Delahunty v Sinden
[2019] WASC 91
•22 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DELAHUNTY -v- SINDEN [2019] WASC 91
CORAM: CORBOY J
HEARD: 24 AUGUST 2018; 27 FEBRUARY, 7 & 13 MARCH 2019
DELIVERED : 13 MARCH 2019
PUBLISHED : 22 MARCH 2019
FILE NO/S: SJA 1090 of 2018
BETWEEN: DANIEL BENJAMIN DELAHUNTY
Appellant
AND
TANIA SINDEN
Respondent
Catchwords:
Criminal law - Appeal against sentence - Sections 9AA and 86 Sentencing Act 1995 (WA) - Whether setting aside a suspended imprisonment may have retrospective effect
Legislation:
Criminal Appeals Act 2004 (WA), s 14 & s 15
Sentencing Act 1995 (WA), s 9AA, s 86
Result:
Leave to appeal out of time
Leave to appeal on each ground
Appeal allowed
Appellant resentenced on charge MI 12704/17: community–based order, with supervision and programme requirements, for a period of 6 months
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr J F W Cardell-Oliver |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Almonte v Beswick [2013] WASC 207
Bennier v Millar [2016] WASC 393
Casotti v Pickering [2013] WASC 174
Dreja v The State of Western Australia [2012] WASCA 151
Edwards v Collins [2018] WASC 119
Edwards v Simpson [2018] WASCA 177
Horner v Hunt [2013] WASC 241
Re Culleton [No 2] [2017] HCA 4; (2017) 91 ALJR 311
Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158
Sikora v Gibson [2018] WASC 271
Vickery v McAlinden [2017] WASC 224
Winmar v Clarke [2015] WASC 314
CORBOY J:
(This judgment was delivered extemporaneously on 13 March 2018 and has been edited from the transcript.)
The appeal and the result
The appellant pleaded guilty in the Magistrate's Court to four charges of trespass and two charges of possessing drug paraphernalia in which there were prohibited drugs. He was sentenced on 12 December 2017 to a total effective sentence of 6 months' imprisonment, suspended for a period of 8 months (the ISO).
The appellant appealed from that sentence on two grounds:
(1)the learned magistrate erred in law in imposing a sentence of 6 months' imprisonment, contrary to s 86 of the Sentencing Act 1995 (WA);
(2)the magistrate erred in law in failing to reduce the appellant's sentence to reflect the benefit to the State and any witnesses of his plea of guilty, as required by s 9AA of the Sentencing Act.
The respondent conceded that the appeal should be allowed on ground 1 and the appellant's sentence should be set aside. Ground 2 of the appeal was not conceded and there was an issue concerning the appropriate sentence to be imposed on resentencing the appellant.
I made the following orders in the appeal:
(a)the appellant is granted leave to commence the appeal out of time;
(b)the appellant is granted leave to appeal on each ground alleged in the notice of appeal;
(c)the appeal is allowed;
(d)the appellant's sentence is set aside;
(e)the appellant is resentenced to a community‑based order, with programme and supervision requirements, for a period of 6 months.
These are my reasons for making those orders. The reasons were first delivered orally and have been subsequently edited from the transcript.
The appeal
Section 86 of the Sentencing Act states that a court must not sentence an offender to a term of imprisonment of 6 months or less unless certain exceptions apply. The exceptions to the limitation in s 86 were not relevant to the sentencing of the appellant.
Section 77(6) of the Sentencing Act provides 'for the purpose of a law other than this part and pt 12 and pt 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment'. Part 13 of the Sentencing Act includes s 86.
It has been occasionally argued that the effect of s 77(6) is that the restriction in s 86 does not apply to a suspended imprisonment order so that a term of imprisonment of less than 6 months and 1 day can be imposed where such an order is made. That argument was not put by either party to the appeal. It has been rejected by Hall J in Casotti v Pickering[1] and Chaney J in Vickery v McAlinden.[2] Consequently, the respondent's concession reflected a line of authority in this court that I was bound to follow, unless I concluded that it was plainly wrong. That was not my view.
[1] Casotti v Pickering [2013] WASC 174.
[2] Vickery v McAlinden [2017] WASC 224; see also Almonte v Beswick [2013] WASC 207.
I also concluded it could not be inferred that the sentencing magistrate took the appellant's plea of guilty into account in determining the total effective sentence to be imposed. Accordingly, the appellant was granted leave to appeal on ground 2 and the appeal was allowed on that ground.
The appellant did not commence the appeal until 26 June 2018. The respondent did not object to the appeal being commenced out of time having regard to the concession made on ground 1. The appellant was granted leave to appeal out of time.
Programming directions for the hearing of the appeal were made by Archer J on 3 July 2018. The appeal was listed to be heard on 24 August 2018, by which time the period of the suspended imprisonment order had expired. However, that did not mean that the appeal is necessarily nugatory.
At the hearing on 24 August 2018, I ordered a pre‑sentence report. I did so for two reasons: first, the magistrate's sentencing remarks contained little information about the appellant's personal circumstances and, second, I am entitled to take into account matters relevant to resentencing the appellant that have occurred since December 2017. Further hearings in the appeal were held on 27 February and 7 March 2019 and oral reasons were delivered on 13 March 2019.
The sentences imposed and the magistrate's sentencing remarks
It is not necessary to summarise the magistrate's remarks. It is necessary only to note that there was no express reference to the appellant's plea of guilty and nothing in his Honour's sentencing remarks, or in the sentence imposed, from which it could be inferred that his Honour must have taken the appellant's plea into account in determining the appropriate sentences to be imposed. As Martino J observed in Winmar v Clarke,[3] '[t]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judicial officer has overlooked it'.[4]
[3] Winmar v Clarke [2015] WASC 314.
[4] Winmar v Clarke [26].
The magistrate sentenced the appellant to 6 months' imprisonment, suspended for 8 months for one offence of trespassing (charge MI 12704/17). It is the sentence for that offence which is the subject of the appeal.
His Honour sentenced the appellant to a community‑based order of 6 months concurrent for each of the remaining trespass offences (charges MI 12705/17 ‑ 12707/17) and imposed a global fine of $500 for the two offences of possessing drug paraphernalia (charges MI 12708/17 and MI 12709/17).
The facts of the trespass offences
The facts alleged and admitted in respect of the four trespass offences were that each offence was committed by the appellant entering upon a property occupied by La Salle College in Middle Swan. The first offence was committed when the appellant entered the college premises at approximately 5.10 am on Saturday, 23 September 2017. He entered by scaling a fence and, once in the school grounds, he forced open a number of student lockers that had been secured by locks.
The remaining three trespass offences were alleged to have occurred sometime between 23 September 2017 and 22 October 2017. The facts alleged and admitted were substantially the same as for the first trespass offence.
The appellant was alleged to have stolen items on three of the occasions that he trespassed on the grounds of the La Salle College. He was charged with one stealing offence for which he was fined $200. He was also charged with possessing housebreaking instruments and criminal damage. A community‑based order for 6 months was made for those offences.
Consequently, the appellant had been separately charged and punished for the criminal acts that he committed while on the grounds of the college. It was necessary to ensure that the appellant was not doubly punished when he was sentenced for the trespass offences.
Events since December 2017
On 30 January 2018, the appellant pleaded guilty in the Magistrates Court to two charges of possessing drug paraphernalia, for which he was fined a global amount of $500. Those offences were committed on 26 December 2017.
The appellant is due to appear in the Perth Magistrates Court on two stealing charges, and further charges of gaining a benefit by fraud and breaching a bail undertaking. He has also been committed to appear in the District Court on one charge of aggravated home burglary and committing an offence. Those offences are alleged to have occurred in December 2017 and January 2018. A conviction for any of those offences would constitute a breach of the ISO if the order was in force at the time the offence was committed.
The appellant's personal circumstances
The appellant was born on 7 October 1993 and, accordingly, he was 24 years of age at the time that he committed the trespass offence. He could not be described as a young offender, but he is entitled to some benefit on account of his age for the purpose of sentencing.
The appellant was raised by his mother and has never met his father. The author of the pre‑sentence report described the appellant's mother as a stabilising influence on the appellant.
The appellant experienced significant behavioural problems at school and his mother had to attend class with him to ensure that he behaved appropriately. He left school in Year 10 to work as a plasterer, but returned to complete Year 12. He worked occasionally as a plasterer after leaving school, but has not worked for some time. He recognises his lack of recent employment reflects, at least in part, his problems with substance abuse.
The appellant has been involved in one significant relationship which ended in September 2017. He has two children, aged two and three years, from that relationship.
The appellant accepts that the relationship with his former partner deteriorated as a result of his drug use. However, he informed the author of his pre‑sentence report that he has been responsible for caring for his children since January 2018 when he discovered that his former partner was using illicit substances and not properly caring for their children.
The appellant admits that he abused alcohol for some time up to the birth of his oldest child. He ceased using alcohol at about that time following an incident in which he made violent threats to his mother and ex‑partner. However, he continued to use methylamphetamine and advised the author of his pre‑sentence report that he had a significant drug debt at the time he committed the offences. He also admits that he was intoxicated by methylamphetamine at that time.
However, the appellant states that he ceased using methylamphetamine after taking custody of his children in January 2018. He has not been charged with committing any offence since that time (that is, any time after he took custody of his children), and I infer that he is motivated to abstain from using methylamphetamine in order to continue to care for his children. However, the appellant does admit to continuing to use cannabis.
The author of the appellant's pre‑sentence report advised that:
[The appellant] has previously been subject to five Community Based Orders which have now expired. Records indicate that his compliance with his Order requirements was sporadic, largely due to being the primary caregiver for his children. He completed his 20 hours of community work but did not complete programmatic intervention.
The effect of setting aside the ISO
Section 14(1) of the Criminal Appeals Act 2004 (WA) provides that in deciding an appeal, this court may, among other things, set aside or vary the decision of the Court of Summary Jurisdiction and the sentence imposed, order made or thing done as a result of the decision. Further, the court may substitute a decision that should have been made by the Court of Summary Jurisdiction. The term 'decision' is defined to include a sentence imposed, or order made, as a result of a conviction. Section 14(2) further provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In my view, a substantial miscarriage of justice for the purpose of s 14(2) of the Criminal Appeals Act will occur where a magistrate purports to exercise a power in sentencing that has not been conferred by the Sentencing Act. Accordingly, in this case, the ISO made by the magistrate must be set aside.
An issue arose in the hearing of the appeal concerning the effect of setting aside the suspended imprisonment order: is the order set aside retrospectively so that it is void ab initio, or is the order only set aside prospectively? Counsel for the respondent quite properly drew the court's attention to the decision of the Court of Appeal in Dreja v The State of Western Australia[5] on that issue. In that case, Pullin JA (with whom Newnes and Mazza JJA agreed) stated in relation to s 14(1) of the Criminal Appeals Act:[6]
Section 14(1) authorises the court to make orders which set aside orders made by courts of summary jurisdiction by annulling or quashing the orders ab initio or by setting them aside prospectively. What is intended will be ascertained by the terms of the order taking into account the orders which are being set aside.
Thus, in a case where under s 14(1) a judge on appeal sets aside a judgment of conviction, the order in context will mean that the judgment is set aside ab initio … . This is because the order could have no effect other than to annul the conviction because the judgment of conviction was complete on the date it was made.
On the other hand, an order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order.
…
The meaning of the words [set aside] may have the more "drastic" meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.
[5] Dreja v The State of Western Australia [2012] WASCA 151.
[6] Dreja v The State of Western Australia [13] ‑ [15], [17].
The respondent accepted that the effect of the Court of Appeal's interpretation of the power conferred by s 14(1) of the Criminal Appeals Act was that:
(a)Ordinarily, an order setting aside a suspended imprisonment order (Appeal Order) will take effect prospectively ‑ that is, the suspended imprisonment order will only be set aside on and from the date on which the Appeal Order was pronounced. The suspended imprisonment order otherwise has full force and effect until it is set aside;
(b)However, the court can determine that an Appeal Order is to operate retrospectively so that the suspended imprisonment order is treated as being void ab initio. It would be necessary for the court to expressly state that the Appeal Order has retrospective effect given the ordinary effect of setting aside a suspended imprisonment order.
The Court of Appeal did not identify in Dreja the criteria to be applied in determining whether an Appeal Order should have retrospective or prospective effect.
The decision of the Court of Appeal in Dreja was referred to by Jenkins J in Edwards v Collins.[7] Her Honour's decision in that case was upheld on appeal.[8] However, the Court of Appeal in Edwards v Simpson did not refer to the decision or reasoning in Dreja.
[7] Edwards v Collins [2018] WASC 119.
[8] Edwards v Simpson [2018] WASCA 177.
The appellant did not contend in this appeal that the ISO should be set aside from the date on which it was made. Accordingly, it is not necessary to further consider the decision of the Court of Appeal in Dreja. However, I note two matters should the issue arise in the future.
First, in Re Culleton [No 2][9] the High Court explained that, depending on the statutory context, an order that is subsequently annulled will not necessarily be treated as having no legal effect. Consequently, it may not necessarily be correct to equate the legal effect of annulling an existing order with holding that the order was void ab initio.
[9] Re Culleton [No 2] [2017] HCA 4; (2017) 91 ALJR 311.
Second, and more substantively, neither the Court of Appeal in Dreja nor Jenkins J in Edwards v Collins referred to s 15(1) of the Criminal Appeals Act. That section provides for the consequences of concluding an appeal from a decision of a Court of Summary Jurisdiction. Section 15(1) states:
(1)The decision of the Supreme Court, or the decision of the Court of Summary Jurisdiction as varied by the Supreme Court, other than a decision under section 13(2) or 14(1)(e) or (f), has effect as if it were the decision of the Court of Summary Jurisdiction, and may be enforced accordingly.
The plurality in Re Culleton [No 2] noted that the phrase 'as if' serves to introduce a legal fiction or hypothetical contrast ‑ the expression 'deems something to be what it is not or compares it with what it is not'.[10] Consequently, there may be a question of statutory construction concerning the meaning of 'set aside' in s 14(1) of the Criminal Appeals Act having regard to s 15 and the remaining provisions of the Act which allow for an appeal from the decision a Court of Summary Jurisdiction.
[10] Re Culleton [No 2] [27] (citing McHugh J in Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 [115].
Resentencing
In Sikora v Gibson,[11] I reviewed a number of decisions of this court in which an appeal against sentence for the offence of trespass had been considered. No customary range of sentences can be discerned from the decisions reviewed.[12] There were cases in which a term of imprisonment for the offence had been held to be within the sound exercise of the sentencing discretion. On the other hand, there were cases where a conditional release order or fines had been imposed for the offence.
[11] Sikora v Gibson [2018] WASC 271.
[12] See Horner v Hunt [2013] WASC 241 [39] (Hall J).
However, in cases where a term of imprisonment had been upheld on appeal or imposed in resentencing, the offender had committed other offences for which terms of imprisonment were imposed. In those instances, terms of imprisonment of less than 6 months for a trespass offence were imposed. A sentence of less than 6 months' imprisonment was available as the appellant had been sentenced to more one term of imprisonment so that the total effective sentence exceeded 6 months and 1 day.
Bennier v Millar was an exception.[13] In that case, Martino J dismissed an appeal against the sentence of 7 months' imprisonment for a single offence of trespass (the sentence was suspended for 9 months). The appellant entered a railway property without authority. Train services had to be cancelled and substantial police and emergency services resources were required to attend at the scene of the trespass. The appellant was not removed from the property for approximately 10 hours. Self‑evidently, the offending was a serious example of a trespass.
[13] Bennier v Millar [2016] WASC 393.
As the sentencing magistrate observed in this case, there is no doubt that the appellant's trespass offences were serious and his Honour concluded that at least one offence should carry a suspended term of imprisonment. General deterrence was a significant factor in sentencing the appellant having regard to the property where the trespass was committed. Schools are vulnerable sites for trespass offences and instances of vandalism, and even arson, committed on and against school property are, regrettably, too common.
Further, the appellant has a criminal record ‑ he was first convicted of an offence in November 2017 and he was then subsequently convicted of driving while under the influence of alcohol, disorderly behaviour in public, gaining benefits by fraud and possessing drug paraphernalia. Accordingly, personal deterrence was also a relevant factor in sentencing the appellant.
However, the appellant has taken steps towards his rehabilitation since about late January 2018. I infer that he has been motivated by a desire to properly care for his children. He completed the community work requirements of the ISO and there was no suggestion in the pre‑sentence report that he did not comply with any supervision requirement. As noted, the appellant has been charged with offences allegedly committed in December 2017 and January 2018, but he has not been charged with any offence since that time - that is, from the time when he assumed responsibility for the care and custody of his children.
The Sentencing Act requires that an offender only be sentenced to a term of imprisonment if it is the only appropriate sentencing option. I concluded that a non‑custodial sentence was available having regard to the fact that the ISO had expired, the appellant had completed some of the requirements of the order and he had apparently taken steps towards his rehabilitation. The appellant has an incentive to continue with his rehabilitation and not engage in anti‑social and criminal behaviour given his responsibility for the care and custody of his children.
The pre‑sentence report the court received supported a non‑custodial sentence. However, the report noted the appellant had not completed programme requirements imposed under the ISO. The appellant has a history of substance abuse and would, in my view, benefit from further counselling to deal with his problems with substance use. It is in his interests, and the interests of the community, that he be given an opportunity to participate in any programme that may be available to address his substance use in an environment that supports and reinforces his incentives not to reoffend. In all the circumstances, I concluded that it was not appropriate to vary the ISO or to impose a more severe punishment. Rather, I concluded, that the appropriate sentence to be imposed on charge MI 12704/17 was a community‑based order, with supervision and programme requirements, for a period of 6 months. The period of the order took into account the period of the previous order that had expired.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy21 MARCH 2019
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