"Tam" v Street - [2005] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: "TAM" -v- STREET [2005] WASC 49

CORAM: BLAXELL J

HEARD: 2 MARCH 2005

DELIVERED : 2 MARCH 2005

FILE NO/S: SJA 1127 of 2004

BETWEEN: "TAM"
Appellant
AND
GRAEME JOHN STREET
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P M HEANEY SM
File No  :PE 12526 of 2004

Catchwords:

Criminal law and procedure - Sentencing - Appeal from Magistrate - Presentence order - Appellant told that she would receive suspended term of imprisonment if she satisfactorily performed order - Order performed satisfactorily but appellant sentenced to term of imprisonment to be served immediately - No apparent reason for Magistrate's change of mind as to appropriate sentence

Legislation:

Justices Act 1902 (WA), s 199(1)(c)

Sentencing Act 1995 (WA), s 33B

Result:

Appeal allowed and suspended term of imprisonment substituted

Category: B

Representation:

Counsel:

Appellant: Mr D R Love
Respondent: Mr M A Perrella

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

BLAXELL J: This is an appeal from the decision of a Magistrate in the Perth Court of Petty Sessions imposing a sentence of 16 months' imprisonment on the appellant for an offence of unlawful wounding. The learned Magistrate rejected a submission that the term of imprisonment should be suspended and he directed that it should be served immediately. The sentence was imposed after the applicant had been remanded for six months pursuant to a pre-sentence order made under s 33B of the Sentencing Act 1995 (WA).
Leave to appeal to this Court was granted on 12 January 2005. The grounds of appeal are fairly voluminous but essentially revolve around the fact that at the initial hearing the learned Magistrate told the appellant that if she successfully completed the pre‑sentence order she would receive a suspended term of imprisonment. The appellant also contends that the learned Magistrate was unduly influenced by the Victim Impact Statement which was handed up at the time of the second hearing. It is further said that a term of imprisonment to be served immediately was a manifestly excessive sentence in all of the circumstances.
The facts of the offence as outlined to the learned Magistrate at the initial hearing on 29 April 2004 were as follows. The complainant is a 41 year old male. He had been the boyfriend of the appellant for six weeks up until the date of the offence. At 9.15 pm on 24 February 2004, the complainant and the appellant were at the appellant's flat in Shoalwater. They had been drinking together from about 6 pm that evening. There was a verbal altercation in the kitchen area which resulted in pushing and shoving. The appellant struck the complainant and the appellant then fell back and knocked the back of her head on a kitchen cupboard. She slid to the floor before getting up and taking hold of a steak knife from a wooden block on the kitchen bench. She held the knife towards the complainant, ordered that he leave the flat and walked him out to the front door.
The complainant then left the unit and was walking away when the appellant approached him from behind. The appellant raised her right arm, held the steak knife and stabbed the complainant in the left shoulder blade. The knife blade was completely embedded in the complainant's body with only the wooden handle visible. The knife blade penetrated the complainant's left lung causing the lung to collapse. The complainant managed to walk to a nearby address with the knife still embedded in his shoulder and the ambulance and police were called. He was then taken to Rockingham Hospital where he was stabilised before being transferred to Fremantle Hospital for emergency surgery.
As to those facts, certain submissions were made by counsel for the appellant at the first hearing, and it was asserted that immediately prior to the offence, the complainant had approached the appellant's 9‑year‑old daughter, that there had been an altercation between him and the daughter during the course of which the complainant grabbed the child by the throat, the appellant then intervened and that escalated into the argument and the violence between the appellant and the complainant.
At the first hearing the learned Magistrate had before him a pre‑sentence report as well as the appellant's record of previous convictions. The pre‑sentence report outlined the family background and history of the appellant, including the fact that she had had a disturbed childhood involving sexual abuse by her father between the ages of 4 years and puberty. Her mother had been a chronic alcoholic and had been hospitalised at Graylands mental health facility. The pre-sentence report stated that the appellant had been the primary carer for her family when her mother was in the mental health facility and her responsibilities to her family also extended to meeting her father's sexual needs.
Subsequently, and after leaving the family home, she had had a succession of relationships, and was the mother of four children by a previous marriage. She had been in a relationship with the victim of the present offence for approximately six weeks and at that time was the primary caregiver for her two youngest children aged 12 years and 9 years. There were indications that she suffered from epilepsy, and she had been treated in the Bentley Clinic for impulsive personality disorder. The pre‑sentence report stated that she was emotionally vulnerable, that she was remorseful for what she had done, and that it was considered that she would respond well to a non‑custodial sentence.
As to the appellant's record, it was significant that she had been convicted in 1996 of an offence of unlawful wounding in similar circumstances to the offence for which she was to be sentenced. The facts of that previous offence were that she had had a domestic argument with her then husband, she had lunged at him twice with a kitchen knife, and the complainant had received a deep puncture wound to the lower forearm. As a result of that conviction she had been placed on probation for 18 months.
After hearing submissions on 29 April 2004 the learned Magistrate stated the following:
"… what I propose to do, in fact is - subject to any submissions that you want to make - is to adjourn this for a pre‑sentence order, PSO, it's a new ‑ ‑ a new - ‑ it's like a ‑ ‑ a community‑based order - intensive supervision order - prior to sentencing, that enables people to get the assistance that they need. And the ‑ ‑ the reason I wish to do that is because what I ‑ ‑ and I'll give my full reasons to you shortly … the conclusion I have come to is that this is such a serious offence that it's got to be dealt with by way of a prison sentence that can be suspended. To deal with it that way there is no opportunity for anyone to get the assistance that this lady needs and that's why I propose to go down the track of getting a pre‑sentence order and then at the end of that time, then deal with it, as I suggested."
His Worship went on to make it explicit that the appellant was "not going to go to gaol" and at p 9 of the transcript of 29 April 2004 his Worship reiterated:
"… As I indicated at the beginning, I think this matter has to be seen to be being dealt with by way of a prison sentence which will eventually be suspended if [the appellant] deals with the pre‑sentence order that I impose - intend to impose - positively. So I impose ‑ ‑ propose to deal with this by way of a prison sentence, suspended for a period, but also propose to give [the appellant] … the opportunity to have access to the psychological and psychiatric treatments which, according to the wording of this pre‑sentence report, she needs."
So it is clear from those remarks and from others made by the learned Magistrate at that time that he had come to the conclusion that if the applicant performed satisfactorily on the pre‑sentence order, then she would receive a suspended term of imprisonment.
What then happened is that the appellant served out the pre‑sentence order for a period of 6 months. When she reappeared on 29 October 2004 the learned Magistrate had received a report which stated that she had performed the order very satisfactorily. The report also recommended a suspended term of imprisonment because it was said that the appellant:
"… cannot gain further benefit from a continued period of supervision as she presents as having addressed the issues which brought her before the Court initially."
By the time of sentencing the learned Magistrate had also received a Victim Impact Statement from the complainant, and that Victim Impact Statement set out all of the effects of the injuries including the trauma he underwent during the course of surgery and subsequent rehabilitation, the fact that he had lost his job and had to go on unemployment benefits, that he had continuing problems with numbness in his back, a raspy voice and that he would need a further operation on his throat. The Victim Impact Statement makes very sad reading but I would make the observation that the content is consistent with the injury described at the first hearing, namely a stab into the back by a knife which went in right up to the hilt and punctured the lung.
When the learned Magistrate came to sentence the appellant on 29 October 2004, his Worship made no reference at all to his remarks made on 29 April when he had indicated that the term of imprisonment would be suspended if the pre‑sentence order was satisfactorily completed. I think it is reasonable to assume in all of the circumstances that his Worship overlooked those previous remarks. In that regard it is well known that Magistrates in the Court of Petty Sessions have to deal with a very large volume of cases, and do not have transcripts to assist them in their task. It is quite understandable that after a six month delay, the learned Magistrate would not explicitly remember what he had indicated to the complainant previously. It is also relevant that counsel did not direct the learned Magistrate's attention to his Worship's previous remarks.
When proceeding to sentence the appellant on 29 October the learned Magistrate stated:
"I appreciate that the victim impact statement should play no part … in increasing the sentencing process, but it does reflect the consequences that flow to victims when someone stabs them."
After noting that the appellant had benefited from her time under the order, his Worship went on to refer briefly to the facts of the offence once again and to state that "there can be no doubt that society demands that such an offence must be dealt with by a prison sentence". His Worship then said:
"I'm of the opinion that this matter ought to be dealt with by way of a prison sentence … of 2 years' imprisonment which is to be reduced under the Sentencing Act by one third to a period of 16 months' imprisonment.
… When a court comes to the opinion that a prison sentence is appropriate a court should give consideration to suspending that sentence. … However, I am of the opinion that so serious is this offence that it's inappropriate for there to be a suspended sentence. I think that when someone stabs someone in the back in the manner that [the appellant] stabbed [the complainant], that there is required to be an immediate prison sentence. So … [the appellant] will be sentenced to 16 months' imprisonment and she'll be eligible for parole."
Coming now to the merits of the appeal, the learned Magistrate is a respected and experienced sentencing Magistrate of long standing. His Worship would be well aware of the tariffs that generally apply and subject to a comment I will make shortly about the failure to discount for the plea of guilty, I consider that the sentence ultimately handed down would have been well within the range of sound sentencing discretion if it had been imposed immediately on 29 April 2004. That did not happen. In fact, on 29 April the learned Magistrate explicitly indicated to the appellant that she would received a suspended term of imprisonment if she satisfactorily completed the pre‑sentence order.
When passing sentence on 29 October his Worship did not in any way refer to his previous remarks and, as I have said, I assume that he overlooked those previous remarks, but in my view the requirements of justice necessitated some explanation for a change of mind in circumstances such as these. It was, of course, open to the Magistrate to change his mind, particularly if there were some new circumstances that came to light which made his previous views as to sentence untenable. In this case all that had come to light was the Victim Impact Statement, and in my view the contents of that statement were altogether consistent with the information previously known to the learned Magistrate at the time of his previous remarks. The impacts on this particular victim were what could be expected from an injury of the type as previously described.
In the absence of any apparent reason for the change in the learned Magistrate's view as to the appropriate sentence, I consider that justice required that the appellant should have been dealt with on the basis that had been previously foreshadowed. I therefore conclude that the learned Magistrate fell into error in failing to suspend the term of imprisonment. I accordingly intend to re‑sentence the appellant and to impose a suspended term of imprisonment. As to the quantum of that term, the maximum penalty is a term of 2 years' imprisonment. The Magistrate started with that maximum but reduced it by one‑third down to 16 months in accordance with the recent amendments to the Sentencing Act. However his Worship made no allowance for the mitigating factor of the appellant's plea of guilty.
Under s 199(1)(c) of the Justices Act 1902 (WA), I have the power to substitute a decision that ought to have been made by the learned Magistrate and pursuant to that, I now impose a sentence with a starting point of 2 years which is reduced by 25 per cent down to 18 months to allow for the appellant's plea of guilty. I also apply a further one-third discount pursuant to the recent amendments to the Sentencing Act thus arriving at a sentence of 1 year's imprisonment.
Having regard to the very serious nature of the offence and what I consider to be a relatively lenient sentence in all of the circumstances, that 1 year term of imprisonment will be suspended for 2 years. So the appeal is allowed and the sentence substituted is a term of 12 months' imprisonment suspended for 2 years.