SCOFFERN v Wood

[2000] WASCA 43

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SCOFFERN -v- WOOD & ORS [2000] WASCA 43

CORAM:   McKECHNIE J

HEARD:   8 FEBRUARY 2000

DELIVERED          :   8 FEBRUARY 2000

FILE NO/S:   SJA 1217 of 1999

BETWEEN:   KEVIN JAMES SCOFFERN

Appellant

AND

RAYMOND KEITH WOOD
First Respondent

STEPHEN PAUL TAYLOR
Second Respondent

JESS OLSEN
Third Respondent

FRANK NIPPERUS
Fourth Respondent

Catchwords:

Criminal law - Sentencing - Whether an order to suspend sentence should have been made - Whether parole eligibility order should have been made - No new principle

Legislation:

Crimes Act 1914 (Cth)

Sentencing Act 1995 (WA)

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant:     Ms V M Robinson

First Respondent           :     Ms C A O'Brien

Second Respondent      :     Ms C A O'Brien

Third Respondent          :     Ms C A O'Brien

Fourth Respondent        :     Mr D W L Renton

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        :     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Australian Coal & Shale Employees' Union v The Commonwealth (1953) 94 CLR 621

Laxton v Justice (1985) 38 SASR 376

Nunn v Kinnon (1988) 4 WAR 459

R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

R v Liddington (1997) 18 WAR 394

R v Rossi (1988) 4 WAR 463

Chan v R (1989) 38 A Crim R 337

1. McKECHNIE J:  The appellant, now aged 21, pleaded guilty in the Perth Court of Petty Sessions on 9 November 1999 to a variety of Commonwealth and State charges and was sentenced as follows: 

2. On complaints Midland No 5545‑7/99, being three offences against the Commonwealth of making a false statement, he was sentenced to imprisonment for 6 months on each and concurrent with each other.

3. On complaint No MI3800/99, one count of receiving, he received a sentence of imprisonment for 12 months, cumulative on the sentence of 6 months to which I have referred.  On complaint No MI5872/99, he pleaded guilty to one count of receiving and received a sentence of imprisonment for 3 months concurrent.  On complaint No MI4239/99, possession of a smoking implement, he received a sentence of imprisonment for 1 month concurrent, making a total sentence of 18 months imprisonment.  The learned Magistrate declined to order parole.

4. The two principal grounds upon which it is contended that the Magistrate erred are that he failed to impose a suspended sentence and that he failed to make a parole eligibility order in respect of the State offences and a conditional release order in respect of the Commonwealth offences.

5. Leaving aside technical objections in relation to the Commonwealth offences, in my opinion the Magistrate's discretion not to impose a suspended sentence did not miscarry.  There was nothing in the facts to show the appellant's rehabilitation would be assisted by suspending the sentence.

6. True it is that he was seeking help for his heroin and amphetamine addictions, but nothing was put to the Magistrate to show how the applicant's attempt to tackle these problems could not proceed just as well within gaol.  The applicant's background of offending as an adult, because I disregard the Children's Court record, does not give much confidence that he would take advantage of the special opportunity a suspended sentence would provide.

7. Furthermore, circumstances of all the offences were relatively serious.  The appellant, though young, is not a youth.  The offences in relation to the Commonwealth are prevalent and are appropriately to be visited with a significant penalty; generally a term of imprisonment to be served forthwith.

8. Though there was a plea of guilty, it was not made at an early stage, so the mitigatory effect of that plea is lessened.  In all the circumstances, I am not persuaded that the Magistrate's discretion miscarried in failing to suspend the sentence of imprisonment.

Eligibility for parole or conditional release order

1. The matters which were argued as to the reasons for suspending the sentence take on a different aspect when the consideration is whether or not to allow some of that sentence to be served in the community.

2. In my opinion, the factors in this case pointed positively towards making a parole eligibility order in respect of the State offences.  I am satisfied that the Magistrate was in error in failing to so order.  The Crown in right of the State on the appeal has conceded that such an order should have been made.  In my opinion that concession is correct.

3. The general philosophy of the Crimes Act 1914 (Cth) is against ordering a recognisance release order for sentences of 6 months. However, when it is appreciated that the total sentence to be served was in fact 18 months, and not 6 months, I am satisfied that the Magistrate erred in failing to make a conditional release order.

4. I consider that in all of the circumstances, a sentence of 6 months was appropriate but of that sentence I would order that 2 months be spent in custody and the balance of 4 months be the subject of a conditional release order with a condition that he generally follow the instructions of a parole officer.

5. I order that the appeal be allowed in respect of complaints MI3800/99, 5872/99 and 4239/99.  I order that there be a parole eligibility order in each case.

6. In respect of complaints No MI5545‑47/99 inclusive, the sentence of 6 months imprisonment is confirmed.  It is, however, varied as follows:  The sentence is directed to commence on 10 March 2000.  The appellant may be released after serving 2 months imprisonment upon entering into a recognisance for a period of 6 months in the sum of $500.  A condition of that release is that he comply with the reasonable directions of a probation officer for a period of 6 months.