Bakdadi v O'Neill - [2003] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BAKDADI -v- O'NEILL [2003] WASCA 267

CORAM: PULLIN J

HEARD: 2 OCTOBER 2003

DELIVERED : 7 NOVEMBER 2003

FILE NO/S: SJA 1065 of 2003

MATTER :The Justices Act 1902

BETWEEN: HASSAN EL BAKDADI
Appellant
AND
DOUGLAS MURRAY O'NEILL
Respondent

Catchwords:

Criminal law - Sentencing - Head sentence exceeded statutory maximum - In consequence sentences for related offences quashed in addition to the head sentence - Appellant re-sentenced

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B E F Tooker

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

R v Tait (1979) 24 ALR 473
Rumpf v The Queen [1988] VR 466

Case(s) also cited:

Buswell v The Queen (1990) 2 WAR 216
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Aloia [1983] WAR 133
R v Boyd [1984] WAR 236
R v Grein [1989] WAR 178
R v Liddington (1997) 18 WAR 394
Smith v Pritchard [2003] WASCA 6
Tampalini v O'Brien (1993) 114 FLR 281
Wood v Samuels (1974) 8 SASR 465

PULLIN J: The appellant appeals against the sentences imposed by Mr Bromfield SM on 6 June 2003, which followed the appellant's conviction on his own plea of:
(a)Wilfully and unlawfully damaging the motor vehicle of Daniel Leslie Baer;
(b)Reckless driving;
(c)Possession of an offensive weapon;
(d)Unlawfully assaulting Mr Baer.
All of these offences occurred on 7 February 2003 at Ballajura. At 7.05 pm on Friday, 7 February 2003, the appellant was driving his vehicle in a southerly direction on Illawarra Drive, Ballajura. The defendant turned left into Meadowview Drive and then observed the Holden Commodore sedan driven by the complainant, Mr Baer. On seeing this vehicle, the appellant accelerated behind Mr Baer's vehicle and began flashing his headlights. Mr Baer turned his vehicle left into Kingfisher Avenue, and the appellant followed before accelerating heavily, crossing to the incorrect side of the road and drawing alongside Mr Baer's vehicle. I will not relate again all of the facts which were read to the Court and which were admitted by counsel appearing for the appellant in the hearing before the Magistrate. The facts revealed outrageous behaviour by the appellant, during which he used his vehicle as a weapon to attack the complainant and which terrorised the complainant. During the incident, the appellant rammed his vehicle into the complainant's vehicle on no less than nine occasions. On four of these occasions, the appellant sideswiped the complainant's vehicle; on one of the occasions, the collision between the two vehicles caused the complainant's vehicle to spin three hundred and sixty degrees before coming to rest; on another of these occasions, the appellant rammed the complainant's vehicle off the road. The appellant drove on the incorrect side of the road on no less than seven occasions. On one of these occasions, oncoming traffic was forced to stop in the middle of the road to prevent a head‑on collision with the appellant's vehicle. At one stage during the episode, the appellant's vehicle mounted the kerb as he drove round a corner, and as he did this he drove on the footpath, almost colliding with some pedestrians who were using the path. The police soon attended and apprehended the appellant. A search of the appellant's vehicle revealed a silver butterfly knife that was located next to the handbrake. Rising out of those facts, the appellant was charged with wilful damage, reckless driving, assault and possession of the offensive weapon.
His Worship sentenced the appellant as follows:

(a)	Wilful damage charge Charge JO 5073/03	12 months' imprisonment
(b)	Reckless driving charge Charge JO 5074/03	12 months' imprisonment and 3 years suspension of licence
(c)	Offensive weapon charge Charge JO 5075/03	3 months' imprisonment
(d)	Assault charge Charge JO 5076/03	6 months' imprisonment

The maximum penalty for these offences were:

(a)	Wilful damage	3 year's imprisonment or $12,000 fine (Criminal Code s 465)
(b)	Reckless driving	6 months' imprisonment or $1,000 fine with optional disqualification (Road Traffic Act, s 60(3))
(c)	Offensive weapon	2 years' imprisonment or a fine of $8,000 (Weapons Act, s 6(1))
(d)	Assault	18 months' imprisonment or a fine of $6,000 (Criminal Code, s 313)

As can be seen, the sentence in relation to the dangerous driving charge was beyond the prescribed maximum. This was undoubtedly an error caused by pressure of work. The respondent therefore concedes that the appeal must be allowed so as to reduce the sentence in relation to that charge to a sentence within the maximum. In re‑sentencing, I must take into account the new provisions in the Sentencing Legislation Amendment and Repeal Act 2003, which commenced on 31 August 2003. This requires me to reduce sentences by one‑third so that an offender sentenced to a term of imprisonment will not serve more time in custody than under the previous law.
In my opinion, the consequence which flows from the fact that the appeal must be allowed in relation to the reckless driving charge is that all of the sentences must be quashed. This is because his Worship said that it was "the driving" that "causes me the most concern". When the learned Magistrate came to sentence the appellant, he first dealt with the reckless driving charge, even though it was the second in the numbered sequence of charges the Court was dealing with. The learned Magistrate said that he looked at the totality of the conduct and that he would start with the reckless driving charge. He then sentenced the appellant to a 12‑month term of imprisonment on that charge. Whether his Worship thought that 12 months was the maximum term or whether he had in mind some other maximum, is not disclosed. My concern is about the risk that the sentence imposed in relation to the reckless driving charge influenced the penalties imposed in relation to the other charges. His Worship imposed a term of 12 months' imprisonment in relation to the wilful damage charge, and imposed a sentence of 3 months for the possession of the weapon, and 6 months for the assault. In my view, because of the risk that the sentence imposed in relation to the reckless driving charge influenced the learned Magistrate's view about the sentences to be imposed in relation to the other charges, it would not be safe to leave any of the sentences in place. In my opinion, the appeal should be allowed and all sentences quashed and the appellant should be re‑sentenced on all charges, which I will now proceed to do.
I deal first with the reckless driving charge. I agree with the comments made by his Worship about this charge. Notwithstanding the appellant's youth, his previous good standing and his plea of guilty, the seriousness of the offence and the persistent manner in which he drove dangerously, puts the offence at the serious end of the range of offences that one could contemplate in relation to reckless driving. In my opinion, the maximum term of imprisonment permitted – 6 months' imprisonment – is the appropriate penalty.
In my opinion, an appropriate term of imprisonment for the wilful damage offence would be 6 months; for the assault charge 3 months; and for the possession of the offensive weapon 3 months. That would be a total of 18 months. Under the new sentencing regime, the sentence in relation to each of those offences must be reduced by one‑third, bringing the reckless driving charge down to 4 months; the wilful damage charge down to 4 months; the assault charge to 2 months; and the offensive weapon charge to 2 months.
Applying the totality principle, I consider that this episode of criminal conduct warranted an order that the sentences be served concurrently, except for the offensive weapon sentence which will be cumulative. In setting this overall sentence, I take into account that the accused has already spent 27 days in custody.
The fact that the appellant has spent nearly a month in prison for these offences is a factor which influences me to suspend the sentence of imprisonment. The other factor is that the appellant, when appearing before me, expressed remorse, apologised for his behaviour, and in unqualified fashion acknowledged that his complaint about the conduct of the complainant towards him should have been handled in some other lawful way. Those factors, his youth, and his good record, lead me to suspend the sentence for a period of 18 months from today.
I therefore sentence the appellant as follows:
(a)The reckless driving charge - 4 months' suspended imprisonment. The appellant is also disqualified from holding or obtaining a drivers' licence for a period of 3 years as from 6 June 2003.
(b)The wilful damage charge - 4 months' suspended imprisonment concurrent with the first terms.
(c)The assault charge - 3 months' suspended imprisonment concurrent with the first and second terms.
(d)The offensive weapon charge - 3 months' suspended imprisonment cumulative on the other terms.
The order for forfeiture of the knife made by the Magistrate remains undisturbed.
Although it is not strictly necessary to do so, I refer to a point made in the appellant's outline of submissions (but not made the subject of any ground of appeal). The appellant complained that the prosecution counsel did not tender the video record of interview of the appellant by the police after he was arrested. The appellant claimed that this contained statements by him that his conduct was explained by the fact that he had been the subject of racial slurs from the complainant over a number of years, and that the incident in February commenced with the complainant braking, which resulted in the appellant's vehicle colliding with the complainant's vehicle.
The prosecution has a duty to adequately present the facts of the case: R v Tait (1979) 24 ALR 473 at 477. What is an adequate presentation of the facts depends on what is fair, reasonable and practical in the circumstances of a particular case: Rumpf v The Queen [1988] VR 466 at 472.
When the prosecutor read the facts to the Magistrate, he referred to the fact that there had been an interview recorded on video. The prosecution, however, did not accept that the appellant was provoked in any way on the day in question. This was reflected in the following passage in the statement of material facts read to the Court, namely:
"At this time [the appellant] observed the complainant who was driving his vehicle, a Holden Commodore sedan. On seeing the complainant [the appellant] accelerated behind the complainant's vehicle and began flashing his headlights."
At the beginning of plea in mitigation, counsel for the appellant advised the learned Magistrate that his client accepted the statement of material facts. Thus, if the video record of interview did contain information which suggested that the complainant deliberately conducted himself on the day which in any way prompted or provoked the appellant to act as he did, then the appellant's agreement with the statement of facts meant that he was no longer adhering to that story. As to the other point, counsel for the appellant did tell the Magistrate that the appellant had been the subject of racial slurs.
In any event, all of this is now academic because I have re‑sentenced the appellant, and in re‑sentencing I have approached the matter on the basis that even if the complainant had driven erratically at the commencement of the incident, the penalties imposed would not have been any different.