Abassi v Ketteringham
[2020] WASC 325
•9 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ABASSI -v- KETTERINGHAM [2020] WASC 325
CORAM: ALLANSON J
HEARD: 3 SEPTEMBER 2020
DELIVERED : 3 SEPTEMBER 2020
PUBLISHED : 9 SEPTEMBER 2020
FILE NO/S: SJA 1034 of 2020
BETWEEN: PETER ABASSI
Appellant
AND
JAMES KETTERINGHAM
First Respondent
KARL WOOLMER
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE C D ROBERTS
File Number : KR 619 of 2019, KR 620 of 2019, KR 621 of 2019, KR 622 of 2019, BM 1373 of 2019, BM 1375 of 2019
Catchwords:
Criminal law - Sentencing - Where magistrate did not hear statement of material facts served on accused - Whether failure to give weight a relevant consideration in sentencing
Criminal law - Sentencing - Where accused entered guilty plea - Whether there was a failure to apply reduction to sentence
Legislation:
Criminal Procedure Act 2004 (WA), s 129
Road Traffic Act 1974 (WA), s 60B
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | A Rogers |
| First Respondent | : | M M Yeung |
| Second Respondent | : | M M Yeung |
Solicitors:
| Appellant | : | Abigail Rogers Barristers & Solicitors |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Nil
ALLANSON J:
Introduction
This appeal was heard on 3 September 2020, and was allowed immediately, with reasons to be published. These are my reasons for allowing the appeal.
On 8 November 2019, the appellant, Peter Abassi, was sentenced to imprisonment for six offences:
(a)Assaulting a Public Officer in Prescribed Circumstances ‑ 7 months;
(b)Reckless Driving to Escape Police Pursuit - 16 months;
(c)Failing to Stop (Aggravated) - 6 months;
(d)Failing to Comply with the Requirement under a Disease Test Approval - 7 days;
(e)Obtaining Property from a Person by Fraud - 12 months; and
(f)Obstructing Public Officers - 3 months.
The sentences for assault and reckless driving were made cumulative, with the other sentences concurrent. The effective sentence of 1 year 11 months, backdated to 13 June 2019, was ordered to be served immediately. No order for parole eligibility was made.
The conviction for the offence of assaulting a public officer was after trial. Pleas of guilty had earlier been entered to the other charges.
The appellant seeks leave to appeal from the sentence imposed on five grounds:
1.The learned Magistrate was unable to properly exercise his sentencing discretion after the incorrect statement of material facts was read to the Court relating to his offending on charges of Reckless Driving to Escape Police Pursuit and Driver Failed to Stop (Circumstance of Aggravation), such hindrance resulting in a miscarriage of the sentencing exercise.
2.The learned Magistrate erred in law in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to Section 9AA of the Sentencing Act 1995 (WA).
3.The length of the term imposed on the charge of Reckless Driving to Escape Police Pursuit was manifestly excessive with regards to the standards of sentence customarily observed with respect to such offending, the place which the Appellant's criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the Appellant, resulting in an excessive aggregate term.
4.The learned Magistrate erred in law when exercising his sentencing discretion on the charge of Reckless Driving to Escape Police Pursuit by having regard to the incorrect maximum penalty that he could impose in the Magistrates Court, such error resulting in an excessive term being imposed.
5.The learned Magistrate erred in law by considering the Appellant's record as an aggravating factor for sentencing purposes, resulting in a miscarriage of the sentencing exercise.
Three of the five grounds challenge the procedure that was followed in sentencing for the offence of reckless driving to escape police pursuit. The remaining two grounds are not directed to specific offences.
The appellant requires an extension of time. He has put forward an explanation for the delay in bringing the appeal. The respondent does not oppose the extension where, as it concedes, to refuse the extension would result in a miscarriage of justice.
The concession
The respondent concedes that the errors alleged in grounds 1 and 2 have been established. The concession is rightly made.
Grounds 1, 3 and 4
To understanding what occurred, and the complaint in ground 1, the court must look at the prosecution notices.
On 7 October 2019, the appellant pleaded guilty, in the Magistrates Court in Broome, to reckless driving and failing to stop when called upon. The offence was committed on 8 June 2019. The appellant had been charged with further offences of reckless driving and failing to stop, which were alleged to have occurred on the same day, about 35 minutes earlier. Following negotiations between the parties, those charges were dismissed for want of prosecution on 7 October 2019.
On 14 October 2019, the appellant pleaded guilty to obtaining property by fraud, obstructing public officers, and failing to comply with the requirement under a disease test approval. The appellant was not sentenced immediately.
The charge of assaulting a police officer was tried in the Magistrates Court in Kununurra on 8 November 2019.
Following the trial and conviction of the appellant for assaulting police, the court moved immediately to sentencing for that offence and the five offences to which he had earlier pleaded guilty.
On a plea of guilty, before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty. If the accused has been served with a written statement of the material facts, the facts stated aloud must be those in the written statement that was served: Criminal Procedure Act 2004 (WA) s 129(3) ‑ (4).
In the proceedings before the magistrate, the prosecutor read aloud the statement of material facts relating to the charges of reckless driving and failure to stop that had been dismissed for want of prosecution. The sentencing transcript shows that counsel for the appellant said something (recorded on the transcript as indistinct), following which the prosecutor stated:
At about 2:30 am, Saturday, 8 June 2019, the accused drove a Toyota Kluger vehicle which had been reported stolen, drove that vehicle towards police on Frederick Street in Broome before conducting a right‑hand turn at speed in front of a fully marked police vehicle onto Robinson Street.
There was then a brief exchange between counsel for the appellant and the prosecutor following which the prosecutor said that there appeared to have been some negotiations that he was not aware of. No further facts were read in relation to the charges of reckless driving and failure to stop.
The written statement of material facts which had been served on the appellant in relation to the reckless driving charge continued in some detail. It is not necessary to now set it out. It is sufficient to observe that the limited facts that were read to the court are not sufficient to sustain either of the charges.
The result is that there has been a miscarriage in the sentencing process.
Ground 2
Section 9AA of the Sentencing Act 1995 (WA) provides for a sentencing court to reduce the head sentence to be imposed where an offender has pleaded guilty. By s 9AA(5), if the court reduces the head sentence, it must state that fact and the extent of the reduction in open court.
Failure to comply with s 9AA(5) may not itself be a material error, but may indicate that the plea has not been taken into account. While the sentencing magistrate was aware of the pleas, and referred to them at the commencement of his reasons on the determination of guilt, he did not make any reference to the pleas, to s 9AA, or to any mitigation to be given for those pleas when sentencing on those charges.
It is not possible to discern whether any discount was applied. From the sentences imposed, I infer no reduction was given for the guilty plea.
I am satisfied that as a result of those two errors, there has been a miscarriage of justice.
The remaining grounds
I will, for completeness, deal briefly with the remaining grounds.
Ground 3
I agree with the respondent's submission that the court need not determine the question of manifest excess in the sentence for reckless driving when, as set out above, the sentence was not on the basis of the correct material facts.
Ground 4
The appellant alleges that the magistrate had regard to the incorrect maximum penalty that he could impose in the Magistrates Court. The ground is based on the magistrate's comment that the sentence for the offence 'could have been between two and three years'.
If his Honour was referring to the sentence range open on summary conviction, the statement would be incorrect. Under s 60B(4) of the Road Traffic Act 1974 (WA), the penalty on summary conviction is imprisonment for 2 years. The maximum penalty, however, is imprisonment for 5 years. The magistrate's comment is equally consistent with his having regard to the penalty available at law.
I am not satisfied ground 4 has merit, and leave will be refused.
Ground 5
The magistrate said, in sentencing:
the fact is you have a horrendous record. But you don't get sentenced to an increased sentence based upon your poor record. It just means that I can't be as lenient with you as I would for a first or a minor offender.
Immediately afterwards, the magistrate referred to the appellant going to trial on the assault charge, and said, 'Likewise … you don't get an increased sentence on that, but I certainly can't give you credit for that early plea of guilty and give you a discount'.
On a fair reading of his Honour's remarks, he did not regard the appellant's record as aggravating, but, correctly, observed that the appellant could be given no credit or leniency for good character.
Leave to appeal on ground 5 should be refused.
Conclusion
The appellant should have leave to appeal on grounds 1 and 2 and the appeal allowed. The total effective sentence should be set aside and the appellant resentenced on all six charges.
(The appellant was resentenced on all charges to imprisonment for an effective sentence of 16 months, to commence on 13 June 2019, and disqualified from holding or obtaining a drivers licence for 2 years.)
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson9 SEPTEMBER 2020
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