Tysoe v Kennedy
[2005] WASC 148
TYSOE -v- KENNEDY & ORS [2005] WASC 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 148 | |
| Case No: | SJA:1040/2005 | 22 JUNE 2005 | |
| Coram: | MCKECHNIE J | 22/06/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Parole term for composite sentence | ||
| D | |||
| PDF Version |
| Parties: | PAUL RAYMOND TYSOE RACHEL MARIE KENNEDY STEVEN ADRIAN TREWIN GLENN DAVID RUDRUM BROCK CHRISTOPHER LUCEV |
Catchwords: | Criminal law Sentencing Domestic violence Always treated seriously Parole Miscarriage of justice |
Legislation: | Sentencing Administration Act 1995 (WA) |
Case References: | Begg v Bartlett [2004] WASCA 232 Jarvis v The Queen (1998) 20 WAR 201 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
RACHEL MARIE KENNEDY
First-named Respondent
STEVEN ADRIAN TREWIN
Second-named Respondent
GLENN DAVID RUDRUM
Third-named Respondent
BETWEEN : PAUL RAYMOND TYSOE
- Appellant
AND
RACHEL MARIE KENNEDY
First-named Respondent
(Page 2)
- GLENN DAVID RUDRUM
Second-named Respondent
BROCK CHRISTOPHER LUCEV
Third-named Respondent
ON APPEAL FROM:
For File No : SJA 1040 of 2005
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR R K BLACK SM
File No : PE 35660 of 2004, PE 35661 of 2004, PE 51537 of 2004
For File No : SJA 1039 of 2005
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR I G BROWN SM
File No : PE 42431 of 2004, PE 51535 of 2004, PE 51536 of 2004, PE 8845 of 2005, PE 8846 of 2005, PE 8847 of 2005
Catchwords:
Criminal law - Sentencing - Domestic violence - Always treated seriously - Parole - Miscarriage of justice
Legislation:
Sentencing Administration Act 1995 (WA)
Result:
Appeal allowed
Parole term for composite sentence
(Page 3)
Category: D
Representation:
SJA 1040 of 2005
Counsel:
Appellant : Mr A J Robson
First-named Respondent : Mr M A Perrella
Second-named Respondent : Mr M A Perrella
Third-named Respondent : Mr M A Perrella
Solicitors:
Appellant : Legal Aid of Western Australia
First-named Respondent : State Director of Public Prosecutions
Second-named Respondent : State Director of Public Prosecutions
Third-named Respondent : State Director of Public Prosecutions
SJA 1039 of 2005
Counsel:
Appellant : Mr A J Robson
First-named Respondent : Mr M A Perrella
Second-named Respondent : Mr M A Perrella
Third-named Respondent : Mr M A Perrella
Solicitors:
Appellant : Legal Aid of Western Australia
First-named Respondent : State Director of Public Prosecutions
Second-named Respondent : State Director of Public Prosecutions
Third-named Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Begg v Bartlett [2004] WASCA 232
Jarvis v The Queen (1998) 20 WAR 201
(Page 4)
Case(s) also cited:
Nil
(Page 5)
1 MCKECHNIE J: For reasons which will become apparent these two appeals against sentence have been heard together. They arise out of sentences passed on the appellant by two Magistrates on the one day, 2 March 2005, as follows:
Charge No. | Charge | Magistrate | Outcome |
SJA 1040/05 | |||
PE35660/04 | Threat on 9/8/04 PNG | Black | 6 months and 1 day imprisonment |
PE35661/04 | Threat on 8/8/04 PG | Black | 4 months concurrent |
PE51537/04 | Breach of Bail on 12/10/04 | Black | 1 month concurrent |
SJA 1039/05 | |||
PE42431/04 | Driving under suspension on 20/9/04 – suspended | Brown | Suspended sentence activated – 8 months imprisonment cumulative |
PE51535/04 | Breach of VRO on 26/11/04 – PG | Brown | 6 months concurrent |
PE51536/04 | Breach of VRO on 28/11/04 – PNG | Brown | 9 months imprisonment cumulative |
PE8845/05 | Breach of VRO on 20/1/05 – PG | Brown | 9 months concurrent |
PE8846/05 | Breach bail conditions on 20/1/05 – PG | Brown | 9 months concurrent |
PE8847/05 | Damage on 20/1/05 – PG | Brown | Fine $100.00 |
(Page 6)
2 What emerges is that on complaint 35660/04 the appellant pleaded not guilty but following trial he was convicted. He pleaded guilty to complaint 35661/04 and complaint 51537/04. Magistrate Black, who dealt with these matters, received an oral pre-sentence report and counsel made a plea in mitigation. The threats occurred on two days, 8 and 9 August 2004, and both related to his de facto partner in a relationship which the Magistrate described as "volatile … including acts of violence".
3 In relation to the sentences, there was an overall sentence, as the table discloses, of 6 months and 1 day's imprisonment. By virtue of the Sentencing Act such a sentence does not attract parole eligibility.
4 The appellant was then taken before Magistrate Brown who again convicted the appellant following one plea of not guilty. There were other pleas, some of which were not quite at the earliest opportunity but that is immaterial.
5 The sentences imposed by Magistrate Brown are set out in the schedule but it can be seen that the total sentence was 17 months was accumulated upon the 6 months and 1 day sentence imposed by Magistrate Black. In relation to the suspended term of imprisonment, Magistrate Brown fined the appellant $100 and continued the order. Having regard to the time already spent in custody, Magistrate Black ordered that the sentence commence as from 21 January 2005.
6 If that had been the only order, then parole would not be an issue: see the Sentencing Administration Act 1995 (WA), s 22. Magistrate Brown took into account and was well aware of the various offences and the need to tailor the sentence to reflect the overall criminality. For that reason, as can be seen from the schedule, he made a series of concurrent and cumulative sentences which related, as I say, to the total sentence of 17 months.
7 From the day's sentencing exercise the appellant appeals on a number of grounds:
SJA 1040/05 re Magistrate Black:
"3.2 (a) The order in which the Applicant was dealt with by two magistrates on the one day resulted in an inappropriate sentence.
(Page 7)
- (v) The Applicant was sentenced firstly by His Worship Mr Black in relation to one series of offences and then by His Worship Mr Brown in relation to another series of offences.
(vi) Six months and one day of imprisonment is the minimum period of imprisonment that may be imposed by a court pursuant to s86 of the Sentencing Act 1995.
(vii) If the sentencing by His Worship Mr Brown had proceeded first then the [sic] His Worship Mr Black SM would have been able to impose less than 6 months and one day of imprisonment under s86 of the Sentencing Act 1995 and could have made the Applicant eligible for parole under s89 of the Sentencing Act 1995.
(viii) The order in which the sentences were imposed therefore resulted in an inappropriate sentence."
SJA 1039/05 re Magistrate Brown:
"2(a) His Worship Mr Brown erred in considering that the Applicant would be eligible for parole in relation to the sentence imposed earlier on 2 March 2005 by His Worship Mr Black.
(b) The Learned Magistrate failed to adequately consider the totality principle in making sentences cumulative.
(c) The sentence imposed was manifestly excessive."
8 The first and major ground pressed upon me is that Magistrate Brown erred in failing to consider the totality principle in making the sentence cumulative. There is no question that the totality principle can arise: see Jarvis v The Queen (1998) 20 WAR 201. It is necessary to look at the total criminality which comprises, in broad terms, the threats to kill, breaches of a violence restraining order and driving while under suspension. There were some four months between the
(Page 8)
- threats and the breaches of the violence restraining order. The appellant was given a considerable opportunity on 8 October 2004 when his sentence was suspended. He failed to make the most of that opportunity.
9 It is not sufficient for the appellant to show that the sentences were high or that another sentencer may have imposed different sentences. In order to succeed, the appellant must establish that the total sentence imposed exceeded the range of a sound sentencing discretion to such an extent as to manifest error. The particulars by which it is asserted that it does is by failing to have due regard to the totality principle.
10 The difficulty for the appellant is that the Magistrate was very careful in his remarks, and in his appreciation of the offences, to have regard to the totality principle, and furthermore, in my opinion, the Magistrate did not err in either the selection of the length of period on each sentence or the decision to make certain sentences cumulative both upon each other and cumulative upon the sentences Magistrate Black had imposed.
11 As to the breaches of the restraining order, it must be emphasised that courts treat breaches of restraining order very seriously, particularly when committed in the circumstances outlined in the statement of facts to which the appellant pleaded guilty and in the facts as found by Magistrate Brown in respect of the offence to which he pleaded not guilty.
12 Notwithstanding the able arguments of counsel, I consider that each sentence was within the range of the sentencing discretion and it has not been established that the total sentence was so far beyond the bounds of an appropriate sentence as to indicate error.
13 I turn now to the question of parole or, more precisely, the effect of the non-parole period of 6 months and 1 day consequent upon Magistrate Black's decision. It is clear to me that Magistrate Brown had no power to vary the sentence made by Magistrate Black to impose a parole eligibility order. If authority were needed for so basic a proposition it is to be found in Begg v Bartlett [2004] WASCA 232. It is clear also Magistrate Black had no power to grant parole eligibility because his sentence was a 6 month and 1 day sentence. However, despite the fact that there was no error discerned by either Magistrate, I am of the view this is one of those odd occasions where the result, although without judicial error, has led to a miscarriage of justice.
14 I can shortly state the reasons for that conclusion. It is clear from the pre-sentence report and from other matters, including the fact that this was
(Page 9)
- the first period of imprisonment, that the appellant is still a comparatively young man, that parole in his case would be positively beneficial. This is no doubt why Magistrate Brown made a parole eligibility order.
15 By the happenstance of the circumstances in which sentencing took place where the lower sentence was imposed first, parole has not been granted by operation of law rather than by a reasoned decision of a judicial officer to decline to grant parole.
16 Magistrate Brown in fact mistakenly thought that parole would be granted in respect of the whole sentence. That is an indication perhaps what he intended and it might be that he would have restructured his sentence had he known that that was not to be. This is to a degree speculative because the issue of parole is a separate issue to the issue of the length of sentence. Magistrate Brown had firmly reached the view that the appellant should be entitled to parole eligibility, a view which I share.
17 It is an unusual case but I am satisfied that there has been a miscarriage of justice, albeit, without error on anybody's part. The proper way to correct the miscarriage of justice is to allow both appeals to the extent of varying the orders made by the Magistrates so that the combined sentence of 23 months' imprisonment in the way ordered by each of the Magistrates remains but in respect of the whole of the sentence of 23 months, I make a parole eligibility order. The sentence remains as backdated by Magistrate Black to 21 January 2005.
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