Dowell v The State of Western Australia
[2008] WASCA 153
•17 JUNE 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DOWELL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 153
CORAM: STEYTLER P
McLURE JA
MILLER JA
HEARD: 17 JUNE 2008
DELIVERED : 17 JUNE 2008
PUBLISHED : 24 JULY 2008
FILE NO/S: CACR 40 of 2008
BETWEEN: STEVEN DOWELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND BUN 38A of 2006
Catchwords:
Criminal law - Appeal - Breach of intensive supervision order - Eight breaches by reason of one failure to report - Whether effective sentence of 18 months' imprisonment appropriate - Sentence reduced to 6 months' imprisonment
Legislation:
Sentencing Act 1995 (WA), s 70, s, 71, s 72(4), s 73, s 73(2)
Result:
Appeal allowed
Sentences adjusted
Aggregate sentence of 6 months' imprisonment imposed
Category: B
Representation:
Counsel:
Appellant: Ms R M Parks
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
STEYTLER P: I have had the advantage of reading the other judgments. The reasons of McLure JA reflect my own reasons for joining in the orders made by the court on 17 June 2008.
McLURE JA: The facts are detailed in the reasons for judgment of Miller JA. These are my reasons for joining in the orders made by the court on 17 June 2008, including the order reducing the aggregate term of 18 months' imprisonment to 6 months' imprisonment.
The appellant originally claimed that the individual and aggregate sentences were manifestly excessive on the ground that the learned sentencing judge imposed the wrong type of sentence. The appellant claimed a suspended term of imprisonment was the appropriate penalty. During the course of the appeal hearing, the State conceded that the length of a number of the individual sentences and the aggregate sentence were outside an appropriate sentencing range. The State suggested an aggregate term of 8 months' imprisonment. In light of the State concession, and acting on her client's instructions, the appellant's counsel did not press for a suspended term of imprisonment. No doubt that was because in the unusual circumstances of the case, a suspended term of imprisonment would be more onerous than the penalty suggested by the State.
Based on the information before the sentencing judge and this court, the State's concession of error was correctly made. However, the information was deficient in significant respects. First, there was no information as to the nature and extent of the breaches of the first ISO made on 9 August 2004. I infer the breaches were unlikely to be significant having regard to the penalty imposed by Martino DCJ on 17 November 2006, being a second ISO for a period of 12 months for all offences. Secondly, the only proven breaches of the second ISO related to a failure to comply with a single direction of a community corrections officer (CCO) to report on a single occasion. Although other alleged failures were referred to by the State, there was no evidence as to whether a CCO had given a direction or made an order affecting the appellant. It was not known whether the statutory obligation in s 71(4) of the Sentencing Act 1995 (WA) applied (which requires an offender to contact a CCO at least once in 28 days) or whether a CCO had otherwise ordered.
The appellant's counsel described her client to the sentencing judge as a fairly simple, unsophisticated person who had difficulty managing what was a complicated domestic arrangement which included looking
after a 4‑year‑old child with behavioural difficulties. There was no basis in the evidence to conclude that the appellant's proven breach reflected a defiant or contemptuous attitude to his obligations under the ISO. Moreover, the appellant had not committed any offence after the first ISO was imposed on 9 August 2004. Having regarding to all relevant factors, I was satisfied the sentences imposed by the sentencing judge were manifestly excessive.
MILLER JA: At the hearing of this appeal, the court quashed the sentence of 18 months' imprisonment imposed upon the appellant and substituted for it a sentence of 6 months' imprisonment, with an order for eligibility for parole, such sentence commencing on 25 February 2008. The following are my reasons for joining in that decision of the court.
District Court 26 February 2008
On 26 February 2008, the appellant was sentenced in the District Court at Bunbury to an effective term of 18 months' imprisonment to commence on 25 February 2008, with an order for eligibility for parole.
District Court 9 August 2004
The appellant first came before the District Court on 9 August 2004. He pleaded guilty to six counts. They were offences of aggravated burglary, stealing a motor vehicle (two), stealing a strobe light, unlawful destruction of a motor vehicle (criminal damage by fire) and stealing.
In consequence of the appellant's pleas of guilty, the sentencing judge placed the appellant on an intensive supervision order (ISO) for 24 months. There was a programme requirement and a requirement that the appellant do 150 hours of community work.
District Court 17 November 2006
On 17 November 2006, the appellant was again before the District Court. On this occasion, he admitted to breaching the ISO imposed on 9 August 2004 and admitted to two further offences. They were offences which had been committed on 9 June 2004. They are aggravated burglary and unlawful damage.
On 17 November 2006, the appellant was placed on a further ISO for a period of 12 months. There was a programme requirement. This requirement was imposed pursuant to s 73 of the Sentencing Act1995 (WA).
Section 73(2) of the Sentencing Act details what a programme requirement is:
(2)The programme requirement is a requirement that the offender must obey the orders of a CCO as to -
(a)undergoing assessment by a medical practitioner, a psychiatrist, a psychologist or a social worker, or more than one of them and, if necessary, appropriate treatment;
(b)undergoing assessment and, if necessary, appropriate treatment in relation to the abuse of alcohol, drugs or other substances;
(c)attending educational, vocational, or personal development programmes or courses;
(d)residing at a specified place for the purposes of any of the matters in paragraphs (a), (b) or (c);
(e)more than one of the above.
These are standard obligations for every ISO contained within s 70 of the Sentencing Act, which reads as follows:
70.ISO: standard obligations
The standard obligations of an ISO are that the offender -
(a)must report to a community corrections centre within 72 hours after being released by the court, or as otherwise ordered by a CCO;
(b)must not change address or place of employment without the prior permission of a CCO;
(c)must not leave Western Australia except with, and in accordance with, the permission of the CEO (corrections); and
(d)must comply with section 76 of the Sentence Administration Act 2003.
Every ISO contains a supervision requirement, the details of which are contained within s 71 of the Sentencing Act as follows:
71.Supervision requirement
(1)The purpose of the supervision requirement is to allow for the offender to be regularly monitored in the community, and to receive regular counselling, in a way and to an extent decided by a CCO [Community Corrections Officer], for the purpose of either or both -
(a)rehabilitating the offender;
(b)ensuring the offender complies with any direction given by the court when imposing the requirement.
(2)The supervision requirement is a requirement that the offender must contact a CCO, or receive visits from a CCO, as ordered by a CCO.
(3)When imposing an ISO, a court may give any directions it decides are necessary to secure the good behaviour of the offender but the court is not to make a direction —
(a)the effect of which could be achieved by imposing a programme requirement or a community service requirement; or
(b)that requires the offender to pay compensation or make restitution to any person; but that does not prevent a court from making a reparation order under Part 16.
(4)Unless a CCO orders otherwise, an offender subject to a supervision requirement must contact a CCO at least once in any period of 28 days.
(5)If an offender does not comply with subsection (4), he or she is to be taken to have breached the supervision requirement.
(6)The supervision requirement ceases to be in force when the ISO ceases to be in force.
On any view of it, the appellant was very fortunate to have been given another ISO on 17 November 2006. The combination of offences for which he was sentenced was such as to suggest that a sentence of imprisonment to be served immediately would have been the only appropriate disposition.
Magistrates Court 27 June 2007
On 27 June 2007, the appellant was convicted in the Magistrates Court in Bunbury of breaching the ISO of 17 November 2006. The convictions were for eight failures to report to the Community Corrections Officer (CCO) on 27 June 2007 as directed on 20 June 2007. In point of fact, there was one failure to report, but the eight failures were calculated by reference to the eight offences for which the ISO on 17 November 2006 had been imposed. The appellant admitted the breaches and was committed to the District Court for sentence.
When committed, there were eight charges formulated. They were numbered 078826‑078833 inclusive. The first of them (078826) is a sufficient example of the nature of the charges. It was in the following terms:
Name:Steven DOWELL
Offences:No 1 of 8
Date/Period: 27th day of June 2007
Place:BUNBURY
Description: Being an offender subject to a Community Order made by the Bunbury District Court on the 17th day of November 2006 in respect of the offences of Aggravated Burglary breached the Intensive Supervision Order by failing to report to his Community Corrections Officer on the 27th day of June 2007 contrary to the direction to do so on the 20th day of June 2007.
Written Law: Section 131(1) of the Sentencing Act 1995.
Each charge related to one of the eight offences for which the 17 November 2006 ISO had been imposed. As I have pointed out, six of those related to the offences for which the 9 August 2004 ISO had originally been imposed.
District Court 25 February 2008
When the appellant came before Groves DCJ in the District Court at Bunbury on 25 February 2008, he was put up and the transcript reveals the following exchange:
CLERK OF ARRAIGNS: It is alleged that on 17 November 2006 in the District Court at Bunbury you were convicted on indictment Bunbury 38 of 06 of aggravated burglary and damage property and you were breached on indictment Bunbury 6904 of one count of aggravated burglary, one count of steal a motor vehicle, one count of steal a motor vehicle and drive recklessly, one count of damage by fire and two by stealing.
On 17 November 2006 you were sentenced in respect of all those offences to an intensive supervision order for a period of 12 months with program requirements as directed by the Community Justice Service. On 27 June 2007 in the Magistrates Court Bunbury you were convicted of breach of the intensive supervision order by eight times failing to report to your community corrections officer on 27 June 2007 as directed on 20 June 2007. Do you admit those allegations?
THE ACCUSED:Yes.
THE CLERK OF ARRAIGNS: You have therefore admitted a breach of the intensive supervision order aforesaid and have become liable to be sentenced for the offence of aggravated burglary and damage property in respect of which the intensive supervision order was made. Being now called upon, have you anything to as to say why sentence should not be passed upon you according to the law?
GROVES DCJ:Ms Parks?
PARKS, MS: There's no reason why the law should not take its course ...
The prosecutor then stated the facts. He did this by reading directly from a Statement of Breach Facts to the following effect:
STOCKDALE, MR: The breach of the - just reading directly from the statement of breach facts. Dowell was released from court on 17 November 2006 and reported in person on that day. He reported again as directed on 22 November, 29 November and 7 December 2006. On 4 January 2007 he failed to report in person but telephoned that day. It was noted that a referral for urinalysis was prepared on 13/12/2006. There are no documented results from any testing.
Despite efforts to re-establish contact through mail and a relative there has been a hiatus in the continuity of Dowell's supervision for some period of time. He was eventually contacted at home on 20 June 2007 and directed to report in person on 27 June 2007 which he failed to do. There has been no additional contact.
GROVES DCJ: Sorry, when was the last contact?
STOCKDALE, MR: The last contact, your Honour, would have been on 7 December 2006 when he was contacted at home by community corrections.
GROVES DCJ: That is just one month after having been placed on the order by Judge Martino.
STOCKDALE, MR: Yes, your Honour, and then subsequently to that he was contacted on 20 June and directed to report but failed to do so.
There was no evidence before the court of any particular direction from a CCO in relation to the obligation of the appellant to report, other than that which was contained within the Statement of Breach Facts. This statement contained the following passage:
Supervision Requirement
•Dowell was released from the court on the 17/11/2006 and reported in person on that day. He reported again as directed on the 22/11/2006, 29/11/2006 and 7/12/2006 * (when he was contacted at home*). On the 4/1/2007 he failed to report in person but telephoned that day.
•It is noted that a referral for urinalysis was prepared on the 13/12/2006. There are no documented results from any testing.
•Despite efforts to re-establish contact through mail and a relative (partner) there has been a hiatus in the continuity of Dowell's supervision for some period of time.
•He was eventually contacted at home on the 20/6/2007 and directed to report in person on the 27/6/2007 which he failed to do.
•There has been no additional contact.
Program Requirement
It seems that no assessment or referral for counselling has been undertaken.
The evidence therefore reveals that a CCO contacted the appellant on 20 June 2007 and directed him to report on 27 June 2007. In addition, under s 72(4) of the Sentencing Act, unless a CCO had ordered otherwise, the appellant had an obligation to contact a CCO at least once in any period of 28 days. The Statement of Breach Facts reveals that there was no contact with a CCO from 7 December 2006 onwards.
In any event, the requirement to report on 27 June 2007 was not met and it was this failure that led to the eight charges of breaching the ISO of 17 November 2006.
Groves DCJ misunderstood the nature of the charges that the appellant faced. He said:
Despite that on 27 July 2007 in the Magistrates Court you were convicted on eight counts of breaching the intensive supervision order by failing to report. What that tells me is that you simply had no regard to the benefit and opportunity which you were afforded by the sentencing judge. You simply ignored the order, didn't make contact with community corrections despite apparently repeated attempts by them and despite the fact, as you were told by the sentencing judge, that they are reasonable people and that they would have regard to your circumstances.
This passage indicates that Groves DCJ understood there to be a total ignorance of the order of 17 November 2006 and a repeated refusal to make contact with a CCO. It may be that Groves DCJ also understood there to have been eight failures to report, when in fact there was one failure to report which led to eight charges because the one failure to report related to the eight offences which were the subject of the ISO.
By reason of the appellant's breach of the ISO of 17 November 2006, he came before the court to be resentenced in respect of all offences which were the subject of that order. They included the six offences which had been the subject of the original 2004 order.
Groves DCJ said that he had no confidence that if the appellant was placed on a further community order, or a suspended sentence of imprisonment (with conditions), he would comply with such an order. His Honour felt that he was left with little alternative other than to impose a sentence of imprisonment to be served immediately. He took into account the appellant's early pleas of guilty, his remorse, age, co‑operation with police and the other matters which were contained within a pre‑sentence report and then imposed sentences which are documented on the certificate of final outcome as follows:
Appeal
The appellant was granted leave to appeal from the aggregate sentence imposed by the sentencing judge. The grounds of appeal are as follows:
1.The learned Judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offending and the appellant personally.
Particulars
(a)The learned Judge erred by failing to give sufficient weight to the following factors:
(i)The appellant's early plea of guilty
(ii)The fact that the appellant had not offended since 9 June 2004
(iii)The appellant's personal circumstances including caring for a 4 year old child
2.The learned Judge erred in law by failing to properly consider all other sentencing options available in the circumstances, including a suspended term of imprisonment
Particulars
(a)The learned Judge failed to consider all of the circumstances of the offender including:
(i)the appellant's early plea of guilty
(ii)the appellant's remorse
(iii)the appellant's age
(iv)the appellant's cooperation with the police
(v)matters in the pre‑sentence report
in determining that he was not satisfied that the term of imprisonment should be suspended.
At the hearing of the appeal, counsel for the respondent made a concession. He said that because the appellant had served a term of approximately 4 months' imprisonment, and 'given the time that had elapsed', the State would be content for the sentence of 18 months to be adjusted so that the appellant would be eligible for release from prison. This could be done by imposing an effective sentence of 8 months' imprisonment with an order for eligibility for parole.
Counsel for the appellant took instructions on the matter, and informed the court that the appellant would be content to see the matter resolved by the effective term of 18 months' imprisonment being reduced to one of 8 months' imprisonment with eligibility for parole.
In the event, the court agreed that a reduction in the aggregate sentence would be a practicable outcome of the appeal. It would have been appropriate to have quashed the sentences of imprisonment to be served immediately and to have imposed in lieu a suspended term of imprisonment, but in the circumstances of the case a more practical outcome was to substitute for the sentence of 18 months' imprisonment an effective sentence of 6 months' imprisonment.
The appeal was allowed, the sentences adjusted and an aggregate sentence of 6 months' imprisonment imposed. The order for that sentence to commence on 25 February 2008 remains. If it were necessary to make an order for eligibility for parole, such an order was also made.
The sentences on the eight offences which were the subject of the ISO of 17 November 2006 were amended to read as follows:
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