Briggs v Houlihan
[2018] WASC 301
•28 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BRIGGS -v- HOULIHAN [2018] WASC 301
CORAM: MCGRATH J
HEARD: 27 SEPTEMBER 2018
DELIVERED : 28 SEPTEMBER 2018
FILE NO/S: SJA 1091 of 2018
BETWEEN: MATTHEW DAVID BRIGGS
Appellant
AND
MATTHEW HOULIHAN
Respondent
ON APPEAL FROM:
For File No: SJA 1091 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE K M TAVENER
File Number : MI 514 2018
Catchwords:
Criminal law - Restraining Orders Act 1997 (WA) - Breach 24 hour police order - Suspended term of imprisonment imposed - Appeal against sentence - Express error of law - Magistrate failed to take into account early plea of guilty - Manifestly excessive - Offender re-sentenced to a fine
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Restraining Orders Act 1997 (WA), s 61(2a)
Sentencing Act 1995 (WA) s 6, s 7(2), s 9AA, s 53
Result:
Extension of time in which to appeal granted
Leave to appeal granted on grounds one and two
Appeal allowed
Suspended term of imprisonment set aside and in lieu thereof a fine of $2,000 is imposed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Ms Z Bush |
Solicitors:
| Appellant | : | Legal Aid |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151
Bardsley v The Queen (2004) 29 WAR 338
Burrows v The State of Western Australia [2014] WASCA 147
Chan v The Queen (1989) 38 A Crim R 337
Cullen v Rollings [2009] WASC 80
Dennis v Lanternier [No 2] [2017] WASC 5
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Knight v The State of Western Australia [2014] WASC 57
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Roberts v The State of Western Australia [2014] WASCA 239
Rogers v Hitchcock [2015] WASC 120
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Winmar v Clark [2015] WASC 314
MCGRATH J:
Mr Briggs was charged with one offence of breaching a 24 hour police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA). Mr Briggs pleaded guilty to that charge and was sentenced to a term of imprisonment for 7 months, suspended for 8 months. Mr Briggs now seeks leave for an extension of time in which to appeal[1] and for leave to appeal against the sentence imposed.[2] Mr Briggs contends that the magistrate made an express error of law at sentencing and further, imposed a sentence that was manifestly excessive.
[1] Affidavit of Ms Sinton affirmed 27 June 2018.
[2] Appeal Notice dated 27 June 2018.
For the following reasons, I have determined that leave to appeal should be granted in respect of both grounds one and two, an extension of time within which to appeal should be granted and that the appeal should be allowed.
In these reasons for decision I will consider the following:
(a)The Magistrate Court proceedings.
(b)The grounds of appeal.
(c)An assessment of the merits of the appeal.
Magistrate Court proceedings
The Prosecution Notice lodged on 11 January 2018 pleads that Mr Briggs, who was bound by a 24 hour police order, breached that 24 hour police order 33522 contrary to s 61(2a) of the Restraining Orders Act.[3]
[3] Charge No. MI 514/2018.
On 11 January 2018, Mr Briggs appeared before his Honour in the Magistrates Court sitting in Midland. Mr Briggs was represented by a legal practitioner. The magistrate read the charge, to which Mr Briggs pleaded guilty.[4]
[4] ts 2.
The facts, which were not disputed by Mr Briggs, were read to the court in the following terms:[5]
Facts are, sir, at 8.38 pm, Wednesday, in January this year, the accused was at home with his mother and girlfriend on a property on Vanessa Way in Swan View. Police were called to the address in relation to a family (indistinct) domestic violence incident. The accused's mother explained to police that the accused had been acting in an intimidating way towards her.
The accused was issued with a 24-hour police order protecting the victim at 9.45 pm, and the terms of the order were explained to him. The accused was dismissive towards police after it was explained to him and left on foot with his girlfriend, to walk towards the park.
Police left the address about five minutes later and observed his girlfriend walking back towards the address and the accused sitting down in the park approximately 50 metres away. At 10 pm, police decided to drive back past the address, to make sure the accused had not returned, and saw him jumping a side fence to that address.
[5] ts 3.
Mr Briggs' counsel delivered a plea in mitigation, submitting that the appropriate disposition was a substantial fine. By way of explanation for the offending Mr Briggs' counsel submitted that at the time of the offence Mr Briggs was intoxicated and was involved in an argument with his mother.[6] The police arrived and at that time the police order was issued to Mr Briggs at his mother's residence. Upon receiving the police order, Mr Briggs walked to a local park but, having forgotten his jacket, he returned to his mother's premises with his girlfriend, who then retrieved the jacket. Mr Briggs' counsel stated that Mr Briggs stayed on the other side of the fence and was given the jacket. However, Mr Briggs then jumped over the fence to further speak to his mother and at that time the police arrived.[7] Mr Briggs' counsel submitted that the offending should be characterised as being at the lower end of seriousness for the reason that the offending did not involve any allegations of violence or threats of violence.[8]
[6] ts 3.
[7] ts 3.
[8] ts 4.
The magistrate found that Mr Briggs' offending was aggravated by his persistent disregard for the law by previous offending, including breaching police orders, community orders and breaching bail.[9] His Honour's sentencing remarks were interposed with dialogue with Mr Briggs and his counsel. The sentencing remarks comprise the following paragraphs:[10]
[9] ts 4.
[10] ts 4 - 6.
HIS HONOUR: I appreciate Mr Briggs has pleaded guilty. A community-based order wouldn't be appropriate. I'm considering whether a fine would be appropriate, because Mr Briggs just has an enormous number of breaching bail, breach police orders, breaching community orders, disorderly, trespass, breach of bails (indistinct) 2016.
Just goes on and on and on about his breaching, assault public officers, which he has received terms of imprisonment. It just goes on. I don't know whether there's any particular difficulty, Mr Briggs, this happened, but, quite frankly, I am of the view that, with this history of just ignoring court orders, ignoring police orders, there's a reason for it.
KOPSEN, MR: Yes, sir.
HIS HONOUR: He just ignores them. So I believe the only way to deter Mr Briggs would be to place him on a term of imprisonment, but that will be suspended in the light of his plea of guilty, and I appreciate it's the lower end of the scale, but it's – he is 35 - - -
KOPSEN, MR: Yes, sir.
HIS HONOUR: - - - and he's disorderly in May, breaches of community‑based orders - as I say, he has been subject to suspended imprisonment orders. He has been to jail. He simply ignores things.
ACCUSED: I completed my CBO, but I - because I had done a crime, gone through a booze bus on alcohol - - -
HIS HONOUR: Yes. Yes.
ACCUSED: - - - whilst on the CBO - and I waited, like - and this was where I went wrong - like. I waited until I had finished my community‑based order and my suspended sentence, which I fully completed, but, because I was on the order 10 months before the crime, that's why it become a breach.
HIS HONOUR: Mr Briggs, I don't know whether you just - - -
ACCUSED: But, like, my last order, seriously, I took it 100 per cent seriously. Like, I don't think I need an order. Like, a fine that I could not on time to pay is going to hurt me anyway.
HIS HONOUR: No. You're not going to - Mr Briggs, the trouble is you just ignore things. When it suits you, you ignore them (indistinct) just - I mean, look (indistinct) looking - 2002, there's assaults, there's breach of bails, and I just randomly chose that - breach of bails there. There's serious offences, robberies in company, breach of bails. It just goes on and on and on, Mr Briggs. So you either learn to change behaviour, and, when you're given an order to keep away from people ‑ when the police turn up in those situations, they're just trying to keep people apart.
ACCUSED: Yes.
HIS HONOUR: If you want to ignore it, that's fine, but the consequence for you - - -
ACCUSED: (indistinct). I wasn't trying to ignore it, I was just getting a jumper.
HIS HONOUR: Mr Brigs, shut up. Consequence for you will be imprisonment. Do you understand?
ACCUSED: I feel that. Yes.
HIS HONOUR: Thank you. So there will be seven months imprisonment. That will be suspended over eight months, and that's simply, Mr Briggs, as a result of your history.
ACCUSED: Fair enough.
HIS HONOUR: Your plea of guilty keeps you out of jail. If you behave in this way, as you've behaved for the last 15 years, you will go to jail again. Do you understand?
ACCUSED: Yes. I get it.
HIS HONOUR: Thank you. So if you commit an offence that carries a term of imprisonment, you will go to jail. If you ignore a police order in the same way as you did before, you will go to jail. I'm saying this because it's recorded, so it's perfectly clear that any breaches that - any offences that carry terms of imprisonment, the first thing that's going to happen to you is the suspended imprisonment order will be triggered, and you will be looking at imprisonment. So, next time, have a think before you do something. Okay? Thank you.
Grounds of Appeal
The grounds of appeal are in the following terms:
1.The learned sentencing Magistrate erred in law in failing to reduce the appellant's sentence to reflect the benefits to the state and any witnesses of his plea of guilty, as required by s 9AA of the Sentencing Act 1995 (WA).
2.The learned sentencing Magistrate erred in law in imposing a sentence of imprisonment, albeit suspended, when in all of the circumstances a sentence of last resort is not warranted.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[11] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[12]
[11] Criminal Appeals Act 2004 (WA), s 9(1).
[12] Criminal Appeals Act 2004, s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[13]
[13] Criminal Appeals Act 2004, s 9(2), Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[14]
[14] Criminal Appeals Act 2004, s 14.
Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Ground one contends that the magistrate made an express error in his sentencing remarks.
Ground two contends that the sentence imposed was manifestly excessive in that the wrong type of sentence was imposed, being a suspended term of imprisonment. The ground therefore asserts implied error.
In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[15]
[15] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Assessment of the merits of the appeal
I will now consider the two grounds of appeal.
Ground one
By ground one, Mr Briggs contends that the magistrate erred in law by failing to reduce the sentence to reflect the benefits to the State and to any victim or witness from his plea of guilty, as required by s 9AA of the Sentencing Act 1995 (WA).
The respondent concedes that the magistrate erred by failing to expressly state the fact of a reduction for the purposes of s 9AA of the Sentencing Act.[16] However, the respondent does not concede that the magistrate failed to give a reduction for the plea of guilty.
[16] Respondent's Written Outline of Submissions, [2].
Section 9AA(2) of the Sentencing Act provides that:
If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
The term 'head sentence' is defined to mean the sentence that a court would have imposed for the offence if (a) the offender had been found guilty after a plea of not guilty and (b) there were no mitigating factors.[17]
[17] Sentencing Act 1995, s 9AA (1).
The reduction must not be more than 25% and the maximum is only available if the offender pleaded guilty or indicated that he or she would plead guilty at the first reasonable opportunity.[18]
[18] Sentencing Act 1995, s 9AA (4).
Section 9AA(5) provides that, if a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court. Finally, s 9AA(6) provides that the section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The purpose and proper construction of s 9AA was outlined in Abraham v The State of Western Australia.[19] The underlying purpose of s 9AA(5) is to increase the transparency of the sentencing process.[20]
[19] Abraham v The State of Western Australia [2014] WASCA 151.
[20] Abraham v The State of Western Australia, [50] (Buss JA).
It is agreed by the respondent that Mr Briggs entered his guilty plea at the first reasonable opportunity. Accordingly, I am of the opinion that Mr Briggs was entitled to a 25% reduction from his sentence pursuant to s 9AA of the Sentencing Act.
The magistrate made no reference to s 9AA or to reducing the sentence of imprisonment because of the plea of guilty. However, his Honour did make an incidental reference to the guilty plea in his sentencing remarks by observing 'I appreciate Mr Briggs has pleaded guilty'[21] and further 'your plea of guilty keeps you out of jail.'[22] In the appellant's written submissions it is contended that the magistrate may have taken into account the plea of guilty in respect of whether the term of imprisonment should be suspended but did not take that mitigating factor into account when determining whether to impose the term and its length.[23] I accept that submission. His Honour did not refer to the mitigating effect of the plea and there is no statement or indication in his Honour's remarks that the court reduced the head sentence.
[21] ts 4.
[22] ts 5.
[23] Appellant's Outline of Written Submissions, [8] to [10].
The failure to state that a sentence has been reduced, and to quantify the reduction, does not necessarily mean that a reduction has not been made and the sentencing discretion is miscarried.[24] However, as in Burrows v The State of Western Australia, to avoid the conclusion that a material error has occurred, it would be expected that the sentencing court should make reference to the mitigating effect of the guilty plea, and it should be apparent from the sentence that a reduction has been made. The failure to refer to the effect of the plea of guilty will ordinarily be an indication that the sentencing court has overlooked the granting of the discount.[25] In such circumstances the failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.[26]
[24] Burrows v The State of Western Australia [2014] WASCA 147 [32].
[25] Roberts v The State of Western Australia [2014] WASCA 239 [34]; Winmar v Clark [2015] WASC 314 [26].
[26] Roberts v The State of Western Australia, [47].
It is not possible to discern whether the magistrate regarded the sentence that he imposed as a starting point, from which no reduction was made, or an end point, after some unspecified reduction. The failure to refer to s 9AA in terms of indicating that a reduction was being made, in circumstances where Mr Briggs pleaded guilty at the first reasonable opportunity, was a material error of law.
The respondent states that, notwithstanding that this ground of appeal has been made out, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.[27] In short, the respondent's position is that the sentence imposed on Mr Briggs was within the exercise of a sound sentencing discretion and that therefore there is no substantial miscarriage of justice and the appeal should be dismissed. I will consider this issue after determining ground two.
[27] Respondent's Written Outline of Submissions, [3] to [6].
Therefore, leave to appeal is granted in respect of ground one.
Ground two
By ground two Mr Briggs contends that the magistrate erred in law by imposing a sentence of imprisonment, although suspended, when in all the circumstances a sentence of last resort was not warranted. Accordingly, Mr Briggs' contention is that the sentence imposed upon him was manifestly excessive. Mr Briggs' contention is that the offending was at the lower end of the scale of seriousness and accordingly did not warrant the imposition of a term of imprisonment.
That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the appellate court to be satisfied that the sentence is unreasonable or plainly unjust.[28]
[28] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Briggs contends that the wrong type of sentence was imposed in that a term of imprisonment was not within his Honour's discretion.
Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
To determine whether a sentence is manifestly excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[29]
[29] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
The maximum penalty for the offence of breaching a police order contrary to s 61(2a) of the Restraining Orders Act is 2 years' imprisonment or a fine of $6,000 or both.
His Honour considered that Mr Briggs' antecedents were such that it was inappropriate to impose any sentence other than a term of imprisonment.[30] During the appeal hearing and in written submissions Mr Briggs contended that the magistrate gave significant weight to his criminal history and personal deterrence.[31] That was accepted by the respondent.[32] As a matter of law the fact that an offender has a criminal record or that a previous sentence has not achieved the purpose for which it was imposed are not aggravating factors.[33] I do not consider that the magistrate breached that prohibition.
[30] ts 4 - 5.
[31] Appellants Written Outline of Submissions [21].
[32] Respondent's Written Outline of Submissions [2(c)].
[33] Sentencing Act, s 7(2)(b) & (c).
Mr Briggs only has one previous conviction for breaching a police order contrary to s 61(2a) of the Restraining Orders Act. Mr Briggs was convicted in 2017 for that offence for which the sentencing Magistrate imposed a $400 fine. Mr Briggs has 25 previous convictions for other breaches of court orders, though not orders contrary to the Restraining Orders Act. Therefore, Mr Briggs has a relevant criminal record. Personal deterrence is a highly relevant sentencing factor. The respondent characterised the offending history as manifesting a continuing attitude of disobedience of the law.[34] I accept that submission, save that this was the second breach of the Restraining Orders Act. I now turn to consider the circumstances of the offending.
[34] Respondent's Written Outline of Submissions, [59].
The Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence.[35] Both personal and general deterrence are principles that are paramount when such orders are breached. It is clear that deliberate breaches of court orders or police orders made under the Restraining Orders Act undermine the efficacy of such orders.[36]
[35] Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32 [13].
[36] Rogers v Hitchcock [2015] WASC 120, [46].
In Dennis v Lanternier[37] Jenkins J observed that there is no tariff for an offence against s 61(1) of the Restraining Orders Act given that the circumstances of the offending may range from a minor, technical breach to a very serious breach involving personal violence. In Dennis v Lanternier Jenkins J identified a number of relevant principles from the appeal cases, being:[38]
(a)offences at the lower end of the range of seriousness of offences against s 61(1) are usually dealt with by the imposition of a penalty other than a sentence of imprisonment to be served immediately;
(b)serious offences against s 61(1) will incur a term of imprisonment to be served or, if the offender's circumstances are favourable, suspended;
(c)offences which include a threat of violence which the offender is apparently in a position to carry out, actual violence or the invasion of the protected persons' home are regarded as offences at the higher end of the range of seriousness of offences against s 61(1);
(d)an immediate sentence of 7 months' imprisonment imposed for a serious breach of s 61(1) has been upheld on appeal.
[37] Dennis v Lanternier [No 2] [2017] WASC 5.
[38] Dennis v Lanternier [No 2], [150].
The guiding principles referred to by Jenkins J in respect of offences contrary to s 61 are relevant to determining a sentence for breach of police orders. The maximum penalty for either breach is the same and both types of orders engage similar underlying concerns.
Applying the sentencing principles to the present case assists in characterising the offending as not being a serious example of this type of offending. The magistrate stated that 'and I appreciate it's the lower end of the scale'.[39] The respondent contends that the magistrate's finding was only in respect to the facts or the actual circumstances of the offending. Properly understood the magistrate determined that this offence was at the lower end of the scale, taking into account all relevant factors.
[39] ts 4.
Mr Briggs' conduct did not involve any acts of violence. The facts stated that his mother informed the police that Mr Briggs was acting in an intimidating manner.[40] No further particularisation was given in the facts for the purposes of sentencing.
[40] ts 3.
The respondent submits that the actual circumstances of the offending were clearly more serious than any offending on the lower end of the scale. I do not accept that submission. The offending involved the police attending at Mr Briggs' mother's residence. After he was given the police order he left, but returned to the residence to collect his jacket. That contention in his plea in mitigation was not disputed.[41] At the time of returning to the residence he did not engage in any violence. Mr Brigg's previous breach also involved his mother. However, neither party was able to provide the transcript of the relevant proceedings. Therefore, I am unable to determine the factual basis upon which he was convicted for the first breach.
[41] ts 3 - 5.
I have considered the sentencing authorities relied upon by the respondent, being Rogers v Hitchcock, Knight v Western Australia[42] and Cullen v Rollings.[43] In Rogers v Hitchcock, Hall J set aside a 7 month term of imprisonment and in lieu thereof imposed a $1,500 fine. His Honour did so after considering the offender's changed circumstances since the date of sentencing. Whilst his Honour indicated that, but for the change in circumstances, the sentence of 7 months' imprisonment was within discretion it is important to recognise that the offending in Rogers v Hitchcock was more serious than in the present case. The offender was a multiple offender in respect of s 61A of the Restraining Orders Act. The breach was the third breach of a police order within a two year period and there was a history of domestic violence between the offender and the victim. Further, there had been reported concerns about the offender's participation in a family violence program, including the minimization of and refusal to accept blame. Further, there had been a breach of a protective bail condition in respect of the same person close in time to the s 61A breach.[44]
[42] Knight v The State of Western Australia [2014] WASC 57.
[43] Cullen v Rollings [2009] WASC 80.
[44] Rogers v Hitchcock, [45].
In all the circumstances, I do not consider that this offending was serious enough to justify a sentence of imprisonment. I am also mindful that if I were to reduce the length of the term of imprisonment to take into account the failure to give a discount under s 9AA of the Sentencing Act, then it would require a sentence of less than 6 months' imprisonment, which is prohibited by s 86 of the Sentencing Act.
Conclusion
An extension of time in which appeal is required. The test for the grant of an extension of time to appeal is whether it is in the interests of justice to grant an extension.[45] Given that I have determined that the two grounds of appeal have been made out, an extension of time in which to appeal is granted. Accordingly, leave to appeal is granted on grounds one and two and the appeal is allowed.
[45] Bardsley v The Queen (2004) 29 WAR 338, [108].
I set aside the sentence imposed by the magistrate and in lieu thereof, I impose a fine in the amount of $2,000. In so doing I have considered the capacity of Mr Briggs to pay a fine in that amount.[46] At the sentencing hearing counsel for Mr Briggs submitted that he has capacity to pay a fine.
[46] Sentencing Act 1995, s 53.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH28 SEPTEMBER 2018
19
3