Riley v The Queen
[2004] WASCA 123
•9 JUNE 2004
RILEY -v- THE QUEEN [2004] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 123 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:85/2003 | 22 MARCH 2004 | |
| Coram: | STEYTLER J WHEELER J EM HEENAN J | 9/06/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted, Leave to appeal granted, Appeal allowed, Sentence varied | ||
| B | |||
| PDF Version |
| Parties: | BERT JUNIOR RILEY THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Appeal against sentence Turns on own facts |
Legislation: | Nil |
Case References: | Nil Herbert v The Queen [2003] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RILEY -v- THE QUEEN [2004] WASCA 123 CORAM : STEYTLER J
- WHEELER J
EM HEENAN J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
File Number : IND BUN 58 of 2002
Catchwords:
Criminal law and procedure - Sentencing - Appeal against sentence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application for extension of time granted
Leave to appeal granted
Appeal allowed
Sentence varied
Category: B
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Mr M Mischin & Ms M L Huntly
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Herbert v The Queen [2003] WASCA 61
(Page 3)
1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of Wheeler J. I agree, for the reasons which her Honour has given, that the application for an extension of time should be granted, that the appellant should have leave to appeal and that the appeal should succeed, but only to the limited extent identified by her Honour, with the order made in respect of counts 4 and 5 being varied so that the sentences imposed in respect of those counts, rather than being cumulative upon those imposed in respect of counts 1 and 3, are to be served concurrently with them.
2 WHEELER J: This is an application for extension of time and an application for leave to appeal against sentences. The affidavit in support of the application for extension of time deposes that the appellant had told his lawyer that he wanted to appeal against sentence and had thought that an appeal was going to be lodged, but that he did not realise until 13 June 2003 that no appeal had in fact been lodged. He gave instructions then, and the application was filed on 18 June. The delay is not great, the sentences having been imposed on 3 April 2003, and I would therefore grant an extension of time within which to make the application.
3 The appellant was convicted after trial of six offences. The sentence was structured in the following way:-
Counts 1 and 3 (aggravated burglary and receiving) 3 years and 2 years concurrent, effective term 3 years.
Counts 4 and 5 (aggravated burglary and stealing motor vehicle) 3 years and 2 years concurrent but cumulative on counts 1 and 3 (effectively an additional 3 years).
Count 6 (receiving) 2 years' imprisonment concurrent with counts 1 and 3.
Counts 7 and 8 (aggravated burglary and aggravated assault doing bodily harm) 8 years and 4 years concurrent with each other but cumulative on the other terms.
The total effective term, therefore, was one of 14 years' imprisonment. There was an order for parole eligibility.
4 It is conceded by the appellant that the offences were all extremely serious and called for a lengthy term of imprisonment to serve the purposes of punishment, and general and personal deterrence. They were committed over a series of nights from 18 February 2002 to 26 February
(Page 4)
- 2002. The appellant concedes that there is no error in respect of any individual sentence, but submits that the total sentence of 14 years is manifestly excessive.
5 I would observe that a term of 3 years' imprisonment in respect of an aggravated burglary, the maximum penalty for which is 20 years' imprisonment, is not only well within an appropriate range but towards the lower end of an appropriate range. In respect of the series of offences represented by counts 1 through to 6 inclusive then, the sentences are on their face unremarkable, and tending towards the lenient. A total term of 6 years' imprisonment in respect of that series of offences cannot be complained of, particularly when regard is had to the circumstances of each offence.
6 In relation to count 1, the appellant had gone to the complainant's home in company with another, intending to break in and steal property. The owners were a 50 year old couple who were at home watching television in a rear room at the time. The appellant and the other man forced open a bedroom window, searched front rooms, and stole camera equipment and jewellery. Count 3 related to a briefcase and numerous jewellery items stolen during an unrelated burglary. Counts 4 and 5 were related to each other. On this occasion the appellant had gained entry to a house by forcing open a side window. The complainant and a friend were at home asleep at the time. The appellant stole a number of items of property including the keys to the complainant's car, which he then also stole. The receiving, the subject of count 6, related to a handbag containing personal effects and a mobile telephone which had been stolen in a burglary unrelated to the other offences.
7 It can be seen that there were a number of invasions of different legally protected interests of different victims on different occasions. Only counts 4 and 5 and counts 7 and 8 were related to each other in that sense.
8 Counts 7 and 8 were particularly serious offences. They involved the deliberate invasion of a home occupied by an elderly couple, in company, while armed, and prepared to engage in violence. The complainant, Mr Miles, although elderly, struggled to keep the appellant out of the bedroom, but the appellant struck him on the head with a jemmy which had been used to effect entry to the house. The lights of the house had been turned off in order to facilitate entry and the telephone cord pulled out in an attempt to prevent the summoning of help. Certain items on a bedside table were smashed. It was, as his Honour the learned sentencing Judge observed, an outrageous attack upon the victims' right to live safely
(Page 5)
- in their own home, and one which would be likely to have long lasting effects.
9 On behalf of the appellant it is really submitted that, in the light of the mitigating factors, the effective term of 14 years' imprisonment is excessive and is longer than necessary to achieve the sentencing objectives of protection of the public, deterrence, retribution, reformation and public denunciation. The mitigating factors are said to be that the appellant was 26 years of age and therefore, although not young, a relatively young man, had had an underprivileged life, coming from a poor socio-economic background and having limited education, and was drug dependent.
10 In my view, none of the matters referred to by the appellant demonstrates that the learned trial Judge's sentencing discretion miscarried. When judged in the light of the total criminality of the overall offending, a term of 14 years' imprisonment would appear to merit the description of a "richly deserved" term, particularly having regard to the facts of counts 7 and 8. As to his personal circumstances, at 26, the appellant could not be considered a young man. His record revealed previous offences of violence and offences similar to those the subject of the indictment in question here, including burglary, armed robbery in company, and stealing a motor vehicle. His Honour appears to have accepted that he had an underprivileged upbringing and had come under the influence of drugs and alcohol. He noted also, however, the appellant's record, to which I have referred, and the fact that these offences were committed whilst he was on parole, having been released only three months or thereabouts before the first of the series of offences. There was obviously no question of credit for a plea of guilty or remorse or matters of that kind.
11 Were it not for clarification which we have received of certain information before his Honour, I would not have granted leave to appeal. However, it is clear that before his Honour there was confusion about the number of days "owed" by the appellant to the Parole Board and the effect which this would have upon any overall term. His Honour was informed that there were 1,014 outstanding breach of parole days. However, he was also informed that the appellant would be eligible to be released in relation to those breach of parole days in November of that year; that is, in a little under eight months from the date of sentence. It was in that context that his Honour took the view that, even allowing for the totality principle, a long sentence "to be served at the conclusion of [the appellant's] present term" was necessary.
(Page 6)
12 Further clarifying material put to us at the hearing of the appeal is to the effect that the sentence which his Honour imposed was in fact, because of the way it was structured, cumulative on all of the 1,014 breach of parole days, so that the appellant's earliest eligibility date for parole, having regard to those 1,014 days and to the sentence his Honour imposed, will be July 2010. That is a very significant discrepancy.
13 The discrepancy between the information available to his Honour and that put before us, in my view, requires that the Court grant leave to appeal, and, to a limited extent, to allow the appeal. Having regard to the earlier observations which I made about the individual sentences, to the appellant's concession that each sentence was individually justified, and to the circumstance that these were sentences arrived at by a Judge who had had the advantage of observing the entirety of a trial, I would not be disposed to interfere with any of the individual terms of imprisonment imposed. In my view, the appropriate way to recognise the very lengthy period which will elapse before the appellant will begin to serve these sentences, is to vary the order made in respect of counts 4 and 5 so that, rather than being cumulative upon counts 1 and 3, they are to be served concurrently with them. The other orders made by his Honour would remain unaltered.
14 EM HEENAN J: I agree with the reasons for decision of Wheeler J and with her Honour's conclusion that this application for an extension of time should be granted, that the appellant should have leave to appeal and that his appeal should be allowed to the extent her Honour proposes. This will mean that the sentence imposed on the appellant should be varied in that the sentences imposed on counts 4 and 5 in the indictment should be served concurrently with the sentences imposed in respect of counts 1 and 3.
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