Quartermaine v The Queen - [2002] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: QUARTERMAINE -v- THE QUEEN [2002] WASCA 60

CORAM: WALLWORK J
ANDERSON J
STEYTLER J

HEARD: 6 FEBRUARY 2002

DELIVERED : 21 MARCH 2002

FILE NO/S: CCA 241 of 2000
CCA 259 of 2000
CCA 8 of 2001

BETWEEN: PHILLIP MERVYN QUARTERMAINE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Applications for leave to appeal three sentences of imprisonment - Applicant had received a 6 year sentence for an armed robbery offence - 19 years of age at time of offence - 6 year term order to be cumulative on earlier 4 1/2 year term - No order for parole - Not credited for 38 weeks spent in custody - On appeal

Legislation:

Sentencing Act 1995, s 87

Result:

Appeal allowed
6 year term reduced to 40 months' imprisonment
Credit allowed for time in custody
Eligibility for parole ordered

Category: B

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr D Dempster

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Cameron v The Queen [2002] HCA 6
King v The Queen [2001] WASCA 198
Lowndes v The Queen (1999) 195 CLR 665
R v Ward (1999) 109 A Crim R 159
The Queen v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Fisher v R [1999] WASCA 122
Heferen v R (1999) 106 A Crim R 89
Mill v The Queen (1988) 166 CLR 59
Pezzino v R (1997) 92 A Crim R 135
Clinch v R [1999] WASCA 57
King v The Queen [2001] WASCA 198

WALLWORK J: These are reasons for judgment after the hearing of three applications for leave to appeal against sentence.
The first application for leave to appeal was concerned with a 3 year term of imprisonment which was imposed on the applicant in the District Court at Perth on the 31 October 2000. The relevant offence had been committed by the applicant on the 11 December 1998 at Pinjarra, just over a month after he reached 18 years of age. The applicant had entered a private house and stolen the sum of $2,437 from a bench in the kitchen. The money was the takings from a delicatessen.
The offence occurred at 5.00 am in the morning. The back door of the home was open and there was a light on. The occupier was watching television. The Crown alleged that the applicant had waited outside the premises for some time with the knowledge that the householder was up and about. The applicant intended to steal the money. He later used a screw driver to threaten a neighbour when escaping from the area.
The applicant had pleaded not guilty. He was convicted after a trial. The owner of the house testified that the money was in a calico bag with his deposit book and had been organised ready for banking. The owner heard a sliding door of the house move and when he went to the kitchen where the money was, he saw someone leaving and then jumping the back fence. He recognised the offender as someone he had previously seen in his shop. Later police officers found a sum of $1,505 in cash and notes in the applicant's wallet. The notes were bundled together in the way in which the owner had put them together. The applicant told the police officers that he had taken the money for drugs.
When sentencing the applicant, the learned Judge said that there had been $1,565.70 in cash and more than $800 in cheques in the bag which had been stolen. Most of the cash and cheques had been recovered although a small quantity of cash was unaccounted for.
The Judge said that the applicant was only 20 years of age but he had a significant past record in the Children's Court. His performance on intensive supervision orders from that Court had been described as "abominably poor". The applicant had a serious drug problem, having commenced using cannabis at the age of 14 years. He had then progressed to the intravenous use of amphetamines and heroin. At one stage his consumption of amphetamines and heroin was costing him up to $1,500 per week.
His Honour noted that the applicant had not undertaken any form of treatment and was said to be unwilling to address his risk related behaviour and substance abuse. His Honour said that the offence of stealing the money had obviously been a premeditated and planned offence because the applicant had been waiting outside the premises for some time. His Honour said the applicant had been willing to risk confrontation and to wield a weapon when confronted by a neighbour after the offence had occurred.
His Honour said:
"An offence such as this is an offence which would ordinarily justify a sentence of perhaps four years' imprisonment, but having regard to your young age and the time you have spent in custody for this and other matters, I am going to reduce that to three years' imprisonment …"
The applicant was made eligible for parole.
On the hearing of this application for leave to appeal, the applicant accepted that the reduction of 1 year from the starting point of 4 years' imprisonment was adequate having regard to the applicant's age and the fact that he had spent 93 days in custody prior to being sentenced. However, the submission was made that the starting point of 4 years' imprisonment for an offence of this nature was too high. That was the sole ground of the application.
In answer to that proposition counsel for the respondent said that the maximum penalty available to the learned Judge had been a penalty of 20 years' imprisonment. He referred to the reasons of Malcolm CJ, with whom Ipp and White JJ agreed, in R v Ward (1999) 109 A Crim R 159 where the Chief Justice said at [5]:
"The Courts in this State have taken the view for some considerable period that the offence of burglary is a serious offence, the prevalence of which has been the subject of considerable community concern. In a number of cases the Court has held that the range of sentences imposed for burglary offences when they are committed on people's homes, particularly when persons are present at the time when the offences are committed, should be firmed up: Pezzino v R 1997 92 A Crim R 135 per Franklyn J at 138; and per White J at 148; Nguyen v R; Tran v R [1999] WASCA 54 per Kennedy J at [11]; and Heferen v R [1999] WASCA 81 at [35] per Anderson J. Parliament recently singled out the offence for special treatment by increasing the maximum penalties for domestic burglaries in 1996. It is necessary that courts give effect to the reasons for these changes, see R v Peterson [1984] WAR 329 per Burt CJ at 334."
It was submitted for the respondent that the applicant had prior knowledge of the calico bank bag which was inside the premises. He was armed and had used a screw driver to threaten a neighbour in order to make good his escape. There had been no deduction available for a plea of guilty or for remorse shown.
In Lowndes v The Queen (1999) 195 CLR 665 at 671 the Chief Justice of the High Court and the other six justices of that Court said:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established … Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
In this case the learned sentencing Judge was sentencing the applicant for a serious case of aggravated burglary where there had been no responsibility accepted by the applicant for the offence prior to his conviction - cf Cameron v The Queen [2002] HCA 6 . In my opinion, it could not be said that the sentence of 3 years' imprisonment was too severe in all the circumstances. I would dismiss the application.
The second application made by the applicant was application No 259 of 2000. That application was formally abandoned at the hearing.
The third application was No 8 of 2001. It was made in connection with a term of 6 years' imprisonment for an offence of armed robbery which term was ordered to be served cumulatively upon the sentences which the applicant was then serving which had been imposed in the District Court. The relevant term of 6 years' imprisonment was imposed on the 1 December 2000.
At the same time as he received the 6 year term, the applicant was sentenced for breaches of intensive supervision orders, the first of those having been imposed on the 9 September 1998 when the applicant was convicted of one count of armed robbery, one count of stealing, one count of attempted armed robbery and two counts of attempted robbery with personal violence. For the breach of that intensive supervision order, the applicant was sentenced to a term of 5 years' imprisonment for the armed robbery to be served concurrently with the sentence of 6 years' imprisonment which is the subject of this application. For the offence of stealing, the applicant was sentenced to 6 months' imprisonment to be served concurrently with the earlier sentences. For the offence of attempted armed robbery the applicant was sentenced to 3 years' imprisonment to be served concurrently with the earlier sentences, and for the two offences of attempted armed robbery with personal violence the applicant was sentenced to a term of 4 years' imprisonment for each offence, to be served concurrently with the sentences which had already been imposed.
At the same time as the above sentences were imposed, the applicant was sentenced in relation to other matters for which he had been placed on an intensive supervision order in the Children's Court on the 22 October 1998. Those offences were four offences for breach of bail, in relation to which the applicant was sentenced to a term of 1 month's imprisonment on each, to be served concurrently with the earlier sentences. For one count of assaulting a police officer, the applicant was sentenced to 1 year's imprisonment, to be served concurrently with the earlier sentences. For one count of assault occasioning bodily harm at the Banksia Hill Juvenile Detention Centre, where the victim had received a broken nose, the applicant was sentenced to a term of 2 years' imprisonment to be served concurrently. On one count of having no motor driver's licence whilst he was driving under suspension, the applicant was sentenced to a term of 6 month's imprisonment concurrent. His motor driver's licence was suspended for a period of 2 years cumulative on earlier disqualifications. For one count of possession of cannabis the applicant was fined $100.
At the time of imposing the abovementioned sentences, the learned Judge noted that the applicant was then 20 years of age. He had been 19 years of age at the time of the robbery offence the subject of this application, for which he was sentenced to 6 years' imprisonment. His Honour said that while ordinarily a parole order should be made where a person was so young, both the pre‑sentence report and the sentencing remarks of other judicial officers demonstrated that the applicant had had every opportunity to reform and comply with the law. However, he had repeatedly abused the opportunities which had been offered to him.
His Honour said that no recommendation had been made for a parole order and in his view, it was clearly a case where there was nothing in the applicant's antecedents, apart from his age, which pointed towards the appropriateness of a parole order. His Honour said:
"Indeed in my view your continuous course of criminality is such that a long parole term in your case is probably undesirable in that it is highly likely to be breached and will only result in your receiving a further term of imprisonment."
Having made the above observations the learned Judge ordered that in relation to each of the prison terms that he had imposed on the 1 December 2000, no parole order would be made. He noted that the terms of imprisonment which he had imposed were cumulative upon the earlier terms of imprisonment which had been imposed upon the applicant in the District Court, in relation to which parole orders had been granted. His Honour said:
"The intention of the sentencing structure that I have imposed is that after you complete the sentences that I have imposed upon you today and the custodial portion of the District Court sentences, you will be eligible for a period of 18 months parole from the District Court matters. That, in my view, is a sufficient parole period in the circumstances and I have said there is nothing about your conduct that brings you before this court that would entitle you to any further parole component."
The applicant argued that the sentence which was imposed for the armed robbery, being 6 years' imprisonment to be served cumulatively upon the existing 4 1/2 year aggregate sentence to which the applicant had already been sentenced in the District Court, was too severe.
Counsel for the applicant also submitted that the applicant had been charged with the relevant armed robbery offence on the 17 January 2000. Thereafter he had served approximately 9 months in custody until the 11 October 2000. That period had not been taken into account in any of the sentences which had been imposed upon the applicant.
The applicant was taken into custody on the 8 January 2000 before he was charged with the relevant armed robbery offence on the 17 January 2000. On 8 January 2000 he had been stopped by traffic police in Kelmscott and charged with driving under suspension, wilfully misleading police officers and breach of bail, the last offence arising from his failure to appear in the Perth Court of Petty Sessions on the 23 December 1999. The armed robbery offence the subject of this application had been committed on the 5 January 2000.
It was conceded by the respondent that the applicant had not been given credit for the period he had been in custody from the 17 January 2000 to the 11 October 2000, amounting to approximately 9 months (actually 38 weeks). It was also conceded for the applicant, that the relevant period which had not been taken into account should be confined to that period between the 17 January 2000 and the 11 October 2000, because on the 12 October 2000 the applicant had been found guilty after a trial. It was implicit in the learned sentencing Judge's sentencing remarks for that last mentioned offence, that his Honour had taken into account the two weeks spent in custody after 11 October 2000. The total period which was not taken into account can be taken to be 38 weeks.
It was submitted for the applicant that the substantial reason the applicant had been in custody from the 17 January 2000 to 11 October 2000 was for the relevant armed robbery offence; that the period between the 17 January 2000 and the 11 October 2000 had not been credited to him in connection with any of the sentences he had received. Therefore his sentence was too severe.
In King v The Queen [2001] WASCA 198 Steytler J, when considering the effect of s 87 of the Sentencing Act 1995, which effectively provides that where an offender spends time in custody with respect to an offence and for no other reason and is later sentenced for that offence, the Court may take that time spent in custody into account in the sentence, said:
"Read literally, that section would have the effect that, when an offender has been in prison pending hearing on multiple charges, that offender could never, when sentenced, have his term of imprisonment reduced by an appropriate period accordingly, or his term of imprisonment ordered to be taken to begin on or after the date when the custody began (but before the date of sentencing) if, at the time of sentencing, that offender was being dealt with for only one or some of those charges. Indeed, this would be so even if the other charge or charges had previously been dealt with and no credit given in respect of the time spent in custody. That could hardly have been the intention of the Legislature. Rather, the Legislature must have intended only that credit should not be given in respect of time in custody when that time was not, for sentencing purposes, able to be attributed solely to the offence or offences (see, in this respect, s 10(b) of the Interpretation Act 1984) in respect of which the offender was then being sentenced. That being, in my respectful opinion, the evident purpose or object of s 87, the preferred construction of that provision is that which promotes that purpose or object (as to which see s 18 of the Interpretation Act) rather than a literal interpretation which, in my opinion, would plainly lead to an absurd and irrational result which could not have been intended (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 - 321)."
In the same decision Wheeler J said:
"It is at least arguable that the substantial reason for the applicant being in custody was his being charged with these offences; R v Jones, unreported; SCt of WA (Scott J); Library No 970210; 30 April 1997."
Her Honour in that last mentioned comment was referring to the words of Scott J in The Queen v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997 where his Honour said, with reference to the words "and for no other reason" in s 87 of the Sentencing Act 1995:
"In view of the material placed before me as at the date of sentence and in the light of submissions made by both counsel for the offender and the Crown, I came to the conclusion that the only substantial reason why the offender was being kept in custody related to the armed robbery charge and that there was no other reason offered as to why he was then retained in custody in the face of the bail order made by Walsh J. For that reason I reached the view that the sentence could properly be back dated to 2 November 1996 in accordance with s 87 of the Sentencing Act 1995."
During argument in this application Steytler J said:
"The words of the section can't possibly be read literally because otherwise whenever anybody was imprisoned on multiple charges, you would never be able to credit the time in custody in respect of any of them."
With respect, I agree with Steytler J's view of this section. The purpose of the section is that there should be a credit given to an offender who has been held in custody awaiting sentence, when he has not been credited with the relevant time spent in custody and in all the circumstances it is just that he or she should be given credit for that time spent in custody awaiting the disposition of the relevant charge or charges.
In my view, in the light of the history which I have set out earlier in these reasons, that was the situation here. The applicant should have been credited with the period he had spent in custody from the 17 January 2000 to the 11 October 2000. The period from 17 January 2000 to 11 October 2000 has not been taken into account in any of the sentences which the applicant has received. It is a lengthy period.
When it is recognised that 38 weeks in custody equates to a sentence of 14 months' imprisonment where no parole eligibility order has been made, in all the circumstances of this case, in my view, 14 months should have been deducted from the appropriate sentence to be imposed for the armed robbery offence.
The relevant armed robbery occurred at a service station. When sentencing the applicant the learned Judge said that at about 4.00 am on the 5 January 2000 the applicant had gone to a service station in Guildford Road with the intention of committing an armed robbery. He had parked a vehicle alongside the service station to facilitate his getaway. He had then entered the service station. He had initially spoken to three people who were at the microwave section of an attached store. He asked them for cannabis and heroin but they did not have any. He then went to the lone attendant and demanded money. At that time the applicant had a steering wheel lock in his possession. He smashed the lock against a plastic lolly container on the counter to indicate he was serious about the robbery and was prepared to use violence if necessary. The shop attendant opened the till and took approximately $500 from it. The applicant then demanded that the attendant open a second till. However, the attendant told him that there was no money in it. The applicant confirmed that that was the case. He then asked the attendant to unlock the safe but the attendant was unable to do so. In addition to the $500 he took from the first till, the applicant also stole a computer.

The learned Judge told the applicant that he had not co‑operated with the police and he was not entitled to a discount for a plea of guilty as he had taken the matter for trial - cf. Cameron v The Queen (supra). His Honour recited the details of the previous sentences which the applicant had been ordered to serve in the District Court. He was fully aware of the applicant's background.
In my opinion, and having in mind that the applicant was already serving an aggregate sentence of 4 1/2 years' imprisonment, the 6 year term imposed for the armed robbery offence which was ordered to be served cumulatively on the earlier sentences, was too severe. Leaving aside the question of a credit for the time spent in custody, in my view a 4 1/2 year sentence to be served cumulatively on the earlier sentences which had aggregated 4 1/2 years would have been an appropriate sentence for the armed robbery.
From the appropriate 4 1/2 year term for the armed robbery I would deduct 14 months for the time the applicant had already spent in custody. That would result in a cumulative sentence for the armed robbery of 40 months' imprisonment to be served cumulatively on the earlier term of 4 1/2 years' imprisonment which the applicant was then serving.
The above order would necessitate a reduction of the 5 year term for the armed robbery the subject of the intensive supervision order dated 9 September 1998 to one of 40 months' imprisonment to be served concurrently. It would also necessitate a reduction to 40 months' imprisonment for the two concurrent terms of 4 years' imprisonment for each of the attempted armed robbery offences, the subject of the same intensive supervision order, with each sentence to be served concurrently with the earlier sentences.
In my view, the first ground of appeal would enable such a reduction and does not need to be amended.
The next ground of appeal argued was that the learned Judge erred by failing to order that the applicant be eligible for parole in respect of the sentences imposed.
When considering the matter of parole, as stated earlier in these reasons, the learned Judge said that whilst ordinarily a parole order should be made where an offender is so young, both the pre‑sentence report and the sentencing remarks of other Judges who had sentenced the applicant, demonstrated that he had had every opportunity to reform and comply with the law but had repeatedly abused the opportunities which had been offered to him. His Honour noted that no recommendation for parole had been made. In his view it was clearly a case where there was nothing in

the applicant's antecedents apart from his youth which pointed towards the appropriateness of a parole order. His Honour said:
"Indeed, in my view your continuous course of criminality is such that a long parole term in your case is probably undesirable in that it is highly likely to be breached and will only result in your receiving a further term of imprisonment. In relation to each of the prison terms that I have just imposed upon you therefore no order will be made."

Counsel for the applicant conceded that the learned Judge had considered all the relevant factors as to whether he should or should not grant parole. However it was submitted that the learned Judge had erred, when in a discussion with counsel prior to sentencing, his Honour had remarked that the applicant had had every opportunity on parole before. It was contended for the applicant and conceded by the Crown, that the applicant had never been on parole before.
At the hearing of this application counsel for the respondent submitted that most of the offences committed by the applicant had been committed whilst he had been on bail and that in general terms, his rate of offending suggested that he simply had no respect for court orders whatsoever.
In my view, in all the circumstances of this case, and where the two Judges who had imposed the earlier prison sentences upon the applicant had ordered eligibility for parole, and particularly in view of the age of the applicant, and his need for supervision in connection with his substance abuse, an order for eligibility for parole should have been made. In the long term it is in the community's interests that the applicant be encouraged in every way possible to lead a law abiding existence and to overcome his problems with substance abuse.
I would order that the applicant be eligible for parole with respect to the sentences imposed on the 1 December 2000.
The result is that I would allow the application for leave to appeal against the 6 year sentence and would reduce that sentence and the other sentences as outlined in these reasons. I would order that the applicant be eligible for parole with respect to all the sentences.
ANDERSON J: I have had the advantage of reading in draft the reasons for decision of Wallwork J. I agree with them and with the orders proposed by his Honour.

STEYTLER J: I have had the advantage of reading the reasons for decision of Wallwork J. I am in agreement with them, save in one respect. While I consider, in matter CCA 8 of 2001, that the 6‑year term imposed in respect of the armed robbery offence committed on 5 January 2000 was severe, having regard for the fact that it was to be served cumulatively on other sentences totalling 4 and a half years' imprisonment, I am not prepared to find that it was so severe as to fall outside an acceptable range.
Because I am in the minority in this issue, I will state my reasons only briefly.
The offences in respect of which a total of 10 and a half years' imprisonment was ordered to be served by the applicant comprised three counts of aggravated burglary, committed respectively on 21 November 1998, 11 December 1998 and 23 November 1999, two counts of stealing a motor vehicle, committed respectively on 21 November 1998 and 23 November 1999, the armed robbery committed on 5 January 2000 and breaches of intensive supervision orders imposed by the Supreme Court on 9 September 1998 and by the Children's Court on 22 October 1998. The intensive supervision order imposed by the Children's Court related to four offences of breach of bail, one count of assaulting a police officer, one count of assault occasioning bodily harm and one count of driving while the applicant's motor driver's licence was suspended. The offences in respect of which the Supreme Court had imposed an intensive supervision order were one of armed robbery, one of attempted armed robbery, one of stealing and two of attempted robbery with personal violence.
The applicant had consequently embarked upon a sustained period of offending, with most of the offences being very serious indeed.
It is, of course, well accepted that an appellate court will not simply substitute its own opinion as to the appropriate sentence for that of the sentencing authority. Before it will intervene, it must be demonstrated that the sentencing Judge fell into error. (See, for example, Thompson v The Queen (1992) 8 WAR 387 at 391 and see also Lowndes v The Queen (1999) 195 CLR 665 at 671 - 2). Having regard for the sustained and serious nature of the applicant's offending, I am not persuaded, even taking into account those circumstances which were mitigatory in effect, that the overall sentence of 10 and a half years' imprisonment was so excessive as to be outside an acceptable range.
It is quite plain from the sentencing Judge's remarks that he took into account the totality principle. His Honour specifically mentioned that he needed to take into account the fact that the applicant was already serving a total of 4 and a half years' imprisonment. However, he said, a cumulative sentence of 6 years' imprisonment in respect of the armed robbery, to be served concurrently with the various sentences imposed in respect of the (undoubtedly serious) offences the subject of the two intensive supervision orders, was appropriate.
I am not persuaded that his Honour made any error in that respect, the overall sentence being, as I have said, one which was, in my respectful opinion, within the bounds of a reasonable discretion.
The consequence is that while I, too, would grant the application for leave to appeal and allow the appeal in matter CCA 8 of 2001, I would allow that appeal only for the purpose of:
(a)crediting the applicant with the time which he had spent in custody by deducting, from the sentence of imprisonment imposed upon him in respect of the armed robbery, a period of 14 months; and
(b)declaring the applicant to be eligible for parole with respect to the sentences imposed on him on 1 December 2000.
I would, for the reasons given by Wallwork J, refuse the application for leave to appeal in matter CCA 241 of 2000.