Soulos v State of Western Australia - [2004] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SOULOS -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 182

CORAM: MALCOLM CJ
MURRAY J
EM HEENAN J

HEARD: 9 MARCH 2004

DELIVERED : 9 MARCH 2004

PUBLISHED : 18 AUGUST 2004

FILE NO/S: CCA 198 of 2003

BETWEEN: NATHAN JOHN SOULOS
Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :BLAXELL DCJ
File Number            :  IND 129 of 2003

Catchwords:

Criminal law and procedure - Sentencing - Aggravated burglary and stealing offences - Whether accumulation of sentences proper - Whether parity of treatment with cooffender - Whether term of imprisonment should have been suspended - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences varied by ordering suspension of term for 12 months

Category: B

Representation:

Counsel:

Applicant: Mr D S Hunter
Respondent: Mr D Dempster

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321
Postiglione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Ginger v Taylor [2003] WASCA 327
Lowndes v the Queen (1999) 195 CLR 665
MacPherson v The Queen [2002] WASCA 287
McGregor v Connor & Anor [2001] WASCA 187
R v Campbell (2002) 129 A Crim R 531
R v Mada (2002) 137 A Crim R 460
R v Rafferty 135 A Crim R 282
Smith v Pritchard [2003] WASCA 6

JUDGMENT OF THE COURT: On 24 November 2003 the applicant pleaded guilty in the District Court at Bunbury to an offence of burglary in company committed on 22 June 2003 at Australind and to two offences of stealing, one committed on 23 July 2003 at Brunswick, a theft of 35 magazines, valued at $300, from the Brunswick Newsagency and Gift Shop, and the second committed on the same date at Dalyellup, when items of bread to the value of just over a hundred dollars were stolen from the Dalyellup Delicatessen.
We will return to the facts shortly. The sentencing Judge concluded his remarks upon sentence by saying that his Honour took the view that the only appropriate penalties were "terms of imprisonment to be served immediately." His Honour then referred to the mitigation by way of the pleas of guilty and the further reduction in the term which would otherwise have been appropriate, flowing from the amendments made to the Sentencing Act 1995 (WA), effective from the end of August 2003. He imposed a sentence of 12 months imprisonment for the offence of aggravated burglary. For each of the relatively minor stealing offences his Honour imposed terms of 3 months imprisonment to be served concurrently, but cumulatively upon the term of 12 months, making an aggregate term of 15 months imprisonment with eligibility for parole.
His Honour noted that when the applicant came before him he was serving a term of imprisonment in default of payment of fines. That term was not due to expire until 22 December 2003, but his Honour's sentence was to run from the date of its imposition, 24 November 2003. The applicant would therefore have become eligible to serve a period of 7½ months on parole after a non‑parole period of the same duration.
He appealed against the severity of those sentences and after hearing the application on 9 March 2004, by which time the applicant had served approximately 3½ months of the non‑parole period, we granted leave to appeal, allowed the appeal and varied the sentence of 12 months imprisonment imposed by the District Court by ordering its service to be suspended for a period of 12 months. These are our reasons for those orders.
The applicant did not complain of the duration of the terms of imprisonment, if imprisonment was to be imposed. His first complaint was, however, that a non‑custodial order ought to have been made in his case, at least for the burglary offence, because the co‑offender in relation to that offence, one Davies, had been sentenced to an intensive supervision order for a period of 2 years. The principle of parity in sentencing, the applicant argued, demanded a similar disposition in his case.
If, however, this Court was to hold that there was no error in the sentencing Judge's conclusion that the only appropriate penalty in his case was the punishment of imprisonment, the applicant argued that at least the term ought to have been reduced by allowing the 3 month sentences for the stealing offences to be served concurrently. Finally, the applicant submitted that whatever be our conclusion about the submission that the terms should all have been imposed concurrently, the sentencing Judge erred in not ordering the suspension of service of the final term of imprisonment.
The facts of the burglary offence are that both Davies and the applicant were users of prohibited drugs. Davies had drug debts for which he was being pressed. The applicant, perhaps reluctantly, became involved with Davies in breaking into a shed on a property at Australind, where they had reason to believe they would find small motorcycles, used by a child who resided at the premises for motocross racing. They stole two of the small motorcycles, the total value of which was given as $4300. One of them was sold for money and drugs and the other one was later recovered, damaged. A victim impact statement showed, the sentencing Judge said, that the small boy who used the bikes was devastated by their loss.
It appears that the offence attracted some local media publicity. The two offenders felt sorry for what they had done and contacted the police, telling them where they could find the motorcycle which remained in their possession. Both offenders then surrendered to the police and fully confessed the part they had played in the commission of the offence. Both of them further made good this demonstration of remorse by pleading guilty in the Court of Petty Sessions and by accepting the process of expedited committal.
In the meantime, the applicant, Davies and another offender were together in a car in Brunswick at about 4.30 am on 23 July 2003. Outside the front of the newsagency was a magazine rack with a number of magazines in it. The applicant and Davies used bolt‑cutters to open the magazine cage and steal the magazines. About an hour later they were all in Dalyellup. On the footpath at the front of the delicatessen there were some crates of bread which had been delivered to the store. The applicant picked up a number of the crates, but while returning to the car he was disturbed by a security officer in another vehicle. He dropped all but one crate of bread, with which he returned to the car. Davies drove them away, followed by the security officer, which led to their arrest by the police.
Davies came for sentence before a different judge of the District Court on 1 October 2003. He was 22 years of age at the time. He had a relatively minimal criminal history and the pre‑sentence report showed that he had been making efforts to address a drug problem, with some success. He was encouraged to continue and the pre‑sentence report before the Court in respect of Davies was described as favourable. In addition, the prosecution did not submit that the only appropriate disposition of Davies' case was a term of imprisonment. The judge imposed a 2 year intensive supervision order with a program requirement directed to the pursuit of a drug rehabilitation process. Fines were imposed for offences of dangerous driving and driving without a motor driver's licence.
The applicant's antecedents were rather worse than those of Davies. He was about the same age, 21 years old, when he came before the District Court. His record showed a number of drug‑related offences, nuisance offences and motor vehicle offences; not offences of great seriousness, but involving regular appearances before the courts. When he came before the District Court he was the subject of a less than favourable pre‑sentence report. The report had originally been made for use in the Court of Petty Sessions in September 2003 in respect of an offence of selling or supplying methylamphetamine.
The applicant had said he was keen to deal with his drug problem and it was reported that he had taken the initiative to obtain a referral to a residential treatment program. The Community Corrections Officer had organised the referral to Serenity Lodge in Rockingham. She was impressed with the applicant's evident commitment. He was accepted into the program under a pre‑sentence order, but he did not maintain the commitment and after a fortnight discharged himself from Serenity Lodge.
The pre‑sentence report detailed other failures to observe the conditions of community based orders in respect of substance abuse counselling and community work. The Community Corrections Officer concluded:
"To date Mr Soulos' response to community supervision requirements has not instilled any degree of confidence for his future satisfactory completion of community based sentence options. However, should the Court impose a non‑custodial sentence for his current offences, this Service will endeavour to engage Mr Soulos in his existing ISO upon his expected release from his fine default sentence."
In those circumstances, on the hearing of the application for leave to appeal, we were unpersuaded that any error was revealed in the decision of the sentencing Judge that the punishment of imprisonment was required in this case. In our view, the proper application of considerations of parity in sentencing did not support the contrary view. While Davies was somewhat older than the applicant and was a prime mover in the decision to commit the offence of burglary and while the applicant was initially reluctant to be involved, when they embarked upon the commission of the offence it is difficult to distinguish between the respective culpability of the two offenders. It is impossible to do so with respect to the stealing offences.
However, the applicant's personal antecedents were clearly of a different character from those presented to the Court by Davies. For sentencing purposes there was, in our opinion, a substantial disparity between the cases of these two offenders and the applicant had, we think, forfeited his capacity to move the sentencing Court to a non‑custodial disposition on the ground of parity of treatment with that accorded to Davies: Postiglione v The Queen (1997) 189 CLR 295, 301 – 2.
If, as we think to be the case, the judge's decision to order imprisonment was defensible as an exercise of sentencing discretion then, as we have observed, there is no complaint about the length of the term imposed for the offence of burglary in company and the only complaint made in respect of the other two sentences of 3 months imprisonment is that they should have been imposed concurrently and not cumulatively upon the 12 month term.
In our view, however, there can be no complaint about the order that these terms should be served concurrently with each other, but cumulatively upon the 12 month term. While the two stealing offences were loosely linked to each other, having regard to the circumstances of their commission on the one date apparently in the course of one escapade, they were quite different offences from the burglary, committed on a different occasion against different victims in respect of different property. The decision to order cumulative service of the 3 month terms was, in our opinion, clearly appropriate and the decision did not need to be abandoned having regard to considerations of totality of sentence.
As to the question of suspension of sentence, however, the High Court has provided valuable guidance in its decision in Dinsdale v The Queen (2000) 202 CLR 321. It was pointed out, as is recognised in a number of decisions of this Court, that having regard to the terms of ss 39 and 76 of the Sentencing Act1995 (WA) the decision to suspend service of a term of imprisonment falls to be exercised as part of the general exercise of sentencing discretion upon the making of the decision that imprisonment is the only appropriate sentencing disposition. It appears that the Sentencing Act takes that course to avoid undue expansion of the cases in respect of which suspended imprisonment may be ordered. In other words, disposition other than imprisonment having been discarded in the exercise of sentencing discretion, the Court must then consider whether the imprisonment is to be immediately served or suspended.
Again that is a matter of discretionary judgment. As the High Court and as this Court has made clear, there is no particular category of case or particular purpose of sentencing which is to be regarded as positively calling for suspension or positively excluding its appropriateness. The considerations generally applicable to the choice of the ultimate sentencing disposition will be those which inform the Court's decision whether to order the immediate service of a sentence of imprisonment or that its service be suspended. It is pointed out in that regard that under s 76 a sentence of up to 5 years imprisonment may be suspended and so it is abundantly clear that a suspended sentence is a disposition which is to be taken to be available in quite serious cases.
In our respectful opinion, the decision of the sentencing Judge that the imprisonment imposed was to be immediately served in this case was in error in all the circumstances. While the burglary offence was serious enough to attract imprisonment, this was the first occasion when such a sentence had been imposed on the applicant. It was an offence committed because of the applicant's association with other young persons in a culture of drug abuse. He appreciated its seriousness and was reluctant to participate in it. He soon became remorseful for its commission and carried that through by assistance rendered to the police and by his early pleas of guilty.
Whilst he had previously failed to seriously address his drug abuse problem, his appearance before the court for this offence, much more serious than any which had previously brought him to the attention of the law, had the capacity to provide the impetus needed for him to seriously address his personal problems. He was a young man and in our opinion he deserved a last opportunity to stay out of gaol and demonstrate that he could avoid the commission of further offences.
Suspended imprisonment would, in our view, adequately provide for general deterrence and would operate as an adequate personal deterrent against further offending by the applicant, who must appreciate that if there is any further offending it will almost inevitably lead, under s 80 of the Sentencing Act, to an order that he serve the term of 15 months imprisonment with eligibility for parole on top of that time which he has already spent in prison. It was for those reasons that we allowed the appeal and suspended service of the term of 15 months imprisonment for the period of 12 months.