Abdullah v Payne - [2018] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ABDULLAH -v- PAYNE [2018] WASC 416
CORAM:   CORBOY J
HEARD:   2 OCTOBER 2018, 2 & 5 NOVEMBER 2018
DELIVERED          :   2 NOVEMBER 2018
PUBLISHED           :   11 FEBRUARY 2019
FILE NO/S:   SJA 1037 of 2018
BETWEEN:   ALISON ROSE ABDULLAH
Appellant
AND
GEORGIE PAYNE
First named First Respondent
BEVERLEY PEARSE
Second named First Respondent
JACINTA STEERS
Third named First Respondent
BEVERLEY PEARSE
Fourth named First Respondent
TIMOTHY MASSEY
Fifth named First Respondent
JACINTA STEERS
Sixth named First Respondent
KERIANA BAKER
Seventh named First Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number             :   PE 6827 of 2016 and others

Catchwords:

Appeal against sentence - Stealing offences where property taken valued at less than $1,000 - Procedural fairness where appellant not given an opportunity to make admissions

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 426
Sentencing Act 1995 (WA), s 9AA, s 80

Result:

Leave to amend notice of appeal
Leave to appeal
Appeal allowed
Charges remitted to the Magistrates Court for the appellant to be resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr T N Cullity
First named First Respondent	:	Ms G N Beggs
Second named First Respondent	:	Ms G N Beggs
Third named First Respondent	:	Ms G N Beggs
Fourth named First Respondent	:	Ms G N Beggs
Fifth named First Respondent	:	Ms G N Beggs
Sixth named First Respondent	:	Ms G N Beggs
Seventh named First Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Tom Cullity
First named First Respondent	:	Director of Public Prosecutions (WA)
Second named First Respondent	:	Director of Public Prosecutions (WA)
Third named First Respondent	:	Director of Public Prosecutions (WA)
Fourth named First Respondent	:	Director of Public Prosecutions (WA)
Fifth named First Respondent	:	Director of Public Prosecutions (WA)
Sixth named First Respondent	:	Director of Public Prosecutions (WA)
Seventh named First Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Abeyakoon v Brown [2011] WASCA 63
Boase v Roberts [2018] WASC 45
Kirby v The Queen [2003] WASCA 164
Kirby v The Queen [2003] WASCA 239
McGarry v The Queen (2001) 207 CLR 121
Miller v Byrne [2016] WASC 236
The State of Western Australia v Cairns [2006] WASCA 178
Wallam v Dent [2008] WASC 170

CORBOY J:

These reasons were delivered orally on 2 November 2018. I reserved the right to edit the reasons prior to publication.
The appellant was sentenced on 21 July 2016 to a term of imprisonment of 8 months suspended for 9 months. I shall refer to that sentence as the Intensive Supervision Order. She committed further offences during the term of the Intensive Supervision Order.
On 23 January 2018, the appellant was sentenced for, at least, some of those further offences and resentenced for the offences for which the Intensive Supervision Order had been made. She was sentenced to a term of imprisonment of 20 months to be immediately served. I shall refer to that sentence as the January 2018 Sentence.
The appellant appeals from the January 2018 Sentence on the following grounds:
(1)The sentencing hearing was procedurally unfair in law and in fact in that:
(a)the learned magistrate erred in failing to exercise his discretion to grant the appellant an adjournment so that she could obtain further legal advice and representation at the sentencing hearing; and
(b)having refused an adjournment, the magistrate proceeded to sentence the appellant without inviting her to address him as to penalty.
(2)The magistrate erred in fact in assuming that the appellant would be released on parole in 10 months less the 3 months already served and would get help while on parole. Had he not made that assumption, he would have imposed a sentence of less than 20 months, which sentence was manifestly excessive in all the circumstances.
The appeal notice was filed out of time. On 3 July 2018, Archer J ordered the appellant's application to extend the time within which to commence the appeal and the application for leave to appeal be referred to the hearing of the appeal.
The appeal was first heard by me on 2 October 2018. I raised questions at the hearing about the structure of the January 2018 Sentence according to what was recorded on the prosecution notices forming part of the appeal papers and in the appellant's court outcomes history (that is, her criminal record as maintained by the Western Australian Police). I shall refer to the appellant's court outcomes history as the Outcomes History. The hearing was adjourned to enable the parties to make further inquiries and obtain instructions on the matters raised.
The following problems were identified as a result of further inquiries made by the respondents:
(a)The January 2018 Sentence apparently included terms of imprisonment for stealing offences where the value of the property stolen was less than $1,000. Section 426 of the Criminal Code provides that the summary conviction penalty for stealing where the value of the property does not exceed $1,000 is a fine of $6,000.
(b)The terms of imprisonment for the stealing offences were ordered to be served concurrently with the terms of imprisonment imposed for other offences. Nevertheless, the sentences for the stealing offences formed part of the total effective sentence imposed by the court.
(c)There were differences between what was recorded on the prosecution notices for the January 2018 Sentence and the Outcomes History. Further, no sentence had been recorded on the prosecution notices or in the Outcomes History for a number of charges which were, most likely, before the court at the time the January 2018 Sentence was pronounced. However, it is not possible to identify with certainty the charges that were before the court at the hearing on 23 January 2018 nor is it possible to determine whether the appellant was sentenced on all of the charges to which she had pleaded guilty prior to the hearing.
The respondents filed supplementary submissions which further explained the last of those problems. In summary:
(a)The Intensive Supervision Order was made in respect of 39 charges the subject of six police 'briefs'. Although there was an apparent error in recording a sentence imposed on one prosecution notice, the parties accepted that the appellant was sentenced to 6 months' imprisonment on charge AR 6828/16 and that sentence was taken to be the head sentence; a further sentence of 2 months' imprisonment was imposed on charge PE 24469/16 and that term was ordered to be served cumulatively on the term of imprisonment imposed on AR 6828/16; terms of imprisonment to be served concurrently or fines were imposed on all other charges; the total effective sentence of 8 months' imprisonment was suspended for a term of 9 months.
(b)The offences allegedly committed by the appellant following the making of the Intensive Supervision Order were contained in three police briefs. Those briefs concerned a further 146 charges.
(c)It is not entirely clear whether all charges contained in the three police briefs were before the court at the sentencing hearing on 23 January 2018. The respondents accepted the three briefs may have been before the court as the prosecutor referred to having three briefs early in the hearing. In any event:
(i)sentences were recorded on prosecution notices for only 33 of the further 146 charges;
(ii)the Outcomes History referred to sentences imposed at the hearing on 23 January 2018 on 69 of the further 146 charges;
(iii)there was no reference in the prosecution notices or the Outcomes History to any sentence imposed for 77 charges that formed part of the three police briefs that may have been before the court on 23 January 2018.
The January 2018 Sentence was structured in the following way. First, the appellant was resentenced for the offences for which the Intensive Supervision Order had been made. The order had been breached by the appellant committing further offences very shortly after 21 July 2016. Although the magistrate did not refer to s 80 of the Sentencing Act 1995 (WA), the parties accept that his Honour, in effect, applied the section by activating the sentence of 8 months' imprisonment that had been imposed. The appellant did not suggest circumstances had arisen since the making of the Intensive Supervision Order that would make it unjust to fully activate the sentence.
Second, the magistrate imposed terms of imprisonment of 6 months to be served cumulatively on two charges (FR 11309/17 and FR 11310/17). His Honour imposed 1 month's imprisonment to be served concurrently for all other offences for which the appellant was sentenced. According to the prosecution notice, a term of imprisonment was imposed for one offence of stealing. According to the Outcomes History, sentences of imprisonment were imposed for nine stealing offences. In addition, sentences of imprisonment were imposed for stealing offences that had been previously the subject of the Intensive Supervision Order.
The appellant's appeal notice does not allege that the magistrate erred in imposing terms of imprisonment for the stealing offences for which the value of the property taken was less than $1,000. I invited the appellant to amend the appeal notice to make that allegation. The respondents, quite properly, did not oppose the application. I will allow the application to amend the appeal notice to allege that the magistrate acted without or in excess of jurisdiction, further or alternatively erred in law, in imposing terms of imprisonment for stealing property to a value of less than $1,000. Further, I will grant leave to appeal out of time and leave to appeal on that ground.
Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a grant of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred. Section 14(2) of the Criminal Appeals Act applies to sentencing appeals from a court of summary jurisdiction: Abeyakoon v Brown [2011] WASCA 63.
In my view, s 426 of the Criminal Code is a jurisdictional limit on the penalty that may be imposed on a summary conviction for the offence of stealing and, accordingly, the magistrate acted without or in excess of jurisdiction in imposing terms of imprisonment for stealing offences where the value of the property taken was less than $1,000. The nature of the error is such that a substantial miscarriage of justice occurred notwithstanding that each sentence of imprisonment imposed for the stealing offences was ordered to be served concurrently. That is accepted by the respondents and is consistent with the view taken by Jenkins J on the application of s 14(2) of the Criminal Appeals Act in Wallam v Dent [2008] WASC 170 (and see also Miller v Byrne [2016] WASC 236 (Allanson J)).
The effect of allowing the appeal on this ground is that all sentences imposed by the magistrate on 23 January 2018 must be set aside: McGarry v The Queen (2001) 207 CLR 121 and The State of Western Australia v Cairns [2006] WASCA 178. That is also accepted by the respondents. However, that begs an obvious question given the problems to which I have earlier referred: for which charges was the appellant sentenced at the hearing on 23 January 2018; that is, what is to be set aside? I return to that question but there are other matters that must be mentioned before doing so.
First, there is insufficient material before the court to enable the appellant to be resentenced by me. That is the result of a combination of factors ‑ the limited grounds on which the appeal was commenced; the fact that, perhaps understandably, the prosecutor and the magistrate did not separately deal with each offence; and the problems to which I have referred. Again, the parties agree that this is the only appropriate course.
Second, the grounds of appeal reflect what occurred at the sentencing hearing. The appellant requested an adjournment to obtain legal advice at the commencement of the hearing. The application was refused by the magistrate. His Honour stated:
No. It's too late for that, Ms Abdullah. You're due for sentencing on all these. Legal advice has gone. We've been going since - some of these for so long. You pleaded guilty [and] today's for sentence, I'm afraid. I appreciate - the duty counsel probably can't do much for you. The reality is that you are going to jail - just a question for how long. You can't go out, you know, and be on suspended sentences for fraud, and go out and do a whole lot more and expect that they're not going to be activated.
However, shortly afterwards the prosecutor advised he understood the appellant had spoken to duty counsel that morning and had decided to represent herself. The appellant was not asked whether that was correct.
The magistrate then requested the prosecutor read the facts alleged by the prosecution. The appellant was not asked whether she admitted those facts or whether she wished to make any submission on her sentencing once the facts had been read. Rather, the magistrate proceeded to sentence the appellant.
His Honour noted the appellant was subject to a suspended imprisonment order for fraud related charges when she committed a number of further offences. Reference was made to the totality principle and to the appellant's pleas of guilty and the sentences imposed were reduced by 25% under s 9AA of the Sentencing Act. The sentence was backdated on account of time the appellant had spent in custody and a parole eligibility order was made.
His Honour concluded his sentencing remarks by observing:
So you effectively have to do 10 months of which you've done three months approximately already, and that will wipe the decks. When you get out, Ms Abdullah, you might want to sort of put your money where your mouth is and do something about the issues. You will be on parole, so you will have the opportunity to get assistance. Change your lifestyle because otherwise you are simply going to spend the rest of your life in and out of prison as you've already indicated.
The appellant's primary contention at the first hearing of the appeal was that the magistrate had erred by structuring the sentence imposed 'on the basis that the parole eligibility ordered that he made would translate into a parole order made by the Prisoners' Review Board' (appellant's outline of submissions dated 7 August 2018, par 8). However, the appellant had not been granted parole in the past (she had made seven unsuccessful applications for parole when serving prior custodial sentences). Consequently, it is submitted that:
Had the learned magistrate been aware of the unlikelihood of a parole order, he would have structured his sentence in a different way by suspending ten months of the total effective sentence of 20 months' immediate imprisonment on condition that the appellant enter into appropriate programmes to deal with her drug addiction (appellant's submissions, par 10).
It is also submitted that the magistrate would have been made aware of the difficulty the appellant had in obtaining parole had counsel appeared at the sentencing hearing so the refusal to grant the adjournment caused a serious injustice. Further or alternatively, the magistrate failed to consider a fact relevant to his sentencing discretion by failing to inform himself that the appellant had been consistently refused parole in the past and accordingly, an error had been made that enlivened the court's jurisdiction to re sentence the appellant.
Third, the respondents rightly conceded the magistrate had denied the appellant procedural fairness by failing to invite her to make submissions on penalty. The respondents also accepted that eligibility for parole is not a factor to be taken into account in sentencing. The relevant principles were stated by Anderson and McLure JJ in Kirby v The Queen [2003] WASCA 239:
As Roberts-Smith J pointed out in Kirby v The Queen [2003] WASCA 164 at [113] - [119] courts in this State were not directly concerned with parole period calculations. The primary if not the exclusive task of the courts under the Sentencing Act 1995 was to specify the fixed term proper to be imposed for the particular offence, stipulate its starting date and determine whether there should be an order for parole eligibility. It is not appropriate for the court to mould sentences with an eye on parole eligibility calculations or to make such calculations for itself before passing sentence … [26].
Fourth, on my reading of the sentencing remarks, the magistrate did not err by first considering the non‑parole period he determined the appellant should serve in custody and then structuring the head sentence to achieve that result. Rather, his Honour fixed the sentences to be imposed after taking into account totality and the appellant's pleas of guilty. A parole eligibility order was made and the effect of the sentence was then explained to the appellant. It is true that in doing so, the magistrate assumed the appellant would be released on parole and his Honour ought to have made it clear that the question of parole was not a matter for the court but for the Prisoners' Review Board. However, I do not consider his Honour fell into error in the way contended for by ground 2 of the appeal.
Fifth, the appellant was not entitled, as of right, to an adjournment. The question was whether it was in the interests of justice for the adjournment to be granted. That is not an easy question to answer on the limited material before the court. However, it is unnecessary to comment further on this ground of appeal.
Sixth, the issue that was raised on the appeal notice, as originally pleaded, was whether a substantial miscarriage occurred as a result of the magistrate's failure to accord the appellant procedural fairness. That issue requires the court to consider whether it was open, in the proper exercise of the sentencing discretion, for the magistrate to impose the sentence that was imposed: and see Boase v Roberts [2018] WASC 45 [31] (Hall J). In the circumstances, it is not appropriate to express a view on that question.
The following orders will be made:
(1)the appellant be given leave to amend the appeal notice so as to refer to each of the 185 charges set out in the schedule that has been provided by the respondents and which will be annexed to the reasons;
(2)the appellant be given leave to amend the appeal notice to add a third ground of appeal (ground 3) to allege that the magistrate acted without or in excess of jurisdiction in imposing terms of imprisonment for stealing offences where the value of the property taken was less than $1,000;
(3)the appellant be granted leave to appeal out of time on ground 3;
(4)the appellant be given leave to appeal on grounds 1(b) and 3;
(5)the appeal be allowed on grounds 1(b) and 3;
(6)all sentences imposed by the magistrate on 23 January 2018 as recorded in the Outcomes History be set aside;
(7)All charges for which the appellant was sentenced on 23 January 2018 be remitted to the Magistrates Court for the appellant to be resentenced.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate
11 FEBRUARY 2019