Howlett v Hesp
[2012] WASC 351
•20 SEPTEMBER 2012
HOWLETT -v- HESP [2012] WASC 351
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 351 | |
| 20/09/2012 | |||
| Case No: | SJA:1078/2012 | 10 SEPTEMBER 2012 | |
| Coram: | HALL J | 10/09/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEORGE HAMILTON HOWLETT MICHAEL JOHN HESP |
Catchwords: | Criminal law Appeal against sentence Aggravated burglary Multiple counts of criminal damage Three incidents over four months Past history of offending Damage by graffiti Whether total effective sentence of 12 months' imprisonment manifestly excessive Whether sentence should have been suspended |
Legislation: | Nil |
Case References: | Bergh v Ashton [2011] WASC 69 Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Dreja v Sloan [2011] WASC 245 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jones v Sadler (No 2) [2010] WASC 53 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 McDougall v The State of Western Australia [2009] WASCA 232 P (a child) v Thompson [2011] WASC 120 Pickett v The State of Western Australia [2004] WASCA 291 Plant v Harrington [2010] WASC 364 Royer v The State of Western Australia [2009] WASCA 139 Wilson v The State of Western Australia [2010] WASCA 82 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MICHAEL JOHN HESP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : FR 7056 of 2012, FR 7057 of 2012, FR 7058 of 2012, FR 7059 of 2012, FR 7060 of 2012, FR 7061 of 2012, FR 7062 of 2012, FR 7063 of 2012, FR 7064 of 2012
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Multiple counts of criminal damage - Three incidents over four months - Past history of offending - Damage by graffiti - Whether total effective sentence of 12 months' imprisonment manifestly excessive - Whether sentence should have been suspended
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S F Rafferty
Respondent : Mr J Newton-Palmer
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bergh v Ashton [2011] WASC 69
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dreja v Sloan [2011] WASC 245
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Sadler (No 2) [2010] WASC 53
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Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McDougall v The State of Western Australia [2009] WASCA 232
P (a child) v Thompson [2011] WASC 120
Pickett v The State of Western Australia [2004] WASCA 291
Plant v Harrington [2010] WASC 364
Royer v The State of Western Australia [2009] WASCA 139
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
(Page 4)
- HALL J:
Introduction
1 On 10 September 2012 I dismissed this appeal against sentence. I gave brief oral reasons and said that more detailed reasons would be published in due course.
2 On 27 July 2012, the appellant was sentenced to an aggregate term of 12 months' imprisonment in the Magistrates Court at Fremantle. That sentence was for offences of criminal damage and aggravated burglary. He sought leave to appeal against the total aggregate sentence.
3 The grounds are that the individual sentences imposed were manifestly excessive and that the magistrate erred by failing to have regard to all the circumstances relevant to the imposition of a suspended sentence.
4 The appellant also pleaded guilty to a number of other charges on 27 July 2012. He was fined for those offences, and those penalties are not challenged. However, it is necessary to refer to the other charges because they form part of the factual context in which the offences that are the subject of this appeal occurred. The following table sets out the offences and the penalties imposed:
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| 9. | Possess cannabis | 6.6.12 | <2 grams of cannabis found in appellant's bedroom | $100 and order for destruction |
| Total sentence 12 months' imprisonment. Eligible for parole. | ||||
The facts
5 The facts relevant to the offences are as follows. On 14 February 2012 at 1.57 pm the appellant crossed the railway tracks on the Perth-Fremantle line in order to access a railcar that was waiting at the special events platform at the West Leederville station. In doing so he committed trespass. He was in possession of a can of spray paint. He used the spray can to paint a large graffiti mural on the side of the train. Guards were alerted by the smell of paint. They attempted to apprehend the appellant, but he was able to escape. The appellant's actions were recorded on CCTV. He also left a bag at the scene from which DNA was later obtained, which identified him. The cost of the damage was $448.
(Page 6)
6 On 26 April 2012, the appellant gained access to the premises of a salvage business in Beaconsfield. This constituted the second trespass charge. While on the site, the appellant painted graffiti tags and expletives on two excavators and two sea containers. The cost of this damage was $2,600.
7 On the same date and at the same place, the appellant caused damage to the external wall of a commercial building housing a joinery and cabinet making firm. Again, the damage was caused by painting tags, expletives and drawings on the wall. The cost of this damage was $6,600.
8 On the afternoon of Saturday, 26 May 2012 the appellant was in company with two others in an industrial area. They gained entry to an administration building at commercial premises in the area. The premises were formerly a distribution centre and trade outlet for, ironically, a paint company. The premises were vacant and on the market at the time. Once inside the administration building, the appellant and his co-offenders caused damage to the internal walls by spraying graffiti on them. The cost of this damage was $5,000. A computer monitor and a first aid kit were also stolen. Forensic examination of the site resulted in the appellant's fingerprints being located. A bankcard in his name was also found.
9 On 6 June 2012 the appellant was apprehended by police and interviewed. He declined to answer questions about the offences. A search of his home resulted in the finding of the stolen computer monitor. An iPhone was also found which contained photographic images of the first two incidents of damage. Also seized were spray cans, nozzles, and marker pens associated with the damage. A small amount of cannabis was also found.
Past history of offending
10 The appellant was 22 years old at the time of the offending. He had a prior record which included offences of criminal damage and trespass. He had either been fined or received a community based order for those previous offences. They included offences both as a juvenile and as an adult.
11 As an adult, the appellant had committed offences of attempted criminal damage and obstructing railways, for which he was convicted on 27 March 2008. In respect of those offences, he was placed on a 9 month community based order with 40 hours' community work.
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12 Within the term of that community based order, it was breached by the commission of further offences. On 26 June 2008 the appellant came before the Perth Magistrates Court charged with offences including three offences of stealing and one of unlawful damage. The unlawful damage offence had been committed on 31 March 2008; that is, four days after being sentenced and placed on the community based order. He was fined $1,000 for the unlawful damage offence, although that seems to have been a global fine which also related to two of the stealing offences. The community based order was breached as a result of these convictions. The court ordered that the order was to continue at that time.
13 Subsequently, on 11 January 2010, the appellant was convicted of a further unlawful damage offence for which he was fined $300. That offence had been committed on 10 September 2009.
14 On 11 February 2010 he was convicted of a further unlawful damage offence for which he was fined $500. That offence had been committed on 9 November 2009.
15 There was a passage of time before any further offences were committed. That is a matter that the appellant's counsel placed some emphasis on. In excess of two years passed between the commission of the last offence that the appellant committed, and those for which he came before the magistrate on this occasion. It was suggested that this indicated that the appellant was capable of leading a law-abiding life.
Plea in mitigation in Magistrates Court
16 In mitigation, a psychological report was provided to the magistrate. It referred to the death of close family members when the appellant was a child. These losses caused the appellant to feel that his life was out of control. He left school in Year 11 and had been involved in anti-social behaviour and cannabis use thereafter. The anti-social behaviour included spraying graffiti onto buildings and trains.
17 The psychologist said that the appellant had displayed symptoms of depression, trauma, social anxiety and grief. However, in the two years prior to the present offences, he was said to have stabilised his life, formed a committed relationship and obtained some regular work.
18 Between December 2011 and May 2012, the appellant had become unemployed due to a lack of funding for the agency he had formerly worked for. Stress and frustration were said to have led to a reversion to
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- past behaviour patterns. He was said to be remorseful for this, and had more recently again found work and was more positive about his future.
19 The appellant's counsel told the magistrate that the appellant was studying for a Certificate IV in visual arts and contemporary craft at TAFE. That study had recently commenced and was anticipated to take four years. He then hoped to undertake teaching studies, with a view to helping 'at risk' children.
Magistrate's sentencing remarks
20 In sentencing the appellant, the Magistrate said:
The trouble you have, Mr Howlett, is that you have a history of what they call antisocial behaviour of similar offending, criminal damage going back as far as 2006. I don't take into account the Children's Court offences but certainly it tells me - I can look at it and say, 'This is out of character' and clearly that is not the case. This has been going on, as I say, unabated, it would seem to me, over that period of time.
As I say, I accept the matters in the report - the psychological issues - but that in itself is not uncommon in the community. A large portion of people who appear before the courts on these sort of offences have issues. Certainly, as I say, nothing in the report prevents you from understanding the wrongness of what you were doing.
Parliament has recently indicated, certainly by the penalties, three years or $36,000 - up to that - and it is indictable. The penalty is significantly higher if it is dealt with on indictment. The behaviour is to be treated at the highest level. It is prevalent. You just need to drive down the street to see the damage that is done. It is an enormous cost to the community.
You clearly see yourself - it can only be that - some sort of justification for the behaviour. What I have got to do is show you that that behaviour is not acceptable. It is simply not acceptable. That requires strong personal - and there is an element of general deterrence - to you. I mean, up to now - and as I say, this is not just a one-off. This has been ongoing behaviour and you have shown contempt, absolute contempt, for other people's property.
Having considered all the matters relevant - and I don't intend to order a pre-sentence report - I take the view that fines are not appropriate. In my view, at this level, over the period of time it is done and the level of damage caused, a community based order doesn't reflect the serious nature of the offences. I am of the view that imprisonment is the only appropriate disposition. The continuing nature of the offences, the history of like offending and the need for personal deterrence lead me to conclude in these circumstances that the only appropriate disposition is an immediate term of imprisonment, Mr Howlett (ts 8 - 9).
(Page 9)
Ground 1 - Were the sentences imposed manifestly excessive?
21 The relevant principles applying to an appeal against sentence are well known. They are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82. That case related to an appeal to the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA), but the principles are materially the same for appeals from magistrates under pt 2 of the Act.
22 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature and length imposed could not have been reached in the proper exercise of sentencing discretion.
23 It is not enough that an appellate court considers that it would have imposed a different sentence. It must be established that there has been some error in the exercise of sentencing discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion that the law invests in sentencing judges is of vital importance in the administration of justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
24 In order to determine if a sentence is manifestly excessive, it is necessary to view it in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 and McDougall v The State of Western Australia [2009] WASCA 232.
25 The relevant maximum penalties are 10 years' imprisonment for criminal damage, and 20 years' imprisonment for aggravated burglary. The maximum that can be imposed summarily is 3 years in each case. However, that is only a jurisdictional limit, and it is the statutory maxima that are relevant in assessing the seriousness of an offence: Wiltshire v Mafi [2010] WASCA 111.
26 As regards the standards of sentences imposed for offences of this type, it is not customary to impose terms of imprisonment for minor offences of graffiti: see Bergh v Ashton [2011] WASC 69. A number of cases which support that conclusion can be cited. They include Jones v
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- Sadler (No 2) [2010] WASC 53, Dreja v Sloan [2011] WASC 245, and P (a child) v Thompson [2011] WASC 120.
27 Some of those cases, in particular Jones v Sadler (No 2) involved the less serious offence of unlawful damage under s 445 of the Criminal Code, rather than wilful damage under s 444. Unlawful damage under s 445, for which I note the appellant has been previously charged and convicted, carries a much lower maximum penalty of 2 years' imprisonment and/or $24,000.
28 It is not difficult to understand why a person who has committed previous offences of unlawful damage would be charged with the more serious offence of wilful damage when they re-offend. It would be hard to claim in such circumstances that the re-offending was anything other than wilful conduct done with a realisation of the consequences.
29 The present offences of criminal damage did not fall into the category of minor offences. That is for the following reasons. First, there were three separate incidents over four months. Secondly, each incident involved some element of planning in that the appellant was equipped with cans of spray paint. Third, at least as regards the second and third incidents, the conduct must have taken some time. It was not a single act done quickly and without an opportunity for real thought. Fourthly, each incident involved breaching of property rights, either in circumstances of trespass or burglary. This was not damage done in a public place, but damage done to private property whilst committing other offences. Fifthly, the total cost of the damage done was significant, being in excess of $14,500.
30 There are insufficient comparable cases to determine a range of sentences for offences of this nature. However, sentences of 6 months' imprisonment would not appear to be inappropriate for offences of this level of seriousness. Offences of this type can cause significant inconvenience and cost, both to the public when public property is involved, and to private owners. As Jenkins J noted in Bergh [58], 'Such offences do seem to be prevalent in the community. There is often, in those circumstances, a need for general and specific deterrence.' There was a particular need for personal deterrence in this case.
31 As regards burglary, there is no real range given the variety of circumstances in which such offences may occur. The appellant places some reliance on the fact that these were commercial rather than residential premises, and that they were vacant. They are relevant
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- considerations. On the other hand, this was clearly private property and the damage must have been done with that awareness. Furthermore, these were not derelict or abandoned premises. They were on the market at the time. A sentence of 6 months' imprisonment does not stand out as obviously inappropriate for such an offence.
32 As to the appellant's personal circumstances, he was no longer able to claim youth as a significant mitigating factor. Whilst his prior offences did not aggravate the present offences, he did not come before the court with good character. He could have been in no doubt as to the fact his offences would likely lead him to being caught, charged and punished. There was clearly an element of defiance and contempt for the law in this offending.
33 A suggestion made on the appellant's behalf that he saw what he did as being 'artistic expression' hardly assisted him. It revealed a serious lack of appreciation of the criminality of his conduct, and how it impacted on others. In any event, it is difficult to appreciate how tags and expletives spray painted on the private property of others can have artistic merit, or be excused on that ground.
34 It was relevant to take into account that the appellant at the time he came before the court had commenced a course of studies at TAFE. It was also relevant to take into account that there had been a period of non-offending prior to the most recent occurrences. I also accept that a suspended sentence can act as a personal deterrent. There was psychological information before the magistrate that was relevant to take into account. The psychologist who completed that report noted at the end of it that in his view, it would be counterproductive for the appellant to be given a sentence of imprisonment to be served. Those are all relevant considerations but they do not necessarily lead to a conclusion that specific deterrence would be irrelevant; nor do they lead to a conclusion that taking all factors into account, a sentence to be served would be inappropriate.
35 The question is whether a sentence of the type and length imposed was properly open to the magistrate to impose. They may be thought to be severe sentences, but that does not mean that they were excessive. In the circumstances of this case, the sentences imposed were open to the magistrate, and leave in respect of ground 1 must be refused.
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Ground 2 - Suspended sentence
36 This ground asserts that the magistrate failed to have regard to considerations relevant to whether a suspended sentence was appropriate. On the face of it, the ground seems to suggest an express error. However, that assumes that it is necessary for a magistrate to expressly state every relevant consideration in concluding that a suspended sentence is not appropriate.
37 Where a court determines that a sentence of 60 months or less is appropriate, it may order that the whole of that term be suspended for a period not exceeding 24 months: s 76 of the Sentencing Act 1995 (WA).
38 In Dinsdale v The Queen Kirby J held that a two stage process was involved when a court comes to consider a suspended sentence. The first stage involves looking at all the relevant factors to determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again to determine whether to suspend the term of imprisonment.
39 In cases where there is some express indication that there has been a failure or refusal on the part of the magistrate to undertake the second consideration, then an express error may occur. However, where there is no recitation of the factors that have resulted in a conclusion that suspension is inappropriate, it is difficult to argue that there has been an express error.
40 In the present case, the appellant submits that the only matter specifically referred to by the magistrate at the second stage, in deciding not to suspend, was specific deterrence. It is said that this leads to a conclusion that other relevant factors were not considered.
41 The first thing that must be said is that a requirement to consider all relevant circumstances does not require that they be expressly listed. Sentencing is not a mechanical exercise that necessitates a reciting of every possible relevant factor. It cannot be assumed that because a decision maker has not specifically referred to a relevant factor, it has not been taken into account: Pickett v The State of Western Australia [2004] WASCA 291, 210 (McLure J).
42 This is perhaps particularly pertinent in a case involving consideration of a suspended sentence. Because that consideration requires all relevant factors to be considered again, there would inevitably
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- be quite needless repetition if a sentencing magistrate had to expressly refer to all the same factors again.
43 In the present case the magistrate had clearly just referred to all relevant factors in coming to the conclusion that imprisonment was appropriate. I accept that what is said could be interpreted as meaning that the magistrate was only taking all matters into account in coming to a conclusion that it is a sentence of imprisonment that is appropriate, but that he then refers only to the continuing nature of the offences, a history of like offending, and the need for personal deterrence when deciding whether to suspend. However, the fact that the magistrate expressly mentioned some factors that he has considered, and presumably considered to be more important, does not lead to a conclusion that he has improperly excluded others from his consideration.
44 There may be cases where on all the available facts, it is possible to reach a conclusion that a failure to suspend was an error. This will generally be because the sentence would otherwise be manifestly excessive. That is a conclusion that can only be drawn from a consideration of all of the factors referred to in respect of ground 1 of this appeal. It does not flow, or does not flow alone, from any failure by the magistrate to mention particular relevant factors in his or her reasons.
45 I should also note that the decision as to whether to suspend is also discretionary. Sentencing discretion relates not only to the final disposition, but to the weight to be attributed to various factors. It is not enough to try to persuade an appellate court that suspension was open on one view of the facts. An appellate judge must avoid the risk of too readily concluding that an error was made on his or her own assessment of the circumstances.
46 The question is not whether the appellate court would suspend on its assessment of the circumstances, but rather whether it was reasonably open for the magistrate to take a view of the circumstances that would result in the conclusion that a suspended sentence was not appropriate: Plant v Harrington [2010] WASC 364, [34] - [36].
47 In the present case, it was open in my view for the magistrate to form a view of the circumstances that would lead to a conclusion that suspension was inappropriate. It was open to conclude that specific deterrence was of particular importance, and that the offences were serious in nature. Those factors could have outweighed the factors favourable to the appellant that I have referred to earlier, at least as
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- regards the type of disposition. It is likely that the favourable factors influenced the magistrate in setting the length of the terms and in making some of those terms concurrent.
48 In those circumstances, error has not been established, and leave in respect of ground 2 must be refused.
Conclusion
49 For those reasons the orders of the court made on 10 September 2012 were that leave in respect of both grounds was refused, and the appeal was dismissed.
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