Sikora v Gibson
[2018] WASC 271
•31 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SIKORA -v- GIBSON [2018] WASC 271
CORAM: CORBOY J
HEARD: 22 AUGUST 2018
DELIVERED : 31 AUGUST 2018
FILE NO/S: SJA 1087 of 2018
BETWEEN: PAUL CAESAR SIKORA
Appellant
AND
GEORGIA GIBSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S R MALLEY
File Number : FR 2955/2018
FR 2956/2018
FR 3410/2018
Catchwords:
Criminal law - Trespass - Appeal against sentence - Failure to apply s 9AA of the Sentencing Act 1995 (WA) - Whether sentencing options other than imprisonment available
Legislation:
Criminal Code (WA), s 10A
Sentencing Act 1995 (WA), s 9AA, s 69, pt 10, pt 11
Result:
Time to extend time within which to appeal
Leave to appeal
Appeal allowed
Sentence set aside and appellant to be re-sentenced
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Ms E O'Keeffe & Ms B Loftus |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bennier v Millar [2016] WASC 393
Casotti v Pickering [2013] WASC 174
Closter v Humphries [2012] WASC 145
Gok v The Queen [2010] WASCA 185
Horner v Hunt [2013] WASC 241
Knox‑Cumming v MacDonald [2018] WASC 164
Lance v Weston [2014] WASCA 62
Moir v The State of Western Australia [2014] WASCA 25
Smith v Richardson [2013] WASC 114
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Smith [2016] WASCA 153
Vickery v McAlinden [2017] WASC 224
Weston v Cartmell [2015] WASC 87
Wilson v The State of Western Australia [2010] WASCA 82
CORBOY J:
The appeal and the result
The appellant was convicted on his plea of three offences - two offences of trespass and one offence of stealing. He was fined $500 for the stealing offence (MCFRE 18/2956) and a further fine of $500 for one of the trespass offences (MCFRE 18/3410). A term of imprisonment of 7 months was imposed for the second trespass offence (MCFRE 18/2955). The term of imprisonment was suspended for 12 months commencing on 17 April 2018.
The appellant appeals from the suspended imprisonment order made by the learned magistrate in respect of charge MCFRE 18/2955. Two grounds of appeal are alleged:
(1)The magistrate erred in law by failing to take into account a relevant mitigating factor, namely the appellant's mental impairment.
(2)The magistrate erred in sentencing the appellant to imprisonment, when in all of the circumstances a sentence of last resort was not open.
The appellant did not press the first ground at the hearing of the appeal. It was accepted that there was no evidence connecting his mental impairment to his offending: see Gok v The Queen [2010] WASCA 185 (where it is contended an offender's moral culpability is lessened by a psychiatric or psychological condition, the offender must demonstrate a causal connection between the condition and the commission of the offence).
There was a difficulty in considering the second ground. The magistrate did not refer to the appellant’s plea of guilty. As Martin CJ observed in Strahan v Brennan [2014] WASC 190 [90], it is not appropriate to scrutinise the reasons of a magistrate with a 'fine tooth comb or any eye attuned to the identification of error' given that magistrates are required to perform their functions under demanding constraints of time and judicial resources. However, in my view it cannot be inferred from the magistrate's sentencing remarks that the appellant's plea of guilty was considered for the purpose of s 9AA of the Sentencing Act 1995 (WA) (or for any other purpose). That was an error of law but the error was not pleaded as a ground of appeal.
Section 14 of the Criminal Appeals Act 2004 (WA) specifies the powers the court may exercise in an appeal from a decision of a court of summary jurisdiction. Those powers include setting aside the sentence imposed and resentencing the offender/appellant. Section 14(2) further provides the court may dismiss an appeal if it considers no substantial miscarriage of justice has occurred even if a ground of appeal might be decided in favour of the appellant.
The maximum penalty for the offence of trespass is imprisonment for 12 months and a fine of $12,000: s 70A of the Criminal Code (WA). There is no summary conviction penalty for the offence.
Section 42 of the Sentencing Act provides that if a court is sentencing an offender for an offence the statutory penalty for which is such that both imprisonment and a fine may be imposed, the court may use any one of the sentencing options in s 39(2). The options specified in s 39(2) are listed in ascending order of penalty so that s 39(2)(e) enables a court to impose an intensive supervision order (ISO), s 39(2)(f) permits a court to impose a suspended imprisonment order (SIO) and s 39(2)(h) provides for a term of imprisonment. Section 39(3) further provides that a court must not use a sentencing option in s 39(2) unless satisfied it is not appropriate to use any of the options listed before that option. Accordingly, a court can only impose a term of imprisonment if it is the only appropriate sentencing option having regard to the seriousness of the offence. The seriousness of an offence is to be determined according to the factors specified in s 6 of the Sentencing Act.
The magistrate did not expressly refer to other sentencing options before making a SIO in respect of the appellant but the omission does not, in itself, disclose an error of law. The seriousness of the appellant's offending may have been such that it was apparent a term of imprisonment was the only appropriate option without the need to expressly refer to other sentencing options.
Section 86 of the Sentencing Act states that a court must not sentence an offender to a term of imprisonment of six months or less unless certain circumstances apply. The exceptions to the six month limitation were not relevant to the sentencing of the appellant.
In my view, the real issue in the appeal was whether a substantial miscarriage of justice occurred as a result of the magistrate failing to have regard to the provisions of s 9AA of the Sentencing Act in sentencing the appellant to a term of imprisonment of 7 months suspended for 12 months. That question was to be determined having regard to the maximum penalty for the offence of trespass and the provisions of s 6, s 39 and s 86 of the Sentencing Act. As can be seen, ground 2 of the appeal raised only one aspect of the issue.
The appeal was commenced out of time: see s 10 of the Criminal Appeals Act 2004 (WA). However, it is in the interests of justice that the time to commence the appeal be enlarged in light of the conclusion I have reached that the magistrate erred in sentencing the appellant for the trespass offence. For that reason, it is also in the interests of justice that the appellant have leave to amend his appeal notice to allege that the magistrate erred by failing to have regard to his plea of guilty and s 9AA of the Sentencing Act (it is convenient to refer to this foreshadowed ground as proposed ground 3).
I have also concluded that:
(a)there should be leave to appeal on ground 2 and proposed ground 3;
(b)the appeal should be allowed on ground 2 and proposed ground 3;
(c)the sentence imposed on charge MCFRE 18/2955 should be set aside.
I have found in the following reasons that, at the time the appellant was sentenced, an ISO would have satisfied the sentencing objectives identified by the magistrate in imposing a SIO. Accordingly, I have also found that a substantial miscarriage of justice occurred as a result of the magistrate failing to apply s 9AA of the Sentencing Act and because a sentencing option other than imprisonment was available in the exercise of the sentencing discretion.
Ordinarily, it would follow from those findings that the appellant is to be resentenced to an ISO (probably with primary requirements). However, he has been charged with further offences. Those charges are being prosecuted in the magistrates court and the appellant is currently being held in custody on remand. In the circumstances, I will hear further submissions on the sentencing of the appellant for the trespass offence.
The facts
The facts alleged by the prosecutor and admitted by the appellant were that at about 12.45 am on 5 March 2018 the appellant walked down a driveway adjacent to a set of units in Harris Street, Bicton. An unlocked motor vehicle was parked adjacent to one of the units. The appellant entered the vehicle and stole $5.00 in coins.
The appellant was represented at the sentencing hearing. His counsel informed the magistrate the appellant was on a disability pension for schizophrenia; he was receiving treatment for that condition but it was a 'very long and ongoing problem'; he could pay a fine from his disability pension; he had a permanent residence; and his mother lived nearby and was supportive of him. It was submitted in mitigation the appellant had been told by others it was possible to steal money from cars; he had decided he would only take money from unlocked cars which he could enter without causing damage; and he only took coins that were left in the cars he entered. It was further submitted a fine would be appropriate given the small amount of money that had been stolen and the seriousness of the offending.
No submissions were made regarding the appellant's personal circumstances, although it would have been apparent from his criminal record that he was born on 3 April 1983 and accordingly, was aged 34 years at the time he committed the trespass offence. Further, no submission was made seeking to connect the appellant's offending with his psychiatric condition of schizophrenia.
The appellant has an extensive criminal record. He was first convicted of an offence as an adult in July 2001. He has a number of convictions for stealing, disorderly behaviour in public, possessing a prohibited drug, indecent assault, intimidation and giving false personal details to the police. He also has a number of convictions for failing to comply with bail undertakings or court orders, including breaches of ISOs and SIOs. The appellant was sentenced to terms of imprisonment that were suspended in February 2006, January 2010 and April 2016. He was sentenced to terms of imprisonment in March 2016 (driving without a motor vehicle driver's licence; breach of a community based order and breach of a SIO) and September 2010 (breach of an ISO; breach of violence restraining order and breach of protective bail conditions). He has an extensive history of failing to comply with community-based orders.
The magistrate's sentencing remarks were as follows:
HIS HONOUR: Yes. Okay. Mr Sikora, in relation to the stealing, there's a fine of $500. In relation to [MCFRE 18/3410], $500. In relation to the trespass on the premises at Unit 2, 37 Harris Street, Bicton, I take a slightly different view in relation to that. That is, in my view, one fraught with danger. I know Ms - - - when I say I know, I known Ms Bunyan only through other proceedings in court, not of a criminal nature, but I know her. So she's an elderly lady. I know that of her at least. And you're going into an environment there which is fraught with danger, and this is not out of character.
You, I appreciate, have your difficulties, but there's got to be a stop …
ACCUSED: I had no idea (indistinct).
HIS HONOUR: Well, I don't suggest - that's just the very point. You don't know who's there. You get somebody come out who's scared, frightened, who confronts you, then who knows what's going to happen. In relation to the matter, I otherwise would have imposed nine months. I'm going to impose seven months, and that will be suspended for a period of 12 months. You know about suspended sentences, Mr Sikora.
ACCUSED: Yes, I could have - - -
HIS HONOUR: I have grave doubts that you can complete it, but I'm going to give you that chance (17 April 2018, ts 4).
Disposition
The relevant principles
The principles that apply to an appeal against sentence are well established; they are outlined in Wilson v The State of Western Australia [2010] WASCA 82. Those principles also apply to an appeal under pt 2 of the Criminal Appeals Act 2004 (WA): Closter v Humphries [2012] WASC 145.
Sentencing for the offence of trespass
There are few appellate decisions on sentencing for the offence of trespass. No customary range of sentences can be discerned from those decisions: Horner v Hunt [2013] WASC 241 [39] (Hall J).
The appellant in Horner v Hunt was sentenced to a term of imprisonment of 8 months to be immediately served for a trespass offence where the appellant entered onto the front lawn of the complainant's property and was seen adjacent to a vehicle parked on the lawn. The appellant had a significant criminal history and was convicted of a number of stealing offences at the same time as her conviction for trespass. As in this case, the stealing offences involved the appellant looking for unlocked vehicles and taking items from the vehicles. The appellant had also breached community-based orders.
Hall J recognised the magistrate was presented with a difficult sentencing problem as the appellant was a persistent offender and fines imposed for past offences had been ineffective in deterring her from committing further offences. His Honour continued:
Understandably, his Honour was seeking an option that would have some meaningful prospect of deterring the appellant from further offending and protecting the community. However, a sentence of 8 months' imprisonment for the trespass offence was manifestly excessive. Whilst I would accept that a sentence of imprisonment was appropriate the sentence imposed for this offence was simply too high. The sentence needed to take into account the seriousness of the circumstances, the appellant's plea of guilty and the time spent in custody. Those factors required a significantly lower sentence than was imposed [47].
The appellant had been sentenced to terms of imprisonment for other offences. In the circumstances, Hall J considered the appellant should be resentenced for the trespass offence to a term of imprisonment of three months. The term was ordered to be served cumulatively with a term of imprisonment imposed for a breach of a community-based order. The total effective sentence imposed exceeded the minimum period of six months stipulated by s 86 of the Sentencing Act.
There are other cases in which a term of imprisonment for the offence of trespass was held to fall within the sound exercise of a sentencing discretion: Moir v The State of Western Australia [2014] WASCA 25; Weston v Cartmell [2015] WASC 87; and Bennier v Millar [2016] WASC 393. On the other hand, there are cases where either a conditional release order or fines was imposed for the offence: Knox‑Cumming v MacDonald [2018] WASC 164; Lance v Weston [2014] WASCA 62; The State of Western Australiav Smith [2016] WASCA 153; and Smith v Richardson [2013] WASC 114.
Primarily, those cases merely illustrate the proposition stated by Hall J in Horner v Hunt that there is no tariff for the offence. However, in cases where a term of imprisonment has been upheld on appeal or imposed in re‑sentencing the offender had committed other offences for which terms of imprisonment were imposed. In those instances, terms of imprisonment of less than 6 months for a trespass offence were imposed. A sentence of less than 6 months imprisonment was available as the appellant had been sentenced to more than one term of imprisonment so that the total effective sentence exceeded 6 months and 1 day.
Bennier v Millar is an exception. In that case, Martino J dismissed an appeal against a sentence of 7 months imprisonment for a single offence of trespass (the sentence was suspended for 9 months). The appellant entered railway property without authority. Train services had to be cancelled and substantial police and emergency services resources were required to attend at the scene of the trespass. The appellant was not removed from the property for approximately 10 hours. Self‑evidently, the offending was a serious example of a trespass.
The parties' positions
The parties' submissions can be shortly summarised. The appellant contended he could only be sentenced to a term of imprisonment for the trespass offence if the magistrate, in a proper exercise of the sentencing discretion, was satisfied that imprisonment was the only appropriate sentencing option taking into account the limitation imposed by s 86 of the Sentencing Act. A term of imprisonment was not the only appropriate sentencing option given the relatively minor nature of his offending – being on a driveway adjacent to a block of units. The stealing offence was more serious but was punished by a fine (however, s 426(4) of the Criminal Code provides that the maximum penalty on a summary conviction for the offence of stealing is a fine of $6,000 were the value of the property stolen is less than $1000).
The respondent contended it was open to the magistrate to conclude that a term of imprisonment was the only appropriate sentencing option in light of the appellant's record of habitual offending and past non-compliance with court orders.
ISOs and SIOs
Section 76 of the Sentencing Act empowers a court to make a SIO. Section 77 deals with the effect of the order. The sections do not allow a court to impose conditions. The effect of the order is to place the offender in jeopardy of being required to serve a term of imprisonment if, during the term of the suspended order, he or she is convicted of an offence the statutory penalty for which is or includes imprisonment. The policy embodied in s 76 and s 77 is to provide an appropriate penalty for offending, promote rehabilitation in the community and impose a sanction against reoffending.
Section 77(6) of the Sentencing Act provides 'for the purpose of a law other than this Part and Parts 12 and 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment'. Part 13 of the Sentencing Act includes s 86. It has been occasionally argued that the effect of s 77(6) is that the restriction in s 86 does not apply to a SIO so that a term of imprisonment of less than six months and one day can be imposed where such an order is made. That argument was not put by either party and it has been rejected by Hall J in Casotti v Pickering [2013] WASC 174 and Chaney J in Vickery v McAlinden [2017] WASC 224.
Section 69 of the Sentencing Act specifies the nature of an ISO. Section 69(1) of the Sentencing Act provides:
(1)An ISO is an order -
(a)that if while the ISO is in force the offender commits another offence (in this State or elsewhere) the offender may be sentenced again for the offence to which the ISO relates; and
(b)that the offender -
(i)must comply with the supervision requirement in section 71; and
(ii)must comply with such of the primary requirements in section 72 as the court imposes; and
(iii)while the supervision requirement in section 71 or any primary requirement in section 72 is in force, must comply with the standard obligations in section 70.
Section 69 stipulates that an ISO must contain a supervision requirement as specified in s 71 and may contain any of the primary requirements in s 72. The primary requirements are a programme requirement, a community service requirement and a curfew requirement.
Section 69 further provides that an offender who commits an offence during the term of an ISO is liable to be dealt with under pt 18, div 3 of the Sentencing Act. Part 18, div 3 enables a court to make further orders in respect of the ISO or to sentence the offender for the offence for which the order was made.
Moreover, s 69 further provides that a breach of the conditions of an ISO may be dealt with under pt 18, div 4. The division provides that a person who breaches an ISO commits an offence for which a fine of not more than $1,000 can be imposed. The offender may also be sentenced for the offence for which the order was made.
It can be seen that the consequences of re‑offending during the term of an ISO are similar to a breach of a SIO. However, an ISO has the further benefit that primary requirements can be imposed. Those requirements can be directed to reducing the risk of the offender re‑offending and addressing the underlying causes of his or her offending.
Conclusion
It is accepted that the appellant pleaded guilty to the trespass offence at the first reasonable opportunity. He was entitled to have the 'head sentence' reduced under s 9AA of the Sentencing Act. There is no reason why he should not have received the full reduction permitted by that section.
A reduction of 25% implies a head sentence of at least 8 months (to produce a term of imprisonment of at least 6 months and one day). In my view, a head sentence of 8 months for the trespass offence committed by the appellant would have been excessive. Accordingly, I do not consider that a term of imprisonment was an appropriate sentencing option having regard to the statutory minimum imposed by s 86 of the Sentencing Act.
Further, and in any event, in my view an ISO was an appropriate sentencing option for the trespass offence having regard to the seriousness of the offence. I accept, of course, that the appellant has a significant criminal history and has failed to comply with court orders in the past. I further accept that, as the magistrate put it, the appellant's offending 'has to stop' and the appellant needs to understand that he is being, and will be, punished. Personal deterrence is a very significant factor in sentencing him. That is obvious from his criminal record and is further highlighted by the fact that he has committed offences since the SIO was made.
Further, although the appellant's offending can be characterised as relatively minor, the community is entitled to be protected from his habitual 'nuisance' offending. Moreover, general deterrence is a relevant consideration given the nature of the appellant's offending.
Nevertheless, the magistrate considered that it was appropriate that the appellant be released to the community. It is to be inferred that his Honour considered the objectives of sentencing were best achieved by the appellant being put at risk of serving a term of imprisonment if he reoffended. However, those objectives could have been achieved by an ISO, with the additional benefit that the appellant would be required to engage with community corrections for the purpose of discharging programme and community service requirements. The terms of the ISO could have reflected the concerns that the magistrate justifiably held about the appellant's habitual offending and the sentencing objectives of personal and general deterrence, protection of the community and punishment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AC
RESEARCH ASSOCIATE/ORDERLY TO KENNETH MARTIN & CORBOY JJ31 AUGUST 2018
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