Walters v The State of Western Australia
[2019] WASCA 61
•10 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WALTERS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 61
CORAM: BUSS P
MAZZA JA
ALLANSON J
HEARD: 20 MARCH 2019
DELIVERED : 20 MARCH 2019
PUBLISHED : 10 APRIL 2019
FILE NO/S: CACR 4 of 2019
BETWEEN: PATRICK WALTERS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : SHE 45 of 2017
Catchwords:
Criminal law - Application for leave to appeal against sentence - Conviction after trial - Unlawfully assaulting member of crew of an aircraft so as to interfere with the performance of her functions or duties connected with the operation of the aircraft - Term of immediate imprisonment - Allegation of implied error - Manifest excess
Legislation:
Criminal Code (WA), s 318A
Sentencing Act 1995 (WA), s 6, s 39
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | C J Henderson |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Cameron Henderson |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
McAlpine v The State of Western Australia [2018] WASCA 195
R v Pham (2015) 256 CLR 550
Skipworth v The State of Western Australia [2008] WASCA 64
Vagh v The State of Western Australia [2007] WASCA 17
REASONS OF THE COURT:
The appellant's application for leave to appeal against sentence was heard on 20 March 2019. After hearing the appellant, and having read the written submissions of the appellant and the respondent, the court refused leave and dismissed the appeal, with reasons to be published later.
The appellant was convicted after trial on one charge of unlawfully assaulting a member of the crew of an aircraft so as to interfere with the performance by the member of her functions or duties connected with the operation of the aircraft, contrary to s 318A of the Criminal Code (WA) (the Code).
The offence is a crime for which the offender is liable to imprisonment for 14 years.
The appellant was sentenced on 7 December 2018 to imprisonment for 12 months to be served immediately. He was made eligible for parole.
The appellant appealed against sentence on a single ground: that the trial judge erred in imposing a sentence which was manifestly excessive in all the circumstances of the case. There are four particulars of the ground:
The sentence failed to give sufficient weight to:
1.1the circumstances of the offending including that the plane was not airborne at the time of the offence;
1.2the appellant's excellent employment history;
1.3the appellant's lack of any similar prior convictions; and
1.4the appellant's lack of any recent convictions for violence.
These particulars do not add anything of substance to the ground. It is well established that the allegation that a sentence failed to give sufficient or adequate weight to a relevant sentencing consideration will only constitute an appealable error if it amounts to a failure to exercise the discretion conferred on the judge.[1] That is not the appellant's complaint in this case.
[1] See Vagh v The State of Western Australia [2007] WASCA 17 [76].
The allegation of manifest excess is in relation to both the length of the term, and the decision to not suspend the term of imprisonment.
The facts
The appellant was a fly-in/fly-out worker, working in Port Hedland. He had finished his fortnight shift and was flying to Brisbane on a commercial flight.
The appellant and another passenger had mixed their boarding passes. The appellant was on board, and the other passenger had not boarded. The cabin crew of the aircraft were trying to sort out the issue of the missing passenger.
The other passenger, described by the trial judge as one who 'probably had had more to drink than any of you',[2] appeared at the top of the aircraft stairs. There was a discussion among the cabin crew about whether that passenger and others seated with the appellant should be allowed to remain on the flight (apparently because of their intoxication), and if so whether they should be allowed to sit in the emergency row. That row of seats offered greater legroom, but those sitting in it were required, if necessary, to perform certain functions in the event of an emergency.
[2] White AB 50.
The cabin crew decided that the other passenger was not to be allowed on board, and the appellant had to sit elsewhere and was not allowed to drink.
While this was being discussed, the appellant pulled out his mobile phone and held it up in a manner which made the witnesses believe that he was filming the cabin crew. The appellant said something to the effect that he was going to put it on YouTube.
A member of the cabin crew asked the appellant to stop filming. Another member of the cabin crew, the victim of the assault, saw what was going on. She objected and asked the appellant 'politely but firmly' to stop filming her.
The victim tried to stop the filming by pushing the stop button on the phone. The trial judge described what then occurred:
Her evidence was that you then clasped your second hand over her hand and you then lowered your right shoulder and you slammed into her, pushing her backwards.
And although it is a confined area, it must have been a few paces at least, and she smashed into the galley out of sight of most of the passengers. And that caused her an injury to her head, shoulder and hip.
Now, there is some variation between the witnesses as to what actually happened in terms of holding the phone…. But all of the witnesses agree that there was this shoulder charge with the consequence that [the victim] smashed into the galley and suffered those physical injuries.[3]
[3] White AB 51.
Other passengers then intervened and the event did not escalate.
The appellant was escorted from the plane. The flight was delayed for 3 1/2 hours.
Both the victim and the other flight attendant were distressed. The victim was able to resume work on the night, but required three weeks off work due to the physical impact of her injuries. She has also required psychological counselling for continuing symptoms including anxiety. The assault was still affecting her at the time of trial, over 18 months after the offence.
The appellant's personal circumstances
The appellant is 48. He has a partner and they have five children. One is 17 years old, the others are adult.
The appellant is a long haul road train driver operating around the mines in the north-west. He had been in the same present employment for 4 1/2 to 5 years. As a result of the offence, he was banned from flying and had to move to Port Hedland from Queensland to maintain his job.
The appellant is from New Zealand. He has some prior convictions in New Zealand for disorderly behaviour, offensive behaviour, and obstructing or hindering police, all committed on the same date in 2000. He also has convictions for traffic offences, the most recent of which was in 2008. He has no record of offending in Australia. He has not previously been sentenced to imprisonment.
The appellant provided references from friends who spoke well of him.
Sentencing remarks
The trial judge regarded the assault of a crew member of an aircraft, so as to interfere with the crew member's performance of his or her functions connected with the operation of the aircraft, as a serious matter. He described the appellant's conduct as highly disruptive of the flight and with serious consequences, even though the aircraft was not in-flight. It interrupted the captain in his preparation before flight. It resulted in the flight being delayed for 3 1/2 hours with inconvenience to the crew and the passengers.[4]
[4] White AB 56.
His Honour also regarded the particular circumstances of the assault as serious. His Honour referred to several factors: the appellant was considerably heavier than the victim and used 'considerable force';[5] the crew were in a confined space and a vulnerable position.[6] The assault affected the victim's ability to work. Although she returned to work, 'everyday complications with passengers resulted in her feeling anxious and she had a bodily reaction to these complications for months, and she felt unsafe'.[7]
[5] White AB 52.
[6] White AB 57.
[7] White AB 57.
His Honour recognised that imprisonment was a penalty of last resort, but held that the seriousness of the offence and the protection of the community meant that it was the only appropriate disposition. His Honour further considered whether the sentence might be suspended but, having regard to the nature and gravity of the offence, held that it was too serious to allow suspension and ordered that it be served immediately.
Was the sentence manifestly excessive?
A sentencing judge must sentence in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). The sentence imposed must be commensurate with the seriousness of the offence.[8] The court determines the seriousness of the offence by taking into account the statutory penalty; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.[9]
[8] Sentencing Act s 6(1).
[9] Sentencing Act s 6(2).
The ground that the sentence is manifestly excessive asserts implied error on the basis that the sentencing outcome is unreasonable or plainly unjust. In R v Pham, French CJ, Keane and Nettle JJ said:
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[10]
[10] R v Pham (2015) 256 CLR 550, 559 [28].
In determining whether a sentence is manifestly excessive, the court must examine the sentence imposed by reference to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The appellant referred to the sentences imposed at first instance in four earlier cases involving violent or disruptive conduct on an aircraft. Those cases offer little or no guidance on how the sentencing discretion should be exercised in a case like the present. Neither party has been able to identify any comparable cases where sentencing for this offence or a cognate offence has been considered by an intermediate appeal court.
The absence of comparable cases does not, however, preclude the court from deciding that an individual sentence is manifestly excessive. Sentences in comparable cases are only one of the factors to which the court has regard.[11]
[11] See McAlpine v The State of Western Australia [2018] WASCA 195 [54].
The first factor to consider is the statutory penalty. The Parliament has indicated the seriousness of the offence created by s 318A of the Code by providing a penalty of imprisonment for 14 years. Having regard to the nature of the offence, and the penalty prescribed, personal and general deterrence are important sentencing considerations.
In considering the seriousness of the circumstances, there are two components to the offence under s 318A:
(1)an unlawful assault or threat of violence against a member of the crew of an aircraft; and
(2)that the assault or threat interferes with the performance by the member of his or her functions or duties connected with the operation of the aircraft.
The trial judge had presided at the trial, and had the advantage of having seen and heard the evidence. On the facts he found, which are not challenged, this was a serious offence.
First, the appellant used actual violence to a member of the crew, causing injury that has had lasting consequences for her. As the trial judge noted, the crew are in a confined space and required to deal with persons who may be drunk and unpredictable. They are vulnerable to such assaults.
Second, the offence interfered with the victim's ability to perform an important function connected with the operation of the aircraft.
The appellant argued that his conduct was a less serious instance of the offence because it was committed while the aircraft was still on the ground. He submitted that the conduct did not pose as great a risk when the aircraft was not in flight, and it also did not result in the cost of an aircraft being required to return and land.
It may be accepted that normally - although perhaps not invariably - it would be more serious to interfere with the functions and duties of the crew of an aircraft when it was in flight. But s 318A is not confined to that situation.
The trial judge said, correctly, that 'getting everyone on board, getting them seated, getting people who are responsible to sit in the appropriate emergency exit seats, are all matters that have to be treated seriously'.[12] The appellant's conduct interfered with the victim's performance of these functions, and had serious consequences. It also resulted in the flight being delayed to the inconvenience of all passengers and crew.
[12] White AB 56.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[13] Fogg v The State of Western Australia.[14] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[15] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.[16]
[13] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA).
[14] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).
[15] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).
[16] Dinsdale v The Queen [86] (Kirby J).
The appellant was not youthful or inexperienced for sentencing purposes.
The appellant was entitled to proceed to trial, but he could not claim the mitigation that a plea of guilty would have brought.
The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the offending in question. However, the appellant did not stand for sentence as a person who was of prior good character.
The mitigating factors, as found by his Honour, were the appellant's personal circumstances (including his excellent work history), his apology to the people on the aircraft whom he had inconvenienced and delayed and (although he had a prior criminal record) the absence of any offending for some time and the absence of any 'real history of violence'.[17]
[17] White AB 58.
After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the place which the appellant's offending occupies on the scale of seriousness for this kind of offence, the appellant's personal circumstances and all other mitigating factors, we are of the opinion that it was reasonably open to the trial judge to be satisfied that it was inappropriate to impose suspended or conditionally suspended imprisonment. His Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment. Neither the type of sentence imposed nor the length of the term of imprisonment was unreasonable or plainly unjust. The existence of error is unable to be inferred from the sentencing outcome.
The ground of appeal is without merit.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss10 APRIL 2019
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