Chatfield v Badman
[2015] ACTSC 209
•29 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chatfield v Badman |
Citation: | [2015] ACTSC 209 |
Hearing Date: | 29 July 2015 |
DecisionDate: | 29 July 2015 |
Before: | Murrell CJ |
Decision: | Appeal allowed. See [27]. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Criminal – whether sentence manifestly excessive – objective seriousness – possess prohibited weapon |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 12, 35, 35(2), 35(3), 37 Magistrates Court Act 1930 (ACT) ss 208, 214 Prohibited Weapons Act 1996 (ACT) s 5, sch 1 |
Cases Cited: | Cotter v Corvisy [2008] ACTSC 64 Hawkins v Hawkins [2009] ACTSC 148 R v Okwechime [2015] ACTSC 129 |
Parties: | Bertha Elizabeth Chatfield (Appellant) John Lindsay Badman (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Ms M Lucero (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 25 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 4 March 2015 Case Title: Badman v Chatfield Court File Number: CC 90 of 2015 |
MURRELL CJ:
Background
The appellant pleaded guilty in the Magistrates Court to the offence that she possessed a prohibited weapon (a hand-held electrical device) contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). This offence carries a maximum available penalty of five years’ imprisonment, capped at two years where the sentence is imposed by the Magistrates Court.
The appellant was convicted and sentenced to three months’ imprisonment. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence was wholly suspended upon the appellant undertaking to be of good behaviour for 12 months. The core conditions of the undertaking were not supplemented by additional conditions.
The appellant appealed against the sentence on the ground that it is manifestly excessive. In submissions, the appellant relied on the combination of the following alleged errors:
(a)The Magistrate erred in characterising the offence as falling within the medium range of objective seriousness.
(b)The Magistrate failed to indicate the nature of any discount allowed for the plea of guilty made at the first available opportunity.
(c)The sentence does not take proper account of the appellant’s limited criminal history and other subjective circumstances.
(d)The Magistrate erred in concluding that the only available sentence was one of imprisonment.
Nature of the Appeal
The appeal is brought pursuant to s 208 of the Magistrates Court Act 1930 (ACT). Under s 214 of Magistrates Court Act, the Supreme Court must have regard to the evidence given in the proceedings before the Magistrates Court, and has the power to draw inferences of fact.
On many occasions, this Court has held that a sentence appeal under s 208 of the Magistrates Court Act is an appeal of a type discussed in House v The King (1936) 55 CLR 499: see, e.g., Kennewell v Rand [2006] ACTCA 10 and Hawkins v Hawkins [2009] ACTSC 148. The Court will intervene only if there is an express error of law or fact, or where error can be implied because the sentence falls outside the available sentencing range. Sentencing is a quintessentially discretionary exercise in which the sentencing court endeavours to address many different (and often conflicting) sentencing purposes. Consequently, it is difficult for an appellant to successfully argue that a sentence is manifestly excessive or manifestly inadequate.
Facts before the Magistrates Court
On 29 August 2014, police executed a search warrant at the appellant’s premises. They located a small quantity of cannabis, for which they issued a Simple Cannabis Offence Notice. The appellant was required to pay a fine for that offence. In a drawer of the table beside the appellant’s bed, police located an item that was disguised as an Apple iPhone. The item had two probes that produced an audible electric crack. Similar devices are designed to administer an electric shock on contact. It was determined that the device was a prohibited weapon under the Prohibited Weapons Act. The appellant did not hold a prohibited weapons or articles permit and was not authorised to be in possession of the device.
The appellant knew that the device was capable of delivering an electric shock to a recipient. She had purchased the item for $50 for personal protection. However, she had never been able to operate the device because, at the time of purchase, she had failed to acquire a battery charger. The device sat in a bedroom drawer, unused.
The appellant has a relatively insignificant criminal history. The two relevant entries are a conviction for harming a Commonwealth public officer in 2009 (resulting in a 12 month good behaviour order) and a conviction for assault occasioning actual bodily harm in 2002 (resulting in a four month suspended sentence). The appellant’s criminal record includes no matters involving the possession or use of a weapon. Generally, her contact with the criminal justice system has diminished over the years.
The appellant submitted to the Magistrate that she was a 45 year old woman who lived with her two children and received a disability support pension. She suffered from anxiety and depression as well as emphysema.
Objective Seriousness
The Magistrate noted in his reasons for sentence that:
(a)The appellant had bought the weapon knowing that possession was illegal. His Honour described this as “an aggravating feature”.
(b)The weapon was disguised as an iPhone.
(c)At the date of the offence, the weapon was not operational.
His Honour described the offence as “[falling] within the medium range of objective seriousness”.
When considering the objective seriousness of an offence of this type, it is necessary to consider both the nature of the particular prohibited weapon and the nature of the offender’s conduct vis-à-vis that weapon.
In this case, the offence could not be characterised as one of medium objective seriousness.
(a)There was no evidence that the device was operational, or that the appellant had ever operated or had the capacity to operate it.
(b)There was no evidence that the device was capable of doing more than merely startling the recipient with a shock. There was no evidence that the device was capable of stunning or otherwise incapacitating the recipient.
(c)There was no evidence that the appellant had ever taken the device outside her home or that she had possessed (let alone had produced) it in the company of others. Consequently, the fact that it was disguised was a matter of relatively little importance.
(d)Possession of the device was not associated with the appellant’s involvement in an offence of violence, or any suggestion that she had or may be involved in such an offence. There was no evidence to suggest that the device was connected with any other illegal activity. For example, there was no evidence to suggest that it had been acquired for protection in relation to drug dealing.
(e)The weapon was not one of the most serious types of prohibited weapon. It was a prohibited weapon by virtue of being an “other prohibited weapon” within Part 1.4 of Schedule 1 to the Prohibited Weapons Act. Part 1.4 also includes bombs, grenades and devices capable of killing or incapacitating someone.
(f)The objective seriousness of the offence must be measured against the range of conduct captured by the offence provision. Section 5 of the Prohibited Weapons Act provides that a person commits an offence if they either possess or use a prohibited weapon without authority to do so. Generally speaking, offences involving the use of a prohibited weapon will be more objectively serious than those involving the possession of a prohibited weapon. Of course, it always depends upon the circumstances of the particular use or possession.
The respondent referred to the cases of R v Ayoub (Unreported, Supreme Court of the ACT, Nield AJ, 4 July 2012) and R v Okwechime [2015] ACTSC 129, where the offenders received a sentence of imprisonment for the offence of possessing a prohibited weapon. However, those cases involved offences that were much more objectively serious than the present offence, and where the offender had demonstrated a persistent flouting of the law. The objective seriousness of those matters was presumably the reason that each was prosecuted in the Supreme Court.
Discount for Plea of Guilty
The Magistrate referred to the correct maximum available penalty and was well aware that the appellant’s plea of guilty had been entered at the first possible opportunity. However, his Honour did not indicate the manner in which the plea of guilty lessened the sentence, if at all.
Section 35 of the Sentencing Act applies when an offender pleads guilty to an offence and the sentencing court “considers that there is a real likelihood that it will sentence the offender to imprisonment.” In those circumstances, having considered the matters set out in s 35(2) of the Sentencing Act, the court may impose a lesser penalty than it would have imposed if the offender had not pleaded guilty: s 35(3) of the Sentencing Act.
Section 37 of the Sentencing Act provides, that if the court decides to impose a lesser penalty under s 35, then:
...
(2)The court must state—
(a)the penalty (including any shorter nonparole period) it would otherwise have imposed.
In Cotter v Corvisy [2008] ACTSC 64 at [57], Refshauge J discussed s 37 of the Sentencing Act. Without deciding whether noncompliance with s 37 invalidated a sentence, his Honour articulated the impression that failure to comply with s 37 did not invalidate a sentence. I am of the same impression.
Nevertheless, it is highly desirable that a sentencing court give some indication of the manner in which a plea of guilty has been taken into account. First, the particular offender is entitled to know the impact of their important decision to forego the entitlement of requiring the prosecution to prove its case beyond reasonable doubt. Second, the articulation of discounts provides guidance to others who may be considering whether it would be advantageous to enter a plea of guilty.
Sometimes the extent of the discount given for a plea of guilty is apparent from the end result. For example, a sentence of seven months and two weeks’ imprisonment may itself indicate that the starting point was a sentence of 10 months’ imprisonment. However, no such inference can be drawn from the sentence of three months that was imposed in this case.
While the manner in which s 35 of the Sentencing Act should be applied is not free from doubt (see Monfries v The Queen [2014] ACTCA 46 at [30] – [45]), it is usual practice for a plea entered at the earliest reasonable opportunity to attract a discount of 25% on the sentence that would otherwise have been imposed.
The appellant was entitled to know what (if any) discount she received for pleading guilty.
Subjective Circumstances
The Magistrate canvassed the most important features of the appellant’s subjective circumstances. There is no reason to think that his Honour failed to consider these matters. Rather, there is reason to believe that the significance of the subjective circumstances may have been overshadowed by the erroneous view that the offence was one of medium objective seriousness.
Was imprisonment the only appropriate penalty?
Section 10(2) of the Sentencing Act applies where a court is sentencing an offender for an offence that is punishable by imprisonment. It provides:
(2)The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
This Magistrate referred to s 10 of the Sentencing Act. His Honour was aware that a sentence of imprisonment may be imposed only if no other penalty is appropriate. His Honour considered that imprisonment was the only appropriate penalty because he took the view that the offence was of medium objective seriousness. In the context of the finding that the offence was of medium objective seriousness, the sentencing purpose of general deterrence appears to have dominated the determination of an appropriate sentence. As the appellant had no history of similar matters, the Magistrate specifically found that there was no need for personal deterrence.
For the reasons stated above, the Magistrate erred in his assessment of the objective seriousness of the offence.
The objective and subjective circumstances relating to the offence do not dictate that a sentence of imprisonment is the only appropriate penalty. In my view, the relevant sentencing purposes are general deterrence, punishment, accountability, denunciation and rehabilitation, and a good behaviour order is adequate to address those sentencing purposes.
Orders
I make the following orders:
(a)The appeal is allowed.
(b)The sentence of imprisonment imposed by the Magistrates Court is set aside.
(c)In lieu, I make a good behaviour order requiring the offender to sign an undertaking to comply with the offender’s good behaviour obligations for a period of 18 months from today, 29 July 2015.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 31 July 2015 |
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