O'Brien v Narang
[2018] WASC 376
•5 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: O'BRIEN -v- NARANG [2018] WASC 376
CORAM: JENKINS J
HEARD: 21 NOVEMBER 2018
DELIVERED : 21 NOVEMBER 2018
PUBLISHED : 5 DECEMBER 2018
FILE NO/S: SJA 1109 of 2018
BETWEEN: BEN EDWARD JOSEPH O'BRIEN
Appellant
AND
AMARINDER NARANG
First Respondent
DANIEL BORDONI
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P G MALONE
File Number : FR 10895/2017
FR 10896/2017
FR 5797/2018
FR 5798/2018
FR 6800/2018
Catchwords:
Criminal law - Appeal against sentence - Aggravated assault - Trespass - Breach of protective bail conditions - Failure to state the fact and extent of reduction for pleas of guilty - Whether there was a miscarriage of justice
Criminal law - Appeal against sentence - Magistrate not advised of all time spent on remand in custody - Appropriate to take time in custody on remand into account by backdating sentence
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time within which to appeal granted
Leave to appeal granted on grounds 1 and 2
Ground 1 dismissed
Appeal allowed on ground 2
The sentence imposed is backdated to commence on 23 May 2018
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| First Respondent | : | Ms N Eagling |
| Second Respondent | : | Ms N Eagling |
Solicitors:
| Appellant | : | Legal Aid of Western Australia |
| First Respondent | : | State Solicitor for Western Australia |
| Second Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Bennier v Millar [2016] WASC 393
Bropho v Hall [2015] WASC 50
Butler v The State of Western Australia [2012] WASCA 249
Corrigan v Kirkman [2011] WASC 254
Edgill v Maguire [2013] WASC 472
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hamlett v Whitney [2013] WASC 100
Horner v Hunt [2013] WASC 241
Inglis v Pinch [2016] WASC 30
Leighton v Nelson [2016] WASC 354
McDonald v White [2007] WASCA 213
Moody v French [2008] WASCA 67; (2011) 255 FLR 80
Nguyen v The Queen [2016] HCA 17
Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81
Roberts v The State of Western Australia [2014] WASCA 239
Salkilld v The State of Western Australia [2017] WASCA 168
Sikora v Gibson [2018] WASC 271
The State of Western Australia v Cheeseman [2011] WASCA 15
Thom v Davies [2018] WASC 324
Western v Cartmell [2015] WASC 87
Weston v Nicolao [2018] WASC 316
JENKINS J:
This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Fremantle on 6 July 2018. The appeal is against the sentences imposed for two counts of assault in circumstances of aggravation, two counts of breach of protective bail conditions and one count of trespass.
Grounds of appeal
The appellant relied on two grounds of appeal:
1.The learned sentencing magistrate erred in law in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to the Sentencing Act 1995 (WA) s 9AA.
2.There was a miscarriage of justice in that the learned sentencing magistrate was not made aware of, and so did not give the appellant credit for, a period of time on remand from 10 ‑ 21 May 2018.
Order on appeal
On 21 November 2018 at the conclusion of the hearing I made the following orders:
1.Extension of time within which to appeal granted;
2.Leave to appeal granted on grounds 1 and 2;
3.Ground 1 dismissed;
4.Appeal allowed on ground 2; and
5.The sentence imposed is backdated to commence on 23 May 2018.
These are my reasons for making those orders.
Extension of time
The appellant required an extension of time to appeal as the appeal was filed three weeks out of time. There are four principle considerations in determining whether an extension of time ought to be granted. They are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
The reasons for the delay were that the appellant did not complete an application for legal aid for the provision of advice about an appeal until 23 July 2018. There was then a delay until legal aid was granted on 14 August 2018. The appellant's counsel was out of her office until 20 August 2018. The appellant moved prisons in that time and so did not receive correspondence from Legal Aid of Western Australia.
On 22 August 2018 the appellant's lawyer spoke to him and on 24 August 2018 the notice of appeal was lodged.
There was an arguable case on appeal in respect of both grounds of appeal. There was no prejudice to the respondent in granting an extension of time and the respondent did not object to an extension of time being granted. The length of the delay was relatively small and had been explained.
For these reasons I granted an extension of time within which to appeal.
Leave to appeal
The application for leave to appeal was ordered to be heard with the appeal.[1] The appellant required leave to appeal on each ground of appeal. If a ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground.
[1] Order of McGrath J dated 3 September 2018.
For the below reasons both grounds of appeal had reasonable prospects of succeeding. I therefore granted leave to appeal on each ground.
The charges
The appeal related to the following offences and sentences:
1.FR 10895/2017 ‑ on 29 October 2017 at Coolbellup the appellant without a lawful excuse, trespassed on unit 26/28 Waverley Road Coolbellup contrary to the Criminal Code (WA) s 70A(2) ‑ 3 months' imprisonment.
2.FR 10896/2017 ‑ on 29 October 2017 at Coolbellup the appellant unlawfully assaulted Jessica Lynette King (Ms King) in circumstances of aggravation, namely that they are in a family or domestic relationship contrary to the Criminal Code s 313(1)(a) ‑ 6 months' imprisonment.
3.FR 5797/2018 ‑ on 30 April 2018 at Coolbellup the appellant failed to comply with a requirement of his bail undertaking entered into on 30 October 2017 by failing to comply with the bail conditions imposed under the Bail Act sch 1 pt D cl 2(2)(c) or cl 2(2)(d) contrary to the Bail Act s 51(2a) ‑ 4 months' imprisonment.
4.FR 5798/2018 ‑ on 30 April 2018 at Coolbellup the appellant unlawfully assaulted Ms King in circumstances of aggravation, namely that they are in a family or domestic relationship contrary to the Criminal Code s 313(1)(a) ‑ 8 months' imprisonment.
5.FR 6800/2018 ‑ on 4 June 2018 at Spearwood the appellant failed to comply with the requirements of his bail undertaking entered into by him on 15 May 2018 in that he failed to comply with bail conditions imposed under the Bail Act sch 1 pt D cl 2(2)(c) or cl 2(2)(d) contrary to the Bail Act s 51(2a) ‑ 4 months' imprisonment.
The magistrate ordered that the 8 months' imprisonment imposed for FR 5798/2018 be served cumulatively on the 6 months' imprisonment imposed on FR 10896/2017 and that all other sentences be served concurrently with each other and with those sentences. The total sentence was 14 months' imprisonment which his Honour backdated to commence on 4 June 2018 to take into account the time the magistrate was told the appellant had spent on remand in custody.
Procedural history
The prosecution notices for FR 10895 ‑ 6/2017 record that the accused was due to first appear in court on those charges on 14 November 2017. There was no appearance and a message had been left at the court to say that the appellant had been admitted to hospital that morning. Bail[2] was extended on conditions that he not enter or remain on 26/28 Waverley Road Coolbellup or any premises where Ms King lived or worked or be within 50 m of the nearest external boundary of such premises. There was a protective bail condition (being a condition imposed for purpose mentioned in the Bail Act sch 1 pt D cl 2(2)(c) or cl (d) that the appellant not contact or attempt to contact Ms King by whatever means.
[2] I infer that this bail was granted on 30 October 2017 by a justice of the peace or an authorised police officer.
The appellant attended court in relation to those charges on 12 December 2017 when they were set down for trial on 13 August 2018. Over the course of the next 6 months the appellant appeared in court on those charges on a number of occasions due to breaches of his bail and his remand in custody. Shortly before 6 July 2018 the appellant advised that he wished to change his pleas to guilty. Consequently the charges were listed on 6 July 2018 for his pleas to be entered.
In respect of FR 5797 ‑ 8/2018 the appellant first appeared in court on 10 May 2018. He was remanded in custody. On 15 May 2018 FR 5798/2018 was listed for hearing on 13 August 2018. On the same date the appellant entered a guilty plea to FR 5797/2018. It was adjourned to a later date for sentencing. The appellant was granted bail with a protective bail condition that he not contact or attempt to contact Ms King by whatever means or be within 50 m of her.
Again shortly before 6 July 2018 the appellant advised that he would plead guilty to FR 5798/2018 and it was listed on 6 July 2018 so his plea could be entered.
The appellant first appeared in court on FR 6800/2018 on 5 June 2018. He was remanded for trial to 13 August 2018. Thus it appears that he indicated a plea of not guilty to that charge. Shortly before 6 July 2018 he indicated that he would enter a plea of guilty to that charge and the matter was listed on 6 July 2018 for his plea to be entered.
Proceedings on 6 July 2018
When the appellant appeared in the Fremantle Magistrates Court on 6 July 2018 his counsel advised the court that the appellant had entered pleas of not guilty to the charges but that he wished to change those pleas to pleas of guilty. The magistrate said that in preparing for the matter he had seen the request for the early listing of the charges.
His Honour then read the charges to the appellant and he pleaded guilty to each of them.
The prosecutor read out the facts of the charges as follows:
FR 10895 ‑ 6/2017
[T]he accused and the victim are former partners and at the time of this incident the victim was eight months pregnant with the accused man's child. Several weeks prior to this incident, the victim had ended the relationship with the accused, and the accused had returned the key to the victim's dwelling. At 2 o'clock in the morning on 29 October, the accused has gone to 28 Waverley Road in Coolbellup, and he has climbed a wall and got onto the balcony of unit number 26. And that's the home address of the victim.
He stuck his hand through a flyscreen sliding door and forced open the lock and entered the unit. The victim got out of bed because she heard a noise. Once inside, the accused has become involved in an argument with the victim regarding each other's fidelity and the fact the victim had been drinking whilst pregnant. The victim during the argument has vomited in the sink, and whilst she was doing this, we say the accused spat on her face.
The victim left her apartment. She went to a neighbour's unit, and the accused's has grabbed her by the hair and pulled her back into the unit. After several hours, the accused left the unit. So he stayed for several hours and then left the unit. The victim has gone to sleep. On waking up, she called her mother and then reported the matter to the police. On 30 October, the accused was located by the police. He was arrested.
He was spoken to, participated in an interview, made some partial disclosures with respect to these matters, sir, and he was subsequently charged.
FR 5797 ‑ 8/2018
So on 14 November, the accused has entered into a bail undertaking to appear in court. He was subject to protective bail conditions not to contact or attempt to contact Jessica King by whatever means, or enter upon her address in Coolbellup. He has breached the condition on 30 April 2018. He has approached and spoken to Ms King whilst she was walking on Waverley Road. He has then proceeded to attend at the unit in Waverley road in company with her. And that was a breach of the condition, sir.
He has further breached the condition again by attending the victim's new home in Kent Street, Spearwood whilst being in company with the victim. So there's one charge there, sir, but it was highlighted a couple of breaches of protective bail conditions.
... at 3 o'clock in the afternoon, 30 April, … as you've heard, [the accused] approached [Ms King] on Waverley Road, Coolbellup. He has spoken to her regarding nappies that he bought for their six‑month‑old daughter and wanting to buy some baby formula. He did not know what baby formula to buy, so the victim got into the accused's car to go with him.
They were together for three hours from 3 o'clock in the afternoon to 6 o'clock pm. They've gone to the protected person's unit in Coolbellup and also the house in Kent Street, Spearwood. They've stayed at the Spearwood address for about an hour. They were both drinking. They've got into an argument and left the Spearwood address together in order to drive back to Coolbellup, and on the way to Coolbellup, the accused has punched the victim several times to the head and her arm, which caused some minor swelling on her forehead near her right eyebrow.
And she also suffered a black eye. Her right eye was blackened. The accused stopped the car in Coolbellup and pushed the protected person in an attempt to get her out of the car. He has got out of the car and pushed her to the ground, and then proceeded to punch her several times to the head and face, causing soreness and swelling to her head.
FR 6800/2018
… Mr O'Brien was subject to protective bail conditions, … protecting Ms King. He has breached the conditions on 4 June by being at the residence with Ms King at Kent Street in Spearwood. The police attended there. They located him hiding in a wardrobe in the master bedroom. Apparently the police had to force entry to the premises as a result of the accused and the victim not opening the door to the police.[3]
[3] ts 3 ‑ 5, 6 July 2018.
After the facts were read a plea in mitigation was made. During the plea in mitigation defence counsel said on 29 October 2017 the appellant had gone to Ms King's home and he was concerned because Ms King was drinking alcohol when she was eight months pregnant and her house was not clean. He admitted to pulling her hair but denied spitting at her. His counsel said that he had spat on the ground.
In relation to the offences on 30 April 2018 defence counsel said that she was instructed that whilst the appellant and Ms King were in the car she had grabbed the steering wheel and tried to crash the car. It was then that he assaulted her by punching her with his left hand to get her away from the steering wheel and to avoid an accident.
Defence counsel said that the appellant and Ms King had been in a relationship for three years. She said that Ms King was in the back of the court and wished to maintain their relationship. The fact that the appellant had missed the birth of his child (presumably because he had been in custody for breaching bail) had been quite hard for him to deal with. The appellant had two other children and he had missed significant events in their lives.
The appellant was 35 years old. He worked as a roof tiler and had work to take up upon his release from custody.
In relation to his prior criminal history defence counsel noted that there had been some gaps in his offending since 2012. He was willing to comply with a community based order.
The sentencing magistrate interrupted defence counsel to say, in effect, that his only question was the appropriate length of the sentence of imprisonment. He was not considering suspending the sentence or imposing another community based order. His Honour said that the appellant had a record for violence and that his offences were serious.
Defence counsel asked the magistrate to consider suspending any terms of imprisonment on conditions so that the appellant could address family violence issues.
The sentencing magistrate noted that the appellant had been previously convicted of aggravated assault occasioning bodily harm in 2012 and had received a suspended term of imprisonment. He noted that if the child was not being properly cared for by Ms King that was a matter for the authorities. His Honour said that he was dealing with the appellant for trespass and repeatedly breaching protective bail conditions. He noted that at 35 years of age the appellant was acting very irresponsibly and violently. He said that he could not see a basis on which he could suspend the term of imprisonment.
Defence counsel asked whether the appellant could be referred to the Family Violence Court so that he could apply for that programme. His Honour said that he intended to sentence the appellant immediately. Defence counsel did not mention the appellant's pleas of guilty.
The prosecutor noted that the appellant had been in custody since 4 June 2018. His Honour said that the sentence would need to be backdated.
The magistrate then delivered the following sentencing remarks, which were punctuated by a comment from the appellant:
I could tell from the start, of course, that you were upset when you were entering your pleas. And that's fair enough. It's a time for you to reflect on your behaviour. In terms of a sentence, you would only impose a sentence of imprisonment as a sentence of last resort. I accept that. And it's only to be imposed where the seriousness of the community requires it.
I'm quite satisfied that it is appropriate, given the seriousness of these assaults, to sentence you to imprisonment. Having done that, it's necessary for me to revisit the issues associated with imprisonment to see whether there's a basis on which to suspend the terms. And I don't see what that basis would be. You're not a young person in the sense of being 18 to 23 or something like that. You're 35 years of age, had plenty of - you've got other children. So I assume you've been in other relationships.
And you have just been violent in the past in an aggravated assault, and now you've been violent on these two separate occasions and also trespassed and breached protective bail. So - - -
Appellant: Well, you know, what was I supposed to do? I spat (indistinct) I admit that. The second time - assault - she was trying to drive us off the bloody road. She was trying to kill us. What was I supposed to do, let her kills us, drive the car off the road?
Yes, okay. All right. So proceeding to what I'm going to do, I'm mindful of the fact that in sentencing you to imprisonment, I have to come up with a sentence that fits the overall behaviour. So I've got to look at the question of totality. And I'm also mindful of the fact that it is - it seems to me, at least, your first term of imprisonment. I've got to bear that in mind. I've also got to backdate the sentence and also consider the question of parole.
So the head sentence will be the first assault, and that will be a sentence of six months. In respect of the second sentence, in other circumstances I might have had a longer term, but because I'm going to make it cumulative it will be limited to eight months, cumulative. I think that's enough in all of the circumstances. So the other terms will run concurrently, which is three months for the trespass and four months in respect of each of the breaches of protective bail conditions. They're concurrent, as I say. That should be a total of 14 months. Yes, one year and two months.
…
And it will be backdated.
…
… as Sergeant Barker indicates, backdated to 4 June. And it will be noted that you're eligible for parole.[4]
[4] ts 9 ‑ 10, 6 July 2018.
The law - ground of appeal 1
I have recently considered the legal principles relating to a reduction in sentence for pleas of guilty in two appeals from magistrates' decisions.[5] In Thom v Davies[6] I said:
[5] Weston v Nicolao [2018] WASC 316; Thom v Davies [2018] WASC 324.
[6] Thom v Davies [17] ‑ [20].
The Sentencing Act, s 9AA, subsections (2) to (5) states:
(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.
In Roberts v The State of Western Australia,[7] the sentencing judge, whilst aware of Roberts guilty pleas to the offences, did not make any reference in his sentencing remarks to a reduction in sentence by reason of the pleas of guilty. In the appeal, 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.
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 pleas of guilty or to satisfy the obligation imposed under s 9AA(5) to specify the extent of the discount that the judge had overlooked the effect of the pleas of guilty. The court said that the inference was reinforced by the sentence which was imposed in that case. The Court of Appeal said:
'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 .... 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.'
In Roberts, the Court of Appeal referred to H v The State of Western Australia.[8] Similar comments were made in McDonald v White.[9] Those two cases were decided prior to the enactment of the Sentencing Act, s 9AA; however, the principles in those cases apply to a case such as this where it has to be determined whether there was a breach of s 9AA.
[7] Roberts v The State of Western Australia [2014] WASCA 239.
[8] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151.
[9] McDonald v White [2007] WASCA 213.
As I noted in those cases even a late plea of guilty will usually warrant some reduction in a sentence. The earlier in the proceedings that the plea is made, the larger the reduction will be. Even where a guilty plea is inevitable because of the strength of the prosecution evidence some reduction in sentence will be given usually for a plea of guilty.[10]
[10] Moody v French [2008] WASCA 67; (2011) 255 FLR 80.
In this case the appellant had not entered early pleas of guilty to most of the charges. The plea of guilty to FR 5797/2018 was made at the first reasonable opportunity and the plea of guilty to FR 6800/2018 was an early plea of guilty given that it was entered a month after the appellant first appeared in court in relation to it.[11] The plea of guilty to FR 5798/2018 could not be considered an early plea of guilty but neither was it late. It was entered two months after the appellant appeared in court on that charge.
[11] At the appeal the appellant's counsel acknowledged that it was not made at the first reasonable opportunity.
The pleas of guilty to FR 10895 ‑ 6/2017 were late pleas of guilty. The appellant entered those pleas nearly eight months after he had first appeared in court in relation to the charges. In the meantime he had appeared in court on six occasions in relation to the charges.
Consequently the pleas were entered at different times ranging from very early to very late. Further the strength of the prosecution cases on some of the charges was strong and in others it depended on the credibility of Ms King and her willingness to give evidence. The pleas of guilty were of benefit to the prosecution because they made convictions a certainty and they were of benefit to Ms King, a victim and/or witness to all the offences, because they meant that she did not have to give evidence. Different considerations had to be taken into account in determining the reduction in sentence for the plea of guilty to an individual offence. Thus there were numerous factors, some of them competing, which the magistrate had to consider in determining what discount if any should be given to the appellant for his plea of guilty to an offence.
A simple failure to comply with s 9AA(5) by failing to state the fact and the extent of the reduction to a head sentence for a plea of guilty to an offence does not automatically amount to a material error that requires appellate intervention. This is because the failure to state the fact and the extent of a reduction in sentence for a plea of guilty does not necessarily mean that a discount was not given. However, failure by a sentencing judge or magistrate to refer to the effect of a plea of guilty will ordinarily be an indication that the judicial officer has overlooked the plea of guilty and failed to take it into account in determining the sentence to be imposed.[12]
[12] H v The State of Western Australia [10].
The respondent relied on Ninyette v Holmes[13] where Mitchell J found that, despite a sentencing magistrate not expressly referring to any credit for his plea of guilty, the fact that the magistrate referred to the plea as one of the elements of 'substantial mitigation' meant that it could not be inferred that the magistrate failed to give the offender credit for his plea of guilty. His Honour found that the more likely inference was that the magistrate gave credit for the plea in the sentence imposed but forgot to state the extent of that reduction in her reasons.[14]
[13] Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81.
[14] Ninyette [37].
The respondent also relied on Inglis v Pinch[15] which was an appeal against sentence where the magistrate made no mention of the plea of guilty. In light of the sentence imposed and given that it was a short sentencing hearing and the offender had entered pleas of guilty at the start of the hearing, Pritchard J found 'albeit not without some reservations' that the sentencing magistrate took the plea of guilty into account but failed to state that he had done so and how.[16]
[15] Inglis v Pinch [2016] WASC 30.
[16] Inglis [58].
Application of the law - ground of appeal 1
The respondent submitted that for the following reasons I could infer that the appellant's pleas of guilty were taken into account but the magistrate failed to state that he had done so and how:
1.the appellant entered pleas of guilty at the commencement of the hearing;
2.the magistrate's opening remarks indicated that his Honour was aware that the matters had been early listed at the appellant's request in order to enable the appellant to change his pleas to guilty and to proceed to sentence;
3.in sentencing, the magistrate referred to the fact that an eight month sentence for one assault was 'enough in all the circumstances';
4.there was a short period of time between the pleas being and sentence; and
5.even after allowing for the pleas of guilty, the individual sentences imposed were well within the appropriate range of sentences for offences of their type.
The respondent accepted that the sentencing magistrate did not make any specific reference to the appellant's pleas of guilty, s 9AA or the factors I have referred to in [37] which had to be considered in order to decide the extent of the reduction in sentence to be given for individual offences for the pleas of guilty. Further the parties did not make submissions on these issues so as to draw them to the attention of the magistrate.
If the sentencing magistrate had considered and applied s 9AA(2) and considered the factors in [37] I would have expected that there would be a reference in the transcript to at least some of these factors and the way they had been considered and applied in determining whether to give a discount for a plea of guilty and if so the extent of that discount. This did not occur.
I distinguished Inglis v Pinch on its facts. Unlike this case the three charges in that case had been laid at the same time and pleas of guilty to them had been entered on the same date which was the first reasonable opportunity to do so. The strength of the prosecution case did not differ between the three charges. Thus it was not a case, such as this one, where the magistrate was required to consider different facts relating to different charges and apply the law to those facts in a way which was likely to result in different reductions in sentence for different charges.
On the other hand there was much force in the respondent's submission that the modest individual sentences imposed (when there were not mitigating factors other than the pleas of guilty) indicated that the magistrate had taken into account the pleas of guilty and had only erred in failing to state that fact and the extent of the reduction in open court.
After taking all these matters into account I concluded that it was likely that the magistrate had taken the pleas of guilty into account as a mitigating factor. However I was satisfied that he had erred in law in failing to apply s 9AA in accordance with its terms. That is because there was no material to satisfy me that his Honour had considered the different benefits to the prosecution and Ms King in the pleas of guilty to the different offences as he was required to do under s 9AA(2). Neither was there any material to satisfy me that he had properly considered the different timing of each plea of guilty in determining the reduction in sentence for each offence as he was required to do under s 9AA(4)(b). Neither could I be satisfied that the magistrate had not reduced the sentences by more than 25% as he was limited in doing under s 9AA(4)(a).
Finally the magistrate erred in law in failing to state the fact that he had reduced the sentences and the extent of the reduction in open court as he was required to do under s 9AA(5).
Was there a substantial miscarriage of justice - ground of appeal 2
The respondent submitted that even if I concluded, as I did, that the sentencing magistrate erred in law I should dismiss ground of appeal 1 if I considered that no substantial miscarriage of justice had occurred.[17]
[17] Criminal Appeals Act 2004 (WA) s 14(2).
The respondent submitted that no substantial miscarriage of justice had occurred because the sentences imposed by the magistrate were all well within an appropriate range of sentences for offences of their type, taking into account all relevant sentencing factors including the pleas of guilty.
The appellant submitted that although there was no ground of appeal alleged that the sentences were excessive I should not conclude that there had not been a substantial miscarriage of justice.
In order to determine whether there had been a substantial miscarriage of justice due to the magistrate's errors I was required to consider the appropriate sentence for each offence.
Those factors relevant to sentence included the maximum penalties for each offence. The maximum penalties for each offence are:
1.Trespass ‑ 12 months' imprisonment and a fine of $12,000;
2.Assault in circumstances of aggravation ‑ 3 years' imprisonment and a fine of $36,000;
3.Breach of protective bail conditions ‑ a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both.
The assault and trespass on 29 October 2017 were serious offences given:
1.they occurred at 2.00 am in the morning;
2.the victim was eight months pregnant;
3.the assault which included grabbing the victim's hair, punching her face and body and dragging her by the hair was correctly described by the magistrate as 'scary' and 'brutal'; and
4.the appellant broke in to the victim's apartment.
The appellant said that the seriousness of his offences should be seen in light of his concern for the welfare of Ms King and his unborn child.
In relation to the charge of trespass, there is no established sentencing range for that offence.[18] In Bennier v Millar Martino J said:
There are few decisions in relation to the offence of trespass and no customary range of sentencing can be discerned: Western v Cartmell [2015] WASC 87 [34] (Hall J). In that case a sentence of four months imprisonment was regarded as appropriate. In Horner v Hunt [2013] WASC 241 a sentence of eight months imprisonment was held to be excessive and was reduced on appeal to a sentence of three months imprisonment. In Moir v The State of Western Australia [2014] WASCA 25 a sentence of three months imprisonment was held to be within a sound sentencing range.[19]
[18] Horner v Hunt [2013] WASC 241 [39]; Western v Cartmell [2015] WASC 87 [34]; Bennier v Millar [2016] WASC 393 [27].
[19] Bennier v Millar [27].
The sentence in Bennier v Millar for an offence of trespass was 7 months' imprisonment which was suspended. It was found not to be excessive. In Sikora v Gibson[20] Corboy J considered the usual penalty for an offence of trespass and noted that on appeal sentences of imprisonment, fines and conditional release orders were found to be within the sound exercise of a sentencing discretion.[21]
[20] Sikora v Gibson [2018] WASC 271.
[21] Sikora v Gibson [25].
I took into account the appellant's substantial criminal history. He did not receive credit for being of good character. He had six convictions for breach of a bail undertaking, albeit not a protective bail condition. In November 2012 he was convicted of assault causing bodily harm in circumstances of aggravation. On the same occasion he was convicted of breaching a violence restraining order. He had two further convictions for assault occasioning bodily harm recorded on 20 December 2007. He had a prior conviction for breaching a violence restraining order in 2002. These relevant offences were only part of a record of generalised offending. This series of offences together with his prior criminal history and lack of remorse indicated that personal deterrence was an important sentencing factor.
I determined that a sentence of imprisonment was the only appropriate sentence and that a discount of 15% for the appellant's plea of guilty to the offence of trespass was appropriate. There was nothing else in mitigation. The appellant's concern about the complainant's drinking and the cleanliness of her home were not excuses for breaking in at 2.00 am and trespassing. A sentence of 3 months' imprisonment for the offence of trespass was entirely just.
The assault committed at the same time was aggravated by the fact that the complainant and the appellant had been in a domestic relationship and the factors identified in [52]. In considering the appropriate sentence for that offence I did not take into account the allegation of spitting on the complainant as it was denied by the appellant.
In Bropho v Hall[22] Mitchell J noted that offences of this nature generally involve an abuse of trust one partner places in the other, often where the victim is in a vulnerable position by reason of the greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she may have in extricating herself from the situation.
[22] Bropho v Hall [2015] WASC 50 [16].
McLure P noted in The State of Western Australia v Cheeseman[23] that the readiness of many victims to return to, or remain in, a relationship with an abusive perpetrator is a hallmark of domestic violence. Sentencing must therefore take into account the need to protect persons in that vulnerable position by the imposition of sentences that bear a proper relationship to the overall criminality, which have a deterrent effect, and in appropriate cases, remove the offender to a place where there is no opportunity to violently attack their partner again.
[23] The State of Western Australia v Cheeseman [2011] WASCA 15 [3].
In Leighton v Nelson[24] Hall J noted that there was no established range of sentences for the offence and that there are a large variety of circumstances in which offences of this kind can be committed. Thus care must be used in making comparisons to take into account the different types of assaults and the different circumstances of the offender.
[24] Leighton v Nelson [2016] WASC 354 [28].
An assault on an eight month pregnant woman in her home at 2.00 am in the morning after the offender has broken into the property is extremely serious. Other than the plea of guilty there were no mitigating factors to take into account. Personal deterrence was very relevant given the appellant's offending history. General deterrence was also a relevant sentencing factor. A sentence of imprisonment was the only appropriate sentence. After allowing for a 15% reduction in the sentence for the appellant's plea of guilty a sentence of no less than 6 months' imprisonment was entirely just for the offence.
The assault committed in circumstances of aggravation on 30 April 2018 was a more serious offence. This was given that the assault went on for a longer period of time and the acts of assault were greater. It was also committed whilst the appellant was on bail for the earlier assault. Accepting the appellant's explanation for the offence, there was some justification for the appellant to physically handle the complainant in order to stop her from interfering with the driving of the vehicle. However, the much more serious assault committed by the appellant was without justification. The offence put at risk the safety of other road users. A sentence of imprisonment was the only appropriate sentence.
A reduction of 20% for the appellant's plea of guilty ought to have been given. This is because although the plea was entered two months after the appellant first appeared in the Magistrates Court there was significant benefit to the State and Ms King in the plea of guilty.
A personally deterrent sentence was required given that the offence occurred six months after the previous assault on Ms King. The appellant must appreciate that if he assaults Ms King or another partner he will receive significant penalties. I concluded that a sentence of no less than 8 months' imprisonment was entirely appropriate for this offence.
As with the other offences it was not possible to discern a customary range of offences imposed for the offence of breach of protective bail conditions.[25]
[25] Edgill v Maguire [2013] WASC 472 [14].
The Court of Appeal has upheld sentences of 6 months' immediate imprisonment for this offence.[26] Single judges on appeal from magistrates' decisions have upheld immediate sentences of imprisonment of 2 months and 4 months.[27] However, these cases do not purport to prescribe the range of appropriate sentences for offences of this type and it would be wrong of me to consider that they do.
[26] Butler v The State of Western Australia [2012] WASCA 249; Salkilld v The State of Western Australia [2017] WASCA 168.
[27] Hamlett v Whitney [2013] WASC 100; Corrigan v Kirkman [2011] WASC 254.
There were no mitigating factors other than the appellant's pleas of guilty. In relation to the offence committed on 30 April 2018 the appellant entered an early plea of guilty five days after his first appearance in court on the charge. A discount of 25% would be appropriate for his plea of guilty to that offence.
In relation to the offence committed on 4 June 2018 the appellant entered a plea of guilty on his second appearance in court which was one month after his first appearance. The prosecution case was extremely strong given that the appellant was arrested in the complainant's home. It would have been appropriate to give the appellant a reduction of 15% for his plea of guilty.
Taking these reductions into account sentences of 4 months' imprisonment for the offence on 30 April was entirely appropriate and somewhat lenient for the offence on 4 June 2018. The appellant was well aware of his bail conditions. There was no justification for his offending.
The second offence was serious given that he deliberately hid from the police when they came to the complainant's home. The breaches of bail were not fleeting. They went on for considerable periods of time. The first was serious because it was accompanied by an assault on the complainant.
The next issue for resolution is whether the sentences ought to be served concurrently with each other or cumulatively upon one another. A judgment must be made which recognises that the object is to impose a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in all of the offending. This means that offences committed during the one transaction may attract concurrent sentences on the other hand distinct acts may in the circumstances attract distinct penalties. Finally the total sentence must not be crushing.[28]
[28] Nguyen v The Queen [2016] HCA 17 [66] (Gageler, Nettle & Gordon JJ).
Consistent with these principles it was just to order that the sentences for the offences committed on 30 April 2018 be ordered to be served concurrently with one another because they were part of the same transaction. The same principle applied to the offences committed on 4 June 2018.
There were three separate transactions on 29 October 2017, 4 June 2018 and 30 April 2018. It would be consistent with the principles of totality to order that the sentences of 6 months, 8 months and 4 months be ordered to be served cumulatively upon one another. The magistrate's decision to order cummulacy in relation to the offences committed on 29 October 2017 and 30 April 2018 recognised the need to ensure that the total sentence accurately reflected the total criminality comprised in all of the offences. The decision to order concurrency in respect of the sentence for the final breach of bail could be regarded as being merciful. A total sentence of 14 months' imprisonment was in no way excessive and was well justified in all of the circumstances.
The appellant did not submit and neither did I consider it appropriate for the magistrate to suspend the sentences. The appellant did not have matters in his favour which justified suspending the sentences.
I therefore concluded that whilst the magistrate erred in law the individual sentences and the total sentence imposed on the appellant were entirely just. I was satisfied that the error of law did not result in a substantial miscarriage of justice. For these reasons I granted leave to appeal on ground 1 but otherwise dismissed that ground of appeal.
Ground of appeal 2
The respondent conceded that the magistrate should have been advised that the appellant had spent an additional 12 days in custody between 10 ‑ 21 May 2018.
The respondent conceded ground 2 and acknowledged that the appellant's sentences should be backdated to commence on 23 May 2018. This was on the basis that although a court has a discretion as to whether to take into account time spent in custody, the failure in this case to give full credit for the time spent in custody was not justified. I agreed.
I therefore granted leave to appeal on ground 2 and varied the appellant's sentence by ordering that it be backdated to commence on 23 May 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS5 DECEMBER 2018
3
23
3