Sampi v The State of Western Australia
[2009] WASC 221
•14 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SAMPI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 221
CORAM: HALL J
HEARD: 29 JULY 2009
DELIVERED : 14 AUGUST 2009
FILE NO/S: SJA 1010 of 2009
BETWEEN: JAMES CODY SAMPI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE YOUNG
Citation :BM 349 of 2009
Catchwords:
Criminal law - Sentencing principles - Offence of criminal damage - Whether magistrate erred in imposing a suspended sentence
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Ms A V Barter
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Gherardi v Pedder [2007] WASC 242
House v The King (1936) 55 CLR 499
Richardson v Pickett [2008] WASC 203
The Queen v Peterson [1984] WAR 329
Weston v The Queen [2000] WASCA 188
Willmott v The Queen [2000] WASCA 300
Yassin v Williams [2007] WASC 8
HALL J: This is an appeal from a sentence imposed in the Magistrates Court at Broome on Friday 23 January 2009. On that date the appellant was sentenced to 8 months' imprisonment suspended for 12 months for wilfully and unlawfully damaging property contrary to s 444(b) of the Criminal Code (WA) and was fined $1,500 for behaving in a disorderly manner contrary to s 74A(2)(a) of the Criminal Code. He was also ordered to pay restitution of $1,981.70 in respect of the damage.
Ground of appeal
The single ground of appeal is as follows:
The Learned Magistrate erred by imposing a term of imprisonment (albeit suspended), when the circumstances of the offence in combination with the mitigating factors were such that a sentence other than imprisonment should have been imposed.
Particulars of mitigating factors
i22 years of age.
iiEarly plea of guilty.
iiiOnly prior offences were a disorderly conduct in February 2005 and a no motor drivers license in October 2008.
ivEmployed fulltime for the past 4 years as a horticulture officer.
The facts
Both offences arose out of the same incident. At 8.30 pm on 16 January 2009 a group of approximately 40 young men gathered to attack a house in a residential area of Broome. The appellant threw rocks, bottles and pieces of wood into the front yard of the house, trying to inflict damage or injure people taking refuge on the other side of a fence. Police who attended at the scene were initially unable to apprehend any of the participants.
The appellant was observed to pick up a length of wood and use it in what was described as a frenzied attack on a Nissan Patrol vehicle. Two windows of the vehicle were smashed before the wood was thrown into the front yard of the house.
Police attempted to intervene and arrest a number of people but were set upon by the group and were forced to wait for reinforcements. When reinforcements arrived, the appellant was taken into custody.
In submissions to the learned magistrate, defence counsel stated that the offences had occurred as the culmination of a brewing dispute between the appellant's family and the family who owned the home. It was submitted that three days earlier, members of the family who lived in the house where the incident occurred had 'done a run through' of the appellant's grandmother's house, done damage to the property there, and threatened her. It was also submitted that earlier on the evening that the incident occurred, members of the same family had come to the appellant's uncle's house, thrown items at the house, and called out to members of the appellant's family to come out and fight.
It was also submitted on behalf of the appellant that he was very young, being 22 at the time of the conduct. He had a very limited adult record, having only one prior offence, being a disorderly conduct in 2005 for which he received a 6 month community based order and a spent conviction. He was in stable employment, having been employed for the previous four years as a horticulture officer.
In sentencing the appellant, the learned magistrate referred to the incidence of family feuding which, he said, had been 'going on all across the state' and was a 'grave concern to the whole community'. His Honour then said:
[I]t's a matter which the Supreme Court has recently said needs to be taken a lot more seriously and the courts need to impose severe penalties on anyone that gets involved in the public lawlessness that follows family feuding by way of providing what's called a deterrent penalty and that means something that sends a message to you and other people in your family and people in the opposing family that this sort of behaviour is simply not going to be tolerated and it's not going to be regarded as a feud.
It's not going to be regarded as something that's cultural. It's going to be regarded as a serious live scale display of public lawlessness, okay. That's how I look at it and that's how I think all decent people, aboriginal or otherwise would look at this matter and if you think you've got some sort of right to deal with the feuds in this sort of a way, then you need to lose that idea very quickly (ts 5).
His Honour then referred to the need to discourage this type of conduct and the effect that it could have on children brought up in an environment of feuding. He then said:
You're someone that's got a good work history and that means that you know better and you have to ensure that you don't get drawn into this sort of large scale conflict. It doesn't matter which [sic] I think given the scale of the incident, it's certainly a very serious matter and one that does warrant imprisonment. Having regard to the fact that you are still young and you've got a limited prior record, I'll suspend that sentence. What that means is that if you get sucked into any other incidents involving family feuding and you get charged again, then you are going to have to go to gaol for this (ts 6).
The law and its application
An appellate court is not entitled to intervene to alter a sentence unless some error can be identified. An error may not be apparent but, if a result is unreasonable or plainly unjust, an appellate court can infer that there has been a failure to properly exercise the sentencing discretion: House v The King (1936) 55 CLR 499, 505; and Dinsdale v The Queen (2000) 202 CLR 321, 324.
In the present case, the learned magistrate referred to the appellant's youth, limited prior record and good work history. There is also no dispute that he took into account the relevant circumstances of the offences. No express error in the learned magistrate's reasons is identified, rather the error is suggested to be apparent from the sentence imposed. Thus, whilst the ground does not use the words 'manifest excess', it is my understanding from the appellant's submissions that what is asserted is that the learned magistrate erred in imposing a suspended sentence of 8 months because such a sentence was outside the appropriate discretionary range having regard to all the circumstances of this case.
To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and the personal circumstances of the appellant: Chan v The Queen (1989) 38 A Crim R 337, 342.
The maximum penalty for an offence of criminal damage in these circumstances is 10 years' imprisonment and, on summary conviction, the maximum penalty is 3 years' imprisonment or a fine of $36,000: s 444(b) of the Criminal Code.
In regard to the range of sentences imposed for offences of this type, it is fair to say that the factual circumstances can differ widely. That is illustrated by the cases that were relied upon by both the appellant and respondent at the hearing of this appeal.
The appellant referred to Gherardi v Pedder [2007] WASC 242. In that case the appellant was convicted of damage and with possessing paint markers with the intention of using them to cause damage, contrary to s 557G of the Criminal Code. The damage consisted of graffiti that was written onto a sign board. The appellant was fined $1,000 for possession of the implement and $3,000 for the damage. On appeal, Hasluck J reduced the fines to $500 and $1,500 respectively, and a spent conviction order was granted. Neither the circumstances nor the cost of the damage caused bear comparison with the present case.
The appellant also referred to Willmott v The Queen [2000] WASCA 300. In that case the appellant was initially sentenced to 18 months' imprisonment for damage caused in the course of a riot at Casuarina Prison. The appellant had armed himself with a pool ball and threw it at the window of a control room in one of the prison units. This caused the window to shatter at a time that several police officers were in the room. The appellant then picked up a table in the area and threw it at the control room windows, causing further damage. On appeal, the sentence was reduced to one of 9 months. That case turned significantly on the issue of parity as a number of other prisoners who had been involved in the riots had been sentenced to between 3 and 4 months' imprisonment.
The appellant submitted that the offence in Willmott was more serious as it involved threats to the safety of the police officers who were behind the glass windows. It was also submitted that a 9 month sentence would equate to a 6 month sentence when the minimum terms that were applicable at that time and now are compared. However, it does not follow that the present sentence of 8 months' imprisonment suspended was outside the appropriate discretionary range. A single case cannot establish a sentencing range and to point to such a case and suggest that it is inconsistent with the present sentence fails to take into account a range of other factors that may have borne upon the exercise of discretion. Thus, whilst I have had due regard to the sentence imposed in Willmott, I do not consider that, in itself, it establishes that the sentence imposed here was manifestly excessive.
The appellant also referred to Yassin v Williams [2007] WASC 8 in which the appellant was initially sentenced to 8 months' immediate imprisonment for the offence of taking part in a riot contrary to s 65 of the Criminal Code. On appeal, Blaxell J set aside the original sentence and imposed a suspended term of the same length. In doing so, his Honour had particular regard to the strong personal mitigating factors of the appellant, including his youth, previous good character, lack of convictions, remorse, and early plea of guilty. He also noted that the circumstances of the offending were not the most serious of their type. The appellant had not committed any act of violence other than the throwing of a shoe, and the gravamen of his offence was said to be the encouragement of violent and disorderedly behaviour by other people. It was also noted that the acts of violence in fact committed by the other people did not result in any significant injuries or property damage. Notwithstanding the difference in the charges, the conduct in this case is not dissimilar to that in Yassin. In some respects the present case could be seen as being more serious given that significant property damage was caused by the appellant. As is evident, the sentence imposed by Blaxell J on appeal is the same as that imposed by the magistrate in this case, namely an 8 month sentence of imprisonment suspended for 12 months.
The respondent referred me to Weston v The Queen [2000] WASCA 188. In that case the appellant was sentenced to 18 months' imprisonment for damage caused to a residence. The appellant had been in company with two co‑offenders who drove to the complainant's home, pulled the grill off a flyscreen door, threw rocks at the house breaking windows, and smashed the windows of four cars parked at the house. One of the co‑offenders was dealt with in the Perth Court of Petty Sessions by being fined $300. The appellant appealed on the ground that he had a justifiable sense of grievance caused by the disparity between his sentence and that of the co‑offender. Kennedy J (with whom Wallwork and Murray JJ agreed) held that a fine of $300 in the case of the appellant would have been grossly inadequate and below the range of sound sentencing discretion. In dismissing the appeal his Honour held that the sentence of 18 months' imprisonment was an appropriate one for the offending conduct and that there could be no 'justifiable' sense of grievance.
Clearly there were a number of features in Weston that were more serious than the present case. In particular, the offending conduct was premeditated (it was noted that at least two of the offenders were wearing balaclavas), the damage was more extensive, and was inflicted by several people acting together. It should also be recognised that the personal circumstances of the appellant in Weston were less favourable than in the present case. However, all of those differences seem to adequately account for the difference in sentence and do not suggest that the sentence in this case was excessive.
A factor which the learned magistrate gave particular weight to was that this offence occurred in the course of a feud. His Honour made comments that suggested that feuding was prevalent. There is no material before this court that would indicate whether or not that view was correct. I would accept, however, that a magistrate based in a regional location is likely to have a good understanding of the types of crime that are prevalent in the local community.
The learned magistrate made a reference to a recent decision of this court. The decision was not named but the respondent has referred me to the decision of Richardson v Pickett [2008] WASC 203. That was a case involving offences of assault with intent to do grievous bodily harm and being armed in a way that may cause fear. Both the offences and the facts of the case were very different to the present. That case involved a very serious assault by the appellant and a co‑offender on an unarmed complainant with a machete and tomahawks. The complainant was pursued into a 24‑hour service station and was very seriously injured. Suspended sentences of 16 months and 6 months in respect of the two offences were appealed by the prosecution. McKechnie J set aside the orders for suspension and imposed gaol sentences of the same lengths to be served concurrently. The offending in that case was said to have arisen out of a feud and McKechnie J said:
The assault arose out of feuding between two families. The respondent had been attacked at the Gosnells train station three days earlier in relation to the feud. Feuding is a current scourge on indigenous communities so that elements of general deterrence loom strongly in sentencing [21].
His Honour also said:
The fact that the assault took place against a background of feuding aggravated, not mitigated, the offence and all the circumstances of the offence required a clear message of general deterrence [28].
The appellant referred to the views expressed by Burt CJ in The Queen v Peterson [1984] WAR 329:
[I]t must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission of the offence to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence. But this cannot be taken too far. The position, I think, was well put by Bray CJ speaking for the Court of Criminal Appeal in South Australia in a shoplifting case: Giles v Barnes (1967) SASR 174, as follows:
'There is no doubt that the prevalence of a particular offence in a particular locality may justify courts in raising the normal standard of penalty for such an offence in that locality. ... This, however, is only one of the factors to be considered in imposing punishment on a particular offender for a particular offence, and can seldom, if ever, be the dominant one. The circumstances peculiar to the particular offender and the particular offence must always be taken into account, as well as the general nature of the crime. Anything in the nature of a rule of thumb is to be deprecated and must be avoided. ... To say therefore that the norm of punishment is being raised because of the prevalence of the particular offence can never be to enunciate a determinant principle capable of deciding in itself the particular penalty to be imposed on the particular defendant' (332).
His Honour Burt CJ then went on to say:
That is not to say that deterrence, both general and particular, does not remain a most important purpose to be achieved in the determination of a just sentence. And the prevalence of a particular offence in a particular locality or in the community generally as at the date of the commission of the offence for which a sentence is to be imposed should be reflected in the sentence by giving a greater relative weight to the achievement of that purpose. That is not done by imposing an 'exemplary' sentence, so‑called, which is more severe than the nature of the offence and the circumstances of its commission in justice calls for, but by giving less weight to - which is not to ignore - mitigating factors which may be found within the antecedents of the prisoner. That results in a 'firming up' of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason, predictable and certain, each of those qualities being central to the idea of deterrence (332).
In my view, the sentence imposed in this case can be justified without recourse to any information regarding the prevalence of offending of this type. Even if offences resulting from feuding were prevalent, the effect of that would be to justify a deduction in the weight given to personal circumstances. However, in this case, it is apparent the learned magistrate did give consideration to the favourable mitigating circumstances of the appellant. In particular, he did so in determining that the appropriate sentence here was one of suspended imprisonment. Such a sentence properly balanced the importance of general and specific deterrence with the favourable factors particular to the appellant.
Section 39(2) of the Sentencing Act 1995 (WA) sets out an ascending order of sentencing options. Section 39(3) provides that a sentencing option in s 39(2) cannot be used unless the court is satisfied that it is not appropriate to use any of the lesser options. A suspended sentence ranks just below a sentence of immediate imprisonment. Accordingly, a suspended sentence should not be used unless a court is satisfied that, for example, a fine, a community based order, or an intensive supervision order is not appropriate.
In Dinsdale (327) Gleeson CJ and Hayne J said:
The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately [13].
Kirby J said that the scheme of the Act required that all matters relevant to sentence be taken into account when considering whether to suspend the sentence:
This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances' [85]. (footnotes omitted)
Whilst the learned magistrate did not specifically refer to all of the alternative sentencing options that were available, it is clear from his comments that he concluded that only a sentence of imprisonment was appropriate in the circumstances of this case but that in all of the circumstances, including those personal to the appellant, that sentence could be suspended. That process accords with what is required by Dinsdale.
It was suggested in submissions that in imposing a sentence of imprisonment, albeit suspended, for the damage charge, the learned magistrate had taken into account facts that related to the disorderly conduct charge and that, accordingly, there was an element of double punishment.
On the basis of the prosecution notices, the disorderly conduct charge related to the creating of a disturbance by throwing rocks and debris at the house. The damage charge related to the smashing of the windows of the Nissan Patrol. His Honour's sentencing remarks relate to both charges. References to public lawlessness and family feuding do not, I think, suggest that there was any confusion in the learned magistrate's mind as to what facts related to which charge. Rather, this was a reference to the circumstances in which the offending occurred.
There were some very serious aspects to this offending conduct. It occurred in a residential area and was clearly intended to terrorise the owners of the home. The fact that it was motivated by a desire for revenge and in the context of a running feud, was an aggravating feature that enhanced the need for deterrence, both specific and general. The facts, which were not disputed, described the appellant's conduct when causing the damage as 'frenzied'. That damage was not insignificant being several windows of a parked motor vehicle and to the value of nearly $2,000.
Conclusion
Notwithstanding the favourable personal circumstances of the appellant, a sentence of 8 months' imprisonment was, in my view, within the discretionary range available to the learned magistrate. A suspended sentence of 8 months for this conduct could not be described as manifestly excessive. Accordingly, the appeal must be dismissed.
Addendum
On 12 August 2009 the court received a letter from counsel for the appellant setting out the appellant's current personal circumstances (which are consistent with those that were described to the learned magistrate) and annexing confirmation that he would be suitable for community‑based supervision. Had this appeal been allowed I would have taken this information into account in re‑sentencing the appellant. However, given that the sentence imposed was open to the learned magistrate, there is no occasion to refer to this letter further.
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