The State of Western Australia v Goodchild - [2012] WASC 318

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GOODCHILD [2012] WASC 318

CORAM: SIMMONDS J

HEARD: 28 AUGUST 2012

DELIVERED : 28 AUGUST 2012

FILE NO/S: INS 204 of 2011

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JOSHUA MICHAEL GOODCHILD
Defence

Catchwords:

Criminal law and procedure - Correction of sentence - Taking account of minimum period before release from imprisonment

Legislation:

Criminal Code (WA), s 34(2), s 37(1), s 37(3), s 37(3a), s 89(4), s 94(4)
Road Traffic Act 1974 (WA)

Result:

Application granted
Correction of sentence made

Category: B

Representation:

Counsel:

Prosecution : Mr M J Walton
Defence: Ms K A Gorski

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Legal Aid (WA)

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

The State of Western Australia v Goodchild [2012] WASCSR 12
The State of Western Australia v Van Der Leer [2010] WASC 303

SIMMONDS J: These are my reasons for the disposition at which I have arrived. The disposition at which I have arrived is that the sentence that I imposed on 1 February 2012 (The State of Western Australia v Goodchild [2012] WASCSR 12) needs to be corrected.
It needs to be corrected in the following respects. The references in [74] and [76], in [74] to a total sentence of imprisonment of 22 months for the offence of arson, and in [76] to 14 months after reduction for the undertaking that I referred to, should be changed.
The change in [74] is to add a further sentence. The further sentence would be this:
However that sentence should in my view be reduced from 22 months to 14 months, having regard to the totality of the criminality in this case and considerations of the combination of the sentences to be imposed.
In [76], in the second line '22 months' would be reduced to '14' and in the third line, '14' would be reduced to '6'.
In [80], where further changes need to be made, I would in the second to last sentence in the paragraph, change '14 months' to '6 months' and at the end of that sentence 'served cumulatively on all the others' would replace all the words after 'offence sentenced'. I would delete the remaining two sentences in [80].
I do not believe that any other changes would need to be made to the sentencing remarks on 1 February. With those changes the sentencing remarks then would stand as they there state, but as I said with the changes that I have described.
In my view, it is a matter of some little difficulty to determine upon what basis I have the power to make that correction or those corrections under Sentencing Act 1995 (WA) s 37. However, the corrections, it seems to me, are of a limited kind and that limited kind or character on its face tends to indicate to me that they can properly be made under s 37, considered as a whole as the State suggested.
It seems to me, however, that s 37 does contain two different powers of correction. One not called a power of correction is in s 37(1). That power is to recall the order imposing the sentence and impose a sentence that is in accordance with the legislation.
It seems to me that a strong argument can be made, and the State appeared to accept this, that I had made or had sentenced the offender in a manner not in accordance with this Act. The way in which I had done that was that - and here I accept the submissions put to me by counsel for the defence - I had, in assessing how to combine the sentences in this case, failed to apply the Act s 94(4) in that process of calculation for consideration. It seems to me that in the process of combination it is appropriate to take account of the minimum period to be served before eligibility for parole arises, notwithstanding the traditional view - to which I myself referred in exchanges with counsel in the hearing on 1 February 2012, as indicated in the submissions put to me by counsel for the State at par 26 of his written submissions - for two reasons.
The first is that in determining partial concurrency - which was the approach I adopted on 1 February 2012 - I had to consider the earliest date on which the offender could be released whether on parole or not in relation to the other fixed term under the Act s 89(4). That, however, in my view, is a less weighty reason than that to which counsel for the defence referred me being s 34(2), the requirement to state the minimum period that the offender as a result of the sentence and the operation of the Act will serve in custody in respect of the term. Section 34(2) as the learned editor of Brown on Criminal Law points out in [SA34.1.5] is to draw to the judge's attention, particularly where combinations of sentences are concerned, that minimum period.
In making the error that it is common ground I did, of combining the sentences I originally imposed as I did, the combination itself was affected in a way which the legislation might be seen to have meant to be covered by s 37(1).
However, the clarity of the application of s 37(1) is less than that which I have noted from authorities I referred to in my own decision in The State of Western Australia v Van Der Leer [2010] WASC 303 on s 37(1), concerning the minimum penalty under the Road Traffic Act 1974 (WA) for cases where it was a first offence of the relevant kind and where it was the second or later offence of the relevant kind.
If Sentencing Act s 37(1) is not available, as to which I express no final view, it seems to me that s 37(3) is. That had not been my initial view when this problem was first drawn to my attention. At the very least, I concluded I needed to have the advantage of submissions from counsel in relation to the matter.
The Act s 37(3) deals with clerical mistakes or an error arising from an accidental slip or omission. It seems to me the word 'accidental' qualifies both slip or omission; although the drafting syntax is to be deprecated. It seems to me there was an accidental slip or omission - it seems to me it is a slip rather than an omission - revealed by my sentencing remarks themselves on 1 February 2012.
In those remarks, I had noted the effect of s 94(4) when combining the total effective sentence that I was imposing with a sentence Mr Goodchild, the offender, was already serving, and I had correctly, it seems to me and it seemed to both counsel, applied s 94(4). However, I had failed to note - there had been an accident in my sentencing in failing to apply - that same provision to the sentences I was combining for the offences for which I was sentencing Mr Goodchild on 1 February 2012.
The result is that the discretion in s 37(3) was enlivened.
It is not, however, an altogether straightforward matter to apply s 37(3) to this case because, as both counsel noted, there were a variety of ways in which I might have adjusted my sentence. However, it seems to me that s 37(3) gives me the power to correct because the total effective sentence of 26 months for the offences for which I was sentencing Mr Goodchild on 1 February 2012 was the sentence concerned.
In respect of that sentence, to achieve the effects it was apparent from my sentencing remarks, consistently with s 34(2), I was seeking to achieve there is the solution that I have described, embodied in the corrections which I have indicated. True it is there may be other adjustments in individual sentence length. A difficulty with those adjustments, however, is that they take, it seems to me, a greater distance away from the original sentences that I imposed than I am taken by the corrections that I made here.
The corrections that I have made here preserve total sentence length. They preserve the individual service of sentences and they preserve the concurrency features of my original sentencing, while also achieving the eligibility for parole date that I stated in those sentencing remarks. It appears to me there is no other solution which achieves that combination of objectives.
For those reasons then I believe that I have the power to make the corrections that I have indicated I will make. The corrections will then be embodied in a fresh issuance of [2012] WASCSR 12 consistently with the effect as I understand it of s 37(3a) of the Sentencing Act.