PENNY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 173

Reported Decision:	(2006) 33 WAR 48
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 173
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:221/2005	Heard:	18 MAY 2006
Coram:	ROBERTS-SMITH JA MCLURE JA BUSS JA	Delivered:	31/08/06
No of pages:	52	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant re-sentenced
Category:	A
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Parties:	ANDREW KEITH PENNY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Stealing motor vehicle Reckless driving Unlawful killing Offences committed on parole Serious record of prior offending Whether sentencing Judge erred in deciding not to make a parole eligibility order and, if so, whether the Court should also set aside the fixed terms of imprisonment imposed on the appellant, and resentence him The principle in McGarry v The Queen (2001) 207 CLR 121 Proper exercise of Court's discretion under s 89(4) of the Sentencing Act 1995(WA) not to make a parole eligibility order Criminal law Sentencing The effect of the suspension or cancellation of an early release order Sentencing Judge failed to order that sentences imposed be served cumulatively on existing sentence Section 88(3) of the Sentencing Act 1995 (WA) Order of service of fixed terms Section 7 of the Sentence Administration Act 2003 (WA) Relevance of outstanding parole days "owed" by the appellant Appellant not to be punished twice for the commission of an element common to two offences Totality principle
Legislation:	Criminal Appeals Act 2004 (WA), s 23(1), s 28(3), s 31, s 40(1)(k), s 41 Criminal Code (WA), s 280, s 287, s 371A, s 378, s 378(2)(a), s 688(1a) (repealed), s 689(3) (repealed) Criminal Procedure Rules 2005 (WA), r 49(1) Road Traffic Act 1974 (WA), s 60 Sentence Administration Act 2003 (WA), s 7, s 67, s 68, s 69 Sentencing Act 1995 (WA), s 7(2), s 88, s 89 Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Case References:	Benter v The State of Western Australia [2005] WASCA 245 Callaghan v The Queen (1952) 87 CLR 115 Chan (1989) 38 A Crim R 337 Clinch v The Queen [1999] WASCA 57 D'Amico v The Queen (2000) 33 MVR 148 Dinsdale v The Queen (2000) 202 CLR 321 Fullgrabe v The State of Western Australia [2006] WASCA 138 Hayden v The Queen [2003] WASCA 210 House v The King (1936) 55 CLR 499 Hubbard v Fisher [2001] WASCA 182 Lowndes v The Queen (1999) 195 CLR 665 Maroney v The State of Western Australia [2006] WASCA 130 McGarry v State of Western Australia (2005) 31 WAR 69 McGarry v The Queen (2001) 207 CLR 121 McKenna v The Queen (1992) 7 WAR 455 McLean v The Queen [1999] WASCA 209 Messiha v Royce [2004] WASCA 290 Otley v The Queen [2005] WASCA 5 Pearce v The Queen (1998) 194 CLR 610 Pickett v The State of Western Australia [2004] WASCA 291 Punch v The Queen (1993) 9 WAR 486 R v S (No 2) (A Child) (1992) 7 WAR 434 R v Stebbings (1990) 4 WAR 538 Readhead v The State of Western Australia [2005] WASCA 191 Shaw (1989) 39 A Crim R 343 Strong v The Queen (2005) 79 ALJR 1171 Swain (1989) 41 A Crim R 214 Veen v The Queen (No 2) (1987) 164 CLR 465 White v The Queen (2003) 39 MVR 157 Wicks v The Queen (1989) 3 WAR 372 "C" v Hampson [2005] WASC 227 Grakalic v The Queen (2002) 27 WAR 19 Herbert v The Queen (2003) 27 WAR 330 Kay v The Queen (2004) 147 A Crim R 401 Magee v The Queen [1980] WAR 117 Postiglione v The Queen (1997) 189 CLR 295 Yanko v The Queen [2004] WASCA 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PENNY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 173 CORAM : ROBERTS-SMITH JA

MCLURE JA

BUSS JA

HEARD : 18 MAY 2006 DELIVERED : 31 AUGUST 2006 FILE NO/S : CACR 221 of 2005 BETWEEN : ANDREW KEITH PENNY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

File No : IND 1314 of 2005

Catchwords:

Criminal law - Appeal against sentence - Stealing motor vehicle - Reckless driving - Unlawful killing - Offences committed on parole - Serious record of prior offending - Whether sentencing Judge erred in deciding not to make a parole eligibility order and, if so, whether the Court should also set aside the

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fixed terms of imprisonment imposed on the appellant, and resentence him - The principle in McGarry v The Queen (2001) 207 CLR 121 - Proper exercise of Court's discretion under s 89(4) of the Sentencing Act 1995(WA) not to make a parole eligibility order

Criminal law - Sentencing - The effect of the suspension or cancellation of an early release order - Sentencing Judge failed to order that sentences imposed be served cumulatively on existing sentence - Section 88(3) of the Sentencing Act 1995 (WA) - Order of service of fixed terms - Section 7 of the Sentence Administration Act 2003 (WA) - Relevance of outstanding parole days "owed" by the appellant - Appellant not to be punished twice for the commission of an element common to two offences - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 23(1), s 28(3), s 31, s 40(1)(k), s 41

Criminal Code (WA), s 280, s 287, s 371A, s 378, s 378(2)(a), s 688(1a) (repealed), s 689(3) (repealed)
Criminal Procedure Rules 2005 (WA), r 49(1)
Road Traffic Act 1974 (WA), s 60
Sentence Administration Act 2003 (WA), s 7, s 67, s 68, s 69
Sentencing Act 1995 (WA), s 7(2), s 88, s 89
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Appellant re-sentenced

Category: A

Representation:

Counsel:

Appellant : Mr M Aulfrey

Respondent : Mr J Randazzo

Solicitors:

Appellant : Ian Hope

Respondent : State Director of Public Prosecutions

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

Benter v The State of Western Australia [2005] WASCA 245
Callaghan v The Queen (1952) 87 CLR 115
Chan (1989) 38 A Crim R 337
Clinch v The Queen [1999] WASCA 57
D'Amico v The Queen (2000) 33 MVR 148
Dinsdale v The Queen (2000) 202 CLR 321
Fullgrabe v The State of Western Australia [2006] WASCA 138
Hayden v The Queen [2003] WASCA 210
House v The King (1936) 55 CLR 499
Hubbard v Fisher [2001] WASCA 182
Lowndes v The Queen (1999) 195 CLR 665
Maroney v The State of Western Australia [2006] WASCA 130
McGarry v The Queen (2001) 207 CLR 121
McGarry v Western Australia (2005) 31 WAR 69
McKenna v The Queen (1992) 7 WAR 455
McLean v The Queen [1999] WASCA 209
Messiha v Royce [2004] WASCA 290
Otley v The Queen [2005] WASCA 5
Pearce v The Queen (1998) 194 CLR 610
Pickett v The State of Western Australia [2004] WASCA 291
Punch v The Queen (1993) 9 WAR 486
R v S (No 2) (A Child) (1992) 7 WAR 434
R v Stebbings (1990) 4 WAR 538
Readhead v The State of Western Australia [2005] WASCA 191
Shaw (1989) 39 A Crim R 343
Strong v The Queen (2005) 79 ALJR 1171
Swain (1989) 41 A Crim R 214
Veen v The Queen (No 2) (1987) 164 CLR 465
White v The Queen (2003) 39 MVR 157
Wicks v The Queen (1989) 3 WAR 372

Case(s) also cited:

"C" v Hampson [2005] WASC 227
Grakalic v The Queen (2002) 27 WAR 19
Herbert v The Queen (2003) 27 WAR 330

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Kay v The Queen (2004) 147 A Crim R 401
Magee v The Queen [1980] WAR 117
Postiglione v The Queen (1997) 189 CLR 295
Yanko v The Queen [2004] WASCA 37

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1 ROBERTS-SMITH JA: I agree with the reasons for judgment of Buss JA.

2 McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. The relevant background is detailed there and not repeated unless required for an understanding of these reasons.

3 The appellant was convicted of one count of unlawful killing contrary to s 280 of the Criminal Code (WA) and one count of stealing a motor vehicle contrary to s 371A of the Criminal Code and driving it recklessly (being a circumstance of aggravation which increases the maximum penalty: s 378(2)). On 4 November 2005 Healy DCJ sentenced the appellant to terms of imprisonment of 8 years and 3 years respectively. The sentences were ordered to be served concurrently. Accordingly, the appellant was sentenced to a total effective term of 8 years. Eligibility for parole was refused.

4 At the time the appellant committed these offences he had recently been released on parole in relation to a prior offence of stealing a motor vehicle and driving it recklessly for which he received a sentence of 4 years' imprisonment. That also involved a police chase. As a result of the commission of and sentences imposed for the current offences, the appellant's parole was automatically cancelled under s 67 of the Sentence Administration Act 2003 (WA) ("2003 Administration Act"). The effect of cancellation is that the offender is required to resume serving the fixed term in custody and is not entitled to be released until he has served the whole of that term, although another early release order may be made at any time: s 69(1) and (5) of the 2003 Administration Act. The appellant "owed" 960 parole days.

5 There are two grounds of appeal. The appellant contends the sentencing Judge erred (1) in failing to order eligibility for parole and (2) in imposing a sentence that was manifestly excessive having regard to the number of parole days owing and the "proper range of sentences commonly imposed in respect of the offences sentenced upon".

Parole

6 I agree with Buss JA, generally for the reasons he gives, that the sentencing Judge erred in his approach to the question of parole and that, on reconsideration, the result should be the same, namely parole refused.

7 As noted by Buss JA, both parties contended that the error by the sentencing Judge in his approach to parole did not affect the balance of

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the sentence, being the individual terms of imprisonment and the total effective term. That is, the error did not enliven this Court's jurisdiction and obligation to consider afresh the appropriate penalty. In this case there was no challenge to the type of penalty imposed but rather to the length of the terms. The parties' contentions were by way of assertion rather than principled arguments supported by authority. In those circumstances, I will proceed on the assumption that the parties are correct and reserve my position on the question. However, as it has been considered and determined by Buss JA, I wish to note two matters. First, I would wish to consider whether the question of parole is sufficiently connected to the terms of imprisonment so that, as a matter of principle they must also be set aside. In particular, I have in mind the accepted principle that it is not permissible to reduce or increase a term of imprisonment by reference to whether or not a person is to be made eligible for parole:

Swain

(1989) 41 A Crim R 214 at 216, 217 and 220;

Shaw

(1989) 39 A Crim R 343;

Hubbard v Fisher

[2001] WASCA 182. Secondly, I am not currently persuaded that a decision about parole is not part of the sentence for the purposes of s 23(1)(b) and s 31(1)(a) of the

Criminal Appeals Act 2004

(WA).

The relevance of parole days

8 I agree with Buss JA that, by virtue of s 88(1) of the Sentencing Act 1995 (WA), the sentencing Judge's failure to order that the sentences of 8 and 3 years imposed by him were to be served cumulatively with the outstanding parole days meant the outstanding parole days were to be served concurrently with the sentences of 8 and 3 years. Section 88(1) provides:

"An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3)."

9 Under subs (3) of s 88 the sentencing court may order that the fixed term be served cumulatively or partly concurrently with the other fixed term. Section 88 is unaffected by s 7 of the 2003 Administration Act. That section materially provides:

7. Order of service of fixed terms

(1) In this section —

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fixed term

' includes a period of imprisonment ordered under section 58, 59 or 119A of the

Sentencing Act 1995

;

non-parole period'

, in relation to a parole term, means the period that under section 93(1) of the

Sentencing Act 1995

the prisoner has to serve before he or she is eligible to be released on parole.

(2) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order —

(a) firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;

(b) secondly, subject to section 94 of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;

(c) thirdly, subject to section 94 of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served —

(i) cumulatively if the terms are cumulative;

(ii) concurrently if the terms are concurrent or partly concurrent.

(3) …

(4) If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly

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concurrently with another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (1)."

10 Section 7 of the 2003 Administration Act is in materially the same terms as s 8 of its predecessor, the Sentence Administration Act 1995 (WA). The scope and purpose of s 88 and s 8 (now s 7) was explained by McKechnie J (with whom Anderson and Steytler JJ agreed) in Hayden v The Queen [2003] WASCA 210. After setting out the relevant provisions of the Sentencing Act (ss 88 and 95) and the Sentence Administration Act 1995 (ss 7 and 8, which correspond with ss 6 and 7 of the 2003 Administration Act), McKechnie J said (at [31] - [34]) as follows:

"I return to s 8 of the

Sentence Administration Act

[1995]. The apparent difficulty in construing the section arises by the use of the expression 'order of service of sentences'. Properly understood, this is a different concept from a court order that sentences be served cumulatively or partly cumulatively or, by order or operation of the

Sentencing Act

, concurrently. So much is reflected in the terms of s 8 which provide for an order of service according to whether terms are concurrent or cumulative and reflects the general discretion in respect of fixed terms given to a Judge under the

Sentencing Act

s 88.

Section 8 of the Sentence Administration Act [1995]is an administrative provision not intended to interfere with the judicial discretion to order cumulative sentences. The fact that sentences are served in a particular order does not in truth refer to their concurrency or cumulation at all. It is merely to determine the order of service for the purposes of release. I shall use an example. Suppose a person was sentenced to a fixed term of 5 years imprisonment with no parole eligibility order. They would be eligible for release at the expiration of 40 months, being two-thirds of the term of 5 years. … Suppose also at the time or before or after they were sentenced to a term of imprisonment of 6 years with a parole eligibility order. The prisoner would become eligible for parole after service of 24 months of that sentence.

Assume that the sentences are to be served concurrently either by order or by the operation of s 88 of the Sentencing Act. Because s 8 of the Sentence Administration Act [1995]

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prescribes the order in which the sentences are to be served, the prisoner would have to serve 40 months of the term of 5 years and is discharged from that sentence and must be released unless required to be kept in custody in respect of another matter:

Sentencing Act

s 95;

Sentence Administration Act

[1995] s 11.

Because the prisoner in the hypothetical example became eligible for release on parole some 16 months earlier, parole could nonetheless not be granted because the prisoner was serving the balance of the 5 year sentence which ranked first in order. In this example it is important to know the order in which sentences are served so that it can be ascertained if the prisoner has served the entire non-parole sentence of 5 years and so to know that the prisoner may not be released on parole after 24 months, because the 5 year sentence is served in order before the concurrent 6 year sentence."

11 Like s 8 of the 1995 Act, s 7 of the 2003 Administration Act deals with the order of priority of different types of sentences (parole terms and not parole terms) and different parts of individual sentences (the non-parole period and parole period of a parole term) for the purposes of determining when a prisoner can be released. Thus, on the facts in this case, the application of s 88 of the Sentencing Act means that the concurrent terms of 8 years and 3 years are to be served concurrently with the parole days owed. With respect to the concurrent fixed terms of 8 years and 3 years, the appellant will have to serve approximately 2920 days to discharge those sentences and be entitled to release. The parole days owed will be served concurrently and be entirely spent long before the later sentences have been served. However, the appellant is not entitled to be re-released on parole before the end of the parole days owed or after they have been served because the later sentences have to be completed (ie "served") first. The eligibility for or entitlement to release under the earlier sentence is in effect "suspended" until the sentences (or parts thereof) having priority over it are discharged by service.

12 The fact that an offender to be sentenced is serving, or will have to serve, parole days owing is a relevant factor when considering and applying the totality principle: McLean v The Queen [1999] WASCA 209. The totality principle will be relevant in considering whether the later sentences should be served cumulatively or concurrently with the outstanding parole days. It may also be relevant when, notwithstanding the later sentences are to be served concurrently with the parole days

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owed, the number of parole days owed

exceed

the non-parole period of a parole term or a term that is not a parole term. In that situation, providing the parole days owed always exceed the time to be spent in custody under the later terms, increasing the length of the later term does not increase the aggregate term but the practical effect is to defer the time when the Parole Board can give consideration to re-releasing the offender. There appears to be a difference of opinion in this Court as to whether the totality principle has any application in those circumstances:

McLean v The Queen

[1999] WASCA 209;

contra

Hayden v The Queen

[2003] WASCA 210.

13 However, if parole days owed are to be served concurrently and the number of parole days owed is less than the proposed non-parole period of a parole term or the term of a sentence that is not a parole term, the totality principle cannot apply. That is what happened in this case.

14 I have considered whether the recent decisions of this Court in Maroney v The State of Western Australia [2006] WASCA 130 and Fullgrabe v The State of Western Australia [2006] WASCA 138 are inconsistent with this proposition. In those cases the later sentences, which were not parole terms, exceeded the parole days owed. It is unclear from the reasons for judgment in those cases whether or not the sentencing Judge had ordered the later terms to be served cumulatively with the parole days owing. I understand that was so in the case of Maroney and I infer such an order was also made in Fullgrabe. In the absence of such an order in both cases, totality issues would not arise because the parole days would be served concurrently and the number of parole days owed was less than the time to be spent in custody under the later sentences (which were not parole terms).

The proper range of sentences

15 The appellant contended that the sentences of 8 years and 3 years are manifestly excessive. The standards of sentencing customarily observed with respect to a crime is only one of a number of factors relevant to a determination of whether a sentence is manifestly excessive (or manifestly inadequate). Other relevant considerations include the maximum sentence for the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

16 Buss JA reviews the principal authorities in this State relating to sentences for motor vehicle manslaughter. The sentences range from 3 years' imprisonment to 10 years' imprisonment, all of which were

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imposed prior to the commencement of the

Sentencing Legislation Amendment and Repeal Act 2003

(WA). The transitional provisions of that Act provide that a sentencing court must now impose a term that is two-thirds of the fixed term that would have been imposed before the commencement of that Act. A range of 3 years to 10 years' imprisonment under the former provisions corresponds with a range under the transitional provisions of 2 years to 6 years and 8 months' imprisonment. In the two cases where a sentence of 10 years' imprisonment was imposed, one followed a trial so there was no discount for a plea of guilty (

Punch v The Queen

(1993) 9 WAR 486) and the other involved conduct resulting in the deaths of two innocent road users (

White v The Queen

(2003) 39 MVR 157).

17 The appellant's sentence of 8 years for unlawful killing (12 years under the former provisions) is significantly higher than sentences imposed to date for that offence. However, that alone is insufficient to establish manifest excess. Regard must be had to all relevant factors. The appellant was aged 25 when he committed the offences. He committed the offences about three weeks after being released on parole for an earlier offence of stealing a motor vehicle and driving it recklessly. That earlier offence was itself committed while the appellant was on bail for a further offence of reckless driving which also resulted in a term of imprisonment. All involved police chases. In February 1999 the appellant was convicted of armed robbery and unlawful wounding for which he received a total sentence of 6 years' imprisonment.

18 The circumstances of the offence of unlawful killing in this case were in the upper range of seriousness of offences of this type. Further, the appellant's antecedent criminal history demonstrates that the offence is not an uncharacteristic aberration but is a manifestation of a continuing attitude of disobedience of the law and it illuminates the very significant moral culpability of the appellant: Veen v The Queen (No 2) (1987) 164 CLR 465 at 477 - 478. Having regard to all relevant sentencing considerations including (but not limited to) sentences customarily imposed, I am not persuaded that a sentence of 8 years' imprisonment for unlawful killing in the circumstances of this case is outside the range of a sound sentencing discretion.

19 I turn now to the sentence of 3 years imposed for stealing a motor vehicle and driving it recklessly. If that offence had stood alone, the sentence would be well within a sound discretionary range (see Otley v The Queen [2005] WASCA 5; Fullgrabe v The State of Western Australia (supra)). However, there is a factual overlap in this case

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between the aggravating factor of reckless driving and the conduct that establishes the level of criminal negligence required to prove the offence of unlawful killing. As to which, see

Callaghan v The Queen

(1952) 87 CLR 115. In such circumstances, an offender must not in the selection of the appropriate penalty for each offence be doubly punished for conduct that is common to each offence:

Pearce v The Queen

(1998) 194 CLR 610. The appellant's conduct in driving the vehicle recklessly is in substance punished in the sentence for unlawful killing. It should be ignored in determining the penalty for the offence of stealing a motor vehicle. For that offence, I would impose a term of 12 months' imprisonment and, having regard to totality, order that it be served concurrently with the sentence of 8 years' imprisonment for unlawful wounding. Thus, although I would reduce the sentence for stealing a motor vehicle and driving it recklessly from 3 years to 1 year, the total effective sentence would remain at 8 years. I would allow the appeal, set aside the sentence imposed for the offence of stealing a motor vehicle and driving it recklessly and in lieu thereof impose a term of 12 months' imprisonment to be served concurrently with the sentence of 8 years for unlawful killing.

20 BUSS JA: On 5 October 2005, the appellant was convicted, on his plea of guilty, that:

(a) on 9 March 2005 he unlawfully killed Wayne Karl Bolton, in contravention of s 280 of the

Criminal Code

(WA); and

(b) on 9 March 2005 he stole a motor vehicle, the property of Melissa Elizabeth Bernt, in contravention of s 371A of the Criminal Code.

In the indictment it was alleged, in relation to the count of stealing a motor vehicle, that the appellant wilfully drove the vehicle in a manner that constituted an offence under s 60 of the

Road Traffic Act

1974

(WA) (that is, the offence known as reckless driving).

21 The maximum sentence for the count of unlawful killing was imprisonment for 20 years (s 287 of the Criminal Code) and the maximum sentence for the count of stealing, in the circumstances alleged in the indictment, was imprisonment for 8 years (s 378(2)(a) of the Criminal Code).

22 On 4 November 2005 the appellant appeared before Healy DCJ. His Honour sentenced the appellant to a term of 8 years' immediate

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imprisonment on the count of unlawful killing, and a term of 3 years' immediate imprisonment on the count of stealing. The sentence for stealing was ordered to be served concurrently with the sentence for unlawful killing. His Honour refused to make a parole eligibility order.

23 On 27 February 2006, Steytler P granted the appellant leave to appeal against sentence.

The circumstances of the offences

24 When the offences were committed, the appellant was on parole. He had been released from prison on 18 February 2005, 19 days prior to committing the offences in question. The appellant had been serving a sentence of 4 years' imprisonment, which was imposed on 28 January 2003, for stealing a motor vehicle and wilfully driving the vehicle in a manner that constituted an offence under s 60 of the Road Traffic Act (that is, the offence known as reckless driving).

25 In the early hours of the morning of 9 March 2005, police officers in a marked patrol car in Carlisle observed the appellant in a stolen motor vehicle. The appellant accelerated heavily, causing the rear tyres of his vehicle to spin on the dry surface. The police officers pursued the appellant, and activated their blue flashing lights and siren. The appellant refused to stop and attempted to evade the police officers. After driving for some distance at high speed, he entered a cul-de-sac and drove through a wooden barrier at the end of it. The appellant continued through a sand and woodchip area immediately behind the barrier, and turned right into Knutsford Avenue. He failed to stop at a stop sign, which was facing him and clearly visible, at the intersection of Knutsford Avenue and Kew Street. After skidding through that intersection, the appellant's vehicle mounted the kerb and he drove on a footpath until colliding with mesh fencing (known as a cyclone fence) and a tree. The fence had galvanised steel support posts and a galvanised steel rail at the top. The collision caused a section of the fence to buckle, and the top rail of the fence to dislodge and enter the vehicle. It impaled Mr Bolton, who was sitting in the front passenger seat. Mr Bolton was 18 years old, and the appellant's cousin. Shortly after the incident, Mr Bolton died from the injuries inflicted by the rail.

26 The appellant fled and was apprehended later about 500 metres away. He was taken to Royal Perth Hospital where he was treated for minor injuries and discharged.

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27 The area in which the police officers pursued the appellant, and where the collision occurred, was a residential zone with a speed limit of 50 kilometres per hour. During the pursuit the appellant was travelling significantly in excess of the speed limit.

28 The vehicle driven by the appellant was stolen shortly prior to the incident which culminated in Mr Bolton's death.

29 A sample of the appellant's blood was obtained at 3.11 am on 9 March 2005. Analysis of the sample revealed a blood alcohol level of zero. Traces of tetrahydrocannabinol and carboxytetrahydrocannabinol were detected in the appellant's blood sample. This demonstrated that he had been using cannabis.

30 When the offences were committed, the appellant did not have a motor vehicle driver's licence. On 30 January 2003 he had been disqualified, pursuant to an order made under Part 15 of the Sentencing Act1995 (WA), from holding or obtaining a driver's licence for a period which, as at 9 March 2005, had not expired.

31 The appellant was born on 7 March 1980, and was therefore aged 25 years when he committed the offences.

The appellant's prior convictions and prior parole eligibility orders

32 The appellant has a very serious record of prior convictions. His prior offences include convictions for robbery whilst armed and in company, unlawful wounding, burglary, stealing, and numerous motor vehicle offences. The convictions for motor vehicle offences include convictions for reckless driving on 17 May 2002, 28 January 2003 and 30 January 2003. The circumstances of the offences of which the appellant was convicted on 17 May 2002 and 28 January 2003 included motor vehicle pursuits by police officers.

33 The appellant's response to prior supervision orders has been unsatisfactory. On 23 February 1999 he was sentenced to terms of immediate imprisonment with eligibility for parole. On 27 July 2001 he was released on parole. His parole was suspended less than 4 months later, after the commission of offences on 19 October 2001 and 21 November 2001. I have mentioned that on 28 January 2003 the appellant was sentenced to a term of 4 years' immediate imprisonment, with eligibility for parole, after his conviction for stealing a motor vehicle, which he then drove in a manner that constituted the offence of reckless driving. He was released on parole on 18 February 2005, and on 9 March

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2005 he committed the offences with which this appeal is concerned. His parole had been due to end on 6 November 2007, but was suspended after he committed those offences.

34 Since 9 March 2005 the appellant has been in custody. Counsel for the parties informed this Court that, as at 22 March 2005, there were 960 outstanding parole days "owed" by the appellant.

The pre-sentence report

35 A pre-sentence report was prepared and submitted to the learned Judge.

36 The appellant informed the author of the report that he fled from the scene of the accident to avoid apprehension, but later returned to the scene. He claimed to be unaware of the extent of his cousin's injuries or that his life was in danger.

37 The appellant has spent substantial periods in juvenile and adult detention centres or prisons. His convictions as an adult demonstrate thrill-seeking, high-risk taking and uncontrolled behaviour. Most of his adult life has been spent in custody. He has had less than 6 months in the community since the age of 18 years.

38 The author notes that the appellant spent his childhood living with his mother and extended family members in a dysfunctional family environment. His early years were unstable and chaotic, and his role models engaged in antisocial behaviour. All of this has had a significant effect on him, and has manifested itself in drug use and antisocial and criminal behaviour.

39 The appellant has never been married and has no children.

40 The appellant attended school until he was aged 13 years. He has not completed any further education and has never been employed. His history of drug use began when he was about 13 years old. The drugs he has used include cannabis, amphetamines and alcohol.

41 In the report it is said that the appellant made statements to the author concerning the consumption of alcohol on 8 March 2005 (that is, the day before the collision):

"He stated he and his cousin (the victim) were at his Aunt's house, had been drinking (spirits) throughout the day and impulsively decided to steal a car that night with the intention of

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going back to his mother's house. He informed they were pursued by the police, but crashed the car after the police chase had been aborted. Whilst he admitted having been drinking before this incident, he minimised the impact of his drinking on his reactions and behaviour."

42 The author of the report summarised the appellant's prior experience of and attitude towards parole, and her recommendation in relation to eligibility for parole in respect of the offences in question, as follows:

"[The appellant] has had the opportunity of two short periods of community supervision as an adult with little success in regards to compliance or recidivism. He is aware he will be likely to be imprisoned as a result of the current offences and his poor previous response to supervision, and has resigned himself to this prospect. Whilst not considered suitable for community supervision at the present time, it is respectfully recommended he be afforded an opportunity to be considered for Parole in the future. Given his young age, his levels of institutionalisation and his personal/family issues, it is anticipated he will require monitoring and a high level of support and intervention following his release from custody."

The psychological assessment and report

43 The learned Judge had before him a psychological assessment of and report on the appellant made by David Summerton, a psychologist.

44 Mr Summerton said, relevantly, in his report:

"[The appellant] accepted responsibility for his offending and this appears to be reflective of his general approach to life whereby he believes that he has the capacity to control the direction his life takes. However, his tendency to adopt a quite independent and self-sufficient stance has the potential to undermine him appropriately accessing support and guidance in terms of effectively re-integrating into the community. There are no indications that he has gross difficulty coping, but he has had little or no experience engaging in a lifestyle that does not centre on criminal activity and drug use. His recent few weeks on parole cannot necessarily be viewed as an accurate indicator of his coping capacity given the brevity of his time in the community though obviously he has been involved in a

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significant offence that involved poor decision-making. He had also returned to drug use."

The learned Judge's sentencing remarks

45 The learned Judge, in his sentencing remarks, referred to the appellant's dysfunctional family background.

46 The learned Judge also referred to the pre-sentence report, and said:

"The report tells me that you got involved in drugs in your early teens. It's not said that you were under the influence of drugs at the time of the accident but you admitted being under the influence of alcohol."

His Honour should not have taken alcohol into account in that the prosecution accepted, in its submissions to his Honour, that at the time of the accident the appellant was not under the influence of alcohol. As I have mentioned, analysis of a blood sample taken from the appellant at 3.11 am on 9 March 2005 revealed a blood alcohol level of zero.

47 The learned Judge said the appellant had significant talent as a footballer and it was regrettable that, in consequence of the lifestyle he had followed, he had been unable to develop those talents. His Honour noted the contents of references from some of the appellant's relatives which indicated he was respectful of his elders and admired by younger members of his immediate and extended family. It was apparent to his Honour that the appellant accepted responsibility for the death of his cousin, and the materials before him indicated the appellant regretted having committed the offences and was having difficulty coping with his actions on the night in question, and the consequences of those actions.

48 The learned Judge referred to the appellant's very serious record of prior convictions. His Honour was aware that the appellant had spent substantial periods in juvenile and adult detention centres or prisons. His Honour also noted details of the outstanding parole days "owed" by the appellant.

49 After recording that the appellant's early pleas of guilty were to be taken into account, in mitigation of sentence, and expressly referring to the transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), his Honour addressed the head sentences to be imposed for the offences, and whether a parole eligibility order should be made:

(Page 18)

"The main issue in relation to the plea in mitigation by Mr Hope on the last occasion was whether you should be made eligible for parole. I heard Mr Hope's submissions in that regard and particularly the fact that because you would be serving a lengthy term of imprisonment you would need supervision when you were released from custody.

However, parliament has altered the criteria for eligibility for parole and in doing so parliament has made the judgment - despite the risk of letting people into the community who have been in prison for a long time enter that community without supervision, it has made rules in relation to whether people should be made eligible for parole or not and it requires the court to really make people not eligible for parole if certain criteria are fulfilled.

I think there may be some misconception in relation to those criteria because the last criteria [sic] is any other reason the court considers relevant. That's not a consideration of the court in relation to granting of the parole, it's in relation to the court not granting parole. In the circumstances that you face in relation to sentence what I propose to do in relation to the charge of unlawful killing, as I said, your driving was criminally negligent and led to the death of your cousin, and you admitted you had been drinking. It was a bad case of unlawful killing and in those circumstances you are sentenced to eight years' imprisonment.

In relation to the stealing of the motor vehicle you are sentenced to three years' imprisonment concurrently. As to parole, I don't make you eligible for parole because the offences are serious, particularly the unlawful killing offence. You have a significant criminal record and you were on - had been released from custody under a parole order and didn't comply with the order by the fact that you reoffended on this occasion. That means that you will spend the time in custody but you will serve this sentence first and it will be up to the Parole Board whether they will grant you parole at the expiration of this sentence. That's the sentence of the court. …"

The grounds of appeal

50 There are two grounds of appeal:

(Page 19)

"1. The learned Sentencing Judge erred in law by failing to make the Appellant eligible for parole with respect to the sentences passed.

2. The learned Sentencing Judge erred in law by imposing a sentence on the Appellant that was manifestly excessive in all the circumstances, in particular

2.1 The Appellant's liability to serve a substantial period by way of breach of parole; and

2.2 The proper range of sentences commonly imposed in respect of the offences sentenced upon."

The task of this Court

51 The task of this Court, in examining the grounds of appeal, is to determine whether there was an error made in sentencing the appellant, error being understood in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 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 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."

See

Dinsdale v The Queen

(2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325, [3], [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary Judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own

(Page 20)

opinion for that of the primary Judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary Judge. See

Lowndes v The Queen

(1999) 195 CLR 665 at 671 - 672, [15].

Ground 1: If this Court were to set aside the learned Judge's decision not to make a parole eligibility order, would it be entitled or obliged also to set aside the fixed terms of imprisonment imposed by his Honour?

52 Counsel for the appellant and the respondent submitted to this Court, in effect, that if this Court were to set aside the learned Judge's decision not to make a parole eligibility order, the balance of the sentencing process would not thereby be affected; in particular, this Court would not be entitled or obliged also to set aside the fixed terms of imprisonment imposed by his Honour. Counsel did not cite any authorities or refer to any legislation in support of their submission.

53 In McGarry v The Queen (2001) 207 CLR 121, the appellant was convicted of a single count of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. The primary Judge sentenced him to a term of imprisonment of 5 years and made an order for indefinite imprisonment. He appealed to the Court of Criminal Appeal which substituted 3 years' imprisonment for the 5 year sentence and, by a majority, affirmed the order of indefinite imprisonment. The High Court held, by a majority, that if an appellate court concluded that a sentencing Judge's discretion had miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the primary Judge, including the order for indefinite imprisonment, ought to be set aside, and the appellate court should then re-sentence the offender.

54 The legislation in relation to appeals which was relevant when McGarry (2001) was decided comprised, relevantly, s 688(1a) and s 689(3) of the Criminal Code. Section 688(1a) provided:

"A person convicted on indictment or convicted by a court of summary jurisdiction and committed for sentence may appeal to the Court of Criminal Appeal -

(a) against a sentence of indefinite imprisonment passed under Part 14 of the Sentencing Act 1995 ; and

(b) with the leave of the Court of Criminal Appeal, against any other sentence passed upon him, unless the sentence is one fixed by law."

(Page 21)

Section 689(3) provided:

"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

55 In McGarry (2001), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said, at 126 [7]:

"Section 98(1) [of the

Sentencing Act

] empowers a sentencing judge, if the relevant conditions are met, to '

order

the offender to be imprisoned indefinitely' and to do so '

in addition to

imposing the term of imprisonment for the offence'. An order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment)."

Their Honours then said, at 126 [8] - [9]:

"The

Criminal Code

(WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment (s 688(1a)(a)) and against any other sentence (s 688(1a)(b)). The former lies as of right; the latter lies only with the leave of the Court of Criminal Appeal. That might be thought to suggest that two appellate processes had been engaged in the present case -- one concerning the order for indefinite imprisonment and the other concerning the nominal sentence. Even if that were so, it should not obscure the fact that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision.

It follows that if an appellate court concludes that the sentencing judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re-sentence the offender. As s 689(3) of

(Page 22)

the

Criminal Code

provides, if the Court of Criminal Appeal "think that a different sentence should have been passed", the Court should "quash the sentence ... and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant ... stands convicted". The question would not be, as the Court of Criminal Appeal appears in this case to have thought it to be, whether it had been

open

to the sentencing judge to make the order for indefinite imprisonment which had been made. The sentencing discretion being shown to have miscarried, there was no occasion or need to consider whether it could be separately demonstrated that the sentencing judge's discretion to make an order for indefinite imprisonment had miscarried. It was for the Court of Criminal Appeal to pass such other sentence as ought to have been passed."

56 In McGarry v Western Australia (2005) 31 WAR 69, the appellant was convicted on two indictments. The first indictment contained one count of unlawful detention, one of indecent assault, and one of indecent dealing, all relating to the same complainant. The primary Judge imposed terms of imprisonment of 3 years, 2 years and 2 years respectively, all to be served concurrently. The second indictment related to indecent dealing in relation to another complainant, and for that offence the primary Judge imposed a term of 1 year and 24 days. This term was imposed cumulatively on the other, so that the total of the terms was 4 years and 24 days. The appellant was not made eligible for parole and, in addition to the nominal sentence, was imprisoned indefinitely pursuant to s 98 of the Sentencing Act.

57 On appeal in McGarry (2005), the appellant did not challenge the nominal sentence, but contended that he should have been made eligible for parole and that the sentence of indefinite imprisonment should not have been imposed. This Court decided that the order for indefinite imprisonment should not have been made. Wheeler JA (with whom Roberts-Smith and McLure JJA agreed) said, at 94 [107]:

"It would appear to follow from the reasoning of the High Court in

McGarry

(at [8] and [9]), that, having reached the conclusion that the order for indefinite imprisonment should not have been made, the entire sentence should be quashed. The Court, at those paragraphs, refers to the order for indefinite imprisonment and the decision fixing the nominal sentence as 'part of a single sentencing decision', so that it is said to follow that if the

(Page 23)

discretion in relation to the nominal term miscarried, the whole of the sentence, including the order for indefinite imprisonment, should be set aside. It would appear from those reasons that the reverse proposition is also correct; that is, that this Court, having determined that the indefinite term should not have been imposed, the entirety of the sentence should be quashed. Further, because in the present case, on one view of his Honour's conclusions, he should have revisited the question of parole, it would be desirable that the appellant's sentence be reconsidered afresh in relation to that issue also."

Also, see her Honour's observations at 96 [116].

58 In Strong v The Queen (2005) 79 ALJR 1171, the Court of Criminal Appeal of New South Wales set aside sentences imposed on the appellant for stalking and intimidation, and other offences. The Court also set aside a sentence imposed by the primary Judge that was a result of pronouncing the appellant an habitual criminal pursuant to s 3 of the Habitual Criminals Act 1957 (NSW). The High Court granted the appellant special leave to appeal in respect of one ground; namely, that after having upheld the appeal against sentence for the offences, the Court of Criminal Appeal erred in not addressing itself afresh to the questions arising for determination under s 4 of the Habitual Criminals Act. The High Court, by a majority comprising Gleeson CJ, Callinan and Heydon JJ, dismissed the appeal. McHugh and Kirby JJ dissented. The decision of the High Court is relevant, in the present case, in that Gleeson CJ, McHugh and Kirby JJ held that upon the Court of Criminal Appeal deciding to intervene to re-sentence the appellant for the offences, it was entitled and obliged to reconsider both elements of the discretionary decision - pronouncement and sentence - under s 4 of the Habitual Criminals Act.

59 In Strong, McHugh J said, at 1176 [25]:

"There is much to be said for the view that, when the sentence for the primary offence is set aside, the pronouncement is automatically set aside. But, independently of that consideration, the primary sentence and the pronouncement are so closely connected that, as a matter of principle, an appellate court that sets aside the primary sentence must also set aside the pronouncement and the mandatory sentence that follows it. There can be few, if any, cases where an appellate court, having concluded that an integer of a sentence has miscarried, can refuse to determine afresh the other integers of the sentence.

(Page 24)

That was the view of this court in

McGarry v R

((2001) 207 CLR 121) …"

60 In Strong, counsel for the Crown submitted that there were three reasons why the approach of the High Court in McGarry (2001) was inapplicable to appeals under the Habitual Criminals Act. First, under the Act the sentence imposed in respect of the pronouncement is "a further sentence" that is imposed "in addition to" the sentence for the primary offence. Secondly, s 4(2) of the Act provides that, in certain circumstances, a Judge may declare a person an habitual criminal after the person has been convicted by a Magistrate. Counsel submitted that this meant that the substantive offence and the pronouncement are imposed separately and not as part of a single sentence or decision. Counsel referred to different rights of appeal in relation to the substantive sentence imposed by the Magistrate and the pronouncement and further sentence of the Judge. Thirdly, an offender may appeal only against the pronouncement or consequential sentence and not the sentence for the primary offence and, in such cases, only the pronouncement or the mandatory sentence imposed in respect of the pronouncement is before the appellate court. McHugh J held that none of those considerations made inapplicable the principle enunciated in McGarry (2001). His Honour said, at 1177 [29]:

"First, the omission of the 1957 Act to declare that the sentence following the pronouncement is 'part of the sentence' is not decisive. It is the sentencing decision — not the individual sentences — that attracts the

McGarry

principle. That principle does not cease to be applicable because there are separate sentences. In

McGarry

itself, the indefinite sentence was 'in addition to imposing the term of imprisonment for the offence'. Secondly, for the same reason, the provisions of s 4(2) dealing with pronouncements following convictions before a magistrate do not affect the applicability of the

McGarry

principle. If the conviction before the magistrate were set aside in separate proceedings, it could not be contended that the pronouncement of and the sentence for being an habitual criminal must stand. Thirdly, the fact that an appeal may be brought only against the pronouncement or the consequential sentence is a matter of no present relevance. It says nothing as to whether the court must set aside the pronouncement when the primary sentence is set aside."

(Page 25)

Gleeson CJ accepted, at 1173 - 1174 [11], that, having concluded that the sentencing by the primary Judge for the substantive offences was affected by error, and that the Court of Criminal Appeal should intervene to re-sentence for those offences, the Court of Criminal Appeal was entitled and obliged, on the authority of

McGarry

(2001), to reconsider both elements of the decision under the

Habitual Criminals Act

. Also, see the observations of Kirby J at 1184 - 1185, [66] - [72].

61 On 2 May 2005, s 688 and s 689 of the Criminal Code were repealed, and the Criminal Appeals Act 2004 (WA) came into operation. Section 23(1) of the Criminal Appeals Act provides:

"An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction;

Section 31 of the

Criminal Appeals Act

provides, relevantly:

"(1) This section applies in the case of an appeal commenced by an offender under section 23, … against -

(a) the sentence imposed or any order made as a result of

(i) a conviction on indictment;

(ii) …;

(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.

…

(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

(4) The Court of Appeal may allow the appeal if, in its opinion -

(Page 26)

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed;

(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe;

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

(6) If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -

(a) may make any order that should have been made;

(b) may send the charge back to the court that refused to make the order to be dealt with further."

Section 41 of the

Criminal Appeals Act

is concerned with sentencing or re-sentencing on appeal. By s 41(2):

"If under this Act an appeal court varies or sets aside a sentence (

'sentence A'

), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A."

Section 41(10) provides that s 41 is "in addition to and does not affect the operation of the

Sentencing Act

1995

except as expressly stated".

62 The effect of s 41(10) of the Criminal Appeals Act is that if, under that Act, an appeal court decides to vary a sentence or impose a different sentence involving a different sentencing option, the powers available to the appeal court in re-sentencing the offender include the powers conferred on a sentencing court under the Sentencing Act; for example, the power to make or decide not to make a parole eligibility order.

(Page 27)

63 Section 31 of the Criminal Appeals Act is materially different from s 689(3) of the Criminal Code. Section 31 distinguishes between, relevantly, an appeal against the sentence imposed or any order made as a result of a conviction on indictment, on the one hand, and an appeal against a refusal by a superior court to make an order that might be made as a result of such a conviction, on the other. By s 31(5), if this Court allows an appeal against the sentence imposed or an order made as a result of a conviction on indictment it must set aside the sentence and:

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence, to be dealt with further.

By s 31(6), if this Court allows an appeal against a refusal by a superior court to make an order that might be made as a result of such a conviction, it may make any order that should have been made or may send the charge back to the court that refused to make the order, to be dealt with further. By contrast, s 689(3) provided, relevantly, that on an appeal against sentence, the Court of Criminal Appeal was obliged, if it thought that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which might lawfully be passed for the offence of which the appellant or an accused person was convicted (whether more or less severe) in substitution therefor as the Court thought ought to have been passed.

64 It is unnecessary, in this appeal, to determine whether a decision of a court, under s 89(4) of the Sentencing Act, not to make a parole eligibility order, is:

(a) part of the sentence imposed on the offender, within s 23(1)(b) and s 31(1)(a) of the

Criminal Appeals Act

; or

(b) a refusal to make an order that might be made as a result of the conviction of the offender, within s 23(1)(c) and s 31(1)(b) of the Criminal Appeals Act.

If a court decides, under s 89(4) of the

Sentencing Act

, not to make a parole eligibility order, the decision is part of the sentencing process, whether or not it is also part of the sentence imposed on the offender for the purposes of s 23(1)(b) and s 31(1)(a) of the

Criminal Appeals Act

. If this Court allows an appeal against the decision of a court, under s 89(4)

(Page 28)

of the

Sentencing Act

, not to make a parole eligibility order, s 31(5) of the

Criminal Appeals Act

will apply if the decision is part of the sentence imposed on the offender (within s 23(1)(b) and s 31(1)(a)), and s 31(6) of the

Criminal Appeals Act

will apply if the decision is a refusal to make an order that might be made as a result of the conviction of the offender (within s 23(1)(c) and s 31(1)(b)).

65 In the present case, the learned Judge's decision imposing the fixed terms of imprisonment, and his decision not to make a parole eligibility order, formed part of a single sentencing decision. It is the sentencing decision, and not its individual components, to which the principle enunciated in McGarry (2001) applies. In the present case, leave to appeal was sought and granted in respect of both the fixed terms of imprisonment and the decision not to make a parole eligibility order. The whole of the learned Judge's sentencing decision is therefore before this Court. In those circumstances, at least, the principle in McGarry (2001) applies, notwithstanding the alteration of the statutory framework for appeals consequent upon the repeal of s 689 of the Criminal Code and the enactment of the Criminal Appeals Act. It is unnecessary, in this appeal, to consider the position where an offender who has been sentenced to a fixed term of imprisonment without eligibility for parole applies for leave to appeal or is granted leave solely in respect of the decision not to make a parole eligibility order. I note, however, that the general powers of this Court, in dealing with an appeal, include the power to amend or add a ground of appeal (s 40(1)(k) of the Criminal Appeals Act) and the power to extend time to appeal (s 28(3) of the Criminal Appeals Act). Those powers may be exercised, in an appropriate case, to ensure that, if necessary, the whole of the sentencing decision of a sentencing Judge is before this Court.

66 In my opinion, in the present case, if this Court were to set aside the learned Judge's decision not to make a parole eligibility order, it would be entitled and obliged also to set aside the balance of the sentencing decision, that is, the fixed terms of imprisonment imposed by his Honour.

Ground 1: Did the learned Judge misconstrue s 89(4) of the Sentencing Act?

67 Section 89 of the Sentencing Act provides, relevantly:

(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.

(Page 29)

…

(4) 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;

(d) any other reason the court considers relevant.

…"

68 A court's power under s 89(4) to decide not to make a parole eligibility order is enlivened if (and only if) at least two of the four factors set out in pars (a), (b), (c) and (d) of the subsection exist. If the power is enlivened, the Judge retains a discretion, however, which he or she must then exercise, as to whether to make a parole eligibility order or not. If the power is enlivened, there is no presumption that a parole eligibility order should not, or should not ordinarily, be made. See Messiha v Royce [2004] WASCA 290 per McKechnie J at [15] - [16] (with whom Templeman and Miller JJ agreed); Pickett v The State of Western Australia [2004] WASCA 291 per McKechnie J at [7] - [8] (with whom Miller and McLure JJ agreed).

69 As I have mentioned, the learned Judge, in considering whether to make the appellant eligible for parole or not, said:

"… parliament has altered the criteria for eligibility for parole and in doing so parliament has made the judgment - despite the risk of letting people into the community who have been in prison for a long time enter that community without supervision, it has made rules in relation to whether people should be made eligible for parole or not and it requires the court to really make people not eligible for parole if certain criteria are fulfilled."

70 In my opinion, the learned Judge misconstrued s 89(4). His Honour held, in effect, that if at least two of the four factors referred to in the
(Page 30)

subsection exist, the Court does not retain a true discretion in relation to making or refusing to make a parole eligibility order. His Honour appears to have found that three of the requisite factors existed in relation to the offences in question (par (a)) and the appellant (pars (b) and (c)) and, in consequence, the "rule" made by Parliament "really" required that a parole eligibility order not be made.

71 In my opinion, the learned Judge failed properly to consider the discretion which arises under s 89(4) where at least two of the four factors set out in pars (a), (b), (c) and (d) of the subsection exist. The appellant has therefore established that his Honour's decision not to make a parole eligibility order was affected by an error of law. That decision should be set aside.

Section 31(4) of the Criminal Appeals Act

72 By s 31(4) of the Criminal Appeals Act, this Court "may" allow an appeal commenced by an offender under s 23 of that Act if, in its opinion:

(a) in the case of an appeal referred to in s 31(1)(a), a different sentence should have been imposed; or
(b) in the case of an appeal referred to in s 31(1)(b), an order should have been made.

As I have mentioned, s 31(1)(a) refers to, relevantly, an appeal against the sentence imposed or any order made as a result of a conviction on indictment, and s 31(1)(b) refers to, relevantly, an appeal against a refusal by a superior court to make an order that might be made as a result of such a conviction.

73 The effect of the word "may", in s 31(4), is that even if this Court is of the opinion that:

(a) a different sentence should have been imposed; or
(b) an order that might have been made (but was not made) as a result of, relevantly, a conviction on indictment, should have been made,

it retains a discretion whether to allow the appeal or not.

Ground 1: should a parole eligibility order be made?

74 In my opinion, three of the factors referred to in s 89(4) exist in relation to the offences the subject of this appeal and the appellant. As to par (a), the circumstances of each of the offences involved criminality

(Page 31)

which makes it proper to characterise each offence as "serious". See, in particular, the circumstances which I have recited in pars 25 - 28 above. As to par (b), the appellant has a very serious record of prior convictions. I have described his prior convictions, in general terms, in par 32 above. It is proper, in my opinion, to categorise his record of prior convictions as a "significant criminal record". As to par (c), I have mentioned, in par 33 above, that the appellant was released on parole on 27 July 2001 and again on 18 February 2005. He committed offences within 2 - 4 months after the first occasion on which he was released on parole, and he committed offences 19 days after the second occasion. His parole was suspended in consequence of the commission of the offences. The appellant is therefore an offender who "when released from custody under a release order made previously, did not comply with the order".

75 I turn now to consider whether, in all the circumstances, a parole eligibility order should be made in respect of any terms of immediate imprisonment imposed on the appellant. The factors which favour the making of a parole eligibility order appear to be these:

(a) the appellant is still a relatively young man;
(b) after the appellant is eventually released from custody, he will require a significant degree of support and supervision if he is to have any reasonable prospect of adopting a lifestyle which does not involve criminal activity and drug use, especially in the context of the substantial periods he has spent in juvenile and adult detention centres or prisons and the personal issues arising from the dysfunctional family environment in which he was raised; and
(c) the appellant's remorse in relation to the death of Mr Bolton and his pleas of guilty, at the earliest opportunity, to the offences with which this appeal is concerned.

In my opinion, however, those factors are decisively outweighed by other considerations. First, the nature and seriousness of the offences in question. Secondly, the appellant's very serious record of prior convictions including three prior convictions for reckless driving, two of which included motor vehicle pursuits by police officers. Thirdly, the appellant's unsatisfactory response to prior supervision orders including the suspension of two prior parole eligibility orders in consequence of the appellant having committed offences shortly after his release. And, fourthly, the appellant's propensity for thrill seeking, high risk taking and uncontrolled behaviour.

(Page 32)

76 In my opinion, a parole eligibility order should not be made in respect of any terms of immediate imprisonment imposed on the appellant.

Ground 2: Generally

77 The principle in McGarry (2001) requires that, this Court having set aside the learned Judge's decision not to make a parole eligibility order and determined that issue itself, the fixed terms of imprisonment imposed by his Honour also be set aside, and the appellant be re-sentenced.

78 This Court should itself re-sentence the appellant. It is desirable, in the course of the re-sentencing process, to consider, amongst other things, the structure of the sentences imposed by the learned Judge, including whether the sentences his Honour imposed were concurrent with, or cumulative on, the 4-year term imposed on 28 January 2003.

Comparable sentences for unlawful killing

79 There is no tariff for the offence of unlawful killing, contrary to s 280 of the Criminal Code. Also, there is no tariff for offences contrary to s 280 where the killing has been caused by the use of a motor vehicle. It is useful, nevertheless, to review the principal authorities in relation to sentences which have been imposed on offenders for motor vehicle manslaughter.

80 In R v Stebbings (1990) 4 WAR 538, the offender, who was aged 23 and was otherwise of good character, drove a motor vehicle at a speed estimated at 180 to 200 kilometres per hour and collided with another vehicle at an intersection. Two of the occupants of the other vehicle were killed. The applicable speed limit was 70 kilometres per hour. The primary Judge sentenced the offender to 18 months' imprisonment with eligibility for parole. The Crown appealed. The Full Court of the Supreme Court of Western Australia allowed the appeal and imposed a sentence of 3 years' imprisonment, with eligibility for parole, to reflect the seriousness of the offence and the need for general deterrence.

81 In R v S (No 2) (A Child) (1992) 7 WAR 434, the respondent, who was aged 15 at the time of the offence, was sentenced to 18 months' imprisonment by the President of the Children's Court. The Crown appealed against the sentence and the Court of Criminal Appeal allowed the appeal and substituted a sentence of 3 years and 8 months (after giving the respondent a credit of 4 months for a period of time spent in custody

(Page 33)

prior to the imposition of sentence by the primary Judge). The relevant facts were summarised by Malcolm CJ, at 438-439, as follows:

"The attempt to steal the Commodore occurred at about 2.10 am in Leichardt Street. The respondent and his two companions broke the right rear quarter window of the vehicle and the right-hand doors. They interfered with the ignition lock. The owner came to her front door and shouted at them and they ran away. A few doors down Leichardt Street they smashed a window on the driver's side of the Ford Falcon utility. The respondent and the others then drove off in the vehicle. Less than a minute later Constables Rafferty and Craven, who were in a police car, received a message regarding the attempt to steal the Commodore. Shortly afterwards they saw the Ford Falcon and the three male occupants and followed the Falcon after it came out of Leichardt Street onto Albany Highway. The Ford had no lights on and failed to stop at a stop sign at the highway. It then rounded the left-hand bend on Shepparton Road, just north of the intersection with Welshpool Road, followed by the police. The Ford Falcon then made a right hand turn into Oats Street, going through a red light. The Ford was not displaying any lights and accelerated away from the police cars. The road was not well-lit and it was raining. The Ford was approximately 150 m in front of the police vehicle when it disappeared over a crest. When the police vehicle came over the crest the Ford was seen to be on the incorrect side of the road still accelerating and without lights. The Ford was then 200 - 250 m in front of the police car.

At this point the police activated the blue light on their vehicle. The rain was then steady. Visibility was poor and the street lights were off. The police car followed at 60 - 70 km/hour. At the intersection of Planet and Oats Streets there is another crest. At this point the rear lights of the Ford were seen to flash on twice before remaining on and the right-hand indicator was operating as it approached the intersection with Orrong Road. The Ford stopped before the intersection. At that point the police car was in the vicinity of the intersection with Harris Street. The police saw two persons get out of the Ford. One ran away and the second fell onto the road. Both were apprehended. The first of them turned out to be the respondent. One other passenger remained in the Ford.

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The police did not then realise that the Ford had collided with a Volkswagen sedan at the Harris Street intersection. As the Ford was travelling along Oats Street on the incorrect side of the road, the Volkswagen was being driven by a Mr Revell with Mrs Houghton as a passenger. It was approaching the intersection. It was making a right-hand turn into Harris Street. The indicator was operating. The Ford had already passed some other cars in Oats Street. In doing so the respondent flashed his lights on high beam and sounded the horn. He got to the front of a line of cars and the Volkswagen was in front of him. He saw the brake lights go on and a right turn indicated.

The Ford struck the Volkswagen on the right rear. It was clearly struck with very considerable force. It was carried forward across the intersection across the verge, onto an area near the footpath and into a bus shelter some 30 - 40 m from the point of impact. Parts of the vehicle were scattered over a wide area. The engine was found near the wall of a house some 10 - 15 m from the Volkswagen. Mrs Houghton was thrown through the passenger door onto the road and killed. The Ford came to a stop some 200 m further along Oats Street. The learned President estimated the speed of the Ford at the point of impact at between 80 and 100 km/hour. It appears that the Ford was braking immediately prior to the impact."

At the time of the collision the respondent had a blood alcohol level of 0.115 per cent. He had numerous prior convictions for dishonesty and traffic offences, a history of alcohol abuse, and a disrupted and chaotic childhood. Malcolm CJ observed, at 446, that there was no basis for regarding

Stebbings

as setting a "tariff" for motor vehicle manslaughter. His Honour added, at 446 - 447:

"The present case is not necessarily in the worst category of motor vehicle manslaughter, but it is nonetheless a very serious case with a number of aggravating factors. It is a significantly worse case than

Stebbings

in my opinion. In the present case the degree of intoxication, the fact that the respondent was driving a stolen vehicle and attempting to avoid apprehension by the police coupled with the high degree of criminal negligence involved in the driving all added a new dimension to motor vehicle manslaughter. This was not in fact a high speed pursuit case. The police car was following at a comparatively slow speed of 60–70 km/hour compared to the speed of the Ford

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utility which was estimated by the learned President to be 80-100 km/hour. In this particular case it cannot be said that the conduct of the police or the manner of their driving contributed in any way to the dangerous situation created by the driving by the respondent of the Ford Falcon at an excessive speed and otherwise in the manner I have described. The nature of the respondent's driving was calculated to expose other road users to the risk of death or serious injury. It is a clear inference that the respondent drove the vehicle at an excessive speed without lights in order to avoid detection and apprehension. In short the respondent's manner of driving exhibited an extremely high degree of recklessness which involved a deliberate and blatant disregard for the lives and safety of other road users. It must be brought home to those who drive in such a manner that their behaviour cannot be tolerated by the community.

In my view, had this offence of motor vehicle manslaughter been committed by an adult under the same circumstances and having the same personal characteristics and history as the respondent, it may well have justified a sentence of six years. This offence was committed by a juvenile. Youth is normally a powerful mitigating factor and rehabilitation a dominant consideration."

Seaman J, after referring to

Stebbings

Wicks v The Queen

(1989) 3 WAR 372, and

McKenna v The Queen

(1992) 7 WAR 455, expressed the view that the appropriate starting point for the construction of the respondent's sentence was a point somewhat more than half the maximum sentence of 20 years' imprisonment. His Honour said, at 451 - 452:

"In my opinion, it is first necessary to determine what is the penalty at the upper end of the range of criminality for manslaughter in general which could properly be applied as a starting point for the construction of the respondent's sentence.

Wicks

(at 390) reveals that 15 years may be appropriate where a penalty at the upper end of the range is warranted.

Although in the view which I take, Stebbings offers no guidance in respect of the proper range of sentencing in this case, I observe that it was a Crown appeal against a sentence for manslaughter which the Chief Justice said was not necessarily the worst of its kind or in the worst category of such cases. Alcohol was not involved. I am of the view, with respect, that making due allowance for that discount for double jeopardy

(Page 36)

which is frequently given in Crown appeals against sentence, the increased sentence of 3 years’ imprisonment concurrent on each count of manslaughter in that case was at the lower end of the range of a sound sentencing discretion.

I am a member of the court which recently reserved its decision on the application for leave to appeal by McKenna against an effective 8 year sentence for manslaughter by the use of a motor vehicle when pursued by the police. McKenna was 18½ when he committed that offence. It is sufficient for present purposes to say that I consider that his conduct was materially worse than that of the respondent.

In my view the appropriate starting point for the construction of the respondent's sentence must be at a point somewhat more than half the maximum sentence for manslaughter of 20 years’ imprisonment.

Such a sentence reflects the criminality of the respondent's behaviour, the need to protect the community and the need for deterrence both personal and general.

The respondent was only 15 when he committed this very serious offence. …

…

In my opinion, the mitigating factor of the respondent's status as a child requires a very great reduction from the starting point which I have mentioned.

…

Giving full weight to such mitigating factors as may be found in the case, I am satisfied that the total sentence imposed by the learned President was manifestly inadequate.

However, I am in entire agreement with the Chief Justice that any greater effective sentence than four years’ imprisonment would have a crushing effect on the respondent."

Ipp J said, at 454, that if the respondent had been a few years older, and taking into account all mitigatory circumstances applicable to him other than his age, he would have been required to serve a term of imprisonment of not less than 6 years.

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82 In McKenna, the material facts were these. The applicant was in a stolen motor vehicle in a car park in Subiaco. He was recognised by police officers in an unmarked police vehicle, who indicated that he should reverse his vehicle and then stop. The applicant ignored this direction and accelerated out of the car park with the police officers in pursuit. The police officers activated the headlights on their vehicle, together with a blue light on the roof of their vehicle, and their siren. During the pursuit the appellant deliberately rammed the police officers' vehicle. He travelled through a stop sign at approximately 100 kilometres per hour, without slowing, almost colliding with another vehicle. The applicant continued to accelerate heavily and travelled through the intersection of Hamersley Road and Rokeby Road, Subiaco, without slowing, and at a speed estimated to be 150 kilometres per hour. He continued to travel through two other intersections without any apparent reduction in speed. Finally, the applicant's vehicle went through the intersection of Hamersley Road and Rokeby Road at such a speed that it was apparently airborne in the intersection. It collided with a vehicle travelling south on Rokeby Road, and in consequence the applicant lost control of his vehicle and collided with the rear of a bicycle being ridden by a young woman, who was thrown some ten feet into the air and landed on a parked vehicle about 20 metres away. She sustained shocking injuries and was killed instantly. The applicant continued down the road, became stationary, and he and a companion in his vehicle ran from the scene. The applicant was eventually found hiding under a vehicle. During the previous evening, the applicant had attended several nightclubs. The following morning he had swallowed some ecstasy tablets and injected himself with amphetamines. The applicant was under the influence of those drugs, to an extent, during the activities which culminated in the death of the deceased. He had an appalling record of convictions. The Court of Criminal Appeal refused the applicant's application for leave to appeal against the primary Judge's sentence of a term of imprisonment of 7 years and 12 weeks (which was an effective sentence of 8 years' imprisonment, reduced after giving credit for a period of time already spent in custody after his arrest). The primary Judge also ordered that the appellant be eligible for parole. Seaman J (with whom Ipp J agreed) said, at 468 - 469:

"In my view, a starting point of 16 years for the construction of the applicant's sentence would not have been outside the range of a sound discretionary judgment bearing in mind that the maximum sentence for manslaughter is 20 years' imprisonment.

(Page 38)

Such a commencing point reflects the criminality of the applicant's behaviour, the need to protect the community and the need for deterrence both personal and general.

…

At common law, youth is a significant mitigatory factor (although normally its weight decreases as the offender moves through the early 20s) and so is the need to attempt rehabilitation of youthful offenders. …

…

His Honour specifically took the applicant's youth into account. He also took the victims' family's position into account and no complaint is made of that.

In my opinion, the mitigating factor of the applicant's youth requires a very substantial reduction from the starting point which I have mentioned.

It seems to me that after making a modest reduction for the plea of guilty and remorse, a sentence of 8 years might properly be arrived at within the range of a sound sentence discretion because it demonstrates a very substantial discount for the youth of the applicant and every other matter which could be weighed in mitigation of a dreadful offence."

His Honour distinguished

Stebbings

, at 467-468, on the basis set out in his judgment in

R v S (A Child) (No 2)

83 In Punch v The Queen (1993) 9 WAR 486, the applicant drove a stolen motor vehicle, at excessive speed, into an intersection, against red traffic lights, and collided with another motor vehicle, killing its driver. The applicant fled the scene. At the time of the offence, he was under the influence of alcohol, to some extent, and this clouded his judgment, and incapacitated him from driving in a proper manner. The brakes of the applicant's motor vehicle were defective. At the time of the offence, the applicant was on bail for numerous minor offences committed in the immediately preceding two-month period. He had a long history of dishonesty and violence, and a childhood of hardship, deprivation and institutionalisation. The primary Judge sentenced the applicant to 10 years' imprisonment, without eligibility for parole, and ordered that the sentence be served cumulatively upon a sentence of 2 years' imprisonment imposed by a Magistrate for the offences for which he had been on bail.
(Page 39)

The Court of Criminal Appeal dismissed the applicant's appeal. Murray J (with whom Pidgeon J agreed) said, at 500 - 501:

"The intoxication of the applicant provided some explanation, but no excuse, for the extremely serious driving misconduct in which the applicant had engaged for an appreciable period of time and over some distance. That misconduct occurred on busy roads and culminated in him driving through a busy intersection at peak hour and against red lights. He exhibited a wilful disregard for the lives and safety of other innocent road users. His conduct was appalling. It certainly merits punishment in the upper range of sentences appropriate for manslaughter. This was, I think, very much a case in which it was appropriate to describe the applicant's behaviour as transcending recklessness or gross negligence. His culpability was greater and required for the protection of the community to be marked by a sentence of appropriate severity to deter him and other like-minded individuals from such behaviour. The consequences in the destruction of innocent life were horrendous.

He had not the mitigation of youth upon his side and nor, I think, was there anything in the circumstances of the commission of the offence, or in his personal circumstances, which was mitigatory in character. He had a very bad record and had for many years displayed wilful disregard for the law, the property of others and in particular, wilful disregard for the person of others. He displayed no remorse in his behaviour immediately after the commission of the offence, or later."

84 In Clinch v The Queen [1999] WASCA 57, the applicant was convicted, on his own pleas of guilty, of two charges of aggravated burglary, one charge of stealing and wilfully driving a motor vehicle in a reckless manner, and one count of unlawfully killing another person. He was sentenced to 12 months' imprisonment on each of the counts of aggravated burglary, 12 months' imprisonment in respect of the stealing and driving of the motor vehicle, and 8 years' imprisonment on the count of unlawful killing. The primary Judge ordered that the three terms of 12 months' imprisonment be served concurrently with each other and with the sentence of 8 years' imprisonment. The primary Judge refused to make a parole eligibility order. The applicant was 19 years of age at the time of sentencing. He had a very serious record of offending with many convictions involving stealing and driving a motor vehicle. He also had
(Page 40)

several convictions for breach of bail conditions. Notwithstanding that he had been disqualified from driving for life, he continued to steal and drive motor vehicles. The circumstances of the offence of unlawful killing were these. After stealing a motor vehicle, the applicant was observed by the police to be driving the vehicle in a dangerous manner. The police, who were driving a fully marked police pursuit vehicle, followed the applicant. They activated their blue lights and siren. The applicant refused to stop and attempted to evade the police by travelling on the incorrect side of the road and at a high speed. The police abandoned the pursuit, but the applicant continued driving in that manner. At a crest in the road the applicant collided head-on with another vehicle, and the driver of the other vehicle died as a result of the injuries he sustained. The applicant received minor injuries. At the time of the collision he was significantly affected by alcohol and cannabis, and was not in a fit state to drive. The applicant applied for leave to appeal against the primary Judge's refusal to make a parole eligibility order. The Court of Criminal Appeal dismissed the application.

85 In D'Amico v The Queen (2000) 33 MVR 148, Ipp J (with whom Kennedy and Murray JJ agreed) reiterated that the circumstances which can give rise to manslaughter are infinitely various and in consequence the establishment of a "tariff" for the offence is impossible.

86 In White v The Queen (2003) 39 MVR 157, the applicant, who was aged 42 years, drove a borrowed motor vehicle at night in Northam. There was a passenger in his vehicle. The applicant was driving at about 60 to 70 kilometres per hour. The speed limit was 50 kilometres per hour. The applicant approached a traffic intersection. At the intersection there was a stop sign facing him, which was clearly visible. As the vehicle approached the intersection, the passenger warned the applicant to watch out because there was a stop sign approaching. The applicant apparently responded, with some sarcasm, "What stop sign?". He accelerated through the intersection and collided with another vehicle containing a young married couple and their two children. The married couple were killed. The applicant had a blood alcohol level of 0.072 per cent. He had never held a motor vehicle driver's licence and had only driven for short periods. Immediately after the collision, the applicant, who was uninjured, ran from his vehicle and went to the Northam police station where he was taken into custody. He pleaded guilty, at the first opportunity, to two counts of unlawful killing. The primary Judge sentenced the applicant to 10 years' imprisonment with eligibility for parole. The applicant applied for leave to appeal against the sentence. The Crown accepted, before the Court of Criminal Appeal, that the

(Page 41)

sentence imposed on the applicant was severe, but submitted that no error had been demonstrated. The Court dismissed the application for leave to appeal.

87 It should be noted, of course, that the authorities I have reviewed in relation to the sentences which have been imposed for motor vehicle manslaughter were decided before the enactment of the Sentencing Legislation Amendment and Repeal Act2003 (WA). The transitional provisions introduced by that Act require that a court which has decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the fixed term that would have been imposed under the law as it stood prior to the Act.

The effect of the suspension and subsequent cancellation of the early release order in respect of the appellant

88 I have mentioned that, on 9 March 2005, the early release order in respect of the appellant was suspended. By s 68(1) of the Sentence Administration Act 2003 (WA), if an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases, is not entitled to be released until he or she has served the whole of that term. Section 68(5) of that Act provides that nothing in s 68 prevents another early release order being made under the Act in respect of a prisoner. Also, see s 67 and s 69 of the Sentence Administration Act in relation to the cancellation of an early release order in respect of a prisoner serving a fixed term. Accordingly, on 9 March 2005, the appellant resumed serving the 4-year term of imprisonment which was imposed on him on 28 January 2003.

Were the sentences imposed by the learned Judge concurrent with, or cumulative on, the 4-year term imposed on 28 January 2003?

89 As I have mentioned, the learned Judge ordered that the term of 3 years' imprisonment which he imposed be served concurrently with the 8-year term which he imposed. His Honour did not, however, state whether the terms of 8 years and 3 years were to be served concurrently with, or cumulatively on, the term of 4 years' imprisonment which was imposed on 28 January 2003. His Honour did not refer to any provisions of the Sentencing Act or the Sentence Administration Act. He plainly contemplated, however, that the appellant should first serve the concurrent terms of 8 years and 3 years, and then serve the balance of the 4-year term. His Honour said:

(Page 42)

"In relation to the stealing of the motor vehicle you are sentenced to three years' imprisonment concurrently. As to parole, I don't make you eligible for parole because the offences are serious, particularly the unlawful killing offence. … That means that you will spend the time in custody but you will serve this sentence first and it will be up to the Parole Board whether they will grant you parole at the expiration of this sentence. That's the sentence of the court. …"

90 The learned Judge appears to have understood that an order was not required to make the concurrent terms of 8 years and 3 years cumulative on the 4-year term. The following exchange occurred between his Honour, counsel for the respondent (Mr Morgan) and counsel for the appellant (Mr Hope) at the sentencing hearing on 4 November 2005:

"HEALY DCJ: In the event that there is no parole eligibility order made do I understand the situation correctly that the non-parole period sentence will be served first and then the Parole Board will look at the matter at the end of the expiration of that sentence.

MORGAN, MR: Yes, that's right.

HEALY DCJ: Do you agree with that?

HOPE, MR: Yes, I do."

91 Section 88 of the Sentencing Act provides, relevantly:

"(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).

…

(3) If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously

;

(b) the offender is then also sentenced to serve another fixed term,

the sentencing court may order that -

(Page 43)

(d) the fixed term is to be served partly concurrently with the other fixed term.

(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.

…"

In the present case, the effect of s 88(1) was that the concurrent terms of 8 years and 3 years imposed by the learned Judge would be served concurrently with the 4-year term, unless his Honour made an order under s 88(3).

92 Rule 49(1) of the Criminal Procedure Rules 2005 (WA) provides that the clerk of arraigns must issue a certificate, in the form of Form 13, of the final outcome of a charge before the court and the orders made as a result. Form 13, which is headed "Certificate of final outcome of charge", makes provision, in a section headed "Final outcome Part 2", as follows:

Final outcome

Part 2

[Attach copies of warrants or orders issued]

Date:

Sentence imposed -

Other orders made on sentencing -

93 In the present case, the Form 13 signed by the learned Judge and the clerk of arraigns was, relevantly, in this form:

Final outcome

Part 2

Date: 5 November 2005

Sentence imposed -

•

Count 1 - 8 years imprisonment

•

Count 2 - 3 years imprisonment concurrent

•

No parole

(Page 44)

The Form 13 referred solely to the "Sentence imposed" in relation to the offences the subject of this appeal, and did not specify any "Other orders made on sentencing". This confirms that the learned Judge did not make an order that the concurrent terms of 8 years and 3 years be served cumulatively on the 4-year term. His Honour merely assumed, incorrectly, that the appellant would first serve the concurrent terms of 8 years and 3 years, and then serve the balance of the 4-year term. As I have mentioned, by s 88(1), all of those terms are concurrent unless an order is made under s 88(3).

The effect of s 7 of the Sentence Administration Act

94 Section 7 of the Sentence Administration Act governs the order in which multiple sentences are to be served. It provides, relevantly, as follows:

"(1) In this section -

'fixed term'

includes a period of imprisonment ordered under section 58, 59 or 119A of the

Sentencing Act 1995

;

'non-parole period', in relation to a parole term, means the period that under section 93(1) of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole.

(2) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order -

(a) firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;

(c) thirdly, subject to section 94 of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after

(Page 45)

the end of any non-parole periods are to be served -

(i) cumulatively if the terms are cumulative;

(ii) concurrently if the terms are concurrent or partly concurrent.

…

(4) If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly concurrently with another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (1) [sic]."

The reference in s 7(4) to "subsection (1)" is a patent error. It was intended, no doubt, to refer to subsection (2).

95 Section 7(2) provides for the order in which a prisoner who is sentenced to serve two or more fixed terms of imprisonment is to serve those terms. The subsection stipulates an order of priority as between terms "that are not parole terms" (which are to be served first), "non-parole periods" of terms that are parole terms (which are to be served second) and "the balance of any parole terms after the end of any non-parole periods" (which are to be served third). The subsection also stipulates an order of priority as between:

(a) terms that are not parole terms themselves (which are to be served according to whether they are concurrent, partly concurrent or cumulative with one another);
(b) non-parole periods of terms that are parole terms themselves (which are to be served according to whether they are concurrent, partly concurrent or cumulative with one another); and
(c) the balance of any parole terms after the end of any non-parole periods (which are to be served cumulatively if the terms are cumulative or concurrently if the terms are concurrent or partly concurrent).

96 The provisions of s 7(2) apply, ordinarily, where a prisoner is sentenced, in the course of a single sentencing process, to serve two or more fixed terms. However, by s 7(4), the provisions of s 7(2) apply if,
(Page 46)

while serving a fixed term, a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly concurrently with another term. In those circumstances, service of the former fixed term (that is, the fixed term which the prisoner is serving when he is sentenced to serve another fixed term) is suspended "if necessary" so that the terms can then be served in the order required by subs (2). Section 7(4) applies only where the new fixed term is ordered to be served cumulatively on the earlier fixed term. It does not apply where the new fixed term is ordered to be served partly concurrently with the earlier fixed term (and a new fixed term cannot be served wholly concurrently with an earlier fixed term, in that the earlier term will have already been partly served). Accordingly, where a prisoner is serving the non-parole period of a parole term, and he or she is sentenced to serve another fixed term which is not a parole term, and the sentencing Judge orders that the new fixed term be served cumulatively on the earlier fixed term, then, by s 7(4), service of the earlier fixed term is suspended so that the terms can be served in the order required by pars (a), (b) and (c) of s 7(2).

97 In the present case, therefore, the failure of the learned Judge to order that the concurrent terms of 8 years and 3 years imposed by him be served cumulatively on the 4-year term meant that the concurrent terms of 8 years and 3 years would be served concurrently with the 4-year term (strictly, partly concurrently, in that the 4-year term has already been partly served). The respondent did not seek to appeal to this Court in relation to that outcome. The effect of his Honour's failure to order that the concurrent terms of 8 years and 3 years be served cumulatively on the 4-year term was acknowledged before this Court by counsel for the respondent. Counsel accepted that the whole of the outstanding parole days "owed" by the appellant would be subsumed within the fixed terms imposed by his Honour.

98 In Maroney v The State of Western Australia [2006] WASCA 130, later sentences, which were parole terms, exceeded the outstanding parole days "owed" by the appellant. In contrast with the present case, it is clear from the reasons of the sentencing Judge in Maroney that his Honour made an order under s 88(3)(c) of the Sentencing Act that the later terms be served cumulatively on the earlier term in respect of which there were outstanding parole days. His Honour said, in the course of his sentencing remarks:

(a) at T/84:

(Page 47)

"I bear in mind, of course, the sentences which you have previously had imposed upon you and which you are currently serving. … It seems to me that the sentences I impose ought to be imposed cumulatively upon … the unexpired portion of those terms and I do so order"; and

(b) at T/89:

"I have already mentioned the aggregate term of imprisonment which I impose is one of 12 years' imprisonment, and I do order eligibility for parole, and I make those sentences cumulative upon the terms presently being served."

On appeal in

Maroney

, Martin CJ said, at [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 relevance, for sentencing purposes, of the outstanding parole days "owed" by the appellant

99 In McLean v The Queen [1999] WASCA 209, the applicant was sentenced for two offences of aggravated burglary committed while he was on parole for other offences. His parole was cancelled and he had 1,773 parole days outstanding. The primary Judge imposed an overall effective sentence of 6 years' imprisonment. The Court of Criminal Appeal held that the individual sentences were not manifestly excessive, but allowed the appeal on the ground that the primary Judge had failed to take into account the outstanding parole days. Ipp J (with whom Wallwork and Parker JJ agreed) said, at [22]:

"In my view, as the learned Judge did not have regard to the 1773 outstanding parole days, he erred in the exercise of his discretion and, by s 689(3) of the

Criminal Code

, this Court is required to consider whether a different sentence should be passed. …"

Later, at [28], his Honour said:

"I have previously concluded that there was an error in the sentencing process resulting from the omission to take into

(Page 48)

account the 1773 outstanding parole days. The totality principle requires this to be borne in mind when considering the overall effective sentence. The sentence should be proportionate to the degree of criminality involved and regard must be had to the exponential effect of the increased term of imprisonment resulting from sentences imposed for multiple offences:

Jarvis v R

((1993) 20 WAR 201). Even though the individual sentences imposed by the learned sentencing Judge were not in themselves excessive, and it was appropriate in principle for the sentences in respect of the first and second counts to be cumulative, nevertheless, when regard is had to the 1773 days yet to be served by the applicant, the totality principle requires some further amelioration of the sentences."

100 In summary, although the possibility that an offender might be released on parole is irrelevant to the sentencing process, outstanding parole days constitute a term of imprisonment which the offender is obliged to serve, and that term should be taken into account when assessing the totality of the overall term of imprisonment to be imposed for the offences in question. Also see Readhead v The State of Western Australia [2005] WASCA 191 at [27] - [37]; Maroney at [24] - [25].

101 As I have mentioned, the appellant has been in custody since 9 March 2005, when he committed the offences with which this appeal is concerned. As at 4 November 2005, when the learned Judge sentenced the appellant, there were 734 outstanding parole days "owed" by the appellant. Between 9 March 2005 and 4 November 2005 the appellant had been serving outstanding parole days.

102 It is apparent from the sentencing remarks of the learned Judge that, in deciding to impose the terms of 8 years and 3 years, his Honour took into account the outstanding parole days. His Honour expressly noted their details. As I have mentioned, however, the effect of his Honour's failure to order that the concurrent terms of 8 years and 3 years be served cumulatively on the 4-year term was that the outstanding parole days were subsumed within the fixed terms imposed by him.

How should the appellant be re-sentenced?

103 First, I will deal with the count of unlawful killing.

104 The appellant was extremely reckless and deliberately disregarded the safety of his passenger, Mr Bolton, and other road users. He was determined to escape from the police officers. He was willing to drive at

(Page 49)

a speed significantly in excess of the speed limit in a residential area, drive through a barrier at the end of a cul-de-sac, ignore a stop sign, and drive on a footpath, in his endeavours to achieve that objective. The risk of serious injury or death to his passenger (or, indeed, to others) was obvious. After the accident the appellant fled. He was not under the influence of alcohol, but an analysis of a blood sample taken from him after the accident revealed traces of substances which demonstrated that he had been using cannabis. The appellant was on parole when the offences were committed, having been released from custody only 19 days earlier. He did not have a motor vehicle driver's licence; indeed, at the time he was disqualified from holding or obtaining a licence. In my opinion, the criminality of the appellant's behaviour places the offence of unlawful killing in the worst category of case.

105 The principal mitigatory factor is the appellant's plea of guilty at the earliest opportunity and his remorse in relation to the death of Mr Bolton. At the time of the offence the appellant was aged 25 years: his relative youth and the dysfunctional family environment of his early years are mitigatory, to some degree, but they are not factors of significance.

106 Otherwise, there is nothing in the circumstances of the commission of the offence or in the appellant's personal circumstances that is mitigatory in nature. He has a very serious record of prior convictions, including several convictions for serious offences involving motor vehicles. His prior criminal record is not, of course, an aggravating feature of the offences for which he is being sentenced (s 7(2) of the Sentencing Act; Benter v The State of Western Australia [2005] WASCA 245), but his record demonstrates that he is not entitled to any leniency for good character. It is, however, an aggravating feature that, when the appellant committed the offences with which this appeal is concerned, he was on parole for a term of imprisonment which had been imposed for stealing a motor vehicle and wilfully driving it in a manner that constituted the offence of reckless driving.

107 In my opinion, a starting point of 16 years' immediate imprisonment (before taking into account mitigatory factors and before the application of the transitional provisions) is appropriate. A discount of 25 per cent, for all matters of mitigation, should be made. The discount and the subsequent application of the transitional provisions produce a sentence of 8 years' immediate imprisonment, which is the sentence the learned Judge imposed. This sentence is severe, but it reflects the criminality of the appellant's behaviour, is necessary to protect the community, and gives effect to important considerations of personal and general deterrence.

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108 I turn now to the count of stealing.

109 The offence of stealing a motor vehicle, without the aggravating feature that the offender, subsequently, wilfully drives the vehicle in a manner that constitutes the offence known as reckless driving, carries a maximum penalty of 7 years' imprisonment. See ss 371A and 378 of the Criminal Code. By s 378(2)(a), where the offence of stealing is associated with reckless driving of the kind I have just mentioned, the maximum penalty is increased to 8 years' imprisonment.

110 In the present case, the reckless driving relied on by the respondent in relation to the offence of unlawful killing is identical to the reckless driving relied on in relation to the offence of stealing. In those circumstances, it is necessary to have regard to the observations of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610, at 623 [40]:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

Later, their Honours said, at 623-624 [43] - [45]:

"The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

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To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (

Mill v The Queen

(1988) 166 CLR 59)."

Also see their Honours' comments at 624 [49].

111 In my opinion, the episode of reckless driving relied on by the respondent is punished in the context of the sentence imposed for the unlawful killing. It should not be taken into account in determining the sentence imposed for the stealing. The offence of stealing is, however, serious in that the motor vehicle was significantly damaged in the accident. It is also necessary to take into account the appellant's plea of guilty at the earliest opportunity, his personal circumstances (including his record of prior convictions) and the fact that he was on parole when the offence was committed.

112 In my opinion, a starting point of 3 years' immediate imprisonment (before taking into account mitigatory factors and before the application of the transitional provisions) is appropriate. A discount of 25 per cent, for all matters of mitigation (being those matters I have mentioned in the context of considering the offence of unlawful killing), should be made. The discount and the subsequent application of the transitional provisions produce a sentence of 18 months' immediate imprisonment.

113 It is now necessary to consider the issue of cumulation or concurrence and the issue of totality in relation to the terms of 8 years' and 18 months' imprisonment, as between themselves, and also in relation to the term of 4 years' imprisonment imposed on 28 January 2003.

114 In my opinion, the term of 18 months' imprisonment should be served concurrently with the term of 8 years' imprisonment. Those sentences should commence as from 4 November 2005, being the date on which the learned Judge sentenced the appellant. A parole eligibility order should not be made in respect of those terms.

115 I consider that the totality principle, and the respondent's decision not to appeal to this Court against the learned Judge's failure to order that the terms he imposed be served cumulatively on the 4-year term, requires that

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an order not be made under s 88(3)(c) of the

Sentencing Act

. In other words, the concurrent terms of 8 years and 18 months will be served concurrently with the 4-year term.

Conclusion

116 I would allow the appeal, and re-sentence the appellant in the manner set out in these reasons.

Penny v The State of Western Australia

[2006] WASCA 173

31 AUGUST 2006

PENNY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 173