McColl v Roberts

[2014] WASC 300

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   McCOLL -v- ROBERTS [2014] WASC 300

CORAM:   McKECHNIE J

HEARD:   8 AUGUST 2014

DELIVERED          :   22 AUGUST 2014

FILE NO/S:   SJA 1031 of 2014

BETWEEN:   COREY-BENSON EVAN McCOLL

Appellant

AND

KATIE LOUISE ROBERTS
First Respondent

TAMYKA MARIE GOULD
Second Respondent

MICHAEL TRUONG
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE C D ROBERTS

File No  :PE 62643 of 2014, PE 40850 of 2013, PE 9060 of 2013

Catchwords:

Criminal law - Sentencing - Burglary and multiple driving offences - Sentence of 32 months - Whether infringes totality principle - Refusal to order parole - Whether an error

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent          :     Mr L M Fox

Second Respondent      :     Mr L M Fox

Third Respondent        :     Mr L M Fox

Solicitors:

Appellant:     In person

First Respondent          :     Director of Public Prosecutions (WA)

Second Respondent      :     Director of Public Prosecutions (WA)

Third Respondent        :     Director of Public Prosecutions (WA)

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

Downey v The State of Western Australia [2012] WASCA 55

Gangemi v The State of Western Australia [2014] WASCA 39

Kelly v The State of Western Australia [2011] WASCA 273

Martino v The State of Western Australia [2006] WASCA 78

Papertalk v The State of Western Australia [2011] WASCA 229

Rahman v The State of Western Australia [2012] WASCA 140

Roffey v The State of Western Australia [2007] WASCA 246

Whitby v The State of Western Australia [2014] WASCA 99

1. McKECHNIE J:  Mr McColl pleaded guilty to a series of offences annexed to these reasons.

2. He was remanded on bail for the preparation of a pre‑sentence report and psychological report.

3. On 21 March 2014 he was sentenced to a total of 32 months' imprisonment with some sentences being made cumulative.  No parole eligibility order was made.  Mr McColl appeals against the length of sentence and also seeks a parole eligibility order.  The magistrate made no sentencing error and while leave is granted, the appeal must be dismissed.

Sentencing remarks

1. When the magistrate came to sentence he noted that Mr McColl was charged with a large number of offences committed from March 2012 to January 2014, the most serious of all house burglary committed while on bail for other offences including a breaking and entering of a building.  He noted he was a middle aged man (Mr McColl being 36).  The magistrate considered the house burglary as the most serious charge.

2. He referred to Gangemi v The State of Western Australia [2014] WASCA 39.

3. Gangemi was sentenced in the District Court for burglary of a not‑for‑profit organisation.  He had an extensive criminal record and like Mr McColl, was on bail at the time of offending, had a history of drug dependency, and was a high risk of re‑offending.  A sentence of 4 years' imprisonment was not disturbed on appeal.

4. The magistrate noted what he described as Mr McColl's unfortunate upbringing and recent tragedy involving his brother.  He also noted that he had breached virtually every order he had been on.

5. He took into account the serious nature of the offence and noted:

   You say in your letter to me that you would give a destitute man your last 50 cents yet you have little or no empathy for the other victims of your crimes.  You simply take from them to feed your drug addiction.

6. He noted a need for personal deterrence and protection of the public because the continued offending is driven by an entrenched drug dependency.  The magistrate concluded that he was at a very high risk of offending again in the near future.

7. In relation to the burglary the magistrate considered two years as being an appropriate sentence but made a 20% reduction to reflect the plea of guilty and backdated to reflect time spent in custody.

8. In relation to the burglary on Supa Cheap Auto he reduced a sentence of 12 months by 25% because of an early plea of guilty to a term of 9 months.  He considered whether to make the term concurrent or cumulative but decided that the term should be cumulative.  He said:

   It's not a like offence.  It's committed at separate dates, separate places, totally different offence.

9. In relation to the driving offence he took into account the circumstances of the driving which he described as reprehensible, doing an estimated speed of 160 km per hour in a built area and 125 km per hour in a 40 zone, going through amber lights, people running from the road, narrowly missing other people and fuel pumps.

10. Mr McColl has three prior convictions for driving while under suspension.  The magistrate imposed a term of 3 months' imprisonment to be served cumulatively.  All the other sentences were imposed concurrently having regard to the totality principle.

11. The magistrate ordered a pre‑sentence report and a psychological report.

The psychological report

1. Mr McColl was the subject of a comprehensive psychological report.  The psychologist detailed his background and substance abuse.

2. On the Millon Clinical Multiaxial Inventory III:

   The main feature of [Mr McColl's] profile is his impulsive self‑destructive personality style.  He experiences unstable, unpredictable moods which range from feeling disillusioned and dejected, feelings of euphoria to anger, irritability and self‑destructiveness including self‑harm and suicidal behaviours.

3. Under the heading 'Rehabilitation Issues/Managing Risk' the psychologist noted:

   It is not likely that completing more offending programs will have a significant effect on [Mr McColl's] risk of future offending.  His main needs are related to his psychological functioning and inability to cope or self soothe without drugs. 

The pre‑sentence report

1. The pre‑sentence report noted that the previous response to supervision in all but one case ended with the cancellation of the order.

The relevant offences

1. I set out the facts and sentencing remarks relevant to those under review.

PE 62643/14 - Burglary and commit offence in dwelling

The charge

1. Without consent was in the dwelling of Karen Barlow and committed an offence therein, namely stealing valued at (estimated) $2,000.

The facts

The facts are:  4.45 pm, the victim left her home address in Como.  A copy of the house key was located in the lockbox on a railing outside the property.  The accused attended the address, smashed the railing, retrieved the lockbox and obtained the key from it, entered the dwelling, entered a number of rooms, stole items.  They should be listed on the prosecution notice, sir.

If they're not, there's cameras, passports, keys, mobile phones, another key, MasterCard, silver Apple iPad and an iPod.  Victim arrived home and reported the matter to the police.

The sentencing remarks

Now, in relation to the house burglary, that's the most serious charge.  There's a recent case called Gangemi which involved a break/enter of a building, not a house.  A building is far more - a house is far more serious than a building.  That person had 18 prior convictions and involved about $16,200, of which only 800 was recovered, and the Supreme Court - on appeal to the Full Court, it was held that four years imprisonment was at the higher end of the scale, but not inappropriate in the circumstances.

Previously - I often refer to Cheshire's case.  That involves break/enter of buildings and a person with some prior history can expect 12 to 18 months.  Herbert's case is a home burglary matter where it was held that three years, which is the maximum by this court, was not inappropriate and, indeed, if it was in the District Court, five years would have been an appropriate sentence.

There's no doubt that you have had an unfortunate upbringing, no question about that.  You've been deprived in many respects, but you've relied upon that all of your life and, no doubt, in previous court proceedings.  There is, of course, the recent tragedy involving your brother.  I have no doubt you do have difficulty in coping on the outside and you resort to drugs to self‑medicate.  You've breached virtually every order that you have been on.

Whilst it has been pointed out by Ms Townsend all the matters personal to you and why I should impose a lenient sentence, I have to also take into account the other side of things, and that is, I have to balance your personal circumstances with the criminality of your acts.  Now, the poor owners of the house and business premises that have been broken into, I have to consider them.  You say in your letter to me that you would give a destitute man your last 50 cents, yet you have little or no empathy for the other victims of your crimes.  You simply take from them to feed your drug addiction.

There is a need for personal deterrence and the protection particularly of the public.  Your continual offending is driven by the entrenched drug dependency and I'm afraid you are at very high risk of offending again in the near future.  You have been tried on many drug programs without success.  Your prospects, unless you of your own volition do something, are dismal.  The fact is if you don't beat your drug habit, you are likely to continue to hurt law-abiding citizens who shouldn't have to put up with having their houses burgled by people like yourself simply to feed their drug addiction.

Quite rightly, they should expect that the court imposes an appropriate sentence and doesn't just let the person say, 'Look at my poor upbringing.  Look at the predicaments I've had in my life.  I've got a drug problem.  Give me a light sentence'.  It doesn't work that way.  That's only one part of the equation that I have to consider.  I will start with the most serious offence and it's aggravated, in my view, in the sense that you committed this whilst you were on bail for other like offences.

In respect of the burglary, I believe, having regard to personal matters relating to yourself, that two years is an appropriate sentence.  However, I'm going to give you a discount, a 20 per cent discount, to reflect the plea of guilty and I'm going to backdate that to 8 September last year for the period of time that you've spent in custody.  Having regard to your antecedents, the like nature of your continual offending and prospects, I will make an order that you not be eligible for parole.

PE 40850/13 - Burglary and commit offence in place

The charge

1. Without consent was in the place of Supa Retail Group Ltd, trading as Supa Cheap Auto and committed an offence therein, namely a stealing, valued at approximately $800.00.

The facts

[2.30] and 4 pm, in between those times on 14 July 2013, the accused was at the Supercheap Auto store in Collier Road, Morley and was in company with a male associate yet to be identified.  Entered the store, meandered about the islands for some time before entering the rear storeroom area.  The storeroom is not a place to which the public are permitted to have access.

Chose to walk through the storeroom into the staffroom, located the victim's car keys and Samsung Galaxy mobile phone on the table.  Took the items from the table and walked out of the staffroom, back through the storeroom and back into the store, then left the store followed by his associate.  He was arrested by police on 7 August 2013.  Captured on CCTV entering the shop and storeroom.  Sim card was found in his - from the stolen phone was found in his phone.  So there's a stealing of that sim card.  And that should - there's a breach of bail on there as well, sir, as per the notice.

The sentencing remarks

In respect of the burglary on the building, Supercheap Auto, I believe 12 months - having regard to matters personal to you, 12 months is an appropriate sentence, but I will give you a discount of 25 per cent, on that one because of the early plea, of three months.  That means imprisonment for nine months.  Having regard to totality principles and the sheer number of charges here, I am going to make that cumulative.  I don't believe it should be concurrent.

PE 9060/13 - No authority to drive - suspended (other than fines suspension)

The charge

1. Drove a motor vehicle, namely a Holden Commodore, registered number, 1BXK 493, on a road, namely Belvidere Street, Belmont, whilst not being a person authorised by Part IVA of the Road Traffic Act 1974 (WA) and whose authority to drive was at the time suspended.

The facts

[W]hich is fail to stop when called upon in circumstances of aggravation, and no authority to drive suspended.  The facts in relation to that matter, sir:  (indistinct) 16 February 2013, just before 9 pm, he was driving a motor vehicle on Belvidere Street in Belmont.  The accused was parked in a bus lane.

Police identified that the accused (indistinct) subject to a surrender notice; should have been surrendered by 6 February 2013.  In an attempt to speak to the driver, police in an unmarked car pulled up behind the accused, activated the lights so the car would stop and calling for him to stop.  Upon activation of the emergency lights, the accused said words to effect, 'I've got to go', or 'Fuck this, I'm going'.  He accelerated away heavily along Belvidere Street.

The sentencing remarks

The facts are shocking.  You're very lucky that you weren't charged with more serious offences, including reckless driving.

Of course, I do not give you an increased sentence based upon the particular facts, but I have to take into account when you have prior convictions for drive under suspension - and I'm contemplating a jail term.  I have to take into account the circumstances of the driving and, quite frankly, the driving was reprehensible.  You were doing an estimated speed of 160 ks in a built-up area at times, 125 ks in 40 zone at other times, going through amber lights, people running from the road, narrowly missing other people and fuel pumps.  That's a matter of real concern.  I believe imprisonment is the only appropriate sentence.

I note you have three prior convictions for drive under suspension.  Having regard to the fact that that is totally  unrelated to the other offences, the imprisonment will be three months, to be served cumulative on charge 40850.

The sentences in summary

1. In respect of prosecution number PE 62643/14 Mr McColl was sentenced to 20 months' imprisonment backdated to 8 September 2013.

2. In respect to burglary PE 40850/13 Mr McColl was sentenced to 9 months' imprisonment cumulative. 

3. No authority to drive suspended PE 9060/13 Mr McColl was sentenced to 3 months' imprisonment cumulative.

4. The magistrate declined to make a parole eligibility order.

Grounds of appeal

1. Mr McColl applies for leave to appeal on the following grounds:

   1.The learned Magistrate erred in imposing a sentence that was manifestly excessive in light of the circumstances of the offending, the personal circumstances of the Appellant and sentencing standards for offences of this type.

   2.The learned Magistrate erred by ordering the sentences of imprisonment to run cumulatively resulting in an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the Appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.

   3.The learned Magistrate intending to deny parole erred by not inviting counsel representing me to make submissions as to why an order for parole should be made.

The submissions on appeal

1. Mr McColl argued his case eloquently.

2. Mr McColl tendered a letter from his sister and one from his girlfriend.  I received them pursuant to the Criminal Appeals Act 2004 (WA) s 14(5) and have read each. They do not, however, alter my opinion.

3. Mr McColl's submissions acknowledged his past offending and stressed a significant the break from offending.  He drew attention to his brother's death shortly prior to the offending and asserted that the crimes were committed to raise $15,000 to pay for his brother's funeral.  In respect of the offence on Auto Cheap, he said that he had gotten out of gaol the day before and met a friend in Morley.  They walked to the back of the store and his friend in fact stole the mobile phone and keys.  He only pleaded guilty because he did not wish to divulge the name of his friend and his lawyer told him he would get a concurrent sentence. 

4. Although only a phone and keys might have been taken, Mr Fox for the respondent noted that the keys were immediately used (not by Mr McColl) to steal the motor vehicle to which they belonged.

5. Mr McColl submitted that the magistrate erred in thinking this crime was committed because of his drug dependency.  It was committed in order to raise money for his brother's funeral.  However that was not an explanation advanced to the magistrate and the psychological report indicates a long history of polysubstance abuse.  Moreover it makes no difference.

6. He tendered a schedule of cases which he said supported the position that his sentence was manifestly excessive. 

7. The same schedule was submitted to the Court of Appeal by the applicant in Whitby v The State of Western Australia CACR 22 of 2014.  Leave to appeal was refused:  Whitby v The State of Western Australia [2014] WASCA 99.

8. The cases to which Mr McColl referred are Kelly v The State of Western Australia [2011] WASCA 273; Papertalk v The State of Western Australia [2011] WASCA 229; Martino v The State of Western Australia [2006] WASCA 78; Rahman v The State of Western Australia [2012] WASCA 140 and Downey v The State of Western Australia [2012] WASCA 55.

9. They are not reliable guides to a range of sentences especially an appropriate range in the Magistrates Court.  Moreover, they do not generally support Mr McColl's contentions. 

Totality

1. Mr McColl's chief complaint, understandably, is in respect of the total sentence as accumulated which he contends breaches the totality principle.

2. The principles in respect of totality are set out in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].

3. In Whitby the court refused leave to appeal an effective sentence of 4 years and 6 months' imprisonment for two counts of aggravated burglary.  Buss JA said:

   The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

   The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence.  Ordinarily, a substantial penalty is imposed.  The standards of sentencing customarily imposed for these offences were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Butler v The State of Western Australia [2012] WASCA 249; Ridley v The State of Western Australia [2013] WASCA 45; Spry v The State of Western Australia [2013] WASCA 68; Conley v The State of Western Australia [2013] WASCA 95; Fullgrabe v The State of Western Australia [2013] WASCA 130; Pennetta v The State of Western Australia [2013] WASCA 234; Nolan v The State of Western Australia [2013] WASCA 235; Brady v The State of Western Australia [2013] WASCA 253; and the cases cited in those decisions.

   Burglaries and aggravated burglaries can be and are, of course, committed in a wide range of circumstances.  The sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of any victim), any aggravating factors and any mitigating factors [25] - [27].

Conclusion on length of sentence

1. There is no arguable case that the sentence was manifestly excessive.  The offending was prolonged, persistent and serious.

2. Applying the principles in Roffey and Whitby, an examination of the facts relating to each offence for which there was a cumulative sentence together with the total criminality involved in Mr McColl's offending spree shows that neither limb of the totality principle has been breached.

Non-parole eligibility

1. The sentencing remarks were confusing to a degree.  After passing sentence on the burglary PE 62643/14 the magistrate said:

   I will make an order that you not be eligible for parole.

2. At the conclusion of his remarks the magistrate said:

   So you have an effective sentence of 32 months backdated to that September day so you will serve 50% of that other than the backdate.

3. The magistrate's notation on the prosecution notice says:

   Imprisonment 20 months - head sentence backdated to 8/9/13.  Not eligible for parole.

4. The result is that Mr McColl is not eligible for parole.

5. Mr McColl complained that he was not accorded procedural fairness.  As he is unrepresented I have broadened this ground to consider whether in the circumstances, there was a miscarriage of justice in failing to make a parole eligibility order, whether or not there was procedural fairness.  Mr Fox did not object to this course.

6. The Sentencing Act 1995 (WA) s 89(4) provides:

   A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -

   (a)the offence is serious;

   (b)the offender has a significant criminal record;

   (c)the offender, when released from custody under a release order made previously, did not comply with the order;

   (d)any other reason the court considers relevant.

7. The operation of s 89 was explained in Piccolo v The State of Western Australia [2007] WASCA 149. As subjective facts Mr McColl satisfied three of the criteria in s 89. He committed a series of serious offences. He had a significant criminal record. When released from custody under a release order made previously, he did not comply with the order. There were five occasions when parole was cancelled, the last being in 2010.

8. In those circumstances the question of parole eligibility was a live issue.  The magistrate did not have to advise Mr McColl's counsel that he was considering making a non‑parole order.  Counsel are expected to cover all relevant circumstances and options in the plea in mitigation.  There is no procedural unfairness or requirement that a magistrate must advise counsel about every matter which might conceivably be considered, especially when the matter is obvious.  The magistrate listened quietly to all the submissions which counsel for Mr McColl wished to advance on his behalf and at the conclusion said, 'I don't want to rush this' and adjourned the matter for a time for deliberation before passing sentence.

9. The ground as pleaded fails.

10. Moreover, I do not consider there was any miscarriage of justice in refusing to make a parole eligibility order.  Mr McColl has reached middle age with little to show but a drug blighted life of crime.  He has not taken any advantage of parole in the past.  His personal circumstances, particularly these recent ones, are tragic but as against that he has constantly offended against the property of others and is a menace on the roads.

11. Leave to appeal is granted but the appeal is dismissed.

Charge No	Date of offence	Offence	Penalty
PE 21065/12	29.03.2012	Driving motor vehicle to escape pursuit	$1,500 fine, 12 month licence disqualification
PE 21064/12	29.03.2012	Fail to stop	$300 fine
PE 54566/12	24.11.2012	Driving under suspension	$500 fine
PE 3269/13	05.01.2013	Unlawful possession (yellow metal jewellery)	3 months' imprisonment concurrent
PE 3270/13	05.01.2013	Stealing motor vehicle	12 months' imprisonment concurrent, 6 month licence disqualification
PE 3268/14	06.01.2013	Possess prohibited drug (amphetamine)	$500 fine
PE 15698/13	06.01.2013	Unlawful possession ($1,000)	3 months' imprisonment, concurrent
PE 15699/13	14.01.2013	Unlawful possession (car keys and papers)	3 months' imprisonment concurrent
PE 10231/13	30.01.2013	Driving under suspension	3 months' imprisonment concurrent, 9 month licence disqualification
PE 10232/13	30.01.2013	Fail to stop	$400 fine
PE 10233/13	30.01.2013	Unregistered motor vehicle	$200 fine
PE 9060/13	16.02.2013	Driving under suspension	3 months' imprisonment cumulative, 9 month licence disqualification
PE 9061/13	16.02.2013	Fail to stop (escape pursuit)	$1,500 fine
PE 40850/13	14.07.2013	Burglary (Super Cheap Auto)	9 months' imprisonment cumulative
PE 40851/13	14.07.2013	Stealing (Super Cheap Auto)	$100 fine
PE 36502/13	01.08.13	Stealing (2 x registration plates)	$500
PE 40853/13	05.09.2013	Breach of bail	$500
PE 62643/14	15.01.2014	Burglary (home of Karen Barlow) and commit offence in place	20 months' imprisonment
PE 62644/14	15.01.2014	Stealing (Karen Barlow)	1 month' imprisonment concurrent
PE 62642/14	15.01.14	Stealing (handbag)	$500