Court of Appeal (WA)|2006-11-23|Before: Smith JA

Kearney v The State of Western Australia [2006] WASCA 251 (23 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KEARNEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 251

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether sentencing Judge erred in refusing to make a parole eligibility order - Section 89(4) Sentencing Act 1995 (WA) - Turns on own facts

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Messiha v Royce [2004] WASCA 290

Penny v The State of Western Australia [2006] WASCA 173

Pickett v The State of Western Australia [2004] WASCA 291

Anderson v Heath [2005] WASC 253

Austin v Grapes [2004] WASCA 102

Biggers v The State of Western Australia [2004] WASCA 47

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

King v The Queen [2001] WASCA 198

Little v The Queen [2001] WASCA 87

McKeagg v The Queen [2001] WASCA 99

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Staley v Lopes [2005] WASCA 75

The State of Western Australia v Wells [2005] WASCA 23

Thompson v The Queen (1992) 8 WAR 387

Yanko v The Queen [2004] WASCA 37

Yardley v Betts (1979) 22 SASR 108

3 BUSS JA: On 2 September 2005, on his pleas of guilty to seven counts of stealing with threats of violence whilst armed with an offensive weapon, and one count of attempted stealing with threats of violence whilst pretending to be armed with an offensive weapon, the appellant was convicted and sentenced, in total, to 8 years' imprisonment, without eligibility for parole.

4 On each of the eight counts, the appellant was sentenced to 4 years' imprisonment, with counts 1 to 7 to be served concurrently and count 8 to be served cumulatively. Counts 1, 2 and 4 - 8 were the armed robbery offences, and count 3 was the attempted armed robbery offence.

5 The maximum sentence for stealing with threats of violence whilst armed or pretending to be armed with a dangerous or offensive weapon is life imprisonment: s 392(c) of the Criminal Code (WA).

6 The appellant appeals against McKechnie J's refusal to make a parole eligibility order. Roberts-Smith JA granted the appellant leave to appeal. On 9 August 2006, after hearing oral argument from the appellant, this Court dismissed the appeal.

7 On seven different occasions between 14 July 2002 and 26 August 2002, the appellant stole from various persons, with threats of violence, cash in amounts ranging from $80 to $2800. On each occasion, the appellant was armed with an offensive weapon, namely a knife. On 22 July 2002, when the appellant committed the attempted armed robbery offence, he pretended to be armed with a small replica pistol.

(1) Count 1: On 14 July 2002, at about 7 pm, the appellant went to Network Video in Victoria Park and approached two female employees aged 22 and 30 at the counter. He said, "this is a robbery". He handed one of the employees a plastic shopping bag and demanded that she fill it with money. On making the demand, the appellant produced a 15cm carving knife. The second employee pushed the

appellant away from the counter and said "No", to which the appellant replied, "Don't be stupid". The appellant moved behind the counter and towards the till where the other employee was filling the bag with money, and said, "I need the money for my children". The appellant then grabbed the bag, which contained about $900, and ran from the store.

(2) Count 2: On 18 July 2002, the appellant went to Seven Day Pharmacy in Maylands where the owner of the pharmacy, a man aged 60, and his wife, aged 53, were working. The appellant approached the till where the owner's wife was standing. The appellant held a 25cm to 30cm knife. He gave the owner's wife a plastic shopping bag and said, "Hurry up. Put it in there." The knife was held at eye level to the owner's wife and less than two feet from her face. She removed cash from the till and put it into the bag which the appellant was holding. He asked her to lift the till drawer but the owner's wife replied that it was fixed in place. The appellant then ran from the store with about $450.

(3) Count 3: On 22 July 2002, at about 2.50 pm, the appellant attended Top Valu Supermarket in Maylands, approached an 18-year-old female cashier, and asked her to open the cash register to give him money. He had a small replica pistol which he held next to the side of his face and with the barrel pointing to the ceiling. The appellant then produced a plastic shopping bag, leaned over the counter with the replica pistol pointed at the cashier and demanded that she fill the bag. A male employee approached the appellant from behind and attempted to restrain him. The appellant broke free and the male employee fell to the floor. The appellant pointed the replica pistol at him before running from the store. Nothing was stolen.

(4) Count 4: On 23 July 2002, at about 1pm, the appellant went to a Caltex service station in Morley and approached a 23-year-old female attendant at the counter. He produced a small knife and said, "Yeah mate. This is a hold-up." He said he wanted "all the money, all the notes". The appellant handed a plastic shopping bag to the attendant. As the attendant was putting money from the till into the bag, the appellant said that he wanted the money from under the tray. As the attendant removed the money from under the coin tray, the appellant continued to hold the knife to her face and demanded that she hurry up. He then grabbed the bag, which contained about $2100, and ran from the store.

(5) Count 5: On 30 July 2002, at about 6.35 pm, the appellant went to a Chicken Treat store in Inglewood, approached the front counter with a knife tucked into the front of his trousers and told the 15-year-old female employee to open the till. He then said, "You better open the till and give me the money or I'll cut you." The appellant then lifted his top to reveal the handle of the knife. The appellant motioned his hand towards the knife and moved towards the employee, threatening to take the knife out and jump over the counter if his demands were not met. The employee opened the till, and as she did so, the appellant reached across the counter and removed the whole cash tray, causing some money to fall on the ground. He ran from the premises with the tray, which contained about $197.40.

(6) Count 6: On 3 August 2002, at about 5.30 pm, the appellant went to Ripe Hair Salon in Fremantle and approached an 18-year-old female employee who was counting the day's takings. The appellant asked her the cost of a haircut and then produced a steak knife. He reached forward, grabbed the takings and, when the employee attempted to stop him, he raised the knife towards her. She screamed and stood back. The owner of the store heard the scream and ran towards the appellant who was running out the door with about $250 in cash. The owner grabbed the appellant, and there was a struggle between them, with some blows exchanged. During the struggle, the appellant yelled that he was armed with a knife and managed to escape, leaving behind some clothing and the knife he was holding.

(7) Count 7: On 9 August 2002, at about 9.50 pm, the appellant went to Blockbuster Video in Parmelia and approached the counter where a 22-year-old male employee and a 19-year-old female employee were working. He had a 15cm knife and demanded that they fill a plastic shopping bag with money from the till. The appellant then ran from the premises with $2800.

(8) Count 8: On 26 August 2002, the appellant returned to Blockbuster Video in Parmelia (see count 7) and approached a 38-year-old female employee who was working at the counter. He produced a serrated-edged knife and demanded cash from the till. She handed the appellant about $80 and he demanded that she lift the till drawer. After seeing that there was no money underneath the drawer, the appellant ran from the store.

9 The offences I have recounted came to the attention of the authorities while the appellant was in custody serving a term of imprisonment of 2 years and 6 months, imposed by French DCJ on 29 May 2003, for stealing with actual violence and assault occasioning bodily harm. Those offences were committed on 20 September 2002, and the sentence was backdated to commence on that date. Although the offences for which the appellant was sentenced by French DCJ occurred shortly after the offences with which this appeal is concerned, at the time of sentencing, her Honour was unaware of them.

10 On 13 June 2005, the appellant was questioned at Acacia Prison in relation to the offences with which this appeal is concerned. He participated in a video-taped interview and admitted committing those offences.

11 A pre-sentence report was prepared and submitted to the learned Judge. His Honour also had before him the transcript of the sentencing before French DCJ on 29 May 2003, when a verbal pre-sentence report was provided to the court.

12 The pre-sentence report sets out the appellant's background. He was born in New South Wales on 4 May 1962 and was the second youngest of seven children. The appellant reported having come from a supportive and loving family environment, but that he had left home at age 13 because he was very independent. He maintained contact with his parents. The appellant reports that the death of his father in 1988, as a result of a heart attack, and of his brother, before his father's death, had a significant impact on him. He attended school until Year 10, but did not complete it. He listed various period of employment in unskilled or semi-skilled positions including work as a truck driver, shearer, deck-hand and storeman. He said he had completed a 12-month course in aged care in 1989 and then started full-time employment in a nursing home as a carer or nursing aide. The appellant hoped to obtain employment as a youth worker in the future.

13 The appellant informed the author of the pre-sentence report that he was single, but was previously in a long-term relationship from which he has a 16-year-old son. He explained that his drug use resulted in the break-up of the relationship and that he has limited contact with his son. He last saw his son, who resides in New South Wales with his mother, about two years ago before the preparation of the pre-sentence report.

14 Before being taken into custody, the appellant was unemployed and receiving benefits from Centrelink. According to the Fines Enforcement Registry, the appellant had $4119 in outstanding fines.

15 The appellant did not report any physical or psychological problems.

16 The appellant has a history of illicit drug use, commencing, when he was aged 13, with cannabis, which he used daily for the next five years. He then reduced his intake to about three times a week. Records indicate that the appellant began using amphetamines at age 22, initially on weekends, but by 2001 - 2002, upon moving to Western Australia, he was using the drug intravenously on a daily basis. The appellant admitted a four-year period of heroin use from 1991, which cost him up to $250 per day.

17 The appellant informed the author of the pre-sentence report that when the offences with which this appeal is concerned were committed, he had an amphetamine addiction, which was costing him up to $500 per day. He reported that the offences were committed to finance his drug use. The appellant also asserted that although he had threatened each of his victims with weapons, it was never his intention to use the weapons against them and he would never have resorted to violence if his demands had not been met.

18 The appellant said that he understands the importance of drug counselling and attendance at Alcoholic/Narcotic Anonymous meetings, and he commenced this process during his most recent period in custody.

"Parole eligibility is supported to assist with [the appellant's] re-integration back into the community."

But the earlier verbal pre-sentence report, given to French DCJ on 29 May 2003, included this observation:

" ... having regard to his age and offending antecedents and particularly his response to prior and comparatively recent supervision, he represents a dubious prospect for further community supervision either immediately or at some stage in the future".

The appellant's prior criminal record and prior early release orders

20 The appellant has an extensive criminal record, commencing in New South Wales when he was aged 17. Since then, he has been convicted of offences including stealing, robbery, assault, and traffic related offences in New South Wales until 2000 and in Western Australia from 2001 to 2003. According to the appellant, the majority of his prior offences were committed to finance his drug addiction.

21 In New South Wales, the appellant breached a probation order in 1980, when he was aged 18, and breached a community service order in 1985. He was released on parole in August 2000, but was returned to prison a short time later. He was re-released on parole on 19 February 2001, but absconded to Western Australia. On 13 March 2001, the appellant's parole in New South Wales was revoked and a warrant issued for his arrest. The author of the pre-sentence report confirmed with the Police Prisons Unit that once the appellant has served his prison term in Western Australia, he will be extradited to New South Wales to serve his outstanding sentence in that State of 1 year, 7 months and 5 days.

22 The appellant's response to prior supervision orders in Western Australia has also been unsatisfactory, as recorded in the pre-sentence report. On 13 December 2003, the appellant was released on parole in relation to the sentence of 2 years and 6 months imposed by French DCJ. Within two months, his parole was suspended and subsequently cancelled for non-compliance with the conditions of his parole, namely, failure to report to his supervising Community Corrections Officer as directed, failing to notify a change of address and failing to attend urinalysis. On 28 July 2004, he was re-released on parole with the same conditions. Although the appellant generally reported to his supervising officer as directed, his attendance at urinalysis was intermittent, and he continuously tested positive to illicit drug use. The appellant attended three psychological counselling appointments, but he failed to attend three substance abuse counselling sessions as directed. In October 2004, his parole was suspended and in January 2005 it was cancelled. The appellant was charged on 4 February 2005 with further offences, namely, possession of a weapon and possession of a prohibited drug, for which he received fines. On 5 February 2005, as a result of non-compliance with parole conditions and the two offences in February 2005, the appellant was returned to custody, where he has remained. The pre-sentence report states that the appellant's parole was due to expire on 4 May 2005, but, as a result of its cancellation, the appellant "owes" 354 parole days in Western Australia. His earliest date of release was 23 January 2006.

23 The learned Judge said, in relation to parole eligibility:

"I note that the pre-sentence report supports parole eligibility to assist with your reintegration back into the community. I have some difficulty with the concept of giving you parole. You are now 43. You have continually offended. You have breached community orders in the past. You have performed poorly while released on parole. The fact is that this year the offences which you committed while not serious show that the question of amphetamines in your life continues to be very live indeed.

Major matters in your favour and they are significant is your early plea of guilty and the fact that you have confessed to these offences. Those I take into account and give weight to. I am required and I simply mention, though it won't mean much to you that the sentences I am about to impose have been adjusted to take account of the Sentencing Act transitional provisions of 2003, but the time has come, I'm afraid, for the community to deal severely with you. In the end you committed eight [sic] armed robberies and that, by any stretch, is very significant offending.

...

... The sentence you will, therefore, serve is one of eight years' imprisonment and I decline to make a parole eligibility order."

24 The sole ground of appeal relates to the learned Judge's exercise of discretion in declining to make a parole eligibility order. The ground says, relevantly:

"The learned sentencing Judge's discretion miscarried when he declined to make a parole eligibility order concerning the sentence imposed on the Appellant;

Particulars

i) The refusal to make a parole eligibility order was so unreasonable as to necessarily demonstrate error.

ii) ..."

At the hearing of the appeal, the appellant abandoned the second particular of the ground of appeal.

25 The task of this Court, in examining the ground of appeal, is to determine whether there was an error made in sentencing the appellant, error being understood in this context, as it was explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325 [3] - [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary Judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary Judge. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 [15].

26 Section 89 of the Sentencing Act provides, relevantly:

"(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.

(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant.

27 A court's power under s 89(4) to decide not to make a parole eligibility order is enlivened if (and only if) at least two of the four factors set out in pars (a), (b), (c) and (d) of the subsection exist. If the power is enlivened, the Judge retains a discretion, however, which he or she must then exercise, as to whether to make a parole eligibility order or not. If the power is enlivened, there is no presumption that a parole eligibility order should not, or should not ordinarily, be made. See Penny v The State of Western Australia [2006] WASCA 173 at [67] - [68]; Messiha v Royce [2004] WASCA 290 at [15] - [16]; Pickett v The State of Western Australia [2004] WASCA 291 at [7] - [8].

28 Counsel for the appellant conceded in argument that the learned Judge's power to decide not to make a parole eligibility order was enlivened in that at least two of the four factors referred to in s 89(4) existed. As to par (a), the offences in question, being armed robberies and one attempted armed robbery, involved criminality which makes it proper to characterise each of them as "serious". As to par (b), the appellant has a very serious history of prior convictions. It is appropriate to classify his record as a "significant criminal record". As to par (c), the appellant has previously breached many release orders.

29 Counsel for the appellant submitted to this Court that the learned Judge failed to take into account, in deciding whether or not to make a parole eligibility order, various programmes and courses which the appellant had undertaken in prison to treat his drug addiction, his involvement in "peer support" for younger and "at risk" prisoners or his exemplary behaviour while in custody. It is true that his Honour did not expressly refer to those matters in the course of his sentencing remarks. I am not persuaded, however, that, even if his Honour did not take them into account, the omission requires his Honour's decision to be set aside. They were not matters to which any significant weight should have been given.

30 In my opinion, on any reasonable view of the material facts and circumstances, the learned Judge was entitled to decline to make a parole eligibility order. The factors which weighed decisively in favour of his Honour's decision, were these:

(a) the nature and seriousness of the offences in question;

(b) the appellant's very serious record of prior convictions, including convictions for stealing, robbery and assault, in New South Wales and Western Australia, over many years;

(c) the appellant's unsatisfactory response to prior supervision orders, including breaching parole in New South Wales in 2000, absconding to Western Australia in 2001 after having been re-released on parole, breaching parole in Western Australia in 2003, and again breaching parole in Western Australia in 2004 after he was re-released on parole;

(d) the appellant's entrenched behaviour, over many years, of resorting to crime to finance his drug addiction;

(f) the New South Wales authorities propose, on the expiration of the appellant's term of imprisonment in Western Australia, to extradite him to New South Wales to serve his outstanding "parole days" in that State.

31 The learned Judge did not err, as alleged, in declining to make a parole eligibility order. Indeed, his Honour's decision was, with respect, plainly correct. The ground of appeal is without merit.

Sentencing Act 1995(WA)

Kearney v The State of Western Australia [2006] WASCA 251

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Judgment (85 paragraphs)

Kearney v The State of Western Australia [2006] WASCA 251 (23 November 2006)

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Cases Cited (10)