Waymouth v Chrisp

[2000] WASCA 89

WAYMOUTH -v- CHRISP & ORS [2000] WASCA 89

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 89
Case No:	SJA:1234/2000	Heard:	3 APRIL 2000
Coram:	MILLER J	Delivered:	10/04/00
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Order that appellant be eligible for parole
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Parties:	DAVID WAYMOUTH DEAN JOHN CHRISP MICHAEL CLIFFORD JOHN HENDERSON GARY JAMES THOMAS DONALDSON ROBERT PATRICK PAPROCKI WAYNE MATTHEWS
Catchwords:	Criminal law Sentencing Eligibility for parole Whether Magistrate erred in refusing parole Turns on own facts
Legislation:	Offenders Community Corrections Act 1963 Sentencing Act 1995, s 87, s 89(2)
Case References:	Forbes v The Queen, unreported; CCA SCt of WA; Library No 7777; 7 August 1989 Stuart v Waghorne [1999] WASCA 150 Thompson v The Queen (1992) 8 WAR 387 Archibald v R (1989) 40 A Crim R 228 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 Marshall v The Queen, unreported; CCA SCt of WA; Library No 970536; 2 October 1997 Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Swain v R (1989) 41 A Crim R 214 The Queen v Jones, unreported; SCt of WA; Library No 970210; 30 April 1997 Young v Dockery, unreported; SCt of WA; Library No 990144; 22 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WAYMOUTH -v- CHRISP & ORS [2000] WASCA 89 CORAM : MILLER J HEARD : 3 APRIL 2000 DELIVERED : 10 APRIL 2000 FILE NO/S : SJA 1234 of 2000 BETWEEN : DAVID WAYMOUTH

Appellant

AND

DEAN JOHN CHRISP
MICHAEL CLIFFORD JOHN HENDERSON
GARY JAMES THOMAS DONALDSON
ROBERT PATRICK PAPROCKI
WAYNE MATTHEWS
Respondents

Catchwords:

Criminal law - Sentencing - Eligibility for parole - Whether Magistrate erred in refusing parole - Turns on own facts

Legislation:

Offenders Community Corrections Act 1963

Sentencing Act 1995, s 87, s 89(2)



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Result:

Appeal allowed

Order that appellant be eligible for parole

Representation:

Counsel:

Appellant : Mr R D Young
Respondents : Ms L B Black

Solicitors:

Appellant : Gunning
Respondents : State Director of Public Prosecutions

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

Forbes v The Queen, unreported; CCA SCt of WA; Library No 7777; 7 August 1989
Stuart v Waghorne [1999] WASCA 150
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Archibald v R (1989) 40 A Crim R 228
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Marshall v The Queen, unreported; CCA SCt of WA; Library No 970536; 2 October 1997
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Swain v R (1989) 41 A Crim R 214
The Queen v Jones, unreported; SCt of WA; Library No 970210; 30 April 1997
Young v Dockery, unreported; SCt of WA; Library No 990144; 22 March 1999

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1 MILLER J: The appellant was charged in the Perth Court of Petty Sessions with 18 offences. The most serious of them were dangerous driving causing bodily harm (three charges), stealing, receiving, possession of amphetamines and possession of cannabis. There were numerous motor vehicle related charges, including driving under suspension on three occasions. The appellant was first required to appear in the Court of Petty Sessions, Perth on 20 September 1999, but he failed to appear on that day and was, as a result, arrested on a bench warrant and brought before the Court on 7 October. He did not plead that day, was refused bail, and remanded in custody until 12 October. On 12 November 1999 he pleaded guilty to the various charges and was remanded for a pre-sentence report. On 3 December 1999 he came before Mr K Moore SM and was on that day dealt with on all matters. After hearing a plea in mitigation put forward by counsel for the appellant, the learned Magistrate imposed a variety of penalties which ranged from fines, short periods of imprisonment (1 month, 3 months, 6 months) and sentences of 9 to 18 months' imprisonment as follows:

Charge No	Offence	Sentence
2495	receiving	18 months imprisonment
8037	driving under susp	12 months imprisonment
22510	stealing	9 months imprisonmment
31469	driving under susp	12 months imprisonment
31471	driving under susp	12 months imprisonment

2 The sentences of imprisonment were all ordered to be served concurrently, so that the effective sentence imposed upon the appellant was one of 18 months. In imposing that sentence the learned Magistrate stated that he had taken into account the fact that he (the appellant) had been in custody for some time and he declined to make a parole eligibility order. The reasons given by the learned Magistrate were shortly stated and were as follows:

"For receiving the 38 discs and the video cassette recorder, 18 months' imprisonment concurrent and compensation of $60 plus order for return of the property. They all run concurrently. I have not -- I have taken into account the fact that he has been in custody for some time and I have not made him eligible for parole.

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I have dealt with him rather leniently in view of the large number of charges."

3 The appellant was granted leave to appeal the sentence of 18 months' imprisonment with ineligibility for parole, the order for leave to appeal and order for extension of time within which to appeal being granted by Steytler J on 28 January last. The grounds were as follows:

a) In relation to all complaints, the learned Magistrate erred in neither reducing the fixed term of imprisonment by an appropriate period nor ordering that the term imposed was to begin on the day that custody began.

b) In relation to Fremantle Complaint No's 2495 and 8037 in the Perth Court of Petty Sessions and Complaint No's 31469 and 31472 in the Perth Court of Petty Sessions:


i) The learned Magistrate erred in law in refusing parole on the grounds that the sentence was lenient.

ii) The learned Magistrate erred in failing to give any consideration or adequate consideration to the Applicant's prospects of rehabilitation in the community.

4 As the actual sentence of imprisonment imposed by the learned Magistrate is not the subject of appeal, it is unnecessary for me to refer in any detail to the facts of the various matters which brought the appellant before the Court of Petty Sessions. The charge of receiving involved the receipt of a video recorder and some 38 compact discs; the charges of dangerous driving causing bodily harm occurred when the appellant, who did not hold a current motor driver's licence, was driving a vehicle at up to 100kmh in a 60kmh zone and in attempting to avoid a stationary vehicle whilst overtaking a vehicle in the kerb lane, lost control and caused a violent collision; and the other offences of driving whilst under suspension involved blatant incidents of driving in that manner.

5 The learned Magistrate had the assistance of a comprehensive pre-sentence report, attached to which were both a psychological and psychiatric report. These revealed the appellant to be a 32-year-old man in a defacto relationship, unemployed and last released from prison on 4 December 1998. He had an extensive criminal history beginning from the age of 16 years and including seven offences of a violent nature,

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including a conviction for grievous bodily harm in the District Court Perth in August 1987 when he was sentenced to 4 years' imprisonment. There were previous convictions for dangerous driving causing bodily harm in October 1997, the circumstances being that the appellant had driven through a red light and collided with another vehicle injuring two of its passengers. From 1984 the appellant had been subject to five probation orders, four parole orders, three work and development orders and two home detention orders. All but four of these orders and the home detention bail had been breached, usually for re-offending. The conclusion reached in the pre-sentence report was that community based supervision appeared to have had a negligible impact upon the appellant's offending behaviour. However, the most positive response to supervision was said to be the appellant's most recent parole period which was from 6 November to 4 December 1998, a four week period during which the appellant had reported as directed and attended substance abuse counselling.

6 It is unnecessary to detail much more of the pre-sentence report. It appears that substance abuse has been the appellant's principal problem, dating from drinking at the age of 15 years to amphetamine use in 1990 and a daily heroin habit after release from prison in 1995. Substance abuse counselling had been sought by the appellant in the past but without success. A Substance Abuse Resource Unit Counsellor did, however, report for the purposes of the pre-sentence report that since the appellant's most recent remand, he was now "genuinely … committed to change" with insight into his problems and in appreciation that he has "long term work to do to achieve positive results but is wanting to facilitate this change in his life".

7 The summary of the pre-sentence report was in the following terms:

"SUMMARY

Waymouth is thirty two years of age and it appear he may have experienced an emotionally deprived background. He developed a propensity to alcohol and later, drug abuse which has been the catalyst for all his offending. While he has acknowledged his offending behaviour, he has not accepted responsibility and has attempted to minimise his actions by blaming his domestic and family situation. His court record reflects a long history of similar offending.

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Waymouth did successfully complete his last period of parole, albeit four weeks, and the substance use counsellor stated he is genuine with his claims of wishing to now facilitate positive changes to his life. It is imperative Waymouth continues not only with his substance abuse counselling but also with psychological counselling to address his longer term underlying emotional issues which he now seems ready to deal with.

Should the Court consider releasing Waymouth to an Intensive Supervision Order he will be required to undertake substance abuse counselling, together with random urinalysis and to engage in psychological counselling. However, given his past history of offending whilst on supervision orders, it is not possible to confidently predict complete rehabilitation or a successful outcome to any future orders.

Should Waymouth be sentenced to a term of imprisonment of twelve months or more, his eligibility for parole is supported."

8 The psychological report of Ms Helen Fowler & Associates revealed that the appellant's condition was consistent with ADHD behaviour and there was evidence to suggest that he suffered from this condition. It recommended that he attend an anger management programme, particularly as the effects of medication for ADHD were suggestive that he might be more receptive to such a programme. No specific recommendations were made in relation to the appropriate sentence or the question of parole.

9 The psychiatric assessment was made by Dr A S Pullela, who had seen the appellant "in the past in the prison setting" where he had been diagnosed as having significant personality deficits of borderline nature and where he was treated with mood stabilisers with variable results. It was said that on occasion he had responded to these and continued to remain on an even keel. More recently, however, the appellant was given a diagnosis of ADD for which he had been started on stimulant medications and which had given good improvement with no evidence of any management concerns since receiving this therapy. From a psychiatric point of view, he was noted to be stable and appeared to be compliant with the medication he was receiving and coping well. The opinion and recommendations of Dr Pullela were as follows:

"Mr Waymouth has a significant personality disorder of antisocial/borderline sub-type with a past history of

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polysubstance abuse/dependence. The psychological assessment also indicated a history suggestive of probable ADHD for which he currently receives medication. Given his chronic recidivism and his abuse of illicit substances, it is my view that Mr Waymouth is likely to reoffend in future unless he is willing and motivated to address issues of his offending behaviour. At present his risk of reoffending is less likely due to his physical disability as a result of the fracture of the leg he sustained in the road traffic accident in August 1999. I would like to respectfully recommend to the court that Mr Waymouth would benefit from ongoing psychological and psychiatric monitoring in view of his current therapy.

…

If a custodial sentence is given he would be subjected to the various programs such as Anger Management and Drug Counselling through Justice Psychological and Psychiatric Services."

10 Counsel who appeared for the appellant before Mr Moore SM stressed the contents of the pre-sentence psychological and psychiatric reports and submitted that there were real prospects of rehabilitation. Request was made that consideration be given to some form of community service order or, in the alternative, if imprisonment was the only option, a submission was made that parole would be appropriate. Reference was made by counsel to the fact that the appellant had been in custody for the last 2 1/2 months.

11 On the hearing of the appeal counsel for the appellant made reference to the learned Magistrate's statement that he had dealt with the appellant "leniently", contending that this assessment was flawed and contending too that this seemed to be a determining factor in refusing to backdate the sentence and in refusing to grant parole. I am not sure that that can be said. It seems to me that the learned Magistrate was simply saying that the appellant could, for the combination of offences for which he appeared before the Court, have been sentenced to a longer effective term of imprisonment and that to the extent that the effective sentence was only 18 months it was "lenient".

12 It is true that the appellant had been in custody for some 56 days before he was sentenced by the learned Magistrate. He had, however, been taken into custody on a bench warrant for failing to appear in court

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and for breach of bail. It was not until 12 November 1999 that he entered pleas of guilty to all charges and realistically, it is only the period 12 November to 3 December 1999 that could be said to represent time spent in custody in relation to the matters which had brought him before the Court. That is only a period of three weeks, for which about one month would be an appropriate period to allow if time on remand was to be taken into account within the meaning of s 87 of the Sentencing Act 1995. Alternatively, pursuant to that section, the sentence could have been ordered to date from 12 November. I accept that backdating a sentence or reducing it to allow for time spent in custody is a discretionary matter, but a discretion which would ordinarily be exercised in favour of backdating. However, the learned Magistrate here made the clear statement that he had taken into account the fact that the appellant had been in custody "for some time". It is true that he did not stipulate how exactly he had taken it into account and the sentence does not immediately indicate how, in practical terms, time spent in custody was taken into account. However, in the mix of considerations relevant to sentencing, time spent in custody was but one factor. It may well have been the case that the learned Magistrate considered a period greater than 18 months would have been an effective sentence, but reduced the sentence to 18 months to account for a combination of factors, one of which was time spent in custody. I can see no basis upon which the appellant can contend that the learned Magistrate erred in relation to this aspect of the matter.

13 In relation to the question of parole, the complaint is that the learned Magistrate did not properly turn his mind to the issue. Indeed, his Worship gave no reasons at all for declining to make a parole eligibility order. Nor did his Worship make any reference to the factors set out in s 89(2) of the Sentencing Act, which govern the determination whether it is appropriate to make a parole eligibility order. That section requires the Court to have regard to all or any of the following:

"(a) the seriousness and nature of the offence;

(b) the circumstances of the commission of the offence;

(c) the offender's antecedents;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

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(e) any other reasons the court decides is relevant."

14 It is true (as submitted by counsel for the respondent) that failure to set out reasons for declining to make a parole eligibility order are not fatal. As Malcolm CJ put it in Forbes v The Queen, unreported; CCA SCt of WA; Library No 7777; 7 August 1989 at 8:

"It is necessary to make some prognosis as to the future. It is complained in this case that, in determining not to make an order for eligibility for parole, the learned Judge did not spell out what were the matters which he considered militated against the making of an order of eligibility. His Honour did, however, in his sentencing remarks, refer to the past history of dishonesty and the circumstances under which the offence had been committed. Against (sic), it is, of course, preferable for the exercise of discretion to be accompanied by articulation of the reasons. Once again, however, in this case, when the circumstances are examined, I am forced to the view that, having regard to the way in which this offender has reacted on parole, it could not be said that the discretion of the learned sentencing Judge in any way miscarried by declining to make an order for eligibility for parole."

15 Counsel for the respondent argued that in this case there was nothing positive in the materials to warrant making the applicant eligible for parole, listing in her outline of submissions the following factors as counting against any parole eligibility order:

"i. The Applicant had a poor history of responding to community supervision and previous parole orders …

(ii) The Applicant had a serious and extensive criminal history;

(iii) The Applicant had accepted no responsibility for his serious and lengthy offending (covering a 5 month period) and attempted to minimise his actions by blaming others (see pre-sentence report);

(iv) The Applicant at age 32 was not a youthful offender."

16 On the other hand, counsel for the appellant argues that the materials did point to "something positive" in favour of parole (Thompson v The Queen (1992) 8 WAR 387). It was contended that, notwithstanding the

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appellant's bad record, he had been diagnosed for the first time as suffering from ADHD, which was a treatable disorder, and this was the first time the appellant had sought any assistance from psychiatrists and psychologists in relation to that problem. Medication on which he had been placed had stabilised him and primarily for this reason the pre-sentence report appears to have supported a parole eligibility. Reference was made by counsel for the appellant to my decision in Stuart v Waghorne [1999] WASCA 150 where I considered the impact of a previously undiscovered diagnosis of ADHD on the offence of multiple driving whilst under suspension. That case should not be taken as authority for the proposition that discovery for the first time of ADHD necessarily means that a defendant should be treated in any particular way, but it is authority for the proposition that where a defendant has committing a long series of offences not knowing his true mental condition, discovery of that condition and intensive treatment for it may well be a factor in the ultimate disposition of the matter as otherwise than imprisonment.

17 I am troubled that the learned Magistrate dealt so briefly with the question of eligibility for parole. His Worship's failure to make any reference to the recommendation contained within the pre-sentence report and failure to reach any conclusions about the condition of ADHD detailed in the psychological and psychiatric assessments was undoubtedly a shortcoming of the sentencing process. True it is that Magistrates are under pressure in the day to day business of the Court of Petty Sessions and cannot be expected to give learned and detailed reasons for judgment in every case, but here the appellant had been remanded in custody awaiting a pre-sentence report, and in my view, he was entitled to more detailed consideration of the parole issue than was forthcoming. Furthermore, I am of the view that the recommendation contained within the pre-sentence report that "eligibility for parole is supported" (in the event of imprisonment for 12 months or more), was a telling factor. The pre-sentence report was carefully prepared, and whilst recognising the poor history of past supervision, pointed out that the most recent parole period (short though it was) had been successfully served out and all the indications were that the appellant now seemed ready to deal with the longer term underlying issues which had created his criminal behaviour. The fact that he had been diagnosed with ADHD and was now receiving treatment in relation to it was, in my view, a relevant factor and one which pointed towards parole. As was pointed out in Thompson (supra) (at 395), the philosophy of the legislation (equally applicable to

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the Sentencing Act as to the Offenders Community Corrections Act 1963) suggest bias towards eligibility for parole.

18 Although the learned Magistrate exercised a discretion against ordering eligibility for parole, and although the respondent's submissions as to why there should have been no parole eligibility must be given weight, I am of the opinion that the learned Magistrate did err in declining to make a parole eligibility order. Given the accepted bias towards parole eligibility which is contained within the legislation, and given the positive recommendation contained within the pre-sentence report, the scales were, in my view, tipped towards parole eligibility in this case and parole should therefore have been ordered accordingly.

19 I would therefore make the following orders:

(a) The appeal be allowed.

(b) The learned Magistrate's refusal to order eligibility for parole be set aside and in lieu thereof there be an order that in relation to the sentence of 18 months' imprisonment, the appellant should be eligible for parole.