Azizi v CLARSON - [2002] WASCA 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: AZIZI -v- CLARSON [2002] WASCA 123

CORAM: McKECHNIE J

HEARD: 24 APRIL 2002

DELIVERED : 24 APRIL 2002

PUBLISHED : 10 MAY 2002

FILE NO/S: SJA 1163 of 2001

BETWEEN: KHALED AZIZI
Appellant
AND
GEOFF CLARSON
Respondent

Catchwords:

Criminal law - Sentence - Threat to kill - Hindering Commonwealth officer - Failure to take plea of guilty into account - Failure to make recognisance release order - Failure to backdate sentence

Legislation:

Crimes Act 1914 (Cth), s 16A

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr M M Flynn
Respondent: Mr D W L Renton

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions

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

Nil

Case(s) also cited:

Dinsdale v The Queen (2000) 175 ALR 315
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Kauhanen v The Queen [1999] WASCA 14; (1999) 109 A Crim R 47
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
Ratcliff v The Queen, unreported; SCt of WA; Library No 980051; 3 November 1998
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Ward (1999) 109 A Crim R 159
Willmott v The Queen [2000] WASCA 300

McKECHNIE J: On 7 July 2001 the appellant pleaded guilty in the Broome Court of Petty Sessions to two charges, one of hindering an ACM officer by throwing sand and one of threatening to kill an ACM officer.
The facts in relation were said by the learned prosecutor as follows:
"… during the evening of 4 April, those detainees suspected of being part of the initial instigators of the disturbance were isolated from the main group.
While these transfers were taking place of these people from the Delta compound to the Hotel compound, the defendant threw sand in the faces of other ACM officers in an attempt to maintain control of the situation and refused to comply with ACM officer requests.
With respect to the threat to kill, some time later the defendant approached Officer Toomalatai, gestured and pointed at him and said to him in English, 'If my friends don't come back, I'll kill you all.' The defendant then participated in a record of interview on 20 April. During the record of interview he denied saying that and in fact says what he said was, 'Do you want to kill us?' and of course he is here today pleading guilty to that charge."
The prosecutor reminded the Magistrate that the maximum terms were 12 months on each charge and that, given that both charges were on the one complaint, he was able to deal with them globally.
The Magistrate had a number of defendants before him on that day, and was required to make findings of fact in relation to a number of trials. After trial, he proceeded to sentence the group individually, including the appellant. The appellant, it would appear, had given evidence in some matters, but certainly did not give evidence in his own case because he pleaded guilty. When sentencing, the Magistrate Mr A Bloemen said:
"Mr Azizi, please stand up. Again, my comments I made very much apply to you. I did not believe your evidence in any way, shape or form. You utilised this Court for your own benefit. In relation to the charge that you threatened to kill, there will be 14 months' imprisonment."
On the prosecutor pointing out that the maximum was only 12 months, the Magistrate said:
"There will be 12 months' imprisonment as I cannot see any circumstances in mitigation. Again, you did not show any remorse and taking in consideration the seriousness of the offences. In relation to the other charge there will be 6 months' imprisonment and both charges will be cumulatives. They will not be backdated."
Those were the sentences imposed. No reasons, as can be seen, were given for failing to backdate the sentences and in breach of s 19AC(5) of the Crimes Act. The Magistrate did not state his reasons for failing to impose a recognisance release order or cause the reasons to be entered in the records of the Court.
The appellant obtained leave to appeal against the conviction on a number of grounds; but as I propose to allow the appeal on some grounds, it is not necessary for me to set them all out in detail. I will only mention some salient points. This was a plea of guilty. The maximum sentence for the threat to kill was 12 months' imprisonment, and the Magistrate said, "I cannot see any circumstances in mitigation." It is clear that by those comments the Magistrate failed to take into account the provisions of s 16A of the Crimes Act in that he failed to take any account of the fact that the plea was a plea of guilty. That in itself was a significant error.
Secondly, the comments of the Magistrate, that he did not believe the evidence and that the appellant utilised this court for his own benefit, indicate the significant possibility that he may have mistaken Mr Azizi's actions for those of some others. That possibility arose because of the unusual and irregular course adopted by the Magistrate in dealing with the defendants as a group for the purposes of conviction and sentence.
It is necessary to look at each offence. The offence of threatening to kill the ACM officer was a very serious offence committed against a background of a riot when the officers were trying to contain the appellant and others. But for the plea of guilty, it might have justified a sentence approaching the maximum for reasons of general deterrence and specific deterrence.
The offence of throwing sand, especially as it appears that the officers were in riot gear, is, in the words of counsel for the appellant today, more of a statement - something with which I am inclined to agree. It did not appear to have been a great hindrance to them. While any interference with the officers going about their duties is serious, there has to be a degree of proportionality.
Taking all things into account, I conclude that the Magistrate made a number of errors in the sentencing process, as I have identified, and the sentence ought therefore to be set aside and the appellant re-sentenced.
In relation to the threat to kill, taking account of all the circumstances, including particularly the plea of guilty, and other matters of mitigation put forward to the Magistrate by defence counsel, an appropriate sentence would have been one of 8 months' imprisonment.
In relation to throwing sand, the appropriate sentence would have been one of 3 months' imprisonment. I am unable to detect any sufficient error in the accumulation of those sentences. Therefore, I re‑sentence the appellant to a total term of 11 months' imprisonment.
There appears to me no reason in principle why a recognisance release order should not be set and, but for the matter I am about to mention, I would have set a recognisance release order.
The Magistrate did not backdate the sentence. Ordinarily sentences should be backdated to the time a person is taken into custody and to take account of the time they spent serving in custody in relation to that offence. If there is a reason not to backdate the sentence, then the sentencing Magistrate has a duty to state what those reasons are. In this case no reasons were stated and I can see no reason why the sentence should have been held to have taken effect forthwith. Therefore, I would allow the appeal by backdating the sentence to 24 April 2001. The consequence is that the appellant has served his sentence and therefore there is no point in imposing a recognisance release order.
The orders will be:
(1)the appeal is allowed;
(2)(i) the sentence imposed for the threat to kill is set aside, and in lieu there be a sentence of 8 months' imprisonment;
(ii) the sentence imposed for throwing a handful of sand into the face of the officers is set aside, and in lieu a sentence of 3 months' imprisonment, to make a total cumulated of a sentence of 11 months' imprisonment, that sentence to be backdated to 24 April 2001.
For the reasons which I have stated, I decline to impose a recognisance release order.