Almonte v Beswick
[2013] WASC 207
•30 MAY 2013
ALMONTE -v- BESWICK [2013] WASC 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 207 | |
| Case No: | SJA:1003/2013 | 20 MAY 2013 | |
| Coram: | BEECH J | 30/05/13 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to admit further evidence granted Appeal upheld Appellant to be resentenced | ||
| B | |||
| PDF Version |
| Parties: | GIULIANO CESARIO ALMONTE DEBORAH BESWICK |
Catchwords: | Criminal law and sentencing Dangerous driving causing bodily harm Drag racing Offender sentenced to immediate imprisonment for 6 months and 1 day Whether sentence manifestly excessive Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(e) Road Traffic Act 1974 (WA), s 59A(1)(b) |
Case References: | Abeyakoon v Brown [2011] WASCA 63 Ainsworth v D (a child) (1992) 7 WAR 102 Casotti v Pickering [2013] WASC 174 Chan v R (1989) 38 A Crim R 337 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Director of Public Prosecutions v Hill [2012] VSCA 144 Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 Fogg v The State of Western Australia [2011] WASCA 11 Gray-Herewini v Lee [2013] WASC 200 Kay v R [2004] WASCA 222 Langdon v Kelemete-Leoli-McLean [2011] WASCA 26 Libri v The State of Western Australia [2013] WASCA 113 Payne v Ault [2013] WASC 65 Plenty v Bargain [1999] WASCA 67 R v Bailey (1988) 35 A Crim R 458 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Smith (1987) 27 A Crim R 315 Reynolds v Commissioner of Police [2001] WASCA 203 Rouse v Wilson [2008] WASC 66 Shee v Jennings [2013] WASC 162 State of Western Australia v Hyder [2011] WASCA 256 Voysey v Whyatt [2011] WASC 305 Wheeler v The Queen [No 2] [2010] WASCA 105 Wilson v The State of Western Australia [2010] WASCA 82 Winwood v Brown [2011] WASC 123 Zinga v Johnson [2012] WASC 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DEBORAH BESWICK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 56758 of 2012
Catchwords:
Criminal law and sentencing - Dangerous driving causing bodily harm - Drag racing - Offender sentenced to immediate imprisonment for 6 months and 1 day - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Road Traffic Act 1974 (WA), s 59A(1)(b)
(Page 2)
Result:
Application for leave to admit further evidence granted
Appeal upheld
Appellant to be resentenced
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Ms G M Cleary
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abeyakoon v Brown [2011] WASCA 63
Ainsworth v D (a child) (1992) 7 WAR 102
Casotti v Pickering [2013] WASC 174
Chan v R (1989) 38 A Crim R 337
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Director of Public Prosecutions v Hill [2012] VSCA 144
Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466
Fogg v The State of Western Australia [2011] WASCA 11
Gray-Herewini v Lee [2013] WASC 200
Kay v R [2004] WASCA 222
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26
Libri v The State of Western Australia [2013] WASCA 113
Payne v Ault [2013] WASC 65
Plenty v Bargain [1999] WASCA 67
R v Bailey (1988) 35 A Crim R 458
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
(Page 3)
R v Smith (1987) 27 A Crim R 315
Reynolds v Commissioner of Police [2001] WASCA 203
Rouse v Wilson [2008] WASC 66
Shee v Jennings [2013] WASC 162
State of Western Australia v Hyder [2011] WASCA 256
Voysey v Whyatt [2011] WASC 305
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilson v The State of Western Australia [2010] WASCA 82
Winwood v Brown [2011] WASC 123
Zinga v Johnson [2012] WASC 216
(Page 4)
- BEECH J:
Introduction
1 The appellant pleaded guilty to dangerous driving causing bodily harm aggravated by speed contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA). He was sentenced to 6 months and 1 day of imprisonment, to be served immediately, and his driver's licence was suspended for 18 months.
2 He appeals against the imposition of a term of immediate imprisonment. For the reasons that follow, I would uphold the appeal.
The facts
3 In essence, the appellant's offence involved drag-racing on a main road in suburban Perth.
4 The facts were not in dispute.
5 At 7.45 pm on 22 July 2012, the appellant was in his V8 Commodore on Walcott Street in Menora. He had a passenger in his car, sitting in the front passenger seat.
6 At the intersection of Walcott Street and Alexander Drive, the appellant's car was next to the car of the appellant's co-offender.
7 Both drivers revved their engines whilst stationary at the traffic lights. When the lights turned green, both drivers accelerated heavily, causing their tyres to squeal. Both drivers drove at excessive speed on Walcott Street, racing. At first, the co-offender's vehicle was in front. The appellant caught up with the co-offender's vehicle. As the vehicles approached the crest of a hill, the appellant lost control of his vehicle, going to the wrong side of the road before returning to the left-hand side.
8 The appellant's vehicle left the road and hit a tree, leaving 93 metres of tyre marks. The primary impact with the tree occurred on the driver's side of the car. The appellant was seriously injured. I will say more about that.
9 The passenger in the appellant's car suffered a fractured leg and hand.
10 The speed limit was 60 km per hour. Before the magistrate, the prosecutor stated that it was estimated that both drivers were travelling somewhere between 109 and 132 km per hour before the appellant lost
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- control of his vehicle. By his plea of guilty, the appellant accepted the pleaded circumstance of aggravation, namely that he exceeded the speed limit by more than 45 km per hour.
The plea in mitigation
11 The learned magistrate said at the outset, having heard the facts, that imprisonment was a real prospect and suggested a pre-sentence report 'so that he could explore more options' (ts 28/12/12, page 3).
12 Counsel for the appellant (not counsel on the appeal) suggested there was unlikely to be more than 'limited benefit' in such a report, saying that the appellant had no record, no drug or alcohol issues, no psychological issues, and no recollection of the day.
13 In the plea in mitigation, counsel said, in summary:
(a) the appellant had no recollection of the events of the day, having been in an induced coma following the accident;
(b) the appellant was 18, and on P-plates at the time of the offence;
(c) the appellant has no record;
(d) since the incident, the appellant has had no further contact with the driver of the other car, who he views as a negative peer influence;
(e) after the accident, the appellant was in an induced coma for 10 days and spent four months in hospital. He also suffered a broken wrist, broken hip, lost a kidney, tore his liver, punctured his lungs, broke most of his ribs, and fractured his spine;
(f) counsel raised a query as to the estimate of the speed;
(g) the appellant lives with his mother and step-father. Having finished TAFE, he is an apprentice tiler. He was still off work because of his injuries, but was planning to go back to work in the new year. He has ongoing medical issues as a result of the accident. He said that the only real psychological consequence has been some nightmares, but that he was planning to undertake psychological counselling;
(h) the appellant's plea of guilty at the first opportunity was an indication of his remorse. He had apologised to the passenger immediately and was very disappointed in himself; and
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- (i) a substantial fine would be the appropriate disposition of the matter, saying that the appellant had never been before the courts, had good prospects for rehabilitation, and given his youth and the fact that the offence was 'gravely out of character', imprisonment was not called for.
(ts 28/12/12, pages 3 - 5)
The sentencing magistrate's reasons
14 The sentencing magistrate said as follows:
(a) credit must be given for the plea of guilty at the first opportunity, but it was a very serious matter;
(b) for a reason still unknown, the appellant entered into a race, left traffic lights at excessive speed, drove in a manner that included going to the wrong side of the road and leaving long skid marks, leading to a collision causing serious harm to the appellant and bodily harm to the passenger;
(c) the conduct appeared to be out of character in that there were no prior convictions;
(d) regrettably, this seemed to reflect an ongoing attitude amongst young men of invincibility, driving powerful cars, in this case a V8 Commodore, with no sense of what might possibly happen;
(e) in this case, fortunately everyone escaped death, but serious injury was the result;
(f) because of the manner of the driving, 'immediate imprisonment' was the only appropriate sentence. That was necessary to reflect the community's disapproval of this type of conduct. A clear message must be sent to the community to those that are involved in drag-racing that prison will be the outcome; and
(g) the magistrate said that he imposed imprisonment reluctantly, taking into account the absence of a record, that the appellant had completed an apprenticeship and that he was still a young man, saying that, unfortunately, the circumstances of the offence outweighed the appellant's personal circumstances (ts 28/12/12, pages 5 - 6).
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Grounds of appeal
15 The notice of appeal includes two grounds:
(1) the learned magistrate erred in law by failing to correctly consider alternatives to imprisonment reasonably open due to the circumstances of the case, including the youth, character, ill-health and plea of guilty of the appellant; and
(2) the learned magistrate erred in law by failing to reconsider all of the relevant sentencing factors to determine if a suspended sentence of imprisonment was appropriate.
16 Leave to appeal on these grounds was granted on 15 January 2013, and the appellant was granted bail pending his appeal.
17 At the hearing of the appeal, the appellant was granted leave to add grounds in the following terms:
(3) additional evidence not before the learned magistrate relating to the appellant's health at the time of the sentencing indicates that imprisonment would be a greater burden upon the appellant due to his health, and there is a serious risk of imprisonment having a gravely adverse effect upon the appellant; and
(4) the learned magistrate erred in law in taking into account the injuries of the appellant as an aggravating factor, when those injuries were relevant only to mitigation.
18 I turn to ground 1.
Ground 1 - manifest excess
19 While the language of ground 1, as formulated, is not clear beyond doubt, in oral argument ground 1 was taken as an allegation that the learned magistrate imposed a sentence that was manifestly excessive, in that it was not reasonably open to the magistrate to impose a term of immediate imprisonment.
Appeal against sentence: general principles
20 The general principles relevant to an appeal against sentence on the ground of manifest excess are well-known, see Wilson v The State of Western Australia [2010] WASCA 82 [2]. The starting point is that sentencing is a process involving the exercise of discretion. On appeal, that exercise of discretion will not be interfered with unless error is
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- demonstrated. Error may be express, or it may be implied from the result. Manifest excess is an example of implied error. A finding of implied error is a conclusion that the sentence imposed was so unreasonable or unjust that some substantial error occurred, although it is not possible to discern what specifically the error was. Manifest excess is not established merely because, in sentencing the offender, the appellate court would have imposed a different sentence. Nor is it established simply because the result is markedly different from other sentences that have been imposed in other cases.
21 In Fogg v The State of Western Australia [2011] WASCA 11 [8] - [10], McLure P (Mazza J agreeing [49]) explained the approach to be taken in deciding whether a term of imprisonment should be suspended or served immediately, and in determining an appeal on that question:
Section 39(2) of the Sentencing Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. The term 'appropriate' in its statutory context signifies the conclusion reached by the decision-maker after the exercise of the sentencing discretion. The concept of a discretion is explained by the High Court in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said:
'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment [19].
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision-maker has to be positively satisfied that a lesser sentence is not appropriate.
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- In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option.
22 Thus, on ground 1 the question on appeal is not whether this court would have imposed a term of immediate imprisonment; the question is whether it was open to the primary court to do so.
23 In determining whether a sentence is manifestly excessive, account is taken of the maximum penalty, the sentences customarily imposed for offences of that kind, the facts and circumstances of the offending, the place of this offence in the scale of offences of this type, and the offender's personal circumstances: Chan v R (1989) 38 A Crim R 337, 342.
Sentencing principles in dangerous driving cases
24 At the time of the offence, the maximum penalty was 7 years. The summary conviction penalty was 18 months or a fine of up to $8,000: Road Traffic Act, s 59A(3a).
25 The importance of general deterrence for offences of dangerous driving causing death or serious injury has been repeatedly emphasised. See, in relation to dangerous driving causing death or grievous bodily harm, Ainsworth v D (a child) (1992) 7 WAR 102, 115 - 116.
26 The seriousness of an offence of dangerous driving causing harm will be measured against both elements of the offence, namely the manner of driving and the degree of harm caused to the victim: Ainsworth (114); see also Kay v R [2004] WASCA 222 [2] - [5]. As EM Heenan J explained in Voysey v Whyatt [2011] WASC 305 [56], the consequences of dangerous driving have been identified as a factor to be taken into account, not because they are directly within the control of the offender, but because of the objective impact which the conduct has on the victims and of the risk constituted to the public.
27 In Libri v The State of Western Australia [2013] WASCA 113 [31], the Court of Appeal observed that there is no tariff for the offence of dangerous driving causing grievous bodily harm. In my view, the same can be said of the offence of dangerous driving causing bodily harm. See also Kay v R [2].
(Page 10)
28 In their submissions, the parties referred to a number of cases involving dangerous driving causing death or grievous bodily harm. Neither party referred to any appellate decision involving dangerous driving causing bodily harm without a more serious offence.
29 There are some appellate cases where the most significant charge was dangerous driving causing bodily harm. However, the following review reveals that those decisions do not establish any discernible pattern of sentencing that assists in the resolution of this appeal.
30 In Payne v Ault [2013] WASC 65, Hall J resentenced the appellant on a charge of dangerous driving causing bodily harm. (The ground for resentencing is not presently relevant.) The magistrate had imposed a term of 15 months' imprisonment to be served immediately. The appellant served two months before being released on bail. Hall J imposed a term of 12 months' imprisonment, suspended for 12 months. The case was factually very different from the present case: the offender drove under the influence of drugs and caused an accident by going onto the other side of the road.
31 In Rouse v Wilson [2008] WASC 66, a sentence of 12 months' immediate imprisonment was imposed by the magistrate for an offence of dangerous driving causing bodily harm. A further term of 12 months, to be served cumulatively, was imposed on a charge of stealing a motor vehicle. An appeal on the ground that the sentences should have been concurrent was upheld. Le Miere J substituted a sentence of 6 months on the stealing charge, to be served cumulatively with the term on the driving offence. His Honour observed that the sentence for the driving offence was appropriate. The offence in that case was committed in very different circumstances from the present case. The appellant stole the victim's car. When the victim reached his arm through the window, the appellant accelerated, dragging the victim alongside the car. Despite the victim's pleas to stop, the appellant kept driving. Thus he consciously risked serious injury to the victim when he chose to continue driving [7].
32 Non-custodial sentences were imposed in Reynolds v Commissioner of Police [2001] WASCA 203, and Plenty v Bargain [1999] WASCA 67, both of which were considerably less serious than the present case.
33 The appellant relies on two Western Australian decisions involving the more serious offence of dangerous driving causing grievous bodily harm: Abeyakoon v Brown [2011] WASCA 63 and Voysey v Whyatt.
(Page 11)
34 In Abeyakoon v Brown, the offender was convicted of dangerous driving causing grievous bodily harm, dangerous driving causing bodily harm, driving with 0.05% blood alcohol level and failing to stop after an accident. The magistrate imposed a term of 18 months' imprisonment on the offence of dangerous driving causing grievous bodily harm, and 6 months on the dangerous driving causing bodily harm, concurrent with the first term. On appeal, the first sentence was reduced to 12 months, the second was not interfered with, but the terms of imprisonment were suspended. The offender drove through a red light in a way that was characterised by the Court of Appeal as inadvertent. He drove with alcohol in his blood inadvertently, in that he woke up after a few hours sleep, thinking it was later than it was. He was not speeding. Given the very significant differences in the culpability between the offending in that case and in this case, I accept the respondent's submission that Abeyakoon v Brown provides little or no assistance for the task of identifying whether the sentence imposed in this case was manifestly excessive.
35 In Voysey v Whyatt, the offender was convicted of dangerous driving causing grievous bodily harm in circumstances of aggravation. The maximum penalty was 14 years. The offender drove for some distance in excess of 120 km per hour in a built-up area. He did this after having discussed it with his co-offender in a fast-food restaurant. The passenger suffered a fractured skull and bleeding to the brain. The sentencing magistrate imposed a term of imprisonment of 12 months to be immediately served. EM Heenan J described the sentencing task of the magistrate as extremely difficult. His Honour recognised the difficulties of finding the appropriate balance between the aim of general deterrence against dangerous driving and the personal circumstances of the offender. His Honour concluded that the decision to impose immediate imprisonment revealed implied error [63].
36 In Voysey, the injuries caused to the victim were significantly more serious than in this case, reflected in the more serious offence and significantly higher maximum penalty.
37 At the hearing of the appeal, counsel for the respondent acknowledged that the decision in Voysey presented a 'difficult challenge' for the respondent's case (appeal ts 23).
38 Of course, one decision does not constitute a pattern of sentencing.
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39 In Shee v Jennings [2013] WASC 162, Corboy J concluded that a term of 18 months, to be immediately served, for an offence of culpably driving a vessel that was involved in an incident that caused grievous bodily harm was manifestly excessive. His Honour considered the circumstances of the offending in that case were less serious than in Voysey v Whyatt [29].
Was the sentence manifestly excessive?
40 The respondent pointed to the following serious features of the appellant's offending conduct, which I accept:
(1) by his conduct in engaging in drag-racing, the appellant voluntarily placed himself, his passenger, those in the other car and the general public, in danger;
(2) the appellant drove at dangerous speeds, more than 45 km an hour above the speed limit;
(3) in doing so, he showed a disregard for other people's safety and, as the magistrate said, acted with an air of 'invincibility';
(4) the race occurred on a main road in Perth at a time of the day, 7.45 pm, when it could be expected that there would be other people using the road; and
(5) the victim suffered substantial injuries, namely fractures of the leg and hand.
41 Insofar as the appellant contends that the magistrate erred in imposing imprisonment, and should have instead imposed a fine, I reject the submission. The seriousness of the appellant's offending conduct means that imprisonment is the only appropriate penalty. The real question is whether there was any error in the decision to decline to suspend that imprisonment.
42 Counsel for the appellant emphasises his favourable personal circumstances. The appellant is young, being only 18 when he committed the offence. He has no record. He has strong family support, and good prospects, including employment, given his apprenticeship.
43 Against this, the respondent points out, correctly, that such characteristics are not uncommon for offenders in relation to offences of this type. See, for example, Winwood v Brown [2011] WASC 123 [65].
(Page 13)
44 The prevalence of an offence amongst young offenders is relevant to the weight to be given to youth as a mitigating factor: Fogg v The State of Western Australia [13]. This has been applied in the context of dangerous driving causing death and grievous bodily harm. In Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466, the Court of Appeal of Victoria said as follows [53] - [55]:
It has long been accepted that, as a general rule, rehabilitation should be a primary - if not the principal - concern in sentencing a young offender (R v Mills (1998) 4 VR 235, 241 - 242). It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations (see the discussion in DPP v McCloy [2006] VSCA 99, [56]-[62] (Ashley JA)). It was submitted for the Director that the present was such a case. We respectfully agree.
It was contended for the Director that, in cases such as this, general deterrence was of primary importance:
'[T]here is widespread community alarm at very serious motor vehicle accidents involving young drivers. It is appropriate that deterrence be used to encourage young drivers not to drive dangerously.'
We accept this submission, which accords with the authorities referred to earlier. As Spigelman CJ said in Whyte, the 'frequently recurring case' of dangerous driving causing death is one involving a young offender, of good character and with no or limited prior convictions, and showing genuine remorse (R v Whyte (2002) 55 NSWLR 252, [204]). That description fits Mr Neethling perfectly.
Unsurprisingly, experience in Victoria mirrors that in New South Wales. It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here.
45 See also Director of Public Prosecutions v Hill [2012] VSCA 144 [44], [45], [50], [51].
46 I accept that the weight to be given to youth as a mitigating factor is tempered by the need for general deterrence in respect of an offence that is particularly prevalent among the young. Nevertheless, as counsel for the respondent accepted, it remains a factor. It is a question of weight. In assessing weight, it should not be overlooked that the Victorian cases on which the respondent relied were more serious offences involving death or grievous bodily harm.
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47 There are cases where immediate imprisonment of a youthful first offender of prior good character is the only appropriate outcome, taking into account the seriousness of the offence and the need for general deterrence: Langdon v Kelemete-Leoli-McLean [2011] WASCA 26. The learned sentencing magistrate came to the view that this was one of those cases.
48 In my opinion, albeit after some hesitation, notwithstanding the seriousness of the appellant's offending conduct, and the need for general deterrence, in this case, on a proper exercise of sentencing discretion, the imposition of an immediate term of imprisonment was not open. A suspended term of imprisonment is not without general deterrent effect: R v GP (1997) 18 WAR 196 and R v Liddington (1997) 18 WAR 394. Further, the very serious injuries suffered by the appellant as a result of his offending conduct are themselves capable of providing a measure of deterrence to others. In any event, in my view, the serious and permanent harm to the appellant is a factor of some significance in determining the range of appropriate dispositions available on a proper exercise of the sentencing discretion. After 10 days in a coma, the appellant spent four months in hospital. He suffered very serious and life threatening injuries to several vital organs.
49 In my view, in all the circumstances, the proper exercise of discretion required the suspension of the term of imprisonment imposed on the appellant, and the decision to impose immediate imprisonment revealed implied error.
50 For these reasons, I uphold ground 1.
51 This does not mean that a young first offender who engages in drag racing and causes bodily harm to another will necessarily receive a suspended term of imprisonment. The sentencing discretion is sensitive to all the circumstances of the case. In this case, the circumstances include the very serious injuries suffered by the appellant.
52 That is sufficient to dispose of the appeal. However, for the sake of completeness, and in case I am wrong in relation to ground 1, I will set out my conclusions in relation to ground 3.
Ground 3 - additional evidence
53 Under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (the CAA), the court has power to admit any other evidence that was not before the primary court.
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54 Both parties agreed in the appeal that the test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed, referring to the State of Western Australia v Hyder [2011] WASCA 256 [25] - [26]. The court in that case adopted what had been said in Wheeler v The Queen [No 2] [2010] WASCA 105 [3], [53]. Wheeler and Hyder dealt with appeals to the Court of Appeal. In that context, in Wheeler, Owen JA held (McLure P agreeing) that the test for admission of evidence under s 40(1)(e) correlates with the grounds that enliven the power to allow an appeal against sentence in s 31(4)(a) - that a different sentence should have been imposed. Part 2 of the CAA deals with appeals from courts of summary jurisdiction. It does not have any provision analogous to s 31(4)(a). Nevertheless, the parties agreed that the same approach should be applied. That was essentially on the basis that an appeal against sentence should be allowed only if there was a miscarriage of justice and that this would be so if a different sentence should have been imposed. I am content to proceed on this agreed basis.
55 The respondent also agreed with the following propositions advanced in the appellant's submissions:
(1) evidence of post-sentence events is generally not admissible, but evidence of subsequent events may be received to show facts that were in existence at the time of sentence but not known by the sentencing judge or not properly appreciated: Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [30];
(2) events occurring after the imposition of the sentence which bring light to the implications of the offender's conditions of health existing at the time of the sentencing are relevant and admissible: R v Smith (1987) 27 A Crim R 315, 316;
(3) ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health: R v Smith (317); and
(4) the risk of deterioration of the offender's health by reason of imprisonment must be balanced with all the circumstances including the seriousness of the offence, the prisoner's record and any other personal circumstances: R v Bailey (1988) 35 A Crim R 458, 463.
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56 As to (1), Hall J has recently held that, broadly, the same approach applies to appeals from a magistrate, notwithstanding the specific provision in s 14(5) of the CAA: Gray-Herewini v Lee [2013] WASC 200 [21] - [24].
57 In exercising the court's power under s 40(1)(e) the court takes into account the reasons why the additional material was not adduced before the primary court, the circumstances, if any, in which the additional material came to light, and its probative value: Wheeler [3] - [4], [53].
58 Most of the additional material relied upon by the appellant could have been adduced before the sentencing judge. As counsel for the respondent submitted, the most probable inference is that counsel for the appellant before the magistrate did not properly appreciate the seriousness of the appellant's offence, and the consequent risk of a term of imprisonment. That inference is also supported by counsel's rebuffing of the learned sentencing magistrate's proposal to obtain a pre-sentence report.
59 Notwithstanding that most of the material was available, or could have been available and provided to the sentencing court, for the reasons that follow, I would admit the additional evidence.
60 Assuming, contrary to my finding on ground 1, that a term of immediate imprisonment was open on the material before the sentencing magistrate, in my opinion, for the reasons that follow, taking into account the additional material, a different sentence should have been imposed, in that a term of immediate imprisonment should not have been imposed.
61 Before the sentencing magistrate, counsel for the appellant made reference to the serious injuries suffered by the appellant in the accident, but only in a rather cursory fashion. The medical report from Professor Winterton explains in considerably more detail the nature and extent of the injuries suffered. Further, the report identifies the need for physiotherapy and swimming to regain muscular skeletal strength, and for ongoing psychological support. Professor Winterton also reports that the injuries will prevent the appellant from pursuing work as a tiler, the apprenticeship which he had undertaken. Thus the appellant will need to retrain. That was not made known to the sentencing magistrate.
62 Further, Professor Winterton says that the extensive spinal, pulmonary, liver and kidney injuries that the appellant has suffered mean that any violence to which he was exposed to in the prison system would
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- have major consequences for him, by implication, significantly worse than for a person without such injuries.
63 Further support for the need for physiotherapy is provided by the reports of Dr Papineau.
64 Before the magistrate, counsel for the appellant said that the appellant proposed to engage in psychological counselling. The report of the appellant's treating psychologist, Mr Granieri, reveals the extent of the psychological impact of the incident, and subsequent hospitalisation, on the appellant. Mr Granieri expresses the view that the appellant has moderate to severe depression. He also expresses the opinion that were the appellant to return to prison it would be a significant setback in recovering from his depression.
65 In my opinion, taking into account these matters, together with the whole of the circumstances already outlined earlier in these reasons, a different sentence, not involving immediate imprisonment, should be imposed on the appellant. Thus I would grant leave to appeal and uphold ground 3.
66 Given that I have upheld the appeal on two separate grounds, it is not necessary to deal with the remaining two grounds.
Conclusion and resentencing
67 Having upheld the appeal in relation to grounds 1 and 3, the appellant must be resentenced.
68 Had the appellant not served any of the sentence imposed on him, I would have suspended the sentence of 6 months and 1 day imposed by the magistrate. As I have said, I am satisfied that the seriousness of the offence called for a sentence of imprisonment. However, in the circumstances that the appellant has served some of his sentence, it does not seem to me to be possible to impose a suspended sentence now. The problem has been recently explained by Hall J in Casotti v Pickering [2013] WASC 174. A suspended sentence should not be imposed which is of a length greater than would be appropriate if the sentence were ordered to be immediately served; see s 76(2) of the Sentencing Act 1995 (WA), see also Zinga v Johnson [2012] WASC 216. Given that the appellant has served some of his sentence, a suspended sentence of 6 months and 1 day would be inappropriate. Such a sentence would not take into account the time already spent in custody. A suspended sentence of 6 months or less for a single stand alone offence is prohibited:
(Page 18)
- Sentencing Act s 86. A sentence of imprisonment to be suspended cannot be backdated: Zinga v Johnson [23].
69 Given that what I have said in the preceding paragraph has not been the subject of submissions, it is not a concluded view. I will hear from the parties in relation to these matters, and as to the appropriate disposition upon resentencing.
6
29
2