Thom v DAVIES
[2018] WASC 324
•29 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THOM -v- DAVIES [2018] WASC 324
CORAM: JENKINS J
HEARD: 19 OCTOBER 2018
DELIVERED : 19 OCTOBER 2018
PUBLISHED : 29 OCTOBER 2018
FILE NO/S: SJA 1100 of 2018
BETWEEN: JAKE LEON THOM
Appellant
AND
CARLY DAVIES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P MALONE
File Number : FRE 9233/2017
Catchwords:
Criminal law - Appeal against sentence - Stealing - Failure to state the fact and extent of reduction for plea of guilty
Legislation:
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted on grounds 1 and 2
Appeal granted on ground 2
Sentence set aside and charge remitted to Magistrates Court for re-sentencing
Representation:
Counsel:
| Appellant | : | Ms N Sinton |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions WA |
Case(s) referred to in decision(s):
H v The State of Western Australia [2006] WASCA 53
McDonald v White [2007] WASCA 213
Roberts v The State of Western Australia [2014] WASCA 239
JENKINS J:
(This judgment was delivered extemporaneously on 19 October 2018 and has been edited from the transcript).
This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Fremantle on 23 October 2017. The appeal is against the sentence imposed for the offence of stealing.
The appellant relies on two grounds of appeal:
(1)That the magistrate erred in law in imposing a sentence of six months imprisonment (albeit suspended) a sentence of imprisonment of six months prohibited by the Sentencing Act 1995 (WA), s 86.
(2)That the learned magistrate erred in law in failing to reduce the appellant's sentence to reflect the benefits to the State and any witness arising from the appellant's plea of guilty pursuant to the Sentencing Act 1995 (WA), s 9AA.
Extension of time
The appellant requires an extension of time to appeal as the appeal was filed about nine and a half months out of time. There are four principal considerations in determining whether an extension of time ought to be granted: the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
The reason for the delay is that it seems that no one noticed the apparent problems in the sentence until a magistrate brought to the appellant's attention in late July 2018 the issue as to whether the sentencing magistrate had the power to impose a sentence of six months imprisonment, albeit suspended, on the appellant.
Following that, an application for Legal Aid was made to pursue an appeal. The appeal was instituted on 7 August 2018. There is an arguable case on appeal in respect of both grounds and there is no prejudice to the respondent in granting an extension of time. For these reasons, I have decided to grant an extension of time within which to appeal.
Grounds of appeal
The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on each ground of the appeal. If a grant of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground.
For the below reasons, I have decided that the magistrate erred and that the appeal ought to be allowed on ground 2. Therefore, I grant leave to appeal on ground 2.
In respect of ground 1, because of my decision in respect of ground 2, it is unnecessary for me to decide that ground. I have had regard to the parties' submissions in respect of ground 1. The respondent does not concede the appeal in respect of ground 1. My decision is that there is an arguable case in respect of ground 1. I will grant leave to appeal on ground 2, even though I do not intend to proceed to determine that ground.
Procedural history
The appeal relates to prosecution notice Fremantle 9233 of 2017, which is a charge that on 23 September 2017 at Success, the appellant stole grocery items to the value of $1,839.30, the property of Coles Supermarket Australia Pty Ltd, trading as Coles Gateway, 816 Beeliar Drive, Success.
The appellant was sentenced to six months imprisonment, which was suspended for nine months. The maximum penalty for the offence is 7 years imprisonment. The summary conviction penalty is imprisonment for two years and a fine of $24,000. As I have said, no appeal was commenced against the sentence until the issue of the six month term was brought to the appellant's attention by another magistrate.
When the appellant appeared in the Magistrates Court on 23 October 2017, he entered a plea of guilty to the stealing offence. It was an early plea of guilty, as the appellant had committed the offence only one month earlier and it was his first appearance in court for the charge. The respondent concedes that it was a plea of guilty entered at the first reasonable opportunity.
The prosecutor read out the facts of the charge as follows:
He was pushing a trolley in Coles supermarket, filling it with groceries. He was seen on security cameras. He exited the supermarket with a shopping trolley full of groceries to the total value of $1839.30 without declaring or paying for those items and received no consent to take them. He was met by security officers and police outside the store. The explanation given was "I haven't stolen anything for ages and I was starving".[1]
[1] ts 2 23 October 2017.
After the facts were read, a plea in mitigation was made. During the plea in mitigation, defence counsel referred to the early plea of guilty. Defence counsel submitted that a fine could be imposed for the offence. At the conclusion of the plea in mitigation, the prosecutor submitted that a term of imprisonment was appropriate.
The magistrate then delivered the following sentencing remarks.
So it's quite right, of course, that a sentence of imprisonment is a sentence of last resort, and I'm not going to send you to prison today, but I'm very definitely going to place you on a suspended sentence. You're 33 years of age, okay, so the time that you will be able to say, "Look, I'm young and silly," has gone. You've got to basically accept the consequences of your actions these days, because you are 33.
The situation is that I don't have to worry about the corruptive effect of prison, or whatever, because you've actually been sent to prison along the way for your dishonesty, and this was just brazen in the context where you had some matters, even earlier this year, dealt with by fines, and you're waltzing around with almost $2000 worth of groceries and, of course, it was unfortunate that you got cut off Centrelink, but that's what happens if you don't comply with the necessary requirements.
As far as your brother's letter is concerned, it's wonderful that he has taken you in, but that's a very recent event obviously, which is fair enough, but you've been offending now for an awful long period of time, so if your brother can be a positive influence on you now, that's wonderful news, but as I say, you're 33 years of age and that hasn't been any great positive influence that have worked in the past.
So you will be sentenced to six months imprisonment, suspended for a period of nine months. So if you commit any offence that's punishable by imprisonment in the next nine months, that's when you will trigger off the six months imprisonment that I have suspended.[2]
[2] ts 4 – 5 23 October 2017.
The magistrate did not mention the effect of the plea of guilty. He did not state that the appellant should receive a discount for his plea of guilty or state the amount of the discount. This was in circumstances where there were competing factors of the strength of the prosecution case as against the earliness of the plea, which could, or would affect the extent of the reduction given by the magistrate in the sentence because of the plea of guilty.
The law – ground 2
The appellant argues that from what the magistrate said and the penalty imposed it must be inferred that the magistrate did not allow an appropriate reduction under the Sentencing Act, s 9AA for the appellant's pleas of guilty.
The Sentencing Act, s 9AA, subsections (2) to (5) states:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
In Roberts v The State of Western Australia[3], the sentencing judge, whilst aware of Roberts guilty pleas to the offences, did not make any reference in his sentencing remarks to a reduction in sentence by reason of the pleas of guilty. In the appeal, the State conceded that the failure to refer to any reduction of the sentence in consequence of the pleas of guilty was an express error by the sentencing judge.
[3] Roberts v The State of Western Australia [2014] WASCA 239.
In considering whether the error was material to the sentencing process, the Court of Appeal inferred from the sentencing judge's failure to refer to any discount for the pleas of guilty or to satisfy the obligation imposed under s 9AA(5) to specify the extent of the discount that the judge had overlooked the effect of the pleas of guilty. The court said that the inference was reinforced by the sentence which was imposed in that case. The Court of Appeal said:
The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge’s failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.[4]
[4] Roberts [49].
In Roberts, the Court of Appeal referred to H v The State of Western Australia.[5] Similar comments were made in McDonald v White.[6] Those two cases were decided prior to the enactment of the Sentencing Act, s 9AA; however, the principles in those cases apply to a case such as this where it has to be determined whether there was a breach of s 9AA.
[5] H v The State of Western Australia [2006] WASCA 53.
[6] McDonald v White [2007] WASCA 213.
These principles must also be seen in light of the fact that even a late plea of guilty will usually warrant some reduction in a sentence. The earlier in the proceedings that the plea is made, the larger the reduction will be. In this case, the earliness of the plea of guilty had to be balanced against the strength of the prosecution case and there had to be some consideration of the competing factors by the magistrate.
A simple failure to comply with s 9AA(5) does not amount to a material error that requires appellate intervention, because the failure to state the fact and the extent of a discount does not necessarily mean that a discount was not given. However, failure by a sentencing judge or magistrate to refer to the effect of a plea of guilty will ordinarily be an indication that the sentencing officer has overlooked the plea of guilty and failed to take it into account in determining the sentence to be imposed.
Application of the law
The respondent accepts that in this case the sentencing magistrate did not make any specific reference to the appellant's plea of guilty, s 9AA or any resulting discount in his sentencing remarks. The respondent also acknowledges and accepts that it is not possible to discern whether any discount was applied (and, if so, the extent of the reduction) and that this indicates that the magistrate overlooked the application of s 9AA.
If the sentencing magistrate had considered and applied s 9AA(2), it would have been necessary for him to consider the competing factors relevant to determining the amount of the discount to be given for the plea of guilty. Therefore, some mention of these competing factors and their consideration would have been expected.
The respondent accepts that the ground of appeal has been made out and that my jurisdiction to resentence the appellant has been enlivened. I agree. Justice requires that the appeal be allowed on ground 2, the sentence be set aside and the appellant be resentenced.
In these circumstances, it is unnecessary for me to determine ground 1. However, I state for the record that the respondent does not concede that the appeal ought to be allowed on ground 1.
The respondent has put forward a considered argument that the provisions prohibiting the imposition of a sentence of 6 months or less does not apply when a suspended sentence is imposed. Because I have decided to allow the appeal on ground 2, it is unnecessary for me to decide the merits of those arguments.
Consequences of allowing the appeal
Usually the appeal court is in as good a position as the Magistrates Court to resentence an appellant. I would usually proceed to do that. However, during my preparation for the hearing, I became aware that the appellant is due to appear in the Armadale Magistrates Court on 2 November 2018 to be sentenced on a number of other charges, some of which were committed around the same time as this offence.
In those circumstances, it is appropriate for me to remit this charge to the Magistrates Court on 2 November 2018 for the appellant to be resentenced on this charge in addition to the other offences for which he faces sentencing.
Orders
My orders will be that an extension of time within which to appeal is granted. Leave to appeal is granted in respect of grounds 1 and 2. The appeal is granted in respect of ground 2. The sentence is set aside. The charge is remitted to the Armadale Magistrates Court for resentencing on 2 November 2018. The court will issue a notice to the appellant to appear for sentencing on that day.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS29 OCTOBER 2018
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