Wells v Feast

[2009] WASC 377

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WELLS -v- FEAST [2009] WASC 377

CORAM:   McKECHNIE J

HEARD:   2 DECEMBER 2009

DELIVERED          :   2 DECEMBER 2009

PUBLISHED           :  11 DECEMBER 2009

FILE NO/S:   SJA 1114 of 2009

BETWEEN:   JERMAINE SHAUN WELLS

Appellant

AND

ADRIAN MATTHEW FEAST
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L H JONES

Citation  :PE 39515 of 2009

Catchwords:

Criminal law - Burglary - Summary conviction - Whether sentence of 18 months in error - Whether plea of guilty taken into account - Whether parole eligibility order should have been made

Legislation:

Sentencing Act 1995 (WA), s 89(4)

Result:

Appeal allowed to the extent of a parole eligibility order

Category:    B

Representation:

Counsel:

Appellant:     Mr A J Robson

Respondent:     Ms J Scutt

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Theisinger v Hartill [2007] WASC 212

McKECHNIE J: 

(This judgment was delivered extemporaneously on 2 December 2009 and has been edited from the transcript.)

1. The appellant entered the yard of a house in Hamilton Hill and stole a quantity of electronic goods and other things to the value of nearly $5,000.  He pleaded guilty.  The magistrate imposed a sentence of 18 months' imprisonment without parole.  The appellant appeals in relation to that sentence on three grounds. 

Ground 1 - the sentence is manifestly excessive

1. The ground is the magistrate erred in law by imposing a sentence that was manifestly excessive in light of the offence, the circumstances of the appellant and the sentencing standards for the offence but, as Mr Robson pointed out today, the ground is really encompassed within ground 3, which I will deal with shortly.

2. The maximum penalty by way of summary conviction was one of 3 years' imprisonment reducing (having regard to the transitional provisions) to 2 years' imprisonment as this offence did not fall into the worst case category under the 2009 amendments to the Sentencing Act 1995 (WA). The appellant was, by virtue of provisions known colloquially as the third strike provisions, liable to a term of imprisonment of 12 months in any event.

3. Having regard to the authorities to which counsel referred, this sentence is well within the range of a sound sentencing discretion.  It cannot be said that a sentence of 18 months (apart from the plea of guilty, to which I will shortly refer) is outside that range.  Ground 1 is dismissed.

Ground 3 - no reduction for a plea of guilty

1. The third ground is that the learned magistrate erred in law in failing to adequately take into account the appellant's plea of guilty when determining the length of sentence of imprisonment.  The magistrate commenced his sentencing remarks by saying, 'Jermaine Shaun Wells has pleaded guilty to one charge', and then set out the charge.  He did not thereafter refer to the plea or, in terms of the Sentencing Act, say that he had reduced the sentence because of a mitigating factor, namely the plea of guilty.  The fact that he did not refer to it is an error of public policy.  It does not necessarily lead to the conclusion that he failed to take it into account.  He was obviously aware of the plea; he said so.  In order to make good this ground the appellant must demonstrate that the length of sentence itself is such that the magistrate must have neglected to give proper weight to the plea of guilty. 

2. The effective maximum was one of 2 years' imprisonment.  The offence was a bad offence and there is a prevalence of this type of burglary requiring an element of general deterrence in the structure of a sentence.

3. There was precious little in the way of mitigation apart from the plea of guilty.  The sentence of 18 months must have reflected a substantial discount for the plea of guilty, notwithstanding that the magistrate made no specific mention of it as required.  Even though he did not make a mention of it, in my opinion he did nevertheless take account of it when imposing a sentence of 18 months.  Ground 3 is dismissed.

Ground 2 - no parole eligibility

1. Ground 2 relates to the magistrate's refusal to order parole.  The magistrate said in relation to parole:  'I am not making you eligible for parole.  It seems that parole is breached each time and it is not appropriate that parole be granted'.

2. The pre‑sentence report shows the appellant breaches community orders and one would have to say his performance on any form of community order or parole is abysmal.  The report, however, did recommend parole to monitor his reintegration into the community post‑release.  His poor performance was the only factor that the magistrate mentioned. 

3. The Sentencing Act s 89(4) requires the presence of at least two of four factors: the offence is serious; the offender has a significant criminal record; the offender when released from custody under a release order made previously did not comply with the order; and any other reason the court considers relevant. The offender did have a significant criminal record. I have already commented the magistrate did note his performance on previous release terms. However, in Theisinger v Hartill [2007] WASC 212 EM Heenan J stated:

   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. [32]

4. That statement is amply supported by the authorities to which Heenan J referred. In the present case the discretion was enlivened, even though the magistrate only referred to one matter from s 89(4). However, this was not a clear case for the refusal of parole. In those circumstances it required the magistrate to give careful consideration to the exercise of the discretion.

5. Although the offender has a very bad record and poor performance, nevertheless he is still only 26 years old.  He will require assistance in reintegration back into the community, as indicated by the pre‑sentence report. 

Conclusion

1. In all the circumstances the magistrate was in error in the exercise of his discretion in failing to take account of those matters, giving them voice and weight.  This may be possibly the last occasion where the discretion will be exercised in favour of the appellant.  He should clearly understand that.  Nevertheless, the factors in favour of parole weigh against the factors against parole, notwithstanding his poor performance.  A parole eligibility order should have been made.  The result of the appeal is that the sentence of 18 months' imprisonment is confirmed, but a parole eligibility order is made in respect of it.