Court of Appeal (WA)|2005-11-30|Before: Smith JA

The applicant may have taken these words to mean that the 465 days were to commence from 17 October 2003 and upon their expiration, the new sentences would then take effect. Counsel for the respondent questioned this approach, suggesting that the sentences imposed by Hasluck J would be served before the outstanding parole days.

48 The order in which multiple sentences are to be served is governed by s 7 of the Sentence Administration Act 2003 (WA). So far as is presently relevant, s 7 reads as follows:

'non-parole period', in relation to a parole term, means the period that under section 93(1) of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole.

(2) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order -

(a) firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;

(b) secondly, subject to section 94 of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;

(c) thirdly, subject to section 94 of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served -

(ii) concurrently if the terms are concurrent or partly concurrent. ..."

49 Therefore, in broad terms a prisoner will first serve any terms for which he or she is not eligible for parole, followed by the "non-parole period" of any terms for which he or she is eligible for parole, and finally the parole periods are served unless and until the prisoner is released on parole. (See also Readhead v The State of Western Australia [2005] WASCA 191 at [7].) The effect in this case is that the applicant will first serve the terms imposed by Hasluck J, and once those are completed he will begin to serve the 465 outstanding parole days.

50 Considering the emphasis placed by the applicant on the benefits of parole supervision upon re-entry to society, it is important to clarify whether the applicant is eligible to be released on parole during his outstanding parole days. When the applicant was sentenced by Hasluck J for the offences committed whilst on parole, the applicant's parole order was automatically cancelled pursuant s 67 of the Sentence Administration Act. Section 69 describes the effect of cancellation on a parole order (a type of "early release order"):

"(1) If an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.

(5) Subject to Division 4, this section does not prevent another early release order being made in respect of a prisoner."

51 Division 4, entitled "Re-release after cancellation", has two sections of relevance. Section 72 states:

"(1) If an early release order made by the Board or the CEO -

(b) is cancelled by virtue of section 67,

then the Board or the CEO, as the case may be, may, subject to Parts 3 and 4, subsequently make another early release order in respect of the prisoner."

52 Section 74 confirms that if a parole order is made under s 72, the days spent on parole count as time served (as long as the order is not cancelled and no further offence is committed). Therefore, the applicant will be eligible for parole once completing the aggregate sentence of 7 years' imprisonment imposed by Hasluck J.

53 In Orchard, the appellant's aggregate sentence on one count of stealing a motor vehicle and two counts of armed robbery in company, was reduced from 14 years' imprisonment (equivalent to 9 years 4 months after 31 August 2003) without eligibility for parole, to one of 6 years' imprisonment (equivalent to a 9 year term imposed before 31 August 2003) with eligibility for parole. In February 2003, Orchard and Biggers stole a motor vehicle which they used later that morning to commit an armed robbery of a bank. They wore balaclavas. Each was armed with a sawn-off rifle which they pointed at bank staff and demanded money from the tellers. They obtained some $32,000 in cash. In March that year they returned to the same bank and again entered wearing balaclavas. On that occasion only Biggers was armed. He carried a sawn-off rifle. He pointed it at bank staff while Orchard demanded money. They left with approximately $4000 in cash. Orchard pleaded guilty in respect of all three offences at the first available opportunity. His previous criminal record was described by the Court of Criminal Appeal as "particularly bad". It included numerous armed robberies, stealing and receiving offences and assaults. His response to community based orders had been "patchy". The third matter of significance identified by the Court was that he suffered from hepatitis C and had been prescribed the drug "Interferon" for that. There was material before the sentencing Judge that this medication caused the appellant side effects which included poor judgment, lack of memory, paranoia, loss of appetite and weight, delusions and depression. There was also a psychotic component related to the medication. A report before the Judge revealed that the appellant's brother had noted a personality change in the appellant due to the use of the medication.

55 The sentencing Judge gave brief sentencing remarks. He referred to the appellant's drug dependence and to the effect the Interferon medication had had upon him. He thought the appropriate starting point for each armed robbery was 12 years' imprisonment. He reduced that by 25 per cent for the plea of guilty and made a further specific reduction because of what he thought was the effect of the medication on the appellant and also to overcome any sense of grievance he might have if he received precisely the same sentence as Biggers, who had in fact committed three armed robberies. His Honour imposed a sentence of 2 years' imprisonment in respect of the motor vehicle theft and 7 years' imprisonment in respect of each of the armed robberies. He ordered that the sentences on the stealing and one armed robbery be served concurrently, but that the sentence on the other armed robbery be served cumulatively, making a total of 14 years' imprisonment. He declined to make a parole eligibility order.

56 With the consent of the respondent, fresh evidence was placed before the Court on the appeal. This took the form of a medical report, detailing the neuropsychiatric complications of Interferon treatment. It is not necessary to refer to them here. It is sufficient to observe that they led the Court (Malcolm CJ, Steytler and Wheeler JJ) to the conclusion that the reduction made by the trial Judge on that account was too low. Their Honours said that in light of this material, it seemed to them probable that the medication had contributed to the appellant's commission of the offences. Because of it, he was less able to exercise logical reasoning processes and to make rational judgments and choices. That necessarily reduced his moral, albeit not legal, responsibility. Their Honours pointed out (at [18]) that where a mental disorder has contributed to the commission of an offence, the moral culpability of the offender will be lessened (and it may be appropriate to attach less significance to either or both of general and personal deterrence) and that should, ordinarily at least, be reflected in the penalty imposed, citing R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400; Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40], [43] - [48] and [67]. Having concluded that the appeal should be allowed, their Honours considered it would have been appropriate to sentence the appellant to 18 months' imprisonment in respect of the car theft and 6 years' imprisonment in respect of each of the armed robberies and to structure those sentences so as to give rise to a total period of 9 years' imprisonment (before the statutory one-third reduction).

57 Their Honours then turned to the question of parole. They saw two matters as bearing upon that. The first was a misunderstanding of the sentencing Judge as to the appellant's eligibility for parole in due course; the second was again his mental condition at the time of his offending. As to these matters, their Honours said (at [24] - [25]) that the sentencing Judge had erred in assuming that even if he were not to make a parole order, the appellant would be able to be released on parole in due course. Because the Judge had made no order as to whether or not the total sentence of 14 years' imprisonment was to be served concurrently with, or cumulatively upon the breach of parole days owed by the appellant, the sentence ran concurrently with those days (s 88(1) of the Sentencing Act), with the result that at the end of that sentence he would have been left without the prospect of a supervised release.

58 As to the second and more important matter, given that his Honour had considered there was nothing positive to point to parole, it seemed to the members of the Appeal Court that the evidence of the appellant's mental condition did bear upon that in a way favourable to him. If his reasoning processes and suggestibility were impaired by his ingestion of Interferon in such a way as to contribute to the commission of the offences, then it would be preferable to ensure that his release into the community was supervised in circumstances in which there would then be a better prospect of an improved response to parole by him, given that he would by then have completed his course of medication. Their Honours consequently made an order for eligibility for parole.

59 In the present case, unlike what the sentencing Judge did in Orchard, it is only because his Honour ordered the sentence to be served cumulatively that the applicant is left with his parole eligibility days to be served at the end of the other sentences in respect of which no parole eligibility order was made. Insofar as the sentences were reduced in Orchard, that followed the identification of specific error in the exercise of the Judge's sentencing discretion in respect of a consideration unique to that appellant.

60 Biggers had been convicted of the same offences as Orchard, but with an additional armed robbery which he had committed on his own. He was sentenced to 2 years' imprisonment for the offence of stealing a motor vehicle and 8 years for each of the armed robberies. The sentences were ordered to be served concurrently, except for one of the armed robbery sentences which was ordered to be served cumulatively, making an aggregate of 16 years' imprisonment. No order for parole eligibility was made.

61 His offences were also committed whilst he was on parole and he had almost 3 years of his parole term to serve as a result of the cancellation of his parole.

62 Wheeler J (with whom Miller and E M Heenan JJ agreed) dealt first with the issue of parole. She observed that whilst the appellant's record gave rise to concern about his ability to benefit from parole, it had to be recalled at the same time that the longer the sentence imposed, the more difficult it is to prognosticate with any degree of confidence about the likely position of an offender at the time at which he might become eligible for parole. She said there were indications that the appellant was, however slowly, maturing and appreciating the seriousness of his conduct. She detailed a number of particular considerations leading to that view. She concluded that notwithstanding the reservations expressed in the pre-sentence report and the understandable concern arising from the appellant's past record and performance on parole, there was sufficient material before the sentencing Judge to suggest that, particularly if a lengthy sentence was imposed, parole eligibility should be ordered.

63 As to the overall sentence she acknowledged that a total term of 16 years was a very high one and such sentences were rare even where multiple armed robberies had been committed. Nonetheless, it was her view that the starting point of 12 years nominated by the sentencing Judge was appropriate having regard to the seriousness of the offences. However, in her Honour's view there was an error in the discount which had been given for the plea of guilty. That was because it was not merely a bare plea of guilty, but there was in addition a confession to offences which, so far as the appellant was aware, were at that time unknown to police. In her Honour's opinion a plea of guilty in circumstances of that kind would more appropriately attract a discount of the order of one-third. In addition, some allowance would have to be made for the appellant's cooperation with authorities and the serious personal difficulties in his background. She concluded that a sentence of 7 years in respect of each of the armed robberies would have been more appropriate.

64 Even so, it was still necessary to consider whether or not a different sentence "should have been passed". She pointed out it would obviously be inappropriate to apply the "one transaction" rule in respect of three separate armed robberies and a stealing offence and it would also be difficult to regard a sentence of 16 years' imprisonment, although severe, as "crushing". There were however, circumstances which led her to conclude that only one of the sentences should be made cumulative on the others. She accordingly substituted terms of 7 years' imprisonment in respect of each of the armed robbery offences with one of them to be served cumulatively, so producing a total of 14 years (again before the statutory one-third reduction).

65 As the headnote in Biggers states, the outcome on that appeal turned on its own facts. There were in his case particular reasons why it was thought he might in the future benefit from parole, as indeed there are in the present case, but the main consideration for the Court in light of that was the difficulty of prognosticating what the appellant's situation might be on the expiration on a sentence of 16 years' imprisonment. The relevant sentence in this case was 7 years' imprisonment.

66 These two cases establish no point of principle. Nor do they demonstrate "disparity" with the sentences imposed on the applicant. All three cases reflect the sort of differences which inevitably result from the tailoring of sentences to the circumstances of individual offenders.

67 I respectfully agree entirely with the observations made by Wickham J in Magee upon which the applicant relies. While I understand the applicant's submission that an effective finite term of imprisonment consisting of the 7 years imposed by Hasluck J and the 465 days still outstanding from the previous term, without parole eligibility, would be likely to deprive him of all incentive for reform and would therefore not be in his best interests nor those of the community, I am not, in the end, persuaded by it. However, I would accept his submission that the community interest would best be served by the applicant's eventual release being a controlled and supervised transition to life within the community. The reality is, though, that for the reasons I have explained, he will in fact be eligible for release on parole once he has served the 7 year term. The 465 days will be served thereafter - and that whole period is one in which he is and will remain, eligible for parole. So it is that, as the applicant himself pointed out, his release on parole will be a matter for determination by the Parole Board which will make that determination of his suitability at the appropriate time, and the onus rests squarely on the applicant's own shoulders to demonstrate his commitment to reform. Were he to so demonstrate during the 7 year term, there would presumably be no obstacle to his immediate release once that time is served.

68 As to the ground that the aggregate sentence (including the outstanding parole days) is manifestly excessive, the Judge expressly had regard to the overall effect of the combination of sentences. That was in accord with the judgment of the Court of Criminal Appeal in McLean (supra), to which he specifically referred.

69 In the aggregate, these sentences did not result in a term which was "crushing", nor were they disproportionate to the applicant's overall criminality manifested by the individual offences (Herbert v The Queen (supra)). The sentences were not therefore manifestly excessive in their combined effect.

70 On the ground going to parole eligibility in respect of the sentences imposed by his Honour, by s 89(4) of the Sentencing Act 1995 (WA), a sentencing Judge may refuse to make a parole eligibility order if he or she considers the offender should not be eligible for parole because of at least two of the following four factors:

(b) the offender has a significant criminal record;

71 His Honour found all four of those factors existed here. That finding was open to him. The offences of armed robbery of a pharmacy and a suburban agency post office, in company, whilst disguised with balaclavas and armed with a shotgun and a rifle respectively, and involving the use of abusive and insulting language, were undeniably serious offences. Likewise the applicant has a significant criminal record and not only had he failed to comply with the previous release order, but the instant offences had been committed less than two months after his release on parole. The applicant had not benefited from his parole eligibility on that occasion, having committed these particularly serious offences. It was open to his Honour to conclude the time had come to take "a firmer stand" in light of the fact that due to the applicant's previous lack of compliance and lack of personal insight, there was a real risk of re-offending and the welfare of the public had to be given priority. No error of fact nor of principle has been shown in the exercise of his Honour's discretion in this regard.

72 Nor can it properly be said his Honour failed to have regard to matters of mitigation. His Honour specifically referred to the contents of the antecedent report, a pre-sentence report and a related psychological assessment report. He referred to the submissions made by the applicant's counsel and to a personal letter written by the applicant as well as one from his mother. He recited the applicant's personal background and circumstances in some detail. In that context he noted that it appeared from this material that the applicant had arguably lost many of the social skills which assist a person in society, although he had managed to obtain employment. He noted the applicant had been willing to attend drug counselling programmes. He specifically allowed a discount of 25 per cent for the applicant's plea of guilty. No particular mitigating factor has been advanced to which it is said his Honour failed to have regard.

73 For the reasons set out above, no error has been shown in the exercise of his Honour's sentencing discretion. The appeal must fail. That being so, I would refuse the application for extension of time.

74 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.

Administration Act 2003