Moran v Baker
[2019] WASC 251
•8 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MORAN -v- BAKER [2019] WASC 251
CORAM: HALL J
HEARD: 14 JUNE 2019
DELIVERED : 14 JUNE 2019
PUBLISHED : 8 JULY 2019
FILE NO/S: SJA 1057 of 2019
BETWEEN: DANIEL ALLAN MORAN
Appellant
AND
ANDREW BAKER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R YOUNG
File Number : MI 7139 OF 2017
Catchwords:
Criminal law – Appeal against conviction – Whether plea properly entered – Whether appellant intoxicated when plea entered
Criminal law – Appeal against sentence – Assault public officer – Whether 11 months’ imprisonment manifestly excessive – Whether sentencing magistrate erred in not making an order for a pre-sentence report – Whether the sentencing magistrate demonstrated bias
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Sentencing Act 1995 (WA), s 20
Result:
Leave to appeal refused. Appeal dismissed.
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Borsa v The Queen [2003] WASCA 254
Fowler v The Queen [2002] WASCA 296
Gavin v The Queen (1992) 6 WAR 195
Higgins v Worthington [2003] WASCA 19
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Minton v McAlinden [2017] WASC 99
Pilkington v The Queen [1955] Tas SR 144
Quinn v The State of Western Australia [2006] WASCA 99
Snook v The State of Western Australia (No.2) [2015] WASCA 29
Topic v The State of Western Australia [2013] WASCA 157
Webster v The Queen [2015] WASCA 20
Wilhelm v The State of Western Australia [2013] WASCA 188
Wright v McMurchy [2012] WASCA 257
HALL J:
Summary
This appeal against both conviction and sentence was heard on 14 June 2019. At the conclusion of the hearing I gave brief reasons for refusing leave to appeal and dismissing the appeal. I said that more detailed reasons would be published in due course.
The appellant appeared in the Magistrates Court on 5, 6 and 7 February 2019 in relation to various charges including one charge of assaulting a public officer. He entered pleas of guilty to the charges and was sentenced to a total effective sentence of 2 years and 1 month imprisonment. The sentence on the charge of assaulting a public officer was 11 months' imprisonment.
The appellant sought leave to appeal against his conviction on the charge of assaulting a public officer on the basis that he alleged his plea of guilty to that charge was not properly entered. He also sought leave to appeal against the sentence of 11 months' imprisonment on that charge on the basis that it was alleged to be manifestly excessive, that the magistrate erred by not ordering a pre‑sentence report and that the magistrate was biased. The convictions and sentences imposed for the other charges dealt with at the same time were not challenged.
The appeal notice was filed 29 April 2019 and an extension of time was required. Bearing in mind that the appellant was self‑represented on the appeal and was in custody following the sentencing, an allowance in complying with the time limit should be afforded. An extension of time was allowed. An urgent appeal order was also sought by the appellant and such an order was made by Strk AJ on 13 May 2019.
Leave is required for each ground of an appeal brought against a decision of a magistrate: s 9(1) Criminal Appeals Act 2004 (WA). The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 9(2). Unless the court gives leave to appeal on at least one ground the appeal is taken to have been dismissed: s 9(3). At the conclusion of the hearing of the appeal on 14 June 2019 I was satisfied that none of the grounds of appeal had a reasonable prospect of succeeding. Accordingly, leave to appeal was refused and the appeal was dismissed.
Facts of the offence
The appellant was imprisoned in 2017 for an unrelated matter. As at 5 May 2017 he was at Acacia Prison. An incident occurred where he became upset because he believed he should have received a greater allowance. He argued with the victim, a prison officer, and said to him, 'I will knock you out, cunt.' The prison officer replied, 'What did you say?' and turned to face the appellant, who then punched the prison officer once to the side of the head, causing immediate pain. A second prison officer was present, but was unable to intervene before the punch landed. The victim did not suffer any lasting effects.[1]
[1] Magistrates Court ts 4, 6 February 2019.
The appellant was charged with assaulting a public officer in relation to this incident and pleaded not guilty to that charge. The matter was set down for trial to commence on 26 February 2018.[2] In the meantime, the appellant completed his previous sentence of imprisonment and was released on bail in relation to the assault public officer charge on 13 December 2017.
[2] Prosecution Notice dated 7 February 2019.
Facts of other offences dealt with at the same time
Though this appeal only relates to the conviction and sentence on the charge of assaulting a public officer, the other matters dealt with at the same time are relevant to this appeal, particularly in relation to an assessment of whether the sentence imposed was manifestly excessive (because that sentence must be viewed in the context of the larger sentence of which it formed part). It is therefore necessary to summarise the facts of the other offending.
On 26 February 2018, the appellant failed to appear in the Magistrates Court for trial on the charge of assaulting a public officer. A warrant for his arrest was issued.
On 22 March 2018, an incident in Inglewood drew the appellant to the attention of police. For convenience I shall hereafter refer to this as the 'Inglewood Incident'. Following the Inglewood Incident, the appellant was arrested on 23 March 2018 and placed on a hospital order.[3]
[3] Prosecution Notice dated 7 February 2019.
The Inglewood Incident involved the appellant approaching a man who was outside his home with his wife and children. He swore at the man, and the man's family retreated into their front garden, behind a gate, which the man stood in front of to block the appellant's access. The appellant spoke about terrorist attacks, produced a Stanley knife from his pocket, extended the blade, approached the man and said, 'Now we will see what happens.' The appellant kept advancing towards the man until he was within about two metres of him. The man ran away to avoid him.
Police officers arrived and the appellant again produced the Stanley knife. When challenged by the police officers he ran and was pursued for approximately 800 metres. He then stopped, turned to face a police officer who was in pursuit, took the Stanley knife out again and said, 'I'm going to kill you', whilst being about five metres away from the officer.[4]
[4] Magistrates Court ts 5 ‑ 6, 6 February 2019.
In relation to the Inglewood Incident the appellant was ultimately[5] charged with two counts of threat to harm and one count of being armed in a way that may cause fear. He was later found to be in possession of methylamphetamine and was charged with one count of possession of a prohibited drug.[6] He was also charged with a breach of bail in relation to his failure to appear at the trial on 26 February 2018 (first breach of bail).
[5] The threats to harm were downgraded from threats to kill, Magistrates Court ts 2, 24 October 2018.
[6] Magistrates Court ts 18, 14 December 2018, Magistrates Court ts 2, 24 October 2018.
History of the court proceedings
Following his arrest on 23 March 2018 the appellant appeared in the Magistrates Court on a number of occasions throughout 2018. He indicated he would plead guilty to the Inglewood Incident charges once the two original counts of threat to kill were downgraded to threats to harm.[7] However, he maintained his plea of not guilty to the charge of assaulting a public officer and that charge was re‑listed for a trial on 1 July 2019.[8]
[7] Magistrates Court ts 2, 24 October 2018.
[8] Magistrates Court ts 3, 9 November 2018.
On 14 December 2018, the appellant appeared in the Magistrates Court and was sentenced in relation to the possession offence, the first breach of bail and an unrelated criminal damage offence. For those three offences he received a global fine of $1,000. [9]
[9] Magistrates Court ts 25, 14 December 2018.
At the same appearance, the appellant was placed on a pre‑sentence order of 12 months' duration in relation to the Inglewood Incident offences. The first review date was set at 29 January 2019.[10] Community Corrections was unable to contact the appellant after 14 December 2018 and he did not appear at the PSO review on 29 January 2019.[11]
[10] Magistrates Court ts 23 ‑ 25, 14 December 2018.
[11] Magistrates Court ts 2 ‑ 3, 6 February 2019, Prosecution Notice dated 7 February 2019.
On 5 February 2019 the appellant came to the attention of passing police and was arrested. He was charged with a breach of bail for failing to appear at the PSO review (second breach of bail). He was also charged with providing false details, as he identified himself to police by a false name.[12]
[12] Magistrates Court ts 12, 5 February 2019.
When the appellant was brought before a magistrate later on 5 February 2019 the magistrate was concerned that the appellant was not in a fit state to be dealt with because he appeared to be intoxicated. The matter was adjourned to the following day and the appellant was remanded in custody.[13]
[13] Magistrates Court ts 12 ‑ 14, 5 February 2019.
On 6 February 2019, the appellant again appeared and was represented by a lawyer. He pleaded guilty to the remaining charges, including the assault public officer charge. The PSO was also cancelled and the appellant was therefore liable to be sentenced for the Inglewood Incident offences as well. After hearing sentencing submissions the magistrate adjourned the proceedings to the following day.
On 7 February 2019 the appellant was sentenced to a total effective sentence of 2 years and 1 month imprisonment, which consisted of the following individual sentences. In relation to the assault public officer charge – 11 months (head sentence). In relation to each threat to harm charge – 7 months (cumulative on each other and on the head sentence). In relation to the being armed charge – 6 months (concurrent). In relation to the second breach of bail – 3 months (concurrent). In relation to the give false details charge – 1 month (concurrent).
The guilty plea
As previously noted, prior to 6 February 2019 the appellant had maintained that he was not guilty of the charge of assaulting a public officer. However, on that day he changed his plea to guilty. The circumstances pertaining to the entering of that plea are relevant to the appeal against conviction.
When the appellant appeared on 5 February 2019, following his arrest earlier that day, the magistrate had a forensic mental health report which indicated that it was suspected that the appellant was 'intoxicated from substances'. The magistrate asked the appellant whether that was the case and he denied it, saying that he was only tired after having 'a pretty long night'. The magistrate decided to remand the appellant in custody to the following day so that the appellant could be assessed by a forensic mental health nurse.
On 6 February the appellant was represented by a lawyer, who said that she had been dealing with the appellant for 'a while now'. The lawyer referred to the outstanding charges and the magistrate noted that the assault public officer charge had not yet been dealt with. In respect of that charge his Honour asked the appellant's lawyer, 'there's a plea of not guilty entered. Is that still the case?' to which the appellant's lawyer replied:[14]
Look, your Honour, I've got recent instructions, as of today, to plead guilty to that one as well, which is the assault public officer … I think he would like everything dealt with today if possible, your Honour.
[14] Magistrates Court ts 2, 6 February 2019.
The magistrate then read the charge to the appellant and asked if he understood it. The appellant said that he did. He was then asked how pleaded to that charge and said 'I will plead guilty'.
The lawyer accepted that the charges covered by the PSO should also be dealt with and told that the magistrate that there had been no contact with community corrections pursuant to that order. It was accepted that the appellant had reached 'the end of the line' and that a period of imprisonment was inevitable.
The appellant's lawyer, who was 'very much across his personal circumstances'[15] referred in her plea in mitigation to a past history of mental illness exacerbated by substance use. She also referred to reports (which appear to be the reports prepared by the mental health nurse for the magistrate):[16]
There's a report that shows, I think from today and yesterday - does your Honour have those - which is the reports for the Magistrate. So yesterday's report seems to indicate that he appeared to be quite uwell and potentially, was drug-related as well as underlying, as your Honour indicated, organic issue as well, and yesterday, when he was denying who he is and expressing issues there.
Whereas today the mental health officer seems to say that he's a lot better. He's calm and co-operative and he does have insight today and certainly today - seeing him today - he seems to be fairly aware of what's going on and really just wants these matters dealt with.
[15] Magistrates Court ts 3, 6 February 2019.
[16] Magistrates Court ts 7, 6 February 2019.
The sentencing proceedings
The appellant was sentenced the next day, on 7 February 2019. He appeared by video link. His lawyer referred to previous treatment for mental illness but said that he 'does feel quite mentally well at the moment and he does wish to proceed to sentence.'[17]
[17] Magistrates Court ts 2, 7 February 2019.
The magistrate had access to a pre-sentence report that had been prepared for other proceedings in 2015. The appellant's lawyer confirmed that she had seen that report. The report stated that the appellant had entrenched substance abuse which had resulted in psychotic episodes. His risk of reoffending correlated with the degree of substance use. His Honour noted that mitigation afforded to offenders with mental health conditions is usually lost where the offender exacerbates the condition by way of substance abuse, knowing that such use will increase the propensity for 'bad behaviour'. He also noted the counterbalancing factor of the risk to the community.[18]
[18] Magistrates Court ts 3 ‑ 4, 7 February 2019.
In his sentencing remarks the magistrate gave a summary of the facts relating to all of the charges. When dealing with the assault public officer charge the appellant interjected and said:[19]
I still don't completely agree that I just punched him…I didn't walk up to him and just punch him. I wouldn't do that … I respect the officers … I didn't just (indistinct) walk up and punch him. Like, I wouldn't do that. It's not in my nature.
[19] Magistrates Court ts 10, 7 February 2019.
The magistrate then paused and said, 'we seem to have information now that is derogating from the plea…I mean, there's five witnesses ready to go. I can set it down for trial again.' To this, the appellant replied, 'I just want to have it dealt with.' He referred to the time he had spent in custody and his desire to get home to his family.
The magistrate then said, 'Well, look, Mr Moran, that's fine but as long as you understand you have to be sentenced on the basis of the prosecution facts as read' and the appellant replied, 'Yes' followed by something indistinct.[20]
[20] Magistrates Court ts 10, 7 February 2019.
The magistrate said that the Inglewood Incident offences were serious because they involved menacing members of the public and police officers with a weapon. The appellant's behaviour was described as 'bizarre, erratic and extremely frightening' and was aggravated by occurring in the presence of children. Although the appellant may have been having persecutory delusions at the time, the magistrate did not consider this mitigatory because he found that any such delusions were caused by drug or alcohol use and that the appellant was 'well aware' of this effect.[21]
[21] Magistrates Court ts 11, 13, 7 February 2019.
As to the assault public officer offence, the magistrate said that the primary sentencing factor was general deterrence. He referred to the need to 'foster a culture of compliance with lawful directions of prison guards and to afford them a measure of support and protection.' His Honour referred to the danger involved in the work of the prison guards and that they 'deserve to feel respected and supported in the performance of their job.' He said that offences of this type undermine the good order and management of custodial facilities. He said that he considered this to be serious example of such an offence. He noted that the appellant had previous convictions for offences of violence, including a previous offence of assaulting a public officer.[22]
[22] Magistrates Court ts 11 ‑ 13, 7 February 2019.
The magistrate accepted that the pleas of guilty to the charges was a mitigating factor, but the plea in respect of the assault public officer charge had been entered at 'a very late stage' and could only attract a 'limited' discount. It was said that there was otherwise not a great deal in mitigation. The magistrate said that the appellant had entrenched substance abuse and any psychosis brought on by such use could have no mitigatory weight.
The magistrate considered that the appropriate starting point for the assault public officer offence was 12 months' imprisonment. That sentence was reduced to 11 months to take into account a discount for pleading guilty. In regard to the threat offences his Honour's starting point was 12 months for each offence, which he reduced to 9 months to take into account a discount for pleading guilty (at a much earlier stage). He considered that those sentences should be cumulative on each other and on the sentence for the assault offence. On the charge of being armed the magistrate imposed a 6 month sentence of imprisonment. He considered that the sentence should be concurrent because it arose out of the same incident as the threat offences.
The magistrate then considered the question of totality. He said:[23]
Now, the final matter is that of totality. I must ensure the sentence as a whole is proportionate to your offending behaviour viewed as a whole and that involves taking a last look at the sentence and seeing whether some adjustment ought to be made. In my view, in that regard, there should be some adjustment made and the sentence of nine months for the two threats will be reduced in each case to seven months but those will remain cumulative upon each other and upon the sentence for the assault public officer.
[23] Magistrates Court ts 15, 7 February 2019.
The total effective sentence of 2 years and 1 month was backdated to 21 April 2018 to take into account time the appellant had spent in custody. An order was made that the appellant would be eligible for parole. That meant he would become eligible to be considered for release on parole in May 2019 (hence the need for an urgent appeal).
The grounds of appeal
The appellant's submissions were filed in four separate documents, two filed on 28 May 2019, one filed on 4 June 2019 and one filed on 6 June 2019. These documents reveal four grounds of appeal.
The appeal against sentence consists of three grounds. Ground 1 amounts to an assertion that 11 months' immediate imprisonment was manifestly excessive. Ground 2 alleges that the sentencing magistrate erred by failing to order a pre‑sentence report. Ground 3 alleges bias on the part of the sentencing magistrate against the appellant.
The appeal against conviction consists of a single ground, ground 4, which asserts that the plea of guilty to the assault public officer charge was not properly entered. It is appropriate to deal with this ground first.
Ground 4 – was the plea properly entered?
The appeal against conviction is essentially that the appellant was intoxicated when he entered his plea of guilty on 6 February 2019. That is to say, that he was so affected by drugs or alcohol that he could not properly understand the charge or the effect of a plea of guilty.
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[24] There are three well recognised grounds for allowing an appeal in such circumstances:
(1)where the appellant did not understand the charge or did not intend to plead guilty;
(2)where on the admitted facts the appellant could not in law be guilty of the offence; and
(3)where the plea of guilty has been obtained by inducement, fraud or intimidation.[25]
[24] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.
[25] Borsa v The Queen [2003] WASCA 254 [20]; Webster v The Queen [2015] WASCA 20 [57].
The courts treat claims that a plea was not properly entered with caution. This is because there is a strong public interest in the finality of proceedings and a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice.[26]
[26] See Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred.[27]
[27] Meissner 157 (Dawson J), see also Wilhelm v The State of Western Australia [2013] WASCA 188, (Mazza JA) [51], Snook v The State of Western Australia (No.2) [2015] WASCA 29 [106].
If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty.[28]
[28] Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
In this case the appellant relies on the first of the grounds referred to above [45], namely that he did not understand the charge. This is not an easy thing to establish given that the appellant had legal representation at the time of entering the plea and that there is no evidence on the appeal to suggest that the information before the lower court as to the appellant's ability to understand the proceedings was wrong. I should note at this stage that the appellant did not seek to adduce any fresh evidence on the appeal.
It is true that there were concerns about whether the appellant was intoxicated when he appeared on 5 February 2019, the day before he entered his plea. The magistrate had a forensic mental health report at that time that indicated that that was a possibility, though the appellant denied it. The magistrate then, quite properly, adjourned the matter to the following day and remanded the appellant in custody, so that he could be assessed by a mental health nurse.[29]
[29] Magistrates Court ts 12 ‑ 13, 5 February 2019
If the appellant was suffering from the effects of alcohol or drugs it would be reasonable to expect that those effects would have passed (or at least reduced) by the following day. In any event a further report from the mental health nurse would reveal whether the appellant was fit to proceed or had some underlying mental illness that required further treatment.
On the following day it is apparent from the transcript that the report from the mental health nurse was that the appellant was much improved and was fit to participate in the proceedings. Furthermore, this was confirmed by the lawyer who appeared for the appellant and who knew him well. There is no reason to doubt the accuracy of those assessments.
At the appeal hearing, the appellant said that he was 'still feeling the effects of the day before' when he appeared on 6 February 2019.[30] The implication is that he did not understand the charge when he entered his plea of guilty. However, this is not borne out by the transcript. The magistrate read out the charge and asked whether the appellant understood it. He confirmed that he did. Furthermore, when the magistrate was recounting the facts the appellant interrupted and disputed what was said. When asked whether he wanted to maintain his plea and be sentenced on the basis of the alleged facts he confirmed that he did. This confirms that he understood the charge and, notwithstanding any personal reservations, wished to adhere to his plea of guilty. The fact that he may have subsequently regretted that decision is not a reason to think he did not understand it when it was made.
[30] Supreme Court ts 6, 14 June 2019
Indeed at the appeal hearing the appellant seemed to confirm that he simply regretted having entered his plea. He said that he had been 'overconfident', 'thought it might work out for the best' and agreed that he had wanted to wrap everything up.[31] None of those feelings or beliefs can justify a conclusion that the plea of guilty was not properly entered.
[31] Supreme Court ts 6 ‑ 7, 14 June 2019.
In those circumstances, ground 1 has no reasonable prospect of success and leave to appeal on this ground was therefore refused.
Ground 1 – was the sentence manifestly excessive?
In regard to the appeal against sentence, the first ground is that the sentence was too long. I understand this to mean that the appellant is suggesting that the sentence was manifestly excessive.
The principles applicable to the determination of a claim that a sentence is manifestly excessive are well settled. Such a ground does not allege express error but rather asserts that an error can be implied from the nature and length of the sentence. In respect of such a ground the question is not what sentence the appeal court would have imposed if it were in the position of the primary judge. Rather the question is whether the sentence that was imposed was one that was properly open to the sentencing judge in the exercise of his or her discretion. Error can be inferred if the result is unreasonable or plainly unjust.
In determining whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.
The maximum sentence for assaulting a public officer where there are no circumstances of aggravation is 7 years' imprisonment.
As to the standards of sentencing customarily applied to offences of this type, there is no established range of sentences and this reflects the fact that the individual circumstances of offences can vary widely. In Quinn v The State of Western Australia[32] McLure JA (as she then was) reviewed a number of earlier cases and noted that the authorities endorsed 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. This may be said to be equally true of prison officers. Of the other cases referred to the most relevant was Higgins v Worthington[33] in which the offender had received a sentence of 12 months' imprisonment for elbowing a police officer in the face.
[32] Quinn v The State of Western Australia [2006] WASCA 99.
[33] Higgins v Worthington [2003] WASCA 19.
In Minton v McAlinden[34] the offender was sentenced to a total effective sentence of 14 months' imprisonment for four offences which involved assaulting four police officers in the appellant's home when they attended to deal with a disturbance. The offender punched the officers concerned. An appeal against the sentence was dismissed.
[34] Minton v McAlinden [2017] WASC 99.
Generally speaking, there is a high need for deterrence where police officers or prison offices are assaulted in the performance of their duties. Prison officers, as the magistrate quite properly acknowledged, work in a potentially dangerous environment. Discipline and order in prisons depends on prison officers being able to carry out their work without being attacked. There is an important need to foster a culture of compliance with the lawful directions of prison guards and to afford them support and protection by the imposition of penalties that incorporate a measure of general deterrence.
As to the seriousness of this offence, the assault involved a single punch which, whilst it caused some pain to the officer concerned, did not result in any injury. It could not be viewed as being at the more serious end of offences of this type. On the other hand it was a deliberate punch, delivered in anger and at the head of the officer. A punch to the head is inherently dangerous. There was no justification or provocation for the conduct.
As to the personal circumstances of the appellant, it is relevant to take into account that he had a history of violent offending, including a prior conviction for assaulting a public officer. There was also an established link between the appellant's substance use and violence, and he had continued to use alcohol and drugs despite being aware of this causal link. This meant that personal deterrence was an important consideration.
The appellant was 39 years old at the time of offending. He is currently single and has had one significant relationship, being with the mother of his two now‑adult children. He does not have the benefit of youth or prior good character. He derived no mitigatory value from mental illness given that all the indications were that his psychotic episodes were induced by voluntary substance abuse.
In my view, the sentence of 11 months was a severe one, but such a sentence was not without justification when all of the relevant circumstances are taken into account. I am unable to conclude that the sentence was unreasonable or unjust such as to establish implied error. Whilst not material to my conclusion, I also acknowledge that any harshness in this sentence was effectively off-set by the relative leniency of the other sentences imposed at the same time and the reduction of those sentences for totality reasons.
Ground 1 therefore had no reasonable prospects of succeeding and leave to appeal on this ground was refused.
Ground 2 – did the magistrate err by not ordering a pre‑sentence report?
In regards to ground 2 essentially the appellant says that the magistrate erred in not ordering a pre‑sentence report. In order for this ground to have any prospect of succeeding it would be necessary to show that the failure to order a pre-sentence report resulted in a miscarriage of justice.
Section 20(1) of the Sentencing Act 1995 (WA) provides that a court may order a pre-sentence report if the court considers it will assist in the sentencing of an offender. It is a rare case in which a miscarriage of justice could be demonstrated by the failure of a judge or magistrate to obtain a pre-sentence report on an offender who is represented by counsel and the failure by itself could never constitute a ground of appeal.[35]
[35] Topic v The State of Western Australia [2013] WASCA 157 [29]. See also Gavin v The Queen (1992) 6 WAR 195, 211 (Seaman J; Malcolm CJ agreeing) and Fowler v The Queen [2002] WASCA 296 [9] (Steytler J; Templeman J & Sheppard AUJ agreeing).
It is true that a pre-sentence report was not ordered. However, as I have noted, the appellant was represented and submissions on his behalf were made. It was not suggested that a pre-sentence report was necessary. In any event, the magistrate had available to him reports that had been prepared in earlier proceedings.
At the appeal hearing the appellant was asked if he could nominate anything that a pre‑sentence report would have disclosed that was not before the magistrate or could not have been before the magistrate at the time. He referred to his relationship with prison officers, but his response was vague and it was not apparent that this would have had any mitigatory value. The suggestion seemed to be that the appellant otherwise had a good relationship with prison officers, but there was no suggestion to the contrary.
It is not in itself an error for a magistrate not to order a pre‑sentence report and there is nothing to indicate that there is any information which would have made a difference to the sentence imposed. There is no basis for arguing that a miscarriage of justice occurred due to the failure to order a pre-sentence report.
Ground 2 had no reasonable prospects of succeeding and leave to appeal on this ground was refused.
Ground 3 – was the magistrate biased?
As to the third ground, that is, that the magistrate was biased against the appellant, there is no merit in this ground. The appellant makes some claims in his written submissions that are either without substance or are expressions of opinion. The appellant may sincerely believe that the magistrate did not deal with him fairly but, having read the transcript of the proceedings, I am satisfied that that belief is not well-founded.
The magistrate dealt with the appellant reasonably and fairly and he and his lawyer were given every opportunity to address the issues and to make submissions in regards to the sentence to be imposed. The magistrate was careful to ensure that the appellant was in a fit state to proceed and obtained a report for that purpose. He dealt with the appellant with patience and politeness.
There is no evidence that the magistrate was biased or, indeed, that there was any appearance of bias.
In those circumstances leave to appeal on this ground was refused.
Conclusion
For the above reasons, leave to appeal was refused on all grounds, with the consequence that the appeals against both sentence and conviction were dismissed.
The orders of the court are:
1.An extension of time to appeal is granted;
2.Leave to appeal on all grounds is refused;
3.The appeals against conviction and sentence are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall8 JULY 2019
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