Loder v The Queen
[2003] WASCA 168
•4 AUGUST 2003
LODER -v- THE QUEEN [2003] WASCA 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 168 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:78/2003 | 22 JULY 2003 | |
| Coram: | MURRAY ACJ ANDERSON J STEYTLER J | 4/08/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | LOIS CLOVER LODER THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Accessory after fact to offence of robbery 18 months' imprisonment imposed Whether imposition of term of imprisonment rather than suspended sentence manifestly excessive Application of totality principle to intensive supervision order Turns on own facts |
Legislation: | Criminal Code, s 393, s 562 Sentencing Act 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LODER -v- THE QUEEN [2003] WASCA 168 CORAM : MURRAY ACJ
- ANDERSON J
STEYTLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Accessory after fact to offence of robbery - 18 months' imprisonment imposed - Whether imposition of term of imprisonment rather than suspended sentence manifestly excessive - Application of totality principle to intensive supervision order - Turns on own facts
Legislation:
Criminal Code, s 393, s 562
Sentencing Act1995
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr A E Monisse
Respondent : Ms L Petrusa & Mr S F Rafferty
Solicitors:
Applicant : Cohen Leonard & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) CLR 321
Herbert v The Queen [2003] WASCA 61
Lowndes v The Queen (1999) 195 CLR 665
Magee v The Queen [1980] WAR 117
Case(s) also cited:
Etrelezis v The Queen [2001] WASCA 327
James v The Queen (1985) 14 A Crim R 364
Jarvis v The Queen (1993) 20 WAR 201
Kilner v The Queen [1999] WASCA 189
Miller v The Queen [2001] WASCA 426
O'Brien v Ritchie, unreported; SJA of WA; Library No 990123; 3 March 1999
R v Chan (1989) 38 A Crim R 337
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Millar [2001] WASCA 54
R v Mills (1977) 16 SASR 581
R v Rowe (1991) 52 A Crim R 196
(Page 3)
R v White (1977) 16 SASR 571
Thomson & Owen v The Queen (1998) 105 A Crim R 150
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 8 February 1999
Watson v The Queen [2000] WASCA 8
(Page 4)
1 MURRAY ACJ: I agree with Steytler J. Leave to appeal should be refused. I have nothing to add to his Honour's reasons.
2 ANDERSON J: I agree with the judgment of Steytler J.
3 It was well open to the sentencing court to reject the submission that a suspended sentence should be imposed. Deterrence is a very important sentencing consideration in this kind of case and this together with the other matters mentioned by Steytler J fully justified a sentence of immediate imprisonment in all the circumstances.
4 As to the totality principle, whilst it may be said that, as a general rule, the principle is always to be borne in mind when a person already undergoing sentence comes to be sentenced for other offences I am not persuaded that there was room for any practical application of the principle in this case. To the contrary, the fact that the offence in question was committed during the currency of two intensive supervision orders tended to exacerbate the applicant's criminality. I think it is a novel proposition that a person who comes to be sentenced for an offence committed during the currency of a non-custodial penalty should receive a lesser sentence in order to accommodate the totality principle.
5 In cases involving different sentencing courts the totality principle is usually applied when the second sentencing court is sentencing for an offence committed before the imposition of the sentence already being served. In such a case the court can properly and indeed must consider whether, when the second lot of sentences are added to the sentences already being or to be served, the aggregate punishment is disproportionate to the totality of the criminal conduct to which all of the sentences relate. Amongst the reasons for this is that the punishment already meted out by the first sentencing court may be expected to achieve or mostly achieve the objectives sought to be achieved by criminal sanctions (protection of the public, deterrence, punishment, retribution, reformation, public denunciation, and so on) leaving no purpose in requiring that the person receive full additional punishment in respect of the offences for which he or she remains to be sentenced: Magee v The Queen [1980] WAR 117 - especially per Wickham J at 119. All of this is discussed at length in Herbert v The Queen [2003] WASCA 61. We are not here dealing with this kind of case. The learned sentencing Judge was sentencing the applicant not for an offence committed before she had commenced to serve the intensive supervision orders but for an offence committed while she was subject to
(Page 5)
- those orders. It seems to me to be quite obvious that in such a case the main considerations which underpin the totality principle hardly arise. Far from proceeding to sentence on the basis that sentencing objectives may already have been achieved the court is entitled to approach sentencing on the basis that, in reality, the intensive supervision orders have had little or no salutatory effect.
6 STEYTLER J: The applicant seeks leave to appeal against a sentence of imprisonment imposed upon her after she was found, by a jury, to be guilty of knowingly assisting an offender in order to enable him to escape punishment. The offender, Jason Kinninmont, had committed the offence of robbery. That offence, involving the forcible taking of a motor vehicle, was committed in circumstances of some notoriety.
7 The applicant had known Kinninmont for some time prior to the date of the robbery, being 19 September 2001. On that evening Kinninmont telephoned the applicant and told her that he had committed a serious offence. Some 5 days later, on 24 September 2001, two police officers visited the applicant and sought her assistance in apprehending Kinninmont. She was asked whether she had had any contact with him and whether she had any knowledge of his whereabouts. She answered "no" to both questions. Neither answer was true. She was told that if she assisted Kinninmont in any way she would be committing an offence.
8 Shortly after the two police officers left, the applicant drove to the Wembley Hotel to meet Kinninmont. She then telephoned a hotel, the Metro Inn in South Perth, and made inquiries about booking a room for the night. She used a false name, Deanne Nissian. She and Kinninmont then left the Wembley Hotel in separate vehicles and drove to the Metro Inn. The two of them went into the reception area. The applicant booked in, using the name Deanne Nissian. She paid cash for the room.
9 The applicant spent some of the afternoon with Kinninmont in the room, although she left it from time to time before leaving it finally, on that day, at about 8 pm. She returned to the room on the following morning and knocked on the door saying words to the effect, "Jason, it's me, Lois." The door was opened by a police officer and she was arrested.
10 Between the time of the robbery and time of her arrest the applicant had been in constant communication with Kinninmont. Each had had a mobile telephone. Kinninmont had telephoned her some 173 times and she had telephoned him some 50 times.
(Page 6)
11 At her trial, the applicant denied intending to assist Kinninmont to enable him to escape punishment. She contended that her sole intention had been that of protecting her access to him as her supplier of amphetamines. It is perhaps not entirely surprising that her defence failed and that she was convicted of the offence to which I have referred.
12 The maximum penalty provided for by the then provisions of the Criminal Code (WA) in respect of the offence was a period of 7 years' imprisonment: see the then s 393 and s 562 of the Code. The sentencing Judge imposed a period of 18 months' imprisonment and ordered that the applicant be eligible for parole.
13 There are two grounds of appeal. The first is that the sentence was manifestly excessive and the second is that the sentencing Judge failed to have regard to the totality principle. I will deal with each of these grounds in turn.
14 As to the first of them, counsel for the applicant contended only that the sentence of imprisonment imposed by the sentencing Judge should have been suspended. He acknowledged that the sentencing Judge had taken into account all of those factors (leaving ground 2 aside) which were required to be taken into account by him, and that the sentencing Judge had followed the procedure required by the relevant provisions of the Sentencing Act1995 and by the case law, including Dinsdale v The Queen (2000) 202 CLR 321, but submitted that the result was one which was manifestly unreasonable or plainly wrong, with the result that this Court should infer that, in some unidentified way, there had been a failure to exercise the power properly: see Dinsdale, above, at 340.
15 Counsel for the applicant supported this submission by reference to the circumstances in which the offence was committed by the applicant and also by reference to mitigating factors personal to her at the time of sentencing.
16 As to the first of those categories, counsel for the applicant raised five matters which were said by him to be significant. The first is that the applicant had no involvement in the robbery itself. The second was that she learned of the robbery only after it had happened. The third was that her assistance "concerned only one transaction of arranging one night's accommodation for .. [Kinninmont]". The fourth was that the applicant's assistance "was prone to failure in that she booked .. [Kinninmont] into an inner city Perth Hotel". The fifth and last was that Kinninmont was apprehended shortly after being assisted by the applicant.
(Page 7)
17 The first two propositions do little to advance the matter. There was never any suggestion that the applicant was involved in Kinninmont's offending in any way or that she knew, in advance, what it was that he proposed to do. Assistance or knowledge of that kind is not an element of the offence charged. The third, fourth and fifth propositions likewise do little to advance the applicant's position. The fact that her assistance was "prone to failure" and short-lived does not help her. She intended to assist Kinninmont to evade arrest and did what she could in that regard. Her lack of success is not a mitigating circumstance.
18 That brings me to the second category, that of mitigating factors personal to the applicant at the time of sentencing. There is no doubt that there were many of these. The applicant was 28 years old at the time of the commission of the offence. While she had a criminal record, she had not previously been sentenced to a period of imprisonment. Her prior offending, insofar as it is relevant for present purposes, appears to have occurred from January 1992 onwards. On 22 January 1992 she was convicted of stealing and in 1992 and 1993 she was convicted of counts of forgery and uttering and of breaking and entering a dwelling with intent. In each case she was fined. In September 1996 she was convicted of possession of amphetamines and of a smoking implement. Then, in the year 2000, she was convicted of a number of offences including forgery, fraud and receiving. She had until 1999 been what she described as a "recreational" drug user. However, her partner died in that year and her consequential grief is said to have caused her to step up her drug use. That, in turn, led to her commission of the offences which occurred after that time.
19 On 28 June 2002 the applicant was placed on an intensive supervision order for a period of 12 months with 60 hours of community service work. At the time of sentencing (in June 2003) she had completed the 60 hours of community service work and had, the commission of this offence aside, complied with her intensive supervision order. She had also been made the subject of a second intensive supervision order imposed on 3 November 2000. That order had been imposed for a period of 15 months. She was subsequently fined an amount of $500 in respect of her breach of that order arising out of the commission of this offence.
20 Importantly, the applicant appears to have turned her life around after the commission of this offence. She has re-established her relationship with her parents and her sisters, all of whom are supportive of her. She has purchased a home and a new car and has maintained steady
(Page 8)
- employment. She appears to have stopped her drug abuse and to have severed her links with those who had had a negative influence upon her.
21 Counsel for the applicant urged upon us the submission, which undoubtedly has substance, that the applicant has substantially rehabilitated herself and is unlikely to reoffend. He submitted that that circumstance, the circumstances in which she commenced her more recent offending behaviour, her comparative youth and the fact that she had not previously been imprisoned all weighed heavily in her favour so far as the prospect of a suspended sentence was concerned. To this, he submitted, should be added the fact that, while she did not plead guilty, the applicant did admit, at her trial, that Kinninmont had committed the offence of robbery.
22 The difficulty in the path of the applicant's contention is that each of these matters was expressly considered by the sentencing Judge. It is apparent from his Honour's comprehensive sentencing remarks that he gave anxious consideration to the question whether or not he should impose a suspended sentence of imprisonment and that, in the course of that consideration, he considered each and every one of the matters to which I have referred.
23 However, his Honour also took into account a number of countervailing factors. The first of these was the seriousness of the offence, more particularly having regard for the fact that the applicant had been warned not to assist Kinninmont. His Honour rightly categorised her conduct as reflecting contempt for the warning which she had been given. His Honour also took into account the fact of the applicant's use of a false name in booking a hotel room for Kinninmont and the fact that she had bought food for him in order to avoid any necessity for him to leave the hotel room. He referred, also, to her prior criminal record and to the fact that this offence was committed when she was still subject to the intensive supervision order to which I have referred. Finally, it is apparent from the sentencing Judge's remarks that he was rightly conscious of the need for both personal and general deterrence in the case of offences of this kind.
24 The proposition is basic that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion in a manner different from that in which the sentencing Judge exercised his or her discretion. As has been mentioned in Lowndes v The Queen (1999) 195 CLR 665 at 672, the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.
(Page 9)
25 I am unable to accept that there was any failure to properly exercise sentencing discretion in this case. I have mentioned that no specific error has been pointed to under this first ground and that counsel for the applicant contends that the result is so unreasonable that there must have been a failure in the exercise of discretion. I am unable to accept that that is so. Given the seriousness with which the legislature regards offences of this kind, the circumstances of this offence including, in particular, the fact that it was committed after a warning had been given to the applicant and the need for general deterrence, it seems to me, notwithstanding the very powerful mitigating circumstances which were advanced on behalf of the applicant, that it cannot be said that the sentence is so manifestly unreasonable or plainly wrong as to lead to the conclusion that there was a failure properly to exercise the sentencing discretion. Ground 1 consequently cannot succeed.
26 As to ground 2, I must confess that I have some difficulty in understanding it. While the fact that the offence was committed at a time when the applicant was still the subject of an intensive supervision order was relevant to the sentencing process, I cannot see why it should give rise to a totality argument. The only period of imprisonment imposed upon the applicant was that of 18 months imposed upon her in respect of this offence. I have earlier mentioned that the breach of the intensive supervision order was dealt with by way of a fine. All that was relevant to the sentencing process in this respect was the fact that the current offence was committed during the currency of the two supervision orders, although the applicant had been successful, otherwise, in complying with them. Those matters were specifically referred to by the sentencing Judge in the course of exercising his discretion. It consequently seems to me that there is no merit in this ground.
27 I would consequently refuse the application for leave to appeal.
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