Watson v Oldham
[2011] WASC 119
•6 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WATSON -v- OLDHAM [2011] WASC 119
CORAM: JENKINS J
HEARD: 15 APRIL 2011
DELIVERED : 15 APRIL 2011
PUBLISHED : 6 MAY 2011
FILE NO/S: SJA 1115 of 2010
BETWEEN: GRANT MATHEW WATSON
Appellant
AND
WAYNE OLDHAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R G W BAYLY
File No :PE 16616 of 2010, PE 16617 of 2010
Catchwords:
Criminal law - Appeal - Breach of conditionally suspended imprisonment order - Reasonable excuse for failing to report as directed
Legislation:
Sentencing Act 1995 (WA), s 11, s 81(1), s 84J(1)
Result:
Leave to appeal refused on ground 1
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: Ms M J Paterson
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Taikato v The Queen (1996) 186 CLR 454
JENKINS J:
(These reasons were delivered orally and edited from transcript.)
On 24 September 2010 in the Magistrates Court at Perth, the appellant was convicted after trial of two counts of breaching a conditional suspended imprisonment order (CSIO) by failing to report for supervision as directed. The magistrate committed the appellant to the District Court, which was the court which had imposed the CSIO.
Grounds of appeal
The appellant appeals against the convictions on the basis that the magistrate should have found that he had a 'reasonable excuse' for failing to report. The appellant has been granted leave to appeal on ground 2 but not ground 1. The two grounds of appeal are:
(1)the magistrate erred at law in not finding on the balance of probabilities that the appellant had provided a reasonable excuse for not contacting his community corrections officer on 17 December 2009;
(2)the magistrate erred in fact and law in finding that the appellant's conduct between 18 and 23 December 2009 was capable of supporting a conclusion that the appellant had not established on the balance of probabilities that he had a reasonable excuse for not contacting his community corrections officer on 17 December 2009.
The charges
The charges are identical but relate to separate offences which were the subject of the one CSIO. For example, one of the charges alleges on 17 December 2009 at Perth, being an offender subject to a CSIO made by the Perth District Court on 5 February 2009 in respect of the offence of indecent dealings with a child who is a lineal relative or de facto child under 16 years, breached the order by failing to report for supervision on 17 December 2009 as directed on 23 November 2009, contrary to s 84J(1) of the Sentencing Act 1995 (WA).
Section 84J(1) says:
A person who breaches a CSIO requirement without reasonable excuse, proof of which is on the person, commits an offence.
Proceedings in the Magistrates Court
The appellant pleaded not guilty to both charges. The following facts are not in dispute on appeal. On 2 February 2009 Fenbury DCJ imposed a term of 6 months' imprisonment on each of two offences of indecent dealing with a de facto or lineal relative under the age of 16 years. His Honour ordered that the terms be served cumulatively resulting in an aggregate term of 12 months' imprisonment.
Pursuant to the Sentencing Act s 81(1), his Honour ordered that the terms be suspended for a period of 24 months subject to the standard obligations and supervision and programme requirements. As provided in the Act s 84B, a supervision requirement, '[i]s a requirement that an offender must contact a community corrections officer (CCO) or receive visits from a CCO as ordered by a CCO'. The appellant signed the order which stated this obligation.
As he was residing in the Northern Territory the appellant was ordered to contact various CCOs by telephone in Perth at various times throughout the CSIO. On or about 16 November 2009 the appellant received a letter from Troy Holland, a senior CCO which said in part:
You failed to report for your scheduled supervision appointment on 09.11.09 as directed.
You have also not made any contact to explain your absence or attempted to schedule another appointment. Please remember that keeping your appointments is a very important part of your Order and failure to report as directed may result in Breach action being taken against you.
An appointment has been made for you to phone as follows:
Time: Please call between 9 - 12 am
Date: 23.11.2009
Address: 68 Milligan St, PERTH, WA, 6000
If you cannot keep this appointment please telephone me on 9229 6500 upon receipt of this letter to make an alternative arrangement.
On 23 November 2009 the appellant telephoned Mr Holland as directed and was told to report again by telephone on 17 December 2009. On 17 December 2009 the appellant worked from 7.30 am to 4.45 pm central standard time (CST), which is 6.00 am to 3.15 pm western standard time (WST). The appellant did not attempt to telephone his CCO prior to finishing work.
Although the appellant gave evidence at his trial of the charges, he did not explain why it was not practical for him to call during any break in his work day. After he finished work he tried to call his CCO once from a public telephone box. He heard what he described as 'a beep, beep, beep'. He called Telstra to check the number and was told that he had called the correct number. He rang the number again and received the same tone. He did not attempt to contact his CCO again that day.
The community corrections office which the appellant was told to call is open Monday to Friday between the hours of 8.00 am and 5.00 pm WST, and on Tuesday between the hours of 8.00 am and 6.00 pm WST. Seventeen December 2009 was a Thursday. The office has five lines attached to the number the appellant was told to call. Each line is answered by the one receptionist. The appellant did not attempt to call again until 24 December 2009. He said that on that date the phone rang out. The next time he called was 6 January 2010.
The main issue at trial was and, on appeal, is whether the magistrate erred in failing to find that the appellant had a reasonable excuse for failing to report as directed on 17 December 2009. In this respect the magistrate referred to the High Court's decision in Taikato v The Queen (1996) 186 CLR 454, 464 where the majority of the High Court said:
The term 'reasonable excuse' has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception.
His Honour then said:
The purpose of the legislation under the Sentencing Act in relation to reporting and contact for somebody who is on a conditional suspended sentence presumably is in order that the community corrections officer is able to check‑up as to where the accused person is, to ensure that the accused person is complying with is conditional suspended imprisonment order, and complying with not only the reporting conditions but any other conditions such as program conditions.
In this case there is no dispute that the accused was well aware of his requirements to contact his community corrections officer as directed. By letter dated 16 November 2009 he was made aware of a failure to report as directed may result in breach (indistinct). As I say, according to the accused he rang twice on 17 December 2009 and when he could not get through he didn't ring again until 24 December 2009, and then when the phone rang out on 24 December 2009 he didn't ring again until 6 January 2010 - and then only when his wife rang on his behalf initially.
In circumstances where he knew the important of making contact with his community corrections officer, to ring twice, and when those calls didn't go through not to ring again, was to say the very least extremely foolish particularly in light of the warning letter - and although the offence was alleged to have occurred on 17 December his failure to ring again between 18 and 24 December demonstrates in my view his attitude towards his reporting obligations.
It must not be forgotten that the conditional suspended sentence of imprisonment was (indistinct) person losing their liberty entirely and being in prison. It is therefore not unreasonable that the person who is placed on a conditional suspended term of imprisonment should comply strictly with his requirements to report (indistinct) alternative (indistinct) being (indistinct) such a sentence would be that he would be incarcerated.
In my view to ring only twice and then not to ring again that day, and indeed not to ring again on future days - although the offence is not to alleged to have occurred on future days, was, in the circumstances that the accused was in, not reasonable - particularly given (indistinct). The accused has not therefore, in my view, established on the balance of probabilities that he had a reasonable excuse and he will be convicted.
Ground 1
The appellant concedes that the onus was on him to prove on the balance of probabilities that he had a reasonable excuse for failing to report as directed. The appellant's submission is, in essence, that his intention to contact his CCO together with two failed attempts to do so and his call to Telstra to check the correctness of the telephone number is sufficient evidence to prove, on the balance of probabilities, that he had a reasonable excuse for not contacting his CCO.
I do not agree. It was open to the magistrate to decide that he was not so satisfied. On the evidence before the magistrate, his Honour's decision was entirely correct.
A reasonable excuse is one which a hypothetical ordinary person would find reasonable, not one which the appellant thinks is reasonable.
The appellant received what he thought may have been an engaged signal when he rang what he believed was the correct number of the community corrections office. On a worst case scenario he would have had at least an hour to make further attempts to contact his CCO before the community corrections office closed. He made no attempts to do so within that period and he gave no explanation for failing to try.
The appellant did testify that sometimes he was short of money and this made contact by phone difficult. However, he did not give evidence that this was the reason he did not attempt to make further calls on 17 December 2009; neither was the conclusion open that this was the reason why he failed to make subsequent calls. Presumably he had sufficient money to make a call, otherwise he would not have tried to start with. As his first two attempts had been unsuccessful, he should not have been charged for them. There was no reason to infer that he had insufficient money left to make further attempts. The appellant gave no other explanation for failing to make further attempts to contact his CCO.
I agree with the magistrate's observations about the circumstances and the purpose of reporting conditions. I also agree with his comments about the high standard of reporting that should be expected of an offender subject to a CSIO.
Such an offender has been given an opportunity to serve his or her sentence of imprisonment in the community in a law abiding and responsible manner. It is important that CCOs be able to maintain contact with such an offender and know what he or she is doing with their life, even if it means that the offender's life is significantly inconvenienced by such contact.
Courts and the community rightly expect that such an offender will take his or her obligations under the CSIO, including reporting conditions, seriously and comply with them in a diligent and conscientious manner. The appellant failed to do this and failed to prove on the balance of probabilities that he had a reasonable excuse for not reporting as directed.
Ground 2
The appellant asserts that the magistrate erred in taking into account that he failed to attempt to contact his CCO for a further seven days after 17 December 2009. The respondent submits that the magistrate did not take the evidence into account in the manner contended for by the appellant. I will decide this ground on the basis that the magistrate did take the evidence into account in deciding whether the appellant had a reasonable excuse for not reporting. I do not think that it is clear from his Honour's reasons whether he did or did not do so and so I will decide the appeal on the view most favourable to the appellant.
The respondent says that if he is wrong in his first submission then the magistrate was entitled to take the subsequent conduct into account in one or both of two ways. The first way the respondent says that the magistrate was entitled to take the subsequent conduct into account is that it is relevant to show the circumstances of the case, and it may be evidence from which an inference as to the efforts made by the appellant to comply on the relevant date may be drawn.
In my view, what occurred on a subsequent date may provide some evidence of the surrounding circumstances which the magistrate was entitled to consider in coming to his conclusion about what happened on 17 December 2009. However, there is obviously a significant limit on the extent to which proof of something which occurred or did not occur after 17 December 2009 can be of assistance in determining whether the appellant had a reasonable excuse for what occurred on 17 December 2009.
Nevertheless, to the limited extent that it could shed some light on the diligence or reasonableness of the appellant's attempts to contact his CCO on 17 December 2009, the magistrate was entitled to take it into account.
The second basis on which the respondent says the magistrate was entitled to take the subsequent conduct into account is that it was relevant to the appellant's overall attitude to his reporting condition. The respondent says that this was a matter that was relevant to sentencing.
That may be so, but at this point the magistrate's only consideration was whether there had been a breach of the CSIO. Consequently, I do not accept the respondent's submission in this regard.
Next, the respondent says that even if the magistrate erred in taking the subsequent conduct into account, there was no substantial miscarriage of justice. In this respect I agree with the respondent. Even if the magistrate erred in taking this evidence into account or giving too much weight to it, I am not satisfied that the error resulted in a substantial miscarriage of justice.
His Honour's finding that the appellant had failed to satisfy him on the balance of probabilities that he had a reasonable excuse for failing to report to his CCO on 17 December 2009was, in my view, the only correct decision on the evidence concerning what occurred before and on 17 December 2009 itself. This is for the reasons which I have given earlier and for the reasons given by the magistrate with which I entirely agree.
Conclusion
For these reasons leave to appeal will be refused on ground 1 and the appeal will be dismissed.
I asked counsel why two charges had been laid against the appellant. Counsel did not have instructions on the issue. It seems to me that s 81(1) of the Sentencing Act permits a single conditional suspended imprisonment order to be made in respect of aggregate terms of imprisonment. That was the case in respect to the appellant.
There was only one alleged breach of that conditional suspended imprisonment order, that is, a breach by failing to contact the CCO on 17 December 2009 as directed. On the other hand, the two charges under s 84J(1) were laid in respect to the two separate offences of indecent dealing which were the subject of the CSIO. It seems to me that it is unnecessary for separate offences to be alleged with respect to the two separate convictions. One charge should be laid for each alleged breach of a single CSIO, no matter how many suspended terms of imprisonment are the subject of the CSIO. However, in this case there is no appeal against the convictions on this basis.
Further, it would seem to me that any duplication in this regard may be dealt with by application of the Sentencing Act s 11, which provides that a person is not to be sentenced twice on the same evidence. I simply raise this issue for consideration in further cases.
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