Court of Appeal (WA)|2006-07-06|Before: Martin CJ

FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 138 (6 July 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 138

Criminal law and procedure - Sentencing - Escape from custody - Principle of totality - Principle of parity - Eligibility for parole - Obligation of Judge to state the fact that reduction made for mitigating factors - Sentencing Act 1995(WA), s 8 - Fasttrack plea - Operation of Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Sentencing Legislation Amendment and Repeal Act (2003) (WA)

Bates v Wheatley [2000] WASCA 38

H v The State of Western Australia [2006] WASCA 53

Jarvis v The Queen (1993) 20 WAR 201

Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213

Maroney v The State of Western Australia [2006] WASCA 130

McLean v The Queen [1999] WASCA 209

R v Masterson, unreported; CCA SCt of Vic; 31 August 1982

Readhead v The State of Western Australia [2005] WASCA 191

Verschuren v The Queen (1995) 17 WAR 467

Bromfield v The Queen [2002] WASCA 333

Chivers v The State of Western Australia [2005] WASCA 97

Dailey v The Queen [2000] WASCA 158

Game v The Queen [2001] WASCA 56

Little v The Queen [2001] WASCA 87

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

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Sinagra-Brisca v The Queen [2004] WASCA 68

Stapleton v The Queen [2004] WASCA 130

Thompson v The Queen (1992) 8 WAR 387

1 MARTIN CJ: This is an appeal against sentences imposed upon the appellant in the District Court on one count of escaping from lawful custody and another count of stealing a motor vehicle and reckless driving. In order to comprehend the grounds of appeal and their proper disposition, it is necessary to put the circumstances of these offences and the sentences imposed in the context of the appellant's tragic history.

2 The appellant was born on 14 August 1976 and is therefore almost 30 years of age. Despite his relatively young age, he has compiled an appallingly extensive criminal record. His first conviction is recorded on 6 January 1987, when he was just 10 years of age. Before he attained his majority, he had recorded 99 convictions, including stealing, burglary, robbery whilst armed in company, numerous offences of stealing motor vehicles and a miscellany of driving offences including reckless driving. His criminal career continued into adulthood. On 31 May 1995, he was sentenced to a total of 9 years' imprisonment, with eligibility for parole, for a number of offences which included armed robbery with violence in company, unlawful wounding, two offences of stealing a motor vehicle, two offences of burglary, an offence of possessing a house-breaking implement and another offence of possessing an offensive weapon. On 4 August 1998, he escaped from custody and was arrested 10 days later. On 27 November 1998, he was sentenced to a further term of 12 months' imprisonment, cumulative upon his existing sentences, without eligibility for parole, for escaping from lawful custody and for a series of offences committed whilst at large, including aggravated burglary and two counts of stealing a motor vehicle.

3 On 17 March 2000, the appellant was released on parole. His various sentences were then due to expire on 18 February 2005.

4 The appellant reoffended whilst on parole and in the first half of 2001 committed a number of driving offences, including one offence of careless driving and three offences of reckless driving, two offences of failing to stop and one offence of driving without a licence. However, on 23 November 2001, he was convicted of a number of more serious offences, including burglary and stealing. He was sentenced to a total of 28 months' imprisonment for those offences, which also resulted in the cancellation of his parole order. The effect of the cancellation of his parole order was to require him to serve the balance of his earlier terms, a total of 1339 days.

5 On 1 September 2002, the appellant was again released on parole. The various sentences he was serving would otherwise have required him to remain in custody until 20 July 2005. On 9 September 2003, the appellant's parole order was suspended and he was remanded in custody. On 12 November 2003, the suspension of his parole order was lifted and he was again released on parole. On 20 October 2003, the appellant was convicted of burglary and stealing a motor vehicle, as a result of which he was sentenced to serve two orders of 18 months' intensive supervision concurrently. However, on 16 December 2003, his parole was again suspended by reason of his continued drug use and the fact that further charges had been laid against him.

6 It was in these circumstances that the appellant committed the offences which have given rise to this appeal. However, before recounting the circumstances of those offences, I will briefly refer to the appellant's personal circumstances during the litany of criminality, which I have set out above, as they appear from the pre-sentence report which was before the Judge from whom this appeal is brought.

7 The appellant was born in Carnarvon and raised primarily by his mother, his parents having separated when he was approximately 18 months old. He was the eldest of five children. Without going into detail, it is perhaps sufficient to say that his childhood was disadvantaged. When the appellant was nine years old, his mother gave birth to twin daughters, one of whom died at the age of 10 weeks from suspected cot death. This tragedy appears to have had a significant effect upon the appellant, and coincides approximately with the commencement of his criminal career.

8 The appellant described his school years as miserable and he changed schools frequently. He left school after completing year 8. Thereafter, most of the schooling that he received was in detention centres. The appellant observed to the author of the pre-sentence report that he had never been out of prison long enough to get a job, but had undertaken a variety of courses while in prison.

9 The appellant commenced the use of cannabis, alcohol and solvents at the age of nine. By the time he was 13 years old, he had started using amphetamines intravenously. By the age of 16, he had developed a dependency on heroin and during 1995, when he committed the offences which led to the imposition of a substantial term of imprisonment, he was using a combination of amphetamines, ecstasy and heroin. He admitted to the continued use of heroin during each of the periods he was admitted to parole.

10 The appellant has attempted suicide seven or eight times, including attempts to hang himself at the ages of 16 and 22.

11 The appellant has two children; one being a son who was born when the appellant was approximately 16 years old and with whom he has had obviously limited contact due to his repeated incarceration.

12 More recently, the appellant had been in a de facto relationship for approximately five years, which resulted in the birth of his daughter, who is now 4 years old. The appellant had expressed concerns for the welfare of his daughter arising from his ex partner's association with somebody who he regarded as undesirable.

13 On 10 June 2004, the appellant was brought to the Supreme Court for a status conference in relation to the charges then pending against him. This occurred despite the appellant having requested, at his previous appearance, that in future he appear by video link and an order to that effect having been made. The appellant was one of 11 prisoners in the holding cells at the Court that day. Two other prisoners overpowered a security officer, took the keys to the cells from him and used them to unlock the various doors to the holding cells. Nine prisoners including the appellant escaped. The appellant and a number of other escapees forcibly took control of a Commodore vehicle which was passing the site. The appellant got into the rear of that vehicle. Another group of escapees took control of a large four-wheel drive vehicle. A little while later, the appellant changed vehicles and took over as driver of the four-wheel drive vehicle, which held a number of escapees.

14 Later that same day, the four-wheel drive vehicle was observed by an unmarked police vehicle in the carpark of the Lakes Shopping Centre at South Lakes. The police activated the blue flashing emergency light on the roof of their vehicle. The appellant drove away at speed through a red traffic light. The appellant drove the four-wheel drive vehicle recklessly and at great speed through the suburbs during the course of the chase which followed. At times, he drove on the incorrect side of the road at speeds of 100 kilometres per hour or more. He drove through a road block which the police had set up, causing police officers to take evasive action. He drove the vehicle onto a freeway and was again, at times, driving on the wrong side of the lanes on the freeway at great speed. Police set up a road block on the freeway, stopping all traffic. A set of "stingers" was deployed to bring the four-wheel drive vehicle to a halt. That caused a puncture to the front right tyre of the four-wheel drive vehicle, after which the appellant drove the vehicle off the freeway and into the bush verge, where it became bogged. The appellant and the other escapees in the vehicle ran from the vehicle and were apprehended nearby.

15 Following his apprehension, the appellant stated that prior to the day in question, he had given no thought to escape. However, when the opportunity presented itself, during the course of the morning of 10 June 2004 and because of his concern in relation to the welfare of his daughter, he seized the opportunity to escape in order that he could make contact with her and hopefully ascertain that she was safe.

16 As a result of that escapade, the appellant was charged with escaping from lawful custody, stealing the Holden Commodore vehicle and stealing and recklessly driving the four-wheel drive vehicle. He promptly pleaded guilty to those charges and was brought before the District Court for sentence. After a hearing on 8 October 2004, sentence was imposed on 4 November 2004. The sentencing Judge referred to the appellant's antecedents and to the circumstances of the offences. He then observed that the appellant would be given credit for his early plea of guilty, without specifying what that credit would be. His Honour then dealt with the breaches of the intensive supervision orders which had been imposed on 20 October 2003 and imposed a term of 12 months' imprisonment in lieu of each of those orders, concurrent with each other. A period of 12 months was imposed, as his Honour observed, having regard to the provisions of the Sentencing Legislation Amendment and Repeal Act (2003) (WA), which requires that prison terms be two-thirds of the fixed term that would otherwise have been imposed under the previous sentencing regime. It may be taken therefore that his Honour would have imposed sentences of 18 months' imprisonment in respect of those offences under the previous regime. If his Honour meant to infer that the sentence to be imposed in lieu of an intensive supervision order in the event of breach of that order should be the same as the term of the supervision order, that would have been an error, but as no appeal was brought from those sentences, it is unnecessary to speculate as to whether that was in fact the approach taken by his Honour.

17 In respect of the offence of escaping from lawful custody, his Honour imposed a term of 2 years' imprisonment, cumulative upon the two concurrent terms of 12 months' imprisonment imposed as a consequence of breach of the intensive supervision orders. His Honour then imposed a term of 6 months' imprisonment in respect of the charge of stealing the Holden Commodore, to be served concurrently with the term imposed in respect of escaping lawful custody.

18 On the count of stealing the four-wheel drive vehicle and driving it recklessly, the appellant was sentenced to a term of 4 years' imprisonment, to be served concurrently with the terms imposed in respect of escaping lawful custody and stealing the Holden Commodore, but cumulatively upon the terms imposed as a result of breach of the intensive supervision orders. As his Honour observed at the time, the net effect of the sentences imposed was to impose a total term of 5 years' imprisonment, which would commence upon the expiry of the term the appellant was then serving. However, at no point in the sentencing remarks or during the previous hearing which had preceded the imposition of sentence, was any reference made to the length of that term.

19 We have been informed that his Honour had before him a letter from the Sentence Information Unit dated 14 September 2004, which recounted only some of the history that I have set out in relation to the appellant's parole suspension and revocation and in terms which suggested that his earliest date of release might have been 16 October 2004. However, it is clear from a letter from the same Unit dated 26 November 2004, which was approximately three weeks after sentence had been imposed on the appellant, that at the time of sentence the appellant was required to serve a further period of 637 days as a consequence of the revocation of the parole he had been given in relation to the earlier terms of imprisonment to which I have referred.

20 The sentencing Judge also disqualified the appellant from holding a motor driver's licence for a period of 3 years cumulative upon any period of disqualification to which he was then subject. On the subject of parole, the sentencing Judge stated (AB 64):

"Finally, I have to consider the question of parole. Given the present provisions in respect of parole under the new sentencing laws, as I will describe them, and your antecedents and the seriousness of the present offences, in my view it is almost inevitable that I should refuse eligibility for parole on any of the sentences handed down today. I note, that, of course, on the escaping sentence parole is not available as a matter of law in any event."

21 Presumably unbeknown to his Honour, the appellant would have been eligible for parole in respect of the term of 637 days which remained to be served in respect of the sentences earlier imposed upon him. Accordingly, the net effect of the sentences imposed in the District Court on 8 November 2004 was to require the appellant to remain in prison until 2 August 2011 (a period of almost seven years) unless earlier released to parole, for which he was eligible on 3 November 2009. The precise calculation giving rise to the conclusion that the appellant was required to serve a term of 637 days as a consequence of the suspension and revocation of the parole orders, to which I have referred, is set out in a letter from the Sentence Information Unit dated 6 December 2004.

22 No challenge is made to the sentence of 6 months' imprisonment imposed in respect of the charge of stealing the Holden Commodore or to the sentences of 12 months' imprisonment imposed as a consequence of the breaches of the intensive supervision order. However, the sentences imposed in respect of the charges of escaping from lawful custody and stealing and recklessly driving the four-wheel drive vehicle are challenged, essentially on the grounds that:

(b) insufficient account was taken of the totality principle of sentencing, and in particular, the 637 days which the appellant would be required to serve in addition to the sentences imposed by his Honour;

(c) the sentencing Judge either did not determine the question of parole, as required, or if he did determine it adversely to the appellant, erred in principle in so doing.

23 The principles governing an appeal against sentence are well known. They are conveniently summarised in the following passage from the judgment of Roberts-Smith JA in Readhead v The State of Western Australia [2005] WASCA 191 at [19]:

"It is as well to begin by re-stating some fundamental principles. There is a strong presumption that the sentence appealed from is correct. An appeal court cannot interfere unless the appellant demonstrates error of law or fact. That may be because the sentencing Judge acted upon a wrong principle or gave weight to extraneous or irrelevant matters, or failed to give weight, or sufficient weight, to relevant matters or made a mistake as to some relevant fact (House v R [1936] HCA 40; (1936) 55 CLR 499; Cranssen v R [1936] HCA 42; (1936) 55 CLR 509; R v Tait (1979) 24 ALR 473). Absent any identifiable specific error, a sentence will be set aside if it is so excessive, inadequate or inappropriate as to necessarily indicate there has been an error, otherwise undiscoverable, in the sentencing process. An appellate court may not set aside a sentence merely because it would have exercised its discretion in a different way. Error must be shown in one of the ways I have mentioned (Lowndes v R [1999] HCA 29; (1999) 195 CLR 665, 671-672)."

24 I will deal firstly with the appeal against the sentence imposed in respect of the offence of escaping from lawful custody. As I have observed, the appellant was sentenced to a term of 2 years' imprisonment in respect of that offence. As his Honour correctly observed, no question of parole arose in relation to that offence (see s 89 of the Sentencing Act 1995 (WA)). The maximum sentence specified in the Criminal Code (WA) in relation to that offence is the period of 3 years' imprisonment. However, by virtue of the 2003 legislation to which I have already referred, in effect, the maximum sentence which could have been imposed in respect of that offence was the period of 2 years, which was the term in fact imposed by his Honour. It therefore seems to me to be quite clear, as counsel for the State properly conceded, that in imposing that sentence his Honour made two errors of principle:

(a) he sentenced the appellant to the maximum term available when it could not be said that the circumstances of the appellant's offence were within the category of the most serious offences of that kind;

(b) despite observing that the appellant would be given credit for his early plea of guilty, he cannot in fact have been given any such credit in relation to this sentence.

25 Dealing with the first aspect of error, it is clear from the circumstances of the offence which I have set out above that the offence was not premeditated, that the appellant took no part in the overpowering of the security officer who was not significantly injured during the incident and the appellant's escapade was relatively short-lived. Having regard to these factors, it could not be said that the circumstances of the offence of escaping from lawful custody put it within the category of the most serious offences of that kind.

26 Turning to the second aspect of error, s 8(2) of the Sentencing Act provides that:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication given that it will be made, the greater the mitigation."

27 The authorities on this section and its practical application to the process of fast-track pleas of guilty were reviewed by Steytler P in H v The State of Western Australia [2006] WASCA 53 at [9] - [12]. In that case, his Honour observed that a fast-track plea of guilty will usually result in a benefit in the form of a reduction of the sentence that would otherwise have been imposed within the range of 20 to 35 per cent, depending upon the circumstances of the offence and the plea. The amount of the discount should not be so great as to undermine public confidence in the justice system, but should be sufficient to reflect the undoubted public interest in the encouragement of early pleas of guilty, given that the cost and inconvenience of a trial is saved, there are direct savings of cost in relation to judicial and court facilities, the requirement of possible legal aid is removed, there is no need to empanel and inconvenience a jury and so on (see Cameron v The Queen (2002) 209 CLR 339).

28 Subject to any express statutory provision to the contrary, this Court is of course bound to follow the principles enunciated by the High Court with respect to the general approach to be taken to the sentencing process, including in particular the majority view with respect to the desirability of the "instinctive synthesis" approach as compared to the so-called "two tiered" approach - see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213. However, as the majority view in Markarian (supra) makes clear, there is no universal rule prohibiting a specific allowance for a mitigatory factor, and "there may be occasions when some indulgence in an arithmetical process will better serve" the interests of victims, the parties, appeal courts and the public: Markarian (supra) at [39]. With respect to the particular mitigatory effect of an early plea of guilty, it is my view that the public interest will generally be better served if the actual amount of the discount for an early plea of guilty is expressly stated by a sentencing Judge each time the discount is given unless for some reason it is inappropriate to do so. This is consistent with the view taken by the Full Court of the Supreme Court of South Australia after considering the decision of the High Court in Wong (supra) - see R v Place [2002] SASC 101; (2002) 189 ALR 431. This cannot be said to be a requirement of law, but a statement of desirable general practice - see Verschuren v The Queen (1995) 17 WAR 467; R v Thomson (2000) 49 NSWLR 383. That public interest will also be enhanced, if the sentencing Judge identifies the factors which have resulted in the precise location of the discount within the range to which I have referred, as will the process of appellate review of a sentence thus imposed.

29 Section 8(4) of the Sentencing Act requires a sentencing Judge reducing a sentence by reason of a mitigatory factor to state that fact in open court, although I reiterate that the failure of a sentencing Judge to specify the precise reduction in either absolute or percentage terms will not of itself constitute appealable error - see McLean v The Queen [1999] WASCA 209 at [23] - [24]; R v Worthington [2005] WASCA 72; (2005) 152 A Crim R 585 per Pullin JA at [40] - [41] and the authorities there cited; Bates v Wheatley [2000] WASCA 38 per Templeman J at [29] - [30]. In this case, the sentencing Judge referred only in the most general terms to the conferral of a benefit as a consequence of an early plea. It would, I think, have been preferable if he had specifically identified the precise quantum of that benefit not only by reason of the aspects of the public interest to which I have referred, but also because, in this case, had he done so, it would have been apparent to him that he had erred in respect of the sentence imposed on the charge of escaping from lawful custody because it is clear that in fact no discount for early plea was provided.

30 It therefore falls to this Court to resentence the appellant on that charge - see s 31(5) of the Criminal Appeals Act 2004 (WA). Given the circumstances of the offence to which I have referred, it seems to me that it was neither the worst nor the least serious of offences of this kind. Given that the maximum period of imprisonment specified in the Criminal Code for such an offence is 3 years, in my opinion, an appropriate starting point for the assessment of the sentence is a period of 2 years. From that starting point, the discount for early plea of guilty to which I have referred must be deducted. In this case, I would allow a discount of 25 per cent, which is admittedly towards the lower end of the usual range for such discounts. However, although the appellant's plea of guilty was made at the earliest opportunity, it has to be viewed in a context in which there was little prospect of any successful defence of the charge.

31 The application of the discount of 25 per cent to the starting point of 2 years produces an amount of 18 months' imprisonment, from which one-third must be deducted because of the 2003 legislation to which I have referred, resulting in a term of 12 months' imprisonment. I would therefore allow the appeal in respect of the sentence of 2 years' imprisonment imposed in respect of the offence of escaping from lawful custody, and instead substitute a sentence of 1 year imprisonment. For reasons which will become clear however, this will have no net effect upon the term which the appellant is required to serve, because that term is to be served concurrently with the period of imprisonment imposed in respect of the offence of stealing a four-wheel drive vehicle and driving it recklessly. I turn now to that offence.

32 The maximum term specified in the Criminal Code in respect of the offence of stealing a vehicle and driving it recklessly is a term of 8 years' imprisonment. The sentencing Judge did not specify the process by which he arrived at the term of 4 years' imprisonment which he imposed. However, assuming that it is appropriate to allow a discount of 25 per cent for an early plea of guilty, for the reasons I have set out above, the appropriate sentence for an offence within the category of the most serious kind would be a term of 6 years' imprisonment which, after reduction of one-third pursuant to the 2003 legislation to which I have referred, would result in a term of 4 years' imprisonment which is, in fact, the term imposed by his Honour.

33 It follows then that such a term would be justified if it could be concluded that the offence committed by the appellant was within the category of the most serious offences of its kind and that there were no mitigating circumstances other than the early plea of guilty. Although the sentencing Judge did not expressly enunciate his conclusion in these terms, it seems to me to have been a process of reasoning clearly open to him. For my part, I have no hesitation in expressing the view that the appellant's conduct in stealing and recklessly driving the four-wheel drive vehicle was amongst the most serious which could be imagined in respect of this kind of offence. For a substantial period during the middle of a day, the appellant drove a heavy and powerful vehicle recklessly through the suburbs of Perth, endangering the lives of innocent road users in a desperate and forlorn attempt to make good his escape. It is entirely fortuitous that no other road user was in fact injured or killed. This community has seen far too many tragic circumstances from desperate attempts to outrun the police to be at all tolerant of such dangerous conduct. Both the need to deter others who might be minded to commit similar offences and the specific need to deter the appellant from conduct of this kind, justify the imposition of a severe sentence. But for the apparent failure of the sentencing Judge to take into account the period of almost 2 years, which the appellant would also be required to serve by reason of the revocation of the parole orders previously made, I would therefore have no hesitation in concluding that the sentence imposed was within the range of sentences open to his Honour and did not reveal any error in principle.

34 However, it is clear that a Judge imposing sentence must take account of the effect which the imposition of sentence will have upon a current term of imprisonment which is being served by reason of the revocation of parole. I recently had occasion to review the principles of law in this area in the case of Maroney v The State of Western Australia [2006] WASCA 130. They are also found to be enunciated in Readhead v The State of Western Australia (supra); McLean v The Queen (supra) and R v Masterson, unreported; CCA SCt of Vic; 31 August 1982.

35 In Maroney (supra) I also had occasion to observe upon the desirability of the prosecution fulfilling its obligation to ensure that a sentencing Judge was fully apprised of the details of any term of imprisonment which the prisoner was then serving. This is another case in which the prosecution appears to have failed to have fulfilled that obligation, with the consequence that the sentencing Judge was deprived of the opportunity of taking full account of the effect of that current term upon the terms of imprisonment he was to impose. In this case, the effect of that term was to take the total period of imprisonment which the appellant was required to serve, after the imposition of sentences in the District Court, to a period of just under 7 years. This total term seems to me to be disproportionate to the total criminality involved in the various offences which gave rise to the term and which I have endeavoured to set out above. While the effect of the total term upon the appellant is merely one of the mitigating factors to be taken into account and not of paramount importance (see Jarvis v The Queen (1993) 20 WAR 201), in this case, the period of 7 years appears to me to be both disproportionate to the total criminality involved in the events to which I have referred and also to be quite likely to have a crushing effect upon the appellant, eliminating any slight prospect that these penalties might encourage him to undertake a process of self-improvement whilst in prison with a view to acquiring at least some capacity for gainful employment upon his release. That conclusion is, in my view, reinforced by the failure of the sentencing Judge to order that the appellant be eligible for parole, with the consequence that the appellant had no prospect of release prior to 3 November 2009 - a period of 5 years from the date of his sentence.

36 I therefore conclude that the sentence imposed by the sentencing Judge for the offence of stealing a motor vehicle and driving recklessly did reveal an error of principle of the kind which justifies intervention by this Court, being the failure to take into account the effect which the time which the appellant had to serve by reason of the revocation of his earlier parole orders had upon the totality of the sentences imposed.

37 It is therefore necessary for this Court to resentence the appellant in respect of that offence as well. However, before expressing my view as to the sentence appropriately imposed, I will deal with the appellant's submissions relating to the issue of parole.

38 Counsel for the appellant submitted that the passage in the remarks of the sentencing Judge which I have set out above reveal a failure by his Honour to determine the question of whether or not the appellant should be made eligible for parole, in that his Honour predicated a particular outcome being almost inevitable, without expressly enunciating that outcome. I cannot accept that submission, which seems to me to take an overly pedantic approach to remarks which appear to me to have had a quite obvious meaning and effect, in that his Honour was expressing the view that no order should be made rendering the appellant eligible for parole.

39 Turning then to the second aspect of the appellant's submissions on this topic, but for the failure of the sentencing Judge to take account of the additional period of 637 days which the appellant was required to serve, I do not think it could be said that his Honour's decision to refuse the appellant eligibility for parole revealed any error of principle, having regard to the appellant's conspicuous record of failing to comply with the terms of parole previously granted to him. However, because the failure to take account of the additional period of imprisonment which the appellant would be required to serve, was, in my view, an error of principle, as I have already observed, it falls to this Court to exercise the discretion in respect of parole for itself.

40 In that context it seems to me that an exercise of that discretion favourably to the appellant would ameliorate the totality of the term of imprisonment imposed upon him and provide him with at least a possibility of some hope for his future. Notwithstanding his appalling record, in the pre-sentence report to which I have referred, the author suggested that the appellant's participation in prison-based programmes would be assisted and enhanced by a period of parole. This Court has also received a lengthy written submission written by the appellant himself, in which he sets out his views as to the reasons for his appalling misconduct in the past and his hopes for the future. Whilst one is entitled to be entirely sceptical in relation to submissions of that kind, having regard to the appellant's appalling record, it is also clear from that record and from the sentences which have previously been imposed upon the appellant, that if he has not already been institutionalised, he is at imminent risk of becoming so dysfunctional in a non-institutional environment that he is likely to spend the rest of his life committing serious offences during occasional periods of release from lengthy terms of imprisonment. Such an outcome is not in the interests of the community or the appellant.

41 Accordingly, I would approach the task of resentencing the appellant on the charge of stealing a motor vehicle and driving it recklessly as follows. As the offence is among the most serious of its kind, the appropriate starting point is the maximum term of 8 years' imprisonment. That term should be discounted by 25 per cent for an early plea of guilty - the percentage being arrived at by reason of the factors I have identified earlier - namely, that although the plea was entered at the earliest available date, the prospects of successfully defending the charge were remote indeed. The period of 6 years arrived at after that discount must be further reduced by one-third pursuant to the 2003 sentencing legislation to which I have referred, giving a period of 4 years. Account should then be taken of the period of 637 days which the appellant had to serve at the time sentence was imposed upon him by reason of the revocation of his earlier parole and the totality of the term of imprisonment to which the appellant would be subject by reason of such a sentence, by favourably exercising the discretion to render the appellant eligible for parole in respect of that sentence, thus hopefully providing the appellant with some form of encouragement to show a commitment to self-improvement during his term of imprisonment and thereby providing the parole authorities with at least the possibility of determining that the appellant might benefit from a substantial period of supervised release.

42 For these reasons, I would allow the appeal in respect of the sentence of 4 years' imprisonment without eligibility for parole imposed upon the charge of stealing a motor vehicle and driving it recklessly, and instead substitute for that sentence a sentence of 4 years' imprisonment with eligibility for parole.

43 It was not submitted to us, nor would I in any event have disagreed with the conclusion of the sentencing Judge to the effect that the sentences imposed as a result of the escapade on 10 June 2004 should be cumulative upon the sentences imposed by reason of the breaches of the intensive supervision orders. Accordingly, the substituted sentences which I would impose by reason of the allowance of this appeal should also be cumulative upon those sentences. Thus, the net effect of the sentences I would impose in substitution for those imposed by the sentencing Judge

would still be a cumulative term of 5 years' imprisonment (being the term of 12 months imposed in respect of the breaches of the intensive supervision orders, plus the term of 4 years imposed cumulatively upon those sentences by reason of the offence of stealing a motor vehicle and driving recklessly). However, the effective difference in respect of the sentences I would impose is that the appellant would be eligible for parole in respect of the 4-year term to be imposed in respect of the offence of stealing a motor vehicle and driving recklessly.

44 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of the Hon the Chief Justice. I agree with those reasons and have nothing to add.

45 ROBERTS-SMITH JA: I agree with the Chief Justice.

Legislation Amendment and Repeal Act 2003

Bates v Wheatley

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (86 paragraphs)

FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 138 (6 July 2006)

Parties

Legislation Cited (2)

Cases Cited (17)