McCormick v Director of Public Prosecutions for Western Australia
[2022] WASC 275
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCCORMICK -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 275
CORAM: TOTTLE J
HEARD: 10 AUGUST 2022
DELIVERED : 25 AUGUST 2022
FILE NO/S: SJA 1034 of 2022
BETWEEN: ORLANDO FECHIN MCCORMICK
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1034 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R YOUNG
File Number : PE 3515 of 2022
PE 3516 of 2022
Catchwords:
Criminal law - Appeal - Sentencing - Assaulting public officers - Where guilty pleas were entered at the first reasonable opportunity - Whether total effective sentence of 8 months imprisonment, suspended for 12 months, was manifestly excessive - Whether magistrate failed to discount sentence imposed to reflect guilty pleas - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Code Act Compilation Act 1913 (WA), s 74A(2)(a), s 172(2), s 318(1)(d), s 318(1)(d), s 318(1)(m)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(8)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | C Townsend |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Alford v The State of Western Australia [2018] WASC 186
Ashworth v The State of Western Australia [2006] WASCA 36
Bedford v Binnekamp [2021] WASC 299
Briggs v Houlihan [2018] WASC 301
Crossley v Cole [2006] WASC 43
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Green v The Queen [1995] WASCA 139
Inglis v Pinch [2016] WASC 30
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
Lockyer v The Director of Public Prosecutions [2022] WASC 207
Lyons v The State of Western Australia [2022] WASCA 81
Minton v McAlinden [2017] WASC 99
Moran v Baker [2019] WASC 251
Neach v Hobbs [2021] WASC 135
Ninyette v Holmes [2015] WASC 287
O'Brien v Narang [2018] WASC 376
Quinn v The State of Western Australia [2006] WASCA 99
Quirk v The State of Western Australia [2019] WASCA 76
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schulz v Coyne [2019] WASC 329
Slade v The State of Western Australia [2019] WASCA 65
The Queen v Leucus (Unreported, CCA SCt of WA; Library No 950130, 24 March 1995)
The State of Western Australia v Delaney [2020] WASCA 93
Walker v Jarvis [2021] WASC 182
Weston v Nicolao [2018] WASC 316
Winmar v Clark [2015] WASC 314
TOTTLE J:
Introduction
On 3 March 2022 the appellant pleaded guilty to the following five charges:
(a)disorderly behaviour in public, contrary to s 74A(2)(a) of the Criminal Code (the Code) (PE 3512/2022);
(b)giving false personal details to police, contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (PE 3513/2022);
(c)obstructing public officers, contrary to s 172(2) of the Code (PE 3514/2022); and
(d)two charges of assaulting a public officer who was performing a function of his office, contrary to s 318(1)(d) of the Code (one charge, PE 3515/2022, related to an assault by kicking a police officer in the knee and the other charge, PE 3516/2022, related to an assault by spitting in the face of a police officer) (the assault charges).
The appellant's guilty pleas were entered at the first reasonable opportunity. The appellant was sentenced to a total effective sentence of 8 months imprisonment, suspended for 12 months for the assault charges. Fines totalling $1,200 were imposed in relation to the other offences and the appellant was ordered to pay costs of $259.30.
The appellant applies for leave to appeal against sentence. The appellant contends that the magistrate failed to discount the sentence imposed to reflect his guilty pleas and that the sentences imposed for the assault charges were manifestly excessive as to type. The grounds of appeal are set out later in these reasons. For the reasons given below none of the grounds have a reasonable prospect of success. Leave to appeal in respect of each ground will be refused and the appeal will be dismissed.
The facts
There was no dispute about the material facts and the following statement was read to the magistrate:
At about 10.10 pm on Friday, 31 December last year the accused was at the intersection of William and Francis Street in Northbridge. Whilst at this location the accused began to interfere with the temporary bollards that were erected due to the road being closed for the New Year’s celebration. Workers manning the bollards asked the accused to stop touching the bollard. The accused replied in a loud voice, “F-off. F-you.”
The accused then said this loud enough for members of the public to hear. This included nearby police, who were on patrol. And further, due to the accused’s behaviour, it was decided that he would be issued a move-on order. Senior Constable Whitney asked the accused to provide his name, date of birth and current address. The accused replied “Ned Broad” and gave a date of birth of 23 August 2003 and that he resided at an address in Dianella. He was asked a number of times by police if these particulars were correct and he repeated the details.
These details did not appear on the police database. The accused dropped his wallet from his pocket. Inside the wallet contained the identification in the name of the accused. The move-on order was completed and he was informed that he would be summonsed. And further, the accused grabbed the police-issue mobile phone from the hand of Constable Hawley. The accused was apprehended and the mobile phone was retrieved. The accused began to run from police.
He crossed William Street, where he was apprehended. The accused lashed out at police again, hitting his head against a storefront. He continued to yell and scream. Due to his behaviour, he was placed in handcuffs. For the assault, whilst police held his arms, the accused actioned a front kick with his left leg, made deliberate and forceful contact with the right knee of Senior Constable Whitney.
The force of the kick caused immediate pain, but no injury. Then the accused was assisted to his feet in order to walk to a police vehicle. At this point the accused faced Constable Hawley. The accused deliberately spat in the direction of Hawley’s face. This hit him just above his left eye. He was eventually placed in the back of a police vehicle. Those are the facts.
The plea in mitigation
The following matters were raised by the appellant's counsel in mitigation:
(a)The appellant was young, only 18 years of age.
(b)The appellant entered his pleas of guilty at the earliest opportunity.
(c)The appellant had no prior criminal record.
(d)The appellant had been taken to a hostel by his father who had been unable to manage the appellant's abusive behaviour.
(e)Prior to the offending the appellant had consumed alcohol and prescription drugs. He left the hostel and went to Northbridge.
(f)In the course of his offending the applicant started to harm himself. The appellant's erratic behaviour subsequently led to the appellant being taken to hospital and sedated.
(g)The appellant was undertaking a Mining and Exploration Certificate III at TAFE, which he attended four days a week.
(h)The appellant had taken steps towards rehabilitation engaging with the Drug and Alcohol Youth Service (DAYS).
The magistrate's sentencing remarks
The magistrate's sentencing remarks were as follows:
Now you have pleaded guilty to these five offences and come against the background where you say you have no memory of what occurred as a result of alcohol and prescription drug use. Unfortunately this was sustained bad behaviour on your part, it was not just a momentary flash of anger. This extended for quite some period of time. So you drew attention to yourself by way of behaving in a somewhat unusual and obnoxious fashion which attracted the attention of the police.
The police were giving you a move on notice. That was the easy way to do things, is to complete the notice, just leave the area and it would have all been finalised. But instead things escalated and you grabbed the officer’s mobile phone, you have run away from the police. You then were behaving in a very erratic way, banging your head against a wall. And then, whilst you were being apprehended you kicked one officer in the knee, and you spat in the face of another officer.
Now these matters raise a number of concerns that have to be addressed in sentencing. And there is certainly a very strong need for [deterrence], personal to a certain extent, although you have got no prior record that might have less weight, but certainly on a broader basis to deter people generally from this sort of behaviour is a very important consideration. Indeed in my view the most important consideration on the sentencing today.
…
So the bottom line is that the police are entitled to do their job and expect to be treated with a level of courtesy and respect. And police and their families are entitled to be expected that they will return home safely after performing their work. And it was said by President Reynolds in the Children’s Court that an assault on police is essentially an assault against the community generally because the police act on behalf of and serve the community.
Now it depends of course on the facts of any given case, and assault can vary widely in its circumstances. But I certainly share the prosecutor’s view that a spit is a particularly egregious form of assault. Firstly, it achieves absolutely nothing, it is just a pointless gesture of defiance and contempt in the situation that you were being restrained by police. And again, if you had simply submitted to that, cooperated, gone quietly, none of this would have happened.
But you kicked out at a police officer and that assault is bad enough, and then to follow that up was a spit to the face. It is particularly serious. Now it is just a matter of pure luck that it did not land on exposed skin, it did not land in the eyes. And there is no information before me that suggests the officer would have required any ongoing blood testing, but that is always a risk that police are subjected to. And I would certainly agree that spitting at a public officer places this as being at the upper end of the scale of seriousness.
Now, in mitigation you have pleaded guilty. Obviously you are a young person, you are only 18 years of age, you turned 18 in August last year. I have read the letters and the submissions on your behalf. You have got good family support although there seem to be some difficulties in that regard. But nonetheless, that the family remains supportive and I accept that that is a protective factor going forward. You have got no prior record.
You are involved with a TAFE course, and to you credit you have engaged in some rehabilitation since this matter occurred. And I am satisfied that you are genuinely remorseful and embarrassed about what occurred, and looking forward to move on in a more positive way going forward.
…
Now it is my view, Mr McCormick, that the circumstances of the offences - in fact, it was a prolonged and sustained incident.
It involved two assaults on two separate police by way of a kick, and most concerningly a spit. It is such that you are at the stage where particularly [deterrence] are so important that imprisonment is the only appropriate disposition. But having regard to all factors again, both aggravating and mitigating, I say that they should be suspended particularly having regard to your plea of guilty and your very young age, and the other positive factors to which I have referred.
In relation to charge number 3515, it is the assault by way of the kick, it will be three months imprisonment. 3516, the assault by way of the spit, it will be five months imprisonment. Those terms are to be cumulative, so eight months in total, but suspended for a period of 12 months. So should you reoffend in the next 12 months by any way which involves possible imprisonment then you will be liable to serve that eight months in custody unless it can be demonstrated that it would be unjust to do so. The other matters will warrant fines. So disorderly conduct, a fine of $500. False name charge, $200. The obstruct, $500. And court will cost you [$259.30]. All right, you can stand down, thank you.
Leave to appeal
The appellant requires leave to appeal because this is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA).[1] The court must not grant leave to appeal unless it is satisfied that the ground has a reasonable prospect of success.[2] In order for the court to be satisfied that this threshold has been met, the ground of appeal must be shown to have a rational and logical prospect of succeeding, meaning, a real prospect of success.[3]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The grounds of appeal
The grounds of appeal were as follows:
1.The Learned Magistrate erred in law by failing to discount the sentences imposed arising from the Appellant's pleas of guilty pursuant to section 9AA of the Sentencing Act 1995 (WA).
2.The Learned Magistrate erred by imposing a sentence in respect to charge 3515/2022, that was manifestly excessive with respect to type of sentence, having regard to the circumstances both referable to the offending and personal to the offender.
3.The Learned Magistrate erred by imposing a sentence in respect to charge 3516/2022, that was manifestly excessive with respect to type of sentence, having regard to the circumstances both referable to the offending and personal to the offender.
Grounds 2 and 3: Implied error by the sentencing magistrate
It is convenient to deal with grounds 2 and 3 first.
By alleging that the sentence is manifestly excessive the appellant is asserting the existence of an implied error. An implied error will be established where the final result is so clearly unreasonable or unjust, that the court must conclude that a substantial wrong has occurred.[4]
[4]Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J); Slade v The State of Western Australia [2019] WASCA 65 [36].
The principles applicable to sentencing appeals in which manifest excess is alleged were recently restated by the Court of Appeal in Lyons v The State of Western Australia[5] in the following terms:
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
[5] Lyons v The State of Western Australia [2022] WASCA 81 [69] - [72].
The discretion conferred on the sentencing magistrate is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.[6]
Maximum penalty and customary standards of sentencing
[6] The State of Western Australia v Delaney [2020] WASCA 93 [23](2).
The maximum penalty for each of the charges was 7 years imprisonment.[7] The total maximum penalty for the assault charges, therefore, was 14 years imprisonment.
[7] The Criminal Code, s 318(1)(m).
As Derrick J observed in Jetta v Director of Public Prosecutions for Western Australia,[8] there is no tariff or established range of sentences for offences of assaulting a public officer performing a function of their office by spitting. A review of the cases revealed that they all turn on their individual facts and circumstances and that often there are considerations of totality (as is the case in the present appeal). Derrick J concluded that:[9]
Ultimately, the most that can be said from a review of these cases, it seems to me, is that absent totality considerations a sentence of 9 months imprisonment for conduct involving spitting in the face of a prison officer is not outside the range of sentences commonly imposed for such offences.
[8] Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [133].
[9] Jetta v Director of Public Prosecutions for Western Australia [133].
The appellant's counsel referred to a number of cases (Alford v The State of Western Australia,[10] Minton v McAlinden[11] and Jetta v Director of Public Prosecutions for Western Australia) in which he contended, 'similar sentences to the current case have been imposed for what, it is submitted, involved significantly more serious offending'.[12] The cases do not, however, support that contention.
[10] Alford v The State of Western Australia [2018] WASC 186.
[11] Minton v McAlinden [2017] WASC 99.
[12] Appellant's outline of submissions filed on 13 June 2022 [56].
In Alford v The State of Western Australia the appellant pointed a loaded firearm at two police officers, resulting in two charges of assaulting a public officer in circumstances of aggravation (the circumstances of aggravation being that the appellant was armed with a dangerous weapon). Due to the aggravation, the maximum penalty for this offence was 10 years imprisonment. The appellant was sentenced on each charge to 2 years imprisonment (reduced from 3 years to take into account matters of totality) to be served cumulatively. This sentence was upheld on appeal. Not only was the offending significantly more serious than in the present case but so were the sentences. With respect, the sentence imposed in Alford cannot not be described as similar to that imposed on the appellant in this case.
In Minton v McAlinden the appellant punched a police officer in the face, causing a laceration that required stitches, he punched two further police officers in the head and applied pressure to the throat of a fourth police officer. The appellant suffered from mental illness and had previously been the victim of an assault by a police officer. The first offence (where the police officer suffered bodily harm) attracted a mandatory minimum penalty of 6 months imprisonment. The appellant was sentenced to 14 months imprisonment on the first charge, and 7 months imprisonment on the remaining charges, with all of the terms to be served concurrently. The appellant was unsuccessful in his appeal on the ground that the sentence was manifestly excessive. Once again the sentences of immediate imprisonment of 14 months and 7 months respectively cannot be described as similar to the sentence imposed on the appellant.
In Moran v Baker[13] the appellant, while imprisoned at Acacia Prison, punched a prison officer once to the side of the head, causing immediate pain. The appellant was upset at the time because he believed he should have received a greater allowance. The appellant was sentenced to 11 months imprisonment for the assault on the prison officer (reduced from 12 months in recognition of the appellant's guilty plea), which was part of a larger total effective sentence of 2 years and 1 month imprisonment. This sentence was upheld on appeal. I accept, as the respondent's counsel submitted, that the seriousness of the offending in Moran was comparable to the seriousness of the offending in the present case but, again as was submitted by the respondent's counsel, the appellant received a less severe sentence.
[13] Moran v Baker [2019] WASC 251.
In Jetta v Director of Public Prosecutions for Western Australia the appellant was a sentenced prisoner residing in Hakea Prison and the victim was a prison officer. The assault involved the appellant spitting in the victim's face, with the spit spraying the entirety of the victim's face and spittle landing in the victim's eyes and mouth. The appellant was diagnosed with FASD and this was taken into account as a mitigating factor when the appellant was resentenced on appeal to a sentence of 6 months imprisonment, to be served cumulatively on an 8 month sentence already being served. This sentence also took into consideration the appellant's early plea of guilty and issues of totality. I accept that the assault by spitting was more serious in Jetta than the assault by spitting in this case, because in Jetta the spittle entered the victim's mouth but given that it was, as the magistrate observed, just a matter of 'pure luck' that the present appellant's spittle did not enter his victim's mouth or eyes, I do not accept the contention that the offending in Jetta was 'significantly more serious'. A further reason why the sentence in Jetta does not assist the appellant is because the offender in Jetta suffered from a deprived and dysfunctional childhood and suffered from FASD and had a significant intellectual disability - all matters of mitigation which were not available to the appellant. Finally, it may be observed that, as the magistrate said in his sentencing remarks, the appellant's offending involved sustained bad behaviour and not a momentary flash of anger.
The appellant's counsel referred to two other assault by spitting cases though not in support of the contention referred to at [14]. In Crossley v Cole[14] the appellant assaulted a police officer by spitting on her back, neck and head region while police were attempting to place him in a police van. The appellant's mitigating factors were similar to the appellant's in this present appeal. The appellant in Crossley was sentenced to an immediate term of imprisonment of 6 months and 1 day, to be served concurrently with a previously suspended term of imprisonment, also of 6 months and one day. This sentence was upheld on appeal.
[14] Crossley v Cole [2006] WASC 43.
In Walker v Jarvis[15] the appellant spat in the face of a police officer in the course of being arrested and placed in handcuffs. The appellant was originally sentenced to a term of imprisonment of 8 months, conditionally suspended for 12 months, which became 2 months imprisonment to be served cumulatively when the appellant reoffended. The appellant had severe mental health issues. On appeal the sentence remained the same because the total effective sentence did not infringe the totality principle.
[15] Walker v Jarvis [2021] WASC 182.
It is difficult to draw too much from earlier decisions because of the great variety in the circumstances of the offending and from the circumstances of the offenders. A total effective sentence of imprisonment of 8 months suspended for 12 months for two offences of assaulting a public officer in performance of his function, with one offence constituted by a kick and the other by spitting in the public officer's face, is not inconsistent with earlier sentencing decisions and, indeed may be described as comparatively lenient. In this respect I refer to the observations I make at [33] below.
Seriousness of the offending
I agree with the magistrate's analysis of the factors that aggravated the seriousness of the offending which may be summarised as follows:
(a)The inherent seriousness of an assault by spitting (a particularly egregious form of assault). The appellant was in close proximity to the victim and spat directly in the victim's face, posing a serious risk of transmissible disease to the victim.
(b)The assaults occurred in the context of 'sustained bad behaviour' by the appellant. The assaults did not occur as the result of a 'momentary flash of anger'.[16]
(c)The appellant had already been issued a move-on order by police but had continued to behave erratically and aggressively in a public place.
(d)Police are required to deal with people behaving in aggressive ways and 'an assault on police is essentially an assault against the community generally because the police act on behalf of and serve the community'.[17]
[16] ts 8 - 9.
[17] ts 10.
The only factor that mitigates the seriousness of the offending is that the spittle did not land in the victim's eyes or mouth and, to repeat for emphasis, this was a matter of luck rather than judgment.[18]
Personal circumstances of the appellant
[18] ts 5.
The appellant is an 18 year old man with no prior criminal record. His youth and his good character, along with his guilty plea, constituted significant mitigation
The appellant has a supportive family and has made efforts since the offending to improve himself, including by attending a TAFE course to obtain his Mining and Exploration Certificate III.
The appellant has also accessed rehabilitation services through DAYS to address his alcohol consumption and prescription medication use.
The appellant has shown remorse for his actions and has accepted responsibility as evidenced by his pleading guilty at the first reasonable opportunity.
Disposition
Section 6(1) of the Sentencing Act 1995 (WA) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors. Section 6(4) provides that 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.
I am satisfied that the seriousness of the appellant's assaults on the two police officers was such that it was open to the magistrate to conclude that imprisonment was the only appropriate sentencing disposition.
The sentences of imprisonment of 3 months and 5 months respectively (suspended for 12 months) are well within the range of appropriate sentences for offences of this kind and, as I have already indicated, they were comparatively lenient sentences.
As the magistrate said in his sentencing remarks, deterrence, in particular general deterrence, was a significant sentencing consideration and, with respect, I endorse his Honour's observations in that respect.
In my view the underlying flaw in grounds 2 and 3 and the submissions made in support of them is that they fail to acknowledge the importance of general deterrence in sentencing for assaults on public officers and that the mitigating antecedents of offenders will usually play a lesser role in such cases.[19] There is a need to protect public officers from assaults by demonstrating through the sentencing process that such assaults will not be tolerated.[20] In Quinn v The State of Western Australia,[21] McLure JA referred to the decisions of the Court of Criminal Appeal and the Court of Appeal in which sentences imposed for the offence of assaulting a public officer when performing a function of his or her office had been reviewed and observed:[22]
The authorities endorse the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence.
[19] Quirk v The State of Western Australia [2019] WASCA 76 [58]; Ashworth v The State of Western Australia [2006] WASCA 36 [98]; Green v The Queen [1995] WASCA 139.
[20] The Queen v Leucus (Unreported, CCA SCt of WA; Library No 950130, 24 March 1995) 3.
[21] Quinn v The State of Western Australia [2006] WASCA 99.
[22] Quinn v The State of Western Australia [19]
In my judgment the suspended terms of imprisonment imposed for the assault charges, and the length of those terms, were not unreasonable or plainly unjust.
I refuse leave to appeal in respect of grounds 2 and 3.
Ground 1: Express error by the sentencing magistrate
I turn now to consider whether the magistrate committed an express error in failing to reduce the appellant's sentence to reflect his plea of guilty at the first reasonable opportunity as required under s 9AA of the Sentencing Act 1995 (WA).
Section 9AA of the Sentencing Act provides:
(1)In this section -
…
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
…
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence 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.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Although the grounds of appeal did not distinguish between the sentences imposed in respect of the assault charges and the fines imposed in respect of the other charges it was apparent from the appellant's submissions that the appellant did not challenge the imposition of the fines and it is thus unnecessary to engage with the question of whether s 9AA of the Sentencing Act applies when a court imposes fines.[23]
[23] For relevant discussion of the issues see Lockyer v The Director of Public Prosecutions [2022] WASC 207 [33]; Neach v Hobbs [2021] WASC 135 [24] - [26]; Inglis v Pinch [2016] WASC 30 [50] - [54].
The opposing arguments in respect of this ground may be summarised as follows.
The appellant contends that it may be inferred from the fact that the magistrate did not state that he had reduced the head sentence in accordance with s 9AA(2) of the Sentencing Act and state the extent of the reduction that he did not do so and further that the magistrate referred to the appellant's guilty pleas in the context of his observations about suspending the terms of imprisonment suggests that his Honour considered that by suspending the sentence of imprisonment he was giving effect to the reduction required by s 9AA(2) of the Sentencing Act. The appellant referred to and relied on the decisions of O'Brien v Narang,[24] and Bedford v Binnekamp.[25]
[24] O'Brien v Narang [2018] WASC 376.
[25] Bedford v Binnekamp [2021] WASC 299.
The respondent contends that the inference that the magistrate failed to reduce the sentences in recognition of the appellant's guilty pleas should not be drawn because the magistrate had referred on several occasions to the guilty pleas and to their mitigatory effect. Further, the respondent referred to the leniency of the sentences as indicating that appropriate reductions in the term had been given and no error is to be inferred from his Honour's reference to the guilty plea in the context of his remarks about suspending the terms of imprisonment. The respondent distinguished the present case from cases in which cases an appeal was allowed in circumstances where the magistrate did not refer to the plea of guilty, or only referred to the fact that the offender pleaded guilty, but did not otherwise mention the guilty pleas or their effect on the sentencing.[26] The respondent contended that this case was similar to the facts in Ninyette v Holmes.[27]
[26] Schulz v Coyne [2019] WASC 329; Winmar v Clark [2015] WASC 314; Weston v Nicolao [2018] WASC 316; Briggs v Houlihan [2018] WASC 301.
[27] Ninyette v Holmes [2015] WASC 287.
A failure to comply with s 9AA(5), that is, a failure to state the fact and the extent of a reduction in sentence, does not on its own amount to a material error, because such a failure does not necessarily mean that a discount was not given.[28]
[28] Weston v Nicolao [2018] WASC 316 [20].
I am satisfied that the magistrate took the appellant's guilty pleas into account and reduced the term of imprisonment imposed in respect of the assault by spitting charge. My reasons are as follows.
First, the magistrate took the appellant's guilty pleas at the beginning of the hearing after counsel had asked him to accept that they were pleas 'at the earliest [opportunity]'. In those circumstances it is unlikely that his Honour would have overlooked the guilty pleas or the significance of them being made at the earliest opportunity. Plainly his Honour did not overlook the pleas because he commenced his sentencing remarks with a reference to the fact the appellant had pleaded guilty. When the magistrate turned to deal with mitigation, the very first mitigatory factor to which he referred was the guilty pleas and that is difficult to reconcile with the contention that the magistrate failed to take the guilty pleas into account. The magistrate referred to the pleas again a few moments later when he explained why he would suspend the terms of imprisonment. Read in context and having regard to the sentencing remarks as a whole I do not accept that the reference to the guilty pleas in the context of suspending the sentence can be taken to indicate that the magistrate intended the suspension of the term of imprisonment was a reduction made in purported compliance with s 9AA(2) of the Sentencing Act. When considering whether to suspend the sentence the magistrate was required to consider all the circumstances, both aggravating and mitigating,[29] and his Honour's reference to the guilty pleas in the context of a consideration of suspending the sentence is not indicative of the error the appellant would attribute to him.
[29] Dinsdale v The Queen [85] - [86] (Kirby J), [26] (Gaudron & Gummow JJ).
Secondly, as I have observed in dealing with grounds 2 and 3, the sentences imposed in relation to the assault charges were lenient. It is not possible to infer by a process of reverse calculation that his Honour must have failed to reduce the head sentence imposed in respect of the assault by spitting by the maximum of 25% permitted by s 9AA(4) of the Sentencing Act.
Conclusion
Leave to appeal in respect of grounds 1, 2 and 3 will be refused. The appeal will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
25 AUGUST 2022
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