Merzahi v Wilkinson
[2002] WASCA 124
•10 MAY 2002
MERZAHI -v- WILKINSON [2002] WASCA 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 124 | |
| 10/05/2002 | |||
| Case No: | SJA:1021/2002 | 1 MAY 2002 | |
| Coram: | McKECHNIE J | 1/05/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Sentence reduced | ||
| C | |||
| PDF Version |
| Parties: | SADIQ ALI MERZAHI PETER LESLIE WILKINSON |
Catchwords: | Criminal law Sentencing Need for concurrent sentences Cut on finger Whether 2 years' imprisonment manifestly excessive "Time wasting defence" Whether an irrelevant consideration No new principles |
Legislation: | Crimes Act 1914 (Cth), s 16A |
Case References: | Cameron v The Queen [2002] HCA Kauhanen v R [1999] WASCA 14 Pearce v The Queen [1998] 8 HCA 57; (1998) 194 CLR 610 Pieri v The Queen [2001] WASCA 357 R v Gray [1977] VR 225 Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 Yam v The Queen (1991) 55 A Crim R 116 Dinsdale v The Queen (2000) 175 ALR 315 Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47 Little v The Queen [2001] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174 Pettit v Dunkley [1971] 1 NSWLR 376 R v Chan (1999) 38 A Crim R 337 R v Gallagher (1991) 23 NSWLR 220 R v McCormack [1981] VR 104 R v Shrestha (1991) 173 CLR 48 Rowlands v Caporn [2001] WASCA 66 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Ward (1999) 109 A Crim R 159 Willmott v The Queen [2000] WASCA 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PETER LESLIE WILKINSON
Respondent
Catchwords:
Criminal law - Sentencing - Need for concurrent sentences - Cut on finger - Whether 2 years' imprisonment manifestly excessive - "Time wasting defence" - Whether an irrelevant consideration - No new principles
Legislation:
Crimes Act 1914 (Cth), s 16A
Result:
Appeal allowed
Sentence reduced
(Page 2)
Category: C
Representation:
Counsel:
Appellant : Mr M M Flynn
Respondent : Mr M G A Plummer
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA
Kauhanen v R [1999] WASCA 14
Pearce v The Queen [1998] 8 HCA 57; (1998) 194 CLR 610
Pieri v The Queen [2001] WASCA 357
R v Gray [1977] VR 225
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Yam v The Queen (1991) 55 A Crim R 116
Case(s) also cited:
Dinsdale v The Queen (2000) 175 ALR 315
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Oancea (1990) 51 A Crim R 141
Paunovic (1990) 51 A Crim R 174
Pettit v Dunkley [1971] 1 NSWLR 376
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
R v McCormack [1981] VR 104
R v Shrestha (1991) 173 CLR 48
Rowlands v Caporn [2001] WASCA 66
(Page 3)
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Ward (1999) 109 A Crim R 159
Willmott v The Queen [2000] WASCA 300
(Page 4)
1 McKECHNIE J: After hearing on 1 May 2002 I allowed this appeal against sentence. I indicated that I would publish my reasons in due course. These are the reasons.
Background
2 In June 2001 the appellant was a detainee at the Curtin Immigration Reception Processing Centre. On 1 June a number of detainees were gathered outside the administration area to meet with the business manager of the Department of Immigration and Multi-Cultural Affairs and the Centre Manager of Australasian Correctional Management.
3 As a result of this meeting, 19 detainees expressed their desire to continue protesting in the form of a hunger strike. They were escorted to the Hotel compound so that they could be monitored for health reasons. The appellant was one of them. The appellant, along with others, became agitated and began to inflict self-harm. ACM officers and nursing staff attended the Hotel compound and as a consequence of the detainees' actions they were released from rooms contained within the area. They refused to accept medical treatment. The situation was volatile and it was then alleged that the appellant committed four offences. The offences occurred all within a short time of each other and against the background of increasing volatility and tension within the Curtin Centre.
4 After the detainees were released from the rooms within the Hotel compound, other detainees held within the administration area and the main compound became agitated and restless. The appellant climbed a tree within the hotel compound. While up the tree he was calling to others to come and help participate in destroying property. This was the subject of charge BM1121/02.
5 He also called to others to get the camera from the ACM officer who was videoing the area. He said "He is going to take it to the court and they recognise us all – they recognise us". He then climbed down and wrestled the camera from Officer Birtwistle during the course of which, Officer Birtwistle's finger caught in the strap causing harm to that finger. When the appellant gained control of the camera he threw it over the fence where it was destroyed. The value of the camera was $799. These two incidents are the subject of charges BM 1122/01 and BM 1123/01.
6 Other detainees began to pull down a fence separating the main compound from the Hotel compound sterile area. ACM officers released the 19 detainees from within the Hotel compound area into the
(Page 5)
- administration area. They proceeded through a gate. Officer Wolfe was standing at the gate. She was the only ACM person in the area. The appellant was leading a group coming towards her and pushed her away back against a table. This in summary was the charge BM 1125/01.
7 The appellant was arrested on 11 June 2001 and stood trial in the Broome Court of Petty Sessions before the Stipendiary Magistrate Mr A Bloemen on 14 September 2001. The appellant pleaded guilty to three charges during the course of the hearing and was convicted by the Magistrate of the fourth charge. He was then sentenced as follows:
(1) Complaint No BM 1121/01 – Incited the commission of an offence against the law of the Commonwealth namely to damage Commonwealth property: Crimes Act 1914 s 29(1), Criminal Code (Cth) s 11.4 - 9 months' imprisonment;
(2) Complaint No BM 1122/01 – Did wilfully and unlawfully intentionally damage a property namely a video recorder belonging to the Commonwealth: Crimes Act 1914 s 29(1) - 18 months' cumulative;
(3) Complaint No BM 1123/01 – Intentionally engaged in conduct which caused harm to a Commonwealth public official such harm being caused without the consent of the official and engaged in his conduct because of the official status as a Commonwealth public official: Criminal Code (Cth) s 147.1(1) - 2 years' imprisonment cumulative;
(4) Complaint No BM 1125/01 – Knowing that another person was a Commonwealth public official intimidated the said official in the performance of the official's functions as a Commonwealth public official: Criminal Code (Cth) s 149.1(1) – 9 months' cumulative.
8 After delivering his reasons for judgment and having heard a plea of mitigation the Magistrate made the following brief sentencing remarks:
"The charges or the offences that you committed are most serious. You came here as applicant for refugee status, and when you obtained an entry, which, at the end of the day, was not even a final entrance, you started to cause havoc in the detention centre. I, for one, cannot understand a person who comes to a land, such as Australia, which I can say to you is one of the most peaceful, easy-going people in this world. Yes. I do not understand that a person who applies to come to this land to live in – and I can say from personal experience, Australian
(Page 6)
- people are some of the easiest people to get along with, and to be accepted – that one person so-called leaves a violent society, barely is into the land and then causes very serious damage to property, I would think that a person like that would sit on his knees and pray to God – Allah, Budda; whoever, what religion he may have – every night, three times, to be thankful that they're here.
I can say from personal experience that you have not displayed the truthfulness of the Afghan people, as I've travelled to that land from Kabul to Iraq, to Kandahar to Estelar, and I've never encountered, in the 6 months I travelled there, people of that kind.
You come into this court and call people liars, knowing very well that you were the liar. That certainly does not show in any way, shape or form, any remorse.
The offences which you committed could have been most serious by loss of life or limb. I understand, as I've been told by the prosecutor, the damage was close to $40,000. Maybe we have to take $11,500 of that, but it still is an extensive damage – money that we don't have, and that I certainly don't want my tax money to go to. You acted during that stage, in this court's opinion, as hooligan."
9 There was a query from the interpreter relating to the word "hooligan" and then his Worship continued:
"HIS WORSHIP: Mm? I could one word, other words, but I won't. You acted truly wrong. You have not shown any remorse, you wasted the time of this court – of your lawyer, of the prosecutor, and witnesses; an money – absolutely wasted it, as you had no defence from the beginning, because you lied to your defence counsel, and misled him. You then tried to delay this court case by excuses of translators with witnesses. It is quite clearly made clear by the Supreme Court of this State that courts must consider the term, and that people who commit offences of this nature, which, in this court, are most serious, will not and cannot get away with it.
I will enforce a global sentence – which I can do, Mr Usher?"
(Page 7)
10 Mr Usher was the prosecutor. He pointed out "With respect to the global sentence, your Worship is obliged to specify what is each of the sentences of each of the charges".
11 The Magistrate then imposed a two-thirds non-parole period with all charges cumulative.
12 The total sentence imposed was therefore one of 5 years and the Magistrate set the maximum two-thirds non-parole period. The sentences were backdated to 11 June 2001.
13 The Magistrate did not specifically recount the facts upon which he relied in terms of sentencing but he has presided over the trial there was little necessity to do so.
14 On 1 March 2002 Pullin J extended the time for appeal and granted leave to appeal on grounds which are fully particularised.
15 The first ground is that the sentences were manifestly excessive.
16 It is not submitted by the appellant that sentences of 9 months imprisonment for incitement, and 9 months imprisonment for intimidation are excessive in themselves. It is submitted that sentences of 18 months imprisonment for the damage, and 2 years imprisonment for conduct causing harm are excessive, as is the overall result of 5 years.
17 These submissions must be accepted.
18 In the first place, the decision of the Magistrate to impose what was effectively a global sentence in the particular circumstances of this case brought about the error referred to in Pearce v The Queen [1998] 8 HCA 57 at 45; (1998) 194 CLR 610.
19 In the second place, the damage to the video and the harm caused to the officer's finger were so closely related in time and action as to be truly the one transaction meriting concurrent punishment: Pieri v The Queen [2001] WASCA 357.
20 The next ground of appeal is that the learned Magistrate erred in treating the appellant's initial pleas of not guilty to the charges against him as aggravating factors when imposing sentence.
21 The Magistrate's remark about the money wasting defences are inappropriate. In Yam v The Queen (1991) 55 A Crim R 116 the Full
(Page 8)
- Court of the Supreme Court of Victoria held in respect of similar comments:
"That observation, if carried into the sentencing process, would beyond question have vitiated any sentence produced as a result of that process. It is clear that the observation recorded as having been made by the judge revealed that at the time he made the remark he was prepared when selecting an appropriate sentence to impose upon the applicant, to give effect to a totally irrelevant factor and one which not only was irrelevant but which clearly operated substantially to the prejudice of the applicant."
23 The Magistrate did indicate that the appellant showed no remorse. However, it is impossible to read his comments as limiting the effect of time-wasting and delay only to illustrations of a lack of remorse.
24 Complaint is also made that the Magistrate did not give any weight to mitigating circumstances. The Magistrate did not in fact mention any mitigating circumstances. Under the Crimes Act s 16A a court must take into account various matters as enumerated in s 16A(2). While the Magistrate clearly referred to the nature and circumstances of the offence (s 16A(2)(a)) he has not referred to any other matter.
25 In the circumstances, I am unable to be satisfied that the Magistrate did take into account any matters which might be regarded as mitigatory in effect because he did not mention any.
26 The ground of appeal that the learned Magistrate erred in law in treating the appellant's application for an adjournment of the hearing as an aggravating factor when imposing sentence I have generally dealt with in the previous grounds relating to time-wasting.
27 The final ground is that the learned Magistrate erred in law when sentencing the appellant in attributing to him responsibility for damage to an approximate value of $11,500.
28 Although this was a mistake by the Magistrate, it did not lead to error.
(Page 9)
29 There was a great deal of damage done as a result, in part, of the appellant's incitement. However, as no complaint is made about the length of the sentence, it is unnecessary to further consider the matter.
30 For the reasons given I consider there was error in the sentencing process such as to warrant intervention by this court.
31 I have already indicated that the charge of damage to the video camera and harm to the officer should attract concurrent sentences. I regard the incitement and the charge of intimidation as distinct conduct as is also the combined damage to the camera and harm. Although it is submitted that a sentence of 18 months for damaging the video camera was excessive, I am unable to agree. The damage cannot be divorced from the circumstances in which it occurred which, as I have described, were in the course of a very volatile situation. The damage was done for the purpose of preventing subsequent identification of offenders. The element of general deterrence is such that matters personal to the appellant have lesser weight. It follows that I do not interfere with the sentence of 18 months.
32 I do, however, regard the sentence of 2 years for harm to the finger to be excessive (BM 1123/01). I consider this sentence was infected by the error of the irrelevant considerations of the time-wasting defence and the failure to take into account any mitigating factors. The offence was serious. It was proper that it attract a sentence of imprisonment in the circumstances. There is no reason why it should have resulted in the maximum sentence. Accordingly, I would set aside the sentence of 2 years' imprisonment and imposed in lieu a sentence of 12 months' imprisonment.
Conclusion and Orders
33 It is for these reasons that I allowed the appeal, set aside the sentence on complaint no BM1123/01 and restructured the other sentences as follows:
Complaint No BM 1121/01 – 9 months.
Complaint No BM 1122/01 – 18 months to be served cumulatively.
Complaint No BM 1123/01 – 12 months to be served concurrently with BM 1122/01 but cumulatively on BM 1121/01.
(Page 10)
- Complaint No BM 1125/01 – Sentence of 9 months to be served cumulatively upon the other sentences.
34 The total sentence is therefore 3 years imprisonment backdated to 11 June 2001. The appellant to serve a term of 18 months imprisonment from 11 June 2001 and then to be released on a recognisance release order in the sum of $5000, to be of good behaviour for a period of 18 months from 10 December 2002.
35 I did not need to determine whether a term of two-thirds non-parole period is outside the range of a sound sentencing discretion because of the effect of the new sentence.
36 As the new sentence did not now exceed 3 years I made a recognisance release order.
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