Hodges v Hagan

[2001] WASCA 41

HODGES -v- HAGAN [2001] WASCA 41

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 41
Case No:	SJA:1001/2001	Heard:	05 FEBRUARY 2001
Coram:	SCOTT J	Delivered:	16/02/01
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed
PDF Version

Parties:	WENDY GEORGINA HODGES TRAVIS HAGAN
Catchwords:	Criminal law and procedure Appeal Sentence of 14 months' imprisonment manifestly excessive Offences resulted from pressure from drug addicts of appellant's extended family Offences over a very short period of time Magistrate erred in discounting the significance of the absence of convictions for 9 years Applicant sole parent of two young children Magistrate erred in concluding that a term of suspended imprisonment would not act as a significant general deterrence Suspended sentence a strong incentive not to offend Appeal allowed and sentence restructured to a total of 12 months' imprisonment suspended for 12 months
Legislation:	Nil
Case References:	Dinsdale v The Queen [2000] HCA 54 Latham v The Queen [2000] WASCA 338 Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997 Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 17 April 1997 Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Hayward v Hubbard [2000] WASCA 416 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 Thompson v The Queen (1992) 8 WAR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HODGES -v- HAGAN [2001] WASCA 41 CORAM : SCOTT J HEARD : 05 FEBRUARY 2001 DELIVERED : 16 FEBRUARY 2001 FILE NO/S : SJA 1001 of 2001 BETWEEN : WENDY GEORGINA HODGES

Appellant

AND

TRAVIS HAGAN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Sentence of 14 months' imprisonment manifestly excessive - Offences resulted from pressure from drug addicts of appellant's extended family - Offences over a very short period of time - Magistrate erred in discounting the significance of the absence of convictions for 9 years - Applicant sole parent of two young children - Magistrate erred in concluding that a term of suspended imprisonment would not act as a significant general deterrence - Suspended sentence a strong incentive not to offend - Appeal allowed and sentence restructured to a total of 12 months' imprisonment suspended for 12 months

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Representation:

Counsel:

Appellant : Mr C L J Miocevich
Respondent : Ms A L Forrester

Solicitors:

Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions

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

Dinsdale v The Queen [2000] HCA 54
Latham v The Queen [2000] WASCA 338
Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 17 April 1997
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Case(s) also cited:

Hayward v Hubbard [2000] WASCA 416
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
Thompson v The Queen (1992) 8 WAR 387

(Page 3)

1 SCOTT J: On 24 November 2000 in the Fremantle Court of Petty Sessions the appellant pleaded guilty to nine charges and elected to be dealt with summarily.

2 Charge 8980/00 was a charge of stealing property valued at $1,237.56 which related to selling items of property which the appellant rented pursuant to a rental agreement. The remaining charges either related to receiving property which had been stolen from dwelling houses or to obtaining money by way of obtaining loans with the use of that stolen property as collateral.

3 The broad facts of the matter are that on 24 June 2000, the appellant had entered into a rental agreement in relation to a Sharp stereo system, an NEC television, an NEC video recorder and a Simpson washing machine. Those items were subsequently sold by the appellant or her former partner in order to settle his drug debts. In the course of argument on appeal, the submission was made by counsel for the appellant that the facts of this matter did not constitute an offence by the appellant. This was not raised in the grounds of appeal and not put to the learned Magistrate. The submission requires no further consideration.

4 The balance of the charges occurred between 20 and 25 September 2000 and occurred in the circumstances that I have previously mentioned.

5 In relation to each of the items of property which the appellant sold to, or hocked with pawnbrokers, the appellant used her own name and address so that her involvement was readily apparent.

6 The total value of the property involved in all nine offences was $6,650.56, of which $4,373 was recovered.

7 The appellant was sentenced to a term of 14 months' imprisonment, being 8 months' imprisonment for receiving property valued at $1,879 and 6 months' cumulative for receiving property valued at 1,774. The sentences on the remaining charges were either 4 months or 6 months' imprisonment and each term was ordered to be served concurrently with the 14 months imposed upon the counts to which I have referred. A parole order was made.

8 The appellant had a very bad record as a child commencing in 1985 and an on-going serious criminal record as an adult until 12 April 1991. She had been sentenced to a number of terms of imprisonment during that period but significantly her offending had ceased following a sentence on

(Page 4)

12 April 1991 in the Perth Court of Petty Sessions and she had remained conviction free between then and the date of the offending presently under consideration.

9 In mitigation, counsel for the appellant told the learned Magistrate that the appellant was aged 29 years and had two children, one aged 9 and one 12. The father of those children had separated from the appellant. The father was a heroin addict who came back into the appellant's life at about the time these offences occurred and brought pressure upon her to become involved in criminality so that he could service his heroin addiction. The offences occurred not only to support her former partner, but his brother and sister-in-law, all of whom had, as counsel put it, "serious heroin habits".

10 Counsel said that the appellant had given in to the pressure which those persons put upon her and so become involved in these illegal transactions. It was said that the appellant was in fear of her former partner and that she had been taking anti-depressant drugs. It was said that the appellant had employment which was on going, and that she had surrendered to the police when she heard that they were looking for her.

11 His Worship gave some thought to the appropriate sentencing disposition over the lunch hour, having pointed out to the appellant that the property involved totalled in excess of $6,000. Following further submissions his Worship resolved to impose the prison terms to which I have referred.

12 In sentencing the appellant, his Worship referred to the fact that innocent members of the public were out of pocket as a result of her offending and his Worship referred to factors personal to the appellant. His Worship then went on to refer to the appellant's prior criminal record and said:

"You have a prior record of dishonesty but no convictions for a period of nine years. As a result of that, I see very little mitigation in your record. What would be mitigatory of course would be a record that showed no dishonesty. The collective effect of your nine offences are in my view very, very serious albeit that they were - - they occurred over a relatively short period of time."

13 His Worship took the view that the serious nature of the offences was such that a suspended term of imprisonment could not be justified and that a term of imprisonment to be served immediately was called for.
(Page 5)

14 In relation to a suspended term of imprisonment, his Worship said that such a term "may act as a personal deterrent and I've no doubt that it would in your case, it is not generally considered as providing significant general deterrence". His Worship referred to the case of Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 and referred to the need for general deterrence in relation to this type of offending. His Worship then imposed the sentences to which I have earlier referred.

15 In considering an appeal of this nature, it is important for the court to bear in mind that it is for the appellant to establish that there has been some error of principle or a miscarriage of justice in the sentencing exercise. It is not a matter of an appellate court imposing its own view as to the appropriate sentence. The question is whether the sentence imposed by the learned Magistrate either reveals an error of principle, or is appellably wrong in the sense that it falls outside the appropriate range of sentence for the conduct concerned.

16 In Dinsdale v The Queen [2000] HCA 54 Gleeson CJ and Hayne J cited the well known passage from House v The King (1936) 55 CLR 499 and said at 3:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain."

17 The grounds of appeal in this case are that the learned Magistrate imposed a sentence that was excessive having regard to -

"(i) the nature and circumstances of the offences;

(Page 6)

(ii) the Applicant's plea of guilty;

(iii) the Applicant's antecedents and in particular the lack of offending for a period of 9 years.

(b) The learned Magistrate erred by not suspending the term of imprisonment, taking into account:

(i) the nature of the circumstances of the offences;

(ii) the Applicant's plea of guilty;

(iii) the Applicant's antecedents and in particular the lack of offending for a period of 9 years.


(c) The learned Magistrate erred by sentencing on the basis that the value of the property taken amounted to over $6,600 much of which was not recovered, when in fact the total value of property taken was $6,650.56 of which $4,373 had been recovered.

(d) The learned Magistrate erred by sentencing on the basis that because of a prior record for dishonesty there was very little mitigation in the record despite no convictions for 9 years."

18 The first thing that should be said about the appellant's conduct in this case is that it did involve offending that was serious. With the exception of the first offence, the balance of the property had come from burglary offences and the Court of Criminal Appeal has repeatedly emphasised the need to firm up sentences in relation to that conduct.

19 In Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 17 April 1997, White J cited the passage in Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997 where the Chief Justice, with whom Wallwork J agreed said at 6:

"It is now clear that the prevalence of the offence of burglary is very great, particularly in the case of burglaries which are being committed for the purpose of obtaining money to buy drugs. That may mean that the range of sentences commonly imposed, which was dealt with by this Court in Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989, may need to be reconsidered and sentences

(Page 7)

firmed up in the manner referred to by Burt CJ in the context of armed robbery in The Queen v Peterson [1984] WAR 329 at 3312-332."

20 Similar views were expressed by Franklyn J in the same case at 3:

"The invasion of the privacy of the home has its own impact on the victim. There is also the consequential financial loss to the insurance company in the event of the victim being relevantly insured with the flow-on cost to the insuring public of increased premiums. The value of the goods taken in most cases will be of only limited relevance. The offender takes either what he came specifically to take or what he can find and, in the particular circumstances, chooses or is able to remove.

… The more recent experience of burglaries is that to a large extent they are committed by young offenders and it is to them, as much as to the more mature offenders, that deterrence must be directed, always bearing in mind that they are young offenders and that imprisonment is a sentence of last resort. As already stated, generally speaking, the value of the goods stolen will in many cases have only limited relevance. It should not necessarily have a significant impact on the sentence to be imposed. In some cases, of course, it may have considerable or even overwhelming significance, depending on the particular circumstances."

21 Whilst these matters were not burglary charges for the most part, the offences followed on from burglaries and dealt with the proceeds of such crimes. The same principles apply. the question of using a suspended sentence in this type of case was considered by the Court of Criminal Appeal in Van Thong Dao v The Queen (supra) where Murray J cited with approval the comments of Burt CJ in R v Peterson [1984] WAR 329 at 322:

"… it must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission of the offence to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence. But this cannot be taken too far."

22 An analysis of his Worship's reasons in this case in my view does reveal error. In my opinion his Worship was in error in saying that the

(Page 8)

absence of convictions for a period of 9 years constituted very little mitigation. In my view, whilst it is fair to say that the appellant had a very bad record as a juvenile and in her early adult years, it was significant and to her credit that the chapter of offending which had been so significant in her younger life had totally terminated following her convictions on 12 April 1991. She had remained conviction free for over nine years. In that respect, in my view, it was an error for his Worship to say as he did that this cessation of criminality constituted "very little mitigation in your record".

23 In my view his Worship was also in error in saying that:

"Whilst a term of suspended imprisonment may act as a personal deterrent, and I have no doubt that it would in your case, it is not generally considered as providing significant general deterrence."

24 His Worship in making that last remark was referring to a comment made by Kennedy J in Van Thong Dao v The Queen's case (supra) where his Honour said at 3:

"Although it is clear that a suspended sentence can be regarded as constituting a personal deterrent and as marking the seriousness of the offence, it is not generally considered to provide any significant general deterrence."

25 That passage of Kennedy J has not been followed in other cases. In Latham v The Queen [2000] WASCA 338, Parker J, with whom Wallwork and McKechnie JJ agreed, said at 13 [34]:

"While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered appropriate. That was the view taken by his Honour in this case. It cannot be concluded, in this respect, that the exercise of his discretion was faulty."

26 With respect to their Honours, I agree with the views expressed in Latham's case and prefer those views to the view expressed by Kennedy J in Van Thong Dao's case. In my view, a suspended term of

(Page 9)

imprisonment, being the second most serious disposition available to the court in an appropriate case can be regarded as having general deterrent value. In my opinion, this is exactly such a case. The appellant, having remained out of trouble for a period of nine years and then having been involved in a brief, but serious chapter of criminality, in circumstances where the criminality was largely brought about by the demands of others, is an example of a case where a suspended term of imprisonment could be said to be both a general deterrent and an appropriate disposition. The reason is that such a disposition would provide a very strong incentive to the appellant to remain of good behaviour for the period of the suspended term so that should the criminality continue, the suspended term is likely to be activated. There is no reason to believe that a suspended term of imprisonment would not be a general deterrent in this case.

27 The appellant remained in custody from the date of sentencing, that is, 24 November 2000, until released on bail on 10 January 2001, a period of some 47 days. Bearing in mind that the original sentence was for a period of 14 months with a parole order, should the appellant be returned to custody it would likely only be for a further period of something less than two months. In the circumstances, therefore, in my view, the appropriate course is to suspend the remaining period of imprisonment for one year. That will provide a strong incentive for the appellant to return to her law abiding ways. It will also act as a significant deterrent to her against lapsing into further criminal conduct and as a general deterrent to others.

28 In relation to ground (c) of the grounds of appeal, the complaint by the appellant is that the learned Magistrate in his sentencing remarks said, "The value of which property (ie the property involved in the offences) amounts to over $6,000. Much of that was not recovered". As I have already said, $4,373 was recovered and it was a matter for his Worship to assess the significance of the amount recovered. I can detect no error in the use by his Worship of the word "much" in this case where approximately $2,270 worth of property was not recovered. In my opinion this ground of appeal is not made out.

29 The remaining grounds of appeal have been sufficiently discussed in the course of these reasons.

30 The appeal will be allowed.

31 When this judgment was delivered on 16 February 2001, in order to give effect to these reasons, the sentence in complaint 8984/00 was

(Page 10)

reduced to a term of 6 months imprisonment. The balance of the terms imposed remained unaltered. The sentence of 12 months' imprisonment in total was suspended for a period of 1 year.