Thomas v Mallard
[2009] WASC 95
•17 APRIL 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THOMAS -v- MALLARD [2009] WASC 95
CORAM: McKECHNIE J
HEARD: 16 MARCH 2009
DELIVERED : 17 APRIL 2009
FILE NO/S: SJA 1101 of 2008
BETWEEN: BRETT JAMES THOMAS
Appellant
AND
ALLAN STANLEY MALLARD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E D CAMPIONE
File No :PH 1113 of 2008, PH 1114 of 2008, PH 1115 of 2008, PH 1116 of 2008, PH 1117 of 2008, PH 1118 of 2008, PH 1119 of 2008, PH 1120 of 2008, PH 1121 of 2008, PH 1122 of 2008
Catchwords:
Criminal law - Plea of guilty - Subsequent trial of co-offender - No case on part of co-offender's case - whether exceptional reasons to allow change on plea
Sentence - Subsequent sentence for co-offender - Whether sentence gives rise to justifiable sense of grievance - Term of imprisonment - Whether last option reached
Legislation:
Nil
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Imprisonment set aside and fines imposed
Category: D
Representation:
Counsel:
Appellant: Mr A O Karstaedt
Respondent: Mr J G Nicholls
Solicitors:
Appellant: Max Crispe
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nelson v Haynes (2003) 27 WAR 154; [2003] WASCA 73
McKECHNIE J: Apocalypto may be a great if gory film directed by Mel Gibson. It is difficult to tell because all the characters speak Mayan. What is not difficult to tell, however, is that the exploits of its actors should not be emulated in real life. The appellant and his friend, Seth Pywell, watched Apocalypto and then decided it would be a good idea to construct a blowpipe and darts, then hunt people with them. The darts were made of cotton buds with a needle melted into one end. The blowpipe was made of plastic. They drove to Two Mile Camp, out of Port Hedland, where there were a group of homeless and harmless indigenous people camping out as a result of various cultural and social issues. The appellant and Pywell called over one person and blew a dart at her. She was not injured because the dart hit her clothing and bounced off. The second victim, Mr Peter Yabalah, was fast asleep. He was approached and a dart blown at him. Whether it caused him bodily harm is a matter of dispute of which more anon.
The budding warriors did not get far.
After these attacks they departed but had only got 150 metres when the police stopped and searched the vehicle finding inside a baton, a machete and live ammunition. Between Three Mile Creek and the vehicle police discovered three small homemade darts approximately seven centimetres long and a black blowpipe. The darts were made from cottonwool buds with a needle melted into one end. The blowpipe was made of plastic. The darts matched those fired at the victims.
The police requested consent of the appellant to conduct a search of his residence and were told by him that he was in possession of a Chinese SKS semi‑automatic assault rifle with folding bayonet and 60 rounds of ammunition, a firearm not licensable in Western Australia. Inside the bag with the rifle were two full 30‑round magazines of 7.62 mm ammunition. Five 38 calibre rounds of ammunition were also found together with an electric shock weapon. The possession of these items resulted in further charges to which the appellant pleaded guilty. He was represented by experienced counsel.
The appellant was remanded for a pre‑sentence and a psychological report. He probably did not do himself any favours by advising the pre‑sentence report writer that he was unaware that people were living in that area of scrubland on the edge of South Hedland and 'they should be living in normal houses like everyone else'. He did not understand why an upstanding taxpaying productive member of the community was facing court in such a manner.
The magistrate came to the view that:
The flavour of all that is before me and the facts show a total disregard for the law and complete and utter lack of responsibility when it comes to weapons … In my opinion the offences are too serious for anything other than a term of imprisonment. I have been fortified in that view by the contents of the pre‑sentence report and given the poor pre‑sentence report and psychological‑report I am not persuaded that you would address the significant issues that you have through counselling.
After taking into account matters of mitigation, the appellant was gaoled for a term of 10 months for assault occasioning bodily harm, 8 months for common assault and terms of 3, 5 and 6 months for firearms/weapons offences. All sentences were ordered to be served concurrently. He was fined in respect of two other matters (possess cannabis and failure to ensure firearm/ammunition stored correctly). There is an issue because in respect of one of the firearm offences for which he was imprisoned (PH 1122/08) the appellant could only receive a fine. This is conceded by the respondent.
There perhaps the matter might have rested but for the fate of the co‑offender, Mr Pywell. Mr Pywell went before a different magistrate and pleaded not guilty. Although he was convicted of assault of the first victim, that magistrate convicted of assault only in respect of the second victim finding there was no evidence of bodily harm. Mr Pywell was fined $2,000 in respect of each of the two assaults. This appears to have provoked the appellant into applying for an extension of time for leave within which to appeal which was granted. Subsequently he was granted bail pending the determination of the appeal.
The appeal is in two parts: a challenge to the conviction for assault occasioning bodily harm and a challenge to the sentences.
Appeal against conviction
Ground 1
Assault occasioning bodily harm
There has been a miscarriage of justice within the meaning of s 8(1)(b) of the Criminal Appeals Act 2004, such that the conviction should be set aside and substituted, pursuant to s 19 of the Act, by a conviction of common assault.
Particulars
(a)The Applicant pleaded guilty to assault occasioning bodily harm in reliance upon the prosecution's statement of material facts which contended that the complainant had sustained bodily harm in circumstances where the appellant was not able to contest that bodily harm was sustained.
(b)At the trial of the Applicant's co‑accused, Seth Pywell, before his Honour Magistrate Roth in the Magistrates Court held at South Hedland on 30 October 2008 (PH 1166 of 2008), the prosecution evidence did not establish a prima facie case that the complainant had sustained bodily harm, and the learned Magistrate held that there was no case to answer on the charge of assault occasioning bodily harm but found the co‑accused guilty of common assault.
The appellant's submissions can be shortly stated. The magistrate in Pywell's case upheld the no case submission in relation to bodily injury. When the appellant pleaded guilty and was sentenced, the prosecution stated that the dart penetrated three millimetres into the victim's body and it is apparent that the appellant pleaded guilty in reliance upon the prosecution's statement of the facts and circumstances where the appellant could not contest the allegation that bodily injury was sustained. It eventuated, however, that after the relevant evidence in relation to this issue was adduced at the co‑accused's trial there was no evidence capable of sustaining the allegation that bodily injury was caused.
The issue is whether these facts give rise to a miscarriage of justice. There is no list of circumstances which may be relevant and the categories for finding that there has been a miscarriage of justice are not closed. Moreover, in Nelson v Haynes (2003) 27 WAR 154; [2003] WASCA 73 at 156 Murray J commented:
It is well‑established that an appeal against conviction after a plea of guilty will only succeed in exceptional circumstances. Ordinarily, the appellant will be bound by the plea made as a result of considered judgment, understanding the effect of what was being done, particularly when the plea is made upon legal advice. [5]
The test may be differently expressed. If a person has made a considered plea, especially on legal advice, there may be no miscarriage of justice in allowing that plea to stand.
I do not accept the submission that the appellant pleaded guilty in reliance on the statement of facts where he could not contest the allegation that bodily injury was sustained. It is open to an accused to contest any allegation. The consequences may be that a person gives up the advantages which flow from a plea of guilty if the allegation is able to be proved. That is their choice.
If a needle penetrated three millimetres it takes little imagination to think that it may interfere with health or comfort, particularly the latter. In Pywell's trial, Mr Yabalah gave evidence. It was clear that he had almost no memory of the event. He said when he woke up he was feeling dizzy. He could not see anything:
Did you say you felt something?---No, I was too drunk.
He did speak about a dart but could not see it. He thought the needle fell out at the camp.
Constable Mallard gave much clearer evidence. He attended the camp, saw the complainant and was asked:
Did you see anything else unusual at that scene?---Yes. I observed a dart sticking out of the left-hand side of his ribs. This dart was similar to the ones that I have located 30 metres away from the vehicle. There were numerous darts sort of the same as the ones that were found on the side of the track and exactly the same as the one that was located stuck in the side of Peter Yabalah, his chest. (ts 29)
He was further asked if Mr Yabalah required medical aid due to the dart sticking out of him. In cross‑examination he was asked:
Is that your evidence that you saw like a dart in Mr Yabalah's body?---Yes.
Are you sure?---Yes.
That's what you saw?---That's what I saw.
The magistrate's reason for upholding the no case submission in relation to bodily harm were:
Constable Mallard hasn't given any evidence as to whether the dart actually penetrated the chest, whether the stinging or the pain resulted. I accept that there may be an inference to be drawn, possibly, but on the basis of the evidence, I can't connect the dart to the injury, because the witness Yabalah spoke of being dizzy … He did not in his evidence speak of any pain. He did not in his evidence speak of any stinging. (ts 44, 45)
That magistrate's ruling is not in issue in this appeal. However, the evidence of Constable Mallard does indicate that there was a factual basis for the statement of material facts by the prosecutor in the appellant's case that the dart penetrated the victim. Although the prosecution may be unable to sustain proof of an element of an offence at a later trial does not convert the appellant's plea into an injustice. The appellant's plea was an acknowledgement of a fact based upon a statement of facts which, as I say, has some support in the evidence of Constable Mallard given subsequently. The situation cannot be compared to Nelson v Haynes where there was no offence at law. The issue of bodily harm was not explored because the appellant, by his plea, had resolved that question. He could have contested it but did not.
The present appeal is in many respects similar to those cases where different juries on different occasions return different verdicts in respect of similar facts for different accused. Those cases do not automatically lead to a quashing of a conviction.
I am not persuaded that the appellant suffered any injustice by his informed plea of guilty. Nor do I consider that after a conviction following that plea I should set aside so much of the conviction that relates to the element of bodily harm.
The appeal against conviction is dismissed.
Appeal against sentences
1.In relation to the two assault convictions, having regard to parity principles, and the sentences for the equivalent offences imposed on the Applicant's co‑offender Seth Pywell in the Magistrates Court held at South Hedland on 30 October 2008 (PH 1166 of 2008), namely fines of $2,000 on each charge, the sentences of imprisonment imposed on the Applicant in all the circumstances justify a sense of grievance and give rise to a miscarriage of justice.
2.In the alternative ground 1, the learned Magistrate erred in law in imposing sentences of immediate imprisonment in respect of the two assault convictions, such sentences being excessive or manifestly excessive in all the circumstances.
3.In relation to the other sentences of imprisonment, the learned Magistrate erred in imposing terms of immediate imprisonment, such sentences being excessive or manifestly excessive in all the circumstances.
4.In the alternative to ground 3, in relation to the other sentences of imprisonment, such sentences, being of 6 months or less, ought to be substituted by non-custodial sentences by reason of the provisions of s 86 of the Sentencing Act 1995.
At the appellant's sentencing hearing it was accepted by both parties and the magistrate that the two offenders were equally culpable. Following the trial of Pywell, the magistrate found that Pywell was the driver of the appellant's car at the relevant time. Pywell had taken the matters to trial whereas the appellant had pleaded guilty at an early stage. The appellant had cooperated with the police. Counsel before me pointed out other differences between the appellant's position and that of Pywell submitting that the difference in ultimate penalty - a sentence of imprisonment for 10 and 8 months for the assaults - compared with fines of $2,000 imposed on Pywell, left the appellant with a justifiable sense of grievance.
There are also differences between the two. The appellant was not a first offender and has a recent conviction for common assault. The appellant was sentenced first. The magistrate who subsequently sentenced Pywell was well aware of the sentence imposed on the appellant and differentiated between the two. Where offenders are sentenced by different courts at different times with significantly different outcomes, the offender who received the more severe penalty may feel justifiably aggrieved. In such a case the court might intervene to correct both the injustice and the sense of injustice. There are qualifications. Offenders guilty of like crimes should be treated alike. However, the law acknowledges that where there are differences these should be taken into account. Moreover, a court should not reduce a proportionate and adequate sentence to one which may be inadequate simply because there is a difference between the two.
The later magistrate formed the view that the appellant rather than Pywell was the major perpetrator and driving force and that the appellant was the principal offender. It is, with respect, difficult to see how he arrived at that conclusion. There seems little to differentiate between the two in terms of their actions - each played their part in the hunt. Nor was there a marked disparity in their backgrounds. Pywell was a little younger. The appellant had a more extensive, though still relatively minor, record. The most significant conviction was a common assault in April 2008 for which he was fined $400.
In the circumstances, the appellant does have a justifiable sense of grievance giving rise to a miscarriage of justice and ground 2(1) is allowed.
I would also allow the appeal on grounds 2.2 and 2.3. It is hard to detect error in the approach of the magistrate except in the ultimate result. She correctly described the criminality:
Of course the criminality of these matters is that it was deliberate, planned and unprovoked. You were essentially hunting for a human target. You were trying to recreate fiction and although each of them were lucky not to sustain injuries these are nevertheless serious offences. What you did was totally abhorrent.
The seriousness of the appellant's intentions and conduct cannot be overstated. However, there must still be some proportion kept between his intentions and actions on the one hand and the results on the other. Whatever might have happened, the actual results of the actions were minor. Imprisonment is a sentence of last resort. In all the circumstances, and even taking into account the appellant's intention, his lack of insight or remorse, a sentence of imprisonment to be immediately served was not warranted and the magistrate erred in imposing such a sentence. It is difficult to escape the conclusion advanced by the respondent that there was an element of racism by the appellant in the choice of target. Even so, the overall criminality could be adequately dealt with without the imposition of an immediate sentence of imprisonment.
What then is to be done? The appellant had served approximately three months of the sentences up to the time of being released on bail. I take that into account in setting fines for the offending behaviour. The fines have been considerably reduced because the appellant has served time in prison and therefore should not be seen as setting any form of precedent or benchmark. I would otherwise have imposed fines which would totalled more than those imposed on Pywell.
The orders are: Appeal against conviction dismissed. Appeal against sentence allowed. The sentences of imprisonment are set aside and the following fines imposed:
•For the offences of assault occasioning bodily harm and the offence of common assault (PH 1113/08 and PH 1121/08) a single fine for both offences of $500: Sentencing Act s 54.
•For failing to ensure the safekeeping of firearms/ammunition (PH 1122/08); and possessing unlicensed ammunition (PH 1120/08); possessing unlicensed firearm (PH 1119/08); possessing a prohibited weapon (PH 1115/08); possessing a prohibited weapon (PH 1116/08); and possessing a controlled weapon (PH 1114/08), I am satisfied that these form part of a series of offences of the same or similar kind and impose a global fine of $1,000.
•I do not interfere with the fines imposed for failing to store firearm/ammunition correctly (PH 1118/08); and possessing a prohibited drug (cannabis) (PH 1117/08).
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