Collard v Peden
[2017] WASC 32
•15 FEBRUARY 2017
COLLARD -v- PEDEN [2017] WASC 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 32 | |
| Case No: | SJA:1067/2016 | 14 DECEMBER 2016 | |
| Coram: | TOTTLE J | 15/02/17 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted in respect of grounds 1 and 3 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JULIE MAY COLLARD JAMES MICHAEL PEDEN GREGOR HART JASON BRUCE FRASER SIMON WILLIAM HILL JOSHUA HORNSY GURBINDER SINGH SIDHU CLAIRE ANNE NIELD |
Catchwords: | Criminal law Sentencing Common assault, criminal damage, disorderly behaviour, stealing, threats to injure Whether total effective sentence of 18 months infringed first limb of totality principle Mentally impaired offender Whether magistrate erred in failing to suspend Whether magistrate erred by sentencing on incorrect basis |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code 1913 (WA) |
Case References: | Bransby v The Queen [2010] WASCA 165 Clinch v The Queen (1994) 72 A Crim R 301 Fogg v The State of Western Australia [2011] WASCA 11 Giglia v The State of Western Australia [2010] WASCA 9 Gillespie v The State of Western Australia [2016] WASCA 216 Mitchell v Purvis [2016] WASC 351 Plant v Harrington [2010] WASC 364 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAMES MICHAEL PEDEN
First Respondent
GREGOR HART
Second Respondent
JASON BRUCE FRASER
Third Respondent
SIMON WILLIAM HILL
Fourth Respondent
JOSHUA HORNSY
Fifth Respondent
GURBINDER SINGH SIDHU
Sixth Respondent
CLAIRE ANNE NIELD
Seventh Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R HUSTON
File No : FR 2559 of 2016, FR 2560 of 2016, FR 2561 of 2016, PE 33560 of 2015, PE 33561 of 2015, PE 33777 of 2015, PE 34220 of 2015, PE 34221 of 2015, PE 34222 of 2015, PE 34223 of 2015, PE 38618 of 2015, PE 38619 of 2015, PE 63209 of 2015, PE 3909 of 2016, PE 7379 of 2016, PE 14227 of 2016, PE 14244 of 2016, PE 14245 of 2016
Catchwords:
Criminal law - Sentencing - Common assault, criminal damage, disorderly behaviour, stealing, threats to injure - Whether total effective sentence of 18 months infringed first limb of totality principle - Mentally impaired offender - Whether magistrate erred in failing to suspend - Whether magistrate erred by sentencing on incorrect basis
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA
Result:
Leave to appeal granted in respect of grounds 1 and 3
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
First Respondent : Mr B M Murray
Second Respondent : Mr B M Murray
Third Respondent : Mr B M Murray
Fourth Respondent : Mr B M Murray
Fifth Respondent : Mr B M Murray
Sixth Respondent : Mr B M Murray
Seventh Respondent : Mr B M Murray
Solicitors:
Appellant : Legal Aid (WA)
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)
Seventh Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bransby v The Queen [2010] WASCA 165
Clinch v The Queen (1994) 72 A Crim R 301
Fogg v The State of Western Australia [2011] WASCA 11
Giglia v The State of Western Australia [2010] WASCA 9
Gillespie v The State of Western Australia [2016] WASCA 216
Mitchell v Purvis [2016] WASC 351
Plant v Harrington [2010] WASC 364
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193
Wilson v The State of Western Australia [2010] WASCA 82
TOTTLE J:
Introduction
1 On 9 August 2016, the appellant was sentenced in the Magistrates Court at Perth to a term of imprisonment of 18 months and $2,500 in fines. The sentence comprised individual sentences for 18 offences under the Criminal Code 1913 (WA) (the Code) committed between July 2015 and March 2016. The sentences of imprisonment were backdated to 9 April 2016 and the appellant was made eligible for parole. The sentences imposed are set out in the following table.
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Total imprisonment |
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2 The appellant seeks leave to appeal against the terms of imprisonment that relate to 10 of the 18 offences.
Grounds of Appeal
3 The proposed grounds of appeal are as follows:
1. The learned sentencing magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.
2. The learned sentencing magistrate erred in failing to suspend the sentence imposed, when in all of the circumstances it was appropriate to do so.
3. In relation to charge PE 33560 of 2015, the learned sentencing magistrate erred in sentencing the appellant on the basis that the offence was one of criminal damage when, notwithstanding the description of the offence on the prosecution notice, the substance of the charge alleged unlawful damage.
4 In respect of ground 3, the respondent concedes that the magistrate erred by treating the charge as an offence of wilful damage rather than one of unlawful damage. The respondent does not concede that the error is material, in the sense of affecting the magistrate's characterisation of the overall criminality of the offending and the sentence imposed. As none of the grounds except for ground 3 rely on allegations of express error, it is unnecessary for me to canvass the magistrate's remarks in detail.
Leave to appeal
5 The court must not grant leave to appeal in respect of a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act 2004 (WA). A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable: Samuels v The State of Western Australia [2005] WASCA 193.
Ground 1 - is the sentence disproportionate to the overall level of criminality
Principles applicable to sentencing appeals
6 The principles applicable to appeals against sentence are described in Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA). Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently: Gillespie v The State of Western Australia [2016] WASCA 216 [40].
The Totality Principle
7 The appellant contends that the sentence imposed is disproportionate to the overall criminality of the offending in all the circumstances, which include not only the seriousness of the offending but the appellant's personal circumstances. This contention engages the first limb of the totality principle.
8 The first limb of the totality principle requires that a court sentencing an offender for a number of offences must ensure that the aggregate of the sentences appropriate for each offence bears a proper relationship to the total criminality involved in all of the offences, viewed in their entirety and having regard to all of the relevant circumstances, including the offender's personal circumstances and the total effective sentences imposed in comparable cases: Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA (as her Honour then was), Steytler P & Miller JA agreeing).
9 Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: Roffey [26]. A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved: Giglia v The State of Western Australia [2010] WASCA 9 [42] (Owen JA, McLure P & Pullin JA agreeing).
10 It has also been recognised that the severity of a sentence may increase exponentially relative to the increase in length of the sentence: Clinch v The Queen (1994) 72 A Crim R 301, 306 (Malcolm CJ). The totality principle, however, is not a means by which an offender can escape condign punishment for a series of offences of the same nature committed over a period of time: Bransby v The Queen [2010] WASCA 165 [38].
11 Generally, where there is a challenge on totality grounds, the severity of a sentence imposed on an individual charge will fall to be assessed in light of the sentences imposed in respect of the other charges and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other charges. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively: Giglia v The State of Western Australia [2010] WASCA 9 [39] - [41] (Owen JA, McLure P & Pullin JA agreeing).
Circumstances of the appellant's offending
12 The following factual background is drawn from the transcript of the sentencing hearing. The facts are not disputed. The charges arise from several episodes of offending on seven separate days over almost eight months, between July 2015 and March 2016.
Offending at around 2.08 pm on 13 July 2015 at BWS liquor store, West Leederville - PE 34220 - 34223 of 2016
13 The appellant walked into the store and asked the shop attendant, who was standing at the counter, to call a taxi. The shop attendant did so and the appellant left the store. Not long afterwards the appellant returned to the store and slammed her handbag on the counter. She grabbed two unopened bottles of wine by the neck and pointed the bottles at the attendant and a bystander, who was standing near the front door speaking to the attendant. She then yelled at the shop attendant and demanded her 'cards' - by which it was understood she meant her bank cards. The attendant told her he did not have them. The appellant then pointed the bottle in her right hand towards the face of the bystander, who moved back to avoid contact, and said, 'I will split your head open and slit your throat'. She repeated this. (Threat to injure).
14 She then hit a bottle on the counter, near the shop attendant, then smashed both bottles by throwing them onto the floor. (Criminal damage).
15 The attendant called the police. The appellant spoke to police officers over the phone and repeated her threat. The appellant picked up her bag and walked out of the store, taking three bottles of champagne. (Stealing).
Offending at around 2.45 pm on 13 July 2015 outside Perth train station - PE 33777 of 2015
16 The police were called to an incident near the Perth train station where the appellant had allegedly assaulted a taxi driver. (The driver drove away before the police arrived and no complaint was made.) The appellant was wearing only a G-string and a jumper and had with her the three stolen bottles of champagne. She was taken to the police station for questioning about the champagne.
17 In the prison elevator the appellant 'groped' a male police officer in full view of other officers. When placed in the charge room she ripped her shirt open and sat on the bench with her legs spread. She requested medical treatment and was given a pair of pants, a shirt, and wrapped in a blanket and taken to Royal Perth Hospital.
18 In the middle of the hospital waiting room, the appellant removed the blanket, exposing her breasts, and began to yell obscenities. The appellant was given a cup of water that she threw to the floor. The appellant's actions were witnessed by nurses and members of the public. (Disorderly behaviour in public.)
Offending at around 8.00 pm on 13 July 2015 at Liquor Barons, West Perth - PE 33560 & 33561 of 2015
19 The appellant, who appeared to be drug affected, asked the shop attendant for alcohol. The attendant refused. The appellant picked up a bottle of alcohol and the attendant took it from her. The appellant swore and shouted at the attendant and ran behind the counter and grabbed another bottle. The attendant took hold of the appellant and pushed her out of the store. The appellant picked up an advertising board and threw it at the attendant. The board narrowly missed the attendant (common assault) and hit the wall of the shop, damaging the board (criminal damage).
Offending at around 11.30 pm on 26 July outside Anytime Deli and Puma Service Station, Burswood - PE 38618 & 38610 of 2015
20 The appellant was standing outside Anytime Deli, in Burswood, at a pay phone when police officers approached her about an unrelated matter. The appellant ran across the road to the Puma Service Station, ran around the pumps, and tried to enter the rear of a vehicle waiting in the car bay in the forecourt but was unsuccessful. She then ran towards the service station doors, yelling and shouting at the police whilst doing so. The attendant at the service station locked the door before she could get inside. The appellant turned to face police and continued to yell and shout.
21 The appellant then removed her jeans and T-shirt and stood naked outside the shop. When police tried to arrest her, she lashed out by kicking and swinging her fists. During the struggle the appellant grabbed an officer's firearm and attempted to remove it from the holster but the police prevented her from doing so. She was subsequently restrained and handcuffed. Afterwards, the appellant said, 'I'm sorry, I just got out of prison.' (Obstructing public officers and disorderly behaviour in public.)
Offending commencing around 11.30 pm on 20 December 2015 at the 24-Hour McDonald's restaurant, Mirrabooka - PE 63209 of 2015
22 The inside of the McDonald's was closed to the public. Customers were served at the drive-through. The appellant rode her pushbike through the drive-through and attempted to order a drink through the intercom, but was refused by the manager, who told her that she would not be served because she was not in a vehicle. The appellant then pushed her bike forward to the service window and spat at the manager's face, hitting him on the glasses and face. (Common assault). The appellant got back on her pushbike and rode away. When police located her, she made full admissions and said, 'He should have had some common sense. He deserved it.'
Offending at around 4.55 am on 14 January 2016 on Fitzgerald Street, Northbridge - PE 3909 of 2016
23 The appellant approached a taxi that was driving along Fitzgerald Street. The taxi slowed and the appellant approached the driver's side of the taxi. She attempted to push the window down, she then reached inside and grabbed the indicator lever and cruise control lever and snapped both. Repairs are estimated to be $500. (Criminal damage.)
Offending at around 7.20 pm on 8 February 2016 at the Mirrabooka police station - PE 7379 of 2016
24 The appellant attended the police station as required by bail undertaking and appeared to be under the influence of an unknown substance. She was told that she had a warrant and was under arrest. She immediately became aggressive and belligerent. She shouted obscenities, began frothing at the mouth and screaming loudly, whilst police tried to calm her down. A mental health team member was contacted to speak with the appellant. (Disorderly behaviour in a police station or lock-up.)
Offending commencing at about 9.30 am on 6 March 2016 at St Ives Independent Living Residences, Murdoch - FR 2259 - 2261 of 2016
25 The appellant jumped a fence into the St Ives Independent Living Residences. She approached an elderly resident and began shouting and swearing at her in a loud voice. These actions were observed by two residents who came to the aid of the elderly resident. The appellant was told to leave and continued to shout and swear before walking away. (Disorderly behaviour in public.)
26 Whilst in the grounds of St Ives the appellant approached an elderly woman and demanded that she hand over her money. The woman replied that she had none, at which point the appellant put her hands in the woman's pocket and pulled out the woman's house keys. (Stealing from person of another). The woman snatched the keys back and the appellant walked away.
27 At around 9.40 am, still at St Ives, the appellant got into a Yamaha motorised buggy that was parked outside the administration offices with the keys in the ignition. The appellant drove the buggy out of the grounds and abandoned it. The appellant was taken to the hospital by a member of the public. A set of Yamaha keys were recovered by police from the appellant, but the buggy was not found. (Stealing).
Offending at around 7.30 am on 11 March 2016 in Murray Street Mall, Perth - PE 14227 of 2016
28 The appellant was witnessed on CCTV in the mall shouting and, as described by the prosecution, 'becoming physical with passers-by'. She was also observed walking into shops within the area and causing a nuisance by pushing items over and shouting at workers. Police detained the appellant. She openly admitted to being under the influence of ice and continued to yell and shout. (Disorderly behaviour in public.)
Offending at around 9.15 am also on 11 March 2016 at Council House, St Georges Terrace, Perth - PE 14244 & PE 14245 of 2016
29 The appellant was observed on CCTV walking in an erratic manner towards Council House. She walked to the rear of Council House, opened the back door, and walked down the hallway until she ended up in the staff room. (Trespassed on a place without lawful excuse).
30 A female staff member saw her and asked her what she was doing there. The appellant responded, but was incoherent and could not be understood. A male staff member was called and he escorted the appellant out of the building.
31 The appellant had taken a 500 ml carton of milk valued at $3.00, which she was seen drinking when police caught her at the rear of Council House. (Stealing).
Appellant's personal circumstances
32 The appellant was born in May 1976. She was 39 years of age at the time of her offending. She was single, unemployed and homeless at the time of her arrest.
Family background and relationships
33 The appellant was born in rural Western Australia and is one of six siblings. Her parents had a good relationship. Her father was always employed, but he abused alcohol. He died when she was 13 years of age. Her relationship with her family members is strained due to her ongoing drug abuse.
34 The appellant has no children. She has had two significant relationships. The first relationship lasted for five years and was marred by illicit substances abuse and domestic violence. During this relationship, the appellant suffered a miscarried pregnancy due to her illicit substance abuse. The appellant's second relationship lasted six years, during which time she lived in Victoria. She returned to this State when that relationship ended.
Education, employment and financial situation
35 The appellant completed school at year 10. Her employment history is limited. At the time of the offending she was receiving a disability support pension.
Mental health issues
36 The pre-sentence report records that the appellant suffers from post-traumatic stress disorder, depression, anxiety and schizoaffective disorder. The report also suggests a diagnosis of paranoid schizophrenia.
37 The appellant attempted suicide twice in 2016, and required hospitalisation following each attempt (ts 9). The incident on 6 March 2016, involving the theft of the buggy, occurred in the context of one of these suicide attempts.
38 The appellant's mental health has stabilised since being remanded in custody.
Drug use
39 The pre-sentence report touches upon the appellant's drug abuse. The appellant has had long term issues with drug abuse, primarily the abuse of amphetamines, beginning when she was 16 years of age. Apart from a four-year period of abstinence following residential treatment program, the appellant's drug abuse has been continuous. The report suggests that the appellant used illicit drugs to cope with painful emotions and life stressors. The appellant's drug abuse appears to have exacerbated her mental health issues. It was submitted that her mental health issues, drug use and anti-social personality have contributed to her offending (ts 22.5).
Criminal history
40 The appellant has a lengthy history of offending. Her first conviction was recorded when she was 15 years of age. Her offending is comprised of violent offending, nuisance type and dishonesty offending, and property crimes. There are no significant breaks in her offending except for time in prison. The appellant served a significant term of imprisonment (30 months) in 2014 for armed robbery - she did not get parole. She was released from custody only a short time before the commission of the July 2015 offences (ts 35.7). Counsel submitted that the appellant's criminal history shows previous periods of imprisonment did not break her cycle of offending (ts 35.1).
Response to supervision
41 The appellant has not responded well to supervision orders. For a while, she complied with the bail conditions set down by the START Court on 10 November 2015 that included a residential condition and a requirement to attend urinalysis as directed. But she was terminated from the START Court program as a result of a breach of bail once her bail conditions were relaxed (ts 10.6, 35.9).
Sentencing remarks
42 The magistrate acknowledged the appellant's remorse was 'sincere' (ts 19.3).
43 The magistrate discounted the appellant's sentence by the maximum amount of 25% for her early guilty plea (ts 20.5). (He acknowledged that there was some delay in the plea, but he did reduce the discount afforded to the appellant because the delay was explained.)
44 The magistrate noted that the appellant had spent a long period in custody. At the sentencing hearing it was accepted by all that the appellant had been in custody since 9 April 2016, so that by the time of the sentencing hearing the appellant had been in custody for approximately 4 1/2 months. The magistrate referred to the fact that there was a further period of 16 days spent by the appellant in custody and stated that the sentencing outcome took those days into account. His Honour noted that the appellant's time in custody appeared to have been beneficial to her physical and psychological health (ts 19.4).
45 The magistrate referred to and expressly took account of the appellant's troubled childhood, her exposure to domestic violence, and to the submissions that had been made by the appellant's counsel about her mental illnesses and drug addiction. His Honour said that general deterrence 'wouldn't be a particularly substantial theme of sentencing, but it does form some part of the sentencing outcome' (ts 22.7).
46 The magistrate referred to the appellant's criminal record, noting that leniency had been granted to the appellant when sentenced for prior offending, and that the appellant has had 'the full range of sentencing outcomes in the past, including the benefit of terms of imprisonment that were suspended so as to enable [her] to, hopefully, turn the corner' (ts 19.7). The magistrate referred to the spread of dates over which the offending occurred, the appellant's failure to comply with bail conditions and the conditions of the START Court.
47 Ultimately, the magistrate determined that there was a need for personal deterrence to discourage the appellant from engaging in further offending (ts 20.3). He concluded that some of her offences were so serious that they warranted a term of imprisonment (ts 23.3). In particular, the magistrate highlighted the appellant spitting in the face of the McDonald's employee and the two episodes of offending on the 13 July 2015, at Liquor Barons and at BWS.
48 It is clear from the sentencing remarks that the magistrate was mindful of the overall effect of the sentencing on the appellant. When ordering the sentence imposed for the threat related offence to be served concurrently, he was explicit that he was moderating the sentence in order to 'achieve an outcome that's not too crushing' (ts 24.8).
The seriousness of the offending
49 As the magistrate observed in his sentencing remarks, the appellant's offending was not 'one day of crazy behaviour' but was spread over eight months. Whilst it is true that some of the offending involved relatively minor anti-social behaviour, some of the offending was properly characterised as serious. The offending at the bottle shops on 13 July 2015, the assault on the McDonald's attendant, the offending at St Ives Independent Living Residences involving elderly victims and the stealing of the motorised buggy are offences properly characterised as serious.
The appellant's submissions
50 The appellant's submissions approached ground 1 by drawing the court's attention to the various factors of mitigation, those factors being: the sincerity of the appellant's remorse; her guilty pleas; her mental health issues; the time spent in custody; the hardship endured by the appellant in her childhood and as an adult, focussed on the mitigating factors she contended should be taken into account. A difficulty faced by the appellant is that the magistrate gave express consideration to each of these factors.
Disposition - ground 1
51 The number and variety of offences presented the magistrate with a difficult sentencing exercise. It appears to me, with respect, that he approached that exercise with evident care. The magistrate was required to balance the mitigating factors that favoured leniency against the seriousness of the offending and the fact that the offending took place over an extended period. The magistrate was also required to strike the difficult balance between making an appropriate allowance for the appellant's mental health difficulties whilst at the same time protecting the public from the appellant's criminal behaviour caused by the combination of her mental illnesses and her drug abuse.
52 As noted earlier at [9], in determining whether the aggregate sentence imposed is manifestly excessive little assistance is gained from looking at the individual sentences imposed.
53 I accept that the appellant had the benefit of significant mitigation but, when I have regard to the seriousness of the offending and its prolonged nature, I am not persuaded that the total effective sentence imposed by the magistrate fell outside the range of sound discretionary sentences.
54 In reaching this conclusion, I have taken into account the appellant's submission that the sentence should have been backdated a further 16 days to reflect additional time spent by the appellant in custody rather than by adopting the approach taken by the magistrate of taking it into account in determining the length of the sentence to be imposed. The respondent accepted that the sentence could have been backdated by a further 16 days, but pointed out that the magistrate was not obliged to so backdate the sentence: s 87 Sentencing Act 1995 (WA). It is not open to me to hold that the sentence imposed by the magistrate was manifestly excessive because he failed to backdate the sentence by 16 days when it was open to him to do so, but he was not obliged to do so.
55 I consider that the appellant should be granted leave to appeal in respect of ground 1, but I would dismiss the appeal on that ground.
Ground 2 - did the magistrate erred in failing to suspended
56 At the hearing of the appeal, the appellant did not press with any force the submission made in written submissions that I should infer from the sentencing remarks that the magistrate failed to consider a suspended term of imprisonment.
57 The appellant's counsel submitted that the magistrate erred in failing to suspend the sentence when it was reasonably open in all the circumstances to suspend.
58 The formulation of the relevant question an appellate court should ask when considering whether a magistrate erred in deciding not to suspend a sentence of imprisonment was considered in Fogg v The State of Western Australia [2011] WASCA 11 (McLure P, Mazza JA agreeing) [6] - [10]. The principles are more recently summarised by Hall J in Mitchell v Purvis [2016] WASC 351 [43] (citing Plant v Harrington [2010] WASC 364 [36]):
An appellate court must avoid the risk of too readily concluding that there was an error based on its own assessment of the circumstances. Accordingly, the appropriate question is not whether the appellate court considers on its own assessment of the circumstances that it was open to impose a suspended sentence, but whether it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in a conclusion that a suspended sentence was not appropriate
59 For this ground to succeed, therefore, it is necessary for the appellant to show that it was not reasonably open to the magistrate in the proper exercise of his discretion to exclude a suspended sentence.
60 In support of this ground, the appellant repeats the submissions advanced in support of ground 1.
Disposition - ground 2
61 For the same reasons that I consider that the magistrate did not err in imposing a sentence that was disproportionate to the offending, I consider there were sufficient grounds for the magistrate to conclude that a suspended sentence was not appropriate in the circumstances of the case.
Ground 3 - did the magistrate sentence on an incorrect basis?
62 The appellant alleges that the magistrate erred by treating charge 33560 of 2015 as a more serious offence than that to which the appellant pleaded. The charge alleged that the appellant damaged an outdoor display sign when she threw it towards the employee of Liquor Barons. The same conduct gave rise to a common assault charge. The appellant pleaded guilty to the charge. The magistrate imposed a term of imprisonment of 3 months for the damage offence and ordered that term to be served concurrently with a term of imprisonment of 3 months for the common assault charge.
63 There was no dispute about the relevant background. The prosecution notice referred to s 444 (1)(b) of the Code. The offence created by s 444 of the Code is described as 'Criminal damage' and is committed by a person who wilfully and unlawfully destroys or damages any property. The maximum penalty for this offence is imprisonment for 10 years.
64 Section 445 of the Code creates an offence described as 'Damaging property'. This offence is committed by a person who unlawfully destroys or damages the property of another without that person's consent. The maximum penalty for this offence is imprisonment for 2 years and a fine of $24,000.
65 The appellant pleaded guilty to the charge on 23 July 2016. The magistrate put the charge to the appellant as follows: 'You unlawfully damaged at the property of All Night Long Pty Ltd, being an advertising board valued at $50'. Thus, the appellant pleaded guilty to the offence of unlawful damage contrary to s 445 of the Code. At the sentencing hearing the prosecuting officer referred to the charge as one of 'criminal damage' and this error was adopted both by the magistrate and counsel who appeared for the appellant at the sentencing hearing. In the course of the magistrate's sentencing remarks he referred to imposing the sentence of imprisonment for 3 months to be served concurrently, the magistrate referred to the offence as 'criminal damage'.
66 The appellant contends that the magistrate made a material factual error that caused him to have in mind a more serious charge than that to which she pleaded guilty.
67 The respondent accepts the guilty plea should be accepted as a plea to the less serious offence of 'unlawful' damage pursuant to s 445 of the Code.
68 The issue between the parties on appeal is the consequence of the magistrate and counsel proceeding on the basis of this error. The appellant submits that in mischaracterising the offence the magistrate misapprehended the seriousness of the offending, and that this influenced his Honour's assessment of the overall criminality for the purposes of assessing the operation of the totality principle.
69 At the hearing of the appeal, the appellant's counsel conceded that if I consider the total sentence imposed is appropriate to the overall criminality, notwithstanding the error, then this ground falls away (ts 18.8).
70 The respondent submits that the effect of the error is immaterial to the overall sentence imposed for the following reasons.
(i) The magistrate was aware of the factual circumstances of the offences.
(ii) The circumstances of this offence were entwined with the common assault offence.
(iii) The magistrate was mindful of totality in ordering the sentence for this offence to be served concurrently with the sentence for the assault offence.
(iii) In the context of the number of offences for which the appellant was sentenced, it is unlikely that the error was material.
Disposition - ground 3
71 I accept that the magistrate erred in so far as he referred to the offence in the sentencing hearing as one of criminal damage rather than wilful damage. I do not, however, consider that this error had any consequence for the magistrate's sentencing disposition for the following reasons:
(i) The magistrate was alive to the factual seriousness of the offending surrounding the damage offence.
(ii) There is nothing to indicate he would have taken a different view of the overall criminality involved in the appellant's offending at the Liquor Barons store on 13 July 2015 had he appreciated the damage offence was one of unlawful damage and not wilful damage.
(iii) The term imposed for the damage charge was well below the maximum sentence he could have imposed for either a wilful or unlawful damage offence.
72 Further, and in any event, as the appellant's counsel accepted, whether the error caused the magistrate to misapprehend the seriousness of the offending is effectively subsumed into the larger question of whether the total effective sentence is disproportionate to the overall level of criminality - which is raised by ground 1. Having dismissed ground 1, it follows that ground 3 is not made out.
73 I consider that the appropriate order is to grant leave to appeal in relation to ground 3 but to dismiss the appeal.
Summary
74 I grant leave to appeal in respect of grounds 1 and 3, but dismiss the appeal on those grounds. I refuse to grant leave to appeal in respect of ground 2.
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