Bergh v Ashton - [2011] WASC 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BERGH -v- ASHTON [2011] WASC 69

CORAM: JENKINS J

HEARD: 8 FEBRUARY 2011

DELIVERED : 1 MARCH 2011

FILE NO/S: SJA 1109 of 2010

BETWEEN: KARL JUEL PERRY BERGH
Appellant
AND
RHETT DOUGLAS ASHTON
JAMES HENRY JOHN STANFORD
Respondent

FILE NO/S :SJA 1119 of 2010

BETWEEN :KARL JUEL PERRY BERGH
Appellant
AND
JAMES HENRY JOHN STANFORD
Defendant

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE TEMBY
File No  :RO 7180 of 2010, RO 9275 - 9348 of 2009

Catchwords:

Criminal law - Appeal against sentence - Graffiti offences - Whether suspended sentence of imprisonment manifestly excessive - Effect of appellant's personal circumstances and his plea of guilty

Criminal law - Appeal against sentence - Criminal damage - Whether sentence of imprisonment manifestly excessive - Totality

Criminal law - Appeal against order that suspended imprisonment period be served in full - Whether order was unjust

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 444(b)
Sentencing Act 1995 (WA), s 8(4), s 16(2)

Result:

SJA 1119 of 2010 - Appeal dismissed
SJA 1109 of 2010 - Appeal allowed
Sentence of 4 months' imprisonment for the offence of criminal damage set aside
In lieu thereof, sentence of 2 months' imprisonment imposed. Sentence to be served concurrently with 8 months' imprisonment ordered to be served for breach of suspended imprisonment order

Category: B

Representation:

SJA 1109 of 2010

Counsel:

Appellant: Ms K I McDougall
Respondent: Mr M Seaman

Solicitors:

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

SJA 1119 of 2010

Counsel:

Appellant: Ms K I McDougall
Defendant: Mr M Seaman

Solicitors:

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

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

Chan v The Queen (1989) 38 A Crim R 337
Jones v Sadler [No 2] [2010] WASC 53
Royer v State of Western Australia [2009] WASCA 139

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) These are appeals from the decisions of a magistrate sitting in the Magistrates Court at Rockingham on 27 May and 1 October 2010.
The appellant appeals against the sentence of 8 months' imprisonment suspended for a period of 18 months, which was imposed on him on 27 May 2010, for 74 counts of criminal damage. He also appeals against a sentence of 4 months' imprisonment for one count of criminal damage, which was imposed on him on 1 October 2010. Also under appeal is the order, made the same day, that he serve the suspended sentence of 8 months' imprisonment imposed on him on 27 May 2010.
The magistrate ordered that the two sentences be served cumulatively, meaning that the appellant received a total of 12 months' imprisonment.
There are five grounds of appeal against the sentence imposed on 27 May 2010. They are contained in the appeal notice for SJA 1119 of 2010 and the consent notice in the same appeal filed 31 January 2011. They are:
1.The learned Magistrate erred in law by failing to properly take into account relevant information regarding the Appellant's personal circumstances, his participation in mediation and payment of compensation to the complainant, and his plea of guilty.
2.The learned Magistrate erred in law by failing to take steps to ensure that he was properly informed of relevant information regarding the Appellant's participation in mediation and payment of compensation to the complainant.
3.The learned Magistrate erred in law by failing to adequately consider sentencing options other than imprisonment.
4.The learned Magistrate erred in law by imposing a sentence of suspended imprisonment that was manifestly excessive in the circumstances of the offending, the Appellant's personal circumstances, sentencing standards and the totality principle.
5.The learned Magistrate erred in law by imposing a suspended sentence after finding that the minimum term of imprisonment open to the court would be too crushing in the Appellant's circumstances.
There are four grounds of appeal against the sentence and orders of 1 October 2010 which are set out in the notice of appeal filed in SJA 1109 of 2010 and the consent notice of the parties filed 31 January 2011. They are:
1.The learned Magistrate erred in law by imposing a sentence that was manifestly excessive in the circumstances of the offending, the Appellant's personal circumstances and sentencing standards.
2.The learned Magistrate erred in law by ordering the Appellant to serve the full term of suspended imprisonment in circumstances where it was unjust to do so.
3.The learned Magistrate erred in law by failing to properly take into account the Appellant's plea of guilty.
4.The learned Magistrate erred in law by failing to adequately consider sentencing options other than imprisonment.
Leave to appeal has not been granted in respect of any of these grounds.
On 8 December 2010 I ordered that the application for leave to appeal be heard at the same time as the appeal.
The appellant was charged that, between 1 January 2009 and 3 September 2009, he wilfully and unlawfully damaged a bin, the value of such damage being $300, the property of City of Rockingham Council (CRC), contrary to the Criminal Code (WA) s 444(b). He was charged with 73 like charges. The only difference between the charges were the items of property damaged. A number of charges related to bins but they also related to other items such as walls, fences, power boxes, street signs and bus stops.
The appellant first appeared in court on these charges on 12 October 2009. It appears that pleas of guilty were at least indicated at the next appearance on 15 October 2009. On 3 November 2009 the appellant entered into a mediation agreement with the CRC.
The matter was adjourned for the preparation of a mediation report. Subsequently, the appellant entered into a mediation agreement. The agreement required the appellant to undertake unsupervised voluntary work for the CRC as part of the graffiti paint‑out project. It was agreed that the work would consist of the appellant painting at least half an hour per weeknight in the Secret Harbour area and eight hours over the weekend.
It was agreed that the appellant would undertake the work for a period of no less than six months, commencing on 9 November 2009. It was agreed that the appellant would liaise with an officer from the council regarding the work, with monthly reports, and provide her with photographic evidence of his work prior to and on completion. It was also agreed that the appellant would pay $50 per fortnight to the CRC. The appellant was given time to comply with that agreement before he was sentenced on 27 May.
On 22 July 2010 the appellant was charged with a further three offences. One of these alleged that on 3 July 2010, at Secret Harbour, he had unlawfully damaged the property of the complainant. The other two charges were charges of disorderly behaviour on the same occasion as the criminal damage offence.
The appellant first appeared in court on these latter charges on 30 July 2010. On 3 September he pleaded guilty to them, and a pre‑sentence report was ordered. On 1 October the appellant was sentenced for the three offences, and dealt with for breaching the suspended imprisonment order.

Facts relating to the graffiti charges

The facts relating to the 74 counts of criminal damage were that, between 1 January 2009 and 3 August 2009, the appellant wrote his tags on various walls, street signs, lamp posts, power boxes, fences, bus stops, benches, pavements, bins and a satellite dish located in Secret Harbour. The cost of the damage amounted to $22,200.
On 17 September 2009 the appellant was interviewed on video, by the police, and he made a full confession to the 74 counts of criminal damage. It can be seen that those offences were then broken up into the 74 charges to which the appellant pleaded guilty.

Facts relating to the criminal damage charge

The facts relating to the last three charges were that, at 12.15 am on Saturday, 3 July 2010, the appellant was in the carpark of the Secret Harbour shopping centre. The carpark was open to the public. The civilian witnesses were within a motor vehicle in the carpark. The appellant, who had had no prior contact with the witnesses, pushed a shopping trolley into the rear of their vehicle, causing a dent.
The witnesses alighted from the vehicle, to check for damage, and an argument took place between them and the appellant and others who were with the appellant. The appellant proceeded to shout and swear at the witnesses, and began to kick the victim's driver's side door repeatedly. The police then drove into the carpark and witnessed the appellant's behaviour.
The appellant attempted to walk off, and it was then that one of the disorderly conduct offences occurred. I will not go into the details of those offences as they are not the subject of the appeal.
The appellant caused significant damage to the door handle of the victim's car; it was smashed to an extent that the door could not be opened.

Sentencing: 27 May 2010

On 27 May 2010 the mediation report provided to the court stated that the appellant had failed to comply with the mediation agreement. Thus a considerable amount of the plea was spent trying to explain that failure.
Counsel provided the court with what she said were photographs of clean‑up work that the appellant had completed. She said that the appellant did not appreciate that he had to complete work sheets or reports as to that work. However, she said that on 'most days after work' he had gone and painted over graffiti.
The appellant's counsel said that he had not made any payment under the mediation agreement because 'he found it difficult to organise'. His counsel told the court that the appellant had completed a Right to Write programme. Through this programme, he had completed some artworks which had been auctioned. His counsel said that it was believed that his works had sold for at least $600 and that this money had gone directly to the CRC.
Counsel said she did not know whether the magistrate wanted to adjourn sentencing so that her submissions could be verified. The court was told that the appellant considered that he had worked reasonably solidly to redress the damage, but he was in a position where he could not prove it.
Counsel admitted that the appellant had not complied with the mediation agreement. Counsel said that the appellant was working full‑time as a third‑year apprentice plasterer, and he earned $500 per week. He had moved back to live with his parents a few weeks earlier. Counsel said that if the appellant was able to obtain some evidence as to the above matters, it would go some way to show that he was genuine, but had 'messed up' his administrative obligations.
Counsel said that if the magistrate was not minded to adjourn sentencing, there was still reason to think that the appellant would continue to 'improve', cease offending, grow up, and contribute to society. She submitted that fines would be appropriate as it seemed that the appellant had difficulty understanding instructions, and would be likely to breach an order.
Counsel said that the CRC had been prepared to write off $6,000 in damages if the appellant completed a certain number of hours, presumably of cleaning and painting over. She acknowledged that it was doubtful that the appellant could have that credited to him as he had not complied with his administrative obligations. She queried whether the CRC may allow the appellant to continue painting over the graffiti. She also acknowledged that that would be asking a lot, as the appellant had already had a long time to comply with the mediation agreement.
Evidence produced in this court confirms that the appellant participated in the Right to Write programme at the Rockingham PCYC between August and December 2009, that several pieces of his art were sold at auction, and the proceeds went to the PCYC and not the CRC.
The magistrate noted that the matter had been listed for sentence on 3 December but had been adjourned to allow for the preparation of an updated mediation report. His Honour noted some of the contents of that report, which said that the appellant had not contacted the appropriate officer at the CRC and had not adhered to the responsibilities of the mediation agreement.
His Honour noted that on 3 December the appellant had indicated a willingness to comply with the mediation agreement. However, he had not undertaken the work required in it, he had not made the payments required by it and had not made contact with the CRC as required. This was despite the efforts made by the relevant CRC officer to contact the appellant directly, and through messages left with his parents.
His Honour said that a lot of the information from counsel was contrary to what was contained in the mediation report. His Honour said that the matter had gone on too long, and that to allow further time would be sending the wrong message to the appellant; that is, that he could take his time in dealing with the issue.
His Honour referred to the appellant's youth and immaturity, and that it did not seem to him to be sensible to keep the matter of sentencing hanging over his head. He also said that he thought that he had sufficient information with which to sentence the appellant.
The prosecutor then submitted that a term of imprisonment was appropriate. He referred to the appellant's failure to comply with the mediation agreement, his youth, the amount of damage caused by the offending, and the need for general deterrence.
The magistrate then sentenced the appellant. In doing so, he referred to the following matters:
1.the maximum penalty of 3 years or a fine of $36,000;
2.the number of charges;
3.the amount of damage caused by the offences;
4.the length of time over which the offences occurred;
5.the principles of sentencing in the Sentencing Act 1995 (WA); and
6.the type of property damage, being public property which was there for the use and safety of the public.
His Honour also referred to recent cases on the appropriate penalty for graffiti offences, including Jones v Sadler[No 2] [2010] WASC 53. His Honour noted that there were significant differences between that case and the appellant's offending which rendered the appellant's offending more serious. Those differences were the number of offences, the length of time over which they were committed, and the value of the damage caused by them.
His Honour said that his view was that he had 'reached the sentence of last resort', being imprisonment. His Honour then referred to the appellant's age, and asked himself whether the circumstances justified the suspension of the term of imprisonment. His Honour considered a sentence of 6 months 1 day, being the minimum term he could impose, would be 'crushing', given the appellant's age. His Honour determined that the circumstances justified the suspension of the term of imprisonment for a significant period of time.
His Honour then referred to the failure of the appellant to comply with the mediation agreement. The magistrate structured the sentence so that he imposed a term of 8 months' imprisonment for each offence, to be served concurrently. He then suspended the sentence for 18 months.
Finally, the magistrate gave an explicit and fulsome warning to the appellant of the consequences of being convicted of an offence committed during the following 18 months and for which he could receive a sentence of imprisonment. That is, that such an offence would breach the suspended imprisonment order and that the appellant would be imprisoned for these offences.

Sentencing: 1 October 2010

On 1 October 2010 counsel commenced her submissions by accepting the facts. The explanation given for the offending was the appellant's over consumption of alcohol. The pre‑sentence report said that he had consumed a bottle of spirits over a period of three hours. Counsel said that the appellant did not usually drink. She also said that the appellant thought that the occupants of the car had been involved in hitting a girl and so he became involved in the argument with them.
Counsel referred to the suspended imprisonment order imposed on 27 May 2010. She said that prior to being sentenced the appellant had completed 360 hours of community service work, which involved cleaning graffiti. Counsel said that since being sentenced the appellant had changed his lifestyle. He was no longer involved in illegal graffiti.
She referred to his involvement in the Right to Write programme, and that the appellant continued to volunteer, on Friday nights, in the programme by teaching other young people to draw and paint on canvas, and to contribute to the end of year auction which sells paintings and raises money.
Defence counsel told the magistrate that the fundraising was for 'the council'. She said that the appellant had been offered paid employment in that programme, which he had declined because he only had a couple of months to complete his apprenticeship.
Counsel said that the appellant was then living with his girlfriend's parents out of the Rockingham area in order to break away from the negative influences in that area. In addition to his longstanding diagnosis of ADHD, the appellant had been recently diagnosed with depression and had been put on antidepressant medication.
I digress to note that this was after the appellant's arrest and pending his appearance in court on the new charges and for breaching the suspended imprisonment order. It was not then directly relevant to explaining his offending behaviour.
Counsel submitted that, given the appellant's age, his attempts to improve his lifestyle and the different nature of the offending, the magistrate could place the appellant on an intensive supervision order.
The prosecutor submitted that imprisonment was the appropriate sentence given the nature of the breach offence and the short period of time of five weeks between the imposition of the suspended imprisonment order and the breach offence.
The magistrate then sentenced the appellant, as I have detailed earlier, taking into account the following matters:
1.that the appellant had received a suspended sentence of imprisonment in May due to his age and the efforts he had made to redress the damage he had caused by his earlier offending;
2.the breach offence, being unlawful criminal damage, was a different type of offence;
3.the consumption of alcohol was a factor leading to the commission of the breach offence; and
4.that the suspended imprisonment order must be triggered unless it was unjust to do so having regard to the appellant's current circumstances.
The circumstances relied on by the appellant as reasons why the suspended imprisonment order should not be triggered were his employment, his community work, his relocation to an area where he was not influenced by a negative peer group, his recent diagnosis with depression, which the magistrate said could have been caused by the likelihood of him being sent to prison, and the author of the pre‑sentence report's view that the appellant would be assisted by community based programmes.
Despite these matters the magistrate said that he was troubled that within a short period of time the appellant had consumed a large amount of alcohol and committed the breach offence. The magistrate concluded that the circumstances were not such as to make it unjust to trigger the suspended imprisonment order.
His Honour then proceeded to order the appellant to serve 8 months' imprisonment imposed on 27 May 2010. He then sentenced the appellant to a further 4 months' imprisonment for the criminal damage offence and ordered that it be served cumulatively on the 8 months' imprisonment.

On appeal, further evidence from the PCYC confirms that the appellant participated in the Right to Write programme between August and November 2009. As a result, he produced several pieces of art which were later sold in an exhibition, with all the proceeds going back to the PCYC. In mid‑2010 he volunteered his time on two occasions to assist other offenders involved in the programme.

SJA 1119 of 2010 - Ground 1

Ground 1 of the appeal says that the magistrate failed to properly take into account his participation in mediation, payment of compensation, and his plea of guilty.
In determining whether a sentence is manifestly excessive, I have had regard to the decision of Chan v The Queen (1989) 38 A Crim R 337, where the then Malcolm CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).
Since that decision, the Sentencing Act has been proclaimed. Nevertheless, the principles enunciated by Malcolm CJ still apply in respect to appeals against sentence.
In this situation, as the magistrate stated, the maximum penalty for the offence, if dealt with summarily, is 3 years' imprisonment or a fine of $36,000. Of course, that is not the maximum term of imprisonment that is available had the matter been dealt with on indictment.
The standards of sentencing customarily observed with respect to the crime are not easy to determine. The parties have referred to some cases but they are not commensurate with the seriousness of the appellant's offending. Those cases however do establish that, for minor offences of graffiti, it is not customarily acceptable to impose terms of imprisonment, either to be served immediately or to be suspended.
The fact is that this was not just one or a couple of offences, this was 74 offences spanning a period of some eight months. The amount of damage imposed was significant, being some $22,000 worth of damage.
In my opinion I am not able to determine that there is a standard of sentencing customarily observed with respect to an offending spree of this type, as no other offences of a like nature have been presented to me.
In respect to the place which the criminal conduct occupies on a scale of seriousness of crimes of this type, it is quite obvious that, given the number of offences, the amount of damage caused and the length of time over which the offending took place, this is a very serious example of graffiti offending. That does not mean that it is a serious example or the most serious example of criminal damage offending but it is a series of offences which amount to a serious example of offences of its type. It is necessary in respect to these offences to have regard to general and specific deterrence. Unfortunately graffiti offences do seem to be prevalent in our community. They do deface public buildings and property. They do put the public to a significant degree of cost to remove the graffiti. It is necessary for the courts to impose deterrent penalties where appropriate.
In respect to the personal circumstances of the offender, I note that the onus of proof going to matters of mitigation of sentence is on the offender, who must establish such matters on the balance of probabilities.
The appellant's counsel acknowledged that the appellant had not complied with the mediation agreement despite being given some six months in which to do so. He had not kept in contact with the CRC, not responded to their calls, had not provided them with work sheets to show that he had done any graffiti clean‑up, and had not made payments to the council.
The magistrate was entitled to and did take those matters indicating a lack of remorse and rehabilitation into account when sentencing the appellant.
Counsel submitted that the appellant had taken other steps, such as participating in the Right to Write programme, allowing his artwork to be auctioned, and cleaning up graffiti in his own time. The appellant did not offer proof of any of these matters other than tendering photographs which were said to be of graffiti he had cleaned up. Counsel acknowledged that she was unable to provide further proof on that date despite the sentencing date having been set for some time to enable the appellant to participate in the mediation.
It is not surprising that the magistrate does not appear to have given these matters significant weight in the sentencing process. The photographs, although numerous, are undated. The clean‑up work depicted in them could have been completed over a weekend or a few evenings rather than in the time agreed to in the mediation agreement.
The appellant's participation in the Right to Write programme seems to have been completed by December and therefore did not take place over the six months that the appellant was given to complete the agreement.
The appellant had agreed to pay $50 per fortnight. He paid only $150, despite being in constant employment. He did permit some of his artwork completed in the Right to Write programme to be sold and the proceeds to go to the PCYC rather than the CRC, the complainant. It is not clear that this occurred during the term of the mediation agreement.
In any event, to the limited extent that these matters were mitigatory, I am not persuaded that the magistrate failed to take them into account. It is true that he commenced to say that the appellant had not done himself 'any credit' since he had entered his plea, but he then corrected himself and said that the appellant had not done 'as much credit' as he could have done in that period.
This was a recognition that the appellant had taken some steps, but not as many as he could have, to show remorse for his offending and to indicate that he was in the process of rehabilitating himself. There was no error in the magistrate's reasoning in this regard. The appellant had not done himself much credit. He had failed to comply with every aspect of the mediation agreement.
The fact that the magistrate took into account the appellant's limited effort is also confirmed in the sentencing remarks of 1 October, when his Honour said that the appellant had received a suspended sentence of imprisonment in May, due in part to the efforts that the appellant had made to redress the damage he had caused by his earlier offending.
As to the allegation that the magistrate failed to give credit for the pleas of guilty, the magistrate referred to the appellant as having entered pleas. The comment indicates that he was aware of the pleas of guilty. However, it is also true that the magistrate did not say that the appellant would receive credit, in the sentencing process, for those pleas.
The Sentencing Act s 8(4) requires that:
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the Court must state that in open court.
However, failure to comply with that requirement is not of itself an appealable error. The inquiry on appeal is whether it can be discerned that the sentencing court reduced the sentence by virtue of the plea: Royer v State of Western Australia[2009] WASCA 139, 59 ‑ 60.
For the reasons which I will give in respect of ground 4, I am of the opinion that even if the magistrate erred in this respect, the ultimate sentence imposed on the appellant was an appropriate penalty for the appellant's offending, and any error on the magistrate's part, in this respect, did not cause a substantial miscarriage of justice.

SJA 1119 of 2010 - Ground 2

Ground 2 of the appeal alleges that the magistrate erred in law by failing to take steps to ensure that he was properly informed of the relevant information regarding the appellant's participation in mediation and payment of compensation to the complainant.
The magistrate concluded that he had sufficient material with which to sentence the appellant. For reasons which he clearly expressed, he was of the opinion that it was in the appellant's interest that he sentence him on 27 May. This was an issue for the exercise of the magistrate's discretion. Sentencing had already been adjourned, it seems, for some six months to enable the appellant to participate in mediation. The magistrate had evidence before him that the adjournment period had been of limited utility.
The Sentencing Act s 16(2) says that the sentencing of an offender must not be adjourned for more than six months after the offender is convicted. The matter had either already been adjourned for six months, or that period was about to expire, depending on one's interpretation of the magistrate's notation on the prosecution notices.
In all the circumstances, the magistrate made no error in deciding to sentence the appellant on 27 May 2010. This is particularly so because the obligation was on the appellant to adduce evidence of matters going to mitigation of sentence. He had been given six months to do so. He could not have been expected to have been given a longer period. I would not grant leave to appeal or allow the appeal on this ground.

SJA 1119 of 2010 - Grounds 3 and 5

It is convenient to consider grounds 3 and 5 together as they raise similar issues. Ground 3 is that the magistrate erred in law by failing to adequately consider sentencing options other than imprisonment. Ground 5 is that the magistrate erred in law by imposing a sentence of imprisonment after finding that the minimum term of imprisonment open to the court would be too crushing in the appellant's circumstances.
The magistrate said that he could not impose a sentence of imprisonment unless the seriousness of the offence was such that only imprisonment could be justified, or that the protection of the community required it. He was well aware that this was a sentence of last resort.
His Honour said that he had decided that he had reached the point of deciding that imprisonment was the appropriate sentence, but he also had to decide whether the sentence of imprisonment should be suspended. In doing so, he referred to a case where the offender's sentence had been suspended for a graffiti offence, and the court, on appeal, had quashed the sentence and imposed a non‑custodial sentence. He distinguished that case on its facts.
It is clear in my view that the magistrate considered imposing a lesser sentence than a sentence of imprisonment to be served or suspended, and rejected those possibilities. In my opinion he had no option but to do so. These were serious property offences involving over $20,000 worth of damage, over eight months, involving deliberate and planned criminal conduct.
A sentence of imprisonment would be the usual penalty for a mature adult who committed such offences, but the appellant was a young first offender who had entered early pleas at the first opportunity. He was also in stable employment. These were powerful mitigating factors.
The magistrate had then given the appellant the opportunity to show that he could be given a non‑custodial sentence by giving him time to comply with the mediation agreement. The result of that opportunity was that the appellant had not complied with the agreement to pay restitution. This militated against the magistrate imposing a substantial fine. How could the magistrate impose a substantial fine commensurate with the seriousness of the offences when the appellant had paid only $150 over the term of the mediation agreement, despite being in employment and having agreed to pay some $50 per fortnight?
Further, the appellant had failed to comply with the mediation agreement by doing what he agreed to do and keeping in contact with the CRC whilst doing so. This was powerful evidence that the appellant was not suitable for a community based order or an intensive supervision order which would have required the appellant to be subject to supervision and comply with the directions of his supervising officer.
As I have said, the magistrate had little choice but to decide that imprisonment was the appropriate sentencing option, despite the appellant's mitigating circumstances.
The core of these grounds is that the magistrate then found that a sentence of 6 months 1 day would be crushing on the appellant. Despite that, his Honour then decided to impose a term of 8 months' imprisonment.
If the magistrate used 'crushing' in its technical sense, of being a sentence which would snuff out all sense of hope in the appellant, then it was an error for the magistrate to have imposed a longer sentence but then to suspend it. No sentence of imprisonment, suspended or not, should be imposed if it is crushing in that sense.
Similarly, if the magistrate merely meant that a sentence of 6 months 1 day would be too severe, he should not have imposed a sentence of 8 months to be suspended as any sentence of imprisonment to be suspended cannot be imposed unless the court is of the view that a term of imprisonment of that length, to be served immediately, would be an appropriately long sentence.
The respondent submits that the magistrate used 'crushing' in the sense that a sentence of 6 months 1 day, to be served immediately, would be too severe. As I have said, if that sentence was too severe, then a sentence of 8 months suspended must also be too severe.
The difficulty I have is that a sentence of 6 months 1 day in my opinion is not a crushing sentence in the technical sense of the word. It does not snuff out all chance of a productive life after release, especially for a young man.
I would not grant leave to appeal in respect of ground 3 as I am satisfied that the magistrate took into account and considered sentences other than a sentence of imprisonment, but I would grant leave to appeal in respect to ground 5. However, I would not grant the appeal on ground 5 as, for the reasons which I will express on ground 4 and the reasons that I have expressed in respect to grounds 3 and 5, I am of the opinion that a sentence of 8 months' imprisonment suspended for 18 months was an entirely appropriate punishment for the offences.
The magistrate's error in deciding that a sentence of 6 months 1 day would be crushing, and then imposing a sentence of 8 months to be suspended, did not result in a substantial miscarriage of justice: Criminal Appeals Act2004 (WA) s 14(2).

SJA 1119 of 2010 - Ground 4

Ground 4 deals again with this issue of manifest excessiveness. I appreciate that I have referred to it in respect of ground 1, even though the term 'manifest excessiveness' is not included in ground 1. The reason I did so is because ground 1 seems to include issues relating to manifest excess.
The reasons I have given in respect to ground 1 apply similarly in respect to ground 4. Under this ground, though, I will deal with the issue that the magistrate purported to impose a global sentence of 8 months' imprisonment. It is not possible to impose a global sentence of 8 months' imprisonment. It must be interpreted as a sentence of 8 months' imprisonment on each offence, to be served concurrently.
I agree with the appellant that a sentence of 8 months' imprisonment for an individual graffiti offence causing $300 damage is manifestly excessive. To this extent error has been shown.
The question then becomes whether a total sentence of 8 months' imprisonment for 74 offences of graffiti is a miscarriage of justice. For the reasons that I have given in respect to ground 3, I do not accept that it is. In the circumstances, an 8‑month sentence to be suspended immediately was not manifestly excessive.
This is despite the powerful mitigating factors, which I have already referred to, which were in the appellant's favour.
In this respect, as I discussed with counsel during oral submissions, a proper procedure for the magistrate to employ may well have been to impose a sentence of 1 month imprisonment in respect to each offence, and to accumulate eight of those sentences, resulting in a total sentence of 8 months' imprisonment. Those sentences could then have been suspended.
Whilst I acknowledge that there was an error in the way that the magistrate has structured the sentence, in my opinion this resulted in no substantial miscarriage of justice.
For these reasons, in respect to appeal SJA 1119 of 2010, I would, after having considered all the grounds of appeal, dismiss the appeal.

SJA 1109 of 2010 - Ground 1

Ground 1 of that appeal alleges that the magistrate erred in law by imposing a sentence for the offence of criminal damage that was manifestly excessive in the circumstances of the offending, the appellant's personal circumstances and the sentencing standards.
I have already referred to the law to be applied when deciding whether a sentence is manifestly excessive. In my opinion this ground of appeal has been made out.
The magistrate did not give any significant reasons for his decision to impose a sentence of 4 months' imprisonment cumulative on the 8 months' imprisonment to be served as a result of breaching the suspended imprisonment order.
The respondent has referred to two, in particular, cases of criminal damage and submits, on the basis of those cases, that the sentence of 4 months' imprisonment to be served cumulatively was not manifestly excessive and was within the range of penalties customarily imposed for offences of this type. However, I think that it is not possible to discern from those cases the sentence customarily imposed for offences of this type. It is also necessary to have regard to the appellant's personal circumstances.
The appellant, when he came for sentence on 1 October, was still a very young man. He did deserve credit for an early plea of guilty. He was then still in stable employment. He did have only the previous criminal damage offences against his prior criminal record, and he was to be ordered to serve the term of 8 months' imprisonment that was the subject of the suspended imprisonment order.
In my view, in these circumstances, a sentence of 4 months' imprisonment to be served cumulatively on the sentence of 8 months was manifestly excessive.

SJA 1109 of 2010 - Ground 2

I then turn to the second ground of appeal, which is that the magistrate erred in law by ordering the appellant to serve the full term of the suspended imprisonment order in circumstances where it was unjust to do so.
The law is quite clear. That is, the Sentencing Act requires that when a person breaches a suspended imprisonment order they must be ordered to serve the whole of the term of imprisonment unless it would be unjust to do so having regard to the facts which have arisen or have become known since the appellant was sentenced to the suspended imprisonment order.
In my view, there were no such facts or circumstances which made it unjust for the magistrate to order that the full term of imprisonment be imposed on the appellant. He had breached the suspended imprisonment order by committing a further criminal damage offence, albeit of a different nature, some five weeks after the suspended imprisonment order had been imposed.
The magistrate had, at the time of sentencing the appellant to the suspended imprisonment order, given him a full and explicit warning of what would happen if he breached the suspended imprisonment order. Despite being given the opportunity to serve his sentence in the community, and despite having received that warning, he reoffended in a serious manner within five weeks of having the suspended imprisonment order imposed on him. In those circumstances there was no error made by the magistrate in ordering that he serve that full term.
It is unnecessary for me to deal with grounds 3 and 4 of the appeal because I have decided that the magistrate erred in respect to ground 1. Grounds 3 and 4, as I understand it, relate to the sentence imposed for the criminal damage charge.

SJA 1109 of 2010 - Re‑sentencing

Having decided that there was an error in respect to the sentence imposed for the criminal damage charge, it is my obligation then to re‑sentence the appellant, unless I am of the view that the error did not result in a substantial miscarriage of justice.
In my opinion the error did result in a substantial miscarriage of justice, having regard to the reasons which I have already given in respect to ground 1.
An appropriate penalty for the criminal damage charge, having regard both to the facts that were known to the magistrate and the matters that were put to me by the appellant's counsel at the time of the hearing of this matter in order to bring me up to date with the appellant's current circumstances, a sentence of 2 months' imprisonment would have been, and is, appropriate for that offence. It would have been, and is, appropriate to order that that sentence be served concurrently with the sentence of 8 months' imprisonment.
Of course, usually an offence of an entirely different nature committed at a different point of time would attract a cumulative sentence. Having regard to the appellant's youth, his minor criminal record, his employment record, his early plea of guilty and other matters going to mitigation of penalty, in my view it would be appropriate for that sentence to be ordered concurrently with the sentence of 8 months.
Therefore I would allow the appeal in respect to SJA 1109 of 2010. I would set aside the sentence of 4 months' imprisonment to be served cumulatively. I would impose a sentence of 2 months' imprisonment for that criminal damage charge and order that it be served concurrently with the sentence of 8 months, resulting in a total sentence of 8 months' imprisonment.