Benck v Wilkinson
[2022] WASC 229
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BENCK -v- WILKINSON [2022] WASC 229
CORAM: DERRICK J
HEARD: ON THE PAPERS
DELIVERED : 18 JULY 2022
FILE NO/S: SJA 1047 of 2022
BETWEEN: SAMUEL BARRY BENCK
Appellant
AND
JAMES WILKINSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E CAMPIONE
File Number : PE 49431 of 2020, PE 49432 of 2020, PE 49435 of 2020
Catchwords:
Criminal law - Appeal against sentence - Failure by magistrate to order under s 87(1)(a)(ii), 87(1)(b) and s 87(1)(d) of the Sentencing Act 1995 (WA) the backdating of the commencement date of a sentence of immediate imprisonment imposed on the appellant to take account of time spent in custody by the appellant for another offence while on bail for the offences for which he was sentenced
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment Act 2016 (WA)
Result:
Application for leave to appeal allowed
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Harding v The State of Western Australia [2015] WASCA 27
Harper v Page [2004] WASCA 267
Hiemstra v The State of Western Australia [2021] WASCA 96
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Neach v Hobbs [2021] WASC 135
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Willenberg v Downey [2015] WASC 282
Introduction
By an appeal notice dated 30 May 2022, the appellant applied for leave to appeal against a total effective sentence of 7 months immediate imprisonment imposed on him by Magistrate Campione for one offence of failing to comply with a direction to stop in a circumstance of aggravation contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA) (PE 49431/2020), one offence of driving without authority contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (RTA) (PE 49432/2020) and one offence of reckless driving to escape pursuit by police contrary to s 60(1A)(b) of the RTA (PE 49435/2020) (offences).[1] The sole ground of appeal was expressed in the following terms:[2]
The learned Magistrate erred in the exercise of discretion by failing to take into account time that the Appellant had spent in custody for another offence, while on bail for the offences for which the Appellant was sentenced pursuant to s 87(1) of the Sentencing Act 1985 which resulted in the Appellant suffering a miscarriage of justice.[3]
[1] The application was made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
[2] By reason of s 6(f), s 7(1) and s 8(1)(b) of the CAA a person who is aggrieved by a sentence imposed by a magistrate may appeal against the sentence imposed on the ground that there has been a miscarriage of justice.
[3] The reference in the ground of appeal to the 'Sentencing Act 1985' is an obvious typographical error and should be taken as a reference to the 'Sentencing Act 1995'.
On 4 July 2022 the respondent's solicitor notified the court by email that the respondent, having reviewed the transcript of the appellant's sentencing hearing, conceded the ground of appeal. On the same date the respondent filed with the court an outline of submissions dated 4 July 2022 in which he set out his reasons for conceding the ground of appeal, together with a copy of the transcript of the sentencing hearing and the prosecution notices for the offences.
The respondent adopted the entirely appropriate approach of notifying the court and the appellant of his position in response to the appeal at an early stage in the appeal proceedings given that his concession, if accepted by the court, would result in the appellant being required to be immediately released from prison (assuming he had been granted bail in respect of the below referred to pending charge of robbery).
On 8 July 2022 the appellant's solicitor sent an email to the court advising that the parties had communicated about the appeal and were 'content for the appeal to be determined on the papers, if possible'. Filed with the email was a consent notice signed by the appellant's solicitor and the respondent's solicitor consenting to orders in the following terms:
1.Leave to appeal be granted; and
2.The appeal be allowed.
The consent notice was filed pursuant to r 73(1) of the Criminal Procedure Rules 2005 (WA) (CPR).
On 11 July 2022, the appeal was referred to me for consideration (on an urgent basis) as required by r 73(2) of the CPR.
On 12 July 2022 I arranged for my associate to send to the solicitors for the parties an email requesting them to provide some additional information and to specify the orders that it was agreed should be made on any resentencing of the appellant if I decided that the respondent's concession was appropriately made and that the appeal could, as requested by the parties, be determined without an appeal hearing. In response to my associate's email, on 12 July 2022 the parties filed a further consent notice pursuant to r 73(1) of the CPR indicating that, in the event that the appeal was allowed, they also consented to orders as follows:
1.The sentence imposed by the magistrate on 9 May 2022 be varied so as to commence on 8 September 2021; and
2.There be no order as to the costs of the appeal.
Having carefully considered all the material filed by the parties in relation to the appeal, I formed the view that the respondent's concession was appropriately made, that the appeal could properly be determined on the papers without an appeal hearing and that orders should be made that were substantially in accordance with the orders specified in the consent notices. Accordingly, on 12 July 2022 I directed, pursuant to r 73(2) of the CPR, that a registrar issue final orders as follows:
1.The application for leave to appeal is allowed;
2.The appeal is allowed;
3.The total sentence of 7 months immediate imprisonment imposed by Magistrate Campione on 9 May 2022 for the offences the subject of charges PE 49431/2020, PE 49432/2020 and PE 49435/2020 is varied so that the sentence is taken to have commenced on 8 September 2021; and
4.There is no order as to the costs of the appeal.
In compliance with my direction, on 12 July 2022 a registrar made by consent final orders in the above specified terms.
At the time of giving the above direction to the registrar I indicated to the parties that I would in due course provide brief written reasons for my decision. These are my reasons.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CAA, s 9(3).
Time spent in custody
The appellant committed the offences on 4 November 2020. He was charged with the offences on that date. He was granted bail in respect of the offences.
On 26 February 2021 the appellant was charged with an offence of robbery. He was refused bail on the robbery charge and remanded in custody on the charge.
The appellant was remanded in custody on the robbery charge from 26 February 2021 until 21 October 2021. He was then granted bail on the charge. He spent a further three days in custody on the robbery charge from 26 December 2021 until 28 December 2021. He therefore spent a total of 243 days in custody in respect of the robbery charge. Throughout his 243 days in custody his grant of bail for the offences remained current.
Current status of the robbery charge
The appellant has pleaded not guilty to the robbery charge in the District Court. He denies any involvement in the robbery. His eight day trial has been listed to commence in the District Court on 4 September 2023.
Facts of the offences
The facts of the offences, stated briefly, were as follows.
At about 10.00 am on 4 November 2020 the appellant was riding a motorcycle. At the time his driver's licence was suspended.
The appellant was at a BP service station in Morley. He exited the service station on the motorcycle accelerating heavily. Detectives in an unmarked police vehicle immediately followed the appellant. They activated their lights and sirens, but the appellant did not stop. The detectives pursued the appellant for three minutes through Morley until they received instructions to cease the pursuit. The appellant was then observed by a police helicopter until he was ultimately arrested in Ballajura.
During the ground pursuit and while under observation by the helicopter the appellant rode the motorcycle at high speeds (well in excess of the applicable speed limits), contravened red traffic control signals and on one occasion rode on the incorrect side of the road through medium density oncoming traffic at a speed of 60 - 70 km per hour.
In total, the appellant rode the motorcycle recklessly through a number of suburbs for approximately eight minutes over a distance of approximately 10 km. His driver's licence was at the time suspended.
The sentencing hearing
On 9 May 2022 the appellant appeared before the magistrate.
Prior to the appellant's arrival at court - the appellant arrived a few minutes late - the following exchange took place between the magistrate and the appellant's counsel:[7]
[7] ts 3 - 4, 9 May 2022.
HER HONOUR: Well, he's not here anyway. I would give him a few minutes, although his tardiness is less than satisfactory. All right. I will continue to set up for my 9.30 list. You're both excused from the bar table to make inquiries of your client and your colleague.
…., MR: Thank you, your Honour.
JACKSON, MR: Thank you, your Honour. Your Honour, can I just check that you received the written submissions and the ---
HER HONOUR: Well, that's another issue as well, Mr Jackson. They ought to be sent through two clear days, not late on a Friday afternoon.
JACKSON, MR: Your Honour, I didn't send them late on Friday afternoon. I sent them about two weeks ago, before the previous sentencing hearing.
HER HONOUR: Yes, I saw the date stamp. They hit my email at about 3.30 on Friday afternoon.
JACKSON, MR: Well, I'm sorry about that, your Honour. You might remember on the last occasion it was adjourned for your Honour to read the sentencing submissions, and I had actually sent - I sent the ---
HER HONOUR: Yes, the long and short of it is, when I come to work to a very busy 32 list ---
JACKSON, MR: Yes.
HER HONOUR: --- it's very difficult to recalibrate and read new material. So I've asked my JSO just to print it off and hand it up to me, whatever it is, and it's here.
JACKSON, MR: Yes, your Honour.
HER HONOUR: Thank you. But - no, Mr Jackson, the email is from - my bad. It is 8 April you sent it through.
JACKSON, MR: Yes, Your Honour.
HER HONOUR: Yes. All right.
JACKSON, MR: Thank you.
HER HONOUR: So have I seen this before, have I?
JACKSON, MR: Yes. So what happened on the last occasion ---
HER HONOUR: Because I haven't had a chance to read it this morning, because I've had other things to read.
JACKSON, MR: Sure.
HER HONOUR: So was this provided to me previously? So should this be in my materials?
JACKSON, MR: It should.
HER HONOUR: Yes. All right.
JACKSON, MR: I sent it to the court on the 8th.
HER HONOUR: I don't want to know the history, Mr Jackson. I don't need to read it again, and I won't. Thank you.
JACKSON, MR: Thank you.
Once the appellant arrived at court he pleaded guilty to, and was convicted of, the offences. The magistrate then proceeded to hear the appellant's counsel's plea in mitigation.
During his plea in mitigation the appellant's counsel said the following:[8]
As I said, it's, of course, accepted that there's a mandatory sentence for reckless driving to evade escape, however, [the appellant] has spent 243 days in custody since being charged with these offences … So the correct figure is 243, which could be backdated to 8 September 2021.
Although [the appellant] had bail in relation to these charges, that time in custody was a result of other charges. But it is our submission that, pursuant to s 87(1)(d) of the SentencingAct, your Honour can take that time into account by ordering that the term that your Honour imposes is to be taken to have begun on a specified day, being the day when that custody began, or some later date that is not later than the date of sentence.
So essentially, what I'm asking your Honour to do is to impose a period of imprisonment of eight months or less and to backdate that sentence to 8 September 2021, which would mean, essentially, that [the appellant] has already served his time in custody for these offences. He completely understands that he cannot reuse that time in custody if he's convicted of the upcoming District Court matters, which has been listed for September 2023. However, in my opinion, [the appellant] actually has good prospects of successfully defending those charges, and, if acquitted, those eight months that he spent in custody would essentially be wasted if they're not used for these offences.
[8] ts 8 - 9, 9 May 2022.
After hearing the appellant's counsel's plea in mitigation the magistrate proceeded to sentence the appellant. During her sentencing remarks the magistrate said the following (emphasis added):[9]
It's the first instance of reckless driving and reckless to escape pursuit. I'm told that the incident has been a bit of a wake‑up call. You've embarked on a mental health plan. You're now clean. You've got prospects of employment and a job opportunity. In relation to time in custody, I'm not prepared to take that time into account pursuant to s 87. You've had bail on all these charges throughout, and that time in custody, pursuant to s 87A, is not referable to these charges.
[9] ts 12 - 13, 9 May 2022.
Analysis and decision
As is apparent from the magistrate's above quoted remarks, the transcript records her Honour as having referred to 's 87A' of the Sentencing Act. There is no s 87A in the Sentencing Act. Nor has there ever been a s 87A in the Sentencing Act. There was, however, previously a s 87(a) in the Sentencing Act. Section 87(a) provided, in substance, that if when an offender was being sentenced to imprisonment for an offence and they had previously spent time in custody 'in respect of that offence and for no other reason' (emphasis added) the court could take the time in custody into account by ordering that the term imposed was taken to have begun on the day on which the offender's time in custody began.
In his outline of submissions the respondent contends that given the magistrate's response to the submission made by the appellant's counsel in relation to the time that the appellant had spent in custody it can 'be safely inferred' that the magistrate's transcribed reference to 's 87A' was actually a reference by her Honour to the no longer existing s 87(a).[10] In his outline of submissions the respondent further contends (concedes) that the magistrate's reference to, and reliance on, the no longer existing s 87(a) amounted to an error of law.
[10] Respondent's Outline of Submissions, par 10.
Section 87 of the Sentencing Act was amended by s 74 of the Sentencing Legislation Amendment Act 2016 (WA). The amendment came into operation on 1 October 2017. The effect of the amendment was to delete par (a) in s 87 (that is, s 87(a)) and to replace it with a new s 87(1)(a)(i) and a new s 87(1)(a)(ii). The amendment also introduced a new s 87(2). Accordingly, s 87 is now in the following terms:
87.Time on remand may be taken into account
(1)If when an offender is being sentenced to imprisonment for an offence -
(a) the offender has previously spent time -
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
Thus s 87(1)(a)(ii) permits a court, when sentencing an offender for an offence, to take into account time spent in custody by the offender in respect of another offence while on bail for the offence for which they are being sentenced.
As is apparent from the above quoted initial exchange between the magistrate and the appellant's counsel at the appellant's sentencing hearing, at the time of sentencing the appellant the magistrate had before her written sentencing submissions filed on behalf of the appellant. The submissions, a copy of which were provided to this court by the appellant's solicitor under cover of his above referred to email dated 8 July 2022, contained a submission that any sentence of immediate imprisonment imposed on the appellant 'could be backdated pursuant to s 87(1) of the Sentencing Act' to take account of the time that the appellant had spent in custody on the robbery charge.[11] The submissions also quoted in full the terms of s 87.[12]
[11] Sentencing Submissions dated 6 April 2022, par 44.
[12] Sentencing Submissions dated 6 April 2022, par 45.
Given that the magistrate had before her written sentencing submissions filed on behalf of the appellant in which the terms of s 87 were set out in full and in which it was contended that the commencement date of any sentence of immediate imprisonment imposed on the appellant could, pursuant to s 87(1), be backdated to take account of the time that the appellant had spent in custody for the robbery charge, it might ordinarily be thought unlikely that the magistrate, in sentencing the appellant, had in mind the no longer existing s 87(a) as opposed to s 87(1). However, the statements made by the magistrate in the above quoted initial exchange with the appellant's counsel reveal not only that her Honour did not read the submissions on the morning of 9 May 2022 prior to sentencing the appellant, but also that if her Honour did read the submissions when they were provided to her some two weeks previously (and it is by no means clear that her Honour did) she had no recollection of their content on the morning of 9 May 2022. If the magistrate had a recollection of the content of the submissions she would not have needed to ask the appellant's counsel if she had seen them before. In these circumstances I do not consider that the fact that the magistrate had before her the sentencing submissions filed on behalf of the appellant in which express reference was made to s 87(1) provides a basis for excluding as a reasonable inference that her Honour was purporting to apply the no longer existing s 87(a).
During his plea in mitigation the appellant's counsel made express reference to s 87(1)(d). It might reasonably be argued that in light of this express reference to subsection (1) of s 87, the magistrate is unlikely to have had in mind the previously existing s 87(a) in sentencing the appellant. However, given that s 87 in its previous form contained a subparagraph (d), I do not consider that the appellant's counsel's reference to s 87(1)(d) is of itself sufficient to justify the conclusion that the magistrate could not have been purporting to apply the no longer existing s 87(a).
In rejecting the appellant's counsel's submission in relation to the time that the appellant had spent in custody, the magistrate did not restrict herself to saying that she was not prepared to take into account the appellant's time in custody pursuant to s 87. Her Honour went further and explained that the basis upon which she was refusing to take the time in custody into account was that the time 'pursuant to s 87A [was] not referable to the [offences]'; in other words, was not time spent in custody 'in respect of' the offences. Her Honour did not, however, go so far as to say that she was not taking the time in custody into account because the time was not solely referable to the offences. If her Honour was purporting to rely on the no longer existing s 87(a) it might be expected that she would have made a statement to this effect. Clearly, if her Honour had made a statement to this effect the only inference that could reasonably be drawn is that her Honour did purport to apply the no longer existing s 87(a) in dealing with the appellant's counsel's submission in relation to the time in custody issue.
It is important, having regard to the circumstances in which magistrates' sentencing remarks are delivered (most often on an ex tempore basis as in this case) and the very busy workload of the Magistrates Court, to avoid reading a magistrate's sentencing remarks with an eye finely tuned for error.[13] Bearing this consideration in mind, and having regard to the matters that I have referred to in par 30 - 33 above, I am not persuaded that the only inference reasonably available to be drawn is that the magistrate, in refusing to take the appellant's time in custody into account, purported to rely on the no longer existing s 87(a) of the Sentencing Act. This might have been what the magistrate did. However, there is, in my opinion, another reasonably open competing inference, specifically that the magistrate's reference to 's 87A' was intended by her Honour to be a reference to s 87(1)(a) and that her Honour refused to take account of the time that the appellant had spent in custody in one of the ways provided for by s 87(1)(c) and s 87(1)(d) because the time spent in custody had not been 'in respect of' the offences within the meaning of s 87(1)(a)(i). If this is what the magistrate did, she overlooked or ignored s 87(1)(a)(ii).
[13] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61]; Neach v Hobbs [2021] WASC 135 [15].
If the magistrate did purport to rely on s 87(a) of the Sentencing Act this was, quite obviously given that the section did not exist at the time of the appellant's sentencing, an error of law. If, however, the magistrate relied on s 87(1)(a)(i), her Honour still made an error of law because the question whether the appellant's time in custody ought to be taken into account needed to be decided by reference to s 87(1)(a)(ii), not s 87(1)(a)(i). To put the matter another way, on any view of the matter the magistrate made an error of law by failing to deal with the issue of the time that the appellant had spent in custody by reference to s 87(1)(a)(ii). Further, the error was a material error in that it was capable of affecting the exercise of the magistrate's sentencing discretion in relation to the commencement date of the sentence imposed.[14]
[14] Harding v The State of Western Australia [2015] WASCA 27 [73] - [75]. See also Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14] and Hiemstra v The State of Western Australia [2021] WASCA 96 [120].
The discretion exercised afresh
The material error the subject of the ground of appeal having been established, the discretion given to the court by s 87(1) of the Sentencing Act falls to be exercised afresh. I have before me the material necessary to enable me to exercise the discretion afresh.
I am satisfied that it is, in all the circumstances, appropriate to order pursuant to s 87(1)(a)(ii), s 87(1)(b) and s 87(1)(d) of the Sentencing Act that the commencement date of the total sentence of 7 months imprisonment imposed on the appellant for the offences be backdated by 243 days to 8 September 2021 to take account of the time spent in custody by the appellant on the robbery charge while on bail for the offences. I am so satisfied for the following reasons:
1.There are no considerations that militate against the application of s 87(1)(a)(ii) in the sentencing exercise; and
2.If the time that the appellant has spent in custody is not taken into account under s 87(1)(a)(ii) by backdating the commencement date of the appellant's sentence to 8 September 2021 and the appellant is ultimately acquitted of the robbery charge, the appellant will not receive any credit for the time that he has spent in custody (243 days); that is, the time in custody will be 'wasted'.
Additional comment
I add for the sake of completeness that if, contrary to my above expressed conclusion, the magistrate did not make the error of law that I have identified and did, despite what she said in her sentencing remarks, have regard to s 87(1)(a)(ii) but nonetheless decided not to exercise her discretion to take into account the time that the appellant had spent in custody, then in my opinion her Honour erred in the exercise of her discretion. I am of this opinion for the reasons given in par 37 above.
Conclusion
For the above stated reasons I made the orders specified in par 8 above.
The effect of my decision was that the appellant, assuming that he had previously been granted bail in respect of the robbery charge (and any other charges that he was facing) was required to be released from prison forthwith (he having already served the total term of 7 months imprisonment imposed for the offences).
If the appellant is ultimately convicted of the robbery charge, then by reason of s 87(2) of the Sentencing Act the 243 days that he spent in custody prior to being sentenced for the offences will not be able to be taken into account in sentencing him for the robbery.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
18 JULY 2022
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