R v Pooter [2001] WASCA 67

Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997

Ord v The Queen, unreported; CCA SCt of WA; Library No 950535; 19 October 1995

R v Thomson & Anor (1998) 105 A Crim R 150

R v Wiltshire [1999] WASCA 113

Steer v The Queen, unreported; CCA SCt of WA; Library No 980739; 1 December 1998

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 JUDGMENT OF THE COURT: This is a Crown appeal against sentence. At the conclusion of the hearing of argument on the appeal the court unanimously dismissed the appeal. These are our reasons for arriving at that conclusion.

2 The respondent was, after a trail by jury, convicted, on 8 September 2000, on one count of stealing a motor vehicle and another of aggravated robbery. Some five weeks later he pleaded guilty to two charges of driving without a valid driver's licence, two charges of attempting to steal a motor vehicle, one charge of possession of an unlawful implement, one charge of stealing a motor vehicle and one charge of stealing. The offences of which he was found guilty were committed on 1 August 1998. Those to which he pleaded guilty were committed on 4 September 1998.

3 The respondent was, at the time of his commission of these offences, aged 24. He had, by then, already a troubled history. He had a large number of prior convictions, including convictions on two charges of burglary, one of driving a motor vehicle while his driver's licence was suspended and three of car theft. Moreover, the current offences were committed while he was on parole in respect of prior offences. His parole was revoked and he was returned to prison where he stayed until 6 September 1999.

4 The sentences against which the Crown appeals were imposed upon the respondent more than 12 months later, on 16 October 2000. He was fined $200 in respect of the charge of possession of an unlawful implement (a screwdriver used to assist him in breaking into cars). In respect of each of the other offences he was placed on an intensive supervision order for a period of 24 months. He was also ordered to carry out 240 hours of community work and was required to undergo counselling, assessment, testing and treatment in respect of the use of drugs (which had contributed to his offending) and any other counselling which might be required by the Department of Community Corrections. In addition, he was disqualified from holding a driver's licence for a period of 18 months in respect of each of the two charges of driving without a valid driver's licence.

5 The Crown contends that these sentences were manifestly inadequate. It says that they failed to reflect the serious nature of each of the offences charged, particularly that of stealing with violence, especially having regard for the fact that they were committed while the respondent was on parole after being convicted of similar offences.

6 The offence of stealing with violence was particularly serious. It was committed in a carpark adjacent to the Kingsley shopping centre. The complainant had been doing some shopping and opened the boot of her car in order to load bags of groceries into it. She had a handbag hanging over her left shoulder. The respondent and an accomplice were nearby in a stolen motor vehicle. The respondent was driving the stolen vehicle. He drove it close to the complainant. His accomplice grabbed her handbag and the respondent drove off. However the complainant was caught up on the strap of her handbag and was dragged along behind the stolen car for a short period of time before the handbag was wrenched off her shoulder. She suffered abrasions on her left arm.

7 There is no doubt that, when regard is had for the seriousness of the offences of which the respondent was convicted, particularly that of aggravated robbery, and given both the fact that those offences were committed when he was on parole after having served time in prison for other serious offences and the fact of his poor record, the respondent was extraordinarily fortunate not to have been sentenced to a period of imprisonment. People who commit offences of this kind can ordinarily expect not only to be sent to prison but to spend a considerable length of time there.

8 However the circumstances of this case are unusual. The offences in respect of which the respondent was sentenced on 8 September 2000 had been committed some two years before that. He had, as we have said, been out of prison at the time of sentencing, for more than 12 months. Much had changed in that time. He had disassociated himself from his former friends. He had got a permanent job. He had formed a stable relationship with a young single mother who appears to be a positive influence on him. He has successfully abstained, since 6 September 1999, from drug abuse and he has moderated his consumption of alcohol. He continues to have the support of a stable and caring family.

9 We should add that the learned sentencing Judge had commissioned a pre-sentence report and a psychological report. Each of these was somewhat ambivalent about the respondent. The pre-sentence report questioned whether the respondent had achieved any significant change in attitude regarding his offending behaviour and said that his prospects for satisfactory compliance with an order for community supervision were uncertain. The psychologist, while saying that "the signs are good" did not believe that the respondent had achieved a significant change in attitude which would warrant total confidence that he would not reoffend in the absence of continued strict supervision. The latter report was dated 28 September 2000 and the former 10 October 2000.

10 While these reports do express some doubt as regards the respondent's future, the fact is that in the more than four months since then he has continued to maintain the more positive lifestyle to which we have referred. He has continued to live with his parents, he has kept his job, maintained the stable relationship to which we have referred, paid his fine, satisfied restitutionary orders which were made against him, commenced his community service and completed a substance abuse course at Holyoake Institute.

11 In these very unusual circumstances in which, now, almost two and a half years have passed since these offences were committed, in which the respondent has been out of prison and maintaining a positive lifestyle for almost a year and a half and in which he will continue to be intensively supervised for a further period of 20 months (the balance of the term imposed by the learned sentencing Judge) it seems to us that it is not in the best interests of the community or of the respondent for him now to be returned to prison, more particularly having regard for the fact that this is a Crown appeal and the respondent has now twice experienced the jeopardy and trauma of the sentencing procedure (as to which see R v Catts (1996) 85 A Crim R 171 at 176 - 177 and R v Grein [1989] WAR 178 at 180).