Woods v The Queen
[1999] WASCA 299
•1 DECEMBER 1999
WOODS -v- R [1999] WASCA 299
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 299 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:181/1999 | 1 DECEMBER 1999 | |
| Coram: | MALCOLM CJ PIDGEON J WHITE J | 1/12/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| PDF Version |
| Parties: | MIRELLA WOODS THE QUEEN |
Catchwords: | Criminal law Sentencing Appeal against sentence of 3 years' imprisonment Breach of Intensive Supervision Order imposed for robbery in company Sentencing Judge erred in taking more serious view of offence than original Judge who imposed Intensive Supervision Order Sentence reduced to 18 months |
Legislation: | Criminal Code |
Case References: | Thompson v R (1992) 8 WAR 387 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WOODS -v- R [1999] WASCA 299 CORAM : MALCOLM CJ
- PIDGEON J
WHITE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Appeal against sentence of 3 years' imprisonment - Breach of Intensive Supervision Order imposed for robbery in company - Sentencing Judge erred in taking more serious view of offence than original Judge who imposed Intensive Supervision Order - Sentence reduced to 18 months
Legislation:
Criminal Code
Result:
Application granted
(Page 2)
Representation:
Counsel:
Applicant : Mr N J Lemmon
Respondent : Mr S E Stone
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Thompson v R (1992) 8 WAR 387
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: On 5 August 1998 in the District Court at Albany the applicant was convicted on her plea of guilty to one offence of stealing with actual violence in company. The maximum penalty for that offence under s 391, read with s 393 of the Criminal Code, is imprisonment for 20 years.
2 The circumstances were that on 13 August 1997 the applicant and a juvenile, a Ms E, after having consumed a considerable quantity of alcohol and sniffing drugs, were making their way towards the North Road in Albany with a bicycle. One of them was seen to fall off the bicycle and then to pick the bicycle up and push it toward the North Road.
3 When they got to the North Road one of the pair was seen by a man who was walking along trying to hail cars. He became concerned for the safety of the applicant and Ms E because they were wandering on the roadway in the dark. He was worried they may be hit, so in a very civic minded way, as the Judge put it, he used his mobile phone to call a taxi which duly arrived.
4 The taxi driver got out to put the bicycle in the boot, and the applicant and Ms E got in the taxi. The taxi driver saw from where he was by the boot that his moneybox was being interfered with by the applicant who was sitting in the front seat. When he checked that box he found that some tapes that were in the box were missing. It also appears that there was a sum of money that had gone missing, namely the sum of $290.
5 As the taxi driver discovered this, he told both the applicant and Ms E to get out of the taxi. The tapes were apparently handed over, but as this was happening Ms E grabbed the taxi driver by the arm and pulled his arm toward the back seat and restrained him. The other man who was in the vicinity tried to restrain the applicant who was running off, and the person in the car was restrained by the both of them until the taxi driver radioed for help. Shortly after that the police arrived.
6 It appears that the two were arrested and that they were so affected by alcohol and drugs that they were unable to give an interview. The applicant was in a position to give an interview a couple of hours after being taken into custody. The video record of interview showed the applicant cooperating with the police and being frank in her admission of what she had done on the night. It was said at that time by the learned sentencing Judge, his Honour Judge Healy:
(Page 4)
- "In mitigation your counsel has said when you look at offences of aggravated robbery this offence is toward the lower end of the scale, and the Crown agrees with that because there was no weapon used. There was no plan. It was a very opportunistic offence. The personal violence used was simply to handle the taxi driver by his arm. He didn't suffer any injury, but nonetheless this is a very serious offence because taxi drivers are providing a public service and they are entitled to go about their job without fear of their money being stolen or their person being interfered with or them being attacked. The effect of these types of offences is that taxi drivers are reluctant to work in the dark and at night-time and that means if there are no taxis on the road or less taxis on the road that those who wish to avail themselves of the service of taxis are affected because there won't be taxis to go and pick them up, so it does have a significant effect, not only on the taxi driver but also on the rest of the community."
7 I would agree with his Honour's assessment in that respect. At the time she was before the learned Judge on 5 August 1998, the applicant was 22 years of age and living in Tambellup. She had three young children, one of whom was a one month old baby at that time. She was in a stable de facto relationship and also had good family support.
8 While she had had many appearances as a juvenile and since becoming an adult for offences involving disorderly conduct, assaulting police officers, assaulting other people, damage and street drinking for which she received various penalties, she had not offended to the extent that any of the offences was regarded as warranting the imposition of a term of imprisonment.
9 She had been on an Intensive Supervision Order for most of the preceding 12 months from August 1996 which was to run out at the end of August. According to a Pre-Sentence Report which his Honour had, which I assume was oral, that intensive supervision order had been satisfactorily complied with.
10 The co-offender was a juvenile who requested to be dealt with in the District Court for the offence. She had just turned 16. In passing sentence the learned Judge said:
"In relation to this matter the court has to look at all the options available and imprisonment is a sentence of last resort. I don't
(Page 5)
- believe that imprisonment is appropriate in this case because of the circumstances which I have outlined and because imprisonment is not appropriate then the court is not entitled to suspend the sentence, therefore the court must look at another alternative way by way of community supervision."
11 His Honour then proceeded to impose an Intensive Supervision Order on the applicant subject to various conditions and program requirements, treatment and counselling. His Honour also said that the order would be for a period of 18 months. The applicant was warned that she should keep out of trouble for that period of 18 months because:
"If you commit an offence during that period of 18 months that will be a breach of the Intensive Supervision Order and that will mean that you will be brought back to this Court to be sentenced for this offence, and really if you have breached an Intensive Supervision Order it is unlikely that you may get another one. It may be that the only alternative would be to send you to prison."
12 On 18 March 1999 the applicant pleaded guilty in the Albany Court of Petty Sessions to a complaint alleging that on 12 March 1999 she unlawfully assaulted one John Boccamazza. That offence occurred at the Venice Pizza Bar in Albany when the applicant threw a rock at her cousin who was in the pizza bar. The rock missed her cousin and hit Mr Boccamazza who was an innocent bystander. On 26 July 1999 the applicant pleaded guilty to an offence that, being an offender subject to a community order made pursuant to s 129(1) of the Sentencing Act 1995 by the Albany District Court on 5 August 1998 in respect of the offence of stealing with violence in company, breached the community order.
13 On 2 August 1999 the applicant was sentenced by his Honour Judge Viol. Having recited the facts the learned Judge said:
"The Pre-Sentence Report is not particularly favourable towards you but I accept that you have made some attempts to deal with your psychological and mental difficulties. Faced with this history, in my view, you have run out of chances and a gaol term for the original offence is unavoidable. The public must be protected from your law-breaking and you must be shown that this cannot take place. The first offence; that is the stealing with violence, was a serious offence and you have a relevant
(Page 6)
- record. You will be sentenced to 3 years' imprisonment and you will be eligible for parole."
14 There is in respect of that sentence an application for leave to appeal on the ground that the sentence was manifestly excessive in all the circumstances, particularly having regard to:
"(a) the place which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature;
(b) my personal circumstances; and
(c) my age."
15 There is an application for extension of time which has not been opposed and in the circumstances I would grant the extension of time.
16 In my view it is apparent from the remarks made by the learned sentencing Judge in this case that his Honour took a more serious view of the offence than the original sentencing Judge, his Honour Judge Healy, who with the agreement of the Crown placed this offence at the lower end of the scale of offences of this type and one which, notwithstanding the prior record of this applicant, did not warrant the imposition of a sentence of imprisonment.
17 In all of the circumstances, bearing in mind that this Court does not intervene unless it is demonstrated that the sentencer has fallen into error, it would seem to me that this is a case where error has been demonstrated.
18 As was said in Thompson v R (1992) 8 WAR 387 at 391 in a joint judgment of this Court:
"The Court will intervene where the sentencing Judge has overestimated or misunderstood a salient feature of the material by imposing a sentence that is in itself manifestly excessive."
19 In this case it would seem to me that it has been demonstrated that his Honour Judge Viol regarded the offence as considerably more serious in its nature than did his Honour Judge Healy, with whose characterisation of the offence I would respectfully agree.
20 In those circumstances I would consider that an appropriate sentence in this particular case, in the light of all the circumstances which I have mentioned, would have been a sentence of imprisonment for 18 months.
(Page 7)
21 Accordingly I would allow the extension of time, grant leave to appeal, set aside the sentence imposed and substitute a sentence of imprisonment for 18 months with an order for eligibility for parole in respect of that sentence.
22 PIDGEON J: I agree with the orders of the Chief Justice for these reasons. Each of the Judges, Judge Healy and Judge Viol recognised that the offence of robbery with violence of taxi drivers at night is an offence of seriousness. Judge Healy in the first sentencing, after looking at the personal circumstances relating to the offender and the circumstances generally, reached the view that he did not believe imprisonment was appropriate in this case because of the circumstances he outlined. He imposed an Intensive Supervision Order. That was breached and the offender came up for sentence the second time. I consider that the view initially expressed by Judge Healy should carry through when the decision is made as to the actual penalty on the second occasion and, having regard to that, I consider for the reasons outlined by the Chief Justice that the sentence should not be one beyond 18 months' imprisonment.
23 WHITE J: I agree with the disposition of this appeal proposed by the learned Chief Justice for the reasons indicated by his Honour. I agree also with the additional remarks of Pidgeon J.
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