Willmott v The Queen
[2000] WASCA 300
•18 OCTOBER 2000
WILLMOTT -v- THE QUEEN [2000] WASCA 300
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 300 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:69/2000 | 2 AUGUST 2000 | |
| Coram: | KENNEDY J WALLWORK J PARKER J | 18/10/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentence reduced to 9 months | ||
| PDF Version |
| Parties: | BRETT ANTHONY WILLMOTT THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Applicant unlawfully damaging a plateglass window and a metal door in course of a prison riot Sentenced to 18 months' imprisonment Parity Whether sentence excessive |
Legislation: | Nil |
Case References: | Lowe v The Queen (1984) 154 CLR 606 Oliver v The Queen (1982) 7 A Crim R 174 Postiglione v The Queen (1996-1997) 189 CLR 295 Goddard v The Queen [1999] WASCA 281 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1995) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 R v Bekink (1999) 107 A Crim R 415 R v Schneidas (No 1) (1980) 4 A Crim R 95 Shaw v The Queen (1989) 39 A Crim R 343 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WILLMOTT -v- THE QUEEN [2000] WASCA 300 CORAM : KENNEDY J
- WALLWORK J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Applicant unlawfully damaging a plateglass window and a metal door in course of a prison riot - Sentenced to 18 months' imprisonment - Parity - Whether sentence excessive
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Sentence reduced to 9 months
(Page 2)
Representation:
Counsel:
Applicant : Mr D McKenna
Respondent : Mr D Dempster
Solicitors:
Applicant : Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowe v The Queen (1984) 154 CLR 606
Oliver v The Queen (1982) 7 A Crim R 174
Postiglione v The Queen (1996-1997) 189 CLR 295
Case(s) also cited:
Goddard v The Queen [1999] WASCA 281
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1995) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
R v Bekink (1999) 107 A Crim R 415
R v Schneidas (No 1) (1980) 4 A Crim R 95
Shaw v The Queen (1989) 39 A Crim R 343
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1 KENNEDY J: The offence which gave rise to the sentence the subject of this appeal was committed by the applicant in the course of what came to be known as the Casuarina Prison Christmas Riot. He was, it would seem, then being held on remand in custody. The offence was committed while a large number of prisoners were defying, threatening and assaulting prison officers and causing damage to the prison premises. A number of defiant prisoners had been in an open area of the prison and were refusing to return to their units. The applicant, however, had been confined to the A and C wings of Unit 3, having been locked in with other prisoners when the problems outside the building were identified by prison staff. He appears to have been under the influence of non prescribed drugs at the time. The applicant armed himself with a pool ball and threw it at the window of the control room in the Unit, causing it to shatter. At this time, several police officers were in that room. With the help of two other prisoners, the applicant moved to a stack of tables and pulled them down. Then, with the help of another prisoner, the applicant picked up one of the tables and threw it at the control room windows, causing further damage. While it is true that the applicant made no verbal threats to the police officers, his behaviour could only be described as threatening. The applicant next proceeded to use a metal serving trolley to ram the heavy door at the entrance to the A and C wings at least four times. He succeeded, eventually, in snapping the door's hinges, causing the door to fall to the ground.
2 As a result of the riot, some 29 offenders were charged, of whom 14 pleaded guilty in the Court of Petty Sessions. The applicant apparently elected to be dealt with in the District Court, where he pleaded guilty to the present offence as well as to an offence of manufacturing a prohibited drug, methylamphetamine, and to an offence of possessing the drug. Presumably, it was on the last two charges that he had been held in custody. The applicant was sentenced to a term of 5 years' imprisonment for manufacturing amphetamine and to 2 years' imprisonment for the possession of amphetamine. The sentencing Judge ordered that these sentences should be served concurrently, on the basis that the drug of which the applicant was in possession was that which he had manufactured. His Honour proceeded to impose a cumulative sentence of 18 months' imprisonment for the offence with which this Court is concerned, no doubt in reliance upon the information which had been supplied to him that other offenders who had been involved in the rioting, and who were said to have committed similar offences to the offence with which we are concerned, had received sentences in the vicinity of 2 years' imprisonment following their pleas of guilty. In fixing this sentence, he
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- had regard to the totality of the sentences which he was imposing. An order for eligibility for parole was made by his Honour.
3 The information provided to the learned sentencing Judge regarding the sentences imposed upon another offender, R A Cooper, is set out in the reasons of Wallwork J. Shortly, his Honour was told that Cooper had been sentenced on three charges of wilful damage, four charges of threatening to kill prison officers and four charges of assaulting prison officers. Cooper was clearly in a different position from that of the applicant. In addition, the learned sentencing Judge was informed that another prisoner, K Pickett, had also been sentenced to a term of 2 years' imprisonment; but his Honour was not in this instance provided with any details of the offence (or offences) which had attracted that sentence.
4 It is regrettable that such limited information was provided to the sentencing Judge and, indeed, to this Court, with respect to the offences committed by other prisoners. Additional information which was provided at the request of this Court was that P O Regan who had wilfully damaged a plateglass window had been sentenced to 4 months' imprisonment, G Quartermaine who had wilfully damaged a plateglass window had been sentenced to 3 months' imprisonment, A J Narrier who had damaged several windows had been sentenced to 3 months plus 1 day's imprisonment, and S J Crimp who had damaged a plateglass window had been sentenced to 3 months' imprisonment plus a day. No reason was provided for directing that the sentences of at least some of these prisoners were to be served concurrently with their existing sentences.
5 The applicant has sought leave to appeal on the ground of disparity between his sentence and the sentences of others, claiming that inadequate attention was given by the learned sentencing Judge to the fact that the applicant was said not to be a ringleader and to his claim regarding what was said to be his minimal involvement in the riot. In fact, no particular person was identified as having been a ringleader, and the applicant had clearly been an active participant in the riot. I am therefore unable to accept that the applicant could fairly be described as having had a minimal involvement in the riot.
6 It was contended for the applicant that the learned sentencing Judge failed to give adequate weight to the punishment which was imposed on the applicant by the prison authorities or to the injuries which he had received "as a consequence".
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7 As indicated by Wallwork J, following the riot, the applicant was held in separate confinement for a period of 60 days, and in addition he lost a number of privileges during that time. His separate confinement had been ordered under s 43 of the Prisons Act 1981 "for the purpose of maintaining good government, good order or security in the prison". Previously, it appears that, by order of the Superintendent, the applicant and some other prisoners who had been involved in the riot were separated pursuant to the provisions of s 36(3) of the Act for the purpose of good government, good order and security in the prison. There is no indication that the purpose of this confinement was punishment and not the purpose of good government, good order and security in the prison. It was no doubt imposed with a view to the restoration of discipline in the prison after a serious riot in which the applicant had been involved.
8 During the riot, the applicant sustained lacerations to his head and a cracked rib, and, according to his record of interview with police officers, a "cracked" leg, while the police were endeavouring to suppress the uprising. No further details of the applicant's conduct or of the conduct of the police during this time are before us. There is nothing to indicate that the police, who were facing a serious riot, had used unnecessary or unreasonable force against the applicant.
9 The paucity of information regarding the offences of other prisoners renders it quite impossible to attempt to compare the conduct of the various offenders, although it is quite obvious that Cooper had received his sentence of 2 years' imprisonment for a number of more serious offences than that committed by the applicant, including, in particular, his threats to kill police officers. On the information now before us, the sentencing Judge was in fact misinformed that the sentence of 2 years imposed upon Cooper was the "going rate" for the applicant's offence. It is on this basis that I would grant the applicant leave to appeal against his sentence. I would allow the appeal and I would reduce his sentence to one of 9 months' imprisonment, retaining the orders for cumulation and eligibility for parole.
10 WALLWORK J: The applicant applies for leave to appeal against a sentence of 18 months imprisonment which he received after he had pleaded guilty to a charge that on 25 December 1998 at Casuarina Prison, he wilfully and unlawfully damaged a plate glass window, a metal door, and a door lock and hinge the property of the Ministry of Justice at Unit 3, A and C wing. The charge was laid under s 444(1) of the Criminal Code. It carried a maximum penalty of 10 years imprisonment.
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11 The applicant contends that there was a vast disparity between his sentence and the sentences imposed on other offenders who, like the applicant, were not ringleaders in the riot. It is contended that the sentencing Judge failed to give adequate consideration to the fact that the applicant was not a ringleader in the riot and to the minimum involvement on his part.
12 In Lowe v The Queen (1984) 154 CLR 606, Mason J as he then was, said at 610, 611:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
13 In Postiglione v The Queen (1996-1997) 189 CLR 295 at 323, Gummow J said:
"… the principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done."
14 In Oliver v The Queen (1982) 7 A Crim R 174, a decision of a Court of Criminal Appeal in New South Wales, when discussing sentencing principles, Street CJ said at 177:
"The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in the matter of sentencing."
15 A starting point in this case are the copy complaint forms which were produced by counsel for the applicant from which it appears that other
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- prisoners were dealt with in the Court of Petty Sessions for offences committed on the same occasion as the applicant's offence. For example, Mr P O'Regan pleaded guilty to having on 25 December 1998 at Casuarina, wilfully damaged one plate glass window the property of the State of Western Australia contrary to s 444 of the Criminal Code. He appears to have received 4 months imprisonment for that offence.
16 Mr G Quartermaine was charged with wilfully and unlawfully damaging one plate glass window the property of the State of Western Australia. He appears to have received 3 months imprisonment for that offence, to be served concurrently with other sentences.
17 Mr A J Narrier was charged with having wilfully and unlawfully damaged several windows the property of the State of Western Australia. He is said to have received 3 months plus one day imprisonment for that offence to be served concurrently with his other terms.
18 Mr S J Crimp was charged with wilfully and unlawfully damaging one plate glass window. He apparently received 3 months plus one day imprisonment for that offence.
19 The applicant contends that although he was dealt with in the District Court rather than in the Court of Petty Sessions, he should not have received a penalty which was approximately six times greater than the offenders who were dealt with summarily.
20 This Court does not know what happened to the other approximate ten offenders who were said to have been dealt with in the Court of Petty Sessions. However it has been informed that of 29 offenders charged with offences, some 14 pleaded guilty in the Court of Petty Sessions.
21 At the sentencing of the applicant the learned Judge was advised that Mr R A Cooper had received a sentence of 2 years:
"… and that does seem to be the going rate, if I could describe it that way, because that was a sentence also imposed on Kingsley Pickett by her Honour Judge Kennedy although in his case there may be questions of totality involved, but on my understanding it was a cumulative term certainly."
22 The learned Judge was told that Mr Cooper had been dealt with by the Chief Judge in September in relation to the charges against him:
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- "… which I think were - involved I think three charges of wilful damage, four charges of threatening to kill prison officers and four charges of assaulting prison officers. I think he was jailed for a period of 2 years cumulative upon the sentence which he was then serving with eligibility for parole."
23 It can be seen that if that last information is correct, 2 years would not "seem to be the going rate" for the relevant offence by the applicant.
24 The learned Judge asked: "Has there been a variation in the standard penalties, if I can call them that, in the Court of Petty Sessions for the equivalent offences?" The answer given by counsel was: "I don't have information about the Court of Petty Sessions. Some offenders were dealt with there. I only know about Cooper and Pickett in this Court."
25 Importantly, when sentencing the applicant the learned Judge said:
"As to the offence of wilful and unlawful damage, I note that other offenders who were involved in the rioting who committed similar offences have received sentences in the vicinity of 2 years' imprisonment and, as I understand, those sentences were following their pleas of guilty.
It seems appropriate in your case to apply the principle of parity and I consider that 2 years would be the appropriate sentence, but I also have regard to the totality of your situation, given that I consider that sentence has to be cumulative, and I am going to reduce it to 18 months. So in respect of the separate indictment for wilful and unlawful damage you are sentenced to 18 months' imprisonment which will be cumulative."
26 It can be seen from those remarks that the Judge thought that a sentence of 2 years was "the going rate" for the relevant offence.
27 The learned Judge was informed at the hearing by counsel for the applicant that the applicant had already been punished "in a way" due to "the stitches to his head and the cracked rib and what have you, and being kept in isolation for a period of 3 months, basically locked up for 23 hours a day". Also it was said that the applicant had been in the infirmary section of the prison for approximately two weeks after his apprehension.
28 It appears from the appeal papers, in a statement of one of the prison officers (AB 39), that after he had committed the relevant offence, "the
(Page 9)
- accused remained in the A and C wing day room and was apprehended by T.S.F. Officers."
29 When the applicant was interviewed by police officers in March 1999, after having admitted the relevant offence he said:
"OK, I admit doing that and the next thing I know the door did fall down, yeah, and then seven MSU came in … and … put 12 stitches in my head, broke my rib and cracked my leg."
30 After the hearing of this application and on 7 August 2000 counsel for the respondent was advised by Prison Services:
"Please find attached a list of charges in regards to Mr Willmott. As you can see he has received no punishment internally regarding the Christmas Day riot in 1998".
31 Since that advice and as a result of a further enquiry by the applicant's counsel, the Superintendent of the Casuarina Prison has advised that the applicant was identified as a participant in the Christmas Day riot. Further, that two s 43 orders of thirty days each were requested and issued. Those orders resulted in the applicant being kept in separate confinement for a period of 60 days from 8 January 1999.
32 Section 43 of the Prisons Act 1981 provides that for the purpose of maintaining good government, good order or security in a prison, the Chief Executive Officer may order, in writing, the separate confinement in a prison of a prisoner for such period not exceeding 30 days as is specified in the order. It also provides that a prisoner "shall have the means of taking air and exercise for not less than one hour each day at such times and for such other periods as the Chief Executive Officer may direct."
33 The Superintendent advised that during the separate confinement of the applicant he was not able to make non-urgent social telephone calls and his normal weekly two hour contact visit privilege was restricted to one hour per week non-contact. Urgent legal calls were facilitated.
34 Having regard to the matters referred to in these reasons, it is my opinion that the application for leave to appeal should be allowed and the sentence of 18 months imprisonment should be reduced to one of 9 months imprisonment as proposed by Kennedy J. The order for eligibility would remain undisturbed.
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35 PARKER J: I have had the advantage of considering the reasons now published by Kennedy J with which I agree.
36 The information placed before the sentencing Judge and this Court has proved inadequate to allow a detailed assessment of the degree of threat which the applicant presented to the officers in the control room at the time of the offence and the role, if any, which his conduct the subject of the charge played in encouraging or inciting other prisoners to serious misconduct at the time. It may well be the case that the applicant's conduct could have warranted a more significant punishment than that to which I have been persuaded. In the absence of adequate information properly placed before this Court or the sentencing Judge, however, the question of the appropriate sentence for the wilful and unlawful damage which the applicant caused in the prison can only be assessed on the scant factual basis outlined to the sentencing Judge, which has been supplemented to a limited degree before this Court.
37 As Kennedy J has noted the information before the sentencing Judge and this Court is also inadequate to allow an adequate comparison to be made between the offences for which other prisoners were convicted and sentenced, and the conduct of the applicant the subject of the offence and sentence raised by this appeal. For this reason it is not possible to accept, on the information before this Court, that the submission by the prosecution to the sentencing Judge that the "going rate" for the applicant's offence was 2 years imprisonment was justified. As Kennedy J has indicated there were a number of sentences imposed for offences of wilful damage committed in the course of the riots at the prison for which quite short terms of imprisonment were imposed, some of them to be served concurrently with other sentences. What is known of the conduct the subject of these offences indicates they were not as serious as the conduct of the applicant, but there is not shown to be any sentence or group of sentences for conduct comparable to that of the applicant for which terms of or approaching 2 years imprisonment were imposed. In the circumstances it must be accepted that the sentencing Judge was misinformed and that he approached the determination of sentence in this case on the basis of that wrong information.
38 Having regard to what is revealed as to the circumstances of the offence and the applicant by the information before this Court, I would respectfully agree with Kennedy J that a sentence of some 9 months imprisonment would appear to be appropriate.
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39 I would, therefore, grant leave to appeal, allow the appeal, vary the sentence imposed from 18 months imprisonment to 9 months imprisonment, but not vary the other orders of the sentencing Judge, ie the sentence of 9 months is to be served cumulatively on the other terms imposed on 23 March 2000 (an effective total of 5 years 9 months imprisonment dating from 19 November 1998) with eligibility for parole.
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