Jackman v Director of Public Prosecutions for Western Australia
[2023] WASC 63
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JACKMAN -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 63
CORAM: DERRICK J
HEARD: 27 FEBRUARY 2023
DELIVERED : 7 MARCH 2023
FILE NO/S: SJA 1005 of 2023
BETWEEN: KERIN MARK JACKMAN
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 46343/2021 - PE 46344/2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of criminal damage and stealing - Appellant sentenced to immediate imprisonment - Whether Chief Magistrate erred by failing to reduce sentences for guilty pleas - Resentencing of appellant
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Application for extension of time to appeal allowed
Application for leave to appeal allowed
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | W C Yoo & C P Brennan |
| Respondent | : | L G Knuckey & G N Beggs |
Solicitors:
| Appellant | : | Aboriginal Legal Services (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bradbury v The State of Western Australia [2020] WASCA 214
Busby v Burrow [2012] WASC 58
Carroll v The State of Western Australia [2012] WASCA 244
Collard v Peden [2017] WASC 32
Crocker v Vinicombe [2019] WASC 416
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Forrest v The State of Western Australia [2019] WASCA 172
Gobetti v The State of Western Australia [2017] WASCA 130
GSO v The State of Western Australia [2021] WASCA 58
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Harding v The State of Western Australia [2015] WASCA 27
Harper v Page [2004] WASCA 267
Hiemstra v The State of Western Australia [2021] WASCA 96
Inglis v Pinch [2016] WASC 30
Kelly v Manser [2020] WASC 138
Law v The Queen [2019] WASCA 81
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lepoidevin v The State of Western Australia [No 2] [2021] WASCA 19
LTT v The State of Western Australia [2022] WASCA 31
Lynden v The State of Western Australia [No 2] [2013] WASCA 186
Mason v The State of Western Australia [2018] WASCA 43
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Miller v The State of Western Australia [2022] WASCA 50
Miorada v The State of Western Australia [2022] WASCA 143
Neach v Hobbs [2021] WASC 135
NI v The State of Western Australia [2020] WASCA 78
Nolan v The State of Western Australia [2013] WASCA 235
NTH v The State of Western Australia [2020] WASCA 22
Plumley v The State of Western Australia [2018] WASCA 33
Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schulz v Coyne [2019] WASC 329
Smith v The State of Western Australia [2017] WASCA 73
Stack v Joye [2021] WASC 322
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
The State of Western Australia v Zhuang [2021] WASCA 56
Willenberg v Downey [2015] WASC 282
Winmar v Clark [2015] WASC 314
Winmar v The State of Western Australia [2018] WASCA 155
DERRICK J:
Introduction
On 21 November 2022 the appellant appeared in the Magistrates Court before Chief Magistrate Heath and was sentenced by his Honour to a total of 9 months immediate imprisonment for one offence of wilful and unlawful damage contrary to s 444(1)(b) of the Criminal Code (Code) (PE 46343/2022) and one offence of stealing contrary to s 378 of the Code (PE 46344/2022). His Honour imposed 9 months imprisonment for the wilful and unlawful damage offence and 6 months imprisonment for the stealing offence. His Honour ordered the sentences to be served concurrently which resulted in the total sentence of 9 months imprisonment. His Honour further ordered that the appellant was to be eligible for release on parole. The appellant will be eligible for release on parole on 5 April 2023. His sentence expiry date is 20 August 2023.
On 18 January 2023 the appellant filed an application for an extension of time within which to appeal and for leave to appeal against the sentence imposed by the Chief Magistrate for the offences on the following ground:[1]
The learned Chief Magistrate erred in law by failing to:
(a)reduce the sentences for MC PE 46343 - 46344/2022; and
(b)state the fact and extent of the discount for MC PE 46343 - 46344/2022,
as required by s 9AA of the Sentencing Act 1995 (WA).
[1] The applications were made under Division 2 of Part 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to sentence the appellant to 9 months immediate imprisonment for the offences is a decision against which the appellant may appeal on the ground that in making the decision the magistrate made an error of law: CAA, s 6(f), s 7(1) and s 8(1)(a).
On 24 January 2023 a registrar of this court made an urgent appeal order in respect of the appeal. The registrar further ordered that the applications for an extension of time within which to appeal and for leave to appeal be heard together with the appeal.
The applications for an extension of time within which to appeal and for leave to appeal were heard by me on 27 February 2023. During the hearing of the appeal the appellant's counsel made clear that it was not contended by the appellant that the Chief Magistrate erred in deciding that a term of immediate imprisonment was the only appropriate disposition for the offences and that the allegation of error was confined to the contention that his Honour erred by failing to reduce the sentences of imprisonment imposed to take account of the appellant's guilty pleas.
At the hearing of the appeal the respondent did not oppose the application for an extension of time within which to appeal and conceded that the ground of appeal had been made out.
Application for extension of time
The last day for the appellant to apply for leave to appeal against the sentence imposed on him for the offences was 19 December 2022.[2] The appellant filed his appeal notice on 18 January 2023, that is, approximately one month out of time.
[2] CAA, s 10(3).
The appellant has filed in support of his application for an extension of time within which to appeal an affidavit sworn by his counsel, Mr William Yoo, dated 18 January 2023.
Ultimately the question in determining the application for an extension of time is whether it is in the interests of justice to grant the required extension.[3] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[4]
[3] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14].
[4] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] - [25].
The delay in filing the appeal notice is not particularly lengthy and is adequately explained by Mr Yoo in his affidavit. The respondent has not been prejudiced by the delay and does not oppose the extension being granted. In these circumstances I grant the requested extension of time.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has reasonable prospects of success.[5] The ground will not have reasonable prospects of success if it does not have a rational and logical prospect of succeeding.[6] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[7]
[5] CAA, s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CAA, s 9(3).
Facts of the offences
The facts of the offences are as follows.[8]
[8] ts 2, 21 November 2022.
At approximately 2.20 pm on Sunday 23 October 2022 the appellant was in Yagan Square. The victim was also in Yagan Square and was on his mobility scooter. The appellant began talking to the victim asking him for money. The victim refused the appellant's requests for money. The victim interpreted the appellant's behaviour as being threatening.
The victim got off his mobility scooter. The appellant got onto the mobility scooter without the victim's consent and drove the scooter into several bollards. The collisions caused significant damage to the scooter rendering it unusable.
Patrolling police officers saw what had occurred and intervened. The incident was captured on police body worn cameras.
The hearing before the Chief Magistrate
As I have already indicated the appellant's sentencing hearing took place on 21 November 2022.
At the commencement of the hearing the appellant's counsel informed the Chief Magistrate that there were two charges and that the appellant would plead guilty.[9] Having been informed that the appellant would plead guilty the Chief Magistrate said to the appellant:[10]
Mr [appellant], you understand the two charges against you, and you're going to plead guilty?
[9] ts 2, 21 November 2022.
[10] ts 2, 21 November 2022.
The appellant responded 'Yes' to the Chief Magistrate's question.[11] The Chief Magistrate then told the appellant to take a seat and stated that he would hear the facts of the offences.[12]
[11] ts 2, 21 November 2022.
[12] ts 2, 21 November 2022. Although at the time of stating the facts of the offences the prosecutor did not articulate the basis on which the prosecution asserted that the appellant fraudulently took the mobility scooter within the meaning of s 371(1) of the Code and therefore stole the scooter, it can be inferred from the facts of the offences that the fraudulent taking was comprised of the appellant taking the scooter with the intention of dealing with it in such a manner that it could not be returned in the condition in which it was at the time of the taking: Code, s 371(2)(e).
After hearing the facts of the offences the Chief Magistrate heard the appellant's counsel's (not counsel on the appeal) brief plea in mitigation. During the plea in mitigation the appellant's counsel informed the Chief Magistrate of the following: [13]
1.The appellant was sorry for what he had done;
2.The appellant was extremely drunk at the time of committing the offences because he had been drinking with his family and did not remember committing the offences;
3.The appellant is a traditional man from Wiluna and speaks five languages plus English;
4.The appellant was in Perth because his 14-year-old child lives in Perth with his partner's mother;
5.The appellant has issues with excessive alcohol consumption;
6.He had spoken to the appellant about engaging with Wungening to obtain some assistance for his excessive alcohol consumption to hopefully avoid future encounters with the justice system;
7.The appellant was not working but was engaged with a job provider and was keen to work; and
8.The appellant lives with his nanna in Innaloo and was planning to stay in Perth for the time being.
[13] ts 2 - 3, 21 November 2022.
Having informed the Chief Magistrate of the above matters the appellant's counsel submitted that consideration should be given to sentencing the appellant to a community based order so that he could engage in counselling and 'perhaps also do some community work'.[14]
[14] ts 3, 21 November 2022.
The Chief Magistrate did not invite the prosecutor to make any submissions as to sentence and the prosecutor did not do so.
The Chief Magistrate, having heard the appellant's counsel's plea in mitigation, proceeded to sentence the appellant. It is necessary to set out the Chief Magistrate's relatively brief sentencing remarks in full. They were as follows:[15]
… Mr [appellant], it is unfortunate that I'm told you're a man from Wiluna, and I notice you've never been in trouble before the court in Wiluna. It's every other court. And, of recent times, from 2019, the offending appears to have been before the Perth courts. You have a continual steam of offending from 2019 through till today. This year alone we've had…30 appearances, mainly associated with you being drunk.
In the past, you've had the benefit of community-based orders, suspended terms of imprisonment and immediate terms of imprisonment, none of which appear to have made any difference to your continual offending. On this occasion you've taken the mobility scooter of a person with a disability, and you have destroyed that mobility scooter. I'm told you have no recollection of that event and that you were intoxicated at the time, but the result has been that you have taken away a means of mobility for a person in need of it.
Given your long record of continual offending, I think that the only appropriate punishment for your behaviour - and I accept that it does nothing to reform your behaviour - is to imprison you, and it must be a term of immediate imprisonment, given that suspended terms of imprisonment seem to have had no impact at all upon your behaviour. Accordingly, in relation to the criminal damage, you will be sentenced to nine months imprisonment. That will be the head sentence. And the stealing offence will be a term of six months concurrent. A total of nine months imprisonment, and I will make you eligible for parole…
[15] ts 3, 21 November 2022.
The approach to the determination of the appeal
By the ground of appeal the appellant alleges that the Chief Magistrate made an error of law.
Different views have been expressed by judges of this court in relation to whether the court's jurisdiction to allow an appeal against sentence under s 14(1)(b) of the CAA is enlivened once any error of law is established, or whether the error must be material to the exercise of the sentencing discretion.[16] An error of law will not be material to the exercise of the sentencing discretion if it did not affect, or was incapable of affecting, the sentence imposed.[17]
[16] There is a useful discussion of the different views in Crocker v Vinicombe [2019] WASC 416 [42] - [60] (Fiannaca J). See also Stack v Joye [2021] WASC 322 [27] - [32] (Archer J) and Neach v Hobbs [2021] WASC 135 [17] - [22] (Archer J).
[17] Harding v The State of Western Australia [2015] WASCA 27 [73] - [75]. See also Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14] and Hiemstra v The State of Western Australia [2021] WASCA 96 [120].
The question whether the error of law must be material to enliven the court's jurisdiction to allow an appeal is not one that I need to express a concluded view on in order to deal with the appeal. I say this because if the appellant establishes that the Chief Magistrate did erroneously fail to reduce the sentences that he imposed for the offences to take account of the appellant's guilty pleas it will, as is conceded by the respondent, necessarily follow that his Honour made a material error of law (that is, made an error that affected the individual sentences that he imposed and that was at least capable of affecting the total sentence imposed).
If it is established that the Chief Magistrate made the alleged material error of law the sentencing discretion will fall to be exercised by me afresh.[18] If, on exercising the sentencing discretion afresh, I conclude that the same total sentence of imprisonment as that imposed by the Chief Magistrate should be imposed then I will necessarily conclude that no substantial miscarriage of justice has occurred by reason of his Honour's error and I will dismiss the appeal.[19] If, on the other hand, on exercising the sentencing discretion afresh I conclude that a lesser total sentence of imprisonment than that imposed by the Chief Magistrate should be imposed I will not be able to conclude that no substantial miscarriage of justice has occurred by reason of his Honour's error.[20] In those circumstances I will allow the appeal and resentence the appellant.[21]
[18] Crocker v Vinicombe [58] - [59]; NTH v The State of Western Australia [2020] WASCA 22 [163] - [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65]; Hiemstra v The State of Western [120].
[19] Crocker v Vinicombe [58] - [59].
[20] Crocker v Vinicombe [58] - [59].
[21] Crocker v Vinicombe [58] - [59].
Failure to read charges to appellant and to require the appellant to expressly plead to the charges
There is one issue I need to address before turning to deal with the ground of appeal. It is not an issue that is raised by the ground of appeal. However, it is an issue that I alerted the parties to prior to the hearing of the appeal and in relation to which I requested the parties to file written submissions prior to the hearing of the appeal. The parties filed written submissions in relation to the issue in accordance with my request.
As is apparent from my above recital of what occurred at the sentencing hearing, the Chief Magistrate did not read the two charges to the appellant and did not require the appellant to expressly plead to the charges. Rather, the Chief Magistrate, after being told by the appellant's counsel that the appellant 'will plead guilty' to the two charges, adopted the approach of saying to the appellant, 'Mr [appellant] you understand the two charges against you, and you're going to plead guilty?'[22] To this statement the appellant replied, 'Yes'.[23]
[22] ts 2, 21 November 2022.
[23] ts 2, 21 November 2022.
It is apparent from the face of the prosecution notices that after receiving the appellant's confirmation that he was going to plead guilty to the charges the Chief Magistrate, acting pursuant to s 68 and s 147(1) of the Criminal Procedure Act 2004 (WA) (CPA), recorded on the notices the pleas of guilty and that he had entered judgments of conviction.[24]
[24] Prosecution Notice PE 46343/2022; Prosecution Notice PE 46344/2022.
The question which the procedure adopted by the Chief Magistrate gives rise to is whether the appellant did actually plead guilty to the charges in accordance with the relevant provision of the CPA.
The procedure for the taking of a plea in the Magistrates Court when the charge is being dealt with summarily is set out in s 59(2) and s 59(3) of the CPA. Section 59(2) and s 59(3) provide as follows:
(2)Before requiring the accused to plead to the charge, the court must -
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b)be satisfied the accused understands the charge and the purpose of the proceedings; and
(c)if section 35 requires the prosecutor to serve the accused with any material and the prosecutor has not done so, proceed in accordance with section 35(10).
(3)After complying with subsection (2), the court must require the accused to plead to the charge.
The appellant expressly disavows any suggestion that the Chief Magistrate did not satisfy himself of the matters specified in s 59(2)(a) and s 59(2)(b),[25] expressly disavows any suggestion that he was not required to plead to the charges in accordance with s 59(3) of the CPA, expressly disavows any suggestion that he did not plead guilty to the charges and therefore also expressly disavows any suggestion that the judgments of conviction on the charges were not properly entered against him. The appellant submits that it can be inferred that the Chief Magistrate did satisfy himself of the matters specified in s 59(2)(a) and s 59(2)(b). The appellant submits that he was required to plead to the charges and that there is no basis for concluding that he did not understand the charges or that he did not intentionally and voluntarily plead guilty to the charges. The appellant submits that even if contrary to his stated position the procedural requirements of s 59(2) and/or s 59(3) were not complied with this did not occasion a substantial miscarriage of justice.[26] It is against this background that the appellant has expressly declined to seek leave to appeal against his conviction for the offences on the ground that he did not, by reason of the procedure adopted by the Chief Magistrate, properly enter guilty pleas to the offences.
[25] There is no suggestion that the prosecution had not complied with its disclosure obligations under s 35. Consequently, the Chief Magistrate was not required by s 59(2)(c) to proceed under s 35(10) of the CPA.
[26] CAA, s 14(2).
The respondent adopts a similar position to that of the appellant. The respondent points out that the appellant does not assert that he did not understand the charges, or that he did not intend to plead guilty to the charges, or that he did not in fact plead guilty to the charges, or that his pleas were vitiated by a misunderstanding on his behalf or by an error of the Chief Magistrate. The respondent submits that it is significant in this context that the appellant was legally represented at the sentencing hearing. The respondent submits that in these circumstances although the taking of the appellant's pleas was done in a shorthand way, the appellant did in fact plead guilty to the charges. The respondent further submits that even if contrary to his primary position I find that the Chief Magistrate did fail to comply with the requirements of s 59(2) and/or s 59(3), the failure was purely procedural in nature and did not give rise to a substantial miscarriage of justice.
It is the position that the Chief Magistrate did not expressly refer to the requirements of s 59(2)(a) and s 59(2)(b) of the CPA before asking the appellant to confirm that he was going to plead guilty. However, this was not something that his Honour was required to do. Further and in any event, it does not necessarily follow from his Honour's failure to refer expressly to the requirements of the section that his Honour was not satisfied of the matters specified in the section before asking the appellant to confirm that he was going to plead guilty. To the contrary, in the particular circumstances of the appellant's case it can be reasonably inferred that his Honour was satisfied of the matters specified in s 59(2)(a) and s 59(2)(b) before asking the appellant to confirm that he was going to plead guilty. The circumstances are as follows. First, the charges were not complicated. Second, at the appellant's first appearance in relation to the charges they were adjourned to 21 November 2022 to enable the appellant to seek legal advice.[27] Third, the appellant was legally represented at the hearing before his Honour. Fourth, his Honour, as part of his question asking the appellant to confirm that he was going to plead guilty, also asked the appellant if he understood the charge (which indicates that he had turned his mind to, and was satisfying himself, of the matters specified in s 59(2)(a) and s 59(2)(b)).
[27] See the 'Record of court proceedings' attached to each of the prosecution notices.
It is also of course relevant that the appellant does not contend as part of his appeal that I should find that the Chief Magistrate did not satisfy himself of the matters specified in s 59(2)(a) and s 59(2)(b).
For the reasons I have stated, I would not conclude that the Chief Magistrate failed to comply with s 59(2)(a) or s 59(2)(b) and consequently would also not conclude that any pleas of guilty entered by the appellant were not properly entered, or were in some way invalidated, by reason of a failure by his Honour to comply with the requirements of s 59(2).
I turn to the questions whether the appellant was 'required to plead' to the charges pursuant to s 59(3) and whether he did in fact plead to the charges.
The Chief Magistrate did not read out the terms of the charges to the appellant. It would, in my view, making full allowance for the fact that the Chief Magistrate was undoubtedly presiding over a busy list, have been prudent and preferable for his Honour to have read in full to the appellant the terms of the charges before asking him if he was going to plead guilty to the charges. However, this was not something that his Honour was required by s 59(2) or s 59(3) to do.[28]
[28] Gosper v Vinicombe [2020] WASC 278 [62]. The absence of such a requirement is explicable when regard is had to the requirement contained in s 59(2)(a).
This is obviously not a case in which it can be sensibly suggested that the appellant, by reason of the charges not having been read to him, might not have understood the charges. The appellant was represented and had clearly been provided with legal advice in relation to the charges before the commencement of the sentencing hearing. In any event, and as I have already stated, the appellant does not assert that he did not understand the charges.
Given the absence of any statutory obligation on the Chief Magistrate to read the charges to the appellant and the circumstances referred to in the preceding paragraph, I do not consider that his Honour's failure to read the charges to the appellant provides a basis for concluding that the appellant did not plead to the charges. Rather, the real question, it seems to me, is whether the failure by the Chief Magistrate to ask the appellant to plead to the charges and consequently to require the appellant to expressly plead to the charges necessitates the conclusion that the appellant was not required to plead to the charges and did not actually enter guilty pleas to the charges.
In my opinion, consistently with the position adopted by the parties, this is a situation in which the substance of what occurred at the sentencing hearing should prevail over the form of what occurred. The Chief Magistrate had been told by the appellant's counsel that the appellant would be pleading guilty to the two charges. In these circumstances it is my opinion that the Chief Magistrate, by asking the appellant, '…you understand the two charges against you and you're going to plead guilty?' did require the appellant to plead to the charges pursuant to s 59(3). It is also my opinion that the appellant, by responding 'Yes' to the Chief Magistrate's question, did plead guilty to the charges in the sense that he did intentionally admit his guilt for the charged offences.[29] Of course, the appellant does not suggest otherwise.
[29] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [19].
I note that the situation in the present case is very different to that which existed in Carroll v The State of Western Australia.[30] In that case the appellant, who was convicted of and sentenced for an offence with which he was charged on indictment, was not only not asked to plead to the charge but was also not even asked if he was intending to plead guilty to the charge.
[30] Carroll v The State of Western Australia [2012] WASCA 244.
In light of my conclusion that the appellant was required to plead to the charges and did plead to the charges in accordance with s 59(3), it is not necessary for me to deal with the submission made by both parties to the effect that if the Magistrate did fail to comply with s 59(3) the failure was procedural and did not occasion a substantial miscarriage of justice.
I note to avoid any doubt on the issue, that nothing I have said in relation to the Chief Magistrate's failure to read the charges to the appellant and his Honour's failure to require the appellant to expressly plead to the charges by saying 'guilty' should be taken as indicating that a failure to adopt such a course can never result in a miscarriage of justice justifying the setting aside of a plea of guilty. For example, there may be cases in which such a failure will, either by itself or in combination with other circumstances, justify the conclusion that the accused did not understand the charge to which they were asked to plead and therefore did not intend to admit guilt with the result that to allow the plea to stand would constitute a miscarriage of justice.[31] However, for the reasons I have given this is not, in my view, such a case. Nonetheless, I wish to make clear that in my view the practice of not reading in full the terms of the charge to an accused before asking the accused to plead, and the practice of not actually expressly asking an accused to plead to a charge is not one that should be adopted.[32] This is not the first time I have expressed the view that the practice of not reading in full the terms of a charge to an accused is not one that should be adopted.[33]
[31] Lawson v The State of Western Australia [No 2] [17] ‑ [19].
[32] See in this regard the comments made by EM Heenan J in Busby v Burrow [2012] WASC 58 [71] ‑ [72] as to the importance of observing the formalities of reading a charge to an accused.
[33] Gosper v Vinicombe [68].
Ground of appeal - analysis
Relevant statutory provisions and applicable legal principles
Section 8(4) of the Sentencing Act 1995 (WA) provides that if a court reduces the sentence it would otherwise have imposed because of a mitigating factor, the court must state this fact in open court. A guilty plea is a mitigating factor.[34] However, a failure to comply with s 8(4) is not necessarily an appealable error. Non-compliance with s 8(4) does not of itself invalidate the sentence imposed.[35]
[34] Sentencing Act, s 8(1).
[35] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59]; Nolan v The State of Western Australia [2013] WASCA 235 [44].
If a person pleads guilty to an offence, s 9AA(2) of the Sentencing Act permits the sentencing judicial officer to reduce the 'head sentence' (as defined in s 9AA(1)) imposed for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
Section 9AA(3) of the Sentencing Act provides that the earlier in the proceedings that the plea is made, the greater the reduction in the sentence may be.
Section 9AA(4) of the Sentencing Act deals with the extent of the reduction that can be given pursuant to s 9AA(2). In essence, s 9AA(4) provides that if the offender pleads guilty, or indicates that they will be pleading guilty, at the first reasonable opportunity the sentencing judicial officer is permitted to reduce the head sentence for an offence that includes a 'fixed term' (as defined in s 9AA(1)) by a maximum of 25%, and that if the offender does not plead guilty, or indicate that they will be pleading guilty, at the first reasonable opportunity, the sentencing judicial officer is permitted to reduce the head sentence for an offence that includes a fixed term by something less than 25%.
A sentencing judicial officer is not bound to allow a discount of 25% whenever an offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judicial officer has a discretion in deciding upon the discount to be given in each case. The existence of the discretion recognises that the nature, character and extent of the benefits referred to in s 9AA(2) may vary in different cases where the offender has pleaded guilty at the first reasonable opportunity.[36]
[36] NI v The State of Western Australia [2020] WASCA 78 [65].
The strength of the prosecution case can be taken into account in assessing the extent of the discount to be given under s 9AA(2). This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction and therefore the value of the benefit to the State of the guilty plea.[37] However, in evaluating the appropriate discount to be given under s 9AA(2) it is important to bear in mind the underlying purpose of the provision.[38] Thus as was stated by Mazza JA and Hall J in Gobetti v The State of Western Australia:[39]
It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.
[37] NI v The State of Western Australia [66].
[38] Winmar v The State of Western Australia [2018] WASCA 155 [31]; NI v The State of Western Australia [67].
[39] Gobetti v The State of Western Australia [2017] WASCA 130 [79] cited with approval in NI v The State of Western Australia [67].
Section 9AA(5) of the Sentencing Act provides that if the sentencing judicial officer reduces the head sentence for an offence under s 9AA(2), they are required to state in open court both that the sentence has been reduced under s 9AA(2) and the extent of the reduction. The failure to state the extent of the reduction as required by s 9AA(5) will constitute an error of law, albeit not necessarily a material error resulting in a substantial miscarriage of justice and the appeal against the sentence imposed being allowed.[40]
[40] CAA, s 14(2); Inglis v Pinch [2016] WASC 30 [57] - [59]; Schulz v Coyne [2019] WASC 329 [30].
Ordinarily the failure by a sentencing judicial officer to refer to the effect of a plea of guilty is an indication that the sentencing judicial officer has overlooked the plea of guilty and has failed to take the plea of guilty into account in determining the sentence to be imposed on the offender.[41] Thus, in Roberts v The State of Western Australia[42] the Court said the following (footnoted citations omitted):
The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges. However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact. In relation to that question, as Steytler P observed in H v The State of Western Australia [[2006] WASCA 53; (2006) 163 A Crim R 151 [10]]:
[T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.
The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.
[41] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10]; Winmar v Clark [2015] WASC 314 [26].
[42] Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154 [48] - [49].
In a similar vein, in Schulz v Coyne[43] Hill J said the following (citations omitted):
… The failure to state that a sentence has been reduced, and to quantify the reduction, does not necessarily mean that a reduction has not been made and the sentencing discretion is miscarried. However, to avoid the conclusion that a material error has occurred, it is expected that the sentencing court should make reference to the mitigating effect of the guilty plea, and it should be apparent from the sentence that a reduction has been made. A failure to refer to the plea of guilty is ordinarily an indication that the sentencing judicial officer has overlooked it. The failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.
[43] Schulz v Coyne [30].
Having said the above, it is well recognised that in determining an allegation that a magistrate has failed to take a relevant sentencing consideration into account it is important, having regard to the circumstances in which magistrate's sentencing remarks are delivered (most often on an ex tempore basis as in this case) and the very busy workload of the Magistrates Court, to ensure that the sentencing remarks are read as a whole, in context and not with an eye finely tuned for error.[44]
The parties' submissions - summary
[44] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].
The appellant submits that his guilty pleas were the principal mitigating factor in his sentencing. The appellant submits that he pleaded guilty to the offences at an early stage in the prosecution proceedings and was entitled to a 25% reduction, or something close thereto, from the sentences of imprisonment that would in the absence of the guilty pleas have been imposed. The appellant submits, in substance, that the only inference that can reasonably be drawn from the Chief Magistrate's failure to make any reference in his sentencing remarks to his guilty pleas and to any reduction in sentence that he had given to him to take account of his guilty pleas is that his Honour failed to take the guilty pleas into account in determining the individual sentences and total sentence imposed for the offences.[45] The appellant submits that having regard to the circumstances of the offences, the lengths of the individual and total sentences imposed by the Chief Magistrate for the offences do not compel the conclusion that his Honour must have taken the guilty pleas into account despite the fact that his Honour did not make any reference to doing so. The appellant submits that the Chief Magistrate's failure to take account of his guilty pleas in determining the individual sentences and total sentence to be imposed for the offences amounted to a material error of law and consequently gave rise to a substantial miscarriage of justice.
[45] Although the power given to a sentencing judicial officer by s 9AA(2) is to reduce the head sentence 'for the offence', it is well established that the mitigating effect of guilty pleas to multiple offences must be reflected not only in individual sentences but also in the total sentence imposed; LTT v The State of Western Australia [2022] WASCA 31 [56]. The reflection of the mitigating effect of guilty pleas in the total sentence imposed for multiple offences should necessarily follow from the proper application of the totality principle (referred to further below) to the individual sentences that have been arrived at after allowing for the mitigating effect of the guilty pleas.
The respondent accepts that the Chief Magistrate did not make any specific reference in his sentencing remarks to s 9AA or any resulting reduction. The respondent concedes that it is not possible to infer from the lengths of the terms imposed that the sentences were reduced to take account of the pleas of guilty. The respondent concedes that in these circumstances it is not possible to discern whether the Chief Magistrate did reduce the sentences imposed for the offences or, if he did, the extent of the reduction. Accordingly, the respondent concedes that the magistrate made the alleged material error of law.
Did the magistrate fail to take the guilty pleas into account?
I acknowledge that the appellant entered his guilty pleas at the hearing before the Chief Magistrate and that the hearing was short in duration. Nonetheless, I am satisfied that the Chief Magistrate did not, in determining the individual sentences of imprisonment to be imposed for the offences, take account of the appellant's guilty pleas by reducing pursuant to s 9AA(2) the head sentences (that is, by reducing the individual sentences that he would have imposed if the appellant had not pleaded guilty and there were no other mitigating factors). To put the matter another way, I am satisfied that the Chief Magistrate overlooked the appellant's guilty pleas in determining the sentences imposed on the appellant for the offences. I have come to this conclusion having regard to the combined force of the following matters.
First, the appellant's counsel did not in his plea in mitigation make any reference to the fact that the appellant had pleaded guilty to the offences. Thus the mitigating effect of the guilty pleas was not drawn to the Chief Magistrate's attention.
Second, the Chief Magistrate did not state that he had reduced the sentences that he would otherwise have imposed to take account of the appellant's guilty pleas.
Third, despite the appellant's guilty pleas being an obviously mitigating factor, the Chief Magistrate did not make any reference, oblique or otherwise, to the appellant's guilty pleas in his brief sentencing remarks.
Fourth, and for reasons that are apparent from what I say later in these reasons in relation to the resentencing of the appellant, the individual sentences and total sentence imposed by the Chief Magistrate are not sufficiently low to justify the drawing of the inference that his Honour did, in arriving at the individual sentences for the offences, give to the appellant a reduction pursuant to s 9AA(2). That is, it is not readily apparent from the length of the individual sentences and total sentence imposed that a reduction was given to take account of the guilty pleas.
Material error established
The appellant first appeared in the Magistrates Court in relation to the offences on 24 October 2022. On that date the charges were adjourned to enable the appellant to seek legal advice and the appellant was remanded on bail to appear again on 21 November 2022.[46]
[46] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.
The appellant's second appearance in relation to the offences was on 25 October 2022. The hearing took place to enable a bail variation application to be dealt with.[47]
[47] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.
The appellant's third and final appearance in relation to the offences, at which he pleaded guilty to the offences, was before the Chief Magistrate.[48]
[48] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.
Given the number and nature of the appellant's appearances prior to pleading guilty to the offences, I am satisfied that the appellant's guilty pleas were entered at the first reasonable opportunity. I note that the respondent concedes this to be the case.
Given that the appellant entered his guilty pleas at the first reasonable opportunity, there is no reasonable basis upon which the appellant could have been denied a reduction of 25%, or something close thereto, pursuant to s 9AA(2) from the individual sentences imposed for the offences. If the appellant had been given a reduction from the individual sentences imposed for the offences, the proper application of the totality principle would have resulted in the Chief Magistrate imposing a lesser total sentence. It follows that the Chief Magistrate's failure to reduce the individual sentences imposed for the offences to take account of the appellant's guilty pleas amounted to a material error of law, that is, an error that affected the individual sentences imposed and consequently the total sentence imposed.
The ground of appeal has been made out.
The resentencing of the appellant
Express error having been established the sentencing discretion falls to be exercised afresh.[49]
[49] NTH v The State of Western Australia [163] - [164]; The State of Western Australia v Jacoby [65].
I have before me the material necessary to enable me to resentence the appellant.[50]
Sentencing principles to be applied
[50] CAA, s 14(1)(d).
In resentencing the appellant I must apply the principles embodied in the Sentencing Act and the totality principle. These principles, so far as is relevant in the present context, may be stated in brief terms as follows. [51]
[51] Hiemstra v The State of Western Australia [120].
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[52] In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstance of the commission of the offence, any aggravating factors and any mitigating factors.[53] Aggravating factors are factors that in the court's opinion increase the offender's culpability or moral blameworthiness.[54] Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished.[55]
[52] Sentencing Act s 6(1).
[53] Sentencing Act, s 6 (2).
[54] Sentencing Act, s 7(1).
[55] Sentencing Act, s 8(1).
In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment.[56]
[56] Sentencing Act, s 6(4).
If the court reaches the conclusion that a sentence of imprisonment of not more than five years is the only appropriate disposition, the court must then consider whether the sentence of imprisonment should be suspended or whether a sentence of imprisonment to be immediately served is required.[57] The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment. In order to decide if the term of imprisonment imposed can be suspended the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.
[57] Sentencing Act, s 39(3), s 76(1), s 76(2), s 81(1), s 81(2); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] - [79]; Mason v The State of Western Australia [2018] WASCA 43 [48] - [54].
The totality principle comprises two limbs. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[58] The second limb of the totality principle is that the court should not impose a crushing sentence. The word crushing in this context denotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.[59]
Additional evidence
[58] Roffey v The State of Western Australia [2007] WASCA 246 [25]; GSO v The State of Western Australia [2021] WASCA 58 [44(3)].
[59] Roffey v The State of Western Australia [25]
During the hearing of the appeal the appellant applied pursuant to s 40(1)(e) of the CAA to admit into evidence on the appeal three affidavits sworn by his counsel, Mr Yoo, dated 7 February 2023, 21 February 2023 and 22 February 2023. The appellant made the application in light of s 14(5) of the CAA and on the basis that the contents of Mr Yoo's affidavits would be relevant to any resentencing of him in the event that I found that the Chief Magistrate made the alleged material error of law. The application was not opposed by the respondent.
Section s 14(5) of the CAA provides, in effect, that I am, in resentencing the appellant, entitled to have regard to any relevant matter that has occurred between when the appellant was convicted and the hearing of the appeal.[60]
[60] CAA, s 14(5).
In his affidavit dated 7 February 2023 Mr Yoo deposes to instructions given to him by the appellant in relation to his personal circumstances since the sentencing hearing before the Chief Magistrate.
In his affidavit dated 21 February 2023 Mr Yoo deposes to having received from the appellant on 20 February 2023 a copy of a letter sent by Kanyirninpa Jukurrpa (KJ Rangers) to the appellant dated 20 February 2023. The letter is annexed to the affidavit.
In his affidavit dated 22 February 2023 Mr Yoo deposes that on 21 February 2023 he received a transcript of educational courses undertaken by the appellant. The transcript is annexed to the affidavit.
At the hearing of the appeal I formed the view that the contents of Mr Yoo's affidavits would be relevant to any resentencing of the appellant in the event that I found the alleged material error established. I therefore allowed the application to admit the affidavits as evidence on the appeal.
Relevant sentencing consideration
Maximum penalty
The maximum sentence that could be imposed by the magistrate for the wilful and unlawful damage offence, being the maximum summary conviction penalty, is imprisonment for 3 years and a fine of $36,000.[61] However, the maximum summary conviction penalty is only a jurisdictional limit. It is not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of assessing the seriousness of the offence on the resentencing of the appellant, is 10 years imprisonment.[62]
[61] Code, s 444(1). Both charges alleged that the value of the mobility scooter was $5,000.
[62] Code, s 444(1)(b).
The maximum sentence that could be imposed by the Chief Magistrate for the stealing offence, being the maximum summary conviction penalty, is 2 years imprisonment and a fine of $24,000.[63] However, again the maximum summary conviction penalty is only a jurisdictional limit. It is not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of assessing the seriousness of the offence on the resentencing of the appellant, is 7 years imprisonment.[64]
The seriousness of the offences
[63] Code, s 426(2).
[64] Code, s 378.
The offences were opportunistic, unsophisticated and committed over a short period of time. It can be accepted that they did not fall towards the higher end of the range of seriousness for offences of their type. Nonetheless, the offences were still serious. The victim, being a person with a disability, was vulnerable. The appellant had no rational reason for taking the mobility scooter and using it in the way that he did. The damage that the appellant caused to the scooter was so significant that it was no longer usable by the victim. As a result the victim suffered the distress and inconvenience of being deprived of a vital means of maintaining his independence and freedom of movement.
The fact that the appellant committed the offences while in a self-induced state of intoxication, although providing a probable explanation for his conduct in committing the offences, does not mitigate to any extent the seriousness of his criminal conduct.
Personal circumstances
The appellant is a Mantjiltjara Aboriginal who has been through traditional Aboriginal law and whose traditional country surrounds Wiluna.[65] He is the second of three children born to his parents.[66]
[65] Affidavit of Mr Yoo dated 7 February 2023, par 5(a) and 5(d).
[66] Affidavit of Mr Yoo dated 7 February 2023, par 5(b).
The appellant has a partner.[67] He has five children.[68]
[67] Affidavit of Mr Yoo dated 7 February 2023, par 5(e).
[68] Affidavit of Mr Yoo dated 7 February 2023, par 5(e).
The appellant speaks five languages (English and four Indigenous languages).[69] He has over the years undertaken a number of educational courses.[70]
Mitigating factors
[69] Affidavit of Mr Yoo dated 7 February 2023, par 5(c).
[70] Affidavit of Mr Yoo dated 22 February 2023.
There are a small number of mitigating factors present in the appellant's case. The mitigating factors are as follows:
1. The appellant pleaded guilty to the offences at the first reasonable opportunity;
2.The appellant is, as is evidenced by his guilty pleas, remorseful;[71]
3.The appellant has found the time that he has already spent in custody, 105 days, difficult and stressful because while he has been incarcerated family members have passed away and he has missed one funeral;[72] and
4.The appellant has made contact with KJ Rangers and has requested their support and assistance on his release from custody.[73]
[71] Bradbury v The State of Western Australia [2020] WASCA 214 [52] - [55]. The appellant's remorse was, as is apparent from my above summary of what occurred before the Chief Magistrate, referred to, albeit briefly, by the appellant's counsel during his plea in mitigation. The existence of the appellant's remorse was not put in issue by the prosecutor.
[72] Affidavit of Mr Yoo dated 7 February 2023, par 5(f).
[73] Affidavit of Mr Yoo dated 21 February 2023.
The appellant's pleas of guilty are clearly the most significant mitigating factor. The remaining mitigating factors are, in the circumstances of the appellant's case, of limited weight.
With respect to the last of the above identified mitigating factors, KJ Rangers has agreed to provide the appellant with support on his release.[74] KJ Rangers will facilitate the appellant engaging in their cultural programmes and activities. Further, KJ Rangers and Wangka Minyirrpa (the Martu Cultural Advisory Panel) will support the appellant's entry to the Yiwarra Kuju Programme (YK Programme). The appellant's participation in the YK Programme will require him to live with supporting families in the remote Parnngurr Community (Community) and to stay away from towns and cities such as Newman and Port Hedland. Wangka Minyirrpa have made contact with the directors of the Community seeking confirmation that the Community is willing and able to provide accommodation to the appellant. However, due to recent funerals and lore business the directors are yet to confirm the Community's ability to accommodate the appellant.
Criminal record, protection of the public, personal deterrence
[74] Affidavit of Mr Yoo dated 21 February 2023.
The appellant has a very poor juvenile and adult criminal record. His criminal record runs for 27 pages. Without attempting to be in any way exhaustive, the appellant has as an adult been convicted of numerous disorderly conduct type offences, stealing offences, burglary offences, damage offences, breach of bail offences and assault offences (including assaulting public officers). Indeed, in the period January 2022 - October 2022 the appellant was convicted of 28 offences the vast majority of which were comprised of disorderly behaviour and failing to comply with police orders. He was fined for all 28 offences.
The appellant has over the years been sentenced to fines, community orders, suspended imprisonment and immediate imprisonment. However, no sentence imposed on him has deterred him from offending. The appellant was last sentenced to a term of immediate imprisonment in August 2021 for two offences of assaulting a public officer and one offence of obstructing a public officer.
The appellant's criminal record does not aggravate or increase the seriousness of the offences for which I am to sentence him. The appellant is not to be punished again for his past offences. However, the nature and extent of the appellant's record is obviously such as to prevent the appellant from being afforded any leniency for good character.[75] The nature and extent of the appellant's record also reveals that it is, in determining the sentence to be imposed on him, necessary to place weight on the sentencing considerations of personal deterrence and protection of the public.
Standards of sentencing customarily observed - comparable cases
[75] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].
As to the standards of sentencing customarily observed, the appellant, acknowledges that there is no established tariff or established range of sentences for either the offence of wilful and unlawful damage or the offence of stealing due to the wide range of circumstances in which such offences can be committed. Nonetheless, the appellant refers in his submissions to a number of cases which he suggests provide some support for the proposition that I should, in sentencing him for the offences, impose lesser sentences to those imposed by the Chief Magistrate.
A number of the cases referred to by the appellant are decisions of single judges of this court on appeal from sentences imposed in the Magistrates Court.[76] These cases are of limited assistance because in the case of offences against the law of Western Australia the work comprised of having regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome is done by the Court of Appeal and its predecessor, the Court of Criminal Appeal. In other words, in this State comparable cases comprise relevant decisions of the Court of Appeal and its predecessor, the Court of Criminal Appeal.[77]
[76] In relation to the offence of wilful and unlawful damage, Kelly v Manser [2020] WASC 138 and Collard v Peden [2017] WASC 32. In relation to the offence of stealing, Smith v Richardson [2013] WASC 114.
[77] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56]; The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [55]; The State of Western Australia v Zhuang [2021] WASCA 56 [109] - [111]; Miorada v The State of Western Australia [2022] WASCA 143 [38].
The other cases referred to by the appellant are, in relation to the offence of wilful and unlawful damage, Miller v The State of Western Australia,[78] and in relation to the offence of stealing, Plumley v The State of Western Australia[79] and Smith v The State of Western Australia.[80]
[78] Miller v The State of Western Australia [2022] WASCA 50
[79] Plumley v The State of Western Australia [2018] WASCA 33.
[80] Smith v The State of Western Australia [2017] WASCA 73.
I have reviewed all the cases referred to by the appellant. In relation to the offence of wilful and unlawful damage I have also reviewed the decision in Lepoidevin v The State of Western Australia [No 2].[81] In relation to the offence of stealing I have also reviewed the decision in Lynden v The State of Western Australia [No 2].[82]
[81] Lepoidevin v The State of Western Australia [No 2] [2021] WASCA 19.
[82] Lynden v The State of Western Australia [No 2] [2013] WASCA 186.
It is unnecessary to analyse the facts of the cases to which I have referred in detail. They all turn very much on their own particular facts and circumstances and in a number of them considerations of totality came into play. Nonetheless, what can, I think, be drawn from a review of the cases is that the imposition of an immediate term of imprisonment for the offence of wilfully and unlawfully damaging a relatively valuable item of property (such as a mobility scooter) cannot be said to fall outside the range of sentences imposed for such offences, and that the imposition of a term of immediate imprisonment for the offence of stealing a relatively valuable item of property can also not be said to fall outside the range of sentences imposed for such offences.
The parties' submissions
As I have already indicated, the appellant does not dispute that the offences were of such seriousness as to warrant the imposition of immediate terms of imprisonment. However, the appellant submits that given the sentencing considerations to which I have referred sentences of lesser length should be imposed for each of the offences and that consequently a lesser total sentence should be imposed.
The respondent, as I have already indicated, concedes that the appellant's guilty pleas were entered at the first reasonable opportunity and that therefore they should attract a significant reduction under s 9AA of the Sentencing Act. However, the respondent submits that the prosecution case was a strong one and that this is something that needs to be taken into account in assessing the utility to the State of the guilty pleas and hence the extent of any reduction afforded to the appellant for his guilty pleas pursuant to s 9AA(2) and s 9AA(4). The respondent further submits that despite the appellant's early guilty pleas the seriousness of the appellant's offences warrants a term of immediate imprisonment. The respondent does not seek to positively argue that in exercising the sentencing discretion afresh it would be incorrect for me to conclude that lesser individual sentences of immediate imprisonment than those imposed by the Chief Magistrate should be imposed or that it would be incorrect for me to conclude that a lesser total sentence than that imposed by the Chief Magistrate should be imposed. The respondent accepts that any term of imprisonment imposed can be backdated to 21 November 2022 to take account of the time that the appellant has already spent in prison for the offences.
Appropriate sentences
Having regard to the maximum penalty for the offences, the seriousness of the offences, the appellant's personal circumstances, the mitigating factors that I have identified, the appellant's criminal record, the need to place weight on the sentencing considerations of personal deterrence and protection of the public, and the cases to which I have referred, I am satisfied that the only appropriate disposition for each of the offences is a term of imprisonment.
I turn to fixing appropriate sentences for each of the offences and to deal with the issue of totality.
In my view the appropriate sentences of imprisonment for the offences taking all the factors that I have mentioned into account, are as follows:
PE 46343/2022 - 7 months 2 weeks imprisonment;
PE 46344/2022 - 5 months imprisonment.
In arriving at these individual sentences I have, under s 9AA of the Sentencing Act, reduced by 22% the sentences that I would have imposed if the appellant had not pleaded guilty and there had been no other mitigating factors. I consider that although the pleas were entered at the first reasonable opportunity, a 22% reduction is appropriate taking into account the obvious strength of the prosecution case.
I turn now to deal with the issue of totality.
In my opinion a sentence of 7 months 2 weeks imprisonment results in a total sentence that appropriately reflects the appellant's overall criminality in committing the offences viewed in their entirety having regard to all the relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the limited guidance provided by the cases to which I have referred. In order to achieve this head sentence I will order that the sentences are to be served concurrently with each other. This gives a total sentence of 7 months 2 weeks imprisonment.
Finally, I come back to the question whether the terms of imprisonment that I have imposed should be suspended. Having revisited all the factors that I have taken into account in deciding that imprisonment is the only appropriate disposition, I am positively satisfied that the option of suspending imprisonment is not appropriate.
I will make an order that the appellant is eligible for release on parole.
I will order that the commencement date of the sentence is to be backdated to 21 November 2022 to take into account the time that the appellant has already spent in custody for the offences.
Orders
For the reasons that I have stated I make orders in the following terms:
1.The application for an extension of time within which to appeal is allowed;
2.The application for leave to appeal is allowed;
3.The appeal is allowed;
4.The sentences imposed by the Chief Magistrate on 21 November 2022 for the offences the subject of charges PE 46343/2022 and PE 46344/2022 are set aside;
5.The appellant is sentenced to 7 months 2 weeks immediate imprisonment for the offence the subject of charge PE 46343/2022 and to 5 months immediate imprisonment for the offence the subject of charge PE 46344/2022, the sentences to be served concurrently;
6.The appellant is eligible for release on parole; and
7.The commencement date of the sentences imposed is backdated to 21 November 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JP
Research Associate to the Honourable Justice Derrick
7 MARCH 2023
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