Hartill v The Queen
[1999] WASCA 260
•4 NOVEMBER 1999
HARTILL -v- R [1999] WASCA 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 260 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:156/1999 | 4 NOVEMBER 1999 | |
| Coram: | PIDGEON J MURRAY J ANDERSON J | 4/11/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | KEVIN WILLIAM HARTILL THE QUEEN |
Catchwords: | Criminal Law and Procedure Sentencing Drug offences Offences committed whilst on parole Appeal against non-parole order Order confirmed Turns on own facts |
Legislation: | Nil |
Case References: | Thompson v R (1993) 8 WAR 387 Bellissimo v R (1996) 84 A Crim R 465 Kim Long Quach v The Queen [1999] WASCA 210 La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Lam v The Queen, unreported; CCA SCt of WA; Library No 960492; 5 August 1996 Lowndes v The Queen, unreported; CCA SCt of WA; Library No 970382; 8 August 1997 Shaw v R (1989) 39 A Crim R 343 Stewart v The Queen [1999] WASCA 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HARTILL -v- R [1999] WASCA 260 CORAM : PIDGEON J
- MURRAY J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal Law and Procedure - Sentencing - Drug offences - Offences committed whilst on parole - Appeal against non-parole order - Order confirmed - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : Mr P J M Sullivan
Respondent : Mr M Mischin
Solicitors:
Applicant : Paul Sullivan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Thompson v R (1993) 8 WAR 387
Case(s) also cited:
Bellissimo v R (1996) 84 A Crim R 465
Kim Long Quach v The Queen [1999] WASCA 210
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lam v The Queen, unreported; CCA SCt of WA; Library No 960492; 5 August 1996
Lowndes v The Queen, unreported; CCA SCt of WA; Library No 970382; 8 August 1997
Shaw v R (1989) 39 A Crim R 343
Stewart v The Queen [1999] WASCA 7
(Page 3)
1 PIDGEON J : The applicant appeared before his Honour Judge L A Jackson on two indictments and pleaded guilty, not when the indictment was first put, but subsequently before a trial date was set. The first indictment was that on 18 June at Maddington he had heroin in his possession with an attempt to sell or supply it and on 11 August there were three further counts, all on the same day, of selling heroin, of possessing heroin with an intent to sell it and a further count of possessing heroin with intent to sell.
2 At the time he committed the first of these offences he was on parole and the second of the offences, together with the later three offences, were committed whilst he was both on parole and on bail. His Honour Judge Jackson imposed a total effective term of 6 years imprisonment, and that was made up of some cumulative sentences in respect of the actual offences before him. There was no order that the terms imposed were to run cumulatively with the earlier term of imprisonment, the parole element of which he was then serving. So the effect of that is that Judge Jackson's sentence runs from 19 July 1999 concurrently with the earlier sentences.
3 We understand parole was cancelled on the earlier offences and that the effect of the new sentences running concurrently is that there would be no further parole available to the applicant as his Honour specifically ordered that there be no parole element in the sentences he imposed.
4 The applicant is seeking leave to appeal and the appeal is centred on the failure to order parole and that becomes the question for this court to consider.
5 The applicant was born in 1970 and consequently was about 29 when he committed these offences. Unfortunately he has a considerable record, previously being on indictment in the District Court. The types of previous offences were burglary, attempting to defeat the course of justice, one cannabis offence (with a month's imprisonment) and house-breaking, offences of that type.
6 There was before Judge Jackson a pre-sentence report upon which I will not comment or refer to in any detail other than to say it did not support a recommendation for parole and did indicate, as counsel rightly pointed out, that at the present time further community supervision is unlikely to have beneficial effect.
7 His Honour, when imposing the sentences, outlined the nature of the offences which showed that on 18 June the applicant was in possession of
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- 1.95 grams of heroin together with what his Honour described as drug-trading paraphernalia and that there was $3315 in his wallet. The applicant was an acknowledged drug addict. His Honour noted that the applicant cooperated with the police, he was given credit for the pleas of guilty and, as I mentioned, the length of the sentence is not in question. His Honour also noted that the applicant was caught, to use the expression his Honour used, "red-handed" and that that had an effect on the cooperation with the police.
8 His Honour said that the pre-sentence report was not encouraging and although the psychologist's report did indicate that matters such as employment are significant, at the end of the day his Honour said there was a long record of previous offending including a number of drug offences but, as I mentioned, the offences that brought the earlier terms of imprisonment were breaking and entering offences. His Honour said:
"Both of the offences the subject of the indictable charges were committed whilst you were subject to parole from previous imprisonment sentences. On the second indictment the offences were committed whilst you were also on bail with respect to the first series of offences. In the circumstances I do not accept that parole is appropriate."
9 His Honour then said that he should structure the sentences of imprisonment, including by making some sentences concurrent with others, to make sure that at the end of the day the appropriate level of penalty for the series of offences was achieved.
10 I will not go into the details of the sections of the Sentencing Act 1995 (WA) other than to say this. The cases say there is a presumption in favour of parole when one looks at the previous offences, at the antecedents and at the prospects. There is a presumption in favour of parole, but in my view that presumption is negated to a very large extent when there is offending of this type and with repetition whilst on parole. That does not necessarily mean that it would be a complete bar to further parole, but it does have an effect on the presumption that normally prevails and it is a significant factor to take into account whether to order further parole.
11 A further factor is that if parole is fundamentally breached in this way it undermines the system of parole if there is too much of a readiness to grant parole. However, as I said, that is not the final matter, but having regard to the reports before his Honour, having regard to the age, the
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- previous record and other matters, there wasn't anything to trigger parole and it has been said that there must be something positive to trigger parole having regard to the presumptions. There is nothing in that area. For that reason his Honour structured the sentence without the parole element making it, as I said, concurrent, thus enabling the applicant to reduce and eliminate the number of days already, to use a current terminology, owed to the Parole Board.
12 Having looked at those matters I am not in any way persuaded that his Honour was wrong in exercising the discretion in the way he did and for those reasons I would refuse leave to appeal.
13 MURRAY J : I agree that in this case leave to appeal should be refused. The law in relation to eligibility for parole is clear as it emerges from s 89 of the Sentencing Act 1995 (WA),and the authorities are usefully collected and reviewed in Thompson v R(1993)8 WAR 387 at 395-6. The crucial circumstance to my mind in this case, which indicates that his Honour's judgment to deny parole cannot, I think, be called into question was that the offending by the applicant is directly and centrally born of a longstanding and continuing drug addiction.
14 Many attempts have been made in the past to deal with it and unless it can be dealt with it is perfectly clear that the applicant remains at a high risk of reoffending. The attempts which have been made have included counselling and various kinds of treatment and yet, as the psychological report before his Honour revealed, it remained the case that immediately prior to his Honour assuming the task of sentencing the applicant, the circumstances which were triggers to his drug abuse and which were contributing factors to his offending remained unaddressed.
15 On previous occasions, despite treatment under conditions concerning treatment attached to parole, it had been breached on a number of occasions. That history of failure to take the opportunities offered in that way dated back to at least 1995. Nothing appeared before his Honour to indicate that he might have more confidence at the time of sentencing than on previous occasions that parole would be a useful and appropriate element of the sentences for the purpose of enabling the applicant to be returned to the community in circumstances which would offer any promise that he would not continue to offend. In my opinion also this application should be refused.
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16 ANDERSON J : I agree that the application should be refused for the reasons that have been given by the learned presiding Judge and by Murray J and I do not wish to add anything to those reasons.
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