Pickett v The State of Western Australia

[2004] WASCA 291

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   PICKETT -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 291

CORAM:   MILLER J

MCKECHNIE J
MCLURE J

HEARD:   19 NOVEMBER 2004

DELIVERED          :   19 NOVEMBER 2004

FILE NO/S:   CCA 95 of 2004

BETWEEN:   PATRICK EMMANUEL PICKETT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ROBERTS-SMITH J

Citation  :THE STATE OF WESTERN AUSTRALIA v PATRICK EMMANUEL PICKETT

File No  :INS 86 of 2004

Catchwords:

Criminal law - Sentencing - Armed robbery in circumstances of a carjacking - Refusal to order parole - Whether discretion miscarried - No new principles

Legislation:

Sentencing Act 1995, s 89

Result:

Leave to appeal refused

Category:    D

Representation:

Counsel:

Appellant:     Mr M J Aulfrey

Respondent:     Mr B Fiannaca

Solicitors:

Appellant:     Ian Hope

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Messiha v Royce [2004] WASCA 87

R v Wongawol (1998) 101 A Crim R 350

Yanko v The Queen [2004] WASCA 37

1. MILLER J:  I agree that leave to appeal should be refused for the reasons advanced by McKechnie J.  I agree with those reasons and I have nothing to add. 

2. MCKECHNIE J:  The appellant pleaded guilty to one count of armed robbery and one count of stealing a motor vehicle and driving recklessly, each offence occurring on 6 June 2002.  In addition, he was convicted on his own plea of certain matters under the Sentencing Act 1995 s 32. In essence, the criminal conduct concerned a car‑jacking of a vehicle at knife point and a subsequent evasion of police by driving at high speeds recklessly until the vehicle crashed. The appellant was on parole at the time.

3. The Judge sentenced the appellant to a term of 4 years' imprisonment to take effect from 26 April 2005.  The sentence was therefore a cumulative sentence.  He imposed no separate sentence on count 2 in conformity with the Sentencing Act s 11. He also fined the appellant for matters which do not now matter.

4. The appellant does not complain about the length of sentence but complains that the Judge refused to order parole.  In considering the question of parole, the Judge noted the pre‑sentence report and the fact that the appellant had had parole deferred as a result of poor prison conduct and was at high risk of re‑offending.  In the past the appellant had committed offences immediately upon release from prison and performed poorly on parole, resorting to amphetamine use. 

5. A psychological report indicated an antisocial personality disorder and the appellant was assessed as being at high risk of further offending.  He is considered to have little insight into his behaviour and has little empathy towards the victims of his crimes.  The pre‑sentence report observed:

   "The prognosis for Pickett remains poor and the concern must be the nature of his offending will ultimately result in a violent act that causes injury."

6. The Judge took considerable time and detailed other matters personal to the appellant.  In respect of parole the Judge specifically said:

   "So far as the question of parole is concerned, having regard to the seriousness of this particular offence and the circumstances of its commission, your very significant criminal record, the fact that you breached parole by the commission of this offence and

have breached parole and other orders in the past, your lack of insight and apparent disinterest in particular in or responding to any form of supervision in the community, I have come to the conclusion that you should not be made eligible for parole in respect of that sentence."

1. The appellant therefore satisfied all the criteria in s 89(4)(a), (b), (c) and (d) of the Sentencing Act. The grant or refusal of parole remains an exercise of discretion. The discretion remains at large despite s 89(4). However, when a Judge exercises a discretion to refuse parole in circumstances the discretion to do so is triggered by factors within s 89(4), it will be difficult to show a mis‑exercise of the discretion.

2. The Judge clearly took all factors into account and clearly exercised his discretion to refuse to order parole. I consider there is no substance in the contention that the Judge failed to take into account all relevant circumstances. In some cases of course the existence of the criteria in s 89(4) may be sufficient but it is not necessary to decide this case on that point because here, in any event, the Judge performed a two‑stage test. He found the existence of criteria and also separately considered and exercised his discretion.

3. In the present case, not only was it open to the Judge to refuse to order parole but, in my opinion, such a decision was inevitable.  I would therefore refuse leave to appeal. 

4. MCLURE J:  I also agree that leave to appeal ought to be refused generally for the reasons given by McKechnie J.  On the question of failure to refer to relevant matters, a failure by a decision‑maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered.  In the absence of credible evidence to the contrary, it is to be assumed that the decision‑maker has complied with all relevant duties and taken all relevant matters into account.  Having regard to the reasons of his Honour as a whole, I am satisfied that he did take all relevant considerations into account.