Watkins v Pagels
[2015] WASC 388
•13 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WATKINS -v- PAGELS [2015] WASC 388
CORAM: MITCHELL J
HEARD: 13 OCTOBER 2015
DELIVERED : 13 OCTOBER 2015
FILE NO/S: SJA 1064 of 2015
BETWEEN: PASCHAL AUNG MYO NAING WATKINS
Appellant
AND
AIMEE ELIZABETH PAGELS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M FLYNN
File No :AR 3473 of 2015
Catchwords:
Criminal law - Appeal against sentence - Indecent act in a public place - Turns on own facts
Legislation:
Criminal Code (WA), s 203(1)
Result:
Leave to appeal granted and appeal allowed
Sentence of 7 months' immediate imprisonment set aside
Intensive supervision order imposed
Category: B
Representation:
Counsel:
Appellant: Mr S J Butcher
Respondent: Ms T J McArthur
Solicitors:
Appellant: Dwyer Durack
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AH v The State of Western Australia [2014] WASCA 228
Hopes v The State of Western Australia [2015] WASCA 172
McGarry v The Queen (Unreported, WACCA, Library No 8984, 1 August 1991)
Wiltshire v Mafi [2010] WASCA 111
Winmar v Clark [2015] WASC 314
Wright v McMurchy [2011] WASC 219
Wright v McMurchy [2012] WASCA 257
MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
Background to the appeal
By prosecution notice dated 8 April 2015, the appellant was charged with one count of doing an indecent act in a public place in contravention of s 203(1)(a) of the Criminal Code (WA).
The circumstances surrounding the offence are contained in the following statement of material facts:
At about 11.55 am on Tuesday 7 April 2015, the victim drove through the drive‑through at Hungry Jacks, Spencer Road, Thornlie and parked her car adjacent to the building. As the victim sat in the driver's seat of her vehicle, she witnessed the accused walk past her car, then stop and stare at her. The victim looked down at her lap, and looked back up to find the accused staring at her, smirking and holding his exposed genitals in his right hand. The victim grabbed her belongings and immediately left the vehicle and entered Hungry Jacks. As the victim has left her vehicle, the accused followed her for a short period of time before walking off towards the shopping centre. Police arrived at the scene and were advised by the victim that the accused was still in the immediate area. Police located the accused, the accused fled on foot. After a short foot chase, Police apprehended the accused in nearby bushland. The accused was placed under arrest and conveyed back to the Armadale Police Station where he declined an electronic record of interview. A written interview took place, the accused made nil admissions.
On 16 June 2015, the appellant appeared in the Magistrates Court and pleaded guilty to the offence. A pre‑sentence report was ordered and the appellant elected to participate in a Pre‑Sentence Opportunity Program.
On 11 August 2015, the appellant was sentenced to 7 months' immediate imprisonment in respect of the offence.
The appellant seeks leave to appeal against his sentence by appeal notice dated 17 August 2015. The appellant was granted bail on conditions pending appeal on 18 August 2015.
The magistrate's approach
At the hearing on 11 August 2015, the sentencing magistrate summarised the factual circumstances of the offending and the appellant's antecedents and took into account the fact that the appellant had participated in drug counseling through the Pre‑Sentence Opportunity Program (ts 6). The magistrate allowed a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) for an early plea of guilty.
The magistrate stated that the conduct was serious enough for him to consider imprisonment because there have been two prior examples where this has happened, and the dominant consideration for the court was the protection of the public and personal deterrence (ts 6).
The magistrate did not expressly consider imposing an intensive supervision order. However, having considered that imprisonment was the only appropriate penalty pursuant to s 6(4) of the Sentencing Act, the magistrate went on to consider if such a term could be suspended under s 76 of that Act in the following terms (ts 6):[1]
I then need to look back to see whether or not that [term of imprisonment] should be suspended. I do take into account what I've been told today about your own history and willingness to engage in more counselling and a willingness to address, and you have taken some steps towards methylamphetamine, but on balance, when I look at all of those things, I've decided that it's just not appropriate to suspend that. As I've said the seriousness of the offence means for me the dominant consideration is the protection of the community.
[1] A conditionally suspended term of imprisonment was not available to the magistrate as the Magistrates Court is not a prescribed court able to impose such a sentence: Sentencing Act, s 81(1) and Sentencing Regulations 1996 (WA), reg 6B.
Ground 1: manifest excess
The appellant's first ground of appeal is that the sentence of 7 months' immediate imprisonment was manifestly excessive having regard to all of the circumstances of the case. The appellant's complaint under this ground is that the wrong type of sentence was imposed (as opposed to the length of the sentence being excessive).
An allegation of manifest excess is an allegation of implied error. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.[2]
Maximum penalty
[2] Hopes v The State of Western Australia [2015] WASCA 172 [13].
The maximum penalty for an offence under s 203(1)(a) of the Criminal Code is 2 years' imprisonment. The maximum summary conviction penalty is 9 months' imprisonment and a fine of $9,000. The maximum summary conviction penalty merely limits the jurisdiction of the Magistrates Court. It is the statutory maximum penalty of 2 years' imprisonment that is relevant to the assessment of the seriousness of the offending.[3]
Seriousness of the offence
[3] Winmar v Clark [2015] WASC 314 [36], citing Wiltshire v Mafi [2010] WASCA 111.
Provision for a maximum penalty of 2 years' imprisonment indicates that Parliament does not consider this to be a trivial offence.
Given the offence was of a sexual nature and was the third offence of this kind by the appellant, the protection of the community and personal deterrence were important considerations in the sentencing process. The magistrate correctly referred to these matters.
In relation to the appellant's risk of future offending, the author of the pre‑sentence report noted:
[The appellant's] claim of a complete lack of recall of any details of his repeated sexual offending and his minimisation of this behaviour has obvious implications from a rehabilitative perspective. It has been assessed that in order for [the appellant] to reduce his risk of sexual offending it would be imperative that he accepts responsibility for his offending behaviour. In addition, it would be important that he becomes willing to discuss the matter openly, participates in another Sex Offender Treatment Program and abstains from substance abuse. [The appellant] might also benefit from inclusion in the Pathways Program which is based on the 'Good Lives' model and targeted to address the link between entrenched substance abuse and offending behaviour.
Given this assessment, it was not surprising that the author of the pre‑sentence report had 'considerable reservations' about the appropriateness of a community‑based disposition. The magistrate was right to be concerned about the appellant's risk of re‑offending and to treat the need for the protection of the community as a dominant sentencing consideration.
Comparable cases
Both parties submitted that there is no established sentencing range or relevant appellate cases for this offence.[4]
Personal circumstances
[4] In Wright v McMurchy [2011] WASC 219 [31] - [38], Commissioner Sleight dismissed an appeal from a refusal to make a spent conviction order for an offence of doing an indecent act in a public place, in circumstances where the magistrate had fined the appellant in that case $2,000 for that offence. Leave to appeal from Commissioner Sleight's decision was refused in Wright v McMurchy [2012] WASCA 257. In McGarry v The Queen (Unreported, WACCA, Library No 8984, 1 August 1991) the Court of Criminal Appeal dismissed an appeal against a total effective sentence of 7 years 8 months' imprisonment for various sexual offences, including seven offences of doing an indecent act in a public place with intent to insult or offend for which individual sentences of 4 months' imprisonment were imposed. These cases, which both involved very different conduct to the present, do not establish a sentencing range.
The appellant was 29 years old at the time of the offence and at sentencing. He had two prior criminal convictions for the same offence, committed on 26 October 2011 and 6 March 2014 respectively. The appellant had also been convicted of possession of drug paraphernalia on 6 March 2014. He had a number of presently immaterial traffic convictions.
The appellant was born in Burma and migrated to Australia with his parents when he was 7 years of age. He comes from a stable and supportive family environment. The appellant completed school until Year 11 and was employed in a factory for five years. He then completed a spray‑painting apprenticeship and commenced a business around two years ago. The appellant has been involved with his current partner for over seven years and they are both living with their respective parents, and plan to continue that arrangement until they marry.
The appellant participated in the Pre‑Sentence Opportunity Program where he attended five treatment sessions and engaged well with the program. The program report notes that he abstained from the use of illicit drugs for eight weeks prior to the preparation of the report and that he intended to continue treatment through the South Metropolitan Community Alcohol and Drug Service.
The pre‑sentence report (prepared prior to the appellant's completion of the Pre‑Sentence Opportunity Program) states that appellant has had an ongoing issue with methamphetamine since he first commenced using that drug in 2010. The appellant reported that he decreased his drug use to approximately once every three months and he has maintained this pattern (albeit not in a planned manner). The author of the pre‑sentence report noted that the appellant was reluctant to engage with any form of intervention other than individual counseling, but considered the appellant suitable for inclusion in the Sex Offender Treatment Program and Pathways Program under an order for a term of at least 18 months.
Sentence of immediate imprisonment inappropriate
It is well established that a sentence of immediate imprisonment can only be imposed as a last resort, in the sense that there is no other appropriate sentencing disposition.[5]
[5] Sentencing Act 1995 (WA), s 6(4), s 39; AH v The State of Western Australia [2014] WASCA 228 [115].
The appellant's plea of guilty was a significant mitigating factor as it avoided the victim the trauma of having to recall the details of the incident by giving evidence at trial. Both parties accepted that the appellant's plea was appropriately recognised by the magistrate in affording the maximum discount of 25% under s 9AA of the Sentencing Act.
In addition, the appellant successfully completed the Pre‑Sentence Opportunity Program and received a favourable report in relation to his participation in that program. The report's author noted that the appellant had 'engaged in an open manner and appears to have taken information shared during counselling very seriously.' The respondent also notes that the appellant successfully completed a six‑month community‑based order made in July 2012.
The respondent submitted that it is concerning that, without intervention, the appellant's risk of re‑offending in a like manner is high. However, the respondent accepted that this risk can best be managed with intensive counselling, support and supervision of the appellant rather than the appellant serving a period of immediate imprisonment.
Accordingly, the respondent accepted that the point of 'last resort' had not yet been reached and conceded that this ground of appeal had been made out.
I accept the respondent's concession that a term of immediate imprisonment was manifestly excessive in all of the circumstances of the present case. If the appellant continues to behave in the manner reflected in his offending conduct in this case, then the time may well come where a sentence of immediate imprisonment is the only appropriate penalty. However, I do not consider it to have been open to the magistrate to conclude that this time has arrived.
This was the appellant's third relevant offence, but the previous offences had been dealt with by a community‑based order, spent conviction order and a fine. Turning to a sentence of immediate imprisonment involved a significant escalation in the severity of the penalty imposed. Other options remained untested. The point of last resort, where a sentence of immediate imprisonment for this kind of offence was called for, had not yet been reached.
Considerations of community protection remain important. However, in the long term the protection of the community will be best advanced by requiring the appellant to undertake programs to address his offending behaviour as a condition of his continued liberty. Such a sentencing disposition will provide an opportunity for the causes of the appellant's offending to be addressed in a manner more likely to prevent future offending. The protection of the community may be better achieved by such a disposition, as opposed to a sentence which sees the appellant returned to the community after serving a short period of imprisonment without having been required to make any attempt to address these issues.
If the appellant commits an offence punishable by imprisonment during the period of the intensive supervision order, he will be liable to be resentenced for the current offence.
The respondent accepts that the magistrate erred when concluding that immediate imprisonment was the only appropriate penalty in all the circumstances. I accept that concession, as well as the respondent's submission that the most appropriate penalty, given the seriousness of the offending and the appellant's current treatment needs, is an intensive supervision order with supervision and programme requirements.
In light of the conclusion I have reached, it is unnecessary to deal with the other grounds of appeal.
Orders
For the reasons I have given, leave to appeal should be granted on ground 1, the appeal allowed, the sentence imposed by the magistrate set aside and substituted with a sentence of an intensive supervision order for a period of 2 years, with supervision and programme requirements.