Edwards v The Queen
[2000] WASCA 211
•10 AUGUST 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: EDWARDS -v- THE QUEEN [2000] WASCA 211
CORAM: MURRAY J
PARKER J
HEENAN J
HEARD: 19 JUNE 2000
DELIVERED : 10 AUGUST 2000
FILE NO/S: CCA 195 of 1999
BETWEEN: ADRIAN MICHAEL EDWARDS
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Eligibility for parole - Earlier breaches of probation orders and parole - Cumulative terms of imprisonment - Use of stolen motor vehicle for attempted bank robbery - Parity with sentence of co-offender - Backdating of sentence after suspension of parole - Sentence not manifestly excessive
Legislation:
Sentencing Act 1995 (WA), s 87
Result:
Application for leave to appeal refused
Representation:
Counsel:
Applicant: Ms J G Fordham
Respondent: Mr R E Cock QC & Ms J A Girdham
Solicitors:
Applicant: Leonard Cohen & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowe v The Queen (1984) 154 CLR 606
Case(s) also cited:
Cook v The Queen, unreported; CCA SCt of WA; Library No 960395; 25 July 1996
De Jesus v The Queen [2000] WASCA 128
Duncan v The Queen (1983) 47 ALR 746
Eades v The Queen (1990) 47 A Crim R 385
Miles v The Queen (1997) 17 WAR 518
Palmer v The Queen [1999] WASCA 253
Pezzino v The Queen (1997) 92 A Crim R 135
R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 7 May 1997
R v Olbrich (1999) 166 ALR 330
Ratcliffe v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997
Riley v The Queen [2000] WASCA 111
Shaharuddin v The Queen [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
The Attorney-General v Tichy (1982) 30 SASR 84
Thompson v The Queen (1993) 8 WAR 387
Thomson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 28 August 1998
Trotman v The Queen, unreported; CCA SCt of WA; Library No 950639; 24 November 1995
Wongawol v The Queen (1998) 101 A Crim R 350
Youil v The Queen (1995) 80 A Crim R 1
MURRAY J: I have read in draft the reasons to be published by Heenan J, to which I have nothing to add. I agree that the application for leave to appeal should be refused.
PARKER J: I have read in draft the reasons to be published by Heenan J and for those reasons I agree that the application for leave should be refused.
HEENAN J: The applicant seeks leave to appeal from a sentence of imprisonment for a total of four years imposed upon him in the District Court at Perth on 31 August 1999.
The charges against the applicant arose out of the following circumstances. On the evening of Monday 21 December 1998 a Ford Laser motor car was stolen from a car park in Lakes Road, Mandurah. Shortly after 8 o'clock on the following morning the applicant and a 22 year old man named Mulligan went in the stolen vehicle to a shopping centre in Pinjarra Road, Mandurah. They waited there, near the staff entrance to a branch of the Commonwealth Bank. When one of the staff opened the door Mulligan and the applicant rushed forward and attempted to gain entry. Those inside the bank pushed against the door and managed to keep them outside. In the struggle one of the applicant's hands was jammed and a short time elapsed before he could free it. Then he and Mulligan escaped. Both were arrested on the following day. The applicant was on parole at the time. On 21 January 1999, when he had been in custody on remand for 29 days following his arrest, his parole was suspended. He has remained in custody ever since.
It seems that at the time of the incident at the bank Mulligan had a knife and a balaclava with him. Both men therefore were charged with attempted armed robbery in company in respect of that incident and were indicted in this Court.
On 3 May 1999 before Wheeler J Mulligan pleaded guilty to stealing the Ford Laser and to attempted armed robbery in company, charges which arose out of the above circumstances. He pleaded guilty also to four charges arising out of two earlier incidents involving banks. The first of those incidents took place on 11 December 1998 and the second, it seems, during the following 10 days. Her Honour was informed that on 11 December Mulligan and another man had used a stolen motor vehicle in an attempt to steal money from a bank in Spearwood. At the time of that attempt Mulligan was armed with a large kitchen knife and his accomplice with a shotgun. As to the second incident her Honour was
informed that Mulligan and his accomplice had stolen a motor vehicle and driven in it to a shopping centre in Booragoon. Both were armed - Mulligan with either a knife or a screwdriver and his accomplice with a handgun - and both had balaclavas. They waited outside the bank and when one of the staff opened the door they rushed forward, produced their weapons and forced their way inside. Having compelled another member of the staff to open the safe they escaped with approximately $55,000, none of which had been recovered.
On 31 May 1999 Wheeler J sentenced Mulligan. In respect of the two offences committed in company with the applicant, her Honour imposed imprisonment for one year for stealing the Ford Laser and for 3½ years for the attempted armed robbery in company, the terms to take effect concurrently with each other but cumulatively upon concurrent terms of the same length which her Honour imposed for stealing the motor vehicle and for the attempted armed robbery on 11 December 1998. In respect of the second incident, her Honour imposed imprisonment for one year for stealing the motor vehicle and for four years for the armed robbery in company, each of those terms being cumulative upon each other and upon the first four terms. It was an effective total of twelve years imprisonment. Her Honour also ordered that, due to his age, previous lack of violence and length of the sentence imposed, he be eligible for parole.
The applicant had appeared with Mulligan in this Court on 3 May 1999 but, following representations made by his legal advisers and in the absence of evidence showing that he was armed or knew that Mulligan was armed, he was remanded to the District Court. There on 10 August 1999 he pleaded guilty before Nisbet J to an indictment containing two counts. In the first count, on the basis that he had used the Ford Laser without the consent of its owner, he had been charged with stealing the motor vehicle (see The Criminal Code, s 371A). In the second count he had been charged with attempted robbery in company, the attempt taking the form of attempting to steal cash with threats of actual violence. On 31 August, having been provided with a copy of the transcript of her Honour's remarks when sentencing Mulligan and having obtained a pre-sentence report, his Honour sentenced the applicant to imprisonment for one year for stealing the motor vehicle and for three years for the attempted robbery in company, the terms to be served cumulatively upon each other, and declined to grant eligibility for parole. His Honour then went on to say, "As to the effective date of sentence, this will be from when I took your pleas, namely, 29 August 1999, less the 29 days conceded by the Crown. Hence, the effective date of sentence is 12 July 1999." The transcript shows that in fact the pleas were taken on 10 August. The reference to 29 August seems to have been either a typing error or a slip of the tongue.
As counsel representing the Crown told Nisbet J on 10 August 1999, the applicant was then a sentenced prisoner and his earliest eligibility release date was 28 March 2000. By reason of his Honour's direction that the sentence take effect from 12 July 1999 the applicant served the first 8½ months of that sentence concurrently with the balance of the non-parole period of the earlier sentence - so that, pursuant to s 95 of the Sentencing Act 1995 (WA), he will have completed his four year sentence after service of only an additional two years or thereabouts in prison. This Court has been informed that, had his Honour granted eligibility, the earliest date for consideration of further parole would have been 9 November 2000. As it is, the earliest eligibility date for parole now is 25 March 2002. If the applicant were not granted parole then, the earliest date for his release would be 4 April 2002, ten days later.
On behalf of the applicant counsel contended that Nisbet J erred in four main respects: first, in failing to order that the applicant be eligible for parole; secondly, in failing to direct that the two terms take effect concurrently with each other; thirdly, in imposing a term for attempted robbery in company which, counsel argued, was excessive by reference to the sentence imposed on Mulligan in respect of the same incident and after taking into account the circumstances personal to the applicant; fourthly, in failing to backdate the sentence to the day on which the applicant was taken into custody. I shall deal with those contentions in turn.
Eligibility for parole
The applicant was born on 21 March 1973. When he was 12 years old he appeared in the Children's Court at Perth on two charges of stealing. Thereafter he appeared regularly in that Court on charges of various offences of dishonesty, including 30 charges of breaking and entering, and other offences. After reaching the age of 18 years he continued to offend. On 17 January 1994 in the District Court at Perth, having breached probation orders made in the preceding June and August, he was sentenced to a term of two years imprisonment for burglary. During the following month in the Court of Petty Sessions at Perth he was sentenced to imprisonment for a total of 2½ years in respect of three charges of burglary and two of stealing. In May of the following year he was sentenced to two months imprisonment for escaping legal custody. Then, while on parole, he committed the offence of robbery whilst armed and in company. On 29 November 1996 in this Court he was sentenced to imprisonment for four years for that offence and to a further term of two months for offences relating to the use of motor vehicles. As we have seen already, he was on parole also when he committed the offences in December 1998, having been re-released to parole on 29 July 1998.
By reason of s 89(1) of the Sentencing Act 1995 a court sentencing an offender to one or more fixed terms is required to consider the question of eligibility for parole. Subsection (2) reads as follows:
"In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at 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;
(e)any other reason the court decides is relevant."
In the course of the reasons which he delivered at the time of sentence his Honour spoke in considerable detail about the relevant facts, clearly stating the nature of the offences in question and the circumstances of their commission. Having commented that after "an unfortunate life" the applicant "went off the rails, mixed with the wrong crowd and began his life of crime as a juvenile, continuing as an adult", his Honour referred to the bad record of the applicant and to the fact that the offences in question were committed while he was on parole. After referring to his counsel's submissions that the applicant had changed, had learnt the error of his ways, had found a good woman who, with her family were "right behind" the applicant, waiting to assist with his rehabilitation upon his eventual release into the community and that the applicant had become "a very staunch Christian", his Honour said that he accepted the applicant's "sincere expression of contrition" and noted that his early plea of guilty was made "at the earliest opportunity to the indictment as ultimately presented". His Honour went on to speak of the need for deterrence both general and specific, for punishment and for the need to protect the community from people like the applicant. Having then discussed the manner in which her Honour had dealt with Mulligan, Nisbet J imposed sentence and added, "You are not eligible for parole because these offences were committed whilst you were on parole."
From his remarks it is clear that his Honour had regard to the seriousness, nature and circumstances of the commission of the offences in question and to the antecedents of the applicant in deciding to imprison him and in determining the length of the imprisonment. It is clear also that the only reason which his Honour gave specifically for refusing parole eligibility was that the offences were committed whilst the applicant was on parole. But, as we have seen, the earlier criminal history of the applicant, including escaping from custody and repeated breaches of probation and parole, had just been considered by his Honour and provided very compelling reasons for refusing parole - so compelling that, in the absence of exceptional circumstances, his Honour's refusal was inevitable. Further, the materials before the Court upon which the applicant relies to establish the appropriateness of parole are not persuasive: it is comparatively easy for a prisoner, with a long record of offending behind him, to proclaim to the Court of Criminal Appeal that he has reformed. Experience shows that there is a lot of truth in the old saying that actions speak louder than words.
The refusal of parole eligibility in this case was consistent with an entirely proper exercise of sentencing discretion.
Concurrency
In contending that the terms which his Honour imposed on her client should be concurrent counsel for the applicant submitted that the offences in question were committed in the course of a single transaction. As Dr D A Thomas commented in Principles of Sentencing 2nd ed (1979) at 53-54, "The essence of the one-transaction rule appears to be that consecutive [or cumulative] sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest" and "the fact that two offences are committed simultaneously or close together in time does not necessarily mean that they amount to a single transaction". Thus, as the learned author pointed out, the rule will not normally apply to a series of offences involving different victims, even though the offences are of a similar character. Nor will it apply when the commission of the further offence or offences involves a totally different degree of criminality. Further, appellate courts sometimes uphold cumulative sentences on the ground that the totality of the sentence is correct and that no purpose would be served in making a formal variation which would leave the effective sentence unchanged. In this case, not only was the Ford Laser the property of someone quite unconnected with the bank but its use by the applicant and Mulligan on the morning of 22 December was for the purpose for enabling them to carry out the robbery and, presumably, also to make their apprehension more difficult. It was an offence which added substantially to the criminality of the enterprise and, if only for that reason, the rule does not apply.
In sentencing Mulligan Wheeler J explained that, because it appeared that he was not "the person who participated in the theft" of the Ford Laser nor of the vehicle which was used for the second attempted armed robbery in company, the terms imposed for the thefts of those motor vehicles would be concurrent with those imposed for the attempted robbery offences. However, it should be kept in mind that, as Wheeler J told Mulligan, her Honour was "aware of the need to ensure that the sentences imposed are not crushing" and therefore applied what is known as the "totality principle" in order to arrive at an appropriate aggregate sentence. In arriving at that sentence, it seems, her Honour not only ordered that some of the terms take effect concurrently when they might otherwise have been served cumulatively, but also reduced the length of the term which normally would have been imposed for the armed robbery in company.
At the commencement of his remarks when sentencing the applicant Nisbet J stated that "on the evening of Monday 21 December 1998 [the applicant] in company with … Mulligan" stole the vehicle from the car park in Lakes Road, Mandurah. It was never the prosecution case that the applicant or Mulligan actually took the vehicle from the car park, but it was the prosecution case that on the evening of 21 December 1998 the two men had planned the robbery, knowing then that they would be using a stolen vehicle. Although his Honour sentenced the applicant on a version of the facts which was inaccurate in part, in my opinion the inaccuracy was not of great moment. In all the circumstances a cumulative term was entirely appropriate.
Sentence for attempted robbery in company
In contending that the term of three years imprisonment for the attempted robbery in company was excessive counsel referred first to the principle of parity, comparing the term imposed on the applicant with that imposed on Mulligan for attempted robbery in company while armed. However, the two men were dealt with in quite different circumstances. Wheeler J sentenced Mulligan for three counts of stealing a motor vehicle, two counts of attempted robbery in company while armed and one count of armed robbery in company. As mentioned earlier, in order to avoid imposing a crushing sentence, her Honour applied the totality principle - ordering that some of the terms take effect concurrently but also reducing the length of the term which normally would have been imposed for the armed robbery in company. In sentencing the applicant Nisbet J was required to keep in mind, as he did, that he was dealing with a young man who was already serving a lengthy term of imprisonment but who had attempted to commit a robbery in the company of a younger man with a less significant criminal record, using a stolen motor vehicle for that purpose.
In Lowe v The Queen (1984) 154 CLR 606 at 609 Gibbs CJ said:
"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
In this case, other things are not quite equal and the differences between them are such that, in my opinion, there was not a discrepancy between the respective terms which would "engender a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander" (Lowe v The Queen (supra) at 613 per Mason J).
On behalf of the applicant it was said also that the term of three years imposed upon the applicant for the attempted robbery in company was excessive, taking into account matters personal to him, to which reference has already been made, as well as his plea of guilty at the earliest opportunity, the "amateurish" nature of the attempt to rob the bank, the usual range of sentences for armed robbery, the time spent in custody without application for bail and the time spent in custody before a plea could be taken. As to these matters, it is sufficient to observe that they were taken into account by his Honour, who noted correctly that nevertheless there was a need for a strong general deterrent in relation to both offences and, because of the applicant's criminal record, a strong specific deterrent. Clearly the sentence of three years imprisonment was not outside the range for the offence in question and, were it not for the term imposed on Mulligan for his part in the robbery (a reduced term by virtue of the totality principle), a longer sentence might well have been imposed upon the applicant. After taking into account the matters referred to by counsel for the applicant, one cannot reasonably conclude that the sentence was manifestly excessive or that the principle of parity has been ignored.
Backdating of sentence
Section 87 of the Sentencing Act provides that when an offender has previously spent time in custody in respect of an offence for which he is being sentenced "and for no other reason" a court is entitled to take that time into account by reducing the term of imprisonment by an appropriate period or by ordering that the term imposed "is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence". As we have seen, the information before this Court shows that for the 29 days from 23 December 1998 until 21 January 1999 the applicant was on remand in custody in respect of the offences for which Nisbet J was sentencing him. But from 21 January 1999 onwards, because his parole was suspended, the applicant was serving the sentences which had been imposed earlier and in relation to which he had been released on parole. His Honour was entitled, therefore, to take the 29 day period into account by reducing the sentence to that extent. There is no basis on which it could reasonably be said that after 21 January 1999 - at least until 28 March 2000 - the applicant was in custody in respect of the offences for which Nisbet J was sentencing him "and for no other reason". Section 87, therefore, would not by itself entitle either his Honour or this Court to take any further period into account by reducing the term of imprisonment.
Incidentally, by directing that the sentence be taken to have begun 29 days prior to the date on which the applicant pleaded guilty, instead of 29 days prior to the date on which he was sentenced, his Honour reduced the term of imprisonment to be served not only by the time which the applicant had spent in custody in respect of the offences for which he was being sentenced but also by the 21 days during which he was both awaiting sentence and serving the sentences which had been imposed earlier. In that way, his Honour reduced the sentence effectively by 50 days.
As matters stand, the applicant will serve at most a little more than two additional years in prison by way of penalty for the offences which he committed on 22 December 1998. With that in mind, I think that it would have been quite wrong for the sentence to have been backdated further than it was. To do so would have constituted an unjustified reduction of the sentence which the applicant was already required to serve and in respect of which he had shown himself unworthy of parole. Indeed, in my opinion, it would have been well within Nisbet J's discretion to direct that the sentence which he was imposing take effect cumulatively on the full balance of that which the applicant was serving already. In that event the latter would have spent a further eight months in prison. If his Honour erred, the error was by way of leniency rather than severity.
I would refuse the application for leave to appeal.
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