Vince v Martyn
[2013] WASC 60
•5 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VINCE -v- MARTYN [2013] WASC 60
CORAM: HALL J
HEARD: 14 FEBRUARY 2013
DELIVERED : 5 MARCH 2013
FILE NO/S: SJA 1094 of 2012
BETWEEN: AARON PETER VINCE
Appellant
AND
SHAYNE ROBERT MARTYN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V C EDWARDS
File No :RO 9660 of 2010
Catchwords:
Criminal law - Appeal against sentence - Totality principle - Whether cumulative sentence for breach of suspended sentence was crushing - Whether parole eligibility overlooked - Whether eligibility should have been ordered
Legislation:
Sentencing Act 1995 (WA), s 89
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal allowed in part by varying sentence to make an order that the appellant be eligible for parole
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr P D Spragg
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Giglia v The State of Western Australia [2010] WASCA 9
Jarvis v The Queen (1993) 20 WAR 201; (1994) 18 Crim LJ 363
Mears v Holleman [2010] WASC 39
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 51
Moody v French [2008] WASCA 67
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Roffy v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Vlek v The Queen (unreported, WASCCA, Library No 990153, 29 March 1999)
Wilson v The State of Western Australia [2010] WASCA 82
Yuksel v Marchesani [2011] WASC 57
HALL J: On 25 July 2012 the appellant came before the Magistrates Court to be dealt with for re‑offending during the term of a suspended sentence of imprisonment. The re‑offending was admitted and the appellant was ordered to serve the 9 month sentence of imprisonment that had previously been suspended. The sentence was ordered to be served cumulatively on a sentence of 7 years' imprisonment imposed by this court on 4 April 2012. The appellant now seeks leave to appeal against the 9 month sentence.
There are two grounds of appeal. The first is that the magistrate infringed the totality principle by ordering that the sentence of 9 months be served cumulatively. The appellant's contention is that the addition of 9 months made the total sentence one that was crushing. The second ground is that the magistrate erred by failing to make an order that the appellant be eligible for parole.
Background
On 7 January 2011 the appellant was sentenced in the Magistrates Court at Mandurah for a number of offences including one of driving a motor vehicle whilst his licence was suspended, contrary to s 49 of the Road Traffic Act 1974 (WA). The magistrate who sentenced the appellant for that offence noted that he had committed many previous offences of the same type. He had also continued to drive whilst on bail. A sentence of 9 months' imprisonment suspended for 18 months was imposed. The magistrate warned the appellant that if during that period of 18 months he committed any offence for which he could be sent to prison then the suspended sentence would be activated. The appellant said that he understood.
On 1 and 2 May 2011 the appellant committed a series of serious offences. They were two aggravated armed robberies, aggravated burglary, criminal damage by fire, stealing and stealing a motor vehicle. He pleaded guilty to those offences and was sentenced by McKechnie J in this court on 4 April 2012 to a total effective sentence of 7 years' imprisonment. That sentence was backdated to 12 January 2012 and the appellant was ordered to be eligible for parole. I will refer to these offences as the 'indictable offences'.
On 13 May 2011 the appellant committed an offence of possession of cannabis contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). He pleaded guilty to that offence and was sentenced in the Stirling Gardens Magistrates Court on 18 April 2012 to a fine of $100.
The offences committed on 1 and 2 May 2011 and 13 May 2011 were committed during the suspension period. Accordingly it would have been open for the appellant to have been dealt with for re‑offending on the suspended sentence in either the Supreme Court on 4 April 2012 or the Stirling Gardens Magistrates Court on 18 April 2012: s 78 Sentencing Act 1995 (WA). The transcript of those appearances has been made available and it is apparent that breach of the suspended imprisonment order was not dealt with on either of those occasions.
What did occur was that a notice pursuant to s 79 of the Sentencing Act was lodged with the Magistrates Court at Mandurah. The appellant admitted that he had re‑offended during the suspension period by committing the possession offence on 13 May 2011. Although the notice did not refer to the indictable offences committed on 1 and 2 May 2011, counsel who appeared for the appellant in the Magistrates Court drew attention to the sentence that had been imposed by McKechnie J in this court. It was submitted that the sentence imposed for the indictable offences on 4 April 2012 amounted to a significant change in circumstances since the suspended sentence was imposed such that it was appropriate to order that the sentence of 9 months be served concurrently.
The magistrate who dealt with the appellant on 25 July 2012 said:
The suspended imprisonment order was in respect of driving under suspension and it was for nine months, suspended for 18 months. Your counsel has urged me that if I - [sic] of the view that it ought to be triggered, that any term of imprisonment that I impose should be ordered to be served concurrently with your existing term, given the length of the term that you are now currently serving.
My view is that this matter was in no way connected with the matters for which you were sentenced in the Supreme Court. Your record indicates a number of previous convictions for driving under suspension and in fact in the past you have served terms of imprisonment for that offence.
In my view to order that it be cumulative on your existing term, I don't consider would offend the totality principle or be a crushing penalty, so in my view, it ought to be served cumulatively, so you're sentenced to nine months' imprisonment cumulative on your existing term (ts 2).
On the hearing of the appeal the appellant said that he had also been sentenced to 8 months' imprisonment in the District Court. This appears to be a reference to a sentence of 8 months' imprisonment imposed on 25 June 2011 for breaching a community based order. That community based order had been imposed on 4 July 2006 for an offence of aggravated burglary. That sentence had been completed by the time the appellant came to be dealt with for breach of the suspended sentence.
Ground 1 - Was the totality principle infringed?
The relevant principles applying to an appeal against sentence are well known. They are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82. That case related to an appeal to the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA) but the principles are materially the same for appeals from magistrates under pt 2 of the Act.
Sentencing is a discretionary exercise. A decision as to whether to order that a suspended sentence be served pursuant to s 80 of the Sentencing Act is analogous to sentencing, however the exercise of the discretion is circumscribed by the terms of that section. Section 80 provides that a court dealing with a person who re‑offends during the suspension period of suspended imprisonment must be dealt with by one of the methods that is set out. One of those methods is an order that the person serve the term of imprisonment that was suspended. A court must make such an order 'unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed': s 80(3). The effect of this is that other methods of dealing with a re‑offender are precluded other than in circumstances where an order to serve the sentence would be unjust. It is not apparent that this requirement also applies to a decision as to whether a sentence ordered to be served under s 80(1)(a) should be made concurrent or cumulative on an existing sentence.
Whether a sentence is made concurrent or cumulative it is still 'served'. Thus it is not necessary for s 80(3) to be satisfied before a court can order that an activated suspended sentence be served concurrently with an existing sentence. The question of whether an activated sentence should be served concurrently or cumulatively should be determined on the ordinary principles applicable to the exercise of sentencing discretion. In particular, the relevant principle applying in this case was the totality principle.
The totality principle has been described as having two limbs. First, where an offender is sentenced for a number of offences the aggregation of the sentences should be a just and appropriate measure of the total criminality having regard to the circumstances of the case including those referable to the offender personally. Secondly, the overall sentence should not be crushing in that it would destroy any reasonable expectation of a useful life after release: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308 (McHugh J) and Roffy v The State of Western Australia [2007] WASCA 246 [24] ‑ [25] (McLure JA). The principle applies not only where an offender is dealt with for multiple offences before the same court but also where an offender serving a sentence comes before another court for sentencing: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 51. See also Vlek v The Queen (unreported, WASCCA, Library No 990153, 29 March 1999).
An argument that the totality principle has been infringed may be either a claim that an express error has been made because the principle was misstated or misapplied or a claim that there has been an implied error because the outcome is said to be crushing or disproportionate to the total criminality. In this case it is apparent that the magistrate had regard to the principle and there is no suggestion that she made any express error in her articulation of it. Rather the appellant asserts implied error in that he says the magistrate erred by concluding that a cumulative sentence of 9 months' imprisonment was not crushing. Where implied error is raised it must be established that the outcome is one that could not have been reached in proper exercise of the sentencing discretion; that is to say, the result is one, though no express error is apparent, which indicates that an error must have occurred.
The appellant relies only on the second limb of the totality principle. He does not claim that the total effective sentence was disproportionate to the total criminality. Nor does he claim that a sentence of 9 months' imprisonment for an offence of driving whilst suspended is excessive. I note that the appellant had at least six previous offences of driving without authority contrary to s 49 of the Road Traffic Act when he received the suspended sentence on 12 February 2010. Sentences of between 4 and 9 months' imprisonment have been imposed for convictions for driving while under suspension for the fourth to eighth such offences: Mears v Holleman [2010] WASC 39 [24] (E M Heenan J); Yuksel v Marchesani [2011] WASC 57 [30] ‑ [31] and Sheiner v Roberts [2009] WASC 281. The only issue is whether the addition of a further nine months resulted in a total effective sentence that was crushing.
A sentence can be described as crushing 'when it leaves the offender with no hope for the future or when it would provoke a feeling of hopelessness in the defendant if and when he is released or where it destroys a reasonable expectation of a useful life after release': Jarvis v The Queen (1993) 20 WAR 201; (1994) 18 Crim LJ 363, 205 (Ipp J). See also Giglia v The State of Western Australia [2010] WASCA 9 [43] (Owen JA, McLure P and Pullin JA agreeing).
The appellant is currently 26 years of age and, assuming he is granted parole on the indictable offences, will be released from prison in his early 30s. Whether or not the suspended sentence was made cumulatively the appellant would have to serve five years of the sentence imposed on the indictable offences before being eligible for parole. The addition of a further nine months, while not insignificant, can not be said to tip the total effective sentence over the bounds of what is appropriate and make it a sentence that is crushing. The prospects of a useful life after release are not destroyed by this sentence. It is also relevant to note, as did the magistrate, that the original offence of driving under suspension was unrelated to the indictable offences and therefore deserving of a separate and additional penalty.
The totality principle was not breached by the order that the sentence of nine months be served cumulatively on the appellant's existing sentence. No error was made by the magistrate, ground 1 cannot succeed, and leave to appeal in respect of it must therefore be refused.
Ground 2 - Eligibility for parole
The magistrate made no reference to the question of whether the appellant should be eligible for parole in respect of the nine month sentence. This may have been because in most circumstances a parole eligibility order cannot be made where the court imposes a sentence of less than 12 months, and her Honour may have assumed that this was such a case. However, a court may order that an offender be eligible for parole in respect of a sentence of less than 12 months where the offender is at the date of the sentence serving a parole term that was imposed previously: s 89(2)(a).
A decision as to whether to make an offender eligible for parole is discretionary in nature. That discretion is to be exercised having regard to the factors in s 89(4). The combined effect of s 89(1) and s 89(4) is that a sentencing judge is required to make a parole eligibility order if none or one of the four factors identified in s 89(4) are present. If two or more of those factors are present the court may decide not to make a parole eligibility order: Moody v French [2008] WASCA 67 [47] ‑ [48] (Steytler P, Wheeler, McLure and Buss JJA).
The factors contained in s 89(4) are as follows:
(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; and
(d)any other reason the court considers relevant
The presence of two or more factors in a particular case does not compel a conclusion that a parole eligibility order should not be made: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [68] (Buss JA). Rather the existence of two or more factors opens the door to the possibility of not making a parole eligibility order. Thus, it does not follow that the existence of two or more factors necessarily leads to a conclusion that an order will not be made. Where the possibility of not making an order is raised by the existence of two or more factors being present the court will then have to consider whether in all the circumstances it is appropriate not to make an order.
It is very unlikely that the magistrate would have concluded that a parole eligibility order should not be made without making some express reference to that question. A decision not to make a parole eligibility order is one of significance that will almost invariably require an express consideration of both the statutory factors in s 89(4) and any other factors that may militate for or against such an order. The only conclusion that can be reached is that the magistrate overlooked the issue.
The failure to consider whether or not an eligibility order should be made was an error. It does not, however, necessarily follow that an eligibility order should be made. Even if a ground of appeal might be decided in favour of an appellant the appeal may be dismissed if the court considers that no substantial miscarriage of justice has occurred: s 14(2) of the Criminal Appeals Act. For this reason it is necessary to consider whether the appropriate outcome in this case was to make a parole eligibility order.
As regards the factor in s 89(4)(a), notwithstanding that the offence of driving whilst under suspension may in general be considered a serious offence (see Yuksel v Marchesani [29] (Jenkins J)) in the context of offences that justify imprisonment the offence is unlikely to be so serious as to be one of the factors that will trigger the discretion to refuse parole: Moody v French [54].
As to s 89(4)(b), the significance of a criminal record may depend upon the number, type and chronological spread of prior offences. An offender who is a serious recidivist in respect of one type of offending may have a significant record for the purposes of s 89(4)(b): Moody v French [55]. The appellant's prior convictions for driving whilst under suspension, in addition to numerous other offences under the Road Traffic Act, meet the requirements of a significant criminal record.
As to s 89(4)(c), the respondent accepted that there was no evidence to suggest that the appellant had previously not complied with a parole order.
As to s 89(4)(d), it is relevant that the appellant had a poor response to community based dispositions in the past. He has previously been convicted for a breach of bail, a breach of a community based order and a breach of conditional release order.
As two of the factors in s 89(4) exist, namely a significant criminal record and other reasons (being a poor response to community based dispositions), it was open to decide that a parole eligibility order should not be made. However, there are a number of factors that favoured a parole eligibility order. Amongst them were the appellant's relative youth and prospects for rehabilitation. When dealt with for the indictable offences an eligibility order was not opposed by the State and reports received at that time indicated that the appellant was likely to be a good candidate for parole. There is nothing to suggest that there has been any change in the appellant's circumstances that would justify a different conclusion.
Accordingly, in my view, a parole eligibility order should have been made. For those reasons ground 2 succeeds.
Conclusion
Leave is required in respect of each ground of appeal. The court must not grant leave to appeal in relation to a ground unless the ground has a reasonable prospect of succeeding: s 9 Criminal Appeals Act. This means that a ground is required to have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
For the above reasons leave is refused in respect of ground 1. In respect of ground 2 leave is granted. The appeal is allowed in part by varying the sentence imposed by the magistrate to make an order that the appellant be eligible for parole.
Orders
1.Leave to appeal in respect of ground 1 be refused.
2.Leave to appeal in respect of ground 2 be granted.
3.Appeal allowed in part by varying the sentence imposed by the magistrate by making an order that the appellant be eligible for parole.
6
15
1