Barrett v Director of Public Prosecutions
[2024] WASC 208
•7 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BARRETT -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 208
CORAM: WHITBY J
HEARD: 6 JUNE 2024
DELIVERED : 6 JUNE 2024
PUBLISHED : 7 JUNE 2024
FILE NO/S: SJA 1020 of 2024
BETWEEN: TAHLIE BROOKE BARRETT
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1020 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J ANDRETICH
File Number : BU 3834/22, BU 4300/22, KT 319/23, KT 320/23 & KT 321/23
Catchwords:
Assault of police officer - Whether bite broke the skin - Magistrate sentenced on error of fact - Resentenced - Appeal conceded by respondent in part - Turn on own facts
Legislation:
Criminal Code (WA)
Criminal Code Act Compilation Act 1913 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time to bring appeal granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed in part
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | N Sinton |
| Respondent | : | TBL Scutt |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Brown v Blake [2000] WASC 132
House v R [1936] HCA 40; (1936) 55 CLR 499
Samuels v The State of Western Australia [2005] WASCA 193
Strahan v Brennan [2014] WASC 190
Wimbridge v The State of Western Australia [2009] WASCA 196
WHITBY J:
(This judgment was delivered extemporaneously on 7 June 2024 and has been edited from the transcript)
Introduction
On 22 December 2023, the appellant, Tahlie Brooke Barrett, was sentenced to a total term of imprisonment of 18 months, backdated to commence on 30 May 2023, for five offences committed between October 2022 and May 2023. Those offences, in chronological order, and the sentence imposed for each are as follows:
Date of
Offence
Charge No Offence and brief facts Penalty imposed 14.10.22 BU3834/22 Aggravated burglary (in company) and steal (trailbikes stolen from backyard shed, forced entry).
Code s 401(2)(ba).
Max penalty: 20 years' imp.
Summary Max penalty: 3 years imp and a fine of $36,000
[Orig sentence 2/3/2023: 6 mth CBO prog, sup.] Re-sentenced due to re-offending during term:
4 months' imprisonment 'cumulative'
(reduced from 6 months for totality reasons)
2.11.22 BU4300/22 Threats
(to destroy by fire the home and car of a police officer). Code s 338B(l)(b)(iii).
Max penalty: 3 years' imp.
Summary max penalty: 18 months imp and a fine of $18,000
[Orig sentence 2/3/2023: 6 mth CBO prog, sup] Re-sentenced due to re-offending during term: 2 months' imprisonment cumulative
(reduced from 6 months for totality reasons)
25.4.23 KT319/23 Obstruct police
(Briscoe and Guyan).
Code s 172(2).
Max penalty: 3 years' imp.
Summary max penalty: 18 months imp and a fine of $18,000
6 months' imprisonment concurrent 25.4.23 KT320/23 Assault police officer
(bit Briscoe).
Code s 318(1)(d).
Max penalty: 7 years' imp.
Summary max penalty: 3 years imp and a fine of $36,000
9 months' imprisonment cumulative 25.4.23 KT321/23 Assault police officer
(kicked Guyan).
Code s 318(1)(d).
Max penalty: 7 years' imp.
Summary max penalty: 3 years imp and a fine of $36,000
3 months' imprisonment cumulative
(Reduced from 6 months for totality reasons)
Total effective sentence: 18 months' imprisonment, eligible for parole, backdated to 30 May 2023
.
Also on 22 December 2023, the appellant was sentenced to fines for the following two offences:
Date of
Offence
Charge No Offence and brief facts Penalty imposed 20.5.23 BU3168/23 Poss drug paraphernalia (plastic smoking implement on which was cannabis).
Misuse of Drugs Acts 7B(6). Max penalty: 3 years' imp or $36,000 or both.
$1,200 fine
('global' fine together with BU2373/23).
24.5.23 BU2373/23 Stealing (e-scooter worth
$700, on sold for $400)
Code s 378.
Max penalty: 7 years' imp.
$1,200 fine
(' global' fine together with BU3168/23).
Also $700 compensation order.
On 7 March 2024, the appellant was sentenced, by a different magistrate, to imprisonment for the following offence:
Charge No
Offence and brief facts
Penalty imposed
20.5.23 BU2312/23 Agg criminal damage
(stab and puncture car tyre, during altercation, victim over 60 years)
Code s 444(1)(b)
Max penalty: 14 years
Summary max penalty: 3 years imp and fine of $36,0004 months imprisonment, concurrent with sentence being served but no backdating
Sentence commenced on 7 March 2024
The appellant contends that, on 22 December 2023, the learned magistrate erred in fact by finding that:
1.the police officers were injured; and/or
2.that the appellant broke the skin of the hand of one of the police officers which required testing.
The hearing of the appeal was listed on an urgent basis, because there was a risk that the appellant would otherwise have served her sentence before the appeal was heard and determined in the ordinary course.
For the following reasons, I refuse leave to appeal on ground one and grant leave to appeal and allow the appeal on ground two.
In these reasons, I will consider the following:
1.The grounds of the appeal;
2.Legislative regime;
3.Extension of time within which to commence the appeal;
4.Factual background of the offences;
5.The Magistrates Court Proceedings;
6.Consideration of the grounds of appeal; and
7.Resentencing of the appellant.
Grounds of appeal
The appellant appeals the order of the learned magistrate on the following two grounds:
1.The magistrate erred in finding that the assault against public officer offences were aggravated by the fact the officers were injured when the facts did not disclose any injury.[1]
2.The magistrate erred in fact in concluding that when the appellant bit the police officer's hand in the assault the subject of KT320/23, the officer's skin was broken resulting in a risk of the transmission of an infectious disease.[2]
[1] Appeal Notice (Form 20) filed 26 March 2024.
[2] Order granting leave to amend Appeal Notice dated 5 June 2024.
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.[3]
[3] 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. An appeal may be made on the ground that the learned magistrate made an error of law or fact, or of both law and fact: s 8(1)(a)(iii) CA Act.
In this instance, by both grounds of appeal, the appellant contends that the learned magistrate made an error of fact.
The appellant must obtain leave to appeal.[4] If leave to appeal is not granted, the appeal is taken to have been dismissed.[5] 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.[6]
[4] CA Act s 9(1).
[5] CA Act s 9(3).
[6] 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.[7]
[7] 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.[8]
[8] CA Act s 14(2).
The appeal must be commenced within 28 days of the learned magistrate's decision unless the Supreme Court orders otherwise.[9] The appellant filed the notice of appeal in this case on 26 March 2024, approximately six weeks out of time.
[9] CA Act s 10(3).
In determining the appeal, I may:
1.allow the appeal, set aside the decision of the learned magistrate and substitute a decision that should have been made;[10]
2.dismiss the appeal, even if I decide a ground of appeal in favour of the appellant, if I consider that no substantial miscarriage of justice has occurred.[11]
[10] Section 14 (1) CA Act.
[11] Section 14 (2) CA Act.
Extension of time within which to appeal
In Wimbridge v The State of Western Australia,[12] Buss JA (as his Honour then was) said that the factors to be considered in deciding whether to exercise the discretion to extend time included:
First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[12] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].
The appellant applies for an extension of time to appeal and relies upon the affidavit of Natalie Rae Sinton affirmed on 26 March 2024 in support of the application.
On 27 March 2024, a registrar ordered that the application for an extension of time be heard together with the leave to appeal and appeal application.[13]
[13] Orders of Registrar Davies made on 27 March 2024.
Ms Sinton deposes that she received a grant of legal aid on 25 January 2024 and that she did not receive all the material to consider the matter until 13 March 2024. After considering that material, the earliest time that Ms Sinton's colleague could meet with the appellant was on 22 March 2024.
I am satisfied that, having regard to the explanation for the delay in filing the appeal notice and the appellant's circumstances, the delay was not unreasonable. Further, the respondent accepts that it has not suffered any prejudice because of the delay. Finally, for reasons I will outline, I consider that ground 2 of the appeal has merit.
I therefore, consider it appropriate to grant an extension of time to commence the appeal until 26 March 2024.
Factual background of the offences
KT 320/23 and KT 321/23
At 1:36 am on 25 April 2023, police officers from the Cannington Police Station attended an address in Katanning regarding a family violence incident.[14]
[14] Magistrates Court proceeding 22 December 2023 ts 5.
The appellant was intoxicated at the residence. Her partner at the time, Clifton Hanson, was also at the address. [15]
[15] Magistrates Court proceeding 22 December 2023 ts 5.
At 1:50 am, the appellant was being talked to by the police in the front bedroom of the residence. The appellant was served a 72-hour police order.[16]
[16] Magistrates Court proceeding 22 December 2023 ts 5.
Upon hearing the police order, the appellant became aggressive - shouting and swearing. The appellant walked away from the officers whilst the terms and conditions of the order were being explained.[17]
[17] Magistrates Court proceeding 22 December 2023 ts 5.
The appellant promptly re-entered the residence and made her way to the front bedroom where Mr Hanson was laying. The police explained that the order was now in effect, and the appellant would have to leave the address.[18]
[18] Magistrates Court proceeding 22 December 2023 ts 5.
After hearing this, the appellant began to shout and swear at Mr Hanson and the police. She refused to calm down despite multiple requests to do so.[19]
[19] Magistrates Court proceeding 22 December 2023 ts 5.
A few seconds later, the appellant attempted to launch herself at Mr Hanson. The police intervened and restrained the appellant.[20]
[20] Magistrates Court proceeding 22 December 2023 ts 6.
Whilst restrained on the floor, the appellant swore, threatened, and attempted to kick and bite the police officers.[21]
[21] Magistrates Court proceeding 22 December 2023 ts 6.
Senior Constable Briscoe attempted to stop the appellant. The appellant bit Senior Constable Briscoe on the left hand causing pain and discomfort. The appellant was told to stop but continued to attempt to bite the officer.[22]
[22] Magistrates Court proceeding 22 December 2023 ts 6.
A few minutes later, the appellant kicked Constable Guyan to the left knee, causing pain and discomfort.[23]
[23] Magistrates Court proceeding 22 December 2023 ts 6.
The assault to Senior Constable Briscoe and Constable Guyan were charges KT 320/23 and KT 321/23 respectively. Both charges were serious assault in accordance with s 318 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
The hearing before the learned magistrate on 23 December 2023
The learned magistrate made the following remarks in relation to the circumstances of the offending for charges KT 320/23 and KT 321/23:
1.'The other officer, you bit on the hand, and then continued to try and attempt to bite that officer on the hand. The implications from biting someone is that that person would have, necessarily - I don't have information to that effect, but would have had to have undergone testing for HIV and, presumably, wait for a result, and if they chose to be treated to prevent that, in the event that that was going to be the situation, they would have to take medication for a period of time, so that does, in my view, make it a very serious offence'.[24]
2.'It's aggravated by the fact that the officer was injured. Both matters are aggravated by that. Both matters are aggravated because you committed these offences in the course of a community-based order for which you had been placed on for an aggravated burglary…'.[25]
3.'With the assault public officer, where it involved the bite and then the continued persistent behaviour of attempting to continue to bite that officer, I've imposed a term of nine months' imprisonment. I'm making that cumulative'.[26]
4.'As for the other assault of the public officer, it was committed at the same time, albeit a different act. It was a kick to the leg. I, normally, would have imposed six months on that; I've reduced it to three. I've made that cumulative'.[27]
[24] Magistrates Court proceeding 22 December 2023 ts 10.
[25] Magistrates Court proceeding 22 December 2023 ts 10.
[26] Magistrates Court proceeding 22 December 2023 ts 13.
[27] Magistrates Court proceeding 22 December 2023 ts 13.
Ground 1
The appellant submitted that the learned magistrate in sentencing the appellant erred in fact by finding that it was an aggravating factor that the officers were injured.
The appellant accepts that if the officers were injured, this would have aggravated each of the assaults to the public officers. However, the appellant contends that there was no evidence before the learned magistrate to support that finding.
The appellant submits that injury requires more than the sensation of pain and discomfort and referred to the case of Brown v Blake[28] in support of that submission.
[28] Brown v Blake [2000] WASC 132 [5].
In Brown v Blake, the offender was convicted of assaulting the victim and thereby causing her bodily harm. Heenan J considered the issue of whether the victim had suffered 'bodily harm'. His Honour referred to the definition in s 1(1) of the Code of 'bodily harm' which is 'any bodily injury which interferes with health and comfort'. It was not in dispute that that the offending in that case, being a kick in the stomach, had interfered with the victim's comfort. The issue before his Honour was solely whether the kick had caused 'bodily injury'. His Honour said that:
I take 'bodily injury' to mean something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain.
The appellant says that no injury of the sort specified in Brown v Blake was caused to either of the officers in this case and therefore, the learned magistrate erred in finding that the officers were injured.
In my view, the learned magistrate, when referring to the fact that the officers were 'injured', was not referring to an injury in the context of bodily injury. That is because the appellant was not charged with having committed either offence in the prescribed circumstance that the relevant officer had 'suffered bodily harm'. Had the appellant been charged and convicted of the offences in those circumstances, then a mandatory minimum penalty of 6 months immediate imprisonment would have been applicable: s 318(5)(a), s 318(4)(b) Criminal Code. The learned magistrate clearly did not consider that a mandatory minimum penalty applied to these offences.
I am cognisant of the nature of a magistrate's work - they have a large number of cases to deal with each day and do so in an efficient manner. The nature of a magistrate's workload necessitates that he or she conduct proceedings with a degree of informality. As this court has previously observed 'it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine tooth comb or an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.'[29]
[29] Strahan v Brennan [2014] WASC 190 [89] - [90].
I find that, by using the word 'injury', the learned magistrate was merely using the term to describe offending that involved an actual application of force to the police officers which caused pain. I consider that this was a factor that made the offending more serious than if that factor was not present. The learned magistrate was not in error in finding that the application of force to the victims caused them pain and, although falling short of bodily injury, was a factor which made the offending more serious.
I therefore refuse leave to appeal on ground 1 and dismiss the appeal in relation to ground 1.
Ground 2
Counsel for the respondent concedes that the learned magistrate erred in finding the appellant's bite to the police officer in fact broke the skin and necessitated testing and/or treatment in relation to the offending the subject of KT 320/23.
I accept that the learned magistrate's conclusion that the bite broke the skin and therefore would have necessarily meant that the officer had to be tested for HIV and, if the officer chose to be treated to prevent that, had medication for a period, was not open on the evidence.
In fact, in this case, the bite did not break the skin, nor leave any visible mark, and the victim did not have to undergo any testing.[30]
[30] Respondent's outline of submissions filed 3 May 2024 [23]; confirmed to the respondent's representatives by WAPOL on 5 April 2024.
I find that the learned magistrate erred in fact in finding that when the appellant bit the police officer's hand during the offending the subject of KT 320/23, the officer's skin was broken resulting in the risk of the transmission of an infectious disease.
Ground 2 of the appeal is made out. I grant leave to appeal on ground 2 and allow the appeal on ground 2.
Resentencing
Given I have found that learned magistrate erred in fact in sentencing the appellant in relation to KT 320/23, I must exercise the sentencing discretion afresh.
I have all of the materials before me that are necessary to resentence the appellant.
The appellant is 34 years old and has three children. The appellant's relationship with the father of her first two children was marred by extensive domestic violence and illicit substance use. The appellant experienced a traumatic and dysfunctional childhood. The appellant has a history of illicit substance and alcohol abuse. The appellant's mother died from a heart attack at home in the appellant's arms which caused the appellant to find life very difficult. In 2022, the appellant's then partner died by suicide. The appellant's sister died in early 2023.
The appellant has managed to abstain from illicit drug use for some time, but prior to her imprisonment continued to have issues with alcohol use. The appellant suffers from depression.
At the time of the offending the subject of KT 320/23, the appellant says she was drunk and that, while she accepts the offending occurred as described in the statement of material facts, she has very little recollection of the events. The appellant committed this offence while she was subject to a community based order for which the appellant had been placed on for the offence of aggravated burglary. This is an aggravating feature of the offending.
I am required to impose a sentence commensurate with the seriousness of the offence: s 6(1) Sentencing Act 1995 (WA) (Sentencing Act).
The seriousness of an offence must be determined by taking into account:
1.the statutory penalty for the offence;
2.the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
3.any aggravating factors; and
4.any mitigating factors.[31]
[31] Section 6 (2) Sentencing Act.
The statutory maximum penalty for the summary offence of assault a police officer contrary to s 318(1)(d) of the Code is 3 years imprisonment and a fine of $36,000.
As to the circumstances of the offending, the police officers attended a domestic violence situation between the appellant and her partner and they issued a 72-hour police order to the appellant. The appellant ignored the police order and became aggressive. In the circumstances and in the context of becoming aggressive, the appellant bit one of the officers on the hand.
The offending was objectively serious given the appellant made physical contact with the police officer by biting him. Biting is inherently serious, it is an unexpected mode of assault and a difficult assault to prevent. The appellant's behaviour was directed towards the police officer who was just doing his job. I do accept however, that the bite did not break the skin and the officer only suffered discomfort as opposed to bodily injury. The officer was also not required to undergo any medical tests or treatment.
The appellant entered a plea of guilty at the earliest reasonable opportunity and, pursuant to s 9AA of the Sentencing Act, I afford her a 25% discount.
I also take into account the appellant's difficult childhood and challenging circumstances she has faced in her adult life. I consider these to be mitigating factors.
The appellant has a history of violent offending and breaches of previous court orders. Her previous convictions include convictions for five common assaults and one unlawful wounding, and breaches of court orders. While the appellant's prior criminal record is not an aggravating feature of the offending, the appellant is not entitled to any leniency for good character.
I must have regard to the purposes of imposing punishment: to punish the offender and to deter both the offender and others from committing offences of this kind in the future.
General deterrence is an important sentencing consideration. Police officers performing their duties in protecting members of the community should be able to do so free from experiencing behaviour such as the appellant's. Having said that, personal deterrence is also an important sentencing consideration given the appellant's prior violent offending and disregard for authority.
I must not impose a sentence of imprisonment unless I decide that:
1.the seriousness of the offence is such that only imprisonment can be justified; or
2.the protection of the community requires it.[32]
[32] Section 6(4) Sentencing Act.
In all of the circumstances, taking into account the relevant sentencing factors I have outlined, I consider that a term of imprisonment is the only appropriate disposition and that an appropriate term of imprisonment for KT 320/23 is a term of imprisonment of 5 months. That term should be served cumulatively on the other terms imposed by the learned magistrate on 22 December 2023. I impose the same sentences as were imposed by the learned magistrate on 22 December 2023 for each of the other offences, as I consider they are appropriate given the circumstances of the offending.
I consider that, having regard to the seriousness of the offences, the option of suspending the term of imprisonment is not open.
The sentence imposed in relation on KT 320/23 directly contributed to the total effective sentence imposed on the appellant, therefore, the reduction in the sentence I have imposed for KT 320/23 results - appropriately in my view - in a corresponding reduction in the total effective sentence. Therefore, the total effective sentence is 14 months. The sentence should be backdated to commence on 30 May 2023.
Given I have resentenced the appellant to a total effective sentence of 14 months, I may vary the sentence imposed by a different magistrate on 7 March 2024, being a sentence imposed after, and which took into account, the 22 December 2023 sentences: s 41(2) CA Act.
In all of the circumstances, having regard to the totality principle, I consider that an appropriate sentence for BU 2312/23 is 2 months imprisonment to be served concurrently with the existing sentence and commencing on 7 March 2024.
Conclusion
I make the following orders:
1.The appellant be granted an extension of time to bring the appeal filed 26 March 2024.
2.Leave to appeal on ground 1 is refused.
3.Leave to appeal on ground 2 is granted and the appeal on ground 2 be allowed.
4.In respect of KT 320/23, the sentence should be set aside and the appellant is resentenced to a term of 5 months immediate imprisonment to be served cumulatively.
5.I resentence the appellant to the following terms of imprisonment:
a.BU 3834/22: 4 months imprisonment cumulative;
b.BU 4300/22: 2 months imprisonment cumulative;
c.KT 319/23: 6 months imprisonment concurrent; and
d.KT 321/23: 3 months imprisonment cumulative.
5.The appellants' total effective sentence is 14 months. The total effective sentence is backdated to commence on 30 May 2023.
6.In respect of BU 2312/23, the sentence should be set aside and the appellant is resentenced to 2 months immediate imprisonment to be served concurrently with the total effective sentence and commence on 7 March 2024.
7.The appellant is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
7 JUNE 2024
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