Weaver v Biggs

[2019] WASC 333

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WEAVER -v- BIGGS [2019] WASC 333

CORAM:   HALL J

HEARD:   9 SEPTEMBER 2019

DELIVERED          :   9 SEPTEMBER 2019

FILE NO/S:   SJA 1104 of 2019

BETWEEN:   ROBERT ALAN WEAVER

Appellant

AND

AARON BIGGS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE C ROBERTS

File Number             :   WY 53 of 2019, KU 610 of 2019, KU 611 of 2019

Catchwords:

Criminal law - Appeal against sentence - Whether magistrate failed to discount sentence for early guilty plea - s 9AA Sentencing Act

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Extension of time granted
Leave to appeal granted
Appeal allowed
Sentences imposed by the magistrate set aside
Appellant re-sentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Legal Aid - Perth
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Gobetti v The State of Western Australia [2017] WASCA 130

Winmar v Clark [2015] WASC 314

HALL J:

(These reasons were delivered extemporaneously on 9 September 2019 and have been edited from the transcript.)

1. This is an appeal against sentence. On 21 June 2019 the appellant appeared in the Magistrates Court at Kununurra and entered pleas of guilty to one charge of burglary, one charge of breach of bail and one charge of breach of a family violence restraining order. He was sentenced to a total effective sentence of 9 months and 1 day imprisonment. The discrete point raised on this appeal is that in sentencing the learned magistrate did not discount the sentences to take into account the pleas of guilty as required by s 9AA of the Sentencing Act 1995 (WA).

2. The respondent concedes that the magistrate made no reference to any discount and that this is ordinarily an indication that the sentencer has overlooked it.[1]  The respondent also accepts that it is not obvious from the length of the total sentence that a discount was incorporated into that sentence.  In those circumstances, the respondent concedes that the ground of appeal has been made out and that the appeal should be allowed and the appellant re‑sentenced. 

   [1]  See Winmar v Clark [2015] WASC 314 [26].

3. The respondent also does not oppose the granting of an extension of time, which is required because the notice of appeal was filed one month late. 

4. In my view the concessions by the respondent are properly made. In some cases there may have been a failure to expressly state the amount of a discount, but it is possible that a discount has been allowed. There may be doubt in such a case as to whether an error is material or merely technical. In this case, however, the magistrate made no reference in his sentencing remarks to s 9AA, any discount for pleading guilty to the charges or any quantification of such discount, either as a percentage or an amount of time.

5. Although the sentencing remarks were brief, the guilty pleas were probably the most significant mitigating factor and it would be expected that they would be mentioned if they had been taken into account. It is also relevant to note that there is a public interest in offenders receiving discounts for pleading guilty and for this to be expressly stated, as is required by s 9AA(5). This is both to acknowledge the value of the plea and to encourage other offenders to plead guilty at an early stage.[2]  Magistrates and judges are conscious of these considerations and are usually careful to ensure that the discount is given and expressly stated.

   [2] See Gobetti v The State of Western Australia [2017] WASCA 130 [79].

6. Taking all of these considerations into account, the only reasonable conclusion that can be reached is that the magistrate overlooked giving a discount when it came to sentencing.  This was, no doubt, an inadvertent error in the course of dispensing justice in a busy court.

7. The appropriate course is to allow the appeal, set aside the sentences and re‑sentence the appellant.  This requires that I give fresh consideration to the facts of the offences.

Facts of the offending

1. In relation to the burglary, between 4.30 pm on 19 March 2019 and 8.00 am on 20 March 2019, the appellant attended the Ngnowar Aerwah Aboriginal Corporation and broke into the main office by throwing a loose paving stone through a glass window and removing glass shards from the frame.  He entered the building, walked through various rooms and left without taking any property.  He then smashed two windows in a second office building and entered that building where he used a first aid kit to dress a small cut he received while entering.  He left the building without stealing any items of value.  He was arrested on 5 April 2019 and participated in an interview in which he admitted the offending and stated that he had entered the building to look for a water bottle. 

2. After being released on bail, the appellant failed to appear in court on 11 April 2019 and an arrest warrant was issued.  This failure to appear was the subject of the breach of bail offence. 

3. On 12 June 2019 the appellant was arrested in relation to the breach of a family violence restraining order charge.  The protected person was the appellant's mother and the order provided that he was not to enter or remain upon his mother's residence and not to behave in an intimidatory, offensive or emotionally abusive manner towards his mother. 

4. The appellant had been out fishing with his mother during the day and she had bought him some alcohol.  Afterwards, he had gone to his sister's house and then, under the influence of alcohol, went to his mother's house where he got a stereo out and started playing music at the front of the house.  That led to an argument with his mother, who reported the breach to the police. 

Disposition

1. The maximum penalties for these three offences are:

   •burglary - 14 years' imprisonment;

   •breach of bail - 3 years' imprisonment or a $10,000 fine (or both); and

   •breach of family violence restraining order - 2 years' imprisonment or a $6,000 fine (or both).

2. In my view, the magistrate's view of the seriousness of the offences was correct.  The appellant had a history of breaching violence restraining orders.  A sentence of imprisonment for that offence was required by law.[3]  The burglary offence, though not at the most serious end of such offences, was also deserving of imprisonment given the importance of specific deterrence.  Having exercised my discretion, I have independently come to the view that the sentences imposed by the magistrate were appropriate, but for their failure to incorporate discounts for pleas of guilty. 

   [3] Because s 61A of the Restraining Orders Act 1997 (WA) applied, the appellant having been convicted of at least two offences of the same type in the previous two years.

3. I accept that the pleas of guilty were entered at the first reasonable opportunity and that a discount of 25% in each case is appropriate.  Accordingly, the orders of the court will be: 

   (1)an extension of time is granted;

   (2)leave to appeal is granted;

   (3)the appeal is allowed; and

   (4)the sentences imposed by the magistrate are set aside and in lieu thereof the following sentences are imposed:

   (a)for the burglary, a sentence of 2 months and 1 week imprisonment;

   (b)for the breach of bail, a sentence of 5 days' imprisonment to be served concurrently; and

   (c)for the breach of family violence restraining order, a sentence of 4 months and 2 weeks' imprisonment to be served cumulatively. 

4. The total effective sentence therefore is one of 6 months and 3 weeks' imprisonment.  That sentence is to take effect from the date the original sentences were backdated to, being 12 June 2019.

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

AL
Associate to the Honourable Justice Hall

12 SEPTEMBER 2019