Shams v CLARSON
[2002] WASCA 121
•10 MAY 2002
SHAMS -v- CLARSON [2002] WASCA 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 121 | |
| Case No: | SJA:1161/2001 | 24 APRIL 2002 | |
| Coram: | McKECHNIE J | 10/05/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions allowed Convictions set aside Matter remitted to a different Magistrate Appeal against sentence allowed Sentence 12 months backdated to 23 April 2001 substituted | ||
| A | |||
| PDF Version |
| Parties: | SAEED SHAMS GEOFF CLARSON |
Catchwords: | Courts and Judges Duty to give reasons Adequacy of reasons Inadmissible material forms part of reasons Sentence Failure to acknowledge plea of guilty |
Legislation: | Crimes Act 1914 (Cth), s 16A(2)(g) |
Case References: | Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998 Garrett v Nicholson (1999) WASCA 32; (1999) 21 WAR 226 Lloyd v Faraone [1989] WAR 154 Matsebula v Vandeklashorst [2000] WASCA 141 Skerritt v O'Keefe [1999] WASCA 183 The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 Underwood & Ors v Gayfor & Anor [1999] WASCA 56 Cotton v Walker (1992) 11 WAR 55 Dinsdale v The Queen (2000) 175 ALR 315 Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47 Kauhanen v The Queen [1999] WASCA 14 Liberato v The Queen (1985) 159 CLR 507 Love v Australian Securities Commission [2000] WASCA 404 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Monaghan v Ostrowski [2001] WASCA 331 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174 Pettit v Dunkley [1971] 1 NSWLR 376 R v Calabria (1982) 31 SASR 423 R v Chan (1999) 38 A Crim R 337 R v Gallagher (1991) 23 NSWLR 220 R v Shrestha (1991) 173 CLR 48 Rosenberg v Percival (2001) 75 ALJR 734 Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 Talbot v Lane (1994) 14 WAR 120 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Vrisakis v Australian Securities Comission (1993) 9 WAR 395 Ward (1999) 109 A Crim R 159 White v Goodger [2001] WASCA 259 Willmott v The Queen [2000] WASCA 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GEOFF CLARSON
Respondent
Catchwords:
Courts and Judges - Duty to give reasons - Adequacy of reasons - Inadmissible material forms part of reasons - Sentence - Failure to acknowledge plea of guilty
Legislation:
Crimes Act 1914 (Cth), s 16A(2)(g)
Result:
Appeal against convictions allowed
Convictions set aside
Matter remitted to a different Magistrate
Appeal against sentence allowed
Sentence 12 months backdated to 23 April 2001 substituted
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr M M Flynn
Respondent : Mr D W L Renton
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998
Garrett v Nicholson (1999) WASCA 32; (1999) 21 WAR 226
Lloyd v Faraone [1989] WAR 154
Matsebula v Vandeklashorst [2000] WASCA 141
Skerritt v O'Keefe [1999] WASCA 183
The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7
Underwood & Ors v Gayfor & Anor [1999] WASCA 56
Case(s) also cited:
Cotton v Walker (1992) 11 WAR 55
Dinsdale v The Queen (2000) 175 ALR 315
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Kauhanen v The Queen [1999] WASCA 14
Liberato v The Queen (1985) 159 CLR 507
Love v Australian Securities Commission [2000] WASCA 404
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Monaghan v Ostrowski [2001] WASCA 331
Oancea (1990) 51 A Crim R 141
(Page 3)
Paunovic (1990) 51 A Crim R 174
Pettit v Dunkley [1971] 1 NSWLR 376
R v Calabria (1982) 31 SASR 423
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
R v Shrestha (1991) 173 CLR 48
Rosenberg v Percival (2001) 75 ALJR 734
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Talbot v Lane (1994) 14 WAR 120
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Vrisakis v Australian Securities Comission (1993) 9 WAR 395
Ward (1999) 109 A Crim R 159
White v Goodger [2001] WASCA 259
Willmott v The Queen [2000] WASCA 300
(Page 4)
- McKECHNIE J:
Background
1 On 4 and 5 April 2001 the appellant was detained within the Curtin Immigration Reception Processing Centre when a number of detainees were involved in a riot. The appellant was subsequently charged:
2 The appellant was subsequently charged as follows with offences all alleged to have occurred on 4 April 2001:
(1) Complaint No BM 821/01 – did intentionally and knowingly hinder a person carrying out a duty on behalf of the Commonwealth, namely he refused to comply with directions by an officer employed by Australasian Correctional Management Pty Ltd at Curtin Immigration Reception Processing Centre: Crimes Act 1914 s 76(1)(b)(ii).
(2) Complaint No BM 822/01 – did unlawfully and wilfully damage personal property belonging to the Commonwealth, namely he damaged internal fencing at Curtin Immigration Reception Processing Centre: Crimes Act s 29.
(3) Complaint No BM 0823/01 – did wilfully and unlawfully damage personal property belonging to the Commonwealth, namely he damaged a demountable accommodation building known as a "donga" at Curtin Immigration Processing Centre: Crimes Act s 29.
(4) Complaint No BM 0824/01 – did wilfully and unlawfully destroy personal property belonging to the Commonwealth, namely he destroyed a staff tent at Curtin Immigration Reception Processing Centre: Crimes Act s 29.
3 The appellant pleaded guilty to the damage to the internal fence, Complaint No BM 822/01.
4 On 7 July 2001 the appellant was convicted and sentenced in the Court of Petty Sessions at Broome to a total of 4 years 3 months' imprisonment in respect of four offences. He had pleaded guilty to one offence and was convicted after trial of the others.
(Page 5)
5 On 8 February 2002 he was granted leave to appeal against conviction in respect of those three offences and against sentence in respect of all offences.
6 Other detainees were also charged with offences arising out of the events of the riot. They included Saleh Omar Abdulah Al-Saleh, Bijan Alizadehnia, Mohammed Javad Alamdar and Khaled Azizi. Each of these men have appealed to this Court.
The trial
7 The prosecutions took place consecutively before Mr A Bloemen SM in the Broome Court of Petty Sessions in June and July 2001. Counsel for the prosecution was the same in each case. Counsel for each of the detainees was also the same.
8 On 15, 16, 17 June and on 2 July 2001, the Magistrate heard evidence with respect to the charges relating to Al-Saleh. At the conclusion of that hearing he decided to delay delivering his judgment until he had heard the other matters. On 2 July he took the plea of guilty from the Appellant and then heard the trial of the matters in respect of which the appellant had pleaded not guilty. On 3 July he commenced hearing the trial in relation to Alizadehnia. That trial was adjourned to re-commence on 7 July and on that date he delivered his judgment in relation to Al-Saleh. He then resumed the hearing of the matter relating to Alizadehnia and at the conclusion of that matter proceeded to hear the matter of Alamdar.
9 The prosecution commenced by the prosecutor tendering, apparently by consent, a series of exhibits which had been exhibited in the earlier trial of Al-Saleh. These included Exhibit 4, a video-tape depicting events during the course of the riot. The particular events, the subject of the charges against the appellant, were not shown on the video-tape. A number of other exhibits were also admitted by consent.
10 The chief evidence came from Officer Hughey. He gave evidence that the appellant was the biggest detainee in the whole camp and he remembered him well. His evidence was that at one stage the appellant was at the corner of a tent pulling it down by holding the pole and the rope. He then observed the appellant feeding the canvas tent onto a fire which was already burning: "he picked up the tent and threw it onto the fire and started kicking the tent onto the fire". Later he saw the appellant in a small group. He caught hold of his arm and "I asked Mr Shams to
(Page 6)
- come with me to the Hotel compound and he said 'You can hit me with your stick but I'm staying here' in broken English". The crowd then gathered and he said to the appellant "Saeed, come with me now or there's going to be trouble" and the appellant said "I am staying here".
11 This is the essence of the evidence in relation to the charge of damaging the staff tent (BM 824/01) and refusing to carry out directions (BM 821/01).
12 Officer Gillies gave evidence that he observed the appellant in a group that moved from the Bravo fence to the Bravo officers' donga. The group, of which the appellant was a part, pushed the donga over (BM 823/01).
13 The appellant gave evidence that he did not touch the tent and he did not touch the donga. In relation to the encounter with Officer Hughey the appellant denied that Officer Hughey said: "Come with me to the Hotel" but said Officer Hughey pulled his wrist "so I wouldn't escape again".
14 This evidence was the subject of a later concession in closing address by defence counsel who said: "I concede that even on Mr Shams' version of events if Officer Hughey was grabbing him by the arms it was obvious that he should have gone with him so, as I said, I don't think I need to say very much in that regard".
15 It appears that Officer Hughey recognised the appellant as the person who set fire to the tent as did Officer Gillies. The appellant seemed to be the biggest detainee within the camp and therefore cut a striking figure. The issues raised at the trial were not difficult to resolve.
Magistrate's reasons for decision
16 I have earlier outlined the course in which the proceedings unfolded before the Magistrate in June and July. For some reason, not immediately apparent, despite having presided over separate trials, the Magistrate took the irregular step of delivering, in effect, one judgment to all defendants then present together in court. This irregularity has led to appeals against conviction in respect of Bijan Alizadehnia and Mohammed Javad Alamdar being allowed because during the course of his reasons the Magistrate made reference to evidence which had not been admitted into evidence at either of their trials.
17 Because challenge is made in the grounds of appeal to the adequacy of the reasons given by the Magistrate I will set them out. They consist of
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- general remarks followed by remarks specific to each defendant. I include, the general remarks and the comments specific to this appellant:
"My first remarks are in general to the riots as I find happened on 4th April 2001. The prosecution submitted evidence and exhibits, as I've mentioned previously, videos which I've now had the opportunity of watching three times. I've heard evidence from all the defendants and it is not in dispute in a case where it may apply of one of the defendants that the officers are officers carrying out their duties under the act, that the properties are, as referred to, Commonwealth properties and the exhibits which were submitted into evidence were without objection from the defendants.
We heard general evidence from the prosecution in relation to the three defendants and we heard evidence from the defendants. Court must always decide cases on the dictum that they must be satisfied beyond reasonable doubt and that the prosecutor must prove each and every element of the offences. The brief facts are that the defendants arrived at the Curtin detention centre on different times. In relation to Alizadehnia, he arrived on the 2nd of the 11th - - November 2000. His first refusal was on 22nd December 2000. A second refusal as given by the Refugee Tribunal was on 10th April 2001.
In relation to the other defendant, he arrived at Curtin on 28th October 2000. The first refusal was given on 11th December 2000 and the second refusal was given on the 14th of the 2nd 2000. In relation to the other defendant, his first refusal was given. On the appeal, the appeal was upheld and a temporary visa may be issued. For the general information, the Curtin Detention Centre is located approximately 40 kilometres from the town of Derby and about 200 kilometres from Broome. It has been stated on numerous occasions by different officials and media that the Curtin Detention Centre is located in a very isolated area.
I will say that depends on the point of view from each person but my argument would be that the whole area of the Kimberley, including Curtin Detention Centre, is located right in the middle of the 'promised land' and it is my view that the Kimberley region is a paradise and one only has to look outside how many people from big cities which I – and I do not give an
(Page 8)
- apology for that – call a jungle flock to Broome, so there must be something good in the Kimberley and it must not be too isolated.
All the defendants came to Australia, applied for a visa under the refugee status and all of them initially were refused. Only one on the appeal to the refugee tribunal was upheld. It's not in dispute that the damage which was caused during the riot of 4th April 2001 was absolutely one of the worst one can experience. One could not carry out further and I believe the damage caused which amounts to the sum of $300,000 clearly proves that.
I had the benefit of having heard evidence from all parties. I had the benefit of viewing the videos at my own leisure and during the evidence given, during the first trial. As I've stated previously, I am absolutely surprised that there were no more injuries or for that matter, quite a few deaths on the day in question. I'm not going into the case of why the riots occurred but I must say that I am shocked that people who alleged (sic) leave a violent country, shortly, very shortly after arriving, as I call it, paradise, cause damage and violence of that nature.
I am of the opinion, and I am of the strong opinion, that on the night in question and the day in question, if the officers had not acted in the way they did, there would have certainly been many more injuries and deaths and I have absolutely no doubt in my mind about that. As I've stated previously, I believe the officers showed great restraint on the days in question. Otherwise, if they would not have, a catastrophe certainly would have occurred.
I have very carefully had the time to consider the evidence from all witnesses. I had the benefits of the view of the video and all the exhibits. I had the benefit of observing the witnesses, and by that I mean all witnesses from the prosecution side as well as from the defendants' side. I also have seen their demeanour, their behaviour in the witness box and, as always, as is my duty, to which I will always comply with, leave my own prejudice out and I must decide on the evidence given before me.
In this case I mainly must decide on credibility of the witnesses. I've taken in consideration that some of the prosecution witnesses may be experienced witnesses. If one puts a police
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- officer for 20 years in the witness box, he's very - - not always comfortable but he knows how the system operates. If one puts a person in the witness box who has never been there, one must accept that there will be nervousness and that there may be inhibited factors sometimes.
As always, I must decide the case, beyond reasonable doubt. I must then question if the prosecution has proven all the elements of the offences. In these cases, and I will name them individually, I am satisfied, beyond reasonable doubt, I have no doubt in my mind that the prosecution in the case of Saedd Shams has proven all elements and all cases. The evidence I heard from that witness was absolutely incredible, packed with lies, packed with dispute. I do believe that not one sentence that that man spoke was truthful.
He was conniving, he was manoeuvrable and did whatever he could to cover up the truth. I found him a witness which I would not accept one word from.
…
He was very evasive in his questions, quite aggressive at times and I found him very cunning and manipulating and I'm totally convinced that he utilised this court of law for his own benefit. Knowing that he has been refused, he wants to send the Australian taxpayer to more costs. From the beginning of the case, one could clearly say - - and after having heard the evidence, has totally confirmed that he is not a truthful witness and I find the charges in relation to the defendant Saedd Shams proven."
Grounds of appeal: Conviction
"1. The learned Magistrate erred in law in omitting to give adequate reasons for convicting the applicant.
Particulars
(a) With respect to each offence, the learned Magistrate has referred to a prosecution exhibit – 'I had the benefits (sic) of the video…' – without stating the significance of that evidence in relation to his conclusion to convict the Appellant.
(Page 10)
- (b) With respect to each offence, the learned Magistrate has omitted to make an individual assessment of the significance of any prosecution witness or other item of evidence;
(c) With respect to the offence of hindering, the learned Magistrate has omitted to state the manner in which the Appellant hindered the officer and whether the hindering was intentional and knowing;
(d) With respect to the offence of damaging the donga, the learned Magistrate has omitted to comment upon the single significant issue in the hearing, namely, the veracity of the prosecution identification evidence;
(e) With respect to the offence of damaging the tent, the learned Magistrate has omitted, in the face of varying prosecution evidence, to state the manner in which the Appellant damaged the tent and whether the damage was wilful.
- 2. In convicting the Appellant substantially by reason of rejecting his evidence, the learned Magistrate has erred in law by failing to cast the onus upon the prosecution to prove the elements of each offence."
Duty to a court to give reasons
18 There are many statements of principle as to the duty of a court to give adequate reasons for its decision and it is not necessary for me to restate them. They can be found in Lloyd v Faraone [1989] WAR 154; Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 980291; 13 May 1998; Garrett v Nicholson (1999) WASCA 32; (1999) 21 WAR 226; The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7; Matsebula v Vandeklashorst [2000] WASCA 141; Underwood & Ors v Gayfor & Anor [1999] WASCA 56 and many others.
19 As I said in Skerritt v O'Keefe [1999] WASCA 183 at par 146 and par 147:
(Page 11)
- "The principles are clear. The court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion.
Although the principle is clear, the sufficiency of fact finding and reasoning will vary widely with the exigencies of each case. In the end it is necessary to examine the particular reasons in this case to see whether the principles are satisfied."
Analysis of the reasons in this case
20 The first substantial comment in his reasons relates to a matter which, with respect. was entirely irrelevant, namely the Magistrate's views that the Kimberley region is a paradise. This can form no proper part of the basis of reasoning towards conviction or acquittal.
21 The Magistrate then observed that the damage caused during the riot was absolutely one of the worst experienced and damage amounted to $300,000. That observation was made because the Magistrate had had the benefit of viewing the video-tape at his own leisure. The benefit of viewing the videos and the exhibits is a matter to which he refers three times in the course of his reasons but without ever relating the contents of the video to any specific offence under consideration and particularly not to any offence with which the appellant was charged.
22 It may be accepted that this was a riot of a most serious and unfortunate kind involving a great many detainees. However, the appellant, and indeed the other defendants, were not charged with an offence of riotous behaviour but with doing discrete acts as particularised in the complaints against them. While it was necessary to set the offences in context, it was incumbent to isolate the actual acts done by the appellant and whether the act found to have been done amounted to an offence. Comments by the Magistrate of surprise and shock give rise to a suspicion that those emotions may have dominated the reasoning process notwithstanding his later observation that he will "leave my own prejudice out" and "I must decide on the evidence before me". It is the duty of any Judge or Magistrate to apply the law to facts in an unemotional and detached manner without bias or prejudice and to decide the case only on the evidence before him or her. The caution by the Magistrate to himself was only made necessary because of his feelings of surprise and shock. His reasons for shock and surprise have nothing to do with whether the prosecution has established its case in respect of each or all of the actual complaints.
(Page 12)
23 The Magistrate noted that he must decide the case mainly on credibility and noted that some prosecution witnesses may be experienced and that a person who has never been in the witness box may have nervousness and inhibited factors. These comments are appropriate.
24 He then said:
"In these cases, and I will name them individually, I am satisfied, beyond reasonable doubt, I have no doubt in my mind that the prosecution in the case of Saeed Shams has proven all elements and all cases."
- This expresses a conclusion but not any reasoning by which the conclusion is reached. The Magistrate was entitled to accept the evidence of the prosecution witnesses and to reject the evidence of the appellant provided he gave reasons for doing so. He gave no reasons for accepting the prosecution evidence. He did give reasons for rejecting the defendant's evidence on the basis that not one word he spoke was truthful. More importantly he said:
"I'm totally convinced that he utilised this court of law for his own benefits. Knowing that he has been refused, he wants to send the Australian taxpayer to more costs".
26 I have read the evidence of the trial. I acknowledge immediately that lacking from the printed page is the general demeanour of the witness. I note that the appellant gave evidence through an interpreter. His evidence in essence was a simple denial that he was the person who had knocked over the tent or pushed the donga. He at all times admitted his part in the damage to the fence, the charge in respect which he had pleaded guilty. He acknowledged that there had been contact between he and Officer Hughey but denied that Officer Hughey had spoken with him. As he had acknowledged that he was part of a group that pulled the fence down, the Magistrate's comment "I do believe that not one sentence that that man spoke was truthful" indicates at best a misappreciation of the material before him.
27 Probably that misappreciation came about from the irregular manner in which the Magistrate elected to deal with the appellant and other
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- defendants. By dealing with them together he created appreciable risk that unless he then carefully analysed the admissible evidence as against each defendant in respect of each charge, he would overlook or mistake evidence or else take into account irrelevant considerations. This is what he did in the case of Alizadehnia and Alamdar. It is what he did in the appellant's case.
28 His repeated reference to the video is an example. The respondent does not contend that the video showed any acts of the appellant relevant to the charges. The prosecution sought to support the introduction of the video at trial as confirmatory of the appellant's unusual stature and thus relevant to the question of recognition by the officers. To that end the video was clearly relevant and admissible. It was not admissible in order to support a line of reasoning to the effect that there was a riot, it caused a substantial amount of damage, deaths or more injuries might have occurred, indeed a catastrophe would have occurred had the officers not showed great restraint. All of those statements are found in the course of the Magistrate's reasons. None of those have any relevance to whether the prosecution proved that the appellant did or not do the specific acts set out in the complaints.
29 The Magistrate failed to deal with the specific evidence beyond the global conclusion that he was satisfied beyond reasonable doubt that the appellant was guilty.
30 I conclude that the Magistrate failed in his duty to articulate sufficient reasons for reaching his conclusion. The grounds of appeal have been substantially made out. The case depended on credibility. While the Magistrate made findings as to the appellant's credibility, he did not say why he accepted the prosecution witnesses. In consequence, I am unable to dismiss the appeal under the Justices Act s 199(3). As a consequence the appeal against conviction must be allowed, the convictions set aside and the matter remitted for re-hearing before another Magistrate.
31 This is a regrettable result because the issues were straightforward and had the Magistrate properly exposed his reasoning process the convictions may well have been sustained. However, he did not do so. In the part of the reasoning process which he does expose, there are several irrelevant, extraneous, and prejudicial remarks as outlined with the result that I am unable to be satisfied that no miscarriage of justice has occurred.
(Page 14)
Appeal against sentence
32 As a consequence, most of the grounds of appeal against sentence fall away.
33 There remains for consideration the sentence for the offence of damaging the fence BM 822/01, to which the appellant pleaded guilty and received a sentence of 14 months.
34 Distilling the grounds of appeal against sentence there seem to be four which remain relevant. They are:
(a) The Magistrate erred in law and imposing a sentence without taking into account the time that the appellant had spent in remand in respect of the offences.
(b) The Magistrate erred in failing to place any weight upon the plea of guilty.
(c) The sentence of 14 months' imprisonment for damage of a fence upon the appellant's plea of guilty was plainly disproportionate to the circumstances of the offence.
(d) Failing to take into account the time spent in custody.
35 After the appellant had been sentenced the prosecutor advised the Court that he had been in custody since 23 April 2001, the Magistrate said: "I will not backdate it".
36 No reasons were given for failing to backdate the sentence. There is a discretion whether or not to backdate a sentence. The Crimes Act s 16E(2) allows for the operation of the Sentencing Act s 87 in relation to federal offences committed in Western Australia.
37 The power in s 87 is discretionary. However, where a defendant has been in custody for a period in respect of the offences under consideration and for no other reason, and the defendant has not contributed to delay or has otherwise become disentitled to the benefit of the provision, a sentence should be backdated. It is no answer to say that the offender would likely have been detained in any event. While this may be true, there is a difference in status and in fact between detention and custody.
38 Furthermore, the Magistrate was inconsistent. In respect of some offenders he backdated the sentences while for others he did not. In no case did he provide reasons for his decision.
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39 In the absence of any reasons why the Magistrate exercised his discretion against backdating, I infer error.
The failure to take into account the plea of guilty
40 The fact is that the plea of guilty is a matter to which the court must take into account: Crimes Act s 16A. The Magistrate failed to differentiate between any of the three damage offences, imposing the same sentence, namely 14 months, in respect of each.
41 In failing to differentiate or given any reasons why the sentences were the same I conclude that the Magistrate has erred.
Whether the sentence was plainly disproportionate to the circumstances of the offence
42 Leaving aside a discount which might be applied in respect of the plea of guilty, I do not regard the sentence as in any way disproportionate. The appellant was part of the group of persons who together pushed down the fence and caused damage.
43 The circumstances relevant to that offence include the fact that it was occurring during the course of a riot while officers were trying to maintain order. It was a serious offence and responsibility cannot be apportioned between the participants even if most were not charged.
44 I would regard a sentence of 14 months following a trial as an appropriate sentence. However, the plea of guilty should have been acknowledged.
Conclusion on sentence
45 Having regard to the failure to backdate and the failure to take into account the plea of guilty, I would set aside the sentence imposed, impose instead a sentence of 12 months' imprisonment to take effect from 23 April 2001. Ordinarily for such a sentence I would fix a recognisance release order. However, the effect of backdating the sentence means that the appellant has served the entire sentence and a recognisance order is pointless.
(Page 16)
Orders
46 Complaint Nos BM 821/01, BM 823/01, BM 824/01 – Appeal allowed, conviction quashed, each matter remitted to the Court of Petty Sessions to be heard and determined according to law before a different Magistrate. I will hear the parties in respect of appropriate consequential orders.
47 Complaint No BM 822/01 – Appeal allowed, the sentence of 14 months set aside in lieu thereof a sentence of 12 months' imprisonment to run from 23 April 2001.
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