Snowball v McDonald
[2019] WASC 108
•5 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SNOWBALL -v- MCDONALD [2019] WASC 108
CORAM: ARCHER J
HEARD: 26 FEBRUARY 2019
DELIVERED : 5 APRIL 2019
FILE NO/S: SJA 1098 of 2018
BETWEEN: ARNOLD JAMES SNOWBALL
Appellant
AND
SCOTT WILLIAM MCDONALD
First Respondent
TIMOTHY MASSEY
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J SCUTT
File Number : CA 484 of 2019, CA 769 of 2018
Catchwords:
Criminal law - Appeal against sentence - Manifestly excessive - Limited means - Forfeiture of personal undertaking
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 39, s 53
Result:
Leave to appeal granted and appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | K J Farley SC |
| First Respondent | : | R N Paljetak |
| Second Respondent | : | R N Paljetak |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
C E Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144
Gaskell v The State of Western Australia [2018] WASCA 8
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Ninyette v Holmes [2015] WASC 287
Pavlitsas v Rowe [2013] WASC 233
Samuels v The State of Western Australia [2005] WASCA 193 (2005) 30 WAR 473
Sgroi v R (1989) 40 A Crim R 197
Wilson v The State of Western Australia [2010] WASCA 82
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
C E Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144
Gaskell v The State of Western Australia [2018] WASCA 8
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Ninyette v Holmes [2015] WASC 287
Pavlitsas v Rowe [2013] WASC 233
Samuels v The State of Western Australia [2005] WASCA 193 (2005) 30 WAR 473
Sgroi v R (1989) 40 A Crim R 197
Wilson v The State of Western Australia [2010] WASCA 82
ARCHER J:
Introduction
On 3 July 2018, the appellant Mr Snowball was sentenced by her Honour Magistrate Scutt in relation to two offences. The magistrate fined Mr Snowball $1,200 for disobeying a witness summons and $400 for failing to appear as required by his bail undertaking. Mr Snowball was further ordered to forfeit the amount of his personal undertaking of $3,000 as a consequence of breaching his bail.
Mr Snowball seeks leave to appeal against the fines.
The application for leave to appeal was ordered to be heard at the same time as the appeal.
Ground of appeal
The single ground of appeal is that the fines were manifestly excessive.
The facts
On 20 September 2017, Mr Snowball witnessed the start of an incident at an address in Carnarvon.[1] He reported the incident to the police and provided a written statement as to what he observed.
[1] See ts 12, 2 July 2018 and ts 3, 3 July 2018.
As a result, Mr Snowball was summonsed to appear as a witness at the trial of a Mr Dickerson, to be heard in the Magistrates Court at Carnarvon on 6 March 2018. It was alleged Mr Dickerson had committed a serious domestic violence offence involving a weapon.[2]
[2] ts 7, 3 July 2018.
The witness summons was served on Mr Snowball on 26 December 2017 at the Carnarvon Regional Hospital and he was given conduct money.
A week before the trial date, the police saw Mr Snowball at a party and reminded him of his obligation to attend the trial. The police could see that Mr Snowball was intoxicated.[3]
[3] ts 5, 3 July 2018.
Mr Snowball failed to answer the summons, as did two other civilian witnesses, being the complainant and a Ms Hughes. The trial was adjourned to the following day and arrest warrants were issued for the three witnesses. Ms Hughes was arrested that day and gave evidence the following day, 7 March 2018. The trial was then again adjourned to 3 April 2018 to see if Mr Snowball and the complainant could be found.
It appears that on 2 April 2018 the police saw Mr Snowball in the community and told him to attend the station the next day as there was a warrant for his arrest.[4] It appears that Mr Snowball was drinking alcohol on a footbridge at the time the police spoke to him.[5] The magistrate accepted that it seemed that Mr Snowball was intoxicated on this occasion also.[6]
[4] ts 5, 3 July 2018.
[5] ts 8, 2 July 2019. This was not challenged by the prosecution.
[6] ts 6, 3 July 2018.
Mr Snowball did not attend the station, or court, the next day. Neither did the complainant. On that date, 3 April 2018, Mr Dickerson was acquitted on the basis that there was insufficient evidence capable of sustaining the charges against him.[7]
[7] ts 7 ‑ 8, 3 July 2018.
Mr Snowball was arrested two days later.[8] He was charged with an offence of disobeying a summons (summons offence) and pleaded guilty at his first court appearance on 6 April 2018.
[8] ts 5, 3 July 2018.
Mr Snowball's sentencing for the summons offence was adjourned until 25 June 2018 so that a neuropsychological report and pre‑sentence report could be prepared.[9]
[9] The reports were not ultimately prepared.
Bail was set on conditions, including a personal undertaking in the sum of $3,000 and a surety in the sum of $3,000. Mr Snowball was unable to obtain a surety in that amount and remained in custody. On 18 April 2018, the surety was reduced to $200. The personal undertaking remained at $3,000. Mr Snowball was released on bail on 20 April 2018 to appear on 25 June 2018.
Mr Snowball failed to appear on 25 June 2018 and a warrant was issued for his arrest.
On 2 July 2018, Mr Snowball was arrested, charged with breaching his bail and pleaded guilty. He was remanded in custody for sentencing the following day in relation to both the summons offence and the bail offence.
On 3 July 2018, Mr Snowball was sentenced. The learned magistrate concluded that imprisonment was not an appropriate option only because Mr Dickerson's acquittal was inevitable and Mr Snowball had spent 18 days in custody for these offences.[10] Her Honour imposed a fine of $1,200 for the summons offence and $400 for the bail offence. Mr Snowball was further ordered to forfeit his personal undertaking of $3,000 as a consequence of breaching his bail.
[10] ts 7 – 8, 3 July 2018.
Appeals from magistrates' decisions
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[11]
[11] Criminal Appeals Act 2004 (WA), s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[12] This means that the ground is required to have a real, rational and logical prospect of succeeding.[13]
Principles relating to sentencing appeals
[12] Criminal Appeals Act, s 9(2).
[13] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[14] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[15]
[14] Ninyette v Holmes [2015] WASC 287 [56.3].
[15] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
Allegation of manifest excess
A ground of appeal that alleges a sentence was manifestly excessive is an assertion of implied error. To succeed, Mr Snowball must demonstrate that the disposition is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[16]
[16] Gaskell [127(1)].
In determining whether a sentence is manifestly excessive, the sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.[17]
Relevant considerations
Maximum penalties
[17] Gaskell [127(2)].
The maximum penalty for the offence of disobeying a witness summons without reasonable excuse is a fine of $12,000 or imprisonment for 12 months.[18] The maximum penalty for the offence of failing to comply with a requirement of a bail undertaking without reasonable cause is a fine of $10,000 or 3 years imprisonment, or both.[19]
Comparable cases
[18] Criminal Procedure Act 2004 (WA), s 181(1).
[19] Bail Act 1982 (WA), s 51(6).
It was common ground that there is no established range of penalties for either offence.[20]
Level of seriousness
[20] In relation to bail offences, see Pavlitsas v Rowe [2013] WASC 233 [16] (Hall J).
In evaluating the seriousness of Mr Snowball's offending, the court must have regard to the statutory penalty for the offence, the circumstances of the commission of the offence, and any aggravating or mitigating factors.[21]
[21] Sentencing Act 1995 (WA), s 6(2).
The facts of each offence are set out above.
Summons offence
The learned magistrate found that Mr Snowball had placed little importance on his obligation to attend to give evidence. Her Honour did not accept that Mr Snowball had failed to answer the summons because he was incapable of remembering his obligations. On the other hand, the magistrate did not find it proved that the appellant had deliberately flouted the summons.[22] These findings were not challenged by either party.
[22] ts 6 ‑ 7, 3 July 2018.
Mr Dickerson had been in custody for some five months awaiting a trial that ultimately did not occur. However, counsel for the respondents in this appeal fairly pointed out that Mr Dickerson had not been in custody solely in relation to the charge about which Mr Snowball was to give evidence.
The serious allegation Mr Dickerson faced was not tested in court. However, Mr Snowball was not an eyewitness, and, in the absence of the complainant, the learned magistrate found that Mr Dickerson's acquittal was inevitable.[23]
[23] ts 7 ‑ 8, 3 July 2018.
The failure to answer a summons to attend court to give evidence in a trial is, in itself, serious. It is an obligation imposed by the court. When a witness fails to comply with that obligation, the court's ability to deal with contested allegations of criminal conduct may be seriously impeded or defeated altogether. This is particularly serious where, as here, the trial involves a serious charge and the accused spends time in custody.
However, in this case, Mr Snowball's failure to attend was not why Mr Dickerson was acquitted. Further, Mr Snowball's failure occurred because he failed to give proper weight to his obligation to attend court, not because he deliberately flouted the summons.
In my view, in all of the circumstances, the summons offence was not towards the high end of the scale. However, nor was it at the lower end. Mr Dickerson faced a serious charge. Mr Snowball placed little importance on his obligation to attend court to give evidence. Although the acquittal was inevitable, it is nevertheless important that he and others be deterred from treating the obligation to attend court to give evidence lightly.
Bail offence
The magistrate did not make any findings of fact in relation to the bail offence.
Counsel for the respondents pointed out that the bail offence was a breach of a court order, committed when Mr Snowball was on bail for breaching the witness summons, another court order. On its face, it was a serious breach of bail.
Mr Snowball's counsel at first instance submitted to the magistrate that Mr Snowball had been released from Greenough Regional Prison and given a concession bus ticket to get back to Carnarvon. However, when he attended the bus station, he was not permitted to get on the bus because he did not have his concession card, which was in his wallet in Carnarvon. He had subsequently been admitted to hospitals in Perth, Geraldton and Carnarvon. Mr Snowball said that, after those hospital stays, he knew he was in breach of his bail but was too frightened to hand himself in.[24] The magistrate noted that Mr Snowball could have asked the hospital to write a letter. Mr Snowball's counsel accepted that Mr Snowball did not have a lawful excuse and that that was why he had pleaded guilty. The circumstances asserted by counsel were not otherwise challenged.
[24] ts 2 ‑ 3, 3 July 2018.
In my view, in all of the circumstances, the breach of bail was at the low to mid level of seriousness.
Personal circumstances
Mr Snowball pleaded guilty to each offence at the earliest reasonable opportunity.
Mr Snowball did not have the mitigating factors of youth or good antecedents. He is now 46 years old. He has an extensive criminal record, including multiple convictions of violence.
He has 15 convictions for breach of bail undertakings or bail conditions (including two offences of breaching protective bail conditions). For these bail offences, he received penalties ranging from $100 to $500 (and higher fines imposed globally for multiple offences) and short prison terms concurrent on other terms. For one bail offence, it is recorded that he forfeited $500 in addition to being fined $200.
He has five convictions of giving false personal details to the police, most recently in June 2016. He has breached a suspended sentence and probation. He has two convictions for escaping lawful custody.
It appears that Mr Snowball has a problem with alcohol. In the sentencing proceedings, his counsel submitted that Mr Snowball had a serious alcohol and cannabis problem. His counsel said that, as a result, Mr Snowball lived a lifestyle where days and weeks meant little to him.[25] The prosecutor did not suggest otherwise.[26] The magistrate did not accept his problem was such that he was always intoxicated or that he lacked the capacity to remember anything. However, her Honour did not indicate that she did not accept he had a serious alcohol problem.
[25] ts 4 ‑ 5, 6 April 2018 and ts 6, 2 July 2018.
[26] ts 10, 6 April 2018.
Mr Snowball receives a disability support pension. While there was no other direct evidence of his means, I am willing to infer from the circumstances that his means were limited.[27]
Relevance of the appellant's means
[27] And see ts 16 ‑ 17.
Section 53 of the Sentencing Act 1995 (WA) provides:
(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account ‑
(a)the means of the offender; and
(b)the extent to which payment of the fine will burden the offender.
(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).
(3)A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.
In Hussaini v Szolnoski,[28] Hall J said:
The reference to div 1 of pt 2 of the Sentencing Act is to the general sentencing principles. These include that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1). This means that whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.
[28] Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].
In having regard to the burden that a fine may impose on an offender, the court should not overlook the fact that a fine is a punishment and is intended to be a burden on the offender, to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[29]
[29] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16] (McKechnie J).
The legislative regime provides a mechanism by which an offender may apply for a time to pay order in respect of the fine.[30] The fact that there is a mechanism to ameliorate the immediate effects of a heavy fine is a factor relevant to sentencing.[31]
[30] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 32(1).
[31] Al Hussein [11] (McKechnie J); C E Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144 [90] (Kenneth Martin J).
In Sgroi v R,[32] Malcolm CJ, with whom Rowland J agreed said:
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means or capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.
Forfeiture of the bail undertaking
[32] Sgroi v R (1989) 40 A Crim R 197, 201.
As a condition of his bail, Mr Snowball had undertaken to forfeit $3,000 if he failed to appear in court on the required date. The magistrate ordered that that amount be forfeited, under s 57(1) of the Bail Act 1982 (WA). As I will explain, this cannot be regarded as part of his sentence for the bail offence.
Section 51 of the Bail Act 1982 deals with the offence of failing to comply with a bail undertaking. The penalty is set out in s 51(6). Section 51(7) provides that, 'in addition to any penalty', the court may order the offender to pay an amount towards defraying the costs resulting from his failure to comply with his bail undertaking. Forfeiture is not mentioned in s 51. Forfeiture is dealt with in s 57 and s 58.
Section 58 applies where a year has passed since the accused failed to appear as required by his bail conditions and the accused has not been located. At that time, the full amount of the bail undertaking is automatically forfeited.
Section 57 applies where the accused has been convicted of an offence against, among other sections, s 51. Under s 57, the court must order the forfeiture of the full amount of the bail undertaking unless the accused demonstrates that, by reason of a change in circumstances, it would cause excessive hardship. Clearly, forfeiture under s 57 is additional to, and independent of, the imposition of a penalty for the offence.
Forfeiture is not referred to in s 39 of the Sentencing Act as being a sentencing option or as forming part of a sentence.
Both s 39[33] of the Sentencing Act and s 6 of the Criminal Appeals Act draw a distinction between the sentence imposed and an order made as a result of conviction.
[33] Compare s 39(7) and (8) to s 39(6).
Although forfeiture of a bail undertaking is not to be treated as part of the sentence, I considered whether it may operate as a mitigating factor.
Section 8(1) of the Sentencing Act provides that mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 8(3) expressly provides that the fact that criminal property confiscation has occurred or may occur is not a mitigating factor.[34] This suggests that, but for the express exclusion, criminal property confiscation could have been mitigating. There is no express exclusion for forfeiture of bail undertakings.
[34] Although the wording has been amended over time, the intention has been consistent. Section 8(3) as originally enacted provided that the 'fact that property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence is forfeited to the Crown under a written law is not a mitigating factor'. It was amended in 2008 to make plain that even the confiscation of legitimately acquired assets could not be a mitigating factor (by Act No. 26 of 2004).
I am inclined to the view that the forfeiture of a bail undertaking may properly cause a court to conclude that the extent to which the offender should be punished is decreased. However, there is no need to resolve the issue in this case. That is because it was common ground that the forfeiture of Mr Snowball's bail undertaking was relevant to the assessment of his means and the extent to which payment of the fine would burden him. In my view, given Mr Snowball's limited means, once regard is had to the forfeiture in this assessment, it would have no additional effect on the assessment of the proper sentence even if it was permissible to treat forfeiture as mitigating.
Time in custody
The appellant spent 16 days in custody in relation to the summons offence, from 5 April 2018 to 20 April 2018. He was also in custody from 2 July 2018 to 3 July 2018, in relation to both offences.
Analysis
The individual fines imposed were not, of themselves, manifestly excessive. The fine of $1,200 for the summons offence was 10% of the maximum penalty. The fine of $400 for the bail offence was 4% of the maximum.
Senior counsel for Mr Snowball submitted that the summons offence raised two competing public interests: on the one hand, the need to deter witnesses from failing to attend court and, on the other hand, the undesirability of discouraging members of the public from reporting crimes. I accept that it is undesirable to discourage members of the public from reporting crimes. However, I do not accept that penalising those who fail to answer witness summonses would deter members of the public from reporting crimes. Even if it might, it would not operate as a deterrence to such an extent as to constitute a competing public interest of any significant weight.
General deterrence is a significant factor in these types of offences. Both offences can have significant impacts on the justice system. Personal deterrence was a significant factor in Mr Snowball's case, in view of his criminal history and the reasons why he committed the offences. Mr Snowball needs to be deterred from giving little weight to obligations to answer a witness summons. Mr Snowball needs to be deterred from failing to answer his bail.
In relation to the summons offence, Mr Snowball spent 16 days in custody because he could not meet the bail conditions.
Given Mr Snowball was granted bail after pleading guilty to the summons offence, but was remanded in custody after being arrested on the bail offence, I consider that the two additional days in custody should be taken into account in relation to the bail offence.
Mr Snowball's means are limited. Although he will be permitted to pay the fines over time, the burden on him will be substantial. Further, Mr Snowball's $3,000 bail undertaking was forfeited, further reducing his means and increasing the burden of a fine.
However, had it not been for the time in custody, I would not have been persuaded that the fine for the summons offence was manifestly excessive. Failing to answer a witness summons is a serious offence and deterrence is an important consideration. However, having regard to the 16 days in custody for this offence, and Mr Snowball's limited means, it was manifestly excessive.
In addition, had it not been for the forfeiture of his bail undertaking and the two days in custody to be taken into account in relation to the bail offence, I would not have been persuaded that the fine for the bail offence was manifestly excessive. This is so even having regard to Mr Snowball's limited means. Breaching bail is a serious offence. Even for an offender of limited means, a fine of $400 is well within the appropriate range. However, when regard is had to the fact that Mr Snowball's limited means will be further affected by the forfeiture, the burden of the fine will be substantial. Combined with the two days in custody, it was manifestly excessive.
Conclusion on appeal
For these reasons, I grant leave to appeal, uphold the ground of appeal and set aside the fines imposed by the magistrate.
I will hear from the parties as to the resentencing of the appellant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Archer3 APRIL 2019
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