Smith v Cleal
[2001] WASCA 188
•20 JUNE 2001
SMITH -v- CLEAL [2001] WASCA 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 188 | |
| 20/06/2001 | |||
| Case No: | SJA:1060/2001 | 14 JUNE 2001 | |
| Coram: | ROBERTS-SMITH J | 14/06/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentences quashed Community Based Orders for 6 months with program requirements substituted | ||
| PDF Version |
| Parties: | COURTNEY JULIAN LIAM SMITH STEPHEN JOHN CLEAL |
Catchwords: | Criminal law Sentence Appeal under Justices Act Unlawful assault and resisting police Sentence of 5 months and 2 weeks imprisonment respectively Record of previous convictions and community based orders Sentence of 3 years imprisonment suspended for 2 years Whether no option other than imprisonment |
Legislation: | Sentencing Act 1995 (WA), s 8(4), s 39(1) and (3) |
Case References: | Bates v Wheatley [2000] WASCA 38 Cox v Whitehead & Ors [1999] WASCA 277 H v The Queen (1995) 81 A Crim R 88 Holland v The Queen [1999] WASCA 43 House v The King (1936) 55 CLR 499 Langridge v The Queen (1996) 17 WAR 346 Taylor v Fairman [2000] WASCA 121 Bailey v Fox, unreported; CCA SCt of WA; Library No 980528; 4 September 1998 Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994 Hodder v The Queen (1995) 15 WAR 264 Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994 Miles v The Queen (1997) 17 WAR 518 Storey v The Queen (1996) 89 A Crim R 519 Vickers v Bailey [2000] WASCA 136 Warrell v Kay (1995) 83 A Crim R 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STEPHEN JOHN CLEAL
Respondent
Catchwords:
Criminal law - Sentence - Appeal under Justices Act - Unlawful assault and resisting police - Sentence of 5 months and 2 weeks imprisonment respectively - Record of previous convictions and community based orders - Sentence of 3 years imprisonment suspended for 2 years - Whether no option other than imprisonment
Legislation:
Sentencing Act 1995 (WA), s 8(4), s 39(1) and (3)
(Page 2)
Result:
Appeal allowed
Sentences quashed
Community Based Orders for 6 months with program requirements substituted
Representation:
Counsel:
Appellant : Ms H K Ward
Respondent : Mr B P King
Solicitors:
Appellant : Monaghan & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Bates v Wheatley [2000] WASCA 38
Cox v Whitehead & Ors [1999] WASCA 277
H v The Queen (1995) 81 A Crim R 88
Holland v The Queen [1999] WASCA 43
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Taylor v Fairman [2000] WASCA 121
Case(s) also cited:
Bailey v Fox, unreported; CCA SCt of WA; Library No 980528; 4 September 1998
Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994
Hodder v The Queen (1995) 15 WAR 264
Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994
Miles v The Queen (1997) 17 WAR 518
(Page 3)
Storey v The Queen (1996) 89 A Crim R 519
Vickers v Bailey [2000] WASCA 136
Warrell v Kay (1995) 83 A Crim R 493
(Page 4)
1 ROBERTS-SMITH J: On 3 April 2001 the appellant appeared in the Joondalup Court of Petty Sessions and pleaded guilty to one count of unlawful assault contrary to s 223 of the Criminal Code 1913 (WA) and one count of resisting police contrary to s 20 of the Police Act 1892 (WA).
2 He was sentenced to 5 months imprisonment on the unlawful assault and 2 weeks imprisonment on the resisting police, to be served concurrently. There was no question of eligibility for parole.
3 The facts of the matters as put to his Worship by the Police Prosecutor on 3 April 2001 were as follows. The appellant is the son of the complainant. At the time, both lived at the mother's address at Wanneroo. About 4 pm on Thursday 22 February 2001, the appellant was at that home when he had an argument with his mother which resulted in him throwing grapes through the kitchen and living room area, and then approaching an airconditioning unit and throwing it to the floor. It was not damaged. He then left the room and went to collect his 3-year old son and leave the house. There was further argument with his mother over him taking his son with him and that resulted in the appellant punching his mother to the right cheek causing a visible mark. No medical attention was sought.
4 Police attended the address and told the appellant he was under arrest. He refused to accompany the police officers, repeatedly saying "This is fucked. I'm not going." The officers approached him and he struggled violently, swinging his arms. The officers were forced to use OC spray on him in order to restrain him. A second police vehicle attended and he was taken to the Wanneroo police station and charged.
5 Counsel for the appellant before the learned Magistrate explained that the argument between the appellant and his mother had been in relation to a number of things, but the main aspect was probably the appellant's use of amphetamines and subsequent intoxication, the previous evening. Counsel then said (AB 18):
"The argument broke out and my client did strike his mother. I am instructed it's a slap rather than a punch."
6 He said that police subsequently attended and arrested the appellant who at that time was already feeling considerable remorse about having struck his mother. They are a very close family. It was said that his attempt to break away from the police was to re-enter the house to make sure his mother was all right. There was also a degree of panic involved.
(Page 5)
- Counsel reiterated the appellant was deeply regretful for his actions that day.
7 There was a record of the appellant's previous convictions before the learned Magistrate. That commenced with a conviction for reckless driving at Mount Tom Price on 21 December 1994, extending through to a conviction for disorderly conduct in the Tom Price Court of Petty Sessions on 2 May 2000. Most of the offences were of a behavioural kind or for motor vehicle offences. They are of a kind typically involved with intoxication by alcohol or drugs. These included a conviction for resisting arrest in the Perth Court of Petty Sessions on 20 January 1997 in respect of which the appellant was given a 12 months community release order. A similar order was made in the Mount Tom Price Court of Petty Sessions on 7 July 1998 on a similar charge. The most significant convictions were in the District Court at Perth on 12 April 2000 when the appellant was sentenced to 3 years imprisonment, suspended for 2 years, on a conviction of aggravated burglary and three counts of criminal damage. Again, on 2 May 2000 at Mount Tom Price he was convicted of common assault and given a 9 month community based order with 50 hours community work. On 2 May 2000 at Mount Tom Price for two offences of breaching bail conditions and one of disorderly conduct he was given a 6 month community based order.
8 His Worship pointed out to counsel for the appellant that the appellant had been on a suspended sentence of 3 years imprisonment when the present offences were committed. Counsel explained that the imposition of those suspended sentences in April 2000 had been something of a turning point in the appellant's life; he recognised that he had to seek some sort of counselling in relation to his use of drugs and needed to "get himself back on track". It was said to his Worship that at approximately that time his parents, who had been living in Queensland, returned to Perth to live. They have taken a family approach to resolving the appellant's drug issues and other personal issues in his life.
9 Subsequent to the imposition of the suspended sentence and as a result of this appreciation and his parents' support, he undertook counselling at Bridge House on a residential basis and since then has been consistent in his attempts to remain clean of drugs. Counsel said he had been largely successful but the events of 22 February were the result of "somewhat of a stumble". As counsel pointed out to his Worship, it is not uncommon that when people are trying to give up drugs they do "stumble" from time to time.
(Page 6)
10 It was put to his Worship that since that evening the appellant had again reflected on his situation and decided to take more serious steps. He attended Dr Russell at a Wanneroo family medical practice in relation to his use of drugs and under Dr Russell's care a preliminary diagnosis was made that he suffers from Attention Deficit Disorder. The intention was that he would be referred to specialists in relation to that. As put to his Worship, the appellant had a firm intention of enrolling in further drug rehabilitation treatment and he had the support of his family to do that. Both of his parents were present in court before his Worship.
11 The appellant is 24 years of age and has been in a stable de facto relationship for three to four years. There is one 3-year old child of that relationship who lives with the appellant and the child's mother. The appellant was the sole provider for his son and de facto wife and until recently, had been in steady employment as a scaffolder.
12 The appellant's previous offences were related to his use of drugs and alcohol principally when he was younger. The submission was put that as at that time his two problems were drug use and the Attention Deficit Disorder - both of which he had been taking active steps to remedy with the assistance of his family.
13 Counsel handed to the learned Magistrate a letter from the appellant's mother, who as I have observed, was the victim of the assault. Mrs Smith wrote that since the appellant had been charged she had been trying unsuccessfully to have the charges withdrawn. She expressed her firm belief that gaol was not the answer; the appellant has shown his family that with the help, support and guidance of them all he has been able to fight his problems head-on. She said she would like to see him given community service as this would enable him to earn a living to support his own family. She wrote further (AB 25):
"Drugs have played a major part of his personality changes, which brings about bursts of anger, destruction and deep depression and there are times that Courtney cannot remember what has happened. Courtney has realised that he has problems and on his own realisation has gone and sought medical help. Courtney is having tests done and has referrals to see specialists. At present he's on medication for depression which is helping him to cope day by day.
Courtney has a three year old son Tristan who loves his dad no end, and he's quite concerned about his father going to gaol; he
(Page 7)
- often comes up to me and his mother saying 'I don't want daddy to go to gaol'. I find that question very hard to answer."
14 Finally counsel reiterated that the letter reinforced his earlier submissions about the family being close and supportive and submitted that both offences could be appropriately dealt with by way of a community based order.
15 The learned Magistrate's sentencing remarks were quite brief and I set them out below in full (AB 20-21):
"Mr Smith, for some considerable time now you have been involved in disorderly behaviour. The court generally doesn't worry too much about that especially with young people. People get a bit untidy at times, they get a bit out of shape, but they don't continue that mode of conduct. That is usually what happens.
You have arrived at a situation where the court has no room to manoeuvre. You have been fined. You have been put on community based orders; 12 months, 12 months, CRO 12 months. You are now presently on a suspended sentence, and that is for a very lengthy period of time from the District Court. That means that the suspended sentence must be dealt with by the District Court.
Given that you were placed on a CBO within the terms of that sentence, that is, on the 2nd of May 2000, you were put on a 9 months community based order, an adult community based order and 50 hours community work, whilst on that sentence. You now have yet another assault this time on your mother. That's as low grade as one can get. That really is as low grade as one can get, to hit your mother.
In respect of the issue, I am not of the view that the court can do anything further with you. I do not accept that a community based order would be of any value to you. You have been on these orders. You have been involved in matters which now must be dealt with, as I said, in the fashion that the court should deal with them.
In respect of the assault on Sue Ellen Smith, you are sentenced to a period of 5 months' imprisonment. You do not punch women in the face. And in respect of the resist you are
(Page 8)
- sentenced to 2 weeks concurrent. Thank you. Stand down in custody…."
16 The grounds of appeal are:
"(a) The learned Magistrate erred in:
(i) failing to take into account that the appellant pleaded guilty at the earliest opportunity;
(ii) sentencing the appellant on the basis that he had punched rather than slapped the complainant in the face;
(iii) failing to adequately consider a fine, community based order, an intensive supervision order or a suspended sentence as sentencing options for the appellant;
(iv) sentencing the appellant to a custodial term.
(b) In any event, the sentence was imposed by the learned Magistrate was manifestly excessive in all the circumstances particularly given:
(i) the appellant's personal antecedents;
(ii) the 'victim impact statement' by the complainant."
18 The first ground here is that the learned Magistrate failed to take into account that the appellant pleaded guilty at the earliest opportunity.
19 A plea of guilty is a mitigating factor and the earlier the plea is made the greater mitigating effect it has (Sentencing Act 1995 (WA)). Section 8(4) of the Sentencing Act provides that:
"If, because of the mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
(Page 9)
20 It is true that whether a particular mitigating factor should be given weight in a particular case and if so, to what extent, must depend upon the circumstances of the case and it is only if a sentence is reduced by reason of such a factor that s 8(4) requires the sentencing court to expressly refer to it. In other words, if the sentencing court does not reduce the sentence on that account, the section does not require mention to be made of it (Bates v Wheatley [2000] WASCA 38 per Templeman J at [29]-[30]). His Worship is an experienced Magistrate and must be taken to be aware of the requirements of s 8(4). The conclusion to be drawn from his failure to mention the appellant's pleas of guilty is that he did not regard them as having any mitigating effect. In Holland v The Queen [1999] WASCA 43 Kennedy J said:
"No reference either by counsel or her Honour was made to the applicant's early plea of guilty and it should, I consider, be assumed that no allowance was made by her Honour for that early plea … In my opinion, a reduction in the sentences should have been made on this account." [17]
21 In the circumstances of this case and particularly having regard to the fact that the victim, the appellant's mother, would clearly have been a most unwilling witness, he should have been given credit for his plea of guilty. His Worship was in error in failing to do that.
22 With respect to ground (a)(ii) it is clear the learned Magistrate, perhaps not surprisingly, was very much influenced by the fact that the victim of the appellant's assault was a woman, and even worse, was his mother. However, a reading of the transcript leads to the strong impression that his Worship's judgment was clouded by that reaction and he proceeded on a view of the facts which took them as being significantly more serious than was admitted.
23 At the outset, the prosecutor had put (at AB 17) that the argument resulted in the appellant:
"… punching the complainant to the right cheek causing a visible mark".
- Counsel for the appellant however, said (AB 18) he was instructed that:
"… it's a slap rather than a punch."
(Page 10)
- steps to remedy with the assistance of his family, there occurred the following exchange (AB 20):
"HIS WORSHIP: But he's not. He assaults his mother, punches her in the face.
MR FRASER: Yes, sir. He (sic) genuinely remorseful for that, but as I stated, when people are trying to beat drugs it is a difficult problem to resolve."
"… as low grade as one can get. That really is as low grade as one can get, to hit your mother."
- and when imposing the sentence of 5 months imprisonment, said:
"You do not punch women in the face."
27 It is quite clear his Worship regarded the fact that the assault was a punch to the face of the appellant's mother as a significantly aggravating fact and his sentence reflected that view of the gravity of the offence. Yet that fact was denied by the appellant. It was not open to his Worship to sentence on that basis unless evidence had been led about that and he was satisfied of it beyond reasonable doubt. The allegation that it was a punch being disputed by the appellant and the prosecution not seeking to lead evidence about it, his Worship was constrained to sentence the appellant on the basis the blow was a slap not a punch (Langridge v The Queen (1996) 17 WAR 346). His Worship accordingly imposed sentence on a view of the facts which was not open to him and the exercise of his sentencing discretion thereby miscarried.
28 Grounds (a)(iii), (iv) and (b) may be dealt with together.
29 Although the appellant had a reasonably extensive list of previous convictions, most were for traffic and relatively minor drug and behavioural offences. I have already mentioned the more serious ones
(Page 11)
- which attracted an aggregate of 3 years imprisonment suspended for 2 years in April 2000. Nonetheless, the appellant had never previously been sentenced to a term of immediate imprisonment. Furthermore, his Worship apparently had no regard to the appellant's age (24 years), his largely successful efforts to overcome his drug addiction, his previous good employment history, the fact that he was in a stable de facto relationship and had a de facto partner and 3-year old child to support, that he had recently been given a preliminary medical diagnosis that he was suffering from Attention Deficit Disorder (as to the relevance of which see Cox v Whitehead & Ors [1999] WASCA 277 per Miller J at [16] and [22]) and the fact that his family, including his mother were supportive of him.
30 As to that last, it is noteworthy that his Worship made no reference whatsoever to the letter from the appellant's mother. Even in cases involving a history of domestic violence (which this case was not), the wishes of the family members being supportive of the offender may often be a relevant factor in mitigation. That has been described as the "welfare" approach as described by the Chief Justice in H v The Queen (1995) 81 A Crim R 88 at 98, where his Honour said:
"It is plain that the learned sentencing Judge fully appreciated the dilemma which any sentencing Judge faces in a case such as this. On the one hand, the community recognises that domestic violence is a significant problem and that where it has been perpetrated it constitutes a criminal offence which should be dealt with accordingly. It needs to be demonstrated that the courts are prepared to ensure that the victims of domestic violence are protected and that, where appropriate, sentences are imposed which will mark the community's disapproval of domestic violence and serve the ends of both personal and general deterrence. At the same time, the courts have been repeatedly asked to take full account of the position of the victims of such offences in the sentencing process. In addition, it has been recognised that full regard should be paid to the prospects of rehabilitation and the maintenance of the family unit where that is possible. This has sometimes been called the 'welfare approach'."
- (and see also Taylor v Fairman [2000] WASCA 121).
31 As I have observed, the present was not a case of domestic violence, properly so described. However, if it is proper to have regard to the wishes of the family members who are victims in those cases, the wishes
(Page 12)
- of the appellant's mother here were likewise entitled to proper consideration. That was particularly so given the significance which his Worship attached to the fact that the victim was the appellant's mother. In the circumstances I consider that his Worship's failure to have any regard to the mother's wishes was a failure to have regard to a relevant consideration.
32 His Worship regarded himself has having "no room to move" (AB 21). By that he seems to have meant he had no alternative but to impose a sentence of imprisonment. Having regard to the statutory injunction that imprisonment is a sentence of last resort (Sentencing Act 1995, s 39(1) and (3)) to the nature and circumstances of these offences, and against the background I have described above (and the appellant's continued efforts to rehabilitate himself with the support of his family in particular) imprisonment certainly was not the only and inevitable disposition open to him, and his Worship was in error in concluding that it was.
33 His Worship seems to have given no specific consideration to the offence of resisting police and the fact that he imposed a sentence of 2 weeks imprisonment to be served concurrently with the 5 months imprisonment imposed for the assault, suggests that would not necessarily have attracted a sentence of imprisonment on its own. In my view, having regard to the circumstances of that offence and the antecedents of the appellant, it would not have done.
34 It was for these reasons that following the hearing of this appeal on 15 June 2001, I upheld the appeal and set aside the sentences imposed by the learned Magistrate.
35 Having done that, it became necessary for me to impose sentences upon the appellant in respect of these offences. Having heard further submissions from counsel in that regard, I ordered the release of the appellant on a community based order for 6 months with program requirements in respect of his drug or alcohol problems and anger management counselling, in respect of each offence.
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