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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Riley v The Queen

Details

AGLC: Riley v The Queen [2000] WASCA 111
Case: [2000] WASCA 111
Decision Date: 5 MAY 2000

CaseChat Overview and Summary

Riley v The Queen concerned an individual sentenced for an attempted armed robbery, to which he received a term of four years with eligibility for parole. Subsequently, the same individual was indicted for further offences of armed robbery and attempted armed robbery. The court was tasked with determining the appropriate sentence for these additional offences. The cumulative term imposed was eight years, without eligibility for parole. The decision centred on whether the aggregate term should be upheld and whether parole eligibility should be restored.

The legal issues revolved around the appropriate sentencing approach for the additional offences, given the earlier sentence and the offender's changed attitude post-incarceration. The court needed to balance the principles of general and specific deterrence with the principles of rehabilitation and proportionality. It had to consider the offender's conduct, the nature and circumstances of the additional offences, and the overall impact of the cumulative sentence.

The court found that while the aggregate term should stand, the order denying parole eligibility was excessive. It acknowledged the offender's improved attitude after serving part of the initial sentence. The court held that the original rationale for denying parole eligibility was no longer applicable, given the positive behavioural changes. Therefore, the court reinstated parole eligibility while maintaining the cumulative term of eight years imprisonment. The second group of sentences was upheld, but with the modification to restore parole eligibility.

Orders