SBJ v The State of Western Australia [No 2]
[2021] WASCA 57
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SBJ -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 57
CORAM: MAZZA JA
BEECH JA
PRITCHARD JA
HEARD: 16 MARCH 2021
DELIVERED : 16 MARCH 2021
PUBLISHED : 31 MARCH 2021
FILE NO/S: CACR 22 of 2018
BETWEEN: SBJ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Resentencing - Appellant initially sentenced by Court of Appeal to 7 months' imprisonment conditionally suspended for 6 months after a successful appeal against sentence - Appellant reoffended while subject to conditionally suspended imprisonment order - Resentenced by Court of Appeal to serve 4 months of the suspended term of imprisonment - Turns on own facts
Legislation:
Criminal Code (WA), s 70A, s 378, s 401(2)(c)
Road Traffic Act 1974 (WA, s 61(1), s 64AC(1)
Sentencing Act 1995 (WA), s 11, s 81, s 83, s 84A, s 84B, s 84F
Result:
Resentenced to 4 months' imprisonment
Category: B
Representation:
Counsel:
| Appellant | : | M J Joubert |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Michael J Joubert |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310
REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript).
Introduction
The appellant was sentenced in the District Court for an offence of aggravated burglary. He was sentenced to three years' imprisonment, 20 months of which was to be immediately served. The remaining 16 months was suspended for a period of 12 months.[1]
[1] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310.
This court allowed the appellant's appeal against sentence and resentenced him to 7 months' imprisonment conditionally suspended for 6 months pursuant to s 81 of the Sentencing Act 1995 (WA) (Act), subject to the standard obligations in s 83 of the Act, a program requirement under s 84A and a supervision requirement under s 84B of the Act. We will refer to this sentence as the CSIO.
The CSIO was imposed on 19 February 2019. Consequently, it expired on 18 August 2019. The appellant has subsequently been convicted of four offences committed during the CSIO period. Two of those offences carry a penalty of imprisonment and so trigger a breach of the CSIO.
The breaching offences
The triggering offences are as follows. The appellant was sentenced on 17 July 2020 for an offence of trespass, contrary to s 70A of the Criminal Code (WA) (Code), in the Bunbury Magistrates Court. The maximum penalty is 12 months' imprisonment and a $12,000 fine. A fine of $1,200 was imposed. The appellant was also sentenced on 17 July 2020 for an offence of stealing, contrary to s 378 of the Code, in the Bunbury Magistrates Court. The maximum penalty is 7 years' imprisonment. No penalty was imposed, pursuant to s 11 of the Act.
Other offences
The other offences for which the appellant was convicted were as follows. The appellant was sentenced on 7 August 2020, for an offence of dangerous driving, contrary to s 61(1), of the Road Traffic Act 1974 (WA). As a first offence, the maximum penalty is a fine of 60 penalty units, $3,000. A fine of $800 was imposed. The appellant was sentenced on 18 May 2020 for an offence of driving with a prescribed illicit drug in blood or oral fluids, contrary to s 64AC(1) of the Road Traffic Act. As a first offence, the maximum penalty is a fine of 10 penalty units, that is, $500. A fine of $250 was imposed.
Facts of the breaching offences
The facts of the trespass and stealing offences are as follows. At 5.15 am on Thursday, 6 June 2019, the appellant entered the Rose Hotel carpark off Wellington Street, Bunbury. He approached a padlocked security gate leading into the kitchen. He tried the lock, with no success, and then climbed an external set of stairs to the second storey. He jumped over the balustrade and walked across the first storey roofing. He then climbed down a ladder into a secure delivery area at the rear of the Rose Hotel.
From within the secure area, the appellant entered the kitchen via an unlocked door. Once inside, he tried the locks on a set of personal lockers before wandering around the premises for about five minutes. He went to the bar area and used a soda gun to fill a glass with soft drink. He continued walking around the premises before being approached by a cleaner who confronted him about being inside the hotel.
The appellant stated that he was a baker and used to deliver bread to the business. The cleaner told the appellant to leave. The appellant used the toilet before going to the kitchen and washing his glass. He returned the glass to the bar and left the hotel by unlocking the rear gate. The appellant did not have permission to use the soda gun for a soft drink, nor did he make any attempt to pay for the drink.
Facts of the other offences
The facts of the other offences committed by the appellant on 7 August 2019 are as follows. On 7 August 2019 at about 9.05 am, the appellant drove his motor vehicle on Stirling Street in Bunbury. He was travelling well in excess of the 50 km per hour speed limit. He was observed driving in an erratic manner and overtaking at speed. As he approached the right-hand bend where Stirling Street turns into Wittenoom Street, he was unable to negotiate the bend due to his speed.
The appellant braked heavily, leaving dual skid marks on the road approximately 10 m in length. Still unable to execute the bend, the vehicle mounted the kerb and struck several waste bins waiting for collection, knocking them over to the road. At that point of the footpath is the start of the staircase used by schoolchildren attending Bunbury Senior High School.
Police officers at the nearby Bunbury Police Station heard the noise of the squealing tyres and the impact with the bins. The officers saw the appellant park his vehicle in front of the Bunbury Magistrates Court, and arrested him. He was tested for illicit drugs and returned a positive result for methylamphetamine.
Section 84F of the Act
Section 84F of the Act regulates the manner in which a reoffender who was sentenced to a CSIO is to be dealt with. It relevantly 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.
…
(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.
As can be seen, by s 84F(3) of the Act, the court must make an order that the appellant serve the term of imprisonment that was suspended, unless it decides it would be unjust to do so in view of all the circumstances that have arisen or have become known since the CSIO was imposed.
The appellant has committed other offences since the CSIO expired. On 7 September 2019, only a few weeks after the expiry of the CSIO, the appellant committed an offence of burglary, contrary to s 401(2)(c) of the Code.
The pre‑sentence report
This court has the benefit of a pre‑sentence report dated 12 January 2021, which also annexes the appellant's criminal history. The pre‑sentence report records that the appellant was engaged with his general practitioner and was receiving treatment in relation to his mental health. The pre‑sentence report reveals that while the appellant was subject to the CSIO, he has, in general, complied with the supervision and program requirements of the order. However, the report also notes that during and after the suspension period the appellant has reoffended as set out above.
The parties' submissions
The State and the appellant have filed written submissions as to how this court should deal with the appellant. The court has also heard oral submissions from counsel, both for the State and the appellant.
On behalf of the State, it was submitted that, having regard to the appellant's reoffending, which shows that the CSIO had no deterrent effect upon him, it would not be unjust to order the appellant to serve the whole or part of the term of imprisonment which this court conditionally suspended.
On behalf of the appellant, it was initially submitted that this court should impose a community-based disposition. When it was pointed out to counsel for the appellant that such an option was not open, having regard to s 84F(1) of the Act, counsel submitted that it would be unjust to require the appellant to serve the term of imprisonment that this court suspended, because:
(1)the appellant suffers from schizophrenia and is currently receiving regular medical treatment for his condition; and
(2)the appellant's compliance with the supervision and program requirements of the CSIO.
Disposition
By reason of s 84F(3) of the Act, this court's focus must be on the circumstances that have arisen or have become known since the CSIO was imposed, and whether such circumstance or circumstances would make it unjust to order that the appellant serve suspended terms of imprisonment. The appellant's schizophrenia and illicit drug use are of long standing. Neither factor is something which has occurred or has become known since the making of the CSIO.
The purpose of the supervision and program requirements of the CSIO was to ensure, as far as possible, that the appellant did not reoffend. The appellant generally complied with the supervision and program requirements. This reflects an appreciable improvement on the appellant's historical performance on supervision. However, the credit to be given for this must be weighed against his reoffending during and after the suspension period, some of which was committed in circumstances that resemble the offending which was the subject of the CSIO.
The offences which took place on 6 June 2019 involved the appellant entering the premises of the Rose Hotel without authority and stealing property, albeit a glass of soft drink. Then, shortly after the CSIO expired, on 7 September 2019, the appellant committed a burglary.
The appellant successfully served about half of his 7‑month suspension period. Bearing this in mind and bearing in mind the appellant's chronic mental illness, in our view it would be unjust for the appellant to serve the whole of the 7‑month term that was suspended. Giving credit for the approximately 3‑month period successfully completed by the appellant, we consider the appropriate disposition to be as follows.
The appellant should serve 4 months of the term of imprisonment. Accordingly, we order that the appellant serve a term of 4 months' imprisonment commencing today. That is the disposition of the court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
31 MARCH 2021
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