Djanghara v Law
[2020] WASC 258
•26 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DJANGHARA -v- LAW [2020] WASC 258
CORAM: ARCHER J
HEARD: 26 JUNE 2020
DELIVERED : 26 JUNE 2020
FILE NO/S: SJA 1007 of 2020
BETWEEN: SABASTIAN ANTHONY DJANGHARA
Appellant
AND
DAVID LAW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE C ROBERTS
File Number : KR 1015/2019
Catchwords:
Criminal law - Appeal against sentence - Having regard to uncharged offence - Manifestly excessive - Wrong sentence - Suspended imprisonment
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Result:
Leave to appeal granted
Appeal allowed
Sentence set aside
Appellant re-sentenced to a fine of $200, suspended for one month
Category: B
Representation:
Counsel:
| Appellant | : | C P Brennan |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Birch v Binnekamp [2018] WASC 58
Collard v Peden [2017] WASC 32
Corpus v Roseveare [2015] WASC 165
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Elwin v Robinson [2012] WASC 311
Fernandes v The State of Western Australia [2009] WASCA 227
Gaskell v The State of Western Australia [2018] WASCA 8
Gray v Hayter [2017] WASC 140
Heesom v O'Keefe [2017] WASC 362
Lewsam v The State of Western Australia [2016] WASCA 60
Moir v The State of Western Australia [2014] WASCA 25
Nayna v The State of Western Australia [2016] WASCA 169
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skelly v The State of Western Australia [2020] WASCA 3
Strahan v Brennan [2014] WASC 190
Vickery v McAlinden [2017] WASC 224
Wilson v The State of Western Australia [2010] WASCA 82
ARCHER J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 28 October 2019, the appellant pleaded guilty to three offences: street drinking, disorderly behaviour in public and obstructing a public officer. I will refer to the last offence as the 'obstruction offence'.
On 10 January 2020, the learned sentencing magistrate fined the appellant in respect of the first two offences. For the obstruction offence, his Honour imposed a term of suspended imprisonment of 6 months and 1 day, suspended for nine months.
The appellant appeals against the sentence for the obstruction offence.
The application for leave to appeal was ordered to be heard at the same time as the appeal.
Appeals from magistrates' decisions[1]
[1] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362, but is repeated here for convenience.
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[2]
[2] Criminal Appeals Act, s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[3] This means that the ground is required to have a real, rational and logical prospect of succeeding.[4]
[3] Criminal Appeals Act, s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[5] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[6]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[5] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[6] Strahan v Brennan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[7] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[8]
[7] Ninyette v Holmes [2015] WASC 287 [56.3].
[8] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
Grounds of appeal
In written submissions filed prior to the hearing of this appeal, the appellant indicated that he sought to amend his grounds of appeal to be as follows:
Ground 1: The learned sentencing Magistrate erred in law by taking into account irrelevant considerations; namely factual particulars not relevant to the offence of obstruct public officer.
Ground 2: The learned sentencing Magistrate erred by imposing a sentence that was manifestly excessive for the offence of obstruct public officer.
Particulars
i)the circumstances and objective seriousness of the offence;
ii)the appellant's personal circumstances;
iii)the appellant's positive engagement with the court-provided diversion program;
iv)the imposition of a sentence of imprisonment (albeit that the term of imprisonment was suspended); and
v)sentences imposed in comparable cases.
Shortly before the hearing, the appellant sought to add a further ground. This was that the magistrate erred in fact in sentencing the appellant on the basis that he had two prior convictions for obstructing public officers, when he only had one.
The State did not oppose the application to amend the grounds of appeal, and I granted leave.
The facts
The facts for all three offences were as follows:[9]
… at about 6.40 pm of Friday, 4 October 2019, the accused [was] standing in the middle of the road of Palm Court, Kununurra. The accused approached a police vehicle with an opened can of Jim Beam bourbon. He was advised that it was illegal to street drink and the police would destroy the alcohol. The accused began to drink the alcohol in front of the police. Police took the bourbon can from the accused and the accused started to be aggressive. The accused began to shout obscene, threatening, abusive language at the top of his voice towards the police. Sample language sir:
I'm going to kill you cunt, you fucking cocksucker. etcetera sir.
The accused was advised that if he continued his behavior he would be arrested. The accused['s] friends attempted to calm down the accused and take him away from police, but the accused continue[d] to shout abuse at the top of his voice at police. The accused [then] began to physically fight with his friends and push past one to adopt a fighting [stance] towards the police in front of the police. The accused lunged towards police and was arrested. The accused began to physically resist the arrest by throwing his arms in the air and trying to pull away from police.
The accused was placed on the ground where he began to dig his arms into his chest and put his weight down. He was told that if he continued to resist the arrest he would be further charged. The accused was eventually subdued … and handcuffed. The accused was then escorted to the rear secure pod of the police vehicle where he continued to shout abuse and refused to step into the secure pod. The accused was eventually placed in the secure pod. The accused was conveyed to Kununurra Police Station and on arrival at the station the accused [made] several threats to kill police and find police off duty to fight them.
[9] ts 3 ‑ 4.
The sentencing
The appellant pleaded guilty at the first hearing date for the offences. The pleas were clearly at the first reasonable opportunity.
Sentencing was adjourned to enable the appellant to participate in the court‑provided Indigenous Diversion Program. A report from that program was before the learned magistrate. It was extremely favourable.
The magistrate fined the appellant in respect of the first two offences. For the third offence, his Honour imposed a term of suspended imprisonment of 6 months and 1 day, suspended for nine months.
Ground 1
The appellant submits that the learned magistrate erred by, in effect, punishing him for an offence with which he had not been charged. The appellant submits that the magistrate appeared to sentence him on the basis that he had made threats to kill, despite the fact that the appellant had not been charged with this discrete offence.[10]
[10] Section 338B(1)(a) of the Criminal Code (WA).
In Skelly v The State of Western Australia,[11] the Court of Appeal said (citations omitted):
[11] Skelly v The State of Western Australia [2020] WASCA 3 [81] ‑ [84].
It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'. The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.
This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect:
(a)treat the offender as guilty of a more serious offence than the offence of which they have been convicted; or
(b)constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty.
…
Another emanation of this fundamental principle is that in sentencing an offender for one offence, the judge is not entitled to punish the offender for an additional offence to the one with which the offender was charged.
It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved. What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account.
In relation to the obstruction offence, the magistrate said (emphasis added):[12]
… Now, as far as obstruct polices go, this is an either way offence. It can go to the District Court, it can be dealt with here. The facts were just horrendous.
You went up to the police taunting them by drinking in front of them. You then used abusive language. You then threatened them with you're going to kill them … You're lucky you're [sic: not] charged with threaten to kill. But that wasn't it. You continued on.
You had fights with your friends. Your friends tried to do the right thing. They could see the way it was going. It was getting pretty ugly. They tried to settle you down. You wanted to fight them. Then you shaped up to the police. Then you lunged at the police. Then you resisted arrest. It took them a long while to subdue you, to handcuff you. They finally get you to the pod, you don't get in. They had to forcibly put you into the pod. That's not all. You keep on with your abuse. Get back to the station, threaten to kill the police again. Horrendous set of facts.
[12] ts 6.
Shortly afterwards, the magistrate said (emphasis added):[13]
Accordingly, you will be sentenced on the obstruct to six months and one day in jail. I'm prepared to suspend that for a period of nine months.
Hopefully, with that hanging over your head, hopefully, when you're out in the community drinking again, which I suspect is going to happen if you remain in Kununurra, when you're confronted by police again, you walk away and don't go using your mouth and actions like that. Otherwise you're going to go to jail for six months and one day for this one plus get it dealt with for extra time for any new offences. Do you understand that?
It's not on abusing the police in such a discourteous fashion. Next time it will be outright jail if it happens again.
[13] ts 7.
I have kept in mind the work of magistrates in considering this ground of appeal. Despite making every allowance for that work, I am satisfied that the magistrate took into account the threats so as to, in effect, sentence the appellant for offences more serious than,[14] and additional to, the offence of which he had been convicted. The magistrate twice referred to the 'horrendous facts'. The magistrate set out in great detail the conduct of the appellant that took place well prior to when it could be said that the obstruction offence began. It is apparent that the magistrate placed great weight on what the appellant had said to the police, with particular emphasis on the threats to kill.
[14] The maximum penalty for a threat to kill is 7 years' imprisonment. The summary conviction penalty is 3 years and a fine of $36,000. The maximum penalty for obstructing a public officer is 3 years' imprisonment. The summary conviction penalty is 18 months and a fine of $18,000.
I would grant leave to appeal on this ground and allow the appeal on this ground.
Ground 2
An assertion that a sentence is manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[15]
[15] Gaskell [127(1)].
A sentence may be manifestly excessive because the wrong type of sentence was imposed.[16] The appellant submits that the sentence was manifestly excessive because it was simply not open to the magistrate to impose a suspended term of imprisonment.
[16] Nayna v The State of Western Australia [2016] WASCA 169 [36]; citing Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
Section 39(2) of the Sentencing Act 1995 (WA) lists the sentencing options. Under s 39(3), a court must not use a sentencing option in subsection (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Therefore, to establish that the type of sentence imposed was not reasonably open, the appellant must establish that it was not open to the magistrate to be positively satisfied that a lesser option was not appropriate.
Further, a court may not impose suspended imprisonment unless it is satisfied that, if it were not possible to suspend imprisonment, a term of immediate imprisonment of the same length would be appropriate.[17]
[17] Section 76(2) Sentencing Act.
A sentence of imprisonment can only be imposed as a last resort. It can only be imposed where the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.[18]
[18] Section 6(4) and s 39(3) of the Sentencing Act.
It follows that a court cannot impose suspended imprisonment unless it is satisfied that:
(a)none of the other less serious options provided for by the Sentencing Act are appropriate;
(b)the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it; and
(c)if it were not possible to suspend imprisonment, a term of immediate imprisonment of the same length would be appropriate.
Accordingly, the question in this case is whether it was open to the magistrate to be satisfied of each of those three requirements. In relation to the third requirement, it required the magistrate to be satisfied that if it were not possible to suspend imprisonment, a term of 6 months and 1 day of imprisonment would be appropriate.
The proper approach to determining whether a sentence is manifestly excessive, which includes whether it was open to impose the particular type of sentence, is well settled. The sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the location of the criminal conduct on the scale of seriousness for offences of that type, and the offender's personal circumstances.[19]
Maximum penalty
[19] Gaskell [127(2)].
The maximum penalty for the obstruction offence is 3 years' imprisonment.[20]
Comparable cases
[20] Section 172(2) of the Criminal Code.
In Birch v Binnekamp,[21] I said:
… it is difficult to find broadly comparable cases for the offence of obstructing public officers. The cases involve widely varying circumstances and often involve total effective sentences imposed for a range of different offences. Penalties imposed for the offence have ranged from fines to sentences of immediate imprisonment.[22]
[21] Birch v Binnekamp [2018] WASC 58 [46].
[22] See, for example, Vickery v McAlinden [2017] WASC 224; Gray v Hayter [2017] WASC 140; Collard v Peden [2017] WASC 32; Lewsam v The State of Western Australia [2016] WASCA 60; Riseley v Gill [2015] WASC 342; Corpus v Roseveare [2015] WASC 165; Elwin v Robinson [2014] WASCA 46; Elwin v Robinson [2012] WASC 311 (appeals against conviction only, no dispute of sentence); Moir v The State of Western Australia [2014] WASCA 25.
One of the cases I referred to in Birch was Vickery v McAlinden. In that case, the offender was convicted of one count of disorderly behaviour in public and one count of obstructing a public officer. The facts of the latter charge began once the police had informed the offender that he was going to be arrested for his disorderly behaviour:[23]
The accused was informed he was under arrest and restrained at - his arms by police. The accused resisted arrest by fighting with officers on the side of the freeway. The accused attempted to get his arms free and push police away while screaming 'don't fucking touch me, I swear to god, if you don't let me, I'm going to kill you'.
The accused continued fighting with police, attempted to elbow officers in the head. This continued for about one to two minutes. He was taken to the ground and secured in handcuff - secured and handcuffed where he still continued yelling out 'I'm going to slit your throat' and the accused was released to summons. At the time, there was heavy traffic and other road users were driving around the vehicle and the accused. The explanation provided was 'I can't remember what happened, I'm sorry, I've never been like that with police before'.
[23] Vickery [8].
Chaney J allowed the appeal and re‑sentenced the offender to a fine of $5,000.
Obviously, a single case does not establish any tariff or range of appropriate sentences. However, it does confirm that fines can be appropriate for obstruction offences, depending on the circumstances.
Neither side referred me to any cases other than those I had cited in Birch. In none of the cases had a term of imprisonment exceeding three months been imposed.
Seriousness of the offence
The obstruction offence was not at the high end of obstruction offences. It did not involve physical acts of aggression towards the police. Rather, the appellant was trying to make it more difficult for the police to arrest him.
However, nor was it trivial. The appellant sought to make it more difficult for the police to handcuff him and refused to get into the pod on his own. He was verbally abusive. This was all happening in public.
Personal circumstances
The appellant pleaded guilty at the earliest reasonable opportunity.
The appellant is a 47‑year‑old Aboriginal man from the Kimberley region of Western Australia.
The appellant has a criminal record, but most of the offences are relatively minor. He has never been sentenced to a term of imprisonment to be immediately served. The sentence under challenge in these proceedings is the only time he has been sentenced to suspended imprisonment. He has received community based orders in the past, but has mostly received fines.
He has numerous prior convictions for disorderly behaviour and one prior conviction for obstructing a public officer.
The most serious prior convictions are probably the two (and the only) drug offences, being the supply of cannabis on 20 and 21 March 2007, over 13 years ago, and the breaches of community based orders.
It was said on his behalf in the Magistrates Court proceedings that the appellant had been struggling with alcohol since the death of his wife two years before.
The report prepared by the Kimberley Community Drug and Alcohol Service, the service provider of the Indigenous Diversion Program (IDP) in the East Kimberley, was extremely positive. It said that the appellant:
(a)had 'nil outstanding treatment needs, however [he] has requested further counselling sessions following his court appearance';
(b)had 'engaged effectively in sessions, participating in all activities and therapeutic interventions'; and
(c)had 'presented to Kimberley Mental Health and Drug Service as a pleasant and polite client. [He] engaged remarkably in therapeutic sessions, and showed insight and determination for positive changes in his life. Kimberley Mental Health and Drug Service are grateful for his co‑operation, engagement and participation and look forward to working with [him] in the future.
During the Magistrates Court proceedings, counsel for the appellant submitted that the report was 'very positive'. The magistrate said 'Well, positive, but I'm not that enamoured with the IDP report. He has had three sessions only. It's supposed to be eight'.[24] A representative from the service provider then advised the magistrate that the appellant had only attended three sessions because of the lack of staff, not because of any fault of the appellant.[25]
[24] ts 2.
[25] ts 2.
The magistrate began his sentencing remarks by harking back to the report. His Honour said:[26]
A lot of people do the IDP course because they believe that it will save them getting a prison sentence, and that's fair enough. I do hope, however, that on your participation, only three sessions, not your fault, IDP lack of counsellors, I do hope you found some benefit from that.
[26] ts 26.
It is unclear why the magistrate began his remarks in this way. The prosecutor had not suggested that the appellant had sought to do the course for that reason. Nor had such a suggestion been put to the appellant's counsel during the proceedings. Nor did there appear to be any reason for a suspicion that the appellant may have done the course for this reason.
In this appeal, the State did not suggest that there was any basis upon which the appellant's motivation could be doubted. I accept that it is possible that the magistrate was simply contrasting the motivation of some other offenders with the appellant's motivation.
Accordingly, I will evaluate ground 2 on the basis that the extremely positive report should be taken at face value.
Conclusion on ground 2
It is for the appellant to establish that it was not open to the magistrate to impose the sentence. It is not for me to substitute the sentence I would have imposed if I had been sentencing the appellant for this offence.
The obstruction offence was not at the higher end of the scale of seriousness. The appellant pleaded guilty at the earliest reasonable opportunity. The report from IDP was extremely positive, and indicated that the appellant had no outstanding treatment needs.
The seriousness of the offence was not such that imprisonment was the only option. The protection of the community did not require the imprisonment of the appellant.
Accordingly, I am satisfied it was not open to the magistrate to impose suspended imprisonment. The sentence was manifestly excessive. I would grant leave to appeal on this ground and allow the appeal on this ground.
Ground 3
The respondent's counsel pointed out that, to succeed on this ground, the appellant needed to establish that the error was material. A 'material' error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencer.[27]
[27] Fernandes v The State of Western Australia [2009] WASCA 227 [9] ‑ [10].
The appellant's counsel drew my attention to those passages in the transcript which she submitted showed that the number of convictions did influence the magistrate.
I accept that an inference could be drawn to that effect. The magistrate did assert, on two occasions, that the appellant had two prior convictions for obstruction. From what his Honour said, he appeared to consider it to be material. However, giving proper regard to the work of magistrates, I would not draw that inference in this case.
I would grant leave to appeal on this ground but would dismiss it.
Overall conclusion
I would grant leave to appeal on each ground, allow the appeal on grounds one and two, set aside the sentence and re‑sentence the appellant.
Re-sentencing
After giving my reasons for allowing the appeal, I heard from the parties about the re‑sentencing.
I consider it is appropriate to impose a fine.
Obstructing police is a serious offence and the appellant's offence was not a trivial instance of obstruction. In all the circumstances that existed when he was sentenced in the Magistrates Court, a substantial fine would have been an appropriate penalty.
However, the appellant has been under the suspended term of imprisonment since 10 January 2020, over five months. Given that, I would impose a fine in a much lesser sum than I otherwise would have; a fine of $200. I would also suspend the fine for a period of one month.
Conclusion
I would make the following orders:
1.Leave to appeal is granted;
2.The appeal is allowed;
3.The sentence imposed by the magistrate is set aside; and
4.The appellant is fined $200, but that fine is to be suspended for one month.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer7 JULY 2020
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