Cunningham v Walsh

[2000] WASCA 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   CUNNINGHAM -v- WALSH & ORS [2000] WASCA 201

CORAM:   HASLUCK J

HEARD:   12 JULY 2000

DELIVERED          :   4 AUGUST 2000

FILE NO/S:   SJA 1051 of 2000

BETWEEN:   JEFFREY JOHN CUNNINGHAM

Appellant

AND

MANUS BENEDICT WALSH
ZELKJO DELIC
KEVIN EDWARD FERGERSON
JESS OLSEN
JASON CRAGG
Respondents

Catchwords:

Sentencing Act - Appeal against sentence under Justices Act - Terms of imprisonment for receiving and driving - Magistrate's refusal to order eligibility for parole - Matters relevant to parole

Legislation:

Criminal Code, s 414

Justices Act 1902
Police Act1892, s 53(1)(b)
Road Traffic Act 1974, s 49(1)(a), s 49(2), s 60(1)

Sentencing Act 1995, s 6, s 39, s 43, s 89, s 93, s 95

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr E Shackleton

Respondents                 :     Mr R Daily

Solicitors:

Appellant:     Legal Aid Commission

Respondents                 :     State Director of Public Prosecutions

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

Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621

Cardillo v Taylor [1999] WASCA 166

Heppener v The Queen, unreported; CCA SCt of WA; Library No 4669; 1 October 1982

Herbert v R, unreported; CCA SCt of WA; Library No 7676; 26 May 1989

House v The King (1936) 55 CLR 499

McLean v R [1999] WASCA 209

R v Grein [1989] WAR 178

R v Tait (1979) 46 FLR 386

Swain v R (1989) 41 A Crim R 214

Thompson v R (1993) 8 WAR 387

Veen v R (No 2) (1988) 77 ALR 385

Weng Keong Chan (1989) 38 A Crim R 337

Wongawol v R (1998) 101 A Crim R 350

Case(s) also cited:

Dobaj v The Queen [2000] WASCA 7

Garlett v The Queen [2000] WASCA 72

Lowndes (1997) 95 A Crim R 516

Lowndes v R (1999) 163 ALR 483

Nevermann (1989) 43 A Crim R 347

Shaw (1989) 39 A Crim R 343

1. HASLUCK J:  The appellant obtained leave to appeal from part of the decision of his Worship Mr C Roberts given in the Court of Petty Sessions at Midland on 3 March 2000.  The decision concerned various complaints in respect of which the learned Magistrate sentenced the appellant to 32 months' imprisonment without parole.  Leave to appeal was granted on the ground that the learned sentencing Magistrate erred in law by failing to properly consider or to consider at all the appellant's eligibility for parole. 

2. The appeal is brought pursuant to provisions of the Justices Act 1902 which allow to a Judge of the Supreme Court powers to dismiss the appeal, or set aside, quash or vary the decision of the Magistrate and to substitute a decision that he ought to have made.  There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.

3. The appellant was convicted upon his own pleas of guilty to one count of driving whilst legally disentitled to hold a motor driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974, one count of dangerous driving contrary to s 60(1) of the Road Traffic Act, one count of refusing to stop when called upon contrary to s 53(1)(b) of the Police Act1892 and eight counts of receiving a stolen motor vehicle contrary to s 414 of the Criminal Code.

4. As to the first group of offences, a statement of material facts revealed that the defendant drove his vehicle at high speed along Walter Road near Bassendean on 23 December 1999 and was observed overtaking a number of vehicles in the dual carriageway.  He was then followed and apprehended by a police vehicle as a consequence of which it emerged that the defendant's driver's licence was cancelled in Perth on 28 August 1999 for driving under suspension. 

5. As to the group of charges concerning receiving, it seems that on 24 December 1999 the police had occasion to inspect several vehicles in the rear yard of the defendant's residence in various stages of disrepair which turned out to be outstanding stolen motor vehicles.  When spoken to by the police the defendant stated that other persons had delivered these vehicles to his home address between August and September 1999 and stored them there.  He further admitted that he knew the vehicles were stolen.  These other persons had supplied the defendant with heroin if he allowed them to leave the vehicles at his address.  He was then arrested.  The defendant had an extensive record of prior convictions, which was tendered to the court, including not only convictions for driving while under suspension and various speeding offences but also convictions for careless driving, stealing a motor vehicle, disorderly conduct, street drinking, stealing, receiving, heroin use and unlawful possession.

6. I pause to note that s 5(1)(1a) of the Road Traffic Act allows for abbreviations to be used in describing penalties for offences. "PU" stands for penalty units and a reference to a number of PU is a reference to an amount in dollars, that is, that number multiplied by 50. Section 49 defines offences of driving a motor vehicle without a driver's licence, including reference to driving while disqualified from holding or obtaining a driver's licence or while a licence is cancelled or suspended. The penalty in the latter case for subsequent offences is a fine of not less than 20 PU or more than $2,000 or imprisonment for a term not exceeding 18 months, or both a fine and imprisonment. The penalty under s 53(1)(b) of the Road Traffic Act for refusing to stop when called upon to do so for a subsequent offence is 12 PU.  The penalty for dangerous driving for a first offence is a fine of 20 PU or imprisonment for 6 months, for a second offence a fine of 24 PU or imprisonment for 6 months and for a third or subsequent offence a fine of 48 PU or imprisonment for 12 months. 

7. Section 414 of the Criminal Code provides that any person who receives any property is guilty of a crime.  The offender is liable to the greatest punishment provided for the kind of offence by means of which the property was obtained or imprisonment for 14 years, whichever is the lesser. 

8. Counsel for the defendant raised various matters in support of a plea in mitigation.  He said that when his client was released from a previous period of imprisonment he was approached by a man he had met in gaol and asked whether he and some of his friends could do work on their own cars at the premises used by the defendant for his backyard mechanic's business.  Counsel conceded in response to a question from the bench that these arrangements were subject to the defendant being given heroin, as he was a heron addict.  He did not realise initially that the cars brought to his premises were stolen, although he became suspicious eventually.  Counsel said that his client had now managed to disassociate himself from heroin and had ceased associating with people from that part of his life. 

9. Counsel informed the learned Magistrate that the appellant was a good mechanic, he was doing work for other caryards, and although he accepted that a term of imprisonment was inevitable, he could in fact "make something very positive of his life."  At that time he was aged 32, had an average income of $350 per week and had been in a de facto relationship for some six years.  His attempt to evade the police was due to his awareness that he was on a suspended sentence and his desire not to be in gaol for Christmas.  He had $8,000 in outstanding fines, but was making an effort to extinguish this debt by fortnightly payments.

10. Counsel concluded his plea upon this basis:

    "I simply ask that you take into account he is 32, that he has pleaded guilty to all the charges, albeit it [sic] not at the first opportunity but he hasn't prolonged the matter.  And he has been co‑operative with the police, I'm told, and not make any sentence crushing upon him, and perhaps consider him eligible for parole."

11. In sentencing the offender, the learned Magistrate noted that the offender had accumulated a huge amount of convictions for similar offences and had participated in a continuous course of unlawful activity.  He noted that the offender was then currently subject to two suspended gaol terms, although the receiving charges did not constitute a breach of those provisions.  He noted that the defendant was before the court on at least his seventh charge of driving under suspension, the most recent being in October 1999.  This continuous course of unlawful conduct was aggravated by the reckless driving and the attempt to evade the police.  As to the receiving charges, the learned Magistrate went on to say that he would give the offender the benefit of the doubt and sentence him on the basis that he was simply allowing the vehicles to be stored on his premises and was not involved in removal of the parts.

12. Convictions for the traffic offences breached two orders of suspended imprisonment, namely, a 6‑month term which was suspended for a period of 2 years, having been imposed by the Midland Court of Petty Sessions on 5 October 1999 for one count of driving whilst legally disentitled to hold a motor driver's licence; and another 6‑month term of imprisonment which was suspended for 1 year, having been imposed by the Perth Court of Petty Sessions on 27 October 1999 also for one count of driving whilst legally disentitled to hold a motor driver's licence.

13. The offender was sentenced to an aggregate term of 32 months' imprisonment.  The suspended terms of imprisonment were ordered to be served immediately and in full, as well as concurrently with the 32 months imposed for the new convictions.  The learned Magistrate concluded upon this basis:

    "In relation to all receiving charges, I can take into account your plea of guilty, although not at the first opportunity, certainly without the necessity of a trial, and you have been co‑operative with the police.  Accordingly, I will discount the sentence.  I would have thought somewhere between 2 and 3 years would have been appropriate. 

    I will impose a sentence of 18 months in respect of all of those matters.  That 18 months is to be served cumulative on top of the 14‑month term for driving under suspension.  So it is a total net effective sentence of 32 months.  There is nothing in your behaviour or record which would indicate that you should be given the benefit of parole.  Accordingly I decline parole."

14. It is therefore apparent that the question of parole, having been raised by defence counsel, was given consideration by the learned Magistrate while imposing sentence, albeit briefly.  Evidentiary materials directed to the question of eligibility for parole were not brought before the court and such materials were not brought before me upon the hearing of this appeal. 

15. Division 1 of the Sentencing Act1995 sets out various principles of sentencing. By s 6, a sentence imposed on an offender must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

16. Section 39 sets out the sentencing options for a natural person and requires that a court must not use a prescribed sentencing option unless satisfied, having regard to the sentencing principles, that it is not appropriate to use any of the options listed before that option. By s 43, if the statutory penalty is imprisonment or fine, the court may use any one of the sentencing options in s 39(2).

17. Section 89 provides that a court sentencing an offender to one or more fixed terms of imprisonment may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order. A court may have regard to all or any of the following matters, namely, the seriousness and nature of the offence, the circumstances of the commission of the offence, the offender's antecedents, circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made, and any other reason the court decides is relevant. A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months.

18. Release from imprisonment, including release on parole, is dealt with in later provisions. By s 93, a prisoner serving a parole term is eligible to be released on parole when he or she has served one‑third of the term if the term is 6 years or less, or when he or she has served 2 years less than two‑thirds of the term if the term is more than 6 years. By s 95, a prisoner serving a fixed term that is not a parole term is discharged from that sentence when he or she has served two‑thirds of the term.

19. The principles emerging from the decided cases relevant to parole were enunciated originally in Thompson v R (1993) 8 WAR 387 and were reiterated in Wongawol v R (1998) 101 A Crim R 350. They are well‑known and I will not refer to them in their entirety. In summary, and with an emphasis upon those principles relevant to the circumstances of the present case, I note that where a term of imprisonment is to be imposed the question of eligibility for parole must be considered. This calls for the exercise of judicial discretion which cannot be triggered unless there is something in the materials before the sentencing court which points positively towards the appropriateness of parole. Nonetheless, the philosophy of the Act suggests a bias towards eligibility. Parole serves to mitigate punishment as well as provide an opportunity for rehabilitation. The court is required to have regard to factors of the kind now reflected in the statutory provision. A consideration of circumstances relevant to the offender includes attention to circumstances at the time when he or she would be eligible for release, thus recognising a relationship between punishment and the need to consider factors leading to the offender's rehabilitation, and the question of whether he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community. Even where the sentence is lenient, it is necessary to consider the eligibility for parole issue.

20. Antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience to the law.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and others from committing further offences of a like kind.  Veen v R (No 2) (1988) 77 ALR 385 at 393.

21. Where an offender's antecedents disclose a series of prior convictions for the same or similar offences, this tends to demonstrate that the offender is a poor risk and that an order for eligibility for parole would not be appropriate.  Swain v R (1989) 41 A Crim R 214 at 218; Cardillo v Taylor [1999] WASCA 166 at par 36; McLean v R [1999] WASCA 209 at par 26.

22. The principles upon which an appellate court must approach an appeal from a decision in the exercise of discretion are well established.  It is not sufficient that an appellate court may have taken a different view.  It must be shown that the court at first instance has failed to properly exercise its discretion.  An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing Magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  House v The King (1936) 55 CLR 499 at 504; Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627; Weng Keong Chan (1989) 38 A Crim R 337 at 342 and 344.

23. This approach is evident in R v Grein [1989] WAR 178. Malcolm CJ at 180 referred to the following passage from R v Tait (1979) 46 FLR 386 with approval:

    "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error."

24. Counsel for the appellant in the present case submitted before me that the sentencing Magistrate should have made an order for parole eligibility in relation to the sentences he imposed.  He drew attention to those mitigating factors which were raised with the Magistrate and which were apparently accepted by the Magistrate.  By this he meant that the receiving charges did not breach the suspended terms of imprisonment arising out of the earlier traffic offences, the appellant was co‑operative with the police, his yard had been used essentially for storage of the stolen vehicles.  Counsel went on to submit that the Magistrate erred in giving undue weight to the seriousness and nature of the offence (s 89(2)(a) as against the specific circumstances of the case and circumstances relevant to the offender (s 89(2)(b), (c) and (d) of the Sentencing Act). 

25. Counsel said further that the Magistrate recognised that the appellant was addicted to heroin for approximately eight years.  He had "no doubt" that the appellant's record was, at least in part, due to that addiction.  There were submissions before the Magistrate that the appellant had self‑referred and successfully completed the methadone programme and had been drug‑free since the commission of the balance of the offences.  Appropriate weight had not been given to the appellant's rehabilitation from heroin addition, with this view of the matter being reinforced by the Magistrate's failure to obtain a pre‑sentence report.

26. I note in passing that counsel for the defendant in that context placed reliance upon Heppener v The Queen, unreported; CCA SCt of WA; Library No 4669; 1 October 1982, which suggests that although the failure to obtain a pre‑sentence report is not in itself a ground of appeal, it may reinforce a submission that the sentencing Judge erred in the exercise of his discretion.  He also referred to Herbert v R, unreported; CCA SCt of WA; Library No 7676; 26 May 1989 which suggests that where the sentencing judicial officer is seriously contemplating eligibility for parole, he should invite counsel for both parties to air their views before him in order to ensure that the criteria set out in s 89 of the Sentencing Act is given detailed consideration. 

27. Counsel for the appellant reminded me that the Magistrate had the appellant's record before him.  Counsel accepted that the record provides little mitigation in relation to the persistence of offending.  However, it did indicate that the appellant had successfully completed parole periods in 1993, 1995 and 1997.  The Magistrate also had submissions before him that the appellant had, and continues to have, employment opportunities.  Those opportunities have since been confirmed by the appellant's mother, who is in a position to employ the appellant in the family business.  The Magistrate also had submissions before him that the appellant was seeking to rehabilitate himself by making arrangements to repay his outstanding fines. 

28. In summary, then, the principal thrust of the appellant's case on appeal was that the Magistrate erred in law by not inviting both parties to air their views in relation to eligibility for parole.  Moreover, at no stage of the proceedings did either of the parties make submissions of their own volition.  It was therefore submitted that the Magistrate erred in law in finding that there was nothing in the appellant's behaviour or record that would indicate that he should be given the benefit of the parole. 

1. Counsel for the respondent sought to rebut this line of argument by pointing out that the appellant's record revealed a continuing attitude of disobedience towards the law.  The two offences of driving without a licence were both committed whilst the appellant was subject to two suspended terms of imprisonment for the same offence, and these had been imposed only two months before the appellant reoffended in exactly the same manner.  He had breached orders of probation on two prior occasions, and therefore had failed to take advantage of previous opportunities for supervision within the community.  He also had a history of offences, including receiving as well as burglary and stealing and had been imprisoned for these before.  Counsel for the respondent therefore submitted that the Magistrate did not err in declining to make the appellant eligible for parole.  The offences committed were serious.  The traffic offences went beyond merely driving whilst legally disentitled, but extended to dangerous driving and failure to stop, being conduct which was intended, by the appellant's own admission, to evade the police.  The appellant was aged 32 and had a long history of problems with heroin which had not been assisted by taking advantage of the benefits of previous early releases on parole and periods on probation to address the problem.  The parole issue had been raised with the Magistrate, who clearly gave consideration to it and declined to make any such order, having reviewed all the relevant factors in the course of the sentencing process. 

2. Against this background, I am not persuaded that the learned Magistrate erred in refusing to grant eligibility for parole.  He quite properly took account of the fact that the record of prior convictions, including the recent convictions in October 1999, indicated that the offender had manifested a continuing attitude of disobedience towards the law giving rise to a risk of further offences being committed.  The learned Magistrate correctly concluded that there was nothing in the material before him that pointed positively towards the appropriateness of parole, with the result that he refrained from ordering eligibility for parole.  It has therefore not been demonstrated that the learned Magistrate erred in the exercise of his discretion.  It follows that the appeal will be dismissed.