Pavlitsas v Rowe
[2013] WASC 233
•19 JUNE 2013
PAVLITSAS -v- ROWE [2013] WASC 233
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 233 | |
| Case No: | SJA:1147/2012 | 19 APRIL 2013 | |
| Coram: | HALL J | 19/06/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1 and 3 Appeal allowed Sentences set aside and appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | ANTHONY PAVLITSAS MITCHELL STEVEN ROWE |
Catchwords: | Criminal law Appeal against sentence Breach of bail Traffic offences Whether fines imposed manifestly excessive Whether amount of fines failed to take into account time spent in custody Turns on own facts |
Legislation: | Nil |
Case References: | Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Hamlett v Whitney [2013] WASC 100 Hodder v Skamp [No 2] [2009] WASC 53 Hoskins v Ramsden [2008] WASC 28 Hussaini v Szolnoski [2013] WASC 64 Mears v Holleman [2010] WASC 39 Narkle v Hamilton [2008] WASCA 31 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Faithfull [2004] WASCA 39; (2004) A Crim R 554 Roffey v The State of Western Australia [2007] WASCA 246 Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 Sgroi (1989) 40 A Crim R 197 Sheiner v Roberts [2009] WASC 281 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MITCHELL STEVEN ROWE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 34806 of 2012, PE 34807 of 2012, PE 34827 of 2012, PE 34828 of 2012, PE 34829 of 2012
Catchwords:
Criminal law - Appeal against sentence - Breach of bail - Traffic offences - Whether fines imposed manifestly excessive - Whether amount of fines failed to take into account time spent in custody - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal granted on grounds 1 and 3
Appeal allowed
Sentences set aside and appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Ms M J Woo
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hamlett v Whitney [2013] WASC 100
Hodder v Skamp [No 2] [2009] WASC 53
Hoskins v Ramsden [2008] WASC 28
Hussaini v Szolnoski [2013] WASC 64
Mears v Holleman [2010] WASC 39
Narkle v Hamilton [2008] WASCA 31
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Faithfull [2004] WASCA 39; (2004) A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Sgroi (1989) 40 A Crim R 197
Sheiner v Roberts [2009] WASC 281
(Page 3)
- HALL J:
Introduction
1 On 2 November 2012 the appellant was fined a total of $6,700 for a number of offences under the Bail Act 1982 (WA) and the Road Traffic Act 1974 (WA). He now seeks leave to appeal against the sentences imposed.
2 The dates of the offences and the individual sentences imposed were as follows:
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Grounds of appeal
3 The grounds of appeal are as follows:
1. The learned sentencing Magistrate erred in law in imposing financial penalties which were manifestly excessive in light of the maximum sentences prescribed by law for the offences, the standards of sentencing customarily observed with respect to the offences, the circumstances of the offences, and the personal circumstances of the Appellant.
2. The learned sentencing Magistrate erred in law in imposing an overall penalty which was disproportionate to the criminality of the Appellant's offending conduct in all of the circumstances.
3. The learned sentencing Magistrate erred in law in imposing fines which did not give the Appellant credit for the time he had already spent in custody in relation to these offences.
4. The learned sentencing Magistrate erred in law in imposing substantial fines which did not take into account the means of the Appellant, who is in custody awaiting trial in another state, as required by s 53(1)(a) of the Sentencing Act 1995 (WA).
Background
4 In early 2008 the appellant was charged with assault occasioning bodily harm and common assault and bailed to appear in the Magistrates Court in Perth. He appeared on 28 April 2008 and was bailed to appear again in the Perth Magistrates Court on 9 May 2008 in respect of one of the charges and in the Broome Magistrates Court on 27 June 2008 on the other charge. Why he was bailed to appear in different courts on different
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- dates in respect of the two charges is not apparent. In any event, he failed to appear on either of those occasions and warrants were issued for his arrest.
5 At around the time that the appellant was due to appear on the assault charges he left the State and went to live in the Northern Territory. Whilst there he obtained a Northern Territory drivers licence. He was not entitled to that licence as he was at that time disqualified both in Western Australia and South Australia. The appellant had been able to obtain his Northern Territory licence by failing to declare all of his traffic related convictions in other jurisdictions. He also spelt his name in a different way on the application form and, whether or not this was deliberate, it prevented those convictions from being discovered when checks were made.
6 The appellant subsequently returned to Western Australia and on 12 July 2012 was stopped for a random breath test. The breath test was positive and it was determined that he had in excess of 0.08 milligrams of alcohol per 100 mils of blood. The appellant produced the Northern Territory drivers licence but police records showed that he was disqualified from driving in this State. The appellant was arrested on the two outstanding bench warrants from 2008, charged with the five offences and remanded in custody.
7 The appellant remained in custody until the date of his sentencing on 2 November 2012. The time in custody was not solely attributable to the five charges. The appellant had some outstanding fines and from 12 to 14 July was held in custody in default of payment of those fines. Thereafter the appellant was held in custody on the two assault charges dating from 2008. The appellant maintained pleas of not guilty in respect of those charges and they were subsequently discontinued. The reason the assault charges were discontinued is said to be because on 13 July 2012 an application was made to extradite the appellant to South Australia to face serious charges in that State. That extradition subsequently occurred and as at the date of the hearing of this appeal I was informed that the appellant remained in custody in South Australia awaiting trial.
8 The appellant's counsel said that this appeal remained of significance to the appellant because he has family members in this State and wishes ultimately to return here to live. Although it is not clear when he might return, it is necessary for him to pursue any appeal against the sentences imposed now.
(Page 6)
Proceedings in the Magistrates Court
9 In sentencing submissions before the magistrate it was conceded by the prosecution that there had been unsatisfactory delays in bringing the matter to a conclusion. This related both to making enquiries in respect of the Northern Territory drivers licence and in finalising the necessary paperwork for the extradition to South Australia. The prosecution submitted that bearing in mind that the appellant had spent nearly four months in custody and that any additional term of imprisonment might delay the extradition that the appropriate penalties were fines.
10 The magistrate, in imposing sentence, said as follows:
The fines have to be significant in relation to breach of bail. You were - effectively, there was a warrant for your arrest for four years and that is a significant period of time, taking into account your history, your lengthy history in South Australia for similar offences, for breaches of bail, around about 2005, 2004, there were significant breaches of bail and a lot of money that you had to pay in relation to those breaches of bail, and this in 2008.
I should take into account you have already spent four months in custody which, effectively, is an eight months prison term, and take that into account when I set the amount in relation to this.
On prosecution notice 34806 there is a fine of $2000 and $5000 is estreated to the crown, because that was the amount that you said that you would pay. This court doesn't deal with a surety, it's another court that deals with that in terms of action taken by the crown.
In relation to breach of bail on 34807, a similar situation, there is a fine of $1000. Then we go to - and there is no order as to costs in relation to those, to take into account the time spent in custody.
In relation to prosecution notice 34827 of 2012, there is a fine of $1200; and on prosecution notice 34828 of 2012 a fine of $1000 and 12 months disqualification cumulative upon any other disqualification.
On the .08 there is a fine of $1500 and 10 months disqualification.
Now, I don't know whether this is going to be academic or not, depending on what happens in South Australia, but the 12 months goes on top of the 10 months so, effectively, it's 22 months because it is cumulative upon that disqualification (ts 12).
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11 There then followed an exchange between the magistrate and the appellant in which she explained the effect of the disqualification orders. Her Honour then said:
Now, the reason that the fine for driving under suspension is $1000 is because of your offending history in South Australia, with numerous driving matters. They do not act as a prior but it indicates to me that you choose to drive under suspension, and it is an aggravating factor that you have that interstate lengthy record, but in this state this is a first, but it is aggravated by the alcohol consumption and also the fact that you were disqualified for drink driving, the .05, and you chose to drive within a very short period of time, five months, under suspension and another drink driving (ts 13 - 14).
12 In her remarks, the magistrate made reference to the appellant's extensive record in South Australia. This record included offences of dishonesty, violence and traffic related offences. The traffic offences included four of driving without a drivers licence and eight of driving whilst disqualified. There were also a number of offences relating to the failure to comply with bail conditions.
Ground 1 - Were the individual sentences manifestly excessive?
13 A ground of appeal that alleges that a sentence is manifestly excessive asserts the existence of an implicit error (see Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [127] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J)). A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.
14 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender (see Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
15 The maximum penalties for each of the offences is noted in the table that appears earlier in these reasons. It should be noted that the statutory penalty for the .08 offence varies depending on whether the offence is a first, second or subsequent offence. It also varies depending on the blood alcohol content of the offender. In this case, the appellant had one
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- relevant prior offence in this State and his blood alcohol content was 0.107 grams per 100 mils of blood. In those circumstances, s 64(2) of the Road Traffic Act provides that a fine of not less than $900 and not more than $1,500 must be imposed and the offender must be disqualified from holding or obtaining a drivers licence for not less than 10 months.
16 As to the range of sentences customarily imposed for offences of this nature it is difficult to discern such a range in respect of breach of bail offences: Hamlett v Whitney [2013] WASC 100. The same is true of the offence of possessing a drivers licence calculated to deceive. As regards driving under suspension, it has been noted that sentences of between four and nine months' imprisonment for multiple offences have been imposed: Sheiner v Roberts [2009] WASC 281 and Mears v Holleman [2010] WASC 39. This was for offences that were between the fourth and eighth of that type committed by the offender. It is not sensible to refer to a usual range in respect of the .08 offence because the penalties vary significantly depending upon whether there have been previous offences and the exact quantity of alcohol in the blood.
17 As regards the seriousness of the offending behaviour, the behaviour falls into two distinct time periods. The 2008 offending involved the two breaches of bail. The respondent suggests that these breaches were serious because the appellant absconded to the Northern Territory. However, it is difficult to conclude from the information before the magistrate that the appellant left the State in order to avoid the pending assault charges. The date on which he left for the Northern Territory and the reasons for it were not made clear. Whilst there was a long delay before the appellant was arrested he appears to have made no attempt to avoid the police on his return to Western Australia. Indeed, 12 July 2012 was not the first occasion he had come into contact with the police on returning to Western Australia. On 3 February 2012 he had been charged with an earlier .08 offence and been fined and disqualified from driving for six months as a consequence. It would seem that the outstanding bail charges were not noticed at that time.
18 The seriousness of the underlying charges that were the subject of the bail in 2008 is a relevant consideration. Those charges were of common assault and assault occasioning bodily harm, offences which carry the possibility of imprisonment. The fact that those charges were ultimately discontinued does not detract from the importance of complying with bail conditions in respect of them: Hamlett v Whitney [29].
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19 No explanation was given for the appellant's failure to comply with the bail so it is difficult to determine whether it was a deliberate defiance of the law or was simply carelessness. However, the appellant did have a significant prior history in South Australia of non-compliance with bail.
20 As regards the offence of possession of a drivers licence calculated to deceive, the magistrate found that the appellant had misled the authorities in the Northern Territory regarding his traffic history. She also found that the appellant must have known when he was stopped by the police in Western Australia on 12 July 2012 that he was disqualified from driving. In these circumstances the production of the Northern Territory licence took on a more serious quality. The only conclusion that could be drawn from the production of that licence was that the appellant was trying to deceive the police regarding his authority to drive. His plea of guilty to this charge was an acceptance of that conclusion.
21 As regards the driving under suspension offence, the circumstances were that the appellant's drivers licence had been suspended in the Perth Magistrates Court for six months on 27 March 2012. Despite that suspension the appellant chose to drive a motor vehicle on 12 July 2012. He had been convicted of eight similar offences in South Australia between 1995 and 2006 and three such offences in this State between 2007 and 2008. In this case, the driving was aggravated by the fact that he was also affected by alcohol. In these circumstances this was an offence for which a sentence of imprisonment could properly have been imposed.
22 As regards the excess 08 offence, this offence was committed at a time when the appellant was disqualified from driving. The appellant also had a prior record of similar such offences both in this State and in South Australia. Whilst prior offences do not aggravate an offence they are relevant in that they negate any suggestion of good character and also indicate that prior penalties have not been effective as a personal deterrent.
23 As to the personal circumstances of the appellant, the only significant mitigating factor was that he had pleaded guilty to the charges. This was a factor that was deserving of a discount on the sentence imposed. At the time of sentencing, s 8 of the Sentencing Act 1995 (WA) provided that a guilty plea was a mitigating factor and the earlier it was made, or indication given that it would be made, the greater the mitigation. The magistrate was clearly conscious of the need to take into account the plea of guilty and it is possible that she did so by reducing
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- some of the fines. However, in respect of the .08 offence, the maximum fine was imposed. As serious as that offence was, that penalty makes no allowance for the plea of guilty.
24 In my view, with the exception of the fine for the .08 offence, the penalties were within the range available in the appropriate exercise of sentencing discretion for offences of these types. The penalty for the .08 offence is, however, manifestly excessive at least insofar as it makes no allowance for the plea of guilty. As to whether the penalties properly take into account the time spent in custody that issue will be referred to in respect of ground 3.
Ground 2 - Totality
25 The totality principle has been described as having two limbs. First, where an offender is sentenced for a number of offences the aggregation of the sentences should be a just and appropriate measure of the total criminality having regard to the circumstances of the case including those referable to the offender personally. Secondly, the overall sentence should not be crushing in that it would destroy any reasonable expectation of a useful life after release: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J) and Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25] (McLure JA).
26 The principle is usually invoked in respect of sentences of imprisonment but the rationale that underpins it is also applicable in the case of fines: Hoskins v Ramsden [2008] WASC 28 and Sgroi (1989) 40 A Crim R 197, 203 - 204.
27 In this case the appellant submits that the total of $6,700 in fines infringed the first limb of the totality principle in that that amount did not bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety. This is said to be for two reasons. First, that the driving offences constituted one course of conduct and would normally have attracted 'modest fines'. Secondly, that the total amount of the fines does not take into account the time spent in custody. I will deal with the second matter under the next ground.
28 The totality principle does not require that sentences that arise out of the same set of facts must always be concurrent. The task of a sentencing court in every case is to consider whether the total effective sentence results in an appropriate sentence having regard to the total criminality. There is no bulk discount that is available where a large number of offences are committed.
(Page 11)
29 The appellant's submissions imply that the so-called 'one transaction rule' has application. That of course is not a rule at all. It is simply a convenient label that has been used to recognise that in cases where a number of offences arise out of the same set of facts if cumulative penalties are imposed for all of the offences then a sentence may be produced which would be excessive. Thus, in order to properly reflect the criminality concurrency, or some concurrency, will often be appropriate: R v Faithfull [2004] WASCA 39; (2004) A Crim R 554 [25] - [28]. In the case of fines, it may be necessary in some cases to reduce the amount of the fines to ensure that the total penalty is not excessive.
30 The fact that in other cases lesser fines may be imposed for offences of this type is of little assistance. The appropriate penalties will always depend upon the particular circumstances of the offence and the personal circumstances of the offender.
31 I am unable to conclude that the total of the fines was disproportionate to the criminality of the offending as a whole. The bail offences were distinct and separate offences committed on different days and not part of a single transaction. The remaining offences were all committed on the same day but each of them involved different elements. They were also particularly serious offences bearing in mind the appellant's history.
32 The total of the fines should also have reflected the time spent in custody. This would result in a reduction in the individual and total fines that might otherwise have been appropriate. Whether the total fine was excessive because it failed in this regard will be dealt with under ground 3.
Ground 3 - Time in custody
33 As I have noted, the appellant had spent nearly four months in custody by the time he came to be sentenced on 2 November 2012. As I have also noted, that time was not spent solely in respect of the offences for which the appellant was sentenced. Nonetheless, this was a case in which it was just and appropriate that that time be taken into account in determining the appropriate penalties: see Narkle v Hamilton [2008] WASCA 31 and Hodder v Skamp [No 2] [2009] WASC 53.
34 The magistrate specifically referred to the time spent in custody and the need to take it into account. Exactly how it was taken into account is not apparent. It would be expected that the effect of taking it into account would be to reduce the size of the fines that the magistrate would
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- otherwise have imposed. There was also a need to take into account the pleas of guilty.
35 Whilst the quantum of the fines make it possible that the magistrate took into account both the plea of guilty and the time in custody in respect of the breach of bail and driving under suspension charges, such a conclusion is not open in respect of the remaining charges. The possession of a drivers licence calculated to deceive charge carried a maximum penalty of $1,600. The fine imposed was $1,200. Even assuming that the magistrate started at the maximum penalty the fine of $1,200 imposed could not have taken into account both the plea of guilty and the time in custody. The position is clearer still in respect of the excess .08 charge. On that charge the maximum fine of $1,500 was imposed. That fine could not have taken into account the time spent in custody.
36 Of course it is important to acknowledge that each of the fines imposed here was part of a larger sentencing exercise. For this reason I have given consideration as to whether it was possible that the magistrate has given all of the necessary credit for the time in custody when setting the fines on the bail offences. However, that does not seem to me to be either a satisfactory approach for the magistrate to have taken nor one borne out by an examination of all of the fines. The nearly four months in custody should have resulted in significantly lower fines both individually and cumulatively than occurred.
Ground 4 - The appellant's means
37 Section 53(1) of the Sentencing Act requires a court imposing a fine to take into account the means of an offender and the extent to which payment of the time will be a burden upon the offender. Section 53 of the Sentencing Act provides as follows:
Considerations when imposing a fine
(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -
(a) the means of the offender; and
(b) the extent to which payment of the fine will burden the offender.
(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).
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- (3) A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.
38 The reference to div 1 of pt 2 of the Sentencing Act is to the general sentencing principles. These include that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1). This means that whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
39 However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that would be open to be imposed. It is in this context that the means of an offender and the extent of any burden on an offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court: Hussaini v Szolnoski [2013] WASC 64.
40 At the time the appellant came to be sentenced he was in custody and due to be extradited to South Australia to face trial in that State. It was submitted that in those circumstances he had no immediate capacity to pay a fine. It was also submitted that it was possible to impose fines that were significantly lower yet still commensurate with the seriousness of the offences. It was also relevant to take into account that in respect of one of the breach of bail offences the magistrate had ordered the estreatment of the appellant's undertaking of $5,000.
41 The magistrate gave consideration to the appellant's means and made enquiries as to whether he had any other unpaid fines. As at the date of sentencing he had unpaid fines totalling $1,643.20. This was a relatively small proportion of a larger amount that the appellant had paid off since 2004. The respondent submits that on this basis the appellant had shown a capacity to pay off fines over time.
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42 Given that ground 1 and ground 3 have succeeded it is strictly unnecessary to determine this ground. However, it should be noted that it is somewhat artificial to consider whether the fines could have been reduced having regard to the appellant's means in circumstances where (at least in respect of the offence of driving under suspension) the range included a sentence of imprisonment. The appellant had thus effectively received some credit in respect of that offence by being fined rather than imprisoned.
43 In any event, neither before the magistrate nor on appeal was there any significant information regarding the appellant's means. Any suggestion that he would not have the capacity to pay fines in the future depended upon speculation as to the outcome of the proceedings in South Australia.
Conclusion
44 Leave in respect of grounds 1 and 3 will be granted. Those grounds succeed and the sentences imposed by the magistrate must be set aside. As regards ground 3, I am satisfied that the fines imposed by the magistrate failed to take into account the time in custody. Although this conclusion can be clearly reached having regard to two of the individual fines, it affects them all. Whilst the fines imposed in this case (other than in respect of the .08 offence) might have been appropriate in other circumstances, they did not reflect any adequate degree of credit for the time the appellant had spent in custody. Thus this appeal turns very much on its own particular facts.
45 Accordingly, the sentences imposed by the magistrate will be set aside. I have sufficient information to resentence the appellant. Accordingly, the orders will be as follows:
1. Leave to appeal is granted in respect of grounds 1 and 3.
2. Leave to appeal is refused in respect of grounds 2 and 4.
3. The fines imposed by the magistrate are set aside.
4. In lieu thereof the following fines are imposed:
Charge 34806/12 - $750.
Charge 34807/12 - $750.
Charge 34827/12 - $800.
- Charge 34828/12 - $700.
Charge 34829/12 - $1,000.
(The disqualification orders made by the magistrate stand.)
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