Clinch v R [1999] WASCA 57

Respondent : Acting Director of Public Prosecutions

Eades v The Queen, unreported; CCA SCt of WA; Library No 8205; 20 April 1990

Forbes v The Queen, unreported; CCA SCt of WA; Library No 7777; 7 August 1989

Grey v The Queen, unreported; CCA SCt of WA; Library No 930205; 2 April 1993

R v Hernberger (1989) 42 A Crim R 40

Swain v The Queen, unreported; CCA SCt of WA; Library No 7622; 24 April 1989

Thompson v The Queen (1992) 8 WAR 387

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J. Those reasons sufficiently set out my own reasons for joining in the dismissal of the application by the applicant for leave to appeal against the trial Judge's declining to make an order for eligibility for parole. There is nothing further which I wish to add.

2 IPP J: At the conclusion of argument, the Court unanimously dismissed this application for leave to appeal against sentence and indicated that it would give reasons for its decision later. I set out below the reasons why I joined in the decision of the Court.

3 The applicant was convicted on his own pleas of guilty to two charges of aggravated burglary, one charge of stealing and wilfully driving a motor vehicle in a reckless manner, and one count of unlawfully killing another person. He was sentenced to 12 months' imprisonment on each of the counts of aggravated burglary and 12 months' imprisonment in respect of the stealing and driving of the motor vehicle. He was sentenced to a term of 8 years' imprisonment on the count of unlawful killing. The learned sentencing Judge ordered that the three terms of 12 months' imprisonment be served concurrently with each other and with the sentence the subject of the count of unlawful killing. His Honour refused to make an order to declaring the applicant eligible for parole. The application for leave to appeal against sentence challenges only his Honour's refusal to make an order for eligibility for parole.

4 The applicant was 19 years old at the time of sentencing. He has a very serious record of offending. He has very many convictions involving stealing and driving a motor vehicle. He has several convictions for burglary and like offences, including assault with intent to commit grievous bodily harm. He has several convictions for breach of bail conditions. Notwithstanding that he has been disqualified from driving for life he has persisted in stealing and driving motor vehicles. He has been given probation on several occasions, but this has not had any beneficial effect on him.

5 On 4 May 1998 the applicant was released on parole after having been convicted of unlawfully being on the premises of another, attempted robbery, and two counts of stealing a motor vehicle. The first of the offences of aggravated burglary, the subject of this application, was committed on 31 May 1998, 27 days after his release. On 2 June 1998 the applicant was arrested in respect of the offence of burglary he committed on 31 May 1998. He was granted bail on that day. On 17 August 1998, while on bail and on parole, he committed the remaining three offences.

6 The burglary offence was committed in company with another person. The applicant and the other person kicked in the rear sliding security grill doors of a house and gained entry. The applicant searched the house for jewellery but was unsuccessful. He stole 28 beer cans and a video recorder.

7 The offences of 17 August 1998 were committed in the following circumstances. The applicant was on the same train as the complainant. The complainant alighted at Bassendean and the applicant followed her to her home. She entered her house and shortly thereafter saw the applicant hiding on the side of the balcony wall. She shouted at him to go away, ran back into her house and locked the balcony doors behind her. The applicant jumped up on to the balcony and looked at the complainant who ran into her bedroom and locked herself in. The applicant took a rock and smashed the glass panel in the door, reached inside, unlocked the door and entered the house. He took the complainant's purse containing $200 and her car keys from the kitchen table. He wandered through the rest of the house and then left. The aforegoing conduct was the subject of the first count. He went to the complainant's motor vehicle, a Ford Laser and, using her keys, stole the vehicle. This conduct was the subject of the conviction in respect of the second count.

8 While driving the Ford Laser the applicant was observed by the police to be driving in a dangerous manner. The police - who were in a fully marked police pursuit vehicle - followed him. They activated their emergency lights in an attempt to stop the applicant but to no avail. A chase ensued and the police activated their siren. The applicant attempted to elude the police vehicle by travelling on the incorrect side of the road at a high speed. He entered the dual carriage way in Wanneroo Road on the wrong side of the road. The police immediately aborted the pursuit. The applicant nevertheless continued travelling south on the north bound carriageway and drove in this manner for approximately 350 metres. The deceased person was travelling north on the north bound carriageway. As both vehicles reached a crest in the road they collided head on with each other and the driver of the other vehicle received serious chest injuries from which he died some two hours later. The applicant received minor leg injuries for which he was hospitalised for 12 hours. This conduct formed the subject of the count of unlawful killing. The evidence disclosed that at the time the applicant was significantly affected by alcohol and cannabis and he was not then in a fit state to drive the vehicle.

9 In the course of the sentencing proceedings evidence was adduced on behalf of the applicant as to the effects of a motor vehicle accident, in 1992, in which he had suffered a head injury. According to a medical report dated 8 December 1992 the applicant's behaviour had become increasingly antisocial since the accident. According to a medical report dated 25 March 1997, a small haematoma had occurred in the medial part of the left temporal lobe extending upwards a little way into the brain. According to that report "physically [the applicant] has made a complete recovery and neither does he experience any headaches. There are two main areas of abnormality of higher mental function which both [the applicant] and his mother believe have been caused by the head injury". The first area of abnormality recorded was an impairment of memory. The other area of concern was his behaviour. The report recorded that:

"According to his mother he has become agitated and temperamental as compared with his condition as it was prior to the head injury. He has apparently had many altercations with the law involving a number of different types of offences and it his mother's contention that this has been brought about by an alteration of his behaviour following the head injury."

10 The medical practitioner concerned (a neurosurgeon) expressed the opinion that the applicant had made a "very good recovery" from his head injury. He said, "it is quite possible that impairment of memory and altered behaviour have occurred as a result of the head injury". He said that, as far as the head injury was concerned, "it is difficult to know whether he was going to evolve the same type of personality and behaviour as is now present had he not sustained the head injury". He concluded:

"In all fairness to [the applicant] and with particular regard to the function of the temporal lobe in control of behaviour and personality I believe there is a high likelihood that his behaviour has been modified due to the head injury. These disturbances of memory and behaviour are likely to be permanent in view of the length of time that has now past since the head injury."

11 The learned sentencing Judge had regard to these medical reports. He also took into account the fact that the applicant had pleaded guilty on the fast track system. In dealing expressly with parole the learned Judge said:

"The question of eligibility for parole is one which causes considerable concern given your youth, but given the circumstances, that is that you were driving a stolen vehicle on parole at the time, already under life disqualification and that you were deliberately avoiding a police pursuit by driving the wrong way down a major arterial road and given the extent and seriousness of your existing record, I am refusing eligibility for parole."

12 According to the notice of appeal the learned sentencing Judge erred in failing to order eligibility for parole:

(c) circumstances which might be relevant to me at the time I would become eligible to be released from prison on parole, and

(d) the circumstances of the commission of the offence."

13 It is apparent, however, from the learned sentencing Judge's remarks that he took into account all the matters referred to in the grounds of appeal. The applicant has a long history of offending, he has demonstrated contempt for the processes of the law in general and for the attempts made by courts in the past to allow him to serve sentences subject to supervision. He has contravened bail conditions and committed offences while on bail. The offences in question, the subject of this application, were committed while he was on bail and also on parole. The circumstances of the offences are serious indeed. He by driving the vehicle in a way which showed deliberate and callous disregard for the safety of others, caused the death of another person and the aggravated burglaries he committed indicate a complete disregard for the rights of home owners.

14 In the course of her address, counsel for the applicant submitted that the applicant had problems with alcohol and drugs and were he to be granted eligibility for parole, there was some prospect that he might be weaned off these problems and become a law abiding citizen. In my view, however, there was nothing in the material before the learned Judge to justify such a submission and the appellant's past record led to the contrary inference.

15 Counsel also suggested that the applicant's situation was "a little different" because of his medical problems. However it is apparent from the medical reports that the applicant has recovered as far as he will ever recover from the effects of his head injury. There is no question of him not being able to recognise right from wrong, and nothing in his medical condition detracts from his criminal culpability.

16 Counsel also made some criticism of the learned Judge for not ordering a pre-sentence report. However, his Honour had full submissions from both counsel and was also in possession of the medical testimony. In all the circumstances I did not consider that the omission to obtain a pre-sentence report was in any sense erroneous.

17 Attention was also drawn to the fact that the learned Judge did not expressly state that he had made any prognostication as to the circumstances relevant to the applicant at the time when he would be eligible for release on parole, if a parole eligibility order were made (such a prognostication being required by s 89(2)(d) of the Sentencing Act 1995). The learned Judge did not make express mention of the required prognosis, but in my view it is implicit in his Honour's reasons as a whole that he had regard to the requirements of s 89(2)(d). In any event, having regard to all the circumstances, the inference to be drawn is that were the applicant to be released on parole (assuming that an order for eligibility for parole were to be made), he would remain a risk to the community. There is little prospect that the term of imprisonment imposed upon him will have a significant positive effect on his social attitude. The history of his offending negates any optimism in this respect. In this sense this case is distinguishable from Brown v The Queen, unreported; CCA SCt of WA; Library No 960445; 6 August 1996.

18 In the circumstances I considered that the application for leave to appeal against sentence should be dismissed.

19 WALLWORK J: I agree with the reasons for judgment of Ipp J. There is nothing I wish to add.