Schulz v Coyne
[2019] WASC 329
•6 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SCHULZ -v- COYNE [2019] WASC 329
CORAM: HILL J
HEARD: 25 JUNE 2019
DELIVERED : 6 SEPTEMBER 2019
FILE NO/S: SJA 1039 of 2019
BETWEEN: AMBER ROSE SCHULZ
Appellant
AND
MATT COYNE
First Respondent
NATHANAEL MATTHEWS
Second Respondent
RAYMOND BALLERINI
Third Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE20382 of 2018; PE20383 of 2018; PE20384 of 2018; PE20385 of 2018; PE57008 of 2018; PE8291 of 2019; PE9151 of 2019
Catchwords:
Criminal law - Appeal against sentence - Failure to take into account plea of guilty - Appeal allowed and appellant resentenced - Appropriate sentence
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Intensive supervision order imposed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N Sinton |
| First Respondent | : | Mr T Scutt |
| Second Respondent | : | Mr T Scutt |
| Third Respondent | : | Mt T Scutt |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
| Third Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Burrows v The State of Western Australia [2014] WASCA 147
Churnside v The State of Western Australia [2016] WASCA 146
Noble v The Queen [2018] NSWCCA 253
Roberts v The State of Western Australia [2014] WASCA 239
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Winmar v Clark [2015] WASC 314
HILL J:
On 5 March 2019, the appellant was sentenced to a term of immediate imprisonment of eight months for two counts of trespass, four counts of fraud and one count of breach of bail in relation to incidents that occurred between 4 March 2018 and 29 January 2019. The appellant was also fined for offences of stealing and breaches of her community based order. These fines are not the subject of this appeal.
The appellant seeks leave to appeal against the sentence of imprisonment imposed by the learned magistrate.
Notice of Appeal and Leave to Appeal
On 11 March 2019, the appellant filed her notice of appeal which was within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
The notice of appeal set out three grounds of appeal, namely that:
1.The learned magistrate erred in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA);
2.There was a failure to consider suspension of the sentence of imprisonment imposed; and
3.It was an error to impose a sentence of imprisonment when, in all of the circumstances, neither the seriousness of the offences nor the protection of the community required it.
The appellant requires leave to appeal.[2] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[3]
[2] Criminal Appeals Act, s 9(1).
[3] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The respondent conceded that the learned magistrate failed to discount the sentence to reflect the plea of guilty or to consider whether the sentence of imprisonment should be suspended. On this basis, the respondent conceded the appeal should be allowed on grounds one and two and the appellant resentenced.[4]
[4] Respondent's Outline of Submissions filed 18 June 2019, par 2.
Factual Background
On 4 March 2018, the appellant committed four offences of fraud by using a stolen credit card to obtain items worth $99, $40, $89 and $8.95 respectively. She was interviewed by police on 19 March 2018 and charged on summons on 5 April 2018. At the time the appellant was aged 18 years of age.
On 12 July 2018, the appellant was sentenced by Chief Magistrate Heath for these offences following her pleas of guilty. The appellant received concurrent community based orders (CBOs) for the four offences.
On 7 September 2018, the appellant stole property to the value of $1,100 from a shopping centre carpark and also trespassed, in attending the shopping centre whilst subject to a banning notice. The appellant was 19 years old at the time and still subject to the CBOs. She was interviewed by police on 11 September 2018 and charged on summons on 6 November 2018.
On 3 January 2019, the appellant committed the offences of stealing, by shoplifting clothes to the value of $239.95, and trespass, by attending the shopping centre whilst subject to a banning notice. The appellant was still subject to the CBOs at this time. She was interviewed by police on 18 January 2019 and charged on or about 7 February 2019. During her interview, the appellant stated that she swapped the clothes for cannabis.
On 29 January 2019, the appellant failed to appear in the Perth Magistrates Court in answer to bail that had been granted in relation to the 7 September 2018 offences. The appellant was arrested on 23 February 2019 and charged with breach of bail. She was bailed again on 24 February 2019.
On 5 March 2019, the appellant appeared before Chief Magistrate Heath for sentencing in the Perth Magistrates Court.
Counsel for the appellant submitted that normally fines would be imposed by way of sentencing, but the appellant had 'limited to no capacity' to pay for such fines.[5] Counsel conceded that continuing with a CBO would be difficult, given the appellant's lack of engagement with the orders previously but submitted that imposing a CBO for the most recent offences (the stealing and trespass on 3 January 2019) was an appropriate sentence as the appellant had re‑engaged with community corrections. Further, counsel submitted that due to the appellant's young age, she had prospects of rehabilitation.
[5] ts 5 (5 March 2019).
In sentencing the appellant the learned magistrate noted:[6]
Ms Schulz, you were – you have a long history as a juvenile of offences of dishonesty. As an adult, you were placed on community-based orders in relation to four fraud matters, and I think your engagement with that order, to say was minimal, was an exaggeration. You've done one hour of the community work that was ordered. You've not participated in any programs and your attendance on supervision has been marginal.
You have continued, notwithstanding you were placed on the community-based order in July, then in September to have breached the banning notice in terms of trespassing upon premises – followed an unsuspecting customer and then stole her property from her unlocked vehicle. Again, in January of this year you've again attended premises where you were not permitted to be and have again stolen items, at the same time not complying with your order.
There seems to me to be little point in placing you upon a further order and, accordingly, the existing order will be cancelled. Your performance on that leaves me with some difficulty because it's difficult to see how there can be any element of rehabilitation in any order that I can place and the only option I have is in terms of punishment. You don't have capacity to pay a fine and, accordingly, reluctantly, it seems to be the only appropriate penalty is one of immediate detention by way of resentence. So in relation to the first of the trespass charges, you will be sentenced to six months imprisonment – that will be the head sentence.
…
There will be two months imprisonment, cumulative, in relation to the first of the fraud charges; six months concurrent in relation to each of the other fraud charges and the trespass, one month concurrent for the breach of bail, making a total of eight months imprisonment and I will make you eligible for parole.
[6] ts 6 - 7 (5 March 2019).
Events following sentencing of 5 March 2019
Following the lodgement of the appellant's notice of appeal, an application for bail was heard by Justice McGrath on 18 March 2019. Counsel for the appellant submitted that 'two matters of significance [have occurred] since her [the appellant's] sentencing on 5 March',[7] namely that the appellant was approximately 6 to 8 weeks pregnant, and that she had spent 13 days in custody, her first extended period in adult custody. As a result, counsel for the appellant requested that bail be granted with conditions imposed.
[7] ts 3 (18 March 2019).
Justice McGrath granted the appellant bail on certain conditions.[8]
[8] ts 10 (18 March 2019).
The matter was listed for hearing before me on 26 June 2019. In light of the concession by the respondent, the hearing was vacated so that a written pre‑sentence report (PSR) could be obtained.
The initial PSR was delivered to the court on 29 July 2019. The appellant did not engage with Community Corrections prior to the delivery of this report, despite numerous attempts to contact her via letter and telephone. As a result, on 2 August 2019, I ordered that the matter be adjourned to enable a further PSR to be prepared to give the appellant a further opportunity to participate in its preparation.
The second PSR was received by the Court on 30 August 2019 following the appellant conducting a telephone interview with Community Corrections.
Pre-Sentence Report
The PSR confirms that the appellant participated in a telephone interview and engaged in a 'meaningful discussion surrounding her circumstances and offending behaviour'.[9]
[9] PSR dated 28 August 2019, 1.
The PSR concludes that the appellant is suitable for a community order and recommends that if one is imposed, program and supervision conditions are imposed to address the appellant's needs.
The PSR sets out the appellant's background and circumstances which led to the offending. The appellant has been under the care of the Department of Communities, Child Protection and Family Support from the age of 12. Prior to this, she lived with her grandmother in Geraldton until she was 11 when her grandmother unexpectedly passed away. She then relocated to Perth to live with her mother. The appellant reported that her mother was a sex worker who injected illicit drugs in her presence and took her to escort jobs.
The appellant ran away at age 12 and for the next two years was often homeless or on the streets. She met her partner at age 14 and is expecting her first child in November 2019. They currently reside with her partner's sister and her four children. She reported that this provides stable accommodation and financial aid.
The appellant has no formal identification papers, including a birth certificate. As a result, she has never received financial assistance from the Government, has never had or used a bank account or been employed. The appellant admits to using cannabis irregularly although she states that she has minimised this.
The appellant's first involvement with the justice system occurred in 2015, when she was a juvenile. Since that time, she has offended on a fairly regular basis.
The assessment of the PSR is that the appellant's offending behaviours are underpinned by financial hardship and cognitive defects linked with poor decision making, impulsivity, limited consequential thinking and judgment. It is clear that the appellant has several complex needs.
Disposition of appeal
Ground 1: Failure to discount sentences of imprisonment
The Sentencing Act , s 9AA(2) provides that:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
The term 'head sentence' is defined to mean the sentence that a court would have imposed for the offence if (a) the offender had been found guilty after a plea of not guilty and (b) there were no mitigating factors.[10]
[10] Sentencing Act , s 9AA (1).
The appellant entered guilty pleas at an early opportunity. It is my view that the appellant was entitled to a 25% reduction from her sentence pursuant to s 9AA of the Sentencing Act.
The learned magistrate did not make any reference to the pleas of guilty during the proceedings or refer to any reduction in the sentence that he imposed as a consequence of the guilty pleas. The failure to state that a sentence has been reduced, and to quantify the reduction, does not necessarily mean that a reduction has not been made and the sentencing discretion is miscarried.[11] However, to avoid the conclusion that a material error has occurred, it is expected that the sentencing court should make reference to the mitigating effect of the guilty plea, and it should be apparent from the sentence that a reduction has been made. A failure to refer to the plea of guilty is ordinarily an indication that the sentencing judicial officer has overlooked it.[12] The failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.[13]
[11] Burrows v The State of Western Australia [2014] WASCA 147 [32].
[12] Noble v The Queen [2018] NSWCCA 253 [10]; Winmar v Clark [2015] WASC 314 [26].
[13] Roberts v The State of Western Australia [2014] WASCA 239 [47].
It is not possible from the learned magistrate's sentencing remarks to work out whether he regarded the sentence he imposed as a starting point, from which no reduction was made, or an end point, after some unspecified reduction was applied.
In this case, as conceded by the respondent, if the individual sentences or total effective sentence is adjusted to consider the sentences which would have been imposed but for the pleas of guilty, the starting point is excessive having regard to the mitigating factors in this case, in particular the appellant's young age.
For these reasons, it is my view that the failure by the learned magistrate to refer to the appellant's plea of guilty and indicate the reduction that was made to the sentence as a consequence of the plea is an error of law.
On this basis, I am satisfied that this ground of appeal should be upheld and the appeal allowed. As a consequence, it is not necessary that I consider the remaining grounds of appeal.
As all material information is before this court, it is appropriate that having allowed the appeal, this court should now resentence the appellant.
Submissions on Sentencing
Counsel for the appellant submitted that an order that requires the appellant to engage with community based corrections was appropriate in all of the circumstances. In particular, it was contended that this would best serve the interests of the community by assisting the appellant to change her living circumstances and behaviour in a way which reduces her risk of reoffending.[14]
[14] Churnside v The State of Western Australia [2016] WASCA 146 [7].
The respondent submitted that, given the contents of the PSR, it was open to this court to impose an intensive supervision order with programming and supervision requirements.
Outcome and Sentence Imposed
In deciding the appropriate sentence for the appellant, I have taken into account the facts of the offences, the contents of the PSR and the submissions of counsel which are summarised in these reasons. I have considered the sentencing options that are available under the Sentencing Act.
A sentence of imprisonment can only be imposed if it is the only appropriate penalty in all of the circumstances.
I note that the appellant spent 13 days in custody before being released on bail. Given the appellant's age, the nature of the offences, and the early pleas of guilty, I do not consider that a sentence of imprisonment is the only appropriate penalty in all of the circumstances.
In my view, the appropriate penalty is an intensive supervision order for a period of 12 months with programme and supervision requirements. The programme requirements should address the issue of the appellant's drug use. Given the advanced state of pregnancy of the appellant, I have decided not to require the appellant to perform any community service work.
Charge Number Offence Date of commission Sentence PE 20382 of 2018 Fraud
(Criminal Code s 409(1)(c))4 March 2018 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 20383 of 2018 Fraud
(Criminal Code s 409(1)(c))4 March 2018 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 20384 of 2018 Fraud
(Criminal Code s 409(1)(c))4 March 2018 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 20385 of 2018 Fraud
(Criminal Code s 409(1)(c))4 March 2018 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 57008 of 2018 Trespass
(Criminal Code s 70A(2))7 September 2018 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 8291 of 2019 Trespass
(Criminal Code s 70A(2))3 January 2019 Intensive supervision order for a period of 12 months with programme and supervision requirements. PE 9151 of 2019 Breach of bail
(Bail Act 1982 (WA) s 51(1))29 January 2019 Intensive supervision order for a period of 12 months with programme and supervision requirements.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill10 SEPTEMBER 2019
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