Truslove v The State of Western Australia
[2015] WASCA 1
•9 JANUARY 2015
TRUSLOVE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 1 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:173/2014 | 1 DECEMBER 2014 | |
| Coram: | NEWNES JA MAZZA JA | 9/01/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK ANTHONY TRUSLOVE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence One count of armed robbery Sentence of 2 years 8 months' imprisonment No eligibility for parole Whether parole eligibility order should have been made Appellant terminally ill Extensive criminal record |
Legislation: | Sentencing Act 1995 (WA), s 89(1), s 89(4) |
Case References: | Forkin v The State of Western Australia [2013] WASCA 51 Hill v The State of Western Australia [2014] WASCA 150 House v The King (1936) 55 CLR 499 Moody v French [2008] WASCA 67; (2008) 36 WAR 393 Pickett v The State of Western Australia [2004] WASCA 291 Ryan v The State of Western Australia [2011] WASCA 7 Ugle v The State of Western Australia [2007] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRUSLOVE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 1 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 125 of 2014
Catchwords:
Criminal law - Application for leave to appeal against sentence - One count of armed robbery - Sentence of 2 years 8 months' imprisonment - No eligibility for parole - Whether parole eligibility order should have been made - Appellant terminally ill - Extensive criminal record
Legislation:
Sentencing Act 1995 (WA), s 89(1), s 89(4)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Forkin v The State of Western Australia [2013] WASCA 51
Hill v The State of Western Australia [2014] WASCA 150
House v The King (1936) 55 CLR 499
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Pickett v The State of Western Australia [2004] WASCA 291
Ryan v The State of Western Australia [2011] WASCA 7
Ugle v The State of Western Australia [2007] WASCA 199
1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. On 15 September 2014, the appellant pleaded guilty to one count of armed robbery and was sentenced by McKechnie J to 2 years and 8 months' immediate imprisonment. His Honour declined to make the appellant eligible for parole.
2 The single ground of appeal is that having regard to the appellant's ill-health and limited life expectancy, the primary judge erred in failing to make a parole eligibility order.
The circumstances of the offending
3 On 8 April 2014, the appellant entered a suburban branch of the National Australia Bank and approached a counter, where he informed a bank teller that he was waiting for someone. He then moved towards a different counter, where a bank teller was serving a customer. A short time later, the appellant approached the first counter, and threw a white and green plastic bag through the perspex security barrier. The appellant leant towards the bank teller and said 'Give me the cash in your drawer. No dye packs. I'm armed'. At the time, the appellant kept his right hand by his side, and out of the view of the bank teller. In fact, unbeknown to the teller, the appellant was not armed.
4 As the bank teller opened the drawer, the appellant said again 'No dye packs, just hundreds and fifties'. The bank teller removed hundred and fifty dollar notes, to a total of $950 and put them in the plastic bag, and handed the plastic bag to the appellant. The appellant said 'There is no dye packs, is there?' before turning and walking out of the bank.
5 The appellant was apprehended by police later that day. He voluntarily participated in a video record of interview and admitted the offence. He told police that he gave the stolen money to unidentified members of a motorcycle gang to pay a drug debt. The money was not recovered.
6 The appellant pleaded guilty at the earliest opportunity toone count of armed robbery.
Sentencing remarks
7 The sentencing judge noted that the appellant, who was 49 years of age, had commenced offending when he was 11 years of age and had never stopped offending thereafter. His Honour commented that this offence was very similar to an offence the appellant had committed on 20 September 2010, except that on that occasion the teller had put dye packs in the bag and on this occasion, presumably having learned from the previous occasion, the appellant had specifically instructed the teller not to do so.
8 His Honour observed that the appellant's offending was related to his longstanding addiction to heroin and noted from a medical report of Dr Fitzclarence that the appellant was now on the prison terminally ill list. The sentencing judge considered that the appellant would probably die in prison irrespective of the length of sentence imposed. His Honour took into account the appellant's ill-health and what he described as the appellant's 'extreme frailty'. The sentencing judge concluded, however, that his principal concern must be for the protection of the public in view of the appellant's persistent offending.
9 The sentencing judge reduced the sentence he would otherwise have imposed by 25% for the appellant's early plea of guilty. He sentenced the appellant to 2 years and 8 months' immediate imprisonment and declined to make a parole eligibility order.
Pre-sentence report, psychological report and medical report
10 The medical report prepared by Dr Fitzclarence revealed that the appellant was suffering from a number of medical conditions, including severe pulmonary hypertension and cirrhosis, which Dr Fitzclarence described as end-stage conditions. Dr Fitzclarence observed, however, that there were reasonable treatment options available that could improve the quality and length of the appellant's life.
11 It appears from a pre-sentence report that the appellant experienced a dysfunctional upbringing. He was the third child of six siblings. He told the author of the report that he was removed from his mother's care when he was 6 months old due to neglect and spent his childhood in various foster homes and institutions, at which he says he was subjected to neglect, and physical, emotional and sexual abuse. The appellant has not had any interaction with his father, although he maintains contact with his mother and one of his sisters.
12 The appellant reported engaging in cannabis and alcohol use from the age of 13, and amphetamines from 15. He said he was introduced to heroin while in Fremantle Prison, although he claims his addiction to the drug has ceased. He is currently on the methadone programme.
13 The appellant was described in the pre-sentence report as having an ongoing reluctance to engage in any reformative programmes while in prison, a reluctance which appears to have extended to his periods in the community. The appellant was unable to provide the author of the report with a coherent educational history, although he reported having completed several units of a Bachelor of Arts degree. He has no employment history, due to his drug use and multiple periods of imprisonment.
14 The author of the pre-sentence report noted that the appellant had a poor record of compliance with community supervision, having completed only one parole order successfully and having either failed to comply or reoffended in respect of six other community supervision orders. The appellant was regarded as continuing to pose a risk to the community and community supervision was considered not to be an appropriate order due to his prior offending, poor response to community supervision, and ongoing risk to the community.
The ground of appeal
15 The sole ground of appeal was as follows:
The decision of the learned sentencing judge to decline parole was unreasonable having regard to the limited life expectancy of the appellant, his terminal illness, and the possibility that the appellant will be too unwell to be a risk to the community when he would be eligible for parole if a parole eligibility order was made.
The disposition of the application
16 The relevant principles are well established. Where a court sentences an offender to a fixed term of imprisonment it has power to make a parole eligibility order: Sentencing Act 1995 (WA) s 89(1). Pursuant to s 89(4) of the Sentencing Act, the court may decide not to make a parole eligibility if at least two of the following four factors are present:
(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; or
(d) any other reason the court considers relevant.
17 A sentencing judge must make a parole eligibility order if none or only one of the four factors is present. If two or more of the factors are present, the sentencing judge is required to take all relevant considerations into account, including the factors identified in s 89(4). See Hill v The State of Western Australia [2014] WASCA 150 [70]; Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [48] - [50]. There is no bias in favour of parole: Moody [50]; Ryan v The State of Western Australia [2011] WASCA 7 [87].
18 When the exercise of the discretion to refuse parole is triggered by the s 89(4) factors, it will ordinarily be difficult to show that the exercise of the discretion has miscarried: Pickett v The State of Western Australia[2004] WASCA 291 [7] - [8]; Ugle v The State of Western Australia [2007] WASCA 199 [52]. An appellate court cannot intervene simply because it would have exercised the discretion differently. It must be shown that an error of the kind identified in House v The King (1936) 55 CLR 499 has occurred.
19 There is no doubt in this case that the discretion to refuse to make a parole eligibility order was enlivened. The appellant did not contend otherwise. The only question was whether the exercise of the discretion miscarried. We do not consider that it did.
20 It is clear that the sentencing judge was cognisant of the appellant's current medical condition and prognosis, which he expressly took into account as calling for the exercise of some mercy. However, his Honour concluded that in the light of the appellant's persistent offending the primary concern must be the protection of the public. In our respectful opinion, that was plainly correct.
21 The appellant has a deplorable criminal record. His long criminal history, involving continuous offending over a period of almost 40 years, includes numerous traffic, property, fraud and other offences. He has the regrettable distinction of having been convicted of one or more offences in every year since 1979, apart from the years when he was in prison. The current offence was committed within three weeks of the appellant being released after serving a term of imprisonment for a similar offence committed in 2010. On that occasion the sentencing judge declined to make a parole eligibility order. The appellant has a history of non-compliance with community supervision orders, as outlined in the pre-sentence report.
22 The appellant is not, of course, to be punished again for his previous offending but it demonstrates the need for protection of the public. There is no cause for any optimism that the appellant will change his ways. It is significant that his offending appears, in large part at least, to be attributable to his drug addiction. His drug addiction and continuous offending are very longstanding and, as appears from the pre-sentence report, the appellant has made little effort at rehabilitation, having had an ongoing reluctance to engage in any reformative programmes while in prison, where the majority of his adult life has been spent.
23 However, while the sentencing judge observed that his primary concern must be the protection of the public, it is evident in the sentence he imposed that his Honour took into account the appellant's medical condition. In the circumstances, the sentence of 2 years and 8 months' imprisonment was undoubtedly lenient. The range of sentences commonly imposed for a single offence of armed robbery, excluding matters of mitigation, is 4 to 6 years' imprisonment: Forkin v The State of Western Australia [2013] WASCA 51 [15].
24 In this case, there was nothing by way of mitigation beyond the appellant's early plea of guilty, for which his Honour allowed the maximum discount of 25%. The offending was serious and, as mentioned above, occurred against a background of persistent offending over nearly 40 years and within three weeks of the appellant being released from prison after serving a term of imprisonment for a similar offence. The appellant evinced no remorse. The conclusion reached by the author of the pre-sentence report that the appellant continues to pose a risk to the community was inescapable.
25 In our view, it was plainly within the proper exercise of his Honour's discretion under s 89(4) of the Sentencing Act to refuse to make a parole eligibility order. The appeal has no reasonable prospect of succeeding.
Conclusion
26 Leave to appeal should be refused, and the appeal accordingly dismissed.
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