Durward v Belton
[2012] WASC 479
•28 NOVEMBER 2012
DURWARD -v- BELTON [2012] WASC 479
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 479 | |
| Case No: | SJA:1093/2012 | 28 NOVEMBER 2012 | |
| Coram: | PRITCHARD J | 28/11/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL GRAY DURWARD TRISTON BELTON |
Catchwords: | Criminal law Appeal against sentence Sentence of imprisonment for 6 months and 1 day Offence contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) Whether manifestly excessive Relevant factors Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) s 8(1), s 9(2) Criminal Investigation Act 2006 (WA) s 27, s 153(1) Criminal Law Amendment (Simple Offences) Act 2004 (WA) Liquor Control Act 1988 (WA) s 119(4) Police Act 1892 (WA) s 50 Sentencing Act 1995 (WA) s 6(5), s 39(3), s 76(2), s 86 |
Case References: | Griekspoor v Scott [2000] WASCA 419 McDougall v State of Western Australia [2009] WASCA 232 Morrow v UJC [2012] WASC 114 Samuel v State of Western Australia (2005) 30 WAR 473 Spratt v Canavan [2006] WASC 223 Strickland v Halliday (Unreported, WASC, Library No 920006, 15 January 1992) Turvey v Clifton [2012] WASC 322 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TRISTON BELTON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B LANE
File No : PE 33993 of 2012
Catchwords:
Criminal law - Appeal against sentence - Sentence of imprisonment for 6 months and 1 day - Offence contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) - Whether manifestly excessive - Relevant factors - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA) s 8(1), s 9(2)
Criminal Investigation Act 2006 (WA) s 27, s 153(1)
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Liquor Control Act 1988 (WA) s 119(4)
Police Act 1892 (WA) s 50
Sentencing Act 1995 (WA) s 6(5), s 39(3), s 76(2), s 86
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Ms K Farley
Respondent : Ms A B Preston-Samson
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Griekspoor v Scott [2000] WASCA 419
McDougall v State of Western Australia [2009] WASCA 232
Morrow v UJC [2012] WASC 114
Samuel v State of Western Australia (2005) 30 WAR 473
Spratt v Canavan [2006] WASC 223
Strickland v Halliday (Unreported, WASC, Library No 920006, 15 January 1992)
Turvey v Clifton [2012] WASC 322
(Page 3)
- PRITCHARD J:
(These reasons were delivered orally and have been edited from the transcript.)
1 On 24 July 2012, Mr Durward pleaded guilty to a charge of failing to comply with an order given by an officer contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) (the CI Act) (the offence)and was convicted of the offence.
2 Mr Durward was given a sentence of imprisonment of 6 months and 1 day, which term was suspended for 12 months, in respect of the offence (the sentence). On the same occasion he was sentenced for an offence of breaching bail for which he was placed on a 12-month community based order with supervision and programming requirements and ordered to perform 40 hours of community work. The latter sentence is not subject to an appeal.
3 Mr Durward appeals against the sentence he received for the offence on the ground that the learned magistrate erred in imposing a term of imprisonment, albeit suspended, on the basis that such a disposition was unwarranted, having regard to the circumstances of the offence and Mr Durward's circumstances. I understand that the ground of appeal, in effect, amounts to a contention that the sentence imposed was manifestly excessive in all of the circumstances.
4 Mr Durward requires leave to appeal against the sentence and, by order of Hall J, the question of leave to appeal was referred for consideration at the hearing of the appeal itself.
5 For the following reasons, in my view there should be a grant of leave to appeal, and the appeal should be allowed.
6 In these reasons for decision I deal with the following matters:
(1) the ground of appeal;
(2) the nature and circumstances of the offence;
(3) whether the sentence imposed was manifestly excessive;
(4) the application for leave to appeal, and
(5) the orders which should be made.
(Page 4)
1. The ground of appeal
7 As I have observed, the ground of appeal amounts to a contention that the sentence imposed for the offence was manifestly excessive in all of the circumstances. A person aggrieved by a decision of a court of summary jurisdiction may appeal against that decision on the ground, amongst others, that the sentence imposed was excessive: see s 8(1) of the Criminal Appeals Act2004 (WA) (the CA Act).
8 A claim of manifest excess depends on establishing implied error in the type or length of sentence imposed. To determine whether a sentence is manifestly excessive it is necessary to consider the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.1
2. The nature and circumstances of the offence
9 According to the statement of material facts read to the Magistrates Court by the prosecutor, just before 10 pm on 28 June 2012, Mr Durward was on James Street in Northbridge when he was served with what may be colloquially described as a 'move-on notice' by the police. The notice was an order given pursuant to s 27(1) of the CI Act (the order).
10 It was not in dispute that the order was given because the officer who gave the notice reasonably suspected that Mr Durward had just committed, or was in fact committing, an offence, namely that of consuming alcohol in a public place.
11 The order directed Mr Durward to leave and not return to the area referred to in the order until 8 am the next morning. Approximately two hours later, Mr Durward was found within the area referred to in the order. It was not contended that he had a reasonable excuse for his failure to comply with the order. Mr Durward was then charged with failing to comply with an order given by an officer, contrary to s 153(1) of the CI Act.
(Page 5)
3. Whether the sentence imposed was manifestly excessive
The maximum penalty
12 I turn first to consider the maximum penalty for the offence under s 153(1) of the CI Act, which is a fine of $12,000 and imprisonment for 12 months. Two related observations may be made about s 153(1). First, the quantum of the maximum fine prescribed and the fact that a term of imprisonment is open in respect of offences under s 153 indicate that, while the Parliament did not view the offence under s 153 as an especially serious one, it nevertheless did not view the offence as trivial in nature either.
13 The second and related observation is that an offence under s 153(1) is not committed solely by a failure to comply with an order made under s 27 of the CI Act. The offence under s 153(1) will be committed in the event of non-compliance with any order given by an officer; that is, a police officer or a public officer, or both, under the CI Act. There are a number of orders the subject of the offence in s 153: see, for example: orders under s 44 (ancillary orders in relation to the exercise of a search warrant), s 47(2) (various orders in relation to a protected forensic area), s 69(4) (orders prohibiting a person from entering, or requiring a person to leave, a public place if the person does not consent to being searched or having his or her vehicle searched) and s 149 (orders requiring a person or employee to provide information or assistance to enable a police officer to seize a record or exercise a power under s 148 of the CI Act).
14 Many of these orders are of a kind which are made in connection with the collection of evidence in the course of a criminal investigation and, as a result, the circumstances in which some of those offences (of failing to comply with the order) are committed might constitute rather more serious offending than a failure to comply with an order given under s 27 of the CI Act in circumstances such as those in the present case.
15 The maximum penalty provided under s 153(1) of the CI Act thus appears likely to have been designed to accommodate the variety of circumstances in which an offence under s 153(1) might be committed, and the range of seriousness of the kinds of offending which might fall under the umbrella of that subsection rather than reflecting any view by the Parliament about the seriousness of that offence when it is committed for a failure to comply with an order under s 27 of the CI Act in particular.
16 That appears to be so when regard is had to the legislative purpose behind s 27 of the CI Act. Section 27 enables orders to be given to
(Page 6)- persons to leave an area in a variety of circumstances including when the officer reasonably suspects that a person is about to commit an offence.
17 The provision now in s 27 was previously contained, albeit for a brief period, in s 50 of the Police Act 1892 (WA) (the Police Act). The provision was inserted into the Police Act by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) (the Amendment Act). At the same time the Amendment Act also abolished s 43 of the Police Act, which at that time contained a range of offences ranging from loitering to being suspected of being about to commit an offence.
18 It is apparent from the speech given by the then Attorney General Mr McGinty MLA on the second reading of the Criminal Law Amendment (Simple Offences) Bill 2004 that the purpose behind the inclusion of s 50 in the Police Act was largely to create a means by which the police would be able to take steps to require a person to leave a place or situation in which they may commit an offence. The Attorney General said:2
The power creates an extra step in the process when police reasonably believe a person is behaving suspiciously. In a nutshell, police will ask that person, in writing, to move on, and only if the person fails to obey this order will the person then be charged with a substantive offence. As the law currently stands, there is no intermediate step; a person can be charged instantly. The Western Australian Police Service has indicated that an offence of this nature will allow it to adequately deal with loitering and suspicious behaviour, and inhibit lawful activities …
19 The primary purpose of s 27 thus appears to be to assist in the prevention of offending. The preventive purpose behind s 27 suggests that an offence under s 153, committed as a result of failure to comply with an order under s 27, is likely to be very much at the less serious end of the spectrum of offences.
20 At the same time, and given the circumstances in which a s 27 order may be given, if the issue of an order as a preventative measure is to be effective, there needs to exist the possibility that penalties might be able to be imposed which would have some deterrent effect on those who might not easily be dissuaded from leaving the area specified in the order. That also appears to provide some explanation for the maximum sentencing range provided by s 153.
(Page 7)
The place which the conduct occupies on the scale of seriousness of offences of that type
21 I turn to the next factor, which is the place which the conduct in this case occupies on the scale of seriousness of offending under s 153 of the CI Act. The circumstances of this case suggest that the offence committed by Mr Durward was at the less serious scale of offending under s 153 of the CI Act. Mr Durward had been consuming alcohol in the evening in question. According to his counsel at the sentencing hearing, at the time of the commission of the offence Mr Durward was residing with a friend in Northbridge within the area specified in the order, although there was no suggestion that that constituted a reasonable excuse for Mr Durward's presence within the area referred to in the order. There is nothing else in the circumstances of this case to take it out of the category of a simple case of disobedience of an order given by an officer.
The standards of sentencing customarily observed with respect to the offence
22 I turn to consider the standards of sentencing customarily observed with respect to the offence. The researches of counsel and of the Court itself have not identified any decision of this Court in relation to an appeal against a sentence imposed for an offence under s 153 committed by a failure to comply with an order made under s 27 of the CI Act. There is, therefore, no appellate authority to which regard might be had to provide guidance as to the standards of sentencing customarily observed for offences under s 153.
23 Some limited guidance can be gleaned from the appellate decisions in which a sentence for a move-on order was referred to, or imposed, by the Court. In Spratt v Canavan [2006] WASC 223 [12], McKechnie J noted in passing that the appellant had been sentenced to a fine of $200 (which sentence was not the subject of appeal). In Morrow v UJC [2012] WASC 114, which concerned an appeal against an acquittal for an offence contrary to s 153, the sentence imposed on appeal was $100. Those fines are consistent with the fines of $100 or $250 which Mr Durward was given in respect of each of his prior offences against s 153 of the CI Act.
Mr Durward's personal circumstances
24 As for Mr Durward's personal circumstances, I note that he is 23 years old. At the time of the offence he had recently become unemployed and had nowhere to live, and alcohol consumption clearly figured in his offending. Although Mr Durward had had previous convictions, including six prior convictions under s 153 of the CI Act for
(Page 8)- non-compliance with an order under s 27 of the CI Act, those offences appear to have been at the less serious end of the spectrum. Mr Durward had not previously been sentenced to a term of imprisonment. I note also that Mr Durward pleaded guilty at the earliest opportunity.
25 All of these considerations that I have referred to support the conclusion that the offence in this case was properly to be regarded at the lower, less serious end of the offending spectrum.
26 There was some discussion in the course of counsel's submissions as to whether the conduct which was the reason for the issue of the order under s 27 should be taken into account in assessing the seriousness of the offence. Such a course would, at least in general terms, be problematic: first, because the nature of the offence under s 153, which is the offence creating provision, is the disobedience of the order and not the underlying conduct itself; and secondly, and not least of all, because an order may be given under s 27 in circumstances where the person has not committed any offence at all but is simply reasonably suspected of being likely to commit an offence.
27 In the end I have concluded that it is not necessary to decide this question for the purpose of this appeal because for the reasons I have already stated, I have reached the conclusion that this offence was at the lower end of the scale of seriousness of offending, with the result, as I explain below, that a term of imprisonment was not warranted in this case. Even if Mr Durward's conduct for which the order under s 27 of the CI Act was given were to be taken into account in assessing the seriousness of the offence, then, as I explain below, that would not have altered my conclusion in respect of the seriousness of this particular offence.
3. Whether the sentence was manifestly excessive
28 I turn then to consider whether the sentence was manifestly excessive having regard to the seriousness of the offence. A suspended sentence of imprisonment should not be imposed unless imprisonment would otherwise be appropriate.3 A sentence of imprisonment itself is a sentence of last resort,4 and it should not be imposed unless it is justified in all of the circumstances.5 Consequently, if in all of the circumstances a
(Page 9)- sentence of imprisonment is not warranted, it would constitute an error to impose a sentence of imprisonment and then to suspend that sentence.6
29 In my respectful view, there was nothing in the circumstances of this case to suggest that a term of imprisonment was an appropriate sentence for the offence. The learned magistrate was clearly influenced by the fact that this was Mr Durward's seventh conviction for failing to comply with a move-on notice.7 However, previous instances of the same kind of offending do not aggravate an offence and could not justify the imposition of a sentence greater than that which was otherwise appropriate.
30 A lengthy criminal record can have the result that the appropriate sentence for an offence will not be reduced by the mitigating circumstances of good character8. However, in my view, the nature and seriousness of the offending in this case was not such as to warrant starting with a term of imprisonment in the first place. I note also that the prosecutor did not submit that a term of immediate imprisonment was warranted.
31 Further, the fact that fines had been imposed in respect of Mr Durward's earlier offences of failing to comply with an order under s 27 of the CI Act did not mean that a significantly more serious penalty was warranted in this case.9
32 The imposition of a sentence of imprisonment of six months or less is prohibited by s 86 of the Sentencing Act. The imposition of a sentence of imprisonment of 6 months and 1 day leaves the impression that that term was chosen with the prohibition in mind rather than with the consideration of whether the circumstances of the offence and the seriousness of the offending conduct warranted the imposition of a sentence of imprisonment.
33 Finally, although I have expressed reservations about whether the alleged offending, which led to the order under s 27, can properly be taken into account in determining the seriousness of the offence under s 153 of the CI Act, it is nevertheless, in my view, of note that had Mr Durward simply been charged with the offence of consuming alcohol in a public place contrary to s 119(4) of the Liquor Control Act 1988 (WA), which carries a maximum penalty of a $2000 fine, he could not have been
(Page 10)- sentenced to a term of imprisonment in respect of that offence. That also suggests that the imposition of a term of imprisonment was manifestly excessive.
34 When regard is had to the maximum sentence prescribed by law for the offence, to such information as is available which indicates the standards of sentencing to be observed with respect to the offence, to the place which the offending conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of Mr Durward on the one hand, and to the sentence imposed by the learned magistrate on the other, in my respectful view the sentence imposed was manifestly excessive.
4. The application for leave to appeal
35 I turn then to consider the application for leave to appeal. A grant of leave may not be given unless the Court is satisfied that the ground of appeal has a reasonable prospect of succeeding.10 In this case the ground of appeal clearly had a real prospect of success.11 There should be a grant of leave to appeal the decision of the learned magistrate on sentence.
5. The orders which should be made
36 I turn now to the orders which should be made. Had I been in a position to sentence Mr Durward today, I would have preferred to have done so. There was some discussion with counsel as to the kinds of dispositions which would have been appropriate, namely either a fine or a community based order. However, a recent change in Mr Durward's circumstances leads me to the conclusion that it is not possible to sentence Mr Durward today.
37 Given that the Court was informed that Mr Durward remains homeless and unemployed, Mr Durward would have had no capacity to pay a fine, and the submission of counsel today that I could nevertheless have imposed a fine left me with some reservations about the appropriateness of that course in view of his circumstances.
38 As for a community based order, the Court was today advised that Mr Durward is presently in custody, having been refused bail in respect of a number of other offences. A community based order, at least in the immediate future, would not be an efficacious sentence. Having regard to the circumstances of Mr Durward's offending, including the short period
(Page 11)- of time in which Mr Durward amassed a number of convictions prior to this particular offence, and having regard to the change in his circumstances since the commission of the offence, in my view there would be some benefit in a pre-sentence report being obtained before Mr Durward is sentenced in respect of the offence. Counsel for Mr Durward acceded to that view.
39 In my view, therefore, the preferable course is to remit the matter to the Magistrates Court for resentencing following the obtaining of a pre-sentence report in respect of Mr Durward.
40 Counsel for Mr Durward submitted that the matter should be remitted to a different magistrate for sentencing. In view of the observations of the learned magistrate in sentencing Mr Durward, which suggests that she had formed a firm view of his circumstances, and in view of the fact that this was a plea of guilty and there is no evidence from a trial which needs to be taken into account, it seems to me that the appropriate course is that the matter should be remitted to a different magistrate for sentencing.
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1 See McDougall v State of Western Australia[2009] WASCA 232 [12] - [13] (McLure P, Owen & Wheeler JJA agreeing).
2 Western Australia, Parliamentary Debates, Legislative Assembly, 23 September 2004, 4 (Mr J A McGinty, Attorney General).
3 See s 76(2) of the Sentencing Act 1995 (WA).
4 See s 39(3) of the Sentencing Act.
5 Section 6(5) of the Sentencing Act.
6 See Turvey v Clifton [2012] WASC 322 [14] (Hall J).
7 See, for example, ts 8 - 10.
8 See, for example, Griekspoor v Scott [2000] WASCA 419, citing Strickland v Halliday (Unreported, WASC, Library No 920006, 15 January 1992).
9 Compare Turvey v Clifton[17].
10 See s 9(2) of the CA Act.
11 See Samuel v State of Western Australia(2005) 30 WAR 473, 487 [56].
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