Ninyette v Holmes
[2015] WASC 287
•7 AUGUST 2015
NINYETTE -v- HOLMES [2015] WASC 287
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 287 | |
| Case No: | SJA:1038/2015 | 31 JULY 2015 | |
| Coram: | MITCHELL J | 7/08/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | GEOFFREY NINYETTE STEPHEN HOLMES TERRENCE RUSSELL KUSER |
Catchwords: | Criminal law Appeal against sentence Reckless driving Escaping police pursuit Whether sentence manifestly excessive Whether first limb of the totality principle infringed Consequences of failure to state extent of reduction for plea of guilty |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(1), s 14(2), s 31(4)(a) Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1), s 60(4) Sentencing Act 1995 (WA), s 9AA |
Case References: | AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Burrows v the State of Western Australia [2014] WASCA 147 GOK v The Queen [2010] WASCA 185 House v The King (1936) 55 CLR 499 Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Kuhnert v Fyneman [2015] WASC 257 McDougall v The State of Western Australia [2009] WASCA 232 Neumann v The State of Western Australia [2013] WASCA 70 Postiglione v The Queen (1997) 189 CLR 295 Roberts v The State of Western Australia [2014] WASCA 239 Tela v The State of Western Australia [No 2] [2014] WASCA 103 WS v Gardin [2015] WASC 97 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NINYETTE -v- HOLMES [2015] WASC 287 CORAM : MITCHELL J HEARD : 31 JULY 2015 DELIVERED : 7 AUGUST 2015 FILE NO/S : SJA 1038 of 2015 BETWEEN : GEOFFREY NINYETTE
- Appellant
AND
STEPHEN HOLMES
TERRENCE RUSSELL KUSER
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M RIDLEY
File No : JO 10917 - 10919 of 2014, PE 14387 - 14392 of 2015, PE 71409 - 71411 of 2014, PE 13370 - 13372 of 2015
Catchwords:
Criminal law - Appeal against sentence - Reckless driving - Escaping police pursuit - Whether sentence manifestly excessive - Whether first limb of the totality principle infringed - Consequences of failure to state extent of reduction for plea of guilty
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 14(2), s 31(4)(a)
Road Traffic Act 1974 (WA), s 49AB(1)(c), s 60(1), s 60(4)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondents : Ms S E Wisbey
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Burrows v the State of Western Australia [2014] WASCA 147
GOK v The Queen [2010] WASCA 185
House v The King (1936) 55 CLR 499
Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kuhnert v Fyneman [2015] WASC 257
McDougall v The State of Western Australia [2009] WASCA 232
Neumann v The State of Western Australia [2013] WASCA 70
Postiglione v The Queen (1997) 189 CLR 295
Roberts v The State of Western Australia [2014] WASCA 239
Tela v The State of Western Australia [No 2] [2014] WASCA 103
WS v Gardin [2015] WASC 97
- MITCHELL J:
Sentences
1 On 2 April 2015, the appellant was sentenced in the Magistrates Court at Perth to a total effective sentence of two years imprisonment, with eligibility for parole, backdated to 19 March 2015. The sentences were for nine offences to which the appellant had pleaded guilty, and a further three offences previously the subject of an intensive supervision order. The supervision order had been imposed (with supervision and program requirements, and 150 hours community work) by the Magistrates Court at Perth on 14 July 2014. The specific sentences imposed were as follows:
Charge No. | Date |
|
|
|
JO 10917/14 | 23 Oct 14 |
|
|
|
JO 10918/14 | 23 Oct 14 |
|
| |
JO 10919/14 | 23 Oct 14 |
|
|
|
PE 14387/15 | 09 Feb 15 |
|
| |
PE 14388/15 | 19 Mar 15 |
|
| |
PE 14389/15 | 9-10 Jan 15 |
|
| |
PE 14390/15 | 10 Jan 15 |
|
| |
PE 14391/15 | 10 Jan 15 |
|
| |
PE 14392/15 | 11 Feb 15 |
|
| |
PE 71409/14 | 10 Mar 14 |
|
| |
PE 71410/14 | 10 Mar 14 |
|
| |
PE 71411/14 | 11 Mar 14 |
|
|
Circumstances of offending
3 The circumstances of the offending were accepted by the appellant to be as follows.
23 October 2014: Aggravated reckless driving (escape police pursuit), aggravated fail to stop (escape police pursuit) and disqualified driving
4 At about 4.35 pm on 23 October 2014, a Holden Commodore driven by the appellant was stopped by police in Furness Way, Koondoola. Police approached the driver's door and spoke to the appellant. When asked to produce his driver's licence the appellant accelerated heavily away, narrowly missing an officer and causing a squealing noise and plumes of smoke to be emitted from the rear tyres of the vehicle.
5 Police then pursued the appellant with their emergency lights and siren activated. The appellant continued accelerating across the middle of Furness Way. Police observed a male passenger exit from the rear door of the Commodore while it was travelling at approximately 40 - 50 km/h.
6 The appellant continued along Furness Way, and turned left into Edgington Crescent. The Commodore stopped just prior to Mirrabooka Avenue due to vehicle malfunction. The appellant was taken into custody. A 14-year-old male passenger was located in the front passenger seat.
7 The appellant has never held a driver's licence, and on 14 July 2014 had been disqualified from holding or obtaining a driver's licence.
9 - 10 January 2015: Steal motor vehicle, stealing, gain benefit by fraud
8 Sometime between 7.00 pm on 9 January 2015 and 4.15 am on 10 January 2015, the appellant stole a Ford Falcon from the driveway of an address in Caversham. At about 7.10 am on 10 January 2015, the appellant walked up to another vehicle in Greenwood and stole the complainant's wallet from a passenger seat of the vehicle. The wallet contained a small amount of cash and credit cards, including a BankWest MasterCard. At about 7.58 am on 10 January 2015, the appellant drove the stolen Falcon through the drive-through of McDonald's in Tuart Hill and used the stolen BankWest MasterCard to make a transaction to the value of $15.
9 February 2015: breach of bail (fail to appear)
9 On 9 February 2015, the appellant failed to appear at the Magistrates Court in Joondalup, in breach of the conditions of his bail for the offences committed on 9 and 10 January 2015. When arrested on a bench warrant on 19 March 2015, the appellant said that he panicked and didn't want to go to prison.
11 February 2015: steal motor vehicle
10 Between 9.00 am and 3.00 pm on 11 February 2015, the appellant stole a Nissan Maxima from a carport at the front of the complainant's premises. On the evening of 18 February 2015, he drove this vehicle to the address of a family member and 'sold' the vehicle to his aunt for $500. The appellant told his aunt that it was his girlfriend's vehicle and she would send the transfer papers in the future.
19 March 2015: give false personal details to police
11 The appellant was a passenger in a vehicle which was stopped by police on 19 March 2015. When requested to provide his personal details to police, the appellant falsely said his name was Michael Dickey, and gave his own date of birth. The appellant later said that he lied because he knew he had an outstanding warrant and didn't want to go to prison.
10 March 2014: Disqualified driving, steal motor vehicle, attempting to steal a motor vehicle
12 The circumstances of the offences for which the appellant was resentenced were as follows.
13 On 10 and 11 March 2015, the appellant drove a Holden Commodore without a licence. He was approached by police on 11 March 2015, at Bayswater.
14 On 11 March 2014, the appellant stole a Holden Commodore from the front lawn of the complainant's premises in Gosnells. The car was located at the Meltham Train Station in Gosnells later that day.
15 At 9.00 am on 11 March 2014, the appellant was found by police sitting in the driver's seat of a different Holden Commodore at the Meltham train station carpark. He had gained entry to the car by smashing a rear window and unlocking the car doors manually. The appellant was attempting to steal the vehicle using scissors and a screwdriver to engage the ignition.
16 On 14 July 2014, the appellant was placed on an intensive supervision order in respect of these offences, with a programme requirement and a requirement to undertake 150 hours of community service. The appellant completed the first five months of the intensive supervision order, but contact was lost on 24 December 2014. The appellant did not further engage in the programmes as he was not informed of appointments which had been arranged with a psychologist. He completed only seven hours of community service.
Proceedings before the magistrate
17 Counsel for the appellant before the magistrate admitted the facts and conceded that an immediate term of imprisonment was required. Counsel said that the appellant was 18 years old at the time of committing the offences. She submitted that the appellant pleaded guilty at an early opportunity and accepted responsibility for the offences. She said that the appellant suffered from a 'mild intellectual disability', which explained how the offending occurred. Counsel noted that the appellant had complied reasonably well with the intensive supervision order for five months, when the appellant 'lost connection' with his mother and 'fell into some bad peers' who engaged in stealing cars.
18 Counsel submitted that the appellant had a supportive family and partner, stable accommodation and job prospects. Counsel also submitted that this was the first occasion on which the appellant had been in adult custody, which he did not like and which had a salient effect on him.
19 The magistrate noted the facts of the offences and that they were similar to offences which the appellant had committed, and for which he had been penalised, in the past. The magistrate referred to the six month mandatory term of immediate imprisonment for the reckless driving offence. The magistrate said that:
Whilst you put yourself and your 14-year-old passenger at risk by the manner of your driving, and the police officers who were engaged in the pursuit, listening to the facts, they did lack some of the circumstances of aggravation that we're used to. So I don't find that it's at the highest end of offending of that nature, but, of course, it's very serious when you're going to drive and put other people at risk, including yourself, simply to get away from police.
There is substantial mitigation still to be found for you. Your age is a significant mitigating factor. Okay. You are still a young man. You have been dealt with in the Children's Court previously, but you're now facing imprisonment in the adult prison and I take into account that that will be more stressful for you and, at your age, it will have a significant impact on you and I take that into account in the penalty. You have pleaded guilty at the earliest opportunity. I accept that.
20 The magistrate went on to refer to the appellant's prospects of rehabilitation, including an offer of employment and the support of his mother and partner. After referring to the appellant's youth and the fact he had made bad decisions, the magistrate noted:
You've mixed with some bad people who - and you're easily led into doing the activities that they do, but I do accept that your prospects for rehabilitation do exist.
21 The magistrate then imposed the sentences to which I have referred.
22 The magistrate did not state in open court that she had reduced the appellant's 'head sentence' under s 9AA(2) of the Sentencing Act 1995 (WA) or state the extent of the reduction. Such a statement is required by s 9AA(5) of the Sentencing Act where the 'head sentence' is a fixed term and the court reduces the head sentence under s 9AA(2). The 'head sentence' for these purposes is the sentence that the court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.
Grounds of appeal
23 The appellant raised three grounds of appeal which, as amended on the day of the hearing and omitting particulars, now read as follows:
1. The learned sentencing magistrate erred in law in failing either to give the appellant credit for his pleas of guilty, or to specify the reduction in his head sentence as required by s 9AA(5) of the Sentencing Act.
2. The sentence of 18 months' imprisonment imposed for the offence of aggravated reckless driving is manifestly excessive in all the circumstances.
3. The total effective sentence of 2 years' imprisonment infringed the first limb of the totality principle.
Resolution of grounds
24 There are two limbs to ground 1. The first limb concerns whether there was a reduction by reference to the plea of guilty, while the second limb concerns a failure to state the extent of the reduction in sentencing remarks.
First limb of ground 1: fail to give credit for pleas of guilty
25 The first limb of ground 1 contends that the magistrate failed to give the appellant credit for his pleas of guilty. The appellant invites me to draw this inference from the absence of an express statement that she reduced the head sentence under s 9AA(2) of the Sentencing Act, as well as from the following inferences as to what the magistrate must have done.
26 The appellant says that the magistrate must have reduced the head sentence by at least 6 months for other mitigating factors. The respondent accepts that a reduction of this order would have been required. Neither the magistrate nor the prosecutor said anything which suggested that there should be other than a reduction in the order of 25% for a plea of guilty at the earliest opportunity. In those circumstances the appellant submits that, if the magistrate had applied a discount of 25%, she must have begun with a head sentence of at least 32 months. The respondent accepts that the 'head sentence' with which the magistrate began for the purposes of s 9AA of the Sentencing Act must have been in the order of 32 months.
A head sentence of 32 months is manifestly too high
27 Against that uncontentious background, the first step in the appellant's argument is that a 'head sentence' in the order of 32 months is manifestly too high having regard to the objective seriousness of the offence. For the following reasons, I accept that first step.
28 In my view the objective seriousness of the appellant's offence was at the lower end of the scale of the aggravated offence provided for by s 60(1) and s 60(4) of the Road Traffic Act 1974 (WA). By reference to the map tendered by consent as exhibit 1 in the appeal, it appears that the distance travelled by the appellant was only about 100 metres. It was not alleged that his speed was greater than 50 km/h. There was no allegation that there was other traffic on Furness Way or Edgington Crescent.
29 The dangerous aspect of the driving was the early heavy acceleration which caused the vehicle's tyres to spin and the fact that the vehicle 'narrowly missed' police. However the prosecutor did not explain to the magistrate what was meant by the vehicle narrowly missing police. The statement was consistent with the vehicle moving forward as a police officer or officers stood beside it. In the absence of further elaboration, the statement should be given that meaning which is most favourable to the appellant.
30 I note that the passenger who exited the vehicle while it was travelling at 40 - 50 km/h was also exposed to danger. However, that danger arose from the passenger's decision to exit from the vehicle while it was travelling at that speed, rather than the manner in which the vehicle was driven. There is nothing to show that the appellant was aware that the passenger intended to exit the vehicle.
31 It was an aggravating feature of the offence that the appellant did not hold a driver's licence, that police were exposed to some danger and that a 14-year-old passenger was in the car at the time. However, the principal consideration was the extent of the danger in fact posed by the manner in which the appellant drove the vehicle.
32 The level of risk to the police and the public were exposed as a result of appellant's conduct was much less than that posed by the kind of high speed chase to which s 60(4) is principally directed. This offence was towards the lower end of the scale of seriousness of the aggravated offence provided for by s 60(1) and (4) of the Road Traffic Act.
33 The maximum penalty for the offence of aggravated reckless driving is 5 years' imprisonment.4 The minimum mandatory penalty for the offence is 6 months' immediate imprisonment.5 There is no established 'range' of sentences customarily imposed for the offence.6 However, the objective seriousness of the appellant's offence could not have warranted a head sentence of more than half the maximum available.
34 I accept the respondent's submission that personal deterrence was a significant factor in this case. This was the appellant's third reckless driving offence and his second offence committed in the circumstance of aggravation of escaping police pursuit. However, the appellant's past driving record was not an aggravating factor, and could not justify a sentence which was disproportionate to the objective seriousness of the offence for which he was being sentenced.
Inference that the magistrate did not give credit for a plea of guilty
35 The second step in the appellant's argument in relation to the first limb of ground 1 is that it must therefore be inferred that the magistrate did not allow an appropriate reduction of the head sentence under s 9AA(2) of the Sentencing Act.
36 The appellant says that this process of reasoning was undertaken by the Court of Criminal Appeal in Roberts v The State of Western Australia.7 However, there is an important distinction between Roberts and the present case. In Roberts the sentencing judge, while obviously aware of the plea of guilty to the offences of which he had convicted Roberts, did not make any reference in his sentencing observations to a reduction in sentence by reason of the pleas of guilty.8 The State conceded that the failure to refer to any reduction of the sentence in consequence of the pleas of guilty was an express error by the sentencing judge.9 In considering whether the error was material to the sentencing process, the Court of Appeal inferred from the sentencing judge's failure to refer to any discount for the plea of guilty, or to satisfy the obligation imposed by s 9AA to specify the extent of the discount, that he had overlooked the effect of the pleas of guilty in that case. The court saw that inference as reinforced by the sentence which was imposed, undertaking the kind of reverse calculation referred to above at [26].
37 As I have noted, in the present case the magistrate expressly referred to the appellant's plea of guilty at the first opportunity as one of the elements of the 'substantial mitigation still to be found for you'. Given that express reference, it cannot be inferred in this case that the magistrate failed to give the appellant credit for his pleas of guilty. The more likely inference is that the magistrate gave credit for the plea in the sentence she imposed, but forgot to state the extent of that reduction in her reasons.
38 The inference that the appellant invites me to draw as to s 9AA assumes that the magistrate could not have started with a head sentence of 32 months, and therefore must have failed to reduce the sentence on account of the benefits derived from the early pleas of guilty. But, given the reference to the pleas of guilty, the inference is equally open that the magistrate started with a head sentence of 32 months and made proper allowances for all mitigating factors.
Ground 2: manifest excess
39 While this may mean that the first limb of the first ground fails, the above analysis demands that the appeal succeed on the other grounds.
40 The magistrate must either have started with a manifestly high 'head sentence' within the meaning of s 9AA, or started with a more appropriate head sentence and either failed to make a reasonable reduction of the head sentence under s 9AA or failed to make a reasonable allowance for the other mitigating factors.
41 It can therefore be inferred that, in one or more of the above ways, the magistrate failed to properly exercise the discretion which the law reposes in the sentencing court.10Having regard to the maximum sentence for the offence of aggravated reckless driving (escape police pursuit), the place the appellant's offending occupies on the scale of seriousness of that kind of offence, and the appellant's personal circumstances,11 the sentence of 18 months which was imposed is manifestly excessive.
Ground 3: totality
42 Further, once the seriousness of the reckless driving offence is appreciated, a total effective sentence of 2 years' imprisonment can be seen to be in excess of that which bears a proper relationship to the overall criminality involved in all the offences for which the appellant was sentenced, having regard to all relevant circumstances.12
43 Therefore, although the first limb of ground 1 fails, grounds 2 and 3 are made out.
Resentencing
44 Having inferred an error of principle in the exercise of the magistrate's sentencing discretion, it remains for me to consider the sentences which should be imposed.
45 I will deal with the reckless driving offence first. Having regard to all of the circumstances of the offence and the need for specific deterrence, I would begin with a head sentence, within the meaning of s 9AA, of 18 months' imprisonment. I would reduce that sentence by 4½ months, or 25%, under s 9AA(2) of the Sentencing Act.
46 I would also reduce the head sentence by a further 6½ months to account for the appellant's youth, prospects of rehabilitation, remorse and acceptance of responsibility for his offending, as well as the impact of the appellant's mild intellectual disability.
47 The magistrate accepted that this disability, the nature and extent of which were not expanded upon in any detail, impacted on the appellant's offending behaviour. That factual finding was not challenged on appeal. Given that unchallenged finding, it is appropriate to take account of that disability which lessened his moral culpability, tempered the role of punishment and denunciation, moderated the role of general deterrence and compounded the hardship likely to attend the appellant's first experience of imprisonment.13 However, the significance of this factor is limited by the lack of detail of the condition, or medical evidence explaining the nature and impact of the disability upon him.
48 It is also appropriate to take account of the extent to which the intellectual disability predisposes the appellant to offend, in considering the need to protect the community from his offending conduct.
49 Therefore, the appropriate sentence for the reckless driving offence is 7 months' imprisonment. Suspension of that term is not available in the circumstances.
50 Allowing for the above factors and a 25% reduction in head sentence under s 9AA, I agree with the other sentences imposed by the magistrate (including disqualifications from holding or obtaining a driver's licence). The sentences of six months' imprisonment for the steal motor vehicle offences of 9 - 10 January 2015 and 10 March 2014 (which will be served cumulatively) are achieved in each case by reducing a head sentence of 16 months by 4 months, or 25%, under s 9AA and a further 6 months for other mitigating factors.
51 To give effect to the first limb of the totality principle, it is appropriate that all sentences other than the steal motor vehicle offences on 9 - 10 January 2015 and 10 March 2014 be served concurrently with the sentences imposed for the reckless driving offence. The sentences of 6 months' imprisonment imposed for the steal motor vehicle offences committed on 9 - 10 January 2015 and 10 March 2014 should be served cumulatively upon each other and the sentence for the reckless driving offence.
52 The total effective sentence is therefore 19 months' imprisonment. I will make the appellant eligible for parole on all sentences of imprisonment, and backdate the sentences to commence on 19 March 2015.
Failure to state the extent of the reduction under s 9AA
53 Given the conclusions I have reached above, it is unnecessary to decide whether a mere failure to state the extent of the reduction under s 9AA(2) of the Sentencing Act, as required by s 9AA(5), would of itself provide a ground of appeal. That is, I am not required to resolve the second limb of the first ground of appeal. However, given that the issue was argued before me, I will make some observations in relation to the question of whether, if there had been no other express or inferred error, the failure to state the extent of reduction as required by s 9AA(5) could justify allowing the appeal.
54 The answer to that question is not provided by existing authority. The issue has been adverted to, but not resolved, in two cases.
55 In Burrows v the State of Western Australia,14 the sentencing judge had stated only that he allowed 'a fairly small discount for the benefit of your pleas' in the circumstances of that case. Hall J, with whom McLure P agreed, noted:
Having made those remarks his Honour did not in fact quantify the discount that he gave to the appellant … His Honour's failure to state the extent of the reduction that he gave was an error. However, it is not an error that the appellant complains of. The reason for that is obvious. The failure to quantify the discount does not mean that that discount was not given. Any discount in this case would have been very small. In the circumstances of this case the failure to quantify the discount was not a material error and could not support a conclusion that a different sentence should have been imposed: s 31(4)(a) Criminal Appeals Act 2004 (WA): See Pelemis v The State of Western Australia [2009] WASCA 151.15
56 There are three reasons why this observation does not definitively answer the question in this case.
1. As is apparent from the above quote, failure to comply with s 9AA(5) was not a ground of appeal in Burrows, so that the observations quoted were not made for the purpose of resolving the appeal.
2. The conclusion was premised on any discount in that case being very small. It is common ground that a reduction in the order of 25% of the head sentence was called for in this case.
3. The requirement of materiality was referenced to s 31(4)(a) of the Criminal Appeals Act 2004 (WA) (CA Act). Section 31 requires the Court of Appeal to dismiss an appeal against sentence unless it is of the opinion that 'a different sentence should have been imposed'. Section 31 only applies to appeals against pt 3 of the CA Act. There is no equivalent in pt 2, with which I am concerned. As I explained in WS v Gardin,16 judicial observations made in relation to provisions of pt 3 of the CA Act and its equivalents cannot automatically be applied to materially different provisions in pt 2 of the CA Act.
57 The second case to have considered the issue is Kuhnert v Fyneman.17 In that case Kenneth Martin J allowed an appeal on the ground that, while the sentencing magistrate in that case had taken account of an early plea of guilty, he had failed to state the extent of the reduction. However, Kenneth Martin J did not need to resolve submissions as to materiality because he concluded that the sentence was also infected by 'jurisdictional errors', where the magistrate had in some cases imposed greater than the maximum available penalty. The decision to resentence was made by reference to that factor.
58 In the present case it was common ground between the parties that the magistrate did not state the extent of the reduction under s 9AA in open court, and that the failure to do so was an error of law. However, the parties expressed different views as to the consequences of that conclusion for the sentencing appeal.
59 The respondents noted that s 8(1)(a)(i) of the CA Act provided that an error of law was a ground for an appeal against sentence. The respondents contended that s 8(1)(a)(i) should be taken to refer only to material errors. The respondents submitted that the sentence imposed could not be affected by a failure to state the extent of a reduction, which had in fact been applied. The respondents submitted that the mere failure to state the extent of the reduction could not be a material error of law to which s 8(1)(a)(i) of the CA Act referred.
60 The appellant accepted that an error of law had to be material, but used the term 'material' in a different sense to the respondents. The appellant argued that the word 'material' should not be implied into s 8(1)(a)(i) of the CA Act. The appellant argued that the question of materiality arose under s 14(2) of the CA Act, when the court considered whether it considered that, despite the error of law, no substantial miscarriage of justice has occurred. Drawing on what was said by the High Court in Kentwell v The Queen,18 the appellant submitted that the court could only conclude that an error was not material, and that no substantial miscarriage of justice had occurred, if it independently exercised the sentencing discretion and concluded that the same sentence or a greater sentence is the appropriate sentence.
61 In considering the application of what is said in Kentwell to the present case it is necessary to also take account of what was said in [42] of that decision. The plurality began this passage by observing:
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration,19 the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh …
62 The plurality concluded the passage by observing:
This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.
63 That is, it is necessary that the error be of the kind referred to in House, which is an 'error made in exercising the discretion'. The error must 'affect the exercise of the sentencer's discretion'. I take this to mean that, while the appellate court does not assess whether the error in fact influenced the outcome, the error must be one which is capable of influencing the outcome. The obligation to exercise the sentencing discretion afresh does not arise if there was no error which could have affected the outcome.
64 Further, in assessing Kentwell, it must be kept in mind that the Court was concerned with s 6(3) of the Criminal Appeal Act 1912 (NSW). Under that section the outcome of an appeal against sentence turned on whether the appellate court was of the opinion that 'some other sentence, whether more or less severe is warranted in law and should have been passed'.20 As I have noted, there is no equivalent provision in pt 2 of the CA Act.
65 In my view, the failure to state the extent of a reduction applied under s 9AA(2) of the Sentencing Act, as required by s 9AA(5) of that Act, is an error of law for the purposes of s 8(1)(a)(i) of the CA Act. I see no warrant for reading the word 'material' into that paragraph. The materiality of the error is to be addressed when considering whether there is no substantial miscarriage of justice under s 14(2) of the CA Act. That is the approach which I took in considering an alleged error of fact, also dealt with by s 8(1)(a)(i), in WS.21 In my view a similar approach is warranted in relation to errors of law. Ordinarily an error of law which is immaterial or inconsequential to the decision as to the sentence to be imposed will not give rise to a substantial miscarriage of justice. Where an error of law could not have affected the outcome then generally an appellate court will be able to conclude that there has been no substantial miscarriage of justice without exercising the sentencing discretion afresh.
66 While that is the general position, different considerations may arise where the error of law concerns a failure to comply with s 9AA of the Sentencing Act. Section 9AA is a statutory requirement as to the content of the reasons for the exercise of a sentencing discretion. A mere failure to state reasons could not ordinarily affect the outcome of the sentencing process. The failure is concerned with the expression of the reasons for arriving at the result. However, in the context of appeals against conviction under pt 3 of the CA Act, the High Court in AK v The State of Western Australia22 held that failure to comply with a statutory obligation to state reasons could preclude a conclusion that there has been no substantial miscarriage of justice. Although appearing in the very different context of the sentencing process, s 9AA(5) does contain a statutory requirement as to the content of reasons for the exercise of the sentencing discretion.
67 What is said in AK cannot be directly applied to an appeal against sentence under pt 2 of the CA Act. The construction of the provisions of pt 2 must allow for the different nature of the sentencing exercise and the capacity for the court to resentence on appeal. The decision in AK does, however, illustrate the importance of complying with a statutory provision concerning reasons and the significant consequences which failure to comply with such a provision may entail.
68 In a case where the only error is failure to state the extent of a reduction made under s 9AA, it will be necessary to consider whether reasoning of the kind employed in AK has any application to an appeal against sentence under pt 2 of the CA Act. The question will be whether the failure to comply with the requirement in s 9AA(5) as to the content of reasons for sentence precludes a court from considering that there has been no substantial miscarriage of justice for the purposes of s 14(2) of the CA Act without itself exercise the sentencing discretion afresh.
69 This is a difficult question. Its answer should be given in a case where it is necessary to determine the issue in order to resolve the appeal. As I have explained, this is not such a case.
70 The point of the above discussion is not to resolve the issue identified by the second limb of the first ground of appeal. Rather, the point is to recognise the reasonable arguments for and against the proposition that a mere failure to state the extent of a reduction under s 9AA(2) provides grounds for impugning a sentence. Those arguments highlight the importance of judicial officers complying with s 9AA(5) of the Sentencing Act when imposing a fixed term.
71 In the present case the magistrate can be readily forgiven for forgetting to state the extent of the reduction given under s 9AA of the Sentencing Act. Operating in a very busy sentencing court, she was required to undertake a complicated sentencing process involving a number of offences, penalties and breaches of past orders in a limited time. However, the arguments in this case show is the importance of magistrates consistently bearing the requirements of s 9AA in mind, even in a busy sentencing list. They also illustrate the importance of counsel appearing before sentencing courts bearing in mind their duty to assist the court by promptly reminding the sentencing judge or magistrate when the statement required by s 9AA(5) is inadvertently omitted from sentencing remarks.
Orders
72 For the above reasons, I will make orders granting leave to appeal on grounds 1 - 3, allow the appeal, set aside the sentences imposed by the Magistrates Court and impose the following sentences:
Charge No. | Date |
|
|
|
JO 10917/14 | 23 Oct 14 |
|
|
|
JO 10918/14 | 23 Oct 14 |
|
| |
JO 10919/14 | 23 Oct 14 |
|
|
|
PE 14387/15 | 09 Feb 15 |
|
| |
PE 14388/15 | 19 Mar 15 |
|
| |
PE 14389/15 | 9-10 Jan 15 |
|
| |
PE 14390/15 | 10 Jan 15 |
|
| |
PE 14391/15 | 10 Jan 15 |
|
| |
PE 14392/15 | 11 Feb 15 |
|
| |
PE 71409/14 | 10 Mar 14 |
|
| |
PE 71410/14 | 10 Mar 14 |
|
| |
PE 71411/14 | 11 Mar 14 |
|
|
74 This is a total effective custodial sentence of 19 months' imprisonment. The appellant will be eligible for parole. The sentence of imprisonment will be backdated to commence on 19 March 2015.
1 Specified periods indicate a fixed term of imprisonment. Amounts indicate a fine.
2 This column indicates the period for which the appellant was disqualified from holding or obtaining a driver's licence.
3 PE 13370/15 - PE 13372/15.
4 Section 60(4) of the Road Traffic Act.
5 Section 60(5) of the Road Traffic Act.
6 The parties could point to only one decision by an appellate court in relation to the offence: Tela v The State of Western Australia [No 2] [2014] WASCA 103. The decision, in which a total effective sentence of two years nine months' imprisonment for a range of offences was upheld, is of limited utility in the present case. Other cases to which the parties referred concerned sentences for different offences which, in view of different available penalties and circumstances of offending, were not useful comparators. See also the comments of Wheeler JA in Hume v The Queen [2000] WASCA 306; (2000) 33 MVR 203 [17].
7Roberts v The State of Western Australia [2014] WASCA 239 [49].
8Roberts [35].
9Roberts [46].
10House v The King (1936) 55 CLR 499, 505; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26] - [27].
11McDougall v The State of Western Australia [2009] WASCA 232 [13].
12Postiglione v The Queen (1997) 189 CLR 295, 307 - 308; Neumann v The State of Western Australia [2013] WASCA 70 [46].
13 As to the potential significance of intellectual impairment, see GOK v The Queen [2010] WASCA 185 [53] - [61] and cases there cited.
14Burrows v the State of Western Australia[2014] WASCA 147.
15Burrows [32].
16WS v Gardin [2015] WASC 97 [219] - [242].
17Kuhnert v Fyneman [2015] WASC 257 [82] - [86].
18Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, [43] - [44].
19House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
20 See Kentwell[34].
21WS [138] - [139], [239] - [240].
22AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [55] - [57], [110].
23 PE 13370/15 - PE 13372/15.
24
17
3