The State of Western Australia v Anderson
[2004] WASCA 157
•29 JULY 2004
THE STATE OF WESTERN AUSTRALIA -v- ANDERSON [2004] WASCA 157
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 157 | |
| COURT OF CRIMINAL APPEAL | 29/07/2004 | ||
| Case No: | CCA:13/2004 | 1 JUNE 2004 | |
| Coram: | MURRAY J MCLURE J JENKINS J | 1/06/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Sentences quashed, Sentences of 2 years' imprisonment imposed for each offence to be served , concurrently | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA WILLIAM FREDERICK ANDERSON |
Catchwords: | Criminal law and procedure Sentencing Assault occasioning bodily harm Threat to kill Sentencing Judge erred in reducing sentences because he did not make parole eligibility order Sentences manifestly inadequate |
Legislation: | Offenders Probation and Parole Act 1963 (WA), s 37A(1) Sentencing Act 1995 (WA) Sentencing Legislation Amendment and Repeal Act 2003, s 2(1) |
Case References: | Gallegos v The Queen [1999] WASCA 191 Howell & Utting v The Queen (1989) 2 WAR 60 Hubbard v Fisher [2001] WASCA 182 Jarvis v The Queen (1993) 20 WAR 201 R v Gordon [2000] WASCA 401 R v Vletter [2004] WASCA 96 Shaw v R (1989) 39 A Crim R 343 Swain v The Queen (1989) 41 A Crim R 214 Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 R v Clarke (1996) 85 A Crim R 114 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- ANDERSON [2004] WASCA 157 CORAM : MURRAY J
- MCLURE J
JENKINS J
- Appellant
AND
WILLIAM FREDERICK ANDERSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
File Number : KAL 28 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing - Assault occasioning bodily harm - Threat to kill - Sentencing Judge erred in reducing sentences because he did not make parole eligibility order - Sentences manifestly inadequate
Legislation:
Offenders Probation and Parole Act 1963 (WA), s 37A(1)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003, s 2(1)
Result:
Appeal allowed
Sentences quashed
Sentences of 2 years' imprisonment imposed for each offence to be served concurrently
Category: A
Representation:
Counsel:
Appellant : Mr K M Tavener & Mr T P L Scutt
Respondent : Mr C L J Miocevich
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Aboriginal Legal Service
Case(s) referred to in judgment(s):
Gallegos v The Queen [1999] WASCA 191
Howell & Utting v The Queen (1989) 2 WAR 60
Hubbard v Fisher [2001] WASCA 182
Jarvis v The Queen (1993) 20 WAR 201
R v Gordon [2000] WASCA 401
R v Vletter [2004] WASCA 96
(Page 3)
Shaw v R (1989) 39 A Crim R 343
Swain v The Queen (1989) 41 A Crim R 214
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Clarke (1996) 85 A Crim R 114
(Page 4)
1 MURRAY J: I entirely agree with the judgment of Jenkins J. It expresses the reasons why I joined in the orders made on the hearing of appeal and I have nothing to add.
2 MCLURE J: I agree with the reasons published by Jenkins J.
3 JENKINS J: On 27 January 2004 the respondent pleaded guilty in the District Court sitting in Kalgoorlie to a charge of assault occasioning bodily harm and a charge of threatening to kill. On each offence he was sentenced to 18 months' imprisonment. The sentences were ordered to be served concurrently and the sentencing Judge decided not to make a parole eligibility order.
4 On 1 June 2004 this Court ordered that the State's appeal against the sentences be allowed. On that date it was ordered that the sentences be quashed and sentences of 2 years' imprisonment be substituted for each offence. This Court did not alter the sentencing Judge’s orders that the sentences be served concurrently and that the respondent not be granted a parole eligibility order. What follows are my reasons for joining in those orders.
Grounds of Appeal
5 There is only one ground of appeal which is that:
"1. The learned sentencing judge erred in reducing the length of the sentence of imprisonment imposed to one lower than his Honour would otherwise have imposed, by reference to his intention not to make a parole eligibility order."
Facts
6 The State presented the following statement of facts to the District Court:
"The facts in relation to this matter are that the offender and the complainant, Carol Williams, living in a de facto relationship. The offender is of a larger guild (sic) than the complainant. On 3 December 2003 the defendant started drinking in the afternoon and continued to do so late into the night. Between midnight and 4 am on Friday, 5 December 2003 the offender was at Bondini Reserve in Wiluna.
(Page 5)
- The offender finished playing cards at one of the homes and went looking for the complainant who had walked off sometime earlier. The offender found the complainant in one of the rooms at Bondini Reserve partially dressed, in bed asleep with another man. The offender walked up to the complainant and slapped and punched her to the head and face, waking her from sleep.
The offender grabbed hold of the complainant and pulled her from the bed. As he pulled her off, he punched her again to the face several times. The complainant managed to get dressed and the offender then dragged her from the room. The offender pushed and dragged the complainant approximately 200 metres towards Well Street. The offender, while walking, removed a steel stake from the ground and struck the complainant repeatedly all over her body. The offender ripped the complainant's bra from her and threw it on the ground.
The complainant, now half naked, was dragged to the road where she was further assaulted. The offender grabbed the complainant around the throat and said repeatedly, 'I'm going to kill you.' The complainant was pinned to the ground and in genuine fear for her life. The complainant attempted to break free by thrashing her legs about but was unable to break away.
It was only once a vehicle approached that the offender released his hold on the complainant. The offender then gave the complainant his shirt to put on and waved down the vehicle. Both the offender and the complainant got into the car, which had stopped, and were taken back home where they then went to sleep.
The complainant attended the Aboriginal Medical Service later that morning and was treated for her injuries. She sustained bruising to the left lower leg, right upper leg, right and left legs, left cheek, right shoulder and centre of the head. She suffered abrasions, from being dragged, to the back of the right shoulder and middle of the back and lacerations above the right eye, centre of the lower back and the back of the left hand.
Two of the three lacerations required suturing. The offender was located by police and arrested. He later participated in a video record of interview during which he made full admissions."
(Page 6)
7 The respondent through his counsel acknowledged that he had behaved as alleged by the State except that he said that he dragged the complainant much less than 200 metres.
8 The short plea in mitigation concentrated on the respondent's good employment history as an environmental health worker at Wiluna and the need for him to "get his act together" so he could look after his three children given that his mother who had previously looked after them had died the previous year.
9 The Court also had before it a pre-sentence report and the respondent's record of criminal convictions. The respondent is a 31-year-old Aboriginal man from Wiluna. The pre-sentence report referred to him having two children, aged approximately 8 and 11 years. These children are from a previous de facto relationship. The report said that alcohol related domestic violence had been prevalent throughout this relationship, which continued until 2003, resulting in the respondent being imprisoned on several occasions for serious assaults against his partner. This was acknowledged by the respondent's counsel.
10 The report stated that the respondent had been mainly unemployed. The report's assertions about the respondent's employment record and the number of his children conflict with his counsel's submissions on these issues. However, nothing turns on those conflicts in this appeal.
11 The report stated that the respondent's offending was related to alcohol abuse and the author was of the opinion that through his repeated offending he had demonstrated that when he was intoxicated he was unable to control his behaviour. Records showed that the respondent had completed anger management and substance abuse programs whist he was serving previous periods of imprisonment. Despite this, he had continued to offend in similar ways after his release. The author of the report concluded that the respondent's ability to successfully complete a period of supervision in the community is doubtful given his poor response to supervision and his failure to report for the purposes of the completion of the report.
12 The respondent has a criminal record which includes 11 convictions between 1992 and 2002 for offences of assault occasioning bodily harm, unlawful wounding or grievous bodily harm and over 24 convictions in the same period for less serious offences involving violence. The very experienced sentencing Judge, said that it would be hard to say that he had ever seen a record of such sustained violence.
(Page 7)
13 The State submitted that the respondent should not be granted a parole eligibility order because of the seriousness of the offences, the respondent's significant criminal record and his failure to comply with past community based orders. The prosecutor cited the case of R v Gordon[2000] WASCA 401 as authority for the principle that drunken violence against aboriginal women is viewed very seriously by the courts.
14 The sentencing Judge then proceeded to sentence the respondent. As he proceeded to recite the material facts the respondent interrupted him to agree or disagree with the facts or to elaborate upon them. Importantly, in terms of assessing the respondent's remorse, the following exchange took place between the Judge and the respondent:
"H.H. JACKSON DCJ: You then pulled her out and took her out of the house into the bush or onto the road – was it? In the bush?
THE ACCUSED: Onto the front verandah and onto the front ground, hard dirt was there.
H.H. JACKSON DCJ: Yes, and then you gave her a good flogging, didn't you?
THE ACCUSED: Yeah, and in her face.
H.H. JACKSON DCJ: And you got an iron bar.
THE ACCUSED: Got a little iron bar, yeah, but I whacked her and then - - -
H.H. JACKSON DCJ: Yeah, but you're not allowed - - -
THE ACCUSED: - - - I grabbed her and I carried her because she couldn't walk.
H.H. JACKSON DCJ: Yeah.
THE ACCUSED: What am I supposed to do when find another man, hey? How you feel?
H.H. JACKSON DCJ: Well, you're not allowed - - -
THE ACCUSED: How youse feel? Got any feeling about that?
H.H. JACKSON DCJ: How many times have you been sent to gaol for beating up women?
(Page 8)
- THE ACCUSED: Yeah, well, wouldn't have had done if she – if I didn't find her or anything.
H.H. JACKSON DCJ: No, but you're not allowed to do it.
THE ACCUSED: I know.
H.H. JACKSON DCJ: Not allowed to do it.
THE ACCUSED: I know that."
15 The sentencing Judge told the respondent that he had to send him to gaol and it was only a question of how long his sentence should be and whether he should make a parole eligibility order. His Honour said:
"I'm going to impose a concurrent term in respect to the two charges. You are sentenced to a term of 18 months' imprisonment on each. I know that you have already done 11 days in remand so I will make it 18 months less 11 days to allow for that. The real issue for me is whether you should be eligible for parole. In light of your record and the seriousness of this matter what I have done is reduce the sentence from what perhaps it would have been in other circumstances because I intend to deny you eligibility for parole.
I think under the old laws you would have probably got, say, 3 years. I have to reduce that to two under the new law because you lose remissions. If you didn't have the serious record and you were younger, I would grant you eligibility for parole but I think that's in your case inappropriate so I reduce the sentence to 18 months less 11 days to allow for the fact that you are not getting parole and you have already done 11 days.
I'm not sure that that's expressed the way the law would require it to be expressed but the Sentencing Act says I have to tell you in language that I think you understand and that's what I'm trying to do. You understand?" (My underlining).
Consideration of the ground of appeal
16 The respondent conceded that the sentencing Judge erred when he stated that he was going to reduce each sentence from 2 years to 18 months' imprisonment to allow for the fact that he was not going to make a parole eligibility order. However the respondent submitted that the sentences should not be increased because of the principle of double
(Page 9)
- jeopardy as it relates to prosecution appeals and because sentences of 18 months' imprisonment for each offence were within the range of a sound discretionary judgment for offences of this type. I will deal with these arguments after detailing the reasons why the respondent was right to concede that an error had been made by the sentencing Judge.
17 Prior to the enactment of the Sentencing Act 1995 (WA) ("the Act") it was established that it was not permissible for a Judge to either increase or reduce a term of imprisonment according to whether he or she did or did not intend to make a parole eligibility order: Swain v The Queen (1989) 41 A Crim R 214 per Malcolm CJ at 216; Howell & Utting v The Queen (1989) 2 WAR 60 per Seaman J at 72; Shaw v R (1989) 39 A Crim R 343 per Rowland J at 350-1, per Brinsden J at 347-8; Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 217-8.
18 These cases considered the proper construction of the Offenders Probation and Parole Act 1963 (WA), s 37A(1) (repealed) which provided that:
"Where a Court sentences a person convicted of an offence to a term of imprisonment the court may, if it considers the making of an order under this subsection is appropriate, order that the convicted person be eligible for parole."
19 In Swain’s case at 216 Malcolm CJ said:
"It was submitted, nevertheless, that it was appropriate for a judge to fix a term of imprisonment he considered appropriate by taking into account his intention not to make a parole order. With respect, I am of the opinion that such a course is clearly not permissible under s 37A(1) of the Offenders Probation and Parole Act 1963 (WA).
…
The operation of the provision is triggered by the court sentencing a person to a term of imprisonment. The first step to be taken by a sentencing judge is to determine whether there are any and if so what non-custodial alternatives available to imprisonment as the sentence of last resort: s 19A(1) of the Criminal Code (WA). If he comes to the conclusion that there is no alternative to a sentence of imprisonment he is required to fix a term of imprisonment proportionate to gravity of the offence and taking into account all the relevant circumstances,
(Page 10)
- whether they go to aggravation or mitigation of the sentence. It is at that stage when the court "sentences a person ... to a term of imprisonment" that eligibility for parole falls to be considered under s 37A of the Act."
20 On 4 November 1996 the Act commenced operation and the Offenders Community Corrections Act 1963 (the substituted name for the Offenders Probation and Parole Act 1963) was repealed. The equivalent section to the Offenders Probation and Parole Act 1963 (WA), s 37A (repealed) is s 89(1) of the Act which states:
"A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order."
21 The criteria which govern the exercise of the discretion not to grant a parole eligibility order are set out in s 89(4) of the Act which states:
"A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors:
(a) the offence is serious;
(b) the offender has a significant criminal record;
(c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant."
22 The language of s 89(1) of the Act indicates that the discretion to make a parole eligibility order is triggered by the imposition of a term of imprisonment: Hubbard v Fisher [2001] WASCA 182 per McLure J at par 16. Similarly, as a decision to refuse to make a parole eligibility order is a decision "in respect of a fixed term imposed on an offender" the language of s 89(3) of the Act indicates that the appropriate term or terms of imprisonment must be fixed and imposed prior to a decision being made to refuse a parole eligibility order. Consequently the applicable principle has not altered. It is still the position that it is not permissible for a Judge to either increase or reduce a term of imprisonment according to whether he or she does or does not intend to make a parole eligibility order.
(Page 11)
23 This principle is consistent with ss 6 - 8 of the Act which contain the general sentencing principles applicable to all sentences imposed under the Act. The predominant principle is that a sentence must be commensurate with the seriousness of the offence. The seriousness of the offence is to be determined by taking into account the statutory penalty for the offence, the circumstances of the offence, any aggravating factors and any mitigating factors. The Act specifically states that these principles do not prevent the reduction of a sentence because of any mitigating factor or any rule as to totality. Mitigating factors are factors which in the court’s opinion decrease the culpability of an offender or decrease the extent to which the offender should be punished. These general principles are broadly expressed so that all relevant matters can be taken into account in the sentencing process. However a decision as to parole eligibility is not a factor which relates to the seriousness of the offence as that phrase is defined in the Act.
24 For these reasons, the sentencing Judge was in error in reducing the sentences he considered to be appropriate by six months to allow for the fact that the respondent was not getting parole.
25 As to whether that error should result in the increase of the sentences imposed on the respondent, I have had regard to the relevant principles applicable to State appeals. In R v Vletter [2004] WASCA 96 Malcolm CJ said:
"This is a Crown appeal against sentence. … The principles applicable to such an appeal under 688(2)(d) of the Criminal Code are well-settled. In R v Petersen [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 – 388. After referring to Harris v The Queen (1954) 90 CLR 652; Kovac v The Queen (1977) 15 ALR 637 and Cranssen v The King (1936) 55 CLR 509 at 519 – 520 per Dixon, Evatt and McTiernan JJ and stating the general principles upon which an appellate court will interfere with a sentence imposed, their Honours said in relation to a Crown appeal specifically:
'Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown
(Page 12)
- appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy "the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v The King at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing Court'."
26 It is true that a sentence of 2 years' imprisonment for the offence of assault occasioning bodily harm is a significant penalty. This is so given that the respondent had been given a discount for his plea of guilty on the fast track system, the sentence had been reduced by one third in accordance with s 2(1) of the Sentencing Legislation Amendment and Repeal Act 2003 and the maximum penalty for the offence is 5 years' imprisonment. However the facts of the offence are very serious and I regard them as indicating that this is a case which is close to the worst category of cases of this kind. The respondent's behaviour was very violent and persistent. It was aggravated by the repeated use of a weapon. It is not surprising that the complainant received significant bodily injuries including lacerations, two of which required suturing. The offence was also aggravated by the complainant being humiliated by the removal of her bra rendering her half naked whilst the beating took place.
27 The maximum penalty for the offence of threat to kill is 7 years' imprisonment. Thus a sentence of two years is not at the upper end of the range of appropriate sentences for this offence. That offence was also a serious offence of its kind. It was aggravated by the repetition of the threat whilst the respondent had his hands around the complainant's throat in the broader context of a violent assault with a weapon on the complainant.
28 There was some mitigation in the circumstances in which the respondent found the complainant. However it was not significant. The relationship between the parties was of a limited duration. The respondent had been convicted of violent offences against his former de facto and no doubt had been told when sentenced for those offences that this kind of violence is unacceptable. He has also undergone counselling in anger management and substance abuse. Despite these matters he again lost control and beat this complainant.
(Page 13)
29 The respondent's early plea of guilty warranted credit but his unrepentant attitude can be seen from the exchange with the sentencing Judge. Whist ultimately agreeing that he was not allowed to behave in this manner his earlier comments to the Judge revealed that he still believed that he was justified in doing so. Consequently it is doubtful that his plea indicated true remorse.
30 The respondent's antecedent criminal history is relevant as it shows that this offence is not an aberration. Rather it shows a continuing attitude of disobedience to the law that requires the imposition of a sentence that will hopefully be a personal deterrent. Further, in cases of domestic violence a sentence which gives effect to both personal and general deterrence will normally be called for; Gallegos v The Queen [1999] WASCA 191 per Malcolm CJ at [28].
31 For these reasons sentences of 18 months' imprisonment for each offence are manifestly inadequate to reflect the seriousness of the offences. This is not a case where the double jeopardy principle puts the offender at risk of being arrested whilst serving his sentence in the community and returned to custody. Rather, he was told at the time of sentencing what the appropriate penalty was for each offence. In error he was told that each sentence would be reduced by six months. To allow the appeal and increase each sentence to two years is to correct that error and impose the sentence that the sentencing Judge indicated was the appropriate sentence to reflect the relevant sentencing principles as properly applied to the facts of this case. Plainly this is what should occur and what, by the orders of this Court on 1 June 2004, has now occurred.
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