Theisinger v Hartill

[2007] WASC 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   THEISINGER -v- HARTILL [2007] WASC 212

CORAM:   EM HEENAN J

HEARD:   5 JULY 2007

DELIVERED          :   5 JULY 2007

PUBLISHED           :  7 SEPTEMBER 2007

FILE NO/S:   SJA 1024 of 2007

BETWEEN:   NIGEL WAYNE THEISINGER

Appellant

AND

RUPERT JAMES HARTILL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE MALLEY

File No  :PE 14672 of 2007

Catchwords:

Criminal law - Application for leave to appeal against sentence - Imprisonment for 2 years without eligibility for parole - Two counts of burglary and one count of assaulting a public officer

Legislation:

Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed only to the extent of ordering eligibility for parole

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms T M Weston

Solicitors:

Appellant:     In person

Respondent:     State Director of Public Prosecutions

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

Bugmy v The Queen (1990) 169 CLR 525

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

House v The King (1936) 55 CLR 499

Kearney v The State of Western Australia [2006] WASCA 251

Kiesey v The State of Western Australia [2005] WASCA 229

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Messiha v Royce [2004] WASCA 290

Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48

Piccolo v The State of Western Australia [2007] WASCA 149

Pickett v The State of Western Australia [2004] WASCA 291

R v Shrestha (1991) 173 CLR 48

Riley v The Queen (Unreported, WASCA, Library No 950645, 24 November 1995)

Rutty v The Queen (Unreported, WASCA, Library No 950433, 18 August 1995)

1. EM HEENAN J:  On 20 March 2007, following his pleas of guilty, Nigel Wayne Theisinger was convicted in the Perth Magistrates Court of two charges of burglary and one charge of assaulting a public officer.  The offences were committed on 14 and 15 February 2007 whilst the appellant was on parole, after having served 20 months of an effective 26 month sentence which had been backdated to 22 March 2005, for offences of burglary and assaulting a public officer.  The appellant had been released on parole on 15 December 2006 - that is, only two months before these offences were committed.

2. For the first offence of burglary his Honour imposed a sentence of 12 months' imprisonment, cumulative upon the existing sentence which Theisinger was then serving.  For the second offence of burglary his Honour imposed a period of imprisonment of 12 months, cumulative upon the first sentence.  For the third offence, of assaulting a public officer, the learned magistrate imposed a sentence of 12 months' imprisonment, to be served concurrently with the sentences for the first and second of these three offences.  Effectively, therefore, the appellant was sentenced to a total term of 2 years' imprisonment in relation to these three offences, but cumulative upon the sentence which he was serving at the time of the breach of his parole.  His Honour declined to make the appellant eligible for parole.

3. By his notice of appeal, filed on 30 March 2007, the appellant seeks an extension of time within which to apply for leave to appeal against the decision of the learned magistrate and for leave to appeal against sentence.  Counsel for the respondent has properly pointed out that the application for leave to appeal was in fact filed within time and that no extension of time to apply for leave to appeal is necessary.  By the order of Blaxell J of 3 May 2007 it was directed that the applications for leave to appeal and the appeal be heard together.  The appellant appeared in person by video‑link from Casuarina Prison, having submitted a brief letter outlining the basis for his application.  Comprehensive and helpful written submissions were filed on behalf of the respondent who was represented at the hearing of the application in the appeal by counsel.

4. During the course of the hearing of the application I granted leave to appeal, limited to the challenge to the learned magistrate's decision to refuse to make a parole eligibility order.  At the conclusion of the hearing of the appeal I allowed the appeal and made the following orders:

   (1)The appeal be allowed but only to the extent of the refusal of the learned magistrate to make a parole eligibility order.

   (2)The order of the Magistrates Court of 20 March 2007 be varied by directing that the appellant be made eligible for parole.

   (3)The application to have the commencing date for the operation of his sentence backdated to an earlier date be refused.

5. When making those orders and giving short oral reasons for decision, I announced that more detailed written reasons would be delivered in due course.  These are those reasons.

The facts and background

1. The relevant history and facts are to be found in the police statement of material facts, which the appellant does not dispute; the transcript of proceedings in the Magistrates Court at Perth on 16 February 2007; the sentencing remarks of his Honour Magistrate Malley of 20 March 2007; the pre‑sentence report prepared in advance for that sentencing; and the antecedent report which documents the prior criminal history of the appellant.

2. Essentially, the appellant has a long history of offending, beginning in 1991 when he was 15 years of age, including various burglary and stealing offences, as well as assault offences, some of which have been committed against public officers.  The most serious of the appellant's prior offences was one of armed robbery, for which he received a sentence of 6 years' imprisonment.

3. The appellant's history of offending behaviour is directly related to his use of illicit substances.  It is reported, and he acknowledges, that he commenced using illicit substances at the age of 11 years, probably as a consequence of his dysfunctional family life.  He began using amphetamines intravenously from the age of 13 years, and continues to use them.  At present, he is on the methadone programme for an addiction to heroin which he developed at the age of 25 years and is continuing on this programme while presently serving his sentences.

4. On 14 February 2007, the appellant committed two separate acts of burglary, contrary to s 401(2)(c) of the Criminal Code.  Theisinger informed the police and the author of the pre‑sentence report that he could not recall his actions on that day but did not dispute the police account of events.  The two burglaries were committed on adjoining premises at 965 and 967 Albany Highway, East Victoria Park, which are, respectively, a ladies' maternity clothing store and a hairdressing salon.  Both stores had been closed and locked at the time the offences were committed.

5. The first offence occurred at the ladies' maternity clothing store.  The appellant had gone to the rear of the premises and forced the security bars covering the rear window, causing the bars to pull out from the wall and bend upwards.  He then removed and smashed enough of the window louvers to gain access to the store.  Once inside he ransacked the premises, causing damage and a large mess inside the store.  He also removed a medium‑sized box full of clothing apparel from the storeroom area and threw the unopened clothing box out of the premises through the broken window by which he had entered.  At about 6.00 am the following day - 15 February - police, responding to an alarm at a nearby premises, located the appellant hiding under the floor of the premises at 967 Albany Highway.  He was arrested and transferred to the Kensington Police Station, where he was interviewed and readily admitted to committing the burglary.

6. The second burglary involved similar conduct.  The appellant went to the rear of the premises at 967 Albany Highway, the hair dressing salon, and crawled through a hole in the foundation.  Once under the floor of the premises, he used a rock to smash up through the floor and gained entry.  Inside he ransacked the premises, causing extensive damage and mess, and stole a black 'Rusty' bag that contained hairdressing items.  When the police arrived, because of the alarm from the nearby premises, on the morning of 15 February, they were alerted to noises coming from the hairdressing salon.  They went to the rear and saw the appellant smash the back window out and attempt to climb out while holding the black Rusty bag in his right hand.  On seeing the police, he climbed back into the premises and was later found hiding under the floor.  As already noted, he was arrested and taken to the Kensington Police Station.  In the interview he also readily admitted committing the burglary at this second location.  All the stolen property was recovered, but there remained the damage to the premises and the internal disruption which has been mentioned.

7. The third offence, of assaulting a public officer, occurred on 15 February 2007 at about 12.30 pm.  The appellant was then in police custody and was being taken to the Perth watch‑house, after first having been taken to the methadone clinic at 32 Moore Street, East Perth, to obtain the methadone medication.  At the time of being taken to the methadone clinic he was in handcuffs, but he had stepped through the handcuffs with the result that his tethered hands were in front of him.  While being escorted to the marked police security van he focused on cigarette butts near to the front entry and asked the escorting police to allow him to obtain the butts of the cigarettes.  The police refused and the appellant retaliated by violently lunging his head backwards and head butting one of the constables.  He was wrestled to the ground by both officers and then forced into the rear of the marked security van and taken directly to the watch‑house.  The police officer so assaulted was approximately 174 cm tall and of slight built.  He sustained a minor laceration to the inside of his mouth.  No medical attention was sought.

8. The appellant claims that he did not intend to make contact with the officer but he has not attempted to appeal against that conviction and his explanation need not be considered further.  His sentencing, following his pleas of guilty to all charges, proceeded upon the basis that he had committed that offence.

9. According to the pre‑sentence report, during the four weeks leading up to the commission of these offences, he had been given 'freebies' of amphetamines by a drug dealer who had befriended him and had lapsed back into regular drug use.  In an attempt to overcome this behaviour, he moved out of the house which he had been sharing with the dealer and was moving between houses, leading a transient existence.  He was engaging with the Next Step Drug & Alcohol Services (Next Step) programme and was reducing his methadone intake by 5 mg every day, which caused him stress.

10. On the day of the burglary offences he had consumed up to 5 Rivotril tablets to relax, but says that he cannot recall in entirety committing the offences or why he committed them.  This is not surprising, in view of the cocktail of drugs he was consuming over the preceding weeks.

11. The conduct of the appellant in relapsing into drug‑taking, and then consuming Rivotril, a sedative, on the day of the offences, does not in any way excuse his actions but it does go some way to explain the root cause of his offending behaviour; namely, his long history of substance abuse.

12. In February 2007, when these offences were committed, the appellant was on parole after serving a portion of the sentence of imprisonment following his conviction for various offences, as set out above.  The breach of the parole order involved by the commission of these offences constituted the fourth time that the appellant had beached such an order, a factor which the learned magistrate considered most material when imposing the sentences now under appeal.

The sentence in the Magistrates Court

1. After taking into account the seriousness of the offences, the appellant's early plea of guilty, his long criminal record, previous breaches of parole orders and the history of substance abuse, his Honour Magistrate Malley imposed an aggregate sentence of 2 years' imprisonment.  In the learned magistrate's view, '[t]he only issue ... [was] one of parole'.  In deciding whether to make a parole eligibility order, his Honour had regard to the nature of the offence; the seriousness of the circumstances of the commission of the offence; the antecedents of the offender; and, the circumstances relevant to the offender, or which might be relevant to the offender at the time at which he would become eligible to be released from prison on parole if an order for eligibility were to be made.  His Honour did not consider that anything in the material before the court 'point[ed] positively to the appropriateness of parole', particularly in light of the appellant's 'series of prior convictions for same or similar offences' and the risk of re‑offending.  Consequently, his Honour decided that the appellant should not be made eligible for parole.

2. The learned magistrate's formulation of the factors relevant for consideration, and his Honour's approach to the discretion to be exercised, was made with reference to s 89(2) of the Sentencing Act 1995, as that section stood prior to the 2003 amendments.  This oversight, of itself, does not necessarily warrant appellant intervention; but, nevertheless, the learned magistrate's reasons for refusing to make a parole eligibility order must be assessed in the light of the sentencing legislation as it currently stands, and stood at the date when the sentences were imposed.

The grounds of appeal

1. The appellant was not able to secure legal representation for this appeal and, as a consequence, represented himself.  Despite this handicap, he was able to convey adequately the basis upon which he wished to appeal against his sentence, as these reasons will demonstrate.

2. In seeking leave to appeal against his sentence, the appellant raised three principal grounds in his submissions.  The first was that the magnitude of the sentence was excessive.  The second was that an eligibility for parole order should have been made.  Thirdly, and finally, he submitted that the sentence should have been backdated to account for time served.  As already explained, leave to appeal was granted only in respect of the second ground - which was ultimately successful.  The reasons for refusing leave in respect of the other two grounds, as well as for allowing the appeal, are set out below.

Preliminary issue

1. At the commencement of the hearing, the appellant sought an adjournment to enable him to attempt to obtain various reports.  These reports, including one from Next Step, would, so he submitted, show that he was having problems in coping at the time of the offences because of the programme of a reduction in his methadone dose.  He also contended that the reports confirm that he was not able to obtain adequate help or support at that time in coping with the consequences of the progressive methadone dose reductions.

2. Initially, the respondent, through counsel, opposed the application on the basis that any adjournment would be pointless as the overall prospects of success were so poor that leave to appeal ought not be granted.  However, it quickly became clear that any relevant information which might be contained in the reports which the appellant desired to obtain was already before the court.  It was contained in the transcripts of proceedings in the Magistrates Court and in other documents, including the pre‑sentence report.  Furthermore, this information, going to the appellant's mental and physical state at the time of the offences in question, was not seriously in dispute.  Once this was pointed out to the appellant, as well as drawing his attention to the likelihood that obtaining these reports would not affect his prospects of success in the appeal, he withdrew his application for the adjournment.

Effective sentence of 2 years' imprisonment

1. In view of the seriousness of the offences committed by the appellant, his relatively mature age of 30 years at the time when the offences were committed, and his long record of previous offences, the imposition of terms of imprisonment effectively totalling 2 years could not, in any way, be regarded as excessive.  These were certainly offences which warranted a sentence of immediate imprisonment and the periods of imprisonment imposed - effectively a total of 2 years, cumulative upon the sentence of imprisonment which had been imposed and for which he was on parole when the offences were committed - were entirely justified.

2. I was satisfied that there was no reasonable prospect of success for appealing against those terms of imprisonment and the appellant, himself, accepted that this was so.  It was for this reason that the application for leave to appeal against the severity of the sentence was refused.

Parole eligibility

1. It was because of the appellant's long history of offences, because these three offences were committed whilst he was on parole and, also, because three of four earlier parole orders had been cancelled because of breaches, that the learned magistrate decided against making a parole eligibility order.  Nevertheless, the appellant contended that in considering the question of making him eligible for parole, the learned magistrate did not give any, or any sufficient, consideration to the purposes of parole and the associated public benefits.  He did so by stressing that he would certainly be very vulnerable and in need of help, assistance and supervision whenever he was eventually released from custody.  He stressed that his difficulties in coping with his history of addiction, and in changes in his methadone programme, had led him to the commission of these three offences and that without supervision he had great apprehension that on his eventual release he would succumb to further relapses and, then, to a repetition of offending.

2. The advantages of a parole eligibility order include the opportunity for supervised transition to the community of a person in need of management, whilst still remaining under conditional custody.  The alternative, and the situation as it currently stands, would be that under the sentences imposed as at the end of the 2 year period of imprisonment, the appellant would be released into the community with no guidance or supervision and on the assumption that his drug addiction problem is under control.

3. Counsel for the respondent, although acknowledging that there was nothing in the sentencing remarks of the learned magistrate to indicate that his Honour considered the public interest in not making a parole eligibility order, submitted that such an error, if indeed it was an error, was not material and does not justify or warrant any variation in the sentence imposed.  In essence, it was submitted for the respondent that the learned magistrate did advert to the possibility of a parole order but, ultimately, decided against it on the basis of the appellant's considerable prior criminal history and, more especially, because of his poor earlier performance on parole.  Consequently, it was submitted that there was no error in the exercise of the discretion when refusing to make a parole eligibility order.

4. There being no express reference to the potential public interest in making or refusing to make a parole eligibility order, it becomes necessary for this court to determine whether or not this amounted to an error or omission in the exercise of the sentencing discretion.  In this context the concept of error or omission is to be understood according to the explanation in House v The King (1936) 55 CLR 499:

   It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (505).

   See, also, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] ‑ [4] (Gleeson CJ and Hayne J); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; R v Shrestha (1991) 173 CLR 48, 61 (Brennan and McHugh JJ); and Kearney v The State of Western Australia [2006] WASCA 251 [25] (Buss JA, with whom Roberts‑Smith and Pullin JJA agreed).

1. Section 89 of the Sentencing Act provides, so far as is presently relevant, that:

   (1)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.

   ...

   (4)The 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 two of the following four 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.

2. Whether these recent legislative changes in the power of the court to impose a parole eligibility order disclose any particular tendency towards or against making offenders eligible for parole, remains an area of some controversy:  see Piccolo v The State of Western Australia [2007] WASCA 149. What is clear, however, is that s 89(4) of the Sentencing Act does not, if applicable, remove the overall discretion which the Judge has whether or not to make a parole eligibility order:

   A court's power under s 89(4) to decide not to make the parole eligibility order is enlivened if (and only if) at least two of the four factors set out in (a), (b), (c) and (d) of the subsection exist. If the power is enlivened, the Judge retains a discretion, however, which he or she must then exercise, as to whether to make a parole eligibility order or not. If the power is enlivened, there is no presumption that a parole eligibility order should not, or not ordinarily, be made.

   Kearney v The State of Western Australia [27] (Buss J, with whom Roberts‑Smith and Pullin JJ agreed). See, also, Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [67] ‑ [68]; Messiha v Royce [2004] WASCA 290 [15] ‑ [16]; and Pickett v The State of Western Australia [2004] WASCA 291 [7] ‑ [8].

3. In the present case, the power of his Honour, the learned magistrate, under s 89(4) of the Sentencing Act was unquestionably enlivened.  However, as these authorities reveal, that did not absolve the learned magistrate from the responsibility of exercising a discretion according to law.  In the exercise of that discretion, I conclude that his Honour erred by failing to take into account a material consideration; namely, the community interest in the rehabilitation of the offender:

   [T]he release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.

   R v Shrestha, 63 (Brennan and McHugh JJ). See, also, Piccolo v The State of Western Australia [4], [19] (Wheeler JA), [66] (Miller JA); Kiesey v The State of Western Australia [2005] WASCA 229 [67] (Roberts‑Smith JA, with whom Steytler P and Pulling JA agreed); Riley v The Queen (Unreported, WASCA, Library No 950645, 24 November 1995); Rutty v The Queen (Unreported, WASCA, Library No 950433, 18 August 1995); and Bugmy v The Queen (1990) 169 CLR 525, 531 ‑ 532 (Mason CJ and McHugh J).

4. However, there will be occasions when it may not be in the public interest to make an offender eligible for parole, but such a conclusion would seem to require evaluation of what factors, if any, may negate the advantages generally regarded as deriving from a supervised conditional release on parole.  It does, however, mean that a question of the potential public interest is a material factor to be considered in the exercise of a discretion whether or not to make a parole eligibility order.  In the circumstances of this case, I am satisfied that it was a factor which should have been afforded consideration and a significant degree of weight - cf Kearney v The State of Western Australia [28] ‑ [31].

5. The detailed pre‑sentence report, which was produced and available to his Honour, reported that the appellant is someone who, upon eventual release into the community, will require supervision, education and monitoring in the light of his longstanding addiction to drugs and high risk of relapsing.  There is no form of continuing supervision upon his release and if his substance abuse is not under some sort of control or oversight (such as, for example, supervised continuation of the methadone programme), the likelihood of him re‑offending seems to be extremely high.  Indeed, this is a risk which the appellant himself recognises, as shown by his desire for assistance and supervision whenever he is eventually released from prison.  The pre‑sentence report did not recommend against making a parole order, rather, it seemed to accept that, notwithstanding the appellant's prior breaches of parole orders, it might nevertheless be appropriate in the special circumstances of this case.

6. Since the risk of the appellant committing further offences upon unconditional release from prison, however distant, seems to be very high, it is in the interest of the community that there be a period of supervised release in order to reduce this risk.  In the circumstances of this case, this could only be achieved by making a parole eligibility order.  In refusing to make such an order, the learned magistrate did not address this aspect of the public benefit of rehabilitation.  I am satisfied that this is a consideration which should have been expressly addressed and afforded considerable weight among all the factors relevant to the exercise of this discretion.  No doubt these were serious offences; the appellant had a significant prior criminal history and there were four instances of breaches of earlier parole conditions.  However, the history of breaches of parole orders indicates that the programme of supervised release is actually working in that, when the appellant is found to have relapsed, the conditional release is revoked.  This itself represents both an encouragement and a sanction, and the degree of supervision ensures that the sanction and its consequences are prompt.  It was for this reason that I concluded that the absence of consideration to the potential public benefit of making a parole eligibility order in this case represented a failure to address a material consideration and, hence, an erroneous exercise of discretion.  This provided the basis for granting leave to appeal against sentence on this issue and also for the reason for allowing the appeal to that degree.

7. It must, of course, be realised that making a parole eligibility order when imposing sentence does not guarantee that the offender will be subject to early release from prison.  Indeed, in the present case, because of his history, there may be a real question for the parole authorities whether or not to allow release on parole when the time for eligibility for parole is reached.  That will depend upon the appellant's conduct while in prison and the progress which it is hoped that he will by then have achieved in reducing the effect of his addiction.  The advantage of making a parole eligibility order is that it provides for the possibility that the appellant may be released on conditions, if he satisfies the requirements of the parole authorities.  In this way, the appellant's transition from prison life to the community would be preceded by a form of conditional release in which he would be provided with the support needed to overcome his drug dependency and change his criminal lifestyle.

8. Even if the prospect of rehabilitation from the existing addiction during the term of these present sentences is small, it seems to be a possibility worth pursuing, not only in the interests of the appellant's welfare but, more significantly, in the interests of the community.  The prospect of an unreformed, vulnerable and addicted appellant being released unconditionally at the completion of 2 years' imprisonment seems to be more of a concern to the public interest than earlier supervised and controlled conditional release with the threat of return to prison in the event of relapse.

Commencing date for the sentences

1. The appellant also applied for leave to appeal against his sentence, insofar as it failed to make direction for the operation of the sentence to commence from the time when he was taken into custody.  He submitted that the 33 days which he had spent in custody from the time of his arrest until the time of sentence, should have been treated as being part of the sentence imposed and that the order for his imprisonment should be varied to make provision for backdating to this extent.  Usually a sentence will take into effect any period during which the offender has been in custody on account of the offence or offences for which he is then being sentenced.  In the present case, however, the appellant committed these offences whilst on parole, as already described.  For reasons which have not emerged, he had not been formally 'breached' by the parole authorities.  Nevertheless, if these sentences were to be backdated, it seems likely that the appellant would be punished for the breach of the parole order as well and, in any event, he is still required to serve the unexpired portion of the sentence in respect of which he was upon conditional release when these offences were committed.  These are factors which place the appellant in a special position and which seem readily to account for the absence of any backdating of the present sentences.

2. For these reasons I concluded that the prospects of success for appealing against the absence of an order backdating the sentences, especially where no submissions were made to that effect before the learned magistrate, were remote and did not warrant the grant of leave to appeal.  In practical terms, therefore, that period of 33 days can be regarded as one of the consequences of the appellant breaching the parole order and as partial service of the unexpired portion of the sentence upon which he was then on conditional release.

Conclusion

1. For these reasons, I concluded that the appeal should be allowed upon the limited ground of the challenge to the failure to make a parole eligibility order.  The formal orders of the court, therefore, are that leave to appeal limited to the ground of whether a parole eligibility order should have been made is granted; that the appeal is allowed to that extent; and, that the order of the Magistrates Court of 20 March 2007 be varied by directing that in respect of each of the three convictions the appellant is eligible for parole.