Kiesey v The State of Western Australia
[2005] WASCA 229
•30 NOVEMBER 2005
KIESEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 229 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:198/2004 | 9 AUGUST 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA PULLIN JA | 30/11/05 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused | ||
| D | |||
| PDF Version |
| Parties: | TYSON FREDRICK KIESEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Appeal against sentence Application for leave to appeal out of time Application for extension of time Aggravated armed robbery Committed while on parole 465 days of earlier sentence still to be served Cumulative sentences made cumulative on outstanding period of earlier sentence Refusal to make parole eligibility order Whether manifestly excessive Totality Order of serving sentences Whether applicant still eligible for parole |
Legislation: | Sentence Administration Act 2003 (WA), s 7, s 69, s 72, s 74 |
Case References: | Biggers v State of Western Australia [2004] WASCA 47 Dinsdale v The Queen (2000) 202 CLR 321 Herbert v The Queen (2003) 27 WAR 330 Lauritsen v The Queen (2000) 22 WAR 442 Lowndes v The Queen (1999) 195 CLR 665 Magee v The Queen [1980] WAR 117 McLean v The Queen [1999] WASCA 209 Orchard v The Queen [2004] WASCA 23 R v Payne (2002) 131 A Crim R 432 R v Tsiaras [1996] 1 VR 398 Readhead v The State of Western Australia [2005] WASCA 191 Salihos v The Queen (1987) 78 ALR 509 Thompson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973 Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992 Cameron v The Queen (2002) 209 CLR 339 Collett v The State of Western Australia [2004] WASCA 59 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Deakin v The Queen (1984) 58 ALJR 367 Jarvis v The Queen (1993) 20 WAR 201 Lowe v The Queen (1984) 154 CLR 606 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v Bradley [1979] 2 NZLR 262 R v Everett (1994) 73 A Crim R 550 R v Grein (1989) WAR 178 R v Rafferty (2002) 135 A Crim R 282 R v Shaharuddin [1999] WASCA 229 R v Strickland [1989] 3 NZLR 47 R v Ward (1999) 109 A Crim R 159 Thompson v The Queen (1992) 8 WAR 387 Verschuren v The Queen (1996) 17 WAR 467 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Woods v The Queen (1994) 14 WAR 341 Yanko v The Queen [2004] WASCA 37 Yates v The Queen [1985] VR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KIESEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 229 CORAM : STEYTLER P
- ROBERTS-SMITH JA
PULLIN JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
File No : INS 3 of 2004
(Page 2)
Catchwords:
Appeal - Criminal law and procedure - Appeal against sentence - Application for leave to appeal out of time - Application for extension of time - Aggravated armed robbery - Committed while on parole - 465 days of earlier sentence still to be served - Cumulative sentences made cumulative on outstanding period of earlier sentence - Refusal to make parole eligibility order - Whether manifestly excessive - Totality - Order of serving sentences - Whether applicant still eligible for parole
Legislation:
Sentence Administration Act 2003 (WA), s 7, s 69, s 72, s 74
Result:
Application for extension of time refused
Category: D
Representation:
Counsel:
Applicant : In person
Respondent : Mr B Fiannaca
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Biggers v State of Western Australia [2004] WASCA 47
Dinsdale v The Queen (2000) 202 CLR 321
Herbert v The Queen (2003) 27 WAR 330
Lauritsen v The Queen (2000) 22 WAR 442
Lowndes v The Queen (1999) 195 CLR 665
(Page 3)
Magee v The Queen [1980] WAR 117
McLean v The Queen [1999] WASCA 209
Orchard v The Queen [2004] WASCA 23
R v Payne (2002) 131 A Crim R 432
R v Tsiaras [1996] 1 VR 398
Readhead v The State of Western Australia [2005] WASCA 191
Salihos v The Queen (1987) 78 ALR 509
Thompson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973
Case(s) also cited:
Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992
Cameron v The Queen (2002) 209 CLR 339
Collett v The State of Western Australia [2004] WASCA 59
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Deakin v The Queen (1984) 58 ALJR 367
Jarvis v The Queen (1993) 20 WAR 201
Lowe v The Queen (1984) 154 CLR 606
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
R v Bradley [1979] 2 NZLR 262
R v Everett (1994) 73 A Crim R 550
R v Grein (1989) WAR 178
R v Rafferty (2002) 135 A Crim R 282
R v Shaharuddin [1999] WASCA 229
R v Strickland [1989] 3 NZLR 47
R v Ward (1999) 109 A Crim R 159
Thompson v The Queen (1992) 8 WAR 387
Verschuren v The Queen (1996) 17 WAR 467
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Woods v The Queen (1994) 14 WAR 341
Yanko v The Queen [2004] WASCA 37
Yates v The Queen [1985] VR 41
(Page 4)
1 STEYTLER P: I have had the advantage of reading the judgment of Roberts-Smith JA. I agree with it and with his conclusion that the application for an extension of time should be refused.
2 ROBERTS-SMITH JA: This application for leave to appeal against sentence was filed on 8 December 2004. The applicant's convictions and sentences were imposed on 30 January 2004, so the application for leave is some 10 months out of time.
3 By application dated 2 December 2004, the applicant seeks an extension of time. In his affidavit in support sworn on 23 November 2004, the applicant deposes that the solicitor representing him at the sentencing failed to lodge an appeal against severity of sentence in accordance with his instructions, within the 21 day limit. He deposes that the full gravity of his situation did not impact upon him immediately and there was then subsequent considerable delay in obtaining documents relevant to an appeal. He was unable to adequately state his grounds of appeal without the documents. He deposes that he has no legal representation and has exhausted every avenue to raise the necessary funds for that and has been refused legal aid.
4 An extension of time will not be granted unless the delay is satisfactorily explained (Salihos v The Queen (1987) 78 ALR 509). Even so, where the delay is long, the stronger must be the circumstances before an extension will be granted. For lengthy delay, an extension of time will not be granted unless the appeal is most likely to succeed, such that refusal of the extension would lead to a miscarriage of justice. It follows that to determine the application for extension of time it is necessary to examine the merits of the proposed appeal.
5 As he deposes, the applicant is unrepresented. He prepared his own notice of application for leave and supporting documents. He prepared his own outline of submissions and personally argued his application. His submissions and presentations were articulate, well prepared and well presented. His presentation and legal arguments were concise and to the point. They were of a standard which would have reflected well on a competent lawyer.
6 The applicant was presented in the Supreme Court at Perth before Hasluck J on 13 January 2004 on an indictment dated that day.
7 The first count on the indictment was one of aggravated armed robbery of the Roleystone Community Chemist on 8 October 2003, the circumstances of aggravation being that he was in company and armed
(Page 5)
- with an offensive weapon namely a shotgun. The second count was an offence of aggravated armed robbery of the Como Sub-Post Office on 15 October, whilst armed with an offensive weapon namely a rifle, and in company.
8 Two further offences were dealt with by way of a notice under s 32 of the Sentencing Act 1995 (WA). The first was that between 1 and 8 October 2003 at Canning Vale he stole a motor vehicle; the second was another count of stealing a Lexus motor vehicle on 14 October 2003 at Gooseberry Hill.
9 The applicant's grounds of appeal are:
"1) Sentence is manifestly excessive
2) The learned sentencing Judge erred in failing to make an order for parole eligibility in respect to the above offences
3) The learned sentencing Judge erred in failing to consider factors of mitigation
4) Cumulative sentencing imposed upon an existing sentence is not in the best interest of the offender, or the community
5) Learned sentencing Judge failed to mitigate punishment by not considering partial concurrent for count 2 of the indictment, pursuant to section 88(3)(d) of the Sentencing Act."
10 The applicant seeks orders that:
"… the sentence be amended to be served concurrent to existing sentence and a parole eligibility order be made:
Alternatively, partial concurrent sentence be imposed for count 2 of the indictment, and a parole eligibility order be made in respect to the above offences".
11 The applicant was 25 years old at the time of sentencing.
12 The offences were committed whilst the applicant was on parole.
13 On 20 June 1997 he was sentenced to a term of 5 years 6 months' imprisonment for an offence of armed robbery.
(Page 6)
14 On 18 January 2002 he was sentenced to 16 months' imprisonment for stealing a motor vehicle and driving recklessly in January 2001. He was released on parole for that offence on 22 August 2003.
15 The first of the subject offences were committed less than two months after his release on parole on 8 October 2003.
16 The applicant used a stolen motor vehicle as transport to and from the armed robbery on the Roleystone Community Chemist. The applicant and his co-offender were disguised with balaclavas. The applicant was armed with a sawn-off shotgun which he pointed at female staff members. He used abusive and degrading language to the victims despite the fact they were complying with his instructions.
17 Seven days later, on 15 October 2003, the applicant used a second stolen motor vehicle as transport to and from the armed robbery on the Como Sub-Post Office. Again, he and his co-offender were disguised with balaclavas. On this occasion he was armed with a pump action .22 calibre rifle. He pointed the rifle at staff and customers and shouted abuse at them even though they were complying with his instructions. He pushed the muzzle of the rifle against the neck of a staff member.
18 On each of the aggravated armed robbery offences on the indictment the applicant was sentenced to 3½ years' imprisonment. The term on count 2 was ordered to be served cumulatively on that for count 1. In respect of the two stealing motor vehicle offences, the applicant was sentenced to 2 years' imprisonment to be served concurrently. His aggregate sentence was therefore 7 years' imprisonment. The Judge declined to make an order that he be eligible for parole. He ordered the sentences for these offences to be served cumulatively upon the applicant's existing sentence.
19 In his sentencing remarks the Judge began by noting that the offences occurred soon after the applicant had been released to parole on 22 August 2003. Parole was suspended on 17 October that year and as a consequence of his breach of parole, the applicant had 465 days to be served as from 17 October 2003.
20 After reciting the facts of the offences, his Honour said that the applicant had been arrested on 15 October 2003 and took part in a video record of interview at the Cannington police station, in which admissions were made.
(Page 7)
21 Turning to the applicant's personal circumstances, his Honour said the applicant was born on 24 September 1978 in Perth and was therefore 25 years old at the time of the offences. He is the eldest child of his family and has one brother. He left home at the age of 14 due to conflict with his stepfather. He completed his schooling at 15 years of age in year 10. Although he has not been married and has no children, the applicant had formed a close de facto relationship in comparatively recent times. He had been before the courts for serious charges since the age of 18 and had had an ongoing problem with drugs.
22 His Honour observed that in summary the applicant's background seemed to have been unsettled in his formative years. A significant factor in his offending behaviour appeared to be a lack of personal discipline.
23 His "very significant" record of prior convictions since turning 18 included burglary, stealing, fraud, resisting arrest, assaulting a public officer, possessing prohibited drugs, breaches of bail and of an intensive supervision order and various motor vehicle offences.
24 Prior to leaving school the applicant had an impressive sporting record. He was about 14 years of age when he started to take cannabis and associate with certain undesirable elements outside the school and his life started to deteriorate. His Honour observed that the applicant's counsel had said that on four occasions the applicant had been to prison and on each occasion when he came out on parole there was a "less than perfect" response to the parole regime.
25 His Honour had before him a letter from the applicant's mother and other reports from which he understood that as a consequence of the applicant's background (including his periods in prison) he had arguably lost many of the social skills necessary in society, although he had managed to obtain employment. It appeared that he had also been willing to attend drug counselling programs. It had been put to his Honour that the subject offences were prompted by pressure from a bikie group to whom the applicant owed money for drugs.
26 His Honour noted the policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. This means, he said, that a discount of up to one-third will usually be allowed for a plea of guilty on the fast-track system.
27 However, his Honour pointed out that the Court of Criminal Appeal has said that sentences for armed robbery should be firmed up by giving greater weight to the requirement of deterrence and less weight to the
(Page 8)
- antecedents and other matters personal to the offender. Sentences should also reflect the greater seriousness of such offences when committed upon people who are particularly vulnerable - and he saw the circumstances of these two armed robberies as being in that category. He said that courts have consistently emphasised that punishments must be severe, to both punish and deter the individual offender and to deter other potential offenders. Sentences of 6 to 9 years' immediate imprisonment have been thought to be appropriate for any single offence of armed robbery, prior to the Sentencing Act amendments of August 2003.
28 His Honour said the present offences were undoubtedly serious. Firearms were used, as were balaclavas for disguise. The customers and operators of the commercial premises were subjected to abuse and to severe trauma. The applicant played a significant role in the relevant events. His record of previous convictions weighed against him. There was no other option but immediate imprisonment. It followed from the facts that in each case a firearm and disguise were used and a large amount of money taken, that the offences were at the upper end of the scale and a term of 9 years' imprisonment could be regarded as a starting point under the old provisions for each offence of armed robbery.
29 His Honour said there was little in the way of mitigating factors to be taken into account, although he did take into account the applicant's plea of guilty at an early opportunity for which he allowed a discount of 25 per cent. He would have imposed a term of 7 years' imprisonment under the old provisions for each of the Roleystone and Como offences. He was required to reduce them by one-third because of the recent Sentencing Act amendments and so he would have imposed a sentence of 4 years 8 months' imprisonment in respect of each.
30 His Honour then turned to considerations of accumulation or concurrency. He said that although the two armed robberies occurred in reasonably close proximity, they must undoubtedly be characterised as separate operations and for that reason the sentences should be served cumulatively. That would give rise to an aggregate effective term of 14 years' imprisonment under the previous sentencing provisions and to a reduced term under the new provisions of 9 years 4 months which he would backdate by 2 days to commence on 28 January 2004.
31 Turning then to the s 32 offences, his Honour observed that the vehicles were used in relation to the robberies, although they were separate transactions. His Honour said that an appropriate starting point for the stealing of each vehicle would be imprisonment for 2 years, which
(Page 9)
- in each case should be discounted to 1 year 6 months to give effect to the early pleas of guilty. The terms for the stealing vehicle offences should then be reduced in each case under the new provisions to 1 year imprisonment, to be served cumulatively on each other.
32 His Honour did turn his mind to the question of whether or not the terms of imprisonment could be suspended, but was of the view that the seriousness of them militated against that.
33 That brought his Honour then to a consideration of the totality principle. He referred to Herbert v The Queen (2003) 27 WAR 330, which he said affirmed that the touchstone of the totality principle is proportionality, with a view to determining the overall criminality in all of the offences.
34 Referring then to the reasoning in McLean v The Queen [1999] WASCA 209, his Honour acknowledged that if further terms are added to an uncompleted term of imprisonment previously imposed, the totality principle requires that the overall sentence to be served in real terms be carefully reviewed with a view to ensuring that it is not "crushing". In that regard he noted that due to the applicant's suspension of parole, he had a previous sentence to serve of 465 days from 17 October 2003. He said he was of the view that effect must be given to the term previously imposed and he therefore ordered the sentences he was about to impose to be served cumulatively upon the unexpired balance of the previous parole term, save for the 2 days for which the applicant had been in custody in regard to the subject offences. Taking that overall look then at the effect of the aggregate sentences, his Honour concluded that an aggregate effective term of 7 years should be imposed under the new provisions (representing what would have been a sentence of 10 years 6 months under the old sentencing legislation) to be served cumulatively upon the unexpired balance of the previous parole term. His Honour said he would achieve that result pursuant to s 88 of the Sentencing Act by reducing the terms of 4 years 8 months for the armed robberies to terms of 3 years 6 months and by ordering that the 12 month term for each of the stealing motor vehicle offences be served concurrently.
35 His Honour ordered that the first 3 year 6 months term for the Roleystone robbery was to be served cumulatively upon the unexpired balance of the previous parole term; the second 3 year 6 months term for the Como robbery was to be served cumulatively upon the first. In that way the aggregate effective term of 7 years would be added to the unexpired balance of the previous parole term of 465 days.
(Page 10)
36 His Honour then turned to the question of parole. He noted that the State opposed an order that the applicant be made eligible for parole. He accepted the State's submissions that due to the applicant's previous lack of compliance and due to his lack of personal insight there was a real risk of re-offending and that the welfare of the public must be given priority. He concluded that there were insufficient positive indications that a grant of parole was justified. In his Honour's opinion, each of the specific factors mentioned in s 89 of the Sentencing Act applied. Those are that the offence is serious, the offender has a serious criminal record, there has been a previous lack of compliance, or for any other reason the Court considers relevant that parole should be refused. His Honour said it seemed to him the time had come to take "a firmer stand" and he accordingly refused to make an order that the applicant be eligible for parole.
37 The applicant expressly conceded that he takes no issue about the individual sentences imposed and that (as he put it) they were in the range of sentencing options open to his Honour. His complaints are that the sentences should have been made concurrent with that he was already serving, the sentences on counts 1 and 2 should have been made partially concurrent and there should have been an order that he be eligible for parole.
38 He submitted that whilst the imposition of wholly cumulative sentences for the two counts on the indictment would in itself not be seen as crushing, to order that they be served wholly cumulatively upon an existing sentence and then to deny parole eligibility would, in the mind of a relatively young offender, instil a sense of hopelessness, contrary to the principle of totality. He referred to the following comments of Wickham J (with whose judgment Burt CJ and Wallace J agreed) in Magee v The Queen [1980] WAR 117 where, at 119, noting that on the sentence imposed the 19-year-old offender, even after remissions, would have to serve an absolute minimum of 9 years, his Honour said:
"This, in my opinion, is longer than is necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest. In addition to the matter of public expense, one of the purposes of sentences might be frustrated in that the offender might come out of prison worse than he went in and thus be more likely rather than less likely to be a continuing community problem."
(Page 11)
39 His Honour then went on to repeat what he had said in Thompson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973:
"In the area of sentencing, enough to meet all the various considerations is enough. More than enough is wrong because the excess is not only purposeless but might be harmful in that the prisoner might become hopeless, aggressive or otherwise intractable, and thus one of the purposes of punishment will be defeated through making it more rather than less likely that he will eventually offend again. …
I am mindful of persuasive authority which warns a sentencing judge against being 'weakly merciful' but in sentencing in a particular case it is also necessary not to be 'weakly severe', which latter mistake is as easy to make as the former.
Indeed the problem does not involve questions of leniency or severity, or any other abstract notion, but a hard-headed attempt to work out a sentence which in all its aspects is most likely 'in the long run' to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending."
40 His Honour went on to say that he had not since found any persuasive or binding authority to suggest to him that those views were wrong and he adhered to them, although he had since concluded that a slight modification of them was necessary because he had come to think that the public demand for retribution, at least in some quarters, was stronger than he once thought.
41 The applicant submitted that the imposition of wholly cumulative sentences imposed wholly cumulatively upon the existing sentence combined with the denial of parole eligibility posed the inherent risks spoken of by Wickham J in Magee. The protracted term of incarceration, without any of the usual incentives for reform being offered to him, may in the long term, he submitted, have a detrimental effect on him and therefore pose a risk of a continuing problem to the community, not to mention the further deterioration of his own life which he was desperately trying to bring to a stop.
42 A further submission made by the applicant was that his sentences reflected disparity when compared to sentences imposed on "like
(Page 12)
- offenders". He referred to Biggers v State of Western Australia [2004] WASCA 47 and Orchard v The Queen [2004] WASCA 23 in which case co-offenders with extensive criminal histories were given cumulative sentences but an order was made they be served wholly concurrently with existing sentences. The Court of Criminal Appeal held that with respect to the totality principle, that was the correct approach but also reduced their sentences significantly and further ordered that a parole eligibility order should have been made as a matter of public interest despite the "extraordinary" number of parole days owing by both offenders. It was the applicant's submission that the same sentencing structure should have been applied to his own case. The effect of the sentences had been to strip away all incentive for reform and that could not possibly be in the best long term interests of either himself or the community. Furthermore, he submitted that as a matter of public interest, his release back into the community (which is inevitable at some stage) should be a controlled and supervised transition, and the fact that he was on parole at the time of his offending should not on its own be sufficient to deny a further parole eligibility order. He pointed out, correctly, that the granting of a parole eligibility order is no guarantee that an offender will automatically be granted parole at such time as he may become eligible - the granting of parole is a matter of determination for the Parole Board who would make such a determination of his suitability at the appropriate time. Thus, he submitted, the onus would rest squarely on his own shoulders to demonstrate his commitment to reform.
43 The applicant then turned to matters personal to him in support of his contention that both he and the community would gain from an order which would enable him to be released on parole subject to supervision. That would provide both an incentive for his rehabilitation, mitigate the punishment and further afford protection of the community upon his release.
44 Before dealing with the merits of the applicant's submissions, it is necessary to mention the principles which apply to appeals against sentence. They are well established. It is not a matter of what sentence the members of the Appeal Court consider they would have imposed had they been sitting at first instance. An appellate court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion differently from the manner in which the sentencing Judge did so. The applicant must show that the sentencing Judge failed to properly exercise his or her discretion by imposing a sentence which falls outside the range of a sound exercise
(Page 13)
- of the sentencing discretion (Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672).
45 It is not always possible to identify specific error in a given case; however, the outcome may be so manifestly unreasonable or so plainly wrong that the appellate court can infer that in some unidentified way, there has been a failure to exercise the sentencing discretion properly (Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3] and Kirby J at [59]).
46 The central thrust of the applicant's submissions is that the aggregate term to be served by him should have been less than that which he confronts - which result should have been achieved by an order for total or partial concurrency - and that a parole eligibility order should have been made. The latter contention (as is the first, to some extent) is founded on the applicant's assumption that the remaining parole days of his already outstanding sentence would have to be served before the terms imposed by Hasluck J commence.
47 The applicant stated during his oral submissions that the "outstanding parole days ... will have long expired by the conclusion of [the sentence imposed by Hasluck J]" (t/s 7). In making his sentencing remarks, his Honour told the applicant (sentencing t/s 31):
"you ... have the balance of your previous sentence to serve which expires at the expiration of 465 days from 17 October 2003" (my emphasis).
- The applicant may have taken these words to mean that the 465 days were to commence from 17 October 2003 and upon their expiration, the new sentences would then take effect. Counsel for the respondent questioned this approach, suggesting that the sentences imposed by Hasluck J would be served before the outstanding parole days.
48 The order in which multiple sentences are to be served is governed by s 7 of the Sentence Administration Act 2003 (WA). So far as is presently relevant, s 7 reads as follows:
"7. Order of service of fixed terms
(1) In this section -
'fixed term' includes a period of imprisonment ordered under section 58, 59 or 119A of the Sentencing Act 1995;
(Page 14)
- 'non-parole period', in relation to a parole term, means the period that under section 93(1) of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole.
- (2) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order -
(a) firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;
(b) secondly, subject to section 94 of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;
(c) thirdly, subject to section 94 of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served -
(i) cumulatively if the terms are cumulative;
(ii) concurrently if the terms are concurrent or partly concurrent. …"
(Page 15)
50 Considering the emphasis placed by the applicant on the benefits of parole supervision upon re-entry to society, it is important to clarify whether the applicant is eligible to be released on parole during his outstanding parole days. When the applicant was sentenced by Hasluck J for the offences committed whilst on parole, the applicant's parole order was automatically cancelled pursuant s 67 of the Sentence Administration Act. Section 69 describes the effect of cancellation on a parole order (a type of "early release order"):
"(1) If an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.
…
(5) Subject to Division 4, this section does not prevent another early release order being made in respect of a prisoner."
51 Division 4, entitled "Re-release after cancellation", has two sections of relevance. Section 72 states:
"(1) If an early release order made by the Board or the CEO -
…
(b) is cancelled by virtue of section 67,
then the Board or the CEO, as the case may be, may, subject to Parts 3 and 4, subsequently make another early release order in respect of the prisoner."
53 In Orchard, the appellant's aggregate sentence on one count of stealing a motor vehicle and two counts of armed robbery in company, was reduced from 14 years' imprisonment (equivalent to 9 years 4 months after 31 August 2003) without eligibility for parole, to one of 6 years' imprisonment (equivalent to a 9 year term imposed before 31 August
(Page 16)
- 2003) with eligibility for parole. In February 2003, Orchard and Biggers stole a motor vehicle which they used later that morning to commit an armed robbery of a bank. They wore balaclavas. Each was armed with a sawn-off rifle which they pointed at bank staff and demanded money from the tellers. They obtained some $32,000 in cash. In March that year they returned to the same bank and again entered wearing balaclavas. On that occasion only Biggers was armed. He carried a sawn-off rifle. He pointed it at bank staff while Orchard demanded money. They left with approximately $4000 in cash. Orchard pleaded guilty in respect of all three offences at the first available opportunity. His previous criminal record was described by the Court of Criminal Appeal as "particularly bad". It included numerous armed robberies, stealing and receiving offences and assaults. His response to community based orders had been "patchy". The third matter of significance identified by the Court was that he suffered from hepatitis C and had been prescribed the drug "Interferon" for that. There was material before the sentencing Judge that this medication caused the appellant side effects which included poor judgment, lack of memory, paranoia, loss of appetite and weight, delusions and depression. There was also a psychotic component related to the medication. A report before the Judge revealed that the appellant's brother had noted a personality change in the appellant due to the use of the medication.
54 Orchard also owed 1655 "breach of parole days".
55 The sentencing Judge gave brief sentencing remarks. He referred to the appellant's drug dependence and to the effect the Interferon medication had had upon him. He thought the appropriate starting point for each armed robbery was 12 years' imprisonment. He reduced that by 25 per cent for the plea of guilty and made a further specific reduction because of what he thought was the effect of the medication on the appellant and also to overcome any sense of grievance he might have if he received precisely the same sentence as Biggers, who had in fact committed three armed robberies. His Honour imposed a sentence of 2 years' imprisonment in respect of the motor vehicle theft and 7 years' imprisonment in respect of each of the armed robberies. He ordered that the sentences on the stealing and one armed robbery be served concurrently, but that the sentence on the other armed robbery be served cumulatively, making a total of 14 years' imprisonment. He declined to make a parole eligibility order.
56 With the consent of the respondent, fresh evidence was placed before the Court on the appeal. This took the form of a medical report, detailing
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- the neuropsychiatric complications of Interferon treatment. It is not necessary to refer to them here. It is sufficient to observe that they led the Court (Malcolm CJ, Steytler and Wheeler JJ) to the conclusion that the reduction made by the trial Judge on that account was too low. Their Honours said that in light of this material, it seemed to them probable that the medication had contributed to the appellant's commission of the offences. Because of it, he was less able to exercise logical reasoning processes and to make rational judgments and choices. That necessarily reduced his moral, albeit not legal, responsibility. Their Honours pointed out (at [18]) that where a mental disorder has contributed to the commission of an offence, the moral culpability of the offender will be lessened (and it may be appropriate to attach less significance to either or both of general and personal deterrence) and that should, ordinarily at least, be reflected in the penalty imposed, citing R v Tsiaras [1996] 1 VR 398 at 400; Lauritsen v The Queen (2000) 22 WAR 442 at 456 - 459; and R v Payne (2002) 131 A Crim R 432 at [40], [43] - [48] and [67]. Having concluded that the appeal should be allowed, their Honours considered it would have been appropriate to sentence the appellant to 18 months' imprisonment in respect of the car theft and 6 years' imprisonment in respect of each of the armed robberies and to structure those sentences so as to give rise to a total period of 9 years' imprisonment (before the statutory one-third reduction).
57 Their Honours then turned to the question of parole. They saw two matters as bearing upon that. The first was a misunderstanding of the sentencing Judge as to the appellant's eligibility for parole in due course; the second was again his mental condition at the time of his offending. As to these matters, their Honours said (at [24] - [25]) that the sentencing Judge had erred in assuming that even if he were not to make a parole order, the appellant would be able to be released on parole in due course. Because the Judge had made no order as to whether or not the total sentence of 14 years' imprisonment was to be served concurrently with, or cumulatively upon the breach of parole days owed by the appellant, the sentence ran concurrently with those days (s 88(1) of the Sentencing Act), with the result that at the end of that sentence he would have been left without the prospect of a supervised release.
58 As to the second and more important matter, given that his Honour had considered there was nothing positive to point to parole, it seemed to the members of the Appeal Court that the evidence of the appellant's mental condition did bear upon that in a way favourable to him. If his reasoning processes and suggestibility were impaired by his ingestion of Interferon in such a way as to contribute to the commission of the
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- offences, then it would be preferable to ensure that his release into the community was supervised in circumstances in which there would then be a better prospect of an improved response to parole by him, given that he would by then have completed his course of medication. Their Honours consequently made an order for eligibility for parole.
59 In the present case, unlike what the sentencing Judge did in Orchard, it is only because his Honour ordered the sentence to be served cumulatively that the applicant is left with his parole eligibility days to be served at the end of the other sentences in respect of which no parole eligibility order was made. Insofar as the sentences were reduced in Orchard, that followed the identification of specific error in the exercise of the Judge's sentencing discretion in respect of a consideration unique to that appellant.
60 Biggers had been convicted of the same offences as Orchard, but with an additional armed robbery which he had committed on his own. He was sentenced to 2 years' imprisonment for the offence of stealing a motor vehicle and 8 years for each of the armed robberies. The sentences were ordered to be served concurrently, except for one of the armed robbery sentences which was ordered to be served cumulatively, making an aggregate of 16 years' imprisonment. No order for parole eligibility was made.
61 His offences were also committed whilst he was on parole and he had almost 3 years of his parole term to serve as a result of the cancellation of his parole.
62 Wheeler J (with whom Miller and E M Heenan JJ agreed) dealt first with the issue of parole. She observed that whilst the appellant's record gave rise to concern about his ability to benefit from parole, it had to be recalled at the same time that the longer the sentence imposed, the more difficult it is to prognosticate with any degree of confidence about the likely position of an offender at the time at which he might become eligible for parole. She said there were indications that the appellant was, however slowly, maturing and appreciating the seriousness of his conduct. She detailed a number of particular considerations leading to that view. She concluded that notwithstanding the reservations expressed in the pre-sentence report and the understandable concern arising from the appellant's past record and performance on parole, there was sufficient material before the sentencing Judge to suggest that, particularly if a lengthy sentence was imposed, parole eligibility should be ordered.
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63 As to the overall sentence she acknowledged that a total term of 16 years was a very high one and such sentences were rare even where multiple armed robberies had been committed. Nonetheless, it was her view that the starting point of 12 years nominated by the sentencing Judge was appropriate having regard to the seriousness of the offences. However, in her Honour's view there was an error in the discount which had been given for the plea of guilty. That was because it was not merely a bare plea of guilty, but there was in addition a confession to offences which, so far as the appellant was aware, were at that time unknown to police. In her Honour's opinion a plea of guilty in circumstances of that kind would more appropriately attract a discount of the order of one-third. In addition, some allowance would have to be made for the appellant's cooperation with authorities and the serious personal difficulties in his background. She concluded that a sentence of 7 years in respect of each of the armed robberies would have been more appropriate.
64 Even so, it was still necessary to consider whether or not a different sentence "should have been passed". She pointed out it would obviously be inappropriate to apply the "one transaction" rule in respect of three separate armed robberies and a stealing offence and it would also be difficult to regard a sentence of 16 years' imprisonment, although severe, as "crushing". There were however, circumstances which led her to conclude that only one of the sentences should be made cumulative on the others. She accordingly substituted terms of 7 years' imprisonment in respect of each of the armed robbery offences with one of them to be served cumulatively, so producing a total of 14 years (again before the statutory one-third reduction).
65 As the headnote in Biggers states, the outcome on that appeal turned on its own facts. There were in his case particular reasons why it was thought he might in the future benefit from parole, as indeed there are in the present case, but the main consideration for the Court in light of that was the difficulty of prognosticating what the appellant's situation might be on the expiration on a sentence of 16 years' imprisonment. The relevant sentence in this case was 7 years' imprisonment.
66 These two cases establish no point of principle. Nor do they demonstrate "disparity" with the sentences imposed on the applicant. All three cases reflect the sort of differences which inevitably result from the tailoring of sentences to the circumstances of individual offenders.
67 I respectfully agree entirely with the observations made by Wickham J in Magee upon which the applicant relies. While I understand
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- the applicant's submission that an effective finite term of imprisonment consisting of the 7 years imposed by Hasluck J and the 465 days still outstanding from the previous term, without parole eligibility, would be likely to deprive him of all incentive for reform and would therefore not be in his best interests nor those of the community, I am not, in the end, persuaded by it. However, I would accept his submission that the community interest would best be served by the applicant's eventual release being a controlled and supervised transition to life within the community. The reality is, though, that for the reasons I have explained, he will in fact be eligible for release on parole once he has served the 7 year term. The 465 days will be served thereafter - and that whole period is one in which he is and will remain, eligible for parole. So it is that, as the applicant himself pointed out, his release on parole will be a matter for determination by the Parole Board which will make that determination of his suitability at the appropriate time, and the onus rests squarely on the applicant's own shoulders to demonstrate his commitment to reform. Were he to so demonstrate during the 7 year term, there would presumably be no obstacle to his immediate release once that time is served.
68 As to the ground that the aggregate sentence (including the outstanding parole days) is manifestly excessive, the Judge expressly had regard to the overall effect of the combination of sentences. That was in accord with the judgment of the Court of Criminal Appeal in McLean (supra), to which he specifically referred.
69 In the aggregate, these sentences did not result in a term which was "crushing", nor were they disproportionate to the applicant's overall criminality manifested by the individual offences (Herbert v The Queen (supra)). The sentences were not therefore manifestly excessive in their combined effect.
70 On the ground going to parole eligibility in respect of the sentences imposed by his Honour, by s 89(4) of the Sentencing Act 1995 (WA), a sentencing Judge may refuse to make a parole eligibility order if he or she considers the offender should not be eligible for parole because of at least two of the following four factors:
(a) the offence is serious;
(b) the offender has a significant criminal record;
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- (c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the Court considers relevant.
71 His Honour found all four of those factors existed here. That finding was open to him. The offences of armed robbery of a pharmacy and a suburban agency post office, in company, whilst disguised with balaclavas and armed with a shotgun and a rifle respectively, and involving the use of abusive and insulting language, were undeniably serious offences. Likewise the applicant has a significant criminal record and not only had he failed to comply with the previous release order, but the instant offences had been committed less than two months after his release on parole. The applicant had not benefited from his parole eligibility on that occasion, having committed these particularly serious offences. It was open to his Honour to conclude the time had come to take "a firmer stand" in light of the fact that due to the applicant's previous lack of compliance and lack of personal insight, there was a real risk of re-offending and the welfare of the public had to be given priority. No error of fact nor of principle has been shown in the exercise of his Honour's discretion in this regard.
72 Nor can it properly be said his Honour failed to have regard to matters of mitigation. His Honour specifically referred to the contents of the antecedent report, a pre-sentence report and a related psychological assessment report. He referred to the submissions made by the applicant's counsel and to a personal letter written by the applicant as well as one from his mother. He recited the applicant's personal background and circumstances in some detail. In that context he noted that it appeared from this material that the applicant had arguably lost many of the social skills which assist a person in society, although he had managed to obtain employment. He noted the applicant had been willing to attend drug counselling programmes. He specifically allowed a discount of 25 per cent for the applicant's plea of guilty. No particular mitigating factor has been advanced to which it is said his Honour failed to have regard.
73 For the reasons set out above, no error has been shown in the exercise of his Honour's sentencing discretion. The appeal must fail. That being so, I would refuse the application for extension of time.
74 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.
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