Lake v Shaw
[2004] WASCA 93
•23 APRIL 2004
LAKE -v- SHAW [2004] WASCA 93
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 93 | |
| Case No: | SJA:1142/2003 | 23 APRIL 2004 | |
| Coram: | MCKECHNIE J | 23/04/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | YVETTE SHARON LAKE FIONA ALEXANDRA SHAW |
Catchwords: | Criminal law Sentencing Whether suspended sentence should be imposed No new principles |
Legislation: | Nil |
Case References: | Dicks v Farrell [2001] WASCA 124 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
FIONA ALEXANDRA SHAW
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR HEATH CSM
File Number : PE17109/03 & Ors
Catchwords:
Criminal law - Sentencing - Whether suspended sentence should be imposed - No new principles
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr C Williams
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dicks v Farrell [2001] WASCA 124
Case(s) also cited:
Nil
(Page 3)
- MCKECHNIE J:
Introduction
1 On 12 August 2002, the appellant pleaded guilty to one charge of possession of amphetamine with intent to sell or supply, one charge of possession of MDMA, one charge of possession of smoking utensils, one charge of possession of goods reasonably suspected of being stolen or unlawfully obtained. On all of those charges, the appellant was placed on an intensive supervision order for 12 months.
2 Before the completion of that period, the appellant breached the ISO by the commission of four further offences being: one charge of possession of MDMA, one charge of possession of a smoking utensil; one charge of possession of amphetamine and one charge of possession of cannabis.
3 The appellant pleaded guilty to those offences on 17 June 2003 before the Chief Stipendiary Magistrate. The Chief Magistrate received an oral pre-sentence report on that day concerning the appellant's response to supervision. The report indicated that the appellant was placed on the ISO, as I have said, on 12 August 2002. She reported for the first month, but then did not report until 5 March 2003.
4 The appellant had been then attending Cyrenian House for counselling, and attending regularly. The supervising officer said that her response had improved remarkably, and supported further supervision.
5 The Chief Magistrate, accepting that there had been a breach of the previous orders, re-sentenced the appellant in respect of the earlier offences and also the four offences I have just outlined. After advising the appellant of the importance of keeping in touch with the community corrections order, he said:
"Because you appreciate with the number of matters we don't want you back here before the courts on a breach because if you are re-sentenced, then imprisonment has got to be a real prospect."
6 The Chief Magistrate then imposed a 12 month ISO from 17 June 2003, with supervision and programme requirements.
(Page 4)
The proceedings in the trial Court
7 On 8 July 2003, in other words three weeks later, the appellant was found in possession of cannabis. She was charged with that offence on 7 September 2003, and the matter came before the Chief Magistrate on 17 November 2003. The Magistrate received another oral pre-sentence report. The Community Corrections Officer said:
"Ms Lake's compliance was [sic] subject to the current order has been unsatisfactory. She has failed to comply with the programme requirements and substance abuse counselling at Cyrenian House and failed to attend urinalysis. Ms Lake has also appeared in Fremantle Court of Petty Sessions on the 30th of the ninth, the offence of no driver's licence for which she was fined $1000."
8 On 2 March 2004, Mr Williams, who appeared on behalf of the respondent, pointed out that there were in fact two traffic matters which breached the respective ISOs.
9 To return to the proceedings before the Chief Magistrate, the Community Corrections Officer then outlined Ms Lake's antecedents, which included a major traumatic incident which caused her to turn to heroin. The officer said:
"Amphetamines have continued to be problematic for Ms Lake. She reports however that she is currently free of illicit substances. Nevertheless, given that Ms Lake has failed to attend urinalysis and substance abuse counselling at the direction of a community corrections officer, it appears unlikely.
If the court is willing to afford Ms Lake a further opportunity of supervision in the community, it is respectfully requested that further substance abuse counselling and urinalysis be made a strict condition."
10 After hearing from defence counsel, the Chief Magistrate then sentenced the appellant. He outlined her record, which he noted was not good. After referring to the hearing in June 2003, he continued:
"And you then came back before me in - - earlier this month for a possession of cannabis. Now that charge of itself, would not normally - - although it technically breaches the intensive
(Page 5)
- supervision orders, if that had stood alone then there would've been no reason not to allow the intensive supervision orders to continue.
However, the report I have received suggests that since being placed on the intensive supervision order you have not done anything. You have not continued any of the good indications that you showed whilst on the pre-sentence opportunity programme."
11 There then followed an interchange in relation to why the appellant had failed to be tested. The appellant advanced an explanation, as to why she did not attend, before the Chief Magistrate concluded:
"Unfortunately it seems to me that there is now no other alternative than to impose a custodial sentence and an immediate custodial sentence in relation to these charges."
12 After a further short interchange he said:
"- -she's had every opportunity and I'm not prepared to give her another opportunity- -"
The grounds of appeal
13 On 18 December 2003, Hasluck J granted leave to appeal on the following grounds:
"a) the learned Magistrate erred in concluding that immediate imprisonment was the only appropriate disposition in circumstances where the pre-sentence report suggested that community justice services were prepared to continue to supervise the Applicant.
b) The learned Magistrate erred in not giving consideration to whether any sentence of imprisonment should be suspended."
14 At the hearing on 2 March 2004, I granted leave to the appellant to appeal in respect of the other convictions which were not then covered by the appeal, and ordered that that appeal be heard instanter so that all the matters were before me.
(Page 6)
The appeal and re-sentencing
15 There is no getting around the fact that the Community Corrections Officer described the appellant's compliance as unsatisfactory and gave details justifying that description. Of course, Community Justice Services were prepared to continue to supervise the appellant if that was what the Court ordered. However, it was not their decision and there is nothing in the report which leads strongly to the view that further supervision would have effected any improvement in the appellant's persistent law-breaking behaviour.
16 At the hearing of the appeal, counsel for the respondent conceded that the Chief Magistrate had erred in failing to explicitly mention suspension of sentence, and so did not dispute ground 1(b) of the grounds.
17 The cases where error might be shown by a failure to advert to a sentencing option are usefully gathered together by Roberts-Smith J in the decision of Dicks v Farrell [2001] WASCA 124.
18 Although I have considerable doubts as to whether the Chief Magistrate did err in the manner asserted, in view of the respondent's concession, I nevertheless accept that the ground is made out and therefore it becomes necessary to re-sentence the appellant.
19 It was agreed at the hearing on 2 March 2004 that I should obtain a pre-sentence report and a psychological report. The appellant was remanded on bail for this purpose.
20 Those reports have now been prepared. They were made available to counsel, and this morning counsel have made further addresses in respect of the reports. I think it fair to say that Mr Young has said all that can be said in favour of the appellant.
21 The appellant is a woman of mature years who appears to have an entrenched drug life-style with intermittent offending. The rehabilitative processes of an ISO and the real possibility of imprisonment have proved no deterrent. Her past performance was unsatisfactory. If she is granted a suspension of sentence, then the appellant will be unsupervised in the community.
22 It is clear from the pre-sentence report and the psychological report that there are long-term and embedded serious psychological issues that need to be dealt with and the appellant also has significant drug problems. She has repeatedly breached the ISOs by further offending. The primary
(Page 7)
- condition imposed by an ISO is of course a condition to abstain from violation of the law.
23 A suspended sentence is imposed wherever the circumstances call for it. One of the features of a suspended sentence is that a person is not under any form of supervision within the community. It is a sentencing disposition that is particularly appropriate where the offence is so serious that imprisonment is called for but that due to the personal circumstances of the offender, and the nature of the offence, there is reason to suppose that the offender can complete the period of suspension without further breaking the law. Based on her past history, I have no confidence that the appellant could complete a suspended sentence.
24 Where, as here, there are multiple offences, it is often appropriate to impose a mixture of sentencing options, including a suspended sentence for some matters and a community based order, such as an ISO, for others. This has the advantage of the deterrent aspect of the suspended sentence coupled with supervision. Mr Young contended for this option.
25 I have carefully considered this option. However, in view of the appellant's past poor performance she is not, in my opinion, an appropriate candidate for community based supervision. I base that judgment on her past performance and on a careful reading of the pre-sentence report.
26 In all the circumstances, accepting that the Chief Magistrate did fail to adequately consider suspension of sentence, I would nevertheless dismiss the appeal on the basis that had he properly considered suspension of sentence, the only disposition available in the circumstances was that the sentences he imposed be served immediately. Although the ground is made out, I nevertheless dismiss the appeal.
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