Stansfield v Director of Public Prosecutions for Western Australia
[2023] WASC 295
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STANSFIELD -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 295
CORAM: FORRESTER J
HEARD: 3 AUGUST 2023
DELIVERED : 3 AUGUST 2023
PUBLISHED : 7 AUGUST 2023
FILE NO/S: SJA 1049 of 2023
BETWEEN: DANNY FRANCIS STANSFIELD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1049 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE C ROBERTS
File Number : JO 7899 - 7900 of 2022, JO 9535 of 2022, JO 9541 of 2022, JO 9543 - 9552 of 2022, JO 10254 - 10258 of 2022 & PE 46484 - 46485 of 2022
Catchwords:
Criminal law - Single judge appeal - Appeal against sentence - Whether magistrate failed to consider factors in s 89(4) of the Sentencing Act 1995 (WA) - Whether appellant denied procedural fairness by magistrate failing to seek submissions from parties before denying parole eligibility
Legislation:
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused on each ground
Appeal dismissed
Representation:
Counsel:
| Appellant | : | F E Sellers |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gardner v Caporn [2005] WASCA 153
House v R [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McColl v Roberts [2014] WASC 300
Moody v French [2008] WASCA 67
Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Sulieman v The State of Western Australia [2017] WASCA 26
Ugle v The State of Western Australia [2018] WASCA 97
FORRESTER J:
(This judgment was delivered extemporaneously on 3 August 2023 and has been edited from the transcript).
Introduction
On 15 May 2023, the appellant was sentenced in the Magistrates Court at Joondalup for 40 offences, including gaining benefit by fraud, aggravated assault occasioning bodily harm, receiving, stealing and criminal damage.
For 21 of the offences, he was sentenced to a total effective sentence of 1 year and 5 months' imprisonment, commencing on 16 November 2022. He was not made eligible for parole.
The appellant appeals against his sentence on the grounds that the learned magistrate:
(1)made an error of law in failing to consider the factors contained in s 89(4) of the Sentencing Act 1995 (WA); and
(2)denied the appellant procedural fairness by failing to seek submissions from the parties before denying eligibility for parole.
Sentencing proceedings
Charges JO 7899-7900/2022
The appellant and the complainant were in a de facto relationship for about 3 years. On 11 September 2022, the appellant saw the complainant's car parked at an address unknown to him. He believed a Hilux also at the address belonged to a male he had previously met and, out of jealousy, got out of his car and kicked the door panels of the complainant's car and the Hilux. The complainant came out of the premises and spoke to the appellant. He calmed down and left, but returned a short time later, rammed the Hilux twice and then got out of his car and kicked the door panels of the complainant's car again before returning to his own car. The total damage to the complainant's car was valued at $3,000. No charges were laid in relation to the Hilux.
Shortly after this, the complainant came out of the house to view the damage to her car. The accused then got out of his car and slapped her face, causing swelling to her eye and cheek and her nose to bleed. She later sought medical attention for her injuries.
JO 9535/2022
At 4.50 am on 11 November 2022 the appellant approached a car, opened the rear canopy, and stole a golf bag and clubs, a buggy and electrical devices to the value of $7,500. The offence was captured on CCTV. After later becoming aware that police were searching for the property, he left the golf clubs at his front door.
JO 9541/2022
Between 9.00 pm on 14 November 2022 and 6.00 am on 15 November 2022, the appellant was outside a house in Tapping. He smashed the front passenger window of a car at the premises, and stole tools and electronics totally valued at $3,000. Those items were later recovered that day when the appellant was located in a car and searched.
JO 9543-9552/2022
The appellant also broke into another car in Ashby that night, stealing a bank card (the sentence for that charge of theft is not the subject of appeal). When apprehended the appellant had already used the card to make ten fraudulent purchases, which resulted in charges of fraudulently obtaining a benefit.
PE 10254/2022
Between 7.30 pm on 1 November 2022 and 5.30 am on 2 November 2022, the appellant attended a street in Ashby, entered an unlocked car, rummaged through it and stole items valued at $1,710, and a bank card belonging to the complainant.
PE 10255-10258/2022
That bank card was used on 2 November 2022 to make four fraudulent transactions, resulting in charges of fraudulently obtaining a benefit.
PE 46484-46485/2022
Between 8.30 pm on 12 October 2022 and 9.00 am on 13 October 2022, a car was broken into in Maylands, and a purse containing a Commonwealth Bank key card was stolen, which the appellant later used for a fraudulent transaction. He was therefore charged with receiving and fraud.
Appellant's criminal history
The appellant's criminal history, even prior to the index offending, was very extensive, including:
(1)seven convictions for common assault, aggravated assault, or aggravated assault occasioning bodily harm in 2001, 2004, 2015, 2020 and 2021;
(2)nine convictions for unlawful damage or criminal damage in 1998, 2009, 2014, 2015 and 2020;
(3)15 convictions for fraud, attempted fraud or uttering with intent to defraud in 2005, 2011 and 2014;
(4)14 convictions for possessing a prohibited drug in 2000, 2001, 2005, 2006, 2011, 2014, 2015 and 2017;
(5)three convictions for possession of a weapon in 2001 and 2015;
(6)two convictions for receiving in 2014 and 2017 and 10 convictions for possession of unlawfully obtained property in 2005, 2014, 2015 and 2017.
(7)57 convictions for stealing (including one conviction for stealing as a servant and four convictions for stealing a motor vehicle) in 2001, 2002, 2004, 2005, 2007, 2011, 2014, 2015, 2017 and 2020 plus one conviction for attempting to steal a motor vehicle in 2014;
(8)five convictions for trespass or being on curtilage or premises without lawful excuse (this does not include convictions for burglary or attempted burglary) in 1998, 2001, 2002, 2006 and 2009;
(9)one conviction for armed robbery in 2002.
The appellant had previously been sentenced to imprisonment in 2003 (for burglary, breach of suspended imprisonment order), in 2005 (for burglary, stealing and traffic offences), in 2007 (for burglary), in 2009 (for burglary), 2011 (for burglary, fraud and stealing), 2014 (for steal motor vehicle, criminal damage, stealing), 2015 (for burglary, assault, stealing, criminal damage) and 2017 (steal motor vehicle, traffic offences, possess stolen or unlawfully obtained property).
The appellant had breached community based orders, intensive supervision orders and suspended imprisonment orders, for which he was dealt with in 1999, 2001, 2003, 2006, 2020 and 2021.
Submissions
The appellant's counsel at first instance filed written submissions on behalf of the appellant in advance of the sentencing.
The appellant was 43 years old at the time of sentencing, with a lengthy criminal and traffic history. His parents are alive, but have long been separated. The appellant has a strong relationship with his mother but does not speak to his father. The use of cannabis was normalised to him as he grew up, and he was introduced to it at the age of 12. He also was exposed to 'the normal push and shove and slaps', as he describes them, between his mother and partner as he grew up, and has concerns as to inappropriate aspects of the discipline meted out to him by his mother's partner.
He was educated to year 6, and is barely literate or numerate. He claims to have been diagnosed with dyslexia and ADHD before leaving school. He has no significant employment history, although he does have some qualifications which would enable him to work.
He has two adult children.
The appellant's offending was explained on the basis that it:[1]
… largely relates to his uncertainty, financially and residually, after his relationship breakdown, which occurred by virtue of his offending, after he came across his partner's car at another man's house.
[1] Written Submissions on behalf of accused before Magistrates Court dated 12 May 2023 [2] (Written Submissions before Magistrates Court).
It was submitted that, prior to the offending, the appellant had been in the most stable period of his life, with a positive relationship and operating two businesses. Having seen his partner's car at another man's house, he offended against her and her property and '[t]hereafter fell into his old pattern.'[2]
[2] Written Submissions before Magistrates Court [8].
The appellant was said to be keen to explore help with his mental health, as he was experiencing paranoia and was concerned he may have schizophrenia, but claimed to have been unable to access the desired assistance.
It was submitted that, while the plea of guilty was not made at the earliest opportunity, it should still attract a discount under s 9AA of the Sentencing Act.
The appellant's counsel conceded that, having regard to the appellant's previous criminal history for offences similar in nature to the assault occasioning bodily harm and criminal damage, imprisonment was appropriate in relation to JO 7899-7900 of 2022. However, he submitted that fines were appropriate for the other offences.
Reasons for decision
The learned magistrate considered it to be clear that the respondent had a methylamphetamine habit and was a violent person. He gave the appellant credit for his pleas of guilty. He noted the appellant's previous conviction for assaulting the same complainant and two others on other partners. His Honour considered the number and value of the thefts to be of 'particular concern' and described them as 'one of the lowest acts possible', taking it that the appellant was stealing to support his drug habit.
His Honour found that imprisonment was the only appropriate outcome on many of the charges, and indicated he would take into account the totality principle and mitigating factors. He did not identify the amount of the discount pursuant to s 9AA of the Sentencing Act.
The learned magistrate concluded his sentencing remarks in relation to the term of imprisonment by saying:[3]
So the net effect is that you have a one year and five month gaol term. I'm backdating that to 16 November, so you get six months credit already. Having regard to your antecedents and similar nature of offending, I make an order that you not be eligible for parole.
[3] Transcript, Western Australia Police Force v Danny Francis Stansfield, Magistrates Court of Western Australia, 15 May 2023, 12 (Transcript 15 May 2023).
When the accused asked 'So how long do I do?' his Honour responded:[4]
Well, you're going to one year and five months, reduced by a period of approximately six months. So it's about nine months - so it's about 11 months … But you speak to your lawyer about that; he can calculate it exactly for you.
[4] Transcript 15 May 2023, 13.
I do note at this point that the learned magistrate did not reduce the sentence by six months. He merely backdated it for the time the appellant had spent in custody. Accordingly, the time left to spend was approximately 11 months, but the sentence was not 'reduced' by six months.
Grounds of Appeal
The grounds of appeal are as follows:
(1)The sentencing magistrate erred at law by failing to consider the four factors contained in s 89(4) of the Sentencing Act.
(2)The magistrate's failure to seek comments from the defence or the prosecution before refusing to make a parole eligibility order amounts to a denial of procedural fairness.
Statutory framework
Appeals from a court of summary jurisdiction
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[5]
[5] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[6] meaning that the ground is required to have a rational and logical prospect of succeeding.[7] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[8]
[6] CA Act s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[8] CA Act s 9(3).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[9]
[9] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[10]
Eligibility for parole
[10] CA Act s 14(2).
Section 89 of the Sentencing Act relevantly provides:
(1)A court sentencing an offender to a fixed term of imprisonment may make an order (a parole eligibility order) that the offender be eligible to be considered for parole in respect of that term by the Prisoners Review Board.
…
(4)A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least one of the following 4 factors —
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d)any other reason the court considers relevant.
Appellant's submissions
On behalf of the appellant, it was submitted that the learned magistrate's reference to 'antecedents' and the 'similar nature of offending' was insufficient to satisfy any of the factors in s 89(4) of the Sentencing Act, including subs (4)(b).
The appellant complains that the reference to his 'antecedents' was made at a different stage of the reasons to the discussion of his criminal history. While it is accepted that his Honour could have been considering 'any other reason' pursuant to s 89(4)(d), it is contended that the justification of the appellant's 'antecedents' and similar nature of offending' was insufficient.
It is further submitted that the learned magistrate failed to provide counsel with the opportunity to address him as to parole eligibility. In circumstances in which neither party had referred to the issue in submissions, the appellant submits that he was therefore denied procedural fairness.
Accordingly, the appellant complained that there had been a miscarriage of justice, and the appellant should be made eligible for parole.
Respondent's submissions
The respondent submitted that the learned magistrate used language which was sufficient to indicate that he was satisfied that parole eligibility should be denied because of the factor in s 89(4)(b).
Further, having regard to the appellant's criminal history, the respondent submitted that it was plainly open for the learned magistrate to be satisfied that the criteria in s 89(4) were made out such that an order for parole eligibility should not be made, and there was no necessity for his Honour to alert counsel to the prospect that he would not make such an order.
Disposition
Ground 1
In Moody v French,[11] the majority said, of the proper construction of s 89:
Section 89(1) gives to the court a power to order that an offender be eligible for parole. However, that section must be read with s 89(4), which provides that a court may decide not to make a parole eligibility order if it considers that the offender should not be eligible for parole because of at least two of the four factors identified in that section. Accordingly, the word 'may' in s 89(1) is merely used to confer a power which is to be exercised in accordance with the provisions of s 89(4).
The combined effect of those subsections is that the court is required to make a parole eligibility order if only one or none of the four factors identified is present. The preponderance of authority reflects this by holding that the court's discretion whether or not to make a parole eligibility order is enlivened only if two or more of the four factors identified in s 89(4) are present.
[11] Moody v French [2008] WASCA 67 [47] - [48] (citations omitted).
At the time Moody was decided, s 89(4) of the Sentencing Act provided that at least two of the factors in (a) to (d) were required to enliven the discretion. The section was amended on 1 July 2017 such that only one factor now need be present before the discretion to refuse eligibility for parole was enlivened. However, subject to that modification, the principle in Moody continues to apply.
By ground 1, the appellant contended that the learned magistrate failed to consider the four factors contained in s 89(4) of the Sentencing Act. However, in argument, it became apparent that the real error alleged by ground 1 is that the learned magistrate did not address, in express terms, any of the factors set out in s 89(4), and accordingly, could not be said to have been satisfied that the discretion to refuse parole eligibility had been enlivened.
In denying parole eligibility, his Honour indicated the basis for doing so was the appellant's 'antecedents and similar nature of offending'. It is, in my view, plain that the appellant's criminal history was a matter of considerable significance in the decision to deny parole. However, it is equally plain that his Honour did not expressly find that the appellant had a 'significant criminal record'.
In the ordinary course, when making a decision such as denying parole eligibility, it would be prudent for reasons to be given by reference to the statutory criteria. However, as is often said, it is appropriate to have regard to the large volume of cases magistrates are required to deal with daily, and the need for them to do so with expedition and a degree of informality. As such, an appeal court should not be overly critical of the reasons given by a magistrate, or to infer from infelicity of language that error is thereby demonstrated.[12]
[12] Gardner v Caporn [2005] WASCA 153 [59]; See also Rundle v Innerd [2015] WASC 340 [117]; Strahan v Brennan [2014] WASC 190 [89] - [90].
In Moody, the court considered the meaning of 'significant' in s 89(4)(b) and said:[13]
The 'significance of the record must be assessed in light of the present offences. In this case, the appellant is a serious recidivist in respect of this kind of offending. In our opinion, that is enough to make her record 'significant' for the purposes of s 89(4)(b).
[13] Moody [55].
In my view, his Honour's reference to the appellant's 'similar nature of offending' was intended to address the meaning of 'significant' in s 89(4)(b) as held in Moody.
Even if, as the appellant argued, the learned magistrate's reference to the appellant's antecedents encompassed more than his criminal history, his Honour was entitled to take those additional matters into account pursuant to s 89(4)(d). In that regard, the appellant's 'antecedents' also included his extremely poor response to previous supervised release orders.
I am not satisfied that the learned magistrate erred in failing to consider the criteria set out in s 89(4). Further, I am not satisfied that, in failing to use the express language of s 89(4)(b), his Honour did not find that at least one of the criteria contained in s 89(4) was satisfied, namely s 89(4)(b).
Ground 1 is dismissed.
Ground 2
By ground 2, the appellant asserts that he was denied procedural fairness, in that the learned magistrate failed to seek submissions from the parties before denying parole eligibility.
Written submissions were filed, at first instance, on behalf of the appellant and were available to his Honour. The appellant's counsel was also given the opportunity to make oral submissions at the sentencing.
In McColl v Roberts,[14] McKechnie J considered a matter in which, as here, the learned magistrate did not seek submissions from counsel specifically on the issue of parole eligibility. Having determined that the appellant in that case had a 'significant criminal record', McKechnie J said:
In those circumstances, the question of parole eligibility was a live issue. The magistrate did not have to advise Mr McColl's counsel that he was considering making a non-parole order. Counsel are expected to cover all relevant circumstances and options in the plea in mitigation. There is no procedural unfairness or requirement that a magistrate must advise counsel about every matter which might conceivably be considered, especially when the matter is obvious.
[14] McColl v Roberts [2014] WASC 300 [48] - [49].
In Ugle v The State of Western Australia,[15] which is a more recent case, in considering whether the appellant had been denied procedural fairness in relation to the quantification of the sentencing discount to be given for a plea of guilty, the Court of Appeal referred to Parker v The Director of Public Prosecutions[16] and Sulieman v The State of Western Australia[17] and said:
Parker and Suleiman illustrate that unfairness can arise in circumstances where:
(1) a judge makes a finding adverse to the offender in relation to an issue that is not an inherent part of the matter which the judge is required to decide;
(2) the prosecutor has not sought the adverse finding or contended that it should be made; and
(3) an offender, who has not addressed the issue in submissions, might reasonably not anticipate that the judge might make that finding.
Whether particular proceedings are procedurally unfair will depend on an assessment of all of the circumstances of the case, including the matters which counsel should anticipate a judge will consider even if not specifically adverted to by the prosecutor. Fairness is a practical concept and the concern of the law of procedural fairness is to avoid practical injustice.[18]
[15] Ugle v The State of Western Australia [2018] WASCA 97 [38] - [39].
[16] Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282.
[17] Sulieman v The State of Western Australia [2017] WASCA 26.
[18] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 [37]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [272].
I have already outlined the appellant's extensive criminal history. The index offending was substantially the same as the appellant's previous offending. Having regard to the meaning of 'significant' as found in Moody, there can be no doubt, in my view, that the appellant had a 'significant criminal history'. So much was conceded by the appellant, in my view properly.
Further, the appellant's criminal history demonstrates repeated re‑offending while subject to court orders, and his offending history overall displays a long-standing contempt for authority.
In my view, it cannot be said that the appellant might not have reasonably anticipated that the learned magistrate would deny parole eligibility. His counsel had ample opportunity to address the matter, had he sought to do so. Further, in the course of the hearing before me, very limited factors were raised which were not before the learned magistrate which could reasonably have affected the decision as to parole eligibility.
In my view, having regard to all of the circumstances, I am not satisfied that the appellant was denied procedural fairness.
Ground 2 is dismissed.
No substantial miscarriage of justice
Even if I am wrong in my conclusion as to ground 1 or ground 2, in my view there has been no substantial miscarriage of justice.
The appellant's criminal history is, as I have already found, significant. Further, he has repeatedly failed to take the opportunities granted to him to undertake community supervision and has frequently re‑offended while subject to non-custodial sentences. Accordingly, the discretion to refuse parole eligibility is enlivened having regard to s 89(4)(b) and (d).
Some additional matters have been put to me, such as the appellant's take-up of counselling since he has been transferred to Bunbury. However, there have been no substantial changes in the appellant's position since he was sentenced.
The appellant first lashed out in a violent and extreme display of jealousy, injuring his partner and damaging her property. It was by no means the first time he had engaged in intimate partner violence; he had previously assaulted the same partner, and had offended against previous partners as well. Thereafter, as with his previous offending, he engaged in what can only be described as a 'spree', with absolute disregard for the property of others.
Having regard to the nature of his most recent offending, his previous offending, his previous poor response to supervision and his failure to demonstrate any real commitment to rehabilitation to date, I would refuse eligibility for parole.
I am told that the appellant's non-eligibility for parole is limiting his access to programs. If correct, and I have no reason to doubt it, that is most unfortunate. It is imperative for any incarcerated person to be able to access treatment and programs to better their position.
However, the appellant has had ample opportunity to seek the assistance of programs in the past and I am not satisfied ultimately that a substantial miscarriage of justice has been made out.
Leave to appeal is refused on each ground.
I dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
7 AUGUST 2023
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