LUMAI v The Queen

[2000] WASCA 193

LUMAI -v- THE QUEEN [2000] WASCA 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 193
Court:	COURT OF CRIMINAL APPEAL	Published:	02/08/2000
Case No:	CCA:33/2000	Heard:	13 JULY 2000
Coram:	PIDGEON J WALLWORK J ANDERSON J	Delivered:	13/07/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Effective sentence of 30 months imprisonment reduced to 12 months imprisonment Eligible for parole
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Parties:	JOHN PHILLIP LUMAI THE QUEEN
Catchwords:	Criminal law Sentencing Breaking and entering and stealing Persistent young offender Unemployed stockman at Kununurra Drinking problem Not sent to prison before Relevance of antecedent criminal history Whether a continuing attitude of disobedience to the law could increase sentence
Legislation:	Nil
Case References:	Veen v The Queen (No 2) (1987-98) 164 CLR 465 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Gavin v The Queen (1991) 6 WAR 195 Heferen v The Queen (1999) 106 A Crim R 89 Hoare v The Queen (1988-89) 167 CLR 348 Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997 Lowndes v The Queen (1999) 195 CLR 665 Morrison v The Queen, unreported; CCA SCt of WA; Library No 970461; 10 September 1997 Nguyen v R [1999] WASCA 54 Pezzino v The Queen (1997) 92 A Crim R 135 R v King [2000] WASCA 130 R v Peterson [1984] WAR 329 R v Ward [1999] WASCA 157 Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996 Verschuren v The Queen (1995) 17 WAR 467 Wroblewski v The Queen (1999) A Crim R 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LUMAI -v- THE QUEEN [2000] WASCA 193 CORAM : PIDGEON J

WALLWORK J
ANDERSON J

HEARD : 13 JULY 2000 DELIVERED : 13 JULY 2000 PUBLISHED : 2 AUGUST 2000 FILE NO/S : CCA 33 of 2000 BETWEEN : JOHN PHILLIP LUMAI

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Breaking and entering and stealing - Persistent young offender - Unemployed stockman at Kununurra - Drinking problem - Not sent to prison before - Relevance of antecedent criminal history - Whether a continuing attitude of disobedience to the law could increase sentence

Legislation:

Nil

(Page 2)

Result:

Effective sentence of 30 months imprisonment reduced to 12 months imprisonment

Eligible for parole

Representation:

Counsel:

Applicant : Mr R W Richardson
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Aboriginal Legal Service of WA (Inc)
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Veen v The Queen (No 2) (1987-98) 164 CLR 465

Case(s) also cited:

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Gavin v The Queen (1991) 6 WAR 195
Heferen v The Queen (1999) 106 A Crim R 89
Hoare v The Queen (1988-89) 167 CLR 348
Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
Lowndes v The Queen (1999) 195 CLR 665
Morrison v The Queen, unreported; CCA SCt of WA; Library No 970461; 10 September 1997
Nguyen v R [1999] WASCA 54
Pezzino v The Queen (1997) 92 A Crim R 135
R v King [2000] WASCA 130
R v Peterson [1984] WAR 329
R v Ward [1999] WASCA 157


(Page 3)

Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996
Verschuren v The Queen (1995) 17 WAR 467
Wroblewski v The Queen (1999) A Crim R 129

(Page 4)

1 PIDGEON J: I agree with the reasons of Wallwork J.

2 WALLWORK J: On 7 February of this year at Kununurra, the applicant who was then 21 years of age, was sentenced to five terms of imprisonment. He was sentenced to 18 months imprisonment for aggravated burglary; a further 12 months imprisonment to be served cumulatively for an earlier offence of the same nature. He was then sentenced to 9 months imprisonment for an earlier offence of burglary. That sentence was ordered to be served concurrently with the earlier terms. He was also ordered to serve 6 months imprisonment concurrently for stealing a motor vehicle and he was fined $300 for driving the motor vehicle without a current driver's licence. He was disqualified from obtaining or holding a motor driver's licence for a period of 2 years. He was then sentenced to 1 month's imprisonment to be served concurrently with the first term of imprisonment for the breach of a bail undertaking.

3 The background to the applicant's sentences which were imposed on 7 February, was that on 5 June 1999, he had entered an unoccupied house at Kununurra and stolen $10 in cash. He had apparently gone to the house to obtain some drugs, but when he had been unable to purchase or find any cannabis, he had looked through the rooms in the house for something to steal. He had then stolen the $10 which he spent on alcohol. He was sentenced to 18 months imprisonment for that offence.

4 Earlier, on 14 January 1999, the applicant had been placed on a conditional release order in Kununurra for an offence of having entered a backpackers' hostel in Kununurra on 14 July 1998, with the intention of obtaining some food. He went into the rear of the premises through an unlocked closed door, stole eight slices of bread and several sausages from the kitchen, and then went into one of the bedrooms to search for other property. A female boarder woke up and the applicant then ran off. He was said to have been intoxicated at the time and had had no money to buy food. The hostel was next to his grandfather's house where he had originally gone to obtain something to eat. He cooked and ate the sausages.

5 On the following day the applicant participated in a video record of interview and admitted the facts of the offence in full. He later pleaded guilty on the fast-track system. He was 7 days in custody before being placed on a conditional release order for 9 months from 14 January 1999. He was told on that occasion that if he broke the law again he could be imprisoned.

(Page 5)


6 On the same day as the last-mentioned order was made, he was dealt with for a breach of a community order which had been imposed on him on 25 January 1998 for a count of burglary with intent which he had committed on 6 December 1997. Apparently the day before that offence and during the night, the applicant had been drinking heavily with his relatives. Early in the morning of 6 December he went to a tavern in Kununurra with the intention of breaking into a bottle shop to obtain some more alcohol. He had picked up a piece of wood and thrown it through a window. Because of the noise he became scared and ran off. He later admitted the offence to the police and stated that he had wanted to get some more beer.

7 On 14 January 1999 when he was released on the conditional release order for both the abovementioned offences, it was intended that the applicant would go to Bucket Springs where there was no alcohol and where he had been working previously. Obviously that was not successful because on 5 June 1999 he was back in Kununurra where he committed the first abovementioned offence on 5 June 1999.

8 On 7 February 2000 the applicant was sentenced to a term of 12 months imprisonment for the backpacker hostel offence on 14 July 1998, to be served cumulatively on the first term of 18 months imprisonment. He was then sentenced to 9 months imprisonment to be served concurrently for the tavern offence which was committed on 6 December 1997.

9 On 7 February 2000 he was also dealt with for the breach of a bail undertaking, the theft of a motor vehicle and the driving of the motor vehicle without being the holder of a valid driver's licence. He had been in custody for those offences from 3 December 1999.

10 The facts relating to the bail offence were that on 11 February 1999 the applicant had been bailed to attend the Kununurra police station on 15 February 1999. He had failed to appear on that date. It was said that he had gone to his grandmother's funeral and because of flooding, he had remained on Mount Barnett station for some time. Eventually he went back to Kununurra and was apprehended by the police when walking along the road. He was sentenced to one month's imprisonment to be served concurrently with the first 18 months term of imprisonment for the breach of bail.

11 The facts concerning the stealing of the motor vehicle were that on 1 January 1999 an associate of the applicant had stolen a Toyota vehicle

(Page 6)

from a Kununurra residence. The applicant had later driven that vehicle along the Victoria Highway to his home in Kununurra where he had handed it over to a third person who had driven it around Kununurra until he was stopped and apprehended by the police. At the time the applicant had driven that vehicle he did not have a valid motor driver's licence.

12 The applicant was sentenced to 6 months imprisonment to be served concurrently with the earlier terms, for stealing the motor vehicle. He was fined $300 for driving without a valid motor driver's licence and he was disqualified from holding a motor driver's licence for a period of 2 years.

13 At the conclusion of the hearing of this application for leave to appeal against the abovementioned sentences, this Court reduced the first sentence of 18 months imprisonment to a term of 12 months imprisonment. For the aggravated burglary in the backpackers' hostel, the Court ordered that the 12 months imprisonment which had been imposed for that offence be reduced to 9 months imprisonment to be served concurrently with the first term of 12 months imprisonment. For the third offence of burglary which had involved the breaking of the window in the tavern, the applicant's 9 month sentence of imprisonment was reduced to 6 months imprisonment to be served concurrently with the two earlier sentences. The remaining sentences being the term of 6 months imprisonment for stealing the motor vehicle; 1 month's imprisonment for breaching the bail undertaking and the fine of $300 and the driver's licence suspension order were left as they were. The applicant was ordered to be eligible for parole.

14 The result of the application for leave to appeal therefore was that the 30 months total effective term of imprisonment which was imposed upon the applicant on 7 February 2000 and ordered to commence from 3 December 1999 when he was taken into custody, was reduced to an effective sentence of 12 months imprisonment with eligibility for parole, to commence from 3 December 1999. My reasons for concurring in that order are set out below.

15 The applicant was born on 14 March 1978 at Kununurra. He had completed his education at the age of 14 years but had not completed or attempted any examinations. Although the applicant had been sentenced as a child to 12 months detention in 1993, he had been released on the same day on a conditional release order. Those offences had concerned a sexual penetration. The applicant was then 15 years of age. After he turned 18 years of age in March 1996, the applicant had not been

(Page 7)

sentenced to a term of imprisonment, although he had committed the offences which have been referred to earlier in these reasons.

16 In June 1999 the applicant was said to have been employed at the Bucket Springs community in the Northern Territory where he had been for a period of two years. Before that, from 1995 to 1997, the applicant had been employed as a stockman at Kilkurk Station in the Northern Territory.

17 It appears from the information available to the Court that when he is in Kununurra the applicant has a problem with alcohol. In July 1999, when a report was prepared, the applicant was living with his father at the Ranch Reserve Kununurra. His parents had separated when he was 5 years of age. His two brothers and sisters live in Katherine. The author of one pre-sentence report was of the opinion that the applicant had an alcohol problem but did not appreciate it. It was said that because of his age and the lifestyle of other young people in the community, the applicant had difficulties in appreciating that a large consumption of alcohol could have a major effect on his health and the risk of him re-offending. He is said to have smoked cannabis on a casual basis.

18 In 1999 the applicant admitted that he had a problem with alcohol. He had undertaken to attend a three month residential alcohol program at Wyndham. He had failed to complete that program because, it is said, he had found the place where it was held boring. He was said to have become lonely when one of his cousins, who was also attending the program, had absconded.

19 The applicant's father is a respected elder in the community and has indicated that the applicant is a follower and easily led by others of his group.

20 It was submitted at the hearing of this application that the learned sentencing Judge had erred when he had said:

"You are still relatively young although you cannot be described as a juvenile. Having said that however the courts recognise that some young offenders with bad records must go to jail. There is simply no alternative. This is particularly the case where the offender in question has been placed upon a community based order and after being warned as to what might happen if that order were breached by re-offending has, notwithstanding such warning, re-offended by committing further offences of dishonesty."

(Page 8)

21 Further on in his sentencing remarks I note that the learned Judge said:

"Although I cannot increase the sentence I impose for the indictable offence because of your record, I must take into account the previous orders that were imposed upon you and the offences for which those orders were imposed, because they demonstrate only too clearly that this offence of aggravated burglary to which you have pleaded guilty on indictment is simply another example of your readiness to break the law, break into other people's property, and steal items of value. In your case, I regret to say, considerations of punishment, deterrence and protection of the community must play a significant part in any sentencing process this Court follows. I have reached the conclusion that the time has come that you must go to jail. The offences looked at in the light of your background are so serious that only imprisonment can be justified. Furthermore I believe that you currently pose a threat to the community, particularly when under the influence of drink."

22 It was contended for the applicant that the learned sentencing Judge had erred by treating the applicant's record, in effect, as a circumstance of aggravation in determining that prison was the only appropriate disposition.

23 In Veen v The Queen (No 2) (1987-98) 164 CLR 465 at 477, Mason CJ, Brennan, Dawson and Toohey JJ said:

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

(Page 9)

It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

24 In my view the learned trial Judge in this case did not err in his approach by taking account of the applicant's earlier history of offending. However, having regard to the background of the applicant and to the nature of the relevant offences, it was my view that the total effective sentence of 30 months imprisonment was too severe. For that reason I agreed that it should be reduced to an effective sentence of 12 months imprisonment with eligibility parole.

25 ANDERSON J: I have read in draft the reasons for judgment of Wallwork J. I agree with them entirely and there is nothing I wish to add.