Matthews v Director of Public Prosecutions for Western Australia

[2022] WASC 426

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   MATTHEWS -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 426

CORAM:   LUNDBERG J

HEARD:   6 DECEMBER 2022

DELIVERED          :   6 DECEMBER 2022

PUBLISHED           :   9 DECEMBER 2022

FILE NO/S:   SJA 1073 of 2022

BETWEEN:   SHANNON LEWIS MATTHEWS

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE B COLEMAN

File Number            :   BU 965 -967 OF 2021

Catchwords:

Criminal law - Recalling of community based order made by Magistrate and imposition of suspended imprisonment sentence - Whether Magistrate functus officio - Appeal conceded - Appropriate orders to dispose of appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(d), s 14(1)(e)
Sentencing Act 1995 (WA), s 37, s 37A, s 80, s 126, s 127

Result:

Leave to appeal out of time granted.  Leave to appeal granted on Ground 1 and the appeal be allowed on Ground 1.  The decision of the Magistrate to impose a suspended sentence of imprisonment be set aside with effect from 7 September 2021, and the matter be remitted to the Magistrates Court in Bunbury on 9 December 2022 for resentencing before a different Magistrate

Category:    B

Representation:

Counsel:

Appellant	:	F E Sellers
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Legal Aid
Respondent	:	Director of Public Prosecutions (WA)

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

Astle v Twort [2021] WASC 445

Dreja v The State of Western Australia [2012] WASCA 151

Jones v Pennuto [2020] WASC 416

MacLeod v Australian Securities Commission (1999) 32 ACSR 172; [1999] WASCA 35

Regina v Essex Justices, Ex parte Final [1963] 2 QB 816

LUNDBERG J:

(This judgment was delivered ex temporaneously on 6 December 2022 and has been edited from transcript.)

A.     Overview

1. This is an urgent appeal against a sentence imposed on the appellant by a Magistrate sitting at Busselton.  The appellant seeks leave to appeal out of time and has articulated two grounds of appeal.[1]  The respondent does not oppose the extension of time and has conceded the appeal.[2] 

   [1] Appeal Notice dated 30 September 2022.

   [2] Respondent’s submissions dated 17 November 2022 at [4] and [8].

2. Nonetheless, it remains for this Court to be satisfied that leave to appeal out of time should be granted and, more fundamentally, it is a matter for this Court to determine whether the appeal is made out.  There is, in addition, an issue between the parties as to the course the Court should adopt, and the orders it should make, if the appeal is upheld.

B.     Procedural history

1. On 7 September 2021, the appellant was convicted on his own pleas, of two counts of attempting to gain a benefit by fraud and one count of gaining a benefit by fraud.  The Prosecution Notices filed in the Magistrates Court are before this Court.  The relevant offence provisions are identified as s 409(1)(c) and s 409(1)(c)(B) of the Criminal Code (WA).

2. The course of the proceedings before the Magistrates Court on 7 September 2021 is apparent from the transcript which is Attachment A to the affidavit of Faye Elisabeth Sellers sworn 29 September 2022 (Transcript).  It appears from the Transcript of the proceedings before the Magistrate that the appellant was initially sentenced to a 12 month community-based order (CBO).  The Magistrate pronounced the sentence and imposed this penalty on the appellant.[3] 

   [3] Transcript at pages 7-9.

3. Subsequently, but on the same day, the Magistrate purported to recall the CBO and impose a suspended imprisonment order, namely a sentence of 8 months imprisonment wholly suspended for a period of 12 months. 

4. The catalyst for this volte-face appears to be the communication to the Magistrate of certain comments attributed to the appellant after he was sentenced (but which he appeared to dispute), namely a comment that he was not intending to comply with the directions of the community corrections officer.[4]  The Magistrate thereafter stated:

   So I'm recalling these matters.  I'm recalling the community based orders and I am changing my sentence.[5]

   [4] Transcript at page 10.

   [5] Transcript at page 10.

5. The appellant took no steps to challenge the sentencing order until after he was summonsed to appear in Busselton on 4 August 2022 for charges of no authority to drive and speeding.[6] I am informed that the appellant has now pleaded guilty to an offence of driving whilst disqualified, contrary to s 49(1)(a) and (3)(b) of the Road Traffic Act 1974 (WA), as well as the associated speeding offence, but I understand he has not been sentenced.

   [6] Affidavit of Faye Elisabeth Sellers sworn 29 September 2022 at [3].

6. In relation to these fresh charges, duty counsel from Legal Aid appeared for the appellant in the Magistrates Court when the charges were first returned and, understandably, made a request for the transcript of the proceedings in the Magistrates Court on 7 September 2021.[7]  

   [7] Affidavit of Faye Elisabeth Sellers sworn 29 September 2022 at [4].

7. The transcript and circumstances in which the suspended imprisonment order was imposed would undoubtedly be relevant to any submissions counsel might make on the appellant's behalf for the purposes of s 80 of the Sentencing Act 1995 (WA). That provision determines the manner in which a person is to be sentenced where he or she has been convicted (in Western Australia or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and where the offence was committed during the suspension period of the suspended imprisonment.

8. The full transcript of the proceedings on 7 September 2021 was not received by Legal Aid until 23 September 2022.[8]

   [8] Affidavit of Faye Elisabeth Sellers sworn 29 September 2022 at [8].

9. On 29 September 2022, the appellant instructed his solicitors to lodge this appeal.  The appeal notice was then filed on 30 September 2022.  The appellant accepts that the time within which he was required to lodge any appeal expired on 5 October 2021.[9]  Accordingly, this appeal is almost one year out of time.  Notwithstanding this inordinate delay, the respondent does not oppose the extension of time.

   [9] Affidavit of Faye Elisabeth Sellers sworn 29 September 2022 at [2]. The time limit is 28 days, as specified in s 10(3) Criminal Appeals Act 2004 (WA), although of course leave may be given for an appeal to be filed outside this period.

10. The appellant now contends in this Court that the Magistrate erred at law by recalling the CBO sentence and resentencing the appellant on the basis that her Honour was then functus officio (Ground 1).  Further, the appellant contends that the Magistrate's failure to seek comment from the defence or prosecution before changing the sentence amounts to a denial of procedural fairness (Ground 2).

C.     Disposition

1. As noted above, the respondent has conceded the appeal.  I am satisfied that this concession has been properly made for the following reasons.

2. In the absence of an express power to the contrary, a Magistrate has no power to recall a sentence imposed and impose a fresh sentence.  Once a final order is made in a matter, the judicial officer making the order is functus officio.[10] 

   [10] Regina v Essex Justices, Ex parte Final [1963] 2 QB 816 at 823 per Salmon J.

3. Even where a Magistrate acknowledges that they made an error in reaching a decision, as a matter of policy such an error should be corrected by an appeal court, unless there is an express power to correct the decision.[11]

   [11] MacLeod v Australian Securities Commission (1999) 32 ACSR 172; [1999] WASCA 35 [122] per Commissioner Kenneth Martin QC (as he then was). The force of His Honour’s comments in this regard was not disturbed by the Court of Appeal or the High Court of Australia in the subsequent appeal proceedings.

4. There are provisions within the Sentencing Act 1995 (WA) which empower a sentencing court to set aside or otherwise vary a sentence. Specifically, I refer to s 37,[12] s 37A,[13] and the power to resentence an offender under Part 18 (which will generally arise where the offender has breached a community order and may also be engaged on an application under s 126).

   [12] Section 37(1) provides that: ‘If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is’.

   [13] Section 37A(1) concerns circumstances in which an offender reneges on a promise to assist authorities.  In those circumstances, the court ‘may recall the order imposing the sentence (the reduced sentence) and impose a sentence based on the full sentence but taking into account the extent to which the reduced sentence has taken effect and the extent to which the offender has complied with any orders made under it’.

5. Neither the appellant nor the respondent submitted that any of the statutory provisions mentioned in the foregoing paragraph had application on the present facts. I agree. I need only make the following brief observations in this regard, directed to s 126 and s 127 of the Sentencing Act 1995 (WA), which draw upon the helpful submissions filed by the respondent:

   1.These provisions are found in Part 18 of the legislation.  There is nothing apparent from the transcript of proceedings before the Magistrate to indicate that her Honour was purporting to exercise powers under this provision, although that does not mean the power might not subsequently be invoked to lay the foundation for the exercise of the Court's power (subject to any procedural or notice requirements which may preclude an ex post facto reliance on any such statutory power). 

   2.I am satisfied that the prerequisites for the exercise of the power under this provision (which would then permit a CRO or a community order to be amended or cancelled) were not present in this case. 

   3.In particular, there is no basis to conclude that the court was satisfied that the 'circumstances of the offender were wrongly or inaccurately presented to the court when it was sentencing the offender' (see s 127(1)(a)), and no basis to conclude that the court was satisfied that the 'circumstances of the offender have so altered since the court passed sentence that the offender will not be able to comply with the requirements of the CRO or community order' (s 127(1)(b)). 

   4.In addition, the power in s 127(1) requires the court to be satisfied it was 'just' to recall the original order.  No express consideration was given to this requirement by the Magistrate in the present case.

   5.Finally, I observe that an application to amend or cancel a CRO or community order cannot be made on the Court's own motion. Section 126(1) states that such applications can be made by the offender or the DPP or prosecutor, in the case of a CRO, or by the offender or a CCO, in the case of a community order. There was no application in the present case by either the appellant or a CCO. The recalling of the sentence was undertaken by the Magistrate on her own motion.

6. I am therefore satisfied the appellant's contention that the Magistrate was functus officio after pronouncing the CBO sentence on 7 September 2021 is made out, and the respondent's concession to this effect was properly made. 

7. Further, while the appellant's delay in commencing this appeal is rather lengthy, the circumstances explained in the affidavit of the appellant's solicitor, and the significant injustice the appellant would suffer if the extension of time is not granted, together with the respondent's express indication it does not oppose the extension, point in favour of the grant of an extension of time through to 30 September 2022. 

8. Absent these additional factors, and particularly in light of the significant injustice to the appellant occasioned by the imposition of a sentence beyond power, I would have been inclined against the grant of leave.  

9. I would therefore grant leave to the appellant to file this appeal out of time, grant leave to appeal in respect of Ground 1 and uphold the appeal on the basis of that ground.  In those circumstances, it is unnecessary for me to address Ground 2, which raises issues of procedural fairness, and given the appeal was conceded, I see no utility in doing so.

D.     Orders

1. The foregoing reasons leave two final matters for my determination:

   1.First, there is a question whether the appellant should be resentenced by this Court, or whether the matter should be remitted to the Magistrates Court for resentencing before a different Magistrate.

   2.Second, and allied to the first question, there is a question raised in the respondent's submissions whether the existence of the suspended sentence may be taken into account in the sentencing process for the new charges, even though that sentence has subsequently been set aside.

2. The appellant has submitted that the sentence of 8 months imprisonment imposed by the Magistrate, which was wholly suspended for 12 months, should be set aside and declared 'void ab initio'.  The appellant further submits that he should be resentenced to the original CBO with effect from the date the appeal is heard or upheld. 

3. The respondent has raised certain legal and practical issues which will or may arise in this resentencing process. Ultimately, the respondent submits that this Court may resentence the appellant, or may remit the matter to the Magistrates Court for resentencing before a different Magistrate. The respondent refers to s 14(1)(d) and s 14(1)(e) of the Criminal Appeals Act 2004 (WA), in this regard. The respondent observes that there is an 'administrative convenience in the appellant being resentenced by the magistrate sentencing the appellant for the new offence at the same time as the appellant is sentenced for that offence'.[14]  I understand the appellant is due to appear before the Bunbury Magistrates Court this coming Friday, 9 December 2022, and that may be a suitable date for these matters to be dealt with at once. 

   [14] Respondent’s submissions at [37].

4. The respondent also submits that the sentencing of the appellant for the new offences 'can have regard to the fact that the offence was committed during the currency of an order, notwithstanding that the order was liable to be set aside on appeal'.[15] As clarified with the respondent during the hearing, the respondent's contention is that the sentencing of the appellant in respect of the new charges under s 49(1)(a) and (3)(b) of the Road Traffic Act 1974 (WA) should have regard to the fact these offences were committed during the currency of a suspended sentence, albeit the suspended sentence has subsequently been determined to be beyond power.

   [15] Respondent’s submissions at [36] and see also [38].

5. This submission draws attention to an anterior matter, namely whether the suspended sentence imposed by the Magistrate on 7 September 2021 should be set aside prospectively or retrospectively. 

6. Implicitly, the respondent's submissions appear to encourage an order that the sentence be set aside prospectively only.  The tenor of the submissions made by the appellant, in contrast, through the reference to the impugned order being characterised as 'void ab initio', is that I should order the suspended sentence be set aside as of 7 September 2021. 

7. I would accept that order imposing a sentence of suspended imprisonment has ongoing effect once made.  It is executory or partly executory until the order has concluded its operation, as was explained by Pullin JA in Dreja v The State of Western Australia [2012] WASCA 151. His Honour there held that:

   If a court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order.[16]

   [16] [2012] WASCA 151 [15].

8. In Dreja, the suspended imprisonment sentence was set aside on the grounds it was manifestly excessive.  The question raised before the Court of Appeal was whether a fine imposed for breach of a suspended sentence should be set aside as a miscarriage of justice on the basis that the suspended sentence had been set aside on appeal. 

9. The prosecutor submitted on appeal in Dreja that the order setting aside the suspended sentence order (which was silent as to its precise operation) was not an order that made the suspended sentence order void ab initio.  The appellant in that matter conceded that to be so.  The Court of Appeal accepted that this concession was rightly made.  Accordingly, Pullin JA (with whom Newnes and Mazza JJA agreed) held that an order setting aside a suspended sentence order operated prospectively and that while the order was in force it still had to be obeyed.[17]

   [17] Dreja v The State of Western Australia [2012] WASCA 151 [15].

10. A distinguishing feature of the present appeal is that the suspended sentence was imposed beyond power, in circumstances in which the Magistrate was functus officio.  That being the case, in contrast to a challenge to the sentence on discretionary grounds, by way of example, I consider it appropriate to expressly order the suspended sentence be set aside with effect from 7 September 2021. 

11. I am disinclined to use the phrases 'set aside ab initio' or 'void ab initio' in this regard as the use of such conclusionary phrases may tend to obscure the intended effect of the order, as was explained by Tottle J in Jones v Pennuto [2020] WASC 416 at [29]. His Honour also noted in that case that the making of an order to this effect (i.e. with retrospective effect) does not provide an answer to the question as to what legal consequences flow from the existence of the suspended sentence as a matter of fact.[18] 

    [18] [2020] WASC 416 [30].

12. During the course of argument at the hearing of this appeal, I was referred by counsel for the appellant to the decision of Astle v Twort [2021] WASC 445, being a decision of Justice Hall delivered ex temporaneously on 8 December 2021.  I do not propose to fully explore the reasons for decision of his Honour in that case, other than to say that ultimately his Honour was satisfied that the conditional suspended imprisonment order made by the Magistrate in that case, which was made without jurisdiction, should be regarded as being null and void.[19]  

    [19] [2021] WASC 445 [12]-[14]. His Honour ordered the conditional suspended sentence be treated as void ab initio.

13. Putting all of the above together, I have formed the view that the matter should be remitted to the Magistrates Court for resentencing on the fraud charges under s 409(1)(c) and s 409(1)(c)(B) of the Criminal Code, as that resentencing may conveniently be heard in conjunction with the sentencing for the new charges under the Road Traffic Act 1974 (WA). That can be done on 9 December 2022 in Bunbury, before a different Magistrate. I do not consider it appropriate to express a concluded view as to whether, and as a matter of law, in relation to the sentencing of the Road Traffic Act 1974 (WA) offences, the sentencing Magistrate may approach the matter on the basis that those offences were committed during the currency of a suspended sentence (albeit one which has now been set aside). I have reached that view because (1) I have not heard full argument on this issue, (2) there may be reasons to distinguish either Dreja and Pennuto, and also because (3) the issue itself may not arise when the sentencing process is undertaken.  However, in formulating the order to set aside the sentencing order of the Magistrate made on 7 September 2021, I propose to order that it be set aside with effect from the day it was initially made.  I have formed this view because the Magistrate was functus officio and the order was beyond power on and from that date.  The order should reflect this.

1. I should also confirm my view that the CBO made by the Magistrate on 7 September 2021 had no continuing effect once it was overtaken, as it were, by the suspended sentence of imprisonment later made by the Magistrate.  Further, the setting aside by this Court of that suspended sentence of imprisonment does not operate to somehow revive the CBO which was earlier made by the Magistrate. 

2. On the basis of these reasons, I made the following orders on 6 December 2022 at the conclusion of the hearing:

   1.The appellant have leave to file the appeal out of time.

   2.Leave to appeal on ground 1 be granted and the appeal be upheld on that basis.

   3.The Order of the Magistrate made on 7 September 2021 to impose a suspended period of imprisonment be set aside with effect from 7 September 2021.

   4.The matter be remitted to the Magistrates Court at Bunbury on 9 December 2022 for resentencing before a different Magistrate in accordance with the law.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SAO

Associate

9 DECEMBER 2022