Pryor v Loos - [2021] WASC 403

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PRYOR -v- LOOS [2021] WASC 403
CORAM:   CORBOY J
HEARD:   3 NOVEMBER 2021
DELIVERED          :   11 NOVEMBER 2021
PUBLISHED           :   16 NOVEMBER 2021
FILE NO/S:   SJA 1064 of 2021
BETWEEN:   SHELDON PURNELL PRYOR
Appellant
AND
TRISTAN LOOS
Respondent

ON APPEAL FROM:
For File No:   SJA 1064 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY AND MAGISTRATE B MAHON
File Number            :   AR 7343/2020
AR 7947/2020
AR 7948/2020

Catchwords:

Criminal laws - Appeal - Appellant subject to suspended imprisonment order - Appellant breached order - Magistrate ordered appellant to serve part of the suspended sentence and suspended balance of term of imprisonment - No power to make order under s 80 of the Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal on ground 1 of appeal notice granted
Appeal allowed on ground 1
Order made on 27 August 2021 set aside as being null and void
Appellant ordered to serve 4 weeks imprisonment under s 80(1)(b) of the Sentencing Act

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	Aboriginal Legal Service
Respondent	:	State Solicitor's Office

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

Brown v Nation & Ors [2019] WASC 430
Dillon v The State of Western Australia [2020] WASCA 24
Dragon v The State of Western Australia [2008] WASCA 252
Dreja v The State of Western Australia [2012] WASCA 151
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Nannup v The State of Western Australia [No 2] [2021] WASCA 179
Powell v Tickner [2010] WASCA 224
Wallam v Dent [2008] WASC 170

CORBOY J:

On 2 October 2020, the appellant was convicted of two offences pursuant to s 55 of the Criminal Procedure Act 2004 (WA):
(1)on 31 July 2020, he drove a vehicle while under permanent life disqualification, contrary to s 49 of the Road Traffic Act 1974 (WA) (charge AR 7947/2020) (the Driving Offence);
(2)on the same date he refused to provide a sample of his breath for analysis contrary to s 67(2)(a) of the Road Traffic Act (charge AR 7948/2020).
The appellant appeared in the Armadale Magistrates Court on 16 October 2020 for the purposes of sentencing. The facts alleged by the prosecutor were not disputed by the appellant's counsel. The facts as read to the court were:
At 12.01am on Friday, 31 July 2020, the accused drove a Holden Commodore, registration H22735 on Churchdown Street in Thornlie. The accused was stopped by police and it was ascertained he was not authorised to drive that class of motor vehicle. The accused's licence was disqualified permanently on 28 October 1997 for a life disqualification in regards to alcohol offences.
…
When he was stopped, he was required to submit a 'indistinct' breath for analysis, the accused refused to provide a sample of breath despite being informed several times that he would be charged for the offence. His explanation for that was, 'I want to go to the toilet'.
The appellant was sentenced to a term of 7 months imprisonment, suspended for 12 months, for the Driving Offence (the SIO). He was fined $2,100 and a further lifetime driving disqualification was imposed for the offence of failing to provide a breath sample.
The appellant received a lifetime disqualification from holding or obtaining a driver's licence in October 1997. He had been convicted of numerous traffic offences prior to that time. The appellant has been convicted of five offences of driving without authority since the lifetime disqualification was imposed: offences committed on 9 January 2009, 19 August 2010, 20 August 2010, 29 October 2015 and 6 January 2019. Further, since October 1997, the appellant has been convicted of five offences of driving without a motor driver's licence. He also has two convictions for driving with a blood alcohol level in excess of 0.08% and a conviction for dangerous driving. Those offences also occurred after October 1997.
The penalty for driving while not authorised to do so is prescribed by s 49(1) of the Road Traffic Act, read with s 49(3). The maximum penalty for the offence, as committed by the appellant, was a fine and imprisonment for a period of not more than 18 months. That was because (a) the appellant was disqualified from holding or obtaining a driver's licence at the time he committed the offence; and (b) he had been previously convicted of the offence: s 49(1)(c)(ii) and s 49(3).
It was put in mitigation that the appellant had the care of his father who was said to be aged 87 years and who was described as having some 'brain issues'. It was submitted that the appellant's father relied to a substantial degree on the appellant's support. It was also submitted that the appellant had driven in circumstances where he was 'being stood over'. The appellant's counsel did not further elaborate on that submission. The sentencing magistrate reduced the sentence that would have otherwise been imposed by 25% pursuant to s 9AA of the Sentencing Act1995 (WA).
On 27 August 2021, the appellant was convicted of a charge that on 15 July 2021 he, being a person bound by a police order, breached that order (the Breach Offence; it is convenient to also refer to the hearing on 27 August 2021 as the Breach Hearing). The facts of the offence alleged by the prosecutor were:
[On] Wednesday, 14 July 2021, at 5.15pm, Mr Pryor was personally served a 72-hour police order following a family domestic violence incident involving his 82 year old father Peter Stacey. On Thursday, 15 July 2021 at 4.30pm, officers attended 281 Spencer Road, Thornlie, to check the welfare of Mr Stacey. The premises [were] secure and there was no answer to repeated knocking and calling out to Mr Stacey.
Mr Stacey's granddaughter was contacted, who confirmed he should be at the address. Forty minutes later Mr Stacey came to the front door and allowed officers entry, having confirmed the accused returned to the address the previous night and was still inside. A search of the property was conducted and the accused was located hiding in the wardrobe of Mr Stacey's bedroom. He was subsequently arrested for the breach and the present charge preferred.[1]
[1] ts, 2.
The facts alleged by the prosecutor were accepted by the appellant. It was again put on his behalf that he was the primary carer for his father. It was also submitted that the appellant initially left the house following service of the police order but returned approximately 24 hours later; that he did so because his father needed him and there had been no violence or threats involved in the breach. The appellant had prior convictions for breaching a police order.
The police order was made pursuant to pt 2A, div 3A, of the Restraining Orders Act 1997 (WA) (the RO Act). Section 61(2a) of the RO Act provides that the person who is bound by a police order and who breaches the order commits an offence. The penalty for the offence is a fine of $10,000 or imprisonment for two years or both.
The offence was committed approximately nine months after the appellant had been convicted of the Driving Offence and while the SIO remained in force. Accordingly, it was necessary for the appellant to be dealt with under s 80 of the Sentencing Act. That section provides:
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
(4)If a court does not make an order under subsection (1)(a) it must give written reasons for not doing so.
(5A)In subsection (4) —
written reasons includes reasons that are —
(a)given orally and subsequently transcribed; or
(b)given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
(5) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended —
(a)section 88 applies in respect of the term to be served; and
(b)the court may make a parole eligibility order under section 89,
as if the term to be served were a term of imprisonment being imposed by the court.
…
(7)If an order is made under subsection (1)(d), then, unless the suspension period has ended, the sentence of suspended imprisonment remains in effect and the suspension period continues to elapse.
(8)An order by a superior court under subsection (1) in a case where the sentence of suspended imprisonment was imposed for an offence for which the person had not been convicted on indictment is to be taken, for the purposes of an appeal against sentence, as being made following a conviction on indictment.
It was submitted on behalf of the appellant at the Breach Hearing that it would be unjust to activate the sentence imposed for the Driving Offence having regard to the following matters:
(a)the Breach Offence was an offence of a different nature to the Driving Offence;
(b)the appellant was the only person who could care for his father;
(c)the appellant had pleaded guilty at the first available opportunity to the Breach Offence;
(d)the Breach Offence did not, in itself, warrant a term of imprisonment;
(e)the Breach Offence had occurred approximately nine months after the appellant was sentenced for the Driving Offence.
The magistrate dealing with the appellant concluded that it would not be unjust to activate the sentence imposed for the Driving Offence. However, his Honour considered it appropriate to provide 'some degree of mitigation' having regard to the time that had elapsed since the SIO had been made:
In relation to the driving on suspension, the suspended term will be activated. It will be partially suspended. The seven months will be partially suspended. It will be three months, eligible for parole and the imprisonment suspended for the balance of four months. And that will be for a term of six months. So you have got an initial period of three months and then you will be eligible for parole. And thereafter, released on a suspended sentence.[2]
[2] ts, 6.
It is convenient to refer to the order made by the magistrate (7 months imprisonment, partially suspended for 4 months) as the Breach Order.

The grounds for appeal

The appeal notice pleads three grounds for appeal.
(1)the learned magistrate erred in law by imposing a partly suspended imprisonment order for AR 7947/2021 when that is not possible under s 80 of the Sentencing Act;
(2)the learned magistrate erred in law by holding that it was not unjust to make a person serve a partly suspended imprisonment order for AR 7947/2021;
(3)the learned magistrate erred by concluding it was not unjust to activate the suspended sentence on no authority to drive AR 7947/2021.
Grounds 2 and 3 are, in effect, pleaded in the alternative to ground 1.

Ground 1 of the appeal

The respondent's concession

The respondent rightly conceded ground 1 of the appeal. The magistrate did not have power under s 80 of the Sentencing Act to impose a partially suspended term of imprisonment.
An offender who must be dealt with under s 80 is not resentenced by the sentencing judicial officer. Rather, the judicial officer is required to 'deal with' the offender by one of the methods prescribed by s 80(1). As Buss JA observed in Dragon v The State of Western Australia:[3]
The concluding words of s 84F(5) emphasise that a judge who is dealing with an offender under s 84F and orders the offender to serve a term, or part of a term, of imprisonment that was suspended, is not, in performing that function, imposing the term of imprisonment, or the relevant part of the term. The term of imprisonment, or the relevant part of the term, which is activated under s 84F remains part of the sentence imposed by the court which originally suspended it.
[3] Dragon v The State of Western Australia [2008] WASCA 252 [46]. Section 84F concerns a breach of a conditional suspended imprisonment order. The section is, in substance, identical with s 80.
Accordingly:
(a)The expressions 'a court that must deal with' and 'must deal with the person by one of these methods' in s 80 are mandatory.
(b)In dealing with an offender under s 80, the court does not sentence or resentence the offender. Rather, the court 'deals with' the offender under s 80 in the circumstances to which the section refers.
(c)The sentencing options identified in s 39 of the Sentencing Act do not apply; indeed, the balance of the Act does not apply except as expressly provided for by the Act. It is for that reason that s 80(5) expressly refers to and picks up ss 88 and 89 of the Act.

The court's powers on an appeal

Section 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act) confers a right of appeal on a person who is aggrieved by a decision of a court of summary jurisdiction. Section 6 defines what constitutes a 'decision' for the purpose of s 7. Relevantly, s 6 defines a decision to include a sentence imposed, or order made, as a result of a conviction or an acquittal.[4] Plainly, dealing with a person under s 80 of the Sentencing Act constitutes a decision for the purpose of the CA Act.
[4] Section 6(f) CA Act.
Section 8(1) specifies the grounds on which an appeal may be made. The grounds include that the court of summary jurisdiction made an error of law, acted without or in excess of jurisdiction or there has been a miscarriage of justice. Section 9 provides that the leave of this court is required for each ground of appeal. The court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.
Section 14(1) empowers the court to, among other things:
(a)set aside or vary the decision of the court of summary jurisdiction and sentenced imposed, order made or thing done as a result of the decision;[5]
(b)substitute a decision that should have been made by the court of summary jurisdiction.[6]
[5] Section 14(1)(c) CA Act.
[6] Section 14(1)(d) CA Act.
Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred. Section 14(5) states that on an appeal against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
The court's power on appeal remains confined by s 80 where it is necessary in disposing of the appeal to deal with a person for a breach of s 80 (or s 84F) of the Sentencing Act. For example, the appeal court cannot backdate a suspended term of imprisonment under s 41(3) of the CA Act as that is not permissible under s 80: see Nannup v The State of Western Australia [No 2].[7]

Disposition

[7] Nannup v The State of Western Australia [No 2] [2021] WASCA 179 [21].

Section 14(2) of the CA Act applies to an appeal from a sentence imposed by a court of summary jurisdiction.[8] Ordinarily, a substantial miscarriage of justice will not have occurred where a different sentence should not have been imposed even though it has been found that a sentencing magistrate made an expressed error of law. However, in my view there is no scope for an argument that a miscarriage of justice did not occur applying that principle in the circumstances of this appeal. The magistrate did not have power to make the Breach Order. A substantial miscarriage of justice will have necessarily occurred where a magistrate purports to exercise the power in sentencing that has not been conferred by the Sentencing Act.
[8] Wallam v Dent [2008] WASC 170; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421.
It follows that on ground 1 of the appeal notice:
(a)the appellant is granted leave to appeal;
(b)the appeal is allowed.
In Dreja v The State of Western Australia,[9] Pullin JA explained:
The expression 'set aside'', like the word 'quash', has a range of meanings. It may mean to 'put to one side' or 'discard from use', or it may mean 'annul' or 'quash': Macquarie Dictionary. That the word 'quash' has a range of meanings was noted in Roads and Traffic Authority of New South Wales v Papadopoulos…where James J said at [50]:
The decision in Hancock v Prison Commissioners shows that the word "quash" in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word "quash" is used and the subject matter to which the word must be applied.
Section 14(1) authorises the court to make orders which set aside orders made by courts of summary jurisdiction by annulling or quashing the orders ab initio or by setting them aside prospectively. What is intended will be ascertained by the terms of the order taking into account the orders which are being set aside.
…
On the other hand, an order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order.
[9] Dreja v The State of Western Australia [2012] WASCA 151 [12] - [15] Pullin JA (with whom Newnes and Mazza JJA agreed).
Notwithstanding the reference to a suspended imprisonment order in that passage, an issue remains whether an order made in excess of jurisdiction should be held to be void ab initio. A suspended sentence order may be set aside as it is manifestly excessive or manifestly inadequate or for some other error of law or fact in the sentencing process. In those circumstances, it is to be expected that the order will operate until set aside in the same way as a conviction or another sentencing option operates until set aside.
However, a court order made without jurisdiction is ordinarily null and void. There is no basis for not applying that principle in this instance. The Breach Order will be set aside and treated as being null and void: see Brown v Nation & Ors.[10]

The remaining grounds of appeal

[10] Brown v Nation & Ors [2019] WASC 430.

Grounds 2 and 3 are pleaded on an assumption that the court dismissed ground 1. It is not necessary to determine those grounds given the order allowing the appeal on ground 1. However, I note that the appellant's written submissions on grounds 2 and 3 refer to matters in support of a contention, in effect, that the appellant should be dealt with under s 80(1) by the imposition of a fine and not by ordering the appellant to serve the whole or part of the term of imprisonment imposed for the Driving Offence. That reflected the appellant's submission at the hearing of the appeal on how he should now be dealt with under s 80(1). I have had regard to matters pleaded in grounds 2 and 3 to the extent relevant to the disposition of ground 1.

The application to admit evidence in the appeal

The appellant sought leave to admit further evidence in the appeal in the event that the appeal was allowed. The application was not opposed and leave was granted at the hearing of the appeal.
The evidence admitted comprised an affidavit made by Ebony Katrie Deacon, with annexures, and an affidavit by William Chulsang Yoo, also with annexures. Ms Deacon is a solicitor employed at the Aboriginal Legal Service of Western Australia (ALS). Mr Yoo is also employed by the ALS and appeared as the appellant's counsel. The purpose of their affidavits was to provide further information concerning the appellant's personal circumstances.
In summary:
(a)Ms Deacon annexed to her affidavit a letter from the appellant's father, Mr Peter Stacey. The letter stated that Mr Stacey was 82 years of age. He suffered a hip injury when he was 23, as a result of which '[t]he top part of the hip is dead'. He was scheduled for a consultation with the Orthopaedic Department of Royal Perth Hospital on 27 October 2021.
(b)Mr Stacey states that he also has 'some brain injuries from when I was hit in the head with a brick'. He describes the appellant as the main person who looks after him; he looks after him day-to-day and 'without [the appellant] I feel hopeless'. He also states that the time the appellant has been away has been crushing and that he wishes to see his son. The appellant's partner and other family members have been assisting him while the appellant has been in custody.
(c)The appellant instructed Mr Yoo that he has been in a long term relationship with his partner. He is part of a large family but sadly, only one brother and two sisters remain alive. He takes medication which he states is to 'calm him down'. He drinks twice a week, sometimes in the amount of a cask of wine. He uses methamphetamine once a month and sometimes smokes cannabis. He started drinking at the age of 15 - 16 years and started using methamphetamine 20 years ago.
(d)The appellant has completed a course on blood-borne viruses since being in custody.
(e)Annexed to Mr Yoo's affidavit was a letter from Royal Perth Hospital advising that the appellant's father has an appointment at the High Risk Anaesthesia clinic on 24 November 2021. The appointment is for the appellant's father to receive intravenous pain medication.

Disposition

Section 80(3) provides that a court must make an order under s 80(1)(a) unless it decides it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since a suspended imprisonment order was made. The Court of Appeal has emphasised the policy underlying s 80(1), read with s 80(3), in several appeals, including most recently in Dillon v The State of Western Australia:[11]
As was recognised in Hall v The Queen, the appellant carries the forensic onus of persuading this court that the trial judge erred in failing to decide that it would be unjust to order service of the suspended imprisonment. The appellant will have failed to discharge that onus if this court considers that it was open to the trial judge to fail to be so satisfied. That is, the question for this court is not whether it is of the view that it would be unjust to require the appellant to serve the suspended sentences. Rather, the question is whether it was open to the trial judge to fail to be satisfied that it would be unjust to require the appellant to serve the suspended sentences.
As the court also recognised in Hall, there is a clear legislative policy that, in general, breach of a suspended sentence should result in the offender serving that sentence. A suspended sentence is imposed where imprisonment is the only appropriate sentencing disposition, but the sentencing court considers it appropriate to give the offender a last chance to avoid immediate imprisonment by leading a law-abiding life. It is intended to be a sanction hanging over the head of the offender which is to be activated if there is a lapse into offending. The court will not lightly interfere with the ordinary consequence of offending while subject to a suspended imprisonment order. To do so would be to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending.
[11] Dillon v The State of Western Australia [2020] WASCA 24 [30] – [31]. And see Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364.
However, the Court of Appeal also observed that:[12]
Of course, the legislation also recognises that there are circumstances in which the courts should refrain from requiring service of suspended imprisonment. An obvious example would be where an offender, who has otherwise been of good behaviour and achieved rehabilitation, commits a relatively trivial offence at the end of the suspension period which, while punishable by imprisonment, does not warrant the imposition of a term of immediate imprisonment.
[12] Dillon v The State of Western Australia [32].
The appellant accepted that the only circumstance that has arisen since the SIO was made is that the appellant has been in custody since 27 August 2021. Otherwise, the fact that he is the primary carer for his father had been disclosed to the magistrate at the time that the SIO was made.
However, it should also be noted that there was no evidence or information from Mr Stacey provided to the magistrate who made the Breach Order. That is a significant matter as the police order was made after an incident between the appellant and his father.
The fact that the appellant has commenced serving the term of imprisonment imposed for the Driving Offence is a circumstance that has arisen since the SIO for the purposes of s 80(3). The appellant had served 77 days in custody as at the date of the hearing of the appeal. It would be unjust to make an order under s 80(1)(a) having regard to the time the appellant has spent in custody.
The term of the SIO has expired so it is not possible to make an order under s 80(1)(c). In any event, I do not consider that such an order would be an appropriate disposition if that alternative had remained available having regard to the appellant's appalling record of driving without authority or driving without a driver's licence.
I also do not consider that a fine imposed under s 80(1)(d) would properly reflect the seriousness of the appellant's offending. General deterrence is a significant factor in sentencing the appellant for the Driving Offence and in making an order under s 80 of the Sentencing Act. Further, punishment and personal deterrence are also significant sentencing considerations given the appellant's record for the offence of driving without authority or driving without a licence.
There was no evidence about the circumstances in which the police order was made, and no inference can be drawn about the appellant's conduct. The most that can be inferred is that the order was made to protect Mr Stacey, the appellant's conduct was sufficient to warrant an order being made and the appellant knew he should not have returned to his father's home (as the appellant was found hiding when the police arrived to check compliance with the order). Mr Stacey is obviously a vulnerable person, and the appellant has an admitted problem with substance abuse.
Against those matters, Mr Stacey wrote to the court indicating that he needs his son and misses his presence. There is no suggestion that the Breach Offence involved any form of actual or threatened violence or that the appellant had been physically violent towards his father at the time that the police order was made. Further, the appellant pleaded guilty to the Breach Offence at the first available opportunity and was frank in his instructions to Mr Yoo about his problems with substance abuse.
Finally, the appellant only expected to serve three months in prison, although he would have been 'in jeopardy' for a further four months under the Breach Order. He has now served the term of imprisonment that he expected to serve and so, a further term of imprisonment will, most likely, endanger feelings of injustice.
In the circumstances, I ordered that the appellant serve a further month in prison pursuant to s 80(1)(b) of the Sentencing Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
16 NOVEMBER 2021