Hubbard v Fisher [2001] WASCA 182

Sentencing Act 1995

Garlett v The Queen [2000] WASCA 72

Keen v The Queen (No 2) [1988] HCA 14; (1988) 77 ALR 385

1 McLURE J: On 4 April 2000, the appellant pleaded guilty in the Rockingham Court of Petty Sessions to the following offences:

(1) Stealing a motor vehicle (under s 378 and s 371 of the Criminal Code of Western Australia);

(2) Stealing petrol to the value of $20.02 (under s 378 of the Criminal Code);

(3) Two offences of driving a motor vehicle without being the holder of a valid driver's licence (under s 49(1)(a) of the Road Traffic Act 1974);

(4) Giving a false name and address (under s 53(1)(a) of the Road Traffic Act 1974);

(5) Possessing a prohibited drug, namely amphetamines (under s 6(2) of the Misuse of Drugs Act).

2 The offences occurred in the period from 28 February 2000 to 10 March 2000. At the hearing before the learned Magistrate on 4 April 2000, the appellant, by her legal counsel, admitted the facts of the offences stated by the prosecutor and made a plea in mitigation. The Court was referred to the appellant's record of convictions which showed that in the period February 1985 to February 1995, she had been convicted of approximately 21 offences which included multiple convictions for giving a false name, driving without a licence, assault, fraud, burglary and drug offences. In April 1994, the appellant was placed on 12 months' probation which in December 1994 she was found to have breached. She was given 6 months' imprisonment for the offence the subject of the probation order. However, the appellant had received probation for other offences in respect of which there had been no breach.

3 The record of court appearances shows the appellant had received a number of terms of imprisonment for offences committed before February 1995. In particular, on 10 February 1995 the appellant was sentenced to 18 months' imprisonment for burglary. At the hearing of the appeal, the appellant advised the Court that she had previously been made eligible for and was released on parole without breach. In the period from February 1995 to February 1999 the appellant had no convictions. In the period from February 1999 until the convictions the subject of this appeal, the appellant's only conviction was for stealing (shoplifting) for which she was fined $300.

4 As at 4 April 2000 the appellant was 29 years old and was separated from her second husband. She has four children and in April 2000 they were aged eleven, eight, six and two. The appellant had been a long-time amphetamine user, at least until 1995. She returned to using amphetamines when she received news that her eldest son, who is severely handicapped and requires 24-hour nursing care, would be unlikely to survive to his teenage years. The appellant was on a sole parent's benefit and received no assistance from her husband.

5 The appellant advised the court on 4 April 2000 that she had recently stopped using amphetamines, was receiving support and counselling and was keen to start a detoxification programme. The Magistrate stated that before sentencing, a Community Based Corrections Officer would have to see the appellant and that the appellant was not going to be sent to prison but would be monitored very closely.

6 On 4 April 2000, the Community Based Corrections Officer recommended to the court a community-based disposition with a programme requirement for substance abuse, counselling including psychological counselling and urinalysis. Prior to the hearing, the appellant had been pursuing the possibility of undertaking a residential programme at Palmerston House. The Magistrate intended to sentence the appellant after receiving reports from Palmerston House and a Community Based Corrections Officer. The appellant was remanded until 11 April 2000 so the Magistrate could be advised whether the Palmerston House residential programme was available. The Magistrate extended the appellant's bail.

7 On 4 September 2000, the appellant appeared at the Rockingham Court of Petty Sessions and convictions were entered in relation to the offences to which the appellant pleaded guilty in April 2000. Further, the appellant was convicted of the following further offences committed in the period 17 April 2000 to 30 August 2000:

(1) Three offences of giving a false name and address (under s 50 of the Police Act);

(2) Stealing a motor vehicle (under s 378 and s 371A of the Criminal Code);

(3) Driving a motor vehicle without being the holder of a valid driver's licence (under s 49(1)(a) of the Road Traffic Act);

(4) Three offences of breach of bail undertaking (under s 51(1) of the Bail Act);

(5) Stealing (property to a value of $40) (under s 378 of the Criminal Code);

8 The appeal papers do not contain any information relating to events in the period between 4 April 2000 and 4 September 2000 save for the complaints relating to the further offences and a transcript of the Magistrate's sentencing remarks on 4 September 2000. The appellant informed the Court at the hearing of the appeal that she was not legally represented on 4 September 2000 and a Community Based Officer had recommended to the court an intensive supervision order or a suspended term of imprisonment.

9 The Magistrate sentenced the appellant to an aggregate term of 18 months' imprisonment for the convictions entered on 4 September 2000 without parole. The sentences of imprisonment related to the following offences:

(1) Stealing a motor vehicle (28 February 2000), 6 months;

(2) Stealing a motor vehicle (17 April 2000), 6 months cumulative on the first charge;

(3) Stealing petrol (9 March 2000), 3 months concurrent;

(4) Possession of a prohibited drug (10 March 2000), 3 months concurrent;

(5) Breach of bail undertaking (28 April 2000), 3 months cumulative;

(6) Breach of bail undertaking (23 May 2000), 3 months concurrent;

(7) Breach of bail undertaking (26 May 2000), 3 months concurrent;

(8) Stealing (28 August 2000), 3 months concurrent;

10 The Magistrate's reasons for the sentences and the refusal to order that the appellant be eligible for parole were as follows:

"In relation to the stealing of the motor vehicle on 28 February, I have noted the record. I have noted the opportunities which were given to you. And to address a problem which you assured the court you had and which you now tell the community based officer you do not. Although I note some of these offences were committed under the influence of drugs.

I believe, because of your record, the continuing rate of offending and particularly when you've been on bail - I have no option but to sentence you to imprisonment.

...

I will not make an order for parole, because I have taken into account the matters which I've given 3 months' imprisonment concurrent, rather than sentencing you to cumulative offences."

11 The appellant sought leave to appeal on the grounds that:

(1) The learned Magistrate imposed a sentence which was manifestly excessive in that she failed to give any or sufficient weight to the appellant having successfully completed a lengthy period of parole and several previous community based orders by failing to order that the appellant be eligible for parole.

(2) The learned Magistrate also imposed more than one cumulative sentence which would have ordinarily have been made concurrent thus making the overall sentence 18 months when a 12-month sentence would have given sufficient weight to the crimes committed.

12 On 20 February 2001, McKechnie J gave leave to appeal in terms of ground (1) of the application for leave. At the hearing of the appeal the appellant stated that the only ground of appeal she intended to pursue related to the Magistrate's failure to order that she be eligible for parole. By that time, the appellant had served approximately 8 months of her sentence. Section 89 of the Sentencing Act 1995 governs eligibility for parole. That section materially provides:

"(1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.

(2) In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:

(a) the seriousness and nature of the offence;

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

(c) the offender's antecedents;

(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.

(3) A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously."

13 The exercise of the discretion to order eligibility for parole conferred by the Sentencing Act 1995 is to be approached in the same way as the exercise of the discretion under the former Offenders Community Corrections Act 1963 (WA), s 37A and the authority of Thompson v The Queen (1992) 8 WAR 387 remains undiminished: Wongawol v The Queen, unreported; CCA SCt of WA; Library No 980233; 4 May 1998. The Court in Thompson v The Queen said at 395 - 396:

"The nature and purpose of parole and the way in which a court should enter upon a determination whether to make an order for eligibility for parole has been the subject of comment in numerous decisions. The principles are well known. ... The principles which are relevant in the context of this application are as follows:

(a) once a court sentences a person to a term of imprisonment the question of eligibility for parole of the offender must be considered;

(b) whether to order eligibility for parole calls for the exercise of a judicial discretion;

(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 but nonetheless the philosophy of the Act suggests a bias towards eligibility;

(d) parole serves to mitigate punishment as well as provide an opportunity for rehabilitation;

(e) in determining whether an order for eligibility for parole should be made, the sentencing judge may have regard to all or any of the following:

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

(iv) circumstances which are relevant to the offender or which might, in the opinion of the judge, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made;

(v) any other matter that the judge thinks relevant (s 37A(3));

(f) the matter raised in item (e)(iv) above requires the sentencing judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other;

(g) the purpose of the prognosis required by item (e)(iv) above is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community;

(h) the severity of a sentence is relevant to the question of eligibility for parole but even where the sentence is lenient, it is still necessary to consider the question;

(i) the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board."

14 It is to be observed that the language in par (e) of the Thompson principles is almost identical to that of s 89(2) of the Sentencing Act. Thus the Court has a discretion to order that an offender be eligible for parole and a discretion to have regard to all or any of the criteria specified in subparagraphs (a) - (e) of s 89(2) of the Sentencing Act. As stated by Malcolm CJ in Cardillo v Taylor [1999] WASCA 166 at par 35, the sentencer is entitled to have regard to the matters set out in those subparagraphs.

15 This appeal raises the question of the nature of relationship, if any, between the sentencing discretion and the discretion to order eligibility for parole. This issue was considered by the Court of Criminal Appeal in R v Swain (1989) 41 A Crim R 214 at 216, 217 and 220. The Court held that on a proper construction of s 37A(1) of the Offenders Probation and Parole Act 1963, a Judge should not reduce the otherwise appropriate sentence by taking into account an intention not to make a parole order. The Court said (at 216):

"If the [sentencing Judge] comes to the conclusion that there is no alternative to a sentence of imprisonment, the sentencer is required to fix a term of imprisonment proportionate to the gravity of the offence and taking into account all the relevant circumstances whether they go to aggravation or mitigation of the sentence. It is only at that stage when the court "sentences a person ... to a term of imprisonment" that eligibility for parole falls to be considered."

16 The language of s 37A(1) of the Offenders Probation and Parole Act 1963 which refers to "sentences a person" is slightly different to that of s 89(1) of the Sentencing Act 1995 which refers to "a court sentencing an offender to one or more fixed terms". However, s 89(1) when read with ss (3) and s 6(4) of the Sentencing Act 1995 means the sentencing decision is made before and triggers the discretion in relation to eligibility for parole. Thus, there should be no direct relationship between the length of the term of imprisonment and whether or not a person is to be made eligible for parole. It is not permissible to reduce or increase a sentence of imprisonment by reference to whether or not a person is to be made eligible for parole: see also R v Shaw (1989) 39 A Crim R 343. Of course, considerations which are relevant to the exercise of the discretion to grant eligibility for parole such as the seriousness and nature of the offence and the circumstances of the commission of the offence are also relevant in the exercise of the sentencing discretion.

17 The Thompson principles also address the converse issue of the relationship between the grant of eligibility for parole and a lenient sentence. An appropriately lenient sentence may be a relevant factor in the exercise of the discretion to grant eligibility for parole but it cannot dictate the outcome. The question of eligibility remains to be considered.

18 However, there can be no direct (or indirect) relationship in either direction between the discretion to grant eligibility for parole and that aspect of the sentencing discretion relating to whether terms of imprisonment are to be cumulative or concurrent. The considerations relevant to whether sentences are made concurrent or cumulative do not apply to the discretion to grant eligibility for parole and vice versa: R v Shaw at 347. Accordingly, the Magistrate erred in the exercise of her discretion in relation to eligibility for parole by taking into account an irrelevant consideration, being the terms of imprisonment she had made concurrent rather than cumulative.

19 Having found that the Magistrate's exercise of discretion has miscarried, an appeal court may exercise its own discretion where it has the materials to do so: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504. Accordingly I turn to the question whether the appellant should have been made eligible for parole. The appellant's age and personal circumstances at the time of the offences, the relationship between the offences and her substance abuse and, most particularly, the significant period during which the appellant did not offend, which appears to have a connection with periods of abstention from drug taking and her previous (albeit not entirely) successful performance of parole and probation, points positively towards the appropriateness of parole. Taken as a whole, the circumstances of the case, in particular the nature and frequency of her offending, do not negate the prospect of rehabilitation by way of supervision in the community.

20 I have considered whether the Magistrate's decision to refuse to grant eligibility for parole so affected the sentencing process as to warrant refusal to allow the appeal: R v Shaw (supra) at 345 and 348. The Full Court in Shaw would not have allowed the appeal even though it was of the view the Judge was wrong in refusing to declare the appellant eligible for parole because to do so would result in an inadequate punishment. In this case, the respondent in its written submission supported the Magistrate's sentences and her decisions on the questions of cumulation and concurrence. I see no basis to conclude that the aggregate term of 18 months' imprisonment fell below what was reasonable in the exercise of the court's sentencing discretion. For these reasons I propose to allow the appeal and to vary the decision of the Magistrate in the Court of Petty Sessions at Rockingham on 4 September 2000 by ordering that the appellant is to be eligible for parole in relation to the terms of imprisonment then imposed.