Neach v Hobbs
[2021] WASC 135
•30 APRIL 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: NEACH -v- HOBBS [2021] WASC 135
CORAM: ARCHER J
HEARD: 31 MARCH 2021
DELIVERED : 31 MARCH 2021
PUBLISHED : 30 APRIL 2021
FILE NO/S: SJA 1019 of 2021
BETWEEN: NIGEL NEACH
Appellant
AND
CHRISTOPHER FRANCIS HOBBS
Respondent
Catchwords:
Appeal against sentence – Failure to refer to plea of guilty – Whether no substantial miscarriage of justice – Proper approach
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Result:
Leave to appeal granted
Appeal allowed
Sentence set aside
Resentenced to a fine of $300
Category: B
Representation:
Counsel:
| Appellant | : | W Yoo |
| Respondent | : | F Cardell-Oliver |
Solicitors:
| Appellant | : | Aboriginal Legal Service - Perth |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Baini v R [2012] HCA 59; (2012) 246 CLR 469
Bropho v Hall [2015] WASC 50
Crocker v Vinicombe [2019] WASC 416
Edgill v Macguire [2013] WASC 472
Gaskell v The State of Western Australia [2018] WASCA 8
Hamlett v Whitney [2013] WASC 100
Inglis v Pinch [2016] WASC 30
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Ninyette v Holmes [2015] WASC 287
Roberts v The State of Western Australia [2014] WASCA 239
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Wilson v The State of Western Australia [2010] WASCA 82
ARCHER J:
(This judgment was delivered extemporaneously on 31 March 2021 and has been edited to add complete references and correct matters of grammar and non-substantive errors.)
Introduction
The appellant seeks leave to appeal against a sentence imposed for a breach of a protective bail condition. The sole ground of appeal is that the magistrate failed to discount the sentence in light of the appellant's plea of guilty.
The appellant made an application for bail pending the outcome of the appeal and also sought that the appeal be heard on an expedited basis.
On reviewing the application for bail, I arranged for the parties to be asked whether they could accommodate the appeal being heard the following day. Both parties indicated that they could. Accordingly, the need for a bail application fell away.
For the reasons that follow, I would give leave to appeal, allow the appeal, and resentence the appellant to a fine of $300.
Background
The appellant was charged with breaching a protective bail condition.
The appellant pleaded guilty at the first reasonable opportunity.
The facts were as follows:[1]
On Wednesday, 10 March, the accused was released from the Kalgoorlie Magistrates Court, [and] entered into a bail undertaking to appear at 8.45 on 19 April. Part of the conditions imposed in the bail undertaking was protective bail conditions in [sic] not to contact or attempt to contact Maureen Beryl Giles, by whatever means, and not to approach or remain within 20 metres of her and not to approach or remain within 20 metres of where she lives or work[s].
On Thursday, 11 March, the accused was at the pipeline bushland near the Goldfields [H]ighway and [Hannan] Street in Kalgoorlie. At that time he was with the victim. The accused and the victim became engaged in an argument and the victim [ran] away, whilst calling police. The accused chased the victim through the Kalgoorlie CBD, down [Hannan] Street and to the intersection of Hay Street and Lane Street. During this time the victim made multiple calls to police saying the accused [was] chasing her. Also, during this time, the victim took two photographs of the accused following her.
Police located the victim at this intersection [and] she pointed out the accused, who was standing across the road approximately 30 metres away. He was subsequently arrested [and] conveyed to Kalgoorlie Police Station, where he was [deemed to not be in] a fit state to be interviewed due to his level of [intoxication]. He was then charged costs of $130.50 and the explanation he stated, 'I was just going home.'
[1] Transcript of 18 March 2021 pages 2 ‑ 3.
The applicant's counsel in the sentencing proceedings submitted that[2]
Mr Neach was heavily intoxicated. He tells me at the time he had been drinking overnight and was walking out bush. He has pled guilty because he acknowledges that he should not have been anywhere near Ms Giles but does tell me that she was following him and he was walking away from her and he then pursued her, as your Honour has heard already. He knows that he shouldn't have pursued her.
[2] Transcript of 18 March 2021, page 3.
The prosecutor did not seek to challenge this version of the facts.[3]
[3] Transcript of 18 March 2021, page 4.
The learned magistrate imposed a sentence of imprisonment for 6 months and 1 day, suspended after 1 month.
The magistrate's reasons were as follows:[4]
I don't think this an appropriate matter for a fine. The court has to take breaches of bail – protective bail seriously. Breach of protective bail is an offense which carries imprisonment as a possible outcome. It can be dealt with by way of a fine but, in this case, I don't think that is the appropriate outcome. This did involve not just a being accompanied [sic] but an argument and then a pursuit of her protected person.
She must have been frightened. Mr Neach accepts that he was intoxicated on this occasion and that that contributed to the offending. But that's a common scenario and, in my view, isn't mitigating at all. If alcohol is going to cause you, Mr Neach, to behave like this then it's your responsibility to make sure you either reduce your alcohol intake or don't drink at all. In my view, it's appropriate to impose a partially suspended term of imprisonment.
So I intend to impose a term of six months and one day with one month to serve, five months and one day suspended for a period of six months. So that will commence today.
Legal principles[5]
Appeals from magistrates' decisions
[4] Transcript of 18 March 2021, page 4.
[5] The first two sections reproduce or draw on my reasons in other judgments.
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction –
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[6]
[6] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[7] This means that the ground is required to have a real, rational and logical prospect of succeeding.[8]
[7] Criminal Appeals Act s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[9] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[10]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[9] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[10] Strahan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[11] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[12]
If, despite error, no substantial miscarriage of justice
[11] Ninyette v Holmes [2015] WASC 287 [56(3)].
[12] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13]
[13] Criminal Appeals Act s 14(2).
Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[14]
[14] Ninyette [65]. See also Crocker v Vinicombe [2019] WASC 416 [42] ‑ [60].
Different views have been expressed as to the proper approach to sentence appeals from the Magistrates Court. Fiannaca J provided a useful summary in Crocker v Vinicombe.[15] In my view, the proper approach can be described in this way.[16]
[15] Crocker [42] ‑ [60].
[16] See s 14 of the Criminal Appeals Act, Ninyette [65] and Crocker [42] ‑ [60]. See also, in the context of conviction appeals, Baini v R [2012] HCA 59; (2012) 246 CLR 469 [28] ‑ [33] and Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12] ‑ [16].
The first question is whether the appellate court can exclude the possibility that a different sentence would have been imposed if the error had not been made. That is, the first question is not whether the sentence was within the range of a sound exercise of the sentencing discretion. The question is whether the error could not have made a difference.
If the answer to the first question is yes, the appeal will be dismissed. (It is unnecessary to resolve whether this is because the error was not material, such that the jurisdiction to allow the appeal was not enlivened, or because no substantial miscarriage of justice had occurred.)
If the answer to the first question is no, the appellate court should consider the sentencing discretion afresh. If the appellate court would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal.
Pleas of guilty
Section 9AA of the Sentencing Act 1995 (WA) 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.
From its terms, s 9AA is limited to sentences of imprisonment. Other types of dispositions do not have a 'head sentence'.[17]
[17] Inglis v Pinch [2016] WASC 30 [50] ‑ [52].
Equally clearly, in my view, s 9AA applies to suspended terms of imprisonment. Such terms have a 'head sentence'.
In any event, a plea of guilty is a mitigating factor.[18]
[18] Inglis [53].
In Roberts v The State of Western Australia,[19] the Court of Appeal said (citations omitted):
The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges. However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact. In relation to that question, as Steytler P observed in H v The State of Western Australia:
[T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.
The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.
[19] Roberts v The State of Western Australia [2014] WASCA 239 [48] ‑ [49].
Analysis
I am satisfied that the learned magistrate overlooked the plea of guilty. I have reached this conclusion because the learned magistrate:
1.did not refer to the appellant's plea of guilty;
2.did not refer to any discount for it, yet did refer to the intoxication of the appellant (correctly noting it was not mitigating); and
3.did not satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount.
That conclusion is reinforced by the sentence imposed.
The offence was undoubtedly serious. Protective bail conditions are imposed to protect persons and the integrity of trials.[20] The offence carries a maximum penalty of 3 years imprisonment and/or a fine of $10,000.
[20] See cl 2(2)(c) and 2(2)(d) of part D of schedule 1 of the Bail Act.
Neither side submitted that it is possible to discern a customary range of sentence for these types of offences. Offences of this type have attracted short terms of imprisonment, community based orders and fines.[21] The terms of imprisonment imposed in those cases to which my attention was drawn ranged from 1 month to 4 months.[22] I am also aware of a case in which a 6 month term was not reduced on appeal.[23]
[21] See, for example, Salkilld v The State of Western Australia [2017] WASCA 168, Bropho v Hall [2015] WASC 50, Edgill v Macguire [2013] WASC 472, and Hamlett v Whitney [2013] WASC 100.
[22] See the respondent's submissions at [10].
[23] See Salkilld.
There were some aggravating features in this case. The offence was committed the day after the appellant was released on the bail that he breached by committing the offence. It involved arguing with, and then chasing, the protected person through the Kalgoorlie CBD. It was not, however, at the top end of the scale of seriousness. On the facts not disputed by the prosecution, the protected person had initiated the contact in the first instance, by following the appellant. There is no suggestion of any physical contact or any attempted physical contact. When the police arrived, the appellant was standing across the road from the protected person, some 30 m away.
The appellant did not have the benefit of youth as a mitigating factor. He is 45 years old.
In addition, the appellant did not have the benefit of a clean record as a mitigating factor. That said, his record is not as serious as many other offenders who come before the court.
The most serious matters on his record are an aggravated unlawful wounding committed in 2008 and a string of offences involving drink driving. He was sentenced to various terms of imprisonment in relation to these.
The appellant also has several convictions for disobeying court orders and police orders, including two breaches of bail (in 2002) and a breach of a restraining order on 14 February 2021. He was fined in relation to each of these.
Even having regard to all of these matters, the sentence was a substantial one.
The plea of guilty was undoubtedly of significant benefit. It meant that the protected person was not required to give evidence at a trial. It also saved the State the costs that are associated with pleas of not guilty. As the plea was made at the first reasonable opportunity, the State was saved the costs not only of a defended trial, but also the costs of progressing the prosecution up to that point.
This does not mean that a discount of 25% was inevitable. It can be surmised that the case against the appellant was strong. In my view, an appropriate discount would have been in the range of 15 ‑ 25%.
Due to the effect of multiple sentencing considerations, it is not usually possible to reverse engineer a sentence. In this case, however, there is nothing to suggest that the magistrate considered that there were any mitigating factors. On that basis, it can be surmised that, if the magistrate had in fact given a discount in the range of 15 ‑ 25% for the plea of guilty, the magistrate would have to have started with a head sentence of up to 8 months. This is a significant penalty for the offence, in all of the circumstances.
Accordingly, I am satisfied that the learned magistrate failed to have regard to the appellant's plea of guilty in determining the appropriate sentence.
I now turn to consider whether, despite that error, no substantial miscarriage of justice occurred.
The first question is whether the error could not have made a difference.
I am not satisfied of this. On the contrary. Had the magistrate taken into account the plea of guilty, it is inevitable the magistrate would have considered it appropriate to reduce the sentence that the magistrate considered was otherwise appropriate.
The second question is whether I would impose a lesser penalty if I was to exercise the sentencing discretion afresh.
In all of the circumstances, I am not satisfied that imprisonment is, or was, the only appropriate disposition. I will explain this further shortly. As I would impose a lesser penalty, I am unable to conclude that there has been no substantial miscarriage of justice. Accordingly, I would grant leave to appeal and allow the appeal.
Resentencing
Both parties considered that, if the appeal was allowed, I should resentence the appellant. I agree it is appropriate to do so.
As noted earlier, the offence was a serious offence. I was also provided with more information than the information that was before the learned magistrate. The additional information was not only in relation to the offence itself, but in relation to its relationship to the other offences on the appellant's record and the offence for which he was on the bail that he breached by this offence.[24]
The facts are as follows:
(a)the respondent understands that the appellant is (or has in the past been) in a relationship with Ms Maureen Giles;
(b)on 8 March 2021 the appellant was served with a 72 hour police order which prohibited him from communicating with, or approaching or remaining within 50 metres of, Ms Giles;
(c)on 9 March 2021 he was arrested and charged with breach of that police order;
(d)on 10 March 2021 he was released on bail subject to a protective condition that he not contact or attempt to contact, or approach or remain within 20 metres of, Ms Giles;
(e)on 11 March 2021 Ms Giles called police to report that the appellant was following her. Irrespective of how the incident began, the appellant admitted before the learned Magistrate that he was intoxicated and that he had been following Ms Giles through the streets of Kalgoorlie. Ms Giles provided police with photographs of the appellant following her.
[24] Respondent's submissions at [2].
The Respondent submits:[25]
The circumstances of the offending were serious in that: (a) it followed very shortly after the appellant had been arrested for an alleged breach of a police order requiring him to stay away from Ms Giles, which ought to have impressed on him the importance of staying away from her, and while he was on bail for that charge; (b) it involved an extended pursuit of Ms Giles through the streets of Kalgoorlie; and (c) the appellant appears to be (or to have been) in a domestic relationship with Ms Giles.
[25] Respondent's submissions at [8].
I accept these submissions and accept that the offence was serious. It was not, however, at the top end of the scale. As I have already noted, on the appellant's undisputed version, the offence began when the protected person followed the appellant. There is no suggestion of any physical contact or any attempted physical contact. When the police arrived, the appellant was standing across the road from the protected person, some 30m away.
General deterrence is important in offences of this type.
Personal deterrence is also important in this case. The offence was committed the day after the appellant was released on the bail that he breached by committing the offence. In addition, while the previous convictions for breach of bail were in 2002, the appellant breached a police order just last month.
Subject to exceptions which do not apply here, a term of imprisonment of 6 months or less may not be imposed.[26] Therefore, if a term of imprisonment was to be imposed, it would have to exceed 6 months. I am not satisfied that such a term of imprisonment is the only appropriate disposition in this case. The question of suspension does not, therefore, even arise.
[26] See s 86 of the Sentencing Act.
In my view, a fine is the appropriate disposition. In terms of the amount, I have regard to the following in particular:
The appellant is of limited means. Even a modest fine will be a significant burden on him.
The appellant has been in custody since 11 March 2021. He has been in custody in relation to the sentence under appeal since 18 March 2021, a day short of two weeks.
The appellant pled guilty at the first reasonable opportunity.
In all of the circumstances, I consider that the appropriate disposition is a fine of $300.
Orders
I would grant leave to appeal, and allow the appeal.
I would set aside the sentence imposed by the learned magistrate, and impose a fine of $300.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
30 APRIL 2021
12
13
1