Johnson v Scott & Anor

[2004] WASCA 76

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   JOHNSON -v- SCOTT & ANOR [2004] WASCA 76

CORAM:   EM HEENAN J

HEARD:   23 JANUARY 2004

DELIVERED          :   23 JANUARY 2004

PUBLISHED           :  16 APRIL 2004

FILE NO/S:   SJA 1103 of 2003

BETWEEN:   NICOLE DESIREE JOHNSON

Appellant

AND

STEPHEN JOHN SCOTT
First Respondent

PETER HAROLD MASON
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS AT ARMADALE

Coram   :MAGISTRATE MALLEY SM

File Number             : AR 3403-13 of 2003 AR 3987-89 of 2003 AR 5218 of 2003

Catchwords:

Criminal law - Sentencing - Assault occasioning bodily harm - Fraud - Effective sentence of 20 months' imprisonment - Mother with infant child - Insufficient consideration given to suspended sentence - Appeal allowed - Suspended sentence imposed for reduced period

Legislation:

Sentencing Act 1995

Result:

Appeal allowed
Suspended sentence imposed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr S Rafferty

Second Respondent      :     Mr S Rafferty

Solicitors:

Appellant:     In person

First Respondent           :     State Director of Public Prosecutions

Second Respondent      :     State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321

Michael v The Queen [2004] WASCA 4

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665

R v White [2002] WASCA 112

1. EM HEENAN J:  This appeal was heard on 23 January 2004 and at the conclusion of the hearing I gave oral reasons for allowing the appeal, setting aside the sentences of imprisonment which had been imposed on the appellant and substituting suspended sentences of imprisonment.  At the time of giving those oral reasons I indicated that more detailed written reasons for that decision would be given later but because the appellant had surrendered to custody it was desirable that the appeal be formally disposed of on that date.  These are my detailed reasons for that decision.

2. This is an appeal, by leave granted by Wheeler J on 17 October 2003, from sentences imposed by his Worship Mr Malley SM in the Court of Petty Sessions at Armadale on 22 August 2003 following the convictions of the appellant, upon her pleas of guilty, on a charge of assault occasioning bodily harm (Criminal Code, s 370(1)) and on 10 charges of fraud and one charge of stealing (CriminalCode, s 409(1)(c) and s 378). The learned Magistrate had sentenced the appellant to 12 months' imprisonment in respect of the charge of assault occasioning bodily harm and he also imposed sentences of imprisonment of 8 months for each of the charges of fraud and stealing. The latter sentences were all ordered to be served concurrently but those concurrent sentences were to be served cumulatively upon the sentence of 12 months for assault occasioning bodily harm. This resulted in an effective head sentence of 1 year and 8 months' imprisonment.

3. Following these sentences the appellant was immediately imprisoned and served about two months before she was released on bail on 17 October 2003 upon terms granted by Wheeler J when the order giving leave to appeal was made.

4. The grounds of appeal are:

   (a)The decision of the learned Magistrate to impose a sentence of 20 months' imprisonment upon the appellant was manifestly excessive on the basis that he failed to give any or sufficient weight to the antecedents of the appellant and the pre‑sentence report, with particular reference to:

   -the lack of prior relevant record;

   -pertinent medical factors;

   - the early plea of guilty;

   -the genuine efforts made by the appellant to overcome her difficulties;

   (b)The learned Magistrate failed to give any or sufficient weight to the extenuating circumstances involved in the commission of the offence;

   (c)The learned Magistrate failed to adequately consider that a non‑custodial sentence should have been imposed.

Appellant's Background

1. In the materials before the learned Magistrate, including a pre‑sentence report obtained from the Department of Justice, it was established that the appellant had been born on 27 November 1978 and was, therefore, aged 24 years when she was before the Court.  She had completed schooling to the level of Year 10 but had left to begin a hairdressing apprenticeship.  She continued in that trade for three years but ceased working when she became pregnant with her first child.  She has been caring for her four children for the last five years.  There are also references from long standing family friends.  All this information revealed that the appellant had had a happy and stable childhood but that in her teenage years things had changed significantly with the separation of her parents followed by the death of a close friend.  She had become distressed with the deterioration in her parents' family life and drifted into a group of unsuitable friends and then into illicit drug use.  Her relationship with her mother deteriorated because of her mother's criticisms of her conduct and disapproval of her friends.

2. The drug use became more frequent and extended to alcohol, cannabis, amphetamines and heroin.  The appellant has apparently come to realise the effects of her lifestyle and the menace of her drug use and had commenced a course of therapy at Holyoake in mid‑2003 with what seems to be promising prospects.  At the time she was before the Court of Petty Sessions the appellant had four children, aged five years and four years from a previous relationship, and two years and 10 months from a current relationship with her de facto partner of the last three and half years.  Since being sentenced for these offences and being released on bail she has again become pregnant.  She was 14 weeks pregnant at the time of the hearing of this appeal.

3. At the age of 18 years, during her first pregnancy, the appellant was diagnosed with Type 1 insulin dependent diabetes.  The pre‑sentence report indicated that she had been on insulin four times a day but had gone off this and had not had recent medical review.  However, at the hearing of the appeal she informed the Court that she was regularly taking insulin and that part of the explanation for her conduct in the events leading up to the assault might well have been contributed to by her failure to take regular insulin and the effects of a resulting blood sugar imbalance.

4. The pre‑sentence report concluded with the observation that the appellant had been co‑operative during the interview process and understood the seriousness of her offences and the impact that they have upon her family.  It was said that she realised that she might receive a term of imprisonment and had made arrangements for her mother‑in‑law to care for her children should this occur.  With the support of the Department of Community Development she had started to address the issues of drug use and violence within the family unit and the continuation of such therapy and counselling to address drug and family issues was recommended, whether or not imprisonment was to be imposed.

Prior Criminal Record

1. The appellant has a record of convictions dating from February 1998 mostly for driving offences.  She had been convicted for driving without a licence or under suspension on five occasions between 1998 and 2003 for which fines and further periods of disqualification were imposed.  In March 2001 she was convicted of assaulting a police officer and resisting arrest for which community based orders were made.  According to the pre‑sentence report those offences arose out of a incident where police came to the home where she was living with her children and de facto husband on a matter involving her de facto.  It was not suggested in the Court of Petty Sessions nor on this appeal she had any significant history of committing violent offences, or should be regarded as potentially causing a threat of violence to the community.

Offences for which the Appellant was Convicted

1. The offences to which the appellant pleaded guilty, and was convicted, and for which she has been sentenced are:

   (a)that on 22 January 2003 at Gosnells she unlawfully assaulted Alan Ronald Sims and thereby did him bodily harm;

   (b)that between 2 March 2003 and 5 March 2003 at Como with intent to defraud by deceit, namely by purporting to be Elizabeth Kemp, did obtain a benefit, namely accommodation and food valued at $624.10 the property of Broadwater Hospitality Pty Ltd trading as Como Broadwater Resort;

   (c)that between 2 March 2003 and 5 March 2003 at Como she stole three doonas and one room key to the value of $493.30 the property of Broadwater Hospitality Pty Ltd trading as Broadwater Como Resort;

   (d)that between 11 February 2003 and 12 February 2003 at Mandurah with intent to defraud by deceit, namely purporting to be Christina Elizabeth Kemp, she did obtain a benefit, namely a furniture trailer registration 7RE 233 valued at $6,000 the property of Coates Operations Pty Ltd trading as Coates Wreckair Mandurah;

   (e)that on 14 February 2003 with intent to defraud by deceit, namely purporting to be Christine Elizabeth Kemp, she did obtain a benefit namely a vehicle rental the property of Hertz Australia Pty Ltd trading as Terry Truck Rentals;

   (f)that on 28 February 2003 at Midland with intent to defraud by deceit, namely purporting to be Dean Fonte, she did obtain a benefit, namely baby goods totally valued at (indecipherable) the property of Ryszard Leslaw Kijac and others trading as Baby Zone Midland;

   (g)that between 23 February 2003 and 26 February 2003 at Bunbury with intent to defraud by deceit, namely by purporting to be Christine Kemp, she did obtain a benefit, namely accommodation and food to the value of $2,089.10 the property of Wheelcliff Pty Ltd trading as Quality Hotel Lord Forest;

   (h)that on 25 February 2003 at Bunbury with intent to defraud by deceit, namely by purporting to be Christine Kemp, she did obtain a benefit, namely a hair treatment and hair products to the total value of $206.80 from the property of Deborah Elizabeth Smoker trading as Afreya Hair;

   (i)that on 25 February 2003 at Bunbury with intent to defraud by deceit, namely by purporting to be Christine Kemp, she did obtain a benefit, namely a floral arrangement valued at $471.95 the property of Susan Anne Graham trading as Fleurs of Bunbury.

2. The offence which was treated by the learned Magistrate as the most serious was the assault occasioning bodily harm which occurred on 2 January 2003.  This followed an argument between the appellant and the victim, who was a neighbour and who had a significant history of hostility towards the appellant.  An argument took place in a store in Gosnells, continued on the pavement outside and led the appellant to go to her car, parked nearby, and drive it back down the street and deliberately knock down the complainant.  This offence was committed by her alone.

3. The other offences of fraud and stealing involved the appellant acting in combination with another offender, her de facto husband.  These were put to the court on the basis that the couple had gone to various hotels or resorts, availed themselves of accommodation and other facilities and obtained services from other providers essentially to accommodate themselves and the children during periods when they were in acute financial difficulties and could not manage.  Both the appellant and her co‑offender were in receipt of welfare benefits but had significant expenses including rental and liabilities for various debts.  They were not managing and had failed to take advantage of various opportunities for community assistance which they might have successfully obtained.

4. The victim of the assault had known the appellant for quite some time.  He lived nearby, indeed opposite her home, and had often visited her and her de facto husband and family.  He had actually lent them money during one of their periods of financial difficulty.  There had been a small party at the appellant's home on New Year's Eve 2002 and the complainant was present.  After a period of some drinking an argument developed and he was asked to leave.  The disagreement continued and the appellant alleges that the complainant pulled out a .22 calibre pistol and fired a shot and made serious threats.  He was subsequently arrested and charged with a series of offences which had not been determined at the time the appellant was sentenced.  On the following day, 1 January 2003, the complainant went to the appellant's house and, standing outside, began yelling threats and making offensive references to the appellant and about her children.  The next day the appellant went to the local shops in Gosnells to get some provisions and, by accident, met the complainant while inside a store at the shopping centre.  Shouting ensued, an argument developed and the two were ushered out of the store by the staff.  There had been a physical altercation between the appellant and the complainant inside the store and a shopkeeper had to separate them.  On the footpath outside the argument continued and the yelling and commotion increased in intensity.  The submission for the appellant was that the complainant had acted in a way which was threatening to the appellant. 

5. In this agitated condition the appellant returned to her car which was parked nearby and accelerated her vehicle towards the complainant who was crossing George Street, Gosnells.  She was driving at about 20 kilometres per hour and she followed him as he attempted to run, to evade her, onto the incorrect side of the carriageway.  Her car struck the complainant at the right hand front corner causing damage and the complainant was thrown over the bonnet of the vehicle onto the concrete crossover of the carriageway.  The appellant continued driving before crossing back to the correct side of the road and stopping about 150 metres away.  She walked back to the scene to await the arrival of the police.  She accompanied them to the Armadale Police Station and participated in a 40 minute video record of interview and made full admissions in relation to the matter.

6. The victim of this assault was taken to Royal Perth Hospital and was a patient for several days with injuries to his arms, legs, chest and head.  He now has a permanent disability arising from the rupture of the medial ligament and a torn cruciate ligament in the right knee.

Court of Petty Sessions

1. The appellant pleaded guilty at the first opportunity and came up for sentencing on 22 August 2003.  After hearing extensive submissions from the prosecutor and counsel for the appellant the learned Magistrate imposed the sentences which are now under appeal.  In doing so his Worship said:

   "If this was simply the matter of the frauds, then the court in my view would have greater scope.  Whilst they are of extremely serious nature, and involve a substantial amount of money which frankly the chances of recovery by the parties involved would probably be limited, but one could perhaps have, given all your circumstances, some degree of flexibility.  In relation to, however, the assault [causing] bodily harm, even allowing for no doubt the complainant's own involvement, effectively what you've done is used a weapon to inflict harm.  If you had fired a gun, albeit not intending necessary to kill or otherwise, or you got out and stabbed him with a knife, you would be no less than simply getting in a car and using it as a weapon."

   And then a little later, his Worship said:

   "I just, in relation to that aspect alone, that assault alone, may … that is of such a serious nature that the Court has no options, no option whatsoever in my view, other than to impose a custodial term.  There has to be a deterrent to you and to others that if you take the law into your hands in the most serious matter as you have here you do so at the risk of your liberty … As I said, if it was simply the fraud matters, then whilst I would have some concerns, I think I could have imposed a penalty that reflected the seriousness without a custodial term, but in my view, the assault matter stands out on its own, and I have no options.  And its serious nature means that an immediate term, and not a suspended term is necessary."

   His Worship then went on to note the early plea of guilty and indicated that this was a factor in reducing the sentence which he might otherwise have imposed.

Disposition of Appeal

1. I have no doubt that the offence of assault occasioning bodily harm of which the appellant was convicted was, in the circumstances of this case, an offence which justified an imposition of a term of imprisonment.  As the learned Magistrate has said, had the various fraud charges been dealt with in the absence of that assault, it is quite possible that they might have been dealt with without a custodial term.  His Worship plainly has thought that this assault put the matter in a different category and left him with no option but to impose a term of imprisonment to be served immediately and that, consequently, terms of imprisonment for the fraud offences were also appropriate.

2. The term imposed was 12 months' imprisonment for the assault occasioning bodily harm and then 8 months on each of the fraud offences to be served concurrently but cumulatively with the 12 months to be served for the assault occasioning bodily harm, meaning a head sentence of 20 months.  As already noted, the appellant was imprisoned and has served approximately two months of that sentence before being released on bail pending this appeal.

3. The appellant is a relatively young woman with four young children and although the offence of assault causing bodily harm is undoubtedly serious, and denotes some degree of intention and planning it is more likely to be a result of extreme anger and impetuosity resulting from her experiences over the previous two days.  That does not in any way justify or excuse what has occurred but it does suggest that the conduct is exceptional.  There is nothing in the appellant's previous history to suggest otherwise.

4. I agree that it was within the scope of the discretion of the learned Magistrate to impose a term of imprisonment in this case. This is so even on the basis that under s 6(4) of the Sentencing Act a sentence of imprisonment should not be imposed unless the court is satisfied that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. However, that still leaves open the question of whether, having regard to the particular circumstances of the case and the circumstances of the offender, that term of imprisonment should be suspended under Pt 11 of the Sentencing Act.

5. Section 76 of the Sentencing Act provides that where a court sentences an offender to a term of imprisonment of a particular duration, including the term imposed here, the court may order that the whole of the term or terms be suspended.  Consequently, a decision to imprison an offender is not the completion of the role of a sentencing officer.  That meaningful attention should be given to the option of suspending a sentence of imprisonment was emphasised by the High Court in the case of Dinsdale v The Queen (2000) 202 CLR 321 especially in the judgments of Gleeson CJ and Hayne J at [13] – [15] and in the judgment of Kirby J at [74] – [83].

6. I appreciate that in this case the observations of the learned sentencing Magistrate record that the serious nature of the offence meant that an immediate term and not a suspended term was necessary but that seems to me to suggest that the learned Magistrate concentrated on the nature of the offence to the exclusion largely, but perhaps not entirely, of the personal circumstances of the offender.  This seems to be an error of principle in that there has been inadequate attention given to the possibility of the imposition of a suspended term of imprisonment.

1. Having regard to the antecedents of this offender, the fact that she had four young children, a consideration which has recently again been said to be relevant by the Court of Criminal Appeal in the case of Michael v The Queen [2004] WASCA 4, I consider that the appropriate disposition of this case would have been to direct that the sentences of imprisonment of 12 months and 8 months, making a total of 20 months, imposed on the appellant should stand but that they should be suspended for a period of 2 years. I therefore consider that this appeal should be allowed; that the sentences of immediate imprisonment imposed by the learned Magistrate should be set aside, and that a total sentence of 20 months, to be suspended for a period of 2 years should be imposed in lieu.

2. It has been pointed out by counsel for the respondent that since the appellant was originally sentenced the provisions of the Sentencing Legislation Repeal and Amendment Act (2003) has commenced application and must be given effect on what is now a re‑sentencing of this offender.  As a result of that legislation I am now obliged to state the period of imprisonment that would have been imposed, before the application of that legislation, but then to reduce that by one third to give effect to the new legislative provisions.  It follows that the sentence which, but for the amendments, would have been appropriate in this case is a total of 20 months, that is 12 months on the assault occasioning bodily harm charge and 8 months concurrent on each of the other charges.  Those are the sentences which I consider should be imposed (but suspended) if it were not for the new legislation.

3. Having regard to the amendments I must reduce those by a third so that the 12 month sentence becomes 8 months and the 8 month sentences become a little less than 6 months and 2 weeks.  I will, therefore, impose sentences of 8 months on the assault charge and 6 months and 2 weeks on each of what have been termed the fraud charges.  The sentences in respect of the fraud charges are to be concurrent and the sentence in relation to the assault charge will be cumulative making a total of 14 months and 2 weeks.  For reasons already given I consider that those sentences should be suspended and that they should be suspended for a period of two years dating from 23 January 2004 when this appeal was determined.  If it ever becomes necessary for the appellant to serve these terms then the period to be served must take into account the time already served pending this appeal – that is nearly two months from 22 August 2003 to release on bail on 17 October 2003.