Salkilld v The State of Western Australia
[2010] WASCA 22
•18 FEBRUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SALKILLD -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 22
CORAM: OWEN JA
WHEELER JA
NEWNES JA
HEARD: 3 FEBRUARY 2010
DELIVERED : 18 FEBRUARY 2010
FILE NO/S: CACR 95 of 2009
BETWEEN: CLINTON JAMES SALKILLD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
File No :INS 170 & 17R of 2008
Catchwords:
Criminal law and procedure - Sentencing - Suspended sentence - Breached by further offences - Whether suspended sentence should have been activated in whole or part - Time spent in custody a relevant consideration - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal granted
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dragon v The State of Western Australia [2008] WASCA 252
OWEN JA: In December 2008 the appellant was sentenced to imprisonment for 3 years, suspended for 2 years for certain offences. He offended again during the suspension period. In June 2009 he came before the Supreme Court for a reconsideration of the sentences that had been suspended. The December 2008 sentences were reactivated with the result that he was required to serve a custodial term of 3 years less some days for time spent in custody.
This is an application for leave to appeal, and the substantive appeal, against the reactivation of the previously suspended sentences.
Background
The appellant was 18 years of age at the time of sentencing. On 22 July 2008 he committed three aggravated burglaries and on 20 August 2008 was sentenced to a 12 month community based order. On 27 August 2008 (one week later), the appellant committed further offences; namely stealing a motor vehicle, armed robbery and wilful damage (destroying a car by fire). These offences breached the 20 August community based order. The appellant was remanded in custody for sentencing in relation to those offences.
On 1 December 2008 the appellant appeared before McKechnie J and pleaded guilty to the three offences that had been committed on 27 August 2008. I will call these three offences, together with the three aggravated burglaries committed on 22 July 2008, 'the sentencing offences'. He was sentenced to 1 year's imprisonment for stealing the motor vehicle, and 2 years for each offence of robbery and destruction of the car by fire. McKechnie J ordered that the three terms be served concurrently thus arriving at a total sentence of 2 years' imprisonment for those offences. He cancelled the community based order and imposed in lieu a sentence of 1 year for each of the three aggravated burglaries to be served concurrently with one another but cumulative upon the sentence imposed for the three charges on the indictment. He also ordered that the total sentence of 3 years be conditionally suspended for 2 years, and made programme and supervision orders (CSI).
On 21 December 2008 (three weeks after the appearance before McKechnie J), the appellant committed an aggravated burglary on commercial premises and stole a metal cash tin containing approximately $200. On 27 January 2009 (about five weeks later) he assaulted a police officer by pushing him, and obstructed police officers by attempting to run away from them. The December 2008 offence and the January 2009 offences breached the CSI and I will call them 'the breaching offences'. On 30 April 2009 the appellant pleaded guilty in the Magistrates Court to the breaching offences.
On 4 June 2009 the appellant appeared before Simmonds J in the Supreme Court for sentencing in relation to the breach. His Honour chose to activate the sentence of 3 years' imprisonment less the time the appellant had spent in custody prior to his appearance before McKechnie J on 1 December 2008. While there was some uncertainty about the time he had spent in custody I think it is now common ground that the figure is 83 days. This explains why Simmonds J came to sentence the appellant to 3 years less 83 days.
This was not the end of the appellant's appearances before the courts. On 8 June 2009 he appeared in the Magistrates Court and pleaded guilty to the three offences committed on 21 December 2008 and 27 January 2009, which had breached the CSI. He was sentenced to a total term of 12 months' imprisonment to be served concurrently with any other terms of imprisonment. He also appeared in the Children's Court on 6 July 2009 and was sentenced to a total term of 16 months' imprisonment for two offences of aggravated burglary, two offences of burglary and one offence of stealing a motor vehicle, to be served concurrently with any other terms of imprisonment.
The appellant was made eligible for parole on each of the sentences that had been passed on him. The result is that by July 2009, the appellant was serving the following sentences of immediate imprisonment:
(a)3 years (less 83 days) for the sentencing offences;
(b)12 months for the breaching offences, to be served concurrently with all other sentences; and
(c)16 months for the offences dealt with in the Children's Court on 6 July 2009, to be served concurrently with all other sentences.
There is one other factual matter that I should mention. The appellant was taken into custody on 27 January 2009 and remained in prison thereafter. By the time he came to be dealt with by Simmonds J on 4 June 2009 he had been in custody for 128 days. This is in addition to the 83 days he had spent in custody between 27 August 2008 and 1 December 2008. He did not receive any 'credit' for the period of 128 days.
The appellant appeals against the decision by Simmonds J to activate the whole of the sentence pronounced (but suspended) by McKechnie J on 1 December 2008. The appeal is limited to that issue. There is no appeal against the individual terms making up the 3 years (less 83 days) or the individual (or total) terms mentioned in items (b) and (c).
The statutory framework
The breaching offences were committed during the suspension period for the sentencing offences and they were offences the statutory penalty for which was imprisonment. In those circumstances, once the appellant had been convicted of the breaching offences, then by virtue of s 84D of the Sentencing Act 1995 (WA) he fell to be dealt with for the sentencing offences by the Supreme Court under s 84F of the Act. Section 84F is, relevantly, in these terms:
(1)If satisfied that a person has been convicted … of an offence … [the court] must deal with the person by one of the following methods -
(a)…, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)…, 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)…, 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)[impose a fine and take no other action]
…
(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.
In the circumstances of this case the imposition of a fine was not a practical option and s 84F(1)(d) can be put to one side. Relevantly, then, the sentencing judge had three options; namely, to order that the appellant serve the whole of the suspended term; to order that the appellant serve part of the suspended term; or not to activate the term and instead to impose another suspension period. Overlying those three options was the obligation in s 84F(3) to order that the whole of the suspended term be served unless he came to the view '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'.
The sentencing remarks (Simmonds J)
The sentencing judge commenced by directing himself to the statutory framework in a way that is, I think, unexceptional. He outlined the history and, in particular, the sentences imposed by McKechnie J. His Honour then proceeded to examine the facts relating to the sentencing offences and the breaching offences. I do not need to describe those matters because, although they provide the context in which the decision under s 84F falls to be made, they are not in issue in this appeal.
The sentencing judge described the sentencing offences as serious, not trivial. He noted that the three offences committed on 27 August 2008 had been committed immediately after the imposition of the community based order and the breaching offences occurred relatively early in the suspension period. He also commented that the breaching offences themselves warranted a term of imprisonment. His Honour then turned to the appellant's personal circumstances, as they appeared from the sentencing remarks of McKechnie J, and to those circumstances that had arisen after 1 December 2008. The latter included a report from a Salvation Army Officer saying the appellant had been assessed as suitable for a residential programme that would address some of the underlying issues that were contributing to his offending behaviour and programmes he had already undertaken while in custody.
The sentencing judge then referred, again, to what he described as a sentencing exercise presumption in favour of imprisonment or the legislative policy that the courts ought prima facie to order service of a CSI that had been breached. He then said:
I have determined that I must activate the sentence of conditionally suspended imprisonment of three years' duration. However, I have … determined that the sentence of imprisonment of three years is not in fact the sentence [McKechnie J] should be taken to have imposed, at least to the extent it does not allow credit for the time spent in custody on the previous occasion, some three months or so.
Therefore, the sentence I am activating I am taking to be the sentence of three years less that period. The period needs precise calculation and I have not had the opportunity to perform that calculation. It will be done down to the day.
After completion of the sentencing remarks there was a discussion between the sentencing judge and counsel about 'credit'. Counsel inquired about 'the backdating'. His Honour remarked that he was not 'backdating', he was applying a credit. There was further discussion about what had occurred before McKechnie J and then this exchange occurred:
[Counsel]: Just to clarify, your Honour, in terms of the period he has currently just spent in imprisonment, there will be no ---
[His Honour]: As far as I can see, there is nothing I can do about that … once I have made the unjust determination that I have described.
I think it is common ground that the 'credit' referred to in the sentencing remarks is the period of 83 days from 27 August 2008 to 1 December 2008.
The grounds of appeal
There are four grounds of appeal. Grounds 1, 3 and 4 can be taken together. They allege that the sentencing judge erred in ordering that the full term of imprisonment that was suspended be served, in failing to decide that it would be unjust to make an order under s 84F(1)(a) (that he serve the whole term) and in failing to make an order under s 84F(1)(b) (that he serve part only of the term) or s 84F(1)(c) (that a further suspended term be pronounced).
Ground 2 alleges that the sentencing judge erred in failing 'to give any or sufficient' consideration to the appellant's circumstances arising after the CSI had been imposed. The ground does not identify whether the alleged error is one of law or fact. Failure to take into account a relevant consideration is an error of law but a failure to give it sufficient consideration is a question of weight and is an error of fact. To make good an allegation of error of fact of that nature will usually involve an argument that the sentencing discretion, in reality, has not been exercised at all.
The appellant's circumstances
The submission that the sentencing judge ought to have moved under s 84F(1)(c) and substituted another suspension period was faintly argued on appeal. The appellant's prior history of offending so soon after the imposition of a community based order and a CSI and the opinion of the author of the pre‑sentence report that the appellant was not suitable for a community based disposition militated strongly against that option. Realistically, the sentencing judge had to choose between s 84F(1)(a) and (1)(b).
The material before the sentencing judge indicated that the appellant had been in custody awaiting disposition of his matters on two separate periods; first for 83 days and then for 128 days. His Honour recognised the first but not the second. There was also evidence before the sentencing judge indicating that in the second of those periods he had made some progress in improving his attitude. First, he had been assessed as suitable for a residential rehabilitation programme which would enable those in charge of the programme to assist the appellant in addressing what was acknowledged to be a serious drug problem and to confront other issues in his past life that may have contributed to his offending behaviour.
Secondly, while in prison during the 128 day period the appellant had undertaken a number of programmes, including a construction safety awareness certificate, a substance abuse and anger management workshop and a programme aimed at enhancing cognitive skills. The latter was of some importance because the pre‑sentence report indicated that he lacked maturity and insight into his offending behaviour. The records of the programme contained a notation that the appellant had '[demonstrated] some shift in [his] cognitive distortions'.
Those two things were matters that had arisen and had become known after the imposition of the CSI. They were relevant circumstances to be taken into account in arriving at the decision whether it would be unjust to make an order under s 84F(1)(a). Both matters arose while he was in custody in the period between January 2009 and June 2009 and they cannot be divorced from that context. It seems to me, therefore, that the period in custody is likewise a relevant circumstance to be taken into account under s 84F(3).
I think the exchange between the sentencing judge and counsel at the end of the sentencing remarks (and which I have set out above) indicates that his Honour did not take the period in custody into account in reaching the decision which he did. His Honour seems to have reached the 'unjust determination' without reference to the custodial term and, once having reached that view, taken the position that he was then precluded from taking it into account. It was, however, a relevant consideration germane to the primary decision called for under s 84F(3) and in my view the failure to take it into account at that stage was an express error.
While it is not raised in the grounds of appeal, I think the treatment of the earlier custodial period (83 days) was also an error. When McKechnie J first dealt with the appellant for the sentencing offences he had in mind the imposition of a term of immediate imprisonment. It was in that context that the question of time then spent in custody was raised. Had his Honour proceeded on that course he would have backdated the sentence or otherwise given the appellant credit for those days. But that is not what happened. McKechnie J was persuaded that the term of imprisonment ought to be suspended conditionally. Accordingly, any question of backdating or credit fell away. His Honour imposed the terms totalling 3 years and suspended them.
When Simmonds J came to deal with the appellant in June 2009 he decided that it would not be unjust to order that the appellant serve the term previously imposed on him. But he then said the term of 3 years 'is not in fact the sentence [McKechnie J] should be taken to have imposed'. While it is not difficult to see what his Honour was trying to achieve I think that the approach is erroneous. The total term of 3 years is the sentence which McKechnie J imposed and it is the term that he 'should be taken to have imposed'. The fact that had McKechnie J imposed a term to be served immediately he would (in all probability) have given credit for the 83 days is not to the point. Had that occurred the need to resentence him under s 84F would not have arisen. Of course, a similar result could easily have been arrived at. His Honour could, for example, have regarded the time spent in custody as being relevant to the 'unjust determination' and then taken the time spent in custody into account in making an order under s 84F(1)(b): see Dragon v The State of Western Australia [2008] WASCA 252 [52]. It must be said, however, that the approach taken by Simmonds J was to the appellant's benefit and little turns on the error, save for the question for resentencing.
Resentencing the appellant
As express error has been demonstrated it is necessary for this court to resentence the appellant.
In my view the two factors dealt with in the preceding section and which have arisen since the imposition of the CSI are both relevant and material. They have to be seen against the background that the appellant is still a very young man and one lacking in maturity. That there is a residential programme that will be in a position to assist him and for which he has been assessed as suitable, coupled, with the demonstrated shift in cognitive distortions are factors weighing in the appellant's favour.
Given his past history they would not, in my view, justify the making of an order under s 84F(1)(c). But in my view they do render it unjust to activate the whole of the suspended terms and I think an order under s 84F(1)(b) is the appropriate sanction.
Here the appellant had served two terms in custody totalling 211 days, that is approximately 7 months. Part of that period occurred after the CSI was imposed. Having decided that it is unjust to order the appellant to serve the full term but that the terms should be activated, this Court is not obliged to make a strict mathematical application of the time spent in custody. The question is what is a fair and just disposition that will serve sentencing objectives in relation to the offences committed by this (still very young) man. In my view the answer to that question is that he should be required to serve 2 years of the total 3 year term originally imposed by McKechnie J. This result can be achieved by ordering that the appellant serve the terms of immediate imprisonment set out in the schedule.
Conclusion
I would grant leave to appeal, allow the appeal, set aside the orders and sentences imposed by Simmonds J on 4 June 2009 and, in lieu, sentence the appellant in a manner set out in the schedule. The orders for parole eligibility made by McKechnie J and confirmed by Simmonds J will remain. The sentences commence on 4 June 2009 when he became a sentenced offender.
WHEELER JA: I agree with Owen JA.
NEWNES JA: I agree with Owen JA.
SCHEDULE
| Offence number | Offence | Date committed | Original sentence | Concurrency or Accumulation | Term to be served | Concurrency or Accumulation |
| 1. | Stealing motor vehicle | 27 August 2008 | 1 year | 1 year | ||
| 2. | Armed robbery | 27 August 2008 | 2 years | Concurrent with 1 | 1 year | Concurrent with 1 |
| 3. | Wilful damage | 27 August 2008 | 2 years | Concurrent with 1 | 1 year | Concurrent with 1 |
| 4. | Aggravated burglary | 22 July 2008 | 1 year | 1 year | Cumulative on 1 | |
| 5. | Aggravated burglary | 22 July 2008 | 1 year | Concurrent with 4, cumulative on 1 | 1 year | Concurrent with 4 |
| 6. | Aggravated burglary | 22 July 2008 | 1 year | Concurrent with 4, cumulative on 1 | 1 year | Concurrent with 4 |
6
0
1