Beales v Morris - [2010] WASC 383

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BEALES -v- MORRIS [2010] WASC 383

CORAM: MAZZA J

HEARD: 3 DECEMBER 2010

DELIVERED : 16 DECEMBER 2010

FILE NO/S: SJA 1068 of 2010

BETWEEN: CHERYL CHRISTINE BEALES
Appellant
AND
RUSSELL STEWART MORRIS
LOUIS GERMAINE LANTERNIER
ALBERTO MIGUEL MEDRANO
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE TARR
File No  :PE 59050 of 2008, PE 17955-6 of 2009, PE 11860-2 of 2010, PE 32081 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether magistrate should have exercised discretion not to activate suspended term of imprisonment - Whether first limb of totality principle infringed

Legislation:

Sentencing Act 1995 (WA), s 76, s 80

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr A D Sullivan

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

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

Brown v The State of Western Australia [2009] WASCA 74
Gavin v The Queen (1992) 6 WAR 195
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Trew v The State of Western Australia [2004] WASCA 155

MAZZA J: This is an appeal against sentences imposed by a magistrate in the Perth Magistrates Court on 4 May 2010.
On that day, the appellant pleaded guilty to giving a false name to police (11860 of 2010), driving under the influence of alcohol (11861 of 2010), and driving under suspension (11862 of 2010). These offences were committed on 8 January 2010. The appellant also pleaded guilty to a count of breach of bail (32081 of 2010). This offence was committed on 11 February 2010. All of these offences were committed in breach of a community based order and suspended imprisonment orders which were made in the Perth Magistrates Court on 26 May 2009. On that day, the appellant was placed on a 12‑month community based order for an offence of aggravated assault occasioning bodily harm. In relation to offences of driving under suspension and refusing a breath test, she was imprisoned for 7 months, suspended for 12 months.
The sentences and orders made by his Honour on 4 May 2010 are as follows:

Charge No	Date of offence	Description	Max penalty	Sentence	Concurrent or cumulative
59050/08	29/9/08	Aggravated assault occasioning bodily harm	3 years' imprisonment and fine $36,000 (summary conviction penalty)	CBO cancelled, 3 months' imprisonment and $200 fine	Cumulative
17955/09	28/2/09	Refuse breath test	Fine $2,000-$5,000 or 18 months' imprisonment (subsequent offence)	7 months' imprisonment	Cumulative
17956/09	28/2/09	Driving under suspension	Fine between $1,000-$4,000 and 18 months' imprisonment (subsequent offence)	7 months' imprisonment	Concurrent
11860/10	8/1/10	False name	Fine $600	Fine $300

11861/10

8/1/10

Driving under the influence of alcohol (reading 0.199%)

Fine between $2,000-$5,000 or 18 months' imprisonment (subsequent offence)

6 months' imprisonment

MDL life disqualification

Cumulative

11862/10

8/1/10

Driving under suspension

Fine between $1000-$4000 and 18 months' imprisonment (subsequent offence)

3 months' imprisonment

12 months MDL disqualification

Concurrent

32081/10

11/2/10

Breach of bail

Fine $10,000 and/or 3 years' imprisonment

1 month imprisonment

Concurrent

Grounds of appeal

The grounds of appeal are as follows:
(1)The learned Magistrate erred in law by failing to properly consider all other sentencing options available in respect to charges 11860‑2/10; 32081/10 and 59050/08 in that he:
(a)Did not take sufficient or proper consideration of the non‑custodial sentences available under Parts 3A, 8, 9 and 10 of the Sentencing Act 1995;
(b) Did not give proper or adequate consideration to the principal sentencing requirement that a custodial sentence is a last resort; or
(c)Did not properly or adequately consider Section 76 of the Sentencing Act 1995 in suspending the term of imprisonment.
(2)The learned sentencing Magistrate erred in law in the exercise of his sentencing discretion in respect to charges 17955‑6/09 by imposing a [sic] order under s. 80 when it was unjust to do so in all of the circumstances.
Leave to appeal was given in respect of both grounds on 21 September 2010.

The facts of the offences

I will outline the facts of the offences in chronological order:
(i)Aggravated assault occasioning bodily harm (59050/08): The complainant was the appellant's then de facto partner. At about 9.40 pm on 29 September 2008, the appellant and the complainant were at home. Both had consumed a quantity of alcohol earlier in the day and had argued. The complainant went to his bedroom and fell asleep. The appellant entered the bedroom, having picked up a 1.2 metre spirit level from the complainant's toolbox. The appellant struck the complainant in the face with the spirit level, causing him pain, a two to three centimetre cut to the complainant's bottom lip, and a broken tooth. After the appellant was arrested, she was interviewed by police. During that interview, she said, 'He deserved it, he got away with murder and got a taste of his own medicine'. It is not disputed that the complainant had, in the past, been violent towards the appellant.
(ii)Refusing breath test and driving under suspension (17955 ‑ 6/09): At about 12.14 am on 28 February 2009, the appellant was seen by a member of the public driving a motor vehicle along Woodrow Avenue, Dianella, in an erratic manner. Police officers attended and spoke to the appellant. It became evident to the officers that the appellant had consumed alcohol. The appellant accompanied the police to the Mirrabooka Police Station where she was required to provide a sample of her breath for analysis. However, she refused. At the time of driving, the appellant's driver's licence had been cancelled for life by the Perth Magistrates Court on 18 July 2003.
(iii)False name, driving under the influence of alcohol and driving under suspension (11860 ‑ 2/10): On 8 January 2010, the appellant was seen driving a motor vehicle. She was stopped by police. On inquiry she gave a false name, Suzanna Anita Read. The arresting officer suspected that she had been drinking alcohol. A subsequent breath test revealed that her blood alcohol content at the time of driving was 0.199%. At the time of driving, the appellant was subject to the order made on 18 July 2003 cancelling her licence.
(vi)Breach of bail (32081/10): After her arrest on 8 January 2010, the appellant was bailed to appear in the Perth Magistrates Court on 11 February 2010, but failed to appear. The prosecution notice is endorsed with an entry 'gastro will send medical certificate: no medical certificate'. The appellant claimed that she failed to go to court that day because of an attack of gastroenteritis. She telephoned the court the day after her scheduled appearance and was told that a warrant had been issued. She later called police to tell them where she was. The police then came and collected her.

The appellant's antecedents

The appellant is 48 years of age. She has two teenage children aged 18 and 19 years who are living with her. She was in an emotionally and physically abusive relationship over a long period of time with her partner, the complainant in the aggravated assault occasioning bodily harm charge. They separated in July 2009.
She and her former partner have been engaged in what appears to be acrimonious property proceedings in the Family Court involving a newsagency business that they had owned and run together, which has caused her distress.
Since being placed on the suspended imprisonment order on 26 May 2009, the appellant has obtained employment, met a new partner who is very supportive of her, and has been attending a Bible study women's group.
The appellant has a formidable record of prior convictions.
Prior to the proceedings on 4 May 2010, the appellant had been convicted of six offences of driving under suspension (these offences occurred on 21 August 2002, 27 August 2002, 4 April 2003, 18 July 2006, 28 February 2009 and 30 September 2009), four offences of refusing a breath test (these offences occurred on 6 March 2001, 21 December 2001, 27 August 2002 and 28 February 2009), an offence of driving under the influence of alcohol (date of offence 4 April 2003), an offence of driving with a blood alcohol content in excess of 0.08% (date of offence 30 September 2009), an offence of assault occasioning bodily harm (result date 18 July 2003), offences of common assault and assault against a public officer (result date 18 April 2002), and four breach of bails (result date 18 April 2002, 18 July 2003, 2 August 2006 and 26 May 2009).
It is obvious from the record and other material before his Honour that the appellant has had a lengthy history of alcohol abuse. She has been sentenced to a range of dispositions, including a community based order, intensive supervision orders and suspended imprisonment orders. All of these were doubtless imposed, at least in part, to assist the appellant overcome her alcohol problem and address the issues that underlie it. Unfortunately, these measures appear to have been unsuccessful.
After the community based order and the suspended imprisonment order were made on 26 May 2009, the appellant has reoffended on three occasions. I have already referred to the offences on 8 January 2010 and 11 February 2010. But in addition, on 30 September 2009, the appellant committed the offences of driving with a blood alcohol content in excess of 0.08% (0.121%), and driving under suspension. These offences were dealt with by another magistrate on 1 December 2009.

Proceedings before his Honour

The appellant was represented by duty counsel. Duty counsel advised his Honour that the appellant would enter pleas of guilty to all charges and that she would be seeking a pre‑sentence report (ts 2). The appellant then pleaded guilty to charge numbers 11860 ‑ 2/10 and 32081/10. His Honour called for the appellant's record and noted that the appellant had breached a suspended term of imprisonment which had been imposed for like offences (ts 2). His Honour queried the need for a pre‑sentence report. Duty counsel responded that the appellant had made some changes in her life since she had been placed on the suspended sentence, and submitted that a pre‑sentence report would be helpful in relation to those matters (ts 3). His Honour said that he did not think it would be helpful:
She can't avoid a term of imprisonment. That's the reality (ts 3).
He then went through the appellant's criminal history, pointing out some of her prior convictions and penalties. Duty counsel then requested to stand the matter down to take further instructions. That request was granted.
When the matter was called on again, duty counsel told his Honour that the appellant was 'in a position to be sentenced for all matters before the court today' (ts 4). An officer from Community Justice Services, Ms Greene, was by then in attendance and she provided the court with a detailed account of the appellant's performance on the community based order which was imposed on 26 May 2009. That order had included both supervision and program requirements.
Ms Greene told his Honour that her response to supervision had been 'erratic' (ts 4). She had failed to report for supervision within 72 hours of being released from the court. Subsequently, apart from the period between August and October 2009, she had regularly failed to report. After failing to report for supervision on 12 January 2010, she was directed to report again on 14 January 2010, but failed to do so. Apart from telephone contact on 15 February 2010, when she was offered an appointment to facilitate re-engagement on the order but declined, no further contact with the appellant had been established.
Ms Greene told the court that the appellant 'showed a clear reluctance to engage with a psychologist' (ts 5). She failed to attend an appointment with the psychologist on 27 October 2009.
In her plea in mitigation, defence counsel sought to explain the appellant's failure to comply with the supervision program requirements of the community based order by referring to her employment and her need to work 'because she had limited money' (ts 7).
Duty counsel referred to the offence of aggravated assault occasioning bodily harm and explained that the offence occurred against the background that the complainant himself had earlier grabbed the appellant and tried to strangle her. Duty counsel said that the appellant had suffered physical abuse from the complainant 'for too long' and on the occasion in question 'made the wrong decision to retaliate' (ts 7). With respect to the offences committed on 8 January 2010, duty counsel said that the appellant accepted what had been alleged in relation to those offences. With respect to the breach of bail, duty counsel explained that the appellant did not attend court that day because she had gastroenteritis.
Duty counsel succinctly referred to the appellant's personal antecedents. She particularly emphasised that since the imposition of the suspended sentence on 26 May 2009, the appellant had:
(a)commenced employment and was due to start a new job in a newsagency;
(b)commenced a new relationship with a partner who was supportive of her and who has no drug or alcohol issues;
(c)been attending a Bible study women's group; and
(d)reduced her alcohol consumption.
In light of these factors, duty counsel submitted that it would be unjust 'to trigger the whole of the term of the seven‑month sentence' (ts 8). Duty counsel concluded her submissions by submitting:
Your Honour, I would submit that the terms of imprisonment imposed be made concurrent for each of the offences before the court (ts 8).
Before dealing with his Honour's sentencing remarks, it is appropriate that I refer at this point to a submission made on behalf of the appellant by Mr Sklarz. Although not a ground of appeal itself (nor could it be; see: Gavin v The Queen (1992) 6 WAR 195, 199, 209), Mr Sklarz submitted that his Honour should have obtained a pre‑sentence report before sentencing the appellant. I do not agree with this submission. In the present case, duty counsel had taken time to obtain instructions from the appellant, both as to the circumstances of her offending and antecedents. These matters were put before the court. In addition, an officer from Community Justice Services provided an oral report as to the appellant's performance on the community based order. His Honour also had before him the appellant's criminal history. In these circumstances, his Honour had, it seems to me, sufficient information upon which to sentence the appellant, including those factors said to be indicative of her efforts to rehabilitate herself since the imposition of the suspended imprisonment order.
In his sentencing remarks, his Honour noted that the appellant was before the court for similar offences to those on which she had been placed on the suspended imprisonment order. His Honour remarked that the orders made on 26 May 2009 had been made to give her an opportunity to address her alcohol problems or any other problems she had. However, the appellant had not taken up those opportunities.
His Honour said that he believed that he would be failing in his duty not to impose a custodial term for breaching the suspended term of imprisonment. His Honour said:
The court needs to maintain some sort of credibility, and when someone is placed on a suspended term of imprisonment and they continue to offend in the same way, then they should be breached and sentenced (ts 8).
His Honour then proceeded to make the orders and impose the sentences which I have already set out in these reasons.

The appellant's submissions

The appellant addressed ground 2 first. He conceded that if this ground was not made out, his Honour, in effect, had no choice but to impose terms of imprisonment on the offences to which the appellant pleaded guilty and for which imprisonment was a sentencing option, although he submitted that the overall sentence of 16 months offended the first limb of the totality principle and should be reduced. The invocation of the totality principle was not a matter raised in the grounds of appeal. However, the respondent was not prejudiced and the appeal proceeded in this way.
Mr Sklarz submitted that at the heart of the appellant's case were the efforts that she had made to rehabilitate herself since the imposition of a suspended imprisonment order. He placed particular emphasis on the same matters of rehabilitation that were mentioned by duty counsel.
Mr Sklarz submitted that his Honour erred by ordering the appellant to serve the terms of imprisonment which had been suspended because the steps the appellant had taken towards her rehabilitation made the imposition of a term of imprisonment to be served unjust.
He further submitted that the offences committed in 2008 and 2009 were 'old'.
Mr Sklarz submitted that if I upheld his submission with respect to count 2, I ought exercise my discretion to resentence the appellant on all the other matters in such a way that no sentence of immediate imprisonment should be imposed upon her.

The respondent's submissions

The respondent submitted that, in reality, there was little evidence of rehabilitation on the part of the appellant. She had, it was submitted, since the imposition of the suspended imprisonment order, continued to offend and had failed to satisfactorily comply with the supervision and program requirements of the community based order.
Moreover, counsel argued, the appellant's offending during the course of the suspended imprisonment order was much the same as the offending for which she had been placed on the order.
The respondent's counsel submitted that his Honour was correct to order the appellant to serve the sentences of imprisonment as a consequence of the breaches.
The respondent submitted that the total term of 16 months' imprisonment did not offend the first limb of the totality principle. It was submitted that his Honour's decision to accumulate some of the sentences in relation to offences which had been committed on different days was correct, and that a total term of 16 months was a proper reflection of the overall criminality of the appellant's offending.

Merits of ground 2

It is convenient to deal with ground 2 first.
Section 80(1) of the Sentencing Act 1995 (WA) sets out a court's powers to deal with the breach of a suspended imprisonment order. It is in the following terms:
80. How re‑offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

Section 80(3) of the Sentencing Act provides:
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
It is not disputed that the appellant breached the suspended imprisonment order by offending on 30 September 2009 (driving under suspension), 8 January 2010 (driving under the influence of alcohol and driving under suspension) and 11 February 2010 (breach of bail).
Section 80 of the Sentencing Act has been considered in several cases, including Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364, Trew v The State of Western Australia [2004] WASCA 155 and more recently in Brown v The State of Western Australia [2009] WASCA 74.
In Hall, Murray J (with whom Kennedy and Pidgeon JJ agreed) said at [31] ‑ [33]:
[T]he section requires the judge to order service of the suspended imprisonment unless it would be unjust to do so. On appeal the applicant carries the forensic onus to persuade the court that a judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused.
As to whether it would or would not be unjust to make the order to which by s 80 the judge is primarily directed, in R v Holcroft [1997] 2 Qd R 392 at 394 Fitzgerald P said:
"All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust."
All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P (at 394); Lee J (at 394 - 5); Fryberg J (at 404 - 5). On the same general consideration reference may be made to R v Holley;Ex parte Attorney-General [1997] 2 Qd R 407 at 410, per de Jersey; Lee J (at 416, 419); Fryberg J (at 425).
The legislative policy of s 80 of the Sentencing Act is that, prima facie, the court ought to order service of the suspended imprisonment: Hall [34].
Only if the court is satisfied that it would be unjust to do so, in view of all of the circumstances that have arisen or have become known since the suspended imprisonment order was imposed, can the court make any of the orders set out in s 80(1)(b), (c) or (d) of the Sentencing Act.
Here, the suspended imprisonment order was imposed on the appellant for driving under suspension and for refusing to provide a sample of her breath for analysis when she had been caught driving having consumed alcohol. Her offending on 30 September 2009 and 8 January 2010 involved driving under suspension and drink driving. This offending was very similar in its nature to the offending which led to the imposition of the suspended imprisonment order.
While the offence of breach of bail on 11 February 2010 was by no means the most serious offence of its type, it is consistent with the appellant's overall attitude of non‑compliance with court orders and her prior history of breaching bail.
The offences in September 2009 occurred only 4 months after the imposition of the suspended imprisonment order, while the offences in January 2010 occurred just over 7 months after the imposition of the order.
None of the breaching offences, in my mind, could be said to be trivial and must be viewed against the background that I mentioned earlier of the appellant drinking and driving, and driving in contravention of her lifetime disqualification.
It appears that the appellant has undertaken some steps towards her rehabilitation during the course of the order, but it cannot be overlooked that she failed to comply with both the supervision and program requirements of the community based order. That order was primarily to facilitate her rehabilitation. Her failure to comply with the requirements of the community based order casts much doubt on the appellant's ability to rehabilitate herself.
In all of these circumstances, his Honour was correct to order the appellant to serve the entire suspended term of imprisonment. Ground 2 has not been made out.

Merits of ground 1

I have already mentioned that Mr Sklarz conceded that if his Honour's order to require the suspended terms of imprisonment to be served is upheld, realistically, the terms of imprisonment imposed for the aggravated assault occasioning bodily harm committed on 29 September 2008, driving under the influence of alcohol and driving under suspension on 8 January 2010 and breach of bail on 11 February 2010 could only be met by immediate terms of imprisonment, having regard to all the circumstances of the case.
This concession was properly made. Suspended imprisonment was not statutorily available once his Honour ordered the appellant to serve the suspended terms of imprisonment: Sentencing Act 1995 (WA), s 76(3)(b). Moreover, the circumstances of the individual offences were serious and personal deterrence, in light of the appellant's antecedents, was a paramount consideration. In each case, no sentence other than immediate imprisonment was appropriate. The length of each sentence was within the range of an appropriate sentencing discretion.
Mr Sklarz submitted that the overall term of 16 months' imprisonment offended the totality principle. Much has been written about the totality principle. It has two limbs. The first limb requires the sentencer, called upon to sentence an offender for a number of offences, to ensure that the aggregation of the appropriate sentences for each offence is a just and appropriate measure of the total criminality involved. The second limb, which is not relied on in this case, requires that the total overall sentence is not crushing upon the offender. Mr Sklarz submitted that the 16‑month term of imprisonment imposed on the appellant offended the first limb of the totality principle.
In my opinion, some accumulation of the sentences which his Honour imposed upon the appellant was required in order to reflect the seriousness of the appellant's offending and its ongoing nature. I do not regard the offences in 2008 and 2009 as 'old'. I do not think that the total effect of a term of 16 months' imprisonment was disproportionate to the appellant's total criminality. In my opinion, the total effective term imposed by his Honour does not offend the first limb of the totality principle. Ground 1 has not been made out.

Conclusion

In my opinion, neither ground of appeal has been made out. The appeal must be dismissed.