Court of Appeal (WA)|1999-08-24|Before: Wallace J, Miller J

Bowes v McCutcheon & Anor [1999] WASCA 173 (24 August 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BOWES -v- McCUTCHEON & ANOR [1999] WASCA 173

Criminal law - Sentence - Appeal against refusal to order parole eligibility - Turns on own facts

1 MILLER J : On 17 December 1998 the appellant was convicted in the Kellerberrin Court of Petty Sessions on his plea of guilty to an offence under section 49(1) of the Road Traffic Act 1974, committed on 18 July 1998 at Doodlakine. At that time the appellant was legally disentitled to hold a driver's licence. The appellant was remanded on bail to appear on 7 January 1999 in the Midland Court of Petty Sessions for sentence.

2 On 7 January 1999 the appellant was further convicted in the Midland Court of Petty Sessions on pleas of guilty of two offences of assault contrary to s 313 of the Criminal Code and an offence contrary to s 317 of the Code. Each of those assaults had been committed on 28 December 1998 at Langford. He was remanded in custody for a pre-sentence report. On 25 February 1999 he appeared in the Midland Court of Petty Sessions and was sentenced by the learned Magistrate for the offences of driving under suspension and assault in the following manner: (1) in relation to the driving under suspension on 18 July 1998 he was sentenced to 15 months' imprisonment with a disqualification of licence for three years. (2) in relation to each of the three assaults on 28 December 1998 he was sentenced to six months concurrent for the first two and nine months concurrent for the third.

3 The maximum term which could have been imposed by way of imprisonment for driving under suspension was 18 months and it appears that the learned Magistrate took the view that this was a case for the maximum or very close to it. In relation to the assaults the maximum terms of imprisonment which could have been imposed were 18 months for the first and second, and two years for the third. The periods imposed were six months, six months and nine months, which were well within the range.

4 The learned Magistrate declined to make a parole eligibility order in relation to the terms of imprisonment imposed. For the appellant it is argued that the Magistrate erred in this respect. It is said that an order for parole was appropriate, taking into account:

(2) the circumstances of the commission of the offences;

(3) the appellant's antecedents (and particularly his substance abuse and psychological problems), and

(4) the circumstances which might affect the appellant at the time he would be eligible for parole, including the interests of the community in his rehabilitation under supervision.

5 It was put to me in argument that the nature and purpose and the criteria for the exercise of the discretion to order eligibility for parole were all summarised in Thompson v R (1992) 8 WAR 387 at 395 and it was held in Wongawol v R (1998) 101 ACrimR 350, that the principles set out in Thompson apply to the Sentencing Act 1995. It was contended that the following statement in Thompson (at 395) was apposite to the case:

"(c) the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole (see Howell & Utting v R (1989) 2 WAR 60 at 61-62, per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v R (supra), per Brinsden J (at 67-68); Yarran v R (unreported, SCt of WA; Library No 8762; 15 March 1991), per Malcolm CJ, at 4);"

6 The appellant argues that the matters before the learned Magistrate which pointed positively towards parole were, (1) the appellant's plea of guilty and the indication of remorse which accompanied those pleas of guilty (referred to also in the pre-sentence and psychological reports). (2) at the time of the commission of the three assaults the appellant was under the effect of medication and suffering from depression. (3) the appellant had indicated that he was aware of the need for counselling to address these issues and was prepared to do so, with support from his de facto partner. (4) the appellant had no prior convictions for violence. (5) the appellant had been subject to supervision by way of a court imposed community based order on only one occasion and although he had failed adequately to comply with that order, he had, when released on parole in September of 1997, following the calling in of a suspended sentence, complied with the parole order and further completed such outstanding community work as remained from the earlier community based order. (6) the appellant had remained free from offending for large periods of time (between August 1987 and October 1992 for a period of five years; and between May 1994 and January 1996 for a period of just over 18 months). (7) the authors of the pre-sentence and psychological reports had made a positive recommendation that the appellant would benefit from substance abuse and psychological counselling.

7 It was further contended that the learned Magistrate failed to give adequate weight to the circumstances which might be relevant to the appellant at the time he would be eligible for parole. In particular, it was argued that his intention to reside with his partner and their children upon release from custody, (supported by his partner), was a relevant and important factor. It was also argued that as a result of the number of issues which needed to be addressed the appellant would benefit from parole supervision when re-integrating with the community and his family.

8 The respondent has helpfully set out the general principles which are applicable in reviewing a case such as this. I draw from the Outline of Argument of the respondent the following submissions which are clearly correct:

"6. Where an appeal is brought against any decision made in the exercise of the sentencing discretion, including a decision in relation to parole eligibility, an appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the manner in which the sentencer exercised that discretion, but only where it is satisfied that the decision involved an error of a kind which warrants appellate interference with a discretionary decision: Lowndes v R [1999] HCA 29 at [38]- [40] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ; [1999] HCA 29; (1999) 73 ALJR 1007 at 1010 & 1015-1015 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ.

7. An appellate court is not entitled to conclude that there has been an error of this kind unless a material error of fact or law can be discerned in the reasoning of the sentencer, or the circumstances of the case were such as to require a different decision to be made, so that the decision actually made therefore manifests an implied error: Lowndes v R at [38] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ; [1999] HCA 29; (1999) 73 ALJR 1007; at 1014-1015 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ."

9 In determining whether it was appropriate to make a parole eligibility order, the learned Magistrate was clearly required to have regard to the factors which are set out in the provisions of s 89(2) of the Sentencing Act 1995 namely:

(b) the circumstances of the commission of the offence;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

10 The respondent argues that a parole eligibility order should not be made unless there is something in the materials before the Court pointing positively towards the appropriateness of parole: Thompson v R (supra) per Malcolm CJ, Pidgeon and Owen JJ at 395. Further, it is argued, where an offender's antecedents disclose a series of prior convictions for the same or similar offences, this tends to show that the offender is a poor parole risk and that a parole eligibility order would be inappropriate: Swain v R (1989) 41 ACrimR 214, per Malcolm CJ at 218. In particular, it was argued that where a person convicted of driving whilst under suspension has a series of prior convictions for the same offence, this may indicate a continuing attitude of disobedience to the law directly relevant to any assessment of the seriousness of the offence for the purposes of s 89(2)(a) of the Sentencing Act. Reference was made in particular to R v Maxwell (1998) 102 A Crim R 374 per Bleby J at 378-379.

11 Section 89(2)(d) of the Sentencing Act requires the sentencing court to prognosticate circumstances which may be relevant to the offender when eligible for release if a parole eligibility order were made so as to allow some preliminary consideration of whether, in terms of rehabilitation of the offender, he is likely to benefit from serving the relevant portion of the sentence under supervision in the community. Reference was made to Thompson v R (supra), per Malcolm CJ, Pidgeon and Owen JJ at 396. As was pointed out by counsel for the respondent, a sentencing court may approach this task of prognostication with a higher degree of certainty where the period between the date of sentence (in this case 25 February 1999) and the date on which the offender would be eligible for release on parole if a parole eligibility order were made (26 July 1999) is relatively short.

12 The learned Magistrate was not bound to give effect to any recommendation in relation to parole eligibility contained in the pre-sentence report. The purpose of that report was to assist him by setting out matters which were, by reason of the provisions of the Sentencing Act or sentencing practice, relevant to sentencing of the offender. The learned Magistrate was entitled, as he appears to have done, to have given the contents of the pre-sentence report (including the options expressed therein) the weight which he considered appropriate.

13 In this case the learned Magistrate was considering whether to make eligible for parole an offender who had been convicted of his seventh offence of driving under suspension whilst an adult. These offences had occurred within a period of 10 years, and a number had been committed within the preceding 5 years. It was argued that the learned Magistrate was entitled to conclude that in the circumstances the appellant had, by his record, demonstrated a persistent and wilful disregard of the law and previous disqualifications in circumstances where the consequences of such further offending must have been clear to him. This, in my view, was highly relevant to the primary sentence imposed, perhaps more so than to the parole aspect. The respondent thus argues that no material error of law or fact can be discerned in the learned Magistrate's reasons for decision.

14 I have considered and weighed up the opposing arguments which were clearly put by each counsel. The learned Magistrate's decision on parole was very brief. What His Worship said was simply this:

"I have considered, given the circumstances, whether or not I should make you eligible for parole. I accept, of course, that it was advocated in the report that I consider that. However, given the circumstances and the multiple offences you have committed, I will not make you eligible for parole."

15 Whilst one must appreciate that in Petty Sessions on a busy day the learned Magistrate would have been somewhat constrained in the sentencing comments that he was able to make, the learned Magistrate did not refer to the five criteria set out in the provisions of s 89(2) of the Sentencing Act. He did not advert to the criteria separately and distinctly, nor in any detail. Nor did he point out the general philosophy of the Act, which, as authority clearly establishes, suggests a bias towards eligibility for parole.

16 In my view there were factors that suggested that a parole order was appropriate in this case. I consider there was a failure to properly appreciate each and every of the criteria set out in s 89(2) of the Sentencing Act. It seems to me that there were three key factors the learned Magistrate should have taken into account:

(1) the record of convictions contained no prior conviction for violence.

(2) the offender had successfully completed parole when last paroled when a suspended sentence had been called in.

Although the learned Magistrate was entitled to weigh up the pre-sentence report recommendation, it was, when combined with the other two factors, in my view a turning point. Apart from reference to the pre-sentence report recommendation, the learned Magistrate does not appear to have adverted to the other matters I have listed, and in my view there is demonstrated error in failing to do so and in failing to take into account the criteria to which I have referred. Although I should be slow to interfere with a decision not to order eligibility for parole, in my view insufficient weight was given in this case to factors which suggested that this was a case in which eligibility for parole would be in the best interests of the offender and the community at large. The pre-sentence and psychological reports are eloquent testimony to that. For these reasons I propose to allow the appeal and to vary the decision of the learned Magistrate in the Court of Petty Sessions at Midland on 25 February 1999 by ordering that there should be eligibility for parole in relation to the sentence of imprisonment which were then imposed. There should, in my view, be a condition of parole that the appellant should undergo such counselling and psychological treatment as directed by his parole officer.

Bowes v McCutcheon & Anor [1999] WASCA 173

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Bowes v McCutcheon & Anor [1999] WASCA 173 (24 August 1999)

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