Astle v Twort

[2021] WASC 445

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   ASTLE -v- TWORT [2021] WASC 445

CORAM:   HALL J

HEARD:   8 DECEMBER 2021

DELIVERED          :   8 DECEMBER 2021

PUBLISHED           :   10 DECEMBER 2021

FILE NO/S:   SJA 1080 of 2021

BETWEEN:   TROY FRANK ASTLE

Appellant

AND

RYAN TWORT

Respondent

FILE NO/S:   SJA 1081 of 2021

BETWEEN:   TROY FRANK ASTLE

Appellant

AND

RYAN TWORT

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE K TAVENER

File Number            :   RO 1200 of 2021

Catchwords:

Criminal Law - Commonwealth offence - Using a carriage service to menace, harass or cause offence - Application of Sentencing Act 1995 (WA) - Imposition of suspended and conditional suspended imprisonment orders – Sentences made without jurisdiction – void ab initio

Legislation:

Crimes Act 1914 (Cth), s 20(1)(b)
Judiciary Act 1903 (Cth), s 63
Sentencing Act 1995 (WA), s 80(3), s 84F(3)

Representation:

SJA 1080 of 2021

Counsel:

Appellant	:	N Sinton
Respondent	:	P Femia

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

SJA 1081 of 2021

Counsel:

Appellant	:	N Sinton
Respondent	:	P Femia

Solicitors:

Appellant	:	Legal Aid - Perth – Criminal Appeals
Respondent	:	State Solicitor's Office

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

R v Pham [2015] 256 CLR 550

HALL J:

(This judgment was delivered extemporaneously on 9 December 2021 and has been edited from the transcript.)

1. These two appeals have been listed to be heard together.  They relate to a sentence of conditional suspended imprisonment and the subsequent cancelling of that order and resentencing to a different suspended imprisonment order. 

2. Both the original order and the later order were made pursuant to the Sentencing Act 1995 (WA). The Sentencing Act is, of course, a state Act.  It does not apply to offenders who commit federal offences unless it is picked up and applied by a Commonwealth law. 

3. Section 68 of the Judiciary Act 1903 (Cth) provides that the laws of a state respecting the arrest and custody of offenders apply to persons charged with offences against the laws of the Commonwealth 'so far as they are applicable'. The effect of the latter condition is that state laws do not apply where the Commonwealth has made provision in respect of the same subject matter. This process was explained by the High Court in R v Pham:[1]

   Nevertheless, such State and Territory sentencing laws as are picked up and applied by s 68 of the Judiciary Act operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application. To the extent that Pt IB of the Crimes Act 1914 (Cth) specifically or impliedly provides for sentencing considerations which are different from otherwise applicable State and Territory sentencing considerations, the Crimes Act is exclusive.

   [1] R v Pham [2015] 256 CLR 550 [22] (footnotes omitted).

4. Part 1B of the Crimes Act 1914 (Cth) provides for the sentencing options available when dealing with federal offenders, including conditional release of a convicted offender sentenced to imprisonment (see s 20(1)(b) of the Crimes Act). The provisions of part 1B leave no room for the application of state sentencing options, in particular suspended sentences and, thus, are exclusive. The effect of this is that it is not open to a magistrate exercising federal jurisdiction to sentence a federal offender by imposing a conditional suspended sentence or a suspended sentence under Part 11 or Part 12 of the Sentencing Act.

Procedural history

1. The appellant appeared in the Magistrates Court at Midland on 18 May 2021 on one charge of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code (Cth) and two charges of breach of bail contrary to s 51(1) of the Bail Act 1982 (WA). He pleaded guilty to those charges and was sentenced the same day.

2. It was apparent from the prosecution notice that the first charge was a Commonwealth offence and the magistrate specifically noted that fact when he was referring to the charge.  The Commonwealth offence was a serious one.  It involved the appellant making two abusive and threatening telephone calls to his ex‑partner on 9 February 2021.  The calls were made from Casuarina Prison where the appellant was then serving a sentence for an unrelated offence.  The maximum penalty for such an offence is three years' imprisonment.

3. The magistrate concluded that imprisonment was appropriate, bearing in mind the circumstances of the offending and the appellant's prior history and the need for personal deterrence.  However, he decided that any such sentence could be suspended.  He considered a conditional suspended imprisonment order was appropriate as community supervision could assist the appellant in managing his anger.  He told the appellant that if the appellant committed a further offence during the suspension period that carried a penalty of imprisonment that could lead to activation of the sentence.  In particular, he said that any offence involving violence would lead to 'automatic' jail. 

4. His Honour then imposed four months' imprisonment on the Commonwealth offence and three months' imprisonment on each of the breach of bail offences.  He said one of the three‑month sentences would be cumulative on the four‑month sentence and the other would be concurrent.  He then suspended the total effective sentence of seven months for a six‑month period.

Merits of the Appeal

1. Whilst the magistrate did not refer to the Sentencing Act as the basis for the sentences, there can be no doubt that that was the statutory basis that he relied on.  That is apparent from the form of words he used and the structure of the sentence. 

2. The analogous federal sentencing option is, as I have mentioned, a conditional release order and has a different structure.  Such an order requires the imposition of a sentence together with an order that the offender be immediately released on entering into a recognisance to be of good behaviour for a set period. The recognisance is usually made in a form provided for in regulations[2] and requires the nomination of a sum of money as security, which the offender agrees to pay in the event of non‑compliance. In the event of non‑compliance with a s 20(1)(b) Crimes Act order, breach proceedings can be brought under s 20A.  If a breach is established the offender can either be fined, the recognisance order varied, the offender re‑sentenced or no action taken.  In any event, the court can order that the security be estreated. 

   [2] See optional  Form 12, reg 6 Crimes Regulations 2019 (Cth)

3. There is no presumption in favour of immediate imprisonment for breach of a s 20(1)(b) order under the Crimes Act. This is to be contrasted with a conditional suspended imprisonment order and a suspended imprisonment order under the Sentencing Act (see s 80(3) and 84F(3)) where, in the case of breach by re‑offending, the court must order the suspended term be served unless it would be unjust to do so.

4. A conditional suspended imprisonment order was not an available penalty for the Commonwealth offence.  Thus, the sentence imposed by the magistrate was made without jurisdiction and is null and void.  In these circumstances, an error of law is established and the appeal against the sentence imposed on 18 May 2021 must be allowed.  

5. On 27 July 2021, the appellant was convicted in his absence of two offences of breaching the conditional suspended imprisonment order by failing to report for supervision. On 6 August 2021, the magistrate cancelled the conditional suspended imprisonment order and purported to re‑sentence the appellant on all charges, including the Commonwealth charge.  In relation to that charge, the magistrate re‑sentenced the appellant to a six‑month‑and‑one‑day term of imprisonment suspended for six months.  Again, it is apparent that this was done purportedly under the Sentencing Act.  The effect of this was to increase the penalty for that offence, albeit that the sentence was suspended without conditions. 

6. For the reasons given in respect of the earlier order, this new sentence was also made without jurisdiction and is also null and void.  In these circumstances, an error of law is established and the appeal against the sentence imposed on 6 August 2021 must also be allowed.

7. The respondent, quite properly, has conceded that both appeals must be allowed.

Conclusion

1. In those circumstances I will make the following orders:

   (1) Leave to appeal on each appeal is granted.

   (2)Appeals allowed.

   (3) The sentences imposed on 18 May 2021 and 6 August 2021 in respect of the Commonwealth offence be set aside and those sentences be treated as void ab initio.

   (4)The Commonwealth charge be remitted to the Magistrates Court for resentencing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Hall

10 DECEMBER 2021