De Rooy v The Queen - [2002] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DE ROOY -v- THE QUEEN [2002] WASCA 140

CORAM: MALCOLM CJ
WALLWORK J
TEMPLEMAN J

HEARD: 12 FEBRUARY 2002

DELIVERED : 23 MAY 2002

FILE NO/S: CCA 97 of 2001

BETWEEN: SHANE WILLIAM DE ROOY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Application for leave to appeal against sentence of the District Court - Totality principle - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 689(3)

Sentencing Act 1995 (WA), s 32

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant: Mr P J M Sullivan
Respondent: Mr D Dempster

Solicitors:

Applicant: Paul Sullivan
Respondent: State Director of Public Prosecutions

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

Lenton v The Queen [2001] WASCA 392
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Case(s) also cited:

Bobletec v The Queen [2001] WASCA 222
Jarvis v The Queen (1998) 20 WAR 201
R v Ruich [2000] WASCA 84
Troy v The Queen, unreported; CCA SCt of WA; Library No 980068; 13 February 1998

MALCOLM CJ: In my opinion the application for leave to appeal against sentence should be refused for the reasons to be published by Templeman J. I also agree, however, with Templeman J that the order made by his Honour Judge Viol disqualifying the applicant from holding a driver's licence for a period of 12 months should be corrected as such an order had previously been made by his Honour Judge Healy on 21 August 2000. There was no basis for any further order.
WALLWORK J: I agree with the reasons for judgment and the conclusions of Templeman J.
There is nothing I wish to add.
TEMPLEMAN J: On 27 June 2001 the applicant, Shane William De Rooy, was sentenced by Judge Viol in the District Court to a term of five years imprisonment for numerous offences to which he had previously pleaded guilty and in respect of which, on 21 August 2000 Judge Healy had made a two year intensive supervision order ("the ISO").
The applicant did not comply satisfactorily with the programme requirements of the ISO, which was breached. The applicant pleaded guilty to the breach, without offering any explanation or excuse. It was in those circumstances, that the applicant was re-sentenced by Judge Viol. The applicant now seeks leave to appeal from the sentence of five years imprisonment on the basis that it was so excessive as to manifest error on the part of the learned sentencing Judge.
On 15 June 2000 the applicant pleaded guilty to possessing 0.89 grams of heroin with intent to sell or supply it to another. The applicant also pleaded guilty to a number of offences which he requested the Court to deal with pursuant to s 32 of the Sentencing Act 1995 (WA). The offences were receiving and possessing an unlawful firearm, giving a false name to the police, and having in his possession heroin and cannabis and a smoking implement.
The firearm was a lever action .22 calibre repeating rifle which had been given to the applicant by a heroin user in payment for heroin. The applicant knew, at the time, that the rifle had been stolen.
On 1 August 2000 the applicant pleaded guilty to the offence of selling 0.13 grams of heroin. Further, the applicant pleaded guilty pursuant to s 32 of the Sentencing Act to attempting to steal cash the property of Australia Post, to having in his possession two cheques

reasonably suspected to have been stolen or unlawfully obtained and to the cultivation of a cannabis plant.

Before being sentenced on 21 August 2000, the applicant pleaded guilty to further offences pursuant to s 32 of the Sentencing Act. Those were the possession of heroin, the possession of cannabis and driving a motor vehicle without being the holder of an appropriate licence.
Judge Healy had the benefit of two pre-sentence reports about the applicant. The first of those reports disclosed that the applicant was then 28 years of age. He had had a hard and strict upbringing from which he had escaped by leaving home and living on the streets in his early teen years. At the age of 17, the applicant moved to Sydney with his girlfriend, by whom he had two children. She and the children were killed in a traffic accident, a tragedy which affected the applicant badly.
Later, the applicant entered into a relationship with another woman, by whom he had a son. The relationship terminated when the applicant was imprisoned in 1998.
Before he was taken into custody in 2000, the applicant had been living in a de facto relationship with a woman whom he had known for six years and who had a daughter from a previous relationship. The applicant's partner was a heroin user, as was the applicant himself. The applicant had had an alcohol problem. He had dabbled with heroin before his previous imprisonment. He had suffered back pain while in prison and had been prescribed morphine tablets. However, the applicant used heroin to relieve the back pain. That use developed into an addiction. The applicant had recently expressed a desire to become drug free and had taken some positive steps in that direction while in prison.
The applicant had demonstrated that he could support himself and his family in the community. He had been self-employed as a motor mechanic. He had carried on business from his home. He claimed he could earn between $600 and $1,000 per week.
The applicant had a number of previous convictions, including a burglary offence committed while on parole in 1997. The applicant was then granted home detention bail which was revoked due to his unsatisfactory performance.
On 8 June 1998 the applicant was sentenced to three years imprisonment. He was released on parole on 23 April 1999. The parole period was due to expire on 23 April 2000. The parole conditions included a requirement that the applicant attend substance abuse counselling and undergo urine analysis.
Although the applicant reported satisfactorily while on parole, he began to use heroin occasionally and later, to a greater extent. Furthermore, the applicant committed the offences to which he pleaded guilty in June and August 2000 while he was on parole.
A plea in mitigation was made by the applicant's counsel on 15 June 2000. Counsel informed Judge Healy that the applicant had resolved to lead a new life by asking for psychological and drug counselling in the prison. Counsel pointed out to his Honour that the applicant's only previous conviction for drugs was on 16 April 1997 when he had been fined $200 for prohibited use. Counsel asked his Honour to take into account "the relatively miniscule amounts" of drugs involved in the present offences. It was said on behalf of the applicant that he was a user who had been feeding his own habit and that he had not derived any financial advantage from dealing. His Honour was told also that the applicant was then "totally clean and not on methadone".
Judge Healy adjourned the matter to 1 August 2000 for sentencing. On that occasion, his Honour was informed that the applicant's partner was in hospital suffering from a viral heart disease. The applicant had not been able to see his partner who had a two year old child. The child had been in the care of its grandmother who was required to return to work. In those circumstances, it was likely that the child would be placed in care.
The applicant himself addressed Judge Healy on 1 August. He explained to his Honour how he had come to use heroin and to be addicted to it. He said he was not a drug dealer. In relation to his partner's illness the applicant said:
"My family really needs me at the moment, you know, even to an effect like, if I mess up again I come back to gaol for 5 years, you know." (AB35)
Judge Healy decided not to sentence then, but to adjourn so that enquiries could be made as to the medical condition of the applicant's partner and a further notice prepared pursuant to s 32 of the Sentencing Act.
It is clear from an observation made by the learned sentencing Judge that he was then considering the possibility of a suspended sentence. His Honour told counsel for the Crown that "clearly this is a custodial sentence. It's just a question of whether … it has to be served immediately, now." (AB36)
The matter came back before Judge Healy on 21 August. The applicant then accepted, through his counsel, that because the offences for which he was to be sentenced had been committed while he was on parole, he could not be given a suspended sentence. In those circumstances, the applicant's counsel sought an intensive supervision order. This was opposed by counsel for the Crown who submitted that imprisonment remained the only option.
Despite that, Judge Healy decided to impose an intensive supervision order. His Honour said:
"You know from what I told you on the last occasion that really gaol was the only fine (sic) for you in relation to this. That's what the crown has pressed for all the time, not only because of the number of offences but because of the types of offences. I note that since your time in gaol you've done the substance abuse course and have a tick from there as to being able to understand what your problems are and, mainly for the sake of using your family situation as a huge incentive to rehabilitation yourself, I'm not going to impose any further term of imprisonment on you, but you have to realise that if you don't fulfil your intensive supervision order you will be coming back before me and you will be looking at least 4 years' imprisonment for what you've done, even after you plead guilty, but because of the peculiar circumstances here and I think because your responsibilities may give you the spur that you need for rehabilitation, I'm prepared to give you one final chance." (my emphasis)
The "final chance" to which his Honour referred was an intensive supervision order "for as long a period as is feasible", namely 2 years.
Judge Healy then informed the applicant about the requirements of the ISO. These included any counselling programmes and urine analysis that the Community Corrections Officer might require. His Honour said:
"You must realise that if you fail to keep up your end of the intensive supervision order, that will result in a report being given to me and you will be coming back here for sentence."
The applicant said he understood and that he was prepared to accept the conditions of the ISO.
In the event, the applicant did not comply with those conditions. According to a report by a senior Community Corrections Officer, the applicant complied with the reporting requirements. However, he did not attend as required for the purpose of urine analysis. He often made excuses that he was too busy working. Furthermore, he said he had made contact with Next Step, in order to engage in the methadone programme. This despite the fact that the applicant had told Judge Healy that he was drug free.
The Community Corrections Officer said that the applicant had failed to report on 13 December 2000 as instructed on 6 December. He said the applicant was not undertaking urine analysis nor counselling despite repeated warnings and that the applicant was not considered suitable for any community based supervision.
It was in those circumstances that the applicant appeared before Judge Viol on 7 June 2001 for sentencing. On that occasion the applicant pleaded guilty to breaching the intensive supervision order. He did not offer any explanation or excuse, nor was anything said about that matter by his counsel.
The applicant's counsel did however make a plea in mitigation in relation to the offences in respect of which the ISO had been imposed. Counsel asked Judge Viol to take into account the totality principle, the cumulative effect of the sentence and the time spent in custody. Counsel pointed out that the applicant was in custody on other matters and was facing "several charges of stealing with violence" before the District Court and the Supreme Court.
Counsel went on to say that since the applicant had entered into prison, he had presented "as a totally different individual from the time of his arrest: he had enjoyed a proper diet and had not taken illicit substances". All this was said in support of an application for a parole order.
Judge Viol adjourned the matter to 27 June 2001 for sentence. On that occasion, his Honour pointed out that the applicant had been on parole when the offences of possessing heroin with intent to sell or supply and the selling offences had been committed. Although the applicant had gone on to complete the period of parole, he was nevertheless in breach. The learned Judge went on to say also that it was necessary for him to consider the question of totality.
His Honour then proceeded to sentence. On the charge of possessing heroin with intent, he imposed a sentence of three years imprisonment. On the charge of selling heroin, the sentence was two years imprisonment, cumulative on the three years. In respect of each sentence, the applicant was made eligible for parole.
Judge Viol then imposed a series of sentences of imprisonment as follows:
•Driving without a licence – 6 months.
•Driving without a licence – 6 months
•Attempting to steal – 6 months
•Unlawful possession – 6 months
•Giving a false name – 3 months
•Possession of heroin – 6 months
•Possession of cannabis – 3 months
•Possession of an unlicensed firearm – 3 months
•Possession of the smoking implement – 3 months
•Receiving the stolen firearm – 3 months
•Possession of cannabis – 3 months
All of those sentences were to be served concurrently with the head term. The sentences were backdated to 11 March 2001 to take account of the time the applicant had spent in custody.
The applicant now seeks leave to appeal against the sentence of the District Court. The grounds on which he makes his application are as follows:
"1.The learned sentencing judge failed to take into account the applicant's relatively insignificant drugs record. He has only one previous conviction for use drugs for which he was sentenced to a fine.
2.The applicant has no previous convictions for possession of heroin with intent to sell or supply or for sell heroin.
3.The amounts of heroin involved in respect of the possess heroin was .89 grams and in respect of sell heroin was .13 grams. He was therefore not selling commercially.
4.The accused's crimes were committed to fund his own habit.
5.The breach of intensive supervision order was precipitated by unsatisfactory performance by the applicant on an intensive supervision order as opposed to the commission of a further offence or an offence involving drugs.
6.It is respectfully submitted the learned sentencing judge failed to take into account the totality principle in imposing the sentence that he did."
The applicant's counsel, in the course of his submissions to this Court, emphasised that the amount of heroin involved in respect of the charges of possessing and selling heroin were relatively low: and that there was no commercial aspect to those two offences.
Counsel also emphasised the fact that the applicant had not committed a further offence which had resulted in his being sentenced to a term of imprisonment: he had, as counsel put it, failed to comply with the intensive supervision order "through his own foolishness".
In submitting that the learned sentencing Judge had failed to take into account the totality principle, counsel relied on the decision of this Court in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999.
In that case, Anderson J, with whom Pidgeon and Ipp JJ agreed, said (at p 6):
"The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole."
The applicant relied also on Lenton v The Queen [2001] WASCA 392, in which Vlek was approved. In Lenton, it was necessary to apply the totality principle in sentencing an offender who was already serving a term of imprisonment. That is not, of course, the position here.
If Judge Viol had been concerned only with the offences of possessing and selling the quantities of heroin involved, there might be merit in the argument that the sentences were excessive. That was not, however, the situation. The learned sentencing Judge was required to deal with a whole range of offences which demonstrated a high degree of criminality. In particular, the receipt and possession of the rifle were serious enough offences to justify cumulative sentences, even though the applicant had said he believed the weapon to be an air rifle.
In determining the appropriate sentences, the learned sentencing Judge clearly had the totality principle in mind. As I have noted above, he referred to it expressly in the course of the submissions relating to sentence.
In a situation such as this, the Court of Criminal Appeal is not necessarily concerned with the way in which a sentence has been structured. Section 689(3) of the Criminal Code Act Compilation Act 1913 (WA) provides that:
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict … in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal." (my emphasis)
In the present case, the applicant was sentenced by two very experienced Judges. It is clear that Judge Healy was teetering on the brink of imposing an immediate custodial sentence of at least four years imprisonment. His Honour clearly regarded the unfortunate circumstance of the applicant's partner and her child as a mitigating factor which just tipped the balance in favour of an ISO.
However, his Honour gave the applicant a stern warning that if he did not comply with the requirements of the ISO, he could expect a sentence of imprisonment. As I have noted above, the applicant himself was expecting a sentence of five years imprisonment.
The options open to Judge Viol were more limited. The applicant had demonstrated that he was unable or unwilling to comply with the terms of the ISO. There were several instances of similar non-compliance in the applicant's history. The Senior Community Corrections Officer who had reported in the breach of the ISO had expressed the opinion that the applicant was not considered suitable for any community based supervision. Furthermore, since the applicant had committed offences while on parole, a suspended sentence was not an option.
Given the number and range of offences committed by the applicant, there would have been many ways of constructing the appropriate sentence. In my view, the final result was within the discretion which it was open to Judge Viol to exercise. Having regard to the totality principle as expressed in Vlek (supra) the aggregate sentence imposed on the applicant was not "inappropriately long having regard to the course of criminal conduct viewed as a whole". I am not persuaded that a different sentence should have been passed. I would therefore refuse leave to appeal.
There is a further point. Although not the subject of an appeal, it emerged during the hearing that Judge Viol had erred in disqualifying the applicant from holding a driving licence for a period of twelve months. Judge Healy had made that order on 21 August 2000 (AB 55). It was not affected by the cancellation of the ISO. No further suspension was required.
The sentence imposed by Judge Viol should be amended accordingly.