Fraser v Martin - [2011] WASC 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FRASER -v- MARTIN [2011] WASC 180

CORAM: EM HEENAN J

HEARD: 4 JULY 2011

DELIVERED : 4 JULY 2011

PUBLISHED : 1 AUGUST 2011

FILE NO/S: SJA 1048 of 2011

MATTER :Criminal Appeals Act 2004 Part 2
and
Prosecution Notice Numbers PE 48220 of 2009, PE 48222 of 2009, PE 48223 of 2009, PE 48224 of 2009, PE 48225 of 2009, PE 48227 of 2009 and PE 56407 of 2009

BETWEEN: JOHN ANDREW FRASER
Applicant
AND
CHRISTOPHER JOHN MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E CAMPIONE
File No  :PE 48220 of 2009, PE 48222 of 2009, PE 48223 of 2009, PE 48224 of 2009, PE 48225 of 2009, PE 48227 of 2009, PE 56407 of 2009

Catchwords:

Appeal - Sentencing - Mistake in information put before court about time to be served on previous sentence - Concurrency and cumulation - Totality

Legislation:

Sentencing Act 1995 (WA), s 88

Result:

Appeal allowed
Sentence varied

Category: B

Representation:

Counsel:

Applicant: Ms K McDougall
Respondent: Mr M Seaman

Solicitors:

Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Barry v Beverly [2009] WASC 291
Carr v The State of Western Australia (2006) 166 A Crim R 1
Maroney v State of Western Australia [2006] WASCA 130
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Gordon (1994) 71 A Crim R 459
Reid v Quigg [2007] WASC 35
Vlek v The Queen (Unreported, WASCA, Library No 99153, 29 March 1999)

EM HEENAN J: On 22 October 2009 the appellant, John Andrew Fraser, pleaded guilty to four charges of burglary, a charge of trespass, a charge of stealing, a charge of stealing a motor vehicle and a charge of possessing housebreaking implements. These offences occurred over the period 10 June 2009 to 28 July 2009. At the time of these offences, Fraser was on parole following an earlier conviction for burglary. Having been arrested for these offences on 5 August 2009, he was returned to custody.
The charges came on for hearing in the Magistrates Court before Magistrate Campione and her Honour gave detailed written reasons for the sentences which were then imposed in that court. Her Honour had heard pleas in mitigation in relation to these charges and had adjourned sentencing to 4 December 2009 so that she could be advised of the number of parole days owing, saying at the time:
The number of parole days is a live issue because it impacts on totality and how I deal with the sentences.
Accordingly, on the day of sentence the then counsel for the appellant informed her Honour that 190 parole days were owing. Her Honour stated that she took the 190 days into account:
In relation to sentence I am taking into account squarely the fact that you have a number of days owing for parole, 190 days, and that totality is a live issue so if you have a seat for the moment, I am just going to double-check my calculations. Then I will announce your sentence.
Her Honour then proceeded to sentence the appellant to a total effective term of 2 1/2 years' imprisonment which, as her Honour then made clear, was intended to be served cumulatively upon the 190 days of unserved parole days which her Honour understood the appellant owed. As it has turned out, and due to no fault, error or omission by her Honour, the learned magistrate was informed erroneously about the number of days owing for parole. In fact, 452 days were then owing, not 190 as the court was informed.
The present respondent accepts that the calculations regarding sentence set out in the letter from the Department of Corrective Services of 22 October 2010 (exhibit 1 on this appeal) are correct. There is no reference in the transcript to the sentence being cumulative or concurrent upon parole days owing, but the effect of s 88 of the Sentencing Act 1995 (WA) is to make the sentence as imposed cumulative upon the previous sentence in the absence of an express order to the contrary. As the period of 190 days of parole then thought to be owing was less than the head sentence, the learned magistrate's comments regarding totality must mean that she intended the sentence to be cumulative in view of s 88.
As a result of this mistake, the appellant applied to this court for leave to appeal against the sentence imposed. Pursuant to a notice of appeal, dated 9 May 2011, and the proposed grounds of appeal were that:
(1)The learned sentencing Magistrate erred in fact by taking into account that the appellant had 190 days owing on his existing sentence when the appellant actually owed 452 days.
(2)The totality principle was infringed as the total sentence was disproportionate to the total criminality in the circumstances of the offending, the appellant's personal circumstances, his pleas of guilty and the length of the period of imprisonment the appellant was yet to serve at the time of sentencing.
This application for leave to appeal was dealt with by Hall J on the papers on 23 May 2011. His Honour granted leave to appeal on each of the grounds in the notice of appeal, and the appeal has now been listed for hearing and has been argued before me this afternoon.
Counsel for the appellant and the respondent each agreed that a mistake regarding the period to be served under the unexpired sentence had occurred, and that that had almost certainly influenced her Honour in the sentences which her Honour imposed having regard to the totality principle which her Honour expressly recognised.
In her Honour's reasons for decision on 4 December, her Honour canvassed the prior history of the appellant, the circumstances of the offending, the pleas of guilty and other detailed personal factors which I am satisfied led her Honour to conclude that there were prospects of rehabilitation and that the circumstances warranted a restrained sentence. Her Honour imposed sentences structured as follows. In relation to the charges of burglary, Mr Fraser was sentenced to 1 year's imprisonment for each of the burglaries, two of which were concurrent and two of which were cumulative, so making 2 years; and 6 months for another burglary, also cumulative, producing a total effective period of 2 years and 6 months which, as I have already said, took effect cumulatively upon the supposed 190 days wrongfully thought to be outstanding under the earlier sentence for which parole had been breached.
A submission has been made to me that errors of this kind have occurred in the past and have resulted in successful appeals. The first of three cases cited was Barry v Beverly[2009] WASC 291, where an offender was subsequently found to have owed an additional two months in breach of parole days. A sentence of 18 months' imprisonment was reduced to 12 months on appeal. In Reid v Quigg [2007] WASC 35, there was also a mistake in the information given to a sentencing magistrate regarding time to be served on an existing sentence. In that case a sentence of 20 months' imprisonment for unlawful wounding and three counts of burglary was changed from cumulative to concurrent on appeal upon confirmation that the offender had over three years still to serve on his existing sentence. Another authority referred to by counsel for the respondent is Maroney v State of Western Australia [2006] WASCA 130, where the Court of Appeal resentenced the offender in the light of the misinformation concerning the parole days to be served which had had an effect on totality.
It is not necessary for me to spend any great time dealing with the totality principle. It is well‑known and comprises two aspects:
(a)that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences having regard to all relevant circumstances, and
(b)that the total effective sentence imposed on an offender should not constitute a crushing sentence as explained by the High Court in Postiglione v The Queen (1997) 189 CLR 295, 307‑308, and more recently in Carr v The State of Western Australia (2006) 166 A Crim R 1.
As Hunt CJ said in New South Wales in R v Gordon (1994) 71 A Crim R 459, 466:
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.
Further authorities to similar effect are Pearce v The Queen (1998) 194 CLR 610, 624, and Vlek v The Queen (Unreported, WASCA, Library No 99153, 29 March 1999).
In these particular instances the learned sentencing magistrate was aware of all the circumstances of the offences which had been committed by Mr Fraser and framed the sentences which she imposed both in relation to length and in relation to concurrency and cumulatively with those facts in mind. Her Honour was aware that the offences committed while on parole had constituted a breach of parole and that a further period of the unexpired sentence for the offences upon which Mr Fraser had been on parole must also be served. Her Honour was mistakenly informed that that was 190 days instead of 452 days, as I have now said several times. Nevertheless, the sentencing exercise which her Honour undertook was done with the knowledge of the previous offending and with a view to a total period of 2 years and 6 months, plus 190 days, as a suitable period for the aggregation of criminal activity.
No criticism has been made of her Honour's reasons or principles or the seriousness with which her Honour treated the various offences. It has not been suggested that this was not an occasion where the principles of totality called for some recognition to be given to the earlier sentence.
It seems, therefore, that I should treat the sentencing exercise as an indication that her Honour considered that the sentencing period, plus the unexpired period, was a suitable total aggregation of imprisonment which ought to have been served by the appellant. There is no criticism of that approach by her Honour, nor is there any application for leave to appeal in order to increase any of the sentences or the effective term.
That being the case, I consider that I should treat this as a situation in which the error has produced an unintended consequence; namely, that the appellant should serve a longer period in prison than her Honour had in mind, taking into account aggregation and totality. That being the case, I am satisfied that the appeal should be allowed and that the sentence should be varied in the following terms. The current sentence of 2 years 6 months imposed on 4 December 2009 is to stand with the following variation. The current sentence is to be served partly concurrently and partly cumulatively with the 452 days owing on Mr Fraser’s existing parole. One hundred and ninety days of that sentence are to be served before Mr Fraser begins to serve the sentenced imposed on 4 December 2009. The remaining 262 days outstanding on Mr Fraser’s parole will run concurrently with the sentence imposed on 4 December 2009.