KIROS-GIDEY v Purcell
[2023] WASC 237
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KIROS-GIDEY -v- PURCELL [2023] WASC 237
CORAM: ARCHER J
HEARD: 23 JUNE 2023
DELIVERED : 23 JUNE 2023
FILE NO/S: SJA 1023 of 2023
BETWEEN: FEKADU WELDEMICHAEL KIROS-GIDEY
Appellant
AND
KEELAN PURCELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 58230/2022
Catchwords:
Criminal law - Appeal against sentence - Failure to take into account plea of guilty - Failure to take into account mitigation - Manifestly excessive
Legislation:
Nil
Result:
Extension of time and leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | L Italiano |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AAN v Butterfield [2021] WASC 228
BGR v The State of Western Australia [2014] WASCA 82
Cooling v Steel (1971) 2 SASR 249
Gaskell v The State of Western Australia [2018] WASCA 8
Goodchild v The Department of Public Prosecutions [2023] WASC 60
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Inglis v Pinch [2016] WASC 30
Neach v Hobbs [2021] WASC 135
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139
Warren v Van Den Berg [2004] WASCA 32
Wilson v The State of Western Australia [2010] WASCA 82
Wood v Marsh [2003] WASCA 95
ARCHER J:
(This judgment was delivered extemporaneously on 23 June 2023 and has been edited to correct matters of grammar, add headings, and include complete references.)
Introduction
On 30 January 2023, Mr Kiros‑Gidey appeared unrepresented before his Honour Chief Magistrate Heath. After pleading guilty, he was sentenced for trespass and stealing. For the trespass offence, he was sentenced to 7 months imprisonment suspended for nine months. For the stealing offence, he was fined $500. Mr Kiros‑Gidey seeks leave to appeal against his trespass sentence.
Mr Kiros‑Gidey was 20 years old at the time of sentence. He has a relatively minor record. He had never been sentenced to a term of imprisonment (suspended or immediate) prior to this sentence.
The plea of guilty was entered at the earliest reasonable opportunity.
Mr Kiros‑Gidey raises five grounds of appeal. Four assert that the learned Chief Magistrate made an express error of law. These grounds assert that his Honour failed to take into account the plea of guilty or any other matters of mitigation, failed to give Mr Kiros‑Gidey the opportunity to be heard in relation to mitigation, and erred in imposing a suspended term of imprisonment without being satisfied that it was not appropriate to impose a lesser penalty. The fifth ground of appeal asserts that the sentence was manifestly excessive.
Mr Kiros‑Gidey also seeks an order that the time in which to commence his appeal be extended. The application for extension of time and leave to appeal were ordered to be heard at the same time as the appeal.
The respondent concedes that the learned Chief Magistrate erred.[1] This concession was rightly made.
[1] Respondent's Outline of Submissions filed 8 June 2023 (Respondent's Submissions) [7(b)].
The respondent does not oppose an extension of time being granted.[2] The delay has been explained,[3] and I would grant the extension.
[2] Respondent's Submissions [7(a)].
[3] Affidavit of Sarah King filed 4 April 2023.
At the outset, I would like to record my appreciation for the helpful submissions filed by both parties, and acknowledge the proper approach taken by the respondent.
For the reasons that follow, I would allow the appeal.
The sentencing
It appears that Mr Kiros‑Gidey was originally charged with burglary and stealing in relation to these events.
When Mr Kiros‑Gidey appeared unrepresented before Chief Magistrate Heath on 30 January 2023, it was the second mention of the charges.[4]
[4] Respondent's Submissions [8].
Mr Kiros‑Gidey was asked how he pleaded, and he said he pleaded guilty. The respondent accepts this was a plea at the first reasonable opportunity. In my view, given that it was only the second mention date, it plainly was.
The prosecutor then read the facts:[5]
[On] 12 October last year at 3 pm the accused was served with a barring notice barring him from the Waterford Plaza in Karawara. It was issued for a period of two years. [On] 30 December last year at 6.45 pm the accused entered the Waterford Plaza. He further entered the Liquorland which is located within the complex. He selected a carton of Corona bottles and ran from the store making no attempt to pay. Nearby police gave chase to the accused as he threw the carton at the floor causing multiple bottles to smash in his path. The accused continued to run from police for approximately 100 metres. He was then apprehended.
[5] Sentencing transcript 30 January 2023 (Sentencing Transcript) page 2.
After an exchange between the learned Chief Magistrate and the prosecutor, the burglary charge was amended to a charge of trespass.[6]
[6] Sentencing Transcript pages 2 ‑ 3.
The learned Chief Magistrate then said:[7]
Mr Kiros Gidey, the prosecutor has been kind enough to amend the charge to trespass, but I can see from the record the number of convictions in December for trespass may well have motivated the investigating officers to hit you with something more serious. If you keep going back there, you're going to end up in jail, whether it's a trespass charge or a burglary.
So you need to work that out pretty quickly and, indeed, in relation to the trespass charge, given the number of charges, I'm going to put you on a suspended imprisonment order in relation to that. I'm going to sentence you to seven months imprisonment which will be suspended for nine months. That means that if you commit any further offence for which imprisonment is one of the options during the next nine months, you're going to trigger that sentence. So you can't afford to keep trespassing and stealing. Do you understand that?
[7] Sentencing Transcript page 3.
Mr Kiros‑Gidey said that he understood. The Chief Magistrate then said that, in relation to the stealing charge, Mr Kiros‑Gidey would be fined $500 with costs of $137 and a compensation order in favour of Liquorland.[8]
[8] Sentencing Transcript page 3.
It can be seen from this that the learned Chief Magistrate:
1.did not refer to Mr Kiros‑Gidey's plea of guilty, nor his youth;
2.did not give Mr Kiros‑Gidey the opportunity to say anything by way of mitigation (nor explain to him, as an unrepresented litigant, what matters could be mitigating); and
3.did not explain why he considered that a penalty less than suspended imprisonment would not be appropriate.
As noted in the introduction, Mr Kiros‑Gidey was 20 years old at the time of sentence. He has a relatively minor record. He had never been sentenced to a term of imprisonment (suspended or immediate) prior to this sentence. The plea of guilty was entered at the earliest reasonable opportunity.
Appeals from magistrates' decisions[9]
[9] This section reproduces my reasons in Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [41] ‑ [44], and [46].
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[10]
[10] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[11] This means that the ground is required to have a real, rational and logical prospect of succeeding.[12]
[11] Criminal Appeals Act s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[13] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[14]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[13] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[14] Strahan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[15] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[16]
If, despite error, no substantial miscarriage of justice
[15] Ninyette v Holmes [2015] WASC 287 [56(3)]. And see Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139 [117].
[16] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
In Guerinoni Nominees Pty Ltd v Cullen,[17] I set out the principles to be applied in considering whether, despite error, an appeal should nevertheless be dismissed as no substantial miscarriage of justice had occurred. As the respondent does not contend that I should dismiss the appeal on this basis, it is unnecessary to repeat those principles. It is sufficient to note two things. First, I could not exclude the possibility that the errors affected the sentence. Second, if I was to exercise the sentencing discretion afresh, I would impose a lesser sentence than the sentence imposed by the learned Chief Magistrate.
[17] Guerinoni Nominees [47] ‑ [52].
The conceded grounds of appeal
Of the five grounds of appeal, the respondent concedes the first three of them. These are:
1.The learned Chief Magistrate erred in law by not taking into consideration Mr Kiros‑Gidey's early plea of guilty.
2.The learned Chief Magistrate erred in law by not taking into consideration any mitigation with respect to Mr Kiros‑Gidey's personal circumstances as to what type of sentence should be imposed.
3.The learned Chief Magistrate erred by failing to give Mr Kiros‑Gidey the opportunity to be heard with respect to any mitigation including his personal circumstances and circumstances surrounding the commission of the offence.
Each ground is rightly conceded.
Ground 1
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[18] The seriousness of an offence must be determined by taking into account, among other things, any mitigating factors.[19] A mitigating factor is a factor that decreases the culpability of the offender or decreases the extent to which the offender should be punished.[20] A plea of guilty is a mitigating factor.[21]
[18]Sentencing Act s 6(1).
[19]Sentencing Act s 6(2)(d).
[20] Sentencing Act s 8(1).
[21] Inglis v Pinch [2016] WASC 30 [53].
In Goodchild v The Department of Public Prosecutions,[22] Derrick J summarised the relevant principles in relation to pleas of guilty in sentencing as follows (citations omitted):
[22] Goodchild v The Department of Public Prosecutions [2023] WASC 60 [47] ‑ [56].
47Section 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. 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.
48If 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.
49Section 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.
50Section 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%.
51A 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.
52The 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. 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. Thus as was stated by Mazza JA and Hall J in Gobetti v The State of Western Australia:
'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.'
53Section 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.
54Ordinarily 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. Thus, in Roberts v The State of Western Australia 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.'
55In a similar vein, in Schulz v Coyne 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.'
56Having 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.
Section 9AA of the Sentencing Act 1995 (WA) applies to suspended terms of imprisonment.[23] In any event, as noted above, a plea of guilty is a mitigating factor.
[23] See Neach v Hobbs [2021] WASC 135 [24] ‑ [26].
As I will explain, I am satisfied that the learned Chief Magistrate did not make any reduction for the plea.
First, the learned Chief Magistrate did not state that he was allowing any discount for the plea, or even mention the plea.
Second, the sentence imposed by the Chief Magistrate does not permit an inference to be drawn that his Honour did take into account the plea of guilty.
The plea was entered at the first reasonable opportunity. This meant that it was open to the Chief Magistrate to reduce the head sentence by 25%.[24] In my view, there was no reason why a discount of, or approaching, 25% would not have been given.
[24] Sentencing Act s 9AA(4)(b).
The maximum penalty for the offence of trespass is 12 months' imprisonment and a fine of $12,000.[25]
[25] Criminal Code s 70A(2).
Had a reduction of 25% been given, this would suggest that the original sentence (before any reduction) was 9.3 months' imprisonment suspended for 12 months. This is approaching the maximum.
Even if it was open to discount the penalty by only 15% (which I doubt), this would suggest that the original sentence (before any reduction) would still have been 8.2 months' imprisonment suspended for 10.6 months. This too is approaching the maximum.
In my view, if an appropriate discount had been given for the plea of guilty, the proper application of sentencing principles would have resulted in the Chief Magistrate imposing a substantially lesser sentence. Accordingly, the sentence imposed prevents an inference being drawn that his Honour took the plea into account.
Further, for the same reasons, I am not satisfied that the error could not have affected the sentence. Indeed, I am satisfied that it did.
Accordingly, I would allow the appeal on this ground.
Ground 2
A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.[26]
[26] Sentencing Act s 6(4).
Section 39(2) of the Sentencing Act sets out the sentencing options for natural persons. By s 39(3), a court must not use a sentencing option in subsection (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The last three options are a suspended term of imprisonment, a conditionally suspended term of imprisonment, and immediate imprisonment.
In considering what type of sentence should be imposed, a court must consider, among other things, the mitigating factors.[27]
[27] See, for example, BGR v The State of Western Australia [2014] WASCA 82 [48] ‑ [51].
It is plain from the transcript of the sentencing proceedings, set out earlier, that the learned Chief Magistrate did not consider any mitigating factors in determining the type of sentence to be imposed (or at all). At the very least, Mr Kiros‑Gidey's age was a mitigating factor, as was the plea of guilty. This was an error of law.
For the same reasons as I gave in relation to ground 1, I am further satisfied that the error could have affected the sentence.
Accordingly, I would allow the appeal on this ground.
Ground 3
As has been observed, 'as a matter of natural justice a person convicted of an offence is entitled to the opportunity to put before the sentencing court any relevant matters in mitigation. The denial of that opportunity is a denial of natural justice and would ordinarily require the quashing of any penalty or sentence so imposed'.[28]
[28]Warren v Van Den Berg [2004] WASCA 32 [37].
Further, when an unrepresented person attends court and pleads guilty to an offence, it should be made clear to the person that he or she may, among other things, put forward matters of mitigation.[29]
[29] Wood v Marsh [2003] WASCA 95 [35], citing, with implicit approval, Cooling v Steel (1971) 2 SASR 249, 250. See also AAN v Butterfield [2021] WASC 228 [27].
It is plain from the transcript of the sentencing proceedings, set out earlier, that the learned Chief Magistrate did not do this.
Accordingly, I would allow the appeal on this ground.
Conclusion
As I have upheld grounds 1 ‑ 3, it is unnecessary to consider the remaining grounds. I would, however, grant leave to appeal in relation to those grounds.
Further, I would not impose the same sentence as the learned Chief Magistrate.
Accordingly, I would extend the time for appealing, grant leave to appeal, allow the appeal, and set aside the sentence imposed by the learned Chief Magistrate.
I will hear from the parties as to the re‑sentencing of Mr Kiros‑Gidey.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
3 JULY 2023
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