Markovski v Clark
[2005] WASC 181
MARKOVSKI -v- CLARK [2005] WASC 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 181 | |
| Case No: | SJA:1059/2005 | 21 JULY 2005 | |
| Coram: | MCKECHNIE J | 21/07/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed to the extent of the making of a parole eligibility order | ||
| D | |||
| PDF Version |
| Parties: | GOCE MARKOVSKI NEIL HOWARD CLARK |
Catchwords: | Criminal law Sentencing Assault Need for denunciatory penalty Parole Whether a parole order should be made |
Legislation: | Sentencing Act 1995 (WA) s 89 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
NEIL HOWARD CLARK
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR G CICCHINI
File No : PE 10766 of 2005, PE 10767 of 2005
Catchwords:
Criminal law - Sentencing - Assault - Need for denunciatory penalty - Parole - Whether a parole order should be made
Legislation:
Sentencing Act1995 (WA) s 89
(Page 2)
Result:
Appeal allowed to the extent of the making of a parole eligibility order
Category: D
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Mr A Shuy
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: This is an application for leave to appeal. Mr Robson represents the appellant and Mr Shuy has attended this morning to represent the respondent, for which I am grateful. I am therefore able to deal with the application for leave to appeal and the appeal at the one time.
2 The two grounds of appeal upon which leave is sought are:
"1. The Learned Magistrate erred in considering that he was required to impose a sentence of 6 months and 1 day of imprisonment because the Appellant was already serving a period of imprisonment.
2. The Learned Magistrate failed to consider parole and erred in not making the Appellant eligible for parole."
3 The appellant was charged with one count of unlawful assault and one count of damage, both of which occurred on 1 February 2005 in respect of a woman with whom the appellant had had a relationship. The Magistrate, after carefully setting out the facts, noted:
"The offence of assault is a serious matter. You have a bad record for assaults and you've suffered significant periods of imprisonment for that reason."
4 He said:
"There can be no other outcome in this matter, other than a term of imprisonment. There's a need for a strong general and personal, in particular personal deterrent, penalty to bring home to you and others who may be like-minded that you simply cannot act in a violent way within our society, particularly in a domestic relationship situation."
5 I entirely agree with his Worship's comments in the characterisation of the offences presented to the Magistrate and in his conclusion. This sort of offence will often require a denunciatory penalty by the Court. In respect of the assault the Magistrate considered that the offence would have warranted a term in excess of 9 months' imprisonment but reduced that, pursuant to the transitional provisions of the Sentencing Act 1995 (WA), to a term of 6 months and 1 day. In respect of the unlawful damage he made the term of imprisonment of 3 months concurrent.
(Page 4)
6 At the time of sentence, the appellant was serving a series of sentences imposed on 15 February 2005, where he was imprisoned for 4 months for driving under suspension, and a further period of 8 months cumulative for driving under the influence. Therefore, he was serving a sentence of 12 months' imprisonment. The Magistrate said: "It is totally inappropriate that it [the sentences he was passing] be served concurrently; it's a totally different matter", and:
"… the term must be served so it brings home to you, and others, that you simply will be punished for having done the type of thing you have done on this particular occasion."
7 As to the first ground of appeal, in my opinion, there are no reasonable prospects of success in relation to this ground. It is submitted that the Magistrate precluded himself from considering a sentence of less than 6 months in the way he approached it and that his sentence of 6 months and 1 day was designed, in effect, to ensure that the applicant served a term of imprisonment.
8 I agree with the latter part of the submission but I consider that the Magistrate's approach was appropriate. He had concluded that imprisonment was appropriate and that, absent the transitional provisions, the behaviour warranted a sentence of in excess of 9 months' imprisonment. In my opinion there is no error shown in his reasoning in that regard in any way.
9 He simply applied the transitional provisions give effect to the denunciatory sentence which he considered, correctly, should be imposed. I therefore would refuse leave to appeal on ground 1.
10 Ground 2 is of a slightly different order. The facts are confusing and not all the material has been put before me. It should be noted that no relevant material was put before the Magistrate despite the fact that the appellant was represented.
11 Counsel for the appellant informs me, and I accept what he says from the bar table, that the sentence of 12 months' imprisonment, which was imposed on 15 February 2005, was imposed with parole eligibility. As I say, that does not appear from the materials filed in this Court nor does it appear in anything that was put before the Magistrate, but I accept that that is in fact the position. Because it was not put before the Magistrate, he never considered the question of parole at all.
(Page 5)
12 Under s 89(2) of the Sentencing Act:
"A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of the sentence, is serving, or has yet to serve a parole term imposed previously."
13 It would appear therefore that the Magistrate was not informed that the offender is serving a parole term imposed previously. That being the actual position, then the discretion to give parole should have been enlivened before the Magistrate. It is enlivened on appeal.
14 The respondent argues that there is no merit in the application in any event because a proper examination would show that the offender would not justify for an order for parole under s 89(4). There is some weight in this submission. However, the Magistrate, as I say, never exercised his discretion in this respect. I regard the offence, of course, as a serious offence but, bearing in mind that it is a common assault, not being of the seriousness that would normally attract the trigger of s 89(4)(a).
15 It is true that the offender has a significant criminal record and, as Mr Shuy points out, that record includes previous assaults on a number of occasions although the bulk of the record seems to me to be in respect of driving offences. In the end, the matter is not free from difficulty but I have reached the conclusion that in all the circumstances this is a case where parole eligibility ought to have been ordered.
16 As I say, the Magistrate did not consider s 89(4). I am not sitting in judgment on a review of his discretion but exercising it myself in a summary manner. I consider that this is a case where a Court should make a parole eligibility order. For that reason, and because the respondent has been represented, it seems to me that the quickest and most expeditious way of disposing of this matter is as follows.
17 On the leave to appeal in respect of ground 1, leave is refused, as there are no reasonable prospects of success. On ground 2, leave to appeal is granted. The application for leave to appeal is heard at the same time as the appeal. The appeal is allowed and I vary the order made by the Magistrate to the extent of making a parole eligibility order on the sentence of 6 months and 1 day, so that in respect of the total fixed terms that the appellant is serving, that is one of 18 months' imprisonment, there is a parole eligibility order.
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