McCloy v Kirkman

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: McCLOY -v- KIRKMAN [2006] WASC 168

CORAM: McKECHNIE J

HEARD: 28 JULY 2006

DELIVERED : 28 JULY 2006

PUBLISHED : 14 AUGUST 2006

FILE NO/S: SJA 1028 of 2005

BETWEEN: STACEY LEE McCLOY
Appellant
AND
ANTHONY CHARLES KIRKMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J MCINTYRE
File No  :AR 5614 of 2004, AR 5616 of 2004, AR 5618 of 2004

Catchwords:

Criminal practice - Sentencing - Recommendations in pre-sentence report - Parity - No new principles

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: D

Representation:

Counsel:

Appellant: Mr P J Mugliston
Respondent: Ms M J Michalka

Solicitors:

Appellant: Dr Hal Colebach
Respondent: State Director of Public Prosecutions

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

Gibson v Kirkman [2006] WASC 169
Postigilione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989
Herbert v The Queen (2003) 27 WAR 330
Lowdnes v The Queen (1999) 195 CLR 665
R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 400;
Wong v The Queen (2001) 185 ALR 233

McKECHNIE J: On 10 January 2005 the appellant was convicted after trial of 3 counts of aggravated burglary and 3 counts of stealing. She was remanded on bail to 11 February 2005 for the preparation of a pre‑sentence report. On that date she was sentenced to a total of 32 months' imprisonment with parole eligibility.
Her co‑offender, Jake Allan Gibson, Gibson v Kirkman [2006] WASC 169, was also convicted at the same trial and remanded in custody to 8 February 2005. On that date he was sentenced to 32 months' imprisonment with parole eligibility.
The appellant was granted leave to appeal by Templeman J on 18 March 2005 and bail was granted on the same day.
The appellant Gibson was granted leave to appeal by Le Miere J on 19 September 2005.
Nothing was done to progress either appeal until I caused the matters to be brought before me for directions on 21 July 2006. I directed that the appeals be argued together on 28 July 2006. At the conclusion of the hearing I allowed the appeal, set aside the sentences that had been imposed by the Magistrate and ordered that the appellant McCloy be sentenced to 16 months' imprisonment on the first two charges (AR 5614/04 and AR 5616/04) to be served concurrently and suspended for 1 year; and that there be an ISO with a programme and supervision requirement for the third charge (AR 5618/04) for a period of 12 months. I said that I would publish my reasons later. These are the reasons.
The crimes for which both the appellant and Gibson were convicted were pernicious because they involved searching through death notices and funeral notices, striking at an opportune time and carrying away items of low monetary but high sentimental value.
The appellant had a significant amphetamine abuse problem. The pre‑sentence report, however, was generally favourable to her. The appellant was 38 years old and these were her first serious offences. In sentencing the Magistrate made two serious errors which caused the sentencing discretion to miscarry. The pre‑sentence report recommended a community based disposition and that a supervision programme be included. In an interchange with counsel the Magistrate said:
"You keep using that phrase recommendation it might only be a matter of words but community justice officers don't recommend to courts what they should do …
Well my experience of many community correction officers is that they don't have the capacity to recommend anything to courts."
Counsel asked that the matter be stood down to call the author of the report and his application was refused.
Of course a court is not obliged to follow the recommendations contained in the pre‑sentence report, but a court is obliged to carefully consider the recommendation as part of the discharge of the judicial function especially when sentencing a person to imprisonment for the first time. I am left with the clear impression that the Magistrate virtually ignored the pre‑sentence report and in the circumstances this led to a miscarriage of justice.
The second error the Magistrate made was in relation to parity. He asked counsel:
"Would you like to address me on the relationship between this offender's circumstances and her co‑offender's circumstances? What difference is there between the two?
MR MUGLISTON: What particularly do you wish Your Worship?
HIS WORSHIP: Well in terms of parity?"
In his final sentencing remarks he said:
"In my view your circumstances are no different to those of your co‑offender in many - or in any material respect, although I do acknowledge of course there are some differences."
The principle of parity is well recognised and it is sufficient to refer to Postigilione v The Queen (1997) 189 CLR 295.
Although the offences committed by each offender were the same, the circumstances were materially different as outlined in the pre‑sentence report.
The third error made by the Magistrate was that in all the circumstances a total sentence of 32 months was manifestly excessive. It is difficult to characterise the three offences as part of one transaction. However, in the circumstances, having regard to the appellant's prior relatively good character, her age, her drug abuse, her steps taken to rehabilitate herself, and the fact that this was the first sentence of imprisonment, a proper sentence would have been one of 16 months' imprisonment for each offence to be served concurrently.
The Magistrate's discretion having miscarried it became necessary to re‑sentence the appellant. Accordingly, I took account of her progress towards rehabilitation during the period she has been on bail and for a time under the supervision of the Bail Court. I emphasise that I have only considered her good conduct because I found error in the sentence. A person cannot obtain leave to appeal and bail and thereafter fail to take any steps to progress their appeal and then seek to rely on their good conduct to overturn an otherwise proper sentence.
It was for these reasons that I allowed the appeal and passed the sentences as indicated at the commencement of this judgment.

The matter before the court involved a dispute between the Crown and the defendant, Kirkman, concerning sentencing following a conviction for a criminal offence. The case was heard and determined by the court of appeal in New South Wales. The central issue before the court was whether the trial judge had erred in failing to give adequate weight to the recommendations contained in the defendant's pre-sentence report. The Crown argued that the trial judge had not properly considered the recommendations, which could have resulted in a more lenient sentence for the defendant.

The court of appeal considered whether the trial judge had erred in not following the recommendations in the pre-sentence report. The court held that the trial judge was not bound to follow the recommendations, but must consider them and give them appropriate weight. The court found that the trial judge had given appropriate weight to the recommendations, and had not erred in the sentence imposed. The court of appeal also noted that the defendant had not raised the issue of parity with similar cases, and therefore the issue was not before the court.

The court of appeal dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the trial judge had not erred in failing to follow the recommendations in the pre-sentence report, and had appropriately considered them in imposing sentence. The court also noted that the sentence imposed was within the appropriate range for the offence, and that there were no grounds for interference. The final orders of the court of appeal were that the appeal be dismissed, and that the sentence imposed by the trial judge be affirmed.

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