 4 years imprisonment for armed robbery in company on the National Australia Bank at Osborne Park on 10 August 1999 plus 4 years imprisonment for armed robbery on the ANZ Bank at Perth on 16 August 1999, which term was ordered to be served cumulatively on the first 4-year sentence. The applicant was sentenced to a further 3 years imprisonment for an offence of armed robbery in company on the TAB Agency at Guildford on 10 August 1999. That sentence was ordered to be served concurrently with the first sentence of 4 years imprisonment on count 8.
3 An application for leave to appeal was made on the ground that the learned sentencing Judge had erred in failing to declare the applicant eligible for parole with respect to the effective term of 8 years imprisonment.
4 The reason that the learned Judge did not declare the applicant to be eligible for parole was primarily due to the nature and seriousness of the offences, the applicant's record of convictions and his poor performance on parole in the past.
5 In Lowndes v The Queen (1999) 195 CLR 665 at 671, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ said:
"Sections 89 and 98 of the Act [Sentencing Act 1995 (WA)] are cast in a different mould and involve the making of discretionary judgments.
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established. … Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
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6 When referring to the matter as "basic" in the above passage, the learned Justices of the High Court referred to House v The King (1936) 55 CLR 499. In that decision at 504, Dixon, Evatt and McTiernan JJ said:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principle. It is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
7 In this case counsel for the applicant argued that the learned sentencing Judge had failed to give appropriate weight to a psychiatric report which was part of the sentencing materials provided to him. It was said that the psychiatric report was a relevant consideration in deciding whether a parole order was to be made because it contained factors which were relevant to the prognostication exercise required by s 89(2)(d). It was said that the report revealed that the applicant's antecedents did not fit those of a hardened criminal. The applicant had not commenced his serious criminal offences until he had reached the age of 26. The applicant's convictions prior to the age of 26 were traffic convictions and others of a behavioural nature. After the applicant had turned 26 there had been an intense period of offending of about three years which had been due to the applicant's addiction to heroin.
8 It was submitted that the psychiatric report revealed that the applicant had taken steps towards his rehabilitation. He had undertaken an anger management course to enhance his self-esteem and self-respect and to assist in his ability to cope with and complete his rehabilitation. It had also noted that the applicant had some insight into his heroin problem. The applicant was intelligent. The report had indicated that an intense and structured approach to his drug problem would be beneficial.
9 It was submitted that the reason the applicant had not completed a previous period of supervision on parole was that there had not been sufficient support mechanisms for him on his release from prison. He had
(Page 5)
- felt at a loss and was alienated and had relapsed into heroin use. It had appeared to him at the time that he had no support.
10 It was submitted that two reports, being the psychiatric report and a pre-sentence report which had been submitted to his Honour, were in conflict to a degree. The pre-sentence report was pessimistic about the applicant's motivation to change his offending behaviour, whereas it was said that the psychiatric report had noted at least a partial motivation in the applicant to address his drug problem.
11 It was submitted that the applicant had co-operated with the authors of both reports and that the positive aspects noted by the author of the psychiatric report had indicated that the applicant would be likely to respond favourably to community supervision if released on parole. It was submitted that the refusal to grant an order for parole was detrimental and counterproductive to the applicant. The decision risked him becoming institutionalised, whereas until 1996 he had been a productive member of the community.
12 It was not contended for the applicant that the learned Judge had been under any misapprehension as to any aspect of the applicant's past history or the facts surrounding the offences, or his previous record of convictions.
13 On 2 February 1996 the applicant had been convicted of burglary, fraud and stealing. He was placed on probation for those offences. On 20 June 1997 he had been sentenced to an effective term of 18 months imprisonment for breaches of that probation order. On the same date he was sentenced to 1 year's imprisonment (concurrent) for forgery; 1 year's imprisonment (concurrent) for fraud; 6 months imprisonment (concurrent) for another offence of fraud; 4 years imprisonment for armed robbery and 1 year's imprisonment (cumulative) for uttering, making a total of 6 years and 6 months imprisonment to date from 7 February 1997.
14 The applicant had been released to parole on 19 June 1999. He was then arrested on 16 August 1999 after the relevant offences had been committed. His parole was cancelled on 26 August 1999 for reasons unrelated to this matter. When he came before the learned Judge on 1 November 1999 the applicant had been in custody since 16 August 1999.
15 The learned Judge was told before he imposed the sentences that the applicant had been working for some years before he first lapsed into crime. He had been using heroin for some time whilst he was working.
(Page 6 )
- He had been able to cope when he had an income. However, by the time he committed offences in 1996 and 1997, he had become a heroin addict. At one time the applicant was spending approximately $5000 a week on heroin.
16 The learned Judge was aware of the psychiatrist's opinions. Counsel had told him that the psychiatrist was of the opinion that the applicant had showed some motivation to address his heroin addiction, although that view did not seem to be shared by the author of the pre-sentence report. The Judge was told that the applicant had had contact with the mental health authorities through Graylands Hospital and had been assessed by a psychiatrist at Graylands. The Judge was aware of the applicant's background and family situation. He had been addressed concerning the applicant's previous work history.
17 It had been put to his Honour that it was after the applicant's father had died in 1996 that the applicant had lapsed into heroin addiction. The applicant had then lost interest in working and had been diagnosed with clinical depression. Counsel for the applicant had told the learned Judge that the applicant had attempted to address his addiction to some extent whilst he had been in prison and that the applicant had attended a substance abuse programme. Counsel had advised the Judge that the applicant intended to address the causes of his offending, including his heroin addiction. He recognised that if he did not do something about his life, he was going to continue to be in trouble. Counsel had advised the learned Judge that the applicant had undergone an anger management course in prison and that he had made an early plea of guilty after he had made his admissions on video.
18 In opposition to the granting of parole, counsel for the Crown had commented on the contents of the pre-sentence report and the psychiatrist's report. It was conceded that a discount should be given to the applicant for his early pleas of guilty, but it was submitted that there was nothing before the Court to trigger the discretion to declare him eligible for parole.
19 In my opinion it has not been established that the learned Judge made any error in the sentencing process or in refusing to order eligibility for parole. I would refuse the application.
20 MURRAY J: I respectfully agree with Wallwork J that this application for leave to appeal against sentence should be refused. The application did not challenge the aggregate term of 8 years imprisonment imposed for
(Page 7)
- the three offences, being an offence of armed robbery in company committed on the National Australia Bank at Osborne Park on 10 August 1999, a further similar offence committed upon a TAB Agency in Guildford on the same date and an armed robbery committed by the applicant alone on the ANZ Bank in Perth on 16 August 1999. The sole ground of appeal was that the learned sentence Judge erred in failing to declare the applicant eligible for parole.
21 The Judge, Miller J, in declining to order eligibility for parole, relied primarily upon the nature and seriousness of the offences, the applicant's previous criminal record, and his previous poor performance on parole. As his Honour noted there was little favourable material to be found in the applicant's antecedents and, as it had been reported to him in the pre-sentence report, his Honour found that the applicant's prospects of rehabilitation were poor. In my opinion his Honour committed no error in concluding that for those reasons he was unable to exercise his discretion in favour of eligibility for parole.
22 The most favourable report showed that the applicant's heroin addiction remained firmly entrenched. As the applicant himself said, having been released on parole he intended to stop his drug use, but at the first opportunity he weakened and again embarked upon a pattern of use which quickly led to the commission of the offences before the Court. In view of the rapid failure of the applicant's previous attempt to remain drug free and therefore offence free, the consultant psychiatrist was moved to recommend a more intensively structured approach to curing the applicant's narcotic addiction, noting that the applicant "appears to be at least partially motivated to involve himself in a rehabilitation program." In my view this is a relatively pessimistic report.
23 The mood of pessimism emerges more clearly from the pre-sentence report itself, which noted that the applicant showed no empathy for the victims of his offences, which he blamed upon his heroin addiction, an observation which I take to mean that upon the applicant's previous release from prison on parole, he had no capacity to lawfully fund his relapse into heroin addiction and so was compelled to resort to the commission of robberies. Not only did that provide no excuse for the commission of those offences, but of itself it was an indication of the inappropriateness of parole.
24 The report noted the applicant's minimal co-operation with supervision during his previous period of probation in 1996 during which period further offences were committed, including an armed robbery, for which group of offences the applicant was sentenced on 20 June 1997 to
(Page 8)
an aggregate term of 6-1/2 years imprisonment to commence from 7 February 1997. In respect of those sentences therefore the applicant became eligible for parole on about 7 April 1999 and, as the pre-sentence report notes, he was released on parole on 19 June 1999, the order to expire two years later.
25 The pre-sentence report described the applicant's response to supervision on that occasion as "abysmal". He reported to his supervising officer on two occasions only. The enquiries of the Community Corrections Officer elicited the information that the applicant had left his accommodation, had stayed with his mother for 2 weeks, had left there and was believed to be living on the streets. In those circumstances it seems to me that the complaint of the applicant made to the consultant psychiatrist that the applicant felt "his return to the community could have been better organised" is a hollow one. It appears clear that the applicant avoided the assistance and direction which was available to him. He was said to have relapsed into the use of heroin only three weeks after his release. Upon the basis of that history, the reporting officer considered him to be unlikely to co-operate with supervision in future and he was rated as being at a high risk of re-offending.
26 It is noteworthy that the offences for which he was sentenced on 1 November 1999 were committed on 10 and 16 August, again a very short time after the applicant's release on parole on 19 June. As Wallwork J notes, that parole was cancelled and the sentences imposed on 1 November were ordered to be served cumulatively upon the sentences previously imposed. They would therefore be served first and the unexpired balance of the previously imposed sentences would then resume. At that time the applicant would again become eligible for parole and would still have a parole period of some 2 years available to him during which, if he was then motivated to seriously address the problem of heroin addiction, he might obtain an appropriate level of assistance to do so. He would again fail to achieve proper management of his condition and remain drug free unless he was then prepared not only to accept such assistance as was available, but to have the strength of character not again to succumb to the addiction.
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