Ireland v The Queen
[2000] WASCA 312
•25 OCTOBER 2000
IRELAND -v- THE QUEEN [2000] WASCA 312
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 312 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:176/1999 | 9 OCTOBER 2000 | |
| Coram: | KENNEDY J MURRAY J HEENAN J | 25/10/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| PDF Version |
| Parties: | MARK GRAEME IRELAND THE QUEEN |
Catchwords: | Criminal law and procedure Applications for leave to appeal against convictions and sentences Breaking and entering hotel premises Intruder armed with crowbar Assaulting two police officers Overwhelming case identifying applicant as offender Applicant on parole in respect of robberies and other serious offences Effective sentence of 4 years' imprisonment with eligibility for parole upheld |
Legislation: | Nil |
Case References: | Nil Edwards v The Queen [2000] WASCA 211 Hayward v The Queen [2000] WASCA 237 Hill v Bodenham [2000] WASCA 37 Kable v Director of Public Prosecutions (NSW) (1995) 36 NSWLR 374 Lowndes v The Queen (1999) 195 CLR 665 M v The Queen (1994) 181 CLR 487 Mullally v The Queen [2000] WASCA 26 Parker v Miller, unreported; FCt SCt of WA; Library No 980249; 8 May 1998 Pearce v The Queen (1998) 194 CLR 610 Pezzino v The Queen (1997) 92 A Crim R 135 R v The Parole Board; Ex parte Birnie [1988] WAR 249 S (A Child) v The Queen (1995) 12 WAR 392 Warrell v Kay (1995) 83 A Crim R 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : IRELAND -v- THE QUEEN [2000] WASCA 312 CORAM : KENNEDY J
- MURRAY J
HEENAN J
- CCA 184 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Applications for leave to appeal against convictions and sentences - Breaking and entering hotel premises - Intruder armed with crowbar - Assaulting two police officers - Overwhelming case identifying applicant as offender - Applicant on parole in respect of robberies and other serious offences - Effective sentence of 4 years' imprisonment with eligibility for parole upheld
Legislation:
Nil
(Page 2)
Result:
Applications dismissed
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Edwards v The Queen [2000] WASCA 211
Hayward v The Queen [2000] WASCA 237
Hill v Bodenham [2000] WASCA 37
Kable v Director of Public Prosecutions (NSW) (1995) 36 NSWLR 374
Lowndes v The Queen (1999) 195 CLR 665
M v The Queen (1994) 181 CLR 487
Mullally v The Queen [2000] WASCA 26
Parker v Miller, unreported; FCt SCt of WA; Library No 980249; 8 May 1998
Pearce v The Queen (1998) 194 CLR 610
Pezzino v The Queen (1997) 92 A Crim R 135
R v The Parole Board; Ex parte Birnie [1988] WAR 249
S (A Child) v The Queen (1995) 12 WAR 392
Warrell v Kay (1995) 83 A Crim R 493
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Heenan J. For those reasons, I agree that both applications must be dismissed.
2 MURRAY J: I agree, with respect, that for the reasons to be published by Heenan J, to which I have nothing to add, the applications for leave to appeal against conviction and sentence should both be dismissed.
3 HEENAN J: On 9 August 1999 in the District Court at Perth, after a trial which had begun that day, a jury convicted the applicant on one count of aggravated burglary and on two counts of assaulting a public officer when performing a function of his office. On 23 August 1999 the trial Judge, his Honour Judge Viol, imposed an effective sentence of four years imprisonment upon the applicant and ordered that he be eligible for release on parole. Now the applicant seeks leave to appeal against both the convictions and the sentence.
4 The undisputed evidence at the trial showed that, after a spate of break-ins at a hotel in Nedlands, its manager arranged for two detectives to remain there after closing time on the night of Sunday 20 September 1998. It was the week-end of the Australian Football League grand final, and the games machines in the hotel had been very busy. They were full of cash. At about 4 o'clock on the following morning, while hidden inside the darkened hotel, the detectives saw a man go to one of the doors at the side of the building, force it open and then enter, carrying a crowbar. The intruder crawled across the floor on his belly, apparently to evade detection by a movement sensor system. As he was approaching a games machine one of the detectives told him to stop. He hit the detective with the crowbar and was about to do so again when the second detective tackled him. In the course of the ensuing struggle the intruder struck the second detective also with the crowbar but was quickly disarmed, restrained and handcuffed. He had been wearing a black beanie on his head and cloth gloves on his hands. On his person he had two screwdrivers, a small pair of bolt cutters, a tiny torch, a wire loop and a set of keys. One of the keys fitted a motor vehicle which was parked nearby. In the vehicle was a larger crowbar, another pair of bolt cutters and another pair of gloves. The detectives identified the applicant as the intruder.
5 As he did before this Court, the applicant represented himself at the trial. He elected not to give evidence, and the jury convicted him after a retirement of a little more than one hour.
(Page 4)
6 In his notice of application for leave to appeal against conviction the applicant stated merely that the conviction "was, in all the circumstances, unsatisfactory and unsafe". Subsequently he filed particulars of errors said to have been made by the trial Judge, both in summing up to the jury and earlier in the course of the trial. It is sufficient now to say that the applicant has not put anything before us tending to show any such error by his Honour. Nor is there any basis to justify a finding by this Court that any of the verdicts was unsafe or unsatisfactory.
7 The particulars contained also an assertion to the effect that the charges the subject of the indictment had already been dealt with by the Parole Board, that the applicant had already "served a penal penalty" for the offences charged and that, as "a case of Double Jeopardy … now exists", the trial Judge "had No Jurisdiction to hear the matters before him". The applicant had first raised a similar argument as early as 10 March 1999 at a directions hearing in the District Court before his Honour Judge Sadleir. He raised it again on 26 March 1999 before his Honour Judge Blaxell and on 16 April 1999 before the Chief Judge of the District Court. He raised it again on 9 August 1999 before commencement of the trial. On the last mentioned occasion the applicant informed the trial Judge that he was on parole when charged with the current offences and that on 30 September 1998, after he was remanded in custody, his parole was suspended. It remained suspended until 30 April 1999, eight days after the Chief Judge had granted him bail for the current offences. The applicant told the trial Judge, in effect, that he had already been tried and convicted of the offences charged in the indictment and that, by reason of the provisions of s 616(5) of The Criminal Code, he could not be tried again for those offences and that, pursuant to the provisions of s 616(7) of the Code the Court had no jurisdiction to try him for the offences. His Honour ruled against the applicant's submission and explained to him that the only pleas available to him before the jury were "guilty" or "not guilty". After the jury panel had been brought into the courtroom the applicant then pleaded not guilty to each of the three counts and the trial proceeded.
8 Before us, the applicant presented much the same argument as he had presented to the trial Judge and, earlier, to other Judges of the District Court. As each of their Honours explained to him then, the applicant is entitled in other proceedings to raise issues as to what the Parole Board has done, but those issues are not relevant to the question as to whether or not the District Court had jurisdiction to try him for the charges the subject of the indictment nor as to whether or not he was guilty of those
(Page 5)
- charges. The exercise by the Parole Board of its discretion to suspend parole has no bearing upon either of those matters.
9 The application for leave to appeal against conviction fails.
10 In his notice of application for leave to appeal against sentence the applicant stated merely that the sentence "was, in all the circumstances, manifestly excessive". In the particulars which he filed subsequently he raised again his argument as to "Double Jeopardy", submitting that the suspension of his parole was not taken into account by his Honour when sentencing him and contending that the failure to do so resulted in a sentence which was manifestly excessive and infringed the totality principle. As it happened, the only time that his Honour was entitled to take into account (see Sentencing Act 1995, s 87) was the period of eight days which elapsed in September 1998 between the applicant's remand in custody and the suspension of his parole and a similar period which elapsed in April 1999 between his obtaining bail and the cancellation of the suspension of his parole - a total of 16 days. When sentencing the applicant his Honour did not give credit for that time, remarking that he had concluded that "any time in custody has not been related to these offences but because of the breach acted upon by the Parole Board". In my opinion, his Honour was entitled to give the applicant credit for the total of 16 days to which I have referred but, bearing in mind the nature of the offences and the prior criminal history of the applicant, it would have been inappropriate to reduce the sentence by such a small amount.
11 In his particulars the applicant referred also to a request which he made to his Honour to delay his sentencing and to grant him bail so that he might prepare his defence to some charges of driving a motor vehicle without a licence. It seems that the charges arose while the applicant was subject to an early release order so that, by reason of the provisions of s 70 and s 71 of the Sentence Administration Act 1995, if he were sentenced to imprisonment upon conviction of those charges he would lose his remissions. His Honour did not accede to the request. In the circumstances, it would have been quite inappropriate for him to do so.
12 Clearly, the three offences for which his Honour sentenced the applicant were serious. Their very nature called for a sentence of imprisonment. Bearing in mind that at the time when the applicant committed the offences he was 42 years old and on parole in respect of a total of some 17 years imprisonment imposed for a series of offences including 10 counts of breaking, entering and stealing and 8 counts of
(Page 6)
- armed robbery in company, the sentence imposed by his Honour is by no means excessive.
13 In my opinion, the application for leave to appeal against sentence also must fail.
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