Armstrong v The Queen, unreported; CCA SCt of WA; Library No 980231; 21 April 1998

Cardillo v Taylor [1999] WASCA 166

Dobaj v The Queen [2000] WASCA 7

Garlett v The Queen [2000] WASCA 72

Histon v The Queen, unreported; CCA SCt of WA; Library No 970197; 1 May 1997

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McLean v The Queen [1999] WASCA 209

Miles v The Queen (1997) 17 WAR 518

Puls v The Queen [2000] WASCA 11

Thomspon v The Queen (1992) 8 WAR 387

1 PIDGEON J: This is an application for leave to appeal against sentence. The applicant was born on 27 August 1975. He has quite a significant record. Up until 1997 the convictions were in the Court of Petty Sessions but in July in 1997 he was convicted in the District Court of an offence of robbery whilst armed in company and of stealing and received a total sentence of 18 months imprisonment plus 12 months cumulative; that is, a sentence, it would appear to be, of 30 months.

2 There is an indication that that record is not complete. That was discussed before his Honour the sentencing Judge. It is sufficient to say that he was granted parole and was on parole for an earlier indictable offence. On 17 August 1999 he was presented to Templeman J for sentence having pleaded guilty in the Lower Court and he was presented on an indictment containing a count of attempting to steal a motor vehicle, four counts of robbery with actual violence and one count of actual burglary.

3 These offences occurred at the same time in one criminal enterprise but they occurred whilst he was on parole. He had been released on parole on 8 June 1998 and the offences with which Templeman J was dealing occurred at about 11.30 pm on 22 January 1999, a little over 6 months after he was on parole.

4 I said the offences arose out of one criminal enterprise, but it was one that was indeed serious. He and two others went to a motel in South Perth. They entered into a motor vehicle that was parked outside one of the units in the motel and attempted to start it. The applicant was in the driver's seat. While they were attempting to start the vehicle the owner of the vehicle arrived at the motel in a taxi and the owner had the experience, and it would be a frightening one, of seeing two persons in his motor vehicle parked outside the motel. The owner attempted to surround the car and trap the offenders in the vehicle. The applicant offered violence to the owner and there were threats to the owner in the applicant's presence with a knife and under these threats the applicant and other offenders left the car. The knife was being waved around.

5 The manager of the motel heard what was going on, heard the commotion. He locked his office door and walked to the carpark to find out what was happening and saw a number of people. One of the offenders with the applicant saw the manager and began running after him with the knife that she held in front of her. The manager ran through the motel with this particular offender chasing him, calling out threats to kill him. This made the manager very frightened. The manager made his way to the second storey when he realised that he was not being chased.

6 This other offender made her way to the kitchen and smashed various items in the kitchen. The applicant jumped over the reception counter and stole the cash register. In addition to that the offenders saw another person staying in the motel and the co-offenders chased that other person. This person staying in the motel went into his motel room and locked the door. The applicant started to hit the door with boltcutters, causing a hole in the door. The persons in the room endeavoured to make defence against that and details were explained to his Honour and they escaped from the room. The applicant then entered the room and stole property from it.

7 I have said enough of the offences to indicate how serious they were. His Honour imposed a total effective sentence of 4-1/2 years on the applicant and the grounds of appeal, very understandably, do not bring this sentence into question. I would see it as a lenient sentence, having regard to the seriousness of the conduct and taking into account the mitigating features that were before his Honour, which included a plea of guilty on the fast-track. His Honour declined to impose parole and the ground of appeal is directed to that particular question. His Honour was informed, to use the terminology used, that the applicant had 1345 breach of parole days.

8 His Honour did not make the sentences cumulative with the earlier sentence for which the applicant was on parole. His Honour was informed that the current sentence, that is, the sentences which the applicant was then serving, expired on 24 October 2002, but his Honour declined to exercise the power he had of making these sentences cumulative, for which I see the applicant as being very fortunate and if there was offending in the future, I do not consider such leniency could be expected in the future.

9 The essential question is whether his Honour erred in declining to order parole. His Honour over quite a portion of his sentencing remarks, which extend to a page and a half, gave reasons in respect of parole and his Honour commenced by saying that he came to the conclusion that the question of parole was an extremely difficult one.

10 He said he accepted that there was a bias towards parole particularly in the case of young offenders. He said it had been put to him that the applicant was still young, that he was about to have a child and would accept responsibility for the child. His Honour outlined what had been put to him as to what the applicant had been doing to rehabilitate himself and his Honour's comments referred to that. His Honour said:

"The most positive thing is your attempt to rehabilitate yourself by undergoing the Cyrenian House program -"

but his Honour said that the difficulty his Honour had is that although he appeared to be responsive of matters of this kind whilst he is in custody, when he is out of custody there are relapses.

11 His Honour then said that a factor that weighed heavily with him was the need to protect the public because his record showed that he had committed a very large number of what his Honour called, and which I would call, very antisocial offences. His Honour said:

"I am very concerned that if you are given parole again, despite your present intentions, you might well relapse. I have to make some prognosis. I have to make some estimate of the position you are likely to be in when you would become eligible for parole if I were to grant it."

12 Then his Honour outlined some of the benefits of parole. His Honour said:

"One of the benefits of parole is that it allows an offender, when he or she comes out of prison, to be under supervision, close supervision, which is beneficial to that person and to the community because it enables them to make their way back into society under that kind of guidance. It so happens that in your case that will happen anyway because of the outstanding time which you owe to the Parole Board, so that even if I don't grant parole, when the time comes for your release, you would be released on parole in any event."

13 I would interpose here by saying that that may be only a short period. Had his Honour made the sentences cumulative, the position could well have been different mathematically. His Honour then concluded:

"In all the circumstances, and after considerable agonising over this question, I have decided that I can't properly grant you parole. I think that the risk to the public and the need to protect the public is too great and although I accept that you would have the best intentions at the moment, I cannot be satisfied, having regard to your previous performance, that you would live up to your intentions, so for those reasons I decline to make an order for parole in your case."

14 I have no hesitation in saying that his Honour considered all important aspects and I do not consider his Honour's discretion miscarried in any way, but I would go further. As I see it, even if there was no parole to be served under the earlier sentence, there is nothing here, in my view, that would trigger parole. The protection of the public is paramount and I consider his Honour was correct in the assessment he made.

15 I would go further and say that the fact that serious offences, and particularly offences of the same sort, are committed on parole is a very important factor to take into account and leans heavily against parole. This has been referred to in other cases and I say it for a number of reasons. It undermines the parole system and undermines the public's confidence in the parole system when identical offences or similar offences or serious offences are committed whilst on parole.

16 Whilst the cases have indicated, and I would indicate, if it would not of itself be a bar to further parole, great thought would have to be given before exercising the discretion to grant parole. It does indicate the danger to the public when there is offending of that type, so I consider no matter what way this is looked at, his Honour's decision, in my view, was correct and I would refuse the application for leave.

17 IPP J: I agree and have nothing further to add.

18 WHEELER J: I too agree and would not add anything further.