Gray v Madaffari
[2002] WASCA 13
•7 FEBRUARY 2002
GRAY -v- MADAFFARI [2002] WASCA 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 13 | |
| 07/02/2002 | |||
| Case No: | SJA:1158/2001 | 10 DECEMBER 2001 | |
| Coram: | MILLER J | 10/12/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 6 months' imprisonment set aside Sentence of 4 months suspended for 6 months substituted | ||
| A | |||
| PDF Version |
| Parties: | CHRISTOPHER MARTIN GRAY PASQUALE MICHAEL MADAFFARI |
Catchwords: | Sentence Disorderly by committing a nuisance Aboriginal offender Relevance of alcohol, socioeconomic circumstances and environment Whether maximum term of imprisonment for 11th offence appropriate |
Legislation: | Nil |
Case References: | Bensegger v The Queen [1979] WAR 65 Dinsdale v The Queen (2000) 202 CLR 321 R v Juli (1990) 50 A Crim R 31 Shooter (1997) 97 A Crim R 581 Dann v Chong, unreported; SCt of WA; Library No 980681; 26 November 1998 Butcher v Edwards, unreported; SCt of WA; Library No 980463; 7 August 1998 Latham v The Queen [2000] WASCA 338 Lowndes v The Queen (1999) 195 CLR 665 Nabanardi v Minner (1992) 62 A Crim R 325 Weng Keong Chan (1989) 38 A Crim R 337 Veen v R (No 2) (1988) 164 CLR 465 R v Woodley, Boogna & Charles (1994) 76 A Crim R 302 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PASQUALE MICHAEL MADAFFARI
Respondent
Catchwords:
Sentence - Disorderly by committing a nuisance - Aboriginal offender - Relevance of alcohol, socioeconomic circumstances and environment - Whether maximum term of imprisonment for 11th offence appropriate
Legislation:
Nil
Result:
Appeal allowed
Sentence of 6 months' imprisonment set aside
Sentence of 4 months suspended for 6 months substituted
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Ms M R Barone
Respondent : Mr J F O'Sullivan
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Bensegger v The Queen [1979] WAR 65
Dinsdale v The Queen (2000) 202 CLR 321
R v Juli (1990) 50 A Crim R 31
Shooter (1997) 97 A Crim R 581
Case(s) also cited:
Dann v Chong, unreported; SCt of WA; Library No 980681; 26 November 1998
Butcher v Edwards, unreported; SCt of WA; Library No 980463; 7 August 1998
Latham v The Queen [2000] WASCA 338
Lowndes v The Queen (1999) 195 CLR 665
Nabanardi v Minner (1992) 62 A Crim R 325
Weng Keong Chan (1989) 38 A Crim R 337
Veen v R (No 2) (1988) 164 CLR 465
R v Woodley, Boogna & Charles (1994) 76 A Crim R 302
(Page 3)
1 MILLER J: On 10 December 2001 I allowed this appeal and undertook to publish the reasons for so doing. These are those reasons.
2 The appellant was charged in the Court of Petty Sessions at Fitzroy Crossing that on 17 August 2001 at Fitzroy Crossing he was disorderly by committing a nuisance in the carpark of the Crossing Inn Hotel, contrary to the provisions of s 54 of the Police Act 1892. That section provides that every person who shall be guilty of any disorderly conduct on any street or public place … shall on conviction be liable to a penalty of not more than $500 for every such offence or to imprisonment for a term not exceeding six calendar months or to both fine and imprisonment. The appellant was also charged that on 21 August 2001 at Fitzroy Crossing he failed to appear in the Fitzroy Crossing Court of Petty Sessions that day, such appearance being a requirement of a bail undertaking entered into by him on 17 August 2001. This was an offence against s 51(1) of the Bail Act 1982.
3 The appellant was brought before Mr A Bloemen SM in the Fitzroy Court of Petty Sessions on 4 September 2001 when he pleaded guilty to both charges. The facts read by the prosecutor in relation to the two offences were as follows:
"PROSECUTOR: Yes Sir, at 4.30pm Friday 17th August this year the defendant was in the car park of the Crossing Inn Hotel at Fitzroy Crossing. Police were called to the location, as the defendant was drunk and abusive towards the staff and other patrons in the vicinity. Police warned the defendant to leave the area and to desist with his behaviour. Two other males who were in company with the defendant stated they would walk the defendant away and advised him to settle down. A short time later the defendant ignored warnings from police and advice from his associates by attending the front of the take away area of the hotel where he again began to yell abuse at hotel staff thus causing a large group to gather to see what the disturbance was. As police approached the defendant ran into the bushland opposite the hotel and was captured shortly after by police who had to chase him on foot and then the breach of bail as per the complaint and there is a record Sir."
4 The appellant was represented by counsel who stated that the facts were admitted but that the appellant had no recollection whatever of the events in question due to his state of intoxication. Counsel submitted to the Court that "the whole underlying thing here is alcoholic" as could be
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- seen from the appellant's record of convictions. It was submitted that a fine would be an appropriate disposition of the matter which the appellant would seek to convert to a work and development order.
5 The learned Magistrate was not disposed to fine the appellant in relation to the offence of being disorderly. He said:
"HIS WORSHIP: Thank you. Please stand up Christopher. Christopher you are a hopeless person when it comes to alcohol. In 99 you were in court on eleven occasions, in 2000 you were in court on ten occasions with assaulting police officers, disconducted (?), name it and you did it, and in the year 2001 you have been here eight times now. I see no choice Christopher than to impose a 6 months imprisonment term on you. One hundred-dollar fine in relation to failing to appear, ninety dollars costs, thank you."
6 On 3 October 2001 the appellant was given leave to appeal from the sentence of imprisonment. The grounds of appeal are:
"2.1 That the term of imprisonment was manifestly excessive;
Particulars
(a) The learned Magistrate has erred in imposing the maximum summary conviction penalty available for the offence (imprisonment for 6 months) when, having regard to all relevant circumstances, the offence could not be characterised as the worst category of its kind.
(b) The learned Magistrate has erred in imposing a sentence that, having regard to the age and circumstances of the Applicant, is 'crushing'.
2.2 That the learned Magistrate has erred in failing to consider or to adequately consider whether to suspend the term of imprisonment.
2.3 That the learned Magistrate has erred by failing to place any or sufficient weight upon a relevant mitigating factor, namely, that the applicant is an Aboriginal and his underlying problem with alcohol reflects the
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- socio-economic circumstances and environment in which many Aboriginal people live."
7 The appellant's record of convictions (which was before the learned Magistrate) reveals that he was born on 1 January 1978 and was thus 23 years of age at the time of the hearing in Petty Sessions. His record incorporated 10 prior convictions for the offence of disorderly conduct between 1997 and 2001. He had numerous other convictions including burglary, resisting arrest, damage, assaulting public officers and breaches of bail. In essence, the record of convictions was one for Police Act offences. He had been put on numerous community-based orders, but consistently breached them. He had served sentences of imprisonment ranging from 4 to 6 months in length. For the most recent convictions for disorderly conduct in March and July of 2001 he had been placed on a 6 month community-based order and had been fined respectively. For an earlier offence of disorderly conduct in November 2000 he was sentenced to 2 months' imprisonment which appears to have been cumulative on a 4-month sentence for assaulting a public officer.
8 The first ground of appeal advanced by the appellant is that the learned Magistrate imposed the maximum penalty for the offence when the offence could not be characterised as the worst of its kind. There is ample authority that the maximum sentence should be reserved for the worst type of case or "the worst cases of the sort" falling within the prohibition contained within the section. In Bensegger v The Queen [1979] WAR 65, Burt CJ (at 68) put it this way:
"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it than can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."
9 In my view it can properly be complained by the appellant that the offence committed by him at Fitzroy Crossing on 17 August was not the worst case of its sort. Disorderly and a nuisance his conduct certainly
(Page 6)
- was, but the statement of facts read by the prosecutor indicates only that the appellant was drunk and abusive towards staff and other patrons. As police approached him he ran away, but was shortly after captured. The offence did not, in my view, deserve the maximum sentence applicable to offences of its kind.
10 The fourth ground of appeal advanced by the appellant makes reference to the special circumstances of the appellant. The submission of counsel at the hearing before the learned Magistrate had referred to his problems with alcohol and his Worship clearly appreciated this fact by making reference to the hopelessness of his position when it came to alcohol. The record of convictions underlined the problem.
11 The appellant is an Aboriginal and I assume that this fact was clearly known to the learned Magistrate. It is submitted on the appellant's behalf that the learned Magistrate ought to have placed weight upon the appellant's Aboriginality and his underlying problem with alcohol and the socio-economic circumstances and environment in which he lives. Reliance was placed upon the observations of Malcolm CJ in R v Juli (1990) 50 A Crim R 31 at 36:
"Drunkenness is not normally an excuse or a mitigating factor. In particular circumstances, however, it may be relevant as a mitigating factor. In the particular circumstances of this case the applicant's abuse of alcohol reflects the socio-economic circumstances and the environment in which he has grown up and should be taken into account as a mitigating factor in the way which I suggested in Rogers and Murray (1989) 44 A Crim R 301 at 305-308. I do not wish to repeat what I said in Rogers save to say that the substantive point which I sought to make in my judgment at 305 was:
'It is a notorious fact that the increased use of alcohol by Aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …' "
(Page 7)
- taken that his Worship was well aware of the problems within the Aboriginal community at Fitzroy Crossing. It was unnecessary for the learned Magistrate to advert to those problems as long as they were taken into account. The difficulty is that the imposition of the maximum penalty rather suggests that they were not taken into account.
13 The third ground of appeal complains that the learned Magistrate failed to consider or adequately consider whether or not to suspend the term of imprisonment imposed. As was pointed out in submissions on behalf of the appellant, no reference was made by the learned Magistrate to the question of suspension of the term. Counsel for the appellant concedes that it is not incumbent upon a sentencing Magistrate to list each and every non-custodial option considered by him. This was made clear by Ipp J in Shooter (1997) 97 A Crim R 581 at 595. However, in that case Ipp J made reference to the overall concern, care and attention displayed by the learned Judge when dealing with the sentencing issues. He said:
"It is apparent from the learned judge's sentencing remarks that he gave very careful attention to the difficult task of sentencing with which he was faced. As counsel for the applicant rightly conceded, his Honour was sensitive to the peculiar factors applicable to the applicant and the problems she faced. Suspending the sentence was an obvious possibility and obviously should have been considered, together with other possible options such as probation. However, it was not incumbent upon his Honour, when declining to uphold the submission advanced on the applicant's behalf, to list each and every form of non-custodial option considered by him. In practice this is seldom, if ever, done, and there is no need to require it to be done. Accordingly, his omission to refer expressly to the possibility of suspending the sentence of imprisonment should not, in my view, lead to an inference that this possibility escaped his Honour's attention. This conclusion is reinforced by the overall concern, care and attention displayed by the learned judge when dealing with the sentencing issues raised."
14 I would not wish to be critical of the learned Magistrate in the present case for the very brief sentencing comments he made. He was, after all, in the Court of Petty Sessions at Fitzroy Crossing and probably dealing with a substantial list. However, it cannot be said with any confidence that the learned Magistrate did, in this case, give any
(Page 8)
- consideration to the question of suspension of the sentence of imprisonment he was about to impose. That such consideration was called for is made abundantly clear in Dinsdale v The Queen (2000) 202 CLR 321.
15 Had the learned Magistrate adverted specifically to the question of suspension of the term of imprisonment he was about to impose, he would, in my view, have seen it as a very viable option. As was pointed out in Dinsdale v The Queen by Kirby J (at [85]), the provisions of s 76(2) of the Sentencing Act support the view that in looking at suspension of a term of imprisonment, reconsideration of "all the circumstances" is required. His Honour added:
"This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion' which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits, in a particular case, the exploration of alternatives to immediate custodial punishment."
(Page 9)
16 In my view the present case was one in which the learned Magistrate was entitled to take the view that a sentence of imprisonment was appropriate, given the circumstances of the offence and the antedecents of the appellant, particularly his record of prior convictions. That record could not, of course, aggravate the penalty, but it was relevant.
17 The case, however, was clearly otherwise than the worst of its type and did not, in my view, justify the maximum term of imprisonment. A sentence of 4 months' imprisonment, which was for practical purposes the minimum that could have been imposed, would, in my view, have been quite sufficient. Further, it would, in my view, have been appropriate when reconsidering all the circumstances in the way in which Kirby J has suggested, to have determined that the sentence should properly have been suspended. Amongst these circumstances were the problems of alcohol abuse and the socio-economic circumstances and environment in which the appellant was placed.
18 For all these reasons I consider the learned Magistrate should properly have suspended the sentence of imprisonment and to have suspended it for a period of 6 months. I would therefore allow the appeal, set aside the sentence of 6 months' imprisonment and substitute for it a sentence of 4 months' imprisonment, suspended for a term of 6 months. Such a sentence will hopefully bring home to the appellant the need to refrain from anti-social and disorderly conduct of the type which was charged in this instance, failing which he will be brought back for resentence. The appellant has not previously been the recipient of a suspended sentence of imprisonment and this option is therefore clearly applicable to his circumstances.
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