Keatley v The Queen
[2000] WASCA 30
•22 FEBRUARY 2000
KEATLEY -v- THE QUEEN [2000] WASCA 30
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 30 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:168/1999 | 10 DECEMBER 1999 | |
| Coram: | MALCOLM CJ WALLWORK J MURRAY J | 22/02/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | GARY PAUL KEATLEY THE QUEEN STEPHEN DAVID SCHOFIELD |
Catchwords: | Criminal law Sentencing 3 year sentences for stealing pearls and pearl shell Whether applicants had played a lesser role than another offender Whether participants could be punished equally Whether sentences should have been suspended |
Legislation: | Nil |
Case References: | Lam v Beesley [1992] WAR 88 Lowe v R (1984) 154 CLR 606 Nevermann v R (1989) 43 A Crim R 347 Postiglione v R (1997) 145 ALR 408 R v GP (1997) 18 WAR 196 Williams v The Queen, unreported; CCA SCt of WA; Library No 920131; 6 March 1992 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Duffy (1996) 85 A Crim R 456 Gould v Reid (1990) 4 WAR 249 Gray v R [1977] VR 225 Haysdale Nominees Pty Ltd v Shepherd (1997) 98 A Crim R 435 House v The King (1936) 55 CLR 499 Kerry v Henderson (1990) 55 SASR 42 La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996 Lloyd v Faraone [1989] WAR 154 Mortimer v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995 Parsons v R (1993) 66 A Crim R 550 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Laurentiu (1992) 63 A Crim R 420 R v Liddington (1997) 18 WAR 394 Rowlston v Kenny (1982) 4 Cr App R 85 Schofield (1978) 67 Cr App R 282 Schuster v R, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 Sindel v R, unreported; CCA SCt of WA; Library No 990110; 16 March 1999 Thompson Holidays Ltd (1973) 58 Cr App R 429 Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999 Veen (No 2) (1988) 164 CLR 465 Verschuren v R (1996) 17 WAR 467 Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KEATLEY -v- THE QUEEN [2000] WASCA 30 CORAM : MALCOLM CJ
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
- Respondent
(Page 2)
Catchwords:
Criminal law - Sentencing - 3 year sentences for stealing pearls and pearl shell - Whether applicants had played a lesser role than another offender - Whether participants could be punished equally - Whether sentences should have been suspended
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Representation:
CCA 168 of 1999
Counsel:
Applicant : Mr T F Percy QC & Mr W J Chesnutt
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Sharon Auburn
Respondent : State Director of Public Prosecutions
CCA 169 of 1999
Counsel:
Applicant : Mr T F Percy QC & Mr W J Chesnutt
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Sharon Auburn
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Lam v Beesley [1992] WAR 88
Lowe v R (1984) 154 CLR 606
Nevermann v R (1989) 43 A Crim R 347
Postiglione v R (1997) 145 ALR 408
R v GP (1997) 18 WAR 196
Williams v The Queen, unreported; CCA SCt of WA; Library No 920131; 6 March 1992
Case(s) also cited:
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Duffy (1996) 85 A Crim R 456
Gould v Reid (1990) 4 WAR 249
Gray v R [1977] VR 225
Haysdale Nominees Pty Ltd v Shepherd (1997) 98 A Crim R 435
House v The King (1936) 55 CLR 499
Kerry v Henderson (1990) 55 SASR 42
La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996
Lloyd v Faraone [1989] WAR 154
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995
Parsons v R (1993) 66 A Crim R 550
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Laurentiu (1992) 63 A Crim R 420
R v Liddington (1997) 18 WAR 394
Rowlston v Kenny (1982) 4 Cr App R 85
Schofield (1978) 67 Cr App R 282
Schuster v R, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Sindel v R, unreported; CCA SCt of WA; Library No 990110; 16 March 1999
Thompson Holidays Ltd (1973) 58 Cr App R 429
Thorne v The Queen, unreported; CCA SCt of WA; Library No 990154; 29 March 1999
Veen (No 2) (1988) 164 CLR 465
(Page 4)
Verschuren v R (1996) 17 WAR 467
Weng Keong Chan (1989) 38 A Crim R 337
(Page 5)
1 MALCOLM CJ: In my opinion these applications for leave to appeal should be granted but the appeals dismissed for the reasons to be published by Wallwork J with which I am in agreement.
2 WALLWORK J: Both the applicants apply for leave to appeal against a sentence of 3 years imprisonment with eligibility for parole which sentence was imposed upon each of them in the District Court at Broome on 2 August 1999.
3 The applicants had pleaded guilty to stealing pearls and pearl shell being the property of Broome Pearls Pty Ltd, at Yampi Sound on or about 3 March 1998. The allegation was that five people were involved in the theft. One of them has since pleaded not guilty.
4 When sentencing the applicants, the learned Judge said amongst other things:
"I have considered all the available options. I don't believe that any sentence other than a sentence of immediate imprisonment is one which is appropriate. There are no sufficient reasons why the sentences in each case should be suspended. Despite your different levels of knowledge, and I am talking about the three of you compared to Pyke, I don't see any real reason to differentiate between the four of you in relation to sentence…."
5 His Honour then sentenced four offenders, including the two applicants, to 3 years imprisonment with eligibility for parole.
6 At the hearing of this application, counsel for the applicants contended that the two applicants had played a much lesser role in the offence than Mr Pyke. Mr Pyke had received the same sentence as they had. Counsel claimed that the applicants suffered from a justifiable sense of grievance in the sense discussed in Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 145 ALR 408.
7 In Postiglione, Dawson and Gaudron JJ, at 411 to 412 said:
"However the parity principle, as identified and expounded in Lowe v R, recognises that equal justice requires that, as between co-offenders there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of
(Page 6)
- the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
8 In this case counsel for the applicants submitted that the two applicants had "different degrees of criminality" to the offender Pyke, who received the same sentence. Therefore it was said that they should have their sentences reduced. It was submitted that the two applicants had had a lesser degree of criminality than Mr Pyke because it was said that Mr Pyke had been in a completely different category to them, having worked for the complainant company for 11 years.
9 At the sentencing hearing the learned prosecutor had said:
"The accused Connolly and the offender Pyke acted as driver and navigator. Both the accused Connolly and the offender Pyke had knowledge as to the location of the pearl farm and the offender Pyke had been an actual employee of Broome Pearls Pty Ltd having been employed there for 11 years."
10 It was submitted for the applicants that Mr Pyke had been able to take the other offenders to the location. Also he knew what the shell and pearls were worth. In the plea in mitigation, counsel had said:
"My instructions are, sir, that in the case of Mr Brooks, Mr Keatley and Mr Schofield, none of those three have any knowledge whatsoever of the pearling industry. They are not involved in that industry, have never been, have never been to a pearl farm, had no idea what it was, what was to be expected in attending a pearl farm."
11 It was said that the learned sentencing Judge had recognised the difference in the criminality of the offenders when he had said:
"As I said, you, Pyke, had some experience as a diver and had some knowledge with your co-offender as to what lines would be worth lifting; in other words, there would be no point in lifting lines that were not ready for harvesting, that were only one or two year shells…You were the people, the three people, except Pyke who was of some other use to the co-offender - were the labourers who lifted the panels and shucked the shells on the way back to One Arm Point. You all acknowledge by
(Page 7)
- your pleas that you were part of this scheme to steal a large quantity of pearls from the pearl farm. Before being involved in this offence, all of you have a background as good hardworking men with only minor offences to your names."
12 The learned Judge also said:
"In March the co-offender and you, Schofield, Pyke and Keatley, travelled to One Arm Point where you, Brooks, were already present and both Connolly, the man who has pleaded not guilty, and you, Pyke, had some knowledge of the industry as divers. You had been involved, Pyke, in the industry for some 11 years before going on sick leave because of your shoulder problem due to the bends, and the other three of you were along simply as deck hands. When it was dark the boat was driven from One Arm Point to the pearl bed and the panels were lifted, the shells cut out, panels cut from the lines and tossed overboard. On the way back to One Arm Point the shells were opened and the pearls were put into a container. Any small non-commercial pearls were simply thrown overboard with the shells. After heading back to One Arm Point, you got back to Broome and the co-offender flew to Perth to make contact with the person who was to dispose of the pearls and to receive payment in due course."
13 It was submitted for the applicants that Pyke and Connolly were "the navigators and directors". They had the knowledge and they knew the industry. The others had been simply conscripted by them, albeit as willing participants.
14 It was said that a compounding feature was that the learned Judge had told the applicants and Mr Brooks, that they had made full admissions to the police on the video records of interview whereas initially Pyke had not admitted his involvement and further, what he had been saying to the police had been unbelievable. He had later pleaded guilty.
15 In essence, the applicants were contending that firstly, that Mr Pyke had been more heavily involved in the offence, and secondly that he had not initially co-operated with the police; that there was nothing in the offenders' antecedents which would lift them into the same category as Mr Pyke. None of the offenders had had any relevant convictions for dishonesty. If anything, Mr Pyke's record was said to have been worse, as he had previously had a conviction of grievous bodily harm.
(Page 8)
16 Counsel for the respondent said that from all the information in the brief it was absolutely clear that the ringleader of the theft was Connolly. It was Connolly who had recruited the applicants and Pyke. It was further said that there was no suggestion in any of the materials before the court that Pyke was to obtain any additional benefit to the others or that it was Pyke who went about trying to recruit the two applicants. Connolly had done that. He had recruited the two applicants and Pyke. Further, Pyke had in no way acted as an overseer. Pyke had been a recruit like the two applicants although he had had additional knowledge. It was said that this was a case where Pyke was as much a recruit as the two applicants. His role had been to provide whatever knowledge he had and to assist in the lifting of the shells and so forth. It was further said that he had pleaded guilty at the first opportunity as had the other two applicants and the fact that he had not made admissions in his record of interview initially, was not of any significance. It was said that the person dealing with the buyer of the pearls which were stolen had been Connolly. That was abundantly clear from the telephone intercepts.
17 As stated above, the learned sentencing Judge told the offenders that despite their different levels of knowledge, he did not see any real reason to differentiate between the four of them in relation to sentence.
18 In discussion with counsel his Honour referred to the fact that Mr Pyke had not initially co-operated with the police. His Honour said:
"I really don't see there is any real distinction because they have all pleaded guilty at the first opportunity and that's the basis upon which the discounts are given."
19 With respect to the respective criminality of the offenders, it is relevant that prior to sentencing the learned prosecutor had told the sentencing Judge that the facts were that the accused Mr Connolly had approached the other four offenders with a proposition for stealing pearls from Broome Pearls Pty Ltd, a sea based pearling operation situated in Yampi Sound near Cockatoo Island. Connolly had apparently been introduced to a person who was prepared to receive any stolen pearls and dispose of them for monetary reward. Connolly had purchased a six metre fibreglass centre console boat, powered by twin 70 hp motors. Later Connolly and the other four offenders had travelled across the open sea to the pearl farm, arriving there at dusk. Connolly and the offender Pyke had acted as driver and navigator whilst the others had acted as deck hands. Both Connolly and Pyke had had knowledge as to the location of the pearl farm. Pyke had been an employee of Broome Pearls Pty Ltd,
(Page 9)
- having been employed there for 11 years. Connolly and the other four offenders had waited for cover of darkness before manoeuvring the boat alongside the long lines to which the drop nets containing pearl shells were attached. They had then worked their way along the pearl line, pulling panels out of the water and cutting the shell out of the pockets. They had opened each pearl shell in the process, killing each animal and removing the pearl. The remnants of pearl shell and drop nets had been thrown overboard. 284 pearl panels had been pulled out of the water. In several hours 1710 pearl shells had been opened and removed. After the pearls had been removed they had been placed into a water bottle for ease of transportation. The offenders had then returned to One Arm Point and then to Broome. Initially Brooks, Schofield and Keatley had admitted their involvement to the police. Pyke had not initially admitted his involvement. No pearls had been recovered. It was not believed by the prosecution that any of the offenders had received payment for the stolen pearls as they had been arrested before the transaction could be completed. It was not known who the receiver was.
20 The learned prosecutor told the sentencing Judge that the mesh panels which were stolen had been valued at $1704. The 1710 pearl oyster shells had been valued for insurance purposes at $185 each. The meat from all the shells had been valued at $11,115. Allowing for a 95 per cent success rate from the 1710 pearl shells, the pearls which would have been recovered would have been valued at $373,520 as a base valuation. The retail value would have been somewhere around $2 million - maybe less, or even more. The oyster shells which had been stolen could have been used for a second and third operation. It was said that the estimated total loss to the company was therefore $634,289, taking the cost price.
21 It is not clear what the "cost price" actually was, but that was the estimation given by the learned prosecutor. The estimation given did not include projected future earnings from the shells from a second and third operation or the retail price of the pearls stolen.
22 The learned prosecutor advised the Judge that the growing of the pearls was about a three year process and that the pearl shell which had been stolen was ready for harvest. There had to be some prior knowledge of the location to know what line of pearl shells to lift because there were other first and second year lines of pearl shells at the farm.
23 In Williams v The Queen, unreported; CCA SCt of WA; Library No 920131; 6 March 1992, concerning a series of offences involving the
(Page 10)
- stealing of motor vehicles, Pidgeon J, with whom Seaman and Ipp JJ agreed, said:
"The basic principle relating to the culpability of each participant was referred to by Mr Hall at the opening of his remarks. Mr Hall referred to the remarks of Sir Francis Burt in De Bunnetat v The Queen, unreported; SCt of WA; Library No 6125, delivered on 3 December 1985 when his Honour said:
'Time and time again the court has said that if you have a planned operation of this kind then all parties who play their part in carrying out the plan should be held to be equally culpable, generally speaking, and in my view, the trial Judge cannot be said to have been wrong to have done so in this case.'
As Mr Hall mentioned there is reference in the second edition of Thomas' Principles of Sentencing at 139, when referring to bank robbers, that every participant, no matter whether he has kept watch, no matter what he did, generally speaking, must expect the same sentence, and that minor participants, generally speaking, must expect the same sentence'."
25 In my view, although Mr Pyke had some extra knowledge due to the fact that he had worked with the company, the enterprise was a joint enterprise. The two applicants and Mr Pyke were to benefit equally from the theft. In fact they did not benefit, but that was the intention.
26 Having in mind all the circumstances of this case, in my view there was not a relevant disparity in the sentences in this case. The learned Judge was fully aware of all the circumstances of the offences. He took the view as already stated that:
"Despite your different levels of knowledge, and I am talking about the three of you compared to Pyke, I don't see any real reason to differentiate between the four of you in relation to sentence."
27 I am not persuaded that his Honour erred in coming to that view.
(Page 11)
28 The next ground of appeal is that it is said that the learned sentencing Judge assessed the loss suffered by the owner of the pearls by reference to the possible future value of the stolen and damaged property and that he erred in law in this regard. It was submitted that the proper value of the property for the purposes of sentencing was $373,520, rather than the $634,289 which had been calculated by the prosecution, the details of which are referred to above. It was submitted that because of the difference in the two sums, the sentence of 3 years imprisonment had been based on a significant factual error - that the value taken by his Honour was an estimate of the loss to the company resulting from the theft, as distinct from the value of the property stolen.
29 Counsel submitted that the learned sentencing Judge had gone further than saying that the theft could well cause financial difficulty to the company. His Honour had quantified the amounts. It was submitted that there was "an uneasy feeling in reading this transcript that he has dealt with it on the basis that it is a final figure of $634,289." It was said that the learned Judge had spelt the loss out to the last dollar. It was submitted by counsel that it may well be that there could be some further loss accruing to the company and that the criminality had extended beyond the dollar value of the actual pearl taken, but it was said that to calculate the loss down to the last dollar had been unfair in the circumstances. It was submitted that that process may have placed the criminality of the applicants into a higher bracket, a $600,000 bracket, whereas it should have been the sum of $373,520 which his Honour was concerned with.
30 In his sentencing remarks, after setting out the loss which had been referred to arising from the theft and having referred to the total value of pearls, being some $373,520, and the possibility of the shells being used for a second and third harvest, and to the total loss to the company being some $634,289, his Honour noted that counsel for the applicants had taken issue with the estimated losses and the future losses. His Honour said: "Really nothing turns on that."
31 In my view it is not apparent from the sentences, or his Honour's sentencing remarks, that his Honour placed undue significance on the $634,000 calculation rather than the sum of $373,000.
32 I would not uphold ground 1 of the ground of appeal concerning the alleged value of the property stolen.
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33 The next ground of appeal alleged that the learned Judge had erred in having regard to the issue of trust as an aggravating factor. It was submitted for the applicants that the issue of trust had been irrelevant as a sentencing consideration, as the applicants had not been the servants or agents of the owner of the stolen property. It was submitted that his Honour had said that the pearling industry operated on a high degree of trust reposed in the operators because of the remote locations in which the shells are found and by the very nature of the pearls themselves. The learned Judge had also spoken of the remoteness of the locations and the ease with which pearls are transported.
34 It is not apparent from his Honour's remarks that he was sentencing the two applicants for a breach of trust. His Honour was speaking generally of the pearling industry and the seriousness with which the stealing of pearls and pearl shells in the relevant circumstances must be regarded from the point of view of general deterrence.
35 In my view this ground of appeal is not sustained.
36 A further ground of appeal is that the learned sentencing Judge erred in failing to give any, or any sufficient reasons for the structure of the sentence he imposed, in that he did not fix any starting point and did not specify in particular, the discounts which had been allowed in respect of the early pleas of guilty and the co-operation with the authorities. It was further contended that his Honour did not indicate where the offence fell in the scale of criminality for an offence of stealing and that he had not given sufficient reasons for declining to suspend the sentences of imprisonment.
37 The applicants relied on the words of the learned Chief Justice in Nevermann v R (1989) 43 A Crim R 347 at 349 where his Honour said:
"The decision what sentence to impose involves the exercise of a discretion based upon the relevant facts as found by the sentencing Judge. Consequently the process of reasoning needs to be revealed. In my opinion a sentencing Judge, no less than a trial Judge, has a duty to reveal his reasons."
38 It was submitted that the degree of detail in the reasons must be sufficient for the offender to know why he has received the sentence and for the public to understand the process of sentencing; that the applicants are entitled to know the essential findings of fact upon which the decision is based: Lam v Beesley [1992] WAR 88.
(Page 13)
39 In this case the learned sentencing Judge had heard lengthy sentencing submissions. His sentencing remarks dealt fully with the facts and the general circumstances of the theft. Those remarks occupy approximately five pages of fairly closely typed transcript. Additionally, the sentencing Judge was well aware of so-called "starting points" and the normal deductions which are given for pleas of guilty and the lack of prior convictions. It is not essential for a sentencing Judge to state in detail why he does not suspend a sentence. There is no authority for such a proposition.
40 It was further submitted that the alleged failure by the learned sentencing Judge to give sufficient reasons precluded, or at least significantly impeded, the applicants' proper consideration of their potential right of appeal. It was said that as a result of the alleged failure to give sufficient reasons, the applicants were precluded from assessing whether the sentence was manifestly excessive. These last mentioned submissions should in my view not be upheld. The applicants' counsel did not appear to have any difficulty in formulating where it was said that the learned sentencing Judge had gone wrong.
41 Concerning whether the learned sentencing Judge erred in failing to suspend the sentences of imprisonment, it was conceded that other options such as a community based order or a fine would not have been appropriate. However it was submitted that once it was decided that an order for imprisonment was inevitable, the court must proceed to consider whether the sentence of imprisonment could be suspended and that all the relevant circumstances of the case must be considered in making that determination.
42 It was further submitted that there was a real prospect that the rehabilitation of the applicants would be assisted by the suspension of any term of imprisonment imposed - R v GP (1997) 18 WAR 196 and that an immediate custodial sentence was not the only appropriate option.
43 What his Honour said with respect to a possible suspension of the sentence was:
"I have considered all of the available options. I don't believe that any sentence other than a sentence of immediate imprisonment is one which is appropriate. There are no sufficient reasons why the sentences in each case should be suspended".
(Page 14)
44 It was submitted that there were matters such as the applicants' former good records, their early pleas of guilty, the fact that they had not profited from the crime to any extent and their alleged low level of involvement which should prima facie have lead to a suspension of the sentences, if there were not a particularly good reason why they should not be suspended. It was submitted that simply saying that there were no sufficient reasons for the sentences to be suspended was not sufficient.
45 As stated above, there is no decided case which requires a Judge to set out in detail in his reasons why a sentence of imprisonment will not be suspended. In my view that there was no error in this case in the learned sentencing Judge coming to the view that there were no sufficient reasons why the sentences in each case should be suspended. The question of general deterrence was a significant consideration in this case. This ground of appeal is not sustained.
46 The final ground of appeal was that the learned sentencing Judge erred in imposing terms of imprisonment of three years which were excessive in all the circumstances. It was said that the learned sentencing Judge had had undue regard to the aspect of general deterrence and had paid inadequate regard to the circumstances personal to the applicants. There was also the fact that the applicants had not received any money from the offences. It was said that the fact that the applicants had co-operated fully with the police and had pleaded guilty at the first opportunity had not been given sufficient weight in the sentencing process.
47 It is apparent from his Honour's sentencing remarks that his Honour fully appreciated all the facts. Amongst other things, his Honour said:
"All of you have a background as good hardworking men with only minor offences to your names. None of you had thought through the implications of what you were getting involved in and the effect of that involvement on yourselves and on your families and your reputations. All of you have been severely affected by your involvement in relation to family disruption, in relation to financial losses, in relation to employment, in relation to forced business sales, in relation to relocation and selling of houses."
48 His Honour then discussed the personal circumstances and background of the applicants. It is apparent from the detail with which he went into those matters that the learned Judge was fully appreciative of
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- the background of the applicants and the effect of a sentence of imprisonment on them. However, his Honour came to the view that he was required in all the circumstances to impose an immediate term of 3 years imprisonment upon each of the applicants. In my view, due to the serious nature of the offence it cannot be said that his discretion miscarried in this regard.
49 I would allow the applications for leave to appeal but dismiss the appeals.
50 MURRAY J: I also agree with Wallwork J that the appeals should be dismissed. I have nothing to add to his Honour's reasons.
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