Dowson v Youlden
[2001] WASCA 369
•23 NOVEMBER 2001
DOWSON -v- YOULDEN [2001] WASCA 369
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 369 | |
| Case No: | SJA:1151/2001 | 5 NOVEMBER 2001 | |
| Coram: | WHEELER J | 23/11/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | PAUL DAVID DOWSON PAUL YOULDEN |
Catchwords: | Justices Appeal Sentence Parole eligibility Administrative error Turns on own facts Justices Appeal Sentence Totality principal Turns on own facts Justices Appeal Sentence Offender not personally present |
Legislation: | Sentencing Act 1995, s 14 |
Case References: | Heryadi v The Queen, unreported; CCA SCt of WA; Library No 980113; 12 March 1998 Jarvis v The Queen (1998) 20 WAR 201 Pearce v The Queen (1998) 194 CLR 310 Sheppard v Blakey [2001] WASCA 309 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Lowndes v The Queen (1999) 195 CLR 665 The Queen v Legg [1998] WASCA 90 Thompson v The Queen (1992) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAUL YOULDEN
Respondent
Catchwords:
Justices - Appeal - Sentence - Parole eligibility - Administrative error - Turns on own facts
Justices - Appeal - Sentence - Totality principal - Turns on own facts
Justices - Appeal - Sentence - Offender not personally present
Legislation:
Sentencing Act 1995, s 14
Result:
Appeal allowed in part
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr M M Flynn
Respondent : Mr S J Wright
Solicitors:
Appellant : Director of Legal Aid
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Heryadi v The Queen, unreported; CCA SCt of WA; Library No 980113; 12 March 1998
Jarvis v The Queen (1998) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 310
Sheppard v Blakey [2001] WASCA 309
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
Lowndes v The Queen (1999) 195 CLR 665
The Queen v Legg [1998] WASCA 90
Thompson v The Queen (1992) 8 WAR 387
(Page 3)
1 WHEELER J: This is an appeal from decisions given in the Court of Petty Sessions on 9 January 2001 and on 5 June 2001. On the former occasion a total effective sentence of 12 months' imprisonment, apparently without eligibility for parole, was imposed upon the appellant, while on the second occasion he received a total effective sentence of 15 months' imprisonment with eligibility for parole. The history of the matters is set out below.
Background
2 Between 13 December 1999 and 4 December 2000 the appellant committed 42 offences for which he was sentenced on three occasions. On 5 December 2000 he pleaded guilty in the District Court to one count of aggravated burglary committed on 16 October 2000 and was sentenced to 18 months' imprisonment with parole eligibility. He had not apparently at that stage been charged with any other offences. On 29 December 2000 complaints were laid against him alleging 11 offences and on 9 January 2001 he pleaded guilty to those in the Court of Petty Sessions at Rockingham. On 9 February 2001 complaints were laid against him alleging the final 30 offences and he pleaded guilty to those on 5 June 2001. I will set out the details of those offences later.
Grounds of appeal
3 The grounds of appeal are as follows:
"(a) With respect to the sentence imposed on 9th January 2001, the learned Magistrate erred in not making a parole eligibility order.
(b) With respect to the sentence imposed on 9th January 2001, the learned Magistrate erred in refusing to apply the 'totality principle' which required the consideration of the sentence of 18 months' imprisonment imposed upon the Applicant on 5 December 2001 when formulating the sentence of 9th January 2001.
(c) With respect to the sentence imposed on 5 June 2001, the learned Magistrate erred in refusing to apply the 'totality principle' which required consideration of the sentence of 18 months imprisonment imposed upon the Applicant on 5 December 2001 and the sentence of 12 months'
(Page 4)
- imprisonment imposed on 9th January 2001 when formulating the sentence of 5 June 2001.
- (d) With respect to the sentence imposed on 5th June 2001, the learned Magistrate erred in imposing a sentence that was manifestly excessive.
(e) With respect to the sentence imposed on 5th June 2001, the learned Magistrate erred in first arriving at a global term of imprisonment said to be proportionate to the totality of the offending and then dividing that term up into discrete sentences.
(f) With respect to the sentence imposed on 5th June 2001, the learned Magistrate erred in imposing a sentence when the Applicant was not personally present in court, see s 14(1) Sentencing Act 1995 (WA)."
The appellant's offences
4 Details of the offences for which the appellant was sentenced, and the sentences imposed, on 9 January 2001 are as follows:
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disqualified |
2000 |
cumulative |
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(Value: $126) |
2000 |
concurrent |
|
(Value: $2000) |
Dec. 2000 |
cumulative |
|
(Value: $1669) |
2000 |
concurrent |
|
(Value: $80) |
2000 |
concurrent |
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|
|
|
|
Accident |
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|
|
|
|
|
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Disqualified |
|
concurrent |
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|
|
|
|
change of address |
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|
(Page 5)
5 The details of the offences of which the appellant was convicted, and sentences imposed on 5 June 2001 are as follows:
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|
|
|
(Value: $400) |
1999 |
concurrent |
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(Value: $50) |
1999 |
concurrent |
|
(Value:$100) |
2000 |
concurrent |
|
(Value: $25) |
2000 |
concurrent |
|
(Value: $3110) |
2000 |
cumulative |
|
(Value: $230) |
2000 |
cumulative |
|
(Value: $42) |
2000 |
concurrent |
|
(Value: $20) |
2000 |
concurrent |
|
(Value: $28) |
2000 |
concurrent |
|
(Value: $90) |
2000 |
cumulative |
|
(Value: $18) |
2000 |
concurrent |
|
(Value: $57) |
2000 |
concurrent |
|
(Value: $20) |
2000 |
concurrent |
|
(Value: $92) |
2000 |
concurrent |
|
(Value: $20) |
2000 |
concurrent |
|
(Value: $86) |
2000 |
concurrent |
|
(Value: $50) |
2000 |
concurrent |
|
(Value: $45) |
2000 |
concurrent |
|
(Value: $70) |
2000 |
concurrent |
|
(Value: $50) |
2000 |
concurrent |
|
(Value: $25) |
2000 |
concurrent |
|
(Value: $61) |
2000 |
concurrent |
(Page 6)
|
(Value: $15) |
2000 |
concurrent |
|
(Value: $50) |
2000 |
concurrent |
|
(Value: $20) |
2000 |
concurrent |
|
(Value: $42) |
2000 |
concurrent |
|
(Value: $120) |
2000 |
concurrent |
|
(Value: $50) |
2000 |
concurrent |
|
(Value: $410) |
2000 |
cumulative |
|
(Value: $165) |
2000 |
concurrent |
6 The appellant's circumstances were not unusual for persons convicted of these type of offences. He was 26 years of age and from the age of about 18 had committed a number of offences, mainly of a driving and burglary type. His parents separated when he was young and he was in constant conflict with his stepfather, leaving home at the age of 14 years. He has been in a de facto relationship for approximately five years and has a young child of about 18 months of age but had separated from his de facto spouse. Except for casual employment, he has been mainly unemployed for the last five years or thereabouts. He has no trade or other qualifications. He has been offered employment by his father as an assistant in mussel farming upon his release.
7 His offending appears to be related principally to substance abuse. He had been drinking excessively until about three years ago. He had been a user of cannabis when young and an occasional user of amphetamines. However, his principal drug at present is morphine and he has expressed a desire to attend a substance abuse treatment program for his morphine dependency. Although his response to supervision in the past had not been good, his attitude appeared to have improved in recent times.
Ground (a) for parole eligibility 9 January
8 It appears that on 9 January no submissions were made to her Worship in relation to whether a parole eligibility order should be made. Her Worship made no reference to parole; in particular, she neither
(Page 7)
- expressly declared that the appellant was not to be eligible for parole, nor gave any reasons why in her view parole would not be appropriate.
9 Although submissions on each side were addressed to me on the basis that her Worship had determined not to make a parole eligibility order, and canvassing the question of whether such a determination was in error, it is my view that the premise of the submissions is unlikely to be correct. The appellant was a relatively young man and, despite his history of offending and poor response to supervision in the past, there was some basis for expecting that, as he was maturing, substance abuse treatment might be useful in his rehabilitation and that a period on parole, during which he could be supervised, might well reduce the risk of his offending in future. That was plainly the view formed by Hammond CJDC in sentencing him the month before. It is likely that an experienced Magistrate would have reached a similar view; in that context, I note that the same Magistrate did make an order for parole eligibility in June. It is unlikely that an experienced Magistrate who was proposing not to make a parole eligibility order should allow that issue to go by default, neither expressly declining to make such an order nor giving any reason why parole would not be appropriate.
10 It appears to me that it is likely that her Worship's failure to make the appellant eligible for parole on 9 January 2001 demonstrates no error of law, but is a simple oversight of the type which can easily occur in a busy court. It is unfortunate that her counsel did not notice the absence of any reference to parole, and clarify the matter with her at the time. However, the matter now having come to the attention of this Court, it is appropriate to allow the appeal in that respect and to vary the order of 9 January 2001 so as to order that the appellant be eligible for parole.
Ground (d) sentence 5 June
11 The submission which is made in relation to this ground is that a global sentence of 15 months' imprisonment is "plainly disproportionate" to the overall course of criminal conduct having regard to the offence dates, value of property involved and the early plea of guilty, against the background of the appellant's circumstances.
12 The period of offending is a lengthy one. It is true that by far the majority of the offences were committed between 6 and 18 November 2000. However, there were also offences in October and September of that year, and one further set of offending in December 1999. The majority of the offences came in pairs, in the sense that the appellant
(Page 8)
- either received or stole goods and then on the same day, falsely pretended to be the owner of the relevant goods and pawned them. There were also, however, some separate stealing offences. The value of the goods appears to have ranged from a low of around $40 up to a little over $3,000, with the goods in the majority of cases being valued at something under $100. The actual sentences imposed ranged from 2 months' imprisonment in respect of one of the stealing offences, to six months in relation to the receiving of the property valued at over $3,000. The majority of the sentences were of 3 months' imprisonment and were concurrent with each other.
13 It appears from the transcript that there may at one time have been a recommendation by a Community Corrections Officer that there either be sentences of imprisonment concurrent with those imposed in January, or a non-custodial sentence, in relation to these offences. That recommendation was plainly rejected by her Worship.
14 It does not appear to me that sentences totalling 15 months' imprisonment in respect of the 30 offences which I have broadly described, were so manifestly excessive as to disclose error. The offences were, as I have noted, committed over a period of time. While the value of the property was not great in each case, the sheer number of offences reveals a significant degree of criminality. The appellant was able to obtain the benefit of a plea of guilty, but there is nothing to suggest that he voluntarily disclosed the offences or that he should be given other than the minimum degree of credit for that plea. He was not able to benefit from the mitigation which would have attached to a very young offender, or to a person with no significant history of offending. It is my view that this ground of appeal cannot succeed.
Grounds (b) and (c) – the totality principle
15 The question of what would be the total appropriate sentence for the conduct involved, having regard to the sentence or sentences already imposed upon the appellant, was a matter which was raised by counsel for the appellant in both January and June. On each occasion, the submissions made were largely in terms of whether sentences should be imposed cumulatively or concurrently. It was conceded that there was no "one transaction", so as to require the imposition of concurrent sentences on that basis.
16 It is, however, submitted by the appellant, that the transcript reveals that the learned Magistrate "refused" to apply the totality principle in the
(Page 9)
sense of failing to adjust the January sentence to take account of the fact that the appellant was already serving a term of imprisonment imposed by the District Court, and by failing to adjust the June sentence so as to reflect the two earlier periods of imprisonment.
17 It is true that her Worship did not expressly direct herself in this way. It is clear from the transcript that she was on each occasion aware of earlier sentences imposed upon the appellant. On the occasion in January she specifically complained of the difficulty which was created for her when counsel raised that earlier sentence without there being available to her an appropriate level of detail about what had occurred on that occasion.
18 The failure by a decision-maker to mention a matter expressly does not necessarily give rise to an inference that it was not considered. This is particularly so in the Court of Petty Sessions, where it is sufficient if a Magistrate's reasons disclose the essential intellectual process by which the decision was arrived at. In the absence of credible evidence to the contrary, it is to be assumed that a Magistrate has complied with the duties imposed by legislation and taken relevant matters into account: see Sheppard v Blakey [2001] WASCA 309 per McLure J at [25].
19 As I understood it, the submission that her Worship failed to have regard to the totality principle in the relevant sense arises from two matters. The first is her Worship's emphasis upon the question of whether sentences should be concurrent rather than cumulative, and the absence of any reference to other adjustments which the totality principle might require. The second is, it is submitted, that the sentences are in their totality excessive. So far as the first matter is concerned, her Worship dealt expressly with the submission which was before her in relation to concurrency or otherwise of sentence. The only indications in the transcript which are available suggest to me that her Worship was aware of other implications of the totality principle. In January, as I have noted, she referred to the difficulty of her task in those circumstances. In June she made remarks to the effect that, "If these matters had been before the court freshly on their own, the court would have obviously had to look very seriously at imprisonment". In its context, it appears to me that her Worship was indicating that she regarded the offences as serious "on their own" but that she was aware that they had to be adjusted by having regard to their broader context.
20 I am not persuaded by the submission that the sentences are, as a matter of totality, excessive. In this context, I would wish to make one
(Page 10)
observation. While I accept that, as this Court has on a number of occasions pointed out, it will often be the case that not as much emphasis is required in passing a second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case (Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, Jarvis v The Queen (1998) 20 WAR 201) it is the issue of proportionality between the total sentence imposed and the totality of the offending which is of principal importance. It may be, on occasion, that the offences for which an offender is sentenced on a later occasion reveal that a relatively lenient sentence has been imposed on the earlier occasion or occasions, because the offender may have had the advantage of presumptions which are not correct. In this instance, for example, it seems clear enough that the appellant presented before Hammond CJDC as a person who, whilst he had a significant history of offending, had committed only one offence at about the relevant time. The prospects for his successful rehabilitation, and no doubt the genuineness of his remorse, were assessed against that background. The offences which later came before her Worship revealed that he had been about the relevant time engaged in extensive – indeed for a short period almost continuous – criminal conduct. When one considers the total sentence imposed of some 45 months for the 42 offences to which I have referred, it does not seem to me that the submission that her Worship disregarded the totality principle can be made out.
Grounds (e) and (f) – sentencing procedure
21 This matter arose it appears because her Worship sentenced the appellant in June by way of video link. On that occasion her Worship said:
"Because of the number of charges – and this is on video link; I am not going to particularise these matters as far as sentence is concerned; I will do that and mark these afterwards – in my view the total imprisonment on this matter will be (indistinct) ... imprisonment for a period of 15 months, which is cumulative."
- Shortly thereafter her Worship said:
"So the totality is 15 months' cumulative, and I will go through them in chambers and notify them on the complaints before me of the particulars. I cannot see any reason for a concurrent sentence in these circumstances."
(Page 11)
22 The first error which her Worship is said to have made is in first arriving at a global term of imprisonment said to be proportionate to the totality of the offending and then dividing that term up into discrete sentences. A short answer to this submission is that I am by no means convinced that this is what her Worship did. What she said on the video link is consistent either with her Worship having noted, at some time during the course of submissions, or immediately prior to sentencing, in her own mind or on some document other than the complaints what would be an appropriate sentence in respect of each of the relevant complaints, and indicating during the course of the video that she would not take time to endorse each complaint until a later time. It is also possible that she did make the error contended for by the appellant, but it is not possible to determine simply by reading the transcript which of these two courses her Worship took. Even if she did make the error suggested, it has not been demonstrated that the sentences imposed were disproportionate and they should not in my view be disturbed for that reason alone (see Heryadi v The Queen, unreported; CCA SCt of WA; Library No 980113; 12 March 1998, per Malcolm CJ at 8).
23 So far as the final ground is concerned, s 14(1) of the Sentencing Act provides:
"A court is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under section 14A."
24 In Pearce v The Queen (1998) 194 CLR 310, McHugh, Hayne and Callinan JJ said that "A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence ... ". Accepting that that is what is meant by the expression to "sentence" an offender, it is my view that, notwithstanding the obvious inconvenience of doing so by way of video link, particularly where as is often the case the quality of the link is not good, it is necessary for a Magistrate sentencing an offender to announce when the offender is personally present in court or by video link what sentence is imposed in respect of each offence for which the offender is sentenced. This view is reinforced by what appear to me to be assumptions about natural justice which underlie s 14 of the Sentencing Act; notwithstanding that the aggregate sentence may be correct, it seems to me that natural justice requires that an offender have an opportunity to object, or to correct any factual errors which may be revealed, at the time at which a sentence is imposed in respect of each offence for which the offender has to serve a sentence.
(Page 12)
25 Although the argument was not put on this basis, it seems to me that it may well be the case that the obligation prescribed by s 14 is so fundamental that a sentencing carried out in the absence of the offender has wholly miscarried. If that is correct, then the proper course would be to remit this matter to her Worship and to direct that she sentence in respect of each of the offences for which the appellant was sentenced in June. However, having regard to the fact that this view of s 14 was not fully argued before me, and that neither counsel wished to suggest that, if I were otherwise not persuaded that the sentences were in error, it would nevertheless be necessary to remit the matter to her Worship, I refrain from expressing a concluded view in respect of that issue. In those circumstances, it seems to me that the appropriate result, having regard to the views I have expressed in relation to the question of whether the sentences were excessive or the totality principle was contravened, is simply to determine that no substantial miscarriage of justice has occurred, and to dismiss the appeal in respect of the sentences imposed in June.
Conclusion
26 For the reasons which I have given, the sentence imposed on 9 January 2001 should be varied by the inclusion of an order that the appellant be eligible for parole in respect of that sentence, but the appeal is otherwise dismissed.
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