Betts v Hardcastle
[2001] WASCA 35
•16 FEBRUARY 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | BETTS -v- HARDCASTLE [2001] WASCA 35 |
| CORAM | : ROBERTS-SMITH J | ||
| HEARD | : 5 FEBRUARY 2001 | ||
| DELIVERED | : 16 FEBRUARY 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : WAYNE STEWART BETTS |
Appellant
AND
JOHN DEREK HARDCASTLE
Respondent
Catchwords:
Criminal law - Evidence of accomplice - Summary jurisdiction - Need for corroboration warning
Criminal Law - Reasons for decision - Need to advert to warning about evidence of accomplice
Criminal law - Corroboration of evidence of accomplice - Lies as corroboration
Criminal law - Stealing motorcycle - Sentence - Immediate imprisonment - First offender - Whether should have been suspended
Legislation:
Evidence Act 1906 (WA), s50
[2001] WASCA 35
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Sentence of 12 months imprisonment quashed
Sentence of 12 months imprisonment to be suspended for 2 years substituted
Representation:
Counsel:
| Appellant | : | Mr R A Mazza |
| Respondent | : | Ms S L Melvold |
Solicitors:
| Appellant | : | Martella & Co |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Boyle v The Queen, unreported; CCA SCt of WA; Library No 980125; 24
March 1998
Brown v The Queen, unreported; FCt SCt of WA; Library No 6028; 3 October
1985
Butun v The Queen, unreported; CCA SCt of WA; Library No 8717; 15
February 1991
Carlson v King (1947) 64 WN (NSW) 65
Cook v The Queen (2000) 110 A Crim R 117
Dinsdale v The Queen (2000) 74 ALJR 1538
Edwards v The Queen (1993) 178 CLR 193
Fleming v The Queen (1998) 197 CLR 250
Garrett v Nicholson (1999) 21 WAR 226
Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960437; 7
June 1996
Khan v The Queen [1971] WAR 44
Lam v Beesley (1992) 7 WAR 88
Lloyd v Faraone [1989] WAR 154
Longman v The Queen (1989) 168 CLR 79
Nevermann (1989) 43 A Crim R 347
Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12
May 1995
[2001] WASCA 35
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Baskerville [1916] 2 KB 658 at 665
R v Lucas [1981] 1 QB 720
R v Small (1994) 33 NSWLR 575
Ridley v Whipp (1916) 22 CLR 381
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
Tumahole Bereng v The Queen [1949] App Cas 253
Zheng v The Queen (1995) 83 A Crim R 572
Case(s) also cited:
Nil
[2001] WASCA 35
ROBERTS-SMITH J
ROBERTS-SMITH J: By leave granted by Scott J on 27 October 2000, the appellant appeals against a sentence of 12 months imprisonment imposed upon him in the Harvey Court of Petty Sessions on 16 October 2000 following his conviction of an offence that between 14 and 16 July 1999 at Cookernup, he stole a 650cc Kawasaki motor cycle HH7706 valued at $2000, the property of one Dominic James O'Neil, contrary to s 378 of the Criminal Code (WA). The appellant was admitted to bail by Scott J pending appeal.
By leave granted by Miller J on 20 November 2000, the appellant appeals against his conviction of that offence.
The appeal against conviction is brought on the grounds that:
"A. The Learned Magistrate erred in law by not giving himself an accomplice warning.
B. The Learned Magistrate erred in law by wrongly treating false statements made out of court by the Appellant to Douglas John Lalor as corroboration of the accomplice Luke Simpson Shelley."
The ground of appeal against sentence is that his Worship erred in sentencing the appellant to a term of imprisonment for 12 months with eligibility for parole when he should have imposed a community based order, a fine or a suspended term of imprisonment. The particulars of that ground are given as follows:
"1.
His Worship erred in deciding that general deterrence was the foremost consideration in determining the appropriate penalty.
2.
The circumstances of the offence of stealing were not so serious as to warrant an immediate term of imprisonment having regard to:-
(a) The [appellant's] antecedents; (b) the [appellant's] employment and family situation; (c)
the lack of any personal benefit accruing to the [appellant] from the offence;
(d) the value of the goods the subject of the offence;
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(e) evidence of previous good character."
It is logical to deal with the appeal against conviction first.
The only evidence directly implicating the appellant was given by Luke Shelley; on any view Shelley was also an accomplice.
At the time of trial Shelley was 17 years of age. He lived in Harvey. In the middle of 1999 he was an apprentice baker employed at the Eureka Bakery by the appellant and had been there for about 12 months. The baking was done by the appellant, Shelley and one other apprentice. There were also three shop girls. Shelley owned an old unlicensed motor bike and in the course of discussion at the bakery, said he was considering upgrading it. According to Shelley's evidence, the appellant then said he knew where there was a bike and asked if he wanted to get it, that is to steal it, a proposition with which Shelley later agreed. According to Shelley the appellant told him that he knew from his delivery round where there was a bike, because it could be seen from the road. It was in a shed but the doors were not shut.
At about 8 o'clock one morning the appellant drove the delivery van past the property where the bike was and pointed it out to Shelley.
There were no further discussions about it until approximately 1- 1/2 weeks later when after they finished work at about 3 or 4 am, the appellant came to do pastry and deliveries and suggested to Shelley that they should go and get the bike. Shelley testified that he agreed with that and so later that morning they went out and got it. Again, the appellant drove him in the bakery van. The appellant parked the van about 250 metres up the road from the property and told Shelley to go and get the bike while he parked the van. Shelley walked up the driveway, kicked the stand up on the bike, and walked it back to the van. The appellant helped him put it in the back of the van and Shelley climbed in with it and sat there with the bike on the way back to Harvey so it would not fall over. It was still dark when they arrived back at the bakery. The exercise would have taken about an hour. They then unloaded the bike from the van and took it into a packing area of the bakery where the van was normally parked. They then removed the identification tags, the licence plates and other items from the bike. Shelley tried to remove a small tool bag, but was not able to do so. These things were removed at the appellant's suggestion. They then gathered all of those items together and took them to a weir in Harvey, about 10 kms from the bakery. They found a suitable spot to dispose of them about 200 metres from the van,
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where they pulled a rock up and put the items under the rock and covered it up. It was the appellant who lifted the rock to enable Shelley to hide them underneath. They then returned to the van and went back to the bakery. They had put the bike in a truck pan which was at the bakery and which was being used to store crates. Again, the idea to put the bike there was the appellant's. In his evidence Shelley said that was because they could not leave a stolen bike just sitting in the bakery and he could not take it home because his parents would wonder where it came from. After the bike was placed in the truck pan, the doors were shut, although they were not locked until about a week later when Shelley found a padlock.
After returning to the bakery from the weir, the appellant went about his normal deliveries and Shelley went home.
The motor cycle was left at the bakery for about 4 months all up. It was in the truck pan for approximately 1-1/2 months, but after that the appellant put the pan back on the truck because he wished to sell it and the motor cycle was put at the side of the bakery and sometime after that Shelley took it home.
He told his parents that he had sold his other bike for $300 and had been able to buy this one cheaply. His parents however were suspicious and his father began to make enquiries about the bike and the cost of a bike of that type.
Shelley says that in the end he "came clean" with his parents and told them the whole story and took the bike back to the bakery, after which he says it went to the other apprentice's brother. In his evidence Shelley said he could not really remember how that was arranged. He never said anything to the brother but the next thing he knew the brother had it. When he returned the bike to the bakery because of his parent's suspicions, he told the appellant who simply said "Fine". There were discussions with the appellant about how they were going to get rid of it or who they were going to give it to, but at that time they could not decide what to do with it so they left the bike at the back and when Shelley turned up for work one weekend it was gone.
In cross-examination Shelley agreed that he had been charged with stealing the bike and had pleaded guilty to that. He also agreed to having some animosity towards the appellant because of a subsequent dispute in his work, the outcome of which was that he left that employment. Subsequent to that he had fraudulently charged petrol to the appellant's account with a local service station. When the service station proprietor
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subsequently queried that with the appellant, who told him Shelley no longer worked for the appellant, Shelley admitted his deceit to the service station proprietor and the money was subsequently reimbursed.
Shelley admitted telling lies to his parents about the motor cycle, but denied that he was lying in court.
Apart from the owner of the bike who testified as to the condition and value of it and the fact that it was clandestinely removed from his property in the middle of the night, the only other substantive prosecution witness was Shelley's stepfather, Douglas John Lalor.
Lalor first saw the motor cycle when it was at his premises. As a result of a discussion he had with Shelley, he went to see the appellant to find out what he knew about it. He later described it the following way:
"I asked if he knew anything about the motor bike and where it came from, and he told me that he hadn't seen it and knew nothing about it. We knew Luke had been talking about a motor bike but he hadn't seen it, so he said, 'Well, go to your place and have a look at it then.' So we did. We went back to my place and he basically tried to talk the motor bike down, because I said to him, 'This is not a $500 motor bike,' and he tried to talk it down as though Luke was the one that might have got ripped off here, because there's no ignition and it probably doesn't even go. And he even told me he knew the bloke where the bike had come from, and he said - - he told me - - he said - - what he actually said to me was, 'The bloke's a dickhead so he probably couldn't get it going so he just wanted to get rid of it.' And I still wasn't convinced about this, but I thought, 'Oh, well, maybe.' And then as the days moved on there's just little things that weren't right. The ignition was ripped out. There was no ID tag on it, and it had gold panels on it, and a couple of days later these gold spray tins turned up, so I thought, 'That's been painted in recent - - ' and so I kept asking questions. I wanted to see proof of ownership and they kept putting me off, you know. And eventually I said, 'Look,' I said, 'this - - I suspect - - '
PROSECUTOR: Who are you talking to here?---Well, in both places I spoke - - talking to my son and Wayne.
All right. Just tell us what you said to Wayne about that. Now, is this - - how many occasions did you speak to Wayne about it, because I'm getting a bit confused here?---Well, yeah; okay.
[2001] WASCA 35
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Well, I spoke to him on probably three or four occasions about this motor bike, because he kept saying he knew who the bloke was, and he'd take me down to see him.
But you gave evidence, as I understand it - correct me if I'm wrong - initially to say that he didn't know anything about the motor bike. Hadn't seen the motor bike?---That's right, yeah. Yeah; hadn't seen it. But he knew the bloke who had it, that Luke was supposed to have bought it off.
So you've told us about how he went home with you to your home address; is that right?---Yeah.
Then have you seen him on another occasion after that - spoken to him?---Yeah. I spoke to - - I actually spoke to Wayne and the other people; this Ian who was supposed to have been the go-between. Who was supposed to have delivered the bike to Harvey - - about the bike, then I wanted - -
MR MARTELLA: Well, maybe - -
HIS WORSHIP: Yes. I agree.
MR MARTELLA: Maybe - - I think it's - -
PROSECUTOR: Just hold it there. I'm just - - ?---Okay.
I'm just trying to find out where you're going. Just tell us about the conversations that you had and the times that you had with the defendant. You've told us about the first two, as I understand it?---Yeah.
Then you went to his work and then at your home?---Yeah.
Are there any other occasions you spoke to the defendant?--- Well, there was probably a couple of times in between, but it was just that I wasn't happy. I was suspicious about this motor bike. And then the final time that I spoke to him about it was, I was going to work and he pulled up in front of my house and asked me what I was unhappy about. Did I think that Luke paid too much for the motor bike. I said, 'No. What I'm unhappy about is I believe the motor bike's been stolen. Unless somebody can prove - - give me proof of ownership - - ' well, actually, I said - - I don't know what I was going to do, but I wanted proof of ownership.
[2001] WASCA 35
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PROSECUTOR: Did he respond to that?---Yes. He told me that tomorrow he would take me to Bunbury, because he knows where the bloke lives, 'And we'll go see him.' This was at 3 o'clock in the afternoon. I was on my way to work. When I come - - I told my wife that the motor bike was to stay where it was. When I come home from work the motor bike was gone. And then - - and I said to Luke, 'Where's the bike?' He said, 'Wayde's got it'."
The cross-examination of Lalor was extremely short. I set it out below in its entirety:
"MR MARTELLA: I just want to put one question to you. I put it to you that it's not correct that Wayne told you that Luke had got it from one of his mates at work?---No. I didn't say that. What I said is, one of his mates at work was the go-between from - - it was supposed to have come from Bunbury, and this Ian was the go-between who brought the bike to Bunbury.
If I may just have one moment. I apologise for this.
HIS WORSHIP: Certainly.
MR MARTELLA: I just want to refer you to the final time you spoke to Wayne Betts. I put it to you that he didn't tell you that he would take you to Bunbury where Luke got the bike from?--- Well, I'll put it back to you, and that's exactly what he said to me.
So you're saying no to my proposition?---What I - - that's exactly what he told me. He told me that, 'Tomorrow I'll pick you up and we'll go to Bunbury, because I know where this bloke lives, and we'll sort it out.'
Luke had told you that he had purchased the bike, hadn't he?---
In the beginning.
Yeah?---He told me he'd swapped his bike plus $300.
No further questions, your Worship."
| 19 | The prosecution then called Senior Constable Hardcastle, whose only evidence was that he had interviewed the appellant and taken a written statement from him, but the appellant had declined to participate in a |
[2001] WASCA 35
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video record of interview. The statement was tendered but no further
reference was made to it and it was not included in the appeal book.
Defence counsel then sought to have Lalor recalled for further cross-examination and leave was granted for that purpose. He denied the motor bike had been at his premises for several weeks, saying it was there for only five or six days at the most; perhaps only four days. He did not telephone the appellant about it but went down and spoke to him personally. He denied that his concern was the motor cycle had been purchased at too cheap a price and testified that what he said when told how much Shelley had paid for it, was that "this is not a $500 bike". He said he had believed there was something suspicious about it because the bike was obviously much more expensive than $500. It was put to him that he asked the appellant: "Is it stolen?" and he agreed that he had asked that. It was put to him that the appellant then said: "I don't think so" but Lalor testified: "He said 'no'" and he reiterated that the appellant told him where the bike had come from. He said the appellant told him he had not seen the bike but knew the person that Shelley got it from. He reiterated that the appellant told him he knew Shelley was going to buy the bike but he had not seen it. He was then asked that when he said Shelley had got it too cheap, whether the appellant had said he did not know anything more about it than that, to which Lalor testified that:
"No. What he said to me, he stood there and he tried to talk the bike down; so, 'It doesn't go. There's no ignition in it. It's probably a dud.' And he said to me then he knows the bloke and 'he's a dickhead, so he probably couldn't get it going so he just wanted to get rid of it."
And again, in conclusion, Lalor said:
"Well his original statement he made to me when I first confronted him, he didn't know anything about it, but as we - - when we went up there and had a look at the bike, he all of a sudden knew who the bloke was, he knew what Luke had paid for it, so he did know about it."
The appellant in his evidence said that he had been operating the Eureka Bakery at Harvey for approximately 2-1/2 years by July 1999. He recalled a discussion between himself and Shelley regarding a motor cycle. Shelley told him he had bought a motor cycle but it was not running and he needed a hand to collect it. The appellant testified that he agreed to assist in that way if they finished work early enough. He said
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that they in fact did finish early and Shelley asked if they could go and collect the bike that day and so he did so. When they finished work, he drove Shelley out to Cookernup following Shelley's directions. He used the bakery van which has "Eureka Bakery" written on the sides. The appellant did not know the name of the street and had not been there before. Sometime between 3 or 4 am they stopped outside the house and Shelley told him to turn the lights off because he did not want to wake the people inside the house. The appellant said he just stopped and Shelley went and collected the motor cycle, bringing it back to the van. When Shelley returned to the van the appellant jumped out, opened the back door and helped Shelley put the motor cycle inside the van. He said Shelley was telling him that the bike was not running and he wanted to fix it. He asked if he could fix it at the bakery and the appellant agreed. They returned to the bakery and once there, Shelley began to pull items off the bike. He took the headlight off and started pulling bearings off it. The appellant said he went back inside to have a shower. He denied there had been any conversation about taking things off the bike or that he went to the Harvey weir to hide them. He thought the bike was at the bakery for maybe two weeks, but definitely not a month. It was stored in the old pan body of his truck. That was Shelley's idea and had nothing to do with the appellant.
The appellant said that sometime later he asked Shelley when he was going to remove the bike from the bakery, at which time Shelley said something about not having paid it off and that he had to sort it out with his father. The appellant said he told Shelley to told him to sort it out and so later Shelley took the bike home a few days later, maybe a week.
The appellant said sometime after that Shelley's stepfather began asking him about the motor cycle. The appellant thought it was initially on the telephone. The discussion was about the motor cycle being cheap and Lalor's concern about that. He said Lalor told him that it seemed cheap and he was suspicious and that he said Shelley had told him that he had bought it off a friend of a person by the name of Ian, to which, according to the appellant, he said:
"Well if Ian's got anything to do with it you know it should be
alright."He said Lalor put it to him that the bike might have been stolen, to which again, according to the appellant, he replied that he did not think so.
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The appellant testified that there were a couple of other occasions when Lalor spoke to him about it, but he was not taking that much interest because Lalor was obviously getting mixed stories from Shelley and the appellant did not want to get involved.
He said he did not take that much notice of the motor bike being there until his wife found it down the side of the bakery, as a result of which he told Shelley to come and see him. The appellant's evidence was that Shelley told him it was still there because his father was not happy with it and had told him to get rid of it, to which the appellant then said that it had nothing to do with him. He did not want it there; it was Shelley's bike. After that the bike was removed - he understood it to have been removed by the other apprentice's brother.
| 28 | The appellant said he had heard nothing more about it until maybe six or nine months later, just after Shelley walked out of the bakery and there were allegations about the appellant's handling of the apprenticeship. |
In cross-examination the appellant denied saying to Lalor that he had never seen the bike.
He did concede that at some stage he had seen the bike at Shelley's place. He said:
"… I think there's a bit of confusion there, but somewhere along the line I've seen the motor bike at his place because he told me that the ignition barrel was all ripped out of it. I found that a bit surprising. I thought 'I didn't actually see that when I dropped the motor bike off'. The discussions were really all over the place because I more or less just shut my mind out to it because there was a lot of stories floating around from Luke and I didn't know what he had told his parents and what he hadn't told his parents, so rather than get involved and get into a shooting match or whatever, I just sort of steered clear of it and went for the 'I know nothing" approach and Luke - - when it all came out I said, 'Luke, you know, you sort it out with your parents. You sort out what the situation is'."
He denied talking down the value of the bike and he reiterated that Shelley had told him he had bought it off a guy called Dave who was a pastry cook who later bought the bakery and that he was a friend of Ian's and he added:
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"At the time I thought to myself, 'Well, hang on a second, Luke's got the motor bike from out at Cookernup. He said he bought it from out there'. So I've just - - steered clear of that direction."
When asked why he suggested that he could take Lalor to Bunbury and introduce him to the previous owner the appellant denied having said that at all.
In his reasons for decision the learned Magistrate correctly turned his mind to the onus and burden of proof and having canvassed the evidence generally, turned in particular to the testimony of Lalor. As to that he said:
"The evidence, however, of Mr Lalor is, of course, of vital import. When one necessarily realises and appreciates here that the case largely is one of credibility; that is, given the divergence of account has the prosecution to the requisite standard upon the evidence established each and every element, and as was quite properly pointed out by Mr Martella, if there be any doubt, howsoever small that doubt, then of course the defendant is entitled to the benefit of it, and accordingly could expect an acquittal. The evidence of Lalor is of vital importance, and never more so given that Mr Betts indicated on the evidence of Mr Lalor that he had never seen this particular motorcycle. There was much toing and froing otherwise, and certainly in the initial stages, as would be consistent with, on the evidence of Mr Lalor, the suggestion of Mr Betts that he had never seen the motorcycle and knew nothing of the arrangements for it. If that be true, then necessarily that's a clear falsity and an inaccuracy, and is not consistent with either his evidence - that is, Mr Betts' evidence - or in fact the evidence of Mr Shelley.
It's furthermore, as the contact continued as between Mr Betts and Mr Lalor, that he made further indications as to matters which are inconsistent with those immediate suggestions that he'd never seen the motorcycle and knew nothing of it, for self-evidently he represented subsequently to Mr Lalor that he knew of the person who had initially had possession or ownership of the motor cycle and in fact, on the evidence of Mr Lalor, proposed that he take Mr Lalor to Bunbury to this particular person to sort it out. That is certainly inconsistent not
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only with his own evidence, the evidence of Shelley, but also inconsistent as between the dealings of Mr Betts and the evidence as they unfolded with Mr Lalor.
What is in essence said in that regard by Mr Betts is that at no stage did he leave the impression with Mr Lalor of that type at all. In fact, the inference is that Mr Lalor has either misunderstood, misrepresented the discussions or, alternatively, has a poor appreciation of the truth of relating those discussions accurately. Of course, that is his identical complaint as to the evidence of Shelley, but to which he would add that in all the circumstances Shelley is otherwise a reprehensible young man and prone to dishonesty and fraud; a person who is not to be believed.
With the greatest of respect to Mr Betts, the acknowledgments of inappropriate behaviour of Shelley are clear, and to which there is a frank and forthright acknowledgment as to the falsity. It's otherwise the case as regards the evidence of Shelley that whilst he was substantially cross-examined as to his veracity, he was consistent in his account. He was clear in his recollections as to what transpired, and at the end of the day he was unmoved as to what was then said and suggested by him as to the complicity of Betts and his taking of the motor cycle from the property of O'Neil. In fact, at the end of the day his account at every point had that fundamental ring of truth as to its (sic) recollections - - as to recounting it, and that's a stark contrast to the wavering accounts offered by Mr Lalor that in my respectful view caused the events here to come undone. It was he who was questioning the acquisition of this motorcycle with necessarily his observed view of the value of the motorcycle and that which was suggested as what it cost his son. He challenged both obviously his son and self-evidently on his own account, Mr Betts and his complicity.
I accept without reservation the evidence of Mr Lalor, which of itself is self-evidently sufficient to implicate Mr Betts in the unlawful conduct in the taking of this motorcycle, and to corroborate substantially the veracity of Mr Shelley. In the circumstances and with the benefit of forming a view as to the veracity of the respective individuals, I prefer the evidence of Shelley and Lalor and reject Betts' evidence entirely."
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The appellant's first ground of appeal assumes that because the learned Magistrate made no express reference to the requirement of a corroboration warning in respect of the evidence of the accomplice Shelley, he therefore did not have regard to such a warning.
It is well accepted that a judicial officer has a duty to deliver reasons to expose his or her process of reasoning sufficiently to enable a litigant to determine whether or not there is any ground of appeal and for an Appeal Court to adequately adjudicate any appeal if instituted: Pettitt v Dunkley [1971] 1 NSWLR 376, 382-390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256-9, 268-274, 277-8; Lloyd v Faraone [1989] WAR 154, 162-4; Stojkovski v Fitzgerald [1989] WAR 328, 334, 335, 340; Garrett v Nicholson (1999) 21 WAR 226 per Pidgeon J at 236-238 and Owen J at 248-9; Nevermann (1989) 43 A Crim R 347.
In Carlson v King (1947) 64 WN (NSW) 65 at 66 Jordan CJ said:
"It has long been established that it is the duty of a court of first instance from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision."
In Pettitt v Dunkley (supra) at 387-388 Moffitt P (with whom Manning JA agreed) said:
"… there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reasons why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial of first instance does not exhaust the rights which parties may have. Just as an expressed statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordan CJ quoted recognize that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the
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rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have."
The lack of availability of reasons even because of malfunction of court transcription equipment has been held to deprive a litigant of an opportunity he or she may have had on appeal: Brown v The Queen, unreported; FCt SCt of WA; Library No 6028; 3 October 1985.
In Lam v Beesley (1992) 7 WAR 88, Owen J said (at 93) that the question of depriving a litigant of the opportunity he may have had on appeal extends beyond a complete absence of reasons and includes a situation where there is uncertainty as to the reasons upon which the finding is based. But the realities of pressure of work, particularly in Courts of Petty Sessions must be acknowledged. So too, less detail is to be expected where reasons are delivered extempore: Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995.
In Fleming v The Queen (1998) 197 CLR 250, the High Court had to consider the obligation on a trial Judge sitting without a jury, to give reasons for a verdict. The accused had been indicted on three charges of aggravated indecent assault upon a 15 year old girl and one charge of sexual intercourse with that girl as a person under his authority. The case against the accused depended upon the evidence of the complainant. Had the trial been before a jury, the trial Judge would have been required to direct the jury that the evidence of the complainant had to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty returned, in accordance with Longman v The Queen (1989) 168 CLR 79 at 107. The only reference in his Honour's reasons for decision to this was a statement that:
"The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt I must acquit the accused." (At 264)
In a joint judgment, their Honours held that statement not to in any way satisfy the relevant requirement (ibid 265) and that although consciousness of the importance of such a warning would no doubt be of second nature to many Judges, the animating principle behind the requirements of the relevant New South Wales legislation was that criminal justice not only be done but also be seen to be done. For that reason the judgment must show expressly or by necessary implication that
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the warning was taken into account. It would be no answer that the trial Judge is an experienced Judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account.
It must immediately be noted however, that Fleming turned entirely on the provisions of Part 9 of the Criminal Procedure Act 1986 (NSW) which authorised trial by Judge alone in criminal proceedings, and in particular on s 33 which provided that:
"(1) The judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a judge in any such case must include the principles of law applied by the judge and that the findings of fact on which the judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the judge is to take the warning into account in dealing with the matter."
In this appeal there is no statutory prescription as there was in Pettitt v Dunkley and Fleming, but the principle that justice must be seen to be done is of great antiquity for which no further authority need be cited and its application by the High Court in this context is, I think, generally indicative.
The proper approach here then, is to consider what application these authorities have to the ex tempore reasons of a court of summary jurisdiction with respect to the obligation to give reasons and, in particular, to disclose whether or not the judicial officer has had regard to matters in respect of which a warning would otherwise be required.
A court of summary jurisdiction cannot realistically be expected to produce lengthy or detailed reasons dealing with all of the evidence, every issue and every principle of law arising in the particular case - and even less so can that be reasonably expected when judgments are given ex tempore.
| 46 | Justice in Courts of Petty Sessions may be summary and that is as it should be, but it is not peremptory; nor does the desirability of being brief and succinct relieve from the obligation of in fact addressing those issues |
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of fact and law upon which the decision turns as a proper exercise of
judicial adjudication and being seen to do so.
On the other hand, as the High Court said in Fleming, there may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the Judge has had regard to it. In my view, absent the requirements of such a statutory regime, and having regard to the much less stringent requirements generally dictating the essential content of reasons by a court of summary jurisdiction as derived from the authorities, an appeal court would be more readily satisfied that a Magistrate had regard to a warning to which it was necessary to have had regard in the particular case, even though there was no express reference made to it in the Magistrate's reasons.
Obviously the ideal would be for at least some express reference to be made both to the warning and to how it has been applied, and that should be something more than a mere recording of it without more (which would amount to "an empty incantation": see Fleming (supra) at [33]).
It is necessary to mention s 50 of the Evidence Act 1906 (WA).
Section 50 provides that:
"(1) In this section a corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a)
the Judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)
the Judge shall not give a corroboration warning to the jury unless the Judge is satisfied that such a warning is justified in the circumstances."
| 51 | Section 50 does not preclude a warning being given in a specific case if the circumstances give rise to a need for it (Boyle v The Queen, unreported; CCA SCt of WA; Library No 980125; 24 March 1998) and |
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indeed there is a requirement at common law to give such a warning in such circumstances (Longman v The Queen (supra); Butun v The Queen, unreported; CCA SCt of WA; Library No 8717; 15 February 1991; Cook v The Queen (2000) 110 A Crim R 117 and Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960437; 7 June 1996.
Although the term "Judge" in s 50 of the Evidence Act includes a Magistrate (s 3), s 50(2) expressly refers to the trial of a person on indictment for an offence. Accordingly, I accept the appellant's submission that in its terms s 50 applies only to trials on indictment in a superior court and so because that evinces the necessary contrary intention for the purposes of s 4 of the Evidence Act, not to trials on complaint before a Court of Petty Sessions.
That does, I think, produce the anomalous result that whereas at common law as a matter of practice, amounting almost to a rule of law (per Burt J in Khan v The Queen [1971] WAR 44 at 53) a corroboration warning is still required in respect of the evidence of an accomplice, on trials of far more serious offences on indictment (by virtue of s 50 of the Evidence Act) no such warning may be given unless the trial Judge is satisfied that such warning is justified in the circumstances. Indeed, it goes further because the warning abolished by s 50 was a warning that it was dangerous to convict on the uncorroborated evidence of a witness, because he or she was in a category of witnesses whose evidence could be regarded as unreliable. The warning which may be given under s 50(2)(b) is not that the witness is in a class of witnesses whose evidence may be unreliable, but rather one which is directed to the circumstances of the individual case and the witness which may give rise to a need for particular caution in accepting the evidence of that witness. On this analysis it would seem it is the "class" warning that has been left to operate in Courts of Petty Sessions in accordance with the common law. That indeed is the submission advanced by Mr Mazza on behalf of the appellant, namely that the learned Magistrate was obliged to give himself a warning to the effect that:
(a)
it is dangerous to convict upon the uncorroborated testimony of an accomplice; but
(b)
having taken the warning into account, he may nonetheless convict on the uncorroborated evidence of the accomplice if satisfied it was true.
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Be that as it may, it is Mr Mazza's further submission that even were the situation in Courts of Petty Sessions now to be the same as that prescribed in respect of trials on indictment by s 50 of the Evidence Act, this was a case in which the circumstances called for a warning directed to Shelley's evidence as an accomplice in any event.
The first question here therefore is whether the Magistrate was obliged to warn himself that it was dangerous to convict on Shelley's uncorroborated evidence because he was an accomplice. For the reasons set out above, I conclude he was.
The next question is whether an examination of his Worship's reasons disclose that he did so.
His Worship referred to the appellant and Shelley as "the two principal participants" and observed that the inconsistencies and divergence between their evidence were such that only one of their accounts could possibly be true (AB 88). He then recounted Shelley's testimony and followed that by recounting the quite different version given by the appellant. He referred to the fact that the appellant's position was that he was simply the innocent victim of a story perpetrated by Shelley, whose own dishonesty was confirmed by false statements he made to his own father and to the roadhouse proprietor (AB 89-90). His Worship then turned to the evidence of Lalor when he described as of "vital import" (AB 90) recognising that the case largely was one of credibility. As I read those remarks, his Worship was there referring to the credibility of Shelley and the appellant. Having canvassed various conflicts between the evidence of Lalor and the appellant (to which I return below) the learned Magistrate observed that the appellant contended that Lalor had either misunderstood or misrepresented his discussions with the appellant, or had "a poor appreciation of the truth" which his Worship said was the same complaint the appellant made about Shelley, although in relation to him the appellant was also putting that Shelley was:
"… otherwise a reprehensible young man prone to dishonesty
and fraud; a person who was not to be believed."The learned Magistrate then proceeded to comment upon his assessment of Shelley's evidence which included the impression that Shelley was consistent in his account despite substantial cross-examination. He was clear in his recollection and was ultimately unmoved from his description of the appellant's complicity. His Worship
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described Shelley's testimony as demonstrating "the fundamental ring of truth" in stark contrast to "the wavering accounts" offered by the appellant (AB 91).
It was at that point that his Worship turned to the evidence of Lalor which he accepted "without reservation" and which he described as:
"[O]f itself … self-evidently sufficient to implicate Mr Betts in the unlawful conduct in the taking of this motor cycle and to corroborate substantially the veracity of Mr Shelley …." (AB 91) (Emphasis added)
Having formed a view as to the veracity of the witnesses, his Worship preferred that of Shelley and Lalor and rejected that of the appellant entirely.
Nowhere in his reasons did his Worship expressly refer to Shelley as an accomplice, nor specifically remind himself that because of that fact, it would be dangerous to convict the appellant on Shelley's testimony unless it was corroborated.
I further accept Mr Mazza's submission that even on a liberal reading of his Worship's reasons, no appreciation of that danger and its concomitant requirement for corroboration is to be discerned. Nor is there any indication of an appreciation by his Worship that Shelley was an accomplice and there was a need to scrutinise his evidence very carefully on that account specifically, and being mindful of such considerations as a possible desire by Shelley to minimise his own role by incriminating the appellant.
I appreciate the learned Magistrate used the word "corroboration" when referring to Shelley's testimony, but in context it plainly does not indicate an appreciation of the requirement for corroboration of the evidence of an accomplice. I think it clear his Worship was simply using the term as meaning Lalor's evidence supported Shelley's credibility.
That brings me to the question of what consequence flows from that failure on the part of the Magistrate.
In Khan v The Queen (supra) at 53, Burt J (as he then was) stated the relevant proposition as being:
"If the warning is not given the conviction should be quashed unless there exists corroboration of such a convincing, cogent
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and irresistible character that a reasonable jury if they had received the proper warning must have come to the same conclusion. It is only in such a case that the Court of Appeal will be able to hold there has not been a substantial miscarriage of justice within the meaning of the proviso…."
When looking for corroboration in this sense, one is looking for:
"… some additional evidence rendering it probable that the story of the accomplice is true and it is reasonably safe to act upon it … [It] must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.": R v Baskerville [1916] 2 KB 658 at 665.
Mr Mazza cites Ridley v Whipp (1916) 22 CLR 381 for the proposition that the corroboration must support the prosecution's story both as regards the alleged crime and the alleged criminal; it must go both to the crime and the person who was said to have committed it. The proposition has often been stated that way in the past, but so expressed it has the potential to be misleading.
Ridley v Whipp was a paternity case brought under s 4 of the Infant Protection Act 1904 (NSW), the terms of which required the applicant to produce evidence on oath:
"In corroboration in some material particular of the allegation as
to the paternity of the infant."Apart from that of the complainant (which of course was the evidence which had to be corroborated), the only evidence led was of a deponent who stated that on a particular occasion he had left the complainant and respondent alone at night in a room in which the furniture included a couch. In holding that not to be sufficient corroboration, the High Court pointed out it was only evidence of opportunity, not more. At 390, Barton J quoted the well-known passage of Lord Reading CJ from R v Baskerville (supra) in terms similar to that which I have quoted above.
| 70 | That the requirement of corroboration go to both of those aspects is not necessarily applicable in every case, but depends on the circumstances |
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of the case is clear enough from Ridley v Whipp itself. Immediately following his quotation from Lord Reading, Barton J, in applying that test to the case before him, concluded:
"… it being plain that the woman is with child, the corroboration must tend to show that the defendant is the person responsible. That has not been shown in the present case."
In the instant case there was clear evidence that the motor cycle had been stolen, and indeed that was not in dispute. The respect of Shelley's evidence for which corroboration was required therefore, was his claim of the appellant's role in the commission of that offence, the appellant conceding that at trial he had helped Shelley collect and store the motor cycle, but denying any complicity in the commission of the offence.
Was there in the evidence then, evidence independent of Shelley which confirmed in some material particular that the appellant was complicit in the offence?
That brings me to the second ground of appeal against conviction, namely that the learned Magistrate erred in law by wrongly treating false statements made by the appellant to Lalor as corroboration of Shelley's evidence.
As developed in argument, the appellant's contention was that the learned Magistrate failed to approach the question of lies in accordance with the law as established in Edwards v The Queen (1993) 178 CLR 193 and that in any event the lies relied on did not meet the criteria which would enable them to be relied on as implicit admissions of guilt and hence corroboration.
As a matter of law, lies by an accused may be capable of constituting corroboration of the evidence of an accomplice: R v Lucas [1981] 1 QB 720. In that case Lord Lane CJ held that before false out of court statements can amount to corroboration, they must satisfy four tests (ibid at 724):
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behaviour from their
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family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
His Lordship went on then to hold that lies told in court meeting those same tests could likewise be used as corroboration.
Those tests were adopted by the High Court in Edwards (supra). In the joint judgment of the majority (Deane, Dawson and Gaudron JJ) their Honours said (at 208):
"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie." (Footnotes omitted)
And at 209:
"But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'." (Footnotes omitted)
And again at 210-211:
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"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms." (Footnotes omitted)
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Of course that last situation is not the position here. This is not a case in which identification of the appellant's lies id dependent upon acceptance of the accomplice's evidence, nor in which the appellant can be said to have corroborated an accomplice merely by giving evidence which is not accepted and must therefore be regarded as false (see Tumahole Bereng v The Queen [1949] App Cas 253 per Lord Dermott at 270). Nor is it a case in which proof of the acts about which the appellant lied depends on the acceptance of the prosecution witness who alleges he did do them as in R v Lucas itself and Zheng v The Queen (1995) 83 A Crim R 572 per Hunt CJ at CL at 576-8. The telling of the lies were here proved by Lalor, that is by evidence independent of the witness who it was submitted required corroboration. That they were lies was proved by what the appellant admitted on oath as to his role in collecting the motor cycle with Shelley and taking it back to the bakery.
It has been said that use of lies as corroboration is unusual, as Hunt CJ at CL said in R v Small (1994) 33 NSWLR 575 at 597 and is fraught with the risk of miscarriage for they inevitably provide potent (and potentially prejudicial) support for the prosecution case.
The particular lies relied upon by his Worship as corroboration of Shelley's testimony were statements to Lalor that:
• he had never seen the motor cycle before; • he knew nothing of the arrangements for it; • later, that he knew the person who had owned it and that he could take Lalor to Bunbury to see this person and sort it out.
There are then the further denials in court when he testified that he did not say those things to Lalor at all.
In his oral submissions, Mr Mazza put to me that the appellant himself gave explanations for his out of court lies to Lalor, in substance that he did not really know what Shelley had told his parents, that he did not want to get involved, and so he just adopted an "I know nothing" approach (see eg AB 80-81).
| 84 | Notwithstanding that his Worship did not expressly advert to Edwards nor to the relevant tests to be applied when considering lies may |
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be used as corroboration, it is in my view abundantly clear that his Worship was satisfied that the lies which he identified were deliberate, did relate to a material issue, were told by the appellant in circumstances in which the explanation for them was that he knew the truth would implicate him in the offence and were clearly shown to have been untrue in fact by the appellant's own testimony and/or by Lalor's evidence.
It follows that although ground one has been made out there has been no substantial miscarriage of justice. Ground two is not made out. That being so the appeal against conviction must be dismissed.
I turn now to the appeal against sentence.
The appellant's submissions really came down to two propositions: the first was a realistic acceptance that the Magistrate in fact did have regard to mitigating factors but that in fixing upon a term of imprisonment, his Worship disproportionately overweighted the aggravating features of the case; and secondly, that there was a specific error in concluding that given the reformative considerations applicable with respect to suspended sentences, this was not a case in which that option was open.
Given the Magistrate's findings of fact, and in particular that the offence was gratuitously instigated by the appellant; that he planned and guided the commission of it and involved a juvenile who was under his authority and supervision at the time; that the offence was not committed in a moment of weakness but persisted over a significant period of time both in planning and attempting to conceal it; that the appellant had demonstrated no remorse and there was no mitigation available by reason of the plea of guilty, and there was a need to protect the community both from the appellant and others who might be minded under cover of darkness to go on to property for the purpose of stealing motor vehicles and motor cycles in particular, it seems to me it cannot reasonably be suggested that his Worship erred in according general deterrence priority in sentencing. His Worship expressly had regard to the relevant mitigating factors including the appellant's antecedents, his employment and family situation, the lack of any personal benefit accruing to him and his previous unblemished character. Again, in the circumstances he was entitled, I think, to take the view that the offence was a particularly serious one and that no disposition other than imprisonment was appropriate. It cannot be said that it was not open to his Worship to come to that conclusion.
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However, in light of the High Court decision in Dinsdale v The Queen (2000) 74 ALJR 1538, I think his Worship's sentencing discretion did miscarry in relation to the question of suspended sentence.
The learned Magistrate's comments about that were (AB 95):
"… in the face of your lack of contrition the availability of suspension of any period of imprisonment, in my respectful view, given its reformative considerations, is not now available (sic) and a suspension of the prison sentence is not appropriate."
The decision in Dinsdale was handed down on 12 October 2000, just four days before the hearing before the Magistrate. Until Dinsdale, authority in this State had determined that rehabilitation or reformation was the primary purpose of a suspended sentence and consequently that such an option would ordinarily be available only where there was shown to be some basis for an expectation that suspending a sentence of imprisonment would have that result. Gleeson CJ and Hayne J said (ibid
1542) : "The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation. These will often be significant, but there may be other relevant matters…."
On the same point Gaudron and Gummow JJ said (at 1543):
"We also agree with Kirby J that the power to suspend given by s 76(1) of the Sentencing Act which is limited by the criteria specified in s 76(2), (3) is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation of the particular offender."
For his part Kirby J dealt with this particular question as follows
[84-87]:
"[84] In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could be done so.
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This consideration is particularly relevant to the Western Australian legislation, which amount to a recent endeavour to collect all the main principles of sentencing in a statute of general application.
[85] Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
[86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion' which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
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[87] The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing option that permits, in a particular case, the exploration of alternatives to immediate custodial punishment." (Footnotes omitted)
In light of this, it is clear that his Worship erred in regarding rehabilitation of the appellant as the determining factor in his consideration of the availability of a suspended sentence and therefore the sentence imposed must be quashed and it falls to me to re-sentence the appellant.
For the reasons I have indicated above, I think a term of 12 months imprisonment is the only appropriate reflection of the seriousness of the circumstance of this offence having regard also to the antecedents and personal circumstances of the appellant. However, considering all of those factors again on the question whether or not that sentence of imprisonment must be immediate or whether it could appropriately be suspended, and in particular are that the appellant is a first offender with a previously completely unblemished record, that he is employed and supporting a wife and two young children and being mindful that immediate imprisonment is a sentence of last resort, I do not think it can be properly said that a suspended sentence would be inappropriate to the circumstances of this case and I will accordingly make that order.
The appeal against conviction will be dismissed; the appeal against sentence will be allowed, the sentence of 12 months immediate imprisonment will be quashed; there will be substituted for that a sentence of 12 months imprisonment but I order that sentence be suspended for 2 years.
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