Keed v The Queen
[2000] WASCA 236
•16 AUGUST 2000
KEED -v- THE QUEEN [2000] WASCA 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 236 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:212/1999 | 16 AUGUST 2000 | |
| Coram: | IPP J WALLWORK J MILLER J | 16/08/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | MICHAEL GEORGE KEED THE QUEEN |
Catchwords: | Criminal law Appeal against sentence Armed robbery in company Party with co-offender Relevance of release on bail pending sentence Turns on own facts |
Legislation: | Bail Act 1982 |
Case References: | Thompson and Owen v R (1998) 105 A Crim R 150 Bazzo & Frazetto v R (1999) 108 A Crim R 392 Goddard v The Queen [1999] WASCA 281 Gray v R [1977] VR 225 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 8 May 1994 Miles v The Queen (1997) 17 WAR 518 Mortimer v R, unreported; Library No 970576; 14 October 1997 R v Peterson [1984] WAR 329 R v Shaharuddin [1999] WASCA 229 Taylor v The Queen, unreported; CCA SCt of WA; Library No 98152; 6 April 1998 Urquhart v R, unreported; Library No 950484; 13 September 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KEED -v- THE QUEEN [2000] WASCA 236 CORAM : IPP J
- WALLWORK J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against sentence - Armed robbery in company - Party with co-offender - Relevance of release on bail pending sentence - Turns on own facts
Legislation:
Bail Act 1982
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr T F Percy QC & Ms L Boston
Respondent : Mr R E Cock QC & Ms J A Girdham
Solicitors:
Applicant : Max Crispe
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Thompson and Owen v R (1998) 105 A Crim R 150
Case(s) also cited:
Bazzo & Frazetto v R (1999) 108 A Crim R 392
Goddard v The Queen [1999] WASCA 281
Gray v R [1977] VR 225
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 8 May 1994
Miles v The Queen (1997) 17 WAR 518
Mortimer v R, unreported; Library No 970576; 14 October 1997
R v Peterson [1984] WAR 329
R v Shaharuddin [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 98152; 6 April 1998
Urquhart v R, unreported; Library No 950484; 13 September 1995
(Page 3)
1 IPP J: I invite Miller J to deliver the first judgment.
2 MILLER J: The applicant pleaded guilty to an indictment containing two counts of armed robbery in company. There was a co-offender charged with the same offences and the relevant facts as set out by the learned trial Judge were:
"You and one other, you two and a further person still to be dealt with, discussed a plan to steal money from premises in order to purchase heroin. You, Michael George Keed, drove Daniel McGuire to the scene. McGuire, you entered the store, pretending to be a customer, and selected a cool drink and a piece of chocolate. You approached the cashier and handed over a $5 note in pretended payment.
The person at the till opened the till and you then produced a blood-filled syringe which you pointed directly at the complainant. You made it clear by either words or actions that the complainant was under threat of having the needle inserted into her. You reached over the counter, took $500 and ran from the store. You then went into a waiting vehicle and were driven away by Keed. You later purchased heroin which you shared with Keed and with the other offender.
This occurred at about 11.30am. Later that evening you both drove to a store in Kinross. You had obtained - you, Keed, had obtained a serrated kitchen knife which was given to McGuire. You agreed upon a plan to enter the store and steal some more money to purchase heroin. McGuire, you followed a similar procedure. Both of you entered the store and, on entering, you McGuire again pretended to make a purchase. When the attendant opened the till you produced the knife and threatened her with it. You then removed $300 from the till."
3 After hearing submissions on behalf of the applicant the learned trial Judge released him on bail pending sentence. His Honour gave no specific reasons for doing so, but it appears likely he did so for reasons of mercy. Such could in my view constitute exceptional circumstances within the meaning of cl 4 of Pt C of Sch 1 of the Bail Act 1982, which provides:
"In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the
(Page 4)
- disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether -
(a) in the case of a defendant waiting to be sentenced, there is a strong likelihood that he will impose a non-custodial sentence; or
(b) in either case, there are exceptional reasons why the defendant should not be kept in custody,
and shall only grant bail to him if he is satisfied that -
(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant, the reason mentioned in paragraph (b) exists; and
(d) he may properly do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3."
4 In this case his Honour did not indicate that a non-custodial sentence was likely. He clearly indicated that an open mind was being kept in relation to the matter, saying:
"The position is this, Mr Crispe, in regard to Keed: I can't make a decision at the moment. It may all be too serious to deal with it on a non-custodial one, particularly the second offence, so I am not able without looking at it more to decide that, and I'm remanding it to 30 September. I will consider an application for bail to appear here on 30 September. Obviously, you will be able to carry out the test that you contemplated but my decision, I must make it clear, wouldn't be conditional on that test being successful. There may be other factors. There are too many other factors there."
- A few moments later his Honour added:
"Michael George Keed, could you stand? You have heard what I said to your counsel. I'm not able to make any decision now, and it will be remanded to 30 September and you must appear here then but you will be released on entering into the same bail conditions to which you surrendered, which is your bond of $10,000, the same surety and you must continue to reside at 8 Melrose Court, Kinross and the other conditions and curfew still apply and one of the factors, not a determining factor but
(Page 5)
- one of the factors, will be a very positive performance on the program you are now on, so you could stand down and when you have signed the appropriate bail papers, you will be released, so would you stand down?"
5 His Honour did not indicate that there was a strong likelihood of a non-custodial sentence and nothing his Honour said could lead to the drawing of such an inference. In essence, the applicant was the fortunate recipient of a merciful decision to allow bail pending sentence. He was a young man, had no record, and factors had been advanced as to why if remanded in custody he might be harmed. In this sense the trial judge clearly thought there were exceptional reasons why he should not be kept in custody pending sentence.
6 The applicant contends that the learned Judge erred in imposing an immediate custodial sentence, given "the finding he had made regarding the question of bail on 1 September 1999 and in the absence of any powerful reason having emerged in the interim period." However, in view of the trial Judge's clear indication that notwithstanding the grant of bail the question of the ultimate disposition of the matter remained open, I am unable to accept that this ground of appeal has any substance.
7 The second ground of appeal is that the sentence imposed on the applicant was manifestly excessive in that it did not adequately reflect the varying degrees of criminality of the applicant and the co-accused. The sentence imposed upon the applicant was one of 5 years' imprisonment. This was two years less than that which was imposed upon the co-offender. His Honour, in sentencing, made these observations:
"The offence of armed robbery is so serious and the effect on the victims so great that it is only in exceptional circumstances that the courts could consider dealing with the matter other than by imposing a term of imprisonment.
The first offence is particularly serious because a blood-filled syringe was used. I listened carefully to your counsel's submission that you were not a willing participant and took some steps to try and persuade the other offender not to continue with the offence. Nevertheless, you drove him away and you shared the money.
However, had the matter stopped there I would have continued to listen very carefully to the submission to see if all your circumstances and previous good character would cause me to
(Page 6)
- make an exception. However, the difficulty is that you willingly and voluntarily committed the second armed robbery offence later that evening and on this occasion you did enter the store so that the persons in the store saw two people. You provided the knife to enable the threat to be made and you agreed upon carrying out of an offence of this type when you set out the second time. This makes the offences too serious for me to deal with them other than by imposing a term of immediate imprisonment. However, your term will be governed by the fact of your previous good character and your fast-track pleas.
In these circumstances there will be a term of 5 years' imprisonment in respect of each offence, such terms to be served concurrently, and you are eligible for parole. The facts are too serious for me to suspend the term and I am left with no alternative but to make them immediate terms on the facts outlined to me. They will start from 1 September. Would you stand down."
8 The sentence of 5 years' imprisonment did, in my view, take account of parity. It was two years less than that imposed upon the co-offender, and although the co-offender had a record and may have been treated leniently, there was a 30 per cent differential in the two sentences. The learned trial Judge correctly reasoned that the commission of the second offence created the biggest difficulty for the applicant and that is reflected in the term of imprisonment imposed.
9 The sentence was, on any view of it, within the range that could properly be imposed and in my view was within parity in relation to the sentence imposed upon the co-offender. It was a very serious case. In one case a blood-filled syringe had been used, in the other a knife had been handed by the applicant to the co-offender. In all the circumstances I can see no basis upon which the second ground of appeal could succeed and I would therefore dismiss the application.
10 IPP J: I agree with everything that has fallen from Miller J. I would simply add this: the learned sentencing Judge made it quite plain on granting bail that he retained an open mind as to whether a non-custodial sentence or a custodial sentence was to be imposed. He pointed out clearly that whatever happened in the interim after bail had been ordered the applicant might well be sent to prison. He said, and I quote:
(Page 7)
- "There may be other factors. There are too many other factors there."
11 His Honour was referring to other factors apart from what might occur in the interim. This was plainly understood by counsel for the applicant at the time who said in reply, of his own volition, "I think he would have grasped that, sir, having sat here and listened." Thus, there having been no expectation brought about on the part of the applicant for a non-custodial sentence in my opinion, the argument that in some way or other his Honour had limited his discretion is entirely without substance. I have nothing further to add to what Miller J has said and I agree that the application should be dismissed.
12 WALLWORK J: I agree with the reasons for judgment delivered by Miller J and also I agree with the additional remarks which Ipp J has made. I would like to add two things of my own.
13 Concerning ground 1, the applicant relies on the reasons in the decided case of Thompson and Owenv R (1998) 105 A Crim R 150. At 156 in that decision the learned sentencing Judge is reported to have said within the hearing of the two young people concerned:
"You are fully aware of what I am trying to do here. I am trying to remand these people through to 20 May on what is probably the last beyond last chance. We would, of course, require an up to date CDS report shortly prior to 20 May…."
14 The Court when dealing with the appeal in that case - the three Judges concerned - said at 156:
"The applicants were required to comply in all respects with the directions of the Court Diversion Service. The reference to the 'last beyond last chance' seems clearly to have referred to the applicants' last chance to avoid an immediate sentence of imprisonment -"
15 Being one of the Judges concerned in that case, I took it that the learned sentencing Judge had impliedly said: "If you behave yourselves, you have got a good chance that you will not be sent to prison," if he did not actually say that they would not be sent to prison.
16 That is not this case at all, as both Ipp J and Miller J have said. The Judge in this case was careful not to give that impression. An entirely different impression was given.
(Page 8)
17 Secondly in my view there were exceptional reasons why the applicant in this case should not have been sent to prison pending the sentencing Judge's decision as to whether or not to impose a sentence of immediate imprisonment.
18 In my view, with a young person of his background, it is most undesirable ever to put such a person in prison even overnight, before the sentencing Judge has decided to sentence that person to imprisonment. It is a terrible thing for a person to have to go to prison, despite the provisions of the Bail Act.
19 In my view there were exceptional reasons in this case why a young man of this person's background should not have been put in prison while the learned sentencing Judge considered whether the offences concerned required a term of imprisonment.
20 The sentencing Judge was considering whether he was required to sentence the applicant to a term of imprisonment. He later made up his mind that he was required to do so. In my view it could not be said that his Honour erred in any way in making that decision. I do not wish to say anything further.
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