Thorne v Director of Public Prosecutions for Western Australia
[2024] WASC 320
•4 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THORNE -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 320
CORAM: HOWARD J
HEARD: 28 AUGUST 2024
DELIVERED : 4 SEPTEMBER 2024
FILE NO/S: SJA 1039 of 2024
BETWEEN: TEIGAN GAIL THORNE
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1039 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA AT KATANNING
Coram: MAGISTRATE O'DONNELL
File Number : AM 188/2021
Catchwords:
Criminal law - Single judge appeal - Appeal against sentence imposed for offences under Criminal Code 1913 (WA) - Whether Magistrate erred in application of s 9AA of the Sentencing Act 1995 (WA) - Whether sentence imposed infringed the first limb of the totality principle - Whether miscarriage of justice arose from certain information not being before the Magistrate
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal on Ground 1 granted
Appeal allowed on Ground 1
Appellant re-sentenced
Category: B
Representation:
Counsel:
| Appellant | : | Ms S H King |
| Respondent | : | Ms M L Wong |
Solicitors:
| Appellant | : | Legal Aid |
| Respondent | : | Director of Public Prosecutions (WA) |
Case referred to in decision(s):
Samuels v State of Western Australia (2005) 30 WAR 473
HOWARD J:
Convictions below and sentences appealed from
On 7 May 2024, the appellant appeared in the Magistrates Court at Katanning and pleaded guilty to the following charges:
| Prosecution notice | Offence | Offence Date | Penalty imposed 7 May 2024 |
| KT 250/24 | Stealing food and wine (value $33.89) | 5 April 2024 | $1700 global fine |
| KT 252/24 | Trespass | 9 April 2024 | 4 mth conc |
| KT 253/24 | Disorderly conduct | 9 April 2024 | $1700 global fine |
| KT 254/24 | Obstruct Public Officer | 9 April 2024 | 6 mth cumulative |
| KT 276/24 | Stealing from Woolworths (value $365) | 9 April 2024 | $1700 global fine |
| KT 277/24 | Stealing makeup and food (value $94) | 9 April 2024 | $1700 global fine |
| KT 278/24 | Stealing orange juice (value $5) | 10 April 2024 | $1700 global fine |
| KT 279/24 | Stealing alcohol (value $10) | 22 April 2024 | $1700 global fine |
| KT 280/24 | Breach of Bail | 9 April 2024 | 2 mth conc |
| KT 281/24 | Trespass Woolworths | 9 April 2024 | 4 mth conc |
| KT 282/24 | Trespass Woolworths | 9 April 2024 | 4 mth conc |
| KT 283/24 | Trespass Woolworths | 10 April 2024 | 4 mth conc |
The appellant was in breach of a Community Based Order (CBO) by committing these offences (and by non-compliance). The CBO had been imposed by the Perth Magistrates Court on 29 November 2023; was cancelled and then re-imposed on 21 February 2024. The offence was PE 47218/2023 Assault Public Officer against s 318(1)(d) of the Criminal Code.
The circumstances of that offending were that the appellant threw a pie towards a police officer. The pie splattered on a wall and some of it hit the officer.
On 7 May 2024, the appellant was imprisoned for six months on the re‑sentencing following the breach of the CBO, and that was made cumulative upon the six month sentence for obstructing a public officer contrary to s 172(2) of the Criminal Code.
The appellant received a total sentence of 12 months' imprisonment, with eligibility for parole, backdated to 23 April 2024; there was also a global fine imposed for the stealing and disorderly conduct charges.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and ss 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's sentencing is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each appeal ground.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts‑Smith JJA).
Grounds of Appeal
Initially there were five grounds of appeal, but Ground 2 was formally abandoned prior to the hearing of the appeal. The remaining grounds of appeal are as follows:
1.Ground 1: The learned sentencing Magistrate erred in fact by sentencing the appellant for an of offence obstruct public officer on the wrong factual basis;
2.Ground 3: The learned sentencing Magistrate erred by failing to give the appellant and appropriate opportunity to present a plea in mitigation;
3.Ground 4: The learned sentencing Magistrate erred by failing to give consideration to suspending the term of imprisonment imposed; and
4.Ground 5: The learned sentencing Magistrate erred by failing to take into account the time the appellant had spent in custody prior to sentencing.
Leave to appeal out of time
The last date to file an Appeal Notice was 4 June 2024 and the Appeal Notice was filed on 5 July 2024.
Without reciting the matters in any detail, in my judgement the delay is adequately explained by the appellant's solicitor's affidavit. In any event, the respondent does not oppose leave being granted for the filing out of time. I would grant the appellant leave to commence her appeal out of time.
Ground 1
The respondent accepts that the appeal should be allowed on Ground 1 and that the appellant should be re‑sentenced.
The error was that the Magistrate sentenced on the offence of obstructing a public officer on the basis that the appellant had spat in the course of that incident: that was not correct.
The respondent accepts that:
1.the error identified by Ground 1 is material;[2]
2.that is because spitting at public officials is a feature of offending that materially increases the seriousness of obstructing a public officer;[3] and
3.sentences imposed in respect of obstruction charges not involving spitting or additional violence suggest that six months' imprisonment (after taking into account guilty pleas) are outside the available range.[4]
[2] Respondent's written submissions dated 21 August 2024 [7].
[3] Respondent's written submissions dated 21 August 2024 [7].
[4] Respondent's written submissions dated 21 August 2024 [8].
The respondent helpfully in his written submissions then identified some single judge appellate authorities which supported his concessions.
It is common ground, then, that the appellant ought have her appeal allowed on Ground 1 and should be re‑sentenced by this Court.
I consider that the concession was properly made by the respondent. Reviewing the transcript makes it plain that the Magistrate thought that the appellant's offending on the obstructing a public officer had included spitting, when that was not the case.
I grant the appellant leave to appeal on her Ground 1 and would allow the appeal on that Ground.
I will come to the re‑sentencing, but it is useful to record here the following matters of significance to the re‑sentencing.
Firstly, the term of imprisonment on the assaulting of a public officer was six months and so that term might need to be revisited if I did not impose a term of imprisonment in relation to the obstructing of a public officer because of s 86 of the Sentencing Act 1995 (WA).
Secondly, the respondent submits that the Court might consider that a global fine would adequately address the seriousness of the offending for the obstructing of a public officer as well as the need for specific deterrence. For completeness, I note that the appellant submits that a fine would be an appropriate disposition.
Thirdly, it is common ground that none of a CBO, an Intensive Supervision Order, nor a suspended term of imprisonment is available as sentencing options because the appellant is currently serving a term of imprisonment.
Re‑sentencing
In addition to the submissions made for the appellant I have had regard to a pre‑sentence report (PSR) dated 20 October 2022.
I did discuss with counsel the possibility of obtaining an updated PSR but, on balance, I was not persuaded that the benefit of obtaining such a report outweighed the delay in sentencing.
Further, I note that neither counsel took the position that the sentencing could or should not proceed without such a report.
Principles of sentencing
I am required to impose a sentence which is appropriate, taking into account the seriousness of the offences. I must determine that seriousness of the offences by taking into account the statutory maximum penalty, the circumstances in which the offences were committed, the factors which increase the significance of what the appellant has done, and the mitigating factors, which might reduce the penalty if there were any.
Also, I must not use a more severe sentencing option unless I am satisfied it is not appropriate to use any one of the less severe options available.
I cannot impose a term of imprisonment unless that is the only option available to me.
Circumstances of offending
The events regarding charges KT 252/24 and KT 254/24 happened sequentially as follows from the facts read to the Magistrates Court on 7 May 2024:
Trespass
It's 10.43 in the morning, 9 April, Tuesday, 34 Albion Street, Katanning. A Patricia Browning had reported a female refusing to leave her home address. Police located Ms Thorne laying on a sofa at the address. She has been told to leave. No longer welcome there. Police – she has refused to leave, while police present, stating she was tired. When she initially began to leave, she started packing up property belonging to the owner of the property, Ms Browning. That has been taken from her.
Obstruct
She kept pushing her body back into the police officers stopping her from walking out of the address, and she has finally walked out of the address, attempted to stay on the veranda, and not leave still, continuing to try and not to leave the address, and lashed out at the police officers. It looks like the obstruct has been pushing of her body into police officers, lashing out with her arms to avoid walking to the police vehicle, subsequently, when she was placed arrest, and attempted to pry a police officer's hands off her, refusing to get in the police vehicle's pod – secure pod.
Assessment of the seriousness of the offending
The summary conviction penalty is imprisonment for 18 months and a fine of $18,000. The non‑summary penalty is a maximum of imprisonment for three years.
As may be seen from the facts read to the Magistrate, the offending is not a particularly serious example of such offending: although the offence with its public officer element cannot be considered to be a trivial one by any means.
The seriousness of the offending might also be considered in light of the common position that a fine might be an appropriate disposition.
Personal circumstances
As said, I have had regard to the pre‑sentence report of 20 October 2022 which, of course, is now quite dated; I have also received, without objection, submissions as to the appellant's personal circumstances.
The appellant is currently 34 years old and had, on the appellant's counsel's submissions, a difficult childhood.
As a consequence, the appellant did not finish year 8 at high school and has no history of paid employment.
The appellant is currently single and has reported two prior relationships which were both marred by domestic violence.
The appellant suffers from depression and anxiety and exhibits features of a borderline personality disorder.
It also appears that the appellant has a history of having been admitted in psychiatric units for suicidal thoughts and the appellant has a history of self‑harm.
The appellant has a problem with alcohol, and it appears from the submissions, that the appellant has a serious alcohol dependency.
At the time of the offending for which I am re‑sentencing the appellant, it appears the appellant was homeless which, significantly, contributed to the offending.
Antecedents
The appellant has quite a significant criminal record which started with convictions in the Children's Court and has continued into the appellant's adulthood with adult convictions from July 2009.
While lengthy, it appears from the penalties imposed that most of these have been for comparatively minor offences. There are some more serious charges as I will outline.
In February 2017, the appellant was convicted of a count of assault occasioning bodily harm and a count of common assault which led to a one‑year term of imprisonment to be served concurrently.
On 29 June 2018, the appellant was convicted of three counts of common assault and two of assaulting a public officer which appears to have led to a term of imprisonment.
On 8 November 2019, the appellant was convicted of assaulting a public officer which led to a term of imprisonment.
In May 2021, the appellant was convicted of common assault and assaulting an ambulance officer which resulted in a conditional suspended imprisonment order which was subsequently breached and for which the appellant was imprisoned on 29 September 2021 for six months and one day.
Risk of reoffending
I consider that because of the appellant's alcohol dependency the appellant is at real risk of reoffending which is both regrettable and all too readily understandable.
Without that alcohol dependency being addressed meaningfully, I consider that the appellant's prospects of rehabilitation are not good.
Severe and persistent addictions are not, usually, resolved by an individual's willpower alone, nor by judicial exhortations to an offender.
The most that can be said is that the Court and the community must hope that the appellant receives some assistance which may lead to a mitigation and reduction of the appellant's alcohol dependency and the problems which it causes the appellant and the community more generally.
Personal and general deterrence
There is a need for personal deterrence, but it is unclear to me whether the appellant will learn any lesson which needs to be learnt given the appellant's alcohol dependency.
Also, the public element of the offence means there is a need for general deterrence so that public officers can go about their lawful business unimpeded.
Sentence
Because of the circumstances which I have touched on, it appears that the sentencing options are either a term of imprisonment; or a fine with an adjustment to the six‑month sentence imposed for the assaulting of a public officer.
A complication in the imposition of a fine arises out of the interaction between ss 53(3) and 39(3) of the Sentencing Act, and that I was told by the appellant's counsel that the likelihood is that any fine imposed will be 'converted' into time served.
I was told that the appellant, while in custody, has no financial resources but would be eligible for Centrelink payments once released.
The other matters which are of significance, in my view, to any sentence of imprisonment which might be imposed includes:
1.it is common ground that before the imposition of the CBO for the assaulting a public officer, the appellant spent 51 days in custody; and
2.the appellant has been in custody since 23 April 2024 as that was the date the imprisonment sentences imposed on 7 May 2024 were backdated to.
So, by the time that the appellant completes her sentence for the assaulting of the public officer, she will have spent nearly eight months in custody.
Taking all of those matters into account, in my judgement the appropriate sentencing disposition is that on the obstructing a public officer charge the appellant should be re‑sentenced to a term of one week's imprisonment to be served cumulatively on the term of six months which she is currently serving for the assaulting a public officer. To be clear, those sentences are backdated to commence on 23 April 2024.
So, the appellant will effectively be sentenced to about eight months' imprisonment for the assaulting of the public officer and the obstructing of a public officer.
While that may appear to be harsh, it seems to me to be the appropriate disposition taking into account the seriousness of the offences, the appellant's antecedents and the real difficulties in imposing a fine.
In the circumstances, I do not consider it necessary to consider the other grounds of appeal (namely Grounds 3, 4 or 5). I would not grant the appellant leave to appeal on any of these.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
4 SEPTEMBER 2024
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