Van Arkel v Tordoff
[2020] WASC 153
•12 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VAN ARKEL -v- TORDOFF [2020] WASC 153
CORAM: ALLANSON J
HEARD: 5 MAY 2020
DELIVERED : 12 MAY 2020
FILE NO/S: SJA 1015 of 2020
BETWEEN: CAROLE MARY VAN ARKEL
Appellant
AND
DANIEL TORDOFF
First Respondent
CHANTELLE WEBSTER
Second Respondent
DAVID KINSEY
Third Respondent
CRAIG BROWN
Fourth Respondent
JUSTIN FOSTER
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V C EDWARDS
File Number : PE 58968 of 2019, RO 2275 of 2019, RO 2276 of 2019, RO 2277 of 2019, RO 4452 of 2019, RO 7725 of 2019, RO 8523 of 2019, RO 182 of 2020
Catchwords:
Criminal law - Sentencing - Where magistrate did not hear facts before resentencing after breach of CBO - Whether failure to give weight to a relevant consideration in sentencing
Criminal law - Sentencing - Where sentence of 3 months' imprisonment for breach of VRO manifestly excessive in circumstances - Whether no substantial miscarriage of justice in total sentence of 7 months' imprisonment for persistent minor offending
Criminal law - Resentencing where appellant had served 4 months of 7 months sentence before appeal - Where court on appeal cannot impose sentence of 6 months or less - Suspended fine imposed
Legislation:
Bail Act 1982 (WA), s 51
Criminal Appeals Act 2004 (WA), s 14, s 41
Criminal Code, s 444
Criminal Procedure Act 2004 (WA), s 129
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 6, pt 8A
Result:
Appeal allowed
Appellant re‑sentenced
Category: B
Representation:
Counsel:
| Appellant | : | N Sinton |
| First Respondent | : | T B L Scutt |
| Second Respondent | : | T B L Scutt |
| Third Respondent | : | T B L Scutt |
| Fourth Respondent | : | T B L Scutt |
| Fifth Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| First Respondent | : | Director Of Public Prosecutions (WA) |
| Second Respondent | : | Director Of Public Prosecutions (WA) |
| Third Respondent | : | Director Of Public Prosecutions (WA) |
| Fourth Respondent | : | Director Of Public Prosecutions (WA) |
| Fifth Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
Baudoeuf v Venning [2010] WASC 322
Cullen v Rollings [2009] WASC 80
Hagart v Viles [2010] WASC 200
Hall v The State of Western Australia [2018] WASCA 151
Lutey v Jacques [2010] WASC 78
NPA v The State of Western Australia [2018] WASCA 131
Powell v State of Western Australia [2010] WASC 54
Wallam v Dent [2008] WASC 170
ALLANSON J:
Introduction
This appeal was heard on 5 May 2020. At the conclusion of the hearing I made orders granting leave and allowing the appeal, setting aside the sentences imposed and resentencing the appellant. I gave brief reasons for the sentences imposed on resentencing. These are my reasons for allowing the appeal.
The appellant, Carole Mary Van Arkel, applied for leave to appeal against a total effective sentence of imprisonment for 7 months, imposed in the Magistrates Court at Rockingham on 29 January 2020.
The sentence was imposed for eight offences, committed between 31 December 2018 and 27 December 2019. Ms Van Arkel was also convicted of three stealing offences (by shoplifting) committed in November 2019, for which she was fined.
The factual background is complicated and I was greatly assisted by the written submissions of both counsel in putting events into order.
On 12 April 2019, Ms Van Arkel appeared in court for her first appearance on three charges of criminal damage committed on 31 December 2018, 28 February 2019, and 13 March 2019. She was granted bail on all three charges.
On 10 June 2019, Ms Van Arkel failed to appear in court in answer to her bail and an arrest warrant was issued. She was arrested on 20 June 2019 and again released on bail on the three damage charges and a further charge of breach of bail for failing to appear on 10 June 2019.
On 25 October 2019, Ms Van Arkel appeared in the Magistrates Court in Rockingham and entered pleas of guilty to the following offences:
(1)criminal damage (the three offences committed on 31 December 2018,[1] 28 February 2019,[2] and 13 March 2019),[3] and
(2)breach of bail, by failing to appear on 10 June 2019 on the three charges of criminal damage.[4]
[1] RO 2275/2019.
[2] RO 2277/2019.
[3] RO 2276/2019.
[4] RO 4452/2019.
Ms Van Arkel was sentenced on 25 October 2019 to a 6 month community based order (CBO) with program and supervision requirements.
On 6 November 2019, Ms Van Arkel was convicted on her plea of guilty to one charge of breach of a family violence restraining order, committed the day before.[5] The offence was a breach of the CBO made on 25 October 2019. Ms Van Arkel was sentenced to a 6 month conditional release order (CRO), with an order that the CBO was to continue.
[5] RO 7725/2019.
On 12 November 2019, Ms Van Arkel was charged with another count of criminal damage, the offence having been committed on 10 September 2019.[6] This offence was committed while Ms Van Arkel was on bail for the three earlier damage offences and the breach of bail.
[6] RO 8523/2019.
On 15 November, 16 November, and again on 25 November 2019, Ms Van Arkel committed offences of stealing by shoplifting. She was charged with these offences on 10 January 2020.
On 25 November 2019, Ms Van Arkel breached both the CBO and the CRO by an offence under the Restraining Orders Act 1997 (WA). She was charged on 14 December 2019, and entered a plea of guilty that day. The matter was adjourned to 27 December 2019 for sentence.
On 27 December 2019, Ms Van Arkel failed to appear, committing the offence of breach of bail.[7]
[7] RO 182/2020.
A warrant was issued for Ms Van Arkel's arrest. She was arrested on 10 January 2020 pursuant to the warrant, and was remanded in custody to be sentenced on 29 January 2020.
On 29 January 2020, Ms Van Arkel was sentenced on 11 offences.
The facts
The material facts of the three charges on which Ms Van Arkel was to be sentenced for the first time were stated to the court for the purpose of sentencing.[8] The facts were admitted. In summary:
(1)(PE 58968/2019) On 14 March 2019, Ms Van Arkel was served with a family violence restraining order, one of the conditions of which was that she was not to enter or remain upon specified premises in Waikiki. At 1.45 pm on 25 November 2019, Ms Van Arkel went to the specified premises to visit her mother who also lived there. The protected person, Ms Van Arkel's sister, was not present. The protected person returned home later and asked Ms Van Arkel to leave. Ms Van Arkel left. On 13 December 2019, Ms Van Arkel was spoken to by police about an unrelated matter and also interviewed about the breach of family violence restraining order. She told police: 'My mum called me to tell me that I had some mail there and that I should come and get it. My mum is 90 years old and dying. I went to see her'.[9]
(2)(RO 182/2020) On 14 December 2019, Ms Van Arkel appeared in court and was remanded to 27 December 2019 on bail. She failed to appear and was arrested on 10 January 2020. She explained, 'I was trying to avoid it for as long as possible'.[10]
(3)(RO 8523/2019) On 10 September 2019 at about 11.47 pm Ms Van Arkel was on a bus sitting directly behind the driver's seat. She repeatedly bashed at a perspex frame that protected a Public Transport Authority information poster, which was on the wall between the driver and her seat. The frame was damaged beyond repair.[11]
[8] Two versions of the sentencing transcript have been filed, on 5 March 2020 and 14 April 2020. The difference is only in page numbering, not content. In these reasons I will refer to the transcript filed on 5 March 2020, which is that referred to in the appellant's submissions.
[9] Sentencing ts 3 ‑ 4.
[10] Sentencing ts 4.
[11] Sentencing ts 4 ‑ 5.
The prosecutor also stated the facts relating to the offences for which Ms Van Arkel was liable to be resentenced for breach of the CBO.[12]
(1)(RO 4452/2019) On 12 April 2019, Ms Van Arkel was released on bail to appear on 10 June 2019. She failed to appear. She gave the explanation, 'I just left for five minutes and came back. The court staff told me I had a bench warrant'.[13]
(2)(RO 2277/2019) On 28 February 2019, Ms Van Arkel attended the Centrelink in Rockingham. After using the telephone in the office, she left the building, kicking at the glass door as she left and causing it to shatter.[14]
(3)(RO 2275/2019) On 31 December 2018, at the Rockingham City Shopping Centre, while walking near the ANZ bank inside the centre, she kicked at a sensor operated glass door with her right foot, causing it to crack.[15]
(4)(RO 2276/2019) On 13 March 2019, Ms Van Arkel attended the Society of St Vincent de Paul in Rockingham and asked for assistance. She was told that they were unable to help her, she then kicked the glass entry door to the office, causing it to crack.[16]
[12] The prosecutor also stated the material facts relating to the three stealing offences, which it is unnecessary to set out here.
[13] Sentencing ts 5.
[14] Sentencing ts 5.
[15] Sentencing ts 5.
[16] Sentencing ts 5.
Sentencing in the Magistrates Court
At the time of sentencing, Ms Van Arkel was 50 years old.
The court was advised that Ms Arkel had been transient since the imposition of the CBO. Supervision had been difficult to conduct at times and, due to her presentation, there had been times when she could not be taken into an interview room. Contact with community corrections had been 'sporadic' and on several occasions she failed to report as directed. The court was also advised that Ms Van Arkel had a long history of non-compliance.[17] A further community based order was not recommended.
[17] Sentencing ts 6 ‑ 7.
In the plea in mitigation, counsel for Ms Van Arkel advised the court that three major things in her life had made it difficult for her to comply with a CBO: homelessness, drug use, and mental illness (including non‑compliance with medication). Counsel submitted that Ms Van Arkel knew she needed to properly address her mental health and her use of drugs. Counsel for Ms Van Arkel agreed that her ability to comply with an order was questionable, and submitted that the court consider imposing fines, taking into account the time in custody and 'positive things going forward'. [18]
[18] Sentencing ts 8.
Ms Van Arkel has an extensive record of offending from when she was about 30 years old. Most of the offending is comparatively minor, although, in January 2009, Ms Van Arkel was sentenced to imprisonment for 20 months for offences including burglary, criminal damage, and fraud. Ms Van Arkel was also given an order for suspended imprisonment in February 2008.
The offences that were before the magistrate were not uncharacteristic of Ms Van Arkel's behaviour over several years, and penalties imposed on other occasions had not been successful in deterring her behaviour. Deterrence and protection of society may warrant a more serious penalty. Her Honour stated that the time had come when she could not really consider any other disposition than imprisonment.
The available penalties
The penalties to which Ms Van Arkel was liable on each offence were:
(1)for breach of bail, a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both;[19]
(2)for breach of a violence restraining order, a fine of $10,000 or imprisonment for 2 years, or both;[20]
(3)for criminal damage, on summary conviction, imprisonment for 3 years and a fine of $36,000.[21]
[19] Bail Act 1982 (WA) s 51(6).
[20] Restraining Orders Act s 61(1).
[21] The Criminal Code s 444(1)(b).
The sentences
On the three shoplifting offences (RO 183/19, RO 184/19, and RO 185/19) Ms Van Arkel was fined $400 (a global fine). Sentences of imprisonment were imposed for the other eight offences.
(1)Ms Van Arkel was resentenced on four charges following breach of the CBO on 25 October 2019:
a.On RO 2275/2019, criminal damage: 3 months' concurrent;
b.On RO 2276/2019, criminal damage: 3 months' concurrent;
c.On RO 2277/2019, criminal damage: 3 months' concurrent;
d.On RO 4452/2019, breach of bail by failing to appear on 10 June 2019: 2 months' concurrent;
(2)On RO 7725/2019, Ms Van Arkel was resentenced, following the breach of the CRO that had been imposed on 6 November 2019, for an offence under the Restraining Orders Act committed on 5 November 2019: 3 months' cumulative;
(3)On the other three offences, Ms Van Arkel was being sentenced for the first time:
a.On RO 8523/2019, the offence of criminal damage committed on 10 September 2019: 3 months' concurrent;
b.On RO 182/2020, breach of bail by failing to attend on 27 December 2019: 1 month cumulative;
c.PE 58968/2019, breach of the family violence restraining order on 25 November 2019: 3 months cumulative (head sentence).
The total effective sentence of 7 months' imprisonment was backdated to 10 January 2020, and Ms Van Arkel was made eligible for release on parole.
The appeal grounds
Ms Van Arkel filed a notice of appeal against the sentences of imprisonment on 27 February 2020. By consent notice filed 14 April 2020, the parties agreed to the following grounds of appeal being substituted:
1.The learned sentencing Magistrate erred in law in resentencing the appellant in relation to RO 7725/2019 breach of restraining order without first hearing the facts of that offence.
2.The learned sentencing Magistrate erred in law by resentencing the appellant to a sentence in relation to RO 7725/2019 breach of restraining order that was manifestly excessive.
A third ground alleging factual error in sentencing on RO 8523/2019 (criminal damage) was abandoned before the hearing.
Grounds 1 and 2 both allege error in the sentence imposed, on re-sentencing, for the offence of breach of family violence restraining order committed on 5 November 2019. Ground 1 alleges an error in the procedure, and ground 2 alleges an error in the result.
Counsel for Ms Van Arkel submitted that a sentencing court must take into account the circumstances of the commission of the offence.[22] This requires that consideration be given to the facts of an offence for the purpose of sentencing. Where the court has not heard the facts of the offence, it must follow that it has not given proper weight to a relevant consideration.
[22] Sentencing Act 1995 (WA) s 6(2)(b).
The respondent submitted that the court could conclude that the sentencing magistrate was aware of the circumstances of the offence, having previously sentenced Ms Van Arkel for it, and that the failure to have the facts recited was an oversight. With the volume of cases going through the Magistrates Court, that submission may be unrealistic. But, in any event, the respondent accepted that the facts should have been recited before sentencing. The respondent referred to Hall v The State of Western Australia[23] where the court describes the requirement in s 129(3) of the Criminal Procedure Act 2004 (WA) that the prosecutor must state aloud the material facts of the offence before the court imposes sentence as 'an essential feature of sentencing proceedings following a plea of guilty'. On that basis, the respondent accepted that there had been an error in the sentencing process.
[23] Hall v The State of Western Australia [2018] WASCA 151 [13].
Under s 14(2) of the Criminal Appeals Act 2004 (WA) 'even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred'. The respondent submitted that the court should find no substantial miscarriage of justice has occurred because the total effective sentence imposed for the offending as a whole was appropriate.
The respondent further submitted that it may be artificial to look at the sentence for this offence in isolation, referring to NPA v The State of Western Australia. The court in NPA, however, was referring to a challenge on the grounds of totality. The court said:
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The critical question is whether the total effective sentence is unreasonable or plainly unjust.[24]
[24] NPA v The State of Western Australia [2018] WASCA 131 [49]. (emphasis added)
The critical question in this appeal is not the severity of the term of imprisonment imposed, but whether the seriousness of the offence or the protection of the community required imprisonment.[25] Counsel for Ms Van Arkel submitted that when the facts of the earlier breach offence were taken into account they were not such as to warrant a sentence of imprisonment. The consequence of the failure to hear the facts resulted in a sentence that was entirely disproportionate to the seriousness of the offending.
[25] See Sentencing Act s 6(4).
The facts of the first offence under the Restraining Orders Act were not in dispute in the appeal. The protected person, Ms Van Arkel's sister, and their 91‑year‑old mother live at the same address. Ms Van Arkel was arrested in the front yard of the protected person's premises. The offence occurred at 11.10 pm on a weeknight. The protected person, was home at the time and called the police. There is no information about the circumstances that led to the family violence restraining order being made.
Ms Van Arkel had not, before 6 November 2009, been convicted for any restraining order breach. She had, however, been convicted in February 2016 of breach of a police order under the Restraining Orders Act.
The principles relevant to sentencing for the offence under s 61 of the Restraining Orders Act are discussed in several decisions of the court.[26] The cases show that the range of factual circumstances is wide and the range of sentences imposed is equally wide. There can be no tariff.
[26] See for example, Cullen v Rollings [2009] WASC 80; Lutey v Jacques [2010] WASC 78; Hagart v Viles [2010] WASC 200; and Baudoeuf v Venning [2010] WASC 322.
In this case the material facts do not disclose that Ms Van Arkel approached the protected person, or tried to enter the house. Her conduct was not persistent. On the material facts, there was no violence or threat of violence, or any other offence committed. The magistrate who originally sentenced, on 6 November 2019, continued the existing CBO, which had been breached, and imposed a CRO for the new offence.
In my opinion, the facts now accepted to be the material facts, even taking into account Ms Van Arkel's criminal history, do not support the imposition of a term of imprisonment. The circumstances of the breach of the order were not so serious as to require that type of sentence.
Conclusion
The fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh. Section 14(2) of the Criminal Appeals Act applies to sentencing appeals.[27] In Wallam v Dent Jenkins J said:
I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.[28]
[27] Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [32].
[28] Wallam v Dent [2008] WASC 170 [31].
Those observations have been followed on several occasions by other members of the court.[29]
[29] See for example, Powell v State of Western Australia [2010] WASC 54 and Abeyakoon v Brown.
If the sentence on RO 7725/2019 is set aside, the total sentence imposed is less than 6 months. The question is whether the appeal should be dismissed pursuant to s 14(2), and the sentence restructured ‑ by making different orders as to accumulation or concurrency ‑ to arrive at a term greater than 6 months. Or should the court exercise the sentencing discretion afresh.
Both parties agreed that the court has power under s 41(2) Criminal Appeals Act to resentence on all charges, including those that were not the subject of the appeal. Under s 41(3):
If under this Act an appeal court decides to vary a sentence, it may do one or more of the following ‑
(a)vary the sentence as imposed;
(b)impose a different sentence involving a different sentencing option;
(c)order that the sentence is to be taken to have taken effect on a date before the date of the order;
(d)order that the sentence is to take effect on a date on or after the date of the order.
By s 41(10), s 41 'does not affect the operation of the Sentencing Act 1995 except as expressly stated'. The court does not have power, in resentencing on appeal, to impose a sentence of 6 months or less, even where, because of time already served, that might be the just result.
I have considered whether the original sentence should be upheld by making the sentence for one or more of the damage offences cumulative. None of them, in my opinion, warrants a cumulative term of imprisonment.
It is necessary to restructure the whole sentence. Having regard to the time that has already been served, the court should sentence using a different sentencing option.
Each sentence of imprisonment will be set aside. Having regard to the time already served, I will impose fines, and suspend the fines under pt 8A of the Sentencing Act for a period of 3 months.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson12 MAY 2020
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