Snowball v Evans

[2019] WASC 236

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SNOWBALL -v- EVANS [2019] WASC 236

CORAM:   HILL J

HEARD:   26 JUNE 2019

DELIVERED          :   4 JULY 2019

FILE NO/S:   SJA 1038 of 2019

BETWEEN:   CHARLES TREAMINE JUNIOR SNOWBALL

Appellant

AND

TAYLOR ASHLEE EVANS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R S HUSTON

File Number             :   CA 5 of 2019; CA 5666 of 2019

Catchwords:

Criminal law - Appeal against sentence - Whether suspended sentence should have been activated - Where breaching offence did not, of itself, warrant a term of imprisonment - Totality of circumstances - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 10(3)
Sentencing Act 1995 (WA), s 84F

Result:

Leave to appeal allowed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Brown v State of Western Australia [2009] WASCA 74

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fox v Vinicombe [2016] WASC 349; (2016) 78 MVR 320

Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364

House v R [1936] HCA 40; (1936) 55 CLR 499

Salkilld v The State of Western Australia [2010] WASCA 22

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Trew v State of Western Australia [2004] WASCA 155

HILL J:

1. The appellant was convicted on 21 January 2019 after pleading guilty to one count of criminal damage or destruction of property to an offence committed on 3 January 2019.  The appellant was sentenced to eight months' imprisonment which was suspended on conditions for a period of 12 months.

2. On 3 February 2019, the appellant committed the offence of breach of a police order.  He pleaded guilty to this offence on 18 February 2019.  The learned sentencing magistrate imposed a fine of $1,000 for this offence.  As a result of the appellant's conviction for breach of a police order, the learned magistrate ordered that the appellant serve the previously imposed term of imprisonment of eight months that had been suspended in full.

3. The appellant seeks leave to appeal from the order that the appellant serve the previously suspended sentence. 

Notice of Appeal and Leave to Appeal

1. The appellant filed his notice of appeal on 11 March 2019.  The appeal has been brought within time.[1] 

   [1] Criminal Appeals Act 2004 (WA), s 10(3).

2. Under the notice of appeal dated 11 March 2019, there is one ground of appeal, namely that:

   The learned sentencing Magistrate erred in concluding that it would not be unjust to order that the appellant serve the sentence of imprisonment previously suspended in all of the circumstances in particular given [the] nature of the offence which gave rise to the need to consider activating the suspended imprisonment which did not of itself warrant punishment by imprisonment.

3. At the hearing, counsel for the appellant clarified that the alleged error is an error of law not fact.

4. 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 reasonable prospect of succeeding'.[3]  This means that the ground must have a rational and logical prospect of succeeding.[4]

   [2] Criminal Appeals Act 2004 (WA), s 9(1).

   [3] Criminal Appeals Act 2004, s 9(2).

   [4] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

5. On 29 April 2019, Acting Justice Strk ordered that the application for leave to appeal be heard together with the appeal.

Factual Background

1. At approximately 7:50 pm on 3 January 2019, the appellant went to an address with the intention of breaking the legs of a person with a black wooden stick known as a 'law stick'.  The person was not present at the address but a white Toyota LandCruiser, which the appellant believed belonged to the person, was there.  The appellant used the law stick to smash the rear window, the front windscreen, three left-hand side windows and the left rear vision mirror of the vehicle, rendering it undriveable.

2. The appellant pleaded guilty at the earliest opportunity on 21 January 2019.  In sentencing the appellant, the learned magistrate found that the offence was so serious as to 'warrant no other outcome other than a term of imprisonment'.[5]  Specifically, the learned magistrate found:

   [T]here's only one appropriate outcome for that behaviour, and that is a term of imprisonment. The question for me is whether it can be suspended.

   And by a slender margin, I would have to say, that it can be suspended. But it does seem as though you're willing to get some assistance in dealing with the matter more appropriately. What you need to understand though, is that if there was to be any repetition of that behaviour, or anything similar, any possibility of you being imprisoned in the next 12 months, then you will be required to serve the term of imprisonment of eight months that's conditionally suspended imprisonment for a term of eight months, suspended for 12 months.

   Any offence by you in the next 12 months that has the possibility of you being imprisoned, you will be brought back and re-sentenced.[6]

   [5] ts 21 January 2019, p 7.

   [6] ts 21 January 2019, p 7.

3. The learned Magistrate concluded by stating:

   [Appellant], please understand very clearly that you are very close to an immediate term of imprisonment today of eight months, even with your plea of guilty … Any breach or any further offending means that you will be brought back and re-sentenced, and almost certainly required to serve the full term of eight months.[7]

   [7] ts 21 January 2019, p 8.

4. Less than two weeks later, at approximately 4:50 am on 3 February 2019, the appellant was served with a police order which, inter alia, prevented him from entering or remaining at the address of the protected person.

5. At approximately 7:05 am on the same day, the police attended the address of the protected person to check on her welfare.  She was not at this address but the police found the appellant asleep in a bedroom and arrested him.  When arrested, the appellant stated to police 'She's not even here.  She's staying at her mother's'.

6. At the hearing before the learned magistrate, counsel for the appellant submitted that it would be unjust to order the appellant to serve the previously suspended term of imprisonment because this offence was of a different type, it related to a different complainant, and was a breach at the lower end of the offence that did not, of itself, warrant a term of imprisonment.  The appellant was said to still have outstanding treatment needs and had been compliant with the conditionally suspended imprisonment order.  Counsel requested that the court allow the conditionally suspended order to continue.[8]

   [8] ts 18 February 2019, p 6.

7. In sentencing the appellant for the breach of the police order, the learned magistrate referred to the circumstances of the breach and specifically noted that there was no indication of aggression, violence, damage or physical harm to a person.  His Honour noted, however, that the breach displayed a lack of regard by the appellant for the order made under the Restraining Orders Act 1997 (WA).[9]

   [9] ts 18 February 2019, p 7.

8. The learned magistrate then considered the appropriate order that should be made in respect of the conditionally suspended sentence.  After referring to his previous sentencing remarks and the warnings that had been given, the learned magistrate stated:

   It's not in issue that just 14 days later, two weeks after that sentencing hearing and after the court having taken the time as it should to clearly explain to Mr Snowball what the consequences would be, he has committed the further offence of breaching the order made under the Restraining Orders Act. It is the case that it's a different type of offending – that has been pointed out by [counsel] – and that it's a different complainant, but that in itself, in my view, would not make it unjust for the suspended term to descend upon Mr Snowball. [10]

   [10] ts 18 February 2019, p 8.

9. The learned magistrate, after referring to the Sentencing Act 1995 (WA), s 80 and, in particular, s 80(3), stated:

   [I]n terms of the circumstances that have arisen or become known since the suspended imprisonment order was imposed, that is, in the two weeks after the sentencing on 21 January 2019, I have not been informed of any circumstances that are in any sense different to what existed on 21 January. The treatment needs and the difficulties that Mr Snowball was experiencing on 21 January are no different to the circumstances that presented on 3 February when he committed the further offence.

   So in terms of circumstances that have arisen or become known since the suspended imprisonment sentence was imposed, it seems to me that, in essence, the only new circumstances that have arisen or become known really is a restating of what took place at the original sentencing, that he has needs and that the needs aren't being or haven't been properly addressed, and in terms of him having taken himself off to get some help after 3 February in terms of what he accepts took place, I'm not satisfied that those circumstances in themselves would make it unjust for the term of imprisonment to now descend upon him.[11]

   [11] ts 18 February 2019, p 9.

Sentencing for a Breach of Conditional Suspended Sentence

1. Section 84F of the Sentencing Act1995 prescribes how the learned sentencing magistrate was required to deal with the appellant.  Relevantly, this section provides that:

   (1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of CSI, a court that must deal with the person under this section must deal with the person by one of the following methods -

   (a)unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

   (b)unless an order under this paragraph, paragraph (a) or section 84L(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

   (c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

   (d)it may fine the person not more than $6 000 and make no order in respect of the CSI.

   (2)The powers in subsection (1) may be exercised as often as is necessary.

   (3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the CSI was imposed.

2. The legislative policy of the Sentencing Act1995, as set out in s 84F(3), is that, prima facie, the court is to order that the suspended term be served.[12]

   [12] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [34].

Principles to be applied

1. The principles applicable to sentencing on breach of a suspended imprisonment order are not in dispute.  The court must consider all material circumstances, including the period of suspended imprisonment and the circumstances of the offence for which that sentence was imposed, the nature of the offence which gave rise to the need to consider whether to activate the suspended sentence, and when it occurred within the period of suspension.[13]

   [13] See Hall v The Queen; Trew v State of Western Australia [2004] WASCA 155; Brown v State of Western Australia [2009] WASCA 74.

2. The appellant carries the forensic onus to persuade this court that the sentencing magistrate erred in failing to decide that it would be unjust to order that the suspended period of imprisonment be served.  The question for this court is not whether this court would have arrived at the same or different decision to his Honour but whether it was not open to his Honour to do what he did.

3. On an appeal against the failure to suspend imprisonment, the appellant may show error if he can demonstrate that the sentence imposed is unreasonable or unjust.  This requires the appellant to establish that the type of sentence imposed for the count of criminal damage, namely imprisonment to be served immediately, was not reasonably open to the learned magistrate in the exercise of  sound discretionary judgment. 

4. This court may also intervene if it is apparent that the primary court has acted upon a wrong principle or taken into account extraneous or irrelevant matters or may have mistaken the facts or not taken the relevant matters into account.[14]

   [14] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3], [57] ‑ [61]; House v R [1936] HCA 40; (1936) 55 CLR 499, 505.

Disposition of appeal

1. The ground of appeal was confirmed by counsel for the appellant to be an error of law and not fact.  The difference between an error of law and error of fact was summarised by Owen JA in Salkilld v The State of Western Australia as follows:

   Failure to take into account a relevant consideration is an error of law but a failure to give it sufficient consideration is a question of weight and is an error of fact.  To make good an allegation of error of fact of that nature will usually involve an argument that the sentencing discretion, in reality, has not been exercised at all.[15]

   [15] Salkilld v The State of Western Australia [2010] WASCA 22 [19].

2. Counsel for the appellant submitted that the learned Magistrate had not considered the totality of the circumstances in determining whether it was unjust to order the appellant to serve the previously suspended sentence.  In particular, counsel referred to the nature and facts of the breach offence, which, of themselves, did not warrant a term of imprisonment.  This, in their submission, rendered it unjust for the appellant to serve the previously suspended sentence.  

3. Counsel submitted that the totality of the circumstances that needed to be considered in this case included the nature of the breaching offence (which was at the lower end of the scale for offences of this nature), the fact that the appellant had taken steps to engage with the conditions of the order but had not yet had the full benefit of the orders in addressing his needs, and that the breach occurred early in the 12 month suspension period before the appellant had the benefit of the conditions of the order.

4. Counsel for the appellant also referred to the original sentencing remarks of the learned magistrate in imposing the conditional suspended sentence in warning the appellant that any breach would result in him being required to serve the period of imprisonment and failing to refer to the qualification 'unless it decides it would be unjust to do so' as demonstrating that his Honour did not apply the correct test.[16]

   [16] ts 26 June 2019, pp 12 - 14.

5. Counsel for the respondent submitted that the learned magistrate considered all relevant factors in determining it was not unjust to order the appellant serve the term of imprisonment previously suspended and that the appellant had not demonstrated any error in his Honour's reasons.  Specifically, the relevant factors were the circumstances that have arisen since the conditionally suspended sentence was imposed, the period of the suspended term, the circumstances of the offence for which the suspended term was imposed, the nature of the breaching offence (in particular whether it was trivial or carried a term of imprisonment) and when it occurred within the suspension period.[17]

   [17] ts 26 June 2019, pp 19 - 20.

6. The question for the court at the appellant level is whether in all the circumstances presented to the learned magistrate on 18 February 2019 and taking into account the prima facie position set out in the Sentencing Act 1995, s 84F(3), the sentence of eight months' imprisonment for the original charge of criminal damage was open to him. In my view, while I might well have reached a different decision, I cannot conclude that this sentence was not open to the learned magistrate and no error has been demonstrated by the appellant.

7. From a fair reading of the sentencing remarks on 18 February 2019, the learned magistrate was aware that the breaching offence, of itself, did not warrant imprisonment.  However, this needed to be weighed against the other matters that his Honour was required to have regard to; namely the period of suspended imprisonment, the circumstances of the offence for which that sentence was imposed, when it occurred within the period of suspension, and whether any circumstances had arisen since the imposition of the suspended sentence which would render it unjust to order the appellant to serve the period of suspended sentence.

8. The learned magistrate referred to each of these matters in reaching his decision, namely the circumstances of the original offence which was a serious one, that the re‑offending occurred within two weeks of the suspended term being imposed and that there were no new circumstances that had arisen or become known since the date the sentence was imposed.[18]

   [18] ts 18 February 2019, pp 8 - 9.

9. The fact that the breaching offence did not warrant imprisonment is not sufficient, of itself, to render it unjust that the original sentence be served.[19]  In Hall v The Queen,[20] Murray J stated:

   The breach of the restraining order … may have been relatively trivial and may not have warranted punishment by imprisonment, but nonetheless, the order had been made and served upon the applicant and there is no suggestion that he did not understand its terms.  Despite that, in circumstances which he must have appreciated breached the order, he ignored it …  not only was the applicant not able to behave appropriately of his own volition, but he was not deterred by the making of the court order.

   In those circumstances it seems to me that it cannot be said that the learned Judge at first instance erred in failing to decide that it would be unjust to order the service of the suspended imprisonment ...

   [19] Hall v The Queen [33], [38]; Brown v State of Western Australia [30].

   [20] Hall v The Queen [38] - [39].

10. I respectfully agree with his Honour's conclusion.

11. In all of the circumstances, I am not persuaded that the learned magistrate's sentence was not reasonably open to the learned magistrate in the exercise of sound discretionary judgment. 

12. I have considered whether it appears from the learned magistrate's sentencing remarks that his Honour acted upon a wrong principle, took into account extraneous or irrelevant matters, may have mistaken the facts, or not taken the relevant matters into account.

13. In considering the sentencing remarks, it is important to note the role of the appeal court.  As stated by Allanson J in Fox v Vinicombe:[21]

    [I]t is well accepted that an appeal court does not scrutinise the reasons given by magistrates with an eye keenly attuned to the identification of error.  Of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts. 

    [21] Fox v Vinicombe [2016] WASC 349; (2016) 78 MVR 320 [18].

14. In my view, there can be no doubt that the learned magistrate understood the factors he was required to consider under the Sentencing Act 1995 s 84F, including whether it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed. His remarks in sentencing the appellant on 18 February 2019 do not indicate a failure to understand the relevant considerations under s 84F or that the result of any breach had been pre‑determined. In my view, his Honour's comments on 21 January 2019 are consistent with his obligations under the Sentencing Act1995, s 34(1)(b) to warn the offender of what might happen in the case of a future offence.

1. In any event, in imposing the original sentence on 21 January 2019, the learned magistrate referred to any further offence as giving rise to an obligation to re‑sentence, which is the case, and that it would 'almost certainly' require the term of imprisonment to be served.  In my view, this correctly summarises the obligations of the court under the Sentencing Act1995, s 84F(3).

2. In my view, the learned magistrate did not fail to take into account any relevant consideration and, accordingly, no error of law has been demonstrated.

3. Counsel for the appellant did not advance the argument that the ground of appeal was an error of fact, namely that the learned magistrate failed to give sufficient weight to the nature of the breach offence in reaching his decision.  As noted above, to succeed on this ground, it would be necessary for the appellant to show that the sentencing discretion had not been exercised at all by his Honour. 

4. On a reading of the learned magistrate's sentencing remarks in their entirety, I do not consider that his Honour acted on a wrong principle or did not take into account all relevant matters.  For this reason, it cannot be said that the sentencing discretion was not exercised at all by the learned magistrate.

5. I note that his Honour referred to the wrong section of the Sentencing Act 1995 in sentencing the appellant as he referred to s 80 and not s 84F.[22]  These sections are in identical terms and accordingly, the test under each section is the same.[23]  This incorrect reference does not indicate that his Honour did not apply the correct test or otherwise was led into error.

   [22] ts 18 February 2019, p 9.

   [23] See for example Auckram v Allen [2016] WASC 107 [20]; Zinga v Johnson [2012] WASC 216 [34].

6. As a result, while I would grant leave to appeal, the appeal must be dismissed.

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 Hill

4 JULY 2019