Nannup v The State of Western Australia [No 2]
[2021] WASCA 179
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NANNUP -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 179
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 5 OCTOBER 2021
DELIVERED : 5 OCTOBER 2021
PUBLISHED : 5 OCTOBER 2021
FILE NO/S: CACR 100 of 2020
BETWEEN: ANTHONY FRANCIS NANNUP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 746 of 2020
Catchwords:
Criminal law - Resentencing - Appellant initially sentenced by Court of Appeal to 14 months' imprisonment conditionally suspended for 12 months following a successful appeal against sentence - Appellant reoffended while subject to conditionally suspended imprisonment order - Resentenced by Court of Appeal to serve 8 months of the suspended term of imprisonment
Legislation:
Criminal Code (WA), s 68(1), s 401(1)(c), s 401(2)(a)
Sentencing Act 1995 (WA), s 84F
Result:
Offender resentenced
Representation:
Counsel:
| Appellant | : | Ms A Woldan |
| Respondent | : | Mr T B Scutt |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dillon v The State of Western Australia [2020] WASCA 24
Nannup v The State of Western Australia [2021] WASCA 140
Roffey v The State of Western Australia [2007] WASCA 246
REASONS OF THE COURT:
On 25 June 2020, Mr Nannup was convicted in the District Court on his plea of guilty of the aggravated burglary of a home in Huntingdale, contrary to s 401(2)(a) of the Criminal Code (WA). He was also convicted of an associated offence of stealing. For present purposes, this offence is irrelevant. On the aggravated burglary offence, Troy DCJ sentenced Mr Nannup to 2 years' imprisonment, suspended for 15 months on conditions that he comply with supervision and program requirements.
On 11 August 2021, this court allowed Mr Nannup's appeal against sentence, set aside Troy DCJ's sentence and resentenced him to 14 months' imprisonment, suspended for 12 months on conditions that he comply with supervision and program requirements. This sentence, which we will refer to as the CSI order, was taken to have taken effect from 25 June 2020. See Nannup v The State of Western Australia.[1]
[1] Nannup v The State of Western Australia [2021] WASCA 140.
In resentencing the appellant, this court was aware that the suspension period had been completed. However, as the court explained:[2]
The sentence may be relevant if the appellant is subsequently dealt with for any alleged breach of the conditionally suspended imprisonment order.
[2] Nannup [76].
Mr Nannup now comes before this court to be dealt with for breaches of the CSI order and it is for this court to deal with him under s 84F of the Sentencing Act 1995 (WA). Mr Nannup breached the CSI order by, during the suspension period, committing a number of offences, the statutory penalty for which is, or includes, imprisonment.
The effect of s 84F of the Sentencing Act is to require this court, as the court which imposed the CSI order, to order Mr Nannup to serve the term of imprisonment that was conditionally suspended unless it decides that it would be unjust to do so in view of all of the circumstances that have arisen, or become known, since the CSI order was imposed. If the court decides that it would be unjust to order Mr Nannup to serve the term of imprisonment that was conditionally suspended, it may order him to serve part of the term or it may fine him nor more than $6,000 and make no order in respect of the CSI order. Because the suspension period has ended, this court does not have the power to substitute another suspension period: see s 84F(1)(c) of the Sentencing Act.
The issues
The issues for this court are, first, whether it would be unjust for Mr Nannup to serve the term of 14 months' imprisonment that this court suspended in view of all of the circumstances that have arisen, or have become known, since the CSI order was imposed. If it is unjust, a second issue arises, being whether this court should order Mr Nannup to serve part of the term of imprisonment that was suspended or fine him and make no order in respect of the CSI order.
Background
The details of the aggravated burglary and Mr Nannup's personal circumstances are set out in Nannup v The State of Western Australia and do not need to be repeated.
After being sentenced by Troy DCJ, Mr Nannup was in the community subject to his Honour's order from 25 June 2020 to 20 October 2020. In this period, Mr Nannup committed a large number of offences, including the three offences which constitute breaches of the CSI order. On 6 August 2020, Mr Nannup committed an offence of being armed in circumstances likely to cause fear, contrary to s 68(1) of the Criminal Code. With respect to this offence, Mr Nannup brandished a 700 ml whiskey bottle as if to throw it at a security guard inside a pharmacy at a suburban shopping centre. Mr Nannup then chased the guard around the centre, making motions to throw the bottle at the guard.
On 20 October 2020, during daylight hours, Mr Nannup committed two offences of burglary with intent, contrary to s 401(1)(c) of the Criminal Code. The two burglary offences were committed on dwellings in the suburb of Thornlie. In the first of these offences, Mr Nannup threw a large rock through the front bedroom of the house and then entered a bedroom via the smashed window. Once inside, Mr Nannup moved various items in the laundry, kitchen and lounge room. He then gained access to a shed in the rear yard by lifting a roller door.
The second burglary offence, which was captured on CCTV, involved Mr Nannup jumping the front fence of the house and then proceeding to the rear. There, he found a car battery which he threw at a glass window and smashed it. Mr Nannup pushed his upper body inside the house through the broken window and used his right hand to unlock a screen door. An occupant of the house who heard the disturbance went to see what was happening. Mr Nannup ran off immediately.
In neither burglary did the appellant steal any property.
Although this court was aware at the time it delivered its judgment in Nannup that the appellant had committed the breaching offences (as well as other offences), the appellant had not been sentenced for them. On 20 September 2021, the appellant was sentenced in the Perth Magistrates Court to a fine of $1,000 for the offence of being armed in circumstances likely to cause fear and 8 months' immediate imprisonment on each of the burglary offences, to be served concurrently. Thus, the total effective sentence imposed upon Mr Nannup was a fine of $1,000 and 8 months' imprisonment. The term of imprisonment was backdated to 20 October 2020.
It is common ground that Mr Nannup has now served the term of imprisonment that was imposed upon him and has been in custody since 20 October 2020. It is also common ground that the appellant has been a remand prisoner since 20 June 2021 in respect of the aggravated burglary charge the subject of the CSI order and a further offence which has yet to be dealt with.
The submissions
Mr Nannup submits that it would be unjust to require him to serve the whole of the 14‑month term that was suspended by this court due to:
(a)The length of time Mr Nannup has been in custody since the CSI order took effect.
(b)Mr Nannup's difficult experiences in custody. In this regard, the court has been informed that Mr Nannup has been assaulted in prison.
Mr Nannup submits that this court should either order that he serve part of the term of 14 months or be fined.
The State submits that there is nothing unjust in ordering the appellant to serve the whole of the term of imprisonment the subject of this court's CSI order. In doing so, the State acknowledges that this court can and should take into account that Mr Nannup has been in custody on remand for 108 days between 20 June 2021 and today.
Disposition
The legal principles applicable to the operation of s 84F of the Sentencing Act are not materially different to those applicable to s 80 of that Act. In Dillon v The State of Western Australia,[3] the principles applicable to s 80 of the Sentencing Act were set out as follows:
As the court also recognised in Hall, [Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364] there is a clear legislative policy that, in general, breach of a suspended sentence should result in the offender serving that sentence. A suspended sentence is imposed where imprisonment is the only appropriate sentencing disposition, but the sentencing court considers it appropriate to give the offender a last chance to avoid immediate imprisonment by leading a law-abiding life. It is intended to be a sanction hanging over the head of the offender which is to be activated if there is a lapse into offending. The court will not lightly interfere with the ordinary consequence of offending while subject to a suspended imprisonment order. To do so would be to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending.
Of course, the legislation also recognises that there are circumstances in which the courts should refrain from requiring service of suspended imprisonment. An obvious example would be where an offender, who has otherwise been of good behaviour and achieved rehabilitation, commits a relatively trivial offence at the end of the suspension period which, while punishable by imprisonment, does not warrant the imposition of a term of immediate imprisonment.
[3] Dillon v The State of Western Australia [2020] WASCA 24 [30]-[31].
The question of whether it would be unjust to require Mr Nannup to serve the term this court conditionally suspended requires him to demonstrate this in view of all of the circumstances that have arisen or become known since the CSI order was imposed.
A considerable barrier to Mr Nannup establishing that it would be unjust to require him to serve the term of imprisonment that was conditionally suspended is that the breaching offences are, individually and collectively, serious. Moreover, Mr Nannup committed the breaching offences within a short period of being released on the CSI order imposed by the District Court. Further, the appellant breached the CSI order by committing two burglary offences in circumstances where the original order had been imposed for almost identical offending. Finally, Mr Nannup committed offences other than the three breaching offences while subject to the CSI order imposed by the District Court.
Ordinarily, these factors would preclude a finding that it would be unjust to require Mr Nannup to serve the term of imprisonment that was suspended. However, Mr Nannup has been in custody since 20 October 2020, made up of the service of the term of imprisonment imposed in the Magistrates Court and the 108 days in custody on remand. It is to be noted that the State accepts that it would be unjust for this court not to take the time on remand into account. We accept that the time spent in custody on remand should be taken into account.
Section 84F does not provide for the court to backdate the commencement of a sentence where it orders a person to serve a term, or part of a term, of imprisonment that was suspended. This is in contrast to the position in relation to accumulation of sentences and the making of parole eligibility orders. In respect of those matters, s 84F(5) provides for s 88 to apply, and for the court to make a parole eligibility order, as if the term to be served were a term of imprisonment being imposed by the court. However, the power to backdate a sentence of immediate imprisonment imposed under pt 13 of the Sentencing Act is conferred by s 87 of that Act. Similarly, the power conferred on this court by s 41(3)(c) of the Criminal Appeals Act to backdate a sentence it varies on appeal does not apply to a resentencing under s 84F of the Sentencing Act. In the absence of a power to backdate, the only way for this court to take time spent on remand into account would be to reduce the otherwise appropriate sentence of imprisonment. In that context, it would be unjust to require the appellant to serve the whole of the suspended sentence as that would fail to take into account the time the appellant has spent in custody on remand since the conditionally suspended imprisonment order was imposed.
Further, we would also take into account that the appellant served the 8 months' imprisonment in respect of the burglary offences which breached the CSI order. Consistently with the rationale of the totality principle, there is assumed rehabilitation and reduced demand for retribution as a result of the service of the term imposed in the Magistrates Court.[4] In our opinion, it would be unjust to ignore the effect of this sentence.
[4] Roffey v The State of Western Australia [2007] WASCA 246 [26].
In respect of the matters referred to at [14(b)] above, we do not regard them as making the service of the term of imprisonment that was suspended unjust. However, having regard to the time the appellant has spent in custody since 20 October 2020, we are satisfied that it would be unjust to require Mr Nannup to serve the whole of the term of imprisonment that was suspended. This said, the imposition of a fine would be wholly inappropriate, having regard to the seriousness of the breaching offences and the other factors referred to in [19] above. In our opinion, Mr Nannup should now be ordered to serve part of the term that was suspended, being 8 months' imprisonment. We would order the term of imprisonment commence today and that Mr Nannup be eligible for parole.
Orders
1.Pursuant to s 84F(1)(b) of the Sentencing Act 1995 (WA), in respect of count 1 in District Court indictment 646 of 2020 Mr Nannup is sentenced to 8 months' imprisonment with eligibility for parole to commence today.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
5 OCTOBER 2021
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