Fowler v The Queen
[2002] WASCA 296
•1 NOVEMBER 2002
FOWLER -v- THE QUEEN [2002] WASCA 296
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 296 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/2002 | 14 OCTOBER 2002 | |
| Coram: | STEYTLER J TEMPLEMAN J SHEPPARD AUJ | 1/11/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DESMOND FOWLER THE QUEEN |
Catchwords: | Criminal law and procedure Application for leave to appeal against sentence Sexual penetration without consent 5 years' imprisonment imposed Whether sentence manifestly excessive Whether failure by trial Judge to order presentence report resulted in miscarriage of justice Operation of s 87 of Sentencing Act 1995 Turns on own facts |
Legislation: | Sentencing Act 1995, s 87 |
Case References: | Gavin v The Queen (1991) 6 WAR 195 Drummond v The Queen, unreported; FCt SCt of WA; Library No 990075; 19 February 1999 Lowndes v The Queen (1999) 195 CLR 665 Mitchell v The Queen, unreported; FCt SCt of WA; Library No 960730; 18 December 1996 Pop v The Queen [2000] WASCA 283 R v Curley [2002] WASCA 257 R v Rozynski [2001] NSWCCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FOWLER -v- THE QUEEN [2002] WASCA 296 CORAM : STEYTLER J
- TEMPLEMAN J
SHEPPARD AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for leave to appeal against sentence - Sexual penetration without consent - 5 years' imprisonment imposed - Whether sentence manifestly excessive - Whether failure by trial Judge to order presentence report resulted in miscarriage of justice - Operation of s 87 of Sentencing Act 1995 - Turns on own facts
Legislation:
Sentencing Act 1995, s 87
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr K P Bates
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gavin v The Queen (1991) 6 WAR 195
Case(s) also cited:
Drummond v The Queen, unreported; FCt SCt of WA; Library No 990075; 19 February 1999
Lowndes v The Queen (1999) 195 CLR 665
Mitchell v The Queen, unreported; FCt SCt of WA; Library No 960730; 18 December 1996
Pop v The Queen [2000] WASCA 283
R v Curley [2002] WASCA 257
R v Rozynski [2001] NSWCCA 257
(Page 3)
1 STEYTLER J: This is an application for leave to appeal against a sentence of imprisonment imposed upon the applicant. On 19 December 2001 he was convicted, following a trial by jury in the District Court, of one count of sexual penetration without consent. He was sentenced to a period of 5 years' imprisonment with eligibility for parole.
2 The applicant, who represented himself on the hearing of the application, raised three grounds of appeal, as follows:
"1. The Learned Sentencing Judge erred in law in failing to properly consider the effect of s 87 of the Sentencing Act 1995, and failing to take into consideration the time the applicant spent in custody awaiting trial for the above offence and for no other reason.
2. The Learned Sentencing Judge erred in the exercise of her discretion in failing to order the commission of a pre-sentence report pursuant to s 20 of the Sentencing Act 1995, and therefore was unable to give proper and adequate consideration to mitigating factors personal to the applicant, more particularly:
(a) The length of time between the offence and the sentencing of the applicant and his significant change in circumstances; and
(b) the circumstances surrounding the commission of the offence(s); and
(c) the emotional state of the applicant at the time of the commission of the offence(s); and [sic]
3. AND FURTHER that the Learned Sentencing Judge erred in the exercise of her discretion in that, in all the circumstances, the sentence(s) imposed were manifestly excessive."
3 In order to understand ground 1 of the grounds of appeal, it is necessary to set out some part of the history of the applicant's imprisonment. The offence of sexual penetration was committed on 14 April 2000, on which date the applicant was charged with that offence (and also with associated offences), arrested and remanded in custody. He had, at that time, been on bail in respect of charges of possession of cannabis with intent to sell or supply. He was convicted of the cannabis
(Page 4)
- offences on 18 August 2000 and sentenced to a total term of imprisonment of 6 years. Those convictions were quashed by the Court of Criminal Appeal on 24 March 2001. However, the applicant thereafter remained in prison, on remand, in respect of the offence of sexual penetration and associated offences until 7 September 2001, on which date he was given bail on those charges. He remained on bail until 19 December 2001, on which date he was convicted on the sexual penetration charge.
4 The sentencing Judge, having referred to this background, said that, in sentencing the applicant, she was prepared to take into account the time which he had spent on remand that was substantially as a result of the offence for which she was sentencing him. However, she said that, because of the provisions of s 87 of the Sentencing Act 1995, she could not take into account the time that the applicant had served as a sentenced prisoner in respect of the cannabis offences. She consequently backdated the applicant's term of imprisonment to 26 February 2001, giving him a credit of 296 days so as to cover all of the time spent by him in prison on remand, but not including the time spent by him as a sentenced prisoner.
5 The applicant's sole complaint is that the sentencing Judge erred in not taking into account, also, the period of imprisonment served by him as a sentenced prisoner. He submits that she should have done so, notwithstanding the provisions of s 87 of the Sentencing Act, because it would be unfair to do otherwise having regard for the fact that his convictions of the cannabis offences were ultimately quashed.
6 Section 87 provides as follows:
"87. Taking time on remand into account
If when an offender is being sentenced to imprisonment for an offence —
(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b) the sentencing court decides that that time should be taken into account,
the court may take that time into account —
(Page 5)
- (c) if it imposes a fixed term, by reducing that term by an appropriate period; or
- (d) by ordering that the term it imposes 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."
7 In my respectful opinion, the sentencing Judge was correct in her understanding and application of this section. The time spent by the applicant in custody in respect of convictions for drug offences which were entirely unrelated to the sexual penetration offence could self-evidently not be said to have been spent "in respect of that offence and for no other reason". That time in custody was not spent in respect of the offence of sexual penetration at all. The fact that it was spent in respect of convictions which were subsequently quashed cannot alter that position.
8 It follows that this ground cannot succeed.
9 So far as ground 2 is concerned, the applicant was represented by counsel at the time at which he was sentenced. His counsel did not then suggest that a pre-sentence report was needed. That fact alone amounts to a substantial obstacle in the applicant's path. In Gavin v The Queen (1991) 6 WAR 195 at 211, Seaman J (with whom Malcolm CJ was in agreement) said that it would be a rare case in which a miscarriage of justice could be demonstrated by the failure of a judge to obtain a pre-sentence report upon an offender who is represented by counsel, and that the failure could never by itself constitute a ground of appeal.
10 In this case, the applicant contends that a miscarriage arose because the sentencing Judge was, as a consequence of her failure to call for a report, unable to give proper and adequate consideration to mitigating factors personal to him. However, I am not persuaded that this submission can be made good.
11 As will be apparent, the applicant has particularly referred, in this respect, to three factors, the first encompassing the length of time between the commission of the offence and his sentencing in respect of it and what was said to be his "significant change in circumstances" during that period (arising out of his efforts to resuscitate his ailing business), the second encompassing the circumstances surrounding the commission of the offence and the third being his emotional state at the time of the commission of the offence.
(Page 6)
12 All of these matters were referred to by counsel for the applicant at the time of sentencing. Moreover, the sentencing Judge expressly took each of them into account.
13 Her Honour referred, firstly, to the various events which had preceded the applicant's sentencing and to the date upon which the offence of sexual penetration had been committed. She also took into account the fact that, since his release from prison on 7 September 2001, the applicant had been attempting to get his business back on its feet, the business having been damaged as a result of the various charges which had been brought against the applicant and the period of imprisonment which he had consequently served.
14 Next, the sentencing Judge took into account the circumstances surrounding the commission of the offence. The applicant had become estranged from his wife and the two had separated in February 2000. The applicant's wife had continued to live in the family home and had obtained a restraining order against the applicant. The applicant was unable to gain access to his belongings and, more importantly, to his children. He went to his wife's home and telephoned her when he was outside it. When she heard his voice, she hung up. He then broke into the house and, using some force, told his wife to go into the main bedroom. She did so. He then pushed her onto the bed and tried to prise her legs apart. She told him not to do this but, in the end, decided to submit to him and the sexual penetration then took place. All of these circumstances were taken into account by her Honour.
15 Finally, in this respect, the applicant contended that a pre-sentence report would have demonstrated his psychological state at the time of the commission of the offence, being, he said, one of great emotional stress resulting from the breakdown of his relationship and the events which had followed it. However, submissions in that regard were made to the sentencing Judge by the applicant's counsel and these were accepted by her Honour. She found, in this respect, that the applicant had been "agitated, angry, and … very frustrated". She also spoke of the agitation which he had experienced when his estranged wife refused to read a letter which he had written to her and wanted her to read.
16 It follows that this ground, too, cannot be made out.
17 So far as ground 3 is concerned, the applicant relied primarily upon the matters raised in ground 2 of the grounds of appeal in submitting that the sentence imposed was manifestly excessive. I am not persuaded that it
(Page 7)
was. The offence was serious (it carries a maximum period of 14 years' imprisonment) and, even taking into account the various matters raised by the applicant and other matters considered by the sentencing Judge, including the applicant's generally favourable antecedents, the sentence imposed was, in my opinion, well within the bounds of a reasonable exercise of discretion.
18 It follows that none of the grounds of appeal can, in my opinion, be made good. I would consequently refuse the application for leave to appeal.
19 TEMPLEMAN J: I agree with the reasons given by Justice Steytler that this application for leave to appeal should be refused.
20 SHEPPARD AUJ: In this matter, I am in agreement with the reasons and conclusions reflected in the judgment of Steytler J. I agree with the order which he proposes.
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