Walker v Jarvis

[2021] WASC 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WALKER -v- JARVIS [2021] WASC 182

CORAM:   TOTTLE J

HEARD:   3 JUNE 2021

DELIVERED          :   3 JUNE 2021

PUBLISHED           :   11 JUNE 2021

FILE NO/S:   SJA 1026 of 2021

BETWEEN:   ALYSSA JOSELINE ANNE WALKER

Appellant

AND

MEGAN JARVIS

First Respondent

GRIFFIN LUMBERS

Second Respondent

CHANTELLE WEBSTER

Third Respondent

CHRISTOPHER JAMES

Fourth Respondent

MICHAEL NOCK

Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE A C LONGDEN

File Number            :   PE 33870 of 2020, PE 53330 of 2020, RO 4349 of 2019, PE 20487 of 2020, RO 1146 of 2020

Catchwords:

Criminal law - Appeal against sentence - Assaulting a public officer - Common assault - Whether total effective sentence infringes the first limb of the totality principle - Turns on own facts - Appeal dismissed

Legislation:

Criminal Code (WA), s 313, s 318

Result:

Application for extension of time within which to apply for leave to appeal refused
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	Mr T B L Scutt
Second Respondent	:	Mr T B L Scutt
Third Respondent	:	Mr T B L Scutt
Fourth Respondent	:	Mr T B L Scutt
Fifth Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	In person
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):

Greenfield v The State of Western Australia [2019] WASCA 29

TOTTLE J:

Introduction

1. The appellant applied for leave to appeal against a total effective sentence of imprisonment of 10 months imposed on 27 November 2020 in respect of five offences the details of which are set out in the table that appears later in these reasons.  The appellant's application was heard on 3 June 2021.  At the conclusion of the hearing I refused leave to appeal and said I would publish reasons later.  These are those reasons.

2. Before addressing the substance of the application it is necessary to say something about the background. 

3. The appellant is in custody and is unrepresented.  She obtained some assistance from Legal Aid in preparing her appeal notice and the affidavit in support but has otherwise prosecuted the appeal without assistance from lawyers.  In addition to these difficulties the appellant suffers from schizophrenia.  This combination of circumstances has contributed to the significant difficulty the appellant has experienced in presenting her appeal.  I acknowledge that the court has received assistance from the appellant's late mother's partner who is greatly concerned for her welfare.

4. The appellant did not file the transcript of the sentencing hearing in the Magistrates Court nor the prosecution notices.  Those materials and the transcripts of earlier related hearings were provided by the Office of the Director of Public Prosecutions or otherwise obtained by my Associate.  As I will explain not all of the materials before the sentencing magistrate have been obtained but what has been put before the court was sufficient to enable the hearing of the application to proceed. 

5. The appellant applied for bail and that is how the matter originally came before me.  I refused the application for bail but arranged for the appeal to be heard as a matter of urgency. 

6. The appellant contends that the sentences imposed infringed the first limb of the totality principle in that the aggregate sentence did not bear a proper relationship to the overall criminality of her conduct.

7. The appellant did not advance any substantive argument in support of the ground of appeal.  I infer from all of the circumstances that the appellant's real objective in bringing the appeal was to obtain bail in the hope that she could be reunited with the child to whom she had given birth while serving her sentence.

8. The relevant offences and the penalties imposed were as follows:

Reference/ offence date	Offence	Penalty	Maximum penalty for the offence
PE 33870/20 16 July 2020	Sections 318(1)(d) and (4)(b) of the Criminal Code Assaulting a public officer in prescribed circumstances - the appellant was arrested and placed in handcuffs, she was aggressive and tried to wriggle out of the handcuffs, threatened to punch the officer and in the course of being restrained bit and held down on a police officer's hand - the victim suffered bruising, swelling and punctured skin.  Prior to biting the officer the appellant had claimed to have HIV.  Subsequent to the assault the appellant refused to participate in a blood test.	6 months' immediate imprisonment	Minimum term of 6 months' imprisonment (s 318(4)(b)) Maximum sentence: 7 years' imprisonment (s 318(1)(m)) Summary conviction penalty: 3 years' imprisonment and a fine of $36,000
RO 4349/2019 3 April 2019	Section 313(1)(b) of the Criminal Code Common assault - the appellant assaulted a pregnant service station employee as she was walking to her car at the end of her shift.  The appellant asked the victim for money and when the victim refused the appellant slapped the victim on the head and then slapped her a further five times before punching the victim.	2 months' imprisonment to be served concurrently. This was previously a term of 8 months' conditionally suspended.  The discount reflected the time already spent in custody.	Maximum sentence: 18 months' imprisonment and $18,000 fine (s 313(1)(b) - simple offence)
PE 5330/20 30 January 2020	Section 318(1)(d) of the Criminal Code Assaulting a public officer - the appellant was arrested by a police officer and placed in handcuffs.  The appellant became emotional and aggressive and as the police officer attempted to calm the appellant, the appellant turned and spat in her face.	2 months' imprisonment to be served cumulatively. This was previously a term of 8 months' conditionally suspended for 12 months. The discount reflected the time already spent in custody.	Maximum sentence: 7 years' imprisonment (s 318(1)(m)) Summary conviction penalty: 3 years' imprisonment and a fine of $36,000
RO 1146/20 18 February 2020	Section 313(1)(b) of the Criminal Code Common assault - the appellant punched a store security officer as she was being escorted from a shopping centre.	2 months' imprisonment to be served cumulatively. This was previously a term of 4 months conditionally suspended.  The discount reflected the time already spent in custody.	Maximum sentence: 18 months' imprisonment and $18,000 fine (s 313(1)(b) - simple offence)
PE 20487/20 28 April 2020	Section 313(1)(a) of the Criminal Code Aggravated common assault - the appellant assaulted her partner with whom she had been in a relationship for four years, she spat in the victim's face, punched him in the head and kicked him in the groin and then kicked the victim's legs.  The appellant entered a late plea of guilty to this charge.	2 months' imprisonment to be served concurrently	Maximum sentence: 3 years' imprisonment and $36,000 fine (s 313(1)(a) - simple offence)

1. In addition to the offences set out in the table the appellant was sentenced in respect of seven other offences: disorderly behaviour in public, failing to obey an order given by an officer, disorderly behaviour in a police station or lockup, two breaches of a bail undertaking and two breaches of a conditional suspended imprisonment order in respect of which a global fine of $1,000 was imposed. 

2. The appellant was first sentenced in respect of the assault on the service station employee (RO 4349/19) on 11 September 2019.  The sentence imposed was a term of imprisonment of 8 months suspended for 12 months.

3. The appellant was first sentenced in respect of the assault on a public officer (PE/5330) on 31 March 2020.  The sentence imposed was a term of 8 months imprisonment.  The sentence imposed in respect of the common assault (1146/20) was a term of imprisonment of 4 months.  Each of these terms of imprisonment were suspended for a term of 12 months.  At the 31 March 2020 hearing the sentencing magistrate did not activate the suspended sentence imposed on 11 September 2019.

4. The appellant was arrested on 16 July 2020 (there being an outstanding warrant for her arrest) and was detained in custody until sentenced on 27 November 2020 by which time the appellant had spent 173 days in custody. 

5. At the sentencing hearing the appellant was represented and a comprehensive plea in mitigation was made on her behalf.  The magistrate was provided with a pre-sentence report, and two further reports, a psychiatric report and a psychological report ‑ these are the materials that this court has not been able to obtain.  The sentencing magistrate referred to these reports and said that they detailed the appellant's background 'very carefully and comprehensively' and her Honour said she took account of the fact that the appellant suffered from schizophrenia which had been diagnosed in 2009 and noted also the appellant's difficult upbringing.

6. In summary the magistrate's approach to the sentencing exercise was as follows:

   (a)Her Honour recorded that the appellant's mental health issues meant that it was not appropriate to impose a sentence that reflected the need for general deterrence.

   (b)Her Honour recorded there was a need to protect members of the public from the appellant.

   (c)Her Honour moderated the terms of the suspended sentences to take into account the appellant's mental health issues.

   (d)Her Honour reduced the penalty in respect of the 'new offences' by 20% to take account of the appellant's pleas of guilty.

   (e)Her Honour reduced the sentences of imprisonment imposed in respect of the suspended sentences to take account of time already spent in custody.

   (f)Her Honour referred to the totality principle and reduced the terms of imprisonment that would otherwise have been imposed.

7. In Greenfield v The State of Western Australia[1] the Court of Appeal summarised the principles relevant to a ground of appeal which asserts an infringement of the totality principle as follows:[2]

   The first limb of the totality principle, which the appellant asserts has been infringed, requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety.  Consideration must be given to all relevant facts and circumstances, including those referrable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.

   The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences.  Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.  Where there is a range of sentences customarily imposed for a crime, that range does not fix the range of a sound exercise of a sentencing discretion in a particular case.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence.  What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.

   When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

   [1] Greenfield v The State of Western Australia [2019] WASCA 29.

   [2] Greenfield v The State of Western Australia [24] - [26].

8. The appellant was sentenced for five separate assaults, each on different victims and on different dates.  The assaults on police comprised spitting into the face of one police officer and a sustained bite onto the hand of another police officer including puncturing of the skin for which the minimum mandatory penalty was a term of six months imprisonment.  The aggravated common assault was a sustained and serious domestic violence attack on her partner.  The common assault (RO4349/19) was an unprovoked assault upon a pregnant service station employee.  The common assault (RO1146/20) was a punch to the chest of a store security officer.

9. In my view there is no basis upon which it could be contended that the total effective sentence imposed on the appellant infringed the totality principle.  In coming to this conclusion I have taken into consideration the following factors:

   (a)Assessed individually the sentences imposed were relatively lenient.

   (b)In particular with the biting assault on the police officer, the appellant was sentenced to the minimum mandatory 6 months' imprisonment when the nature and circumstances of the assault could have justified a longer sentence.

   (c)Each of the offences were committed at a different place, at a different time, against a different victim.  It is to be expected that there would be some accumulation of the sentences in these circumstances, and despite this some sentences were still made concurrent.

   (d)It is clear from the transcript that the magistrate took all of the appellant's mitigating factors into account when moderating the total effective sentence and overall was appropriately sensitive to the appellant's difficult personal circumstances. 

   (e)Although the appeal is only in respect of the five sentences set out in the table, in assessing the overall criminality of the appellant's conduct regard must be had to the other seven offences for which the appellant was sentenced and which cumulatively had the effect of increasing the criminality of her conduct.

10. The appellant required an extension of time within which to bring the application.  Having concluded that there is no merit in the appeal I dismissed the application for an extension of time, the application for leave to appeal and the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RC

Research Associate to the Honourable Justice Tottle

11 JUNE 2021