Vickery v McAlinden
[2017] WASC 224
•9 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VICKERY -v- McALINDEN [2017] WASC 224
CORAM: CHANEY J
HEARD: 2 AUGUST 2017
DELIVERED : 9 AUGUST 2017
FILE NO/S: SJA 1022 of 2017
BETWEEN: TIMOTHY DONALD GEORGE VICKERY
Appellant
AND
TIFFANY McALINDEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R HUSTON
File No :PE 5177 of 2017
Catchwords:
Appeal - Criminal law - Sentencing - Suspended term of imprisonment - Factual error in sentencing
Sentencing - Whether prohibition on sentence of imprisonment less than six months applies to term of sentence that is to be suspended - Two step process in imposing suspended sentence
Legislation:
Criminal Code (WA), s 74A(2)(a), s 172
Sentencing Act 1995 (WA), s 76, s 77(6), s 82(6), s 86
Result:
Appeal allowed
Applicant resentenced
Category: A
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Ms G N Beggs
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Almonte v Beswick [2013] WASC 207
Casotti v Pickering [2013] WASC 174
Dinsdale v R (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
Lang v The State of Western Australia [2011] WASCA 153
Pallister v The State of Western Australia [No 2] [2015] WASCA 221
CHANEY J: On 20 February 2017, the appellant appeared in the Perth Magistrates Court before his Honour Magistrate Huston and pleaded guilty to one count of disorderly behaviour in public contrary to s 74A(2)(a) of the Criminal Code (WA) and one count of obstructing a public officer contrary to s 172(2) of the Criminal Code. He was represented by a duty counsel (who was not counsel on this appeal).
The appellant was sentenced to a term of imprisonment for 6 months and one day suspended for 12 months for the charge of obstructing a public officer and to a $750 fine for the charge of disorderly behaviour in public. He now appeals against the sentence imposed upon him for the charge of obstructing a police officer.
Extension of time
This appeal is brought under div 2 of the Criminal Appeals Act 2004 (WA). The appeal is required to be commenced within 28 days after the date of the decision unless the Supreme Court orders otherwise.[1] The appeal notice was filed by the appellant on 21 March 2017, or 29 days after the magistrate's decision.
[1] Criminal Appeals Act 2004 s 10(3).
The appeal was thus filed one day after the 28 day appeal period had passed. An affidavit of the appellant's solicitor explained that she only obtained the transcript of the hearing before the magistrate on 20 March 2017. She discussed the transcript and a possible appeal with the appellant and received instructions to commence the appeal that day. It was not possible to lodge the documents that day because the solicitor did not return to her office after taking instructions until after 4.00 pm. The appeal notice was filed the following day.
The respondent, quite properly, did not oppose the grant of an extension of time, and in the circumstances disclosed in the solicitor's affidavit, I am satisfied that the short delay in commencing the appeal is adequately explained and that an extension of time should be granted.
Grounds of appeal
There are two grounds of appeal. They are expressed as follows:
(1)the learned sentencing magistrate erred in imposing a sentence of imprisonment, albeit suspended, when in all the circumstances, including those referable to the offender personally, the seriousness of the offending was not such that only a sentence of imprisonment could be justified;
(2)the learned sentencing magistrate erred in fact in sentencing the appellant on the basis that he elbowed a police officer in the face.
The respondent accepted that the magistrate made the factual error referred to in ground 2, but submitted that the error did not impact on the magistrate's conclusion as to the seriousness of the offence, that that conclusion was correct and no different sentence ought be imposed regardless of the error.
The proceedings at first instance
The appellant pleaded guilty to both charges. The prosecutor read the following facts to the magistrate:
5.50 pm, Thursday 19 January 2017, the accused was on the Mitchell Freeway, northbound in Leederville. The accused was observed by police getting out of a vehicle in the left side northbound lane and walking in and out of the emergency lane. The accused took off his shirt, waving his arms around while he was yelling 'what the fuck' and 'give me back my phone, do it fucking now' toward a female sitting in the vehicle.
The accused was approached by police in relation to his behaviour. He very irately - he was very irate and aggressive towards the police. He was continuously yelling and screaming out and growling, his hands were clenched and he was pacing back and forth. The accused kept trying to walk onto the carriageway towards the female from the vehicle. He was yelling out 'don't listen to them pigs, babe, they're all fuck- they are fuck all', 'get the fuck away from me' and 'what the fuck are you going to do'.
The accused was told by officers to stay on the other side of the safety barrier but continued to keep walking out onto the carriageway while yelling 'fuck off' and 'don't fucking touch me, you c'. The accused was informed he was under arrest and restrained at - his arms by police. The accused resisted arrest by fighting with officers on the side of the freeway. The accused attempted to get his arms free and push police away while screaming 'don't fucking touch me, I swear to god, if you don't let me, I'm going to kill you'.
The accused continued fighting with police, attempted to elbow officers in the head. This continued for about one to two minutes. He was taken to the ground and secured in handcuff - secured and handcuffed where he still continued yelling out 'I'm going to slit your throat' and the accused was released to summons. At the time, there was heavy traffic and other road users were driving around the vehicle and the accused. The explanation provided was 'I can't remember what happened, I'm sorry, I've never been like that with police before'.[2]
[2] ts 3 ‑ 4, 20 February 2017.
Counsel for the appellant advised the magistrate that the facts were admitted to which the magistrate inquired 'including the elbow to the head of the officers?'.
Counsel responded:
Well he doesn't specifically recall, sir, but he doesn't wish to take issue with the - what's alleged and he is apologetic for it.[3]
[3] ts 4, 20 February 2017.
The plea in mitigation by duty counsel was brief. Referring to the female who was in the vehicle at the time of the offence, counsel said:
She came and collected Mr Vickery. He had been at a friend's birthday party and had drunk far too much and he accepts that he was highly intoxicated with alcohol. She was collecting him, driving him home and, apparently, Mr Vickery states he received a text message from a woman on his telephone. The woman was, in fact, he instructs, his friend's mother but it was a message about whether he got home safely and his partner got upset about that and that's what kicked off the argument and I understand it may have been that the phone ended up being ejected from the car at some point.
The police wouldn't have known that, of course, when they have come up to him, seeing him pull over on the side of the road.
HIS HONOUR: They were concerned for his welfare, though, as much as anything.
COUNSEL: Yes, exactly, and it may have looked like a road rage incident, you don't - you just don't know. He's 24, he is in receipt of the Newstart Allowance and is engaged with his job seeking provider. He finished year 10 at school, he's medicated for depression, he just drank far too much and he accepts that he behaved appallingly. He has pled guilty at an early stage, sir, so should be credited with that.
I would ask for fines.[4]
[4] ts 4 ‑ 5, 20 February 2017.
The prosecutor then submitted that 'particularly the elbows, he's quite fortunate, is Mr Vickery, that he's not charged with ... a more serious charge'. The prosecution suggested that something other than a fine was an appropriate disposition.
The magistrate acknowledged that the appellant had pleaded guilty saying that he would 'get a discount for' that fact. He referred to the fact that the police clearly had the appellant's best interests in mind and that, being adjacent to the freeway, the manner in which the appellant carried on at that time put himself, the officers concerned, and possibly his partner and other road users, at risk. He continued:
And what you were saying and the way you engaged with the police and your partner is a real concern, particularly on the basis of the facts which you accept which is including as an obstruct, not as an assault public officer, but, fortunately for you, the nature of the charge that has been alleged is that you were obstructing a public officer. That's at the very upper end of obstructing, I would have thought, because it's borderline as to whether or not it would have amounted to an assault.
Indeed, the facts suggest that it was an assault but that's not what you've been charged with but obstruct is still a serious offence.[5]
[5] ts 5, 20 February 2017.
The magistrate observed that the penalty to be imposed was required to reflect the seriousness of the offence and observed that the appellant's record demonstrated both exposure to the full spectrum of sentencing outcomes previously and a poor record of failure to comply with court orders. He noted that whilst the appellant's record did not make the offences more serious, they did demonstrate that any leniency to which the appellant had been entitled in the past had been exhausted. He continued:
You get credit for the plea of guilty but - and a discount, in fact, for the obstruct public officer. But in terms of how serious an obstruct offence can be, it's at the upper end because you actually struck the officers in the head. It's not disputed that you did that.[6]
[6] ts 7, 20 February 2017.
The magistrate concluded that the offending was so serious as to warrant a term of imprisonment but said that that term would be suspended.
There then followed an exchange between the appellant and the magistrate to the effect that the appellant was protesting the magistrate's decision. In the course of that exchange, the appellant said:
ACCUSED: It's not - it's just not the top end of obstructing a police officer. I never elbowed him in the face. I know the statement says that but I never got interviewed in the courtroom.
HIS HONOUR: Well, you've accepted the facts that you did.
ACCUSED: Okay.
The magistrate then proceeded to impose a sentence of 6 months and 1 day, suspended for 12 months, in doing so, the magistrate expressly extended the maximum discount of 25% for the early plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
Ground 2
As already noted, the respondent concedes that the magistrate erred in fact in sentencing on the basis that the appellant had actually struck police officers. The facts as recited by the prosecutor, and admitted by the appellant, were that the appellant 'attempted to elbow officers in the head'.
It is apparent that the magistrate placed considerable emphasis on his mistaken conclusion that the appellant actually struck the police officers with his elbow to their heads. He specifically referred to that fact in his inquiry of the appellant's counsel as to an admission of elbowing to the head of the officers.[7] He described the offence as being at the upper end of the seriousness 'because you actually struck the officers in the head'.[8]
[7] ts 4, 20 February 2017.
[8] ts 7, 20 February 2017.
In his exchange with the appellant, the magistrate stated 'you struck some officers in the head'. In response to the appellant's protestation that he 'never elbowed him in the face', the magistrate suggested that the appellant had accepted the fact that he did. In this context of the exchange in the courtroom, it is not surprising that the appellant did not continue to argue his denial.
The factual error asserted in ground 2 is made out. That error enlivens this court's jurisdiction to resentence the offender. The respondent contends that notwithstanding the factual error, no different sentence ought to be imposed because the error did not increase the appellant's moral culpability and the magistrate's categorisation of the offending as being a serious case of obstructing a public officer was correct. There is no doubt, however, that the magistrate's decision was significantly influenced by his misapprehension that the appellant actually struck the police officers. Although the magistrate correctly noted that the charge was obstruction and not assault, he appears to have been mindful that the facts as found appeared to be capable of supporting the more serious charge under s 318 of the Criminal Code of assaulting a public officer which relevantly would have attracted a minimum sentence of imprisonment of at least six months.[9]
[9] Criminal Code s 318(4).
A factual error having been made by the magistrate, it falls to this court to resentence the appellant unless it considers that no substantial injustice occurred by reason of the error. In considering that question, it is necessary to have regard to all of the circumstances relevant to the sentencing process.
The appropriate sentence
As the magistrate observed, there were a number of factors relevant to the question of sentence. They included that:
(i)the police were clearly acting with the appellant's best interests in mind;
(ii)the appellant was adjacent to the freeway and the way he was behaving at the time put himself, the officers, other road users, and possibly his partner at risk;
(iii)the appellant's prior record demonstrated repeated failures to comply with court orders and bail requirements;
(iv)the appellant physically and aggressively sought to prevent the officers' attempts to deal with his behaviour.
Very little was put forward on the appellant's behalf by way of mitigating circumstances. The only significant mitigating factor was his acceptance 'that he behaved appallingly' and his early plea of guilty. The magistrate accepted that the early plea of guilty warranted a full discount of 25%, a conclusion with which I agree.
In the context of its submissions in relation to ground 2 of the appeal, the respondent submitted that, should the court find that the length of the term imposed, that being six months and one day, was excessive then the appropriate disposition is a lesser term of suspended imprisonment. It made that submission on the basis that s 86 of the Sentencing Act, which prohibits the imposition of a sentence of imprisonment for a term of six months or less, does not apply in relation to the term of a suspended sentence. Section 86 provides:
A court must not sentence an offender to a term of 6 months or less unless ‑
(a)the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months; or
(b)the offender is already serving or is yet to serve another term; or
(c)the term is imposed under section 79 of the Prisons Act 1981.
That submission is based on s 77(6) of the Sentencing Act which is found in pt 11 dealing with suspended imprisonment. That subsection provides:
(6)For the purposes of a law other than this Part and Parts 12 and 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment.
Section 86 is found within pt 13 of the Sentencing Act. Thus, the respondent argues, because a sentence of suspended imprisonment is not to be taken as a sentence of imprisonment for the purposes of pt 13, s 86 has no application to a sentence of suspended imprisonment. Counsel for both parties agreed that that construction of s 77(6) and s 86 did not reflect common practice in Magistrates Courts which is to treat s 86 as applicable for the purpose of determining the minimum term of a suspended imprisonment order. Counsel for the appellant submitted that s 77(6) did not have the effect of rendering s 86 inapplicable to suspend imprisonment sentences.
I do not accept that it is open to set a term of imprisonment for six months or less where a court proposes to order suspension of that term. Although the question of the application of s 77(6) does not appear to have been the subject of any authoritative decision, a number of decisions of this court have proceeded on the basis that the imposition of a term of less than six months is not available in respect of a sentence to be suspended. In Casotti v Pickering[10] Hall J concluded that a suspended sentence of six months or less for a single standalone offence is prohibited by reason of s 86 of the Sentencing Act. In that case, in resentencing an appellant after a successful appeal, his Honour said:
A suspended sentence may well have been appropriate at first instance, but it is not possible now. That is because a suspended sentence should not be imposed which is of a length greater than would be appropriate if the sentence were ordered to be immediately served: See s 76(2) of the Sentencing Act and see also Zinga v Johnson [2012] WASC 216.
A suspended sentence of 6 months and 1 day would be inappropriate now as it would not take into account time already spent in custody.
[10] Casotti v Pickering [2013] WASC 174 [37] ‑ [38].
That approach was followed by Beech J in Almonte v Beswick.[11] The respondent referred to the decision of the Court of Appeal in Pallister v The State of Western Australia[12] where the court found that the sentence imposed at first instance was manifestly excessive. The sentence which had been imposed was 9 months' imprisonment to be served immediately. The sentence had been passed on 30 June 2015. The appeal came on for hearing on 9 September 2015, and it would appear that the appellant had been in custody since the date of sentence, or for approximately two months and nine days. After referring to the particular features of the case, the court said:
The court had before it the material necessary for resentencing purposes and, having regard to the time the appellant had already spent in custody, we concluded that the appellant should be sentenced to 4 months' imprisonment, suspended for 4 months.[13]
[11] Almonte v Beswick [2013] WASC 207 [68].
[12] Pallister v The State of Western Australia [No 2] [2015] WASCA 221.
[13] Pallister [22].
As that passage makes clear, the court had regard to the fact that the appellant had already spent over two months in custody. It is not, of course, possible, in order to allow for time spent in custody, to order that a term of suspended imprisonment is taken to have begun on some day other than the date of sentencing as can be done in relation to a sentence of imprisonment to be served immediately.[14] The court in Pallister made no reference to s 86 nor did it, beyond referring to the time already spent in custody, explain the pathway that led to the fixing of four months as the appropriate term after suspended sentence. I do not take Pallister as authority for the proposition that s 86 does not apply to the term of a suspended sentence.
[14] Sentencing Act s 87. See Dragon v The State of Western Australia [2008] WASCA 252 [51]; Lang v The State of Western Australia [2011] WASCA 153 [4].
To ignore the provisions of s 86 of the Sentencing Act for the purposes of imposing a suspended sentence would be contrary to the two step process required by s 76(2) as explained by Kirby J in Dinsdale v R.[15]
[15] Dinsdale v R (2000) 202 CLR 321.
Section 76(2) provides:
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Kirby J said that it may be inferred from s 76, that suspension of imprisonment is only to be available where, first, the court has concluded that a sentence to a term of imprisonment is warranted and where the court imposes that sentence.[16] He continued:
The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'.[17] (citations omitted)
[16] Dinsdale [78].
[17] Dinsdale [79].
It follows that the first step requires that the court identify a term which, if suspension were not possible, would be appropriate in all the circumstances. By reason of s 86, a term of six months or less is not available. In light of that statutory prohibition, it cannot be that a term of less than six months would be appropriate if the capacity to suspend the sentence was not available.
The question which then arises is as to the effect of s 77(6). Part 12 of the Sentencing Act deals with conditional suspended imprisonment. It contains s 82(6) which is in the same terms as s 77(6) save that s 82(6) refers to pt 11 and pt 13. Part 13 deals with imprisonment. The precise reach and effect of s 77(6) and s 82(6) is not immediately apparent. Much of pt 13 deals with questions of concurrency or cumulation of sentences and parole eligibility. Section 77(6) would appear most readily to be relevant to those provisions so as to make clear that suspended terms of imprisonment do not need to be brought to account for the purposes of those matters. In my view, having regard to the clear requirements of s 76(2), s 77(6) cannot be read as excluding the prohibition in s 86 from the court's consideration of the first step to be taken in imposing a suspended sentence. That conclusion draws some support from s 80(1)(b) of the Sentencing Act. Section 80 deals with how a person who re‑offended during a period of a suspended sentence is to be dealt with. Section 80(1)(b) permits a court dealing with such a person to order that the person serve part of the term of imprisonment that was suspended 'even if the period to be served is 6 months or less'. That proviso assumes that s 86 might otherwise be applicable.
Given the application of s 86, the question in resentencing the appellant is whether, having regard to the necessity to recognise the maximum discount for his early plea of guilty, the circumstances of the offending warrant a sentence of imprisonment in excess of six months. If allowance is made for a 25% discount, then putting aside any other mitigating circumstances, the circumstances must be such as to warrant a sentence, absent a plea of guilty, of something at least slightly in excess of 8 months' imprisonment. If that is not the case, then the imposition of a term of imprisonment is not available, and thus not available to be suspended, so that some other available penalty must be chosen.
The penalty for the offence under s 172 of the Criminal Code to which the appellant pleaded guilty is, when dealt with summarily, a penalty of imprisonment for 18 months and a fine of $18,000.
While I acknowledge that the conduct of the appellant was reprehensible, that he put himself and to a degree at least, the officers concerned, at risk, I have concluded that, having regard to the appellant's early plea of guilty and to the requirements of s 86 of the Sentencing Act, a sentence of imprisonment is not the only disposition open. Section 39(3) of the Sentencing Act requires that a court must not use a sentencing option unless it is satisfied that it is not appropriate to use any of the lesser sentencing options available. In my view, a substantial fine is the appropriate penalty.
Little was disclosed to the magistrate, or to this court on the appeal, as to the appellant's personal circumstances. It is apparent, however, that at the time of sentence, he was in receipt of a Newstart allowance and was seeking employment. A fine is likely to result in significant hardship to the appellant and to serve the objectives of both personal and general deterrence.
In the circumstances, I have concluded that the appeal should be allowed, the sentence imposed by the magistrate should be set aside, and in lieu thereof the appellant should be ordered to pay a fine of $5,000.
In those circumstances, it is unnecessary to consider ground 1 of the appeal.
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