R v Jiminez

[1999] WASCA 7

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   STEWART -v- R [1999] WASCA 7

CORAM:   MALCOLM CJ

IPP J
WALLWORK J

HEARD:   15 MARCH 1999

DELIVERED          :   7 MAY 1999

FILE NO/S:   CCA 36 of 1998

BETWEEN:   RICHARD GREGORY STEWART

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Appeal against sentence - Applicant aged 23 years sentenced to 14 years' imprisonment without eligibility for parole having committed with a co-offender 22 offences of aggravated burglary one offence of armed robbery in company criminal damage one offence of deprivation of liberty and seven offences of stealing a motor vehicle - Applicant committed present offences during his first month of parole - Applicant had extensive history of committing serious offences
Held appeal dismissed

Legislation:

S89 Sentencing Act 1995
Sentence Administration Act 1995

Result:Appeal dismissed

Representation:

Counsel:

Applicant:     Mr D M Imlah

Respondent:     Mr M Mischin

Solicitors:

Applicant:     Aboriginal Legal Service of WA (Inc)

Respondent:     State Director of Public Prosecutions

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

R v Lowndes, unreported; CCA SCt of WA; Library No 970382; 8 August 1997

Swain v The Queen (1989) 41 A Crim R 214

Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Howell v The Queen (1989) 2 WAR 60

1.     MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be dismissed, for the reasons to be published by Ipp J.  I consider that the period of parole which remains outstanding in respect of sentences imposed upon the applicant in respect of sentences imposed for his prior criminal conduct will mean that he will spend an adequate period under supervision in the community following ultimate release from prison.

2.     IPP J:  This is an application for leave to appeal against sentence.  The aggregate sentence in respect of which leave is sought to appeal is 14 years' imprisonment without eligibility for parole.  There are two grounds of appeal.  Firstly, the applicant says that the total of 14 years' imprisonment was manifestly excessive.  Secondly, the applicant contends that the learned sentencing Judge erred in the exercise of his discretion by denying the applicant eligibility for parole.

3.     The offences which gave rise to the sentence of 14 years' imprisonment were many and serious.  Together with a co‑offender, one Riley, the applicant committed 22 offences of aggravated burglary, one offence of armed robbery in company, one offence of criminal damage, one offence of deprivation of liberty and seven offences of stealing a motor vehicle.  All the offences were committed over a period of 30 days between September and October 1997.

4.     Riley targeted premises in which he believed firearms would be located.  The applicant participated with Riley in burgling those premises.  The two of them successfully stole four firearms, two of which Riley cut down so that they could be concealed.  The applicant and Riley committed three offences of aggravated burglary while armed with rifles they had stolen.  Disguised by balaclavas and gloves, they used the rifles to enforce their demands in depriving the occupants of the premises of their liberty and threatening them when demanding money.  The weapons were loaded and the learned sentencing Judge drew the implication that both the applicant and Riley were prepared to fire them.

5.     Several other burglaries were committed by the applicant and Riley smashing their way into the premises concerned and damaging property in the process of carrying out the offences.  On several occasions they disabled and damaged security systems. 

6.     They stole the motor vehicles (the subject of the 7 counts of stealing motor vehicles) for use in the commission of various of the offences and for their transport in between offending.  They deliberately set fire to one

stolen vehicle valued at $15,700, completely destroying it to remove fingerprint identification.  They abandoned another, valued at about $51,000 in bushland where it was destroyed by fire, apparently by others.  Nearly all the other vehicles were damaged.

7.     Victim impact statements were received from some of the victims of this crime spree.  The learned sentencing Judge referred to statements by the victims of three of the offences of aggravated burglary, and observed:

"Each was awakened by you in the early hours of the morning by the sound of their house being forcibly broken into and was confronted by both of you gloved, masked, carrying guns and demanding money.  They were each then subjected to the demands, threats and deprivation of liberty identified in the material facts.  It is fair to say that each was in fear of her life.  One at least now suffers a recurring fear, particularly at night, is affected by sudden noise and has had to alter her lifestyle.  A statement from the victim of another offence, whose house was broken into, refers to the contents of the bedroom being ransacked, the premises damaged and the car stolen.  All this was discovered by the victim on his arrival home with his family.  It is said to have had a psychological affect on the family resulting in one child being physically ill and all the children afraid to even walk down passages to their rooms.  To allay their fears the father has been involved in the expense of installing a security alarm.  The whole family now react to unusual sounds and noises.  That victim was deprived of his vehicle for about five weeks, it having been stolen by you and was put to expense, lost time and suffered considerable inconvenience.  Another victim impact statement graphically describes damage to the victim's shop premises, the effects of your ransacking those premises, the disruption of his business, the time and expense of cleaning up, replacing stolen goods, damaged locks etc, and undertaking stocktakes to identify stolen goods.  It also details the personal trauma and apprehension resulting from the victimisation."

8.     The applicant was aged 23 years at the time of sentencing.  He has an extensive record of offending, commencing in the Children's Court in October 1989.  By June 1995 he had acquired in Western Australia 13 convictions for breaking and entering, eight for burglary, 14 for stealing, one for attempted stealing of a motor vehicle, one for robbery, four for assault to prevent arrest, one for common assault and seven for breach of bail.  He had numerous other convictions for unauthorised driving and unauthorised use of motor vehicles.  His record in Western Australia since turning 18 included nine offences of burglary, one of robbery and one of attempted theft of a motor vehicle.  For each of these offences he was sentenced to a custodial term.

9.     The last sentence imposed on him prior to the offences, the subject of this application, was an effective head sentence of six years three months imposed on 2 June 1995.  The offences for which this sentence was imposed included two counts of burglary, one of robbery, one of stealing and one of stealing a motor vehicle.  In August 1997 the applicant was released on parole in respect of these offences.  He committed the offences, the subject of this application, two weeks after his release on parole.  His readiness to disregard orders made by judicial officers is further exemplified by the fact that he has several convictions for breach of bail.  In addition, he has previously breached a work release order by failing to return to a prison in New South Wales and re‑offending while subject to the work release order.

10.    In sentencing the applicant to the aggregate term of 14 years' imprisonment his Honour took into account the applicant's plea of guilty under the fast track system, his co‑operation with the police, his youth and the totality principle.  In addition his Honour had regard to the sentences imposed on Riley.

11.    The learned Judge sentenced Riley at the same time that he sentenced the applicant.  Riley, in addition to the offences committed with the applicant, had committed two other offences of aggravated burglary.  His Honour pointed out that these additional offences resulted in a greater degree of criminal conduct on the part of Riley (although the gravity of these offences was lessened by the fact that Riley voluntarily admitted them in circumstances under which his guilt might not have been established).  Further, his Honour took into account that it was Riley who targeted the premises from which firearms might be stolen and it was Riley who cut them down so that they could be concealed. Furthermore, the learned Judge had regard to the fact that Riley was 37 years old at the time of sentencing, and was significantly older than the applicant.  His Honour sentenced Riley to an overall term of imprisonment of 19 years.  Thus, having regard to all the circumstances, Riley was ordered to serve five more years imprisonment than the applicant.

12.    In submitting that the term of imprisonment imposed on the applicant was excessive, counsel for the applicant raised two main arguments.  Firstly, he submitted that the learned Judge allowed insufficient discount for the lesser degree of criminal conduct on the part of the applicant, compared to that of Riley.  Secondly, he submitted that insufficient regard had been had to the disparity in age between Riley and the applicant.

13.    The allowance that was required to be made by the learned sentencing Judge for the additional criminal conduct on the part of Riley, and the difference in the ages of the two offenders, is not capable of mathematical calculation.  It was complicated by the fact that both had committed very many offences of a serious kind which required the appropriate application of the totality principle.  On the other hand the applicant accepted equal responsibility with Riley for each of the offences of which he was jointly charged.  As the learned Judge found, the gravity of the applicant's offending in respect of those charges was no less than that of Riley.

14.    In my view, the age disparity, while relevant, is not of compelling significance.  There is a significant difference between a man aged 23 years and a youth aged 17 years or less.  The applicant, at 23 years of age, with his background, must have been fully aware of the consequences of his conduct.  He was experienced in crime.  The offences he committed were the product of deliberate choices made by him at a stage when he was old enough to understand all the implications of what he was doing.  In my opinion, making due allowance for the additional offences committed by Riley, his conduct in connection with the firearms, and the discrepancy in their ages, the difference of five years between the sentences imposed upon Riley and the applicant was entirely appropriate.  Moreover, in my opinion, the overall sentence of 14 years' imprisonment was well within the learned sentencing Judge's discretion.  The submissions advanced on behalf of the applicant in this respect cannot be accepted.

15.    I turn now to the question of parole.  With the coming into force of the Sentencing Act 1995, considerations relevant to the question of the making of an order for eligibility for parole are set out in s89(2) thereof. As Malcolm CJ pointed out in R v Lowndes, unreported; CCA SCt of WA; Library No 970382; 8 August 1997, these are substantially the same factors as was set out in s37A(3) of the Offenders Community Corrections Act 1963.  The learned Chief Justice observed:

"In the present case the critical matters for consideration where the offender's antecedents as represented by his character and past history including the history of offending, and the prognosis required by s89(2)(d) of the Sentencing Act.  The latter required the sentencing Judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between the punishment of the offender, on the one hand, and the need to consider factors leading to the offender's rehabilitation on the other: Archibald v The Queen (1989) 40 A Crim R 228 at 230 per Malcolm CJ; and at 233-234 per Wallace J. The need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing Judge and, ultimately the Parole Board: Yarrran v The Queen, unreported; SCt of WA; Library No 876215; March 1991 per Malcolm CJ at 4.

The question whether to order eligibility for parole calls for the exercise of a judicial discretion: Swain v The Queen (1989) 41 A Crim R 214 at 218 per Malcolm CJ. The discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole Thompson v The Queen (1992) 8 WAR 387 at 395 per Malcolm CJ Pidgeon and Owen JJ; Howell v The Queen (1989) 2 WAR 60 at 61-62 per Wallace J. Nonetheless, the philosophy of the Offenders Community Corrections Act 1963 was regarded as suggesting a bias towards eligibility: Thompson v The Queen at 395; Howell v The Queen at 61-62 per Wallace J; and at 67-68 per Brinsden J; and Yarran v The Queen per Malcolm CJ at 4."

16.    Although the applicant pleaded guilty on the fast track system, and co‑operated with the police, his Honour found it difficult to accept that this was a true expression of remorse.  The learned sentencing Judge stressed that the applicant's "history and present offending" revealed a continuing attitude of serious disobedience to the law, a tendency to violence against property and persons and a grave disregard for the rights and property of other members of the community.  The learned Judge concluded that these matters indicated "most strongly" that the applicant was not disposed to rehabilitation.  His Honour pointed out: "Even release from custody on parole has only resulted in serious offending very shortly after release".  Furthermore, it was relevant in respect to the question of parole that the recent offences committed by the applicant were characterised by violence not only to property but to the person, and involved the use of loaded firearms.  As mentioned, his Honour considered that the applicant was not only prepared to carry loaded firearms in the commission of offences but, if necessary or expedient, to discharge them.

17.    The factors I have recounted all militated against eligibility for parole. His Honour concluded further that there was nothing before the Court sufficient to trigger the exercise of the discretion to grant parole eligibility: Thompson v The Queen (1992) 8 WAR 387 at 395. In my opinion, his Honour's approach to this issue was unexceptionable.

18.    Counsel for the applicant submitted that the learned Judge placed insufficient emphasis on the applicant's circumstances which might become relevant when he became eligible for parole, were an order for eligibility to be made.  He submitted that the facts which pointed positively towards parole were:

(a)The early plea of guilty on the fast track system

(b)The applicant's age

(c)The fact that the author of a pre‑sentence report recommended in favour of the granting of parole.

19.    As his Honour's sentencing remarks reveal, his Honour considered that the extreme seriousness of the offences committed by the applicant, his record of having continuously committed serious offences, and the fact that he had committed offences while on parole, made all other factors pale into insignificance. I can only agree, with respect, with this approach.  The applicant has had opportunities of being released under supervision within the community, but has used the conditional freedom which has been given to him simply to commit further offences.

20.    As regards the particular factors mentioned, the plea of guilty is, in  the particular circumstances of the case, of little relevance; the finding that it was not a true expression of remorse was not challenged.

21.    The applicant's age may have been persuasive had the applicant's history of offending been less serious, and had the offences committed by him been less grave.  However, in the light of the matters mentioned, the applicant's age is not a material factor.

22.    As regards the pre‑sentence report, this was ordered by his Honour of his own accord.  Neither counsel for the applicant nor counsel for the Crown had requested such a report.  The report was very brief.  The author observed that it was of "great concern" that the applicant had offended two weeks after release on parole "and did so even though drug use was not a causative factor". Nevertheless, the report recommended the making of an order for eligibility for parole so that the applicant's "criminogenic needs" could be fully assessed and addressed prior to his release to the community".  This was the only reason advanced for the making of such an order.  His Honour considered that it was not persuasive.  He pointed out:

"On its own it is applicable to every imprisoned offender regardless of the seriousness and nature of the offending, the circumstances of its commission and the offender's antecedents. Its application, divorced of any other reason sufficient to trigger the discretion to order eligibility, would nullify the sentencing Judge's obligation to determine in each case whether parole eligibility is appropriate, having regard to the provisions of s89 of the Sentencing Act 1995.  There are, of course, cases in which, because of the particular relevant circumstances the reason advanced ... would have valid application, but that is not [this] case ..."

23.    In my opinion, the views expressed by the learned sentencing Judge are entirely correct.  It may well be that, in a given case, the circumstances are such that it is of the utmost importance that an offender is released into the community under the supervision provided by the parole system.  However, the prior history of the applicant demonstrates that there is no basis for expecting that the applicant will take advantage of the facilities offered to him.

24.    The applicant has consistently shown that he is prepared to commit violent crimes without regard to the safety of persons and property.  The threat he constitutes to society, and the contempt which he has demonstrated towards the machinery offered by the law for his rehabilitation, far outweigh any need for the applicant to be released under community supervision.

25. In any event, as counsel for the respondent pointed out, the applicant still has a term of parole in respect of previous offences that he has yet to serve. As he has breached the conditions thereof, that parole is likely to have been suspended: see ss36 and 37 of the Sentence Administration Act 1995.  On this basis it is likely that, when the applicant completes serving his sentence in respect of the offences with which this application is concerned, his previous parole will take effect again.  We were informed by counsel for the respondent that in that event the applicant would be required to serve a term of parole for approximately 1300 days.  That is

the parole period that remains outstanding in respect of those earlier offences.

26.    In the circumstances I would dismiss the application for leave to appeal against sentence.

27.    WALLWORK J:  The facts concerning the relevant offences of the applicant and his prior record of offending are set out in the reasons for judgment of Ipp J.

28.    I agree for the reasons given by Ipp J that the effective sentence of 14 years imprisonment which was imposed upon the applicant was well within the learned sentencing Judge's discretion.

29.    With respect to the question of eligibility for parole, that was a matter which called for the exercise of a judicial discretion: Swain v The Queen (1989) 41 A Crim R 214 at 218 per Malcolm CJ.

30.    Although it was within his Honour's discretion to order eligibility for parole he made the decision not to do so and in my opinion it has not been established that the learned Judge erred in the exercise of his discretion not to order eligibility for parole.