Crossley v Cole - [2005] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CROSSLEY -v- COLE [2005] WASC 249

CORAM: MCKECHNIE J

HEARD: 18 & 20 OCTOBER 2005

DELIVERED : 20 OCTOBER 2005

FILE NO/S: SJA 1093 of 2005

BETWEEN: DEAN PETER CROSSLEY
Appellant
AND
PAULINE COLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR M D WHEELER SM
File No  :JO 4735 of 2005, JO 7130 of 2005

Catchwords:

Appeals - Reasonable prospects of success - Conduct of hearing - Whether miscarriage of justice - Duties of counsel to help judicial officer avoid appellable error - Grounds of appeal - Need for proper formulation

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b), s 9

Sentencing Act 1995 (WA), s 80, s 80(3), s 81(a)

Result:

Leave to appeal on some grounds
Applicant admitted to bail

Category: B

Representation:

Counsel:

Appellant: Mr A S Derrick
Respondent: Ms S M De Maio

Solicitors:

Appellant: Evangel Legal Services
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1

Case(s) also cited:

Nil

MCKECHNIE J: This is an application for leave to appeal and also for bail. The respondent opposes the application for leave but properly concedes that should leave be granted then bail is appropriate.
On 11 May 2005 the applicant was convicted of one count of driving without a licence while under suspension and sentenced to a term of imprisonment for 6 months and 1 day. That term was suspended for a period of 12 months.
Some 2 months later, on 14 July 2005, the applicant was involved in an incident at his parents' home. He had returned to his parents' home in contravention of a police order and barricaded himself in a bedroom. Police attended and apprehended him. During the course of being apprehended he spat at a police officer.
So it was that on 13 September 2005 he entered a plead of guilty in the Joondalup Magistrates Court to one count of breaching a police order and one count of assaulting a public officer performing a function of her office.
The Magistrate invoked the suspended sentence and imposed a sentence of 6 months and 1 day to be served concurrently in respect of the assault. From that disposition the applicant seeks leave to appeal as follows:
"1.The learned Magistrate erred in concluding that he had to make an order under s 80(1)(a) of the Sentencing Act 1995 in circumstances where:
(1)Counsel for the Applicant was not aware of the existence of the period term of suspended imprisonment;
(2)Counsel for the Applicant 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 that matter;
(3)the Applicant 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
(4)the learned Magistrate was not informed of, and made no enquiry of, the facts and circumstances concerning the offence that resulted in the imposition of the suspended term of imprisonment.
2.The learned Magistrate erred in concluding that the offence of assaulting a police officer by spitting was the reason why an order should be made for the Applicant to serve the term of imprisonment which was suspended.
3.The learned Magistrate erred in the imposition of a term of imprisonment for the offence of assaulting a police officer by:
(1)giving undue weight to the seriousness of the offence;
(2)failing to consider alternative dispositions to imprisonment; and
(3)failing to give sufficient weight to mitigating matters."
The applicant also seeks bail.
By the Criminal Appeals Act 2004 (WA) s 9 leave is required for each ground of appeal and the Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of success.
I am satisfied that leave should be granted in respect of ground 3 and therefore need say no more about it.
However, unless the applicant obtains a grant of leave in respect of grounds 1 and 2 the grant of leave will be hollow and it is to those grounds that I now turn.
It is necessary to delve somewhat deeper into the factual circumstances.
Before doing so I make the following general comments. Proceedings are adversarial in nature. Counsel's duties include a duty to assist a judicial officer to avoid appellable error where possible. Generally, a party is bound by the conduct of their counsel and the way in which a case unfolds. A judicial officer's duty is to ensure a fair trial and, in the case of sentencing, to take note of relevant considerations under the Sentencing Act 1995 (WA) or in accordance with established authority. However, the judicial officer is not an inquisitor and, generally speaking, it remains for the party to present their case and make submissions as to what they seek as an appropriate outcome.
Sometimes, as a result of the action or inaction of counsel, a miscarriage of justice may occur. No‑one is perfect and even the most competent of counsel will occasionally make an error. If that error results in a miscarriage of justice then an appeal court will generally intervene. But the critical issue is whether there is a miscarriage of justice. Attempts to confine grounds to asserted errors on the part of the judicial officer may fail if the error is that of counsel and it is as well for drafters of grounds to face up to the fact.
The critical issue is, in the end, not whether the counsel erred in some way but whether a miscarriage of justice has occurred: Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 per Hayne J at [18].
I return to the facts. The applicant was aged 20 at the time of the offences. On 25 July 2005 he consulted a solicitor (who was not counsel on the application for leave to appeal). He gave his solicitor a copy of his criminal record which comprised one page. The criminal record is dated 14 July 2005 and contains the handwritten notation "Accused copy" on the document. At the bottom it says:
"Date 14/7/2005. I hereby certify that this is a true copy of court appearances recorded at this office against the person named above.
Offender Information Bureau, Police Service, Perth, Superintendent in Charge, Forensic Division continuation …".
The applicant also told his solicitor that he did not have a significant criminal record other than driving convictions but that he had once received a suspended sentence for 6 months. He did not tell the solicitor that the suspended term of imprisonment was current and that the suspended sentence did not appear on the record he had been given by the police and gave to his solicitor. Various enquiries were made by his solicitor and further instructions were taken on 12 September where the solicitor discussed the option of changing his plea from not guilty to guilty. An arrangement was made to meet early the following morning at the Joondalup Magistrates Court so that the solicitor could discuss the change of plea and take final instructions regarding a plea in mitigation. On 13 September the applicant arrived late at Court. He gave his solicitor the disclosure documents given to him by police, including a copy of his criminal record and witness statement. The criminal record appears to have been similar to the earlier one and consisted of one page only.
The applicant says that he did not instruct his solicitor properly about his suspended sentence because the police did not provide him with a complete criminal record prior to the date of the final hearing. When he gave instructions to his solicitor about his criminal history he could not clearly recall all his past convictions but he did mention that he had received a suspended term of imprisonment in the past. He could not recall specifically what the details of the convictions were and what impact it may have on the present charges.
I must say I find it surprising that the applicant should be so vague about the suspended sentence which had been imposed upon him only a little over 2 months before he spoke with his solicitor. On the other hand, the provision of just one page of his record, notwithstanding the note "continuation" at the bottom is likely to have been misleading. At all events, at the time of the hearing on 13 September 2005 it is fair to assume that the solicitor was unaware of any problem with the suspended sentence.
On the morning of the hearing, the Magistrate put the two charges to the applicant who pleaded guilty. The prosecutor then read out the facts including "there is a record in relation to Mr Crossley who is currently on a suspended imprisonment order in relation to a traffic matter". The solicitor then presented his plea in mitigation concluding by saying:
"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".
The Magistrate then intervened:
"HIS HONOUR: Suspended imprisonment order. We can't shadow‑box around that".
Clearly enough the Magistrate had in mind the likely consequences to the applicant of his conviction on these offences. By the Sentencing Act s 80 the Magistrate was required to activate the suspended sentence unless he decided it would be unjust to do so in view of all the circumstances that had arisen or have become known since the suspended sentence of imprisonment was imposed.
What happened next is set out in the transcript:
"COUNSEL: Yes. Your Honour, I didn't receive instructions in relation to that matter. I would submit - - not - - I can't really address you in relation to that particular aspect but I would ask your Honour to consider extending a suspended order in relation to these particular matters. They arose out of one particular incident. It was an isolated incident that I think he has now overcome. I was certainly a problematic time in his life.
HIS HONOUR: I can only imprison him if the circumstances have arisen or become known since the sentence was imposed that would make it unjust to do so. It's the wording and it's the reality.
What circumstances have arisen or become known since the suspended term of imprisonment to impose or make it unjust to imprison him now?
COUNSEL: I would refer you back to the fact that he has managed to stabilise his life. He is now in a situation where he 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) getting 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 is given another opportunity I really don't think he would come before the court again."
In responding, the prosecutor pointed out that the appellant was subject to a suspended imprisonment order and asked that the applicant be sentenced to an immediate term of imprisonment. The Magistrate, in the course of his reasons, said:
"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 (sic) impeccably 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."
Taking into account the applicant's youth the Magistrate made the sentences concurrent even though they were distinct offences. He said:
"… in my view I have to trigger the suspended term of imprisonment. There is no way on my duty I could not do that."
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.
I return to ground 1. I can dispose of ground 1(4) immediately. I do not consider that any enquiry of the facts and circumstances concerning the offence that resulted in the imposition of the suspended term of imprisonment would have particularly mattered in the circumstances of this case. The Magistrate was not in a position to review the appropriateness of the suspended term. He was obliged to accept that there had been a judicial determination that the conduct of driving while under suspension justified a term of imprisonment of 6 months and 1 day suspended for 12 months. The words of s 80(3) of the Sentencing Act support this. The focus in s 80(3) is on what has occurred after suspended imprisonment was imposed.
As to ground 1 particulars (1) to (3), I conclude that the ground as presently worded has no reasonable prospects of success. This is because I do not consider that the learned Magistrate in all the circumstances made the error contended for.
However, there is a reasonably arguable case that in the circumstances as set out in Ground 1 particulars (1), (2) and (3) that a miscarriage of justice has occurred: see Criminal Appeals Act 2004 s 8(1)(b). That is not presently the ground of course but I would be prepared to entertain an application to amend ground 1 to assert that there was a miscarriage of justice in making an order under s 81(a) of the Sentencing Act in circumstances where:
1.Counsel for the applicant was not aware of the existence of the previous term of suspended imprisonment;
2.Counsel for the applicant informed the Court that he did not receive instructions in relation to the previous term of imprisonment and was therefore not able to address the Court on that matter;
3.The applicant was not able to present a full plea in mitigation on the circumstances that have arisen or become known since the suspended imprisonment was imposed.

Ground 2

"2.The learned Magistrate erred in concluding that the offence of assaulting a police officer by spitting was the reason why an order should be made for the Applicant to serve the term of imprisonment which was suspended."

Counsel on the appeal helpfully drafted detailed written submissions in respect of each ground and supplemented these by oral submissions. In respect of these grounds the written submissions say:
"18.It is apparent from the learned Magistrate's remarks, particularly those at the bottom of page 5 of the transcript (affidavit of Evangel page 35), that it was His Honour's assessment of the nature and seriousness of the assault public officer offence that led His Honour to conclude that it would not, in view of all the circumstances that had arisen or had become known since the imposition of the suspended term of imprisonment, be unjust to order the applicant to serve the suspended term of imprisonment."
I have read the Magistrate's remarks at page 5, a portion of which I have earlier set out. I do not consider that there is any reasonable argument supporting the interpretation of the Magistrate's words for which the applicant contends and I conclude there is no reasonable prospects of success in relation to ground 2.

Conclusion

If application is made to amend the grounds of appeal in the manner I have outlined, I will grant leave on amended ground 1 and ground 3 and will thereupon admit the applicant to bail on his own recognisance $1000 to appear at the hearing of the appeal when notified.