Sentencing Act 1995, s 89(4)

1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of McKechnie J. I agree with it. Under s 89(4) of the Sentencing Act 1995 a court may decide not to make a parole eligibility order if it considers that the offender should not be eligible for parole because of at least two of the four factors there set out. Those are:

"(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reasons the court considers relevant."

2 As appears from the judgment of McKechnie J, each of the factors in subpar (a) to (c) was present in this case and it was, in all of the circumstances of the case, open to the sentencing Judge to conclude, as his Honour did, that the applicant should not be eligible for parole in those circumstances.

3 Consequently, and for the reasons given by McKechnie J, I would extend the time in which to bring the application for leave to appeal but would dismiss that application.

4 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McKechnie J, with which I agree. I too would extend time but would dismiss the application.

5 MCKECHNIE J: This is an application for extension of time and an application for leave to appeal against sentence.

6 On 3 June 2003 the applicant pleaded guilty to two counts of aggravated armed robbery before Justice EM Heenan. On 27 June 2003 he was sentenced to terms of 8 years in respect of each count, the sentences to be served concurrently but cumulatively upon existing sentences. The Judge declined to make a parole eligibility order.

7 The applicant attempted to lodge a notice of application on 9 July 2003. This notice was rejected as it was in the incorrect form. On 4 August 2003, with the assistance of a solicitor, the applicant applied for an order extending time. In a document, apparently dated 19 September

2003, and lodged on 6 October 2003, the applicant filed amended grounds of appeal. It is clear that the applicant at all times intended to prosecute his appeal. The delay is not great. No prejudice is suffered to the State which does not oppose the application. I would extend time.

"The learned sentencing Judge erred in not declaring the applicant eligible for parole despite there being material before him which justified the making of such order."

9 On 28 March 2003 the applicant gained entry to a massage parlour in Midland and, thereafter in a manner which threatened considerable violence, stole some money and jewellery from two of the women inside. The Judge noted that at the time the applicant was seriously affected by the consumption of benzodiazepines and alcohol.

10 The Judge made reference to the pre-sentence report which is also available to this Court. He noted the applicant's long history of polysubstance abuse and that drug rehabilitation programmes appeared to have had little impact on his substance abuse issues. Of particular relevance is the fact, as the Judge noted, that between 1996 and 2002 the applicant had been released on parole on five occasions but on each of those occasions the orders were suspended or cancelled within a matter of months due to the failure to comply with the parole conditions in all instances and for re-offending in all but one instance. This was against a background of nearly six prior convictions as an adult. The applicant was released on parole on 8 January 2003 and the present offences occurred 79 days after.

11 The applicant, who appears pro se, filed an affidavit in support of his application which I have read and to which I paid careful attention. He deposes that he is remorseful for the crimes he has committed and if given parole this will make him more determined to leave prison never to return again. He notes his 4-year-old son has a serious medical condition. He undertakes not to commit any crimes or offend in the future and to look after his family and take his place as a responsible member of the community.

12 The applicant is now a practising Catholic. In a report, the Chaplin of Hakea Prison says:

"My impression is that Mr Taylor has finally got the message that crime does not pay and next time he gets out he needs to stay out in the long term. To this end he is proactive in participating in a drug rehabilitation programme while he is in prison and is willing to do everything on offer to prepare himself for his eventual release.

Mr Taylor is now 33 years of age and tells me he is 'getting too old for jail', and its implications."

13 In his oral submissions the applicant articulately made submissions concerning his resolve to change, noting that he is now 33, has a family, he wishes to care for them and does not want to continue a life of crime. He has taken steps to meet with the victims of his crime in mediation to express his remorse. Last year his step-son died and this has had a significant impact on him.

14 The applicant submitted that a parole eligibility order would allow him to go to a minimum security centre before release and that this transition would assist in his rehabilitation and preparation for return into the community.

15 The applicant impressed me as being genuine in his stated views and there is reason to hope that he is finally gaining an insight into his offending behaviour.

16 The Judge had the benefit of a pre-sentence report, psychological report and counselling report. The pre-sentence report described the applicant's response to community supervision as "abysmal". The psychological report notes that the applicant has been unable to demonstrate the ability to consistently hold regard for others or the law across time and locations.

17 The applicant's submissions about his wife and family must also be seen against certain violent behaviour within the marriage.

18 The principles relating to parole eligibility have been recently restated in Abdullah v The Queen [2002] WASCA 57 per Steytler J at [14]:

"The discretion whether an eligibility for parole order should be made cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole. While it is true that there may be a bias towards eligibility, that bias does not mean that the Court must start from a presumption in favour of the grant of parole. (See, respectively, Thompson v The Queen (1993) 8 WAR 387 and Garlett v The Queen (2000) 111 A Crim R 336; [2000] WASCA 72 at [87]). Rather, as has been pointed out in Garlett, the bias is such that, provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is a sufficient reason not to exercise that discretion in his or her favour."

19 The nature and seriousness of the offences, combined with the relevant criminal history, and the utter disregard shown by the applicant to parole on previous occasions, are such that it was open for the Judge to exercise his discretion to decline to grant a parole eligibility order. While the applicant is beginning to demonstrate some degree of insight into both his offending behaviour and its effect on his family, and more importantly on him, the expressions of insight must be judged against the objective facts of his past performance.

20 It has not been demonstrated that the Judge was in error. Although I would extend time in which to bring the application for leave to appeal but would dismiss the appeal.

• Extension of time
• The ground of appeal
• The circumstances of the offences
• Relevant sentencing remarks
• The applicant's submissions
• Conclusion