Riley v The Queen - [2000] WASCA 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: RILEY -v- THE QUEEN [2000] WASCA 111

CORAM: WALLWORK J
MURRAY J
SCOTT J

HEARD: 3 APRIL 2000

DELIVERED : 5 MAY 2000

FILE NO/S: CCA 147 of 1999

BETWEEN: ATHOL JAMES RILEY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - 4 years imprisonment with eligibility for parole imposed for offence of attempted armed robbery - Later indictment for further offences of armed robbery and attempted armed robbery - Aggregate cumulative term of 8 years imprisonment imposed without eligibility for parole - Second group of sentences upheld but parole eligibility order made - All offences committed at about same time - Prisoner's attitude much improved after service of part of first term when second group of sentences imposed - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted

Appeal allowed
Parole eligibility order made

Representation:

Counsel:

Applicant: Mr N J Lemmon
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):

Thompson v The Queen (1992) 8 WAR 387
Wongawol v The Queen (1998) 101 A Crim R 350

Case(s) also cited:

Dobaj v The Queen [2000] WASCA 7
Garlett v The Queen [2000] WASCA 72
Howell v The Queen (1989) 2 WAR 60
Lowndes v The Queen (1999) 163 ALR 483
Miles v The Queen (1997) 17 WAR 518
Puls v The Queen [2000] WASCA 11
R v Peterson (1984) WAR 329
Robinson v The Queen; Riches v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Veen v The Queen (No 2) (1988) 164 CLR 465

WALLWORK J: I have had the advantage of reading the reasons for judgment of Murray J. I agree with those reasons and with the orders proposed by his Honour.
MURRAY J: On 24 March 1998 the applicant was convicted on his own plea in the District Court of an offence of attempted armed robbery committed on 6 February 1998. He was then aged 28 and he had a bad record dating back to 1981, his first conviction having been sustained in the Children's Court at the age of 11. There were many offences of dishonesty, traffic offences and offences of violence. On a number of occasions he was convicted of breaching bail. He had often been sentenced to imprisonment, but usually for short terms which would not have carried parole eligibility orders.
For present purposes, the significant convictions in his record were those before the District Court in April and August 1992, when he was sentenced for offences of burglary and causing grievous bodily harm to an aggregate term of 5 years and 10 months imprisonment. It seems that eligibility for parole was ordered with respect to those sentences. He was released on parole in 1994, 1996 and finally on 1 April 1997. It seems that he breached his parole on each of those occasions. As to the first two releases, his record shows later offences for which he was sentenced to short terms of imprisonment, no doubt resulting in the automatic cancellation of his parole.
When he was released on 1 April 1997 the parole period was due to expire on 12 March 1999. He was therefore on parole when on 6 February 1998 he committed the offence of attempted armed robbery of which he was convicted in the District Court on 24 March 1998.
When the applicant came before the District Court on 15 May 1998 to be sentenced, there remained 940 days or over 2‑1/2 years of the earlier sentences with respect to which he was eligible for parole to be served. A pre‑sentence report, psychological report and psychiatric report had been ordered and were before the court. He was not thought by most of those who reported to be suffering from any mental illness or to have any serious psychological problems of a psychotic nature. The psychologist noted that in view of the considerable time over the years that the applicant had spent in prison and his failure during that time to enrol in what were described as "habilitation programs" to assist him to assimilate into life in the community, "he has developed few skills which would assist him to live with any degree of independence in the world outside of prison." The psychologist thought that in that event he would be likely to

rely upon other people for his survival and the people upon whom he habitually relied were other offenders and drug users. He concluded that the applicant was "at a high risk of re‑offending".

However, the author of the pre‑sentence report, a senior community corrections officer, Ms Townsend, made a somewhat different recommendation to the Court. She noted that although there had been one earlier diagnosis of schizophrenia, there were reports before the court that the applicant was not suffering from any serious psychological problem or psychiatric disorder. The major problem appeared to be his habitual use of illicit drugs, particularly heroin, and his over consumption of alcohol. In view of those matters and his history, she too regarded him as being at a high risk of re‑offending. She concluded:
"He is considered to be a poor candidate for community supervision at this stage due to his re‑offending and poor cooperation in terms of psychiatric and substance abuse treatment during parole supervision. However, he would benefit from community supervision upon his release as it is considered that he requires support in the community."
In truth it seems to me that that was not a favourable report when one considers the accepted criteria for eligibility for parole, but the sentencing Judge, while expressing some surprise at the recommendation made by Ms Townsend, ordered eligibility for parole without further comment when he imposed a sentence of 4 years imprisonment to be served cumulatively upon the unexpired portion of the previous terms. This appeal is not against that sentence.
Having regard to the provisions of the Sentence Administration Act 1995 (WA), s 8(1)(b) and (c), the applicant commenced immediately to serve the non‑parole period of that 4 year sentence, ie, a period of 16 months. Then, becoming again eligible for parole, he would serve the balance of that term and the balance of the previous sentences unless and until again released on parole for a maximum period of 2 years.
However, on 17 May 1999, before that non‑parole period expired, the applicant was arraigned in the Supreme Court on an indictment which contained 5 counts. There were three charges of armed robbery, one of armed robbery in company and a charge of attempted armed robbery. The applicant pleaded not guilty to the first count, but guilty to the remainder of the indictment and he was convicted of those offences. The Crown Prosecutor undertook to file a nolle prosequi with respect to the first count on the indictment and convictions of the offences to which the applicant had pleaded guilty were recorded.
They were:
(1)an offence of robbery committed on 3 December 1997 while armed with a knife,
(2)an offence of robbery on 4 February 1998 while armed with a screwdriver and in company with another,
(3)an offence of attempted robbery committed on the same date but at a different place while pretending to be armed with a gun, and
(4)again on the same date and on this occasion at the same place as the previous offence, an offence of robbery while pretending to be armed with a gun.
As can be seen those offences were all committed shortly before that for which the applicant had been sentenced a year earlier in the District Court and the sentencing judge in this Court was informed of that history.
His Honour heard the facts and a plea in mitigation and remanded the applicant for sentence so as to enable the court to obtain the reports which had previously been made to the District Court concerning the offender and to have those reports updated.
The matter came on again before the Judge on 25 June 1999. His Honour then had before him a psychiatric report which expressed the opinion that the applicant's offending behaviour was not associated with the existence of any mental illness. His problem, the psychiatrist opined, was alcohol and other substance abuse, although it was true that the abuse of illicit drugs had caused him on occasions to develop psychotic states which had influenced his behaviour. The psychiatrist expressed the view that the applicant knew that his criminal behaviour was wrong, but lacked the control to refrain from offending. However, he expressed the opinion that with increasing age, the applicant had become more settled. He had expressed remorse for his past and declared a motivation to abstain from drugs. This he had done since he had been custody. His mental state was stable. The opinion was expressed that it was essential nonetheless that the applicant, while in custody, attend anger management programs, substance abuse counselling and courses to improve his life skills.
That report was supported by a psychologist's report. There were no signs of psychological problems. The applicant reported the use of the Aboriginal visitor scheme in prison. He thought that had been of great value to him. He had plans that upon his release his mother, his children and he would go to Dumbleyung, where he had grown up, to live with his uncle, who had offered him work as a shearer and roustabout.
In summary, the psychologist reported:
"Mr Riley seems to be a man of limited psychological resources who, although currently optimistic and highly motivated, needs to develop further skills to support his survival post release. Substance use seems to be his most serious problem in recent years, both in leading to offending and perhaps to his previous psychotic symptoms. This substance use and offending seems to have been reinforced in the past by Mr Riley living in a highly criminogenic family and peer group setting in the metropolitan area. If Mr Riley's release plans are realistic, they may offer him a far more positive opportunity than he has had in the past to avoid lapsing into drug use and subsequent offending."
The psychologist sensibly recommended a focus upon alcohol and drug treatment, but also pointed to the need to undertake programs to provide him with skills to enable him to make a go of things upon his release. The value of the Aboriginal counselling and support services was endorsed.
In the light of those reports Ms Townsend updated her previous pre‑sentence report, making it clear that the previous cancellation of his parole had not been the result of the commission of the armed robbery offence on 6 February 1998, but had pre‑dated that event and had been the result of his failure to comply with the directions he was given, particularly in respect of abstinence from the use of illicit drugs. His parole had in fact been cancelled by the Parole Board on 22 June 1997. Ms Townsend concluded her report with the following general comments:
"Riley's attitude and responses were remarkably different from his last interview with me conducted on 7 April 1998. He seems to have more insight into his problems and he seems to have changed his attitude to one of accepting his responsibility. He expressed that he regrets his behaviour in committing these offences and the period of incarceration has given him the opportunity to reflect. He stated that it took him about 8 to 12 months to 'straighten out' his thoughts. He stated that he has begun to think positively and he wants to continue to abstain from alcohol and drugs upon his release. He expressed that he intends to attend a treatment program upon his release as well as participate in programs for substance abuse and anger management in the prison. Riley impressed as being more settled. He seems to be making an effort at making changes to his life. His incarceration appears to have had a salutary effect on him. In view of the overall positive changes in attitude that Riley has made and his expressed desire to address his problems of substance abuse and anger management, it is considered that he is likely to benefit from parole supervision."
All of that was supported by a remarkably articulate letter, apparently written by the applicant from Casuarina Prison and dated 14 June 1999, in which the applicant apologised for his offences. In the letter he spoke of his history and his plans for the future in much the same terms as I have mentioned above. He spoke of his determination not to offend again and of his efforts to take courses and receive counselling while in prison to address his problems. He spoke of his willingness to continue that process in the community upon his eventual release. He concluded:
"I seek your understanding your Honour and would like to mention that if given the chance I need to go forward and make something positive of my life for myself, my family and within the community. I have agreed to subject myself to any condition stipulated necessary for parole release on the basis that the conditions required will enhance my own understanding of offending behaviour and to reinforce supervision of my parole progress. Your Honour I am dedicated to my intentions pre and post release. Spare time available upon my release will be quality time spent with my family on family interests and times."
The Judge in passing sentence described the offences, which he noted were committed while the applicant was on parole. That of 3 December 1997 was committed with the use of a knife at a shop while the applicant was there with another member of his then household who was shopping. $1,750 was obtained and not recovered. As his Honour said, "Persons operating shops at night must receive the protection of the court from the type of violence to which you subjected them." His Honour accepted that the offence was committed on the spur of the moment.
The second offence his Honour thought to be one of particular gravity and he expressed the view that its commission "has an important bearing on my decision as to whether or not there can be further parole." His Honour described how the victim of the offence was a rail commuter who had parked her car at a railway station. On returning in the evening she noticed that the window had been smashed. The applicant and the co‑offender were nearby interfering with another vehicle. They came to her and demanded a ride which she refused. The applicant threatened the woman with a screwdriver and removed a gold chain from around her neck. She ran for help and when she returned with another person, the applicant was attempting to push start the car. The offenders ran off.
The next offence was committed on the same date, but at a different place, at a liquor store which the applicant entered with a brown paper bag over his hand, saying that he had a gun. The proprietor was made of stern stuff. He threatened the applicant with a pepper spray and he ran away in company with his co‑offender.
Five minutes later they turned up at a supermarket nearby. Again the applicant made the same pretence that he was armed with a gun. On this occasion, thinking no doubt that the applicant had or might have had a weapon, the young employee at the cash register handed over a sum of money, which again was not recovered.
His Honour commented that the pleas of guilty were made on the day fixed for the trial. The mitigatory effect of the pleas in those circumstances was, with respect, correctly described as "minimal" and his Honour expressed the view that "the lateness of the plea shows very little remorse and in many respects was a recognition of the inevitable." His Honour went on to mention briefly some of the available evidence which bore out that observation.
It is evident that his Honour's sentences were carefully thought out and carefully structured in the way in which they were imposed. For the first offence described above, his Honour imposed a term of 5 years imprisonment to be served cumulatively upon previous terms. For the second offence he was sentenced to 7 years imprisonment, the service of which was to commence after serving 1 year of the first sentence his Honour imposed. For the third offence, the attempted armed robbery in company, a sentence of 4 years imprisonment was imposed to be served concurrently. For the last offence a sentence of 6 years imprisonment was imposed, again to be served concurrently. In the result, a further aggregate term of 8 years imprisonment cumulative was imposed. It is clear from his Honour's remarks that both in the length of the individual sentences and in the way they were structured his Honour paid careful regard to the total effect of the sentencing process.
The first ground of the application does, however, complain that the overall cumulative term is manifestly excessive. As the ground was supported in argument, this was not a complaint about the length of the terms individually imposed, but about the total effect of what was done, which was asserted to be both crushing and disproportionate to the overall criminality involved. The proposition may be tested by asking the question whether, having regard to the sentence imposed in the District Court, an aggregate term of 12 years imprisonment should be regarded as manifestly excessive in respect of 5 completed or attempted armed robberies, committed over a relatively short period.
In my opinion that cannot be said. In respect of one offence, a knife was produced. In another case the applicant threatened his victim with a screwdriver, otherwise he pretended to be armed with a gun. His victims were shopkeepers or the like and a lady who had alighted from a train and was in a public carpark. In some cases the applicant was in company with another. The greater part of the property stolen was never recovered and there was little to be said in mitigation of punishment arising out of the pleas of guilty. The applicant had a very bad history and really the only mitigation of any substance was to be found in his new found determination to achieve his rehabilitation and change his way of life. The Judge said he was moved to a degree by that circumstance, particularly as outlined by the applicant in the letter he wrote to the judge. In my respectful opinion the exercise of sentencing discretion has not been shown to have miscarried, either in the individual length of the terms imposed, which are well within the appropriate range, or in the way in which the sentences were structured to produce the total effect.
However, the second ground of the application has more merit in my opinion. It is a complaint about his Honour's failure to order eligibility for parole. It is argued that the position with respect to these offences was not worse in the total picture than with respect to the offence for which the sentence was imposed in the District Court accompanied by a parole eligibility order. The difference, it is argued, lay in the updating of the reporting process which I have discussed above. It is argued that in truth the reports before the court indicated a significant improvement in the conduct and attitude of the applicant since he was imprisoned upon the cancellation of his parole and upon his being sentenced in the District Court in early 1998.
During the period of almost a year which followed, it is argued that the applicant demonstrated convincingly a new found determination to deal with the issues in his life which contributed to his offending behaviour and to equip himself to live upon his release as a law abiding member of the community. It had gone beyond the stage where it might be said that this was a mere assertion for the purpose of obtaining the benefit of eligibility for parole, but those who reported upon the applicant appeared to accept the genuineness of his motivation and his new‑found insight into the problems with which he had to deal if he was not upon his eventual release to again revert to criminal associations and the commission of further offences.

The reasoning of the Judge emerges from his Honour's remarks at the time:
"I consider the decision I must come to in respect of parole is I have to look carefully at what is set out in section 89(2) of the Act and I consider the only judgment I can come to in the circumstances of this case is that there can be no further order of parole. There is nothing present, or not sufficient present to justify it and a great deal to speak against it.
The main factor or one of the important factors is this: when you were on parole you undertook not to break the law. There was repeat offending and in particular an offending of the type of offence in the parking area at the railway station. It would be undermining the whole administration of parole to readily grant it when there is offending of the seriousness of the type I have outlined.
It is of great concern to the community that offences such as stealing from shops under threat and particularly offences of stealing from the person in the violent way you did ‑ it is of concern to the community, great concern, that this is being carried out by persons already on parole, so that the serious nature of the offence, the antecedents and the circumstances I have outlined speak against it.
The next factor is that there is 2 years available to you on parole already. There is nothing present to the court to justify the court in making a further order. I am moved to a degree by what you have said in your letter and sentences have been made concurrent in areas where they would otherwise be cumulative. So the opportunity is there for you to make good in the way you have promised in respect of the parole that is available to you."
It was, of course, absolutely correct to focus upon the considerations with respect to this offender and the question of eligibility for parole in relation to the sentences being imposed by the court which are contained in the Sentencing Act 1995 (WA), s 89(2). The relevant case law is set out in summary form in Thompson v The Queen (1992) 8 WAR 387, 395 ‑ 396. I need not re‑state here the principles which are there set out which, although Thompson was concerned with the section which was the statutory precursor of s 89, have been held to continue to apply to the present Act: Wongawol v The Queen (1998) 101 A Crim R 350.
It was a consideration of some force that the offences with which his Honour was concerned were committed whilst the applicant was on parole. Indeed to my mind that would normally be a consideration of such importance that it would be almost inevitably decisive of the question of parole eligibility. But it could not be a consideration which nearly a year later would lead the court to decline parole if the relevant considerations then applicable, and which might be applicable at the time in the future when the applicant would become eligible for release on parole, would suggest that an order of eligibility for parole should be made.
Such an order is made "to mitigate punishment as well as provide an opportunity for rehabilitation" of an offender who is adjudged to be "likely to benefit from serving the relevant portion of the sentence under supervision in the community". The central task is always to balance the perceived need to protect the community from offending behaviour, at least for the period of a properly proportionate term of imprisonment, against the benefit likely to be derived, both by the offender and the community, from the making of a parole eligibility order for the purpose of promoting the process of rehabilitation. It is clearly a much better outcome for the community as a whole if a recidivist offender can finally be brought to a realisation of the need for his reformation and provided with mechanisms to assist him to achieve that end.
In that regard it seems to me, with respect, that the fact that there was, as has been seen, already in respect of other sentences, eligibility for parole and an opportunity in respect of those sentences to attempt rehabilitation by way of conditional freedom, was not relevant to the

question whether the same facility should be incorporated in the sentences then being imposed by the Court.

By the time the matter came before the Supreme Court, the antecedents of the applicant had been expanded beyond those which applied at the time the District Court imposed its sentence, in a most significant way. In my opinion that recent history pointed positively to the appropriateness of a parole eligibility order being made in respect of these sentences and while there was much in the history of the applicant overall to cause justified concern about whether he would have the capacity ultimately to make good his new‑found determination to reform, in the end I am driven to the conclusion that the exercise of discretion miscarried in this case. I would grant the application for leave and allow the appeal to the extent of varying the sentences by making an order of eligibility for parole.
SCOTT J: I have had the opportunity of reading in draft the reasons to be published by Murray J.
Having re-read the sentencing remarks of the learned trial Judge who imposed the sentence upon the applicant the subject of the appeal, it is quite apparent that, apart from the discretion to make a parole order, there is no error of law, or fact, detectable. His Honour was dealing with an offender who had committed very serious offences whilst on parole and on the face of it, at that time, there was little justification for the imposition of a further parole order. That was particularly so in view of the fact that the applicant had already available to him a term of 2 years' parole arising out of earlier sentences.
Whilst it is quite exceptional to do so, in this case a parole order was justified. There is evidence before this Court to suggest that the applicant is now determined to renounce his criminal ways and live a law-abiding life. The applicant is prepared to undertake rehabilitation courses which, if successful, may see him overcome his previous drug-related criminal activity.
There are reports before the court which justify the conclusion that the applicant is evidencing a sincere resolve to overcome his problems so that he can lead a law abiding life in the community. In that respect, this case is quite unique but the applicant should be given at least this opportunity to demonstrate his resolve.
For these reasons I agree with the draft judgment of Murray J and that in relation to the term of 8 years' imprisonment imposed upon the

applicant a parole order should now be fixed. That will have the effect of making the applicant eligible for release back into the community at an earlier date and give him the opportunity of demonstrating his capacity to carry out the resolutions expressed both in his own letter and in the reports presently before the court.

Should the applicant fail in his resolve, it may well be that the same leniency will not be extended to him in the future.