Boxer v The State of Western Australia
[2009] WASC 212
•21 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BOXER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 212
CORAM: HALL J
HEARD: 21 JULY 2009
DELIVERED : 21 JULY 2009
PUBLISHED : 30 JULY 2009
FILE NO/S: SJA 1022 of 2009
BETWEEN: SCOTT BOXER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE YOUNG
Citation :BM 501 of 2009, BM 1145 of 2009
Catchwords:
Criminal law - Sentencing principles - Offences of assault occasioning bodily harm and stealing a motor vehicle - Whether magistrate erred in making sentences cumulative - Whether magistrate erred in not suspending the sentence
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Ms M R Barone
Respondent: Ms W C Hughes
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Humble v State Solicitor for Western Australia [2009] WASC 99
Moody v French (2008) 36 WAR 393
Woods v The Queen (1994) 14 WAR 341
HALL J: This appeal against sentence was heard on 21 July 2009. At the conclusion of the hearing I dismissed the appeal and stated that I would publish my reasons subsequently.
On 6 March 2009 the appellant appeared in the Magistrates Court in Broome and pleaded guilty to four charges. Those charges were stealing a motor vehicle contrary to s 378 of the Criminal Code (WA), two charges of driving under suspension contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) and one charge of refusing a breath test contrary to s 67(2) of the Road Traffic Act.
The offences breached a community based order that the appellant had been placed on in respect of three other offences on 9 February 2009. Accordingly, he also fell to be resentenced in respect of those earlier offences. The earlier offences were two of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code and one of breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA).
The learned magistrate imposed a total effective sentence of 12 months' imprisonment. That sentence was reached by imposing 6 months' imprisonment in respect of the stealing of the motor vehicle, 6 months' imprisonment cumulative in respect of the first aggravated assault and concurrent terms of imprisonment on the other offences.
At the hearing of the appeal the appellant's counsel sought to amend the grounds. This was not opposed by the respondent. The amended grounds are as follows:
1.The learned magistrate erred in imposing a sentence that was manifestly excessive, particularly having regard to:
(i)the plea of guilty;
(ii)the appellant's youth;
(iii)the appellant's criminal history.
2.The learned magistrate erred in failing to suspend the sentence on the basis that there was nothing to 'hang [his] hat on' when:
(i)he was required to consider all the circumstances to decide whether or not to suspend the sentence;
(ii)a reconsideration of the mitigating circumstances below justify the suspension of the sentence imposed:
(a)the plea of guilty;
(b)the appellant's youth;
(c)the appellant's prospects of rehabilitation;
(d)the appellant had not previously been sentenced to imprisonment.
Background
The earliest offences in time were the two assaults that occurred on 28 January and 6 February 2009. Though the facts as recounted at the proceedings before the magistrate on 6 March 2009 are somewhat unclear, it would appear that both assaults were committed on the appellant's partner. The first assault involved grabbing his partner by the hair and causing scratches to both sides of her nose and chin and scratches to the face. On the second occasion the assault involved several kicks and punches to the left side of the partner's head, as a result of which she sustained a cut and swelling to her bottom lip and bleeding and bruising to the left side of her head.
In relation to the assaults, and the breach of bail that occurred on 30 January 2009, the appellant appeared in the Broome Magistrates Court on 9 February 2009 and pleaded guilty. He was sentenced to an 8 month community based order with a supervision condition and 40 hours community work in respect of all three offences.
The day following his conviction and sentencing, on 10 February 2009, the appellant entered the rear car park of the Ocean Lodge, Cable Beach Road, in Broome and stole a Toyota Landcruiser. The vehicle was unlocked and the appellant manipulated the ignition by 'hot‑wiring' it and thereby caused damage to the ignition wiring loom. The appellant then drove the vehicle some 180 km south to the Bidyadanga Community. The appellant did not have, and had never held, a driver's licence. Furthermore, he had been disqualified from holding a licence for a period of 6 months after being convicted of traffic offences on 2 December 2008. Accordingly, his driving of the stolen vehicle on 10 February 2009 constituted an offence of driving whilst under suspension.
Approximately two weeks later, on 27 February 2009, the appellant was stopped whilst driving the stolen vehicle at Bidyadanga. The police suspected that he had consumed alcohol and required him to provide a sample of his breath, which he refused to do. As a consequence, he was charged with a second offence of driving under suspension on 27 February and an offence of refusing a breath test. In explanation of why he had been driving the vehicle, he said 'We're just coming back from fishing'.
As is apparent, the appellant breached the community based order that was imposed on 9 February 2009 the day following its imposition. Furthermore, it was conceded that he had not reported to a Community Justice Services office within 72 hours as required.
On the other hand, the appellant was a young man, being 18 at the time of the commission of all of the offences and when he came to be sentenced. He had a record, mostly involving traffic offences, though there was one previous aggravated assault. He had not, however, been previously imprisoned at the time he came before the learned magistrate on 6 March 2009.
In mitigation it was asserted before the magistrate that the appellant had stolen the motor vehicle because he was desperate to get back to Bidyadanga to see his partner and their young child. The learned magistrate expressly rejected this suggestion on the basis that the appellant had been seen with his partner three days previously on 6 February 2009 and on the ground that the car was stolen at 4.15 am and the appellant could readily have obtained a lift back to Bidyadanga the following morning. He also referred to the fact that the appellant had 'held on to the car' for his own benefit once he arrived at Bidyadanga.
The magistrate noted the previous offending and that the offences that occurred on 10 February were within hours after being released from court. His Honour then said:
Now, Mr Boxer, it's with great reluctance that I consider sending someone your age to gaol, but at the same time it's my view that [the] stage has been reached in your case. If there was anything I could hang my hat on in terms of a reason not to send you to gaol or just suspend any gaol sentence I would consider doing so, but the extent of your defiance is really just contemptuous.
It's contemptuous of the whole court process in that you go out the day after getting a community based order and you commit another deliberate offence and you make no contact whatsoever with community justice, who are there to try and give you a bit of help with your drinking and with your anger management and things like that, and you simply don't want to accept that help, and you get back into trouble again.
It's not the case that a suspended sentence is a necessary precursor to serving an immediate term. I say in your case the fact that you have been offending so persistently over the last couple of months, the fact that you have displayed this degree of defiance just indicates to me that only an immediate term of imprisonment can be justified.
I also say that having regard to the fact that there [has] now been three aggravated assaults occasioning bodily harm charges on your record, and those are the most serious of the offences you have been charged with because they require sentences of what the courts call deterrence and that is something that sends a message to you and other people that violence against women won't be tolerated and women who are going to be protected by sentences imposed by the court and you were given an opportunity to do things the easy way by getting some help for yourself in such a way it would benefit you, your partner and your young child. As I say, you simply chose to have no regard to that help at all.
I do take into account the fact that you are young. You are only 18 years of age. I have taken into account the fact that you have pleaded guilty to these charges and hopefully [that] indicates that you are sorry about what happened and you can use the time you are going to spend in gaol to have a think about why you are there, and you need to make sure that you decide to do things differently when you get out.
The maximum penalty for the aggravated assaults when dealt with summarily is 3 years' imprisonment and a fine of $36,000. The maximum penalty for the stealing of the motor vehicle when dealt with summarily is 2 years' imprisonment or $24,000. His Honour stated that ordinarily the traffic offences would not warrant imprisonment but that, in his view, it was better to impose concurrent terms for those offences rather than adding fines to the gaol sentences that were to be imposed for the stealing and assault charges.
The law
Sentencing involves the exercise of a judicial discretion. In Housev The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 ‑ 505).
In Chan v The Queen (1989) 38 A Crim R 337 Malcolm CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).
Ground 1 - Was the sentence manifestly excessive?
The appellant conceded in submissions that imprisonment was open in respect of the two offences of aggravated assault occasioning bodily harm and that a term of 6 months' imprisonment, to be served concurrently, was within the appropriate range. The appellant confined ground 1 to the 6 months' cumulative imprisonment imposed for the offence of stealing a motor vehicle.
The appellant submitted that a term of 6 months' imprisonment in respect of the stealing of the motor vehicle was excessive given the circumstances of the offence, the personal circumstances of the appellant, and the fact that he had pleaded guilty at the first opportunity. In regard to the circumstances of the offence, it was submitted that the damage to the vehicle was limited to the ignition loom, that the vehicle was not destroyed, that the vehicle was not stolen for use in the commission of other offences, and that it was not stolen for commercial gain. In regard to the personal circumstances of the appellant, it was submitted that he had not previously committed an offence of this nature nor any other dishonesty offences and was aged 18 at the time of the offence.
In my view, it is important to consider the stealing offence in the context of the other offending. As I have noted, the car was stolen within a very short time of the appellant being released on a community based order. The magistrate specifically rejected the explanation advanced by the appellant that he was anxious to return to Bidyadanga. He then drove the car a considerable distance in circumstances where he had never held a driver's licence and only two months earlier had been disqualified from holding a licence for 6 months. In these circumstances it is difficult to argue with the learned magistrate's conclusion that the stealing and driving of the car on 10 February 2009 involved an element of defiance. It is also relevant to take into account that the appellant continued to utilise the car for his own benefit, at least on 27 February 2009 when he was admittedly making personal use of it.
The respondent referred me to the recent case of Humble v State Solicitor for Western Australia [2009] WASC 99 in which a total effective sentence of 12 months' imprisonment was reduced to one of 6 months and 1 week after taking into account 7 weeks spent in custody. In that case the appellant was convicted of stealing a motor vehicle, driving whilst suspended, and criminal damage. The essential facts were that the appellant in that case had stolen a car from a car yard after representing that he wished to purchase it and being permitted to take it for a test drive. He did not return the car within the required time frame and had been suspended from holding a driver's licence at the relevant time. The appellant in that case had six previous convictions for driving whilst under suspension. For his last conviction he had received a community based order which was breached by the theft of the car. In that case, McKechnie J was of the view that to escalate from a community based order to a 12 month sentence of immediate imprisonment was a sentencing error. In his view a sentence of 8 months was appropriate, which was then reduced by 7 weeks for time spent in custody.
The respondent relies upon Humble as indicating that a sentence of 6 months for stealing a motor vehicle is within range. The appellant submits that the stealing of the motor vehicle was of the same seriousness as the traffic offences and would not ordinarily have warranted a term of imprisonment. As to seriousness, both the maximum available penalties and the element of dishonesty involved in stealing run counter to this submission. As to whether a sentence of 6 months' imprisonment could not otherwise be warranted, the appellant referred to no cases that might indicate such a penalty was outside the appropriate range.
In some respects the facts in this case could be viewed as being more serious than in Humble given that the appellant in this case 'hot‑wired' the car and retained it for several weeks.
In my view, it is apparent from the learned magistrate's sentencing remarks that he took all of the relevant circumstances into account in reaching the sentence that he did. He specifically referred to the appellant's youth but considered that the circumstances of the offending required that a sentence of immediate imprisonment be imposed. A sentence of 6 months' imprisonment for the stealing of the vehicle was within the range of sentences properly available to the magistrate and does not in itself manifest error.
Nor was it erroneous, in my view, for this sentence to be cumulative upon that imposed in respect of the first aggravated assault. There was no connection between those offences such as to justify concurrency. Nor did the total effective sentence fail to bear a proper relationship to the overall criminality involved in all of the offences: Moody v French (2008) 36 WAR 393 [65]; and Woods v The Queen (1994) 14 WAR 341. For these reasons ground 1 of the appeal is not made out.
Ground 2 - Should the sentence have been suspended?
The appellant submitted that the learned magistrate had erred in that, having come to the conclusion that sentences of imprisonment were appropriate, he then sought to find a single reason that would justify suspending such sentences. This interpretation was based upon the phrase 'if there was anything I could hang my hat on in terms of a reason not to send you to gaol or just suspend any gaol sentence'. The appellant argues that in seeking a reason to suspend the sentence the magistrate must have failed to take into account all of the relevant circumstances.
In my view, it is apparent when viewing the remarks about a suspended sentence in context that his Honour, having come to the conclusion that a sentence of imprisonment was the only appropriate sentence, then considered whether suspension was an option. In doing so, he referred not only to the circumstances of the offending but the personal circumstances of the appellant including his youth, plea of guilty and indications of remorse. It is apparent from this that his Honour did take into account all of the relevant circumstances in considering whether suspension was appropriate and did not confine himself in the way suggested: Dinsdale v The Queen (2000) 202 CLR 321.
It was no doubt a very serious matter to be sending an 18‑year‑old man to prison for the first time. However, a suspended sentence is not a necessary intermediate step between a community based order and a sentence of immediate imprisonment. Whether a suspended sentence was appropriate in this case depended upon all of the relevant circumstances. In appropriate circumstances an offender may be sentenced to immediate imprisonment although they have never previously had the benefit of a suspended sentence. In my view, it was open to the magistrate to form the view that a suspended sentence was not appropriate in the circumstances of this case. Accordingly, ground 2 cannot succeed.
Conclusion
For these reasons I dismissed the appeal at the hearing.
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