Luck v Power
[2020] WASC 244
•30 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LUCK -v- POWER [2020] WASC 244
CORAM: MCGRATH J
HEARD: 22 JUNE 2020
DELIVERED : 30 JUNE 2020
FILE NO/S: SJA 1039 of 2020
BETWEEN: NEIL MARTIN LUCK
Appellant
AND
GILLIAN POWER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B COLEMAN
File Number : BS 788/2019 - BS 790/2019
Catchwords:
Criminal law – Appeal against sentence – Failure to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) – Whether sentence manifestly excessive – Express error – Whether failure to properly consider all sentencing factors in imposing suspended term of imprisonment
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 6, s 13, s 24, s 26, s 28, s 29, s 30, s 31, s 32, s 46, s 63, s 67
Community Protection (Offender Reporting) Amendment Act (No 2) 2012 (WA), s 21
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 14(2)
Sentencing Act 1995 (WA), s 9AA, s 39, s 76
Result:
Extension of time in which to appeal is granted
Leave to appeal is granted on ground 1
Leave to appeal is not granted on ground 2
Appeal is dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
D'Rozario v The State of Western Australia [2015] WASCA 171
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Skamp [No 2] [2009] WASC 53
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Murray v Foster [2014] WASC 119
Nguyen v The State of Western Australia [2007] WASCA 114
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Winmar v Clark [2015] WASC 314
Zinga v Johnson [2012] WASC 216
MCGRATH J:
On 27 August 2019, Mr Luck was convicted on his own plea of three charges of being a reportable offender who, without reasonable excuse, failed to comply with his reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act).[1] The magistrate imposed a total effective sentence of 8 months' imprisonment suspended for 12 months.
[1] Charge numbers BS 788/2019 ‑ BS 790/2019.
Mr Luck now seeks leave to appeal against the sentence imposed on two grounds contending that the sentence was manifestly excessive in that a different type of sentence should have been imposed and further that her Honour made an express error. An extension of time in which to appeal is required.[2] The test for the grant of an extension of time in which to appeal is whether it is in the interests of justice to grant an extension. The respondent opposes the application for an extension of time contending that there is no reasonably arguable ground of appeal. I have determined that there is a reasonable arguable ground of appeal and therefore, I grant an extension of time in which to appeal.
[2] Affidavit of Ms Sinton affirmed 3 June 2020.
For the following reasons, I have determined that leave to appeal should be granted on ground 1 and the appeal should be dismissed.
In these reasons for decision I will consider the following:
1.The Magistrates Court proceedings.
2. The grounds of appeal.
3. An assessment of the merits of the appeal.
Magistrates Court proceedings
On 27 August 2019, Mr Luck appeared in the Busselton Magistrates Court and pleaded guilty to three charges, each of which pleaded that between 2 May 2019 and 1 July 2019, Mr Luck, being a person to whom s 6 of the CPOR Act applies, without reasonable excuse, failed to comply with his reporting obligations contrary to s 63(1) of the CPOR Act.[3]
[3] ts 2 (27/08/2019).
The facts upon which Mr Luck was sentenced were in the following terms:[4]
[Mr Luck] is a reportable offender as defined under section 6 of the Community Protection (Offender Reporting) Act, registered on the Australian National Child Sex Offender Register since November 2014. He's required to comply with reporting obligations imposed by the Act for 15 years. He's required to meet with his case officer on a regular basis and record any changes to his personal details.
On 2 May 2019, he met with his case officer, Detective Sergeant Page, at Busselton. During the meeting, he was reminded of his reporting obligations and was served with a new copy of notice of reporting obligations, which he signed, acknowledging the reporting conditions.
On 1 July 2019, police commenced an investigation into the accused's current address. It was established he had moved to a new address. He was interviewed that day, made admissions to failing to inform police of his current address where he had been living for seven months [charge number BS 788/2019]. In explanation, he stated:
I did not want to influence the people that I am staying with in any way.
Further, that same day it was established he was using a new vehicle. When interviewed – rather, he had failed to inform police of a new work utility vehicle he had been using since around 11 May 2019 [charge number BS 789/2019]. In explanation, he stated:
I rang Detective Peter Tims in Bunbury. I cannot recall if I told him about my work car or not, but I did tell him I was working away.
Further, the final matter, your Honour. It is established the accused had failed to inform police of some changes. He had made admissions to living with his ex-partner during their three and-a half year relationship. He failed to inform of that change at the time [charge number BS 790/2019]. In explanation, he stated:
I was staying there 90 per cent of the time, but I was not living there.
[4] ts 3 (27/08/2019).
Mr Luck's counsel submitted that the appropriate sentencing disposition was a fine.[5] In mitigation reliance was placed on the fact that Mr Luck had voluntarily disclosed his failure to report a change of address to the police,[6] that Mr Luck had not breached his obligations in five years of reporting,[7] that he had successfully obtained a mechanical apprenticeship and had been employed,[8] and that he pleaded guilty to the charges at the first reasonable opportunity.[9]
[5] ts 5 (27/08/2019).
[6] ts 5 (27/08/2019).
[7] ts 4, 5 (27/08/2019).
[8] ts 4, 6 (27/08/2019).
[9] ts 5 (27/08/2019).
The prosecutor made no submissions as to sentence.[10]
[10] ts 5 (27/08/2019).
The magistrate imposed a total effective sentence of 8 months' imprisonment suspended for 12 months.[11] The table below outlines the respective individual terms of imprisonment imposed.[12]
[11] ts 7 (27/08/2019).
[12] ts 7 (27/08/2019).
Charge Date of offence Term imposed Cumulative/ concurrent BS 788/2019
Breach of reporting obligations (s 63(1) CPOR Act)2 May 2019 - 1 July 2019 8 months' imprisonment Concurrent
Head sentence
BS 789/2019
Breach of reporting obligations (s 63(1) CPOR Act)2 May 2019 - 1 July 2019 4 months' imprisonment Concurrent BS 790/2019
Breach of reporting obligations (s 63(1) CPOR Act)2 May 2019 - 1 July 2019 4 months' imprisonment Concurrent Total effective sentence 8 months' imprisonment
suspended for 12 months
Appeal
On 3 June 2020 Mr Luck filed a notice of appeal pleading one ground of appeal:[13]
1.The learned sentencing Magistrate erred in sentencing the appellant to imprisonment, albeit suspended, when in all of the circumstances a sentence of last resort was not open.
[13] Appellant's appeal notice filed 3 June 2020.
By application dated 12 June 2020 Mr Luck sought leave to rely upon a second ground of appeal:[14]
2. The learned Magistrate erred in her approach to the 'two-step process' set out in Dinsdale v The Queen (2000) 202 CLR 321.
[14] Appellant's application in an appeal filed 12 June 2020.
On 22 June 2020, I granted leave to Mr Luck to rely upon the second ground of appeal.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[15] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[16]
[15] Criminal Appeals Act 2004 (WA), s 9(1).
[16] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[17] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[18]
[17] Criminal Appeals Act 2004 (WA), s 9(2).
[18] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[19] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. The appellate court's jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and further, a different sentence should have been imposed.[20]
[19] Criminal Appeals Act 2004 (WA), s 14.
[20] Winmar v Clark [2015] WASC 314 [29] ‑ [30].
Assessment of the merits of the appeal
I will first consider ground 2 given that it contends that the magistrate made an express error.
Ground 2
By ground 2, Mr Luck contends that the magistrate erred in her approach to the two-step process set out in Dinsdale v The Queen[21] in determining that a suspended term of imprisonment should be imposed.
[21] Dinsdale v The Queen (2000) 202 CLR 32.
The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[22] Pursuant to s 76(2) of the Sentencing Act 1995 (WA), a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
[22] Cartwright v The State of Western Australia [2010] WASCA 4 [8].
The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[23] That is, all of the circumstances must be revisited. The magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
[23] Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 [18], [26], [84], [85].
Her Honour commenced her sentencing remarks by observing that a term of imprisonment cannot be imposed 'unless I consider it's the only appropriate disposition taking into account all of the circumstances, which include reference to the maximum penalty imposed by the legislation, not just the summary conviction penalty; any aggravating and mitigating factors; and the circumstances of your offences'.[24] That was a correct recital of the applicable sentencing principles. Her Honour then addressed the circumstances of the offending, identifying the aggravating factors being three separate breach offences and the period over which the offending continued. Her Honour then referred to the factors in mitigation citing the voluntary disclosure of the failure to advise of the change of address.[25] Her Honour afforded Mr Luck a 25% discount under s 9AA of the Sentencing Act.[26]
[24] ts 6 (27/08/2019).
[25] ts 6 (27/08/2019).
[26] ts 6 (27/08/2019).
Her Honour once again then observed that a term of imprisonment cannot be imposed 'unless I consider it is the only appropriate disposition, having taken into account the other options available to me.'[27]
[27] ts 7 (27/08/2019).
Her Honour then stated that in her view the point had been reached where a period of imprisonment should be imposed.[28] In so doing, her Honour referred to the seriousness of the offending, the need to protect the community and personal deterrence.[29]
[28] ts 6 (27/08/2019).
[29] ts 7 (27/08/2019).
Her Honour then expressly applied the two-tier approach by stating that 'there are some things that have persuaded me that I should suspend this term of imprisonment for you.'[30] Her Honour then recited factors in mitigation being that Mr Luck voluntarily disclosed the breach in respect of the change of address, the plea of guilty at the first reasonable opportunity, and lifestyle changes including obtaining employment and being drug free since 2011.[31]
[30] ts 7 (27/08/2019).
[31] ts 7 (27/08/2019).
Accordingly, her Honour correctly undertook the two-tier process and did determine that the sentence of 'last resort', being imprisonment, was the appropriate disposition. Mr Luck contends that her Honour erred by reciting some sentencing factors when determining that imprisonment was the only appropriate disposition, and then referred to further sentencing matters when determining to suspend the term of imprisonment, namely Mr Luck's employment and being drug free. [32]
[32] Appellant's written submissions dated 12 June 2020 [42] ‑ [45].
I do not consider that there is any merit in Mr Luck's contention. It is clear on a fair reading of the sentencing remarks that her Honour has identified relevant sentencing principles, outlined with clarity all mitigating factors and identified the aggravating factors. Her Honour did so without error. Further, her Honour specifically directed herself that imprisonment was a sentence of last resort. To read the sentencing remarks in the way contended by Mr Luck is unfair. Magistrates are required to sentence a significant number of offenders in a daily list in the Magistrates Court. The sentencing remarks of a judicial officer in the Magistrates Court should not be the subject of line-by-line scrutiny in search of error.
Therefore, ground 2 is without merit and leave is not granted.
Ground 1
By ground 1, Mr Luck contends that the learned sentencing magistrate erred in sentencing Mr Luck to a term of suspended imprisonment when in all of the circumstances a sentence of last resort was not open.
The sentencing options available to the court are set out in s 39 of the Sentencing Act. The ultimate option in s 39(2) is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires imprisonment.[33]
[33] Sentencing Act 1995 (WA), s 6(4).
Properly understood by ground 2, Mr Luck contends that the terms of imprisonment imposed in respect of each charge were manifestly excessive. That is, in all the circumstances, including those personal to Mr Luck, the sentences of imprisonment imposed were not open in the sound exercise of the sentencing discretion. For a sentence to be manifestly excessive, the court must be satisfied that the sentence is unreasonable or plainly unjust.[34]
[34] Dinsdale v The Queen (2000) 202 CLR 321, 324 ‑ 325; [2000] HCA 54 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Luck contends that the wrong type of sentence has been imposed in that a type of sentence less than one of suspended imprisonment should have been imposed. Therefore, it is not necessary to consider the length of the terms imposed nor the structuring of the sentence, being 8 months' imprisonment on charge BS 788/2019 as the head sentence, and terms of imprisonment of 4 months on charges BS 789/2019 and BS 890/2019 respectively to be served concurrently. Her Honour referred to the totality principle in determining the total effective sentence of 8 months' imprisonment but did not expressly state whether the length of the respective terms had been adjusted for totality reasons.[35]
[35] ts 7 (27/08/2019).
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[36]
[36] Sentencing Act1995 (WA), s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.
In considering ground 1, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[37] The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence.
The legislative framework
[37] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Mr Luck is a 'reportable offender' registered on the Australian National Child Sex Offender Register. Mr Luck's reporting obligations under the CPOR Act commenced in November 2014 for a period of 15 years. Mr Luck's obligation as a reportable offender arises from his conviction in April 2011 for five offences comprising one count of stalking contrary to s 338E(1)(b) of the Criminal Code (WA), one count of deprivation of liberty contrary to s 333 of the Criminal Code, one count of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code, and three counts of aggravated indecent assault contrary to s 324 of the Criminal Code.[38] A total effective term of imprisonment of 4 years 6 months was imposed.
[38] Criminal Record of Mr Luck.
The CPOR Act outlines a framework requiring certain offenders who commit sexual or other designated serious offences to keep the police informed about specified personal details and their location in the community. Relevantly, a person becomes a reportable offender when sentenced by a court for a reportable offence.[39] Alternatively, an application may be made in respect of other offenders who would not otherwise be subject to the CPOR Act if the court is satisfied the offender poses a risk.[40] A reportable offender must be given written notice of their reporting obligations and the consequences that may arise if they fail to comply with those obligations.[41]
[39] Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 6.
[40] Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 13.
[41] Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 67.
Part 3 of the CPOR Act provides for reporting obligations.[42] The obligations include the initial reporting obligation by the reportable offender[43] and subsequently, the obligation to report annually and as required by the Commissioner of Police.[44] A reportable offender must report changes to relevant personal details to the Commissioner,[45] and of any intended absence from Western Australia, and then must report upon returning.[46] The length of the period of reporting is either 8 years or 15 years depending upon the class of offence in respect of which the offender was convicted.[47]
[42] Community Protection (Offender Reporting) Act 2004 (WA), s 3.
[43] Community Protection (Offender Reporting) Act 2004 (WA), s 24, s 26.
[44] Community Protection (Offender Reporting) Act 2004 (WA), s 28.
[45] Community Protection (Offender Reporting) Act 2004 (WA), s 29.
[46] Community Protection (Offender Reporting) Act 2004 (WA), s 30, s 31, s 32.
[47] Community Protection (Offender Reporting) Act 2004 (WA), s 46.
Section 63 of the CPOR Act provides that it is an offence for a reportable offender to fail to comply with reporting obligations and is in the following terms:
(1)A reportable offender who, without reasonable excuse, fails to comply with any of his or her reporting obligations commits a crime.
Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $12,000 and imprisonment for 2 years.
(2)In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, a court must have regard to the following matters -
(a)the person's age;
(b)whether the person has a disability that affects the person's ability to understand, or to comply with, those obligations;
(c)whether the form of notification given to the reportable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender's circumstances;
(d)any matter specified by the regulations for the purposes of this section; (e) any other matter the court considers appropriate.
(3)It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation.
The purpose of the CPOR Act is stated in its long title:
An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable information to be published about certain offenders, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.
The obligation to report is intended to advance or secure the protection of the community.[48] A failure by a reportable offender to comply with reporting obligations may prejudice the efficacy of the statutory scheme for the protection of the community.[49]
Circumstances of the offending
[48] Sharpe v Vinning [2020] WASCA 79 [122].
[49] Sharpe v Vinning [2020] WASCA 79 [122].
Turning to the circumstances of the offending, Mr Luck was convicted of three separate breaches of his reporting obligations.[50] The first breach was a failure to report that he had moved to a new address where he had been living for seven months. The reason given for the failure to report was that Mr Luck was concerned that his male flatmate, who was a serving police officer, would be contacted and that he would lose his accommodation.[51] Therefore, the breach was not inadvertent but a premeditated continuing breach. The magistrate found that Mr Luck voluntarily disclosed that breach to the authorities.[52] However, that voluntary disclosure occurred only after Mr Luck persisted in being in breach of his reporting obligation for seven months.
[50] ts 6 (27/08/2019).
[51] ts 4 (27/08/2019).
[52] ts 7 (27/08/2019).
The second breach involved a failure to inform police of a new work utility vehicle he had been using since around 11 May 2019. During the plea in mitigation it was submitted that Mr Luck bought a new vehicle after commencing employment as a mechanic and that whilst he informed the authorities of his employment he overlooked mentioning the vehicle.[53]
[53] ts 4 (27/08/2019).
The final breach related to Mr Luck failing to report that he had been living with his ex-partner during their three and a half year relationship.[54] The reporting authorities were aware that Mr Luck had commenced a relationship with the adult woman, who attended with Mr Luck when reporting on occasions.[55] The failure to report was therefore a continuing offence for a most significant period.
Maximum penalty
[54] ts 3 (27/08/2019).
[55] ts 4 (27/08/2019).
The penalty for the offence of failing to comply with a reporting obligation under s 63(1) of the CPOR Act is 2 years' imprisonment and a fine of $12,000 when the offender is dealt with summarily. Whilst the maximum sentence that the magistrate could impose summarily was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum (5 years' imprisonment) and not merely the jurisdictional limit in assessing the seriousness of the offence.
In 2012, the maximum penalty for failing to comply with reporting obligations under s 63(1) of the CPOR Act was increased from 2 years' imprisonment to 5 years' imprisonment.[56]
[56] Community Protection (Offender Reporting) Amendment Act (No 2) 2012 (WA), s 21.
If Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes.[57] An increase in the maximum penalty is an indication that sentences for the offence should be increased.[58]
Personal circumstances and factors in mitigation
[57] Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).
[58] Muldrock v The Queen (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon,Crennon, Kiefel & Bell JJ).
Mr Luck was born on 2 March 1983 and is therefore 37 years of age. Mr Luck has a criminal record that comprises the five convictions in 2011 arising from a sexual assault on a female and other offending being mainly driving a motor vehicle without authority.
The magistrate accepted in mitigation that Mr Luck voluntarily disclosed the breach which related to the change of address to the police and that he pleaded guilty at the first reasonable opportunity, affording him a 25% discount pursuant to s 9AA of the Sentencing Act.[59] The magistrate also accepted that Mr Luck, since being released from prison, had progressed with his rehabilitation, remaining drug free, and had commenced a mechanical apprenticeship.[60]
Range of sentences
[59] ts 6 (27/08/2019).
[60] ts 7 (27/08/2019).
There is no identifiable tariff for the offence of failing to comply with a reporting condition under s 63(1) of the CPOR Act. Given that the offending may occur in a wide range of circumstances there is no established range.
Whilst decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[61]
[61] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].
Mr Luck referred to Hodder v Skamp [No 2][62] and Murray v Foster.[63] In Murray v Foster the appellant was convicted of two offences being one charge of having possession of identification material with the intention that the material would be used by him to facilitate the commission of an indictable offence contrary to s 491(1) of the Criminal Code (the identification material offence), and one charge of failing to report contrary to s 63(1) of the CPOR Act. The appellant failed to report that he had obtained a passport. Further, the identification material offence involved the possession of a passport issued to his late twin brother.
[62] Hodder v Skamp [No 2] [2009] WASC 53.
[63] Murray v Foster [2014] WASC 119.
The magistrate imposed 5 months' imprisonment on the identification material offence and 2 months' imprisonment on the charge contrary to s 63(1) of the CPOR Act to be served cumulatively. On appeal, the terms of imprisonment were set aside and in lieu thereof, a fine of $1,000 was imposed on the identification material offence and a fine of $500 was imposed on the failure to report charge contrary to s 63(1) of the CPOR Act.
The offender in Murray v Foster was 76 years of age with significant health issues including ischaemic heart disease, peripheral vascular disease, diabetes and mental health issues. The medical report stated that a custodial sentence would have a significant impact on the offender's physical and mental health.[64]
[64] Murray v Foster [2014] WASC 119 [34].
Further, in Murray v Foster the appellant's failure to report was limited to the failure to advise that he had a passport. In the present case Mr Luck has committed three offences, one of which involved Mr Luck not confirming his living arrangements for a period in excess of three and a half years.
In Hodder v Skamp [No 2] the appellant was convicted of four charges of failing to report contrary to s 63(1) of the CPOR Act, one charge of obstructing a police officer contrary to s 172(2) of the Criminal Code and one charge of escaping lawful custody contrary to s 146 of the Criminal Code. The failure to report charges involved the failure, on four separate occasions, to report to the police as required. The escape lawful custody charge arose from the appellant evading the police at the time of this arrest.
The magistrate imposed a global fine of $3,000 for the six offences but gave no credit for 19 days spent in custody. Accordingly, on appeal the fine was reduced to $1,500. Her Honour observed that given the seriousness and repeated nature of the failure to report charges and the seriousness of the other charges, the offending 'could easily have been the subject of a custodial term.'[65] However, her Honour observed that the prosecution at first instance and on appeal had conceded that a fine would be an appropriate outcome.[66]
[65] Hodder v Skamp [No 2] [2009] WASC 53 [43].
[66] Hodder v Skamp [No 2] [2009] WASC 53 [43].
In Hodder v Police Department of Western Australia[67] the appellant was convicted after trial of one charge of failing to comply with his reporting obligations under the CPOR Act. The breach was the failure to disclose that he had acquired a motor vehicle. The magistrate imposed a $2,000 fine. The appeal was upheld on the basis that the magistrate failed to make proper inquiry of the appellant's financial circumstances and consequently the fine was set aside and in lieu thereof, a fine in the amount of $500 was imposed. The court observed that whilst the appellant had shown no remorse and had a prior conviction under the CPOR Act, he had limited capacity to pay a fine and therefore, the appeal was allowed.
[67] Hodder v Police Department of Western Australia [2011] WASC 142.
In Zinga v Johnson[68] the appellant was convicted of two charges of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. For those offences the appellant was sentenced to a suspended term of imprisonment. In addition, the appellant was sentenced for a failure to comply with reporting obligations under the CPOR Act for which he received a term of suspended imprisonment of 3 months. The appeal considered only the sentences imposed for the aggravated assault occasioning bodily harm charges. Given that the court did not review the term of suspended imprisonment of 3 months for the CPOR Act offence the decision in Zinga v Johnson is of limited assistance.
[68] Zinga v Johnson [2012] WASC 216.
In D'Rozario v The State of Western Australia[69] the appellant was convicted of multiple offences including four counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years contrary to s 321(2) of the Criminal Code, one count of possession of child exploitation material, namely child pornography, contrary to s 220 of the Criminal Code, and one count of using electronic communication with intent to procure sexual activity with a child contrary to s 204B(2)(a) of the Criminal Code. In addition, the appellant was convicted of 11 breaches of the CPOR Act. The breaches related to the appellant's failure to report his unsupervised contact, which was of a sexual nature, with three child complainants. The remaining breach offences related to the appellant's failure to report the fact that he had, from time to time, reactivated or set up new internet or mobile phone accounts. The Court of Appeal determined that the total effective sentence of 5 years' imprisonment for the offending did not breach the totality principle. This case is of limited assistance given that the Court of Appeal did not directly review the sentence imposed for the breaches of the CPOR Act.
Disposition
[69] D'Rozario v The State of Western Australia [2015] WASCA 171.
After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors and the standard of sentencing customarily observed with respect to the offence, I am of the view that the imposition of a term of 8 months' imprisonment suspended for 12 months was within her Honour's discretion. I have reached this conclusion for the following reasons.
The maximum penalty for the offence created by s 63(1) of the CPOR Act, being 5 years' imprisonment, is indicative that the Parliament considers that this type of offending is serious. As I have observed, in 2012 the Parliament increased the maximum penalty for this offence from 2 years to 5 years' imprisonment.
The obligations imposed under the CPOR Act are intended to advance or secure the protection of the community. It is necessary that offenders and in particular, sexual offenders, comply with the reporting regime. To not do so places the community at risk. Further, the failure to comply with a reporting condition under the CPOR Act compromises and undermines the efficacy of the statutory scheme for the protection of the community.[70]
[70] Sharpe v Vinning [2020] WASCA 79 [122].
In order for the reporting regime to operate it is necessary that the penalties imposed for any breach of notification and reporting obligations act as a strong deterrent.
Whilst the offence created by s 63(1) of the CPOR Act does not require that the offender has a particular state of mind, for example knowledge or intention, as an element of the offence, Mr Luck was aware of his reporting obligations and knew that he was in breach of those requirements. This is not a case of inadvertence but involved three deliberate breaches of his obligations.
The offending in respect of the failure to report his change of address and that he had been living with his ex-partner were characterised by persistence. For approximately three and a half years the authorities were unaware that Mr Luck was spending most nights at an undisclosed address with his then‑partner. Further, for a seven month period his designated permanent residence was unknown to the authorities. Mr Luck persistently and intentionally deceived the authorities by disregarding his reporting obligations and consequently undermined the regulatory scheme that protects the community.
I accept that Mr Luck voluntarily reported his breach of failing to advise the change of address. Whilst this is a significant factor in mitigation, Mr Luck persisted for seven months before informing the authorities. Further, I accept that he pleaded guilty at the first reasonable opportunity being afforded a 25% discount under s 9AA of the Sentencing Act and is progressing with his rehabilitation with employment. These factors in mitigation support the suspension of the term of imprisonment. Despite these factors in mitigation, I am unable to find that her Honour erred in the exercise of her discretion. The sentencing discretion has not miscarried given that it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence.
Conclusion
Accordingly, I will grant an extension of time in which to appeal, grant leave to appeal on ground 1 but the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath29 JUNE 2020
0
17
4