Crossley v Cole
[2006] WASC 43
CROSSLEY -v- COLE [2006] WASC 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 43 | |
| Case No: | SJA:1093/2005 | 30 JANUARY 2006 | |
| Coram: | SIMMONDS J | 15/03/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DEAN PETER CROSSLEY PAULINE COLE |
Catchwords: | Criminal law and procedure Sentencing Breach of police order Assaulting a public officer Previous criminal history Counsel unaware of suspended imprisonment order Counsel failed to request adjournment Unlikely to affect the outcome of the sentencing process Whether undue weight given to seriousness of offence Whether alternatives to imprisonment considered Whether mitigating factors weighed |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(1)(b) Sentencing Act 1995 (WA), s 35(1), s 80 |
Case References: | Ali v The Queen (2005) 79 ALJR 662 Allen v Gittos (1995) 13 WAR 560 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Cox v Whitehead & Ors [1999] WASCA 277 Crossley v Cole [2005] WASC 249 Dangerfield v Commissioner of Police [2000] WASCA 375 Furtak v Timmers [2001] WASCA 65 Hall v The Queen [1999] WASCA 225 James v The Queen [2000] WASCA 100 Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995 McSwan v The State of Western Australia [2005] WASCA 128 Mustafa v The Queen [2001] WASCA 192 R v Juric [2003] QCA 132 TKWJ v The Queen (2002) 212 CLR 124 Warrell v Kay (1995) 83 A Crim R 493 White v Taylor [2001] WASCA 350 Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980 Dao v The Queen, unreported; CCA SCt of WA; Library No 980152; 22 January 1999 Delacey v The Queen, unreported; CCA SCt of WA; Library No 7687; 31 May 1989 King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 R v Gallagher (1998) 2 VLR 671 R v Holcroft [1997] 2 Qd R 392 R v Marston (1993) 60 SASR 320 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAULINE COLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M D WHEELER
File No : JO 4735 of 2005, JO 7130 of 2005
Catchwords:
Criminal law and procedure - Sentencing - Breach of police order - Assaulting a public officer - Previous criminal history - Counsel unaware of suspended imprisonment order - Counsel failed to request adjournment - Unlikely to affect the outcome of the sentencing process - Whether undue weight given to seriousness of offence - Whether alternatives to imprisonment considered - Whether mitigating factors weighed
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b)
Sentencing Act 1995 (WA), s 35(1), s 80
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K S Pratt
Respondent : Ms F A Cain
Solicitors:
Appellant : Evangel Legal Services
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ali v The Queen (2005) 79 ALJR 662
Allen v Gittos (1995) 13 WAR 560
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Cox v Whitehead & Ors [1999] WASCA 277
Crossley v Cole [2005] WASC 249
Dangerfield v Commissioner of Police [2000] WASCA 375
Furtak v Timmers [2001] WASCA 65
Hall v The Queen [1999] WASCA 225
James v The Queen [2000] WASCA 100
Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995
McSwan v The State of Western Australia [2005] WASCA 128
Mustafa v The Queen [2001] WASCA 192
R v Juric [2003] QCA 132
(Page 3)
TKWJ v The Queen (2002) 212 CLR 124
Warrell v Kay (1995) 83 A Crim R 493
White v Taylor [2001] WASCA 350
Case(s) also cited:
Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980
Dao v The Queen, unreported; CCA SCt of WA; Library No 980152; 22 January 1999
Delacey v The Queen, unreported; CCA SCt of WA; Library No 7687; 31 May 1989
King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R v Gallagher (1998) 2 VLR 671
R v Holcroft [1997] 2 Qd R 392
R v Marston (1993) 60 SASR 320
(Page 4)
- SIMMONDS J:
Introduction
1 This is an appeal by way of leave against sentences which raises two issues. One goes to the application of the statutory ground of miscarriage of justice in the Criminal Appeals Act 2004 (WA), s 8(1)(b). The other issue, which as I will indicate is in part connected with the first, is the process of deliberation apparently undertaken by the sentencing Magistrate in this case.
Background
2 The appellant at the time of the events in question was aged 20. He was living at home with his parents. His relationship with his parents was a troubled one. He was experiencing frustration, and having difficulty finding work.
3 On 14 July 2005 the appellant's father arranged for him to be taken for assessment to the Joondalup Health Campus. There he was served with a police order under the Restraining Orders Act 1997 (WA). This order apparently had a duration of 24 hours, and included a condition that the accused not attend at the address of his parents.
4 On the same day, after having been served with the police order, the appellant entered the property and barricaded himself in the bedroom in the house. A short time later the police arrived and attempted to speak to the appellant, who refused to co-operate and would not exit the room. Police forced their way in, apprehended the appellant and took him to a police van.
5 While the police were attempting to place the appellant in the back of the police van, the appellant spat at one of the police officers, hitting her with saliva across her back, neck and head region.
6 The appellant was subsequently charged with a breach of the police order under s 61(1)(a) of the Restraining Orders Act. This carries a penalty of $6,000 or imprisonment for 2 years, or both. The appellant was also charged with assaulting a public officer performing a function of his office or employment under s 318(1)(d) of the Criminal Code. This carries a summary conviction penalty of imprisonment for 3 years and a fine of $36,000.
7 At the time of the commission of the alleged offences, the appellant was subject to a suspended imprisonment order, made just over two
(Page 5)
- months earlier. The conviction for the offence, for which the suspended imprisonment order had been imposed, had been on 11 May 2005. The term of imprisonment was 6 months and 1 day, and the term had been suspended for a period of 12 months.
8 On 13 September 2005 on the appellant's plea of guilty Magistrate Wheeler at the Magistrates Court Joondalup made an order under s 80(1)(a) of the Sentencing Act 1995 (WA) calling in the suspended term of imprisonment in full. On the offence of assault on the police officer, the learned Magistrate sentenced the appellant to an immediate term of imprisonment, also of 6 months and 1 day. Finally, on the breach of the police order, the learned Magistrate sentenced the appellant to a fine of $200 with costs of $100.70. He made the sentence of imprisonment on the assault concurrent on the suspended term of imprisonment he had called in.
The Grounds of Appeal
9 On 20 October 2005 McKechnie J gave leave to appeal against the first two sentences. For the reasons given by his Honour in Crossley v Cole [2005] WASC 249, the leave was on the following grounds:
"GROUND 1. In making an order under section 80(1)(a) of the Sentencing Act 1995 (WA) in circumstances where:
(a) Counsel for the Appellant was not aware of the existence of the previous term of suspended imprisonment;
(b) Counsel for the Appellant informed the Court that he did not receive instructions in relation to the previous term of suspended imprisonment and was therefore not able to address the court on the matter;
(c) the Appellant was not able to present a full plea in mitigation on the circumstances that have arisen or have become known since the suspended imprisonment was imposed; and
there was a miscarriage of justice.
GROUND 2. The learned Magistrate erred in the imposition of a term of imprisonment for the offence of assaulting a Police officer by:
(i) giving undue weight to the seriousness of the offence;
(Page 6)
- (ii) failing to consider alternative dispositions to imprisonment;
(iii) failing to give sufficient weight to mitigating matters."
Miscarriage of Justice Ground
10 As McKechnie J in Crossley explained at [14] – [21], this ground arose out of the fact that the appellant's solicitor, who was not the counsel in the application for leave to appeal, nor on the appeal itself before me, had, at the commencement of the hearing at which the appellant's plea was changed to one of guilty, only an incomplete criminal record for the appellant. This record did not show more than the appellant's Children's Court history, and did not show any offence for which the appellant had received a suspended term of imprisonment. However, the appellant's solicitor had been told by the appellant he had received a suspended sentence of 6 months, but not that the suspended term of imprisonment was current. The appellant's solicitor first learnt that there was a current suspended imprisonment order, in relation to the traffic matter, when the prosecutor concluded his recital of the material facts by referring to those matters.
11 The appellant's solicitor then presented his plea in mitigation, concluding it by saying that the appellant was "in a position to pay a fine in relation to these matters" that he appreciated "they're serious enough", but he did show "remorse", and was "regretful".
12 After being reminded by the sentencing Magistrate of the suspended imprisonment order the appellant's solicitor said "I didn't receive instructions in relation to that matter", adding "I can't really address you in relation to that particular aspect". He went on, however, to request the learned Magistrate "to consider extending a suspended order in relation to these particular matters", stating as follows: "They arose out of one particular incident. It was an isolated incident that I think he has now overcome. It was certainly a problematic time in his life."
13 The learned Magistrate then referred to the substance of what is s 80(3) of the Sentencing Act 1995 (WA), which reads as follows:
"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 the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed."
(Page 7)
14 The learned Magistrate asked what circumstances had arisen or become known of those sorts.
15 Counsel's reply was as follows:
"I would refer you back to the fact that he has managed to stabilise his life. He is now in a situation where is working full time. He didn't have that opportunity before. These were the fundamental causes of his frustration and certainly he had problems in dealing with his parents at home, and that is no longer an issue for him either.
He's basically get [sic] on with his life, your Honour, and I think a term of - - an immediate term of imprisonment would set him backwards, certainly not rehabilitate him. I think it's a situation where he's looking at the court for some mercy and if he's given another opportunity I really don't think he would come before the court again."
16 As McKechnie J in Crossley at [24] indicates:
"It is difficult to understand why, when confronted with the surprise of the order of suspended imprisonment, the solicitor did not seek a short adjournment in order to take instructions. There is simply no explanation for that."
17 Before me, counsel for the appellant made the basis for his argument on the present ground that the solicitor for the appellant had not been able to take further instructions in relation to the suspended imprisonment order and in relation to the circumstances of the appellant since the imposition of that order. As a consequence, he was not able to deliver a complete plea in mitigation. Counsel cited to me authorities on refusal by a sentencing officer to allow counsel to address him on the evidence (Allen v Gittos (1995) 13 WAR 560) or to allow an unrepresented appellant an adequate opportunity to present his case (Dangerfield v Commissioner of Police [2000] WASCA 375). An opportunity of the latter kind does not necessarily entail an opportunity to present a lengthy plea but rather one properly informed by instructions directly related to the case against an order under s 80(1)(a) of the Sentencing Act, with a proper opportunity to formulate it in the most persuasive form (Furtak v Timmers [2001] WASCA 65, Roberts-Smith J, at [20] - [28]).
18 It seems to me that this case is not one of denial of an opportunity to make a submission against the making of an order under s 80(1)(a). No
(Page 8)
- request was made of the learned Magistrate for an adjournment. Further, a submission was made to the learned Magistrate, as I have already indicated in the quotation from the transcript of the hearing before him above. That submission recapitulated the elements from his earlier plea in mitigation. That plea in full was as follows:
"Unfortunately he hasn't mended bridges with his parents and he now does live away from him but things have improved for him in that he now works full time at a lime stone quarry as a machine operator.
Sir, I think he's - - now that he has effectively put his life back on track he's no longer having the frustrations that he had before and his life is a little bit more stable. It's probably not much more I can say about the matter, your Honour. He is in a position to pay a fine in relation to these matters. He does appreciate here - - they're serious enough but, as I said, he does show remorse. He is regretful."
20 The argument of counsel for the appellant, as he appeared to accept before me, was not that there had been so fundamental a flaw in the sentencing process as to make it unnecessary to consider more closely whether or not there had been a miscarriage of justice. Rather, the matter fell to be dealt with in accordance with the authorities on defective decisions of counsel at hearings in criminal cases. Those authorities concern convictions, but it was not in contest before me that they were equally relevant to sentencing decisions.
21 The principal authorities are TKWJ v The Queen (2002) 212 CLR 124 and Ali v The Queen (2005) 79 ALJR 662. The effect of those decisions has recently been considered by the Court of Criminal Appeal in McSwan v The State of Western Australia [2005] WASCA 128 per Pullin JA, Roberts-Smith JA and Le Miere AJA agreeing as follows at [8] – [11]:
"Before considering the particulars of the ground of appeal in detail, I should refer to what effect the incompetence of counsel
(Page 9)
- might have when it is considered as a ground of appeal. The most recent authority on the subject is Ali v The Queen (2005) 79 ALJR 662. The sole ground of appeal entertained by the High Court in that case was that the appellant was not tried fairly because of the incompetence of trial counsel. The criticism was that trial counsel failed to advance a particular theory of the case consistent with his client's innocence. Hayne J (McHugh J agreeing) said at [18]:
'As McHugh J pointed out in TKWJ v The Queen (2002) 212 CLR 124 at 149 [79], "[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred". The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel's conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice.'
Callinan and Heydon JJ said at [99]:
'The evaluation that has to be made is whether the conduct in question produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in TKWJ v The Queen (2002) 212 CLR 124 at [26], [27] said:
"[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it
(Page 10)
- resulted or could have resulted in a forensic advantage. That is an objective test".'
- In D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at [196] Kirby J said that it is well settled that neither counsel's incompetence nor acting contrary to instructions 'will, of itself, attract appellate intervention'.
The difficulty facing an appellant alleging that there was a miscarriage due to his trial counsel's incompetency begins with the fact that the adversarial system is based upon the general assumption that parties are bound by the conduct of their legal representative. See Ali per Gleeson CJ [7]; TKWJ v The Queen (2002) 212 CLR 124 [8]. Usually the conduct of trial counsel cannot be fairly evaluated without knowledge of the trial counsel's brief and the instructions given to counsel. This is usually unavailable to the appeal court: Ali [7]. The brief was not available in this case although there was some evidence of the instructions which were given."
22 In this case, as I have already indicated, I have difficulty seeing why counsel would not have requested a short adjournment upon discovery that his plea on behalf of his client needed to address not only the assault and breach of police order charges, but also the activation of the term of suspended imprisonment. That submission would need to address not simply the matters in s 80(3) of the Sentencing Act, but also the alternatives open to the court in the event that the submission was successful. In that event, the alternatives open to the court under s 80 are to activate the suspended term in part only, (in this case) substitute another suspension period of not more than 24 months for the original 12 months period, or fine the appellant not more than $6,000 and make no order in respect of the suspended imprisonment: s 80(1)(b) – (d).
23 In addressing those matters, counsel would need to consider, in relation to s 80(3), what appears to be the principal authority in this jurisdiction with respect to the potentially relevant considerations, Hall v The Queen [1999] WASCA 225, particularly per Murray J (Kennedy and Pidgeon JJ agreeing) at [32] – [33]:
"As to whether it would or would not be unjust to make the order to which by s 80 the Judge is primarily directed, in R v Holcroft[1997] 2 Qd R 392 at 394 Fitzgerald P said:
(Page 11)
- 'All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.'
- All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P at 394, Lee J at 394 - 5 and Fryberg J at 404 – 5. On the same general consideration reference may be made to R v HolleyEx p. Attorney-General [1997] 2 Qd R 407 per de Jersey J at 410, Lee J at 416 and 419 and Fryberg J at 425."
24 It was put to me by counsel for the respondent that counsel taken by surprise in the circumstances of this case might have come to the conclusion that an adjournment was unnecessary in view of the material he had already received as part of his instructions from his client with respect to the plea in mitigation on the two charges the appellant was known to face. There is nothing in the material existing in affidavits from the appellant and his then counsel for the purpose of the application for leave before McKechnie J to indicate there was any further information the client was in a position to provide. Nor has any material been lodged
(Page 12)
- for the purposes of the hearing before me that would indicate this. Counsel for the appellant did not suggest to me otherwise.
25 However, it is clear from the material I do have that counsel before the learned Magistrate was unaware of the nature of the offence which resulted in the imposition of the suspended imprisonment, except that it was for a "traffic matter". While that feature did not appear to be of significance to the learned Magistrate in his sentencing determination, the same cannot be said of the date of the commission of the assault and breach of police order offences in relation to the commencement of the suspension period. Those offences were committed only about two months into that period, as I have indicated. This appears to have been unknown to counsel. He was of course aware of the nature of the assault offence giving rise to the need to consider activating the suspended imprisonment. That is, he was aware such offences were to be considered serious ones, which he had acknowledged in his plea in mitigation. This characterisation of the assault offence is well supported by authority in this State: see Warrell v Kay (1995) 83 A Crim R 493, WASC Owen J especially at 498. Counsel's plea in mitigation was largely directed to the issue of whether the offence in question itself warranted punishment by imprisonment. However, as Hall, per Murray J at 33 above indicates, even if that submission had found favour with the learned Magistrate, it would still have been open to him to activate the suspended imprisonment, and counsel would have needed to consider that possibility.
26 In those circumstances, it seems to me that there was a material irregularity in this case in the solicitor's failure to seek a short adjournment for the purposes of seeking further instructions from his client, and of considering in any event submissions he would make with respect to as I have described, under s 80(3) and s 80(1)(b) – (d). If a short adjournment had been requested, I have no reason to think that the learned Magistrate would not have granted it.
27 It is a separate issue, however, whether or not there was a significant possibility that irregularity affected the outcome of the sentencing process, so far as concerned the activation of the suspended imprisonment. For reasons I have previously indicated, it does not seem to me that this enquiry can be avoided by characterising the irregularity as one that prevented the sentencing hearing in that respect being a fair one (compare TKWJ, McHugh J at [76]).
28 This calls for a difficult enquiry. In this case there is no suggestion of any argument counsel would have made that was not made in the
(Page 13)
- quotation above. It is, however, possible to suggest that the solicitor might have emphasised those factors personal to the appellant which would indicate why the offences here, and in particular the assault on the police officer did not themselves warrant punishment by imprisonment. This of course was the burden of the solicitor's submission in his plea of mitigation in the passage I quoted above. It is possible to read that passage as one resting on the solicitor's assumption that a term of imprisonment was unlikely, although that would, in my view, entail an assumption that the solicitor had lost sight of the currency of the suspended term of imprisonment to which he had been alerted a short time previously in the submissions by the prosecutor. I return to those personal factors and the matter of whether the assault offence itself could be said to have warranted a term of imprisonment in relation to ground 2 below.
29 However, the learned Magistrate was an experienced sentencing officer. The solicitor had addressed him on the relevant matters not once but twice, the first time in the plea of mitigation in relation to the assault and breach of police order offences, and on the second occasion in response to his Honour's request in terms of s 80(3) of the Sentencing Act. I also note the brief remarks counsel made between those two, when he was first reminded by the learned Magistrate of the possibility of activation of the suspended term of imprisonment.
30 In those circumstances, it does not appear to me that a significant possibility of an effect on the outcome of the sentencing process from the material irregularity has been made out here. It is of course necessary to note that the burden of establishing this matter rests on the appellant.
31 Accordingly, I do not find ground 1 made out.
Sentence of Immediate Imprisonment for Assault on Police Office: Ground 2
32 Given my disposition in relation to ground 1, the value of this ground to the appellant would lie only in the criminal record with which the appellant would be left after the determination of his appeal. However, there is a connection between this ground and the previous ground, in relation to the assessment of the nature of the offences giving rise to the need to consider activating the suspended imprisonment, by reference to whether they themselves warranted punishment by imprisonment. I have previously referred to this connection.
33 It is not altogether clear from the sentencing remarks of the learned Magistrate that it was of importance to him to determine that at least one
(Page 14)
- of the two offences activating the need to consider the imposition of the suspended term of imprisonment itself warranted a term of imprisonment. It is, however, clear from his reasons that it was of significance to him that the assault on the police officer by being spat upon was a serious matter. The principally relevant passage in his sentencing remarks appears to be the following:
"Police orders are not issued willy nilly and no doubt there was behaviour carried - - been carried out by you that required the police to issue that order and you were required to comply with it. Even had that been the case - - even had your parents invited you back home that may well have been the grounds for not suspending the order. However, the police - - the police officer had been spat upon. Assaults on police officers in those circumstances are not tolerated by the police. In fact any assaults aren't, they're not tolerated. The police have got to do a job on behalf of the community and particularly with these restraining order matters they go into a very volatile situation and they must be protected and be seen to be protected.
There is - - I'm not suggesting that you have any social diseases but spitting offences have become - - are treated more and more seriously by the courts because of the threat of - - apart from the disgusting nature of it, the actual threat of blood-borne diseases. It creates emotional difficulties from officers as well and that's totally understandable.
Now, I'm required by law to imprison you unless I'm - - I've already mentioned, satisfied that circumstances have arisen or become known since the sentence was imposed that would make it unjust to do so, and I don't see such factors apply. You were required to behave absolutely emphatically well whilst you were on that suspended term and you have now been convicted of an assault on a police officer, leave aside the breach of the police order. That I am going to deal with by way of a fine. I don't think it's at the upper end of the scale.
The breach … (on tape) … on the police officer; I'll take into account your youth by making it concurrent even though they are separate distinct offences, but in my view I have to trigger the suspended term of imprisonment. There is no way on my duty I could not do that. On the breach you will be imprisoned for 6 months and one day and on the assault on the police
(Page 15)
- officer I will make that concurrent; 6 months one day concurrent on the suspended term."
34 I conclude, however, that it was indeed important to his Honour that the assault offence at least was one that itself warranted a term of imprisonment. I refer in particular to the implicit contrast between the two charges before his Honour when he referred to dealing with the breach of the police order "by way of a fine".
35 It is evident, as counsel for the appellant emphasised, that the learned Magistrate’s focus was on the calling in of the suspended term of imprisonment. However, he also laid considerable emphasis on why the assault constituted by the spitting was a particularly serious matter. He proceeded to a sentence of imprisonment for that offence, after calling in the suspended term, without providing any further analysis.
36 I have previously referred to authority that assaults on a police officer are to be regarded as serious: see Warrell (supra) at 498; see also Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995, per Malcolm CJ at 14, Steytler J agreeing; and Pidgeon J at 3. Those sources amply support the view that a sentence of imprisonment would normally be appropriate, although those authorities also emphasise the need to bear in mind the general principles of sentencing and particularly what is now s 6(4) of the Sentencing Act. This requires taking account of both the level of seriousness of the particular assault, as well as the personal circumstances of the offender: Warrell at 498.
37 Sentences of imprisonment have been imposed for spitting on police officers: see Cox v Whitehead & Ors [1999] WASCA 277 (sentences of 6 months and 9 months, although prior to the transition period amendments, on pleas of guilty). I also note R v Juric [2003] QCA 132 per Williams JA, De Jersey CJ and Atkinson J agreeing, at [9].
38 A sentence of 6 months plus 1 day for the spitting as described by the prosecutor in this case, grossed up for the transition period amendments to 9 months plus 3 days, and after allowing for a plea of guilty, would appear to be high. There was no transfer of body fluids, such as blood, into an orifice of the police officer (as in Whitehead, for the sentence of 9 months there). However, I not consider such a sentence to be so high as to be outside the exercise of appropriate sentencing discretion or to tend to indicate undue weight had been given to the nature of the offence.
39 This then takes me to the second of the two qualifications on imprisonment from Warrell (supra), personal factors, to which the third
(Page 16)
- particular of ground 2, "failing to give sufficient weight to mitigating factors", relates.
40 The learned Magistrate at the commencement of his remarks indicated "I've taken into account your plea of guilty to this charge today, these charges. I've taken into account your previous history". Towards the end of his sentencing remarks, as I quoted them above, he says "I'll take into account your youth by making it [the sentence for the assault on the police officer] concurrent even though they are quite separate offences". It is true that the learned Magistrate does not indicate a particular discount for the plea of guilty. This might tend to indicate a failure to give sufficient weight to at least the plea of guilty. Compare Whitehead, per Miller J at [22]. However, there is no objection taken to the length, as opposed to the imposition, of the sentence in this case. While the sentence is at the high end, as I have said, it does not appear to me, as I have also said, to be of such a duration as to indicate a failure to give sufficient weight to that factor, or to other mitigating factors. No other mitigating factors than those referred to by the learned Magistrate were emphasised in counsel’s argument before me.
41 The remaining particular has to do with the learned Magistrate's not having considered alternative dispositions to imprisonment. This would be confined to the charge of assault, as, I have indicated, he imposed a fine with respect to the breach of the police order.
42 The plea in mitigation from the counsel for the appellant referred the learned Magistrate only to a fine, and not to any other alternative disposition from the list in s 39(2) of the Sentencing Act, read with s 42. Counsel for the respondent put to me that there is a short response to this particular. It is in terms of Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 per Franklyn J (with whom Malcolm CJ agreed on this point, Ipp J agreeing) as follows:
"That the sentencing Judge should make the references contended for (to the options in s 39(2)) is not a requirement of the Act. It is trite to say that a Judge is presumed to know the law. A conclusion by a sentencing Judge that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. That the sentencing Judge does not express in positive terms that conclusion cannot lead to an inference that he failed to give proper consideration to the inappropriateness of the sentencing options not exercised by him."
(Page 17)
43 This passage has been referred to in White v Taylor [2001] WASCA 350 per Hasluck J at [28]. At least in the context of the offence of the sort involved in this case, with which the term of imprisonment to be immediately served is commonly if not invariably associated, that quoted passage would appear to dispose of the current particular.
44 However, in supplementary submissions on this authority after the hearing for which I gave leave, counsel for the appellant reminded me of s 35(1) of the Sentencing Act. This requires a court sentencing an offender to a term of imprisonment or an aggregate of terms of imprisonment of 12 months or less to give "written reasons why no other available sentencing option was appropriate". That subsection has been in the Act since its inception. There appears to be no extended judicial consideration of it reported. I note the only reference to it by way of analysis of its terms in Mustafa v The Queen [2001] WASCA 192, per Murray J, at [60]. There his Honour notes that by that subsection "written reasons are to be provided where a short sentence of imprisonment is to be imposed", by way of contrast with the sentencing process otherwise, which "remains an essentially oral process". No other member of the Court found it necessary to analyse the provision. In any event it was not necessary to apply it in the case.
45 It seems to me that the learned Magistrate, in emphasising the seriousness of the offence of assault on a police officer acting in the execution of his duty, even such an offence constituted only by spitting on that officer, has provided the reasons called for by s 35(1). This is in view of the approach to sentencing in such cases from the authorities to which I have referred previously.
46 I do not consider s 35(1) requires the sentencing officer in addition to indicate that such level of seriousness makes the use of any of the alternatives to imprisonment inappropriate in the circumstances. This is provided that the sentencing remarks indicate the mitigating circumstances for the offender have been weighed: see James v The Queen [2000] WASCA 100, per Murray J, Pidgeon and Wallwork JJ agreeing, at [47] - [49]. I have already referred to the indications in the sentencing remarks of the learned Magistrate that the mitigating circumstances on which reliance was placed before me were indeed taken account of.
47 It follows that I would not uphold ground 2. It further follows that the present ground has no effect on my disposition in respect of ground 1.
(Page 18)
Conclusion
48 I have thus determined that, as neither ground of appeal has been made out, the appeal in this matter should be dismissed.
49 I will hear from the parties as to the appropriate orders.
4
21
0