Rankins v Smith
[2001] WASCA 367
•26 NOVEMBER 2001
RANKINS -v- SMITH & ORS [2001] WASCA 367
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 367 | |
| Case No: | SJA:1107/2001 | 22 OCTOBER 2001 | |
| Coram: | SCOTT J | 26/11/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | TROY BENJAMIN RANKINS BRADLEY SMITH LEEANN BURGOYNE MICHELLE ANN BEAMAN SCOTT ROBERT WATSON STEPHEN SLOANE BERNARD ANTHONY McGUIRE PHILIP GEORGE STEVENSON ARRON MARK WALSH |
Catchwords: | Criminal law and procedure Series of offences Appellant never previously imprisoned No parole order made Earlier suspended term of imprisonment not dealt with Parole order fixed and further concurrent term of imprisonment imposed Turns on own facts |
Legislation: | Sentencing Act 1995 s 80(1)(b) |
Case References: | Kilner v The Queen [1999] WASCA 189 Lowe v The Queen (1984) 154 CLR 606 Asciak v Conchie [2001] WASCA 88 Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999 Cardillo v Taylor [1999] WASCA 166 Cunningham v Walsh & Ors [2000] WASCA 201 Dragic v Burrows [2000] WASCA 385 Henning (2000) 112 A Crim R 34 Hing Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994 House v The King (1936) 55 CLR 499 Howell v The Queen (1989) 2 WAR 60 Johnson v Hayter [2001] WASCA 118 Lowndes v The Queen (1999) 195 CLR 665 Marshall v Spent (2000) 111 A Crim R 572 Mill v The Queen (1988) 166 CLR 59 Thompson v The Queen (1992) 8 WAR 387 Wongawol (1998) 101 A Crim R 350 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BRADLEY SMITH
First Respondent
LEEANN BURGOYNE
Second Respondent
MICHELLE ANN BEAMAN
Third Respondent
SCOTT ROBERT WATSON
Fourth Respondent
STEPHEN SLOANE
Fifth Respondent
BERNARD ANTHONY McGUIRE
Sixth Respondent
PHILIP GEORGE STEVENSON
Seventh Respondent
ARRON MARK WALSH
Eighth Respondent
(Page 2)
Catchwords:
Criminal law and procedure - Series of offences - Appellant never previously imprisoned - No parole order made - Earlier suspended term of imprisonment not dealt with - Parole order fixed and further concurrent term of imprisonment imposed - Turns on own facts
Legislation:
Sentencing Act 1995 s 80(1)(b)
Result:
Appeal allowed in part
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr C L J Miocevich
First Respondent : Ms L Tovey
Second Respondent : Ms L Tovey
Third Respondent : Ms L Tovey
Fourth Respondent : Ms L Tovey
Fifth Respondent : Ms L Tovey
Sixth Respondent : Ms L Tovey
Seventh Respondent : Ms L Tovey
Eighth Respondent : Ms L Tovey
Solicitors:
Appellant : Aboriginal Legal Service
First Respondent : State Director of Public Prosecutions
Second Respondent : State Director of Public Prosecutions
Third Respondent : State Director of Public Prosecutions
Fourth Respondent : State Director of Public Prosecutions
Fifth Respondent : State Director of Public Prosecutions
Sixth Respondent : State Director of Public Prosecutions
Seventh Respondent : State Director of Public Prosecutions
Eighth Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kilner v The Queen [1999] WASCA 189
Lowe v The Queen (1984) 154 CLR 606
Case(s) also cited:
Asciak v Conchie [2001] WASCA 88
Calway v Wiebe, unreported; SCt of WA (Miller J); Library No 990001; 13 January 1999
Cardillo v Taylor [1999] WASCA 166
(Page 4)
Cunningham v Walsh & Ors [2000] WASCA 201
Dragic v Burrows [2000] WASCA 385
Henning (2000) 112 A Crim R 34
Hing Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994
House v The King (1936) 55 CLR 499
Howell v The Queen (1989) 2 WAR 60
Johnson v Hayter [2001] WASCA 118
Lowndes v The Queen (1999) 195 CLR 665
Marshall v Spent (2000) 111 A Crim R 572
Mill v The Queen (1988) 166 CLR 59
Thompson v The Queen (1992) 8 WAR 387
Wongawol (1998) 101 A Crim R 350
(Page 5)
1 SCOTT J: The appellant was born on 6 June 1977. On 10 April 2000 in the Court of Petty Sessions, Northam he was sentenced to a term of 12 months' imprisonment suspended for two years in relation to a burglary offence. The facts of that matter as set out in the statement of material facts were:
"On Monday the 22nd November 1999, between the hours of 8.00 am and 10.00 am the defendant attended 314 Corfield Street GOSNELLS.
The defendant went to the rear of the premises and gained entry by smashing the rear glass sliding door with a screwdriver. Once inside the premises he removed a Sony Video Recorder valued at $1000, a Yamaha Amplifier valued at $1000, a Technics Tuner valued at $500, a Pioneer Compact Disc Player valued at $700 and wrapped all these items up in a Quilt which he removed from the main bedroom.
He has then decamped the premises via the front window and placed these items in his vehicle, which was parked in the complainant's driveway and then driven off.
On Monday the 27th March 2000 the defendant attended the Northam Police Station and wanted to hand himself in to police, in relation to the above and other offences.
A video record of interview was conducted with the defendant, where he admitted the offence."
2 The total value of the property taken was $3,275, none of which was recovered.
3 Also on 10 April 2000 the appellant was convicted of having no motor drivers' licence (which was under fine suspension) and his motor drivers' licence was disqualified for 9 months' cumulative.
4 The matters giving rise to the present appeal follow the sentencing of the appellant in the Court of Petty Session, Northam on 25 June 2001 in relation to a total of nine offences. The offences and the penalties imposed for each are set out below:
(Page 6)
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5 His Worship imposed a total term of imprisonment of 2 years and 9 months and declined to make a parole eligibility order.
6 The total term of imprisonment was structured by the accumulation of the 18 months' term of imprisonment for assault occasioning bodily harm; the 12 months' imprisonment for the offence of driving whilst under suspension and the 3 months' imprisonment for escaping legal custody.
7 In sentencing the appellant his Worship noted the suspended term of imprisonment for the burglary offence but did not take steps to deal with that suspended term. Counsel for the appellant and respondent have each
(Page 7)
invited this Court to deal with that matter so that all outstanding matters are disposed of.
8 The grounds of appeal are that the learned Magistrate erred in law in imposing a total term of 33 months' imprisonment without eligibility for parole on the grounds:
"(a) By imposing a term of imprisonment which in all the circumstances was manifestly excessive particularly having regard to:
(i) The Applicant's age and antecedents;
(ii) The Applicant's plea of guilty; and
(iii) Principle of totality.
(iv) Principle of parity.
(b) By failing to grant parole.
(c) By failing to activate the suspended sentence on charge 376/00."
9 The facts surrounding offences 8 and 9 in the list above were particularly serious. The appellant and another had been remanded in custody and were in the rear of a security van. A third person was in a segregated area of the same prison van. The appellant and the person with him were aware that the segregated prisoner was alleged to be a sex offender. The appellant and his co-accused kicked in the top of a metal wall segregating them from the other prisoner and gained access to his section of the vehicle. That prisoner was then attacked by both the appellant and his accomplice, causing severe swelling to his face area and bleeding to his nose. The victim had to be taken by ambulance to the Northam Hospital where he was detained as an in-patient for about 3 hours.
10 In my view the facts of that matter were so serious that a custodial term was inevitably called for, and in my opinion it cannot be said that the term of 18 months imposed by the learned Magistrate was in any way disproportionate to the conduct involved.
11 Counsel for the appellant contends that the appellant has a sense of grievance in relation to that sentence because his co-accused was
(Page 8)
sentenced to a lesser term for that offence. That ground of appeal will be discussed later in these reasons.
12 In sentencing the appellant, his Worship said:
"You have pleaded guilty to a number of offences which include three charges of driving under suspension, assault occasioning bodily harm, escape from lawful custody, and failing to appear in answer to your bail, and giving the police a false name and address.
Your offences were carried out over a period of time between July of last year and the final offence of assault occasioning bodily harm on 'T' was on the 7th of May of this year. Therefore, over a long period of time you have been committing offences which are punishable by terms of imprisonment. It is, of course, significant that except the record that has now been presented to me, with regard to the suspended term of imprisonment which was given to you for burglary, you have no relevant convictions at all, except for the suspension of your driver's licence which, as I understand it, originally was by way of fine/suspension.
On the 10th of April last year you were given this 12 month suspended term of imprisonment for a period of 2 years, in this court, for burglary. Therefore you have been given the opportunity to desist from offending, which you have chosen not to do. In relation to your driving whilst disqualified matters, anybody who persistently breaches orders of courts or continues to drive in contravention of fines enforcement matters can expect, of course, penalties which are severe; and for driving in contravention of a court order on numerous occasions it will result in incarceration of that person.
Regardless of what the circumstances were when you were driving, of the occasions on which you have, I note that one of them was that at the time your girlfriend was too drunk to drive. Therefore you drove. That is no excuse at all with regard to the matters. You were aware of what may happen to people who drive whilst disqualified.
However, the most disturbing charge, of course, is the charge of assault occasioning bodily harm of the other prisoner, which you say was committed solely by you, although you were
(Page 9)
- accompanied by another person who has been charged. What you did then was to break down this barrier within the prison vehicle, in order for you and this other man to climb into the compartment where Mr Thornton was; and then you say you were the one who inflicted upon him the severe swelling to his face, where he was taken to the Northam Hospital once the vehicle had returned to the Northam Police Station, in order to offload you and the injured person.
Well, Mr Thornton was in a position where, first of all, his size, as I recall him, is fairly small. He is fairly small compared to you. He would not physically be capable of repelling you or you and another person; and yet you, because of something you had been told, continued to break down the barrier and then assault him severely, causing him the injuries I have referred to.
He was not in a position either to repel or escape from you, and of course the experience to him must have been terrifying. The situation that Mr Thornton was in, and is in, as far as I recall, is that allegations have been made against him. He is not a convicted person. Do you understand me?
DEFENDANT: Yes, sir.
HIS WORSHIP: And therefore, of course, he deserves to be treated in a way which is commensurate with that position, and that is that he should not have been attacked by you and this other person at all. Of course you did that in the confines of the van, which again make the circumstances aggravated. It is, of course, with regard to these matters and also considering that you have this suspended term of imprisonment, that imprisonment in relation to these matters is inevitable.
I have, whilst I have adjourned, considered what is the appropriate penalty, and in doing so I have ensured that the penalty is not one which is overwhelming, although in my view it is appropriate. You will, with regard to driving under suspension on the 14th of July last year, be sentenced to 6 months' imprisonment, and that will be concurrent with the other sentences that I impose upon you. Your driving licence is disqualified for 12 months, and that is cumulative.
For failing to appear in the Northam Court on the 10th of October you will be sentenced to 1 month's imprisonment. For
(Page 10)
- giving a false name to the police, a further 1 month's imprisonment; for escaping legal custody, you will be sentenced to 3 months' imprisonment, and that will be cumulative in relation to the sentence. In relation to driving whilst under suspension on the 25th of August of last year, you will be sentenced to 12 months' imprisonment, and that will be concurrent; and your driving licence disqualified for 2 years. For failing to appear on the 9th of September in the Fremantle Court, 1 month's imprisonment. That will be concurrent; and for driving again on the 9th of September last year at Wilson, you will be sentenced to 12 months' imprisonment, and that will also be concurrent; and your driving licence will be disqualified for 3 years.
Now then, for the assault upon Jason Philip Thornton, you will be sentenced to 18 months' imprisonment, and that will be cumulative with the other sentences I have imposed upon you. That means you will be sentenced to 2 years and 9 months' imprisonment, and in view of the nature of the offences which you have committed, and the number of offences which you have committed, I will not make you eligible for parole. Stand down. Thank you.
PROSECUTOR: Sir, there was no sentence in relation to the damage charge.
HIS WORSHIP: It will be 3 months; imprisonment, concurrent …"
13 Counsel for the appellant in the course of arguing this appeal conceded that for the total conduct involved, a term of imprisonment was both inevitable and appropriate. As the submissions were developed however, counsel maintained that the term of 33 months' imprisonment was excessive and that a parole order should have been made.
14 As to the total term of imprisonment, I am not persuaded that for this chapter of criminality viewed globally, a term of 33 months was inappropriate. Indeed, in my view, it was within the appropriate range of penalty for the conduct involved. In reaching that view I have taken into account the fact that the appellant pleaded guilty at an early stage.
15 The appellant however, also contends that the sentence of 18 months' imprisonment for the assault occasioning bodily harm was excessive in the light of the sentence imposed upon his co-offender.
(Page 11)
16 The co-offender, Kelvin Joseph Stack ("Stack") was dealt with on indictment by Hammond CJDC in the District Court. Stack was charged with other offences and in particular pleaded guilty to a charge of unlawfully doing grievous bodily harm in relation to an incident totally unrelated to the present appellant. That offence under the provision of s 297 of the Criminal Code carries a maximum term of 10 years' imprisonment. Stack was sentenced to a term of 4 years' imprisonment for that offence reduced, because of his plea of guilty on the fast track system, to a term of two and a half years. In relation to the assault occasioning bodily harm where he was an accomplice with the present appellant, Stack was sentenced to a term of 9 months' imprisonment to be served concurrently with that term. Stack's total term of imprisonment in relation to the offences to which he pleaded guilty was 2 years and 6 months and he was made eligible for parole. Stack was aged 28 years at the time of the sentence.
17 In my view it is clear from reading the sentencing remarks of Hammond DCJ when he sentenced Stack on 31 August 2001 that he saw the offence of grievous bodily harm as being the primary offence with which he had to deal and, as a consequence, he ordered the other sentences to run concurrently with the term imposed for that offence. For that reason in my view the individual components of Stack's sentence cannot properly be compared with the sentence imposed upon the applicant. In my view, the applicant's contention that the 9 months' term of imprisonment imposed upon Stack for the assault occasioning bodily harm in the prison van creates a disparity with the sentence imposed of 18 months' imprisonment upon him, is not made out. In Lowe v The Queen (1984) 154 CLR 606 Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, said at 609:
The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. However, the Court of Criminal Appeal in Queensland, on an appeal against a sentence, may quash the sentence imposed and substitute another 'if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed': s 668E of the Criminal Code(Q). The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in
(Page 12)
- itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender."
18 The underlying principle in that case, in my view is that at least in the general sense, the sentences being compared must be appropriately capable of comparison. In this case, in my view that is not so. The reason is that Stack was facing a more serious charge which attracted the term of imprisonment to which he was sentenced. The sentence that is complained of in these proceedings for which Stack received the 9 months concurrent term was a component part of the global sentencing exercise undertaken by Hammond DCJ.
19 It has long been accepted that for a serious case of assault occasioning bodily harm a term of imprisonment is appropriate – see Kilner v The Queen [1999] WASCA 189 per Ipp J at [10]. As I have said, in my view the sentence of 18 months' imprisonment imposed upon the applicant in all of the circumstances of this matter cannot be said to be excessive.
20 The second ground of appeal deals with the failure of the learned Magistrate to grant a parole order. In that respect although the appellant faced a large number of charges occurring over a significant period of time these offences, serious as they were, were the appellants first chapter of serious offending apart from the burglary which attracted the suspended term. I accept however that the appellant's repeated driving under suspension showed a marked disregard for his obligation to obey the law. In addition, of course, as I have said this chapter of offending occurred at a time when the appellant was already serving a suspended term of imprisonment and was in breach of that suspended term. Taking all of those matters into account the appellant was therefore at best only a marginal candidate for parole.
21 In the Court of Petty Sessions, counsel for the appellant stressed that he was aged 23 years, in a de facto relationship, and had a 8 month old baby. The appellant had never been to prison before and was anxious to keep his family together. The appellant's partner was just over four months pregnant at the time the appellant came to be sentenced. It is not necessary to repeat all of the matters in mitigation placed before his Worship other than to say that the appellant had never previously been imprisoned and that these were his first serious matters in the adult court apart from the offence which attracted the suspended term of imprisonment. In those circumstances, in my view, although the appellant was only a marginal candidate for parole, a parole order should have been
(Page 13)
made giving the appellant the opportunity of proving his resolve to live in a law abiding way in the community and to demonstrate his declared resolve to take care of his family.
22 Finally I would add that both counsel have asked the Court to take into account and deal with the suspended term of imprisonment imposed upon the appellant on 10 April 2000. The facts in relation to that matter have been provided and are reproduced earlier in these reasons. The appellant at least served part of that suspended term of imprisonment before embarking on the course of conduct giving rise to the sentences presently under consideration. In all the circumstances therefore in my view, the appropriate sentence in relation to the breaking and enteringmatter is a term of 6 months' imprisonment to be served concurrently with the other term to run from 25 June 2001. The power to impose such a term is contained in s 80(1)(b) of the Sentencing Act 1995.
23 The appeal will therefore be allowed to the extent that a parole order will be fixed in relation to the terms imposed. In addition a sentence of 6 months' imprisonment concurrent will be imposed in relation to the breaking and entering matter which was the subject of the suspended prison term. All sentences will run from 25 June 2001, the date upon which the appellant was sentenced in the Court below.
24 I would finally add that it will be for the appellant to demonstrate his resolve to live a law abiding life in the community and to look after his family. The appellant should realise that any repetition of such a chapter of conduct may result in a prison term without parole.
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