Michael v The Queen
[2004] WASCA 4
•22 JANUARY 2004
MICHAEL -v- THE QUEEN [2004] WASCA 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 4 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:23/2003 | 1 DECEMBER 2003 | |
| Coram: | TEMPLEMAN J MCLURE J WALLWORK AJ | 22/01/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence reduced | ||
| B | |||
| PDF Version |
| Parties: | ROSE ANNE MICHAEL THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Whether sentence manifestly excessive Whether objectives of sentencing achieved |
Legislation: | Nil |
Case References: | Herbert v The Queen [2003] WASCA 61 Hodder v The Queen (1995) 15 WAR 264 House v The King (1936) 55 CLR 499 Magee v R (1980) WAR 117 Nguyen v The Queen (2001) 160 FLR 284 R v Stewart (1994) 72 A Crim R 17 S v The Queen [2003] WASCA 30 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MICHAEL -v- THE QUEEN [2004] WASCA 4 CORAM : TEMPLEMAN J
- MCLURE J
WALLWORK AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Whether sentence manifestly excessive - Whether objectives of sentencing achieved
Legislation:
Nil
Result:
Appeal allowed
Sentence reduced
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr C L J Miocevich
Respondent : Mr D Dempster
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Herbert v The Queen [2003] WASCA 61
Hodder v The Queen (1995) 15 WAR 264
House v The King (1936) 55 CLR 499
Magee v The Queen (1980) WAR 117
Nguyen v The Queen (2001) 160 FLR 284
R v Stewart (1994) 72 A Crim R 17
S v The Queen [2003] WASCA 30
Case(s) also cited:
Nil
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1 TEMPLEMAN J: In the District Court at Perth on 20 January 2003, Rose Anne Michael, the applicant, was convicted on her own plea of nine counts of aggravated burglary, seven counts of burglary and one count of stealing a motor vehicle.
2 The applicant was sentenced on 18 February 2003 to terms of imprisonment amounting to 8 years and 2 months. The sentence was backdated to 20 January 2003 and the applicant was made eligible for parole.
3 The applicant seeks leave to appeal against that sentence on the ground that the learned sentencing Judge:
"Imposed the (sic a) sentence that was manifestly excessive in all the circumstances, taking into account the nature of the offence, the circumstances of the commission of the offence, a pre-sentence report provided, the crushing nature of the sentence imposed, and all other antecedents personal to the applicant."
4 The 17 offences to which the applicant pleaded guilty were committed between 27 June and 8 October 2002. The nine offences of aggravated burglary were committed by the applicant and a co-offender, who broke into private dwelling houses and a school in the Rockingham area. Typically, the offenders gained entry by breaking windows or forcing doors and then stole electrical or electronic household equipment such as computers, televisions and video recorders. Cameras, jewellery and cash were also taken.
5 The seven counts of burglary, in which the applicant was the sole offender, involved the same modus operandi.
6 The charge of stealing a motor vehicle involved the use by the applicant and a co-offender of a stolen motor vehicle for the purpose of carrying out some of the burglaries.
7 Property to the value of some $80,000 was stolen and very little of that was recovered.
8 On 20 January 2003, the applicant pleaded guilty to all of these offences before the learned sentencing Judge. Counsel for the Crown then outlined the facts relating to each offence. The applicant's counsel then made a plea in mitigation. However, as a pre-sentence report was not available, the matter was adjourned for sentencing on 18 February 2003.
(Page 4)
The applicant's personal circumstances
9 As appears from the plea in mitigation made on behalf of the applicant, and the pre-sentence report which was available subsequently to the learned sentencing Judge, the applicant was 30 years of age when sentenced.
10 The applicant's mother had died as a result of a hit and run traffic accident when the applicant was two years old. The applicant was thereafter made a Ward of the State. The applicant said her father visited her at the foster home on occasions but he would be drunk and this would cause problems.
11 The applicant reported that she had been the victim of repeated sexual assaults by her two foster brothers from the age of 9 to 13 years. The applicant said she felt helpless to do anything to stop the attacks. Her eventual response to them was to run away from the foster home and live on the streets. This she did, at the age of 13 years.
12 The sexual abuse impacted on the applicant's performance at school. The records showed that she had been performing well at school and in her foster placement until about the age of 10 years. Until then, she displayed promise as a student who was gifted musically and mathematically. But she quite suddenly became lethargic and disinterested and developed behavioural problems.
13 Because the applicant lived on the streets from the age of 13 years, her education suffered. She had no education after year 8 – in about 1985 – until 2000. The applicant then enrolled in and completed a Senior First Aid Certificate course and a Women into Technology course in Rockingham.
14 From the age of 14 to 21 years, the applicant lived in a de facto relationship with a man who behaved violently towards her. She had five children to her partner. One of the children was still born.
15 The applicant then moved to Adelaide, where she had some distant relations, in an attempt to remove herself from the violent situation. Unfortunately, the applicant fell into another relationship in Adelaide which was also characterised by its violence.
16 After some four years, the applicant returned to Western Australia where she entered into a third de facto relationship in which she suffered a
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- greater degree of violence and abuse. The man in question was a drug and alcohol abuser.
17 The applicant had two children to that man. The second child of the relationship died of Sudden Infant Death Syndrome in 2001. This was a source of tremendous grief to the applicant. So was the death of the applicant's first partner, who died four months later from a drug overdose.
18 The applicant eventually terminated her relationship with her third partner. She later met and entered into a relationship with another man. He was the co-offender with whom the applicant committed 10 of the 17 offences to which she pleaded guilty.
19 When living on the streets, the applicant developed a taste for amphetamines which she used only recreationally. However, the applicant's use of amphetamines escalated substantially after the death of her child as a result of Sudden Infant Death Syndrome, in 2001. The applicant's partner at that time was himself a drug and alcohol abuser.
20 In a plea in mitigation, the applicant's counsel told the learned sentencing Judge:
"The position is simply that these offences are committed fundamentally out of the drive to support the habit and the habit itself is an attempt to self medicate, if you will, against the very great depression and the very great distress that (the applicant) is still feeling from these … terrible antecedents in her past."
21 One of the most distressing results for the applicant of her drug addiction was that her children, aged 14, 9, 8 and 4 years were removed from her and made wards of the State. It seems that the children have been placed in separate foster homes and that some of the foster families are under investigation for alleged abuse of the children. The applicant is concerned that the traumatic events of her life might be repeated in the lives of her children.
22 The applicant has a criminal history which relates to her life on the streets. She has several convictions in the Childrens Court for such offences as street drinking, breaking and entering and stealing.
23 As an adult, the applicant's criminal history was less serious over the period 1990 to 2001. The applicant committed a number of relatively minor offences for which she received modest fines. In 2001 and 2002, the offences became more serious. They included burglary and fraud
(Page 6)
- which resulted in the imposition of community based orders and a term of 8 months' imprisonment in 2002. This reflects the applicant's return to a lifestyle of crime-supported drug use of her earlier years.
The sentences imposed on the applicant
24 The learned sentencing Judge noted that the applicant had been convicted on her own confession of 10 counts of aggravated burglary, 6 counts of burglary of dwelling houses and 1 count of stealing a motor vehicle. (This was an error: there were 9 counts of aggravated burglary and 7 of burglary of dwelling houses. However, nothing turns on the error for present purposes). His Honour said that these were all very serious offences. The maximum penalty for aggravated burglary was 20 years imprisonment, for burglary of dwelling houses, 18 years imprisonment and for stealing a motor vehicle, 7 years imprisonment.
25 His Honour went on to say that during the period of 27 June to 8 October 2002 when the offences were committed the applicant "engaged in what could only be described as a spree of burglary and stealing". His Honour observed that the offences involving dwelling houses were serious because of the invasion of privacy, which has a significant effect on the victims. The burglary of primary schools was serious, his Honour said, because of the effect it had on the children by way of the example it set to them as well as the potential disruption to their teaching.
26 His Honour continued:
"I have read the pre-sentence report and I accept that you come from a dysfunctional family and relationship background. I appreciate the problems so far as your children are concerned. I note however that the offending was whilst you were subject of (sic) a community based order imposed on a previous occasion."
27 His Honour then noted that the offences were committed to obtain money for drugs. This explained but did not excuse the offending.
28 His Honour went on to impose a series of sentences which were partly cumulative and partly concurrent. In relation to the more serious burglaries, his Honour said he would normally have imposed a sentence of 5 years imprisonment but would reduce that to 3 years imprisonment to take account of the applicant's fast track plea of guilty and her co-operation with the authorities. For similar reasons, his Honour reduced
(Page 7)
- the four years imprisonment he would have imposed in respect of the other aggravated burglaries from 4 years to 2½ years imprisonment.
29 His Honour imposed sentences of 2 years imprisonment for the "ordinary burglaries" as he described them, except in relation to one such offence where only $100 was stolen and in respect of which the penalty was 12 months imprisonment. His Honour sentenced the applicant to 6 months imprisonment for the count relating to the theft of the motor vehicle. His Honour appears to have accepted that the applicant had only been a passenger in the vehicle at the material time.
30 By imposing a series of cumulative and concurrent sentences, his Honour arrived at a total of 8 years and 2 months imprisonment. This sentence was 4 months less than it would have been, to take account of the time the applicant had spent in custody. Although the applicant had been in custody for four months before 20 January 2003, by reason of s 87 of the Sentencing Act 1995, the sentence could not be backdated.
31 The applicant was made eligible for parole, that being the recommendation made by the author of the pre-sentence report. The Judge's preliminary view had been that the applicant should not be made eligible for parole.
The application for leave to appeal
32 As I have noted, the single ground of appeal is that the sentence of 8 years and 2 months imprisonment was manifestly excessive in all the circumstances.
33 It is accepted by the applicant that the number and seriousness of the offences she committed called for the imposition of an immediate term of imprisonment. Further, the applicant concedes that each of the individual sentences is justified. The applicant does not seek to identify any error in the exercise of the sentencing discretion, other than that reflected by what is said to be the crushing effect of the sentence.
34 In House v The King (1936) 55 CLR 499 at p 505, the majority of the High Court said:
"It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a
(Page 8)
- case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
35 Although counsel for the applicant did not rely on House v The King, it is the principle set out in the above passage which forms the basis of the present application.
36 It is submitted on behalf of the applicant that the sentence was crushing taking into account:
1. the applicant's fast track plea of guilty;
2. circumstances personal to the applicant as outlined in the written pre-sentence report including but not limited to:
(a) the applicant's tragic life
(b) the loss of the applicant's child and the child's father in 2001, which has led to a serious increase in drug use and offending behaviour.
37 Counsel for the applicant relies on the explanation of the totality principle given by Anderson J (with whom Malcolm CJ and Miller J agreed) in Herbert v The Queen [2003] WASCA 61 at par 144:
" … the reason why a person does not get 16 years for two crimes each worth 8 years is that by the time that person has served the first sentence all of the recognised sentencing objectives (protection of the public, deterrence, punishment, retribution, reformation, public denunciation and so on) will have been achieved for the most part, leaving no purpose in requiring the person to serve another full 8 years for the second crime."
38 Against that, it is pointed out by the Crown that the sentence of 8 years and 2 months imposed on the applicant represents a very substantial reduction from the 36 years imprisonment which would have resulted from the sentences being imposed cumulatively on each other. Counsel for the Crown submitted that considerations of totality involve value judgments and that the sentence of 8 years and 2 months imprisonment could not be said to be disproportionate to the degree of criminality involved in these offences.
39 In my view, the totality principle cannot be applied simply by discounting the sentences which would have been appropriate had they
(Page 9)
- been imposed in respect of individual offences. In Herbert (supra) Anderson J quoted from the judgement of Wickham J in Magee v The Queen (1980) WAR 117 at 119 where his Honour, citing one of his earlier judgments said:
"Indeed the problem does not involve questions of leniency or severity, or any other abstract notion, but a hard headed attempt to work out a sentence which in all its aspects is most likely 'in the long run' to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending."
41 However, the applicant is a person who has not had the support necessary to enable her to cope with the numerous traumatic events which have occurred in her life. And the deprivation of the applicant's liberty is a particularly severe punishment for her because of the loss of her children and the justifiable concern which she feels for their safety.
42 I regard a term of imprisonment of 8 years and 2 months as far in excess of that necessary to enable the applicant to reform by taking advantage of the opportunities available to her in the prison system to become drug free and to obtain the kind of support (through substance abuse programmes and grief counselling for example) which would fit her to be a law abiding member of the community.
43 I therefore conclude that the sentencing discretion miscarried in a way which is not discoverable, but which has resulted in a substantial wrong to the applicant. The sentence was manifestly excessive and should now be set aside. I would therefore grant leave to appeal, allow the appeal and exercise the sentencing discretion anew. In so doing, it would be necessary to have regard to the amendments to the sentencing regime brought about by the Sentencing Legislation Amendment and Repeal Act 2003, and to the applicant's conduct since her imprisonment in January 2003.
(Page 10)
Re-sentencing the applicant
44 In re-sentencing the applicant, it would be necessary to have regard to the offences and the circumstances in which they were committed, and to the applicant's personal circumstances.
45 In addition to the matters referred to above, the Court has been provided with a letter from Holyoake, the Australian Institute for Alcohol and Drug Addiction Resolutions. The letter informs the Court that the applicant has been engaged with Holyoake's Prison to Parole Programme since 14 April 2003. The programme addresses issues related to substance abuse and consists of individual counselling sessions. Thus far the sessions have taken place in prison. They will continue while the applicant is subject to parole supervision. The aim is to raise the applicant's awareness of problems associated with substance abuse, particularly those related to offending behaviour, domestic violence and relationship breakdown.
46 The programme aims to provide an instructive and supportive environment to assist the applicant to take personal responsibility for a positive change in her life. The Court is informed that the applicant has participated in eight sessions from April to November 2003 and that during those sessions the applicant:
"has engaged enthusiastically in the work, demonstrating a high level of self-awareness, honesty, and willingness to address the personal issues that have been factors in her past substance abuse. She has also demonstrated an ability to develop and implement alternative coping strategies, and a personal relapse prevention plan.
(The applicant) recognises the link between her crimes and her past amphetamine use, and has indicated that she does not want a return to using in the future. She reports that she is highly motivated to remain drug-free in the future so that she can care for her children when they are returned to her custody, and so that she can pursue long-term plans to study. She has indicated that she intends to participate in residential rehabilitation at Millia-Murra in Broome after her release, for ongoing support in her efforts to remain drug free."
47 A reference from the Assistant Superintendent of Bandyup Women's Prison has also been provided to the Court. The reference speaks of the applicant's conduct in prison as being "of a high standard". The applicant
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- has been employed in prison industries throughout her incarceration and has also participated in a number of self-development programmes provided by the Prison Education Centre. The reference continues:
"In addition she is participating in an intensive substance use treatment programme, with a view to addressing her prior substance use and its relationship to her offending behaviour. She has also engaged with Holyoake who is a private provider of therapeutic services, with a view (to) planning for her release back into the community."
"My children have not got anyone else to take care of them. I have recognised my problem of drug habit and I've done everything I can in prison to ensure I don't go back to that path of destruction. I am also willing to go into a rehabilitation place if my appeal comes through.
My Holyoake counselling will continue and the Department of Community Development has said I will be on a reunification programme like a safety network to ensure my drug use is not an issue anymore.
My plans for the future are to rebuild my relationship with my children and go back to TAFE.
I have now considered more positives to look forward to in the future for myself and my children and given this opportunity I know I can be a law abiding citizen in society."
49 In my view the unfortunate circumstances of the applicant's children is a matter to be taken into account. In R v Stewart (1994) 72 A Crim R 17, Franklyn J said (at p 21):
"Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends upon the gravity of the offence and the circumstances of the case."
(Page 12)
50 Similarly, in Hodder v The Queen (1995) 15 WAR 264 Murray J said, at p 287:
"Where serious offences are committed, it is inevitable that more severe punishment will be involved and that will be expected in almost every case to cause hardship to innocent persons associated with the offender and the commission of the offence, as victims or otherwise. It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court's sentencing disposition. The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."
51 I do not overlook the fact that in the pre-sentence report, the reasons given for the applicant's children to being taken into care by the State were "neglect, substance abuse by the de facto and family violence". However, in terms of achieving the best outcome from the community's standpoint, I think it desirable that the applicant should be permitted to resume the responsibility for the care of her children once she is in a fit state and capable of properly discharging her maternal obligations. If that is not the outcome, and the applicant's children are fostered separately in circumstances where they may be victims of abuse, then, as the applicant fears, her problems may be repeated in the next generation. I note that the Department of Community Development has indicated a willingness to recommend the return of the applicant's children to her, "in the event she attend rehabilitation and show a commitment to succeed".
52 In my view, taking all the relevant circumstances into account, an appropriate sentence would have been one-half of that imposed by the learned sentencing Judge. I say "would have been", having regard to the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003, which require the Court now to impose a sentence which is two-thirds of that which would have been imposed before the Act came into force.
53 I would therefore reduce by one-half, each of the sentences imposed by the learned sentencing Judge and then take two-thirds of those
(Page 13)
- sentences for the purposes of the present sentencing exercise. This would result in a total period of imprisonment of 32 months and 20 days. The applicant would be eligible for parole after having served 16 months and 10 days: that is, shortly after 20 May 2004. It would, of course, be necessary for the applicant to demonstrate to the Parole Board, that she has persisted in her attempts to rehabilitate herself, and that she has succeeded in so doing.
54 MCLURE J: I have had the advantage of reading, in draft, the reasons to be published by Templeman J. I agree with those reasons and the proposed orders and have nothing to add.
55 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of Templeman J except that, with respect to those who think differently, I do not agree with the proposition in some of the decided cases that generally, hardship caused to an offender's children is not a circumstance to be taken into account.
56 Section 16A(2)(p) of the Commonwealth Crimes Act provides that in determining the sentence to be passed in respect of any person for a Federal offence, the Court must take into account the probable effect that any sentence would have on any of the offender's "family or dependants".
57 In my view, that subsection of the Act puts into statutory form the modern thinking on punishment and it should be applied with respect to sentencing for State offences. The section makes no mention of "exceptional" circumstances.
58 The questions of whether a person deserves to be imprisoned for a serious offence and the effects of a possible sentence of imprisonment on the offender's family or dependants, for example young children, involve quite different considerations – S v The Queen [2003] WASCA 30 at [38] – [39] and Nguyen v The Queen (2001) 160 FLR 284 at [70] 0 [71]. Those considerations were not referred to in some of the earlier decisions.
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