Phelps v Standen - [2020] WASC 459

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PHELPS -v- STANDEN [2020] WASC 459
CORAM:   SMITH J
HEARD:   8 DECEMBER 2020
DELIVERED          :   8 DECEMBER 2020
PUBLISHED           :   10 DECEMBER 2020
FILE NO/S:   SJA 1076 of 2020
BETWEEN:   VINCENT-WIREMU JAMES PHELPS
Appellant
AND
WADE STANDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R S HUSTON
File Number            :   ON 116 of 2020

Catchwords:

Criminal law and sentencing - Criminal damage - Sentence of 8 months' immediate imprisonment manifestly excessive as to type of sentence

Legislation:

Criminal Code (WA), s 444(1)(b)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 9AA, s 68, s 76(3), s 76(4)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms N Sinton
Respondent	:	Ms G Beggs

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Bakdadi v O'Neill [2003] WASCA 267
Banwait v Eaton [2020] WASC 15
Carter v Platt (Unreported, WASC, Library No 9060, 18 September 1991)
Corpus v Roseveare [2015] WASC 165
DKN v The State of Western Australia [2018] WASCA 87
Joyce v Gee [2010] WASC 76
Krencej v The State of Western Australia [2019] WASCA 82
SHI v The State of Western Australia [2020] WASCA 197
Tang v The Queen [2020] WASCA 194
Ward v The State of Western Australia [2011] WASCA 172

SMITH J:

The appeal and the result

This is an appeal from the sentence imposed on the appellant in the Magistrates Court sitting at Carnarvon, on 14 September 2020, for an offence of criminal damage, being one count that on and between 11 August 2020 and 12 August 2020[1] at Onslow, the appellant wilfully and unlawfully damaged two vehicle windows of a Toyota commuter bus.
[1] Although the prosecution notice states that the date of the offence occurred on or between 11 August and 12 August 2020, when the facts of the offence were read to the court it was alleged that the offence occurred between 11:30 pm on Monday, 10 August and just after midnight on Tuesday, 11 August 2020. However, the record of proceedings recorded on the prosecution notice and the transcript of proceedings before the sentencing magistrate do not indicate that the date of the offence was amended.
The appellant was sentenced to a term of imprisonment of 8 months backdated to 10 September 2020, with eligibility for parole, and ordered to pay compensation in the amount of $1,357.48. The appellant appeals against the imposition of the term of immediate imprisonment but not the compensation order.
The appellant appeals on one ground, that the sentencing magistrate erred in sentencing him to imprisonment when in all of the circumstances a sentence of last resort was not open. In essence, the ground of appeal asserts the existence of an implied error, in that, the sentence of immediate imprisonment is manifestly excessive as to type.
The respondent conceded that the ground of appeal is made out and that the appeal should be allowed. After reading the written submissions filed by the parties and hearing counsel on 8 December 2020, I formed the view that the concession made on behalf of the respondent was properly made, and I made the following orders:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Other than the order for compensation in the amount of $1357.48, the sentence imposed on 14 September 2020 in ON 116/2020 be set aside.
4.The appellant is resentenced to a fine of $1,000.
These are my reasons for granting leave to appeal and allowing the appeal.

The sentencing proceedings

On 10 September 2020, the appellant appeared in the Magistrates Court in Onslow and entered a plea of guilty to the charge of criminal damage. The appellant was remanded in custody to appear for sentencing on 14 September 2020.

The facts of the offence of criminal damage

The facts of the offence were as follows. At about midnight on 10 August 2020 the appellant was walking home from the Bindi Bindi Aboriginal community. He was angry (because he had been assaulted by two women and pushed off a balcony and suffered a dislocated shoulder)[2]. Whilst walking, as he passed a commuter bus parked on the side of the road, he used his left fist to punch the rear passenger side window, causing it to smash. He then used his left fist to punch the front passenger window of the vehicle causing it, too, to smash. As a result he suffered lacerations to his hand and arms, and sought treatment. When he was arrested, he made full admissions and told the officers, 'I was in a fit of rage'.

The sentencing submission and the magistrate's sentencing remarks

[2] This fact was put to the sentencing magistrate on behalf of the appellant by his counsel in the plea of mitigation; ts 23.

At the commencement of the sentencing proceedings, his Honour turned his attention to the appellant's criminal history and remarked that the offence of criminal damage was a breach of his parole, and that the appellant would have been released on parole in January 2020.
Before any submission in mitigation was made, his Honour remarked that the appellant's record was incredibly concerning. On 12 December 2018, the appellant was sentenced by a magistrate sitting at the Perth Magistrates Court to four community‑based orders for serious offending. On 8 January 2019, he received a $200 fine for possessing drug paraphernalia. On 28 March 2019, the appellant was sentenced for seven new offences, the four community‑based orders were cancelled and four suspended imprisonment orders were issued, in addition to seven fines, totalling $2,750.
The appellant was subsequently sentenced to a term of immediate imprisonment for 17 months by a magistrate sitting at the Perth Magistrates Court on 1 May 2019 (backdated to 26 April 2019) for a number of offences, which included one count of criminal damage, two counts of stealing a motor vehicle, one count of obstructing a public officer, one count of trespass, and four breaches of the suspended imprisonment orders made on 28 March 2019.
The appellant's parole was due to expire on 25 September 2020 (being six weeks after the date of the offence and eleven days after the date of the sentencing proceedings).
The appellant's counsel informed his Honour that the Prisoners' Review Board were unlikely to cancel the appellant's parole as he had been complying well with his parole conditions and was due to start a maintenance job in eight days' time, but that would depend on what penalty was imposed for the offence of criminal damage.
After having regard to this history of offences, his Honour remarked:
He hasn't made it through parole, because he has, again, committed really serious … offence of criminal damage to the bus.
Certainly too serious for fines and, in my view, way too serious for community-based order. Indeed, imprisonment is on the cards. He is on parole for very serious offences. Previously had the benefit of a suspended imprisonment order, which he didn't make it through. Previously had four community-based orders, which he didn't make it through, on each of those resentencing exercises. There was other offences that were dealt with and mostly dealt with by way of fine ...
The appellant's counsel made submissions in mitigation and as to sentence. The appellant also provided information to the court. The submissions put in mitigation and as to sentence can be summarised as follows:
(1)The appellant had pleaded guilty to the charge at the first opportunity.
(2)The appellant had been at the community drinking with some friends and he had fallen off a veranda and hurt his arm. (The appellant subsequently explained to his Honour that he had been assaulted by two women and was drunk but that he was not going to hit (a girl)).
(3)When he was pushed off the balcony and hit the floor, his arm was dislocated, which resulted in him being in a fit of rage because he was in a lot of pain.
(4)The appellant regretted his actions.
(5)The appellant had been working for most of the time he had been on parole and he had come to Onslow (from Perth) to be with his family to work and he was receiving a lot of support from his family.
(6)When the appellant was walking back to town, he was angry and he did not think the windows would break when he hit the bus. Defence counsel subsequently clarified this submission by stating that the appellant did not think the windows would break when he hit the first window, and that he accepted that he did not have to smash the second window (for it to break).
(7)The appellant fully accepted responsibility for the offence.
(8)The appellant is 22 years of age, has been to prison, and does not want to go back.
(9)The appellant has the capacity to pay a fine and pay for the damage as he had money in his bank account, and is due to start a new better paid full-time job at Wheatstone (two weeks on, one week off), which would earn him $1,500 a week.
(10)If a fine was not an appropriate sentencing disposition, a community-based order or intensive supervision order would be a suitable sentencing disposition.
The prosecutor stated that:
(1)The offence was concerning because not only was the appellant in a fit of rage when he committed the offence but it appeared from his record that alcohol is an issue and that is reflected in his criminal history.
(2)It could not be the case that the appellant did not know the windows of the bus would break, because after he hit the first window it broke before he hit the second window.
(3)A suspended imprisonment order would not be appropriate and an immediate order for imprisonment should be made.
His Honour stated that he regarded the offence to be too serious for a fine to be an appropriate sentencing disposition. He also did not regard an intensive supervision order to be a suitable sentencing disposition, and in any event he could not impose such an order prior to receiving a written presentence report.[3]
[3] Sentencing Act 1995 (WA) s 68.
His Honour accepted that the appellant had pleaded guilty to the offence very early, and that his prior offending did not aggravate the seriousness of the offence but it was a relevant factor for sentence. His Honour indicated that, because of the appellant's early plea to the offence, he would grant the appellant the maximum reduction in sentence of 25% permitted by s 9AA of the Sentencing Act 1995 (WA).
His Honour formed the view that the sentencing considerations of personal and general deterrence required that a term of imprisonment should be imposed, given the substantial inconvenience to other persons who had to clean up the mess and who were unable to use the bus (until the windows were fixed), but that because of the appellant's youth and the fact that there was no harm committed to any person in particular, he was of the view that the term of imprisonment should be suspended.
His Honour was informed that because the offence was committed during a term of parole that a term of suspended imprisonment could not be imposed pursuant to the Sentencing Act (s 76(3) and s 76(4)), and his Honour then imposed a sentence of immediate imprisonment of 8 months with eligibility of parole, and made an order requiring the appellant to pay compensation for the cost of rectifying the damage to the windows in the sum of $1,357.48.

Manifest excess ‑ sentencing principles

This ground of appeal asserts implied rather than express error. The principles of implied error are well‑established.
Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[4]
[4] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55]; Tang v The Queen [2020] WASCA 194 [105].
Accordingly, the appellant must demonstrate that the sentencing outcome was one that was not open to the sentencing judge in the proper exercise of his Honour's discretion.[5]
[5] SHI v The State of Western Australia [2020] WASCA 197 [37].
In SHI v The State of Western Australia, the Court of Appeal recently restated the following well-known principles:[6]
[6] SHI v The State of Western Australia [2020] WASCA 197 [39] ‑ [42]. (footnotes omitted)
It is established that:
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence.
The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case. Determining whether a sentencing option is 'not appropriate' involves an evaluative judgement which is broad but not at large; it must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender. In R v Liddington, a case concerning possession of child pornography under the predecessor offence to s 220 of the Code, Steytler J (as his Honour then was) identified as non‑exhaustive relevant factors: (1) the prospect of rehabilitation; (2) the personal deterrence provided by the threat of activation of the suspended sentence; (3) the perceived seriousness and intrinsic character of the particular offence; (4) any element of persistence; (5) general deterrence; (6) factors personal to the offender including mitigating circumstances; (7) the need to demonstrate the condemnation of the community for offences of that kind; and (8) reasons militating in favour of an exercise of mercy.
There will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.
So far as the appellant alleged that his sentence of immediate imprisonment was manifestly excessive as to type, it remains necessary for this court to identify error. Again, however, error will be inferred where the sentence imposed is unreasonable or plainly unjust. In HNA v The State of Western Australia this court explained that:
'Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.'
Consequently, in order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:[7]
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.
[7] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
When sentencing an offender:
(a)s 6(1) of the Sentencing Act requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of the offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
Consequently, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.

Sentence manifestly excessive

The maximum penalty for the offence of which the appellant was convicted under s 444(1)(b) of the Criminal Code is 14 years' imprisonment.[8] On summary conviction, the appellant was liable to imprisonment for 3 years and a fine of $36,000.
[8] Criminal Code (WA) s 444(1)(b).
There is no tariff for offending against s 444(1)(b) of the Criminal Code because of the great variation in the facts and circumstances of these offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. The limits of the guidance afforded by any comparable cases are flexible. Comparable cases can provide only general guidance.[9]
[9] Ward v The State of Western Australia [2011] WASCA 172 [84] (Buss JA); applied in Banwait v Eaton [2020] WASC 15 [74] (Smith J).
This is because the circumstances in which such an offence can be committed can vary markedly.[10] The factors that may be relevant in assessing the seriousness of such an offence include the degree of deliberation involved and the extent and the value of the damage caused.[11]
[10] Corpus v Roseveare [2015] WASC 165 [50] (Hall J); applied in Banwait v Eaton [2020] WASC 15 [75] (Smith J).
[11] Corpus v Roseveare [2015] WASC 165 [50] (Hall J); Bakdadi v O'Neill [2003] WASCA 267; Joyce v Gee [2010] WASC 76 and Carter v Platt (Unreported, WASC, Library No 9060, 18 September 1991) (Murray J); applied in Banwait v Eaton [2020] WASC 15 [75] ‑ [76] (Smith J).
When all of the circumstances of the offence are considered, the seriousness of the offending was not of such seriousness as to warrant the imposition of an immediate term of imprisonment.
As the respondent points out, viewed objectively, the appellant's offending is at the lower end of the scale of seriousness of offences of this type. Further, as both the appellant and the respondent point out, the offending was not premeditated, it took moments to commit and occurred on the spur of the moment, with no apparent planning or thought, and was not done in furtherance of other offending, such as trespass or burglary.
Whilst the offence was not trivial, the quantum of the damage caused was relatively low. No one was endangered by the damage, although people were undoubtedly inconvenienced by it.
Whilst the offending was aggravating, the offending was committed whilst the appellant was on parole for other offending. However, this aggravating feature was not such as to elevate the seriousness of the offending such that a term of immediate imprisonment was required.
Consequently, I am satisfied that while substantial weight is required to be given to the need to protect the public against the risk of further offending by the offender, and the acuteness of that risk is reinforced by the appellant's past and recent criminal history, the place which the conduct of the appellant's offence occupies on the scale of seriousness of offences, namely criminal damage, is relatively low.

The appellant is a relatively young man and although specific deterrence was a factor, and the appellant's past history would indicate that he had anti-authoritarian and pro-criminal attitudes, and poor compliance with community-based dispositions in the past, it appears from his criminal history that, except for the offence for which he was convicted, all of his offending has occurred in the metropolitan area. There was some evidence before the sentencing magistrate that the appellant had taken recent steps since his release from prison on parole to turn his life around. It was not in dispute that until he committed the offence for which he was sentenced he had been complying with his conditions of parole. It also appeared that the appellant had family support in Onslow. Further, he was not a man without prospects. He had been employed, had money in the bank to pay a fine and compensation for the damage to the bus, and at the time of sentencing he was about to commence full-time employment. Further, he readily admitted the offence at the first opportunity, was remorseful, and had at the time of sentencing spent four days in custody for the offence.
When the maximum sentence prescribed for an offence of criminal damage is viewed together with the appellant's personal circumstances, and regard is had to the place which the criminal conduct occupies on the scale of seriousness, a sentence of 8 months' immediate imprisonment is a severe sentence for this offence.
Having regard to all of the circumstances, and all relevant sentencing factors and principles, I am persuaded that the sentence imposed was unreasonable and plainly unjust. I have been persuaded that the sentence imposed upon the appellant was, with great respect to the sentencing magistrate, outside the range of a proper exercise of the sentencing discretion.
For these reasons, leave to appeal should be granted and the sentence set aside.

Appellant re-sentenced

In re‑exercising the sentencing discretion, I am of the view that a fine is an appropriate disposition for the offence.
After considering the maximum penalty, the circumstances of offending, mitigating factors, and aggravating factors, I am of the view that the appropriate disposition for the offence is a fine of $1,000.
In imposing this sentencing disposition, I have had regard to the matters put to the sentencing magistrate at first instance. I have also had regard to the fact that the appellant spent a further five weeks in custody from the time of the sentence for this offence until he was granted bail by Allanson J on 14 October 2020 pending the hearing determination of this appeal.
Turning to the appellant's current circumstances, counsel for the appellant has informed the court that:
(a)the appellant commenced employment at Wheatstone as soon as he was released on bail and his employment generates an after tax income of $1,000 a week;
(b)the appellant lives with his mother and pays board and contributes to his partner and her children's expenses;
(c)the appellant has saved $1,000 towards payment of the compensation order;
(d)the appellant is able to pay a fine;
(e)the appellant had been receiving drug and alcohol counselling from Mission Australia whilst on parole; and
(f)the Parole Board took no action to breach the appellant.
After having heard the submissions of counsel for the appellant, I am satisfied that the appellant is committed to his rehabilitation and should be provided with an opportunity to break his pattern of offending behaviour and change his life for the betterment of himself and the community.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Research Orderly to the Honourable Justice Smith
10 DECEMBER 2020