Murray v Foster
[2014] WASC 119
•3 APRIL 2014
MURRAY -v- FOSTER [2014] WASC 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 119 | |
| 03/04/2014 | |||
| Case No: | SJA:1013/2014 | 10 & 14 MARCH 2014 | |
| Coram: | CORBOY J | 21/03/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | PETER MURRAY JAMES FOSTER |
Catchwords: | Criminal appeal Appeal against sentence Whether sentence manifestly excessive Turns on its own facts |
Legislation: | Criminal Code (WA), s 491(1) Community Protection (Offender Reporting) Act 2004 (WA), s 63(1) |
Case References: | Hodder v Police Department of Western Australia [2011] WASC 142 Hodder v Skamp [No 2] [2009] WASC 53 Kahn v The Queen [2012] NSWCCA 132 Melvaine v Police [2012] SASC 32; (2012) 112 SASR 452 RLG v Donnelly [2012] WASC 230 Saad v Minister for Foreign Affairs [2007] AATA 1675 The Queen v Jain [2004] VSCA 30 Thompson v Minister for Foreign Affairs and Trade [2007] AATA 1244; [2007] 45 AAR 149 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JAMES FOSTER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE S A HEATH
File No : PE 61400 of 2013, PE 61401 of 2013
Catchwords:
Criminal appeal - Appeal against sentence - Whether sentence manifestly excessive - Turns on its own facts
Legislation:
Criminal Code (WA), s 491(1)
Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant : Mr A Robson
Respondent : Ms A Longden & Mr E A McClintock
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Skamp [No 2] [2009] WASC 53
Kahn v The Queen [2012] NSWCCA 132
Melvaine v Police [2012] SASC 32; (2012) 112 SASR 452
RLG v Donnelly [2012] WASC 230
Saad v Minister for Foreign Affairs [2007] AATA 1675
The Queen v Jain [2004] VSCA 30
Thompson v Minister for Foreign Affairs and Trade [2007] AATA 1244; [2007] 45 AAR 149
Wilson v The State of Western Australia [2010] WASCA 82
- CORBOY J:
(These reasons were delivered orally on 21 March 2014 and have been edited from the transcript.)
1 The appellant is a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (Community Protection Act).
2 The appellant was convicted of sex offences in August 2001 and September 2002. The appellant was charged with two offences by a prosecution notice dated 3 December 2013. First, that he possessed, between 17 October 2012 and 25 October 2013, identification material with the intention that the material be used by him to facilitate the commission of an indictable offence, contrary to s 491(1) of the Criminal Code (WA). Second, that being a person to whom s 6 of the Community Protection Act applies, without reasonable excuse, he failed to comply with his reporting obligations contrary to s 63(1) of that Act.
3 The appellant first appeared in the Magistrates Court on 17 December 2013. The prosecutions were adjourned until 15 January 2014. The appellant pleaded guilty at that hearing and was remanded to appear on 17 February 2014 for the purpose of sentencing. A pre-sentence report was ordered.
4 The appellant was sentenced on 17 February 2014 to 5 months' imprisonment on the first charge to which he had pleaded guilty, and 2 months' imprisonment, cumulative, on the second charge. Accordingly, the total effective sentence was 7 months' imprisonment, commencing on 17 February 2014.
5 The appellant sought leave to appeal against that sentence by an appeal notice dated 28 February 2014. The proposed ground of appeal was that the sentences imposed were manifestly excessive, having regard to the circumstances of the offending, the personal circumstances of the appellant, particularly his age and ill health, his pleas of guilty and sentencing standards. The appellant also applied for bail pending determination of his application for leave to appeal.
6 The respondent did not oppose the appellant's application for bail and the appellant was granted bail at a hearing held on 10 March 2014. An order was made at that hearing for the appellant's application for leave to appeal and the appeal to be heard together on 14 March 2014. The respondent did not oppose the appellant being granted leave to appeal and conceded that the sentences imposed by the learned Chief Magistrate were manifestly excessive.
7 The respondent also accepted that a fine was a sentencing option that had been available to the Chief Magistrate, having regard to the penalties imposed in comparable cases. I have concluded that leave to appeal should be granted, the appeal should be allowed, and the appellant should be re-sentenced.
The relevant principles
8 The principles that are applied to an appeal against sentence were summarised by the Court of Appeal in Wilson v The State of Western Australia [2010] WASCA 82.
9 The ground of appeal that is alleged, that the sentence imposed was manifestly excessive, is an allegation of implied error. In determining whether a sentence is manifestly excessive, the appeal court will have regard to the maximum sentence for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the offending, and the personal circumstances of the offender. However, the court cannot intervene merely because it might have imposed a different sentence to that which had been imposed. The court can only interfere with the sentence that was imposed if it is satisfied that a different sentence should have been ordered. That is so even if error is demonstrated: Criminal Appeals Act 2004 (WA) s 31(4)(a).
10 An appellant must obtain leave to appeal on each ground that is sought to be relied on in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of success: Criminal Appeals Act s 27. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding or a real prospect of success.
The facts
11 The circumstances alleged by the prosecution and accepted by the appellant at his sentencing hearing were that amendments to the Community Protection Act that took effect in early 2013 required the appellant to advise the police of the details of any passport that he held. That requirement was explained to the appellant at a meeting with police on 29 April 2013. The amendments to the Act were again explained to the appellant by the police on 5 August 2013.
12 A search warrant was executed at the appellant's then address on 25 October 2013. Three passports were found: a United Kingdom passport in the name of the appellant issued on 3 September 2012; another United Kingdom passport issued in the name of the appellant that had expired in mid-1989 and an Australian passport in the name of the appellant that had an expiry date of 2 November 2015.
13 Also located in the search was a birth certificate in the name of Michael Murray. He is the appellant's late twin brother. He had dual citizenship in the United Kingdom and Australia and died in Western Australia on 16 June 2002. The police also located a completed application for a United Kingdom passport in the name of Michael Murray.
14 On being interviewed, the appellant admitted obtaining the United Kingdom passport and failing to inform the police that he held the passport. He stated that he hoped to be able to use the passport to travel internationally.
15 The appellant also admitted having obtained a certified copy of his late brother's birth certificate by purporting to be his brother when completing an online application form. He admitted having obtained the certificate for the purpose of applying for a United Kingdom passport under the name of Michael Murray. The appellant admitted that he intended to use a fraudulently obtained passport to travel internationally and so avoid his reporting obligations under the Community Protection Act.
Sentencing submissions made on behalf of the appellant
16 The appellant was represented by duty counsel before the Chief Magistrate for the purpose of sentencing. I infer that the appellant's counsel, as duty counsel, had only limited time in which to take instructions and prepare his sentencing submissions on behalf of the appellant. I further infer, without intending any criticism, that this explains why no submission was made to the Chief Magistrate regarding sentences that had been imposed in comparable cases. A submission about that matter would, undoubtedly, have assisted the Chief Magistrate, as the offences to which the appellant had pleaded guilty are not common.
17 Counsel for the appellant conceded, in the course of his submissions on sentence, that the nature of the offences were such that they were 'obviously too serious for fines' (ts 6). Counsel also made the following submission:
I have spoken to my learned friend. I understand that the prosecution would not be pushing for an immediate term of imprisonment. However, if your Honour did consider that the offences are so serious that they could only be dealt with by a term of imprisonment, I would ask your Honour to take Mr Murray's personal circumstances and his early plea of guilty and consider suspended imprisonment in the circumstances (ts 7).
18 As has been mentioned, a pre-sentence report had been obtained. A psychological report was also provided to the court. The report was provided by the appellant's treating psychologist, Mr Dunlop. The pre-sentence report noted that the appellant's criminal history consisted of traffic offences, together with the three offences for which the appellant was convicted in 2001 and 2002. The appellant was sentenced to a total of 7 years' imprisonment for those offences and the report noted that there had been no subsequent conviction for a period of 7 years.
19 The report advised that the appellant had been registered on the Australian National Child Sex Offender Register in February 2004 and that he had been compliant with his supervision requirements since that time. It was said, however, that he had a poor attitude towards the police when he reported. Against that, the appellant had attempted to address his poor decision-making by attending voluntary psychological counselling and had completed a number of group therapy sessions.
20 The report concluded that the appellant had taken responsibility and had attempted to address his offending behaviour and was assessed as a suitable candidate for a community-based sanction. It was further suggested that the appellant might benefit from supervision in conjunction with monitoring by the Sexual Offender Management Squad and 'an assessment for suitability for a more rigorous, structured and evidence-based program to address his offending behaviour'. However, it was also noted that the appellant's poor health precluded him from attending any form of group counselling within the Department of Corrective Services.
21 The psychological report provided to the court advised that the appellant first attended his treating psychologist on referral from a general practitioner in January 2013. Mr Dunlop noted that the appellant had given a history of wrestling with his conscience in relation to the offences that he had committed in 2001 and 2002. The appellant had participated in individual and group counselling. Mr Dunlop reported that the appellant had made excellent progress:
From the viewpoint of understanding himself and his motivations better and developing a greater degree of appropriate empathy with his victim and understanding of the potential impact upon her. He has also become better able to fully acknowledge his personal responsibility in relation to those offences as well as for the offences for which he is currently before the Court.
22 The report suggested that the appellant has sought assistance for depression and feelings of guilt, rather than for any paedophilic impulses. The report also provided explanations for the offences that were then before the court which did not suggest that they were the precursor to any form of sexual offending.
23 It was submitted on behalf of the appellant that he had formed a relationship through internet correspondence with a woman in the Philippines. He wanted to travel to the Philippines in order to meet the woman. He did not intend to use the passport to travel for the purpose of committing any sexual offence.
Sentencing remarks
24 That submission was not contested before the Chief Magistrate, nor was it disputed in the hearing of this appeal. The Chief Magistrate accepted that the appellant's motivation in committing the offences was to enable him to travel in order to further an adult relationship that had been commenced via the internet. However, his Honour also noted that the appellant proposed to travel to a country where he would have been unmonitored in terms of his reporting obligations and which was known for child exploitation.
25 I would, however, note that those matters would not appear to be directly relevant to the appellant's sentencing as the Chief Magistrate had accepted that the appellant's offending was not 'connected with any paedophilic desires' (ts 7). That finding was consistent with the psychological report that had been tendered on behalf of the appellant.
26 His Honour held that the appellant was entitled to a 25% reduction in the sentence that would otherwise have been imposed pursuant to s 9AA of the Sentencing Act 1995 (WA). He characterised the offences as being serious as they were 'designed to circumvent the provisions of the Community Protection Act which are designed essentially for community protection' (ts 7). He further held that in those circumstances a term of imprisonment and a term of immediate imprisonment is the only appropriate penalty for both specific and general deterrent purposes.
Other sentencing considerations
27 Section 491(1) of the Criminal Code provides that:
A person who is in possession of identification material with the intention that the material will be used, by the person or some other person, to commit an indictable offence or to facilitate the commission of an indictable offence is guilty of a crime and is liable to imprisonment for 5 years.
28 The offence may be prosecuted summarily in which case the maximum penalty is 24 months and a fine of $24,000.
29 Section 63(1) of the Community Protection Act provides that a reportable offender who, without reasonable excuse, fails to comply with any of his or her reporting obligations commits a crime and is liable to imprisonment for 5 years. The offence may be prosecuted summarily in which case the maximum penalty is imprisonment for 2 years and a fine of $12,000.
30 Counsel for the appellant and for the respondent provided the court with several cases in which sentences had been imposed for identification related offences and for contraventions of the Community Protection Act. Two cases were identified in which custodial sentences had been imposed for possession of a false passport. However, in each of those cases, the offence was associated with organised and significant criminal activity. The sentences imposed were 3 months' imprisonment in The Queen v Jain [2004] VSCA 30, and 6 months' imprisonment in Kahn v The Queen [2012] NSWCCA 132. I do not consider that the seriousness of the appellant's offending was comparable to the seriousness of the offending involved in each of those cases.
31 Fines were imposed on offenders who had been convicted of passport fraud in RLG v Donnelly [2012] WASC 230 and Saad v Minister for Foreign Affairs [2007] AATA 1675. Each of those cases involved offending that was either as serious, or more serious, than the circumstances of the appellant's offences. In Hodder v Skamp [No 2] [2009] WASC 53, Hodder v Police Department of Western Australia [2011] WASC 142, Thompson v Minister for Foreign Affairs and Trade [2007] AATA 1244; [2007] 45 AAR 149 and Melvaine v Police [2012] SASC 32; (2012) 112 SASR 452, offenders have been fined for breaches of the Community Protection Act, or equivalent legislation in other jurisdictions.
32 Cases to which the appellant and the respondent referred in their submissions indicate that, contrary to the Chief Magistrate's finding, an immediate term of imprisonment was not the only available sentencing option for each of the offences to which the appellant pleaded guilty, having regard to the nature of those offences and considerations of general deterrence.
33 The appellant is 76 years of age. Some reference was made in the sentencing submissions to the Chief Magistrate to the appellant suffering ill health. Further evidence concerning the appellant's physical and mental health was presented at the hearing of the appeal without objection. The appellant's general practitioner, Dr Stephen Adams, provided a medical report dated 11 March 2014, and a further psychological report was supplied by Mr Dunlop. That report was dated 10 March 2014.
34 Dr Adams' report advised that the appellant suffers from ischaemic heart disease, peripheral vascular disease, poorly controlled diabetes and depression. Dr Adams described the appellant as being physically and emotionally frail. He requires careful medical monitoring and is likely to require extensive surgery in the near future. Dr Adams considered that a custodial sentence would have a significant negative impact on the appellant's physical and mental health.
35 Mr Dunlop also expressed concern about the fragility of the appellant's mental and physical health in his report. He had noted a deterioration in the appellant's physical health during the period that he had been responsible for his counselling. He considered that the appellant would be significantly disadvantaged when compared with other offenders in his ability to cope with imprisonment. Mr Dunlop was concerned by the effect that imprisonment would have on the appellant's mental and physical health.
36 There are other mitigating factors to be found in the appellant's personal circumstances. He has voluntarily sought counselling. In addition to pleading guilty, he apparently cooperated fully with the police, and made frank admissions on being interviewed about the offences. I accept that his attitude to the offences demonstrated remorse and an appreciation of the seriousness of his offending. That was also reflected in his early plea of guilty.
37 I consider that the sentences imposed by the Chief Magistrate were manifestly excessive, having regard to the maximum sentence for the offences when dealt with summarily, the standards of sentencing customarily imposed for offences of that type, the seriousness of the offending and the personal circumstances of the offender. It may be that his Honour erred in finding that an immediate term of imprisonment was the only available sentencing option where those matters are concerned: Sentencing Act s 6(4). However, it is not necessary to decide that question.
38 In my view, the appropriate penalty for the offences committed by the appellant is a fine. I do not consider that it is likely that the appellant will offend again in the near future, having regard to his criminal record and his present circumstances. He is currently receiving counselling. Accordingly, I do not consider that the most appropriate sentencing option is a suspended term of imprisonment.
39 The appellant was detained in custody for 22 days prior to being released on bail. The period during which the appellant served his sentences of imprisonment should be taken into account in re-sentencing him together with his early plea of guilty. Consequently, the fines that I shall order will be less than the penalties that would have been imposed if the appellant had been sentenced for the first time.
40 I have also taken into account that the offences are closely connected, so that the final fine imposed should reflect the totality of the appellant's criminality. As I have indicated, I have also taken into account that the appellant pleaded guilty at the first available opportunity. The fines to be imposed must, of course, still reflect the serious nature of the offences when considered against the background of those matters.
Sentence
41 On the charge that the appellant possessed identification material with the intention that the material be used by him to facilitate the commission of an indictable offence contrary to s 491(1) of the Criminal Code, I impose a fine of $1,000.
42 On the charge that being a person to whom s 6 of the Community Protection Act applies, without reasonable excuse, the appellant failed to comply with his reporting obligations contrary to s 63(1) of that Act, I impose a fine of $500.
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