Forkin v The State of Western Australia
[2006] WASCA 111
•20 APRIL 2006
FORKIN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 111 | |
| THE COURT OF APPEAL (WA) | 23/06/2006 | ||
| Case No: | CACR:215/2005 | 20 APRIL 2006 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 20/04/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JASON JAMES FORKIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Whether manifestly excessive Whether breach of intensive supervision order regarded as aggravating factor Turns on own facts |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2.1 |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 R v Chan (1989) 38 A Crim R 337 R v Wroblewski (1999) 105 A Crim R 129 Forkin v The State of Western Australia [2006] WASCA 10 Markarian v The Queen (2005) 79 ALJR 1048 R v Coleman (2001) A Crim R 230 Worthingon v Western Australia (2005) 152 A Crim R 585 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FORKIN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 111 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
File No : INS 144B of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Appeal against sentence - Whether manifestly excessive - Whether breach of intensive supervision order regarded as aggravating factor - Turns on own facts
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2.1
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S P Rebbeck
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Shane Paul Rebbeck
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Chan (1989) 38 A Crim R 337
R v Wroblewski (1999) 105 A Crim R 129
Case(s) also cited:
Forkin v The State of Western Australia [2006] WASCA 10
Markarian v The Queen (2005) 79 ALJR 1048
R v Coleman (2001) A Crim R 230
Worthingon v Western Australia (2005) 152 A Crim R 585
(Page 3)
1 JUDGMENT OF THE COURT: This is an appeal against sentence, leave to appeal having been granted on 5 January 2006. At the conclusion of argument at the hearing of the appeal, we dismissed it and said that we would give our reasons in due course. We now do so.
2 On 2 August 2004 the appellant pleaded guilty to one count of attempted robbery. On 20 August 2004 he was sentenced by Roberts-Smith J. His Honour imposed an intensive supervision order for a period of 12 months with a programme requirement including psychological counselling, substance abuse counselling and urine analysis testing and also a requirement that he perform 60 hours of community service.
3 The circumstances of the offence were that, at about 7 pm on 28 April 2004, the appellant was in a tavern in Hillarys, drinking alcohol with a friend. He was heavily under the influence of alcohol. The complainant, a 45-year-old woman, arrived at the tavern with her husband. She approached the tavern's automatic teller machine in order to withdraw $20 while her husband was at the bar purchasing two glasses of wine. The appellant stood behind her while she waited for her money. As the money came out of the machine, the appellant said to her, "Give me your cash or I'll slit your throat". No one else was within hearing distance at the time. The complainant was shocked and looked for her husband, who was walking towards her with their drinks. The appellant turned and walked away before the complainant's husband arrived. The police were called and the appellant was apprehended, some time later, outside the tavern. He was too intoxicated to be able to take part in a video-recorded interview.
4 In sentencing the appellant, Roberts-Smith J took into account his plea of guilty, his lack of a criminal record involving offences of this kind and the fact that his behaviour (which had encompassed drug abuse and still encompassed alcohol abuse) was "underpinned by family dysfunction that … [had] accumulated over many years and … [had] been exacerbated by … [the appellant's] resultant poor decision-making and coping skills". The appellant, who was then 24 years old, suffered from depression. He had not previously been imprisoned and deeply regretted the commission of the attempted robbery offence.
5 Having imposed the sentence to which we have earlier referred, Roberts-Smith J warned the appellant that, if he breached the intensive supervision order, he would be brought back before the Court and resentenced. The appellant was told that, in that event, he could anticipate that he was likely to go to prison.
(Page 4)
6 Some two months later, on 21 October 2004, the appellant breached the intensive supervision order. The breach was constituted by a failure to report for supervision. He was brought before Murray J for resentencing on 10 February 2005.
7 In the course of his sentencing remarks, Murray J told the appellant that Roberts-Smith J "could not more plainly have laid it on the line … that … [the appellant was] being given what for an offence of this seriousness … [was] an unusual second chance". However, he went on to say that he would not give up on the appellant at that stage, because the alternative was quite clearly a sentence of imprisonment. He said, in this last respect, that the appellant "would be looking at something in the order of 3 years' imprisonment without a doubt".
8 Murray J imposed a new intensive supervision order, taking effect from the date of resentencing. He imposed programme requirements that were similar to those that had been imposed by Roberts-Smith J and also a requirement that the appellant perform a further 50 hours of community work (he had, by then, performed the majority of the hours which he had previously been ordered to perform). Murray J concluded his sentencing remarks by saying:
"So this time I tell you that you are now looking directly at the prison door and I can promise you that if you come back before this Court again it will open and shut with a clang and you will be on the other side. You understand me now, I hope?"
9 Notwithstanding the very clear terms of this second warning, the appellant again breached the intensive supervision order, this time by failing to report, as directed, on 17 March 2005. He had been referred for a group programme and was required to attend on that day for an assessment. He failed to do so. He had, by then, worked only 6.5 hours out of the total of 50 hours of community work that he had been required to perform. The last occasion upon which he had attended for his community work was on 22 March 2005. The reason that he subsequently gave for his non-attendance was that he had been asked to leave the home in which he had been living and he and a friend had gone to live in the "bush" in an area known as Gnangara Pines. They lived there for some two to three months before the appellant was apprehended.
10 The appellant was brought before Miller J for resentencing on 1 November 2005. By then, he had undergone a total period (including a period served prior to his being sentenced by Roberts-Smith J) of around
(Page 5)
- six and a half months' imprisonment. A pre-sentence report which had been prepared in respect of the appellant discussed his failure to take advantage of the opportunities that he had been given. It concluded by saying:
"He exhibited little interest in taking advantage of the resources offered. In fact, he displayed minimal interest in accessing extensive support and guidance from this department. It is the writer's assessment that the risk he poses to the community remains very high."
"I have come to the conclusion that I have got no option other than [to] sentence you to imprisonment. I have been asked if I would suspend that but I take the view that the original offence was a serious offence and having been given two opportunities there is only one disposition which is open and that is to impose a sentence of imprisonment to be served immediately, as Murray J said would happen if you came back again.
I accept that you have spent a period of approximately six and a half months in custody in relation to this matter. That is to be taken into account. It equates to approximately one year one month, just over a year, in terms of sentencing under the current regime. If I take that into account the sentence I will impose upon you, which is the minimum I can impose upon you and which will be a sentence which will appropriately attract parole, is a sentence of 14 months' imprisonment and that is the sentence I am going to impose today."
12 There are three grounds of appeal (two others having been abandoned). These are that the trial Judge:
(a) imposed a sentence for the offence which was not commensurate with its seriousness;
(b) placed too much weight on the fact that the appellant had twice breached community orders imposed for the offence as an aggravating factor; and
(c) placed insufficient weight on matters raised in mitigation on behalf of the appellant and in the pre-sentence report.
(Page 6)
13 The applicable legal principles are not in doubt. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 324 - 325. In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.
14 In support of his submissions that this sentence was manifestly excessive and that the sentencing Judge had erred in the other respects relied upon, counsel for the appellant pointed, first, to the fact that the offence carried a maximum term of 7 years' imprisonment (before making allowance for the effect of cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). Then, he relied upon the fact that the appellant had not obtained any property, that his only violence had been the making of the threat, that the complainant had not been harmed, that the appellant had been extremely intoxicated, that he had walked off after making the threat without further threatening behaviour, that he had been only 24 years old at the time of the offence, that he had no criminal history involving violence and had not previously been imprisoned, that he had become homeless for a period after each occasion upon which he had been placed on an intensive supervision order, that he had not reoffended, that he had a positive employment history and the fact of his fast track plea of guilty.
15 There is no reason to assume that any of these factors were not taken into account by Miller J. Rather, it seems to us to be plain that they were taken into account by him. He had plainly read the sentencing remarks of each of Roberts-Smith J and Murray J. He had also read the pre-sentence report. Moreover, the sentence imposed by him immediately followed upon the submissions which had been made in mitigation by the appellant's counsel. There was consequently no error of the kind contended for in the last of the three grounds of appeal.
16 Nor are we persuaded that the factors relied upon by counsel for the appellant, whether viewed individually or taken together, were such as to
(Page 7)
- render the sentence imposed unreasonable or unjust, even taking into account the periods of imprisonment that had already been served by the appellant. The sentence was severe, given that the attempted robbery did not rank high in the scale of offences of that kind. However, the offence was serious, having involved the making of a threat to the life of the complainant, and it undoubtedly justified a sentence of immediate imprisonment. We do not accept that the sentence imposed was so severe as to be outside an acceptable range.
17 We are also not persuaded that Miller J was led into error by placing too much emphasis on the fact that the appellant had twice breached the intensive supervision orders imposed upon him. As we read the sentencing remarks of Miller J, he did not regard the appellant's failure to comply with each of the two intensive supervision orders as being an aggravating factor. Rather, he took those failures into account (as he was entitled to do, see R v Wroblewski (1999) 105 A Crim R 129) only for the purpose of concluding that nothing would be achieved by any disposition other than an immediate term of imprisonment. That it was open to him to reach this conclusion is abundantly clear both from the appellant's failure to take advantage of the generous opportunities previously afforded him and from the contents of the pre-sentence report.
18 For all of these reasons, it seemed to us that the grounds of appeal had not been made out and that the appeal should consequently be dismissed.
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