R v King
[2000] WASCA 130
•12 MAY 2000
R -v- KING [2000] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 130 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:267/1999 | 12 APRIL 2000 | |
| Coram: | MALCOLM CJ WALLWORK J MURRAY J | 12/05/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN GRANT MICHAEL KING |
Catchwords: | Criminal law and procedure Sentencing Crown appeal Pleas of guilty to one count of aggravated burglary and six charges of stealing pursuant to notice under s 32 of the Sentencing Act 1995 Intensive supervision order (ISO) for two years Following breach of ISO community based order (CBO) for 12 months imposed Following convictions for stealing and receiving and breach of CBO offender placed on further CBO for 12 months Crown appeal upheld Imposition of second CBO inappropriate However in view of lapse of time and performance by offender on CBO Crown appeal dismissed |
Legislation: | Nil |
Case References: | Bell (1981) 5 A Crim R 347 Cranssen v The King (1936) 55 CLR 509 Duncan v R (1983) 47 ALR 746 Harris v The Queen (1954) 90 CLR 652 Kovac v The Queen (1977) 15 ALR 637 Lowndes v The Queen [1999] HCA 29 at [15]; (1999) 73 ALJR 1007 R v Peterson [1984] WAR 329 R v Tait (1979) 46 FLR 386 McLean v R [1999] WASCA 209 Nguyen v R [1999] WASCA 54 O'Gorman v R [1998] WASCA 344 R v Allpass (1994) 72 A Crim R 561 R v Clarke (1996) 2 VR 520 R v Dorrant, unreported; CCA SCt of WA; Library No 970254; 21 May 1997 R v Grein [1989] WAR 178 R v Leucas (1995) 78 A Crim R 40 Wroblewski v R, unreported; CCA SCt of WA; Library No 990135; 17 February 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- KING [2000] WASCA 130 CORAM : MALCOLM CJ
- WALLWORK J
MURRAY J
- Appellant
AND
GRANT MICHAEL KING
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Crown appeal - Pleas of guilty to one count of aggravated burglary and six charges of stealing pursuant to notice under s 32 of the Sentencing Act 1995 - Intensive supervision order (ISO) for two years - Following breach of ISO community based order (CBO) for 12 months imposed - Following convictions for stealing and receiving and breach of CBO offender placed on further CBO for 12 months - Crown appeal upheld - Imposition of second CBO inappropriate - However in view of lapse of time and performance by offender on CBO Crown appeal dismissed
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr B Fiannaca
Respondent : Mr C A Richards
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid Commission
Case(s) referred to in judgment(s):
Bell (1981) 5 A Crim R 347
Cranssen v The King (1936) 55 CLR 509
Duncan v R (1983) 47 ALR 746
Harris v The Queen (1954) 90 CLR 652
Kovac v The Queen (1977) 15 ALR 637
Lowndes v The Queen [1999] HCA 29 at [15]; (1999) 73 ALJR 1007
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
Case(s) also cited:
McLean v R [1999] WASCA 209
Nguyen v R [1999] WASCA 54
O'Gorman v R [1998] WASCA 344
R v Allpass (1994) 72 A Crim R 561
R v Clarke (1996) 2 VR 520
R v Dorrant, unreported; CCA SCt of WA; Library No 970254; 21 May 1997
R v Grein [1989] WAR 178
R v Leucas (1995) 78 A Crim R 40
Wroblewski v R, unreported; CCA SCt of WA; Library No 990135; 17 February 1999
(Page 3)
1 MALCOLM CJ: This is a Crown appeal against sentence. On 9 September 1997 the respondent pleaded guilty to one count of aggravated burglary before Williams DCJ in the District Court. He also pleaded guilty to six offences of stealing pursuant to a notice under s 32 of the Sentencing Act 1995. The offences were committed between 14 April and 18 May 1997. The learned Judge sentenced the respondent by imposing upon him an Intensive Supervision Order (ISO) for a period of two years, which required the respondent to complete 240 hours of community service. On 10 November 1998 the respondent breached the ISO and appeared before Macknay DCJ on 2 February 1999 in respect of that breach. At that stage he had completed only 128 of the 240 hours of community service. On 25 February 1999 Macknay DCJ imposed on the respondent a Community Based Order (CBO) for a period of 12 months and ordered the respondent to complete the 120 hours of community service which were outstanding.
2 On 21 June 1999 the respondent committed one offence of stealing and one offence of receiving. On 9 November 1999 he appeared before Kennedy DCJ to be dealt with for the breach of the CBO constituted by the commission of these offences. He pleaded guilty to one offence of stealing and one offence of receiving pursuant to a notice under s 32 of the Sentencing Act. Kennedy DCJ remanded the respondent in custody for 21 days and ordered further pre-sentence reports. On 7 December 1999 her Honour sentenced the respondent by imposing upon him a further CBO for a period of 12 months and ordered him to complete 100 hours of community service. The Crown has appealed against the order made by Kennedy DCJ on the grounds that:
"1. The learned sentencing judge erred in concluding that it was appropriate to make a community based order, having regard to:
(a) the seriousness of the offences;
(b) the Respondent's failure to comply with an intensive supervision order made by his Honour Judge Williams and a subsequent community based order made by his Honour Judge Macknay in respect of the burglary the subject of indictment 1373 of 1997 and 6 charges of stealing the subject of a notice pursuant to section 32 of the Sentencing Act 1995 dealt with on the 9 September 1997;
(Page 4)
- (c) the fact that the Respondent committed offences during the period of the community based order made by his Honour Judge Macknay; and
(d) material before her Honour that pointed to the unsuitability of the Respondent for a further community based order.
2. The learned sentencing judge erred in failing to give sufficient weight to:
(a) the seriousness of the offences;
(b) the need to provide a sanction for the breach of community based orders;
(c) the need for specific and general deterrence.
3. The learned sentencing judge erred in failing to conclude that a term of immediate imprisonment was the only appropriate disposition, having regard to the factors set out in Ground 2 hereof."
3 The principles applicable to a Crown appeal against sentence under s 688(2)(d) of the Criminal Code are well-settled. In R v Peterson [1984] WAR 329 at 330 they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 – 388. After referring to Harris v The Queen (1954) 90 CLR 652, Kovac v The Queen (1977) 15 ALR 637, and Cranssen v The King (1936) 55 CLR 509 at 519 – 520 their Honours said:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or a misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King (1913) 16 CLR 336 at 339 – 340; R v Withers (1925) 25 SR (NSW) 328 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293).
(Page 5)
- Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy the 'vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v The King at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
4 In Lowndes v The Queen [1999] HCA 29 at [15]; (1999) 73 ALJR 1007 at [15], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
"The principles to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [(1996) 2 VR 520]. 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 [House v The King (1936) 55 CLR 499]. The discretion which the law permits to sentencing judges is of vital importance in the administration of our system of criminal justice."
5 When the respondent appeared before Williams DCJ on 9 September 1997, the facts were recounted to the court by counsel for the Crown and accepted by counsel for the respondent. These facts were that, in respect of the indictment, during the late evening of 24 April 1997 the respondent, in company with another, went to the complainant's premises, namely the West Perth Soccer Club, situated in Gallop Street, West Perth, with the intention of breaking in and stealing food and drink. The co-offender gained entry to the premises by forcing open a roller-door. Once inside, the two offenders removed foodstuffs and drinks to the value of $200, which were handed to the offender, who was acting as lookout. Both
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- offenders then left the premises and consumed the food and drink at their house.
6 The first of the stealing charges was committed when, during the evening of 18 May 1997, the offender, in company with another, attempted to steal the complainant's motor vehicle, which was parked in West Perth. The co-offender gained entry to the vehicle by forcing open a door lock and then smashed the steering/ignition mechanism while the respondent kept a lookout. Both offenders were disturbed by the owner of the vehicle and ran away.
7 The second offence of stealing was committed on 24 April 1997, when the respondent, in company with another, went to a carpark in Ord Street, West Perth, where the co-offender used bolt-cutters to cut a chain securing the complainant's mountain bicycle. The two offenders then removed the bicycle and the co-offender later sold it to an unknown person. In respect of that count the respondent was ordered to pay compensation in the sum of $340 within three months and in default imprisonment calculated in accordance with s 59(3) of the Sentencing Act.
8 As to the third count of stealing, on 20 April 1997 the offender and another went to a carport situated in Cleaver Street, West Perth, where the co-offender used bolt-cutters to cut a chain securing the complainant's bicycle. Both offenders removed the bicycle and took turns riding it around the West Perth area. They then abandoned the bicycle at a building site and departed.
9 As to the fourth count of stealing, during the afternoon of 14 April 1997 the respondent, in company with another, went to the Oxford Laundry with the intention of stealing money from the washing machines. The co-offender cut the padlocks to the money tray of the machines with bolt-cutters, and both of them removed coins to the value of $2 and caused $80 worth of damage to the machines.
10 The offence the subject of the fifth stealing count was committed at the same premises on the afternoon of 19 April 1997, when the co-offender cut the padlocks to the money tray of the machines. The two offenders removed coins to the value of $10 and caused damage to the machines to the value of $600.
11 The sixth count of stealing was committed the following day, 20 April 1997, when the offender and another went to the complainant's building site situated in Charles Street, West Perth, where they removed building materials to the value of $300 and used them as firewood at the
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- respondent's home. The respondent was interviewed by detectives in respect of these matters on Friday 23 May 1997. He participated in a videotaped record of interview and admitted his part in the offences.
12 As at 9 September 1997, when the respondent was sentenced, his co-offender had absconded to the Eastern States and had not been apprehended. All of the offences were committed within a period of just over a month between 14 April and 18 May 1997. At that time, the respondent was living with his de facto wife and two young children. He had not offended since early 1995, when he was dealt with in the Children's Court for a burglary offence and had kept out of trouble for approximately 18 months. The co-offender was an older man aged about 27 years, who was previously in a relationship with the respondent's sister. He became a regular visitor to the respondent's house and in the period in question both of them consumed alcohol and then went out and committed the offences. It was accepted that the older co-offender was the instigator in each case.
13 In sentencing the respondent, Williams DCJ said:
"These are serious offences and ordinarily involve a term of imprisonment.
In your case, you are still aged only 19 years. You have no convictions in this court although you do have convictions in the Children's Court. There is a pre-sentence report in respect to you that indicates that you are a suitable candidate for community supervision. In the circumstances I don't propose to impose a term of imprisonment, but you have to realise that this will be your last chance. If you breach the intensive supervision order that I propose to make and you are brought back before this court, the likely prospect is that you will receive a term of imprisonment in the vicinity of 2 to 2 and a half years."
14 In response to a question from the learned Judge, the respondent indicated that he understood that. His Honour went on to say:
"In case you think my words simply blow away in the wind, I will have to tell you that they're being recorded. They will be before me if I am the sentencing judge or whoever else is the sentencing judge. If you breach the order that I make, which is going to run for a period of 2 years, you can expect to come back before the court and receive a term of imprisonment of that order."
(Page 8)
15 In response to a further question from the learned Judge, the respondent indicated that he understood that.
16 His Honour then imposed the ISO with a community service requirement of 240 hours. Having done so, the learned Judge further said:
"So the important thing that I need to say to you is that if you breach the order either by not complying with the order or reoffending during the term of the order, you will come back here to be sentenced in relation to these matters. As I have told you, that will be a term of imprisonment. Do you understand that?"
17 The respondent's response indicated that he understood.
18 On 2 February 1999, just a week less than 17 months later, the respondent appeared before Macknay DCJ, following a plea of guilty under the fast-track system to a failure to comply with the ISO by failing to report as required and by carrying out only 128 hours of the required 240 hours of community service. A complaint was issued against the respondent in November 1998, alleging that he was in breach of the order, and on his plea of guilty in the Court of Petty Sessions he was remanded to appear in the District Court.
19 On 2 February 1999 a Mr Raymond Flynn, a Senior Community Corrections Officer, indicated that there was a history of offending by the respondent since he was about 15 years of age. Most of that offending behaviour had been in the company of his co-offender who was his sister's former boyfriend and who was eight or nine years older than him. There was a break in offending between 1995 and 1997 when the former boyfriend and his sister had not been together. This bore out what he had said about being led on by the co-offender and alcohol had played a significant part in the commission of the offences.
20 So far as the ISO imposed by Williams DCJ was concerned, Mr Flynn said that the respondent's reporting had not been of the acceptable standard and he confirmed the failure to complete the 240 hours of unpaid community work. He had to be pursued both in relation to his reporting and also in relation to the hours that he had actually done. This resulted in breach action.
21 It was reported that the respondent was in a stable relationship with a 19 year old young woman which had lasted for some five years and with whom he had been in a de facto relationship for some four years. They
(Page 9)
- had two children aged one and a half and two and a half years respectively. It is sufficient for present purposes to note Mr Flynn's summary at the conclusion of the detailed oral report that:
"… it appears that Mr King comes from a stable and supportive family background. In the interview he impressed as being co-operative. He appeared to be an insightless, emotionally immature and somewhat unsophisticated individual who is probably impulsive and susceptible to peer influence. It is also suspected, as I have indicated, that his alcohol use is more problematic than he is willing to admit.
The overall impression gained is that Mr King is a rather inept but well-intentioned young man who has been overwhelmed by marital and family responsibilities he has assumed at a very early age. Unfortunately, given his response to supervision up until this point of time, it's unlikely that we would be able to make any interventions which are likely to lessen the likelihood of his re-offending in the future."
23 Upon the resumption of the hearing on 25 February 1999 a substantial plea in mitigation was made. A letter from the respondent's mother was submitted that was to the effect that at the time he was supposed to be undertaking the community work he was drinking too much which was causing a great deal of stress within his family. However, in the last two months prior to the hearing, he had stopped drinking and smoking cannabis and had settled down a great deal. He had been training for work in the carpet laying business for a family friend and he and his partner had found new accommodation. It was accepted that his response to the ISO was unsatisfactory, but the explanation was that he had been overwhelmed by his family commitments and accommodation problems. Counsel for the respondent asked the Court to consider making another order on the basis of his youth and the difficulties which he faced and the positive steps which he had taken toward his rehabilitation, albeit only recently.
24 It was submitted on behalf of the Crown that Williams DCJ had made it clear that if the offender breached the intensive supervision order he could expect to receive a term of imprisonment and that there was
(Page 10)
- nothing exceptional in the explanation provided for his failure to comply with the order.
25 Having heard the submissions Macknay DCJ imposed a Community Based Order (CBO) on the respondent for a period of 12 months with a programme requirement and a community service requirement of 120 hours. The reasons for adopting this approach sufficiently appear from the following passages:
"You are aged 20 years. You have a history of prior appearances in the Children's Court. It does appear from what was said to me and also from the pre-sentence report that was prepared preparatory to your sentence on 9 September 1997 that you are easily led and it would seem there is little doubt that you had been influenced in relation to the offences in respect of which you were before the court on that occasion by your co-offender, being a male with whom your sister then had a relationship. That co-offender is a number of years older than you.
You do present something of a difficult sentencing exercise. You are not in a position to pay a significant fine and, given your age, personal circumstances and obvious immaturity, you would be regarded ordinarily as an appropriate candidate for a community based order, that being the disposition which recommended itself to the learned sentencing judge on 9 September 1997.
Your failure to comply with that order, however, has the result that it's problematic as to whether or not any further order should be made. At the end of the day the question is that posed by s 6 of the Sentencing Act, whether the seriousness of the offences as gauged by the circumstances of each, together with mitigating factors, had any aggravating factors such that only imprisonment can be justified.
Having regard to the fact that the offence the subject of the indictment occurred approximately 2 years ago and that you have not offended in relation to any offence of dishonesty since the offences the subject of the order, and taking into account your domestic circumstances, it seems to me that although imprisonment must be seriously considered, having regard to the matters just mentioned, together with your age and the time
(Page 11)
- of offending, an outcome other than imprisonment can be justified.
The learned sentencing judge pointed out to you the ramifications of breaching the order and the breach in this particular case is one of a partial failure to comply with the order rather than a breach by the commission of further serious criminal offences. However, you need to be aware, Mr King, that exceptionally, because of the fact that you by and large kept your nose clean - apparently there is one police court matter but apart from that you have by and large kept your nose clean - I will give you another chance, but these orders aren't made just for fun and if you can't be bothered doing the hours then there will be no alternative and this will be the only chance that you will get in this system.
So I am going to make another community based order. Given that you are endeavouring to do something about your alcohol consumption I am going to make a program requirement in relation to that which will involve an obligation on your part to attend such people as you are directed to attend by your community corrections office, including, if appropriate, a medical practitioner or a psychologist or other health professional, to undergo any assessment, to undergo or attend any educational or vocational courses, in other words to do as you are told in relation to the question of doing something about your alcohol consumption."
26 His Honour did not provide any explanation for the imposition of a CBO, being a less intensive order than the ISO imposed by Williams DCJ. His Honour went on to explain the nature of the CBO and then said:
"That order, that community based order, is going to be for a period of 12 months and apart from the program requirement there is going to be a community service requirement. You owe the community some hours of unpaid work and you will have to do 120 hours under this order. If you don't report as directed, if you don't do the hours, you will be brought back, and this won't happen again, so if you get tonsillitis that's not an excuse that's going to get you very far, so do those things, don't get into trouble, and this will be behind you at the end of 12 months. Don't do those things, Mr King, and the outcome is an obvious one. All right?"
(Page 12)
27 The learned Judge may have been endeavouring to indicate that this was the respondent's last opportunity to have the benefit of any form of community based order, although this was not spelled out in terms of similar clarity as had been the case when the respondent was sentenced by Williams DCJ.
28 On 9 November 1999 the respondent pleaded guilty before Kennedy DCJ in the District Court to two charges the subject of complaints under the Justices Act 1902 namely that:
(1) on 21 June 1999 at West Perth he stole a car radio cassette player valued at $200 the property of one Brenda O'Carroll; and
(2) on the same date at West Perth he stole a screwdriver valued at $20 the property of a person or persons unknown and further on the day aforesaid received the said property then well knowing the same to have been so stolen.
29 It appears that he had entered pleas of guilty in the Court of Petty Sessions and that the offences constituted a breach of the CBO dated 25 February 1999 with the consequence that he was remanded to the District Court for sentence. Having repeated his pleas of guilty Kennedy DCJ directed that convictions be entered again on those matters. With respect, that would seem to have been an unnecessary step as the appropriate procedure is simply to ask the person in that position whether he is the person who was convicted in the Court of Petty Sessions on his plea of guilty to the named offences.
30 The respondent admitted that on 25 February 1999 in the District Court he was convicted of a breach of an Intensive Supervision Order and that he had been convicted of two counts of stealing. The result was that the respondent had become liable to be sentenced again for the offences of one count of aggravated burglary and six counts of stealing in respect of which the CBO was made.
31 Once again, it was put to Kennedy DCJ that he had not attended the counselling that was ordered because he was too ashamed to admit that he had a drinking problem with the result that two or three months prior to 9 November 1999 his partner threatened to leave if he did not stop his drinking. At that time he had been on a couple of drinking binges but, as a result of what his partner had said, he had cut right back to "just the occasional social drink". It was also said that he had not complied with the terms of the order because his partner had been ill and he was staying at home to mind the two young children. He telephoned from time to time
(Page 13)
- to say that he could not report. There was difficulty because he was required to report at Bentley but the family had moved to Rivervale. His Community Corrections Officer became fed up with him and was not prepared to listen to his account of his problems. At that stage of the hearing the learned Judge commented that:
"… every time he comes to court he's giving up drinking, he's getting organised and, I mean, we might look stupid but I mean how stupid does he think we are? How many times does he think he can actually say these things and we will believe him and I'm afraid I don't …"
33 It emerged at that stage that the respondent's partner had given birth to a third child. This led his counsel to make a strong plea to the learned Judge to give the respondent another chance. It was suggested that her Honour consider a suspended term leaving it to the respondent to obtain his own alcohol counselling. The learned Judge would not accept that but indicated that she was prepared to get another report and consider the matter but that he would be remanded in custody for the purpose and could undertake an alcohol education programme while in custody. As her Honour put it:
"He doesn't do his community service, he doesn't go to the counselling. He comes to Court, 'we're all reformed, we're going to do all sorts of things.' He gets the next lot of orders, he doesn't do his hours, he doesn't go to his counselling and in this case he offends again at 3.30 in the morning … if you can't leave the children to get to your appointments, but you can leave them at 3.30 in the morning to steal somebody's property, those things don't tie together. … I'm not a social worker. This is a Court and he is not a child. He is a 21-year-old man and the end of the rope has come and really it has come late. He has been given loads of chances. Now, what I propose to do is remand him in custody for 21 days. I will get further reports on him and everything will depend on the nature of those reports and how he behaves in that 21 days.
If at the end of that time I was going to release him to do community work I would need something fairly strong in the next 21 days to indicate to me that that work will be done, that
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- the counselling will be attended, that AA will be attended and all those things will be happening; otherwise I am just letting him act in total contempt of the Court system. I have taken an oath. I can't allow people to continue to do that."
- The respondent was then remanded in custody until 7 December 1999.
34 The pre-sentence report dated 1 December 1999 noted that the respondent had completed only a total of 19 hours of the community work the subject of the ISO and the CBO. He was also directed to attend substance abuse counselling on three occasions but failed to attend any of the sessions. The first of the two offences committed on 21 June 1999 involved stealing a car radio cassette player valued at $200. The second offence involved receiving a screwdriver valued at $20 well knowing the same to have been stolen. In the result, his record showed that he had five previous convictions for stealing, five convictions for burglary, three convictions for damage and one conviction each for cultivating cannabis, possessing a smoking implement, driving under the influence of alcohol and driving without a licence. These offences were committed both as a juvenile and as an adult and alcohol was a major factor in his offending behaviour. His relationship with his de facto partner was described as stable. He claimed that he no longer associated with undesirable friends and was in good physical and mental health. He began consuming alcohol at the age of 14 years drinking mainly at the weekend throughout the night in the company of friends. This pattern of drinking had continued until recently when he claimed to have stopped his heavy drinking. He did admit, however, that he still had a problem with alcohol. He had begun to use cannabis at the age of 14 years smoking "one stick" every day until January 1999. However, he no longer used cannabis and did not consider he had a problem. The author of the report considered that his use of alcohol was more extensive and problematic than he was willing to admit. He was, however, willing to undergo Substance Abuse Counselling. In summary, the report said:
"King is a 21 year old whose response to two adult Community Supervision Orders has been abysmal. Although he maintains the [sic that] he will abide by the conditions of another Community Supervision Order if granted the opportunity, the writer is not so optimistic that he will be able to successfully complete such an order. Under the circumstances, Community Supervision at this stage is not considered a viable option. King is also not in a position to pay a fine. The other options in this instance are either a Suspended Prison Sentence for a period
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- deemed appropriate by the Court or a prison sentence with eligibility for parole at a later date."
35 A psychological report dated 2 December 1999 indicated that:
"Mr King said that prior to being held on Remand he was working on a part-time basis with his father who is apparently a landscape gardener. He has worked previously as a carpet layer.
Results of personality testing were consistent with my clinical impressions. Mr King does not appear to suffer from any severe personality disorder. He has however, a personality style that is somewhat self-focused and self-defeating in nature. He is therefore prone to engage in repetitive negative behaviours, such as conflict with the law. He is also probably inclined to perceive events as how they affect him rather than what effect his behaviour may have on others. His lack of complying with previous supervision orders impresses as being an immature and avoidant response to the longer term consequences of his actions. His excessive use of substances would also impact negatively on his ability to immediately assess possible consequences of his behaviour.
It is possible that maturation will result in him having less conflict with the law. Although his alcohol use is problematic and he has indicated that he would attend counselling if required, there is no evidence to suggest that Mr King would be able to satisfy the requirements of any further community based order any more positively than he has in the past."
36 It is not surprising that in the face of those reports and the general background circumstances that the learned Judge commented on the suggestion that a suspended sentence be imposed by saying:
"I don't think that that's suitable. He's either got to go to gaol or he's got to do some programs. I mean, he just can't go on the way he is going and that's all - I can honestly say that I have prepared my notes and I have prepared them on the basis that he's going to gaol, on the basis that nothing emerged out of these reports. He has obviously said this on the last occasion. This is obviously what he said. I think it was Judge Macknay and so he was obviously told all this. 'I have breached my intensive supervision order but I'll never do it again and I'll be
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- terrific and I'll do this and I'll do that,' but he didn't do any of them."
37 It was then submitted to her Honour that this occasion was different because he had spent some four weeks behind bars which had been "terrifying". This appears to have persuaded the learned Judge to change her mind as her Honour then said:
"All right, Ms Fitzgerald. We will make an exception on this occasion. Now, Mr King you can remain seated. On 9 November 1999, I remanded you in custody for a pre-sentence report and a psychological assessment and I now have those. On 9 September 1997, that is, over 2 years ago - and it's 2 years that this court has been trying to get you to get your house in order. On 9 September 1997, you were placed on an intensive supervision order for 2 years and you were ordered to do 240 hours community service work for an aggravated burglary and six stealing. You did 128 hours of the community service work but you failed to comply with the rest and breach action was taken against you.
On 25 February 1999, you came again before this court and all the things that Ms Fitzgerald has said to me were said to that judge and I am putting this on transcript now so that if you come back again the next judge who will see it will not allow you to make a fool of him as, no doubt, if you don't do this you will be making of me. You have breached by reoffending and according to the report I have you have failed three times to attend counselling and performed only another 19 hours work.
So far as the reoffending, it's the theft of two separate items from parked cars. The reports I have on you now are not hopeful and as I have said and as you can see I am reading from notes and I came into court today intending to gaol you and these notes were prepared yesterday after I read the pre-sentence report. Ms Fitzgerald points out to me that you are only 21, that you have a very young family, that you have taken on considerable responsibility, although I have to say I wonder how much of this responsibility you really have taken on, given your other activities but nevertheless no doubt it is a concern and a worry for you and I remanded you in custody so you have spent 4 weeks in gaol and you are now in a position to decide
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- whether you want to spend the rest of your life as a loser and that's really what it amounts to.
People who keep going in and out of prison are losers and there [sic they] are in a revolving door and all they do is go in, come out for a little while, they go in, promise that they're going to do all sorts of things, go out, go in, go out and it's called a revolving door and it's called a revolving door because that's what happens to them. They're in a revolving door, but they do eventually stop. They get to about 29 and they think to themselves, 'I have wasted all of my time. I have wasted my twenties. My twenties are gone and I've wasted it in this revolving door.'
What you do really doesn't make a lot of difference to my life, and so you have only got yourself and your children and your wife that you are supposed to be concerned about, but mainly yourself. You are acting like a loser and you are going to lose your twenties going in and out of gaol. Not only has this court been trying since 9 September 1997 to get you to do the right thing but you have had this hanging over your head since 9 September 1997. If you had done the right thing from the beginning this would have been all over 3 or 4 months ago; the counselling, the work, having to come to court and all those things would have been over but, in the circumstances I'm prepared to try once more.
What I will simply do - I must say Judge Macknay was very sympathetic. He made this less intensive than the original judge had done, but I will do what he did, and I think that was a community based order for 12 months and you must do 100 hours community service work. You must understand that those hours are a term of your community based order. If you don't do the hours you are breaching your community based order. You must obey the direction of your community corrections officer as to any drug or alcohol education program or counselling."
38 In my opinion, the making of a further CBO in the circumstances constituted a response which was so inadequate as to manifest an error in the exercise of the sentencing discretion: Cranssen v The King, supra, at 519 - 520 per Dixon, Evert and McTiernan JJ. Williams DCJ expressly warned the respondent that if he was brought back before the court, it was
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- likely that he would receive a term of imprisonment in the vicinity of two to two and a half years. In light of that warning and in light of the leniency by Macknay DCJ extended to the applicant, the imposition of a further CBO for a second breach of the order constituted a wholly inadequate response to the breach being dealt with by the learned sentencing Judge. While it may well have been appropriate, although the case appears to have been marginal at best, for Macknay DCJ to give the respondent a second chance, I would have thought that a further ISO would have been considerably more appropriate than a further CBO. A higher level of supervision was clearly required. It is important that the imposition of a community order of one kind or another as an alternative to immediate imprisonment accompanied by a clear statement of the likely consequences by the sentencing Judge, should be fully respected in the event of breach, save in exceptional circumstances. Anything less would be calculated to undermine the significance and deterrent effect of the warning given by a sentencing Judge of the likely consequence of breach.
39 I should not be taken as suggesting that a breach of any form of community order should automatically result in imprisonment. It is important, however, that the deterrent effect of such orders should not be undermined by subsequent decisions. In this case, the decision the subject of the appeal was made in the face of strong recommendations to the contrary both in the pre-sentence report and in the psychologist's report. The suggestion from the bar table adopted by her Honour that the experience in custody had such a dramatic effect as to justify a further CBO was not borne out in the reports which were before the learned Judge.
40 As at 12 April 2000 when the Crown appeal was heard, the respondent had been subject to the CBO for a period of approximately four months. The Court was then of the opinion that it was entirely possible that the Court might conclude that the making of a further CBO was not appropriate in all the circumstances having regard to the need for deterrence and to respect the indication by the original learned sentencing Judge of the potential sanction available. The personal circumstances of the respondent could no longer be regarded as justifying the making of a community based order. In my view, that is the position in this case. In my opinion, it would only be in the most exceptional circumstances, for example, where there was clear evidence of a change in attitude so that a third opportunity to complete a community order was appropriate, should such an order be made. In my view, this was not such a case.
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41 That conclusion, however, is not sufficient to dispose of the matter. The fact is that it is now approaching some five months since the order was imposed on 7 December 1999. In a report from the respondent's community corrections officer dated 20 April 2000 it is stated that:
"Mr King was placed on a twelve month Community Based Order on 7 December 1999 with requirements that he attend Drug and Alcohol Counselling/Education Programme and that he complete one hundred hours community work. There was no Supervision requirement attached to that Order.
Mr King's response to his Order has been satisfactory. He has reported as directed at the outset and was referred to the South-East Metropolitan Community Drug Services Team for substance use counselling. In January this year he was deemed to have completed their programme and no further action was considered necessary. His progress with community work has been somewhat less favourable and he was slow to start. He changed his project a number of times and has needed reminders to attend. Nonetheless he has now completed eighty-five hours, his last attendance having been on 20 April 2000; he has fifteen hours to complete. The supervisor of his project has reported that, apart from some impunctuality, he has shown a good attitude to his work and is a hard worker who requires little if any supervision."
42 As a matter of principle where the rehabilitative process is already underway, this Court has previously taken the view that there is good reason not to interfere with it. In Duncan v R (1983) 47 ALR 746 at 749 Wallace, Brinsden and Rowland JJ referred to Bell (1981) 5 A Crim R 347 at 351 per Dunn J (with whom Wanstall CJ agreed) and said:
"The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation."
43 While the context in both Bell and Duncan v R was that there had been long delay in bringing those cases to trial, they are also relevant in the present context.
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44 In view of the fact that the respondent in this case spent time in prison on remand; given that his response to the CBO has been satisfactory in that he has reported as directed and completed the programme on substance abuse counselling so that no further action is considered necessary; and because he has substantially completed his community work, it would not serve the ends of justice and would indeed be unjust now to revoke the CBO and impose a sentence of imprisonment. Consequently, while I consider that, with all due respect, the decision of the learned Judge to impose a CBO was both wrong in principle and in the light of the facts and circumstances as they then existed, it would now be inappropriate to impose a sentence of imprisonment. It is for this reason that I have concluded that the appeal should be dismissed, notwithstanding that on its intrinsic merits it would otherwise have been allowed.
45 WALLWORK J: The facts and the background to this matter are set out in the reasons for judgment of Malcolm CJ.
46 In my view the learned sentencing Judge took a constructive approach to a very difficult problem. The order made was within power.
47 The respondent had been described by a Senior Community Corrections Officer in part as follows:
"In the interview he impressed as being co-operative. He appeared to be an … emotionally immature and a somewhat unsophisticated individual …
The overall impression gained is that Mr King is a …. well-intentioned young man who has been overwhelmed by marital and family responsibilities he has assumed at a very early age…."
48 Prior to being released on the relevant Community Based Order on 7 December 1999 the respondent had served 4 weeks in prison. The learned Judge was aware that she was taking an exceptional course in the respondent's case and carefully spelt out to the respondent what his situation was. It appears from the report from the Bentley Community Based Services dated 30 March 2000 that the respondent has possibly taken the Judge's advice and hopefully in the future will become a law-abiding citizen. In my view there was no error in the exercise of the sentencing discretion.
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49 I agree with the learned Chief Justice, although for different reasons, that the appeal should be dismissed.
50 MURRAY J: I agree with Malcolm CJ that upon its merits this Crown appeal against sentence should succeed. However, Ialso am of the view that in the particular circumstance that the respondent is finally performing his obligations under the community based order satisfactorily, that order should not be set aside. Therefore, I too would dismiss the appeal.
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