Dobaj v The Queen
[2000] WASCA 7
•31 JANUARY 2000
DOBAJ -v- THE QUEEN [2000] WASCA 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 7 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:3/1999 | 1 NOVEMBER 1999 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 31/01/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| PDF Version |
| Parties: | BORIS ALVIS DOBAJ THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Armed robbery and stealing a motor vehicle Offences committed whilst on parole Total effective sentence of 7 years and 8 months with no order for parole and made partially cumulative An early sentence Whether parole order should have been made Held discretion did not miscarry |
Legislation: | Nil |
Case References: | Nil Australian Coal v Commonwealth (1956) 94 CLR 621 Bugmy v The Queen (1990) 169 CLR 525 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Deakin v The Queen (1984) 58 ALJR 367 House v The King (1936) 55 CLR 499 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Lam v The Queen, unreported; CCA SCt of WA; Library No 960492; 5 August 1996 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Power v The Queen (1974) 131 CLR 623 R v Duffy (1996) 85 A Crim R 456 R v Greenwood, unreported; CCA SCt of WA; Library No 960277AB; 21 May 1996 R v McAndrew [1999] WASCA 124 R v Peterson [1984] WAR 329 R v Weng Keong Chan (1989) 38 A Crim R 337 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Thompson v The Queen (1992) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DOBAJ -v- THE QUEEN [2000] WASCA 7 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Armed robbery and stealing a motor vehicle - Offences committed whilst on parole - Total effective sentence of 7 years and 8 months with no order for parole and made partially cumulative - An early sentence - Whether parole order should have been made - Held discretion did not miscarry
Legislation:
Nil
Result:
Leave refused
(Page 2)
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Mr R E Cock QC & Ms J Andretich
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Australian Coal v Commonwealth (1956) 94 CLR 621
Bugmy v The Queen (1990) 169 CLR 525
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Deakin v The Queen (1984) 58 ALJR 367
House v The King (1936) 55 CLR 499
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lam v The Queen, unreported; CCA SCt of WA; Library No 960492; 5 August 1996
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Power v The Queen (1974) 131 CLR 623
R v Duffy (1996) 85 A Crim R 456
R v Greenwood, unreported; CCA SCt of WA; Library No 960277AB; 21 May 1996
R v McAndrew [1999] WASCA 124
R v Peterson [1984] WAR 329
R v Weng Keong Chan (1989) 38 A Crim R 337
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
(Page 3)
Thompson v The Queen (1992) 8 WAR 387
(Page 4)
1 PIDGEON J: The applicant appeared before Miller J and pleaded guilty to a count of stealing a motor vehicle and to a further count of armed robbery in company. The offences were committed whilst he was on parole. He was sentenced to a total effective term of 7 years and 8 months imprisonment. The term was made partly cumulative upon an earlier sentence, this being the sentence in respect of which he was serving parole and which parole was cancelled. His Honour stated further that there would be no parole order in respect of the sentences he was imposing. The applicant is seeking leave to appeal on two grounds. The first is that the sentence is manifestly excessive having regard to the applicant's age, his personal circumstances, his early plea of guilty, his lesser role in the commission of the offence and the totality principle. This ground was not argued. The second ground, being the principle ground, is that his Honour erred in not making a parole order.
2 The applicant was born in 1970 and has accumulated a significant record. His Honour referred to what he described as the most significant convictions. These were, firstly, a conviction on 19 April 1990 of armed robbery for which the appellant received a sentence of 4 years 6 months. The second was a conviction for burglary on 28 August 1995 for which he received a sentence of 2 years. The third matter to which his Honour referred was a conviction for burglary on 25 January 1996 for which the applicant received a sentence of 12 months. He was released from prison on parole on 25 March 1998. The offences, the subject of this appeal occurred on 8 and 10 October 1998. On the first of those dates, at about 6am, the applicant went to a block of flats in Maylands. He forced entry to a Ford Fairmont sedan and started it by turning the dipstick from the oil reservoir into the ignition. He then drove away and picked up two other persons. They drove the vehicle to Kalgoorlie where they used it for two days and, during this time, used it to commit the armed robbery offence I am about to describe. Later the vehicle was taken to a salt lake 10 km south of Kalgoorlie and set alight. His Honour found it was completely burnt out. The vehicle was valued at $3,400 and was a complete loss to the owner.
3 The facts relating to the second offence were that on 10 October, after the applicant had been using the vehicle for two days or so, he and the two others drove to Kambalda. They were looking for premises from which they could steal money and they ultimately decided upon the Kambalda Liquor Store. One of the others took control of the vehicle while the applicant and the other each disguised themselves with clothing. The two entered the premises and threatened a 50-year-old female attendant with a large butcher's knife. She opened the till and allowed
(Page 5)
- them to remove $900 in money. The sentencing Judge said to the applicant:
"It has been put by your counsel that you were initially unaware of the fact that your co-offender had a knife, that whilst in the liquor store you actually took possession of the knife. There is no evidence as to how the attendant was threatened other than the fact that the butcher's knife was clearly visible. The vehicle that you were driving was the stolen vehicle to which I have referred. It was destroyed for the purpose of removing any possible fingerprints on it."
5 The first ground was, as I mentioned not argued but it was not abandoned. It is clearly without merit. The offence of stealing and then destroying a motor vehicle belonging to another person is one of particular seriousness. His Honour referred to this factor. It must normally attract a cumulative sentence and I would see the sentence of 8 months imprisonment as being extremely lenient and well below what may normally be expected. It is clearly taking into account the totality principle and the early plea. The term of 7 years imprisonment for an armed robbery, as serious as the one I have described, is well within range particularly when the offender has not the mitigating factor of its being his first serious offence. I would see the combined sentence as moderate taking into account the early plea and the totality principle. These factors were further given effect to by making the sentence only partly cumulative on the earlier sentence. His Honour made particular mention of the early plea.
6 The ground on which the argument was based was the failure to order eligibility for parole. The pre-sentence report referred to the seriousness of the present offences, his past poor performance on community supervision, his high risk of re-offending and serious risk to
(Page 6)
- the community and expressed the view that he was not considered suitable for a community based order. The report then said "should he make effective use of the opportunities provided to him if a prison term is imposed, eligibility for release to parole is supported".
7 His Honour's reasons for not ordering parole were (AB21):
"I turn to the question of parole. I have already referred to the comment in the pre-sentence report about parole. It's a tentative comment and suggests that should you make effective use of the opportunities provided to you in prison eligibility for parole is supported. Just what those opportunities will be, what you will make of them, is unknown. The crown prosecutor urged that you should not be granted parole because of your past poor performance on parole. As he put it, there is nothing to trigger parole in your circumstances. There must be some prospect of benefit to you or the community by offering you parole but none, it seems to me, is present in this case.
I have looked carefully at your record and considered carefully your personal circumstances and the pre-sentence report. Given that you were released to parole on 25 March 98 with an expiry date on 24 March 2000 Subsequently amended to 26 March 2002 when it was ascertained that this was the actual release date. and you committed these offences within approximately 6 months of that time, I do not consider it appropriate to make you eligible for parole."
8 The fact that the applicant has committed offences as serious as these whilst on parole is an important factor to weigh up and take into account. It would undermine the principle and theory of parole if the Court was too ready to overlook a breach as serious as this. A contributing factor has been his addiction to heroin. To be taking heroin was of itself a breach of a condition under which he was on parole. His Honour said in respect of this that the applicant had failed to take advantage of parole and that he was at risk of reoffending because he did not seem to appreciate the link between drug abuse and reoffending. There was no positive factor present to bring into operation his Honour's discretion to grant parole. I do not consider that it could be said his Honour's discretion miscarried. I would refuse leave.
9 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the order proposed by his Honour.
(Page 7)
10 MURRAY J: I agree that, for the reasons given by Pidgeon J, there is no merit in this appeal. Leave to appeal should be refused.
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