Turvey v Clifton - [2012] WASC 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TURVEY -v- CLIFTON [2012] WASC 322

CORAM: HALL J

HEARD: ON THE PAPERS

DELIVERED : 7 SEPTEMBER 2012

FILE NO/S: SJA 1070 of 2012

BETWEEN: BRENDON TURVEY
Appellant
AND
ANDREW ALBERT JOHN CLIFTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 31758 of 2012

Catchwords:

Criminal law - Appeal against sentence - Breach of bail offence - Whether suspended imprisonment appropriate in the circumstances - Whether sentence manifestly excessive

Legislation:

Nil

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
McDougall v The State of Western Australia [2009] WASCA 232
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Spratt v Canavan [2006] WASC 223

HALL J: On 23 June 2012 the appellant appeared in the Perth Magistrates Court and pleaded guilty to one charge of disorderly conduct, contrary to s 74A(2)(a) of the Criminal Code (WA) and one charge of failing to appear in accordance with a bail undertaking, contrary to s 51(1) of the Bail Act 1982 (WA). He was fined $1,500 for the disorderly conduct offence. He was sentenced to 6 months and 1 day's imprisonment suspended for 12 months for the breach of bail.
On 5 July 2012 the appellant filed an appeal notice seeking leave to appeal against the sentence imposed for the breach of bail. The sentence for the disorderly conduct offence is not challenged. In essence the grounds are that the sentence imposed was manifestly excessive. The respondent has conceded that the sentence was excessive and that the appeal should be allowed. I am satisfied that that concession was properly made.
The facts of the breach of bail can be shortly stated. The appellant was charged with behaving in a disorderly manner at the Perth Railway Station on 27 April 2012. This had involved fighting and using abusive language. He was released on a bail undertaking to appear on 16 May 2012. On that date he failed to appear and a warrant for his arrest was issued.
The appellant was represented when he appeared in the Magistrates Court on 23 June 2012 and entered pleas of guilty to both charges. In respect of the disorderly conduct charge, his counsel said that the appellant's behaviour had occurred in the context of serious family issues and that he had been resorting to alcohol. The magistrate noted that the appellant had accumulated a large amount in unpaid fines. The appellant's explanation for this was that he had not been thinking straight and had been homeless.
In sentencing the appellant in respect of the breach of bail the magistrate said:
You have numerous breaches of bail on your record and I think the time has come to impose a prison term. However, I'm going to suspend that prison term. So there's six months one day imprisonment suspended for 12 months. It means in the next 12 months if you commit any offences which attract a prison term, any offence, not just the same one but any offences which attract a prison term, it is highly likely you will be imprisoned, and then you can sort your fines out (ts 5).
In imposing the suspended sentence the magistrate appears to have been particularly influenced by two factors. First, that to impose a fine on a person who already had a large amount of accumulated unpaid fines would be unlikely to be an effective penalty. Secondly, that the appellant had committed offences of breaching bail on other occasions.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).
A claim of manifest excess depends on establishing implied error in the type or length of the sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.
In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] ‑ [13] (McLure P).
The maximum penalty for an offence of breach of bail contrary to s 51 of the Bail Act is a fine of $10,000 or imprisonment for up to 3 years or both. A sentence of 6 months' imprisonment or less cannot be imposed: s 86 Sentencing Act 1995 (WA). Section 7(2)(c) of the Sentencing Act provides that an offence is not aggravated by the fact that a previous sentence has not achieved the purpose for which it was imposed.
In Spratt v Canavan [2006] WASC 223 McKechnie J considered sentences commonly imposed for offences of this nature. In Spratt a sentence of 6 months and 1 day suspended for 12 months had also been imposed for a breach of bail. The appellant in that case had also committed previous offences of breach of bail. The sentence was found to be manifestly excessive and set aside on appeal. His Honour particularly noted that the bail related to other charges which were not in themselves serious enough to warrant imprisonment. As his Honour noted, that is often a good guide as to the appropriate disposition for a breach of bail.
In the present case the disorderly conduct offence carried a maximum penalty of a $6,000 fine. Imprisonment was not available for that offence. That of course does not exclude the imposition of a sentence of imprisonment for the breach of bail offence, but it is a relevant factor to be taken into account.
A suspended sentence of imprisonment should not be imposed unless imprisonment would otherwise be appropriate: s 76(2) Sentencing Act. A sentence of imprisonment is a sentence of last resort: s 39(3) Sentencing Act. It should not be imposed unless it is justified in all of the circumstances: s 6(4) Sentencing Act.
If the objective features of the offence do not justify a sentence of imprisonment it is wrong to impose a suspended sentence. The imposition of a sentence of 6 months and 1 day suggests that that term has been chosen specifically to avoid the prohibition in the Sentencing Act. However, it is always important to ensure that such a sentence is justified by the seriousness of the offending.
It cannot be assumed that a suspended sentence will never have to be served. The nature of such a sentence is that in the event that the person commits another offence that includes a penalty of imprisonment during the suspension period they become liable to activation of the suspended sentence: s 78 Sentencing Act. The discretion of a court not to order activation in these circumstances is constrained by s 80(3) Sentencing Act. Thus it is important to ensure that a sentence of imprisonment for the offence is appropriate given that it may well have to be served.
In the present case, there was nothing to suggest that this was a particularly serious example of breach of bail. No excuse for failing to attend was given but the appellant appears to have been apprehended within a short period. The charge for which he was placed on bail was not one of the most serious kind and could not itself attract a sentence of imprisonment. There was no suggestion that the appellant had absconded or acted in deliberate defiance of his bail undertaking. He pleaded guilty at the first opportunity.
Whilst the fact that the appellant had breached bail in the past was a matter that influenced the magistrate, those previous breaches did not aggravate the present offence and could not justify the imposition of a sentence that was greater than was otherwise appropriate. Nor did the fact that the appellant had accumulated fines mean that a more serious penalty than a fine must be imposed in this case. The fact that previous sentences may not have achieved their purpose was not an aggravating factor.
As in Spratt it is easy to understand the frustration that busy magistrates may feel when faced with a limited range of sentencing options when dealing with offences that may have causes which are beyond the scope of the criminal law. However, that cannot justify the imposition of a sentence which is manifestly excessive.
For those reasons the following orders are made:
1.The respondent is renamed to 'Andrew Albert John Clifton'.
2.Leave to appeal is granted.
2.The appeal is allowed.
3.The sentence on the breach of bail charge (PE 31758/12) is set aside and in lieu thereof a fine of $400 is imposed.