Boult v WILLIAMS

[2019] WASC 98

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BOULT -v- WILLIAMS [2019] WASC 98

CORAM:   ACTING JUSTICE STRK

HEARD:   5 MARCH 2019

DELIVERED          :   5 MARCH 2019

PUBLISHED           :   26 MARCH 2019

FILE NO/S:   SJA 1132 of 2018

BETWEEN:   CALLUM JOSEPH BOULT

Appellant

AND

GARY WILLIAMS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE G A BENN

File Number            :   GN 3805 of 2018

Catchwords:

Criminal law - Appeal against sentence - Appeal by offender - Offence committed by a police officer while on duty - Whether the learned magistrate erred by concluding that a term of imprisonment, suspended, was the only appropriate disposition - Application for spent conviction

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 2005 (WA)

Result:

Appeal allowed
Spent conviction granted

Category:    B

Representation:

Counsel:

Appellant	:	L B Black
Respondent	:	J F W Cardell-Oliver

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	State Solicitor's Office

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

Burkhart v Bradley [2013] NTCA 5; (2013) NTLR 79

Drage v Pitts [2007] WASC 203

Evans v Richards [2015] WASC 53

Greenfield v The State of Western Australia [2019] WASCA 29

Johnson v Ayling [2013] WASC 312

M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511

Nguyen v Comptroller-General of Customs [2018] WASCA 170

R v Hirst [2013] SASCFC 54; (2013) 116 SASR 300

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Strahan v Brennan [2014] WASC 190

Waters v Page [2011] WASC 31

Whitelaw v O'Sullivan [2010] QCA 366

ACTING JUSTICE STRK:

(These reasons were delivered extemporaneously at the conclusion of the hearing.  They have been edited from the transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)

Introduction

1. This is an appeal against sentence.  The appellant pleaded guilty to a charge of common assault contrary to Criminal Code (WA) s 313(1)(b). The facts of the offending are not contentious and are conveniently summarised in the respondent's submissions filed on 12 February 2019.

2. The appellant is a police officer.  On 26 July 2018, the appellant was assisting with the search for, and apprehension of, a number of escapees from Greenough Regional Prison.

3. At approximately 8.30 am, Bradley Mark Silvester, one of the escapees, was found hiding in bushes and was arrested and handcuffed by officers other than the appellant.  While Mr Silvester was being escorted away with the appellant walking in front of him, the appellant turned and punched him in the forehead, unprovoked, causing slight redness and swelling.  Mr Silvester did not require medical treatment.  There is drone footage of the incident.[1] 

   [1] Respondent's submissions filed 12 February 2019 pars 3 ‑ 4; ts 3 (18 October 2018).

4. As a result of the incident the appellant was charged with common assault.  The appellant pleaded guilty at the first mention on 18 October 2018 and was sentenced to 7 months' imprisonment, suspended for 18 months.  The learned magistrate declined to make a spent conviction order.

5. The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction.[2]  The appellant now appeals against sentence. 

   [2] Criminal Appeals Act s 7(1).

6. The appeal was commenced on 13 November 2018, and accordingly the appellant does not require an extension of time to appeal.[3]

   [3] Criminal Appeals Act s 10(3) and s 10(4).

7. There are three grounds of appeal.  First, that the learned magistrate erred by concluding that a term of imprisonment, suspended, was the only appropriate disposition in this case.

8. Secondly, that the learned magistrate imposed a sentence that was manifestly excessive in all the circumstances of the case.  I accept that ground 2, as an alternative to ground 1, effectively asserts that if a term of imprisonment was appropriate, then a term of 7 months imprisonment, suspended for 18 months, was of an excessive duration.[4]

   [4] Appeal notice filed 13 November 2018, Grounds of Appeal Particulars 2.1 and 2.2; respondent's submissions filed 12 February 2019 par 25.

9. Thirdly, that the learned magistrate erred in law by not allowing the application for a spent conviction.

Leave to appeal

1. This is an appeal under the Criminal Appeals Act pt 2, and the appellant requires leave to appeal on each ground.[5]  The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[6]  That means that the ground must have a rational and logical prospect of succeeding, so that, in effect, it has a real prospect of success.[7]  If leave to appeal is refused for all grounds, the appeal is taken to be dismissed.[8]

   [5] Criminal Appeals Act s 9(1).

   [6] Criminal Appeals Act s 9(2).

   [7] Samuels v The State of Western Australia[2005] WASCA 193; (2005) 30 WAR 473 [56].

   [8] Criminal Appeals Act s 9(3).

2. It is appropriate that the application for leave to appeal be heard together with the appeal, in accordance with the orders made on 18 December 2018.

Ground 1

1. The appellant contends that the learned magistrate erred by concluding that a term of imprisonment, suspended, was the only appropriate disposition in this case.  The appellant particularised ground 1 as follows: [9]

   (1)The sentence was outside the appropriate range for an offence of this type, having regard to the penalty available and all of the circumstances of the case.

   (2)The appellant struck the victim once leaving no injury. 

   (3)Insufficient weight was given to the fact that the appellant was otherwise of impeccable character and had no prior criminal record. 

   (4)Undue weight was given to the principle of general deterrence and the position of the appellant as a police officer.  

   (5)Insufficient regard was given to the appellant's plea of guilty and genuine expression of remorse. 

   (6)There were, in fact, other appropriate sentences available including the imposition of a fine and the prosecution accepted this.

   [9] Appeal notice filed 13 November 2018.

2. The respondent concedes ground 1 of the appeal,[10] and for the following reasons I find that the concession is properly made.

   [10] Respondent's submissions filed 12 February 2019 par 8.

3. The legal principles governing an appeal contending that error should be inferred, on the basis that a sentence is manifestly excessive, are well settled.[11]  In summary, the question is whether the sentence imposed was reasonably open to the magistrate, not merely whether the appellate court would have exercised the sentencing discretion differently.  In answering that question, the appellate court should have regard to the following:  the maximum sentence prescribed by law for the crime; the range of sentences customarily imposed for the offence; the seriousness of the offence on the scale of offences of that type; and the offender's personal circumstances.

The maximum penalty

[11] Respondent's submissions filed 12 February 2019 par 9 citing Nguyen v Comptroller-General of Customs [2018] WASCA 170 [30]. See also Greenfield v The State of Western Australia [2019] WASCA 29 [23].

1. The maximum penalty for common assault is 18 months' imprisonment and a fine of $18,000.[12] 

   [12] Criminal Code s 313(1)(b).

2. The sentence that was imposed by the learned magistrate was well below the maximum. 

The range of sentences customarily imposed for the offence

1. Turning to the range of sentences customarily imposed for the offence, I have had regard to the decisions of McKechnie J in Evans v Richards,[13] and Martin CJ in Strahan v Brennan.[14]

   [13] Evans v Richards [2015] WASC 53.

   [14] Strahan v Brennan [2014] WASC 190.

2. In Evans, the appellant was a serving police officer, who unlawfully assaulted a mouthy adult who had been detained after walking away from police.  The appellant pleaded guilty and sought a spent conviction order, was fined $7,000 by the magistrate, and the making of a spent conviction order was refused.  The appellant appealed sentence.

3. In Evans, McKechnie J reviewed the circumstances and sentences of a number of earlier decisions.[15]  In all of the decisions referred to by his Honour, the penalty that was imposed was a fine.  In Evans, McKechnie J set aside the fine of $7,000 and in lieu, imposed a fine of $1,000, but found that it was open to the magistrate to decline to make a spent conviction order.

   [15] Evans v Richards [2015] WASC 53 [18]-[31]; referring to Whitelaw v O'Sullivan [2010] QCA 366 (McMurdo P, Holmes JA, Applegarth J); Burkhart v Bradley [2013] NTCA 5; (2013) NTLR 79 (Riley CJ); Johnson v Ayling [2013] WASC 312 (Simmonds J) at [21], citing Drage v Pitts [2007] WASC 203; Police v Wilson, Midland Magistrates Court, 23 November 2010; and Waters v Page [2011] WASC 31; R v Hirst [2013] SASCFC 54 (Anderson J, Peek and Stanley J); (2013) 116 SASR 300 (Anderson J, Peek & Stanley J); Rowe v Arndt (Unreported) discussed at [28]; R v Brett Butler (Unreported), discussed at [29]; Strahan; and M v O'Neill[2013] WASC 187 (McKechnie J); (2013) 230 A Crim R 511.

4. In Strahan, the two police officer offenders were sentenced to 8 months' imprisonment, suspended for six months on each of the three counts of assault, to be served concurrently, and they were also fined. 

5. It is apparent from a review of these decisions, and the earlier decisions referred to in Evans, that:  there is no tariff for common assault generally;[16] and the sample of sentences imposed for assaults by police officers is too small to give an indicative range.[17]  Strahan is the sole example of a sentence more serious than a fine being imposed for common assault by a police officer in the course of their duties.[18]

The seriousness of the offence

[16] Respondent's submissions filed 12 February 2019 par 15(a) citing Evans [15]; Strahan [103].

[17] Respondent's submissions filed 12 February 2019 par 15(b) citing Evans [32]; Strahan [103].

[18] Respondent's submissions filed 12 February 2019 par 17.

1. I accept the respondent's submission that it is instructive to compare the facts of the offending before me and the offending the subject of the decisions in Strahan and Evans.  I have carefully considered the decisions of Strahan, Evans, and the earlier decisions identified in Evans, which are decisions from this and other jurisdictions.[19]  I accept that the offending in this case appears to occupy a lower place on the scale of seriousness than the offending in Strahan and Evans.[20]

   [19] The cases referred to and discussed by McKechnie J in Evans [18] ‑ [31]; set out at ft 15 above.

   [20] Respondent's submissions filed 12 February 2019 pars 17 ‑ 21.

2. I accept and give particular weight to the fact that the offending in this case was impulsive, and not planned or premeditated.[21]

The offender's personal circumstances

[21] ts 11 ‑ 12 (18 October 2018); appellant's submissions filed 19 February 2019 par 17.

1. Finally, I have had regard to the personal circumstances of the appellant and those matters discussed in the accused's book of documents.[22]  My consideration of the appellant's personal circumstances did not however weigh heavily in the balance.

   [22] Appellant's submissions filed 19 February 2019 pars 28 ‑ 30; respondent's submissions filed 12 February 2019 par 22; accused's book of documents relative to sentencing filed 13 November 2018.

2. Taking all factors into account, I find that the sentence of imprisonment imposed by the learned magistrate was manifestly excessive in all of the circumstances.  There should be leave to appeal in relation to ground 1 and the appeal should succeed on that ground.

3. It is therefore unnecessary for the court to determine appeal grounds 2 and 3.  However, having determined that the appeal should be allowed, I note that the appellant presses his application for a spent conviction order and it is necessary that I consider the application afresh.[23] 

   [23] Criminal Appeals Act s 14(1)(d).

Resentencing

1. The parties agree that a fine is an appropriate sentencing disposition in this case.[24]  Having regard to all of the matters outlined thus far I find that a fine would be appropriate.  As to the amount of the fine, I have weighed the following in the balance.

   [24] Respondent's submissions filed 12 February 2019 par 29; appellant's submissions filed 19 February 2019 par 8.

2. I have considered the relevant act of the appellant.  I have had regard to the fact that it involved a short, single application of force, being a strike to the forehead.  I have had regard to the fact that the assault was not premeditated and occurred in the heat of the moment.  No weapon was involved and it was not a sustained assault.[25]

   [25] ts 5, 11, 13 (18 October 2018); appellant's submissions filed 19 February 2019 par 16; respondent's submissions filed 12 February 2019 par 3.

3. After the incident, redness and slight swelling were observed by police at the Geraldton Police Station.  No bodily harm is alleged on behalf of the respondent.[26]  On the evidence before me, no medical treatment was required.  It cannot however be said that the force was either trivial or technical.

   [26] ts 3 (18 October 2018).

4. For completeness, I note that the court was informed of certain communications that the respondent had received from solicitors acting for Mr Silvester, alleging that he had suffered serious injuries as a consequence of the assault.[27]  No medical evidence had been provided to the respondent to suggest a causal link between the assault and the symptoms complained of by Mr Silvester.  In the absence of medical evidence to suggest that Mr Silvester sustained injuries that were caused by the assault, the respondent did not seek to place any further material before the court.  The respondent provided this information to the court solely to ensure that all relevant information was before the court. In the absence of any evidence, I sentence on the basis that the relevant act of the appellant, and the injury sustained by Mr Silvester, was as summarised in [28] and [29] of these reasons.

   [27] Letter from respondent to the court dated 12 February 2019.

5. I have had regard to the letter provided by Mr Silvester, for the purpose of resentencing.[28]  I have had regard to the emotional impact of the assault on Mr Silvester. 

   [28] Letter from Mr Silvester (as redacted) dated 12 February 2019, handed up during the hearing 5 March 2019.

6. I have had regard to all of the circumstances surrounding the assault.[29] They include that prior to the assault the appellant had been informed of the riot at Greenough Regional Prison; that a number of prison officers and police had been attacked with weapons; and that a number of prisoners had escaped.[30]  The appellant was involved in a search for the escaped prisoners the day prior to the assault until about 7.00 pm.  He continued to be on call that night because of continued reports of sightings of escapees, including Mr Silvester.[31]  The appellant recommenced duty at 7.00 am the next morning.  The assault occurred at about 8.30 am after the appellant heard shouting nearby and ran to assist with the arrest of the escaped prisoner.[32]

   [29] Appellant's submissions filed 19 February 2019 par 17 ‑ 27; ts 7 ‑ 8 (5 March 2019); ts 3, 10 ‑ 12 (18 October 2018).

   [30] Appellant's submissions filed 19 February 2019 par 18; ts 10 (18 October 2018).

   [31] Appellant's submissions filed 19 February 2019 par 20, ts 10 (18 October 2018).

   [32] Appellant's submissions filed 19 February 2019 pars 17 ‑ 25.

7. I have weighed in the balance the submissions made on behalf of the appellant as to the surrounding circumstances:  the work conducted in the days prior to the assault; and the fact that the appellant was working within a volatile situation.[33]

   [33] Summarised in the appellant's submissions filed 19 February 2019 pars 18 ‑ 22; ts 3, 10 ‑ 11 (18 October 2018).

8. The respondent contends that there was no adequate explanation given as to why the appellant acted or reacted as he did.  Consequently, the respondent contends that the court cannot rule out the possibility that the appellant might reoffend in a similar way in the future.  The respondent contends that there is a need for specific deterrence.[34]

   [34] ts 11 ‑ 13 (18 October 2018); respondent's submissions filed 12 February 2019 [31].

9. The appellant made what he accepts to be an unreasonable and wrong assessment of the situation which was, in fact, under control.  I accept that the appellant acted hastily without properly assessing the situation. 

10. The appellant does not seek to justify the action, it was an irrational and an unjustifiable act, done without cause or analysis.  I accept that the appellant is sincerely regretful for what he has done.[35]

    [35] Appellant's submissions filed 19 February 2019 par 25.

11. I have weighed in the balance that the appellant pleaded guilty to the offence at the first hearing.[36] 

    [36] ts 2 (18 October 2018).

12. I accept that the appellant is of prior good character.[37] He is 28 years of age,[38] and he joined the WA Police in 2009 at the age of 18.[39]  The appellant is currently a detective first class constable.[40]  He has no relevant record and relies upon the very positive character references proffered on his behalf.  The appellant has shown an aptitude and commitment to date to public service.[41] 

    [37] ts 4 (18 October 2018 'Sentencing Remarks'); respondent's submissions filed 12 February 2019 par 39; appellant's submissions filed 19 February 2019 par 38.

    [38] 27 years of age at the time of the offence and proceedings at first instance.

    [39] ts 12 (18 October 2018).

    [40] Appellant's submissions filed 19 February 2019 par 28.

    [41] Appellant's submissions filed 19 February 2019 par 29.

13. Although the appellant is of prior good character, the dominant sentencing consideration in cases of this kind is general deterrence.[42]  While the personal circumstances of the appellant are weighed in the balance, in all of the circumstances before me, they carry less weight than the dominant sentencing consideration of general deterrence.

    [42] Strahan [104] ‑ [108].

14. I find that the victim was in a very vulnerable position.  The victim was handcuffed with his hands behind his back, restrained by two police officers, and was unable to defend himself. 

15. The appellant was in a position of power and authority.  The appellant's conduct amounted to an abuse of power against a victim in police custody.[43]  These are significant aggravating factors.

    [43] ts 2 ‑ 3 (18 October 2018 'Sentencing Remarks').

16. The circumstances of this case can be distinguished from the conduct in more serious cases such as Strahan, where the assaults were committed against a person that the appellant knew was vulnerable, and completely unable to defend themselves. 

17. I accept that in volatile circumstances, the appellant acted hastily and without properly assessing the situation.  It cannot be said that he understood and acted, despite knowing and recognising that the victim was vulnerable and unable to defend himself.

18. As observed in Strahan, it is clear that the circumstances of the offence may vary widely.  It is accepted that there is no tariff or range of sentences applicable to the offence. 

19. I have had regard to the maximum penalty and the range of sentences customarily imposed.  I accept that the offending in this case appears to occupy a lower place in the scale of seriousness and I impose a fine of $1,000.

Application for a spent conviction order

1. The appellant repeats his application for a spent conviction order, pursuant to the Sentencing Act 2005 (WA) s 39. The application is opposed by the respondent.

2. The fact that the appellant committed an assault as an on‑duty police officer is not, of itself, an absolute bar to securing a spent conviction, or determinative of the outcome of the application.[44] 

   [44] Appellant's submissions filed 19 February 2019 par 35 citing Evans [56]; Sentencing Act 1995 (WA) s 39 and s 45.

1. In all of the circumstances, I find that the pre‑requisites of a spent conviction are made out, and the discretion ought to be exercised to grant a spent conviction order.[45] 

Is the appellant unlikely to commit such an offence again?

[45] Sentencing Act 1995 (WA) s 39(2).

1. I have considered whether the appellant is unlikely to commit such an offence again.[46]  The answer involves a prediction; a prediction of the likelihood of the appellant committing such an offence, not any offence.

   [46] Sentencing Act s 45(1)(a).

2. I have weighed in the balance the appellant's lack of similar conduct in his past; his good character; the serious consequences of the offending upon him to date (the appellant has now been stood down from duties as a police officer for about seven months); and the serious consequences to the appellant should he commit such an offence again. I am satisfied that the appellant is unlikely to commit such an offence again.

Is the offence trivial?  Or is the offender of previous good character?

1. I have considered whether the offence was trivial.[47]  It was neither trivial nor technical.

   [47] Sentencing Act s 45(1)(b)(i).

2. The appellant is however of previous good character,[48] and the respondent concedes the same.

Should the offender be relieved immediately of the adverse effect that a conviction may have on an offender?

[48] Sentencing Act s 45(1)(b)(ii).

1. I have considered whether the offender should be relieved immediately of the adverse effect that a conviction might have on him.[49]  I have given careful consideration to those matters discussed by McKechnie J in O'Neill,[50] and I accept that the discretion should be exercised sparingly; in a clear case; and for good reason is desirable.[51]

   [49] Sentencing Act s 45(1)(b)

   [50] O'Neill [26]; Sentencing Act s 45.

   [51] O'Neill [29].

2. Having weighed in the balance the following matters, I find that a spent conviction order is appropriate.

3. I have taken into account all of the facts and circumstances of this case.  I have taken into account the nature and seriousness of the offence; the vulnerability of the victim and the position of the power held by the appellant.  I have given weight to the aggravating factors.

4. I have weighed in the balance that it was a single, unpremeditated strike; that no weapon was involved; and it was not a sustained assault.  I have weighed in the balance that no bodily harm is alleged on behalf of the respondent to have been suffered by Mr Silvester.

5. I have considered the rehabilitative effect of immediate removal of the conviction; the effect both on the offender and the community.

6. I have considered the impact on the appellant’s employment, present and future.

7. I accept the submissions made on behalf of the appellant that there is a likely adverse impact of a conviction on the appellant’s criminal record in relation to his future policing career within WA Police, his Australian Army career, and careers outside of policing in which his interests otherwise lie, being that of psychology and physiotherapy fields.[52]  I have had regard to the appellant's current studies and the likely impact of a criminal history on those further pursuits.  I have borne in the balance the volunteering roles that the appellant has to date demonstrated an aptitude for, which are likely to require criminal history checks.[53] While I have also had regard to the appellant's future travel plans, I do not give this consideration much weight.

   [52] Appellant's submissions filed 19 February 2019 pars 42.2.1 ‑ 42.2.5.

   [53] Appellant's submissions filed 19 February 2019 pars 42.2.1 ‑ 42.2.5.

8. I accept that disclosing the existence of conviction is likely to lead people to make an incorrect adverse assumption about the character of the appellant.  In this case, the offence was committed in volatile circumstances, the appellant acted hastily and without properly assessing the situation.  It cannot be said that he understood and acted, despite knowing and recognising that the victim was vulnerable and unable to defend himself.

9. I have taken into account the public interest which includes general and personal deterrence.

10. General deterrence is of particular importance in cases of this kind.  Weighing heavily against the exercise of the discretion is the fact that the assault was committed by an on‑duty police officer on a vulnerable victim.  The public interest in recording that conviction is taken into account and weighed in the making of my decision. 

11. However, the appellant has been stood down from duties as a police officer for about seven months and has paid a penalty for his actions.  I find that there is little extra general deterrence by the public continuation of the conviction.  The principles of general deterrence in the particular circumstances before me do not outweigh all of the other factors. 

12. I have given careful consideration to the respondent's argument for personal deterrence, but I am satisfied that the appellant is unlikely to commit such an offence again.  The appellant does not require further personal deterrence by the public continuation of the conviction.

13. Further, there is no pressing public interest in being able to continue to have access to the fact of conviction, considering the appellant poses no risk to the public and is unlikely to commit again an offence of this type.

14. The interests of the community accord with relieving the appellant of the adverse effects of conviction, including having to declare the fact of the conviction when he applies for other work that serves the public; volunteer work or otherwise.

15. On balance, I find that the principles of general deterrence do not outweigh the other factors to which I have had regard.  The public interest is now best served by the rehabilitation of the appellant, which will be assisted if the adverse effects of the conviction are immediately removed.  I find it appropriate to exercise discretion to grant the spent conviction order.

Conclusion

1. The appellant is a relatively young person and in volatile circumstances, the appellant acted hastily without proper assessment of the situation.  He acted in a way that was not premeditated and the court will afford him this one more chance.  The orders that will therefore be made are as follows:

   1.Leave to appeal on ground one is granted.

   2.The appeal is allowed on ground one.

   3.The sentence for GN 3805 of 2018 is set aside.

   4.A fine in the amount of $1,000 is to be imposed for GN 3805 of 2018.

   5.A spent conviction order is granted.

   6.The costs order made by Magistrate Benn is not disturbed.

   7.There is no order as to costs in the appeal.

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

YO

Associate to the Honourable Acting Justice Strk

26 MARCH 2019