Pledge v Davey - [2000] WASCA 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: PLEDGE -v- DAVEY [2000] WASCA 20

CORAM: WHITE J

HEARD: 15 DECEMBER 1999

DELIVERED : 15 FEBRUARY 2000

FILE NO/S: SJA 1161 of 1998

BETWEEN: ELSIE BLANCH PLEDGE
Appellant
AND
WAYNE ANTHONY DAVEY
Respondent

Catchwords:

Appeal against conviction and sentence - Appeal seeking to overturn the learned trial Magistrate's findings as to credibility of witnesses - Remarks concerning sentencing - Turns on own facts

Legislation:

Dividing Fences Act

Justices Act 1902

Sentencing Act1995 s 46

Result:

Appeal against conviction dismissed
Appeal against sentence upheld

Representation:

Counsel:

Appellant: Ms S P Richardson
Respondent: Ms C L Bathurst

Solicitors:

Appellant: Kuscevich & Associates
Respondent: State Crown Solicitor

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

Agbaba v Witter (1977) 51 ALJR 503
Devries v Australian National Railways Commission (1993) 177 CLR 472
Mifsud v Campbell (1991) 21 NSWLR 725
R v Murphy (1985) 4 NSWLR 42
State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306
Vujcic v Moffitt, unreported; SCt of WA; Library No 970156; 11 April 1997

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brooks v Sunlife Properties Pty Ltd, unreported; FCt SCt of WA; Library No 960709; 13 December 1996
Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49
Edmond v Taylor, unreported; FCt SCt of WA; Library No 980476; 6 August 1998
Jones v Hyde (1989) 63 ALJR 349
M v R (1994) 181 CLR 487
Marelic v Comcare (1993) 47 FCR 437
R v Murphy (1985) 4 NSWLR 42

WHITE J: On 16 September 1998, the appellant was convicted following a trial in the Court of Petty Sessions at Perth of two counts of unlawful assault contrary to s 313 of the Criminal Code and was sentenced to pay a fine of $250 on each count and was ordered to pay costs amounting to an aggregate of $166.50.
There are three grounds of appeal, namely:
"(a)The learned Magistrate determined the issues in question without reference to all of the evidence.
(b)The learned Magistrate erred in failing to allow counsel the opportunity to call on the subpoenas.
(c)The learned Magistrate's findings in relation to the applicant's credibility as particularised below, were contrary to the evidence and the weight of the evidence."
The learned Magistrate found that:
"(1)The applicant's assertion that she was provoked was not true.
(2)The applicant lied about whether the police had been called to the complainant's property previously.
(3)The applicant abused the complainant's children.
(4)The applicant lied when she said she was planting a garden.
(5)The applicant lied when she said she did not hit either of the complainants.
(6)The applicant was a troublemaker as regards the boundary fence between the properties."
At the hearing of the appeal, the appellant's counsel abandoned the particulars under par (1) and par (6) to ground (c).
The complainants were husband and wife, Brian William Dubois and Lesley Dubois, both of whom gave evidence as did the appellant.
I think that the first two grounds of appeal can readily be disposed of at once.
In relation to the first ground, the learned Magistrate was not obliged to refer expressly to all of the evidence: see Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referred to with approval by Templeman J in Vujcic v Moffitt, unreported; SCt of WA; Library No 970156; 11 April 1997. His Worship's references to the evidence in the course of his ex tempore judgment showed that he was aware of the relevant evidence before him and he has given his reasons for the conclusions he reached. There is, in my opinion, no substance in the first ground of appeal.
In relation to the second ground of appeal, the position appears to be that the appellant's advisers had issued a subpoena directed to the Commissioner of Police requiring him to attend court on 16 September 1998 and to bring with him and produce at the hearing the criminal records of each of the complainants and the appellant, all documents relating to complaints by either of the complainants against the appellant relating to the alleged assaults on 19 December 1997; all documents relating to any complaints prior to 19 December 1997 by the complainants against the appellant and any documents relating to complaints by the complainants against any person whatsoever relating to 84/86 Grosvenor Road, North Perth.
When the matter came on for hearing, counsel for the appellant informed the learned Magistrate that a subpoena had been issued against the Commissioner of Police and counsel sought to call that on before the trial commenced. The Commissioner of Police did not appear in response to the subpoena at the hearing. I understand the practice is, in general, for him not to do so, but simply to present to the court beforehand the documents sought in any such subpoena. It appears that the police had furnished certain documents, purportedly in response to the subpoena, to the court prior to the hearing. These documents included the criminal records of the accused and of the police witnesses. Counsel said that there were other documents that they would like to have. The prosecutor said (AB 113):
"PROSECUTOR: The officer who actually went to interview the defendant in this matter, sir, had no conversation with her, so there is no information on that side, and it was two other police officers that actually attended the scene, and they weren't called as police witnesses, and that's as much information as I can report.
HIS WORSHIP: Yes. Well, all I can do is accept a request from yourself to adjourn it, if you want to, so you can have that information. I can't do anything else.
MR PERCY: I wonder whether, rather than adjourning it, we could stand it down so that they can make some further inquiries. Perhaps I can just explain to your Worship one of the contentious matters in this matter is whether or not there has been any previous complaints by the complainants against this woman or her family.
HIS WORSHIP: Well, that's not relevant to this, surely?
MR PERCY: Well, it is. It will become relevant, your Worship."
Further discussion took place between Mr Percy, of counsel, for the appellant and his Worship and his Worship said:
"I think you should proceed."
Mr Percy replied:
"Yes. As your Worship pleases. We will proceed."
While it is not immediately obvious from the transcript whether his Worship was making the offer of an adjournment of the trial to the prosecutor or to defence counsel, the context suggests that his Worship was speaking to Mr Percy - the matter had been raised by him, not by the prosecutor. In any event, the offer made by the learned Magistrate to adjourn the trial was one of which Mr Percy could have availed himself had he so wished. He chose not to do so and no doubt there were good reasons for that decision.
It is, therefore, not apparent from the above exchange that the learned Magistrate failed to allow counsel the opportunity to call on the subpoenas. On the contrary, he offered an adjournment, which offer was not pursued by senior counsel for the appellant at the trial. Accordingly, it seems to me that the second ground of appeal, too, cannot be sustained.
The main thrust of the appellant's argument related to the third ground of appeal. Her counsel accepted that she had a difficult task to upset the learned Magistrate's findings in relation to credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ observed:
"More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' [SS Hontestroom v SS Sagaporack [1927] AC 37 at 47] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
In Agbaba v Witter (1977) 51 ALJR 503 at 508, Jacobs J gave, as an example where primary findings based on credibility of witnesses might be displaced, a case:
" … where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal."
Those authorities were referred to in State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306 at 307.
In the course of his ex tempore judgment, the learned Magistrate said, at AB 6:
" … it's not disputed that the - - the defendant, Mrs Pledge, was putting this piece of - - it's plastic in a mesh in the place of a fence on the dividing - - dividing line of the boundary of the two properties."
Counsel for the appellant points out that that statement is not, in fact, correct in that the evidence of the appellant was that the fence was being set up well inside the boundary of 86 Grosvenor Road. At AB 83, she gave the following evidence:
"Where do you say that - - that mesh was in relation to the fence line between the premises?‑‑‑Well, there would be a distance between the - - the fence line and where I had put the mesh.
HIS WORSHIP: How much distance?‑‑‑Well, maybe six - - maybe about a foot I think; I think about a foot.
MR PERCY: On your side or their side of the fence line?‑‑‑No, on - - on my side of the fence line."
At AB 91, the following took place:
"PROSECUTOR: All right. What did you - - you were putting that actually along the borderline between your property and the property of your next door neighbours?‑‑‑No, it wasn't on the borderline, sergeant.
I'm putting it to you that it was actually in fact right on their borderline and that's why they came out and spoke to you?‑‑‑No, it was not on the borderline."
From the aforegoing, it appears that there was, in fact, a dispute as to where the mesh fence was being erected by the appellant, as both Mr and Mrs Dubois said the fence was being erected along the boundary line between the two properties. Accordingly, in saying that the issue was not disputed, the learned Magistrate was mistaken.

The inconsistencies between Mr and Mrs Dubois

Counsel for the appellant pointed to some alleged inconsistencies between the evidence given by Mr and by Mrs Dubois respectively. She described these as "important differences". At AB 32, Mr Dubois was asked:
"Perhaps you can just tell us: what was the extent of the problem between you and the Pledges in relation to the fence?"
He replied:
"Well, I have never discussed the fence with them per se. I have always discussed it with Mrs Hall, about a new fence, and Mrs Hall would not put a new fence up so I have never discussed buying a new fence or going halves in cost with the Pledges."
At AB 69, Mrs Dubois said, under cross‑examination:
" … there have been times when I thought we'd have to sell the house because I can't stand the tension that has come on with this. I shouldn't have to do that. It's my house as well. She doesn't even live there. She comes and she cuts pieces of fence down and makes our life a misery."
Mrs Dubois said in evidence that she was standing within her property and that the appellant was standing in her property when the appellant slapped Mrs Dubois in the face. Mrs Dubois had pulled up the plastic fencing mesh, picked up the two sticks and pushed the fence so that it was no longer on the boundary. She said it was just on the inside of the fence and with that the appellant slapped her face and hit her with one of the sticks, although whether this latter was intentional or nor, Mrs Dubois did not know. Mrs Dubois said (AB 58) that she did not remember where her husband was at the time of the assault. At AB 73, Mrs Dubois said she thought that her husband was down in the garden, standing next to her and saying to the appellant, "You will not hit my wife." She thought he was there at the time she was assaulted.
At AB 20, Mr Dubois gave evidence that he had moved quickly down near the property boundary after he had seen his wife assaulted. At AB 50, Mr Dubois gave some evidence of having said to the appellant that she was a geriatric and a liar. He said he did not believe that he had said she was a geriatric and ought to be taken away and put into a home, although he may have. It was put to him that on 27 February 1998, he had given evidence in relation to a restraining order against the appellant and was asked, "What words did you use?" and he replied, "My comment to her was that she was a geriatric and ought to be in a home." Counsel for the appellant pointed out that Mrs Dubois had not given any evidence of any abuse.

The evidence of the complaint to the police

Counsel for the appellant submitted that the learned Magistrate erred when his Worship asked, rhetorically (at AB 9): " … why would they even bother calling the police if nothing had happened?" She submitted, with respect, that that question indicated a line of reasoning to the effect that the making of a complaint proves that complaint.
An accused giving evidence could not, properly, be asked such a question in cross‑examination. The fact of such complaint having been made is consistent with the evidence of the complainants. It does not prove the fact of the alleged assaults, of course, and, coming from the complainants themselves, may be thought simply self‑serving. Overall, I should not have thought that much weight could be attributed to the evidence of the complaint, nor is it apparent that the learned Magistrate gave it significant weight after his passing reference to it.

Internal inconsistency in the evidence of Mr Dubois

Counsel for the appellant raised a number of matters concerning the credibility of Mr Dubois. She submitted that Mr Dubois had prevaricated over the extent of his confrontation with the appellant's son, Harley, albeit he had regarded his dispute as sufficiently serious to warrant an application for a restraining order against Harley. She pointed out that, although Mr Dubois had said that his wife had informed the appellant of the need for the latter to write to Mr and Mrs Dubois seeking approval under the Dividing Fences Act for the erection of a dividing fence, Mrs Dubois had not mentioned that Act in her evidence.
Counsel submitted that Mr Dubois' evidence as to where he had been hit was very unspecific and that the marks displayed on the photographs were, at best, equivocal. Mr Dubois said that "the plastic came around my shoulder" (AB 52); "she walloped me across … my left, top upper shoulder" (AB 21); and that he was hit on the middle of the upper arm (AB 47 and 48).
Counsel said that this evidence was inconsistent with Mr Dubois' statement to the police that the appellant "whipped my upper left arm with the plastic material" and, later in the same document, that "later that day I showed the doctor the welts on my back".
Counsel pointed to other, minor discrepancies between the evidence of Mr and of Mrs Dubois, respectively, none of which, in my opinion, was of particular significance.
The photographic evidence shows reddish marks on Mr Dubois' upper arm, near the shoulder, which appear consistent with his having been struck with a plastic web fence.
In evidence‑in‑chief, the appellant denied that she had hit Mr Dubois with a piece of mesh or with anything. His Worship, having mentioned the appellant's evidence, said, at AB 12):
" … From all that she is not telling the truth. What really is the most telling factor though is these marks on Mr Dubois' arm. When one looks at them, as counsel said, there are three sort of marks [sic] there, and what I say about that is there are three very distinct red marks - four in fact - but they are much lighter welt marks, very pale, which are in the shape of a mesh, and it's quite obvious there is this mesh‑shaped series of welts across the back of his arm, between the middle arm and up towards his shoulder.
Now, a piece of stuff like that, that long - he said it curled around over his shoulder; that's the impression he got, but certainly in exhibit A3 you can practically trace out the mark of the mesh on his arm. Unfortunately in exhibit A2 the sun is shining - reflection off his flesh there and it covers that a bit, but you can still see those four marks and the other lines leading between the marks, which indicate mesh‑shaped welts there, and they are very conclusive, I'm afraid. They certainly look recent. They are red - bright red - and they do indicate that something with the shape of a mesh had hit him on the arm, and Mrs Pledge said she never touched him.
She is not telling the truth quite obviously, and I cannot accept her evidence. It is just not reasonably credible, and I accept the evidence of the two prosecution witnesses and I find beyond reasonable doubt she did assault Mr Dubois and did assault Lesley Dubois as alleged. The charges are both proved. There will be convictions."

Internal inconsistency in the evidence of Mrs Dubois

Counsel for the appellant pointed to a number of alleged inconsistencies in the evidence of Mrs Dubois.
The first was that Mrs Dubois referred (at AB 60) to marks on Mr Dubois' shoulder but in her statement to the police she had referred to the "upper left arm".
Secondly, in her statement to the police, Mrs Dubois had stated that the appellant had slapped her on her right cheek. At trial, Mrs Dubois said that the appellant had slapped her on the left side of the face (AB 56, 57 and 67). However, Mrs Dubois said (at AB 67) that she has "a terrible problem with left and right".
While the statement of material facts did not mention a slap on the face, it did refer to the appellant having "struck the complainant with a piece of wood". Mrs Dubois confirmed that the appellant had struck her with a stick, adding that she did not know whether this was intentional or not. The only assault of Mrs Dubois relied upon by the prosecution was, it seems, (AB 5) the slap on the cheek.
Counsel for the appellant pointed to what she submitted were several instances of inconsistency between the evidence of the complainants and "objective facts". She submitted that the photographs of Mrs Dubois' face did not support the complainants' evidence that the appellant had "scratched/clawed" Mrs Dubois' face. This was not a fact relied upon by the prosecution. There was evidence that, at the time, the appellant was wearing gardening gloves. Other matters were relied on by counsel - all comparatively minor. She pointed to a number of matters indicating consistency of the evidence of the appellant with the objective facts and concluded her submissions on this aspect of the matter by saying that the learned Magistrate should not have held that the complainants were credible witnesses.
Evidence was led at the trial of the good character and honesty of the appellant and she herself deposed to the fact that she had never been charged with any criminal offence. The cross‑examination was directed to showing that the witnesses had not seen the appellant in a "stressful situation". Her honesty was not attacked. Evidence of good character is to be taken into account in determining whether the prosecution has discharged the onus of proving guilt beyond a reasonable doubt and, where necessary, in assessing the credibility of an accused: R v Murphy (1985) 4 NSWLR 42 at 53 ‑ 55. At AB 101, the following exchange took place between the learned Magistrate and senior counsel then representing the appellant:
"MR PERCY: I've got two short character witnesses, your Worship, if I could call those.
HIS WORSHIP: Well, are you putting character in issue now or - -
MR PERCY: Yes, we are. I think I've already done that.
HIS WORSHIP: I know that. I - - usually you don't leave - - you leave these witnesses until - - but you can call them now if you want to.
MR PERCY: We've - - I've got no other witnesses to call.
HIS WORSHIP: No, no, I mean usually you leave it till after - - after the decision but - -
MR PERCY: Well, if she gets acquitted there's no point in calling them.
HIS WORSHIP: Of course. Oh, well, if you - -
MR PERCY: In my experience in every other court I go to I call them as part of the case.
HIS WORSHIP: Well, you can call that, if you like. It doesn't - - usually we get witnesses after the decision to determine what sort of sanctions. If you want to - - if you're putting it in, you can call her if you want to.
MR PERCY: Well, it's part of her case. She puts character in issue, she - - this is a case of credibility and we want people to - - want the court to know what her - -
HIS WORSHIP: Yes, yes, righto."

From that exchange, it appears that the learned Magistrate may, initially, have regarded character evidence as relevant only to sentence. If so, that would, with respect, reflect an error of law on the part of his Worship. However, he did allow the evidence as requested by senior counsel for the appellant at the trial.
At AB 7, the learned Magistrate said:
"And so there's plenty of time there for - - for conflict between them. And the Dubois told of the defendant abusing the children from time to time which was not counted. And if one was to accept Mrs Pledge's evidence, that there was never any contact between herself and the Dubois and that - - it really makes it quite incredible."
In fact, it appears that the complainants had not said that the appellant had abused their children. At AB 29 ‑ 30, Mr Dubois gave the following evidence:
"MR PERCY (TO WITNESS): I said you objected to her coming over?‑‑‑Absolutely not. I was delighted that someone would come and maintain the property and if they could clean it up and maintain it and make it look better than it does, I'm delighted, sir.
All right. Delighted to see Mrs Pledge there?‑‑‑I am delighted to see the property being looked after. If she was to do her own maintaining of the property and leave my children alone - not abuse them, not bring in unpleasantness - I was delighted even she was there.
Right. Even she?‑‑‑Even she was there.
MR PERCY: What, she had abused your children before, had she?‑‑‑She has not abused my children at that particular time, but she has stepped on our property once before when my wife has been there … "
At AB 48, Mr Dubois said:
"Our neighbours often come to our place. Our neighbours are welcome any time in our home. But when someone is going to be aggressive and make my children very upset with their aggression, and their words, that are going to be calling me a thief to my son, as Mrs Pledge did, then they are not welcome."

Fresh Evidence

The appellant sought to tender, as further evidence, four pages of the transcript of evidence (AB 134 ‑ 137) given by a Dr Kontorinis on 27 February 1998, in the proceedings whereby Mr Dubois applied for a restraining order against the appellant's son. The tender was made in reliance upon the provisions of s 196(1)(b) of the Justices Act 1902 which provides:
"196. Evidence
(1)The Court shall determine the appeal -
(a)…
(b)on such further evidence either oral or by
affidavit as the Court thinks fit to receive."
The application was directed to the doctor's evidence of his examination of the appellant who had complained that she had been hit in the chest when Mrs Dubois pulled out the fence post on which she had erected the mesh fence. The doctor said that there was a bruise in the lower inner aspect of her right breast and a lump which the doctor thought was consistent with the trauma of her being struck in the right breast. The lump was diagnosed as a haematoma. Dr Kontorinis was cross‑examined by Mrs Dubois and confirmed his earlier evidence.
The application to admit the evidence was opposed by counsel for the Crown on the grounds that the evidence could have been tendered at the trial, but it was not, and also on the grounds of relevance. Counsel submitted that, as the appellant had not admitted slapping Mrs Dubois' face and had not suggested that she had done so under the provocation of the blow to her breast, the fact that she had been struck was not relevant to anything in issue at her trial.
Counsel for the appellant submitted that the evidence was relevant, in fact critical, in relation to the credibility of the appellant. The evidence would certainly tend to support the appellant's evidence that Mrs Dubois pulled up a stake which struck the appellant's breast. Mrs Dubois was cross‑examined as follows in this connection (AB 71):
" … I suggest to you you pulled them out quite strongly?‑‑‑No. I did not.
And one of them actually came in contact with her and struck her on the right breast?‑‑‑No. It did not.
As you took it out?‑‑‑No. It did not.
How well do you remember this?‑‑‑Because I would remember if I had hit somebody, and I am not the type of person to do that.
Well, accidentally, I'm talking?‑‑‑Not even accidentally. That - - it never came in contact. It was not stuck in the ground hard. It was lifted - - they were placed in the ground and I just lifted them, and leant the fence into that property."
While there was a conflict between the appellant and Mrs Dubois in this regard, it was a peripheral issue and it is possible that if it occurred as the appellant said it did, Mrs Dubois may have genuinely believed that the appellant had not been struck. I do not think it sufficiently material to the credibility of the parties. In the situation, which prevails, that it was no part of the appellant's case that she acted in self‑defence or under provocation, I consider that the proposed fresh evidence is not sufficiently relevant to this appeal and the application to admit it is refused.

Conclusion

As I have indicated above, certain errors were displayed in the learned Magistrate's remarks concerning the evidence. In themselves, these were in my opinion insufficient to warrant interference with his Worship's decision, particularly bearing in mind the passage quoted above from Devries v Australian National Railways Commission (supra). It appears that the main factor causing his Worship to disbelieve the appellant's evidence was the existence of the mesh‑shaped welts on Mr Dubois' arm, coupled with the appellant's denial that she had hit him. The errors I have mentioned did not affect that aspect of the case against the appellant.
The appeal against the appellant's conviction is accordingly dismissed.

The appeal against sentence

The learned Magistrate makes no reference in his sentencing remarks to any consideration of the provisions of s 46 of the Sentencing Act 1995, which provides:
"46. Release without sentence
A court sentencing an offender may impose no sentence if it considers that -
(a)the circumstances of the offence are trivial or technical; and
(b)having regard to -
(i)the offender’s character, antecedents, age, health and mental condition; and
(ii)any other matter that the court thinks is proper to consider,
that it is not just to impose any other sentencing
option."
His Worship's sentencing remarks were brief and I set them out in full hereunder (AB 13):
"HIS WORSHIP: Yes. Stand up, please, Mrs Pledge. You spoiled it all, Mrs Pledge, by not telling the truth in court, which is one of the more serious offences we have got on the book. When you show respect for the law and the truth, and the other parties, who you have insinuated were not telling the truth about this matter, then the courts show all sorts of leniency. In fact I show leniency anyway, because I understand what goes on. On the first charge, 14789, there is a fine of $250 plus $121.50. On the other charge, also fined $250, costs $45. Thank you."
In Vujcic v Moffitt (supra), Templeman J said, at 9 ‑ 11:
"I then turn to the remaining ground of appeal which is that the Magistrate failed to have regard, or to have sufficient regard, in sentencing the appellant to:
'(i)the appellant's lack of any prior convictions;
(ii)the appellant's age;
(iii)the appellant's general antecedents.'
This ground arises out of the fact that matters referred to by the appellant's counsel in his plea in mitigation were not mentioned by the Magistrate when she sentenced the appellant …
Mr Camm submitted that although counsel made no express mention of s669 of the Criminal Code, the terms of his plea in mitigation were such as to require the Magistrate to consider that provision.
Section 669 enables the court, in the case of a first offender, to dismiss the complaint without proceeding to conviction in the exercise of its discretion, having regard to:
' … the youth, character or antecedents of the offender, or to the trivial nature of the offence, or to any extenuating circumstances under which the offence was committed …'
In her sentencing remarks, the Magistrate made no reference to the appellant's character or antecedents. This led Mr Camm to submit either that the Magistrate failed to give reasons for her decision not to apply s669: or alternatively, that the Magistrate failed to consider the application of that section at all.
In Pratt v Denton, unreported; SCt of WA (Walsh J); Library No 950706; 12 December 199, Walsh J said:
'Any person appearing before a Court of Petty Sessions who makes an application to the court pursuant to (s669) in my opinion, has an undoubted right to have it considered with care, and he can justifiably and reasonably expect that when the decision is being delivered by the judicial authority reasons will be given. In the absence of such reasons there undoubtedly will be a justifiable sense of grievance and a lack of confidence in the administration of justice.'
That was a case in which s669 had been referred to expressly, whereas in the present case, it was not. However, the relevant elements of s669 were put before the Magistrate. And Walden v Hensler (1987) 163 CLR 561 appears to be authority for the proposition that an equivalent provision applicable in Queensland ought to have been considered, even though it was not referred to expressly, where the circumstances of the case called for its consideration. To a similar effect is Kickett v Sutton, unreported; SCt of WA (Parker J); Library No 940709; 19 December 1994, where Parker J held that the sentencing process had miscarried where a Magistrate who was aware of matters which would have made s669 applicable, had not considered that provision …
If it is accepted that the Magistrate did consider s669, then in my view her sentencing remarks are flawed by the failure to give reasons for holding that section to be inapplicable. However, despite Mr Pruiti's submission that the Magistrate did consider s669, I do not think it can be said with any degree of confidence that she did so. And yet, having regard to the impeccable character and antecedents of the appellant, and the serious effect which the recording of a conviction would have, this is a case in which, in my judgment, s669 ought to have been applied.
In these circumstances, I am satisfied that the sentencing process has miscarried and I therefore quash the sentence. Because it will be necessary to resentence the appellant under the Sentencing Act 1995, and because s669 of the Code has been replaced by s46 of the Sentencing Act, which is in significantly different terms, I will hear submissions from counsel in relation to sentence."
In the present case, counsel for the appellant at the trial informed his Worship (AB 125):
" … perhaps I can just tell you a little about this lady's background. She is 71. She has lived here all her life. She served in the war, in the Women's Navy, as an admiral's cook, and when she finished there she did a diploma in hair dressing. She got married in 47. She had six children. She qualified as a teacher and she worked for 21 years in teaching, at five different colleges. She then studied real estate to get her representative's certificate in 1990, and worked at various locations.
She then had an accident in 1994 and she has some health problems as a result of that to her right knee‑cap, which causes some problems. She has been separated from her husband for about 24 years now. He is ill, and she visits him in Mandurah on a regular basis and looks after him even though they are separated. Their income is from Government superannuation through the Education Department. She has a net income of something like $300 net per week and she owns her own house, but apart from that has modest means and assets.
I'd ask your Worship to take into account her exemplary record on behalf of the community over many years."
In my opinion, those matters were such as to require the learned Magistrate at least to consider whether s 46 of the Sentencing Act should be applied in the case of the appellant. For the reasons indicated by Templeman J in Vujcic v Moffitt (supra), his Worship's failure to mention any of the relevant factors raises a doubt that the learned Magistrate gave any consideration to that section and indicates that his Worship's sentencing discretion miscarried. I do not, of course, comment on the question of what the result of such consideration should have been.
Accordingly, the sentences should not stand and I set them aside. I shall hear from counsel as to the appropriate orders to be made accordingly.