Barnett v Skehan

[2021] WASC 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BARNETT -v- SKEHAN [2021] WASC 53

CORAM:   MCGRATH J

HEARD:   25 FEBRUARY 2021

DELIVERED          :   5 MARCH 2021

FILE NO/S:   SJA 1091 of 2020

BETWEEN:   TANYA LESLYE BARNETT

Appellant

AND

DWAYNE SKEHAN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE TAVENER

File Number            :   MI 9266 of 2020

Catchwords:

Criminal law - Appeal against sentence - Creating a false belief - Whether sentence manifestly excessive - Express error of law - Punishment for uncharged acts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 171(1) and s 171(2)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA, s 39(2), s 39(3), s 76(1) and s 76(2)

Result:

Leave to appeal on grounds 1 and 2 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Ashford v The State of Western Australia [No 2] [2016] WASCA 222

Cartwright v The State of Western Australia [2010] WASCA 4

Chan v The Queen (1989) 38 A Crim R 337

Jaw v The State of Western Australia [2012] WASCA 7

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v De Simoni (1981) 147 CLR 383

Rhatigan v Forbes [2009] WASC 368

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Webb v Savage [2007] WASC 103

Wiltshire v Mafi [2010] WASCA 111

MCGRATH J:

1. The appellant was convicted, upon her own plea, of one offence of creating a false belief contrary to s 171(2) of the Criminal Code (WA). The learned magistrate imposed a 7 month term of imprisonment conditionally suspended for 9 months. The appellant now seeks leave to appeal the sentence on two grounds. Firstly, the appellant contends that the learned magistrate erred in law by treating uncharged acts as separate offences for sentencing purposes and secondly, that the sentence imposed was manifestly excessive.

2. For the following reasons, I have determined that leave to appeal is not granted and the appeal is dismissed.

3. In these reasons for decision, I will consider the following:

   1.The Magistrates Court proceedings.

   2.The grounds of appeal.

   3.An assessment of the merits of the appeal. 

The Magistrates Court proceedings

1. The prosecution notice lodged on 14 August 2020 pleaded that on 4 July 2020 the appellant unlawfully made an emergency call with the intention of creating a false belief or suspicion, namely a belief or suspicion that human safety was or may have been endangered, contrary to s 171(2) of the Criminal Code.[1]

   [1] Prosecution notice lodged 14 August 2020, charge number MI 9266/2020.

2. On 4 September 2020 the appellant appeared in the Magistrates Court, represented by a legal practitioner, and pleaded guilty to the charge.[2]

   [2] ts 2 (04/09/2020).

3. The facts, which were accepted by the appellant's counsel,[3] are in the following terms:[4]

   At about 11:30 pm on Saturday, 4 July 2020, the accused was at a residence in Forrestfield.  She was at home with her husband.  The accused was intoxicated and made several triple zero calls to police and to St John's Ambulance.  The accused - sorry, the operator believed the accused was in danger from self-harm and also that she may have seriously injured her husband due to the conversation with the emergency operators.

   There were statements made such as, 'There is no emergency, honey. I've got no clothes on.  Because it's summer, I'm feeling really hot.  I've just thrown my clothes off because I'm ready to hang myself.  Do you have any sexy guys there?  Hey sweetheart, don't see eye to eye.  I would like my husband to be taken away.'  During the second call to triple zero, St John Ambulance operator, she said, 'I don't want to go to prison, I'm not a bad person.'

   The conversation caused the St John's Ambulance operator [to] call triple zero police emergency operator, believing the accused has caused harm to her husband.  The accused called the triple zero ambulance line twice and the triple zero police line once, and these conversation were recorded.  When paramedics and police arrived at the home, the accused was sitting out the back of her property naked, drinking alcohol.  She was intoxicated.

   And her husband was in the front lounge, perfectly safe, 'Do you mind if police take her away to stop her from drinking?'  7 August 2020, police attended the accused's residence and interviewed her at home. She said she was drinking and doesn't recall the circumstances.  She admitted there was no emergency.  She was summon[ed].  There is a note, sir that I think you need to be aware of.  St John's Ambulance have been called to the home address 17 times in the last 12 months, usually on the weekend.

   Police have attended 69 times since 1 January 2019.  During 2020, the accused would constantly call triple zero demanding police attendance. Police would arrive and find her either naked or - naked sitting either on the front doorstep or out the back, saying things like, 'What took you so long?'  Some occasions, police have been called back to the house twice in the same night.  The accused has a 146 incident reports associated to her on the incident management system, sir.

   [3] ts 3 (04/09/2020).

   [4] ts 2 - 3 (04/09/2020).

4. The appellant's counsel in mitigation stated that at the time of the offending the appellant was severely stressed due to a difficult upbringing, her mother being unwell and her husband being absent for employment.  As a consequence the appellant was binging on alcohol to cope with that stress and at the time of the offending was intoxicated.[5]  The appellant, whilst not having a memory of the incident due to her intoxication, acknowledged that what she did was unacceptable.[6]  Counsel submitted that the appellant had now ceased alcohol consumption after being charged and being diagnosed with liver cirrhosis.[7]  Counsel further submitted that the appellant had not previously committed any similar offence and that she pleaded guilty at the earliest opportunity.[8]

   [5] ts 3 (04/09/2020).

   [6] ts 3 (04/09/2020).

   [7] ts 3 (04/09/2020).

   [8] ts 3 - 4 (04/09/2020).

5. His Honour determined that the offending was 'quite serious' given the number of times that emergency services had previously attended at the appellant's residence due to false reports.  Accordingly, the learned magistrate stated that specific deterrence was a significant sentencing factor.[9]

   [9] ts 4 (04/09/2020).

6. The learned magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[10]

   [10] ts 4 (04/09/2020).

7. The learned magistrate imposed a term of 7 months' imprisonment conditionally suspended for 9 months.[11]

   [11] ts 5 (04/09/2020).

Appeal

1. The appellant relies upon two grounds of appeal in the following terms:[12]

   Ground 1:

   The learned sentencing Magistrate erred in law by treating uncharged acts as separate offences for sentencing purposes rather than simply providing context for the offences the appellant was convicted of.

   Ground 2:

   The sentence imposed was manifestly excessive as to type having regard to the circumstances of the offence, the personal circumstances of the appellant, and sentencing standards. 

   [12] Notice of Appeal filed 19 November 2020.

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[13]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[14]

   [13] Criminal Appeals Act 2004 (WA), s 9(1).

   [14] Criminal Appeals Act 2004 (WA), s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[15]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[16]

   [15] Criminal Appeals Act 2004 (WA), s 9(2).

   [16] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

4. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[17] Section 14(2) of the Criminal Appeals Act provides that 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.  That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.[18]

   [17] Criminal Appeals Act 2004 (WA), s 14.

   [18] Roberts v The State of Western Australia [2014] WASCA 239 [47].

Assessment of the merits of the appeal

1. I will now consider each ground of appeal.  I will first determine ground 1 given that the appellant contends that the learned sentencing magistrate made an express error of law.

Ground 1

1. By ground 1 the appellant contends that the learned magistrate erred in law by treating uncharged acts as separate offences for sentencing purposes rather than providing context for the offences.  The gravamen of this ground is that the appellant was punished for offences for which she had not been convicted.

2. A person must not be punished for an offence of which he or she has not been convicted.[19]  A sentencing judge must take into account all surrounding circumstances relevant to the commission of the offence.  The fact that an offence is not isolated is a relevant sentencing consideration.  It is relevant to an assessment of the weight to be given to personal deterrence and the protection of the public.[20]

   [19] R v De Simoni (1981) 147 CLR 383, 389.

   [20] Jaw v The State of Western Australia [2012] WASCA 7.

3. The learned magistrate referred to the previous conduct of the  appellant in his sentencing remarks.  The appellant relies upon specific particularised sentences from his Honour's sentencing remarks  to support ground 1.[21]  It is necessary that the specific sentences particularised by the appellant be read in the context of the entire relevant paragraphs of the sentencing remarks.  In the course of his sentencing remarks, the learned sentencing magistrate stated:[22]

   The difficulty is you've heard how many times the police have been called to that address.  It's a relative serious offence in that on each occasion, depending on how they respond, that involves emergency services travelling at high speed through suburban areas for no good reason.  It's a waste of resources, it places people at risk, it's totally unnecessary.  So in some offences there's both general and specific deterrence, but for Ms Barnett there has to be specific deterrence.

   And that's the main issue here:  to stop her from doing it again.  I appreciate the alcohol.  I understand what she has said about her desire to stop drinking, but - so we start with addressing the alcohol.  That's one problem.  The other issue is deterring her.  Had there not been that many reports, the 69 attendances by the police, the calls, then I may not have considered imprisonment, but I am now considering imprisonment because of the sheer volume of calls, the sheer number of times she has placed other people at risk for (indistinct) reasons, for not addressing the problem she had at an earlier stage.

   So that leads us to a term of imprisonment because she has pleaded not guilty, and I look at her history, it's not that bad, but, looking at her history, she has had a problem with alcohol and - well, back in 2007, and this is not counting against her in terms of outcome, but, nonetheless, consistent with her behaviour, threats to injure, threats to harm, so she has been doing this type of behaviour for at least 12 or 13 years without addressing it.  I take it that's all alcohol related.

   So we're now looking at the stage where imprisonment becomes an option because of the need for specific deterrence.  She simply cannot call emergency services in that way again.  If she does, she is risking imprisonment.  Okay.  Please stand, Ms Barnett.  This is the way we're going to deal with the matter.  I appreciate the alcohol, and it's difficult just to stop because it's a very - it's a lifestyle, when you start drinking to the level at which you drink.

   …

   …  And we need that - you need that assistance to make sure you don't, to give the court reassurance you're not going to reoffend again.  As I say, creating a false belief is quite a wide-ranging exercise because of the background.  With yours, it has to stop.  That is why there's a specific deterrence, and that's why we've reached the stage of imprisonment to stop you.  So what I propose to do is put you on a conditional suspended imprisonment order.  That means you will need to address your alcohol as part of the community-based order.  But you will also be at risk of imprisonment, should you commit this type of offence again.

   [21] Appellant's written submissions, [16].

   [22] ts 4 - 5 (04/09/2020).

4. The appellant contends that the learned magistrate, by stating 'it's a relative serious offence in that on each occasion …', sentenced the appellant for offences beyond which she was charged.   I accept the respondent's characterisation of the impugned statement as not being a reference to, or description of, the specific offence committed by the appellant, but rather a general description of why the offence of creating a false belief by requesting assistance from emergency services is a serious offence.

5. In support of the contention that the learned magistrate punished the appellant for the uncharged acts the appellant also relies upon the sentencing remark that 'had there not been that many reports, 69 attendances by the police, the calls, then I may not have considered imprisonment but I am now considering imprisonment because of the sheer volume of calls…'.  The statements of the learned magistrate do not, individually or cumulatively, establish that the appellant was punished for offences of which she had not been convicted.  Rather, the learned magistrate determined that the uncharged acts were relevant to the weight to be given to personal deterrence.  His Honour was correct in so doing.  The offending for which the appellant was convicted is not an isolated act.  The fact that an offence is not isolated is a relevant sentencing consideration.  In the context of this matter it is highly relevant to personal deterrence.  Personal deterrence was an important sentencing consideration in respect of the appellant.  The conduct of the appellant for which she was convicted was not an aberration.  Rather, the appellant had persistently over an extended period telephoned emergency services with the consequence that on 69 occasions police had responded in circumstances that did not actually require the attendance of the police or other emergency services. 

6. His Honour regarded the uncharged acts in the same manner in which the criminal record of the appellant was considered.  The learned magistrate observed that the appellant has a criminal record that includes conviction for offences relating to threats to injure and threats to harm over a 12 year period and observed that whilst the criminal record was 'not bad' the behaviour was persistent and alcohol related.[23]

   [23] ts 4 (04/09/2020).

7. Accordingly, ground 1 is without merit and leave to appeal is not granted.

Ground 2

1. By ground 2, the appellant contends that the sentence imposed was manifestly excessive. 

2. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long.

3. The appellant contends that a sentence of imprisonment, whether immediate or suspended, was not within the learned magistrate's discretion.  That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[24] 

   [24] Dinsdale v The Queen, 324 ‑ 325.

4. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[25]  The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.  There is no single correct sentence.  What is important is the unifying principles which sentences in comparable cases reveal and reflect.

   [25] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.

5. 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.

6. 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. 

7. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[26] The sentencing options available to the court are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment. The two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.

   [26] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

8. Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to five years, suspension may be ordered in cases involving serious offending.

9. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term of imprisonment.[27]  That is, all circumstances must be revisited.  The court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. 

   [27] Dinsdale v The Queen [18], [26], [84], [85].

10. In considering ground 2, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[28]

Maximum penalty

[28] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

1. The penalty for the offence of creating a false belief under s 171(2) of the Criminal Code is 12 months' imprisonment and a fine of $12,000 when the offender is dealt with summarily.  Whilst the maximum sentence that the magistrate could impose summarily was one of 12 months' imprisonment, it is relevant to have regard to the statutory maximum (2 years' imprisonment) and not merely the jurisdictional limit in assessing the seriousness of the offence.[29]

Personal circumstances

[29] Wiltshire v Mafi [2010] WASCA 111 [24] - [33].

1. The learned magistrate found that there was a nexus between the appellant's long term alcohol abuse and the offending.  His Honour stated that the abuse of alcohol had continued for a significant period.[30] 

   [30] ts 4 (04/09/2020).

2. The appellant's criminal record comprised of convictions for threats to injure, assaulting a public officer, breach of violence restraining orders, disorderly behaviour in public, breach of police orders, no authority to drive and driving intoxicated.  The learned magistrate observed that the prior offending, which extended over a 12 year period, was consistent with her behaviour when intoxicated.

Plea of guilty

1. The learned sentencing magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act for the plea of guilty at the first reasonable opportunity.[31] 

Circumstances of the offending

[31] ts 4 (04/09/2020).

1. The aggravating factor is that the appellant made a hoax telephone call to emergency services.  Consequently, the emergency services diverted scarce resources to attend. 

2. The learned magistrate determined that personal deterrence was a significant sentencing factor given the criminal record of the appellant and her previous conduct in respect of making 69 telephone calls to the emergency services.  The act was not a single aberrant act.

Range of sentences customarily imposed

1. The appellant has referred to a number of authorities in respect of offending contrary to s 171(2) of the Criminal Code:  Ashford v The State of Western Australia [No 2];[32] Rhatigan v Forbes;[33] and Webb v Savage.[34]  I have considered those authorities.  The respondent did not refer to any authorities.

   [32] Ashford v The State of Western Australia [No 2] [2016] WASCA 222.

   [33] Rhatigan v Forbes [2009] WASC 368.

   [34] Webb v Savage [2007] WASC 103.

2. There is no tariff for the offence of creating a false belief contrary to s 171(2) of the Criminal Code.  The offence may be committed in a myriad of circumstances.

3. The cases referred to by the appellant are not directly comparable and are of limited assistance.  In Webb v Savage the offender pleaded guilty to one count of careless driving and one count of creating a false belief.  The offender falsely reported that her vehicle had been stolen after colliding with a concrete wall.  The offender accepted responsibility the next day, pleaded guilty and received a global $1,500 fine.  The offender's conduct was limited to one occasion and did not involve the creation of a false belief that required the attendance of emergency services.

4. In Rhatigan v Forbes the offender was convicted of 23 offences of unlawfully accessing a computer, one offence of fraud and one offence of creating a false belief.  The false belief offence involved the  offender falsely reporting to the police that her computer had been  stolen.  The offender was sentenced to a term of immediate imprisonment of 14 months with the respective term for creating a false belief being  3 months' imprisonment.  On appeal the term of immediate imprisonment was set aside and a term of imprisonment of 10 months conditionally suspended for 18 months was imposed.  The learned appeal judge made the observation that the fraud and false belief charges were not of such seriousness as to otherwise require a sentence of imprisonment but did impose a term of imprisonment for the offence of creating a false belief.[35]  It is not possible to discern the term of imprisonment imposed in respect of the false belief charge for the reason that the offence is not stated, only a charge number.  However, the term of imprisonment imposed was either 2 months or 4 months' imprisonment.  In considering Rhatigan v Forbes I am mindful that the offender was convicted of 24 other offences.  The issue on appeal was whether the total effective sentence breached the totality principle. 

   [35] Rhatigan v Forbes [2009] WASC 368 [48].

5. In Ashford v The State of Western Australia [No 2] the offender was convicted of two counts of creating a false belief and one count of arson.  The offender called the emergency services on two occasions reporting a fire, which were false reports, and set fire to an area of land of 10 sqm.  At first instance the offender was sentenced to a term of imprisonment of 12 months for the arson count and 6 months' imprisonment for each of the two creating a false belief offences.  The terms of imprisonment were ordered to be served concurrently.  The Court of Appeal set aside the terms of imprisonment and imposed a global term of imprisonment of 9 months.  The Court of Appeal did not impose a term of imprisonment for each count.  Therefore, the term of imprisonment imposed in respect of the two counts of creating a false belief is indeterminate.  The offender was a youthful first offender with employment opportunities, family support and who had actively engaged professional services to assist in his rehabilitation.  The authority of Ashford v The State of Western Australia [No 2] does support the proposition that a term of imprisonment is imposed for the offence of creating a false belief by making a false report to emergency services.

Assessment ground 2

1. In the present case, the prosecution notice particularised the false belief being that human safety was or may have been damaged.  That is the false belief that the appellant did create.  Such a false belief necessarily results in the emergency services responding.  Both the police and St  John Ambulance responded to the appellant's emergency services telephone call.

2. The consequence of a false report to the emergency services is that finite resources are diverted from legitimate emergency circumstances.  Priority will be given to the false circumstances rather than to members of the community truly in need of assistance.  The emergency services will travel at high speed to assist.  The emergency service officers manage that risk but if responding to a false report then the risk of travelling at high speed is unnecessary.  Further, there is a financial cost to the community when a person diverts emergency services to respond to a false report.

3. The appellant's conduct was not one aberrant act.  Rather, the appellant has persistently engaged in similar conduct on 69 previous occasions.  The fact that an offence is not isolated is a relevant sentencing considering.  The full context of the offending is highly relevant.  Personal deterrence is an important sentencing consideration in respect of the appellant.  The learned magistrate appropriately gave significant weight to personal deterrence.

4. After considering all relevant factors I have determined that the imposition of a suspended term of imprisonment was within the learned magistrate's discretion.  The sentence was not unreasonable or plainly unjust.  Accordingly, leave to appeal is not granted on ground 2.

Conclusion

1. Consequently, I make the following orders:

   1.Leave to appeal is not granted on grounds 1 and 2.

   2.The appeal is dismissed.

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

AS

Associate to the Honourable Justice McGrath

4 MARCH 2021