Court of Appeal (WA)|2004-08-19|Before: Mr P, McKechnie J, Murray J, Wheeler J

Neely v The State of Western Australia [2004] WASCA 209 (19 August 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEELY -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 209

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Endangering life of child - Whether excessive - Failure to take account of transitional provisions

Messiha v Royce [2004] WASCA 87

Orchard v The Queen [2004] WASCA 23

1 MURRAY J: I invite McKechnie J to deliver the first judgment.

2 MCKECHNIE J: On 9 February 2004 the appellant, a 28-year-old man, with a longstanding drug addiction and significant criminal record, especially for driving offences, and for stealing vehicles, was passing by a Shell service station in South Street, Fremantle. On the forecourt of the service station was a blue Holden Commodore sedan. The driver had just refuelled the vehicle and went inside the service station to pay. She left her 8 month baby strapped in the baby seat in the back seat while she did so.

3 The day was sunny and about 23 degrees. The appellant, noticing the keys in the ignition, got into the vehicle, started it, and drove off along Hampton Road. When he had gone some little way, he noticed the baby in the back seat. Instead of returning the baby, or contacting the police, or indeed anyone, he parked the vehicle in a side street, wound down the window, about 10 centimetres, so the baby would not become too hot, buried the keys, changed his clothes and then reported to the Fremantle police station as required under his current bail conditions. He then went home.

4 One can imagine the anguish of a parent on coming out of the service station to find the car and the baby gone. A search was mounted and about 2 hours later police found the vehicle. Fortunately, the child was located secure in the car seat, calm, although hot and sweaty. The humidity in the car at the time was between 91 and 95 per cent.

5 About 20 minutes later the appellant contacted the Fremantle police who attended at his home. He showed them where he had gone and what he had done. He was videoed, made full admissions, and pleaded guilty at the earliest opportunity. He was indicted and pleaded guilty to a count, under Criminal Code s 304, that he unlawfully abandoned a child and thereby endangered her life. At the time of the offence, s 304 provided that such a person was guilty of a misdemeanour and liable to imprisonment for 3 years.

6 At the time of sentencing, on 20 April 2004, the appellant pleaded guilty to a range of other offences, stealing offences in the main, and was dealt with under s 32 of the Sentencing Act. In relation to the indictable offence, the Judge said:

"The maximum sentence for this would be a sentence of three years' imprisonment and in your case I consider your behaviour

so inexcusable and serious that I would impose a sentence of two years' imprisonment."

7 On count 1, endangering the life of a child, the Judge imposed a term of imprisonment of 2 years from 9 February 2004, and declined to make a parole eligibility order.

8 In respect of the s 32 notice matters, the following sentences were imposed:

1 year and disqualified from holding a motor driver's licence for 2 years cumulative on current disqualification

9 These terms were ordered to be served concurrently with each other and cumulatively on the term imposed in respect of Count 1, making a total term of imprisonment for 3 years.

10 The appellant submits that the sentences are wrong on two grounds. A further ground is that the Judge erred in not making the appellant eligible for parole. The appeal must succeed on the second ground, with the consequence that the first ground simply falls away. The second ground is that the Judge erred by not reducing the term of imprisonment the appellant was sentenced to by one-third pursuant to the transitional provisions of the Sentencing Act 1995. The prosecution very properly concedes this error.

11 I am driven to the view that the Judge did not take account of the provisions of the Sentencing Act because otherwise, before adjustment, the sentence would have been one of 3 years which would have provided no mitigation for the plea of guilty or anything else.

12 The sentence of 2 years for count 1 must therefore be set aside and a sentence of 16 months imposed. For the same reason, I would intervene to reduce the other sentences from 1 year to 8 months, so that I would impose a total sentence of 2 years' imprisonment, having regard to the transitional provisions.

13 I turn now to the third ground, that the Judge erred in failing to make the appellant eligible for parole. The Judge addressed the question of parole in the course her reasons separately from the sentence. She referred herself to s 89(4) of the Sentencing Act and made findings that in fact all four factors were present. It is conceded that at least two of the factors were present. I say nothing about the fourth.

14 Looking at the matter, it seems to me that it was open to her Honour to reach the conclusion that this was a case where the natural bias towards parole eligibility should not be exercised. At all events, I am not persuaded that she erred in her appreciation of the facts or the exercise of her discretion.

15 Part of the antecedents of the appellant also happens to include those matters which are mentioned in s 89(4) of the Sentencing Act. I have considered the matter afresh, re-read the pre-sentence report, the psychiatric and the psychological reports. There is very little, if anything, which points positively to the making of a parole eligibility order. On the other hand, there are a number of matters which militate against it, chief of which is the appellant's past performance on parole and the fact that these offences, or some or them, were committed while on parole or on bail.

16 I have listened carefully to the arguments that Ms Lonnie has put forward. I think she has advanced everything that is capable of being advanced on behalf of the appellant in support of parole but I remain unpersuaded that the Judge's decision was wrong. Therefore I would not order parole in this case. I would, however, allow the appeal, set aside the sentences imposed and in lieu impose a sentence of 16 months for endangering the life of a child.

17 For the offence of stealing an amplifier (8610/03), I would set aside the sentence of 9 months and impose a sentence of 6 months'

imprisonment. For each offence of stealing a motor vehicle and of driving a motor vehicle without the relevant driver's licence, I would set aside the sentences of 12 months and in lieu impose sentences of 8 months' imprisonment, each of those sentences to be served cumulative on the sentence imposed for endangering the life of a child, but concurrently with each other, making a total sentence of 2 years' imprisonment. The driver's licence disqualification is not appealed and continues as does the order deeming the sentence to commence on 9 February 2004.

18 MURRAY J: I agree and have nothing to add to his Honour's reasons except the observation that as to ground 3, and the question of the exercise of the discretion in relation to parole eligibility, I am not persuaded that her Honour failed to exercise the discretion properly in accordance with the terms in which it was conferred upon her. It seems to me that, having regard to all the relevant circumstances, which in my view her Honour gave consideration to, the conclusion to which she came that parole eligibility should be denied in this case was one which was well open.

19 WHEELER J: I am in agreement with both McKechnie J and the additional observations of Murray J.

Neely v The State of Western Australia [2004] WASCA 209

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Judgment (31 paragraphs)

Neely v The State of Western Australia [2004] WASCA 209 (19 August 2004)

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