Criminal Code Act Compilation Act 1913 (WA), s 689(3)

Sentencing Act 1995 (WA), s 94

Appellant : Unrepresented Criminal Appellants' Scheme

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

R v Bakhos (1989) 39 A Crim R 174

R v Gordon (1994) 71 A Crim R 459

R v Harrison (1990) 48 A Crim R 197

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

1 TEMPLEMAN J: This is an application for leave to appeal against the sentence imposed on Malcolm Anglesey by his Honour Chief Judge Hammond in the District Court on 14 August 2001. The applicant came before his Honour on a charge of aggravated stalking to which he pleaded guilty. He had previously been sentenced by Judge O'Sullivan in the District Court to a sentence of 6 years' imprisonment with parole eligibility. That sentence was imposed on 20 July 2000. The 6-year term was made up of a 4-year sentence of imprisonment for aggravated burglary and 2 years in relation to a number of other charges to which the applicant had pleaded guilty and were the subject of a s 32 notice.

2 The 4-year sentence for aggravated burglary was for an offence committed by the applicant on the premises of his former wife or partner. The aggravated stalking offence was also committed on that same woman.

3 The point of the application is this: The sentence imposed by Chief Judge Hammond was, as I have said, a sentence of 2 years' imprisonment with eligibility for parole. Had that been the only sentence imposed, or to which the applicant was subject, then he would serve one-third before being eligible for parole, that is, 8 months. Because the sentence of 2 years was made cumulative upon the 6-year term, thereby making a total of 8 years, the effect is that the applicant will be released at the earliest after 3 years and 4 months. This means that he will have to serve 16 months of the 2-year sentence. That is the effect of s 94 of the Sentencing Act. The net result is that the amount of time which the applicant will serve in prison is the same, whether or not he was granted parole by Chief Judge Hammond.

4 The applicant's grounds of his application are as follows:

"The Judge imposed a 2-year sentence with parole, intending me to serve 8 months. He didn't realise I had been given a 6-year sentence previously. Therefore, I have to serve 16 months of the 2-year sentence."

5 As I have said, that conclusion (that he has to serve 16 months of the 2-year sentence) is undoubtedly correct, doing the arithmetic. It is not true to say, though, that the learned sentencing Judge did not realise that the applicant had been given a 6-year sentence. The learned Judge had been told that: And he made specific reference to it in his reasons for judgment.

6 It is also, I think, inaccurate to say that the learned sentencing Judge only intended the applicant to serve 8 months of the 2-year sentence. That is not what his Honour said. His Honour observed that parole should be granted, as his Honour put it:

"Simply because it is better that you be subject to some form of supervision on your release from prison. It is for that reason I declare you eligible for parole."

7 His Honour did not say, I emphasise, that he intended the applicant to serve only 8 months of that sentence. Indeed the very experienced Judge that he is, having been aware of the 6-year term imposed previously, I am sure, is equally aware of the effect of s 94 of the Sentencing Act.

8 Ms Farley, who appears for the applicant, submits that the learned Judge made an error in his sentence because he did not give sufficient consideration to the question of parole. Putting it another way, that his Honour did not do the arithmetic but that is only one aspect of the matter we have to consider: That is because s 689(3) of the Criminal Code provides:

"(3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."

9 So the question for this Court is not only whether the learned sentencing Judge made an error; but even if he did, whether a different sentence should have been passed.

10 In my view it has not been demonstrated that the learned sentencing Judge did make an error, for the reasons I have indicated. But if I am wrong in that view, I would not in any event differ in the sentence which I would impose from the sentence actually imposed by his Honour Chief Judge Hammond.

11 I say that because having regard to the circumstances of the offence, in my view it appears to be an offence which was extremely serious. It involved the applicant squirting blood from a syringe into the face of the complainant in her bedroom at night in a house which she was occupying

with her children. The circumstances are extremely serious and certainly, in my view, warranted the sentence of 2 years' imprisonment which his Honour imposed.

12 I accept that the aggravated burglary in respect of which the applicant had been sentenced earlier was a particular of the offence of aggravated stalking but his Honour was at pains to say that the applicant was not being punished again for that offence.

13 In all the circumstances, as I have said, it seems to me that the sentence of 2 years' imprisonment was right. It was certainly within the range of a sound discretion, notwithstanding the effect that it had when aggregated to the term of 6 years' imprisonment. In all those circumstances I would refuse the applicant leave to appeal.

14 MURRAY J: I agree, and I agree that that should be the order of the Court. It seems to me that the offence of aggravated stalking, for which the applicant came before the Chief Judge of the District Court for sentence on 14 August 2001, was a substantial and serious example of the commission of that offence between the dates of 1 May 2000 and 27 November 2000 alleged in the indictment.

15 The offence thus charged carried a maximum term of 8 years imprisonment. In the circumstances of this case it seems to me that the 2 year term imposed by the learned sentencing Judge was well within the range, indeed, in my view, rather lenient, deliberately I think it appears from his Honour's remarks kept so because of his Honour's consciousness of the factual overlap between the series of offences for which the applicant was sentenced by O'Sullivan DCJ on 20 July 2000 and that offence for which he was before the Court on 14 August 2001.

16 His Honour the Chief Judge made express reference to the need to take care not to twice punish the applicant in respect of any of the incidents for which he had been dealt with by the Court on the earlier occasion. Nonetheless, it seems to me that there can be and indeed there is no complaint about the length of the term of 2 years; nor I think can there be any complaint about the decision of the learned Chief Judge to order that term to be served cumulatively on terms then being served.

17 There was some factual overlap. Provided care was taken to avoid double punishment in the way that I have mentioned, it seems to me that the proper view of the stalking offence was that it merited not only substantial punishment but separate punishment and it represented the

infringement, as the authorities often express it, of a quite different legal interest from the offences with which the Court had previously dealt.

18 In those circumstances it seems abundantly clear to me that there is an incapacity in this case for the applicant to demonstrate that the sentencing discretion has in any way miscarried and this Court is precluded from interfering. I would agree that the order of the Court ought to be that leave to appeal should be refused in this case.

19 STEYTLER J: I also agree that leave to appeal should be refused for the reasons expressed by Murray J. It seems to me to be plain that even allowing for the fact that the sentencing Judge could not twice sentence the applicant in respect of events comprehended within the charge of aggravated burglary, this was a serious offence of stalking and justified a sentence of 2 years' imprisonment even in circumstances in which the declaration of eligibility for parole served little purpose.

20 In those circumstances, and having regard for the various matters referred to by Murray J, it seems to me that even if the sentencing Judge had been in error in assuming that at least some portion of the sentence would be served on parole, the fact remains that a sentence of 2 years for this offence was an appropriate one and I would not be prepared to disturb it. It is for those reasons essentially that I would refuse the application for leave to appeal.