Roberts v Spencer
[2020] WASC 255
•3 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ROBERTS -v- SPENCER [2020] WASC 255
CORAM: DERRICK J
HEARD: 2 JULY 2020
DELIVERED : 3 JULY 2020
FILE NO/S: SJA 1031 of 2020
BETWEEN: KYLIE MARIE ROBERTS
Appellant
AND
ASHLEIGH LAUREN SPENCER
First Respondent
AARON CARTER
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B MAHON
File Number : AR 8285 of 2019, AR 14741 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant sentenced for aggravated assault occasioning bodily harm offence to six months and one day imprisonment conditionally suspended for 12 months - Appellant reoffended during term of conditional suspended imprisonment order - Magistrate ordered appellant to serve five months of the conditionally suspended term of imprisonment pursuant to s 84F(1)(b) of the Sentencing Act 1995 (WA) - Whether magistrate failed to consider making an order pursuant to s 84F(1)(b) of the Sentencing Act 1995 (WA) requiring the appellant to serve less than five months of the conditionally suspended term of imprisonment - Whether magistrate failed to consider making an order pursuant to s 84F(1)(c) of the Sentencing Act 1995 (WA) - Whether magistrate erred in ordering the appellant to serve five months of the conditionally suspended term of imprisonment - Whether magistrate erred in failing to make an order pursuant to s 84F(1)(c) of the Sentencing Act 1995 (WA)
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Rules 2005 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Application for extension of time within which to appeal refused
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| First Respondent | : | Mr B M Murray |
| Second Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Kate King Legal |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dillon v The State of Western Australia [2020] WASCA 24
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Harper v Page [2004] WASCA 267
Kelly v The State of Western Australia [2020] WASCA 29
Lang v The State of Western Australia [2011] WASCA 153
Mason v The State of Western Australia [2018] WASCA 43
NTH v The State of Western Australia [2020] WASCA 22
Page v The State of Western Australia [2018] WASCA 76
Pedersen v The State of Western Australia [2010] WASCA 175
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vagh v The State of Western Australia [2007] WASCA 17
Willenberg v Downey [2015] WASC 282
Zinga v Johnson [2012] WASC 216
DERRICK J:
Introduction
On 6 August 2019 the appellant was convicted in the Magistrates Court on her plea of guilty of one offence of unlawful assault occasioning bodily harm in a circumstance of aggravation contrary to s 317(1)(a) of the Criminal Code (WA) (Code) (the assault offence). The circumstance of aggravation was that the appellant was in a family relationship with the complainant. On 9 August 2019 the appellant was sentenced for the assault offence to six months and one day imprisonment conditionally suspended for 12 months.
On 10 January 2020 the appellant appeared before Magistrate Mahon and was convicted on her plea of guilty of one offence of breaching Family Violence Restraining Order 04858 (the VRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the VRO offence). The appellant committed the VRO offence during the period 7 December 2019 to 17 December 2019, that is, during the term of the conditional suspended imprisonment order imposed on her on 9 August 2019 for the assault offence (the CSIO). Accordingly, on being convicted of the VRO offence the appellant became liable to be dealt with for the assault offence under s 84F of the Sentencing Act 1995 (WA).[1]
[1] Sentencing Act, s 84D(1)(a).
On 14 January 2020 Magistrate Mahon sentenced the appellant to one month and one day imprisonment for the VRO offence and ordered pursuant to s 84F(1)(b) of the Sentencing Act that the appellant serve five months of the six months and one day suspended term that had been imposed on her for the assault offence. His Honour ordered that the sentences imposed were to be served cumulatively giving a total sentence of six months and one day imprisonment. His Honour ordered that the appellant was to be eligible for release on parole.
The appellant applies for an extension of time within which to appeal and for leave to appeal against the total sentence of six months and one day imprisonment imposed for the assault offence and the VRO offence on the single ground set out below.[2]
[2] Appeal Notice dated 17 April 2020 filed on 17 April 2020 (Appeal Notice); Amended Appeal Notice dated 26 June 2020 filed on 26 June 2020 (Amended Appeal Notice). The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
At a directions hearing held on 17 June 2020, at which the appellant appeared unrepresented, the Principal Registrar ordered that the appellant's applications for an extension of time within which to appeal and for leave to appeal were to be heard together with the appeal.
The appellant is currently in custody serving the total sentence imposed for the assault offence and the VRO offence. She was refused release on parole. She will have served her full sentence by 15 July 2020. Accordingly, at the directions hearing held on 17 June 2020 the Principal Registrar made an order for the urgent hearing of the appeal pursuant to r 69 of the Criminal Procedure Rules 2005 (WA).[3]
[3] The directions hearing on 17 June 2020 was listed at the instigation of the court given that the appeal had not been progressed by the appellant since the filing of the Appeal Notice and given also that the appellant had already served a substantial portion of the sentence the subject of the appeal. At the directions hearing the Principal Registrar advised the appellant of the options available to her, specifically to apply for bail pending the determination of the appeal and to apply for an urgent listing of the appeal. The appellant declined to make an application for bail but requested an urgent listing of the appeal. Consequently the Principal Registrar made programming orders for the urgent listing of the appeal. The appellant was offered an earlier date for the hearing of the appeal to that which was ultimately fixed but she declined the offer on the basis that she wanted time to properly prepare for the appeal: ts 8 ‑ 25, 17 June 2020.
The application for an extension of time
The respondent opposes the appellant's application for an extension of time within which to appeal.
The last day for the appellant to appeal against the sentences imposed was 4 February 2020.[4] The appellant filed the Appeal Notice on 17 April 2020, that is, in excess of two months late.
[4] CAA, s 10(3).
The appellant has filed in support of her application for an extension of time within which to appeal an affidavit sworn on 29 June 2020 by a solicitor employed by the firm of solicitors that acts for the appellant.
In her affidavit the solicitor asserts that the appellant was under the impression that an appeal notice had been filed by a legal practitioner on her behalf, that it appears that this did not take place, that the appellant 'essentially represented herself until fairly recently' and that it was for these reasons that the Appeal Notice was filed out of time.
The solicitor's affidavit does not accurately reflect what occurred in relation to the filing of the Appeal Notice. The Appeal Notice reveals that the appellant was legally represented at the time that the notice was filed and that the notice was filed on her behalf by her then lawyer, Ms Frances Veltman.[5] In these circumstances the contents of the solicitor's affidavit do not adequately explain the appellant's delay in commencing the appeal. [6]
[5] Ms Veltman filed a notice of ceasing to act on 15 June 2020.
[6] During the hearing of the appeal the appellant's counsel, who received a grant of legal aid to appear for the appellant only a very short time prior to the appeal hearing, informed me that he had drafted the affidavit for swearing by the solicitor and that he therefore accepted responsibility for any factual errors in the affidavit. Counsel informed me that he drafted the affidavit 'remotely', and that it was based on his understanding of material that he had been provided with.
Counsel was not, on the instructions that had been provided to him, able to put forward from the bar table any explanation for the late filing of the Appeal Notice.
Ultimately the question is whether it is in the interests of justice to grant an extension of time.[7]
[7] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The delay in filing the Appeal Notice is significant. The delay is not adequately explained. In these circumstances it will not be in the interests of justice to grant an extension of time unless to refuse to do so will result in a miscarriage of justice. I will therefore defer making a final decision on the application for an extension of time until I have dealt with the merits of the application for leave to appeal.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[8] The ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[9] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[10]
[8] CAA, s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[10] CAA, s 9(3).
The facts of the assault offence
The facts of the assault offence were as follows.[11]
[11] ts 6, 14 January 2020.
At about 4.50 pm on 22 July 2019 the appellant and the male complainant, who was the appellant's partner, were in a vehicle together. The complainant was driving the vehicle and the appellant was in the passenger seat. Without warning the appellant punched the complainant to his mouth causing bruising to his top inner lip, broken skin and bleeding. The complainant immediately stopped the vehicle and ran inside a nearby unit complex. The appellant got out of the vehicle and walked after the complainant. The complainant returned to the vehicle and drove to the Armadale Police Station where he reported the assault. Later on the same day the appellant was arrested.
At the time of the assault the appellant and the complainant had been in a relationship for about three months.
The facts of the VRO offence
The facts of the VRO offence were as follows.[12]
[12] ts 4, 14 January 2020.
In November 2019 the complainant, who was the appellant's former partner and the complainant in the assault offence, obtained the VRO against the appellant. The VRO was personally served on the appellant on 28 November 2019.
The VRO contained multiple conditions one of which prohibited the appellant from communicating or attempting to communicate by any means whatsoever, including by SMS or text message, with the complainant.
Between 7 December 2019 and 17 December 2019 the appellant sent to the complainant a total of 29 text messages and called him on his mobile phone 39 times. Twenty‑seven of the telephone calls were from a blocked number with the complainant answering nine of the calls. On each of the occasions that the complainant answered the calls the appellant spoke to him about her property and also a puppy that they shared together. The text messages were in the main coercive in nature in that they were directed at encouraging the complainant to meet up with the appellant and to communicate with her.
The hearing on 14 January 2020
At the hearing on 14 January 2020 the appellant was unrepresented.
At the commencement of the hearing the magistrate asked the appellant if she was sure that she wanted to represent herself.[13] To this question the appellant answered, 'Yes, pretty much'.[14]
[13] ts 2, 14 January 2020.
[14] ts 2, 14 January 2020.
The magistrate told the appellant that he had read the letter that she had written.[15] His Honour told the appellant that the letter was helpful and that it had given him an idea of what had been 'going on'.[16]
[15] ts 2, 14 January 2020.
[16] ts 2, 14 January 2020.
After a short adjournment of the hearing to enable the prosecutor to obtain the prosecution brief, the magistrate returned to the issue of the appellant representing herself. The following exchange occurred between the magistrate and the appellant:[17]
[17] ts 3 ‑ 4, 14 January 2020.
HIS HONOUR: And, Ms Roberts, you - as before, you're asking me to proceed and you're going to represent yourself.
APPELLANT: Yes.
HIS HONOUR: Do you understand, Ms Roberts, you've got to step through some hoops here? You've got to show - the law obliges me to activate the sentence unless particular steps are established. You probably won't know even what you've got to prove, do you?
APPELLANT: Not really.
HIS HONOUR: And I also need CJS through to find out how Ms Roberts is travelling on the order as well, please, if we can - can we get that happening, Will? Can someone ask Ms Court step through. Are you sure you're happy to deal with this yourself?
APPELLANT: Yes, sir, because I really need to get back to my house because, otherwise, I've lost everything, either way.
HIS HONOUR: Yes, but what I'm saying ‑‑‑
APPELLANT: Either way.
HIS HONOUR: Ms Roberts, what I'm saying to you is the fact you're dealing with it yourself doesn't mean that you're going to be going home. There's every likelihood you're going to remain in custody. Do you understand?
APPELLANT: Yes. Well, there's nothing I can do about it. I have to ‑‑‑
HIS HONOUR: You're happy to deal with it yourself?
APPELLANT: I have to. I have no other choice but to, because I've been waiting for four weeks for a lawyer, otherwise I'm in seven years hardship. I have to deal with it.
HIS HONOUR: Yes, just bear with me. The duty lawyer may be able to help you.
APPELLANT: No, they can't.
HIS HONOUR: You just want to deal with it?
APPELLANT: They can't - yes.
HIS HONOUR: Okay. Fair enough, too. Alright. We will start to receive the facts, please, and then hopefully Ms Court will be able to step through. Go ahead.
After the above exchange the prosecutor read to the magistrate the facts of the VRO offence.
Having heard the facts of the VRO offence the magistrate heard a brief oral report from the previously referred to Ms Court. It would appear that Ms Court was a community corrections officer (CCO) or someone connected to the Corrective Services Division of the Department of Justice. The brief oral report delivered by Ms Court addressed how the appellant had performed on the CSIO. In this regard Ms Court informed the magistrate of the following matters:[18]
1.The appellant had remained engaged with the CSIO and her CCO;
2.In November 2019 the appellant attended a Communicare assessment with feedback from the facilitators being that she appeared to be under the influence of substances, might benefit from a mental health assessment and remained preoccupied with the victim of her offending; and
3.The appellant had attended some counselling as directed, although there had not been any treatment gains to date.
[18] ts 5, 14 January 2020.
After hearing Ms Court's report the magistrate heard the facts of the assault offence.[19]
[19] ts 6, 14 January 2020.
After hearing the facts of the assault offence the magistrate asked the prosecutor to inform him of the prosecution's submission as to the appropriate sentence.[20] The prosecutor submitted, in essence, that the appellant should be required to serve the suspended term of imprisonment imposed for the assault offence with a reduction to take account of the three weeks that the appellant had already spent in custody on remand for the VRO offence.[21] The prosecutor submitted that if the appellant was not required to serve at least part of the term of the suspended term of imprisonment there would be 'no integrity in the suspended order'.[22]
[20] ts 6, 14 January 2020.
[21] ts 6 ‑ 7, 14 January 2020. The appellant had been remanded in custody for the VRO offence since 19 December 2019 being the date on which she was arrested for the offence.
[22] ts 7, 14 January 2020.
After hearing the prosecutor's submissions the magistrate had a brief exchange with the prosecutor in relation to s 84F of the Sentencing Act. The magistrate then returned to speaking to the appellant. During the course of his discussion with the appellant the magistrate told the appellant that the law required him to order her to serve the suspended term of imprisonment unless she was able to show him that it would be unjust to require her to serve the term 'based on what has arisen or become known since' the imposition of the term of imprisonment.[23] His Honour asked the appellant if she understood.[24] The following exchange then occurred between his Honour and the appellant:[25]
[23] ts 9, 14 January 2020.
[24] ts 9, 14 January 2020.
[25] ts 9 ‑ 10, 14 January 2020.
APPELLANT: Yes, sir. I've also - I've - I've begun working as a carer three days a week on the outside.
HIS HONOUR: When did that start?
APPELLANT: It's pretty much November, I think, the 4th.
HIS HONOUR: Ms Roberts, in fairness to you the easier option for me is to leave you struggling trying to clear a hurdle that's very difficult for you to clear.
APPELLANT: Yes.
HIS HONOUR: You've told me that you would rather deal with it yourself and I'm respectful of that, but I need at least the transcripts of what was said last time before I can deal with it, do you understand? Because otherwise I don't know what was said last time I've got no way of knowing.
APPELLANT: Well then you may as well lock me up for the rest of my life because ‑‑‑
HIS HONOUR: Well, I don't think that's going to happen, Ms Roberts.
APPELLANT: ‑‑‑ there's no point in me getting out because, yes, after this there's nothing, you know.
HIS HONOUR: Well, just ‑‑‑
APPELLANT: As far as my life is concerned there's nothing.
HIS HONOUR: Ms Roberts, just hear me ‑‑‑
APPELLANT: There's no more opportunities for me there.
HIS HONOUR: If it's the case that you - just remain standing a moment. I'm not trying to be difficult to you, but I've got to do what I've got to do. If you say to me that you wish to persuade me that it would be unjust based upon the legislation I've got to have the transcript. You're going to have to request that or the duty lawyer request it on your behalf, not my job to do that, do you understand? But that's going to take three or four weeks to get that.
APPELLANT: I don't have that time, sir.
HIS HONOUR: Well, if it's the case that you say that you don't wish to persuade me, then I will just get on and sentence you, but the outcome will be a term of immediate imprisonment. I will give you full credit for your pleas, but I don't have the latitude to go another way.
APPELLANT: Why do the transcripts - why is the transcript taking another four weeks ‑‑‑
HIS HONOUR: Because that's how long it takes.
APPELLANT: ‑‑‑ when we've had already nearly four weeks, sir.
HIS HONOUR: Well, it has never been raised, no one has ever raised it.
APPELLANT: And my lawyer, Mr Gunning, has said that he can't get up to Armadale court.
HIS HONOUR: Yes.
APPELLANT: Now, I don't see why all these things are so difficult.
At this point in the proceedings the magistrate was handed some additional documentation, presumably by court staff.[26] It is not clear from the transcript precisely what the additional documentation was. However, it would appear from statements made by the magistrate a few moments later in the proceedings (cited below) that the documentation consisted of some form of record of matters concerning the appellant.[27] In any event, after being handed the additional documentation the following exchange occurred between the magistrate and the appellant:[28]
[26] ts 10, 14 January 2020.
[27] ts 11, 14 January 2020.
[28] ts 11, 14 January 2020.
HIS HONOUR: In fairness to you also, Ms Roberts, you're going to need chance [sic] to look at this because whilst I'm duty bound to make sure things are done fairly, I'm not your lawyer, do you understand? Thank you, just give me a moment and I will have a quick look at this. It boils down to this, doesn't it, Ms Roberts, you're really saying for the first time in a long time you've got some stability available and you've had some work which started in November.
APPELLANT: Yes.
HIS HONOUR: You were sentenced to this on 9 August, correct?
APPELLANT: Yes, sir.
HIS HONOUR: It boils down to that and you would say that in the circumstances overall that that would make it unjust for the sentence to activate notwithstanding your poor history; is that right?
APPELLANT: Yes, sir.
HIS HONOUR: Alright. Do you wish me to request a fuller transcript? From what I can see in here those are matters that have arisen since the original sentence, correct?
APPELLANT: Yes.
HIS HONOUR: Those are the two matters you urge on me.
APPELLANT: Yes, that and the fact that I'm now beginning to be able to see my kids and stuff like that, I'm making progress there and with family as well.
HIS HONOUR: Yes.
APPELLANT: Which has been seven years, sir.
HIS HONOUR: I see. Those are the matters you ask me to take into account. Other than that you point to your early pleas and full credit for your pleas of guilty, correct?
APPELLANT: Yes.
HIS HONOUR: That's it in a nutshell.
APPELLANT: Yes.
At the end of this exchange the magistrate told the appellant to take a seat and said that he would deal with the matter.[29] His Honour then proceeded to sentence the appellant.
[29] ts 12, 14 January 2020.
The magistrate commenced his sentencing remarks by stating that the appellant had breached the CSIO.[30] His Honour noted that the appellant had been 'in part compliant' with the CSIO but that officers had formed the view that she had been drug affected at times.[31] His Honour noted that the appellant had some mental health issues which prompted an interjection by the appellant in which she stated that her mental health issues were only due to a car accident.[32] His Honour next noted that the appellant had in the past had some 'interactions' with drugs and asked the appellant if this was correct.[33] The appellant confirmed that she had used drugs in the past but stated that she had not done so recently and not since she was last released from prison.[34] His Honour then relevantly said the following:[35]
I see. In any event Ms Roberts has been part compliant with the order. The integrity of a suspended sentence is of critical importance.
…
Ms Roberts is self‑representing in difficult circumstances, she urges upon me and I have to say in an intelligent way, she is focused as others do not - she urges upon me those matters that have arisen or become known are these: (1) she work which was not in place when she was first sentenced [sic], (2) she has the possibility of long awaited housing stability and, (3) she has renewed contact with her children for the first time in seven years at least one of her sons. That's it in a nutshell, correct?
[30] ts 12, 14 January 2020.
[31] ts 12, 14 January 2020.
[32] ts 12, 14 January 2020.
[33] ts 13, 14 January 2020.
[34] ts 13, 14 January 2020.
[35] ts 13, 14 January 2020.
In response to the magistrate's question the appellant responded, 'Yes'.[36]
[36] ts 13, 14 January 2020.
The magistrate continued his sentencing remarks as follows:[37]
Section 84F sets out the legislation and what I must do. Section 84F sets out that I must activate the sentence pursuant to section 84F(1)(a) unless I form the view it would be unjust to do so and it is limited to the circumstances that have arisen or become known since the conditional suspended was imposed [sic]. I take the view that in relation to this matter, Ms Roberts, whilst I'm respectful of your position it is of devastating concern to me that when you're put on a CSIO you again breached the family violence restraining order.
The police through [the prosecutor] today fairly set out that there have been many breaches of bail, of protective bail, of restraining orders, there have been violence, there has been driving under suspension, all of which point to a disregard from time to time. I have to say, Ms Roberts, having carefully considered your position in difficult circumstances I regret to say I am not satisfied on what I have that it would be unjust to activate the sentence.
What I will do, however, Ms Roberts, is I will activate on a basis that takes into account the time that you were taken in custody and also will adjust by totality to encourage you. His Honour imposed six months and one day, in my view allowing - I can't backdate it I'm not permitted to do that. It strikes me that you've been in custody for almost one month, in those circumstances, I propose to deal with it on this basis. Of the original sentence I impose five months that's on a concurrent basis being the head sentence.
For the breach of violence restraining order - not your first rodeo with respect in that regard although it has been a little while since it has happened - I take the view in order to achieve totality that the particular matter requires a term of imprisonment which will be cumulative, but will be far more modest than it would have been and I impose a term of imprisonment on the breach of family violence restraining order of one month and one day. Ironically, it gives you with the original six months and one sentence [sic] - you effectively get the breach of family violence restraining order without additional time.
Do you understand, Ms Roberts? In my view that is the fairest I can do. That sentence starts today, 14 January. I make you eligible for parole, Ms Roberts, but that is the best I can do in the circumstances …[38]
[37] ts 13 ‑ 14, 14 January 2020.
[38] The magistrate's statement that he could not backdate the sentence imposed to take account of the time that the appellant had spent in custody since being taken into custody for the VRO offence was correct: Lang v The State of Western Australia [2011] WASCA 153 [4]; Zinga v Johnson [2012] WASC 216 [33].
Section 84F
Section 84F provides as follows:
(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 CSI, a court that must deal with the person under this section must deal with the person by one of the following methods –
(a)unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (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, paragraph (a) or section 84L(1)(a) or (b) 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 ordered 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 CSI.
(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 CSI was imposed.
(4)If a court does not make an order under subsection (1)(a) it must give written reasons for not doing so.
(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,
as if the term to be served were a term of imprisonment being imposed by the court.
(6)If an order is made under subsection (1)(d), then, unless the suspension period has ended, the sentence of CSI remains in effect and the suspension period continues to elapse.
(7)An order by a superior court under subsection (1) in a case where the sentence of CSI 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.
The references in s 84F to 'CSI' are references to 'conditional suspended imprisonment'.[39] Section 84L is of no relevance in the present context.
[39] Sentencing Act, s 4 (definition of 'CSI').
The ground of appeal and the appellant's argument
The appellant's ground of appeal is pleaded as follows:[40]
[40] The ground of appeal is set out in the Amended Appeal Notice. At the commencement of the hearing of the appeal I made an order, on the application of the appellant, permitting the ground of appeal contained in the Amended Appeal Notice to be substituted for the grounds of appeal set out in the Appeal Notice.
1.The learned Magistrate erred in law when he failed to adequately or at all consider certain provisions in s 84F of the Sentencing Act 1995 (WA) (the Act):
Particulars
1.1His Honour failed to consider adequately or at all s 84F(1)(b) of the Act;
1.2His Honour failed to consider adequately or at all section 84F(1)(c) of the Act.[41]
[41] CAA, s 8(1)(a)(i) permits an appellant to appeal on a ground alleging an error of law.
Thus the ground of appeal as pleaded alleges an express error.
The assertion in the ground that the magistrate failed to 'adequately' consider s 84F(1)(b) and s 84F(1)(c) is misconceived. This is in reality nothing more than an allegation that the magistrate failed to give adequate weight to these sections. A failure by a judicial officer to give adequate weight to a relevant legislative provision in the exercise of their sentencing discretion will only constitute an express appealable error if it amounts to a failure by them to exercise the discretion.[42] There is no basis in the present case for concluding that the alleged failure by the magistrate to give adequate consideration (that is, adequate weight) to s 84F(1)(b) and s 84F(1)(c) is capable of amounting to a failure by the magistrate to exercise the sentencing discretion conferred on him. Accordingly, the error alleged in the ground must be read as being confined to an allegation that the magistrate erred in failing to consider s 84F(1)(b) and s 84F(1)(c).
[42] Vagh v The State of Western Australia [2007] WASCA 17 [76]; Pedersen v The State of Western Australia [2010] WASCA 175 [37]; Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81].
Accepting that the ground of appeal must be read as alleging only a failure to consider s 84F(1)(b) and s 84F(1)(c), a further difficulty with the ground is that it does not properly reflect the full scope of the argument that was advanced by the appellant on the appeal. The argument advanced by the appellant was not confined to the contention that the magistrate erred by failing to consider s 84F(1)(b) and s 84F(1)(c). Rather, the appellant's argument extended to contending that even if the magistrate did consider s 84F(1)(b) and s 84F(1)(c) his Honour, given a number of factors, erred by failing to make an order under s 84F(1)(c) or by failing to make an order under s 84F(1)(b) requiring her to serve something less than five months of the suspended term.[43] The factors that were pointed to by the appellant in support of this contention are as follows:
1.Her conduct in breaching the VRO did not involve actual or threatened violence and was comprised of making phone calls and sending text messages in an attempt to coerce the complainant to meet with her;[44]
2.Ms Court's report revealed that she had remained engaged with the CSIO and her CCO;[45]
3.Ms Court's report raised her mental health as an issue for the court's consideration;[46] and
4.Since being placed on the CSIO she had obtained employment, had the prospect of obtaining some permanent housing, and had renewed contact with at least one of her children for the first time in a number of years.[47]
[43] The appellant's counsel expressly disavowed the contention that the magistrate erred by failing to make an order under s 84F(1)(d).
[44] Appellant's written submissions dated 26 June 2020 (Appellant's submissions) [5].
[45] Appellant's submissions [6].
[46] Appellant's submissions [6].
[47] Appellant's submissions [7].
The appellant's contention that the magistrate erred by failing to make an order under s 84F(1)(c) or by failing to make an order under s 84F(1)(b) requiring her to serve something less than five months of the suspended term was substantially addressed by the respondents in their submissions. In these circumstances, and in the absence of objection by the respondents, I propose to approach the appeal, despite the wording of the pleaded ground, on the basis that it encompasses not only an allegation that the magistrate erred by failing to consider s 84F(1)(b) and s 84F(1)(c), but also an allegation that the magistrate erred by ordering the appellant to serve five months of the six months and one day suspended term of imprisonment.[48]
[48] CAA, s 8(1)(a)(iii) permits an appellant to appeal on a ground alleging that the summary court imposed a sentence that was excessive.
Finally, it should be noted in this context that although the appellant seeks leave to appeal against the total sentence imposed on her by the magistrate, the ground of appeal as expressed is not directed at the sentence of one month and one day imprisonment imposed for the VRO offence. Nonetheless, the position adopted by the appellant on the appeal, with the acquiescence of the respondents, was that if the magistrate erred in making an order pursuant to s 84F(1)(b) his Honour also erred in imposing a sentence of immediate imprisonment for the VRO offence. The appellant did not seek to contend that if the magistrate did not err in imposing a sentence of immediate imprisonment for the VRO offence his Honour erred in setting the length of sentence imposed or in ordering the sentence to be served cumulatively on the term imposed for the assault offence.
Analysis
Did the magistrate fail to consider s 84F(1)(b) and s 84F(1)(c)?
The effect of s 84F(1)(a) and s 84F(3) in the present case was to require the magistrate to order the appellant to serve the suspended six months and one day term of imprisonment that had been imposed for the assault offence unless his Honour decided that it would be unjust to do so in view of all of the circumstances that had arisen, or had become known, since the CSIO was imposed.[49] It necessarily follows that it was only if the magistrate decided that it would be unjust to require the appellant to serve all of the suspended term of imprisonment that it became necessary for his Honour to consider s 84F(1)(b) and s 84F(1)(c).
[49] Dillon v The State of Western Australia [2020] WASCA 24 [29].
The magistrate did not make an order pursuant to s 84F(1)(a) requiring the appellant to serve all of the suspended six months and one day term of imprisonment. Rather, his Honour, although he did not expressly say so, made an order pursuant to s 84F(1)(b) requiring the appellant to serve only part of the suspended six months and one day term, specifically five months of the term. It is therefore apparent that the magistrate, although he did not expressly say so and despite his statement that he was not satisfied that it would be 'unjust to activate the sentence',[50] did in fact conclude that it would, within the meaning of s 84F(3), be unjust in view of all of the circumstances that had arisen, or had become known, since the CSIO has been imposed to require the appellant to serve all of the suspended six months and one day term. It is also apparent from the magistrate's sentencing remarks, most particularly his Honour's statement that he would 'activate' the sentence 'on a basis that takes into account the time that [the appellant was] taken in custody', that his Honour arrived at the conclusion that it would be unjust to require the appellant to serve all of the suspended sentence because the appellant had, since being arrested and charged with the VRO offence, that is, since being placed on the CSIO, spent almost one month in custody on remand for the VRO offence.[51] In short, it is tolerably clear that the magistrate, having decided that it would, given the time that the appellant had spent remanded in custody, be unjust to require her to serve all of the suspended term decided that it was appropriate (not unjust) to order that she serve the suspended term reduced by an amount to reflect the time that she had spent in custody.
[50] ts 14, 14 January 2020.
[51] ts 14, 14 January 2020. It was open to the magistrate to view the time that the appellant had spent in custody for the VRO offence since being placed on the CSIO as a basis for concluding that it would, within the meaning of s 84F(3), be unjust in view of all of the circumstances that had arisen or become known to order that she serve all of the suspended term: Lang v The State of Western Australia [4]; Zinga v Johnson [34].
Notwithstanding that the magistrate made an order pursuant to s 84F(1)(b), the appellant submits that it is apparent from a fair reading of the exchanges that occurred between the magistrate and the prosecutor, the exchanges that occurred between the magistrate and the appellant, and the magistrate's sentencing remarks, that the magistrate failed to consider making an order pursuant to s 84F(1)(c) and also failed to consider making an order pursuant to s 84F(1)(b) that required the appellant to serve a portion of the suspended term that was less than five months.
It is the position that the magistrate did not in his sentencing remarks make any express reference to s 84F(1)(b) or s 84F(1)(c). However, this does not of itself justify the conclusion that the magistrate made the asserted error. The sentencing remarks must be read as a whole and in context and not with an eye finely tuned for error.[52]
[52] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].
In his sentencing remarks the magistrate made express reference to 'section 84F' as being the legislation that sets out what he was required 'to do'. This statement in itself indicates that his Honour was conscious of all of the provisions of the section.
In any event, in my opinion a fair reading of the magistrate's sentencing remarks as a whole does not bear out the contention that his Honour failed to consider making an order under s 84F(1)(c) or failed to consider making an order under s 84F(1)(b) requiring the appellant to serve a portion of the suspended sentence that was less than five months. In my opinion it is implicit in the magistrate's conclusion that he was not satisfied that it would be 'unjust to activate the sentence', which given the order ultimately made by his Honour can only be read as a reference to the six months and one day suspended sentence less an amount reflecting the time that the appellant had spent remanded in custody for the VRO offence, and in his Honour's expressed reasons for arriving at this conclusion, that his Honour did give consideration to making an order pursuant to s 84F(1)(c) or an order pursuant to s 84F(1)(b) requiring the appellant to serve something less than five months of the suspended term. More specifically, the magistrate, prior to stating his conclusion that he was not satisfied that it would be 'unjust to activate the sentence' expressly referred to the appellant's 'part compliance' with the CSIO, to the importance of the 'integrity of a suspended sentence', to the factors that had been advanced by the appellant in support of her contention that she should not be required to serve any portion of the suspended term, to the nature of the offence committed by the appellant in breach of the CSIO and to the appellant's criminal record. The magistrate's express reference to these factors is, in my view, inconsistent with the assertion that his Honour did not turn his mind to, or in other words failed to consider, the possibility of making an order under s 84F(1)(c) or an order under s 84F(1)(b) that required the appellant to serve a period of imprisonment that was less than the suspended term reduced by an amount to reflect the time that the appellant had spent remanded in custody for the VRO offence. If the magistrate had failed to consider doing anything other than requiring the appellant to serve the suspended term less a period reflecting the amount of time she had spent remanded in custody for the VRO offence, his Honour would not have referred to other factors that bore upon the determination of how the appellant should be dealt with under s 84F(1) as a result of her breach of the CSIO.
In summary, in my opinion the appellant's contention that the magistrate failed to consider making an order under s 84F(1)(c) and failed to consider making an order pursuant to s 84F(1)(b) requiring the appellant to serve something less than five months of the suspended term has not been made out. The same can be said, in my opinion, for any suggestion that the magistrate failed to consider s 84F(1)(d).
Did the magistrate make an error by ordering the appellant to serve five months of the six months and one day suspended term of imprisonment?
The allegation that the magistrate erred by ordering the appellant to serve five months of the six months and one day suspended term of imprisonment is an allegation of implied error.
Applicable principles
In Dillon v The State of Western Australia[53] the appellant was convicted of a number of drug related offences in the District Court. The offending breached suspended imprisonment orders that had been imposed in the Magistrates Court in respect of offending mainly constituted by breaching violence restraining orders. The judge sentenced the appellant to terms of immediate imprisonment for the drug related offences and ordered that he serve the terms of imprisonment that were suspended. The appellant appealed against the sentences imposed on him. One of the appellant's grounds of appeal was that the judge had erred in requiring him to serve the suspended terms of imprisonment when it was unjust to do so. The appeal was dismissed. In the course of its judgment the Court of Appeal made the following statements in relation to s 80(1) - s 80(3) of the Sentencing Act which are equally applicable to s 84F(1) - s 84F(3):[54]
As was recognised in Hall v The Queen [[1999] WASCA 225; (1999) 21 WAR 364 [31]], 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 [[34]-[35]], 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.
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.
In the present case, the appellant relies on the different character of his subsequent offending as mandating a conclusion that it would be unjust to require him to serve the suspended sentences. The subsequent offending was of a different character to that for which suspended imprisonment orders were made. However, the character of the subsequent offending was significantly more serious. Substantial terms of immediate imprisonment were the only appropriate sentences for the subsequent offending. That meant that the purpose of a suspended imprisonment order - to give the appellant a final chance to avoid immediate imprisonment by leading a law-abiding life - had not been achieved. In circumstances where the appellant was to serve substantial terms of immediate imprisonment for the subsequent offending in any event, it was scarcely arguable that it would be unjust to require him to actually serve the suspended imprisonment.
[53] Dillon v The State of Western Australia [2020] WASCA 24.
[54] Dillon v The State of Western Australia [30] – [33].
Of course, in the present case the magistrate decided that it would be unjust to order the appellant to serve the suspended six months and one day term of imprisonment. His Honour did so given the time that the appellant had spent remanded in custody for the VRO offence since the CSIO had been imposed. Accordingly, the question for me, in determining whether the magistrate made the alleged error, is not whether it was open to the magistrate to fail to be satisfied that it would, in view of all the circumstances that had arisen or had become known, be unjust to require the appellant to serve the suspended sentence. Rather, the question for me is whether it was open to the magistrate to find that it was not appropriate to make an order under s 84F(1)(c) or an order under s 84F(1)(b) requiring the appellant to serve something less than five months of the suspended term.[55] Before I can decide that it was not open to the magistrate to find that it was not appropriate to make an order under s 84F(1)(c) or an order under s 84F(1)(b) requiring the appellant to serve something less than five months of the suspended term, I must be satisfied that the order that was made by the magistrate was so unreasonable or unjust that a substantial wrong has occurred.[56]
Decision
[55] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Dillon v The State of Western Australia [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).
[56] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
When the appellant was placed on the CSIO the magistrate who sentenced her, Magistrate Malley, told the appellant that behind the order was a penalty and that if she reoffended by committing any offence that carried with it a jail term she would be at peril of going back to jail.[57] Magistrate Malley asked the appellant if she understood this and the appellant responded, 'Yes, sir. Yes, I do'.[58] Nonetheless, the appellant reoffended by committing the VRO offence.
[57] ts 5, 9 August 2019.
[58] ts 5, 9 August 2019.
The VRO offence, even though it did not involve the use of actual or threatened violence, was not trivial. The appellant, in committing the offence, made contact with the complainant by text messages and telephone calls on numerous occasions over a period of approximately 10 days. The conduct comprising the offence was therefore persistent and sustained. In addition, the appellant commenced to engage in the conduct comprising the offence within a very short time, approximately nine days, of being served with the VRO. In all these circumstances the offence can properly be viewed as a moderately serious example of its type.
The VRO offence was not an offence which could be described as being out of character for the appellant. To the contrary, the appellant at the time of committing the VRO offence had a lengthy criminal record which included one prior conviction for breaching an intensive supervision order, three prior convictions for breaching a violence restraining order, and a significant number of prior convictions for breaching bail undertakings or breaching protective bail conditions.
Similarly, the assault offence was not an offence which could be described as being out of character for the appellant. On 4 January 2019 the appellant was convicted of an offence of aggravated assault occasioning bodily harm and sentenced for the offence to six months and one day imprisonment suspended for six months. Thus the appellant committed the assault offence approximately one month after the expiration of the period of suspension of the term of imprisonment that had been imposed in January 2019 for an offence of a similar character.
In short, the appellant's relatively extensive criminal record not only did her no credit, it also revealed a patent disregard on her part for court orders and a recent tendency to resort to the use of violence. Personal deterrence was therefore a significant sentencing consideration for the magistrate in determining whether to make an order pursuant to s 84F(1)(c) or an order pursuant to s 84F(1)(b) that required the appellant to serve less than five months of the suspended term, that is, something less than the suspended term reduced by an amount to reflect the time that the appellant had spent remanded in custody for the VRO offence.
The VRO offence was not committed towards the end of the term of the CSIO. Less than half of the term of the CSIO had expired at the time of the appellant's commission of the VRO offence.
The appellant's performance on the CSIO had been less than exemplary. Although she had remained engaged with her CCO, she attended one assessment in November 2019 while under the influence of substances. Further, she had not made any significant treatment gains. Accordingly, it could not be said that at the time that the appellant committed the VRO offence her rehabilitation was well advanced.
Ms Court's statement to the magistrate that feedback from the facilitators at Communicare was that the appellant might benefit from a mental health assessment was very general in nature. The statement was not something that provided any proper basis for the magistrate to conclude that the appellant should not be required to serve at least part of the suspended sentence.
There were factors that were in the appellant's favour. Since being placed on the CSIO she had obtained employment, had the prospect of obtaining some permanent housing, and had renewed contact with at least one of her children for the first time in a number of years. Nonetheless, in light of the other matters to which I have referred (specifically, the seriousness of the VRO offence, the appellant's criminal record and the need for personal deterrence, the timing of the commission of the VRO offence in relation to the imposition of the CSIO, and the appellant's performance on the CSIO) and taking into account the need for the courts to ensure that they do not undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending, it is my opinion that it was well open to the magistrate to find, despite the factors in the appellant's favour, that it was not appropriate to make an order under s 84F(1)(c) or an order under s 84F(1)(b) requiring the appellant to serve something less than five months of the suspended term (that is, something less than the suspended term reduced to reflect the time in custody that the appellant had spent in custody on remand for the VRO since being placed on the CSIO). There is, in my opinion, no basis for concluding that in all the circumstances it was unreasonable or unjust for the magistrate to order the appellant to serve five months of the suspended six months and one day term of imprisonment that had been imposed on her for the assault offence.
For the reasons that I have given there is, in my opinion, no merit in the contention that the magistrate erred by ordering the appellant to serve five months of the six months and one day suspended term of imprisonment. It follows that there is also, in my opinion, no merit in the appellant's contention that the magistrate erred in imposing an immediate term of imprisonment for the VRO offence.
Exercise of sentencing discretion afresh
I note for the sake of completeness, that if contrary to my above expressed conclusion the magistrate did make the express error alleged in the ground of appeal with the consequence that the sentencing discretion under s 84F falls to be exercised afresh,[59] I would still, for the reasons that I have given in dealing with the allegation of implied error that I have treated as being encompassed within the pleaded ground of appeal, dismiss the appeal on the basis that no substantial miscarriage of justice occurred because no different individual sentences or total sentence should be imposed.[60]
[59] NTH v The State of Western Australia [2020] WASCA 22 [163] ‑ [164].
[60] CAA, s 14(2).
Conclusion
In light of my conclusions in relation to the ground of appeal there is no basis for granting the requested extension of time. Accordingly, and for the reasons I have stated, I refuse the application for an extension of time within which to appeal, refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick3 JULY 2020
13
5