Jones v The Queen
[2003] WASCA 316
•12 DECEMBER 2003
JONES -v- THE QUEEN [2003] WASCA 316
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 316 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:205/2002 | 11 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ SCOTT J MCKECHNIE J | 12/12/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence varied by the making of a parole eligibility order | ||
| D | |||
| PDF Version |
| Parties: | VINCENT IAN JONES THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Whether a parole eligibility order appropriate Cancellation of parole Time to be served No new principles |
Legislation: | Nil |
Case References: | Garlett v The Queen (2000) 111 A Crim R 336 Hayden v The Queen [2003] WASCA 210 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JONES -v- THE QUEEN [2003] WASCA 316 CORAM : MALCOLM CJ
- SCOTT J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Whether a parole eligibility order appropriate - Cancellation of parole - Time to be served - No new principles
Legislation:
Nil
Result:
Appeal allowed
Sentence varied by the making of a parole eligibility order
(Page 2)
Category: D
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC & Mr D N Ryan
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Garlett v The Queen (2000) 111 A Crim R 336
Hayden v The Queen [2003] WASCA 210
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted and the appeal allowed to the extent that while the sentences which total 15 years imposed on 25 October 2002 are confirmed, leave to appeal should be granted and an order made for eligibility for parole in respect of each of the sentences imposed. I have reached this conclusion for the reasons to be published by McKechnie J with which I am in agreement.
2 SCOTT J: I have had the opportunity of reading in draft the reasons to be published by McKechnie J.
3 I agree with his Honour's reasons and with the orders proposed.
4 In my opinion, the learned Judge misapprehended the effect of the outstanding parole period which the applicant "owed" to the Parole Board. The learned sentencing Judge was apparently of the view that the finite term imposed would be served first and then the outstanding parole period would run. That was not so. The structure of the sentence was such that the earlier parole period was absorbed within the finite term.
5 In my opinion, the applicant may benefit from a period of community supervision at the end of the custodial portion of his sentence. Parole would give the applicant the opportunity for rehabilitation into the community with the assistance of a parole officer. If, as the appellant says, he wishes to make a substantial contribution to the life of his two children, he may have a parole officer to assist him in doing so.
6 I agree that the applicant will not necessarily be granted parole because of his previous parole history. He will need to demonstrate his resolve to live a law-abiding life if he is to persuade the Parole Board to release him on parole again.
7 MCKECHNIE J: On 25 October 2002 the applicant was sentenced to a total of 15 years' imprisonment for a series of offences, including aggravated sexual penetration. The sentencing Judge, Wisbey DCJ, specifically declined to make a parole eligibility order.
8 The facts were outlined by the Judge, as follows:
"As to count 1 you entered the residence at approximately 6 am whilst the husband, wife and the children were sleeping.
(Page 4)
- Once inside the house you removed a handbag and upon entering the main bedroom were disturbed and chased from the house by the husband.
As to count 2, whilst making your escape the husband took hold of you causing you to swing towards him with the knife stabbing and wounding him. You subsequently returned to the property to retrieve a bag you had dropped and threw stubby bottles at the husband and wife injuring both of them. That action counts for the matters the subject of counts 3 and 4.
As to count 5, on or about 24 June 2002 at approximately 11 pm you gained entry to the dwelling of the complainant, a 59-year-old widowed pensioner living alone. The complainant, having returned to her bedroom from the toilet, observed you rummaging through her belongings and you were holding a screwdriver in one hand. You lunged at the complainant, knocking her to the floor, and demanded that she remove her pants which she declined to do and resisted you.
As a consequence you struck her to the face and head with a crystal vase, count 6, and having knocked her to the floor continued to strike her with an unknown object and to kick her, count 7. Fearing what might happen to her if she further resisted you the complainant lowered her pants whereupon you kicked her legs apart and parted her buttocks, count 8. You then vaginally penetrated her from behind before withdrawing and ejaculating in a shopping bag, count 9.
Having completed that activity you threatened that you would kill the complainant if she took steps to report your activities to the police, count 10. Having bound the complainant's legs and her arms to her legs you tied her legs to a doorknob and placed furniture and cushions on her body, count 11. It appears that in the course of carrying out this activity the screwdriver you were carrying penetrated the complainant's upper lip the nasal passage, count 12.
After taking a quantity of cash, handbag, credit cards and a mobile phone, and having forced the complainant to provide you with her bank account PIN number you obtained her car keys and evacuated the locality in her Subaru Liberty sedan.
(Page 5)
- You subsequently drove that vehicle at extremely high speed during a police pursuit contravening traffic control lights; count 13. It appears you managed to evade the police and subsequently attended at the Mirrabooka shopping centre where you used the complainant's bankcard to withdraw $20 from her account; count 14."
9 The Judge acknowledged the very early plea of guilty, noting that there was however no practical alternative. This was in part due to DNA evidence which conclusively linked the applicant to the second series of offences.
10 The Judge described the offences as home invasions, dishonesty, violence and sexual conduct of an extremely high level of seriousness. The Judge made an extensive review of the applicant's past history, noting particularly the psychiatric and psychological problems. A psychiatrist reported that the applicant's developmental history was chaotic and marred by experiences of violence and significant anti-social criminal offending. The Judge noted:
"The psychiatrist does not relate your offending behaviour to substance abuse and did not believe that any mental disorder difficulties provided an explanation or mitigation for your offending behaviour. He accepted, however, that there was a significant and severe disabling mental disorder not properly diagnosed or treated. Although that does not excuse your offending behaviour it provides some explanation for it, that is, it goes some way to explain your rather reduced sense of social responsibility."
11 In determining the appropriate sentence, the Judge expressly noted the psychological factors which have had some part to play in the development of the anti-social characteristics and that there must be a proper allowance made for those factors.
12 The Judge commenced the sentencing by stating what he regarded as the appropriate head term and then allowing a discount for matters of mitigation including the early plea of guilty.
13 On that basis the Judge regarded the offence of aggravated sexual penetration as warranting a head sentence of 16 years, which he reduced to 12 years.
(Page 6)
14 The balance of the sentences imposed were ordered to be served concurrently. None of those sentences exceed three years.
15 Although the applicant sought leave to appeal on two grounds, he abandoned the ground alleging the sentences in total were manifestly excessive and presented argument only in respect of ground 2, which is as follows:
"2 The learned sentencing Judge erred in the exercise of his discretion by failing to order that I be eligible for parole in respect of the said sentences particularly having regard to:
(a) circumstances which might be relevant to me at the time when I would become eligible to be released from prison on parole and in particular the effect upon my behaviour of rehabilitative programs during my term of imprisonment, and
(b) the various matters personal to me which were put to the learned sentencing Judge in the plea in mitigation made on my behalf and the matters contained in pre-sentence, psychological and psychiatric reports concerning me including in particular the mental disorder from which I suffer."
"The prosecution opposes an order for parole eligibility and it is necessary to consider the factors identified in section 89 of the Sentencing Act. Having regard particularly to, firstly, the extremely serious nature of your offending behaviour, secondly the fact that all the offences were committed whilst you were on parole, thirdly your extensive record of prior offending and lack of response to community supervision, and fourthly the fact that you are already subject to an order which enables you to receive the maximum parole supervision permitted, it is my view that an order for parole eligibility is inappropriate and I decline to make it."
17 There are numerous cases on the exercise of the discretion to grant or refuse parole. The principles are conveniently summarised in Garlett v The Queen (2000) 111 A Crim R 336 per Anderson J at par 87:
(Page 7)
- " … The statement in Thompson (1992) 8 WAR 387 that the philosophy of the Act [Sentencing Act] suggests a bias towards eligibility does not mean that sentencing judges must 'start from a presumption in favour of the grant of parole'. As I understand that case, it stands for the proposition that provided there is material before the sentencing judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is sufficient reason not to exercise that discretion in his or her favour. I am not persuaded that the trial Judge in this case approached the question otherwise than in accordance with the principles stated in Thompson."
18 In my opinion, the first three matters enumerated by the sentencing Judge are relevant and no legitimate criticism can be made in respect of them. Nothing in Garlett suggests a different result.
19 As to the fourth matter (the decision to refuse parole eligibility), the Judge may have been under a misapprehension. The Court has received advice from the Director of Public Prosecution that at the time of sentence the applicant, in colloquial terms, owed the Parole Board 797 days. The sentence imposed by the Judge will exceed this period. Having regard to the order in which the sentences are to be served, when the applicant completes the present sentence, he will be free of all parole obligations: Hayden v The Queen [2003] WASCA 210.
20 The Judge raised the issue of parole in the course of counsel's plea in mitigation when he said:
"WISBEY DCJ: Perhaps just before you leave the parole issue, prima facie it's difficult to find anything suggesting that parole eligibility is appropriate but he, at the expiration of any term he receives he is going to have some parole supervision as a result of the period that he was serving at the time of these offences, would he not?
SUTHERLAND, MR: Yes, that's the way the law works but in my submission the question of eligibility for parole needs to be addressed in terms of the range of factors that the Sentencing Act points up as being relevant.
WISBEY DCJ: Yes, I understand that but the point I'm making is that even without a parole ordered by myself he
(Page 8)
- will receive parole supervision because of the days that he owes the Parole Board.
SUTHERLAND, MR: Yes, subject to a decision of the Parole Board that he be released.
WISBEY DCJ: So that an eligibility for parole order on my part would simply be to shorten the sentence for no useful purpose.
...
SUTHERLAND, MR: No, but on the other hand in terms of prison management and the desirability of him being motivated to comply with the various programs that he inevitably must be offered I would have thought in the prison system there is a real benefit in there being - - -
WISBEY, DCJ: Isn't that benefit contained it [sic] the 800 days, that's the point, that he already owes the Parole Board?"
21 In the course of his sentencing remarks the Judge had earlier referred to the question of parole, albeit in a slightly different context, when he was determining the length of the sentence and the appropriate discount. He said:
"I have regard also to the fact that you owe the Parole Board 835 days because of breach of parole conditions."
22 In respect of this fourth matter which contributed to the Judge's decision to refuse a parole eligibility order, I conclude that he acted on a wrong appreciation of the effect of the days to be owed to the Parole Board. The Judge thought there would be parole supervision at the end of the fixed term when, in fact, there will be no such supervision. As a result, the applicant has made out his ground of appeal and it is necessary for this court to consider afresh the question of a parole eligibility order.
23 The first three matters which the Judge enumerated are weighty reasons not to make a parole eligibility order.
24 There are, however, other matters. The author of the pre-sentence report said:
(Page 9)
- "Jones is considered suitable for parole eligibility. This would ensure he has completed the relevant treatment and rehabilitation programmes within the prison environment before his release. This would also afford Mr Jones the opportunity of ongoing supervision upon his eventual release back into the community."
25 In the course of his submissions to the Court, the applicant demonstrated a glimmer of understanding and insight into his offending behaviour and the need to make substantial changes to his life, in part, because of his two young children.
26 In the end, the decision to grant or refuse a parole eligibility order is entrusted to Judges to exercise in the overall interests of the community. In this case I consider that the interests of the community would be best served by giving the applicant the opportunity for a period of release into the community under the supervised conditions of a parole eligibility order. In my opinion such a release offers the best hope for the applicant's rehabilitation, although such release is not automatic in view of the applicant's history. He will have to complete treatment and rehabilitation programmes.
27 I would grant leave to appeal, confirm the sentences totalling 15 years imposed on 25 October 2002, but make an order for parole eligibility in respect of each sentence.
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