Anderson v WA Police
[2023] WASC 470
•8 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ANDERSON -v- WA POLICE [2023] WASC 470
CORAM: WHITBY J
HEARD: 8 DECEMBER 2023
DELIVERED : 8 DECEMBER 2023
FILE NO/S: SJA 1087 of 2023
BETWEEN: KERRY DAWN ANDERSON
Appellant
AND
WA POLICE
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A MATTHEWS
File Number : PE 43229/2021, PE 43230/2021, PE 32951/2022, PE 13018/2023 & PE 28462/2023
Catchwords:
Single judge appeal - Error of law occasioned by failure to state extent of reduction of sentence pursuant to s 9AA(5) of the Sentencing Act 1995 - Lesser sentence would have been imposed - Miscarriage of justice occurred
Legislation:
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal allowed
Sentences set aside and new sentence imposed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondents | : | E A Heywood |
Solicitors:
| Appellant | : | In Person |
| Respondents | : | State Solicitor's Office |
Case(s) referred to in decision(s):
House v R [1936] HCA 40; (1936) 55 CLR 499
Martino v State of Western Australia [2006] WASCA 78
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Samuels v The State of Western Australia [2005] WASCA 193
WHITBY J:
(This judgment was delivered extemporaneously on 8 December 2023 and has been edited from the transcript.)
Introduction
On 1 March 2023, the appellant was sentenced to 3 months imprisonment, conditionally suspended for 10 months in respect of two offences of common assault (PE 43229/2021 and PE 43230/2021) and to 7 months imprisonment, conditionally suspended for 10 months, in respect of one offence of common assault (PE 32951/2022) (together the Initial Offences).
On 15 March 2023, the appellant was charged with common assault in circumstances of aggravation, namely that the victim was over 60 years old (PE 13018/2023). The appellant entered a plea of guilty and was released on bail.
On 6 June 2023, the appellant was charged with a further common assault (PE 28462/2023) and was remanded in custody. On 4 July 2023, the appellant pleaded guilty to this offence, thereby breaching her conditional suspended imprisonment order (CSIO) for the Initial Offences.
On 17 August 2023, the appellant entered a plea of guilty to PE 13018/2023 and a conviction was entered.
On 14 September 2023, the appellant was sentenced to a total effective sentence of an immediate term of imprisonment of 6 months and 1 day in respect of the Initial Offences, PE 13018/2023 and PE 28462/2023. The sentence commenced on 14 September 2023 and the appellant was made eligible for parole. The appellant is eligible for release on parole on 14 December 2023. Her sentence expiry date is 14 March 2024.
The appellant has been in custody since 6 June 2023.
The appellant now appeals the sentence imposed on 14 September 2023.
On 7 November 2023, a registrar of this court made an order for the application for leave to appeal to be heard together with the appeal, and on 22 November 2023, made an urgent appeal order in respect of the appeal.
In determining the appeal, I have had regard to the following relevant materials:
(1)prosecution notices for each of the relevant offences;
(2)presentence report for the appellant dated 4 September 2023;
(3)transcript from the primary court dated 14 September 2023;
(4)appellant's outline of submissions filed 29 November 2023; and
(5)respondent's outline of submissions filed 1 December 2023.
Grounds of appeal
The appellant appeals the sentence on one ground:
(1)There was a miscarriage of justice in the failure to specify a numerical value of discount for the plea of guilty under s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act).
Factual background of the offences
Initial Offences
Common Assault ‑ PE 43229/2021(First Kmart Assault)
On 7 October 2021, the appellant was refused entry into Kmart at Belmont Forum in Cloverdale, due to an earlier incident between the appellant and Kmart staff.
The victim, a staff member of Kmart, told the appellant that she was not welcome and refused her entry. The appellant reacted aggressively by getting close to the victim's face and yelling obscenities at the victim.
When the victim returned to her workstation, the appellant threatened to punch her. As the victim turned around to walk away, the appellant grabbed the victim's hair from the back and pulled it backwards, pulling the victim's neck backwards.
Common Assault ‑ PE 43230/2021 (Second Kmart Assault)
On the same day, security guards arrived at the front of the store to escort the appellant away. Whilst being escorted, the appellant became verbally aggressive towards the security guards. The appellant threatened to stab the victim, one of the security guards, while reaching for an item in her bag. The appellant lifted her dress exposing her vagina and buttocks in public.
The victim asked the appellant to stop. The appellant pushed the victim's chest using both open palms.
The victim tried to continue escorting the appellant out of the Belmont Forum by following her from behind. The appellant retaliated by grabbing the victim's collar and tried to bite the victim's cheek.
The victim struggled to push the appellant off him, which caused other security guards to intervene. The victim and his colleagues managed to grab the appellant by her arms and escort her out of the complex. Whilst outside of the parking lot the appellant continued her aggressive behaviour and pushed the victim again in the chest, causing the victim to lose balance.
Common Assault ‑ PE 32951/2022 (IGA Belmont Assault)
On 2 August 2022, the appellant entered IGA in Belmont. The appellant selected items from the shelves in the store and placed them in her bag.
The victim noticed the appellant, as he had previously dealings with the appellant and understood the appellant was banned from the store.
The victim saw the appellant placing items in her bag and then walk towards the exit. The victim approached the appellant and asked for the items back. The appellant told the victim she was leaving.
The victim reminded the appellant that she has been banned from the store and that she needed to give the items back. The appellant continued to attempt to leave. The victim took hold of the appellant's bag and they had a physical struggle over the bag.
The appellant then lent forward and bit the victim on the wrist area of his left arm. The physical struggle continued, and the appellant grabbed hold of the victim's left arm and bit the wrist area again, breaking the skin layers and causing it to bleed.
The victim backed away from the appellant. The victim took the appellant's bag to an office area and called the police.
Subsequent Offences
Aggravated Common Assault ‑ PE 13018/2023 (Aggravated Carlisle Assault)
On 6 March 2023, the appellant was inside the victim's house in Carlisle. The appellant had been staying at the victim's house after being released on bail. The victim asked the appellant to leave her house.
The victim walked outside and the appellant followed. The victim then returned to her house and locked the appellant out. Once the appellant was locked out, the appellant picked up a brick and threw it through the rear bedroom window, causing it to shatter.
The victim left her house and the appellant followed. The appellant pushed the victim with both hands to her chest. The victim fell backwards, hitting a chair as she stumbled backwards. The victim suffered a small abrasion to her right wrist. The victim was 70 years of age.
Common Assault ‑ PE 28462/2023 (IGA Belvidere Assault)
On 5 June 2023, the appellant was inside IGA at Belvidere Shopping Centre. The appellant left the store without paying for two premium scotch fillet steaks. The victim, a staff member, asked the appellant to check her bags as part of their policy. The appellant refused and continued to walk out of the store.
The victim followed the appellant and asked again for her to show her bags. The victim grabbed hold of the bags in attempt to check them.
The appellant, with her right hand in a closed fist, struck the victim's face under his left eye, causing bruising.
The hearing before the Magistrate on 14 September 2023
At the commencement of the hearing, the learned magistrate had the prosecutor read out the facts for the Initial Offences and the subsequent offences.
After hearing the facts of the offences, the learned magistrate heard the appellant's plea in mitigation. In summary, the appellant informed the learned magistrate that:[1]
(a)she would strive to be tolerant and would be a respectful citizen;
(b)she intended to be a productive member of the community;
(c)she had lost family in tragic circumstances;
(d)she was a carer for most of her life for her brother who was a paraplegic;
(e)her previous criminal behaviour was contributed to by methylamphetamine use and living in an unstable environment; and
(f)for the past two years, she had been caring for a 74 year old retired businessman.
[1] ts 6 ‑ 7, 14 September 2023.
The learned magistrate did not invite the prosecutor to make any submissions as to sentence and the prosecutor did not do so.
The learned magistrate informed the appellant that:[2]
[2] ts 7 ‑ 9, 14 September 2023.
(1)she was being sentenced for seven offences including the Initial Offences, the two subsequent common assault offences, one offence of criminal damage and one offence of stealing;
(2)he must consider whether the sentence of 7 months imprisonment, conditionally suspended for 10 months, be activated unless it would be unjust to do so;
(3)two very similar offences (to the Initial Offences) were committed after the appellant was placed on bail following the CSIO, the first of those offences being committed just five days later;
(4)the appellant was afforded an opportunity to continue on the CSIO but was charged again on 5 June 2023 with further offending;
(5)the appellant had been in custody for 100 days and that could be taken into account but that a suspended sentence could not be backdated;
(6)the sentence could be reduced to reflect the period that the appellant had been in custody and also to incorporate the principle of totality;
(7)it was very unfortunate that, given the appellant's background of tragedy and trauma, the appellant appeared to be using methylamphetamine every second day (according to the presentence report before the learned magistrate);
(8)while the appellant's methylamphetamine use may explain the offending, it did not excuse the offending;
(9)after being in custody for 100 days, the appellant presented as being healthy and on the right track again;
(10)the presentence report indicated that the appellant was not a suitable candidate for a further community-based disposition; and
(11)the sentencing options available to the learned magistrate were limited.
The learned magistrate imposed a total effective sentence of 6 months and 1 day made up as follows:
Charge
Sentence
PE 43229/2021
Immediate Imprisonment, 3 months (concurrent)
PE 43230/2021
Immediate Imprisonment, 3 months (concurrent)
PE 32951/2022
Immediate Imprisonment, 4 months (concurrent)
PE 13018/2023
Immediate Imprisonment, 6 months 1 day (concurrent)
PE 28462/2023
Immediate Imprisonment, 6 months 1 day (head sentence)
The appellant had also pleaded guilty to the offence of criminal damage in relation to breaking the window of the elderly victim (PE 13017/2023) and to the offence of stealing in relation to the two scotch fillets (PE 28463/2023) and the learned magistrate imposed a fine of $200 for each offence.
After imposing the sentences, the learned magistrate said:[3]
So I've reduced that overall because of your early pleas of guilty and reduced those sentences by section 9AA of the Sentencing Act and further mitigation owing to the time you've served in custody in arriving at that offence.
[3] ts 9, 14 September 2023.
Legislative regime
This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2 (CA Act).
The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[4]
[4] CA Act s 6(f) and s 7(1).
Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. Those grounds include where there has been an error of law[5] and/or there has been a miscarriage of justice.[6]
[5] CA Act.
[6] CA Act s 8(1)(b).
The appellant must obtain leave to appeal.[7] If leave to appeal is not granted, the appeal is taken to have been dismissed.[8] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9]
[7] CA Act s 9(1).
[8] CA Act s 9(3).
[9] Samuels v The State of Western Australia [2005] WASCA 193.
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[10]
[10] House v R [1936] HCA 40; (1936) 55 CLR 499.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[11]
[11] CA Act s 14(2).
Disposition
The appellant submits that a miscarriage of justice has occurred as a result of the learned magistrate's failure to specify the discount afforded under s 9AA of the Sentencing Act.
Section 9AA(2) of the Sentencing Act provides:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
The 'head sentence' is that sentence the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[12]
[12] Sentencing Act s9AA(1).
Section 9AA (5) of the Sentencing Act provides:
(5)If the court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
While the learned magistrate outlined the sentences that he would impose and then expressly gave a reduction under s 9AA of the Sentencing Act, the learned magistrate did not state the extent of the reduction.
The respondent concedes that the learned magistrate erred in law by failing to specify the extent of the reduction under s 9AA of the Sentencing Act.[13]
[13] Respondent's outline of written submissions filed 1 December 2023 [26].
Where there has been an express error established in the sentencing process, as there has been in this case, the court may still dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In order to determine whether a substantial miscarriage of justice has occurred, the court must consider two questions.[14]
[14] Nang & Associates Pty Ltd v Chan [2022] WASC 12 [10] ‑ [14].
Firstly, can the court exclude the possibility that the error has affected the sentence? If the court concludes that the error could not have made a difference to the sentence (that is the answer to the first question is yes), then the appeal will be dismissed. As is evident from the nature of this question, it will be a rare case where a court would conclude that the error could not, as opposed to would not, have made a difference.
Secondly, if the court determines that the error could have made a difference to the sentence (that is, the answer to the first question is no), then the next question is would the court impose the same sentence as the learned magistrate? If the answer to this question is yes, then no substantial miscarriage of justice has occurred, and the appeal would be dismissed. However, if the court would impose a lesser sentence, then the appeal should be allowed, and the court should resentence the appellant.
I turn to consider the first question of whether the court can exclude the possibility that the error has affected the sentence. A failure to state the extent of the reduction to a head sentence for a plea of guilty to an offence in order to comply with s 9AA(5) of the Sentencing Act does not automatically give rise to a material error that requires appellate intervention. That is because the failure to state the extent of a reduction in sentence for a plea of guilty does not necessarily mean that a discount was not given.
Given that the learned magistrate expressly referred to the appellant's pleas of guilty and said that he had reduced the sentence overall to take those pleas into account, the learned magistrate clearly did not overlook the pleas of guilty in determining the sentence to be imposed.
However, I cannot conclude that the error could not have affected the sentence, because I do not know the extent of the reduction applied to the head sentence as a result of the pleas of guilty. Therefore, the court cannot exclude the possibility that the error has affected the sentence.
I therefore am required to consider whether I would have imposed a lesser sentence. I have all the necessary material to determine whether I would have imposed a lesser sentence.
Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.
Section 6(3) of the Sentencing Act provides that s 6(1) does not prevent the reduction of a sentence because of any mitigating factors or totality principles. According to s 8(1) of the Sentencing Act, a mitigating factor is one which, in the court's opinion, decreases the moral culpability of the offender or decreases the extent to which the offender should be punished.
Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
The maximum penalties for the relevant offences are:
(1)common assault in circumstances of aggravation, contrary to s 313(1)(a) of the Criminal Code, imprisonment for 3 years and a fine of $36,000; and
(2)common assault, contrary to s 313(1)(b) of the Criminal Code, imprisonment for 18 months and a fine of $18,000.
The learned magistrate outlined the personal circumstances of the appellant and I accept those facts for the purposes of determining an appropriate sentence.
I turn now to look at mitigating factors.
The appellant pleaded guilty to the IGA Belvidere Assault Charge at the earliest reasonable opportunity. As a result, I would reduce the sentence I would have otherwise imposed by 25% pursuant to s 9AA of the Sentencing Act.
The appellant told the author of the presentence report that she felt disgusted with and ashamed of her actions in hindsight. Together with her submissions in mitigation to the learned magistrate, I consider that the appellant has genuine remorse for her offending, and this is a mitigating factor.
The appellant has a history of drug related offending in Western Australia and Queensland. In Western Australia, she has previously been convicted of six offences of common assault, one offence of assaulting a public officer and one offence of unlawful assault. The appellant also has a history of non‑compliance with bail conditions, breaches of community‑based orders and breaches of suspended imprisonment orders. While the appellant's history of offending is not an aggravating factor, the appellant is not entitled to any leniency for good character.
I now turn to look at aggravating factors.
It is an aggravating factor that the Aggravated Carlisle Assault and the IGA Belvidere Assault were of a similar type to the Initial Offences and were committed while the appellant was subject to a CSIO.
The Aggravated Carlisle Assault offending is aggravated by the age of the victim.
I must have regard to the purposes of sentencing - that is to deter both the appellant and others from committing offences of this kind in the future. In relation to the Aggravated Carlisle Assault, the appellant's offending was serious in that the appellant displayed aggression towards an elderly woman in her home. In relation to the other offences the appellant displayed aggression in a public place to people who were just trying to do their jobs. The appellant also committed two offences while she was on a CSIO for the Initial Offences.
Having said that, the offences are the lower end of seriousness for these types of offences because:
(1)the offences did not involve weapons and were not premeditated; and
(2)although one offence involved a bite which broke the skin and another involved a punch which caused minor injuries, the other offences did not involve a bite, punch or kick.
The appellant's personal circumstances indicate that she had experienced a series of traumatic events in her life, which together with her entrenched illicit drug use, explain, although do not excuse, her offending.
I also take into account that, as at 14 September 2023, the appellant had spent a total of 100 days in custody. It is open to the court to backdate one of the sentences imposed to 6 June 2023.[15]
[15] Section 87, in conjunction with s 86(b), of the Sentencing Act.
Given the appellant was convicted of the Aggravated Carlisle Assault and the IGA Belvidere Assault during the term of the CSIO, the appellant must serve the term of imprisonment that was suspended unless the court decides that it would be unjust to do so in view of all the circumstances that have arisen or have become known since the CSIO was imposed.[16]
[16] Section 84F(3) of the Sentencing Act.
I consider that it would be unjust to order the appellant to serve the terms of imprisonment that were suspended, given the appellant's demonstrated remorse and the fact that the offences that were committed in breach of the CSIO were at the lower end of the scale of offences of this type. Further, the appellant had spent 100 days in custody. I therefore consider that it is appropriate that the appellant not be ordered to serve any term of the terms of imprisonment that were conditionally suspended for the Initial Offences.
In relation to the Aggravated Carlisle Offence and the IGA Belvidere Assault, taking into account the maximum penalties for the offences, the appellant's personal circumstances, the seriousness of the offences and the aggravating and mitigating factors I have outlined, I am satisfied that the only appropriate disposition for each of those offences is a term of imprisonment.
I consider that the appropriate sentence for each of the offences is:
Charge
Sentence
PE 13018/2023
Immediate Imprisonment, 2 months
PE 28462/2023
Immediate Imprisonment, 6 months 1 day
Having determined the sentences which are appropriate for each offence, it is now necessary for me to assess the extent to which the sentences should be concurrent or cumulative, as well as the issue of totality.
The total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including the appellant's personal circumstances.
I must have a last look to consider that the term of imprisonment does not have a 'crushing' effect. The word crushing means the destruction of any reasonable expectation of useful life after release.[17] The crushing effect of a term of imprisonment is merely one of the mitigating factors to be taken into account in determining whether a particular term of imprisonment is proportionate to the criminality involved.
[17] Martino v State of Western Australia [2006] WASCA 78 [16].
In my view, the total criminality of the offending warrants a total effective sentence of 6 months 1 day.
In the circumstances I propose to order that PE 28462/2023 be the head sentence and the other offence be served concurrently.
After revisiting all of the factors that led me to determine that a term of imprisonment was the only appropriate disposition, I am positively satisfied that the appellant's case falls short of being sufficiently exceptional to justify any suspension of the sentence. This sentence can be backdated to commence on 6 June 2023 to take into account the time served by the appellant. Given the backdating of the sentence, it is effectively a lesser sentence than the sentence imposed by the learned magistrate which commenced on 14 September 2023.
Given I have determined that I would impose a lesser sentence than that imposed by the learned magistrate, a substantial miscarriage of justice has occurred. The appeal should be allowed, and the appellant should be resentenced to the term of 6 months 1 day immediate imprisonment, backdated to commence on 6 June 2023. The sentence has been fully served as of 7 December 2023.
Conclusion
I make the following orders:
(1)The application for leave to appeal is allowed.
(2)The appeal is allowed.
(3)The sentences imposed by Magistrate Matthews on 14 September 2023 for the offences the subject of charges PE 43229/2021, PE 43230/2021, PE 32952/2022, PE 13018/23 and PE 28462/2023 are set aside.
(4)The appellant is sentenced to serve no term of imprisonment for the offences the subject of charges PE 43229/2021, PE 43230/2021 and PE 32952/2022, 2 months for the offence the subject of the charge PE 13018/2023, and 6 months 1 day for the offence the subject of the charge PE 28462/2023, with the sentences to be served concurrently.
(5)The appellant is eligible for release on parole.
(6)The commencement date of the sentences imposed in relation to PE 28462/2023 is backdated to commence on 6 June 2023 and the sentence imposed in relation to PE 13018/2023 is backdated to commence on 14 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
11 DECEMBER 2023
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