Collins v Waller
[2016] WASC 229
•28 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COLLINS -v- WALLER [2016] WASC 229
CORAM: KENNETH MARTIN J
HEARD: 4 MAY 2016
DELIVERED : 4 MAY 2016
PUBLISHED : 28 JULY 2016
FILE NO/S: SJA 1022 of 2016
BETWEEN: CAMERON DAVID COLLINS
Appellant
AND
JOANNE WALLER
First RespondentPAUL FRANK BECCARELLI
Second RespondentLEANNE GREEN
Third RespondentALLAN CHANDLER McNEVIN
Fourth RespondentFELICIA ANNE LE BOYDRE
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M D WHEELER
File No :JO 644 of 2014
Catchwords:
Criminal law - Sentencing appeal - Time on remand - Breaches of bail - Totality principle - Resentence - Concurrent sentences
Legislation:
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused for proposed grounds of appeal 1, 3 and 4
Leave to appeal granted for proposed ground of appeal 2
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D D Brunello
First Respondent : Ms S E Wisbey
Second Respondent : Ms S E Wisbey
Third Respondent : Ms S E Wisbey
Fourth Respondent : Ms S E Wisbey
Fifth Respondent : Ms S E Wisbey
Solicitors:
Appellant: Aboriginal Legal Service (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)
Case(s) referred to in judgment(s):
Dragon v The State of Western Australia [2008] WASCA 252
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 4 May 2016 and has been edited from the transcript.)
Background
Effectively, I am dealing with four grounds of appeal under a notice of amended appeal of 13 April 2016. Leave to amend in those terms was applied for and not opposed by counsel for the DPP. Leave to amend was granted.
The appeal is concerned with a challenge by the appellant to the sentencing disposition of Magistrate Wheeler in the Perth Magistrates Court on 10 March 2016, the transcript of which I hold.
I begin by incorporating into the reasons a basic chronology of key events:
Date
Event
28 November 2013
Mr Collins turns 18.
22 April 2014
Commits offence of aggravated assault occasioning bodily harm (JO 4653/14)
22 October 2014
Bail undertaking in respect of assault offence.
10 December 2014
First breach of bail ‑ by failing to appear ‑ contrary to bail undertaking entered into on 22 October 2014 for offence of aggravated assault occasioning bodily harm (JO 1133/15).
11 March 2015
Sentenced by Magistrate Smith in the Joondalup Magistrates Court as follows:
• 10 months' imprisonment suspended for 12 months for offence of aggravated assault occasioning bodily harm (JO 4653/14);
• 12 month community based order (CBO) for the offence of breach of bail (JO 1133/15).
30 April 2015
Breach of CBO ‑ by failure to report for supervision (PE 24360/15.
16 July 2015
Placed on bail for breach of CBO.
3 September 2015
Second breach of bail ‑ by failing to appear that day, contrary to bail undertaking entered into on 16 July 2015 for offence of breach of a CBO (PE 45768/15).
18 September 2015
Offence of steal motor vehicle (PE 45775/15). Arrested and remanded in custody.
10 March 2016
Sentenced by Magistrate Wheeler in the Perth Magistrates Court in respect of five offences:
• Steal motor vehicle (PE 45775/15) = 3 months' imp (conc);
• First breach of bail (PE 45768/15) = 4 months' imp (conc);
• Breach of CBO (PE 24360/15) = $100 fine;
• Second breach of bail (JO 1133/15) = 3 months' imp (conc); and
• Agg assault occasioning bodily harm (JO 4653/14) = 10 months' imp.
Next, from par 2 of the respondent's written outline of submissions, I will incorporate what is the helpful compilation of the five sentencing dispositions that were addressed together by Magistrate Wheeler, on 10 March 2016:
Charge No
Date of offence
Nature of Charge
Maximum Penalty
Sentence imposed
JO 4653/14
22/04/14
Aggravated assault occasioning bodily harm
7 years' imprisonment
10 months' imprisonment (previously sentenced to 10 months imprisonment suspended for 12 months on 11 March 2015)
JO 1133/15
10/12/14
Breach of bail
3 years' imprisonment or $10,000 fine or both
3 months' imprisonment (conc) (previously sentenced to a 12 month CBO on 11 March 2015)
PE 24360/15
30/04/15
Breach of community based order
$1,000 fine
$100 fine
PE 45768/15
3/09/15
Breach of bail
3 years' imprisonment or $10,000 fine or both
4 months' imprisonment (conc)
PE 45775/15
18/09/15
Steal motor vehicle
7 years' imprisonment
3 months' imprisonment (conc)
Total Effective Sentence: 10 months' imprisonment
Observations
Two of the five sentencing dispositions seen above arose on Mr Collins' pleas of guilt, to all charges, in circumstances where they effectively required resentencings by Magistrate Wheeler. That came about because Mr Collins had been sentenced by Magistrate Smith in the Joondalup Magistrates Court on 11 March 2015, in respect of two offences. The first was the aggravated assault occasioning bodily harm offence, in respect of which the sentence was 10 months' imprisonment, albeit suspended for 12 months.
The second disposition by Magistrate Smith was in respect of a breach of bail offence, committed on 10 December 2014. That happened when Mr Collins was on bail in respect of the aggravated assault charge preferred against him, shortly after it had taken place in April of 2014. In respect of the breach of bail offence, Magistrate Smith dealt with that by imposing a 12‑month community‑based order (CBO) for the offence of breach of bail.
Those two offences became in effect, the two resentencings to be addressed by Magistrate Wheeler, on 10 March 2016. Three other offences Magistrate Wheeler then had to deal with for Mr Collins were first, a breach of his CBO. That charge was preferred against him on 30 April 2015. Basically it arose, as a Ms Claypon from Corrective Services explained to his Honour at ts 3 ‑ 5 that Mr Collins had failed to report for supervision. She had said this:
CLAYPON, MS: … I just want to check with your Honour as to whether or not you will be revisiting the suspended imprisonment order.
HIS HONOUR: I will be. I'm required to.
CLAYPON, MS: Yes, given that it's concurrent with the community‑based order that Mr Collins is currently subject to. That was imposed with regards to a breach of bail on 11 March 2015. The basis of the breach was Mr Collins' failure to report for supervision. Mr Collins amassed eight failures to report for supervision from March through to August last year. He did manage to maintain eight supervision sessions on a sporadic basis. However, it is noted that the last physical contact we had with Mr Collins was on 29 July last year and two months later was then consequently remanded in custody for the current charges before the court.
HIS HONOUR: Yes.
CLAYPON, MS: It is noted that he has been in custody now for a total of 174 days, so since that period of time. And also with regards to the programmatic requirement of the order, that was not progressed given that he failed to report on two occasions for assessment interviews in July last year so ‑ ‑ ‑
HIS HONOUR: Okay.
CLAYPON, MS: So, yes, with regard to the original offence, obviously it would just be as per the prosecution notice with regards to the breach of bail. That has occurred back in 10 December 2014 so it is dated. His explanation was, 'I missed it and I thought it was the next day.' I do have the facts with regards to the suspended imprisonment order charge also.
…
CLAYPON, MS: … With regards with the suspended imprisonment order charge, that was the aggravated assault occasioning bodily harm, Joondalup charge 4653 of '14, that occurred between 5 pm and 5.20 pm on 22 April 2014. The accused and the complainant were at 57A Viridian Drive, Banksia Grove. The complainant had attended at the accused's address and was playing computer games with another male, a 13 year old male.
The accused attended at the room where the complainant was and began yelling at the complainant words to the effect of, 'Where's my cone piece?'. A verbal argument took place between the accused and complainant regarding the loss of the accused's cone piece, a smoking implement used to smoke cannabis. The accused then punched the complainant to the face, mouth area. The punched [sic] caused the complainant significant pain and damage to his front two teeth. The complainant returned home and was transported to Joondalup Health Campus for medical treatment.
The complainant has since received ongoing dental care which included root canal surgery which reportedly cost the family approximately $3000. The complainant at that time was still experiencing pain and discomfort as a result of the assault and was limited to what he could eat at that time. On 12 May 2014 the accused was arrested and transported to Wanneroo Detectives.
He participated in an electronic record of interview, making full admissions to the offence and raising no defences for his actions. Those are the original facts.
Breach of the CBO had resulted in the issue of a charge for failing to report for supervision. When that matter came before another magistrate on 16 July 2015, Mr Collins had been (rather surprisingly given the nature of the offence) put on bail again.
Mr Collins then breached his bail undertaking ‑ this time by failing to appear. That breach happened on 3 September 2015.
The last (fifth) sentencing disposition Magistrate Wheeler needed to undertake on 10 March 2016, was in respect of the offence committed on 18 September 2015 for stealing a motor vehicle.
The circumstances in respect of that fifth offence were explained by the police prosecutor, Mr Phillips, at page 3 of the transcript. He said:
PHILLIPS, MR: At about 6.07 pm on Friday, 18 September, 2015, the accused was a passenger in a stolen black Ford, registration 1ATG666. The accused was seated in the rear left passenger seat when police activated emergency lights and sirens in an attempt to conduct a traffic stop on the vehicle. The vehicle failed to stop and a pursuit involving police and a stolen vehicle ensued. A police helicopter PolAir was dispatched which located and followed the stolen vehicle until it came to a complete stop on Kurrajong Court in Greenwood at 6.19 pm.
The accused exited the stolen vehicle and fled on foot. PolAir located the persons who fled from the stolen vehicle including the accused and were able to direct police on the ground the location to where he was hiding. The accused was arrested on Flametree Street in Greenwood. He participated in an electronic record of interview making no comment to most questions, some partial admissions.
HIS HONOUR: So he was a passenger, was he?
PHILLIPS, MR: Passenger, your Honour.
HIS HONOUR: Yes. Breach of bail as per the complaint, I presume?
PHILLIPS, MR: Yes, your Honour. At 6.07 pm, Friday, 18 September again, the accused was arrested. However, on 16 July 2015 he had entered into a bail undertaking and agreed to appear at Perth Magistrates Court on 3 September. Subsequently he was arrested on the 18th on a bench warrant.
Essentially, although this charge was the serious charge of stealing of a motor vehicle, Mr Collins' participation by way of his input criminality, was only effectively as a passenger from the rear seat ‑ in circumstances where he either knew, or did not enquire sufficiently as to the fact that the car had been stolen.
Mr Collins, by his plea of guilt on 10 March 2016 to the motor vehicle stealing charge, then became exposed to being resentenced in respect of what had been the suspended sentence of 10 months' imprisonment ‑ which had been imposed by Magistrate Smith on 11 March 2015 in respect of the aggravated assault occasion bodily harm. Likewise, Mr Collins was to be resentenced in respect of his first bail breach ‑ which had led to the CBO imposed by Magistrate Smith on the same day.
So, there were the two resentencings plus the three further new offence sentencings to be dealt with by Magistrate Wheeler on 10 March 2016.
Section 80 of the Sentencing Act
At the time the learned magistrate was bound, as indeed this court is bound, by s 80 of the Sentencing Act 1995 (WA). That section says:
80.How re offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section 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.
The effect of the legislation is summarised in a leading decision in this court, Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [31] - [34]. Murray J at [34] said:
[A] most important consideration when considering where the justice of the case lies in the context of s 80 is the legislative policy which emerges clearly from the section that prima facie the court ought to order service of the suspended imprisonment.
As seen above, that is what s 80(1)(a) requires, insofar as it says that a court must resentence in one of four, as specified, outcomes.
But s 80(1)(a) must then be read with the following s 80(3), which stipulates:
A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all of the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
The legislative constraints of s 80(1)(a) and (3) of the Sentencing Act clearly bore upon Magistrate Wheeler, as he came to deal with Mr Collins' resentencing for the aggravated assault offence ‑ that had first been suspended by Magistrate Smith as regards a 10‑month period of imprisonment.
Another constraint that affected Magistrate Wheeler, in terms of what he could do (and as is accepted without issue before me) is that it was not open to him to backdate a commencement of a resentencing period to run from the time at which Mr Collins had actually gone into custody. As seen that was in September of 2015, after the motor vehicle stealing offence and his past chase arrest, which had occurred thereafter on 18 September 2015. Mr Collins had not been able to obtain bail at that time ‑ and given his poor track record in that regard ‑ that is no real surprise.
In Dragon v The State of Western Australia [2008] WASCA 252, the Court of Appeal, by reference to s 84F of the Sentencing Act, settled the above point. I mention the observations of Buss JA at [46], [48] and then at [51] ‑ [53].
There is a revealing passage at the end of the learned magistrate's reasons where he says his hands were tied, (see ts 10) 'by the 10 months, essentially'. That was clearly a reference, in context to the effect in combination of s 80(1)(a) and s 80(3) as regards the initial sentence for the aggravated assault as had been imposed by Magistrate Smith, then suspended. See also ts 8 last line (where the transcript is in error, by referring to '1A'. Clearly, that was an intended reference to s 80(1)(a) of the Sentencing Act).
This was a situation where the learned magistrate had to deal with five sentencings for five offences, and in respect of which, the usual range of discretions that might otherwise be available for a sentencing officer, were heavily restricted by the two constraining factors I have now mentioned.
A 10 month concurrent sentence imposed for four of the five offences on 10 March 2016
Magistrate Wheeler ultimately decided to activate the 10‑month suspended sentence of imprisonment for the aggravated assault offence.
A submission to him by counsel for Mr Collins was that he ought to exercise a power, pursuant to s 80(1)(c), to extend the (initially imposed) 12‑month suspension period ‑ for a further period ‑ by substituting another suspension period of not more than 24 months. He was not persuaded by that submission. The learned magistrate decided that was not appropriate. Given the constraints of s 80(3), Magistrate Wheeler was not persuaded it was unjust in all the circumstances for the original 10 months sentence for the aggravated assault offence to apply. Hence, via s 80(1)(a), it was made applicable. But the learned magistrate also made the sentences for the three other offences concurrent with that 10 month period. The other offence was the subject of a $100 fine.
Alleged errors in sentencing
Grounds 1 and 2 of the grounds of appeal, essentially complain the learned magistrate erred in not being persuaded it was unjust for the (originally, imposed) 10 month term of imprisonment to apply as the resentencing outcome. The overall sentencing disposition by the learned magistrate was for the original 10 month sentence to take effect from that day - that is, from 10 March 2016 ‑ for the period of 10 months. He said at page 9 of the transcript:
Well, I appreciate the fact that you spent a fair bit of time in custody along the way, as being a circumstance that has changed. Does it make it unjust? I don't think so. You've been in custody for (indistinct) or period in which you were actually on a community based order, which you breached for breaching bail, and then you breached bail again. So, you know, I don't think it's unjust at all. You reap what you sow in this life.
Having said that, I think it would be unjust, following totality principles, to accumulate any further term because of the fact that of your youth, a plea of guilty, etcetera. So I'm approaching it that way. But in respect to the breach of suspended term of imprisonment, it is a suspended term and it's now being called in. On that matter you will be imprisoned for 10 months, which is the period the court gave you on the initial occasion.
… But the reality is that's the sentence that I have to apply, and in my view there's no basis for reducing it. You will be imprisoned for 10 months. That runs from today. And that's the head sentence, and that will be the total term actually. In respect to the breach of breaching the conditional release - sorry, the community based order, which was for the breach of bail, it's not entirely surprising to me that a person who breaches bail doesn't actually perform properly on an order anyway.
So you will be imprisoned for two months concurrent on that. In respect to the actual breach of bail charge, you will be imprisoned for three months on that concurrent. This current breach of bail that I'm sentencing you for, you will be imprisoned for four months concurrent. The final charge, stealing the motor vehicle, might otherwise not involve a term of imprisonment but under the circumstances effectively has to. You will be imprisoned for three months concurrent. So there's a total term of 10 months.
Ground 1 contends the learned magistrate erred in being persuaded ‑ or, more correctly, in not being persuaded, that it was unjust not to interfere with that 10‑month sentence. It asserts that he made a factual error concerning the bail breaches. That is a reference to remarks I have quoted from page 9 of the transcript, which are emphasised as being a basis for the asserted error under ground 1. Read in overall context, however, I think, with respect, that the challenge that has been raised in respect of the learned magistrate wrongly assuming that there had been two breaches of bail in the operational period of the suspended sentence ‑ is simply not open. The attack is unduly semantic.
Read in proper context, the learned magistrate's remarks, on my assessment appreciated that he was dealing with, effectively, a bail resentencing exercise in respect of prosecution complaint JO 1133 of 2015, being the breach of bail offence in respect of which Magistrate Smith had imposed a CBO as his disposition when he had dealt with it back on 11 March 2015.
This was a somewhat messy underlying offence scenario ‑ as there was also the second breach of bail charge in respect of a failure to report on 3 September 2015. That was the subject of the further complaint, PE 45766 of 2016. It resulted in the charge that the bail undertaking entered on 16 July 2015 had been breached on 3 September 2015. That second breach of bail offence, (a breach transgressing within the operational period of the 12‑month suspended sentence period), had happened because Mr Collins failed to attend the scheduled community‑based order community service appointments that were made. This was explained through Ms Claypon in the transcript extract, which I set out earlier.
There had been a failure by Mr Collins to meet his CBO obligations (eight failures identified in the period from March to August 2015). That in the end led to the issue of a further complaint, PE 24360 of 2015, on 16 May 2015. After Mr Collins was brought before the court to answer that summons, he was dealt with (on 16 July 2015) by being put on bail ‑ once again leading to a consequence, at 3 September 2015, of his breach of that 16 July 2015 bail undertaking.
That raised a curious and rather circuitous set of bail breaching circumstances. It was commented upon - I think, appropriately in my view - by the learned magistrate as being an outcome that was 'not entirely surprising' (ts 9).
The context of the first breach of bail, leading to Magistrate Smith's CBO, leading to breaches of the CBO, leading to a breach summons, leading to another appearance in court and then being put on bail again, then to another bail breach, gives an insight to the observations at the foot of ts 8. His Honour had said:
I'm not entirely certain you were well-represented on earlier occasions because it does appear there were excessive attempts to get you bail rather than actually tactically deal with the situation where you were clearly going to be found guilty of breach of bail and get the suspended sentence going.
Because, of course, suspended sentences can't be backdated when they're called in. but that's one of the things I have to take into account and that's just my opinion. It certainly doesn't involve the counsel (indistinct) Mr Hager. But you seem to be languishing a little bit for mine …
He made the further comment:
I don't think so. You've been in custody for (indistinct) or period in which you were actually on a community based order, which you breached for breaching bail, and then you breached bail again. So, you know, I don't think it's unjust at all. You reap what you sow in this life.
Seen contextually, I do not think the contended error as has been argued for under ground 1, is made out.
In respect of a contended error via ground 3, there is a plenary contention that the learned magistrate failed to take into account a relevant factor; namely, that Mr Collins had served 174 days in presentence custody (ie, between 18 September 2015 and 10 March 2016).
Ground 3 must fail. The learned magistrate obviously did take that period in custody into account. He was fully cognisant of it, as seen by the term, he used, namely, 'languishing'. The remarks at ts 9, in terms of the breaches of bail and the 'reap what you sow in this life' can be seen in overall context, as attributable to an unsatisfactory underlying bail breach history here and also, the learned magistrate's appreciation that the time Mr Collins had now spent in custody (ie, on remand) was a consequence of his not then being eligible for bail ‑ by reason of what was his unsatisfactory underlying breach record history, in that respect.
Grounds 2 and 4
More difficult questions arise by reference to grounds 2 and 4 in the appeal, chiefly in relation to the implications of the 174 days spent in custody, after Mr Collins was arrested on 18 September 2015. The asserted error is raised as a s 80(3) argument by ground 2, or a totality argument, raised by ground 4. I shall deal with grounds 2 and 4 together.
Both grounds are seen to be particularised by reference to personal considerations that were applicable to Mr Collins. They mention of his youth and his pleas of guilty which were entered, (albeit I note the plea of guilty in respect of the car stealing charge was the subject of his last minute guilty plea, with his trial on that charge due to be dealt with before Magistrate Wheeler on 10 March 2016). None of that was lost on the learned magistrate. He said that he recognised that some credit should be given for that guilty plea event (see ts 8).
Particulars to ground 2 are the basis for an argument that the remaining breaches of bail offences did not warrant imprisonment or, alternatively, did not warrant cumulative imprisonment. That grievance is misconceived. I observe in passing that Mr Collins did not receive cumulative imprisonment. At the end there was a concurrent imprisonment outcome of 10 months, plus the $100 fine.
By ground 2(d), direct reference is made to the significance of the 174 days now spent by Mr Collins in presentence custody before his sentencing.
Likewise, under ground 4, in respect of an attempted invocation of principle 1 of the sentencing totality principle, it is said that there were significant personal circumstances to be taken into account, namely, Mr Collins' youth, pleas of guilty, partial compliance with the CBO, a childhood and personal antecedents of disadvantage and difficulty, and by subpar (d) to the particulars (4): the 174 days in presentence custody.
Upon a distillation of the arguments put on behalf of Mr Collins at the argument of his appeal, it seems to me that the asserted error by the learned magistrate, by failing to sufficiently take account of the 174 days spent by Mr Collins in presentence custody - is the real gravamen of the alleged errors, as raised under both these grounds.
That submission is then coupled to a further consideration ‑ in effect as a corollary, that the other offences in respect of which sentences of imprisonment were imposed (that is other than the $100 fine for breach of the CBO) namely: a sentence of 3 months' imprisonment for Mr Collins' resentence for the original breach of bail offence, then his sentence of 4 months' imprisonment in respect of his 3 September 2015 breach of bail offence, plus even further his 3‑month period of imprisonment in respect of the stealing of the motor vehicle offence ‑ were all up, too high.
Eloquently put by Mr Brunello, the core submission, really, was that those three other offences did not warrant any period of imprisonment at all. If one accepts that starting premise, it is then said that, what was in effect a 6‑month period spent in presentence custody (from September 2015 to March 2016), had effectively more than 'used up' the proper period of punishment for all the offending, of Mr Collins in aggregate.
The learned magistrate had observed, when his attention was explicitly drawn to the time spent in custody, at ts 10:
I've made everything concurrent. That's how I've dealt with the time spent in custody, by making everything that would otherwise accumulate concurrent.
So the resulting question for me at the appeal then (and I think it is best addressed under ground 2, rather than as a question of a totality principle 'violation') - is the proper ramifications of Mr Collins' 174 days spent in presentence custody.
I do not believe the ground 4 totality argument is, with respect, the correct way to evaluate this alleged error ‑ it speaks of a total effective sentence of 10 months' imprisonment. But, that was the sentence outcome required, effectively, by s 80(1)(a) and his Honour's decision to reactivate what had been that as first fixed period of the suspended sentence, was on the basis the learned magistrate was clearly not persuaded, at the end given s 80(3), that that outcome was unjust in all the circumstances.
I would not, in any case, assess that there is here any relevant aggregation ‑ to potentially engage against the totality principle. The 174 days spent in custody was not a sentence that as a matter of law, came to be aggregated with the 10‑month sentence period.
However, it is open to look more flexibly at this whole issue of time spent in custody, via ground 2. This is on the basis there is said to be error ‑ as the period really was not sufficiently weighed up and taken into account. Again, it is said the amount of time in presentence custody was taken into account in a fashion that was wrong, in principle, as the other offences - that is, two breach of bail offences and a car stealing (involvement) offence - all together did not warrant any level of further imprisonment.
To that end, a passage in the transcript by the learned magistrate, in discourse with counsel for Mr Collins, is heavily relied upon. This is the passage at ts 6. But this exchange arose during submissions and before the learned magistrate actually came to sentence Mr Collins for the five offences, as required. Mr Hager, counsel for Mr Collins, had made a submission, responded to by the learned magistrate in terms:
All right. Yes, so ‑ I agree with that. I agree with that.
Taken only at face value, it might be argued the learned magistrate was then acquiescing in the defence submission that the stealing of the motor vehicle offence, (this being a participatory offence, not the actual act of stealing the car in terms of the actual taking of the vehicle as a principal's act), would not itself attract a term of imprisonment, even for someone with a poor record like Mr Collins, (or implicitly, a far from a good record).
But the learned magistrate, once he began his sentencing remarks came back to deal with the whole aggregated task at hand. Any provisional observations made during submissions to him were only that. They were just provisional.
It is apparent from page 8 of the transcript, at about halfway down, the learned magistrate had received at that point the relevant facts put before him from both sides, including from the community service representative, Ms Claypon, who attended. He had then said (ts 8) as he began his deliberations upon sentencing in respect of all five offences, 'This will take a minute or two'. It is obvious from that point what he was doing. He had paused to look back and assess everything he had been told and learned to that point, holistically ‑ to try and reach a balanced and appropriate sentencing disposition.
In the course of imposing sentences of imprisonment for the two bail breach offences and the stealing of the motor vehicle offence, the learned magistrate had said, at page 9:
So you will be imprisoned for two months concurrent on that. In respect to the actual breach of bail charge, you will be imprisoned for three months on that, concurrent. This current breach of bail that I'm sentencing you for, you will be imprisoned for four months concurrent. The final charge, stealing the motor vehicle, might otherwise not involve a term of imprisonment, but under the circumstances effectively has to. You will be imprisoned for three months concurrent. So that's a total term of 10 months. (my emphasis in bold)
Earlier, when the learned magistrate had made the 'reap what you sow' remark (in a context of prior bail breaches), he had also said:
Having said that, I think it would be unjust, following totality principles, to accumulate any further term because of the fact that of your youth, a plea of guilty, etcetera. So I'm approaching it in that way …
Whilst it could be said in respect of the breach of bail offences, that taken in isolation, they may not have warranted imprisonment, nevertheless, looked at in terms of how they had arisen, by reference to the respective offences and particularly tracking the second breach back to breaches of the CBO, I am not persuaded that there was a relevant error here. I am not persuaded to interfere with the learned magistrate's overall end sentencing outcome.
The sentence of 3 months' imprisonment imposed in respect of the stealing of the motor vehicle offence was, in the end, made concurrent with the 10 month sentence for the aggravated assault offence.
The provisional remark heavily relied upon by the submission at ts 6, is overall insufficient to prove error. In the end, the learned magistrate, at page 9, when imposing the imprisonment period of 3 months concurrent, was entitled to reach that view, bearing in mind the circumstances of stealing the motor vehicle, as I have earlier set out. Albeit, perhaps not at the highest end of the scale, this was certainly no trivial incident, as regards the taking of this motor vehicle ‑ even as regards what was participatory passenger involvement by Mr Collins.
It was not said that Mr Collins actually stole the car, or drove or failed to stop as the driver. Mr Collins was in the back seat at all times. But, nevertheless, what was also relevantly significant, in terms of the learned magistrate's remarks and the 3 months sentence, is that the September 2015 offence - to which a plea of guilty was entered (after an initial plea and that had caused this trial to be scheduled for 10 March 2016) ‑ had happened at a time when Mr Collins had then been serving his then suspended sentence as imposed by Magistrate Smith.
Back on 11 March 2015, Magistrate Smith had addressed two offences. He had imposed a 10‑month period of imprisonment for the aggravated assault. He suspended that sentence of Mr Collins, under the provisions of the Sentencing Act. On that day Magistrate Smith effectively gave Mr Collins a chance to stay out of trouble. If Mr Collins had stayed out of trouble for 12 months, the punishment would not have taken effect. Secondly, Magistrate Smith had put Mr Collins on a CBO for 12 months. That was in respect of the breach of bail offence.
In those circumstances, just six months into the 12‑month period of suspended judgment, for Mr Collins to be involved in this further criminal offence incident involving a stolen vehicle, raised a significant and concerning consideration.
Viewing this at appellate level I ask myself, not as the sentencing judge but on the appeal, whether in all the circumstances as they presented to the learned magistrate on 10 March 2016, whether the end result 10‑month sentence as was ultimately imposed was open? As mentioned, the learned magistrate was constrained by s 80(1)(a) and (3), in terms of a prima facie position. So then, did he err in not being persuaded in those circumstances that the (previously suspended) 10‑month sentence ought not then to descend and run? In my view, he did not err. Nor did he err in terms of the extra sentence period he imposed of 3 months (made concurrent in any event), that he thought appropriate in respect of the car stealing offence.
By my assessment the learned magistrate was cognisant of the totality principle having mentioned it expressly (ts 9). He did not at the end make cumulative the three other sentences of imprisonment he imposed in respect of the other offences ‑ to increase the overall sentence beyond, all up a period of 10 months. Furthermore, it was not open to him by the law as now seen, to backdate the 10 month sentence to the time that Mr Collins actually went into custody in September 2015, given the Dragon decision.
Was there error in the three‑month disposition imposed in respect of the motor vehicle stealing offence? It is said for Mr Collins that he ought not to have received any custodial outcome for that car stealing offence. But I do not see a basis to fairly conclude that that sentence was not open to the learned magistrate to reach, in all the circumstances. The offence was not trivial.
Mr Collins had effectively been given a chance by Magistrate Smith, back in March 2015. He had to stay out of trouble for 12 months. But he did not. By mid‑September 2015 he was back in trouble again. It was not a trivial offence. The trouble that Mr Collins fell into in September 2015 was significant. There was a police chase after the vehicle had been stolen. I do not attribute any responsibility for that chase scenario to Mr Collins. He was not the driver. But he was there in the back seat and as happens too frequently, a 'participation' in a car stealing, although this one did not, can turn out tragically or horrendously, both for participants and for the wider community. This offence cannot be diminished as a trivial incident. The 3 month sentence was open to be imposed in the circumstances.
The car stealing offence, in terms of a maximum, was an offence capable of being punished by a severe sentence ‑ the maximum sentence being 7 years' imprisonment.
In the end, I do not assess that there is any error to be found here in respect of the term of a 3 months' period of imprisonment as was imposed for the car stealing offence. Even more particularly, as imposed here, that 3 month sentence was then ordered to be served concurrent, with the 10 month resentence for the aggravated assault causing bodily harm.
It is said that a 3 months sentence effectively used up 'credits', for the presentence time served by Mr Collins in custody of 174 days. But the answer to that is that the learned magistrate was fully cognisant of the fact that much of the almost six‑month period spent in custody, before 10 March 2016, arose in effect, as a consequence of Mr Collins not being able to obtain bail over that period, despite the unsuccessful efforts to obtain bail I was told about. The reason Mr Collins was unable to obtain bail was because of his bad track record of not responding to community‑based orders and bail breaches, during the past. That is the proper context in which one can readily understand the observation at ts 9 by the learned magistrate as to, 'reap what you sow'.
In all the circumstances, I have not been persuaded the learned magistrate's aggregate end disposition of 10 months' imprisonment all up, made concurrent for all offences (save for the $100 fine outcome for breach of the CBO), fell into error in any material respect, or was not open to reach on the facts he was presented with concerning Mr Collins.
Consequently, whilst I would grant leave in respect of ground 2 (only), all grounds of the appeal must in the end be dismissed.
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