Hour v ARACRI

[2011] WASC 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   HOUR -v- ARACRI [2011] WASC 192

CORAM:   McKECHNIE J

HEARD:   2 AUGUST 2011

DELIVERED          :   2 AUGUST 2011

FILE NO/S:   SJA 1040 of 2011

BETWEEN:   SAY HOUR

Appellant

AND

FILOMENA ARACRI
First Respondent

SIMON TURNER
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE C D ROBERTS

File No  :BM 353 of 2011, BM 354 of 2011, BM 357 of 2011

Catchwords:

Criminal law - Sentencing - Multiple offences - Whether parole should have been ordered - No new principles

Legislation:

Nil

Result:

Parole eligibility order made

Category:    B

Representation:

Counsel:

Appellant:     Mr K J Farley

First Respondent           :     Mr M Seaman

Second Respondent       :     Mr M Seaman

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent       :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  A BMW is generally regarded as a nice car.  Mr Hour certainly thought so in August 2005.  He went to a car yard in Leederville and asked the salesman if he could take the car for a drive.  Somewhat naively, the salesman went to the office to tell a colleague that they were just off.  The last he saw was the car disappearing up Oxford Street with Mr Hour at the wheel. 

2. Fast forward to 2011.  Mr Hour has reached Broome from Melbourne in a stolen car.  He asked for the car to be serviced.  The car he had dropped off for service had also been stolen in Melbourne.  While he was waiting he noticed a money tin in plain view.  It contained $4,400, or did, until somebody noticed that Mr Hour had gone, and so had the money.  Later that afternoon the police interrupted Mr Hour while he was trying to buy an air ticket out of Broome.  The reason he advanced for trying to get back to Melbourne was the ill health of his father. 

3. So it was that Mr Hour came to be sentenced for various offences.  Those sentences were as follows:

   •(1) BM 357/11 - stealing the BMW, 12 months;

   •(2) BM 354/11 - bringing the stolen Commodore into Western Australia, 6 months cumulative;

   •(3) BM 353/11 - stealing money, 3 months to be served concurrently. 

4. The Magistrate declined to make a parole eligibility order, as he said, 'Given your previous antecedents.' 

5. Mr Hour complains that the sentence was excessive and that a parole eligibility order should have been made.  There is no merit in the first ground, but the second ground must succeed.

6. As to the first ground Mr Hour, who is 37, has a long and extensive record for dishonesty.  The argument advanced on his behalf in written submissions is as follows: 

   In sentencing the appellant the Magistrate should have taken into account all the circumstances of the case, including those referable to the appellant's circumstances at the time of the crime.  The theft was motivated by the appellant's need to return to Melbourne as soon as possible due to his father's grave health conditions.  The appellant was also mentally unstable at the time and without medication for the condition. In the light of these facts, the 6 month sentence for stealing the Commodore should have been imposed concurrently rather than cumulatively. 

7. The offences were serious and there was a strong need for general and specific deterrence.  The Magistrate had a brief report from the State Forensic Mental Health Services which pointed out that the appellant was receiving treatment from a community based service in Melbourne.  His compliance with medication was sporadic and he was using multiple illicit substances.  The report concluded: 

   Mr Hour is not exhibiting any overt signs and symptoms of a mental illness and presently does not fulfil the criteria for an involuntary admission under the Mental Health Act 1996.

8. The Magistrate had specific regard to the total sentence and to the plea of guilty and structured the sentences accordingly.  The overall sentence is well within the range of sentences commonly imposed for the criminal conduct disclosed before the Magistrate.  Neither the sentences in their length, nor in their partial concurrence, display any error.  Ground 1 is dismissed.

9. As to ground 2, Mr Seaman very properly concedes ground 2.  The Magistrate made an error in refusing parole, although it should be said that he was partially led into error by then counsel for Mr Hour, who said:

   So I would ask, if you are going to sentence him today to give him a finite sentence.

10. That is probably what led the Magistrate to state his reasons to refuse parole, in short terms, 'given your previous antecedents'. Accepting that the Magistrate must have been referring to Mr Hour's significant criminal record under s 89(4)(b) of the Sentencing Act 1995 (WA), he did not express, and there is not to be found, any other factor under s 89(4)(b) that would justify the exercise of a discretion to refuse parole.

11. The orders that I make are that the appeal against sentence is dismissed, the appeal against the refusal to make a parole eligibility order is allowed.  I make a parole eligibility order in respect of the total sentence of 18 months' imprisonment.