Weston v Nicolao
[2018] WASC 316
•22 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WESTON -v- NICOLAO [2018] WASC 316
CORAM: JENKINS J
HEARD: 4 OCTOBER 2018
DELIVERED : 4 OCTOBER 2018
PUBLISHED : 22 OCTOBER 2018
FILE NO/S: SJA 1103 of 2018
BETWEEN: BENJAMIN JOSHUA TROY WESTON
Appellant
AND
NILO JOHN NICOLAO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E SHACKLETON
File Number : BU 1082/2017
BU 1083/2017
BU 302/2018
BU 660/2018
BU 661/2018
BU 662/2018
Catchwords:
Criminal law - Appeal against sentence - Driving offences - Possession of stolen property - Failure to state the fact and extent of reduction for pleas of guilty
Legislation:
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Sentences set aside
Charges remitted to the Magistrates Court for re-sentencing
Category: B
Representation:
Counsel:
| Appellant | : | Ms N Sinton |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid of Western Australia |
Case(s) referred to in decision(s):
H v The State of Western Australia [2006] WASCA 53
McDonald v White [2007] WASCA 213
Roberts v The State of Western Australia [2014] WASCA 239
JENKINS J:
(These reasons were delivered orally and have been edited from transcript)
This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Bunbury on 5 June 2018. The appeal is against the sentences imposed for the offences of driving without authority, possession of stolen property, recklessly driving to escape pursuit in circumstances of aggravation and failing to stop in circumstances of aggravation.
Ground of appeal
The appellant relies on one ground of appeal, being that the learned magistrate erred in law in failing to discount the sentences of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's pleas of guilty pursuant to the Sentencing Act 1995 (WA) s 9AA.
Application for extension of time
The appellant requires an extension of time to appeal as the appeal was filed about five weeks out of time. There are four principal considerations in determining whether an extension of time ought to be granted. Those factors are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
The length of the delay is small. There is an arguable case on the appeal and there is no prejudice to the respondent in granting an extension of time. For these reasons I have decided to grant an extension of time within which to appeal.
Application for leave to appeal
The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on the one ground of appeal. If a ground of appeal has reasonable prospects of succeeding I ought to grant leave to appeal on that ground. For the reasons which I state below, I have decided that the magistrate erred and that the appeal ought to be allowed. Therefore I grant leave to appeal on the one ground of appeal.
Offences the subject of the appeal
The appeal relates to the following prosecution notices:
(1)Bunbury 1082/2017, being a no authority to drive offence committed on 3 February 2017. The appellant was sentenced to four months imprisonment concurrent for that offence.
(2)Bunbury 302/2018, being an offence of possession of stolen property committed on 15 January 2018. The appellant was sentenced to one month imprisonment concurrent for that offence.
(3)Bunbury 660/2018, being a count of reckless driving to escape pursuit in circumstances of aggravation being committed on 5 February 2018. The appellant was sentenced to 10 months imprisonment,[1] cumulative on a sentence he had been ordered to serve by a District Court judge on another matter.
(4)Bunbury 661/2018, being an offence of failing to stop which was committed on 5 February 2018. The appellant was sentenced to two months imprisonment concurrent for that offence.
(5)Lastly, Bunbury 662/2018, being an offence of no authority to drive, committed on 5 February 2018. The appellant was sentenced to six months imprisonment concurrent for that offence.
[1] The offence carries a minimum mandatory sentence of 6 months immediate imprisonment.
On 14 May 2018 the appellant had been ordered to serve a sentence of 6 months imprisonment being part service of a suspended sentence of imprisonment that was imposed in the District Court on 19 October 2015.
The total sentence imposed by the magistrate was one of 10 months imprisonment but as the 10 months imprisonment was ordered to be served cumulatively on the District Court sentence, the appellant's total sentence was one of 16 months imprisonment.
Proceedings in the Magistrates Court
When the appellant appeared in the Magistrates Court on 5 June 2018, he had already, it seems, entered pleas of guilty to the offences that are the subject of the appeal. So the matter proceeded by way of the prosecutor reading out the facts of the charges as follows:
Bun 1082/2018
At 6.06 pm on Friday, 3 February 2017, the [appellant] drove a Holden 1DTT581 on Westwood Street, Withers. He was stopped by police near Parade Road. Inquiries revealed he had never held a licence to drive and he was disqualified as of May and June 2015 in the Bunbury Magistrates Court. Due to the impact of five suspensions (indistinct) those court disqualifications had commence.
At the time of driving the vehicle, the vehicle he was not licensed and subject to a permit. The vehicle expired on 4 October 2016.
Bun 302/2018
6.50 pm, Monday, 15 January 2018, police (indistinct) did a firearm search warrant at 21 Orion Lane, Australind. [The appellant] lives at that address with his partner and two children. The premises were searched with the accused's partner present and during the search, police located a Polaris Ranger beach buggy valued at less than $10,000 in a garage.
Police suspected the Polaris had been stolen as the initial as the (indistinct) had been removed and the engine number ground off. Inquiries revealed that a machine was stolen was Willow Bridge Estate wines in Dardanup on 8 January 2018. Police seized the Polaris off road bike, sir and submitted a request to have it forensically examined and Wednesday, 17 January 2018, the [appellant] attended Bunbury Police Station, where he was arrested and took part in a video record of interview.
He made some admissions, sir, but indicated to police he had purchased it lawfully some months ago.
Bun 660 ‑ 662/2018
9.35 pm, Monday, 5 February 2018, the [appellant] was driving a black Nissan motor vehicle bearing false plates on Brittain Road, Carey Park.
Police activated emergency lights in an attempt to stop the vehicle … the vehicle turned into (indistinct) street and accelerated heavily. A siren was activated and the Nissan was quite clearly seen and failed to stop for police. Communication with police operations commenced via radio … an evade police incident was authorised. The Nissan vehicle turned on Pierre Street and then Underwood Street, accelerated heavily producing large plumes of black diesel smoke from the exhaust.
The Nissan turned into Robertson Drive and again accelerated to a speed of 110 kilometres an hour in the 80 kilometre zone. There were night road works set up at the time and an operation at the intersection of Robertson Drive and Southern Western Highway. The roadworks are governed by 40 kilometre speed signs. On entry, the [appellant] continued at high speed 100 kilometres an hour into the roadworks and disrupting or upsetting the road workers.
The [appellant] applied the brakes heavily at the red traffic control lights, skidding to a stop, before making a right turn through the red signal onto Southern Western Highway, avoiding oncoming traffic. He turned right into Halifax Drive and continued at a slower speed, … 70 kilometres in a 60 zone, sorry as the vehicle was quite obviously losing power and the [appellant] was struggling to maintain control.
He steered the vehicle into an open grass paddock, got out of the vehicle and became bogged on a sand hill. Another occupant of the vehicle was apprehended and identified the [appellant] as the driver.
The prosecutor also read out facts from two other offences but the appellant's counsel said that she thought they had already been dealt with and the magistrate said that he did not think they were listed before him. The appellant was not sentenced for those offences.
After the facts were read, a plea in mitigation was submitted. At the conclusion of that plea in mitigation, the magistrate proceeded to sentence the appellant.
During the plea in mitigation, the appellant's counsel referred to the fact that the appellant had pleaded guilty to these charges and submitted that the pleas of guilty should attract a significant discount. However, she acknowledged that the pleas of guilty to the reckless driving charge and related offences committed on the same date were not pleas made at the earliest opportunity.
The magistrate then proceeded to sentence the appellant. His Honour said:[2]
The charges that you've pleaded guilty to are serious. It would seem, on my calculations, the driving under disqualifications are fourths, although you have more than three previous. You were pulled over on 3 February and no doubt made very clear that you weren't to drive, and then …
… in January 2018, you were still driving under disqualification and drove in a way that , it is often said, places other road users at potential risk. In your cause, you placed them in real risk, that being the road workers where you drove through a 40‑kilometre-an-hour area at 100 kilometres an hour. It is a serious example, in my view, of that kind of driving, which, in all the circumstances, including that you were under disqualification, does not call for the mandatory minimum to be imposed.
In relation to the reckless driving to escape pursuit by police, there's 10 months' imprisonment. In relation to the no authority to drive related to that, there is six months' imprisonment. In relation to the failing to stop, there's two charges, being the first driving under disqualification, there's four months' imprisonment. Possession of stolen or unlawfully obtained property, there is one-month imprisonment.
The 10 months is to be served cumulative upon the term that was imposed in the District Court – all others concurrent - and I make you eligible for parole.
[2] 5 June 2018 ts 2.
It is not in dispute that the magistrate did not mention the effect of the pleas of guilty, apart from saying that the charges to which the appellant had pleaded guilty were serious. He did not state that the appellant should receive a discount for his pleas of guilty or state what the discount was in relation to them. This was in circumstances where it would have been open for the magistrate to impose different discounts given that the pleas were entered at different times.
The law
The appellant's argument is that it must therefore be inferred that the magistrate did not allow appropriate reductions under the Sentencing Act, s 9AA(2) for the appellant's pleas of guilty. The Sentencing Act s 9AA(2) ‑ (5) states:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
In Roberts v The State of Western Australia[3] the sentencing judge, whilst aware of the pleas of guilty to the offences of which he had convicted that offender, did not make any reference in his sentencing remarks to a reduction in sentence by reason of the pleas of guilty. In the appeal, the State conceded that the failure to refer to any reduction of the sentence in consequence of the pleas of guilty was an express error by the sentencing judge.
[3] Roberts v The State of Western Australia [2014] WASCA 239 [49]
In considering whether the error was material to the sentencing process, the Court of Appeal inferred from the sentencing judge's failure to refer to any discount for the pleas of guilty, or to satisfy the obligation imposed under s 9AA(5) to specify the extent of the discount, that the judge had overlooked the effect of the pleas of guilty. The court saw that inference as reinforced by the sentence which was imposed in that case. The Court of Appeal said:[4]
As we have noted, the State concedes, quite properly, that the sentencing process reveals express error by the sentencing judge in two respects. First, the sentencing judge made no reference to any reduction in sentence as a consequence of Mr Roberts' pleas of guilty at the earliest reasonable opportunity, nor was any reference made to a reduction in sentence appropriate to reflect the fact that Mr Roberts volunteered information to police which led to his conviction on the first three charges brought against him.
However, as the plurality recently observed in Kentwell v R, not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven an appellate court’s jurisdiction to intervene. Rather, that jurisdiction will only be enlivened if the error is material. The question therefore is whether the errors conceded by the State were material to the sentencing process.
The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges. However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact. In relation to that question, as Steytler P observed in H v Western Australia:
[T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.
The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one‑third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge’s failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.
[4] Roberts [46] – [49].
In Roberts, the Court of Appeal referred to H v The State of Western Australia.[5] Similar comments were made in McDonald v White.[6] Those two cases were decided prior to the enactment of the Sentencing Act, s 9AA. However the principles in those cases apply to a case such as this where it has to be determined whether there was a breach of s 9AA.
[5] H v The State of Western Australia [2006] WASCA 53 [10].
[6] McDonald v White [2007] WASCA 213 [27] – [29].
These principles must be seen in light of the fact that even a late plea of guilty will usually warrant some reduction in a sentence. The earlier, of course, in the proceedings the plea is made, the larger the reduction will be.
Application of the law to the facts
Having regard to these principles, the respondent rightly says that a simple failure to comply with s 9AA(5) does not amount to a material error that requires appellate intervention because the failure to state the fact and extent of a discount does not necessarily mean that a discount was not given. However, failure by a sentencing judge or magistrate to refer to the effect of a plea of guilty will ordinarily be an indication that the sentencing officer has overlooked the plea of guilty and failed to take it into account in determining the sentence to be imposed.
The respondent accepts that in this case the sentencing magistrate did not make any specific reference to the appellant's plea of guilty, s 9AA or any resulting discount in his sentencing remarks. The respondent acknowledges and accepts that it is not possible to discern whether any discount was applied and if so, the extent of the reduction and that this tends to indicate that his Honour overlooked the application of s 9AA in the present case.
If the sentencing magistrate had considered and applied s 9AA it is likely that different discounts or reductions would have been made for different offences. Therefore some mention of this would have been expected to have been made by the magistrate.
The respondent accepts that the ground of appeal has been made out and that my jurisdiction to resentence the appellant has been enlivened. I agree that it is not possible for me to be satisfied that the magistrate complied with s 9AA and that he provided a discount to the appellant for his pleas of guilty. Justice requires that the appeal be allowed, the sentences be set aside and the appellant be resentenced.
Usually the appeal court is in as good a position as the Magistrates Court to resentence an appellant. I would usually proceed to do that. However, during my preparation for the hearing, and after reading the Magistrates Court transcript, the transcript of the proceedings in the District Court and the appellant's prior criminal record, I realised that the appellant has pleaded guilty to some other driving offences which were both committed before these offences under appeal and some after these offences under appeal.
At the time he was sentenced for these offences he was, and he remains, awaiting sentence in the Bunbury Magistrates Court on those charges. The charges which I identified were Bunbury 3191 of 2017, being a no authority to drive offence committed 24 May 2017; Bunbury 3297 of 2017, being a no authority to drive offence committed on 24 May 2017, (committed after Bunbury 3191 of 2017); Bunbury 3362 of 2017, being a no authority to drive offence committed on 29 April 2017; Bunbury 800 of 2018, being an unlicensed motor vehicle offence committed on 10 December 2017 and Bunbury 801 of 2018, being a no authority to drive offence committed on 10 December 2017.[7]
[7] The prosecutor read the facts of Bunbury 3191/2017 and 3297/2017 but as related earlier the magistrate did not impose sentences for them.
My associate advised the parties of these outstanding charges. I have been advised by counsel that because of an administrative oversight, these other charges were not listed for sentencing on the date that the offences under appeal were listed for sentencing. Indeed they are currently without a date for sentencing. However counsel, after receiving my associate's email, spoke to an officer at the Bunbury Court House who confirmed that the charges were missed and have not been dealt with. The officer advised that if I remitted the offences under appeal for sentencing to the Bunbury Magistrates Court, then the court would relist the missed charges for sentencing on the same date.
In my view, it is appropriate that the appellant be sentenced for all of these offences at one time. That is because of the similarity in some of the offences, the similar time period in which they were committed and because those matters and others may mean that there is a totality issue to be considered in the sentencing of the appellant.
Consequently, I have decided that rather than resentencing the appellant, I ought to remit the charges to the Bunbury Magistrates Court before resentencing. At the request of the appellant, I will remit the matters to a different magistrate for resentencing. However, that the appellant in making that request is not suggesting that the magistrate who sentenced him would not be able to resentence him according to law. Neither am I in making the order suggesting that the magistrate could not resentence the appellant according to law. It is simply a matter that, in these circumstances, it is appropriate that a different magistrate put fresh eyes, so to speak, on the sentencing of the appellant.
Further, nothing in these reasons should be read as meaning that I have found that any particular individual sentence, or that the total term of 10 months cumulative was excessive. I am simply not able to find that there has been no substantial miscarriage of justice because of the error made by the magistrate. As there are the outstanding charges in the Magistrates Court it is in the interests of justice that the appeal be allowed and the matter should go back to the Magistrates Court for all outstanding sentencing matters to be dealt with together.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS22 OCTOBER 2018
3
1