The State of Western Australia v Patrick
[2020] WASC 49
•6 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PATRICK [2020] WASC 49
CORAM: JENKINS J
HEARD: 10 DECEMBER 2019 & 14 JANUARY 2020
DELIVERED : 6 FEBRUARY 2020
FILE NO/S: INS 74 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LEON PATRICK
Accused
Catchwords:
Criminal law - Contravention of supervision order made under Dangerous Sexual Offenders Act - Sentencing - Whether mandatory minimum penalty applies
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) s19(C), s 40A
Interpretation Act 1984 (WA) s 5
Sentencing Act 1995 (WA) s 7(3)(a)
Result:
Mandatory minimum penalty applies
Category: A
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Accused | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Ms M R Barone SC |
Case(s) referred to in decision(s):
Larsen v The State of Western Australia [2019] WASCA 181
JENKINS J:
Leon Patrick is charged on Prosecution Notice PE 40399 of 2019 with an offence pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 40A(1) that on 28 August 2019 at Wilson:
Being subject to a Supervision Order, without reasonable excuse, contravened a requirement of the order under section 40A(1) of the Dangerous Sexual Offenders Act 2006.(PN 40399)
On 2 October 2019 Mr Patrick pleaded guilty to PN 40399 in the Magistrates Court. He was convicted of the offence and the magistrate transferred the charge to this court for sentencing as parallel contravention proceedings under the Act pt 2 div 4 were in progress.[1]
[1] The Dangerous Sexual Offenders Act 2006 (WA) s 40B(4)(a).
Mr Patrick came before me for sentencing and I queried with the parties whether the Act s 40A(2A) applied to the offence. Both parties submit that it does not apply. These are my reasons for determining that the Act s 40(2A) applies to PN 40399 so as to require me to sentence Mr Patrick to a term of imprisonment of at least 12 months which must not be suspended.
The Act s 40A states:
(1)A person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence.
Penalty: Imprisonment for 2 years.
(2A)If a person is convicted of an offence under subsection (1) for an act or omission that is also a contravention of section 19C(3) then, despite any other written law, the court sentencing the person -
(a)must sentence the person to a term of imprisonment of at least 12 months; and
(b)must not suspend the term of imprisonment.
The Act s 19C(3) states:
(3)A person must not, without reasonable excuse, unlawfully interfere with the operation of an electronic monitoring device required to be worn or installed under section 19A(2).
Penalty: imprisonment for 12 months.
The issue which arises for my determination in relation to sentencing Mr Patrick for PN 40399 is whether it is a conviction 'for an act or omission that is also a contravention of s 19C(3)'. If it is, s 40A(2A) requires me as a matter of law to sentence him to a term of immediate imprisonment of at least 12 months.
An act or omission that is 'a contravention of section 19C(3)', is any act or omission which unlawfully interferes with the operation of an electronic monitoring device (EMD) required to be worn or installed under s 19A(2).
The only EMDs required to be worn or installed under s 19A(2) are those the subject of directions from a community corrections officer (CCO) under s 19A(2). This conclusion proceeds from a consideration of the terms of s 19A(2) which states:
For the purposes of the electronic monitoring of a person, a community corrections officer may -
(a)direct the person to wear an approved EMD;
(b)direct the person to permit the installation of an approved EMD at the place where the person resides or, if the person does not have a place of residence, at any other place specified by the community corrections officer;
(c)give any other reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person.
The Act s 19C(3) makes it an offence to do an act or make an omission which interferes with the operation of EMDs required to be worn or installed as a consequence of a direction of a CCO under s 19A(2). Those directions are themselves limited to either directing the person to wear an approved EMD or to permitting the installation of an approved EMD at a place. I will limit my consideration to the first alternative as it is not suggested that Mr Patrick interfered with an EMD installed at his home.
Thus the issue is whether offence PN 40399 is a conviction for an act or omission that is also a contravention of s 19C(3). A contravention of s 19C(3) is an act or omission which unlawfully interferes with the operation of an EMD required to be worn as a result of direction made by a CCO under s 19A(2) to Mr Patrick to wear an EMD.
Several questions must be answered before I can determine whether PN 40399 is a conviction for an act or omission of that character.
Those issues are:
(1)What is the act or omission that the offence in PN 40399 is 'for'?
(2)Whether the device removed by Mr Patrick was an EMD required to be worn or installed under s 19A(2); and
(3)Whether the act and/or omission which PN 40399 is for, unlawfully interfered with the operation of an EMD and thus is also a contravention of the Act s 19C(3)?
Question 1
Both parties dispute that the act or omission that PN 40399 is 'for' is an act or omission which unlawfully interfered with the operation of an EMD required to be worn as a result of a direction made by a CCO under s 19A(2) to Mr Patrick to wear an EMD.
The State submits that PN 40399 is for Mr Patrick's omission to wear the EMD at the relevant time.[2] However the State's counsel submits orally that although the conduct of Mr Patrick which constitutes the offence comes under the general description of non‑compliance with condition 4 of the supervision order (SO), which required him to comply with any reasonable direction of CCO, specifically it is for his failure to wear the EMD.[3]
[2] Applicant's Outline of Submissions as to Penalty [14].
[3] ts 540, 14 January 2020.
Mr Patrick submits that PN 40399 is for his omission to comply with the reasonable direction of a CCO to wear the EMD. He submits that the failure to follow the direction is the omission which bears the criminality, in the sense that it is the contravention of the SO the subject of the charge.
The statement of the charge contained in PN 40399 simply repeats the allegation in the Act s 40A(1), being that Mr Patrick contravened a requirement of the supervision order. Having regard to the wording of the charge, the offence may be for any act or omission which would contravene any condition of the supervision order. Relevantly it could be for a contravention of:
(1)condition 4 by failing to 'be under the supervision of a CCO which includes complying with any reasonable direction of the officer (including a direction for the purpose of s 19A)';
(2)condition 7 by failing to 'be subject to electronic monitoring'; or
(3)condition 10 by failing to '… comply with the lawful orders of and directions of a CCO'.
Thus the charge does not provide the answer to question 1. It is necessary to look elsewhere to determine the answer to this question.
In any event it is unlikely that an allegation of a breach of conditions 4, 7 or 10 would of itself identify with any particularity the act or omission which constituted a breach of the specified condition. I doubt whether merely identifying a condition to which the offence relates is sufficient to identify the 'act or omission' which the offence is for. The State acknowledges this when it submits to me that it could not just particularise PN 40399 as failure to comply with condition 4, because that would invite an application for further and better particulars.[4]
[4] ts 540, 14 January 2020.
There are no written particulars of the offence. Thus it is the statement of facts read out aloud by the prosecutor to the court[5] and which was accepted by Mr Patrick's senior counsel which must specify the act or omission which the offence is for.
[5] The Act s 40B(4)(c) provides that proceedings for an offence under the Act s 40A are to be dealt with summarily under the Criminal Procedure Act 2004 (WA) (the CPA) as if the prosecution was for a simple offence in a court of summary jurisdiction. The CPA s 129(3) states that before a court sentences an offender, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.
The following facts read out aloud by the prosecutor are relevant to the determination of this issue:
On 20 May 2019, Mr Patrick was released from custody subject to the supervision order, and an EMD was fitted to his ankle in accordance with condition 7 (of the SO). …
…
The supervision order also contained the standard condition, condition number 4, to the effect that he is to … 'be under the supervision of a community corrections officer, which includes complying with any reasonable direction of the officer, including a direction for the purposes of section 19A or 19B'. On 20 May 2019, Mr Patrick signed a written lawful direction given to him by his CCO, …
I should also add that the written lawful direction also directed him to wear an - inter alia, to wear an electronic personal identification device, the transmitter. … At 7.20 pm on 28 August 2019, Mr Patrick walked to the rear yard of his residence in Wilson. He climbed over the side fence of the property, using a chair, and, once on the other side, he used a pair of scissors to cut his EMD and remove it from his ankle.
After detaching the EMD, Mr Patrick threw it into the front yard of his residence and then left the address, eventually making his way to Wellington Square, in East Perth. At about 11.50 pm on the same night, police located Mr Patrick in Wellington Square, and after identifying him Mr Patrick ran away from police before he was eventually arrested. Police observed that Mr Patrick was no longer wearing his EMD.
As a result of Mr Patrick's conduct, the authorities were unable to monitor his movements and activities for a period of approximately four and a half hours. And whilst this is not in the written particulars, I reiterate that the information I have received from the community offender monitoring unit is that the EMD was still operable, even though he had detached it. Mr Patrick's conduct in cutting his electronic device and detaching it from his ankle was in contravention of the written lawful direction issued on 20 May 2019 - what I referred to before, that he is required to wear an electronic personal identification device.[6] (my emphasis)
[6] ts 15 ‑ 16, 10 December 2019.
I also note that prior to reading the facts to the court I requested that the State particularise the offence in PN 40399. The following exchange took place:
JENKINS J: … can you particularise the two charges, what's alleged in respect of each of them.
MEERTENS, MR: Yes, your Honour. … The allegations that form the basis of the contravention application are the same as the allegations for the section 40A(1) charges. Not ‑ ‑ ‑
JENKINS J: And so I understand that the allegation in respect of the first charge, 40399, as it's now amended ‑ ‑ ‑
MEERTENS, MR: Yes.
JENKINS J: ‑ ‑ ‑ it's an offence against section 40A, subsection (1) of the Dangerous Sexual Offenders Act.
MEERTENS, MR: Correct.
JENKINS J: Is essentially that on that date he interfered with his GPS monitoring device by cutting it off, by removing it.
MEERTENS, MR: Well, your Honour, specifically that he removed it.
JENKINS J: He removed it.[7] (my emphasis)
[7] ts 2 ‑ 3, 10 December 2019.
Counsel went on to explain that the prosecution specifically relied on Mr Patrick's removal of the EMD rather than interference with it because after the charge was laid the State was advised by those who instructed it that after Mr Patrick cut off and removed the EMD, the EMD continued to operate, although it could no longer track Mr Patrick's movements. The prosecutor continued:
[H]aving regard to that, there was a change in, I suppose, a perspective on what it actually - what was the conduct that actually constituted the contravention. And as I understand it, and this is what I'm relying on today, it is the actual removal of the EMD that is the gravemente (sic) of his conduct.[8] (my emphasis)
[8] ts 5, 10 December 2019.
After hearing from Mr Patrick's senior counsel, the prosecutor submitted that the State relies on the written lawful direction (WLD) which Mr Patrick received on 20 May 2019 which directed Mr Patrick that he was to wear an electronic personal identification device, as well as conditions 4 and 7 of the SO which I have referred to above.
The State's written submissions completed after 10 December 2019 submit that Mr Patrick's non‑compliance with the directions of his CCO is 'particularised as his omission to wear an electronic personal identification device ("transmitter")'.[9]
[9] Applicant's Outline of Submissions as to Penalty dated 20 December 2019 [14].
At a subsequent hearing on 14 January 2020 the prosecutor did not, to my satisfaction, identify any place in the transcript of 10 December 2019 where the State particularised the offence in that manner and neither was he able to explain why I should not rely on the statement of facts presented to the court as providing the particulars of the charge.
On 14 January 2020 the State submitted that at the hearing on 10 December 2019 it had particularised the State's case in the following passage:[10]
MEERTENS, MR: Sorry, your Honour, can I just arise to - I hadn't finished giving you - providing the particulars to your Honour. … and I reached the point where I was going to refer your Honour to the WLD, which was issued on 20 May 2019 by his CCO. … So section - the third paragraph down says:
'Section 19A(2)(a) specifically provides that Leon Patrick wear a stated device, this being an electronic monitoring personal identification device (the transmitter).'
Then you look down to the directions:
'(a)You are hereby directed to wear an electronic personal identification device, the transmitter.'
Now, that is the - that and condition 7 of the supervision order is what the State is relying on. And at the risk of sounding pedantic, the actual charge, as per the wording of section 40A(1) does actually allege contravened a requirement of the order under section 40A(1) of the Dangerous Sexual Offenders Act, but we're not relying on the allegation in 19C(3). The State is relying on, I repeat, condition 7 and condition 4, which is the standard condition which requires him to comply with the reasonable directions of a CCO and the WLD dated 20 May 2019.[11]
[10] ts 539, 14 January 2020.
[11] ts 9 ‑ 10, 10 December 2019.
The State was at pains to emphasise that it relies on Mr Patrick's failure to comply with conditions 4 and 7 of the SO and the direction in the WLD that he wear an EMD. That reliance however does not answer the question which s 40A(2) requires answered, which is what act or omission is the offence in PN 40399 for?
Mr Patrick submits that the relevant act or omission is his failure to comply with a reasonable direction of a CCO in that condition 4 of the SO required him to comply with any reasonable direction of a CCO (including a direction for the purpose of s 19A) and a WLD was issued on 20 May 2019 with which he did not comply. He submits that the subject matter of the reasonable direction, which he accepts is particularised as the direction to wear the transmitter, is 'the relevant context for the purposes of sentencing but it is not the omission constituting the offence'.[12]
[12] Offender's Outline of Submissions regarding the Applicability of the Mandatory Minimum Penalty dated 7 January 2020 [19].
First I do not accept that the State particularised the offence as being the omission to wear the EMD at the relevant time. The recitation of the facts by the prosecutor and the other submissions made by him were not to this effect.
Secondly I do not accept Mr Patrick's submission that the offence contained in PN 40399 was particularised by the State as being solely for the failure (omission) to comply with the reasonable direction of a CCO to wear the EMD.
Thirdly I do not accept, in any event, that the determination of the act or omission which an offence is for is such a narrow analysis. The use by Parliament of the words 'act or omission' requires identification of the act which constituted the offence or the omission which constituted the offence. It is the act or omission which renders the person doing the act or making the omission liable to punishment for that offence.[13]
[13] For the derivation of this concept see the Criminal Code (WA) s 2.
Further it involves consideration of the definition of 'act' in the Interpretation Act 1984 (WA) s 5 which states:
In this Act and every other written law -
act used with reference to an offence … includes an omission and extends to a series of acts or omissions or a series of acts and omissions.
It is not accurate to say that Mr Patrick was liable to be punished for the offence in PN 40399 simply because he contravened the SO by omitting to comply with condition 4 of the SO.[14] Mr Patrick submits that without a direction to wear the EMD and without his failure to comply with the direction there would not be an offence under PN 40399. Consequently this is the act or omission that the offence is for. His counsel draws the analogy with the offence of reckless driving. She says that the act which draws the criminal sanction is the reckless driving, not acts such as speeding, which may be deemed to be proof of reckless driving or provide evidence of reckless driving.
[14] See respondent's submission ts 549, 14 January 2020.
Mr Patrick's submission does not prove the point it seeks to make. Certainly without a direction to wear the EMD[15] and without Mr Patrick's failure to comply with the direction[16] there could not be an offence under PN 40399. But neither could there be an offence under PN 40399 without an act and/or omission which resulted in the failure to comply with the direction.[17]
[15] Alternatively, a condition of the SO which would be breached by a failure to wear the EMD.
[16] Alternatively, a condition of the SO which would be breached by a failure to wear the EMD.
[17] The same would be true if a condition of the SO would be breached by failure to wear the EMD.
Mr Patrick's liability under PN 40399 arises from a series of acts and omissions which are identified in the prosecution statement of facts as being his 'conduct in cutting his electronic device and detaching it from his ankle' when such acts were in contravention of the WLD issued on 20 May 2019 to wear an EMD. It may more simply be said that the offence is for removing the EMD contrary to the WLD, made pursuant to conditions 4 and 7 of the SO, that he wear an EMD.
On the basis of the prosecution statement of facts which are accepted by Mr Patrick, I am satisfied that PN 40399, being an offence under the Act s 40A(1), is for Mr Patrick's acts by which he removed the EMD from his ankle so that he was no longer wearing it and his consequent omission to wear the EMD, which was contrary to the WLD to wear an EMD and conditions 4 and 7 of the SO. PN 40399 is for this series of acts and omissions.
Question 2
In order to determine whether the EMD is an EMD required to be worn or installed under the Act s 19A(2), it is necessary to examine other provisions of the Act. First the Act s 18 states that if a court makes a SO against a person the order must amongst other things require that the person:
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A …); and
…
(g)be subject to electronic monitoring under section 19A.
The Act s 19A(2) states that:
For the purposes of the electronic monitoring of a person, a community corrections officer may ‑
(a)direct the person to wear an approved EMD;
…
(c)give any other reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person.
Although it is not stated in the facts read to the court that the EMD fitted to Mr Patrick's ankle was 'approved', it is implicit in the facts and in his plea of guilty that the device was so approved.
I am satisfied beyond reasonable doubt that the EMD fitted to Mr Patrick's ankle and which he removed was an approved EMD for the purpose of the Act s 19A(2).
I am further satisfied that the device was required to be worn by Mr Patrick under s 19A(2) because on 20 May 2019, he signed a WLD given to him by his CCO, that he was to wear an electronic personal identification device (the transmitter). There is no dispute that the EMD which Mr Patrick removed was that transmitter.
Question 3
The acts and omissions for which PN 40399 is for will also be a contravention of s 19C(3) if they are an unlawful interference 'with the operation of an EMD required to be worn or installed under section 19A(2)'.
There is no dispute that the acts and omissions of Mr Patrick which PN 40399 is for are unlawful.
The Act does not define the words 'interfere' or 'operation'. They are ordinary English words and bear their ordinary meanings.
In the context of the Act, the operation of an EMD is the way in which it works so as to 'enable the location of the person to be monitored'.[18]
[18] The Act s 19A(1).
To interfere in something is to intervene in it in some manner.
The State submits it is arguable[19] that to interfere in the operation of an EMD requires intervention in the way in which the EMD works so that it is no longer mechanically able to track the whereabouts of a person. It further submits that as the EMD was still working and able to track a person after Mr Patrick removed it, his acts and omissions did not interfere with the operation of the EMD.
[19] Counsel did not commit the State to this interpretation but nevertheless relied on it as a reasons for me to find that the act of removing the EMD did not amount to 'interfere with the operation' of the EMD.
The State submits that the ambiguity in the meaning of the phrase 'interfere with the operation of an EMD' in the Act s 19(C)(3) should be resolved in favour of an offender because if s 19C(3) and s 40A(2A) applies to an offender he or she is subject to a mandatory minimum penalty.[20]
[20] Applicant's outline of Submissions as to Penalty [36].
Mr Patrick does not argue strongly against a conclusion that 'to interfere in the operation of an EMD' includes to remove it from the person so that it is not able to identify the location of the person. This is not a point on which he relies. [21]
[21] ts 547 ‑ 459, 14 January 2020.
I conclude that in the context of the Act s 19C that 'to interfere with the operation' of an EMD is to intervene in the way in which it works. The way an EMD is intended to and does work is for it to be attached to the body of a person so as to 'enable the location of the person to be monitored'.[22] Mr Patrick interfered with the EMD by removing it from his body so that he was no longer wearing it and it was not able to track his movements. I find that that series of acts and omissions which PN 40399 is for amounts to unlawful interference with the operation of the EMD for the purpose of the Act s 19C(3).
[22] The Act s 19A(1).
I do not consider that there is an ambiguity in the meaning of the relevant phrase. However if there was such ambiguity I would be entitled to have regard to the second reading speech of the amending bill which inserted the relevant provisions into the Act.[23] In this regard I note that my construction of the section is consistent with the second reading speech for the Dangerous Sexual Offenders Amendment Bill 2012 which inserted s 19C(3) and s 40A(2A) into the Act. It said:
There are contingency measures in the Bill in the event of a device being tampered with. Any attempt to remove a device will attract a severe mandatory penalty. The penalty for tampering with the equipment will be mandatory imprisonment of 12 months.[24]
[23] Interpretation Act 1984 (WA) s 19(1).
[24] Western Australia, Parliamentary Debates, Legislative Assembly, 17 October 2012, 7087 (Mr MJ Cowper, Minister for Corrective Services).
This interpretation is consistent also with the cases relied on by the State which say that interference in an object involves changing it in some way. Mr Patrick's acts and omissions changed the EMD by interfering in the working of the EMD because after it had been cut it could no longer be worn as was intended.
Mr Patrick's principal submission is that even if I reach the above conclusion (which I have), as the State did not state in the charge that the offence is for an unlawful interference in the EMD, I cannot find that it is.
Mr Patrick submits that without the State particularising an offence under s 40A(1) as being an interference in the operation of the EMD, the offence cannot attract the mandatory minimum penalty in s 40A(2).[25] He submits that, as the State chose not to particularise PN 40399 in that way, it is not open for me to find that s 40A(2) is engaged.
[25] ts 553 ‑ 554, 14 January 2020.
Mr Patrick seeks to strengthen his argument by relying on the Act s 19C(7) which states:
An act or omission of a person subject to a supervision order that is a contravention of subsection (2), (3) or (6) ‑
(a)does not constitute an offence under this section; but
(b)is, for the purposes of this Act, to be taken to be a contravention of a requirement of the order (if it is not otherwise).
Mr Patrick submits that the deeming provision in the Act s 19C(7)(b) only applies when an offender is charged with an offence under s 40A(1) and the prosecution allege that it is particularised as an interference with the operation of an EMD. Mr Patrick concedes that there are many ways an offence under s 40A(1) can be committed but says that if it is through s 19C(7) then it has to be particularised in that way. It would follow that s 40A(2) applies to it.
The defect in this argument is that Mr Patrick was not charged nor convicted through the Act s 19C(7)(b). Section 19C(7)(a) excludes acts or omissions which would otherwise be contraventions of s 19C(2), (3) or (6) from constituting such offences. That provision applies to Mr Patrick because his acts or omissions would, except for s 19C(7)(a), be contraventions of s 19C(2) and (3). However the deeming provision in s 19C(7)(b) was not engaged in order to prosecute and convict Mr Patrick of an offence under s 40A(1) because Mr Patrick's acts by which he removed the EMD from his ankle so that he was no longer wearing it, that being an omission which was contrary to the WLD to wear an EMD and conditions 4 and 7 of the SO, contravened a requirement of the SO regardless of s19C(7)(b). The deeming provision states that it only applies where acts or omissions by a person bound by a SO would not, but for s 19C(7)(b), constitute contravention of a requirement of a SO. This is not such a case.
Further, it would be nonsensical to find that s 40A(2) only applies to offences committed under s 40A(1) if the only reason why they are contraventions of s 40A(1) is because they are deemed to be so by virtue of the Act s 19C(7). Such a construction would artificially limit the application of s 40A(2) to a subset of s 40A(1) offences.
Mr Patrick also submits that parliament could not have intended that judges would be required to trawl through the facts presented by the prosecution to ascertain whether an offence under s 40A(1) was for an act or omission which was also a contravention of s 19C(3), when neither party wanted the judge to do so.[26]
[26] ts 557, 14 January 2020.
My response to that proposition is that if an offence under s 40A is for an act or omission which is also a contravention of s 19C(3) then a judge is bound to apply s 40A(2) when sentencing the offender for the offence. Section 40A(2) makes it clear that it only applies to acts or omissions that a s 40A(1) offence is 'for'. Consequently incidental or marginally relevant acts or omissions will not engage the operation of s 40A(2).
In contrast, Mr Patrick concedes that if the Act s 19C(7)(a) did not apply to him and he committed the same series of acts and omissions which I have identified as being the acts and omissions which his s 40A(1) offence is for, he would be guilty of an offence under s 19C(3).[27] In my opinion this concession is correctly made. It is obvious and does not require me to trawl through the facts or to rely on irrelevant or marginally relevant acts or omissions.
[27] ts 555, 14 January 2020.
In coming to the finding that the Act s 40A(2) applies to the sentencing of Mr Patrick for PN 40399 I have taken into account the Court of Appeal's recent decision in Larsen v The State of Western Australia.[28] Larsen involved an offender who was indicted in the District Court on three charges being:
(1)On 5 February 2017 at Shark Bay [the appellant] was armed with a dangerous instrument, namely a filleting knife in circumstances likely to cause fear to any person.
(2)On the same date and at the same place as in Count (1) [the appellant], while in the place of [H] without her consent, committed the offence of unlawful wounding.
And that [the appellant] was armed with a dangerous instrument, namely a filleting knife And that [the appellant] did bodily harm to [K].
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.
(3)On the same date and at the same place as in Count (1) [the appellant], with intent to maim, disfigure, disable, or do some grievous bodily harm to [K], unlawfully wounded [K].
[28] Larsen v The State of Western Australia [2019] WASCA 181.
The appellant had pleaded guilty to three similar but not identical charges in the Magistrates Court and had been committed for sentence on those charges.
On 23 November 2017, the day prior to the scheduled sentencing hearing, the State filed an application seeking to amend count 3 on the indictment by adding the following paragraph after the substantive offence:
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
The amendment was allowed and the Court of Appeal found that the effect of this amendment was to make it clear that, if convicted of the count, the appellant was liable to the mandatory minimum sentence of 15 years' imprisonment which applied if an offender was convicted of count 3 with that circumstance of aggravation.[29] The sentencing judge proceeded to sentence the appellant to the mandatory minimum penalty of 15 years' imprisonment for count 3.
[29] Larsen [32] (Mazza & Beech JJA).
In dealing with a ground of appeal which alleged that there was an abuse of process by reason of the amendment of the indictment on the morning of the appellant's sentencing, Mazza and Beech JJA held that the amendment was unnecessary and did not prejudice the appellant because he was liable to the minimum term stipulated in the Criminal Code s 294(2) (the offence creating provision for count 3) regardless of whether the indictment stated that the offence was committed in the course of a home burglary.[30]
[30] Larsen[111] (Mazza & Beech JJA).
In explaining the reasons for this decision Mazza and Beech JJA did not find that the Sentencing Act 1995 (WA) s 7(3)(a) which provides that if the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances, was not able to apply to a provision which creates a mandatory minimum penalty for an offence. However, their Honours found that as the Criminal Code s 294(2) which created the mandatory minimum penalty contained the words 'notwithstanding any other written law', the State is not, as a matter of law, required to plead the circumstances which rendered the offender liable to the mandatory minimum penalty in order to make him or her liable to that penalty.[31]
[31] Larsen [123] (Mazza & Beech JJA).
This reasoning applies to any provision which, notwithstanding any other written law, creates a mandatory minimum penalty for an offence committed in certain circumstances. It applies to the Act s 40A(2) because s 40A(2) contains the phrase 'despite any other written law'. This phrase has the same effect as the phrase 'notwithstanding any other written law'.
Their Honours went on to say that in their opinion as a matter of fairness to an accused, prosecutors should and will be expected to expressly plead any circumstance which gives rise to a mandatory minimum term of imprisonment.[32] This proposition causes difficulty in cases such as this where neither party wishes to rely on the provision which creates the mandatory minimum penalty but the judge finds as a matter of law that it applies to the facts as presented by the prosecution and agreed to by the offender.
[32] Larsen [124] (Mazza & Beech JJA).
In this case the only reason put forward by the prosecution for not pleading or relying on s 40A(2) is that the discretionary maximum penalty is sufficient to ensure that a just sentence is imposed on Mr Patrick. That may be true, but it disregards the mandatory minimum sentence statutory provision. Despite the attitude of the parties and the failure of the prosecution to plead the circumstance which gives rise to the mandatory minimum term of imprisonment, I do not believe that I can do other than give effect to the law as passed by the legislature.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins20 FEBRUARY 2020
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