Dragon v WA Police - [2024] WASC 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DRAGON -v- WA POLICE [2024] WASC 147
CORAM:   FORRESTER J
HEARD:   21 FEBRUARY 2024 & 18 APRIL 2024
DELIVERED          :   7 MAY 2024
FILE NO/S:   SJA 1068 of 2023
BETWEEN:   BRADLEY PEN DRAGON
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1068 OF 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L DIAS
File Number            :   PE 7485/2023 & PE 7484/2023

Catchwords:

Criminal Law - High Risk Serious Offenders Act 2020 (WA) - Breach of supervision order - Whether sentence imposed manifestly excessive - Section 53 of the Sentencing Act1995 (WA) - Whether onus on judicial officer to make enquiry as to financial circumstances of the offender - Whether substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms F Sellers
Respondent	:	Mr Z Clifford

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	State Solicitor's Office (WA)

Cases referred to in decision:

Berry v Boggs [2009] WASC 378
CGF v The State of Western Australia [2023] WASCA 187
Cheshire v R (1994) 76 A Crim R 261
El Noor v The Queen (2001) 123 A Crim R 123
Gaskell v The State of Western Australia [2018] WASCA 8
Gobby v Taylor (1998) 27 MVR 538
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Higgins (1988) 10 Cr App R (S) 144
Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Te Nahu [2023] WASCA 20
House v R [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Magjarraj v The Queen (2001) 123 A Crim R 458
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Nelson v Meredith (2001) 118 A Crim R 433
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SJX v The State of Western Australia [2010] WASCA 243
State of Western Australia v Dragon [No 2] [2022] WASC 189
Ugle v Bailey [2023] WASC 398
Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339

FORRESTER J:

Introduction:

On 10 February 2023, the appellant was convicted on his plea of guilty to two counts that, being subject to a supervision order, he contravened a requirement of the order without reasonable excuse, contrary to s 80(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The appellant was sentenced to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 147
Decision Date: 7 MAY 2024

CaseChat Overview and Summary

In the case of Dragon v WA Police, Dragon appealed against his conviction and sentence for breaching a supervision order. The case was heard in the District Court of Western Australia. Dragon argued that the sentence imposed by the court was manifestly excessive and that the court failed to consider his financial circumstances, as required by Section 53 of the Sentencing Act 1995 (WA). The respondent, WA Police, contended that the court was not obligated to inquire into the financial circumstances of the offender.

The primary legal issue the court had to decide was whether Section 53 of the Sentencing Act required the court to make enquiries about the offender's financial circumstances. The court examined the text of Section 53, which states that a court must take into account the means of the offender when imposing a fine, but also allows for a fine to be imposed even if the court is unable to find out about the offender's financial circumstances. The court considered whether the onus was on the judicial officer to inquire into the financial circumstances or if it was the responsibility of the parties involved in the case to provide such information. The court also examined whether the failure to consider the financial circumstances resulted in a substantial miscarriage of justice.

The court concluded that Section 53 of the Sentencing Act does not impose an inquisitorial function on the court to obtain information about the offender's means to pay a fine. The court held that it is generally for the parties to present relevant information to the court. The court found that the appellant had the opportunity to provide information about his financial circumstances but chose not to do so. The court further held that the failure to consider the financial circumstances did not result in a substantial miscarriage of justice in this case. The appeal was therefore dismissed.

The court made no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 53 of the Sentencing Act relevantly provides:Considerations when imposing fine(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account —(a)the means of the offender; and(b)the extent to which payment of the fine will burden the offender.(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1). The appeal notice was filed on 17 August 2023, 167 days out of time. The appellant has filed an affidavit which explains the delay. The respondent does not oppose the application and does not contend any prejudice to the respondent will arise if an extension of time is granted. It is convenient to deal with ground 2 first. The appellant submitted that there was no mention of the appellant's financial situation in the course of the proceeding and accordingly, the learned magistrate failed to take it into account. In failing to do so, the appellant submits, the learned magistrate erred.[15][15] Appellant's submissions filed 20 March 2024 [5] - [6]. The respondent submitted that the learned magistrate was not obliged, by reason of s 53 of the Sentencing Act, to make enquiries as to the appellant's financial circumstances.[16] As there was no information put before the learned magistrate, she did not fail to take it into account.[16] Respondent's submissions filed 28 March 2024 [23] (Respondent's submissions 28 March 2024). In the alternative, the respondent submitted that, even if a judicial officer is obliged in some circumstances to make enquiries as to an offender's financial circumstances, those circumstances did not arise in the present case, in which the appellant was represented by counsel, who had submitted that a fine was an appropriate penalty.[17][17] Respondent's submissions 28 March 2024 [24] - [26]. The respondent's primary submission relied upon the decision of Murray J in Gobby v Taylor, in which his Honour stated:This provision gives statutory effect to the general principle that a fine which is properly proportionate to the seriousness of the offence, having regard to the circumstances of its commission and matters personal to the offender, will be one which takes into account the capacity of the offender to pay the fine within a reasonable period. But no authority was cited to me for the proposition that s 53 imposes upon the court an inquisitorial function to obtain information about means to pay, nor do I think that s 53 itself is so worded as to lead to such a conclusion. Given that the court has a duty to take the means of the offender to pay a fine into account, sentencing proceedings are, just as are proceedings leading to the determination of guilt or innocence, adversarial in character. Prima facie it is for the parties to place before the court such information as they think to be relevant to the issues to be determined by the court. Given that the appellant was unrepresented before the Court of Petty Sessions, he had been fined before and he must have appreciated that he might be fined again, upon his conviction. It was not too much to expect that when, after his conviction, the appellant was invited by his Worship to say anything he wished 'before I impose a penalty', he might have said something about his means to pay if he wished to do so. While the learned magistrate might well have made a specific inquiry about means to pay, it was not, in my view, incumbent upon him to do so.[18][18] Gobby v Taylor (1998) 27 MVR 538, 543.