The State of Western Australia v AB
[2021] WASC 368
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AB [2021] WASC 368
CORAM: CURTHOYS J
HEARD: 3 AUGUST 2021
DELIVERED : 27 OCTOBER 2021
FILE NO/S: SJA 1014 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
AB
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S VOSE
File Number : AR 352 of 2020, PE 1869 - 1871 of 2020, PE 2008 - 2016 of 2020, PE 2510 of 2020, PE 2531 of 2020, PE 3534 of 2020, PE 3535 of 2020
Catchwords:
Criminal law - Appeal against sentence - No sentence imposed for certain charges - Whether magistrate acted in excess of jurisdiction or alternatively erred in law
Legislation:
Criminal Procedure Act 2004 (WA), s 129(3)
Sentencing Act 1995 (WA), s 46
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | L M Fox SC |
| Respondent | : | D M Ryan |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Chelmsford Legal |
Case(s) referred to in decision(s):
Hall v The State of Western Australia [2018] WASCA 151
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Thompson v McIntyre SM [2006] WASC 218
CURTHOYS J:
Introduction
On 2 March 2021, the State lodged a notice of appeal against a decision of a magistrate in the Children's Court on 24 February 2021 purportedly discharging the respondent, AB, on certain charges without imposing a sentence pursuant to s 46 of the Sentencing Act 1995 (WA).
The charges before the magistrate included one charge of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA)[1] and four charges of assaulting a public officer contrary to s 318(1)(d) of the Code.[2] The respondent was sentenced, on each count, to 3 months' imprisonment to be served concurrently with each other. No issue arises from the sentences imposed for those charges.
[1] Prosecution notice (charge number PE 2011/2020) dated 29 April 2020.
[2] Prosecution notice (charge numbers PE 2013-2016/2020) dated 29 April 2020.
The respondent faced a further seven charges: two charges of stealing contrary to s 378 of the Code;[3] one charge of obstructing a public officer contrary to s 172(2) of the Code;[4] one charge of disorderly behaviour in a police station or lock-up contrary to s 74A(2)(b) of the Code;[5] one charge of common assault contrary to s 313(1)(b) of the Code;[6] and two charges of giving false details to police contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA).[7] On these charges, the respondent was released without any sentence being imposed. It is these charges that are the subject of the appeal.
[3] Prosecution notice (charge number PE 1869-1870/2020) dated 19 April 2020.
[4] Prosecution notice (charge number PE 1871/2020) dated 19 April 2020.
[5] Prosecution notice (charge number PE 2012/2020) dated 29 April 2020.
[6] Prosecution notice (charge number PE 2510/2020) dated 6 May 2020.
[7] Prosecution notice (charge number PE 2531/2020 dated 5 June 2020; Prosecution notice (charge number PE 3534/2020) dated 21 August 2020.
Ground of appeal
The State's sole ground of appeal is that the learned magistrate acted without or in excess of jurisdiction, or alternatively erred in law, in purporting to discharge the respondent pursuant to s 46 of the Sentencing Act with respect to each of the offences the subject of the appeal in circumstances where:[8]
1.1the necessary statutory precondition for releasing an offender without imposing sentence pursuant to s 46 of the Sentencing Act is that the circumstances of the offence are trivial or technical;
1.2the magistrate implicitly accepted, correctly, that the circumstances of the offence were not trivial and not technical;
1.3despite that acceptance, the magistrate concluded that it was nonetheless open to him to release the respondent without imposing sentence on the basis that he was permitted to act unlawfully in the circumstances of this case; and
1.4the magistrate purportedly released the respondent on these charges without imposing any sentence pursuant to s 46 of the Sentencing Act despite knowing that such a course of action was unlawful.
[8] Notice of appeal lodged 3 March 2021, annexure A.
Leave to appeal
Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.[9]
[9] Criminal Appeals Act 2004 (WA) s 9(1)(2).
Whether a ground has a reasonable prospect of succeeding will depend on whether the ground has a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum. In effect, that means that the ground of appeal has a real prospect of success.[10]
[10] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[11] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[12]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[11] Strahan v Brennan [2014] WASC 190 [89] - [90].
[12] Strahan [90].
Legal principles
As already noted, the magistrate purported to release the respondent without sentence pursuant to s 46 of the Sentencing Act. That provision provides:
Release without sentence
A court sentencing an offender may impose no sentence if it considers that -
(a)the circumstances of the offence are trivial or technical; and
(b)having regard to -
(i)the offender's character, antecedents, age, health and mental condition; and
(ii)any other matter that the court thinks it proper to consider,
it is not just to impose any other sentencing option.
The procedure which led to the magistrate invoking s 46 of the Sentencing Act was unusual to say the least.
Section 129(3) of the Criminal Procedure Act 2004 (WA) provides:
Before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.
It is simply not possible to sentence unless a judicial officer is aware of the material facts. As the Court of Appeal stated in Hall v The State of Western Australia:[13]
Where an accused has entered pleas of guilty, the prosecutor must state aloud to the court the material facts of the offence before the court imposes sentence: s 129(3) of the Criminal Procedure Act 2004 (WA). This is an essential feature of sentencing proceedings following a plea of guilty. A plea of guilty only involves an acceptance of the essential elements of the offence. Other facts may be disputed. The stating aloud of the facts provides the offender with an opportunity to raise any dispute.
If the facts are admitted (or determined on a trial of issues), they provide the basis upon which the offender is to be sentenced. It is essential for the circumstances of the commission of an offence to be established in the course of a sentencing hearing in order to ensure that any sentence imposed is commensurate with the seriousness of the offence: s 6 of the Sentencing Act 1995 (WA).
[13] Hall v The State of Western Australia [2018] WASCA 151 [13] - [14].
Merits of the appeal
In this case the magistrate declined to hear the material facts from the prosecutor. His Honour stated:[14]
Now, Ms Shade, I don't want to hear all the facts because some of these I'm just going to write off with that amount of time spent in custody. But [what] I want to hear facts on are the aggravated common assault and the four assault public officers. That's all. Others I'm going to deal with - I don't know - section 46.
[14] ts 7 (24/2/2021).
The magistrate further stated:[15]
For all those matters that I didn't want to hear the facts on which are relatively minor - and I would make the point that while he has got some serious matters there, the reckless driving, etcetera, the most serious matters that he has to face are the ones that he is facing here today and that he has pleaded not guilty for.
[15] ts 12 (24/2/2021).
In effect the magistrate declined to hear the facts of the charges upon which he did not impose a sentence. His Honour thereby deprived himself of the ability to sentence the respondent in accordance with the provisions of the Sentencing Act.
If the magistrate sought to rely on s 46 of the Sentencing Act then he needed to hear the material facts both as a matter of law and to be in a position to determine whether it was open to regard the offences as trivial or technical. The magistrate would also have needed to state why he regarded the offences as trivial or technical.
The magistrate's explanation for 'relying' on s 46 of the Sentencing Act was as follows:[16]
For the matters I didn't hear the facts on, section 46. Now, it doesn't really fall into the category of 46, but that's the nearest I can get, give him credit for time spent. And, of course, you can't imprison on some of these matters anyway like the stealings. And so it's just a way of clearing it up.
[16] ts 12 - 13 (24/2/2021).
The prosecutor drew to the magistrate's attention their concerns regarding his Honour's reliance on s 46:[17]
SHADE, MS: Your Honour, the State would have concern about section 46 being utilised when the offences aren't - - -
HIS HONOUR: Well, what's the alternative? Because here I cannot imprison. I cannot fine without being satisfied he has got the capacity to pay. He has no capacity to pay. What else is there, youth community-based order? No, he is not a youth anymore. Community-based order? No, that's not appropriate on his - you know, we cannot do anything.
So section 46, I absolutely agree with you, doesn't fit the bill, but it fits it better than anything else. The law has not provided for a situation like this. And I might point out, there are a number of situations where - I mean, this is not [legal] to do this, but there are a number of situations where the only option for a magistrate is to go illegal, situations where you got minimal penalties, where you can only fine, or give community work.
And given the restrictions in the Young Offenders Act, there are circumstances where a young person might be in detention where they cannot be fined, because you cannot fine unless you are satisfied, that's - satisfaction is a high test. You cannot fine. And, of course, they're in detention so you cannot do community work. So you 67. Inappropriate, incorrect, 67 is not allowed. Do you see the point I'm making? There is no option here but section 46 on these matters.
[17] ts 13 - 14 (24/2/2021).
A magistrate's sentencing jurisdiction arises from and only from the Sentencing Act.
Once the magistrate conceded that s 46 of the Sentencing Act was not applicable then he effectively conceded that he could not utilise that provision. In effect he lacked jurisdiction to utilise s 46 of the Sentencing Act.
As Blaxell J stated in Thompson v McIntyre SM:[18]
[A] Judge or Magistrate is not free to do justice according to personal whim or fancy, or in accordance with idiosyncratic notions of what is right. The obligation is to do right according to law. This obligation lies at the heart of our system of justice because it ensures that every person subjected to judicial decision making is dealt with equitably and fairly, and not on an arbitrary or ad hoc basis.
[18] Thompson v McIntyre SM [2006] WASC 218 [21].
The Sentencing Act provides a wide variety of options when sentencing. For example, a fine may have been applicable. However, the magistrate failed to make any inquiry as to the respondent's capacity to pay a fine.
The appeal should be allowed.
Orders
I make the following orders:
(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)The orders of Magistrate S Vose discharging the respondent without sentence are set aside.
(4)The charges are remitted to the Children's Court of Western Australia for sentencing before a different judicial officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
27 OCTOBER 2021
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