Court of Appeal (WA)|2001-10-10|Before: Lure J

Sheppard v Blakey & Ors [2001] WASCA 309 (10 October 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHEPPARD -v- BLAKEY & ORS [2001] WASCA 309

Criminal law - Sentence - Totality principle - Appeal against refusal to make parole eligibility order - Turns on its own facts

Offenders Community Corrections Act 1963 (WA), s 37A

Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997

Herbert v The Queen (1989), unreported; CCA SCt of WA; 26 May 1989; SCL7676

Reppas v The Queen, unreported; SCt of WA; Library No 970221; 15 May 1997

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

1 McLURE J: On 14 March 2001 at the Court of Petty Sessions Perth, the appellant was convicted of the following offences:

1. on 15 February 2001 at Welshpool he drove a motor vehicle ... whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle contrary to s 63(1) Road Traffic Act 1974.

2. on 15 February 2001 at Welshpool he drove a motor vehicle ... without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974.

3. he failed to appear in the Perth Court of Petty Sessions on 20 February 2001, such appearance being a requirement of a bail undertaking entered into by him on the 15th February 2001 contrary to s 51(1) of the Bail Act 1982.

4. on the 22 February 2001 at Kelmscott he drove a motor vehicle ... with a percentage of alcohol in his blood equal to or exceeding 0.08 per centum, namely, 0.138 per centum contrary to s 64(1) of the Road Traffic Act 1974.

5. on the 22nd day of February 2001 at Kelmscott he drove a motor vehicle ... without being the holder of the appropriate valid driver's licence for that class of vehicle whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974.

6. he failed to appear in Armadale Court of Petty Sessions on 27 February 2001, such appearance being a requirement of a bail undertaking entered into by him on the 22 February 2001 contrary to s 51(1) of the Bail Act 1982.

2 The appellant pleaded guilty to the charges. The learned Magistrate sentenced the appellant to imprisonment for 21 months and refused to make a parole eligibility order.

3 Miller J granted leave to appeal on 7 August 2001. The grounds of appeal are:

1. The Learned Magistrate imposed a sentence that was manifestly excessive.

The Learned Magistrate erred in failing to apply the "totality principle".

2. The Learned Magistrate erred by refusing to make a parole eligibility order.

(a) the Learned Magistrate failed to take into account the personal and family circumstances of the Applicant in considering eligibility for parole.

(b) the Learned Magistrate failed to take into account the fact that the Applicant had never had a sentence with parole previously in considering eligibility for parole.

(c) the Learned Magistrate failed to consider the benefit a parole order might have on the Applicant's rehabilitation and, in particular, the benefit that could be obtained through supervision in the community and the participation in an alcohol counselling program while on parole.

(d) the Learned Magistrate took into account an irrelevant consideration, namely, a deduction of 6 months from the sentence for the early plea of guilty in considering the appropriateness of parole.

(e) the Learned Magistrate failed to invite counsel for the Applicant to make submissions as to why an order for parole should be made.

(f) the Learned Magistrate failed to order a pre-sentence report.

4 The facts as stated by the prosecutor were admitted. On 15 February 2001, the appellant was stopped by the police as he was driving along Leach Highway, Welshpool. The appellant had an open stubby of beer on his lap. The appellant was taken to the Cannington police station and it was calculated that he had an alcohol reading of .176 at the time of driving. The reason he gave for driving was that he was going to the Shelley Bridge to do some fishing. The appellant was granted bail. The appellant drove again on 22 February 2001. He was stopped by the police. A breath analysis test was conducted which showed that his blood alcohol level was .138 at the time of driving.

5 The appellant's record of convictions disclose that he has, inter alia:

(i) three prior convictions for a breach of bail (8/93, 4/99, 4/00);

(ii) one prior conviction for breach of a condition of a bail undertaking (6/96);

(iii) three prior convictions for driving with a blood alcohol level in excess of .08 per cent (6/90, 12/90, 7/93);

(iv) two prior convictions for driving whilst under suspension (one conviction being a fines suspension) (4/99, 4/00);

(v) five convictions for driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle (4/89, 6/90, 12/90, 12/91, 8/93); and

(vi) four convictions for driving under the influence of alcohol (12/91, 8/93, 4/99, 4/00).

6 The appellant had breached probation in 1996 and breached a suspended sentence in 2000. At the time of the offences he was 28 years old and (with his partner) had four children all of whom were under six. He had been working part-time with his father as a plant operator. Counsel for the appellant informed the Court that the appellant was an alcoholic who had had a drinking problem since 1988. The Court was informed that the appellant was aware of his drinking problem, wanted to address it and planned to do so. The appellant's counsel said the appellant accepted there were no excuses for his conduct but asked the Court to take into account when considering sentence and the question of parole that his partner and children were struggling in his absence and the appellant was aware that alcohol was destroying his life.

7 After referring to the appellant's history, the Magistrate said:

" ... I consider somebody who persistently drives against the rules with alcohol in his system, does so when he is on bail for the offences, and the history of one who continually offending, and there's really no - - nothing in sight which indicates that that behaviour is going to stop, loses the privileges that otherwise might be available to him, Mr Sheppard. Parole is a right arising from some expectation of the rehabilitation. I don't see that in your case."

8 After sentencing the appellant on each charge, the Magistrate continued:

"That's 21 months, Mr Sheppard, and in the circumstances of this case I consider it is no longer appropriate for parole, taking into account I've deducted a total of 6 months off your sentence for your early plea of guilty."

9 As to the first charge, s 63(2)(e) of the Road Traffic Act provides for a third or subsequent offence, a fine of not less than 40 PU or more than 100 PU or imprisonment for 18 months. In any event, the court convicting the person shall order that he be permanently disqualified from holding or obtaining a driver's licence. The Magistrate imposed 6 months' imprisonment and ordered (as he was required to do) that the appellant be permanently disqualified from holding or obtaining a driver's licence.

10 As to the second charge, s 49(3)(a) of the Road Traffic Act provides for a fine of not less than 20 PU or more than 80 PU and imprisonment for not more than 18 months. The Magistrate imposed a term of imprisonment of 6 months which was made cumulative upon the term imposed for the first charge.

11 On the third charge (breach of a bail undertaking), the appellant became liable to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both (s 51(1) and (6) of the Bail Act 1982). The Magistrate imposed a term of imprisonment of 3 months to be served concurrently with the other terms.

12 On the fourth charge (driving while having an excess of .08 per cent alcohol in his blood) he was fined $1,200 and disqualified from holding or obtaining a driver's licence for two years.

13 On the fifth charge (driving whilst disentitled on 22 February 2001), the Magistrate imposed a term of 9 months' imprisonment.

14 On the last charge of failing to answer bail, the Magistrate imposed a term of imprisonment of 3 months cumulative on the other terms.

15 The principles on which an appellate court must act when considering an appeal against sentence are well known. If the sentencing Judge acts upon a wrong principle or takes into account extraneous or irrelevant matters or mistakes the facts or does not take into account relevant matters, then the decision of the sentencing Judge should be reviewed and the appellate court may exercise its own discretion in substitution for that of the sentencing Judge if it has the materials for doing so. Further, if the result is unreasonable or unjust, error may be inferred: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

16 An appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Judge. There must be a material error of fact or law discerned in the reasoning or the circumstances of the case require a different decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672.

17 Further, to determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of the seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.

Manifestly Excessive - The Totality Principle

18 The appellant did not dispute the appropriateness of the penalties for the individual offences. However, he said the total sentence of 21 months' imprisonment infringed the totality principle. That principle was considered by the Full Court in Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993. Murray J said (at 6):

"As to [the totality] principle, the High Court in Mill v R (1988) 166 CLR 59, 63 adopted with approval what is described as the succinct statement of the principle contained in Thomas, Principles of Sentencing, 2nd Ed (1979) 56-7. ... It was simply put that where a number of sentences are to be passed and ought to be posed consecutively, it is not sufficient to simply conclude that each sentence individually is properly proportionate to the gravity of the offence. The court must look, so it is said, at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. That is a statement which refers to the application of the principle when a number of sentences are to be passed on one occasion and so the High Court said at 63:

'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.'"

19 The aggregate sentence must fairly and justly reflect the total criminality of the offender's conduct and be proportionate to the degree of criminality involved. In this case, although the offences are closely connected in nature and circumstance, they are quite separate in time. The offences under s 49 and s 63 of the Road Traffic Act are part of a continuing course of conduct reflecting a continuing attitude of disobedience to the law. Further, in drinking and driving, the appellant is a danger to the public. In the circumstances there was a need to impose a deterrent penalty: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477; Cardillo v Taylor [1999] WASCA 166; (1999) 29 MVR 301 at 305 - 306. Having regard to the nature and circumstances of the offences and the circumstances of the appellant, the aggregate sentence of 21 months was within the scope of the proper exercise of the sentencing discretion. Accordingly, ground of appeal 1 fails.

20 Section 89 of the Sentencing Act 1995 gives the court a discretion, if it considers it is appropriate to do so, to order that an offender be eligible for parole by making a parole eligibility order. Subsection (2) of s 89 identifies the factors that a court may have regard to in determining whether it is appropriate to make a parole eligibility order. Those factors include:

(b) the circumstances of the commission of the offence;

(d) the circumstances relevant to the offender or which, in the Court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made.

21 The exercise of the discretion to order eligibility for parole under the Sentencing Act is to be approached in the same way as the exercise of the discretion under the former Offenders Community Corrections Act 1963 (WA) s 37A and the authority of Thompson v The Queen (1993) 8 WAR 387 remains undiminished. The principles are well known and it is unnecessary to repeat them all. One of the principles is that the discretion to order eligibility for parole cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole but nonetheless the philosophy of the Act suggests a bias towards eligibility.

22 The focus of the appellant's oral submissions was that the Magistrate had failed to consider the matters in s 89(2)(d) of the Sentencing Act in that he failed to prognosticate circumstances which might be relevant to the appellant at the time when he would be eligible for release on parole thereby recognising the relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other. It was said that if the Magistrate was sceptical about the appellant's stated preparedness to address his alcohol problem or to respond under supervision, the appropriate course would have been to order a pre-sentence report which he did not do.

23 An error of law by reason of a failure to consider a matter will arise when a decision maker is under an obligation to consider the matter. Whether there is such an obligation depends (in this case) on the proper construction of s 89 of the Sentencing Act and the scope and purpose of the power to order eligibility for parole. Further, if a decision maker is not sufficiently advised of the facts to make the relevant decision, that will constitute an error of law: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 44 - 45. It is in this context that the failure to order a pre-sentence report has to be considered.

24 The subject of pre-sentence reports was addressed in Thomson v The Queen (above). The court said (at 396 - 397):

"The court has frequently pointed out that as the effect of the grant of parole is to reduce the term to be served in prison substantially, the refusal to make an order for eligibility has serious consequences for the offender: ... This is one of the factors which has led the courts, again on a number of occasions, to stress the desirability of obtaining a pre-sentence report where a refusal to order eligibility for parole is a serious possibility. The failure to do so cannot itself be a ground of appeal but it might reinforce a contention that the trial Judge miscarried in his discretion because he was not sufficiently advised of the facts ... "

25 The failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered. This is particularly so in the Court of Petty Sessions where a Magistrate is not obliged to give full and detailed reasons on all aspects of the decision-making process. The reasons may be stated shortly without being developed in detail. It is sufficient if they disclose the essential intellectual process by which the decision was arrived at: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248; R v Nevermann (1989) 43 A Crim R 347 at 350. In the absence of credible evidence to the contrary, it is to be assumed that the Magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998; Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567 at 576 - 577.

26 The Magistrate was required to take into account the matters in s 89(2)(d) of the Sentencing Act in deciding whether to make a parole eligibility order. As to which see Cardillo v Taylor (above) at p307 - 308; Bowes v McCutcheon [1999] WASCA 173 (at pp6 - 8).

27 It is apparent from the Magistrate's reasons that he did address the matters in s 89(2)(d) and, indeed, the other factors in s 89(2) of the Sentencing Act. In particular, the Magistrate looked to the future and concluded there was nothing in sight which indicated that the appellant's behaviour would stop or that there was any expectation of rehabilitation. There is evidence to support that conclusion. The appellant is an admitted alcoholic. His antecedents disclose a series of prior convictions for the same or similar offences. The offences the subject of the appeal are serious. The circumstances of the offences are serious. He drove whilst legally disentitled and with a blood alcohol level of .176 per cent so he could go fishing. He was released on bail. Whilst on bail he drove again, this time with a blood alcohol level of .138 per cent. There is nothing about the circumstances of the particular offences or the offender which pointed positively towards the appropriateness of parole. A refusal to make a parole eligibility order is, as a matter of fact, exceptional. The threshold of relevantly positive indicators is very low. However, not so low as to make a parole eligibility order a right. In this case, there is no suggestion of any actual attempts (even if failed) to address the reason for his offending (alcohol) or to prevent access to the means of his offending (motor vehicles). In the circumstances of these offences and the offender, the bald assertion that the appellant was aware that the source of his offending was alcohol and that he wanted to address his alcohol problem and planned to do so is not sufficient.

28 A pre-sentence report dated 24 August 2001 obtained for the purposes of the appeal does not significantly advance the matter. The appellant has been in custody since March 2001. Approximately five weeks before the preparation of the pre-sentence report, the appellant commenced attending weekly Alcoholics Anonymous meetings in prison. He had also just commenced the prison parole programme (Triple P) offered to prisoners by Holyoake. The Triple P programme is based on weekly one-to-one counselling sessions which provide the prisoner with a key resource person to assist to transfer any therapeutic gains made in prison to the community setting. As the appellant had only just commenced the programme the author of the pre-sentence report was unable to comment on the appellant's level of engagement with, or and the effect of, the programme. The summary in the pre-sentence report relevantly provides:

"[The appellant] is a person with a long history of alcohol abuse and associated drink driving offences who has been unable to make any significant inroads into his drinking problems in the past despite having accessed substance abuse programmes during previous periods of supervision with this Department.

He is able to identify his alcohol abuse as the primary risk factor in his offending and has taken the initiative to address this, albeit belatedly as he has been in prison since March this year; however, given his past record under supervision it is doubtful whether he would be able to maintain his present level of commitment to changing his substance abuse behaviour once he is released unless he is able to engage effectively in a substance abuse program prior to his release.

... should his current application succeed he will have an Earliest Eligibility Date of 14 October 2002 [sic - should be 2001]. This will enable him to adequately address his substance abuse problem through participation in the Triple P programme prior to his release. While his release to parole would enable [the appellant] to demonstrate his commitment to changing his substance abuse and the associated offending behaviour, by his completing the Prison to Parole programme in a community setting; it is not possible to make a positive recommendation as to his suitability for parole. However, with the high level of case management and supervision he will be accorded the risk is considered to be manageable."

29 There is nothing in the pre-sentence report to indicate that the Magistrate erred in reaching his decision by failing to take into account relevant matters. Insofar as the report deals with events that have taken place after the appellant was sentenced, the respondent had no objection to the Court taking those matters into account. However, the appellant's belated involvement in relevant programmes meant the author of the pre-sentence report was unable to comment on the appellant's level of engagement with the programmes or his progress in changing his substance abuse behaviour. His post conviction conduct is not sufficient to persuade me that the Magistrate made a reviewable error or that a different decision on parole is required.

30 I now turn to the other failures relied on in the grounds of appeal. The Magistrate was not in error in failing to invite counsel for the appellant to make submissions on why an order for parole should have been made. Counsel for the appellant was aware that parole was in issue. He specifically addressed both sentence and parole when he asked the Court to take into account the effect on the appellant's family and the appellant's awareness that alcohol was destroying his life.

31 Further, the material does not support an inference that the Magistrate failed to take into account the appellant's personal and family circumstances. To the contrary, the reference to those matters by the appellant's counsel immediately before the Magistrate delivered his reasons supports an inference they were considered. In any event, a failure to consider the matters would not involve a material error.

32 The challenge based on an alleged failure to take into account the fact that the appellant had never previously been on parole is linked with a broader submission made orally to the effect that the appellant had failed to perform under supervision on only one occasion. I note this submission is not entirely borne out by the pre-sentence report. If an offender has a history of breaches whilst under supervision that will be a significant factor against making a parole eligibility order. Such conduct means an offender will be a poor parole risk in the sense of being likely to offend during that period which in turn reflects on the prospects of rehabilitation. The absence of breaches whilst under supervision (assuming adequate opportunity) may be relevant for the same reasons but is not necessarily determinative. Assuming to the appellant's advantage that the Magistrate failed to take this into account, it is not, in the circumstances of this case a material omission which invalidates the decision. The Magistrate's focus was on the prospect of rehabilitation. Intensive supervision may assist to prevent re-offending in the transitional period between prison and release into the community. However, it is proper to look beyond the transitional period as the Magistrate did in this case.

33 Lastly, it is said the Magistrate took into account an irrelevant consideration, namely the 6 month deduction for the early plea of guilty, in considering parole. It is not permissible to reduce or increase a sentence of imprisonment by reference to whether or not a person is to be made eligible for parole: R v Swain (1989) 41 A Crim R 214 at 216; R v Shaw (1989) 39 A Crim R 343.

34 The first step in the process is to fix a term of imprisonment that is proportionate to the gravity of the offence and taking into account all relevant circumstances. However, after the sentence is fixed, the severity or lenience of the sentence can be relevant to the question of eligibility for parole: Thomson v The Queen (above) at 396. On a fair reading of the Magistrate's reasons, he determined the sentence and then had regard to where it fit in the discretionary range when considering parole. Accordingly, the Magistrate has not erred by taking into account an irrelevant consideration.

35 For these reasons, I am not persuaded the Magistrate erred in the exercise of his discretion or that the circumstances of the case require a different decision. Accordingly, I propose to dismiss the appeal.

Community Corrections Act 1963(WA)

Sheppard v Blakey & Ors [2001] WASCA 309

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Sheppard v Blakey & Ors [2001] WASCA 309 (10 October 2001)

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