Manson v Anderson - [2001] WASCA 399

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MANSON -v- ANDERSON & ANOR [2001] WASCA 399

CORAM: MILLER J

HEARD: 11 DECEMBER 2001

DELIVERED : 11 DECEMBER 2001

FILE NO/S: SJA 1185 of 2001

MATTER :Justices Act 1902
BETWEEN: VINCENT MANSON
Appellant
AND
CRAIG RANKIN ANDERSON
First Respondent
JOHN WILLIAM RAPHAEL
Second Respondent

Catchwords:

Criminal law - Sentence - Parole - Principles to be applied - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Order for parole eligibility made

Category: B

Representation:

Counsel:

Appellant:     Mr C L J Miocevich
First Respondent           :     Ms D E Quinlan
Second Respondent       :     Ms D E Quinlan

Solicitors:

Appellant:     Aboriginal Legal Service
First Respondent           :     State Crown Solicitor
Second Respondent       :     State Crown Solicitor

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

Evans v Vanderheide [2001] WASCA 352
Thompson v The Queen (1993) 8 WAR 387

Case(s) also cited:

Nil

MILLER J: On 4 December 2001 the appellant made application for leave to appeal and for an extension of time within which to appeal from a decision of Mr A Bloemen SM given in the Court of Petty Sessions at Halls Creek on 23 October 2001. The appellant was then sentenced to 12 months' imprisonment without any order for eligibility for parole. The application for leave to appeal was only marginally out of time and was due to a delay in obtaining the transcript from the Court of Petty Sessions at Halls Creek. I am satisfied that the extension of time sought should be granted. I also decided on 4 December that the application for leave to appeal and the appeal itself should be determined at the same time, it being in the interests of justice to do so. The matter was adjourned until today to enable notice of this decision to be given to the respondents. They had already been served with a copy of the application and the supporting affidavit.
The facts of the matter are very simple. The appellant was charged in the Court of Petty Sessions that on 18 September 2001 at Halls Creek he had driven a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle and whilst driving without the appropriate valid driver's licence for the class of vehicle in question and whilst legally disentitled to hold a driver's licence. The offences were offences against s 63(1), s 49(1) and s 49(2)(a)(ii) of the Road Traffic Act 1974 ("the Act").
The appellant was also before the Court in relation to two similar complaints which had issued out of the Court of Petty Sessions at Halls Creek on 28 August 2000. They were complaints which respectively alleged that the appellant had, on 26 August 2000 at Halls Creek, driven a motor vehicle on a road without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a licence and at the same time, had driven whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.
In relation to these two charges the appellant had been dealt with at Halls Creek on 5 September 2000 and sentenced to imprisonment for 10 months, suspended for 24 months, with disqualification of his motor vehicle driver's licence for life on the s 63(1) charge and for 9 months cumulative on the s 49 charge.
When the matter came before Mr Bloemen SM at Halls Creek on 23 October 2001 the appellant pleaded guilty to the charges relating to the day of 18 September. It was also conceded that he had thereby breached the suspended sentence imposed by the learned Magistrate on 5 September 2000. The facts stated by the prosecutor reveal that at about 8.20pm on 18 September the appellant had driven a Ford wagon in a street in Halls Creek and when stopped had been conveyed to the Halls Creek police station for a breath test. The calculated reading was 0.226 per cent and it was also discovered that the appellant's motor vehicle driver's licence had been cancelled on 5 September 2000 for life.
The appellant was represented by counsel who conceded that the only likely outcome of the proceedings would be a term of imprisonment for the appellant. Counsel pointed out that the appellant had done his best to stay out of trouble whilst on the suspended sentence previously imposed and had been free of convictions for over a year. The appellant's personal details were given to the Court and they revealed that he was 30 years of age, married with four children, two of whom were presently living at home. He was from Bililuna and was only temporarily in Halls Creek. At Bililuna he was employed as a stock hand and had a lengthy history of employment. He had a central role in the administration of aboriginal law within his community and was about to participate in "Law Season". It was said that the reason why the appellant had committed the offences was that he had come in from Bililuna to get money from the bank at Halls Creek and it was his arrival in the town which had caused his problem. At Bililuna the offences could not have been committed.
The learned Magistrate dealt with the matter very swiftly. He said:
"HIS WORSHIP: Thank you, please stand up Vincent. Vincent, I'm not a babysitter sitting here. I've given you every opportunity last year to change your lifestyle. An imprisonment suspended is an imprisonment term. The Supreme Court has made that very clear. You're back barely a year later with similar offences. I breach you of your Suspended Sentence impose a 10 month Imprisonment term concurrent with 12 months' imprisonment without parole. On the driving while under suspension, legally disentitled a 12 months' imprisonment concurrent. On the DUI charge, your licence is suspended for life and your licence is suspended for 9 months cumulatively. Thank you."
I take it from the learned Magistrate's comments and from an examination of the charge sheets that a sentence of 12 months' imprisonment without any order for eligibility for parole was imposed on each of the two charges relating to the events of 18 September 2001. They were ordered to be served concurrently. In addition, the breach of the suspended sentence imposed in September 2000 had the consequence that the appellant was ordered to serve the term of imprisonment that had then been suspended, namely 10 months concurrent in each case. An endorsement to that effect is to be found on the charge sheet in relation to the offence of driving under the influence on 18 September 2001.
The appellant seeks leave to appeal from the decision of the learned Magistrate on the ground that his Worship erred in failing to make the appellant eligible for parole. In my view leave to appeal should properly be given.
It is to be noted that in the proceedings at Halls Creek on 23 October 2001 no submissions were made either by the prosecutor or by counsel for the appellant in relation to the issue of parole. Perhaps counsel for the appellant assumed that if his client was sentenced to imprisonment he would be given parole. Such an assumption would have been justified, as the appellant does not appear to have previously been imprisoned on any occasion other than for a period of seven days on 3 August 1992 for the offence of damage. On 13 January 1998, the appellant was sentenced to 6 months' imprisonment suspended for 24 months and on 5 September 2000, he was sentenced to 10 months imprisonment suspended for 24 months.
I should say in passing that a sentence of 6 months' imprisonment suspended for 24 months and a sentence of 10 months' imprisonment suspended for 24 months meant that on each occasion the sentence was suspended for the maximum period. In Evans v Vanderheide [2001] WASCA 352 I made some observations about the suspension of a term of imprisonment for the maximum period of two years. I there said (at [22] ‑ [23]):
"The decision of the learned Magistrate to suspend the sentence for a period of 2 years was unaccompanied by any reasoning. The period of 2 years' suspension is the maximum for which a term of imprisonment can be suspended: Sentencing Act, s 76(1). I am unaware of any authority on the question of the criteria to be adopted on considering the length of suspension to be imposed, but I would have thought the maximum period of 2 years to be reserved for serious cases, such as the offence of robbery, where a suspended sentence would be rare, or for cases where a long period for rehabilitation of the offender was necessary.
It does not appear in the present case that the offender required a lengthy period of suspension for purposes of rehabilitation. What was required was a sufficient period of suspension to drive home to him the need to correct his unruly behaviour and refrain from outbursts of offending by way of disorderly conduct and worse. In my view, suspension of the sentence of imprisonment for a period of 12 months would have achieved that result. I would add that Crown counsel accepted that this would be more appropriate than the 2 year period of suspension imposed by the learned Magistrate."
Although it is unnecessary for me to decide the point, it would seem in the present case that the original suspension of sentence for a period of 2 years was excessive.
The factors the learned Magistrate was required to consider in determining whether or not a parole eligibility order should be made are set out in s 89(2) of the Sentencing Act 1995. They are:
"(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the officer would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant."
It is apparent from the learned Magistrate's reasons that no detailed consideration was given to these criteria. If the learned Magistrate did consider them he certainly reached no conclusions in relation to them during the course of delivering his decision.
The principles relevant to the question of eligibility for parole were set out in Thompson v The Queen (1993) 8 WAR 387 where the Court, in dealing with s 37A of the Offenders Community Corrections Act 1963, said (at 395 ‑ 396):
"The nature and purpose of parole and the way in which a court should enter upon a determination whether to make an order for eligibility for parole has been the subject of comment in numerous decisions. The principles are well known. However, they bear repeating. The principles which are relevant in the context of this application are as follows:
(a)once a court sentences a person to a term of imprisonment the question of eligibility for parole of the offender must be considered (s 37A(1)): see Swain v The Queen (1989) 41 A Crim R 214 at 216, per Malcolm CJ;
(b)whether to order eligibility for parole calls for the exercise of a judicial discretion: see Swain v The Queen (supra) (at 218);
(c)the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole (see Howell v The Queen (1989) 2 WAR 60 at 61‑62, per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v The Queen (supra), per Brinsden J (at 67‑68); Yarran v The Queen (unreported, Supreme Court, WA, Library No 8762, 15 March 1991), per Malcolm CJ, at 4);
(d)parole serves to mitigate punishment as well as provide an opportunity for rehabilitation: see Deakin v The Queen (1984) 58 ALJR 367;
(e)in determining whether an order for eligibility for parole should be made, the sentencing judge may have regard to all or any of the following:
(i)the nature of the offence;
(ii)the circumstances of the commission of the offence;
(iii)the antecedents of the offender;
(iv)circumstances which are relevant to the offender or which might, in the opinion of the judge, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made;
(v)any other matter that the judge thinks relevant (s 37A(3));
(f)the matter raised in item (e)(iv) above requires the sentencing judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other: see Archibald v The Queen (1989) 40 A Crim R 228 at 233‑234, per Wallace J;
(g)the purpose of the prognosis required by item (e)(iv) above is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community: see Archibald v The Queen (supra), per Malcolm CJ (at 230);
(h)the severity of a sentence is relevant to the question of eligibility for parole but even where the sentence is lenient, it is still necessary to consider the question: see Swain, per Malcolm CJ (at 217);
(i)the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board: see Yarran v The Queen (supra), per Malcolm CJ (at 4)."
Had the learned Magistrate in this case given consideration to these principles and to par (a) to par (e) of s 89(2) of the Sentencing Act, he would, in my view, have made a parole eligibility order. The seriousness and nature of the offences was not such that a parole eligibility order should be denied. Nor were the circumstances of the commission of the offence. The antecedents of the offender revealed that he had not previously been in prison other than for a period of 7 days and was a well respected member of the Bililuna Community. In all the circumstances, he was clearly a candidate for eligibility for parole and it is puzzling that the learned Magistrate did not see it that way.
In these circumstances I have no hesitation in allowing the appeal and varying the sentence of imprisonment imposed by the learned Magistrate so that the appellant is eligible for parole.