Brown v Nation
[2019] WASC 430
•27 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROWN -v- NATION & ORS [2019] WASC 430
CORAM: CORBOY J
HEARD: 30 AUGUST 2019, 26 SEPTEMBER 2019 & 1 OCTOBER 2019
DELIVERED : 1 OCTOBER 2019
PUBLISHED : 27 NOVEMBER 2019
FILE NO/S: SJA 1019 of 2019
BETWEEN: CHRISTOPHER AARON BROWN
Appellant
AND
LAURA KELLY NATION
First Respondent
KYLIE THOMAS
Second Respondent
GEOFFREY PECK
Third Respondent
JASON BALLANTYNE
Fourth Respondent
LACHLAN DENNIS
Fifth Respondent
KWINTIN THERON
Sixth Respondent
ON APPEAL FROM:
For File No: SJA 1019 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE LONGDEN
File Number : BU 320 of 2016, BU 4652 of 2017, BU 4655 of 2017, BU 4656 of 2017, BU 6605 of 2017, AR 7083 of 2018, AR 7090 of 2018, AR 7091 of 2018, MH 28 of 2018
For File No: SJA 1116 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MILLINGTON
File Number : BU 320 of 2016
Catchwords:
Criminal law – Appeal from sentence – Order made under s 80(1) of the Sentencing Act 1995 (WA) after expiry of suspended imprisonment order – No power to make order – Appellant resentenced
Legislation:
Sentencing Act 1995 (WA), s 9AA, s 80(1)
Result:
Leave to extend time within which to appeal granted
Leave to amend notice of appeal
Appeal allowed
Sentence set aside and appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr A Elliott (30 August 2019); Mr D Jones (26 September & 1 October 2019) |
| First Respondent | : | Ms M Yeung |
| Second Respondent | : | Ms M Yeung |
| Third Respondent | : | Ms M Yeung |
| Fourth Respondent | : | Ms M Yeung |
| Fifth Respondent | : | Ms M Yeung |
| Sixth Respondent | : | Ms M Yeung |
Solicitors:
| Appellant | : | NR Barber Legal |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
| Third Respondent | : | Director of Public Prosecutions (WA) |
| Fourth Respondent | : | Director of Public Prosecutions (WA) |
| Fifth Respondent | : | Director of Public Prosecutions (WA) |
| Sixth Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Delahunty v Sinden [2019] WASC 91
Dreja v The State of Western Australia [2012] WASCA 151
Powell v Tickner [2010] WASCA 224
Wallam v Dent [2008] WASC 170
CORBOY J:
(These reasons were delivered orally on 1 October 2019 and were edited for publication from the transcript.)
The background to the appeal
On 22 February 2016, the appellant pleaded guilty to a charge that on 16 November 2015, at College Grove, he assaulted David Thomas McWilliams who was performing a function of his employment, namely, working in a hospital (charge BU 320/2016; the November 2015 assault). The assault was made an offence by s 318(1)(i)(i) of the Criminal Code (WA). The appellant was sentenced to 7 months' imprisonment suspended for 12 months, commencing on 22 February 2016 (the First SIO).
In early January 2018, the appellant pleaded guilty to further charges:
(1)on 15 June 2016, at Carey Park, he unlawfully assaulted Teddy Beske, contrary to s 313(1)(b) of the Criminal Code (charge BU 4655/2017);
(2)on 2 November 2016, at Dalyellup, he wilfully and unlawfully damaged a Samsung Galaxy smartphone and a children's playground set, being the property of Renee Chanel Freeman, contrary to s 444(1)(b) of the Criminal Code (charge BU 4656/2017);
(3)on 2 November 2016, at Dalyellup, he unlawfully assaulted Todd Jeffery Freeman, contrary to s 313(1)(b) of the Criminal Code (charge BU 6605/2017).
On 11 January 2018, the appellant was sentenced for those offences as follows:
(1)BU 4655/2017 ‑ 3 months' imprisonment, suspended for 12 months;
(2)BU 4656/2017 ‑ 3 months' imprisonment concurrent, suspended for 12 months;
(3)BU 6605/2017 ‑ 4 months' imprisonment cumulative on the term imposed on charge BU 4655/2017, suspended for 12 months.
The suspended imprisonment order took effect on 11 January 2018. The magistrate sought to deal with the appellant under s 80 of the Sentencing Act 1995 (WA) in respect of the November 2015 assault. His Honour purportedly cancelled the First SIO and sentenced the appellant to 7 months' imprisonment cumulative, suspended for 12 months, commencing on 11 January 2018. The total effective sentence imposed on 11 January 2018 was 14 months' imprisonment suspended for 12 months (the Second SIO).
The offences committed by the appellant in June and November 2016 were committed during the period of the First SIO. However, the term of the First SIO expired on 21 February 2017, well before the appellant was sentenced on 11 January 2018.
In August and September 2018, the appellant pleaded guilty to further charges:
(1)on 27 February 2017, at Coodanup, he unlawfully assaulted Norma Cecilia Vergara Araya and thereby did her bodily harm in circumstances of aggravation, namely in a family domestic relationship (charge BU 4652/2017). The assault was made an offence by s 317(1) of the Criminal Code;
(2)on 15 March 2017, at Coodanup, he used a carriage service in such a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (charge MH 28/2018);
(3)on 9 June 2018, at Thornlie, he breached a police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA) (charge AR 7083/2018);
(4)on 8 or 9 June 2018, at Thornlie, he unlawfully assaulted Carly Ann Lemish in circumstances of aggravation, namely being in a family and domestic relationship with the victim of the offence, contrary to s 313(1)(a) of the Criminal Code (charge AR 7091/2018).
The appellant was sentenced for those offences on 23 November 2018. The statutory penalties for the offences included imprisonment and the offences were committed during the period of the Second SIO. Accordingly, the appellant was also dealt with under s 80 of the Sentencing Act for the offences that had been the subject of the Second SIO.
The sentences imposed by the sentencing magistrate on 23 November 2018 were:
(1)BU 4652/2017 ‑ 10 months' imprisonment cumulative;
(2)MH 28/2018 ‑ 1 month's imprisonment cumulative;
(3)AR 7083/2018 ‑ 1 month's imprisonment cumulative;
(4)AR 7090/2018 ‑ 3 months' imprisonment cumulative;
(5)AR 7091/2018 ‑ 6 months' imprisonment cumulative;
(6)BU 320/2016 (being the offence in respect of which the First SIO had been made) ‑ 7 months' imprisonment cumulative;
(7)BU 4655/2017; BU 4656/2017 and BU 6605/2017 (being the offences, together with BU 3216/2016, for which the Second SIO was made) ‑ 1 month's imprisonment concurrent for each offence. Those terms of imprisonment took into account 6 months' the appellant had spent in custody.
The total effective sentence imposed was a term of imprisonment of 28 months to be immediately served.
The appellant commenced an appeal against sentence (SJA 1019/2019; the First Appeal) on the following grounds:
(1)the sentencing magistrate erred in law or fact in failing to backdate the sentence to 10 June 2018, being the date on which the appellant was placed in custody in respect of the offences;
(2)alternatively, the sentencing magistrate made insufficient allowance for time already spent in custody when accumulating the sentences imposed;
(3)the sentence of 10 months' imprisonment on charge BU 4652/2017 was excessive;
(4)the sentence of 6 months' imprisonment on AR 7091/2018 was excessive;
(5)the total effective sentence of 28 months' imprisonment infringed the totality principle and was excessive.
After the appeal was commenced, the respondent advised the appellant that the magistrate who made the Second SIO had possibly erred in dealing with the breach of the First SIO under s 80 of the Sentencing Act. As has been noted, the term of the First SIO expired on 21 February 2017. Consequently, the First SIO was not in force when the magistrate resentenced the appellant for the November 2015 assault on 11 January 2018. The respondent contended the magistrate lacked power to resentence the appellant by making a further suspended imprisonment order once the period of the First SIO had expired.
The appellant commenced a further appeal in respect of the sentence imposed on 11 January 2018 for the November 2015 assault (SJA 1116/2019; the Second Appeal). The appellant alleged in that appeal that the magistrate erred in law by making another suspended imprisonment order when that was not an available sentencing option by reason of s 80(1)(c) of the Sentencing Act.
Leave to extend the time within which to appeal
The last date for commencing the First Appeal was 21 December 2018. The appeal notice was not filed until 13 February 2019. The last date for commencing the Second Appeal was 8 February 2018. Consequently, the appellant required an extension of time within which to commence both appeals.
The respondent did not oppose the applications for extending time. The appellant is granted leave to commence both appeals out of time having regard to the circumstances surrounding the appeals and the position taken by the parties at the hearing of the appeals.
The Second Appeal
Section 80 of the Sentencing Act deals with the consequences of reoffending during the period of a suspended imprisonment order. The section applies where the court is satisfied that a person has been convicted of an offence the statutory penalty for which is, or includes, imprisonment and the offence was committed during the suspension period of the order. Section 80(1) provides that the court must deal with a person under the section on being satisfied about those matters and, further, the court must:
… deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
In sentencing the appellant on 11 January 2018, the sentencing magistrate observed:
(1)the offences committed in June and November 2016 were committed during the period of the First SIO;
(2)section 80 of the Sentencing Act required the court to order the appellant serve the term of imprisonment imposed by the First SIO unless it was decided it would be unjust to make such an order in view of all of the circumstances that had arisen or become known since the First SIO was made;
(3)the fact that had become known was that on 24 December 2017 the appellant had been diagnosed with a mental health problem that impacted on his offending. Further, the appellant had pleaded guilty to the offences committed in June and November 2016 and had spent 3 months in custody. In the circumstances, it would be unjust to order that the appellant serve the term of imprisonment that had been suspended;
(4)the First SIO would be cancelled and a new suspended imprisonment order made.
It is clear from the sentencing transcript that the magistrate purported to exercise the power conferred by s 80(1)(c) of the Sentencing Act to substitute another suspension period for the period ordered under the First SIO. It appears his Honour overlooked the expiry of the suspension period for the First SIO. It is common ground between the parties that:
(1)the magistrate was required to deal with the appellant for the November 2015 assault under s 80(1) of the Sentencing Act;
(2)in dealing with the appellant for the November 2015 assault, the magistrate could not make an order under s 80(1)(c) of the Sentencing Act as the term of the First SIO had expired;
(3)the magistrate made an error of law in purporting to cancel the First SIO and substitute another suspension period;
(4)the magistrate's error was an error of law within the meaning of and for the purpose of s 8(1) of the Criminal Appeals Act 2004 (Cth) (CAA).
It has been accepted that s 14(2) of the CAA applies to an appeal from a sentence imposed by a court of summary jurisdiction.[1] In Powell v Tickner, Buss JA (as his Honour then was) considered that a substantial miscarriage of justice will not have occurred where a different sentence should not have been imposed even though it has been found that a sentencing magistrate made an express error of law.[2] However, in my view, there is no scope for an argument that a miscarriage of justice did not occur applying that principle in the circumstances raised by the Second Appeal. The magistrate did not have power to cancel the First SIO and to substitute a new suspension period under s 80 of the Sentencing Act. I consider a substantial miscarriage of justice will necessarily have occurred where a magistrate purports to exercise a power in sentencing that has not been conferred by the Sentencing Act.
[1] See Wallam v Dent [2008] WASC 170; Powell v Tickner [2010] WASCA 224.
[2] Powell v Tickner [116].
It follows the appellant should be granted leave to appeal in the Second Appeal and the appeal should be allowed. It is necessary for the appellant to be resentenced for the November 2015 assault.
The First Appeal
The respondent did not accept that any of the grounds of appeal in the First Appeal had merit. However, she submitted that the sentencing exercise undertaken on 23 November 2018 was so materially affected by the invalid suspended imprisonment order made on 11 January 2018 that the court's jurisdiction to intervene was enlivened in respect of all charges that were before her Honour at the sentencing hearing held on 23 November 2018. The appellant agreed with that submission.
I accept the court has power to intervene and resentence on all offences that were the subject of both appeals once an error occasioning a miscarriage of justice has been identified for a particular sentence. As the parties acknowledge, it is appropriate to do so in this instance because of the nature of the error and considerations of totality.
The effect of the CAA is that an appeal can only be allowed on a ground of appeal. The grounds of appeal in the First Appeal do not fully reflect a basis upon which the parties have agreed the court should intervene to resentence the appellant. Consequently it will be necessary for the appellant to amend the notice of appeal in the first, and possibly the second, appeal.
The facts of the appellant's offending
I will now turn to the facts on which the appellant is to be resentenced, again making it clear that I propose to resentence the appellant on all matters that were before her Honour on 23 November 2018 and I propose to make orders, to the extent that it is necessary, cancelling any of the suspended imprisonment orders that had been earlier made and which were activated by her Honour on 23 November 2018.
The court has not been provided with the sentencing transcript for the hearing on 22 February 2016. However, the facts alleged by the prosecutor for the November 2015 assault were read to the court at the sentencing hearing on 11 January 2018. The facts were accepted by the appellant through his counsel.
As at 16 November 2015, the appellant was a patient in the intensive care unit of the Bunbury Regional Hospital. He attempted to leave the intensive care unit early in the morning without being discharged. He became aggressive and left the unit, followed by security officers who were attempting to calm him. The victim, who was a hospital employee, walked around a corner as the appellant attempted to leave the hospital. The appellant punched the victim once to the face with a clenched fist. The force of the punch caused the victim's teeth to perforate his top lip. The wound required three stitches. The appellant was arrested for the offence on 21 January 2016. He told the police, 'I wasn't really in the right state of mind. I was messed up.'
Duty counsel appeared on behalf of the appellant at the sentencing hearing on 11 January 2018. In relation to the November 2015 assault, counsel advised the court that the appellant had attempted to leave the hospital after waking early on the morning of 16 November 2015. The appellant was not aware that he had been detained under the Mental Health Act 2014 (WA). He had tried to overdose on medication prior to his admission to hospital. It was submitted the appellant had pleaded guilty at the earliest reasonable opportunity. It was further submitted he had spent approximately three and a half months in custody and that was a matter that ought to be taken into account in determining whether to activate the suspended imprisonment order.
The reference to time spent in custody was to time following the appellant's arrest for the other offences that were dealt with on 11 January 2018. The appellant first appeared in the Magistrates Court on those offences on 6 September 2017. Bail was granted, but on conditions that included a requirement for a surety. The appellant was unable to obtain a surety and he remained in custody until 19 December 2017. The appellant's bail was varied on that date and he was remanded to appear again in court on 2 January 2018. However, he failed to do so and a warrant for his arrest was issued.
The transcript for the sentencing hearing on 11 January 2018 referred to a hearing the previous day in which the facts alleged for the offences committed on 15 June 2016 and 2 November 2016 were read. The magistrate did not repeat those facts in sentencing the appellant. The facts that follow are taken from the statements of material facts for those offences. I infer that the facts read to the court were the facts alleged in the statement of material facts and, as there is no indication to the contrary, the facts as read by the prosecutor were accepted by the appellant.
On 15 June 2016, the appellant was at home with the victim who was his housemate. There was an argument and the appellant punched the victim in the left eye. The victim asked the appellant to leave the house but he refused. He then head‑butted the victim. There was no allegation in the statement of material facts that the victim suffered a bodily injury and the charge made against the appellant was ultimately only for common assault.
The victims of the offences committed on 2 November 2017 were the appellant's sister and brother‑in‑law. The appellant was in an agitated and aggressive state while at his sister's house. He borrowed his sister's phone and slammed it on a kitchen benchtop, smashing the screen and pushing over a child's swing set and causing it to be damaged. Subsequently, the appellant went to his parent's house to again confront his sister. He continued to behave aggressively and punched his brother‑in‑law, knocking him unconscious. Again, there was no allegation that the victim suffered a bodily injury despite being knocked unconscious, and the appellant was ultimately charged only with common assault.
It was submitted on behalf of the appellant that he had pleaded guilty to the charges at the earliest reasonable opportunity after negotiations had resulted in the assault charges being amended to common assaults.
In relation to the assault committed on 27 February 2017, the appellant and the victim had entered a domestic relationship and were living at the victim's home in Coodanup. The appellant became angry over the victim exchanging text messages with her former partner. There was an argument and the victim asked the appellant to leave her house. He left but returned 20 minutes later and asked to be allowed into the house to collect clothing. The victim allowed the appellant to enter and he immediately started yelling at her. The victim fled through the front door of her house, intending to go to a neighbour. The appellant followed and grabbed the victim and brought her to the ground. He dragged her by her feet along brick paving to the front door of her house. The victim then managed to escape. She subsequently attended the Peel Health Campus and was treated for bruising and grazing to her head, throat, arms, back, thighs and buttocks.
On 15 March 2017, the appellant used an email address to post an advertisement on a website purporting to offer sexual services to be provided by the victim of the assault committed on 27 February 2017. The advertisement gave the victim's current mobile number and address, and as a result the victim was harassed by unsolicited text messages.
On 9 June 2018, the victim, being a different victim to the victim of the assault committed on 27 February 2017, and her daughter were at their home. The victim heard a bang at the front door and went to investigate. She opened the door to find the appellant standing on the doorstep. He abused the victim, pushed her in the chest, causing her to fall backwards. He then entered the victim's house, continued to threaten her and demanded cannabis. At one point, the appellant placed his hands around the victim's neck. At a later point, he placed his hand around her throat and shoved her to the ground. He then choked the victim until she almost lost consciousness. The appellant returned to the victim's house later that day; it appears that he was let into the house by the victim. Subsequently, an argument developed. The appellant grabbed the victim by the neck and pushed her into the door of a refrigerator. The victim telephoned a friend, and the appellant attempted to take away her phone and as he did so he punched her three times to the lower back area.
The appellant was subsequently arrested. He told the police he could not remember anything about the incident. On the same day, the police made an order protecting the victim and designating an address in Thornlie as a protected place. The following day, the police attended the protected place and found the appellant was at that place with the protected person.
Personal circumstances
A pre‑sentence report, dated 9 October 2018, and a psychological report, dated 11 November 2018, were prepared for the purpose of the sentencing hearing held on 23 November 2018. The facts stated in those reports were accepted by the appellant, subject to some additional comments made by his counsel at the appeal hearing.
The appellant was born on 2 July 1984. His parents separated when he was about eight years of age. He told the author of his psychological report, Ms Oliveri, that his mother had chronic alcohol problems. He told the author of his pre‑sentence report, Ms Swan, that she had mental health problems.
It appears that the appellant's relationship with his mother has been problematic throughout his life, and it would seem he feels rejected by her. The appellant's father died when the appellant was aged 19 years. There was a long period during the appellant's childhood and adolescence when he had no contact with his father following his parents' separation. The reports received by the court also indicated that the appellant has a difficult relationship with his siblings. His relationship with his family appears to have been marred by emotional and physical abuse, exacerbated by the appellant's behavioural problems. He is close to his maternal grandmother, however, and she has looked after him from time to time throughout his life.
The appellant has been diagnosed with attention deficient hyperactivity disorder, and insulin‑dependent diabetes. More recently, the appellant has been diagnosed as suffering from coeliac disease.
As an adolescent, he was admitted to the Bentley adolescent unit under a mental health order. The admission was related to his unwillingness to appropriately manage his diabetes. Sadly, the appellant reports having been sexually assaulted by an older man when he was about 19 years of age, which has left him with feelings of trauma and mistrust.
The appellant has an employment history. He has worked in a panel beating workshop and as an assistant in a fast food outlet and a sports retail shop. At about the age of 23 years, he commenced an apprenticeship as a chef. He did not complete the apprenticeship due to an argument with his employer. He has worked intermittently as a chef since that time, but there have been periods of unemployment. Most recently, the appellant has worked part time in landscaping. He wishes to start a business specialising in catering to people with food allergies.
The appellant has been involved in several significant intimate relationships. He admitted to Ms Oliveri that he has been verbally abusive in those relationships and physically violent in the relationship with the victim of the offences committed in June 2018. However, he was still in a relationship with the victim of those offences at the time that he was sentenced on 23 November 2018 and he told Ms Oliveri that she remains supportive of him.
The appellant admits to having used cannabis and methamphetamine. Ms Oliveri identified a number of other factors that have contributed to his past offending. She described the appellant as harbouring feelings of anger and resentment; he is highly emotionally dysregulated, chronically depressed, impulsive in his behaviour and overly dependent on partners. She considered the appellant was very anxious and there were issues of unresolved trauma.
There were many factors in the appellant's presentation that correlated with an increased risk of future domestic violence and assaults on partners. In Ms Oliveri's opinion, the appellant has complex treatment needs which might be addressed by individual counselling, dialectical behaviour therapy and appropriate medication. Counsel for the appellant advised at the appeal hearing that the appellant accepted he required counselling to address the causes of his offending, including behavioural therapy, to enable him to better regulate his emotional response to stressful situations and to control his anger.
The appellant was first convicted of a criminal offence in February 2005. The offence for which he was convicted was driving without a motor vehicle driver's licence. The appellant has other convictions for traffic offences. Prior to February 2016, the appellant had convictions for unlawful damage (2008 and 2014); misleading police (2009); possessing an article with intent to cause fear (2011); common assault (2014); and breach of a violence restraining order (2015). The appellant's criminal history indicates that personal deterrence is a factor in sentencing him for the offences the subject of these appeals.
Other sentencing factors
However, the appellant's criminal history is not so extensive as to suggest that his prospects of rehabilitation are remote. That is especially as he has a reasonably good employment history. Although he is not young, I consider that the total effective sentence to be imposed in resentencing the appellant should not be so severe as to extinguish those prospects in his mind.
However, general deterrence is a significant factor in sentencing the appellant for each of the offences he has committed. The community and the courts are greatly disturbed by the prevalence of violence in domestic relationships. Similarly, assaults committed on hospital workers and emergency service personnel have become common. Violence in any context is unacceptable. Violence directed at domestic partners or to hospital and emergency service workers must be severely punished so as to deter others from such unacceptable behaviour.
There is also considerable community concern about the use of social media as a form of a harassment. The need to deter others from committing this type of offence is a significant factor in sentencing for the misuse of a carriage service offence. It is also necessary, having regard to the nature of the offences committed by the appellant and the risk assessment undertaken by Ms Oliveri, to take into account the need to protect the community.
There are other factors that aggravate the seriousness of the appellant's offending: the vulnerability of his victims, the unprovoked nature of the assaults, the persistence of his offending against his victims, and the fact that the offences were committed while the appellant was subject to suspended imprisonment orders and on bail.
There are, however, factors that mitigate the seriousness of the appellant's offending. He pleaded guilty to the various charges alleged against him. He has, as I have noted, prospects of rehabilitation, and he has had a difficult and socially and emotionally deprived upbringing.
There was a suggestion that the appellant's aggressive and erratic behaviour might be explained by poor management of his diabetes. However, there was insufficient evidence to reach a conclusion about that suggestion, and in particular whether any problems the appellant had experienced were self‑induced. It was also said that the appellant has suffered abnormally while being held in custody due to dietary problems associated with his coeliac disease. I have taken that matter into account in resentencing the appellant, but it has only been given very limited weight.
Finally, I note that there is a history of mental health problems experienced by the appellant. The extent to which, if at all, the appellant's moral culpability and the issues concerning personal deterrence ought to be assessed in light of that history, was not clear from the sentencing transcripts or other materials before the court.
There is one further matter that should be mentioned. It is necessary to set aside the Second SIO, given the error made in dealing with the breach of the First SIO; indeed, it would appear necessary to set aside both SIOs. The respondent raised whether setting aside a suspended imprisonment order took effect ab initio or only prospectively.[3] In my view, it is not necessary to resolve that question in the circumstances of these appeals. The magistrate purported to activate the suspended imprisonment orders in sentencing the appellant on 23 November 2018 and, in substance, the appeals are concerned with the total effective sentence imposed at that hearing.
[3] Delahunty v Sinden [2019] WASC 91; Dreja v The State of Western Australia [2012] WASCA 151.
It is proposed to resentence the appellant for all offences that were dealt with by her Honour on 23 November 2018. That is consistent with the approach taken by the parties and is in my view the most practical way of giving effect to the findings that have been made in the appeals, including considerations of totality on resentencing. In effect, the Second SIO is being treated as void ab initio. It may well be that the First SIO is also being treated as void ab initio.
Resentencing the appellant
I turn now to the resentencing of the appellant, starting with the November 2015 assault. I have reviewed a number of cases which have considered sentences imposed for assaulting a public officer. It is difficult to discern a pattern in sentencing for the offence, partly because of the significant differences in the seriousness of the offending and partly because most appeals have involved questions of totality in sentencing for multiple offences.
At the sentencing hearing held on 11 January 2018, the magistrate referred to the appellant's pleas of guilty to the offences committed in June and November 2016, to the fact that the appellant had been in custody for three months and to a diagnosis the appellant received on 24 December 2017. His Honour mentioned those matters and concluded it would be unjust to activate the First SIO. However, it is not clear how the appellant's pleas and time spent in custody were otherwise taken into account in fixing the terms of imprisonment imposed for each offence. There was no reference to s 9AA of the Sentencing Act or to any percentage amount by which the sentences have been reduced on account of the appellant's pleas of guilty. Further, the appellant had spent approximately three and a half months in custody following his arrest for the offences committed in June and November 2016. The time spent in custody was in respect of those offences and not strictly on account of the November 2015 assault.
I accept that the appellant pleaded guilty at the first reasonable opportunity following his arrest for the November 2015 assault. He was arrested on 22 January 2016 and first appeared in the Magistrates Court on 28 January 2016. He pleaded guilty and was sentenced for the offence on 26 February 2016. The sentence to be imposed for this offence will be reduced by 25% pursuant to s 9AA of the Sentencing Act.
It was not submitted that the term of imprisonment imposed for the November 2015 assault was manifestly excessive. However, the head sentence would have been approximately 10 months to arrive at a sentence of 7 months if the sentence had been reduced by 25% on account of the appellant's plea of guilty.
In determining the seriousness of the offence, I have taken into account the circumstances in which the appellant was admitted to the Bunbury Regional Hospital. He was detained pursuant to an order made under the Mental Health Act, he committed the offence on waking early the following morning and, I infer, in a disorganised and confused state.
In the circumstances, I would resentence the appellant to a term of imprisonment of 6 months having regard to the fact that one blow was struck, the appellant pleaded guilty at the earliest reasonable opportunity and there were other mitigating factors to be taken into account in his favour. The sentence will be treated as the head sentence for the purpose of the resentencing exercise.
It was also not submitted that the sentences imposed for the offences in June and November 2016 were manifestly excessive. However, as has been noted, it appears the magistrate only took into account the time the appellant had spent in custody in respect of those offences in deciding it would be unjust to activate the First SIO. In my view, the time spent in custody must be taken into account in resentencing the appellant for the June and November 2016 offences.
Further, it is not possible to ascertain from the magistrate's sentencing remarks how the appellant's pleas of guilty were taken into account in fixing the terms of imprisonment imposed for the offences. It was submitted on behalf of the appellant at the sentencing hearing on 11 January 2018 that he had pleaded guilty to the offences at the first reasonable opportunity after the charges were amended. The prosecutor did not contest that submission and accordingly, I accept that the appellant is entitled to have the sentences imposed for the offences committed in June and November 2016 reduced by 25% pursuant to s 9AA of the Sentencing Act.
No submissions were made on behalf of the appellant about the circumstances in which the offences were committed at the sentencing hearing held on 11 January 2018. It is to be inferred that nothing can be taken into account in the appellant's favour from the circumstances of his offending. In my view, the following sentences should be imposed for the offences committed in June and November 2016 after allowing for the appellant's pleas of guilty and time spent in custody and all other aggravating and mitigating factors:
(1)on charge BU 4655/2017, a term of imprisonment of 2 months;
(2)on charge BU 4656/2017, a term of imprisonment of 1 month;
(3)on charge BU 6605/2017, a term of imprisonment of 1 month, which I have reduced from 4 months on account of the time spent in custody.
I will order that the sentence imposed on charge BU 4655/2017 be served cumulatively on the sentence imposed on charge BU 320/2016. The sentences imposed on charges BU 4656/2017 and BU 6605/2017 are to be served concurrently with the sentences imposed on all other charges on grounds of totality: first, a single transaction consideration in relation to the offences committed on 2 November 2016 and secondly, on grounds of totality in looking at the entire resentencing exercise.
At the sentencing hearing on 23 November 2018, the magistrate first reduced the sentences that would otherwise have been imposed for the offences committed on 27 February and 15 March 2015 by 15% on account of the appellant's pleas of guilty. The magistrate reduced the sentences that would otherwise have been imposed for the offences committed in June 2018 by 25% on account of the appellant's pleas of guilty. The magistrate also noted that the appellant had spent six months in custody and reduced the term of imprisonment imposed on activating the Second SIO by six months.
The appellant alleged by his grounds of appeal that the magistrate had failed to take into account the time the appellant had spent in custody in sentencing him for the 2017 and 2018 offences. However, as the respondent submitted, the time spent by the appellant in custody was taken into account by reducing the terms of imprisonment imposed on activating the Second SIO. The total term of imprisonment imposed for the offences that would have been the subject of both suspended imprisonment orders was 14 months. The magistrate ordered that the terms of imprisonment imposed for the offences the subject of the First SIO and the Second SIO should be reduced to eight months on account of the time spent in custody.
In resentencing the appellant, it is necessary to take into account the time spent in custody prior to 23 November 2018. Putting to one side the time the appellant spent in custody prior to being sentenced on 23 November 2018, but allowing for a reduction in sentence on account of the appellant's pleas of guilty in the percentage amount identified by the magistrate – that is, 15% for the first two offences and 25% for the remaining three offences – I would resentence the appellant as follows (before taking into account the time spent by the appellant in custody):
(1)on charge BU 4652/2017, 8 months' imprisonment;
(2)on charge MH 28/2018, 6 months' imprisonment.
The sentence imposed on charge MH 28/2018 (the misuse of a carriage service) is substantially different to that imposed by the magistrate. In my view, the sentence imposed by her Honour was, with respect, manifestly inadequate having regard to the seriousness of the offence, the need for general deterrence, the malice with which the offence was committed and the danger that the offence could have posed to the victim. The offence was, in my view, a very serious offence and the sentence of 1 month imprisonment did not adequately reflect the seriousness of the offending, particularly given the risk that it posed to the victim. I have accepted, however, in arriving at 6 months that it would appear from the statement of material facts and the facts on which the appellant was sentenced that the victim was harassed only by text messages although I do not in any way wish to minimise how unpleasant the experience must have been for her, but she did not come to any physical harm. She was not threatened. She was not confronted by any person who might have read the advertisement placed by the appellant.
On charge AR 7083/2018, a term of 2 months' imprisonment will be imposed. I infer from the facts, as alleged and accepted, that the victim allowed the appellant to return to the house where they were both living, even though this had been the subject of a police order. It is a sad fact that many victims of domestic violence allow the abuser to return to the domestic situation and resume the domestic relationship. Nevertheless, it appears that the victim voluntarily allowed the appellant to return to the protected place and resumed her relationship with the appellant. I would order that the sentence imposed on AR 7083/2018 be served concurrently with all other terms of imprisonment that are to be imposed again on considerations of totality.
On charge AR 7090/2018, a term of 3 months' imprisonment will be imposed and on charge AR 7091/2018, a term of 4 months' imprisonment.
That means that the total effective sentence imposed for the offences committed in 2017 and 2018 before taking into account time spent in custody is 22 months. Six months on account of time spent in custody must be deducted from that total.
I have ordered that the sentence of 6 months for the assault on the hospital employee stand as the head sentence, so that the 16 months which will be the ultimate total effective sentence for the offences committed in 2017 and 2018 will be accumulated. I have also imposed the sentence of 2 months' imprisonment cumulative for the assault that was committed on 15 June 2016.
The effect of the accumulations of the various sentences that I have imposed is that the total effective sentence is 24 months. That sentence will be backdated to 23 November 2018 and a parole eligibility order will be made, which would mean that the appellant would first be eligible to be released on parole at the end of November.
Accordingly, the appellant is resentenced as follows:
(1)on charge BU 320/2016, a term of imprisonment of 6 months. That term of imprisonment will be the head sentence;
(2)on charge BU 4655/2017, a term of imprisonment of 2 months. That term of imprisonment is to be served cumulatively on the term imposed on charge BU 320/2016;
(3)on charge BU 4656/2017, a term of imprisonment of 1 month. That term of imprisonment is to be served concurrently with all other terms of imprisonment.
(4)on charge BU 6605/2017, a term of imprisonment of 1 month. That term of imprisonment is to be served concurrently with all other terms of imprisonment. That term has been reduced on account of time spent in custody;
(5)on charge BU 4652/2017, a term of imprisonment of 6 months. That term of imprisonment has been reduced from 8 months to 6 months on account of time spent in custody and is to be served cumulatively on the term imposed on charge BU 320/2016 and BU 4655/2017;
(6)on charge MH 28/2018, a term of imprisonment of 4 months. That term of imprisonment has been reduced from 6 months on account of time spent in custody and is to be served cumulatively on the terms of imprisonment imposed on charges BU 320/2016, BU 4655/2017 and BU 4652/3027.
(7)on charge AR 7083/2018, a term of imprisonment of 1 month. That term of imprisonment is to be served concurrently with all other terms of imprisonment;
(8)on charge AR 7090/2018, a term of imprisonment of 2 months. That term has been reduced from 3 months on account of time spent in custody and is to be served cumulatively on the terms of imprisonment imposed on charges BU 320/2016, BU 4655/2017, BU 4652/3027 and MH 28/2018;
(9)on charge AR 7091/2018, a term of imprisonment of 4 months. That term of imprisonment has been reduced from 4 months to 3 months on account of time spent in custody and is to be served cumulatively on the terms of imprisonment imposed on charges BU 320/2016, BU 4655/2017, BU 4652/3027, MH 28/2018 and AR 7090/2018.
The total effective sentence that I am imposing is, therefore, 24 months' imprisonment. The terms of imprisonment will be backdated to 23 November 2018 and a parole eligibility order will be made.
As mentioned earlier, it will be necessary for the appellant to amend his grounds of appeal to reflect the submissions made in the appeals and the basis upon which the sentences imposed in the Magistrate Court have been set aside. These amendments ought not to be controversial. Accordingly, it is proposed that final orders in the appeal should be made by consent or on the papers unless there is a substantive question which, in the reasonable opinion of one or both parties, requires a further hearing to be convened.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy26 NOVEMBER 2019
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