Bell v Carrier

[2018] WASC 169

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BELL -v- CARRIER [2018] WASC 169

CORAM:   CORBOY J

HEARD:   30 MAY 2018

DELIVERED          :   30 MAY 2018

PUBLISHED           :   7 JUNE 2018

FILE NO/S:   SJA 1031 of 2018

BETWEEN:   CHARLENE HOPE BELL

Appellant

AND

PAUL CARRIER

First Respondent

LESLIE SMITH

Second Respondent

ALEKSANDER STANOJEVIC

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E SHACKLETON

File Number             :   BU 920 of 2017, BU 921 of 2017, BU 2101 of 2017, BU 3955 of 2017, BU 5458 of 2017, BU 5528 of 2017, BU 5529 of 2017, BU 5530 of 2017, BU 5753 of 2017, BU 5944 of 2017, BU 5945 of 2017, BU 6034 of 2017, BU 6203 of 2017, BU 6204 of 2017

Catchwords:

Criminal law - Single judge appeal - Whether sentencing magistrate failed to take into account pleas of guilty - Whether there was a substantial miscarriage of justice - Sentence of imprisonment imposed for a burglary offence in the least serious category of cases

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 401(2)(c)
Sentencing Act 1995 (WA), s 41(2)

Result:

Leave to extend time within which to appeal granted
Leave to appeal granted
Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms N Sinton
First Respondent	:	Ms KC Cook
Second Respondent	:	Ms KC Cook
Third Respondent	:	Ms KC Cook

Solicitors:

Appellant	:	Legal Aid WA
First Respondent	:	The Director of Public Prosecutions for the State of Western Australia
Second Respondent	:	The Director of Public Prosecutions for the State of Western Australia
Third Respondent	:	The Director of Public Prosecutions for the State of Western Australia

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

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338

Boase v Roberts [2018] WASC 45

Burrows v The State of Western Australia [2014] WASCA 147

Butler v The State of Western Australia [2012] WASCA 249

Closter v Humphreys [2012] WASC 145

Miller v Byrne [2016] WASC 236

Nannup v The State of Western Australia [2011] WASCA 257

Ridley v The State of Western Australia [2013] WASCA 45

Wallam v Dent [2008] WASC 170

Wilson v The State of Western Australia [2010] WASCA 82

CORBOY J:

The appeal and the result

1. The appellant was convicted on her plea of 13 charges for which the following penalties were imposed:

Offence	Penalty
Stealing (following breach of suspended sentence imposed on 1 July 2017)	6 months 1 day cumulative
Breach of bail undertaking	1 month concurrent
Burglary with intent in a place	12 months (head sentence)
8 x stealing	Global fine $3,000
Trespass	1 month concurrent
No authority to drive	$1,000 fine
Total effective sentence	18 months 1 day

1. The terms of imprisonment were ordered to commence on 15 November 2017 and to be immediately served.

2. The appellant appealed from the sentences imposed for the burglary, trespass and breach of bail offences. The sole ground of appeal was that the learned sentencing magistrate erred in law by failing to consider whether the sentences of imprisonment imposed ought to have been reduced under s 9AA of the Sentencing Act 1995 (WA) on account of the appellant's pleas of guilty.

3. The appeal was commenced out of time.  An application to enlarge the time within which to appeal was referred to the hearing of the appeal, as was the question of whether leave to appeal should be granted (orders made by Archer J on 20 April 2018).  The respondents did not oppose the application for leave to extend the time within which to appeal.

4. I concluded at the hearing of the appeal that the sentencing magistrate had erred in sentencing the appellant and that a substantial miscarriage of justice had occurred within the meaning of s 14(2) of the Criminal Appeals Act 2004 (WA). I made orders that:

   (a)extended the time within which to bring the appeal to 19 April 2018 (being the date on which the appeal notice was filed);

   (b)granted the appellant leave to appeal;

   (c)allowed the appeal; and

   (d)set aside the sentence imposed on the burglary offence.

5. I resentenced the appellant on the burglary offence to a term of imprisonment of 2 months to be served cumulatively on the term of imprisonment imposed for the stealing offence for which a term of imprisonment of 6 months and 1 day had been imposed.  The term of imprisonment of 2 months for the burglary offence took into account the appellant's plea of guilty and the time spent in custody on remand in relation to the offence. 

6. There were other difficulties with the sentences imposed by the magistrate.  To accommodate those difficulties, the commencement date for the terms of imprisonment that were imposed was amended to 11 December 2017 (being the date on which the appellant was sentenced). 

7. I gave some reasons at the hearing of the appeal for the orders that were made at the hearing of the appeal.  However, I indicated that I would publish more complete reasons.

The sentencing of the appellant

1. In sentencing the appellant for the burglary offence, the magistrate first reminded himself that a term of imprisonment is 'the sentence of last resort'.  His Honour then remarked:

   In my view, given the history of dishonesty by Ms Bell, who is 33 years old, has no mitigation in her record and no mitigation of age, imprisonment is the only sentence that can be imposed in relation to that kind of burglary, notwithstanding nothing was stolen.  She had entered there without the owner's consent.  It is not a home, I understand … [the prosecution notice] says 'place'… I take that to be on the basis that [the occupier] was moving at the time (ts 8).

2. His Honour further noted as an aggravating factor that the burglary offence had been committed while the appellant was subject to a suspended imprisonment order imposed for the offence of stealing. 

3. In relation to the breach of bail and trespass offences, the magistrate merely observed that the offences were 'ultimately at the lower end' (ts 7).  His Honour concluded by stating the appellant would be made eligible for parole and that all sentences would be backdated to 15 November 2017 (being the date on which the appellant was remanded in custody).

4. The magistrate did not refer to the appellant's pleas of guilty in the sentencing remarks.  In my view, it cannot be inferred from the remarks that his Honour took into account the appellant's pleas as a mitigating factor (and see Burrows v The State of Western Australia [2014] WASCA 147). That was accepted by the respondent.

The facts of the appellant's offending

1. The facts of the burglary offence were that sometime between Sunday 22 October and Monday 6 November 2017, the appellant went with her partner to a house in Bunbury which had been recently sold.  The occupant had removed most of the household items but had left a key in a metre box to enable trades people to enter the house.  The appellant and her partner used the key to gain entry to the house, 'rummaged through the rooms with intent' and then left without taking anything.

2. As for the trespass offence, on 6 October 2017 the appellant went to the Centrepoint shopping centre, Bunbury in breach of a banning notice.  It was accepted that the appellant knew that she had been banned from being in the shopping centre.  No explanation was provided for why she had gone to the shopping centre in breach of the banning order.

3. In relation to the breach of bail offence, the appellant was granted bail on 28 September 2017.  She breached her personal undertaking by failing to appear in the Bunbury Magistrates Court on 19 October 2017.  No explanation was provided for her failure to attend the Magistrates Court.

The appellant's personal circumstances

1. The magistrate was provided with only limited information concerning the appellant's personal circumstances.  The appellant is 33 years of age.  She has an extensive criminal history but had not been previously sentenced to a term of imprisonment that she was required to immediately serve; the suspended imprisonment order was the first sentence of imprisonment that the appellant had received.  She has a history of substance abuse that was said to be the primary cause of her offending. 

2. The appellant had not been previously convicted of the offence of burglary.  She had, however, been convicted of numerous stealing charges and had convictions for breaching bail undertakings.  Although the appellant had a poor criminal record until 2015, there had been a marked escalation in the repetition of her offending since mid‑2016.

Sentencing for burglary

1. The magistrate did not identify the maximum penalty for the burglary offence.  However, it is apparent that his Honour sentenced the appellant on the basis that the offence was committed in a place that was not ordinarily used for human habitation (and that circumstance of aggravation was not alleged in the prosecution notice).  Accordingly, the maximum penalty for the offence on summary conviction is 2 years' imprisonment and a fine of $24,000.

2. The primary sentencing considerations for the offence of burglary are personal and general deterrence: see, for example, Ridley v The State of Western Australia [2013] WASCA 45 [13]. The circumstances in which the offence can be committed vary greatly and it can be difficult to find comparable cases. Accordingly, there is no tariff for the offence of burglary. However, a term of imprisonment to be served immediately is commonly imposed. Further, sentences for burglary have 'firmed up' in recent years to reflect the prevalence of the offence and considerations of general deterrence: Nannup v The State of Western Australia [2011] WASCA 257 [68] (Buss JA); Butler v The State of Western Australia [2012] WASCA 249 [40] (Mazza JA).

The sentences for the trespass and breach of bail offences

1. Although it is accepted that the magistrate failed to have regard to the appellant's pleas of guilty in sentencing for the trespass and breach of bail offences, the appellant conceded in her written submissions that the sentences imposed for those offences could not be set aside.  That concession was appropriate not just because the sentences were to be served concurrently with the other terms of imprisonment imposed but also as the sentences were within a sound range of sentencing discretion (applying the principles referred to in the next section).

Appeals against sentence

1. The principles that apply to an appeal against sentence are well established; they were outlined in Wilson v The State of Western Australia [2010] WASCA 82. Those principles also apply to an appeal under pt 2 of the Criminal Appeals Act: Closter v Humphreys [2012] WASC 145. As Hall J observed in Boase v Roberts [2018] WASC 45:

   An appeal against sentence depends on finding error, either express or implied.  If an implied error is alleged, the question is not what sentence the appeal court would impose if it were the primary court, but whether the discretion of the primary court miscarried.  That is, was it open in the proper exercise of that discretion for the primary court to impose the sentence that was imposed? [31]

2. Accordingly, the fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh. Section 14(2) of the Criminal Appeals Act applies to sentencing appeals:  Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [32]. In Wallam v Dent [2008] WASC 170 Jenkins J said:

   I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarried of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised [31].

   Allanson J agreed with those observations in Miller v Byrne [2016] WASC 236 [39].

Disposition

1. In my view, it was not open to the magistrate to impose a sentence of 12 months' imprisonment to be served cumulatively on the term of imprisonment imposed for the offence of stealing (that is the offence for which a suspended imprisonment order had been previously made).  I reached that conclusion not just because his Honour had failed to have regard to the appellant's plea of guilty but also as there were other difficulties with the sentencing of the appellant. 

2. First, the magistrate backdated all of the terms of imprisonment that were imposed to the date on which the appellant had been detained in custody on remand.  However, the sentence imposed for the stealing offence could not be backdated.  A sentence imposed following breach of a suspended imprisonment order must commence on the date of sentencing - in this case, on 11 December 2017.  The time that the appellant spent in custody on remand could only be taken into account in determining the terms of imprisonment to be imposed on the burglary, trespass and breach of bail offences.

3. Second, it is not clear whether the magistrate reminded himself that the maximum penalty for the burglary offence for which the appellant was convicted was 2 years' imprisonment and a fine of $24,000: s 401(2)(c) of the Criminal Code.  The offence committed by the appellant, in my view, fell within the least serious category for this type of offence but the appellant received a sentence that was one half of the maximum penalty.  I consider that the magistrate either proceeded under an erroneous assumption as to the maximum penalty for the offence committed by the appellant or the sentence imposed was manifestly excessive.

4. Third, the appellant was sentenced for 13 offences by the magistrate. However, there was no reference to the second limb of the totality principle in the sentencing remarks. His Honour was required to consider whether the total penalties imposed ‑ including the fines ‑ reflected the total criminality involved in the appellant's offending. The magistrate did not make an order under s 58 of the Sentencing Act but the appellant remained liable to the enforcement provisions of the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA).

5. In the circumstances, I considered that a substantial miscarriage of justice had occurred in the sentencing of the appellant.  Accordingly, the appeal was allowed and the appellant resentenced. 

Resentencing the appellant

1. As mentioned, the sentence imposed for the stealing offence could not be backdated. Consequently, it was necessary to amend the sentence imposed for that offence under s 41(2) of the Sentencing Act so that it commenced on 11 December 2017. 

2. The head sentence that I would have imposed for the burglary offence was four months imprisonment.  That took into account all relevant sentencing factors, including the second limb of the totality principle, apart from the appellant's plea of guilty and the time that she spent in custody prior to sentencing. 

3. The appellant was arrested on 15 November 2017 for the burglary offence and pleaded guilty to the offence on 8 December 2017. In the interim, there were negotiations between her legal representatives and the prosecution that resulted in an amendment to the charge. I accepted that the appellant pleaded guilty to the offence at the first reasonable opportunity and that the head sentence should be reduced by 25% pursuant to s 9AA of the Sentencing Act.

4. It was also necessary to take into account the time that the appellant had spent in custody prior to sentencing – 15 November 2017 to 11 December 2017.  Accordingly, the head sentence for the burglary offence was further reduced by one month. 

5. That meant that the sentences imposed for the breach of bail and trespass offences also had to be amended to commence on 11 December 2017. 

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

DD
ASSOCIATE TO THE HONOURABLE JUSTICE CORBOY

7 JUNE 2018