Smoker v The Queen
[2001] WASCA 388
•7 DECEMBER 2001
SMOKER -v- THE QUEEN [2001] WASCA 388
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 388 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:15/2001 | 20 NOVEMBER 2001 | |
| Coram: | WALLWORK J PARKER J OLSSON AUJ | 7/12/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY MARK SMOKER THE QUEEN |
Catchwords: | Criminal law Sentencing Applicant sentenced to 6 years' imprisonment for armed robbery without eligibility for parole Whether error in not ordering eligibility for parole |
Legislation: | Sentencing Act 1895 (WA), s 89 |
Case References: | Garlett v The Queen (2000) 111 A Crim R 336 Herbert v The Queen, unreported; CCA SCt of WA; Library No 970168, 18 April 1997 Mitchell v The Queen, unreported; CCA SCt of WA; Library No 960730; 18 December 1996 Riley v The Queen [2000] WASCA 111 Thompson v The Queen (1992) 8 WAR 387 Thompson v The Queen [2000] WASCA 47 Warner v The Queen, unreported; CCA SCt of WA; Library No 950260; 10 May 1995 Wongawol v The Queen (1998) 101 A Crim R 350 Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994 Armstrong v R, unreported; CCA SCt of WA; Library No 980231; 21 April 1998 Davies v The Queen, unreported; CCA SCt of WA; Library No 980513; 1 May 1998 Lowndes v R (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Ninyette v Power, unreported; SCt of WA; Library No 950082; 28 February 1995 Penny v The Queen, unreported; CCA SCt of WA; Library No 970663; 2 December 1997 R v Chilcott, unreported; CCA SCt of WA; Library No 8155; 23 March 1990 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SMOKER -v- THE QUEEN [2001] WASCA 388 CORAM : WALLWORK J
- PARKER J
OLSSON AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Applicant sentenced to 6 years' imprisonment for armed robbery without eligibility for parole - Whether error in not ordering eligibility for parole
Legislation:
Sentencing Act 1895 (WA), s 89
Result:
Application for leave to appeal refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms K J Farley
Respondent : Mr S E Stone
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Garlett v The Queen (2000) 111 A Crim R 336
Herbert v The Queen, unreported; CCA SCt of WA; Library No 970168, 18 April 1997
Mitchell v The Queen, unreported; CCA SCt of WA; Library No 960730; 18 December 1996
Riley v The Queen [2000] WASCA 111
Thompson v The Queen (1992) 8 WAR 387
Thompson v The Queen [2000] WASCA 47
Warner v The Queen, unreported; CCA SCt of WA; Library No 950260; 10 May 1995
Wongawol v The Queen (1998) 101 A Crim R 350
Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994
Case(s) also cited:
Armstrong v R, unreported; CCA SCt of WA; Library No 980231; 21 April 1998
Davies v The Queen, unreported; CCA SCt of WA; Library No 980513; 1 May 1998
Lowndes v R (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
(Page 3)
Ninyette v Power, unreported; SCt of WA; Library No 950082; 28 February 1995
Penny v The Queen, unreported; CCA SCt of WA; Library No 970663; 2 December 1997
R v Chilcott, unreported; CCA SCt of WA; Library No 8155; 23 March 1990
(Page 4)
1 WALLWORK J: I agree with the reasons for judgment of Parker J and to the order proposed by His Honour.
2 PARKER J: This is an application for leave to appeal against a sentence of six years imprisonment, without eligibility for parole, which was imposed on the applicant by Anderson J on 31 January 2001 in respect of an offence of robbery, attended with the circumstance of aggravation that the applicant was armed with a dangerous weapon, namely a replica handgun, to which the applicant had pleaded guilty.
3 The offence occurred on 22 October 2000 at Cooloongup. On the evening of that day the applicant obtained possession of a replica semi-automatic handgun. He made a telephone call to the Chicken Treat store in Cooloongup to confirm that the restaurant section of the store was still open. He then walked to that store, entered, and carrying the weapon he then walked behind the counter of the store into the work area. He cocked the replica handgun and ordered the two young staff members present to lay on the floor and demanded cash from the manager, a young woman aged 21 years. The applicant went with the manager to the office where he was handed a quantity of notes and coin totalling some $700; some of this the manager had taken from the safe. The money was placed in a calico bag and the applicant then ran from the store. Some days later the applicant was interviewed by detectives. He admitted the offence, although denied ordering the staff to lie on the floor. He said that the money was to pay for bills and that none of it remained. The police were unable to recover any of the money or the replica handgun.
4 The applicant pleaded guilty at an early stage of the proceedings in the Court of Petty Sessions and came before this Court on a "fast track" plea of guilty. Having heard submissions in respect of penalty from counsel for the applicant and the Crown on 10 January 2001, in which the contents of a pre-sentence report which had been obtained were the subject of submissions, his Honour remanded the applicant until 31 January 2001 for sentencing.
5 In the course of his careful sentencing remarks Anderson J accurately identified the circumstances of the offence, the ready admission of it to the police by the applicant when interviewed, and then considered the record of convictions of the applicant. He noted there was "a considerable record of offending in South Australia including numerous larceny offences, break and enter, burglary and assault occasioning bodily harm convictions", and that the applicant had been imprisoned on three occasions in South Australia. His Honour observed that the applicant's
(Page 5)
- record in Western Australia commenced in February 1999 and revealed serious offending, including a conspiracy to commit indictable offences, such that in September 1999 the applicant was sentenced to a term of 3 years and 3 months imprisonment in the District Court. His Honour noted that the applicant had been released on parole in respect of that term on 8 June 2000, with the consequence that the applicant was on parole at the time he committed the present armed robbery offence.
6 His Honour also noted that the applicant, who was 25 years of age, had a history of alcohol and drug abuse, and the applicant's compliance with parole conditions in respect of the September 1999 sentence had been reported to be not satisfactory. Further the applicant, having committed the present offence, had his parole cancelled on 30 November 2000. His Honour also correctly observed that the applicant had also breached the conditions of his parole in South Australia.
7 His Honour's remarks accurately summarised the main features of the applicant's early life, personal background, his schooling which concluded at Year 10, and his employment history. The applicant had been unemployed since 1996, apart from a brief period as a shop assistant in early 1999. His earlier employment had been intermittent, mainly as a barman.
8 In light of these matters his Honour summarised the applicant's position as -
"You now present as a 25-year-old with a significant criminal record, poor employment history and a history of poor response to community supervision. There's also history, as I have said, of drug abuse and the impression I have from all the material before me is that your drugs of preference are heroin and amphetamine, or were at one time, although you claim not to have used it for some time now, and also of course, cannabis."
9 Having observed that the use of the replica handgun no doubt caused very considerable distress and fear to the young staff members of the store, and the prevalence of that kind of offence, his Honour saw 8 years' imprisonment to be an appropriate starting point. This is well within the appropriate range and no objection is made in this regard. His Honour considered that the only mitigatory circumstance of significance was the applicant's plea of guilty for which he allowed a discount, which he identified at 25 per cent, and by this means he came to the sentence of 6 years imprisonment. Again, no objection is made in this respect.
(Page 6)
10 His Honour's sentencing remarks then continued: –
"I have read a pre-sentence report which does not consider that you are a suitable candidate for supervision within the community. Your response to parole conditions in the past has been unsatisfactory and this was a very serious offence committed whilst you were on parole."
- His Honour then expressed the view that there was nothing in the applicant's past which would indicate that any benefit was to be derived by the community from making the applicant eligible for parole and that he was not persuaded that the applicant would benefit from a period of supervision within the community. His Honour concluded –
"There is nothing to indicate that eligibility for parole is appropriate and I decline to make a parole eligibility order."
12 By the Sentencing Act 1995 (WA), s 89(1), an offender may be made eligible for parole if the sentencing court "considers that it is appropriate to do so". In this respect, it is provided by s 89(2) that in determining whether it is appropriate to make a parole eligibility order the sentencing court may have regard to all or any of a number of identified factors which may be summarised as, the seriousness and nature of the offence, the circumstances of its commission, the offender's antecedents, circumstances relevant to the offender or which, in the Court's opinion, might be relevant at the time of eligibility for release on parole if parole were ordered, and any other reason the Court decides is relevant in the circumstances.
13 The decision of this Court in Thompson v The Queen (1992) 8 WAR 387, 395-396 is accepted as identifying the relevant principles which guide the application of s 89. I need not set them out fully for the purposes of this application. Of course Thompson was decided in respect of the statutory precursor to s 89 but is of continued application; Wongawol v The Queen (1998) 101 A Crim R 350.
(Page 7)
14 With respect to the effect of the pre-sentence report, the reporting officer expressed the opinion that the applicant was not suitable for community supervision. It was suggested that this ran the risk of "setting him up to fail once again". The report then continued –
"Should the Court impose a custodial sanction it may be appropriate that provision be made in sentencing for Parole release. Alternatively, the Court may wish to consider the imposition of a finite sentence."
- It is fair to observe that while this report was clear in the expression of opinion that the applicant was unsuitable for community supervision it effectively avoided any specific recommendation concerning parole. I do not understand its equivocal stance as conveying a recommendation in favour of a parole eligibility order. The relevant observations of his Honour have been set out above. In my view no misunderstanding of the pre-sentence report is revealed. His Honour accurately and concisely identified the view expressed in the report concerning supervision in the community. His Honour then went on to reflect on the applicant's response to earlier parole, observing in particular that the present offence was committed while the applicant was on parole. These are not observations founded on the relevant passage in the pre-sentence report. Rather they accurately state the effect of other information before his Honour.
15 The further comments of his Honour which then immediately followed confirm that his Honour directed his attention to whether the community or the applicant would benefit from an order that the applicant be eligible for parole. He concluded that there was nothing to indicate that eligibility for parole was appropriate.
16 The effect of s 89 of the Sentencing Act is that the discretion which it confers to order eligibility for parole is not triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole; Thompson v The Queen (supra). Where there is something in the materials before the sentencing judge which does point positively towards the appropriateness of parole, the discretion will appropriately be exercised in favour of the prisoner unless there is sufficient reason not to do so; Garlett v The Queen (2000) 111 A Crim R 336 per Anderson J at [87].
17 It was submitted, in particular, that having regard to the length of the sentence there was both a need for his Honour to have considered the circumstances which might be relevant at the time when the applicant
(Page 8)
- could be eligible for release and parole, and having regard to the length of time an adverse prognosis would be difficult. Reference was made to the view expressed by Anderson J, Malcolm CJ and Wallwork J concurring, in Thompson v The Queen [2000] WASCA 47 where at [29] – [30] his Honour said –
"[29] The point is that the more serious the crime and hence the longer the sentence, the more imperative may be the need to consider the question whether the offender is likely to benefit from serving a portion of his or her sentence under supervision in the community. As has been pointed out many times in this Court, it is also relevant in the context of s 89(2)(d) of the Act to make a prognosis and the longer the custodial term, the more difficult it is to make a prognosis adverse to the offender as regards his or her rehabilitation."
It is material, however, to note the passage that immediately follows: -
"[30] However, the matters adverted to by his Honour were not confined only to the seriousness and nature of the offences themselves. His Honour also adverted to the circumstances of the commission of the offences; and to the applicant's antecedents. In this case, the past history of breaching bail conditions (twice) and conditions of probation (twice) and the fact that the offence is the subject of counts 8, 9 and 10 were committed shortly after his release when the applicant was on parole clearly do outweigh the factors that might otherwise have supported the making of a parole order …"
The significance of these observations in the present case will be considered later.
18 Both the statute and principle require that among the factors relevant to parole eligibility is the situation of the applicant as it might be, on the hypothesis that he is made eligible for parole, viewed at the time of his release; as Anderson J himself put it in Thompson v The Queen, whether the offender is likely to benefit from serving a portion of the sentence in the community. As has been noted earlier in this case the sentencing remarks show that his Honour gave this issue direct consideration, but he concluded that neither the community not the applicant would benefit from parole. It is the case that at this point in his sentencing remarks all of the reasons which led his Honour to this view were not exhaustively
(Page 9)
- spelt out. Particularly in the context of sentencing remarks that is not necessary. It is necessary to consider the conclusion reached by his Honour in the context of the total effect of his remarks. It is clear, however, that his Honour had immediate regard to the applicant's past failures on parole, in particular his breach by re-offending on this occasion, and the seriousness of this offence committed while on parole. Further, his Honour came to the conclusion in question only after a careful review of the circumstances of this case, which included a consideration of each of the other matters to which s 89(2) directs attention.
19 There is wide acceptance of the proposition that persons, on being released after serving a term of imprisonment, are likely to be assisted in their adjustment to life in the community by a level of supervision; what has been described as a controlled transition into the community. Generally, this is more likely to be so with those who are young, or who have unresolved problems such as drug or alcohol dependency, or where the release follows an extended period of incarceration. Herbert v The Queen, unreported; CCA SCt of WA; Library No 970168, 18 April 1997 is one of many decisions which recognises or proceeds on the basis of the general proposition. Mitchell v The Queen, unreported; CCA SCt of WA; Library No 960730; 18 December 1996 is an example in which the relevance of youth and the length of the imprisonment are recognised. Warner v The Queen, unreported; CCA SCt of WA; Library No 950260; 10 May 1995, per Malcolm CJ at 9, draws attention to the relevance in this context of substance abuse. Each of these elements has at least some relevance in the present case. Even at 25 years of age the applicant is still relatively young, there seem to be some unresolved issues concerning drug abuse despite the applicant's claim not to have used drugs for some time, and the two year minimum term to be served if parole were to be ordered is of some significance in terms of its length.
20 In this State, of course, these considerations can only arise in the context of parole eligibility, as there is no other legislative or administrative scheme for supervision in the community after release from prison. A grant of parole eligibility is governed by s 89 so that a range of factors, apart from the potential value of supervision after release, must also be taken into account. Parole provides a particular form of supervision. Such supervision is an attribute of parole, rather than being its principal object, as the purposes of parole are not merely to assist the transition into the community. Other attributes of parole include a much earlier release into the community, a release that is conditional, and the prospect that if the conditions of release are not observed the parolee may be returned to custody to serve in full the balance of the sentence.
(Page 10)
21 While the supervision after release which parole offers may be seen to be potentially of value for a particular offender, the other purposes and attributes of parole may well overshadow that consideration in a particular case and lead, on balance, to a decision against parole eligibility. Further, the process of decision about parole eligibility necessarily requires the evaluation of a variety of factors, some of which may be to opposite effect, the relevance and weight to be attached to each of them varying with the circumstances of each case.
22 In my view it is difficult, indeed, to see that his Honour should have been persuaded that the applicant would approach parole with a different attitude were it to be ordered on this occasion, given that he was 25 years of age, with a significant criminal record, had more than once breached parole in the past, and most recently has been prepared to commit a very serious offence within a relatively short time after being released on parole. His Honour was clearly correct in having particular regard in this context to the seriousness of the offence committed while on parole. It is not inevitable that eligibility for parole will be refused where an offence is committed whilst on parole; see Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994, per Seaman J at 9, and Riley v The Queen [2000] WASCA 111. The circumstances of the present case, however, differ in material respects from those being considered in Yarran v The Queen. Significantly, though, as this Court held in Riley v The Queen at [29] per Murray J, Wallwork J concurring, and see [34]-[35] per Scott J, the commission of an offence while on parole is normally a circumstance of such importance that it is almost always decisive of the question of parole eligibility. Obviously, in this respect, the more serious the offence committed the more telling is the consideration against parole. Hence, the force of the reasoning quoted earlier from Thompson v R at [30], and its relevance in this case.
23 For these reasons, in my view, it has not been demonstrated that his Honour fell into error whether in his understanding of the pre-sentence report, or by failing to give consideration to the circumstances that might effect the applicant on release if parole were to be ordered, or in not being persuaded that parole eligibility was appropriate. It has not been demonstrated that the discretion whether or not to order eligibility for parole was not properly considered and exercised.
24 I would refuse leave to appeal.
(Page 11)
25 OLSSON AUJ: I have had the benefit of reading the reasons for judgment of Parker J in draft. I agree with his conclusions and the order which he proposes.
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