The State of Western Australia v Van Der Leer
[2010] WASC 303
•19 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- VAN DER LEER [2010] WASC 303
CORAM: SIMMONDS J
HEARD: 19 OCTOBER 2010
DELIVERED : 19 OCTOBER 2010
FILE NO/S: INS 18 of 2010
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MITCHELL PETER VAN DER LEER
Defence
Catchwords:
Criminal law - Correction of sentence - Scope of discretion in sentencing following recall of sentencing under Sentencing Act 1995 (WA) s 37(1) - Taking account of new circumstances
Legislation:
Criminal Procedure Act 1986 (NSW), s 24
Justices Act 1902 (WA), s 166B
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 37, s 69, s 74, s 126, s 127, s 130, s 133
Result:
Offender resentenced
Category: A
Representation:
Counsel:
Prosecution : Ms J Andretich
Defence: Ms C S Amsden
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Legal Aid (WA)
Case(s) referred to in judgment(s):
Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
R v Denning (Unreported, NSWCCA, 15 May 1992)
R v Tangen (Unreported, NSWCCA, 21 June 1996)
R v Tolmie (1994) 72 A Crim R 416
Shortland v Heath [1977] WAR 61
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Traegar v Pires de Albuquerque (1997) 18 WAR 432
SIMMONDS J: (This judgment is edited from the transcript).
This is an application that has been made to me today under s 37(1) of the Sentencing Act 1995 (WA) (Sentencing Act) as well as under s 126 of the Sentencing Act. In my view of the application the State is content for me to deal with the matter under either provision and in my view also the appropriate provision under which to deal with the application is s 37(1). However, it does not seem to me, on the view I take of s 37(1), that it matters, because the power in sentencing that s 37(1) confers is a power which is equivalent to that which more clearly emerges from s 126 and s 127.
The application approached as one under s 37(1) is in respect of an order I made on 1 June 2010 amending an intensive supervision order (the ISO) imposed in the Magistrates Court in respect of a breach of a violence restraining order (the original sentencing). The amendment was an exercise of the power in the Sentencing Act s 130(1)(a)(ii) which was enlivened by the commission by the offender of an offence of aggravated armed robbery while the offender was subject to that ISO. At the same time I had sentenced the offender to a term of immediate imprisonment for that offence and, in the exercise of my power in s 130(1)(a)(iii), I had sentenced the offender to a term of immediate imprisonment after cancellation of each of two other ISOs imposed in the Magistrates Court in respect of breaches of community based orders, themselves made for offences of common assault and a threat to injure, endanger or harm.
The amendment of the ISO that I ordered on 1 June 2010 was twofold in character. One amendment was to extend the term of the ISO from 12 months to 18 months; and the other was to reduce the ISO's community work requirement 'to eight hours to allow for what I understand has been 12 hours of compliance to this point' (1 June 2010, ts 41). I had understood the community service requirement of the original ISO was one of 20 hours duration. In fact, while that had been the original requirement, it had been increased to 40 hours by the sentencing magistrate in the exercise, ironically, of the same power I am called upon to exercise here, that is, s 37(1) of the Sentencing Act. I had not been informed of that increase. Of course the Sentencing Act s 74(3) states that the number of hours set by the court for any 'community service requirement must be at least 40'. That provision was also not referred to in the hearing before me by counsel or by myself.
The Sentencing Act s 37(1) gives the court the power to 'recall' an order whereby it sentenced an offender 'in a manner that is not in accordance with this Act and impose a sentence that is'. The power is a discretionary one: Traegar v Pires de Albuquerque (1997) 18 WAR 432; The State of Western Australia v Wallam [2008] WASCA 117 (S) [32] (McLure J) [59] (Murray J; Miller J agreeing).
The 'manner' relied upon to enliven the court's discretion under s 37(1) was my amendment of the ISO by imposing a community service requirement of less than 40 hours. It was not contended that the power to amend in the Sentencing Act s 130(1)(a)(ii) ‑ or indeed in s 133(1)(a)(ii) approached on an alternative basis for the sentencing which I will reach in a moment ‑ did not include a power to extend the term of the ISO.
I should note that in fact there was another basis on which I might have amended the ISO which had been put to me at the original sentencing. This was a breach in the form of the offender's failure to complete 12 hours of community work in a seven day period: see Sentencing Act s 74(2)(b). For the power to amend an ISO in such a case, see the provision to which I have previously referred, s 133(1)(a)(ii). At the sentencing I did not rely on the latter power and no issue was raised with me in that respect.
The State has recommended to me that I cancel the amended ISO and in its place impose another penalty under Sentencing Act s 130(1)(a)(iii). This other penalty would be one which would recognise the fact of concern to me in the original sentencing, that there would be only a limited time that an amended ISO could run. Indeed, the State pointed out to me that, if Mr Van Der Leer is not granted parole at the earliest possible date, which I was told was 25 December 2010 ‑ and his own counsel appeared to confirm that this was a real possibility ‑ there was a real possibility that Mr Van Der Leer would not be released before the date for the expiry of the sentence without parole, namely, I was told, 26 September 2011.
The State suggested two alternative sentencing dispositions to me. One was a new ISO. This ISO would commence to run today under s 69(7) of the Sentencing Act, and could run for the maximum term allowed for an ISO, namely 24 months under s 69(6). It could include a community work requirement of a minimum of 40 hours, and it might well include another requirement which I will reach in a moment.
However, the State reminded me of matters in the pre‑sentence report from the original sentencing which indicated the difficulty the author of that report had in commending a community based disposition for Mr Van Der Leer on the state of things as it was as at 28 May 2010, the date of the PSR. The alternative sentencing disposition suggested to me was then a sentence of imprisonment concurrent with that he was presently serving. I presume this sentence might ‑ although this was not addressed clearly in the submissions ‑ extend beyond the later date for his release, of 26 September 2011.
It seems to me that, in the adoption of either alternative sentencing disposition, this is to approach the power under s 37(1), once it has been determined to recall the sentencing, as a sentencing afresh, which is to take a wide view in respect of the discretion in s 37(1) to impose 'a sentence that is [in accordance with this Act]'.
There is, I should add, on this view the same power to impose a penalty in s 133(1)(a)(iii) in case of a breach of a requirement of an ISO.
The application before me today viewed as one under s 37(1) raises the question of the scope as well as the exercise of the sentencing power in Sentencing Act s 37(1). That question, curiously, has not it seems to me been clearly resolved in this State. The contrary was not suggested to me. However, counsel for the State and counsel for the defence both appeared to accept that I could adopt the wide view of the scope of the sentencing discretion once I had determined to reopen the sentencing that I referred to. Nevertheless, as the matter might be of significance in other contexts I should indicate why it is that I consider that joint view of counsel to be correct.
I should begin by formulating the issue more clearly than I have formulated it thus far. It is not in contest that the power in Sentencing Act s 37(1) is indeed enlivened. The power, it seems to me, has two component parts.
The first component part is the discretionary power whether to recall the sentence in the first place. Traegar makes it plain that there is a discretion not to recall a sentencing notwithstanding that the conditions in s 37(1) have been satisfied. Had it been my conclusion not to recall I would have then had no alternative but to consider the application under s 126 of the Sentencing Act. However, it was not suggested to me that there was any reason why I should not recall the sentencing and indeed no reason of the kind canvassed in Traegar ‑ which does not purport to exhaustively state why a court should not recall a sentence - appears.
The issue before me is rather to do with the second component part of the power under s 37(1), what I have the power to order once I have determined to recall the sentencing and relatedly, what I should order in the exercise of that power, which is to emphasise the matter is discretionary also. The issue as to the scope of that power has been described in Wallam [32] by McLure J as follows:
The word 'may' in s 37 preserves to the sentencing court a discretion whether or not to recall the order: Traegar v Pires de Albuquerque (1997) 18 WAR 432. This court has determined that Wallam was wrong on the two grounds forming the basis of the s 37 application, and there is no suggestion it should decline to exercise its discretion if it is enlivened. Moreover, this case does not raise for determination the question whether the power in s 37 is limited to the correction of the particular error/s enlivening the discretion. Conflicting views have been expressed in New South Wales on that issue: Tolmie (1994) 72 A Crim R 416, 420, 421; Ho v Director of Public Prosecutions (1995) 37 NSWLR 393, 402 - 403.
I should add that the two New South Wales authorities to which her Honour refers R v Tolmie (1994) 72 A Crim R 416 and Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 concern Criminal Procedure Act 1986 (NSW) s 24(1), which is quoted in Traegar (440).
I also note two further New South Wales decisions, neither of which is referred to in Wallam, both of which are unreported, both of which are of the Court of Criminal Appeal of New South Wales. One is R v Denning (Unreported, NSWCCA, 15 May 1992) (Carruthers, Smart & Grove JJ) particularly at (10 ‑ 12) in the judgment of Smart J; and R v Tangen (Unreported, NSWCCA, 21 June 1996) (Gleeson CJ, Badgery‑Parker & Hidden JJ) (7 ‑ 8) in the judgment of Badgery‑Parker J, with Gleeson CJ and Hidden J agreeing, it seems.
Both Denning and Tangen are quoted from in Traegar at (440 ‑ 441) and (443), respectively. I have noted in particular a part of the quotation from Denning in Traegar at (441) as follows:
Notwithstanding the condition precedent to the exercise of jurisdiction of either the imposition by a court of a penalty that is contrary to law or the failure to impose a penalty that is required to be imposed, the wide variety of the circumstances in which the court may be called upon to consider the exercise of its powers under s 24 point to the need of the court to have wide discretionary powers both in deciding whether to re‑open the proceedings and in the imposition of a penalty that is in accordance with law. In short, the context underlines the use of the word 'may' and the wide discretionary nature of the powers. The words at the end of s 24(1), 'and, if necessary, amend any relevant conviction or order,' underline the width of the powers conferred.
That quotation clearly indicates to me that the wide view of the sentencing discretion, once the sentencing is reopened, that underlies the State's sentencing submission in this case is the view that commended itself to Smart J. I also note, in particular, from Tangen Badgery‑Parker J's judgment, also as quoted in Traegar (443) as follows:
The third question is as to the extent of the power conferred on the court by s 24 once a decision is made that sentencing proceedings should be re‑opened because of the imposition of a sentence which is contrary to law. The extent of what may be done under s 24 has been discussed in several decisions of this court and the Court of Appeal. In Tolmie, Hunt CJ at CL indicated a view that the section should be construed broadly, so that it might fulfil its obvious purpose of allowing the court to rectify errors of a technical or a procedural kind without resort to appeal (p 420). He was clearly of the view that the section did not permit a re‑hearing on the merits. In the Court of Appeal in Ho …, Kirby P, with whom the Chief Justice and Sheller JA agreed, was also of the opinion that the section did not provide for a re‑hearing on the merits of the penalty, but shared the view of Hunt CJ at CL as to the purpose of the section, to permit the correction of mistakes where that would save the cost of delay and expense of an appeal or, his Honour added, of an application for judicial review.
Steytler J in Traegar went on in the following paragraph at (443) to observe as to Tangen as follows:
His Honour also said (at 10) that if it were necessary to choose between the views expressed by the court in Denning and the possibly more restrictive views of s24 expressed by Kirby P and by Hunt CJ at CL in Ho and in Tolmie respectively, he would prefer the former which appeared to him more readily to accommodate the full purpose of s 24. He considered that the Court of Criminal Appeal should follow Denning and should, in the words of Grove J, construe the section 'so as to include scope for the fullest relief which fairly can be comprehended within the concept of correction'. That meant, he said, in a case such as Denning, where much time had passed between the original sentencing and the re‑opening of the sentencing proceedings, that the court must be not only at liberty to, but bound to, have regard to what had transpired in the interim.
That paragraph, it seems to me, clearly indicates that Tangen is accepted in Traegar as authority for the view that the New South Wales Court of Criminal Appeal indicated at that time, 1996, that it preferred the wide view in Denning.
It seems to me then that I am placed in the uncomfortable position for a judge in an application of this kind of determining the scope of the sentencing power I exercise. I have concluded that the wide view that I have associated with the view of Smart J in Denning is that which I believe should be taken of Sentencing Act s 37(1).
I find some support for that in the decision of his Honour Jackson CJ in Shortland v Heath [1977] WAR 61. Shortland is referred to in Ho and Tolmie, and is approved in other respects in Traegar. Shortland is support for the view that I take because of the reference by the Chief Justice (64) to the disposition which he considered to be appropriate, having determined that the power in provision of the Justices Act 1902 (WA) s 166B, the successor to which is 37(1) under the Sentencing Act, was enlivened and that the matter should go back to the Magistrates Court in Busselton for the imposition of penalty. His Honour appears clearly to contemplate that the Magistrates Court in Busselton was to approach the sentencing afresh.
It also seems to me that the wide view is more closely in accord with Traegar than the narrower view, which is to confine the sentencing discretion to simply the correction of the error concerned. I say that because one of the features of the narrower view is the difficulty it would have accommodating a change in the circumstances of the offender relevant to sentencing, such as the offender's rehabilitation, or the offender's service of time in custody since the original sentencing. The latter is, in fact, a matter in this case. The matter of changes of circumstances as relevant to the discretion whether to recall ‑ although there is no comment on it with respect to any discretion in the resentencing itself other than the quoted reference to Denning above ‑ was of apparent significance to the court in Traegar, and influenced the view it took of the discretionary character of s 37(1): see (449) (Steytler J). Another difficulty with the narrower view is in determining how to sentence in accordance with the Sentencing Act simply to correct an error, where the error is one as to a factor which is relevant to the exercise of sentencing discretion, as well as determinative of the minimum sentence in a particular respect that may be imposed. That was, as I understand it, precisely the error in the sentencings considered in Traegar, under the Road Traffic Act 1974 (WA) s 49(1) as it is now. That, it seems to me, is an important practical consideration.
It follows then, in my view, that I am in a position under Sentencing Act s 37(1), having decided to recall the sentencing, to exercise the sentencing discretion afresh, as if the offender were before me today for the first sentencing upon it. The only sentencing discretion exercise with which I am concerned, of course, is that in respect of the ISO imposed by the Magistrates Court for the breach of the violence restraining order, the offence of aggravated armed robbery having activated the power under s 130 of the Sentencing Act.
I turn then to the second issue to which I have referred and for which I can be mercifully much briefer. This concerns the exercise of my sentencing discretion. In approaching this I have reviewed all the circumstances that it was appropriate for me to review in the original sentencing. However, on the view I take of the width of the sentencing discretion I have under s 37(1) I am able to take account as well of any new circumstances properly drawn to my attention.
One such new circumstance properly drawn to my attention that is relevant to my sentencing is what I was told as to the present position of the offender, having served time in incarceration under the sentence I imposed on 1 June 2010 for the aggravated armed robbery and in respect of the other intensive supervision orders to which I referred, and with the likelihood or at least the strong possibility that he will not be released from custody before September of next year.
That would make an amendment of the ISO, perhaps by extending it to 24 months but otherwise leaving it unchanged, problematic in view of the aims I had for the ISO as amended back in June 2010, aims which it seems to me, continue to have force today.
I have also reviewed carefully the considerations emerging out of the pre‑sentence report where, as I said earlier, the author at the time of the report was not in a position to commend a community based disposition. It seems to me, that concern is met in a large part by the fact that that is not a possibility the offender faces in any event. The earliest at which he can be released is 25 December 2010.
It seems to me, however, that the pre‑sentence report identifies what it calls 'treatment needs', for the text of which I would refer to the pre‑sentence report, treatment needs which his counsel, Ms Amsden, before me today indicates have proved practically impossible to meet through programmatic means in prison presently. Indeed a suitable programme, I was told, will not be available to the offender or indeed to any offender until 2013. The offender will in the ordinary course have been released some time before then. Those treatment needs, it seems to me, are ones of importance to the offender; they are also of importance to the community and those with whom the offender will be likely to deal upon his release. It seems to me then that there is a very strong justification for a sentencing disposition that would accommodate programmatic interventions of that kind. It seems to me for the reasons I gave in my original sentencing that I am not brought to the option of imprisonment.
It seems to me that what I should do in this case is exercise the power I have in the Sentencing Act s 130(1)(a)(iii) to cancel the ISO in respect of the breach of the violence restraining order, to impose a new ISO to commence today, and to order that the new ISO should run for 24 months and have requirements of two kinds. One is a community service requirement, which it seems to me, should be one of 40 hours' duration. The second requirement that I would call for is a programme requirement. The programme requirement is one to be resolved as to its detail with a community corrections officer. I would commend to that officer for that purpose the treatment needs identified in the PSR before me from 28 May of 2010. Those two requirements are of course of considerable seriousness.
I should add that, because I am imposing a new intensive supervision order, the community service the offender has already done ‑ which, as I understood it, was some 12 hours under the previous order ‑ has now, as it were, disappeared, the new community service requirement being 40 hours in its entirety.
I need to remind you, Mr Van Der Leer - and I apologise for the duration of these remarks, many of which will be highly technical for you ‑ of what it is that an intensive supervision order involves. Undoubtedly this was explained to you in the Magistrates Court. It is important that I repeat the important implications of an intensive supervision order.
An intensive supervision order with the programme requirement I have indicated as well as the community service requirement that I have also indicated is an order that must be complied with. It requires co-operation between yourself and the community corrections officers. In the event that the co‑operation is not forthcoming and you fail to comply with the order you can be brought back to court for resentencing; indeed you have already seen how that works, back when I originally sentenced you on 1 June 2010. I would presume that is not what you want to have happen again.
The second aspect of an intensive supervision order you are also familiar with is, that if you commit an offence while on that order, likewise you are liable to be resentenced, and again that is exactly what you faced back on 1 June 2010.
For all of those reasons it is most important that the intensive supervision order, when you find yourself in a position to comply with it, is one that you comply with fully and that you ensure that the conditions that led to your original offending are dealt with and that you do not offend again.
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