Mills v The Police
[2006] WASC 115
MILLS -v- THE POLICE [2006] WASC 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 115 | |
| Case No: | SJA:1030/2006 | 26 MAY 2006 | |
| Coram: | MCKECHNIE J | 21/06/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DENNIS JOHN MILLS THE POLICE |
Catchwords: | Criminal law and procedure Leave to appeal Reasonable prospects of success Discretion to refuse parole Whether requirement to advise counsel |
Legislation: | Sentencing Act 1995 (WA), s 89 |
Case References: | Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997 Austin v Grapes & Anor [2004] WASCA 102 Samuels v Western Australia (2005) 30 WAR 473 Sheppard v Blakey [2001] WASCA 309 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
THE POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE W G TARR
File No : MI 2580 of 2005, MI 4999 of 2005, MI 5000 of 2005, MI 5002 of 2005, AR 6610 of 2005, PE 8316 of 2006, PE 8318 of 2006
Catchwords:
Criminal law and procedure - Leave to appeal - Reasonable prospects of success - Discretion to refuse parole - Whether requirement to advise counsel
(Page 2)
Legislation:
Sentencing Act 1995 (WA), s 89
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr J R Tydde
Respondent : No appearance
Solicitors:
Applicant : Tydde & Co
Respondent : No appearance
Case(s) referred to in judgment(s):
Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Austin v Grapes & Anor [2004] WASCA 102
Samuels v Western Australia (2005) 30 WAR 473
Sheppard v Blakey [2001] WASCA 309
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: On 21 March 2006 various suspended sentences were called in and the applicant was sentenced to a total of 17 months' imprisonment with no eligibility for parole for a series of offences as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- and breach of a community based order.
2 Although the grounds of appeal challenge the length of the sentence, the real complaint, as developed by counsel in written and oral submissions, is ground 2 that the learned Magistrate erred in law in failing to order eligibility for parole. A particular of that is ground 3 in that the Magistrate erred in law in not first warning counsel that he was not minded to order eligibility for parole and in not inviting submissions on the issue.
3 The total sentence is well within the range of discretion.
4 The applicant was represented by duty counsel. After the facts for the prosecution were read, an oral pre-sentence report was given. The Community Corrections Officer concluded that "… it's difficult to sustain an argument that he should be given a further opportunity of community supervision at this point in time". The question of parole was not specifically addressed by the officer.
5 In his concluding remarks counsel said:
"If you're minded to consider an immediate term of imprisonment, not suspended, then clearly discounts are appropriate for the early plea of guilty. It's appropriate, as I see
(Page 4)
- it, that parole be granted if you're considering an overall term of more than 12 months, and the usual discounts in relation to the Sentencing Act should apply as well and I would ask you to make the sentence not too crushing."
6 Immediately following those submissions the Magistrate commenced his sentencing remarks by saying:
"Well, the accused has a lengthy record, there's hardly a year that's gone past where he has not committed some sort of offence. He's been on parole and on Community Based orders in the past. It would have been obvious to him and others that he has an alcohol problem and that he's had plenty of opportunity to do something about that."
7 The reference to the applicant's record is accurate. His adult record commenced in 1990 and has continued with a variety of offences. It is clear that a major contributor is the applicant's alcoholism.
8 After imposing sentences the Magistrate said:
"… And because of the provisions of section 89 of the Sentencing Act, where the offence is serious, you have a significant criminal record, and when released from custody before and on previous Community Based orders, you've not complied with the order as required, I'm not going to make you eligible for parole."
9 The applicant intervened: "Sir, I've always completed my parole when I've been released" and the Magistrate responded: "All right, well for the reasons I have given, I'm not going to grant you parole. You haven't complied with Community Based orders before and so you will serve 17 months' imprisonment in total".
10 Leave to appeal must not be given unless the Court is satisfied the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 9. These words were explained in Samuels v Western Australia (2005) 30 WAR 473.
11 In support of the application for leave, counsel referred to Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997.
12 That authority does not support the proposition that it was an error for the Magistrate to fail to invite submissions on the subject. Scott J said:
(Page 5)
- "In the end result therefore I have come to the conclusion that although the learned Magistrate did not fall into error in the exercise of his sentencing discretion, except possibly to the extent that he should have invited submissions from counsel for the applicant on the issue of parole, I am prepared to grant the application …"
13 In Sheppard v Blakey [2001] WASCA 309 McLure J said at [30]:
"The Magistrate was not in error in failing to invite counsel for the appellant to make submissions on why an order for parole should have been made. Counsel for the appellant was aware that parole was in issue. He specifically addressed both sentence and parole when he asked the Court to take into account the effect on the appellant's family and the appellant's awareness that alcohol was destroying his life."
14 In Austin v Grapes & Anor [2004] WASCA 102, Simmonds J concluded that the Magistrate erred in not inviting submissions as to parole in the particular circumstances of the case which included a recommendation for parole in the pre-sentence report and the fact that counsel had indicated to the Judge that had he known that eligibility for parole was in any doubt, should a custodial sentence be imposed, he might well have made further submissions.
15 In the present case, I was advised by counsel for the applicant, who was not counsel in the trial court, that duty counsel did not appreciate parole was a live issue and took it for granted that eligibility would be granted. Had he appreciated that parole eligibility was a live issue he would have sought a brief adjournment to seek instructions to address that issue or, if he felt that he had enough information, addressed it in more detail then and there. Duty counsel is prepared to swear an affidavit to this effect but for the present purposes I accept what counsel says.
16 The applicant submits that the Magistrate knew that he intended to refuse to grant eligibility for parole and therefore had the opportunity and should have invited defence counsel, or the probation officer, to make further submissions.
17 The essence of the applicant's submissions is that he did not receive natural justice because the Magistrate did not advise the him that he was going to refuse parole.
(Page 6)
18 I do not consider the proposition to be reasonably arguable. The applicant came before the Court for a breach of a suspended sentence among other things. In view of the provisions of the Sentencing Act 1995 (WA) s 80(3) it would have been apparent to all concerned that imprisonment was highly likely and, indeed, the pre-sentence report virtually rejected all other dispositions. Counsel made a specific submission that there should not be a term of immediate imprisonment acknowledging the report was not particularly favourable to a community based order. As I have quoted, counsel then made brief submissions about parole.
19 Parole was obviously a live issue bearing in mind the criteria in the Sentencing Act s 89. When imprisonment is a substantial possibility it follows that eligibility for parole is also an issue. There is no obligation on a Magistrate to invite submissions on every possible sentencing disposition. It is for counsel to make what submissions are appropriate.
20 The factors enumerated by the Magistrate as reasons for the exercise of his discretion to decline to order parole are those set out in s 89(4) of the Sentencing Act. It was open for the Magistrate to conclude that he would exercise his discretion not to order parole.
21 There is no reasonable prospect of the appeal succeeding and therefore the application for leave to appeal is refused.
0
4
0