Isaacs v The Queen
[2004] WASCA 135
•14 JUNE 2004
ISAACS -v- THE QUEEN [2004] WASCA 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 135 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:194/2003 | 14 JUNE 2004 | |
| Coram: | MURRAY J LE MIERE J JENKINS J | 14/06/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | SAMUEL TREVOR CHARLES ISAACS THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 8(4) |
Case References: | Nil Thompson v The Queen (1992) 8 WAR 387 Herbert v The Queen (2003) 27 WAR 330 Michael v The Queen [2004] WASCA 4 Little v The Queen [2001] WASCA 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ISAACS -v- THE QUEEN [2004] WASCA 135 CORAM : MURRAY J
- LE MIERE J
JENKINS J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File Number : IND 1244 of 2003
Catchwords:
Criminal law and procedure - Sentencing - Turns on own facts
(Page 2)
Legislation:
Sentencing Act 1995 (WA), s 8(4)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr E J Cade
Respondent : Mr S E Stone & Mr D Lima
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Thompson v The Queen (1992) 8 WAR 387
Herbert v The Queen (2003) 27 WAR 330
Michael v The Queen [2004] WASCA 4
Little v The Queen [2001] WASCA 87
(Page 3)
1 MURRAY J: This was a matter which came before the District Court by way of what is colloquially called the fast-track system of pleas of guilty. It was an aggravated armed burglary offence which carried a statutory maximum of 20 years imprisonment and the circumstance of aggravation was that the applicant was armed with a tomahawk. The reason why that would be a circumstance of aggravation is, I would have thought, evident enough, that if, as in fact occurred in this case, the offender encountered anybody else in the course of the commission of the offence, then the prospect of somebody being harmed is very substantially increased.
2 The sentence that was imposed in the District Court on 12 November 2003 was one of two years imprisonment and it was backdated for the time that the applicant had spent in custody to the date of the offence, 1 June 2003. As I indicated to counsel during the course of the submissions on the appeal, it would seem to me that, because parole eligibility was ordered, the applicant became eligible for parole on 1 June 2004.
3 The appeal, as argued, turns on a very limited point and so I think it is unnecessary to address the grounds in their full particularity. The basis upon which the application for leave is pursued is that the sentence was excessive, having regard particularly to the fact that it is submitted that her Honour should be taken to have overlooked the circumstances in which the plea of guilty had been entered pursuant to the expedited process of committal for sentence.
4 The way in which the plea was entered was, when the matter first came before the sentencing judge on 12 November 2003, opened by the prosecutor who said, prior to stating the facts to the court, "This matter proceeds to the court by way of an expedited committal for sentence pursuant to s 101 of the Justices Act," and throughout the short proceedings which then followed it was evident that that was the basis upon which the matter was being pursued. In her turn, her Honour the sentencing Judge commenced her remarks upon sentence by saying, "The offender has been convicted on his own pleas of guilty of one count of aggravated burglary," and so on.
5 The other observation which her Honour made, which seems to me to bear upon the quality of the plea, the fact that the property the subject of the burglary was the East Waikiki Primary School. It happened at night. A security alarm was activated by the applicant's presence in the course of the commission of the offence and he was, as her Honour put it, "located" at the scene by the police. He had collected about $3500 worth
(Page 4)
- of goods, but had not been able to take them from the property. In short, he was apprehended red-handed, as the expression has it.
6 In those circumstances it would seem to me that, although the plea attracted the discount provided for in the Sentencing Act 1995 (WA), and attracted a greater discount because of the time at which the plea was entered and the circumstances in which it was entered, it would also be relevant to have regard to the fact that the applicant would have no capacity to dispute the prosecution case to establish his guilt.
7 The sentencing Judge, it has to be agreed, says nothing in the course of her remarks upon sentence about the process of discounting for the entry of the plea. Her Honour discusses, otherwise fully, the circumstances of the case, both in relation to the seriousness of the offence committed and the circumstances personal to the offender. Her Honour merely said, summing up her views about the case:
"In considering the length of the sentence, I normally would have sentenced you to three years imprisonment because of the seriousness of being armed and committing this offence."
8 Her Honour then went on to reduce that term to one of two years imprisonment, having regard to amendments made to the sentencing regime under the Sentencing Act, as her Honour was required to do. So her Honour did not quantify or discuss expressly the nature of the process by which she arrived at a term of three years imprisonment, but it was not incumbent upon her to do so.
9 It seems to me that it is very evident that her Honour did have firmly in mind the way in which the pleas of guilty had been entered and it is not established to my satisfaction that her Honour overlooked that or failed to provide the appropriate discount in relation to it. Having regard to all those matters which would be concerned with the seriousness of the offence committed and having regard to the personal circumstances of the applicant and the very limited mitigation which was available, the only substantial mitigation being that to be derived from the entry of the pleas of guilty, it seems to me that merely to have regard to the term of three years imprisonment does not of itself establish that her Honour must have overlooked this aspect of the case. I think it is perfectly apparent that a term of about that length would indicate that a discount of the ordinary kind in conventional terms had in fact been given.
10 The grounds of appeal pursue other matters concerned with the personal circumstances of the applicant, the discount provided by way of
(Page 5)
- backdating for time spent in custody and matters of that kind. There is no need to discuss those matters having regard to the way in which the matter has been presented and argued before this Court.
11 The only other observation that I would make is that one matter which was a significant circumstance of aggravation, which is also given no great prominence, although her Honour refers to it, was the fact that the offence in question was committed during the course of the applicant's service of a term of parole. That was, upon my understanding, a parole period of about five months only, upon which he was released on 30 April, that term then expiring on 3 October. So he was about a month into a parole period when this offence was committed on 1 June 2003 and yet her Honour backdated the term, making no allowance in relation to the time otherwise remaining to be served in respect of that earlier sentence, and so effectively providing for the balance of that term to be entirely swallowed up by the non-parole period of a year which would result from the term of two years imposed by her Honour. That, to my mind, also reflects very substantial leniency in this case.
12 I would just add the final observation that, having regard to this applicant's history of offending and the circumstances generally, it seems to me that for her Honour to grant parole eligibility in relation to this sentence, in the face of a recommendation against that in the pre-sentence report, itself marks very considerable leniency. For all those reasons I would refuse leave to appeal.
13 LE MIERE J: I too would refuse leave to appeal for the reasons given by the presiding Judge and have nothing to add.
14 JENKINS J: I too would dismiss the application for the reasons given by Murray J. I would only add that the Sentencing Act 1995 (WA), s 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. It is correct, as Murray J has noted, that although the fact of the plea was specifically referred to by the sentencing Judge, she did not specifically refer to the fact that she was reducing the sentence she would otherwise have imposed because of the early plea of guilty, being a fast-track plea of guilty.
15 However, despite the failure of her Honour to specifically refer to that reduction, taking into account all of the matters which Murray J has referred to, I am not persuaded that the sentence is otherwise than an
(Page 6)
- entirely appropriate sentence, given the seriousness of the offence and the matters personal to the applicant, including his plea of guilty.
0
5
1