Brady v Walton
[1999] WASCA 98
•13 JULY 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BRADY -v- WALTON [1999] WASCA 98
CORAM: McKECHNIE J
HEARD: 13 JULY 1999
DELIVERED : 13 JULY 1999
FILE NO/S: SJA 1063 of 1999
BETWEEN: TROY DAVID BRADY
Appellant
AND
ANTHONY CRAIG WALTON
Respondent
Catchwords:
Sentence - Whether time spent in custody taken into account - No new principle - Turns on own facts
Legislation:
Sentencing Act 1995(WA) s 87
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr M F Rynne
Respondent: Ms S M De Maio
Solicitors:
Appellant: Young & Young
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Case(s) also cited:
Hayes v R, unreported; CCA SCt of WA; Library No 950714C; 21 December 1995
Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
R v Clarke & Coulton (1996) 87 A Crim R 441
R v Grein [1989] WAR 178
R v Lambley (1989) 40 A Crim R 430
R v Tait (1979) 46 FLR 386
McKECHNIE J: This is an appeal against sentence on the single ground that when the learned Stipendiary Magistrate imposed a term of imprisonment for various offences for a period of 18 months with eligibility for parole, he erred in law and his sentencing discretion miscarried in that he failed to properly exercise his discretion to take into account the time the appellant spent in custody prior to sentencing on 23 March 1999 or, alternatively, to exercise the discretion to allow the appellant credit for time spent in custody prior to sentencing on 23 March 1999.
The Offences
The offences revolved around what appears to be an obsessional relationship the appellant had with a young woman.
The appellant pleaded guilty to a series of offences as follows:
"2nd August 1998
1.At Busselton damaged household furniture to the total value of $508 the property of Tracy Lee SLOAN.
2.At Busselton assaulted Tracy Lee SLOAN and thereby did her bodily harm.
15 August 1998
3.At Busselton assaulted Tracey Lee SLOAN.
22 August 1998
4.At Brunswick Junction damaged one glass window of Holden Camira Sedan valued at $60 the property of Tracy Lee SLOAN.
5.Having been personally served with a Violence Restraining Order breached that Order by assaulting Tracy Lee SLOAN thereby causing bodily harm.
6.At Brunswick Junction having been personally served with a Violence Restraining Order breached that Order by approaching within 30 metres of the protected person.
7.At Brunswick Junction unlawfully assaulted Tracy Lee SLOAN and thereby did her bodily harm.
27 October 1998
8.At Busselton having been personally served with a Violence Restraining Order breached that Order by attending the house of Tracy Lee SLOAN while Tracy Lee SLOAN was present.
4 November 1998
9.At Busselton having been personally served with a Violence Restraining Order breached that Order by communicating with the person protected.
5 November 1998
10.Having been personally served with a violence restraining order breached that order by going to the complainants house and attempting to communicate with her.
8 January 1999
11.At Busselton entered the dwelling of Tracy Lee SLOAN without her consent and thereby committed an offence of stealing.
12.At Busselton having been personally served with a Violence Restraining Order breached that Order by entering on the premises of the complainant at 30 Hamilton Way, Busselton."
It is to be observed that a number of the offences were committed whilst on bail from earlier offences.
The appellant was taken into custody on 8 January 1999 some 2‑1/2 months before he was sentenced in the Court of Petty Sessions.
Following the pleas of guilty, the Magistrate heard a detailed outline of the facts from the prosecutor. These facts disclosed a series of violent episodes involving physical damage to the complainant's property and assaults upon her, she being pregnant. There were several breaches of restraining orders. The Magistrate had the benefit of a detailed clear plea in mitigation. The facts were substantially accepted, although there were some minor areas of dispute. The Magistrate was advised that the appellant had been in custody from 8 January 1999.
The Magistrate was also assisted by an oral report from the Community Corrections Officer. Particularly, that officer noted:
"He appears to have gained little from previous counselling and also his reluctance to maybe accept responsibility for his offences and that he is able to justify them."
The Magistrate in sentencing outlined the offences which he described as very serious and noted that the appellant had totally and flagrantly disregarded the restraining orders on six occasions.
Relevant to the grounds of appeal his Worship said:
"I am going to take into account the time that you spent in custody."
On 17 May 1999, at the instigation of the appellant's counsel, the matter was relisted before the Magistrate seeking to correct the sentence under the Sentencing Act s 37. At that point the Magistrate said:
"I made the judgment at the time. I took into account and it's stated so that I took into account the time that he'd spent in custody. He would've got 2 years otherwise."
It may have been better if this period had been stated at the time of sentence so that the appellant was clearly able to understand the extent to which the time spent in custody had been taken into account. However, in the circumstances, I do not consider that the omission of itself led to a miscarriage of justice, certainly not a miscarriage sufficient to justify intervention by this Court.
The offences were very serious. The Magistrate's assessment that the appellant had shown no responsibility for his actions was borne out by the appellant's behaviour when sentenced, during which he said, "She's not worth it. Fuck. I'm innocent. She'll get hers one day."
Taking time on remand into account
The Sentencing Act 1995 s 87 provides:
"If when an offender is being sentenced to imprisonment for an offence
(a)he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b)the sentencing court decides that that time should be taken into account, the Court may take that time into account;
the court may take that time into account ‑
(c)if it imposes a fixed term by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on the specified day being the day when that custody began or on some later date that is not later than the date of the sentence."
This section is permissive in that it is not obligatory for a court to take into account the time spent in custody. Furthermore, the provision enables the court to proceed in one of two ways when it decides to take the time spent on remand into account.
Generally, a court would take into account the time spent on remand in fixing a sentence. There is no statutory obligation for a court to make precise mathematical calculations as to the effect of a parole eligibility order. However, the common practice as outlined by the Court of Criminal Appeal is to upscale the time spent in custody to some degree.
However, in the case of fault by an appellant, a court may exercise a discretion to take into account a lesser period or indeed make no allowance: see Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998.
In this case the Magistrate took into account the time spent in custody and proceeded pursuant to the Sentencing Act 1995 (WA) s 87(c). But for this time he would have imposed a sentence of 2 years. Instead he imposed a sentence of 18 months. I am quite unable to see that he has made any error in proceeding this way.
Having reviewed the facts and circumstances of the offences, together with the matters raised in mitigation, in my view a sentence of 2 years with a parole eligibility order was within the range of a sound sentencing discretion and no error, either of approach or of disproportion, has been demonstrated. I would dismiss the appeal.
0
1