Maroney v The State of Western Australia
[2006] WASCA 130
•29 JUNE 2006
MARONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 130 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:25/2005 | 24 MAY 2006 | |
| Coram: | MARTIN CJ WHEELER JA BUSS JA | 29/06/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | ROBERT PETER MARONEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Totality principle Multiple offences committed while on parole 1464 days owing on previous parole sentence Principles re account to be taken of term of imprisonment for previous offences Mitigation Aggregate term of imprisonment 13 and a half years |
Legislation: | Criminal Appeals Act 2004 (WA) Justices Act 1902 (WA) Sentence Administration Act 1995 (WA), s 71(1) Sentencing Act 1995 (WA), s 32 |
Case References: | Anderson v The Queen (1993) 177 CLR 520 Grzelka v The State of Western Australia [2006] WASCA 74 Jarvis v The Queen (1993) 20 WAR 201 McLean v The Queen [1999] WASCA 209 R v Tait (1979) 46 FLR 386 R v Masterson, unreported; CCA SCt of Vic; 31 August 1982 R v Olbrich (1999) 199 CLR 270 Readhead v The State of Western Australia [2005] WASCA 191 Miller v The Queen [2004] WASCA 84 R v Herbert [2003] WASCA 27 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 130 CORAM : MARTIN CJ
- WHEELER JA
BUSS JA
- SJA 1100 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACR 25 of 2005
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : THE STATE OF WESTERN AUSTRALIA v MARONEY
File No : INS 27 and 217 of 2004
For File No : SJA 1100 of 2005
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE CULLEN
Citation : MARONEY v THE STATE OF WESTERN AUSTRALIA
File No : PE 46558 of 2004
Catchwords:
Criminal law - Appeal against sentence - Totality principle - Multiple offences committed while on parole - 1464 days owing on previous parole sentence - Principles re account to be taken of term of imprisonment for previous offences - Mitigation - Aggregate term of imprisonment 13 and a half years
Legislation:
Criminal Appeals Act 2004 (WA)
Justices Act 1902 (WA)
Sentence Administration Act 1995 (WA), s 71(1)
Sentencing Act 1995 (WA), s 32
Result:
Appeal allowed
(Page 3)
Category: D
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr S M Stocks
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson v The Queen (1993) 177 CLR 520
Grzelka v The State of Western Australia [2006] WASCA 74
Jarvis v The Queen (1993) 20 WAR 201
McLean v The Queen [1999] WASCA 209
R v Tait (1979) 46 FLR 386
R v Masterson, unreported; CCA SCt of Vic; 31 August 1982
R v Olbrich (1999) 199 CLR 270
Readhead v The State of Western Australia [2005] WASCA 191
Case(s) also cited:
Miller v The Queen [2004] WASCA 84
R v Herbert [2003] WASCA 27
(Page 4)
1 MARTIN CJ: There are two appeals against sentence before the Court. The State concedes that both appeals should be allowed and the appellant resentenced by this Court. Notwithstanding that concession, it is necessary for the Court to form its own view on the question of whether each appeal should be allowed: Grzelka v The State of Western Australia[2006] WASCA 74 at [5] per Roberts-Smith JA.
The appeal from the Supreme Court
2 The first appeal is from a number of sentences imposed in the Supreme Court. I will briefly set out the charges of which the appellant was convicted on his own plea and the sentences imposed on each.
3 There were two indictments brought against the appellant. On the first indictment, the appellant was charged with attempted armed robbery and armed robbery with personal violence, both offences having occurred on 16 October 2000. For those offences, the appellant was sentenced to 2 years' imprisonment and 3 years' imprisonment respectively, the sentences to be served concurrently.
4 On the second indictment, the appellant was charged with a series of offences committed between June and August 2004. For the offence of robbery with personal violence committed on 17 June 2004, the appellant was sentenced to a period of 6 years' imprisonment. All sentences imposed in respect of the second indictment were ordered to be served cumulatively upon those imposed in respect of the first indictment, no doubt because of the substantial separation of those offences in point of time.
5 The second count on the second indictment charged that the appellant stole and drove recklessly a motor vehicle on 30 June 2004. On that charge, the appellant was sentenced to a term of 2 years' imprisonment, to be served concurrently with the other sentences imposed on the second indictment. The sentencing Judge took that course because of his view that unless made concurrent, the total effect of the sentences would infringe the principle often described as the totality principle.
6 For the same reason, the term of 3 years' imprisonment imposed in respect of the third count on the second indictment - the charge of armed robbery - was also ordered to be served concurrently. The fourth count on the second indictment was a charge of armed robbery in company. On that charge, the appellant was ordered to serve 3 years' imprisonment concurrently with the other sentences imposed on the second indictment.
(Page 5)
7 The fifth count on the second indictment was a charge of unlawful detention, for which the appellant was sentenced to 2 years' imprisonment to be served concurrently with the other sentences imposed on that indictment. However, on the sixth count on the second indictment, a charge of armed robbery with actual violence, the sentencing Judge imposed a period of 3 years' imprisonment to be served cumulatively upon the other sentences imposed in respect of the charges laid in that indictment.
8 The final and seventh count on the second indictment was a charge of armed robbery in company, for which the appellant was sentenced to 3 years' imprisonment to be served concurrently with the other sentences imposed on that indictment.
9 The aggregate period of imprisonment arising from those sentences which were ordered to be served cumulatively upon each other was therefore a total of 12 years. The sentencing Judge further directed that the appellant be eligible for parole.
10 The appellant was also sentenced in respect of a number of offences specified on a list prepared pursuant to s 32 of the Sentencing Act 1995 (WA). I will list those offences and the sentences imposed:
Fraud - 1 year imprisonment
Two counts of impersonating a police officer - 6 months' imprisonment on each
Three counts of stealing - 6 months' imprisonment on each
Stealing a motor vehicle - 1 year imprisonment
Unlawful possession of a firearm - 18 months' imprisonment
Unlawful possession of ammunition - 1 year imprisonment
Reckless driving - 3 months' imprisonment and 2 years disqualification from holding a motor driver's licence, cumulative upon existing terms of disqualification
Failure to stop - $250 fine
Two offences of driving whilst under suspension - 6 months' imprisonment on each, and 2 years disqualification from holding a motor driver's licence concurrent but cumulative upon the previous period of disqualification.
11 All sentences of imprisonment imposed in respect of the offences listed pursuant to s 32 were ordered to be served concurrently with the
(Page 6)
- sentences of imprisonment already imposed. No time to pay was allowed in respect of the monetary penalty, but the sentence of imprisonment to be served in default of payment was ordered to be served concurrently with the other sentences of imprisonment imposed. In addition, the appellant was disqualified from holding a motor driver's licence for a period of 5 years following his release from custody.
12 The sentences imposed by the Supreme Court were to be served cumulatively upon a sentence of imprisonment being served by the appellant at the time sentence was imposed by reason of his breach of an earlier parole order. The sentence in respect of which the appellant had previously been admitted to parole was a sentence of 6 years and 9 months imposed on 5 December 2001 with effect from 5 July 2001. The appellant was admitted to parole on 3 January 2004, but on 2 April 2004 his parole was suspended. His parole was subsequently cancelled on 24 June 2004.
13 Pursuant to s 69(1) of the Sentence Administration Act 1995, by reason of the cancellation of the appellant's parole, he became liable to serve the whole of the initial term of the sentence in respect of which he had been admitted to parole, less a credit for clean street time up to the time of suspension of parole (see s 71(1) of the Sentence Administration Act 1995). The application of s 69(1) does not prevent another parole determination (see s 69(5) of the Sentence Administration Act 1995).
14 It can be seen that the appellant had served approximately 2 years and 6 months of the sentence imposed in 2001 before being released on parole. Following his release on parole, he received a credit for clean street time of approximately 3 months. However, upon cancellation of his parole, he became liable to serve the balance of his term of 6 years and 9 months, which was a period calculated by the relevant authority at 1464 days (being a period of just over 4 years).
15 Thus, by reason of the sentences imposed on the indictments to which I have referred, the total period to be served by the appellant immediately following his sentencing in the Supreme Court was a period of just over 16 years.
The appeal from the Magistrate's Court
16 The appellant was charged on a complaint laid under the Justices Act 1902 (WA) with assaulting a public officer who was then performing a function of his office. He ultimately pleaded guilty to that offence in the Magistrate's Court on 15 September 2005. The facts which he accepted
(Page 7)
- for the purposes of that plea were that at approximately 6.30 pm on 16 August 2004, while in custody at the Supreme Court holding cells, the appellant was being escorted towards the waiting secure vehicle by two prison officers when he became abusive towards the complainant who was one of those prison officers. Just before he was placed into the rear of the secure vehicle, the appellant began to throw himself from side to side in an attempt to break free. Two other prison officers nearby came to assist the complainant.
17 After the appellant had been calmed down following a struggle, the complainant leaned forward in order to release the appellant's handcuffs, at which time the appellant spat at the complainant, the spittle hitting him in the left eye. The appellant then kicked at one of the officers, and one of the kicks hit the complainant on the left side of his face.
18 It will thus be seen that this offence occurred after the appellant had been arrested for the offences for which he was sentenced in the Supreme Court, and in the course of one of his appearances before that Court. For this offence, the appellant was sentenced in the Magistrate's Court to a term of 10 months' imprisonment, cumulative upon the other terms of imprisonment he was then serving.
The issues in the appeals
19 In each appeal the substantive issue raised arises from the inadequacy of the information presented to the Court required to pass sentence in respect of the precise terms of the various sentences the appellant was serving at the time he came up for sentence. As I will show, it is clear that in both cases the information before the sentencing court was deficient.
20 Although it is for the offender to raise any alleged circumstance of mitigation on a sentencing hearing (Anderson v The Queen (1993) 177 CLR 520), and if necessary call evidence about it (R v Olbrich (1999) 199 CLR 270), the obligation of the current appellant in respect of the time which remained to be served at the time he was sentenced should not be held to fall within these principles. This is because the appellant's existing sentence at the time he was to be further sentenced may or may not have been mitigatory and the information regarding a prisoner's precise term of incarceration will generally be more readily available to the prosecution. Further, the prosecution is under a general duty to the Court to provide the information necessary to avoid appealable error: R v Tait (1979) 46 FLR 386.
(Page 8)
21 It is therefore incumbent upon the prosecution to ensure that a Judge or Magistrate called upon to pass sentence upon a prisoner already under sentence is provided with the information necessary to determine the appropriate further sentence to be imposed and, of course, the information that is provided must be accurate. It seems clear that on each of the occasions giving rise to these appeals, the prosecution failed to fulfil that obligation.
22 When the appellant appeared for sentence in the Supreme Court, the sentencing Judge was aware that the appellant was serving a sentence previously imposed by reason of the cancellation of his parole. However, the sentencing Judge was not told the length of the term that remained to be served. Rather, he was left to endeavour to calculate that information himself, from essentially nothing more than the appellant's record of convictions. Not surprisingly given those circumstances, the sentencing Judge arrived at an erroneous conclusion as to the balance of the term to be served at the time of sentence. It is clear from the transcript of the argument before him, and from his remarks upon passing sentence, that he passed sentence on the basis of a mistaken belief that the portion of the previous sentence that remained to be served was approximately 18 months, when, as I have observed, it was in fact a period of a little over 4 years. Thus, at the time of passing sentence, the Judge was plainly under the mistaken impression that the effect of the sentences he was imposing would be to give rise to a total term to be served of 13½ years, when in fact the total term was a little over 16 years.
23 When the appellant appeared before the Magistrate for sentence on the charge of assaulting a public officer, it is clear from the transcript that the prosecutor had very little information in relation to the sentences which had by then been imposed. It seems that the only information on that subject came from the appellant himself, who told the Magistrate that he was serving a term of 10 years' imprisonment. Understandably in those circumstances, the Magistrate sentenced the appellant on the assumption that the cumulative sentence of imprisonment he imposed would be served upon the expiry of a 10-year term the appellant was then serving. However, as I have noted, in fact that sentence would not fall to be served until the appellant had completed the service of the period of 16 years of imprisonment which was the cumulative effect of the sentences imposed in the Supreme Court added to the period which remained to be served of the sentence which had commenced on 5 July 2001.
(Page 9)
24 The principles governing the account which a sentencing court must take of a term of imprisonment imposed for a previous offence and which falls to be served by reason of the revocation of parole are well established by authority. In R v Masterson, unreported; CCA SCt of Vic; 31 August 1982, the Victorian Court of Criminal Appeal observed:
"A judge must take into account the liability of the prisoner to serve the unexpired portion of the parole period. That liability may be reduced or even obliterated by the Parole Board but it is not relevant for the sentencing judge to take into account the policy of the Board in such cases: see R v Bruce [1971] VR 656. The policy likely to be followed by the Board is irrelevant and speculation as to what it will do must be excluded at the time of imposing sentence."
25 That passage was cited with approval in McLean v The Queen [1999] WASCA 209, and again in Readhead v The State of Western Australia [2005] WASCA 191. The case of Jarvis v The Queen (1993) 20 WAR 201 is further authority for the proposition that the possibility that the Parole Board might release an offender on parole is irrelevant to the sentencing process. The term of imprisonment which the appellant is obliged to serve is that which is to be taken into account, irrespective of the possibility of parole. Further, Readhead v The State of Western Australia(above)provides express authority for the proposition that I would regard as relatively self-evident, that in considering the application of the totality principle, the effect upon the prisoner of the portion of an existing sentence which remains to be served must be taken into account.
26 It follows that the appeal from the sentences imposed in the Supreme Court must be allowed. When those sentences were imposed, the sentencing Judge was labouring under the erroneous impression that the term which the prisoner before him was then serving required him to serve a period of approximately 18 months, when in fact he was required to serve a period of just over 4 years.
27 It is, I think, equally clear that when imposing sentence, the Magistrate was obliged to take into consideration the length of the term of imprisonment to be served before the appellant would be called upon to serve the sentence which he was then imposing, because a substantial delay in the commencement of a period of imprisonment increases the severity of its effect. At the time of imposing sentence, the Magistrate was under the impression that the sentence he was imposing would commence at the completion of the appellant's service of a term of
(Page 10)
- 10 years' imprisonment, whereas in fact it would not commence until the appellant had served a term of just over 16 years' imprisonment. It cannot, I think, be doubted that the additional period of 6 years increases the severity of the sentence imposed, and is also obviously relevant to the application of the totality principle. It follows that the appeal from the sentence imposed by the Magistrate must also be allowed.
28 It therefore falls to this Court to resentence the appellant or send the charge back to be dealt with further pursuant to s 31(5) of the Criminal Appeals Act 2004 (WA). This is a case in which the information before this Court makes it entirely appropriate for us to resentence the appellant. Save for the effect of the erroneous assumptions which each of the sentencing courts had made as to the term of imprisonment which the appellant was then serving, it was not suggested in argument that any of the sentences imposed were outside the range reasonably open. Rather, in the case of the appeal from the sentences imposed by the Supreme Court, reliance was also placed upon the totality principle, and in the case of the appeals from the sentence imposed in the Magistrate's Court, reliance was placed upon the effect of the substantial delay prior to the commencement of that term of imprisonment. In that context, it was argued that the sentence imposed in respect of the offence of assaulting a public officer should be ordered to be served concurrently with the other terms of imprisonment imposed upon the appellant.
29 I do not accept that proposition. The offence was a significant assault upon a prison officer performing his duty of escorting the prisoner from Court. If sentences for offences of that kind are made concurrent with sentences already imposed, they provide no deterrent effect upon persons in custody, either specific to the offender or generally to those persons in custody who might be minded to commit such offences. The Courts are, and must be mindful of the need to impose sentences which deter those who might be minded to jeopardise the safety of public officers discharging important and occasionally dangerous duties relating to law enforcement. However, the length of the term of imprisonment to be imposed cumulatively upon the sentences presently being served by the appellant must reflect the fact that the appellant will not commence to serve that term until a long time in the future.
30 I have reviewed the circumstances of each of the offences for which the appellant has been sentenced, and the pre-sentence report provided to the Court. Following that review, there does not appear to me to be any reason for disturbing the sentences imposed by the Supreme Court Judge, other than to reflect the fact that the appellant had a period of over 4 years
(Page 11)
- to serve by reason of the cancellation of his parole at the time he was sentenced. At the time of imposing sentence, the sentencing Judge was under the erroneous impression that the effect of the sentences he was imposing, when added to the remainder of the term that the appellant was serving, would produce a total period of imprisonment of approximately 13½ years. That seems to me, with respect, to have been in the right order, so as to reflect the serious and sustained criminality of the appellant's conduct. That effect could substantially be achieved by leaving the sentences imposed by his Honour undisturbed, other than to order that the sentence of 3 years' imprisonment imposed for the offence of armed robbery, being the subject of count 6 of the second indictment, be ordered to be served concurrently with the other terms of imprisonment imposed in respect of the counts on that indictment, rather than cumulatively. The effect of that order would be to reduce the total cumulative sentence imposed in the Supreme Court from 12 years to 9 years, which, when added to the period of a little over 4 years that remained to be served on the sentence previously imposed, gives a total effective sentence of a little over 13 years.
31 Turning to the sentence imposed by the Magistrate's Court, I have already expressed the view that I do not accept the submission that such sentence should be concurrent with the other terms of imprisonment imposed. However, the fact that any sentence which we impose on that charge will not commence to be served until the period of 13 years total imprisonment has been served is relevant to the length of the term to be imposed and leads me to the conclusion that the term appropriately imposed is a period of 6 months. I would therefore allow the appeal from the decision of the Magistrate and substitute a sentence of 6 months' imprisonment to be served cumulatively upon the other terms of imprisonment being served by the appellant.
32 The net effect of these orders will be that the appellant will be required to serve a total term of imprisonment of a little over 13½ years. This seems to me to appropriately reflect the criminality involved in his conduct.
33 It will be apparent from the observations I have already made, that these appeals would almost certainly have been unnecessary if the sentencing courts had been provided with accurate information as to the terms of imprisonment which were to be served by the appellant at the time he came up for sentence. Those responsible for the prosecution of offences must ensure that at the time of sentence they are in possession of
(Page 12)
all relevant and accurate information in relation to the precise obligations of the offender under sentences previously imposed.
34 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of the Chief Justice. I agree with those reasons and have nothing to add.
35 BUSS JA: I agree with the Chief Justice.
9
10
4