Riseley v Gill
[2015] WASC 342
•14 SEPTEMBER 2015
RISELEY -v- GILL [2015] WASC 342
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 342 | |
| 14/09/2015 | |||
| Case No: | SJA:1073/2014 | 7 SEPTEMBER 2015 | |
| Coram: | BEECH J | 7/09/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | MICHAEL JAMES RISELEY DARREN STEPHEN GILL |
Catchwords: | Criminal law and sentencing Assaulting a public officer Term of immediate imprisonment of 6 months and 1 day Whether magistrate erred in not suspending the term of imprisonment Turns on own facts |
Legislation: | Criminal Code (WA), s 318 |
Case References: | Cartwright v The State of Western Australia [2010] WASCA 4 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 GJT v The State of Western Australia [2011] WASCA 263 Quinn v The State of Western Australia [2006] WASCA 99 Skipworth v The State of Western Australia [2008] WASCA 64 The State of Western Australia v Johnson [2009] WASCA 224 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DARREN STEPHEN GILL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G BAYLY
File No : JB 162 of 2013, JB 164 of 2013, JB 165 of 2013
Catchwords:
Criminal law and sentencing - Assaulting a public officer - Term of immediate imprisonment of 6 months and 1 day - Whether magistrate erred in not suspending the term of imprisonment - Turns on own facts
Legislation:
Criminal Code (WA), s 318
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms M R Barone
Respondent : Mr L M Fox
Solicitors:
Appellant : Barone Criminal Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
GJT v The State of Western Australia [2011] WASCA 263
Quinn v The State of Western Australia [2006] WASCA 99
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Johnson [2009] WASCA 224
- BEECH J: (These reasons were delivered orally and have been edited from the transcript.)
Introduction
1 On 4 September 2014, Mr Riseley was convicted of one count of assaulting a public officer, one count of common assault and one count of obstructing police. He was sentenced to a term of imprisonment of 6 months and 1 day for the offence of assaulting a public officer; 5 months for the common assault and 1 month for the obstructing police offence. The terms of imprisonment were concurrent, so that the total effective sentence was 6 months and 1 day.
2 Mr Riseley appeals against those sentences on the ground that the magistrate erred in not ordering that the terms of the imprisonment be suspended.
3 The application for an extension of time to appeal is not opposed, and I would order an extension of time.
4 For the reasons that follow, I would dismiss the appeal.
The facts
5 Mr Riseley was convicted after a trial.
6 The recording equipment failed in relation to both the trial and the sentencing process.
7 At the request of this court, the sentencing magistrate prepared a report under s 40(1)(h) of the Criminal Appeals Act 2004 (WA). The report outlines the evidence given by the four prosecution witnesses, and by Mr Riseley, who gave evidence in his defence.
8 The court has also received an affidavit of the police prosecutor who conducted Mr Riseley's trial.
9 By the time the magistrate prepared his report, three months had elapsed since the trial. The magistrate did not retain his notes of the hearing, as he understandably assumed that the proceedings had been successfully recorded. In preparing his report, the magistrate observed that his memory of some aspects of the evidence may be imperfect.
10 It is apparent, and it is common cause, that in one respect the magistrate confused some of the evidence given by one witness with evidence given by another witness, and as to the person who was assaulted by Mr Riseley. The magistrate's report states that it was the home owner who was assaulted when in fact it was the visiting friend who was assaulted.
11 As was accepted by the appellant,1 the facts on which Mr Riseley was sentenced can be satisfactorily reconstructed from the available material, and may be summarised as follows.
12 Jodie Courtenay was acquainted with Mr Riseley. On the day of the offence, she saw him at an oval in the course of the day.
13 Later in the day he came to her house uninvited. She was uneasy about him being there because he was extremely intoxicated. He left, and returned later in the evening.
14 She repeatedly asked him to leave, but he would not.
15 Later, a friend of Ms Courtenay, Angeline Lowe came to Ms Courtenay's house.
16 Ms Lowe asked Mr Riseley to leave. He refused to do so and became aggressive towards her. He grabbed her hair and pulled her, causing her pain. That conduct constitutes the offence of common assault.
17 One of Ms Courtenay or Ms Lowe called the police.
18 The police attended. The two police officers attempted to persuade Mr Riseley to leave but he refused to do so. Constable Saxon took hold of Mr Riseley and attempted to walk him out of the house saying that he was under arrest for suspicion of assaulting Ms Lowe. He resisted and struggled with the police officers. The police officers took Mr Riseley to the ground in order to restrain him. One of the officers tried to handcuff Mr Riseley who then began to kick out. One of his kicks struck Constable Johnson in the head.
19 That was the assault of a public officer for which he was found guilty.
20 Mr Riseley continued to struggle. His legs were entangled with those of Constable Saxon.
21 After further struggles, eventually Mr Riseley was handcuffed.
Sentencing
22 As I have said, there is no record of the submissions made to the magistrate on the question of sentence or of the magistrate's sentencing remarks. The nature of Mr Riseley's ground of appeal, implied error, means that this court is able to perform its appellate function notwithstanding the absence of the transcript. That is accepted by counsel for the appellant.2
23 In his report, the magistrate states that he sentenced Mr Riseley to a term of imprisonment because the assaults on both Angeline Lowe and Constable Johnson were unprovoked and serious. Further, the magistrate observed that Mr Riseley had a criminal record that did not assist him.
Ground of appeal
24 Mr Riseley's ground of appeal is as follows:
The sentence imposed was manifestly excessive in that the sentencing magistrate failed to suspend the term of imprisonment, in particular taking into account:
(a) the circumstances of the offending;
(b) the appellant's criminal history;
(c) the appellant's personal circumstances.
25 Thus, the ground of appeal asserts an implied error, based on the result at which the magistrate arrived.
Implied error and manifest excess: legal principles
26 A claim of manifest excess involves establishing an implied error. What must be established is that a sentence of the nature or length imposed is plainly unjust or unreasonable, and could not have been reached in the proper exercise of the sentencing discretion.
27 In determining whether a sentence is manifestly excessive, the sentence should be examined from the perspective of the maximum sentence prescribed for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
Suspended sentences: legal principles
28 By s 6(4) of the Sentencing Act 1995 (WA), a court must not impose a sentence of imprisonment on an offender unless it decides that:
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
29 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment.3 In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.4
30 In determining whether or not 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.5
31 Even if a term of 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.6
32 Among the factors to be considered when deciding whether or not to suspend a term of imprisonment are:
(a) the perceived seriousness and intrinsic character of the offence;
(b) whether there was any element of persistence;
(c) general deterrence;
(d) factors personal to the offender, including mitigating circumstances;
(e) the need to demonstrate the community's condemnation of offences of the kind in question;
(f) the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and
(g) any factors militating in favour of an exercise of mercy.7
33 Of course, the objective features of an offence may, in a given case, outweigh the personal considerations of rehabilitation and mercy and may require that the prison sentence be immediately served, notwithstanding mitigating personal circumstances.8
Implied error in a refusal to suspend: legal principles
34 The approach to an appeal against a refusal to suspend a term of imprisonment on the ground of implied error was explained by McLure P in Fogg v The State of Western Australia.9 A court must not order immediate imprisonment unless it is positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision-maker. In borderline cases, different types of sentence may be reasonably open. In such a case, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust and would reveal no implied error.
35 Thus, it is for the appellant to satisfy the court that a judgment by the primary sentencing court that suspension was not appropriate was a conclusion that was not reasonably open.
Mr Riseley's submissions
36 Mr Riseley submits, in summary, as follows:
(1) his assault on the public officer did not cause any injury;
(2) his assault involved kicking out his feet, in the process of resisting arrest, while he had bare feet;
(3) the assault should be seen as unintended, although an entirely foreseeable consequence of Mr Riseley's deliberate conduct in obstructing his arrest by kicking out;
(4) Mr Riseley was 41, with no prior convictions for assaulting a public officer, and had not been sentenced to a term of imprisonment before;
(5) although Mr Riseley had two prior offences of a violent nature, there had been a long period of almost 14 years between offences, demonstrating his ability to live an offence free lifestyle;
(6) Mr Riseley's two prior offences of a violent nature were committed more than 20 years apart;
(7) the modest penalties imposed in respect of those prior offences indicate the low level of seriousness of those previous offences;
(8) the material before the court, including the long period of offence free conduct indicate good prospects for rehabilitation; and
(9) in the circumstances a term of immediate imprisonment was manifestly excessive. The term of imprisonment should have been suspended.
Disposition of the matter
37 I accept the first three points as to the nature and circumstances of the offence itself, and as to the place the offence occupies in the scale of seriousness of offences of assaulting a public officer.
38 The offence of assaulting a public officer is a serious one, carrying a maximum of 7 years imprisonment. In Quinn v The State of Western Australia,10 McLure JA observed that the safety of police officers lawfully carrying out their duties is a matter of prime importance, and the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence.
39 In determining whether the sentences of imprisonment imposed on Mr Riseley should be suspended, the magistrate was entitled to take into account that he was sentencing Mr Riseley for three offences, two of which involved assaults by Mr Riseley. As the magistrate pointed out, both of these assaults occurred without any form of provocation by the victim.
40 Mr Riseley pleaded not guilty to the offence and was convicted after a trial. Thus, he did not have the benefit of the mitigation arising from a plea of guilty.
41 Mr Riseley was neither youthful, nor a first offender. He was aged 41 at the time of the offence. He had a criminal record that included previous assault offences. That included a conviction in 2012 for assault occasioning bodily harm.
42 I have reviewed the cases referred to in the parties' submissions, including the schedule to the respondent's submissions.
43 Consideration of the cases referred to by both counsel does not provide any real assistance in determining whether the imposition of a term of immediate imprisonment reveals implied error. Counsel for Mr Riseley pointed out, correctly, that some of the other cases in which terms of immediate imprisonment were imposed involved more serious assaults than this case. As she accepted, that does not sustain Mr Riseley's contention that his term of imprisonment reveals error.
44 In my view there is nothing in any of the cases that supports a conclusion that, in the circumstances of this case, including that Mr Riseley pleaded not guilty, was not young, and was not a first offender, a term of immediate imprisonment reveals implied error.
45 Given the features of the offence highlighted in Mr Riseley's submissions, it may perhaps have been open to the magistrate to suspend the term of imprisonment. It is not necessary to decide whether that is so. I am not persuaded that the decision to impose an immediate term was, in all the circumstances, not open to the magistrate, particularly taking into account the features I have just outlined. In summary:
(1) The magistrate was sentencing Mr Riseley for two offences of assault, not merely one. Although the two offences were part of an ongoing incident at the one location, there was some separation in time between the two.
(2) Both assaults were entirely unprovoked.
(3) The offence of assaulting a public officer is a serious one.
(4) Mr Riseley was not a first offender, having had a conviction for assault occasioning bodily harm in 2012.
(5) These circumstances engaged the need for both general and personal deterrence.
(6) Mr Riseley was not youthful.
(7) Mr Riseley pleaded not guilty to the offences.
Conclusion
46 For these reasons I make the following orders:
(1) the time for lodging an appeal to be extended to 12 January 2015; and
(2) the appeal be dismissed.
1 Appeal ts 30.
2 Appeal ts 31.
3 S 39(2) and s 39(3).
4The State of Western Australia v Johnson [2009] WASCA 224 [68] (Buss JA, Owen & Wheeler JJA agreeing); Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); GJT v The State of Western Australia [2011] WASCA 263 [4] (McLure P, Mazza J agreeing), [65] (Buss JA).
5Cartwright v The State of Western Australia [2010] WASCA 4 [8] (McLure P, Owen & Wheeler JJA agreeing).
6Cartwright [10] (McLure P, Owen & Wheeler JJA agreeing).
7Powell v Tickner [2010] WASCA 224 [52] (Buss JA); R v Liddington (1997) 18 WAR 394, 406 (Steytler J).
8Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86] (Kirby J); Powell v Tickner [53] (Buss JA).
9Fogg v The State of Western Australia [2011] WASCA 11; applied in many cases, see for example GJT [65] (Buss JA).
10Quinn v The State of Western Australia [2006] WASCA 99 [19].
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