Sentencing Act 1995 (WA), s 39(3), s 76

Ginn v R [2000] WASCA 95

Keatley v R [2000] WASCA 30

R v GP (1997) 18 WAR 196

R v Liddington (1997) 18 WAR 394

R v Michinton (1998) 104 A Crim R 465

Van de Worp v R [2000] WASCA 154

1 WALLWORK J: I agree with the reasons for judgment of Parker J and to the order proposed by his Honour.

2 PARKER J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court sitting at Broome on 22 February 2000. The applicant, who had been indicted with another person, pleaded guilty to two of three counts alleged against him. The crown accepted these pleas in satisfaction of the indictment. The applicant pleaded guilty to two counts of stealing from the State of Western Australia each committed in early 1997. The first was of stealing one geological fossilised dinosaur footprint from the Crabb Creek area in the northwest of this State near Broome. The second was of stealing two geological fossilised human footprints from the Lombardina area in the northwest of this State near Broome.

3 The applicant entered the pleas of guilty on 21 February 2000. On 22 February the applicant was sentenced to two years imprisonment on each of the two counts. The terms were ordered to be served concurrently and there was an order for parole eligibility.

4 The applicant went to Crab Creek and removed a fossilised dinosaur footprint which was approximately 120 million years old from its natural state in a rock formation just below high water mark by using an angle grinder powered by a portable generator to cut out a slab of the rock which contained the footprint. On another occasion, using the same equipment and technique, the applicant went to the Lombardina area and took two fossilised Aboriginal footprints approximately 9,000 years old from another rock formation below high water mark. His principal motivation was that he was short of money and he planned to sell the footprints.

5 The applicant made attempts to try and sell the footprints by approaching collectors in Australia. His attempts were unsuccessful. The value of the footprints in dollar terms, when removed from their natural location, cannot readily be determined. There is not an established market for such collectors' items. Official collectors would not be interested in these footprints because of their provenance. The material available to the sentencing Judge revealed that the applicant had tried to sell the three footprints for some $250,000, and the individual footprints for $100,000 each. The notion of seeking to ascribe to these artefacts a dollar value,

while of some relevance to the applicant's motivation for his conduct, does distort and trivialise the true significance of what occurred.

6 The police, having become aware that the applicant may have had footprints, conducted a series of searches with a view to locating the footprints, but these were unsuccessful. After his house was searched the applicant gave the dinosaur footprints to another person, and the Aboriginal footprints to persons whom, it seems, may have arranged for their return to the sea from which they came which was a means of quieting some Aboriginal concerns about their removal from the rock bed. The dinosaur footprint has since been handed to the police but the Aboriginal footprints have not been recovered.

7 Before the trial Judge, Wisbey DCJ, it was conceded for the applicant that terms of imprisonment were appropriate in all the circumstances of the case. Thus the essential issues before his Honour of the length of the terms of imprisonment and whether service of those terms ought to be suspended. Wisbey DCJ was not persuaded that service of the sentences he imposed should be suspended.

8 Quite a deal of attention was devoted in the course of submissions to the principles which should guide the exercise of the discretion to suspend the service of a term of imprisonment. In his Honour's sentencing remarks it is clear that his Honour felt compelled, primarily, by the seriousness of the conduct, and also the need for general deterrence and what the community would regard as appropriate punishment for the type of behaviour in question, to the view that the terms of imprisonment needed to be served immediately. His Honour then set out his reasons for deciding that concurrent terms each of two years imprisonment, with parole eligibility, were appropriate.

9 The recent decision of the High Court in Dinsdale v The Queen [2000] HCA 54 has done much to clarify the law as to many of the issues canvassed in the course of argument. Rather than traverse the arguments it is now sufficient to note that the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially to the effect which suspension would have on rehabilitation of the offender is not an appropriate approach; Dinsdale (supra) at [84]. Rather, the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term. It would appear that "double weight" may thus be attributed to factors relevant to the offence and to the offender - whether aggravating or mitigating - which may influence or determine the decision whether to suspend the term of imprisonment; Dinsdale at [84] and [85] per Kirby J, Gaudron and Gummow JJ concurring at [26]; note also Gleeson CJ and Hayne J at [18].

10 Unfortunately, the reasoning of their Honours in Dinsdale may leave open the possibility of some difference of understanding whether a particular order of approach must be followed by a sentencing Judge when considering whether or not a suspended sentence is to be imposed; compare Kirby J at [78] - [80], Gaudron and Gummow JJ apparently concurring at [26], with Gleeson CJ and Hayne J at [13] and [16].

11 This may seek to read too much into the observations at [13] and [16], however, as it is clear from [12] that their Honours were concerned to identify the error in deciding that a term of imprisonment should be imposed and in then concluding that because "there was no rehabilitation process going on which merited the support of a suspended sentence" there was no reason shown which "dictated a merciful disposition of the case", ie by suspending the sentence. As their Honours said at [13]:

"13. This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed ... Only if satisfied it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately ..." (emphasis added)

"15. No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment." (emphasis added)

12 The range of sentencing options available to a court, when sentencing a natural person, is set out in s 39(2) of the Act in ascending order of severity; the last two being:

"(f) under Part 11 impose suspended imprisonment and order the release of the offender; or

(h) under Part 13 impose a term of imprisonment."

[NB (g) has been deleted]

By s 39(3) it is provided that:

"A court must not use a sentencing option in subsection (2) unless satisfied ... that it is not appropriate to use any of the options listed before that option."

Section 6(4) of the Act applies to both sections 39(2)(f) and (h) - see s 77(6). It provides:

"A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it."

13 Section 76 provides:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) Suspended imprisonment is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order (as defined in Part 13); or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended."

14 The power of a sentencing court to order that a term of imprisonment be suspended is thus confined to a sentence of imprisonment of 60 months or less. When more than one sentence of imprisonment is imposed by the court at the same time, however, even if each of the terms is 60 months or less, the terms may not be suspended if their aggregate exceeds 60 months. Section 76(1) seems to require, therefore, that before a court can decide whether it is open to impose suspended imprisonment it must consider the term or aggregate of terms to be imposed and, to do that, by s 76(2) the sentencing court must first consider and determine whether a, and if so what, term or terms of imprisonment would have been appropriate if it were not possible to suspend imprisonment.

15 The precise terms of the conferral of power to suspend a term of imprisonment in s 76(1) are also consistent with there being two steps in the process. First, the imposition of a sentence of a term of or terms of imprisonment and, secondly, a decision whether or not there should be an order that the term or terms imposed be suspended for a period set by the court.

16 Thus, in my respectful view, the processes required by the statute are not well adapted to being approached in a precise order by which suspended imprisonment is first considered in isolation, without having regard to the more severe sentence of a term of imprisonment, the latter being considered only if and after the sentencing court has satisfied itself pursuant to s 39(3) that suspended imprisonment is not appropriate.

17 If this view should be correct it remains fundamentally important, however, that the sentencing court respect the injunction of s 39(3). The court must not impose a term of imprisonment which is not suspended, ie which is to be served immediately, unless satisfied that a sentence of suspended imprisonment is not appropriate.

18 For the purposes of this application, in my respectful view, what appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider s 6(4) and s39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when s 6(4) and s 39(3) are considered but, that they be properly considered.

19 In the present case Wisbey DCJ came early in his sentencing remarks to consider both s 6(4) and s 39(3). In the result, he was satisfied that a sentence of imprisonment was "the only proper way to deal with this offending behaviour" and that it "needs to be immediately served". I have already noted the three factors which his Honour identified as persuading him that a suspension of sentence was not appropriate. It seems clear, from what was said in Dinsdale, that these are factors which might properly have been considered by his Honour for this purpose. The remarks regarding suspension were not limited to those three matters, however, as his Honour also noted his consideration of the circumstances of the offences, aggravating and mitigating factors and the submissions of the applicant's counsel in support of suspension.

20 As indicated earlier it is submitted that his Honour's consideration of suspension miscarried. The essence of the applicant's case is that the concurrent sentences of imprisonment for two years could not properly have been imposed by his Honour, such sentences not being open to him in the proper exercise of discretion. It is necessary to bear in mind at the outset of a consideration of this submission, therefore, the principles which govern the approach on appeal in these circumstances. These have long been settled. As was said 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 appellant 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."

In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 72 it was further noted that:

" ... a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion ... The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."

21 With respect to suspension, it is the applicant's case that his Honour erred in his appreciation of the true seriousness of the nature and circumstances of the offence and by failing to weigh adequately a number of factors which it is submitted should have persuaded his Honour that a suspended sentence of imprisonment was appropriate.

22 His Honour's sentencing comments reveal that his Honour was well aware of the nature and circumstances of the offence and of the applicant's past record of convictions, and that he had weighed the antecedent report which set out in some detail the applicant's personal and family circumstances and his background, and that he had given consideration to the circumstances submitted in mitigation by counsel. Although the circumstances of the commission of the two offences could have justified cumulative terms, his Honour was persuaded to treat them as manifestations of the one course of criminal conduct and to order concurrent terms. His Honour was not persuaded, however, that the offences were an aberration and concluded from the applicant's past record that these offences were indicative of an ongoing attitude of the applicant to his responsibilities as a member of society.

23 It was submitted, in particular, that his Honour ought to have been persuaded that a suspended sentence was appropriate. A number of matters, it was submitted, should have commended this view. I will comment on each in turn.

24 First, his Honour expressly had regard to the principle that imprisonment was a punishment of last resort, a principle enshrined in s 6(4) of the Act, and which applies both to a suspended sentence of imprisonment and to a term of imprisonment to be served immediately. It is not the case that this was not considered. The issue is whether it was open to his Honour to conclude, as he did, that these offences were so serious as to require a sentence of imprisonment. For reasons which follow it is my view that this view was properly open to his Honour. In any event this was accepted by the applicant's counsel before his Honour. It appears that this contention is really seeking to apply this principle to distinguish a suspended sentence from a term of imprisonment to be served immediately. If so, it seeks to misapply the principle which does not distinguish between these two forms of sentence.

25 Secondly, it is submitted the applicant had not been convicted previously of an offence of a similar nature and that thirdly, there was no likelihood that he would re-offend. The applicant had, however, convictions for a number of stealing offences, for being on premises without lawful excuse and for being in the curtilage of premises without lawful excuse, for two offences of receiving, five counts of burglary, unauthorised use of a motor vehicle and for stealing a motor vehicle, as well as a variety of other offences of various types including both the possession and cultivation of cannabis, firearms offences and assault occasioning bodily harm. He had been sentenced in the District Court in 1994 to terms of 18 months imprisonment for burglary offences, for receiving and for stealing a motor vehicle, although it should be noted that he had not been sentenced to further imprisonment since 1994. When he was before the District Court for this offence there were further drug offences pending for which the applicant has now been sentenced to a period of 7 years imprisonment, a matter specifically raised by the second ground of appeal. While the applicant's record spans many years and many of the offences are of little or no relevance for present purposes, it may be concluded from his record that the applicant was no stranger to offences of dishonesty and that his overall pattern of offending offers no encouragement for leniency or for a prediction that he will not re-offend. It can be accepted, however, that his record does not indicate any previous theft of fossilised material and this present experience may discourage him from further thefts of fossilised material.

26 It is contended, fourthly, that the applicant did not profit from these offences. That is in fact the case but the force of this point is substantially negated by the applicant's motivation for the thefts and his attempts to sell the fossilised material for a sum of a quarter of a million dollars.

27 Fifthly, it is submitted the applicant did plead guilty to the offences at the time of trial. He did so, but only at the commencement of his trial and in the face of quite a strong prosecution case. The sentencing Judge was well cognisant of this consideration, nevertheless, and saw in it an indication of some remorse and expressly took it into account.

28 It is further contended, sixthly, that while the fossilised footprints the subject matter of the charges were valuable and rare there were not "peculiarly unique or irreplaceable". The material placed before the sentencing Judge showed that the footprints were of significant value as part of our world heritage and, of course, our own national heritage, their scientific value having particular significance because of the age of these fossilised footprints and because they formed part of the most diverse concentration of such footprints in the southern hemisphere. It was of particular significance that these footprints had been preserved in their natural location. Their disturbance and removal significantly adversely affected a great deal of their scientific value and uniqueness. In particular, the three footprints were among those which lay just below high water mark, whereas others were above high water mark. Below high water mark the rock is harder and erosion is less so that these footprints were better preserved than those above high water mark. Hence, it is true that, as there are others, the three footprints were not "peculiarly unique". In their former natural condition, however, they were irreplaceable. This submission, however, is founded in somewhat misleading distinctions. The footprints were of great scientific and heritage value and rarity and of considerable cultural significance to Aboriginal people particularly in their natural condition and location. The applicant's hopes of very substantial financial gain has thus had a devastating effect on all of this. While it is the case that there are other footprints in the region, the seriousness of the consequences of the applicant's pursuit of personal financial gain is of lasting significance to the wider community. This was duly recognised and weighed by his Honour. His Honour's remarks indicate he had a clear and appropriate appreciation of the nature and significance of the footprints and that they were not unique. His observations do not suggest his Honour was under any misapprehension in this respect. Had the footprints been truly unique his Honour would, no doubt, have taken a much more serious view of the applicant's conduct.

29 Seventhly, in a somewhat similar vein, it is submitted there was no evidence of traditional or ethnic parties being offended. It must be observed, first, that his Honour did not suggest to the contrary and did not refer to any such matter as relevant to his appreciation of the seriousness of the offence. There was, in the material placed before his Honour for sentence, adequate support for the observation, which he did make, that the applicant was well aware of the cultural significance of the footprints to Aboriginal people, and that this importance was for the footprints when in situ.

30 It is next submitted that the offences were not so prevalent or serious as to require a penalty of general deterrence. His Honour did not suggest that prevalence was an issue in his reasoning; his decision is founded primarily in the seriousness of the applicant's conduct. In my view, it was well open to his Honour to regard this pre-planned and somewhat skilfully executed removal of these artefacts of such heritage and cultural value, and the knowledgeable attempts thereafter to sell them for such very substantial sums, as marking criminal conduct which was both very serious in itself and conduct which well warranted a clear indication at sentencing that it would not be tolerated. The value of such items, especially in situ, in the long term for our society and the vulnerability to removal or abuse because of their nature, their isolated locations and their potential commercial value if removed, commended the need and importance of a sentence of general deterrence.

31 It is further submitted that a suspended term of imprisonment would have been deterrent enough. For the purposes of the Act, a suspended term of imprisonment is the second most serious sentencing option available to a court in this State; see s 39(2). Even so, by Part 11 of the Act, the effect of such a sentence is the immediate release of the offender into the community without supervision or restriction and, unless the offender commits a further offence, the statutory penalty for which is or includes imprisonment, during the suspension period, the offender is discharged entirely from the sentence at the end of the suspension period (which cannot exceed two years). In most cases a suspended sentence involves neither custodial nor coercive consequences.

32 It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately. As was observed by Kirby J in Dinsdale v The Queen (supra) at [74] "The [c]onceptual [i]ncongruity involved in this form of sentence has been criticised" and "It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all".

33 A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong.

34 While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate. That was the view taken by his Honour in this case. It cannot be concluded, in this respect, that the exercise of his discretion was faulty.

35 Lastly, the applicant seeks to rely on the decision of the trial Judge to remand him on bail for sentence, pending completion of the trial of the co-accused, as evidence of his Honour's conclusion that there was a strong likelihood of the imposition of a non-custodial sentence, see Part C, Item 4, Schedule 1 of the Bail Act 1982. Hence, in the absence of some other supervening adverse factor, it is submitted that a non-custodial sentence should have been imposed.

36 This is a rather unconvincing, indeed somewhat desperate, argument. His Honour was faced with a last minute plea of guilty by the applicant when he and his co-accused were arraigned. A jury was about to be empanelled and counsel and witnesses were ready for the trial to proceed. Without having received any details of the circumstances of the applicant's offences or any submissions in support of the application for bail, and in the complete absence of any submissions as to possible penalty and, indeed, in the absence of most of the material relevant to sentence, his Honour pre-emptorily agreed to remand the applicant on bail overnight. The next day his Honour heard the facts relevant to the applicant's offences and submissions as to penalty. He then imposed the present sentences.

37 The events just outlined do not provide any satisfactory basis on which it could be concluded that his Honour had adequate knowledge of the circumstances of the offences or of the applicant to have formed any considered view as to the likely penalty. He reacted to the exigency of the unexpected pleas of guilty and the need to get on with the trial of the co-accused. He did so in an understandable way and without his attention having been drawn to the relevant provision of the Bail Act.

38 Some reliance was sought to be place on Thompson and Owen v R (1998) 105 A Crim R 150 at 157, but the circumstances are so markedly different that this decision is of no real relevance or assistance in the present case.

39 In my view the decision to grant overnight bail is most likely to have been a reaction to the unusual circumstances with which his Honour was then faced, see cl 4(b) of Schedule 1 of the Bail Act, than to be any indication whatever that his Honour had then formed any view as to the likelihood of a non-custodial sentence being imposed. It may have been a decision made somewhat in haste and without due reference to the provisions of the Bail Act, but in my view it offers no support of any value to the applicant's case on this appeal. It is the propriety of the view formed by his Honour, after he had heard the facts and had received submissions for the purposes of sentence, and had considered these, which is material to this appeal.

40 These are the matters which it is submitted ought to have persuaded his Honour to the view that a suspended sentence was appropriate in the present case. In my view they are not persuasive, individually and collectively, that his Honour ought to have been satisfied that a suspended sentence of imprisonment was appropriate so as to reveal error in the imposition of terms of imprisonment to be served immediately. In my view of these matters it was well open to his Honour to reach the view that a term of imprisonment to be served immediately was the only appropriate sentence.

41 While the question of leave in a case such as this is not to be decided merely on the basis of what judges on appeal would have themselves done, I would have been persuaded to take the same view as his Honour that suspension was not appropriate had I been sentencing at first instance and also were I called on to re-sentence on appeal.

42 The alternative ground is advanced that the individual terms of 2 years imprisonment were excessive. The arguments relied on in support of this ground are among those already considered with respect to ground 1 and there is no need to restate them or to consider them further. It is my view of the circumstances of the offences and of the applicant that he was somewhat fortunate that more lengthy terms were not imposed. I am certainly unable to conclude that the terms of 2 years were excessive and so excessive as to be outside the appropriate range in the circumstances of this case.

43 In this connection the argument is also advanced that the excessive nature of these sentences is particularly evident as, since these sentences were imposed, the applicant has been further sentenced to terms totalling 7 years imprisonment for drug offences; the 7 years having been ordered to be served cumulatively on the terms totalling two years the subject of this application. This contention involves a reversal of relevant issues. The question whether the two concurrent terms of 2 years imprisonment are excessive is to be viewed at the time the sentences were imposed and not in light of any further sentences subsequently imposed. The question of the total effect of the terms of two years and the subsequent sentences is an issue to be considered at the time of the subsequent sentencing. The totality principle may then, in an appropriate case, lead to some moderation of the subsequent sentences or to an order for them to be served wholly or partly concurrently with the earlier sentences. These are not matters appropriate to the consideration of this present application.

44 For these reasons I would refuse leave to appeal.

45 McKECHNIE J: I have read the reasons to be published by Parker J. I agree with those reasons and have nothing further to add.