Yates v The State of Western Australia
[2008] WASCA 144
•10 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144
CORAM: MARTIN CJ
STEYTLER P
McLURE JA
BUSS JA
MILLER JA
HEARD: 18 JUNE 2008
DELIVERED : 10 JULY 2008
FILE NO/S: CACR 157 of 2007
BETWEEN: SCOTT JAMES YATES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 1366 of 2006
Catchwords:
Criminal law - Appeal against sentence - Construction of Sentencing Legislation Amendment and Repeal Act 2003 (WA) cl 2(1), cl 2(4), cl 2(5) of Sch 1 - Whether cl 2(1) applies to new offence - Availability of exceptions in cl 2(4) and cl 2(5)(b) of Sch 1 - Whether adverse findings open on the evidence
Legislation:
Corrections (Remissions) Act 1991 (Vic), s 3
Criminal Code (WA), s 304(2), s 444(b)
Criminal Code Amendment Act 2004 (WA)
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Interpretation Act 1984 (WA), s 31, s 36
Prisons Act 1981 (WA), s 29
Sentencing (Consequential Provisions) Act 1995 (WA)
Sentencing Act 1991 (Vic), s 10
Sentencing Act 1995 (WA), s 95, s 143
Sentencing Administration Act 2003 (WA), s 74(2)
Sentencing Amendment (Adjustment of Sentences) Act 2000 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2
Result:
Appeal allowed
Sentence of 6 years quashed, sentence of 3 years imposed in lieu
Category: A
Representation:
Counsel:
Appellant: Mr A O Karstaedt
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Max Crispe
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Cohen v Curchin [2008] WASC 8
Deputy Federal Commissioner of Taxes (SA) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610
Dinsdale v The Queen (2000) 202 CLR 321
Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272
Forward v Bower [2007] WASC 205
Fox v Commissioner for Superannuation (No 2) [1999] FCA 372; (1999) 88 FCR 416
Harris v The Queen (2004) 150 A Crim R 509
Hoare v The Queen (1989) 167 CLR 348
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53
Jarvis v The Queen (1993) 20 WAR 201
Kirby v The Queen [2003] WASCA 239
Lowndes v The Queen (1999) 195 CLR 665
Marshall v Watson (1972) 124 CLR 640
Mills v Meeking (1990) 169 CLR 214
Narkle v Hamilton [2008] WASCA 31
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Ormond Investment Co Ltd v Betts [1928] AC 143
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Wallam [2008] WASCA 117
Thompson v Goold & Co [1910] AC 409
Wicks v The Queen (1990) 3 WAR 372
Withnell v Walker [2005] WASCA 8
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
MARTIN CJ: This appeal raises the question of whether a court imposing a sentence of imprisonment for an offence created after the commencement of the so‑called 'truth in sentencing' legislation is required to reduce the sentence by one‑third. For reasons which follow in my opinion a court is not required to reduce the sentence to be imposed.
I adopt the description of the factual context of this appeal provided in the reasons to be given by McLure JA. Against that factual context, I will first address the issue raised by ground 5, which asserts that the trial judge erred by concluding that the sentence to be imposed in respect of a contravention of s 304(2)(a) of the Criminal Code (WA) was not to be reduced by one‑third pursuant to the provisions of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions). In approaching that issue, I draw from the history of the transitional provisions provided in Worthington v The State of Western Australia (2005) 152 A Crim R 585 [57] ‑ [71] (Pullin JA). That history is as follows.
For many years prior to 2003 it was the practice in Western Australia to remit significant portions of the prison sentence to be served in almost all cases. In 1981 the Committee of Inquiry into the Rate of Imprisonment (the Dixon Committee) concluded that removal of remission was 'quite impractical' because it was such an entrenched part of the system. The Dixon Committee recommended that the rate of remission on finite sentences should be increased from one‑quarter to one‑third and that the rate of remission on minimum sentences should be increased to one‑third. Those rates of remissions were enacted by s 29 of the Prisons Act 1981 (WA). Under that statutory regime, the remission of one‑third could be lost, but only for limited reasons - the most significant being the commission of an offence while in prison.
On 2 October 1996 the then Attorney General established a committee under the chairmanship of the then Chief Judge of the District Court, Chief Judge K J Hammond (the Hammond Committee), to examine and report on arrangements with respect to remission and parole (the Review of Remission and Parole). Amongst the specific terms of reference was a requirement to report on arrangements for:
(d)Reducing the rate of remission so that the time actually served by a prisoner more closely approximates the term imposed by the Court while ensuring that a prisoner sentenced under any new remission regime spends no longer in custody than he or she would have spent had he or she been sentenced before the commencement of the new provisions for a similar offence in similar conditions.
The recommendations of the Hammond Committee included recommendations in the following terms:
2.The one‑third remission of sentence be abolished.
Abolition of remission will address community concern that sentences imposed appear to bear little relationship to sentences actually served, but note Recommendation 12 below.
…
12.The sentencing court be required by statute to adjust sentences so that the actual time served is no greater than that which would have been served if the existing provisions relating to remission and parole still applied.
This approach appears to have been applied largely successfully in Victoria to prevent unintended prison population growth consequent upon sentencing changes. This recommendation has caused the Committee great concern in that it will be most difficult to implement but its inclusion is necessary under terms of Reference (d). Notwithstanding such perceived difficulty the Committee believes it is an attainable goal.
The reasons which caused the Hammond Committee to make Recommendation 2 (above) are provided in ch 5 of its report. In that chapter the arguments for and against the retention of remission are considered. The Hammond Committee concluded that the practice of remitting one‑third of each sentence of imprisonment should be abolished.
The reasons which caused the Hammond Committee to make Recommendation 12 (above) are found in par 7.2.10 of its report:
7.2.10Minimising any unintended impact on prison musters
The Committee is concerned to ensure that prison musters are not significantly affected by any new sentencing regime. In Victoria, provision is made in the Sentencing Act 1991 (Vic) for the court to adjust sentences so that the actual time expected to be served by a prisoner under any new sentencing scheme is no greater than under the existing arrangements. An alternative approach, and one which was contemplated in the United Kingdom, would be for the Chief Justice, if he were in agreement, to issue a practice direction to the same effect. On the basis that the Victorian approach has been tested and appears to have been largely effective, the inclusion of a suitable provision in legislation is supported. This should assist in ensuring that the rapid and sizeable growth in the prison population encountered when 'truth in sentencing' was introduced in New South Wales is not repeated in Western Australia. However, the purpose of any provision requiring the courts to adjust sentences would need to carefully and fully explained [sic] and the effects of the legislation would need to be very closely monitored.
The reference made by the Hammond Committee to the provisions of the relevant Victorian legislation was a reference to s 10 of the Sentencing Act 1991 (Vic), which was in the following terms:
10.Court must take abolition of remissions into account
(1)When sentencing an offender to a term of imprisonment a court must consider whether the sentence it proposes would result in the offender spending more time in custody, only because of the abolition of remission entitlements by section 3(1) of the Corrections (Remissions) Act 1991, than he or she would have spent had he or she been sentenced before the commencement of that section for a similar offence in similar circumstances.
(2)If the court considers that the sentence it proposes would have the result referred to in subsection (1) it must reduce the proposed sentence in accordance with sub‑section (3).
(3)In applying this section a court ‑
(a)must assume that an offender sentenced before the commencement of section 3(1) of the Corrections (Remissions) Act 1991 would have been entitled to maximum remission entitlements; and
(b)must not reduce a sentence by more than is necessary to ensure that the actual time spent in custody by an offender sentenced after that commencement is not greater, only because of the abolition of remissions, that it would have been if the offender had been sentenced before that commencement for a similar offence in similar circumstances.
(4)For the purposes of this section -
(a)'remission entitlements' are entitlements to remission under section 60 of the Corrections Act 1986 or regulation 97 of the Corrections Regulations 1988; and
(b)'term of imprisonment' includes -
(i)a term that is suspended wholly or partly; and
(ii)any non‑parole period fixed in respect of the term.
(4A)This section does not apply to the Supreme Court or the County Court when sentencing a serious sexual offender for a sexual offence or a violent offence or a serious violent offender for a serious violent offence.
(5)This section expires on the fifth anniversary of the day on which it comes into operation.
(6)It is intended that the expiry of this section will not of itself have any effect on sentencing practices and that after the expiry a court will, as required by section 5(2)(b), have regard to sentencing practices current immediately before then as if this section had not expired.
This section was enacted as a consequence of s 3 of the Corrections (Remissions) Act 1991 (Vic) which abolished, in Victoria, the practice of remitting part of a sentence of imprisonment in respect of all sentences imposed after the legislation commenced operation.
The report of the Hammond Committee was published in March 1998. In the meantime, between the Hammond Committee's formation and report, s 29 of the Prisons Act 1981 had been repealed by s 110 of the Sentencing (Consequential Provisions) Act 1995 (WA). That Act came into operation on 4 November 1996. As Pullin JA has pointed out at [62] ‑ [64] in Worthington, s 29 of the Prisons Act 1981 was replaced by separate provisions, which, when combined, had the effect of providing an automatic one‑third reduction in all prison terms to be served (see s 95, Sentencing Act 1995 (WA), and s 74(2) of the Sentence Administration Act 1995 (WA)). Any qualifications to the reduction of a sentence of imprisonment by one‑third were removed by the legislation passed in 1995 which came into operation in November 1996.
That regime continued in operation until the legislation passed in 2003 commenced on 1 September 2003.
The Sentence Administration Bill 2002, and the Sentencing Legislation Amendment and Repeal Bill 2002 (which became 2003 Acts) were introduced and debated through the Parliament together. During the course of the second reading speeches, the Attorney General stated that each Bill was based upon the recommendations made by the Hammond Committee. In the course of the second reading speech relating to the Sentencing Legislation Amendment and Repeal Bill 2002 he said (Western Australia, Parliamentary Debates, Legislative Assembly, 15 August 2002, 177 ‑ 180 (Mr J A McGinty, Attorney General)):
First, the Government recognises the valuable work undertaken by the Hammond review of remission and parole and supports the philosophies outlined in its review report. …
Secondly, the concept of truth in sentencing is enshrined in the two Bills. The current system of providing an automatic one‑third remission of sentences is to be removed. …
Remission: Remission is proposed to be abolished. Under the current system, a one‑third remission on sentence is virtually automatic and, as such, not only serves no purpose but also brings into disrepute the sentencing system and the courts. …
Adjustment of sentences: Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in jail under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across the board increase in sentences and an intolerably large increase in the prison population. …
The Sentencing Legislation Amendment and Repeal Bill, taken with the Sentencing Administration Bill, seeks to make significant changes to sentencing legislation to reduce the rate and cost of imprisonment in Western Australia. The Bills also enact truth in sentencing by giving effect to many of the recommendations of the Hammond Review of remission and parole. The end result will be a more understandable and workable sentencing regime, which will increase community confidence in the sentencing process. …
The Explanatory Notes provided in respect of the Sentencing Legislation Amendment and Repeal Bill 2002 provide the following explanation for the repeal and re‑enactment of s 95 of the Sentencing Act 1995:
Currently the 1/3 remission is provided in s 95 of the Sentencing Act 1995 which provides that offenders serving terms that are not parole terms must be discharged after 2/3 of the term. As a result of the Review of Remission and Parole the 1/3 remission of sentences is to be abolished. The proposed new s 95 provides that such offenders will have the [sic] serve the entire term.
The Explanatory Notes provide the following commentary in relation to cl 2 of the transitional provisions in the form in which it was when the Bill was introduced:
As a result of the changes to the Sentencing Act 1995 contained in Division 4 of Part 2 of the Sentencing Legislation Amendment and Repeal Bill 2002, offenders will have to serve a greater proportion of their sentence before they are either considered for parole or released from custody. As foreshadowed in the Report of the Review of Remission and parole it is not intended that offenders would serve any longer time in custody than is presently the case.
In order to achieve this it is necessary for court [sic] to adjust the sentence they intended to impose to ensure that offenders do not serve any more or any less time in custody. Clause 2(2) gives effect to this intent by requiring courts to adjust their sentences. However, there will be occasions when courts will not have to adjust sentences and these occasions are set out in subclauses (5) and (6).
However, that commentary relates to a clause in substantially different form to the form in which cl 2 of the transitional provisions was ultimately enacted. At the time the Bill was introduced, and the Explanatory Notes produced, cl 2 of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) provided:
2.Sentencing courts to take into account the effect of the sentencing amendments
(1)The purpose of this clause is to ensure, as far as is practicable, that an offender sentenced after the commencement of the sentencing amendments to a fixed term spends the same time in custody serving that term than he or she would have done had he or she been sentenced before the commencement of the sentencing amendments.
(2)If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must -
(a)consider whether the sentence it proposes would, by reason only of the new provisions, result in the offender spending more or less time in custody serving that term than he or she would have spent had the old provisions been in operation at the time of the sentencing; and
(b)if the sentence would have that result, adjust it so that it does not.
(3)For the purposes of subclause (2) -
(a)it does not matter that the court may be proposing to suspend the fixed term under Part 11 of the Sentencing Act 1995;
(b)a reference to imposing a fixed term includes a reference to dealing with an offender under section 80 of the Sentencing Act 1995 in respect of a sentence of suspended imprisonment imposed under the old provisions;
(c)in a case where the court decides that the offender should be eligible for parole, the court must assume -
(i)that under the old provisions the offender would have been released on parole as soon as he or she was eligible to be released on parole; and
(ii)that under the new provisions the offender would be released on parole as soon as he or she is eligible to be released on parole.
(4)Despite subclause (2), if the sentence required by that subclause would contravene section 86 of the Sentencing Act 1995, the court must use one of the sentencing options in section 39(2)(a) to (e) of that Act instead of sentencing the offender to imprisonment.
(5)A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.
(6)This clause does not apply if -
(a)the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;
(b)a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;
(c)the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;
(d)a court is imposing a term under section 401(4) of The Criminal Code; or
(e)a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.
Each of the Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill 2002 were referred to the Standing Committee on Legislation. Its report on the legislation was tabled in May 2003 (18th report of the Committee). Chapter 4 of the report deals with the provisions of the legislation relating to parole and remission. Paragraph 4.1 of the Report of the Standing Committee on legislation in relation to the Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill 2002 is in the following terms:
4.1One of the aims of the Bills is to achieve what is termed 'truth in sentencing', namely the sentence imposed by the court truly represents the time that an offender will spend in prison, or is liable to spend in prison. There are two principal factors that affect the amount of time that an offender spends in prison which may mean that there is a wide divergence between the sentence and the time served: remission and parole. Both Bills affect the operation of remission and parole.
In its Report the Standing Committee referred to the Sentencing Legislation and Repeal Act 1999 (WA), which abolished the automatic remission of one‑third of a sentence of imprisonment (although those provisions of that legislation were never proclaimed). As the Standing Committee points out, that legislation contained a transitional provision (s 15). That section was in the following terms:
15. Sentencing courts to take into account this Part's effect
(1)If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must consider whether the sentence it proposes would, by reason only of the new provisions, result in the offender spending more time in custody than he or she would have spent had the old provisions been in operation at the time of sentencing.
(2)For the purposes of subsection (1) the court must assume -
(a)that the offender would have been released at the earliest opportunity under the old provisions; and
(b)that the offender, if sentenced to the proposed sentence, would be released at the earliest opportunity under the new provisions.
(3)If the court considers that its proposed sentence would have the result referred to in subsection (1) the court must adjust the sentence so that the offender does not, by reason only of the new provisions, spend more time in custody than he or she would have spent had the old provisions been in operation at the time of sentencing.
(4)A court does not have to apply this section if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this section.
(5) This section does not apply if -
(a)the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;
(b)a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced; or
(c)the application of this section would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court.
The similarity of that provision to s 10 of the Sentencing Act 1991 (Vic) is readily apparent.
According to the report of the Standing Committee, subsequent to the passage of the 1999 legislation, it was realised that a transitional provision in that form would produce anomalies, as a result of which the Sentencing Amendment (Adjustment of Sentences) Act 2000 (WA) was passed. The general effect of that legislation was to amend s 15 of the 1999 legislation by removing a requirement that the court 'consider whether the sentence it proposes would, by reason only of the new provisions result, in the offender spending more time in custody than he or she would have spent' and instead require the courts to reduce all sentences of imprisonment by one‑third. That legislation was never proclaimed.
As I have noted, at the time of introduction of the Sentencing Legislation Amendment and Repeal Bill 2002, the transitional provisions took a different form to that contained in the 2000 legislation. Instead of providing for the reduction of all sentences, cl 2 was, in the words of the Standing Committee 'a general admonition to ensure that the actual time served in custody is no greater or less than that which would have been served if the current provisions still applied' (par 4.55). In this respect, the transitional provisions in the Bill at the time it was introduced took a generally similar approach to that taken in Victoria in 1991, and in the Western Australian legislation of 1999, rather than the automatic reduction approach taken in the Western Australian legislation of 2000.
In its Report the Standing Committee referred to submissions which it had received which suggested that the transitional provisions of the Bill, in their then form, would produce anomalies. Included in the submissions received by the Standing Committee, was a submission from the Parole Board which suggested that the anomalies could be overcome if the judiciary were required to reduce all sentences by one‑third, and that the parole period be set at 50% of the total sentence up to a maximum of two years. For the reasons set out in its Report, the Standing Committee essentially accepted that recommendation. Its recommendation with respect to the time at which a prisoner should become eligible for parole is contained in par 4.73 of its Report. In relation to remission, the Standing Committee reported as follows:
4.75In relation to sentence adjustment, the courts should simply remove one‑third from the current tariffs so that the one‑third remission is removed before passing sentence. The Committee has made a recommendation to this effect (see Recommendation 16).
4.76This formulation means that prisoners under the new regime will serve the same amount of time as they currently serve. It also has the benefit of not requiring a sentence adjustment process that would lead to the anomalies outlined by the Committee in this chapter.
The Standing Committee recommended amendment of the provisions in the Bill relating to the time at which a prisoner became eligible for parole, and also recommended that cl 2 of sch 1 be re‑written, in the terms set out in its Report.
During the subsequent passage of the legislation through Parliament, the Bill was amended to give effect to the recommendations of the Standing Committee. The current form of cl 2 of the transitional provisions is in precisely the terms recommended by the Standing Committee. They are:
(1)If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.
(2)For the purposes of subclause (1) -
(a)it does not matter that the court may be proposing to suspend the fixed term under Part 11 of the Sentencing Act 1995; and
(b)a reference to imposing a fixed term includes a reference to dealing with an offender under section 80 of the Sentencing Act 1995 in respect of a sentence of suspended imprisonment imposed under the old provisions.
(3)Despite subclause (1), if the sentence required by that subclause would contravene section 86 of the Sentencing Act 1995, if the court considers that a term of imprisonment is warranted in all the circumstances, the court may impose a term of more than 6 months.
(4)A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.
(5)This clause does not apply if -
(a)the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;
(b)a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;
(c)the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;
(d)a court is imposing a term under section 401(4) of The Criminal Code; or
(e)a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.
The clause is contained in the schedule entitled 'Schedule 1 - Transitional Provisions'. Section 31(2) of the Interpretation Act 1984 (WA) provides that a schedule to a written law forms part of the written law. Section 32 of that Act provides that the headings of the parts, divisions and subdivisions into which written law is divided form part of the written law, and accordingly the heading to the schedule of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) is properly taken into account in its interpretation.
The general tenor of sch 1, making provision for the transition from the previous regime relating to remission and parole to the new regime is in any event clear from its substantive provisions. Clause 3 is concerned with the application of s 36 of the Interpretation Act 1984 which relates to the repeal and re‑enactment of written laws. Clauses 4 to 8 are concerned with the effect of the legislation upon sentences imposed prior to its commencement, including in relation to community based orders, intensive supervision orders, terms of imprisonment, early release orders, work release orders, and home detention orders. Clauses 9 to 12 continue the effect of certain things done prior to the commencement of the legislation, including the issue of warrants, the designation of places as community corrections centres, and so on. Clause 14 empowers the Governor to make regulations in the event that there is not sufficient provision in the schedule to provide for the application of the old provisions to a sentence of imprisonment imposed before commencement, and various other matters.
It is in that context that cl 2 is to be construed. Clause 2(1) requires a court imposing a term of imprisonment to impose a fixed term that is two‑thirds of the fixed term that it would have imposed 'had the old provisions been in operation at the time of sentencing'. The term 'old provisions' is defined to mean:
The Sentencing Act 1995, and the repealed Act, as they would have applied had the sentencing amendments not come into operation.
The 'repealed Act' is defined to mean the Sentence Administration Act 1995, and the expression 'sentencing amendments' is defined to mean 'the amendments to the Sentencing Act 1995 effected by Part 2 Division 4 and the repeal of the Sentence Administration Act 1995 effected by section 29(1)'. Part 2 div 4 of the Sentencing Legislation Amendment and Repeal Act 2003 is the part of the Act which contains the amendments with respect to parole and remission which were said to substantially give effect to the recommendations of the Hammond Committee, and include the provisions repealing s 95 of the Sentencing Act 1995 (and therefore the provisions of that Act relating to remission).
It will immediately be noticed that cl 2(1) of the transitional provisions proceeds upon a false assumption, being the assumption that there is some relationship between the fixed term that a court would have imposed prior to the commencement of the amendments, and the statutory provisions relating to remission and parole. However, it was clearly established by authority that courts were not permitted to take those matters into account: Hoare v The Queen (1989) 167 CLR 348; Jarvis v The Queen (1993) 20 WAR 201; Wicks v The Queen (1990) 3 WAR 372, 384; Kirby v The Queen [2003] WASCA 239 [26]. Many of the problems which have bedevilled the construction and application of the transitional provisions since their enactment derive from the fact that their logic is based upon this false premise - namely, that the length of a term of imprisonment imposed by a court is affected by the statutory provisions relating to remission and parole. Because of that fundamental flaw in the basic logic of the provisions, it is impossible to give them a construction which is consistent and coherent. Rather, the inquiry must be directed towards the construction which is least anomalous.
Because there was no causal relationship between the length of a term of imprisonment imposed and those parts of the 'old provisions' that were altered by the 'sentencing amendments', the substantive effect of cl 2(1) was to require courts to reduce all fixed terms of imprisonment by one‑third, following the commencement of the 'new provisions'. It is clear from the history which I have recounted, that this provision was included to counteract the abolition of one‑third remission in the way that was thought to produce the least anomalies, and at the same time avoid increasing the time actually served by a person sentenced to a fixed term of imprisonment. Because there is no logical connection between the term fixed by a court and the statutory provisions relating to remission and parole, the only relevant significance of the commencement of the new provisions, was the abolition of the automatic remission of one‑third of all sentences of imprisonment for a fixed term. Put another way, the critical distinction between the old and new provisions, was the point in time at which remission of prison sentences was abolished.
It is however clear from a number of the provisions contained within cl 2 of the transitional provisions that the Legislature did not intend sentencing practice to be frozen in time by reference to those practices applicable on the day prior to the commencement of the new provisions. Clause 2(4) provides that a court does not have to reduce the sentence by one‑third 'if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause'. So, to take an example, if, prior to the commencement of the new provisions it was established the relevantly applicable sentencing range for a particular offence was, say, 6 ‑ 9 years, following the commencement of the new provisions the relevantly applicable range would be 4 ‑ 6 years. The effect of cl 2(4) was to enable the court to simply refer to the newly established range of 4 ‑ 6 years, rather than, in each case, notionally returning to the old range of 6 ‑ 9 years and then reducing it by one‑third.
The clear effect of a number of provisions in cl 2(5) is to preclude sentencing practice being frozen in time by reference to practices applicable on the day prior to the commencement of the new provisions. Clause 2(5)(a) provides that the transitional provisions do not apply if the statutory penalty for the relevant offence has been amended since the new provisions' commencement. Clause 2(5)(b) provides that the transitional provisions do not apply if a guideline judgment has been given by the court under s 143 of the Sentencing Act 1995, since the new provisions commenced, which applies to the offender or the offence for which the offender is being sentenced. Clause 2(5)(c) provides that the transitional provisions do not apply if their application would be inconsistent with or contrary to any other judgment given since the new provisions commenced. The clear and unequivocal effect of each of these provisions is to prevent sentencing practices being frozen in time as at 31 August 2003: Worthington [73] (Pullin JA).
These provisions have, however, given rise to their own difficulties. The Criminal Law Amendment (Simple Offences) Act 2004 (WA) amended a significant number of provisions of the Criminal Code. In many cases, the amendment was limited to increasing the amount of the fine which could be imposed in the event of conviction (for example, from $8,000 to $24,000), and in other cases by introducing a penalty applicable in the event of summary conviction. Read literally, cl 2(5)(a) of the transitional provisions would produce the consequence that a term of imprisonment to be imposed following conviction on indictment would not be reduced by one‑third, even though no amendment had been made to the maximum penalty available. In Cohen v Curchin [2008] WASC 8, I expressed the view that because the transitional provisions were concerned with changes made to remission and parole, cl 2(5)(a) should be construed as applying only to amendments to the term of imprisonment available to be imposed, consistently with the prior decision of Le Miere J in Forward v Bower [2007] WASC 205, and of Miller J in Withnell v Walker [2005] WASCA 8. However, in Narkle v Hamilton [2008] WASCA 31, the Court of Appeal expressed a contrary view (at [47]), although as there is no reference to the previous decisions to the contrary, or to the reasoning in those decisions, it seems reasonable to infer that they were not cited to, or considered by, the Court of Appeal.
Viewed in the historical context which I have set out, when cl 2 of the transitional provisions is read as a whole it is in my opinion clear that the legislative objective was to generally reduce sentencing tariffs relating to terms of imprisonment which had been established by the courts by one‑third, to offset the abolition of the automatic remission of one‑third of each sentence imposed, without stifling the development of sentencing principle and practice by reference to an artificial point in time. It follows that cl 2 can have no sensible application or operation unless there was a sentencing tariff established under the previous sentencing regime, or, at the very least, unless a sentence could have been imposed upon an offender for an offence under the 'old provisions'. If the offence for which the offender is being sentenced did not exist at the time the old provisions were in force, it follows that there is no sentence from which one‑third can be deducted pursuant to cl 2(1).
Put another way, the heading to sch 1, and the tenor and effect of the various provisions to which I have referred make it clear that the schedule to the Act is intended to facilitate a transition - that is, a passage from one position, state, or stage to another (Macquarie Dictionary; see also Worthington above). But if the offence for which the offender is being sentenced did not exist prior to the commencement of the new provisions, there is no prior sentencing position, state or stage from which to pass, and the transitional provisions would serve no point or purpose in relation to such an offence.
Any different approach to the construction and effect of cl 2 of the transitional provisions would produce the anomalous result that those provisions would not apply where a statutory penalty was amended after 1 September 2003, but they would apply where the Legislature created an offence after 1 September 2003. I am quite unable to see any rational basis for attributing that intention to the Legislature at the time it enacted the transitional provisions. The structure of cl 2, and in particular the specific reference to the exclusion of its operation in respect of offences where the statutory penalty has been amended since the commencement of the new provisions is consistent with a legislative assumption that cl 2, would, by its very nature as a transitional provision, have no application to an offence which did not exist prior to the commencement of the new provisions.
In The State of Western Australia v Wallam [2008] WASCA 117, McLure JA expressed the view at [15] that 'there is nothing in the language of cl 2(1) which excludes from its scope offences created after the commencement of the Sentencing Repeal Act'. However, with respect, when cl 2(1) is construed in its historical and legislative context, it is in my view clear that the reference to the 'old provisions' means a reference to the 'old provisions' as they applied to offences which were in existence at the time of their operation.
Also in Wallam, McLure JA observed at [17] that:
Under cl 2(1) the old provisions are deemed to apply 'at the time of sentencing' when of course the s 304(2) offence was in existence.
With respect, I can see nothing in the language of cl 2(1) which 'deems' the old provisions to apply 'at the time of sentencing'. Rather, what the clause requires is the establishment of a hypothetical sentence - that is, a sentence which would have been imposed if the old provisions had been in operation at the time of sentencing. But because the essential character of the hypothetical exercise required by the clause is to pass from one sentencing regime to another, if there was no sentencing regime applicable to the offence for which the offender is being sentenced because that offence did not exist under the old regime, the hypothetical exercise is impossible and in any event, would serve no point or purpose.
Also in Wallam, McLure JA draws a distinction between a legislative amendment to a penalty (falling within cl 2(5)(a) of the transitional provisions) and the legislative specification of a penalty for a new offence. Her Honour takes the view that the Legislature can be taken to have turned its mind to the effect of the new regime in the case of the amendment of a penalty, but apparently not to the specification of a penalty for a newly enacted offence. With respect, I can see no basis for attributing such an apparently irrational approach to the Legislature.
In Wallam, McLure JA also relied upon the enactment of s 304 of the Criminal Code as an aid to the construction of the transitional provisions. Again with respect, in my opinion this is not one of those cases in which later legislation can properly be used to shed light upon the proper construction and effect of earlier legislation. It is clear from the extrinsic materials, including the Parliamentary Debates and Explanatory Memoranda relating to the Criminal Code Amendment Bill 2003, which resulted in the enactment of s 304 of the Criminal Code, that the legislation was intended to give effect to recommendations made in the 1983 General Review of the Criminal Code undertaken by Mr M Murray QC (as his Honour then was) (Western Australia, Parliamentary Debates, Legislative Assembly, 3 April 2008, 6158 (Mr J A McGinty, Attorney General)). The Criminal Code Amendment Bill 2003 was introduced and read first in the Parliament on 3 April 2003, prior to the publication of the Report of Standing Committee to which I have referred, or the amendment of the Sentencing Legislation Amendment and Repeal Bill 2002 which gave effect to that recommendation. It seems a fair inference from the relative timing of the two pieces of legislation, and the historical origin of the Criminal Code Amendment Act 2004 (WA), that if there is any anomaly when the maximum penalty for an offence contrary to s 304(2) is compared to the maximum effective penalty for a contravention of s 294 of the Criminal Code, it is to be attributed to an inadvertent Parliamentary oversight rather than the application of the mind of the Legislature to the effect of the Sentencing Legislation Amendment and Repeal Act 2003 at the time of enacting the amendments to the Criminal Code. And in any event it is I think a matter of some speculation as to whether there is in fact an anomaly in relation to the maximum penalties available in respect of those two offences. Section 294 can potentially apply to a range of conduct which might include conduct within a relatively low range of seriousness - for example, an attempt to strike somebody with a projectile with intent to resist lawful arrest, whereas s 304(2) potentially embraces very serious conduct - for example endangering the life of a person with intent to harm. Accordingly, the fact that the Legislature provided a maximum penalty of 20 years for a contravention of s 304(2) at a time when any penalty imposed for a contravention of s 294 was subject to the transitional provisions does not, with respect, seem to me to shed any light upon the proper construction of those transitional provisions,
Accordingly, in my view, the sentencing judge was correct to impose sentence on the basis that the transitional provisions did not apply and did not require her to reduce the sentence which would otherwise have been imposed by one‑third, and ground 5 should be dismissed.
The remaining grounds of appeal
I have read the reasons to be provided by Miller JA for upholding grounds 1, 2 and 4, and for dismissing grounds 3 and 6 of the remaining grounds. I agree with those reasons and with the sentence proposed by
Miller JA in lieu of that imposed by the trial judge for the reasons which he gives.
STEYTLER P: I have had the advantage of reading the judgment of McLure JA. I agree with her, for the reasons that she has given, that grounds 1, 2, 5 and 6 (but not 3) should be upheld, that the appeal should be allowed and that the sentence imposed by the sentencing judge in respect of the offence under s 304(2) of the Criminal Code (WA) (Code) should be set aside and replaced by one of 3 years' imprisonment, leaving the other orders made by the sentencing judge unchanged. However, I wish to add some comments of my own concerning grounds 5 and 6.
Those grounds raise the question whether the transitional provisions contained in sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Sentencing Amendment Act) apply to an offence (and penalty) created after the transitional provisions came into operation.
The transitional provisions took effect on 31 August 2003. The relevant provisions are cl 2(1), cl 2(4) and cl 2(5). They read as follows:
(1)If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.
…
(4)A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.
(5)This clause does not apply if -
(a)the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;
(b)a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;
(c)the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;
(d)a court is imposing a term under section 401(4) of The Criminal Code; or
(e)a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.
The terms 'old provisions' and 'new provisions' are defined in cl 1(1) of the transitional provisions. 'Old provisions' means the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA), as they would have applied had the sentencing amendments not come into operation. 'New provisions' means the Sentencing Act as amended by the sentencing amendments and the Sentence Administration Act 2003 (WA). The words 'sentencing amendments' are defined to mean the amendments to the Sentencing Act effected by Pt 2 Div 4 of the Sentencing Amendment Act and the repeal of the Sentence Administration Act 1995.
McLure JA has set out the background to the enactment of the transitional provisions. Prior to the commencement of the Sentencing Amendment Act, offenders sentenced to terms of imprisonment received virtually automatic one‑third remissions in the lengths of their sentences. Courts were aware of this practice. However, they were not permitted to take it into account in determining the appropriate term of imprisonment: Hoare v The Queen (1989) 167 CLR 348, 363 ‑ 365; Jarvis v The Queen (1993) 20 WAR 201, 208 (Ipp J, Murray J concurring). The Sentencing Amendment Act and the Sentence Administration Act 2003, amongst other things, abolished the system of one‑third remission. However, the legislature considered that, notwithstanding this, there should be no increase in the amount of time prisoners would spend in gaol. This was the reason for enacting cl 2(1) of the transitional provisions. As McLure JA has said, in his second reading speech the Attorney General said:
Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in jail under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across the board increase in sentences and an intolerably large increase in the prison population.
The offence under s 304(2) of the Code was created by the Criminal Code Amendment Act 2004 (WA), which came into operation on 21 May 2004. This was after the transitional provisions had taken effect.
As I read the transitional provisions, there is nothing in them that deals expressly with a situation of this kind, in which a new offence, and consequently a new penalty, is created after 31 August 2003. Like McLure JA, I respectfully disagree with the construction given to cl 2(1) of the transitional provisions by Murray AJA in The State of Western Australia v Wallam [2008] WASCA 117 [92] and [94]. He considered [92] that, read alone, that clause 'is only capable of applying to sentencing for an offence which existed as part of the old provisions'. I agree with McLure JA that cl 2(1) establishes a two‑step process. The first step is that the sentencing judge must determine what sentence of imprisonment would have been imposed 'had the old provisions been in operation at the time of sentencing'. The second step is that he or she must deduct one‑third from that sentence. The reference to 'old provisions' is, as I have said, one to the Sentencing Act and the Sentence Administration Act as they 'would have applied' had the sentencing amendments not come into operation. An offence (and penalty) created under the Code before 31 August 2003 is not an offence which existed as part of the 'old provisions' for the purposes of cl 2(1). Nor is there anything in cl 2(1), looked at on its own, which makes it incapable of applying to a term of imprisonment imposed in respect of an offence created after 31 August 2003. That clause, read literally, imposes only a requirement that, when sentencing an offender to a term of imprisonment in respect of any offence under any provision, it must impose a term that is two‑thirds of that which it would have imposed had the regime (including statutory remissions) provided by the two specific Acts then still been in operation.
It follows that, if cl 2(1) of the transitional provisions was not intended to apply to a case such as the present, that intention must be found by implication from the statutory scheme, reading cl 2(1) in its overall context and having regard for its purpose. When considering whether an implication of this kind arises it is important to bear in mind that the task of the court is to interpret legislation, not to enact it. Consequently, it should not imply into a statute words that are not there unless this is necessary to give effect to an evident parliamentary intention: Thompson v Goold & Co [1910] AC 409, 420 (Lord Mersey); and Marshall v Watson (1972) 124 CLR 640, 649 (Stephen J, Menzies J concurring).
The relevant principles pursuant to which legislative purpose is to be taken into account are well known and have been explained in such cases as Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302 (McHugh JA); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113 ‑ 116 (McHugh J); Fox v Commissioner for Superannuation (No 2) [1999] FCA 372; (1999) 88 FCR 416 [12] ‑ [16] (Black CJ); Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272 [49]‑ [53] (Beazley JA, M W Campbell AJA concurring); and James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 [72]‑ [75] (Kirby J); and see also the helpful discussion by Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) [2.29]. Also, s 18 of the Interpretation Act 1984 (WA) provides that:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
(See, in this respect, the discussion concerning the equivalent section of the Interpretation of Legislation Act 1984 (Vic) (s 35(a)) in Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J).)
The role of context in statutory interpretation has been explained by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 as follows:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy: Attorney‑General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320‑1 [37].
(See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 ‑ 382 (McHugh, Gummow, Kirby & Hayne JJ).).
In the present case, the legislative purpose underpinning cl 2(1) of the transitional provisions was that of ensuring that sentenced prisoners should spend no longer in prison than they would have done if the one‑third remission had not been abolished. That is evident from the extract from the Attorney-General's second reading speech, referred to above.
However, as will be apparent, cl 2(5) creates a list of exemptions from the operation of cl 2(1). This provides that these are to include instances in which the statutory penalty for the offence in question has been amended since the new provisions commenced: cl 2(5)(a). Although cl 2(5) does not expressly exempt new offences (and hence new penalties) from the operation of cl 2(1), it seems to me that it would, at first blush, be a surprising outcome to conclude from this that, notwithstanding that amended penalties are not subject to cl 2(1), new penalties (by which I mean penalties for offences created after 31 August 2003) are subject to that clause. It might reasonably be thought that, whether amending a sentence or imposing a new sentence (in the sense described above), the legislature might be expected to turn its mind to the question what should be the appropriate penalty, knowing that remissions had been abolished.
However, the ordinary and natural meaning of the words used in cl 2(1) discloses a legislative intention that, until such time as the legislature sees fit to provide otherwise, courts are to impose sentences of imprisonment that are one‑third less than they would have been, absent the transitional provisions, and there is, on the face of that provision, nothing to suggest that this was not to continue indefinitely, in the absence of legislative intervention. In each case the courts must arrive at an appropriate penalty, having regard for the statutory maximum, amongst other considerations, and then reduce it by one‑third so as to comply with the legislative command which is, in turn, directed at the purpose of preventing an intolerably large increase in the prison population. It does not matter, on the ordinary meaning of the words used in cl 2(1), or having regard for the legislative purpose, whether the prison sentence is to be imposed for an offence created before or after the date of coming into operation of the transitional provisions, 31 August 2003.
This is reinforced by the provisions of cl 2(4), which assume that, over time, a new practice of imposing sentences that are one‑third lower than those previously imposed would be developed, with the result that the courts no longer have to 'apply' cl 2(1) (which, in this context, must mean that they no longer have to make any mathematical calculation). This suggests that the legislature intended that the practice was to continue indefinitely, regardless of when the offence (and penalty) was first created, unless and until the legislature provided otherwise. That way there would, at least, be some consistency and existing relativities might be maintained.
It is important also to remember that sentences were not to be frozen in time, leaving the maxima always unattainable. There is nothing to prevent the courts, over time, varying the practices that they develop by increasing sentences, if that should be thought necessary, in respect of a particular offence or offences as a result of increasing prevalence or for any other legitimate purpose. That is apparent from cl 2(4) and cl 2(5)(b) and (c) of the transitional provisions. Moreover, in any case in which the legislature considers that an existing penalty is too low, because of the operation of the transitional provisions, it is able to remedy that situation by amending the penalty in circumstances in which, because of cl 2(5)(a), the amended penalty will not be subject to cl 2(1). Similarly, if it chooses to enact a new penalty (for a new offence) in circumstances in which it does not consider that the transitional provisions should apply to it, it will be a simple matter for it to say so.
Although I would put little weight on this factor, this construction has the advantage of avoiding what would otherwise be an anomaly in respect of the new offence under s 304(2) of the Code (causing bodily harm with intent to harm). As McLure JA points out, if cl 2(1) of the transitional provisions does not apply to the new offence, then, although that offence is less serious than an offence under s 294 of the Code (doing grievous bodily harm with intent to cause grievous bodily harm), it would, in practice, carry a much greater maximum penalty (20 years' imprisonment as opposed to an effective maximum term of 13 years and 4 months' imprisonment in the case of s 294).
It has been accepted in this respect that, where 'the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute': Ormond Investment Co Ltd v Betts [1928] AC 143, 164 (Lord Atkinson), quoted in Deputy Federal Commissioner of Taxes (SA) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610, 625 ‑ 626 (Dixon, Evatt & McTiernan JJ). It has also been accepted that a statute 'does not alter the law by merely betraying an erroneous opinion of it' (Sir Maxwell P B, Interpretation of Statutes (6th ed, 1920) 544, also quoted by Dixon, Evatt & McTiernan JJ in Elder's Trustee and Executor Co Ltd (625 ‑ 626)). In this instance, it
seems to me that the penalty imposed for the offence under s 304(2) of the Code accords with the construction of the transitional provisions that I prefer and, to that extent, lends some (necessarily limited) support to it.
I would consequently allow the appeal, set aside the sentence of 6 years' imprisonment imposed for the offence under s 304(2) of the Code and in lieu thereof impose a term of 3 years' imprisonment. I would make no change to the orders made by the sentencing judge relating to the other offences of which the appellant was convicted or to her orders concerning concurrency and parole. I would accordingly sentence the appellant to an aggregate term of 3 years' imprisonment with eligibility for parole, commencing on 24 September 2007.
McLURE JA: This is an appeal against sentence. The appellant was convicted after trial of one count of doing an act which caused bodily harm with intent to harm contrary to s 304(2) of the Criminal Code (WA).
The appellant had been charged with unlawfully doing grievous bodily harm with intent to cause grievous bodily harm contrary to s 294 of the Code. The jury found the appellant not guilty of that charge but guilty of the alternative offence under s 304(2) of the Code.
The sentencing judge concluded that as the evidence unequivocally established the complainant had suffered grievous bodily harm, the jury must have concluded that the appellant did not intend to cause grievous bodily harm but some lesser injury. There is no challenge to that conclusion. The learned sentencing judge imposed a sentence of 6 years' imprisonment for that offence.
At the commencement of the trial the appellant pleaded guilty to the offence of causing criminal damage to the complainant's motor vehicle contrary to s 444(b) of the Code. He was sentenced to 6 months' imprisonment for that offence which was ordered to be served concurrently with the sentence for the s 304(2) offence resulting in a total sentence of 6 years.
The facts found by the sentencing judge are as follows. The appellant had been in a relationship with 'T'. The relationship began in Karratha and later both moved to Perth. T was involved in a battle with her former de facto husband for custody of their young daughter. At one stage T's daughter stayed with the appellant and T for a short time. The daughter was unwell and upset and the appellant did not cope well with the situation. T and her daughter moved out and shortly after they returned to Karratha. The appellant considered the relationship with T to
be ongoing on a long distance basis. However, T commenced a relationship with the appellant's former good friend, the complainant. T did not inform the appellant of her relationship with the complainant and actively misled him into believing she was still in Karratha pursuing the custody of her daughter when in fact she had returned to Perth.
Kelly Syme was a friend of the appellant. On 6 March 2005, the appellant telephoned T on her mobile. Ms Syme answered one of his calls. He knew Ms Syme lived in Perth and concluded that T must also be in Perth. The appellant drove to the house of Kelly and Shane Syme and saw the complainant's motor vehicle out the front. The appellant drew the (correct) inference that T and the complainant were in a relationship. The appellant used a hammer to smash the windows and panels of the complainant's car which he loved. That was the count of criminal damage. The appellant also sent a series of threatening text messages to a number of people including the complainant. The sentencing judge accepted that the complainant also threatened the appellant.
Very early the next morning the appellant drove to the front of the Syme house and began yelling loudly. He then drove around to the back of the house which abutted Burns Beach Road. The yelling continued. The complainant mounted the back wall and exchanged verbal abuse with the appellant. Meanwhile, Mr Syme got into his car and drove around to the back of the house. The appellant drove off. Mr Syme collected the complainant and followed the appellant. The trial judge said:
I accept that those two men pursued you in their car. Whether they were hoping for a physical or a verbal confrontation of some sort, or hoping to chase you off and ensure you didn't come back doesn't make a great deal of difference to you. They did pursue you. You were heading north on Marmion Avenue, and you then did a U-turn across the median strip, stalled the car momentarily on the strip before then coming to a stationary position on the south bound inside lane (ts 715).
Mr Syme drove his car onto the median strip and parked some distance from the appellant's car. The complainant got out of Mr Syme's car wielding a 6 ft crowbar and took up a position on the road, not intending to let the appellant drive south in the direction of Mr Syme's home. The sentencing judge rejected the appellant's evidence that the complainant attacked the front driver's side of the appellant's car with the crowbar causing the appellant to duck below the dashboard and that he did not know he had hit the complainant.
The sentencing judge said:
I do not accept your evidence that you attempted to drive out of the situation and had no intention of hitting [the complainant], and nor, of course, did the jury.
You did nothing to desist from your aggression or to perhaps reverse or just try to talk him down or apologise. You were, I find at that stage, full of malice towards [the complainant] and I find that you aimed your car directly at him to teach him a lesson and extract a degree of revenge on him for entering into a relationship with [T]. I find it was your intention to drive straight at him then leave and that you did so quite content to place him in serious danger by so doing, intending to hit him with your car and not caring what harm he suffered at that moment but that being angry and hurt and feeling justified … you did not turn your mind to just how seriously he might be injured by your car and did not intend to cause him an injury which would be permanent or life endangering.
As you aimed your car straight at him and got close he now perceiving his danger threw or pushed the crowbar forwards towards your car where it hit the top of the windscreen and the top edge of the roof of the car … (ts 715 ‑ 716).
The appellant relies on six grounds of appeal. The substance of the grounds are that the trial judge erred:
1.in finding that the appellant had done nothing to desist from his aggression and that at the time of the offence he was full of malice and his motive was to teach the complainant a lesson and extract a degree of revenge;
2.in finding that after the appellant did a U‑turn on Marmion Avenue, he came to a stationary position on the south bound carriageway with the intention of having a confrontation with the complainant;
3.in finding that the impact on the complainant was not 'unpredictably severe' and 'was nothing more than you might expect when you aim a car at someone and hit them' in circumstances where the jury was not satisfied that the appellant intended to cause grievous bodily harm;
4.in imposing a sentence that was manifestly excessive;
5.in concluding that Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) did not apply to the s 304(2) offence;
6.in characterising the s 304(2) offence as amongst the most serious contained in the Criminal Code on the basis that the 20-year maximum was a true maximum which was unaffected by the transitional provisions.
The legal principles relevant to the disposition of the appeal are not in dispute. First, an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law: Lowndes v The Queen (1999) 195 CLR 665.
Secondly, error may be inferred if the result is unreasonable or unjust either because it is manifestly inadequate or manifestly excessive: Dinsdale v The Queen(2000) 202 CLR 321. To determine whether a sentence is manifestly excessive (or inadequate) it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which it occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.
Thirdly, a plea of guilty is an admission of all the material facts necessary to constitute the offence: Harris v The Queen (2004) 150 A Crim R 509 [49]. The verdict of guilty established that the appellant intended to harm the complainant which in the circumstances is a finding that the appellant deliberately drove his motor vehicle towards the complainant with the intention of hitting him.
Fourthly, a sentencing judge may not take facts into account in a way that is adverse to the interests of an accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270.
Grounds 1 and 2
The appellant contends that the evidence at trial was consistent with the appellant attempting to withdraw from the situation and intending to get away from the complainant which intention was frustrated by the complainant going onto the road with a large crowbar and taking up a position intending to prevent the complainant from proceeding. It followed, according to the appellant, that the evidence was consistent with the appellant's intent to harm being formed on the spur of the moment and of limited duration.
The appellant's case at trial was that he attempted to withdraw from the situation when, being pursued north down Marmion Avenue by the complainant and Mr Syme, he did a U‑turn by driving over the median strip (where he momentarily stalled) and then onto the south‑bound carriageway intending to get away from his pursuers. The trial judge's finding that the appellant had stopped on the south‑bound carriageway is inconsistent with that scenario. I will deal with that matter first. The appellant's evidence was that he did not stop in the south‑bound lanes after he entered from the median strip (ts 585). The complainant's evidence is consistent with that of the appellant (ts 365). Mr Syme was the only witness who gave evidence that the appellant stopped on the south‑bound lanes of Marmion Avenue (ts 447, ts 448 and ts 474).
A finding that the appellant stopped his motor vehicle in the south‑bound lanes of Marmion Avenue is not required by the jury's guilty verdict. Further, it is inconsistent with the evidence of the complainant who was in a better or at least as good a position as Mr Syme to observe whether the appellant's car was stationary. The trial judge's finding that the appellant stopped, which must be established beyond reasonable doubt, is not open on the evidence.
Moreover, the evidence as a whole does not justify rejection of the appellant's evidence that he did a U‑turn to get into the south‑bound lanes of Marmion Avenue in order to get away from those in the pursuing vehicle. It was open on the evidence to conclude that once the complainant, armed with the crowbar, had positioned himself on the roadway, the appellant's intention changed. That being so, the trial judge's findings as to the appellant's motive are unsafe.
I am satisfied that the challenged findings are adverse to the appellant, are not open on the evidence and ought not to have been taken into account in sentencing. I would uphold grounds 1 and 2.
Ground 3
The sentencing judge said (ts 718) that she did not consider the impact on the complainant was in any sense unlucky or unpredictably severe and (ts 724) that '[t]he impact on the victim was nothing more than you might expect when you aim a car at someone and hit them'. Relying on these observations, the appellant contended the sentencing judge sentenced the appellant on the basis he intended to cause the complainant grievous bodily harm. I am not persuaded that is the case. The sentencing judge expressly accepted that the jury verdict meant that it was not satisfied the appellant intended to cause grievous bodily. In context, her Honour can only be referring to the objective potential of the conduct to cause the injuries which the complainant in fact suffered. That is relevant to the appellant's culpability in relation to the objective element of the offence. I would dismiss ground 3.
It is convenient to deal with grounds 5 and 6 before ground 4.
Grounds 5 and 6
The appellant challenged the correctness of the majority decision in The State of Western Australia v Wallam [2008] WASCA 117 (Murray AJA, Miller JA agreeing) that cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (2003 Sentencing Amendment Act) does not apply to a sentence of imprisonment for a breach of s 304(2) of the Code. In view of the importance of the issue, a coram of five judges sat to hear this appeal.
Section 304 of the Code was inserted by the Criminal Code Amendment Act 2004 (WA) which came into operation on 21 May 2004. All members of the court in Wallam agreed that s 304(2) created an offence that was not, in substance or form, in existence at the commencement of the 2003 Sentencing Amendment Act on 31 August 2003. I will refer to offences in that category as 'a new offence'. There is no challenge to that conclusion.
I dissented in Wallam, concluding that cl 2(1) of Sch 1 applied to a penalty of imprisonment for a breach of s 304(2) of the Code. I remain of that view and propose to re‑state and elaborate on my reasons for that conclusion.
The statutory framework and history
Prior to the commencement of the 2003 Sentencing Amendment Act all offenders sentenced to a term of imprisonment received a virtually automatic one‑third remission (reduction) in the length of their sentence. That is, offenders actually served a maximum of two‑thirds of the term of imprisonment imposed by the court. Prisoners who were made eligible for parole could be released at an even earlier date. Moreover in determining the appropriate term of imprisonment, courts were not permitted to take into account the statutory provisions relating to remission and parole: Hoare v The Queen (1989) 167 CLR 348; Jarvis v The Queen (1993) 20 WAR 201.
The 2003 Sentencing Amendment Act and the Sentence Administration Act 2003 (WA) (2003 Administration Act) abolished the system of one‑third remission and amended the provisions relating to parole. In the second reading speech for the bill that became the 2003 Sentencing Amendment Act, the Attorney General said that the automatic one‑third remission served no purpose, brought the sentencing system into disrepute and that the new legislation was to enshrine the concept of 'truth in sentencing'. However, the legislative intention of the truth in sentencing reforms was that there be no resulting increase in the amount of time prisoners would spend in gaol. The Attorney General stated in the second reading speech:
Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in jail under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across the board increase in sentences and an intolerably large increase in the prison population.
The mechanism for the adjustment of sentences is contained in Sch 1 of the 2003 Sentencing Amendment Act which is entitled 'Transitional provisions'. The central provision is cl 2(1) which provides:
If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.
The term 'old provisions' is defined in cl 1 of Sch 1 to mean the Sentencing Act 1995 and the Sentence Administration Act 1995 as they would have applied had the sentencing amendments not come into operation.
The 'sentencing amendments' referred to in the definition of old provisions means the amendments to the Sentencing Act 1995 effected by Pt 2 Div 4 of the 2003 Sentencing Amendment Act and the repeal of the Sentence Administration Act 1995.
The term 'new provisions' means the Sentencing Act 1995 as amended by the 2003 Sentencing Amendment Act and the 2003 Administration Act.
Clause 2(4) and cl 2(5) identify the situations when a court does not have to apply cl 2(1). They provide:
(4)A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.
(5)This clause does not apply if -
(a)the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;
(b)a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;
(c)the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;
(d)a court is imposing a term under section 401(4) of The Criminal Code; or
(e)a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.
All members of the court in Wallam concluded that the exclusion in cl 2(5)(a) had no application to s 304(2) because, as it was a new offence the penalty for which had never altered, it could not be said the statutory penalty for that offence had been amended since the new provisions commenced. There is no challenge to that conclusion. Nor is it contended that, as matters stand, any other relevant head of exclusion in cl 2(4) or cl 2(5) apply.
Murray AJA (with whom Miller JA agreed) held that on its proper construction, cl 2(1) only applied to an offence which existed prior to the commencement of the 2003 Sentencing Amendment Act. He said at [92] and [94]:
By the 'old provisions' … is meant the provisions of the Sentencing Act 1995 and the repealed Sentence Administration Act as they would have applied had the sentencing amendments not come into operation. It is therefore my view, having regard to the terms of cl 2(1) alone, that it is only capable of applying to sentencing for an offence which existed as part of the old provisions and … that is not the case with the offences created by the newly enacted s 304(2) of the Code, which was introduced into the Code with effect from 21 May 2004.
I think it is clear that the transitional provision of cl 2(1) of Sch 1 … could not apply to sentencing for an offence newly created by the re-enactment of s 304 of the Code, because no sentence for that offence could have been imposed under the old provisions, for the simple reason that the offence did not then exist.
The State contended in this appeal that the reasoning and conclusion of the majority in Wallam is correct but if not, the application of cl 2(1) should be avoided by this court establishing a practice under cl 2(4) or issuing a guideline judgment as contemplated in cl 2(5)(b).
It is apparent from pars 92 and 94 of his reasons that Murray AJA focused on the old provisions at a time prior to the commencement of the 2003 Sentencing Amendment Act. That focus is inconsistent with the clear language of cl 2(1) and produces an absurd result. Clause 2(1) establishes a two‑step process, the first step of which requires the sentencing judge to determine the sentence he or she would have imposed had the old provisions been in operation at the time of sentencing. That is, the first step is undertaken on the deemed basis that the old provisions continue to apply as at the date of sentencing, at which time the relevant offence must of necessity be in existence. The second step is the mechanical calculation of the two‑thirds figure.
If the sentence that would have been imposed under the old provisions is determined by reference to the position immediately prior to 31 August 2003, the standards of sentencing customarily imposed at that time would be immutably fixed regardless of changes in relevant sentencing factors such as, for example, the prevalence of the offence at the time of sentencing. The absurdity of that proposition can be measured against the uncontroversial proposition that cl 2(1) applies to offences committed after the commencement of the 2003 Sentencing Amendment Act (which is why the title to Sch 1 is positively misleading). Freezing sentences as at August 2003 is clearly not the legislative intent: Worthington v The State of Western Australia (2005) 152 A Crim R 585 [17] (Steytler P).
What then happened constituted the offence of which the appellant was convicted. The sentencing judge described it in the following way:
You did nothing to desist from your aggression or to perhaps reverse or just try to talk him down or apologise. You were, I find at that stage, full of malice towards [the complainant] and I find that you aimed your car directly at him to, teach him a lesson and extract a degree of revenge on him for entering into a relationship with [T]. I find it was your intention to drive straight at him then leave and that you did so quite content to place him in serious danger by so doing, intending to hit him with your car and not caring what harm he suffered at that moment but that being angry and hurt and feeling justified and no doubt with adrenal in pumping through your veins, you did not turn your mind to just how seriously he might be injured by your car and did not intend to cause him an injury which would be permanent or life endangering.
As you aimed your car straight at him and got close he now perceiving his danger threw or pushed the crowbar forwards towards your car where it hit the top of the windscreen and the top edge of the roof of the car and the photographs show the lines directly lengthwise along the top edge of the roof of the car, confirming to my mind [the complainant's] evidence as to where he was when he threw that implement, that being directly in front of your car, being lined up by you.
In throwing it and trying to avoid being hit he was only collected by the front right bumper bar of your car and spun around in a circle which impact was still enough to break his fibula and tibia sending both bones through his skin and also broke his ankle bone. His injuries as both you and your counsel have acknowledged might so easily have been much worse.
Sentencing
The sentencing judge considered the offence under s 304(2)(a) to be a serious one. She accepted that there was some mitigation arising from the circumstances in which the appellant discovered T to be in a relationship with the complainant. She said of s 304(2)(a):
It's a relatively new addition to the code and was inserted after the transitional provisions of the Sentencing Act which normally require me to reduce any sentence by a third, which means that parliament is taken to have intended the 20‑year maximum to be a true maximum. This puts this offence then amongst the most serious criminal offences contained within the Criminal Code though as I have said the circumstances which might breach the section may vary enormously as might the appropriate sentence to be imposed.
The sentencing judge described the seriousness of the appellant's offence in the following terms:
This offence that you committed of doing an act resulting in bodily harm with intent to harm I place in the high end of the mid-range for seriousness. This case involved the deliberate use by you of a car, a Commodore, as a weapon because you were enraged over discovering that your victim, [formerly] your friend, was now involved with the woman you considered yourself to be involved with. The potential for injury to your victim was very high.
You could easily have run him over, you could easily have killed him. As it was, you caused serious displaced fractures to the two major bones in his lower leg and his ankle bone. His victim impact statement tells me he has had nine operations on his leg and it's not clear whether he will fully recover. The medical evidence assessed his injuries as grievous bodily harm on the basis of their likelihood to result in permanent injury in the absence of treatment.
After treatment, and more than a year on to recover, it is clear from seeing [the complainant] in court that he has not recovered, and he visibly limps and he has been told he may also suffer back difficulties because his body will compensate for his affected gait. That's not surprising having seen him in person. Of course it has affected his ability to work as a plasterer, and to go fishing, and to play with his kids.
The extent to which it has affected his ability to work in either field is not yet known, but it may be that both areas of work are not going to be possible for him in the future, or at least that his abilities in those areas will be reduced. He also [has] to deal with traumatic memories of what occurred, but also feelings of anger towards you, which he worries about and he broods, and that is understandably affecting his peace of mind and his ability to enjoy life.
The sentencing judge noted that the appellant had pleaded not guilty to counts (1) and (3) on the indictment, but said that the plea of not guilty in relation to the third count could not aggravate the matter. Her Honour said that the appellant was not entitled to the benefit of any discount which may have been obtained for an early plea of guilty. She was unable to detect any particular remorse on the part of the appellant, who had sought to characterise the complainant as the aggressor.
The sentencing judge concluded that the offence was in the 'high mid range rather than the highest range'. After taking into account matters personal to the appellant and the contents of a psychological report which was before her, the sentencing judge concluded that, although the appellant's personal circumstances were favourable to him, general deterrence was an important consideration and a sentence of imprisonment to be served immediately was the only disposition open.
Grounds of appeal
The appellant (by leave granted 17 March 2008) raises six grounds of appeal, which are in the following terms:
1.The learned Judge erred in fact and in law in respect of the offence under s 304(2)(a) of the Criminal Code (WA)
(a)in sentencing the appellant on the basis that he had done nothing to desist from his aggression;
(b)in finding and in sentencing the appellant on the basis that at the time of the offence the appellant was full of malice and that his motive was to teach the complainant a lesson and extract a degree of revenge,
when the evidence established or was consistent with the view, and the jury's verdict was consistent with the view, that the appellant wished to and had attempted extricate himself and withdraw from the situation prior to the commission of the offence, and only formed the requisite intent to commit the offence on the spur of the moment in circumstances where the complainant had taken up a position on, or had run onto, the road armed with a crowbar intending to prevent the appellant from departing.
2.The learned Judge erred in fact and in law in finding and in sentencing the appellant in respect of the s 304(2)(a) offence on the basis that after he did a u-turn on Marmion Avenue, he came to a stationery position on the southbound carriageway, and in effect therefore intended to have a confrontation with the complainant, when the evidence as a whole did not establish that the appellant had so stopped his vehicle, further or alternatively, where the learned Judge did not give reasons for such finding notwithstanding the conflicting evidence in relation to this matter.
3.The learned Judge erred in law in sentencing the appellant on the basis that the impact of the s 304(2)(a) offence on the complainant was not 'unpredictably severe' and 'was nothing more than you might expect when you aim a car at someone and hit them', and on the basis that grievous bodily harm was caused, in circumstances where the jury acquitted the appellant of the charge under 294(1), and was therefore not satisfied that the appellant foresaw that grievous bodily harm would be caused.
4.Further or in the alternative, the learned Judge erred in law in imposing sentences that were manifestly excessive having regard to the nature and circumstances of the offences and the appellant's personal circumstances and antecedents.
5.The learned Judge erred in law in deciding that the sentence in respect of the s 304(2)(a) offence did not fall to be reduced by one-third under the transitional sentencing provisions in Schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and in not so reducing the sentence.
6.The learned Judge erred in law in considering the offence created by s 304(2) to be amongst the most serious offences contained in the Criminal Code, and thereby considering the offence to be more serious than was warranted, on the erroneous basis that parliament intended the 20-year maximum to be a true maximum which did not fall to be reduced under the transitional sentencing provisions.
Preliminary issue
A preliminary issue is raised in grounds 5 and 6. It is whether a sentence to be imposed under s 304(2)(a) of the Criminal Code should be reduced by one‑third in accordance with the transitional provisions.
The sentencing judge sentenced the appellant on the basis that sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) did not apply to an offence created by s 304(2) of the Criminal Code. Consequently, her Honour considered that the maximum sentence of 20 years' imprisonment was a true maximum, unaffected by the transitional provisions.
In the second reading speech upon the introduction of s 304 into the Criminal Code, the Attorney General made reference to the repeal of a number of provisions (s 304 to s 312 of the Criminal Code) and their replacement by s 304 and s 305. Section 304 contains two separate offences. Section 304(1) creates the offence of doing an act or omitting to do an act in consequence of which bodily harm is caused to another, or the life, health or safety of any person is likely to be endangered. A maximum penalty of 5 years' imprisonment is prescribed. On summary conviction, that penalty is imprisonment for 2 years with a fine of $24,000. Section 304(2) creates the offence of 'with an intent to harm, omitting to do any act that it is a person's duty to do, or doing an act as a result of which (a) bodily harm is caused to any person or (b) the life, health or safety of any person is or is likely to be endangered'.
Upon the introduction of the section, the Attorney General said:
[T]he Bill inserts a new section 304 which contains two separate offence provisions. The first of these addresses acts and omissions which cause bodily harm, or which endanger or are likely to endanger the life, health or safety of any person. The offence is classified as a crime and carries a maximum penalty of imprisonment for 5 years, with a summary conviction penalty of 2 years' imprisonment or a fine of $8,000.
The second addresses the same acts or omissions where there is an intention to cause harm. This more serious offence is also classified as a crime but carries a much higher maximum penalty of imprisonment for 20 years. The requisite intent to harm is defined in subsection (3), and includes an intent to gain a benefit, pecuniary or otherwise, for any person (s 304(3)(d)) and an intent to cause a detriment, pecuniary or otherwise, for any person (s 304(3)(e)). Accordingly, the provision is framed widely enough so as to address the need for a provision which covers the contamination of goods, whether or not that is done in a bid to extort money.
It is relevant to note that, rather than make specific provision in section 304 for the payment of compensation by an offender, victims will be able to utilise the provisions of Part 16 of the Sentencing Act 1995. Part 16 of that Act provides for the Courts to make reparation orders in respect of compensation and restitution.
(Western Australia, Parliamentary Debates, Legislative Assembly, 3 April 2003, 6151 (Mr J A McGinty, Attorney General).)
No reference was made by the Attorney General to the application of the transitional provisions to the new s 304. However, in my opinion, there was no need to make reference to the application of the transitional provisions. Parliament must have intended that cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act was inapplicable to the offence created by s 304(2)(a).
In The State of Western Australia v Wallam [2008] WASCA 117, I agreed with Murray AJA when he concluded that the transitional provisions do not apply to s 304(2) of the Criminal Code. I respectfully adopt the reasoning of Murray AJA as follows:
Clause 2(1) of Sch 1 of the amending legislation provides:
If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.
By the 'old provisions', as cl 1(1) of the Schedule makes clear, is meant the provisions of the Sentencing Act 1995 and the repealed Sentence Administration Act as they would have applied had the sentencing amendments not come into operation. It is therefore my view, having regard to the terms of cl 2(1) alone, that it is only capable of applying to sentencing for an offence which existed as part of the old provisions and, as has been seen, that is not the case with the offences created by the newly enacted s 304(2) of the Code, which was introduced into the Code with effect from 21 May 2004. [92]
…
I think it is clear that the transitional provision of cl 2(1) of Sch 1 to the Sentencing Legislation Amendment and Repeal Act2003 could not apply to sentencing for an offence newly created by the re-enactment of s 304 of the Code, because no sentence for that offence could have been imposed under the old provisions, for the simple reason that the offence did not then exist. The closest the Code came to it was the offence of assault occasioning bodily harm under an earlier form of s 317 of the Code, which then had no provision for circumstances of aggravation and merely provided a crime punishable upon indictment by 5 years imprisonment. [94]
I have had the opportunity of reading in draft the reasons of Martin CJ. I agree with the conclusion reached by his Honour in relation to the preliminary issue, but I am content to rely on the reasoning of Murray AJA in the passage above to resolve the issue.
My conclusions in relation to the wider implications of sch 1 of the Sentencing Legislation Amendment and Repeal Act are as follows:
(1)The schedule created a regime to ensure that the amount of time an offender spent in gaol after the introduction of the transitional provisions would be the same as the amount of time an offender would previously have spent in gaol under the Sentencing Act1995 and the Sentence Administration Act 1995 (WA).
(2)Although contended by Parliament to be 'truth in sentencing' provisions, the provisions did not have that effect at all. Offenders received lower head sentences, but whether declared eligible for parole or not, they would spend the same amount of time in gaol as they did under the former regime.
(3)Sentences would continue to be imposed by the courts for offences created before the operation of the transitional provisions in accordance with the 'old provisions', meaning the Sentencing Act1995 and the Sentence Administration Act 1995. Those sentences would henceforth however be reduced by one‑third in accordance with cl 2(1) of the schedule.
(4)Although the schedule envisaged (cl 2(4)) that, in accordance with the new provisions, courts might develop a practice of sentencing in which the one‑third deduction was subsumed into the effective sentence, this has not developed. Transparency of the sentencing process has effectively required that the sentence to be imposed upon an offender should be identified before application of the one‑third deduction.
(5)By cl 2(5)(a), the one‑third deduction does not apply to any offence in relation to which the statutory penalty has been amended since the commencement of the 'new provisions' (Sentencing Act1995 as amended by the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003 (WA)). Parliament must therefore have intended that there would be cases in which the effective sentence to be imposed upon an offender would, for certain offences, be higher than the sentence that might be imposed for other like offences, or even more serious offences.
(6)The same considerations apply when inserting a new provision into the Criminal Code. A new provision will carry with it a new sentence. There may be many reasons why Parliament sees fit to insert new provisions with new maximum penalties into the Criminal Code. Parliament must have intended that a new provision, with a new sentence came within the provisions of cl 2(5)(a).
(7)Judicial notice can be taken of the fact that there has been substantial community dissatisfaction with the length of some sentences imposed in the courts. Parliament can be taken to have responded to community concern by amendments to the Criminal Code to insert provisions with new maximum penalties which are to be 'true penalties' and not penalties to be reduced by one‑third in accordance with cl 2(1) of the schedule.
(8)This is not a recipe for chaos, but a reflection of the fact that for some offences the effective penalty imposed will be higher than for other comparable, or perhaps even more serious, offences. It is a deliberate decision by Parliament to take that course.
(9)The provisions of sch 1 of the Sentencing Legislation Amendment and Repeal Act are transitional provisions. The word 'transitional' means 'passing from one condition to another' (Shorter Oxford Dictionary). They are meant to be 'passing' and not forever applicable. It follows that new offences with new penalties when introduced into the Code are not to be affected by those provisions.
In my opinion, there is no merit in grounds 5 and 6 of the grounds of appeal.
Ground 1
This ground contends that the sentencing judge erred in sentencing the appellant on the basis that he had done nothing to desist from his aggression and in concluding that he was 'fully of malice' and had a motive which was to teach the complainant a lesson and 'extract a degree of revenge'. It is contended that the evidence and the verdict of the jury were consistent with the appellant extricating himself from the situation he had caused and only forming the intent to commit an offence under s 304(2)(a) 'on the spur of the moment' and in circumstances where the complainant had taken up a position on the roadway, armed with a crowbar for the purpose of preventing the appellant from leaving the scene.
The appellant gave evidence at trial that he did attempt to withdraw from the situation that he had created. He did this by attempting to do a U‑turn over the median strip of Marmion Avenue. This caused his vehicle to stall. However, he got off the median strip and onto the southbound carriageway, where he claimed he intended to drive away from his pursuers who were on the northbound carriageway.
The sentencing judge made a finding that the appellant had stopped on the carriageway. However, the appellant said that he did not stop in the southbound lanes after he had got off the median strip. The complainant's evidence was consistent with that claim. One witness did, however, say that the appellant had stopped in the southbound lanes.
It is difficult to see how the judge could have been satisfied beyond reasonable doubt (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270) that the appellant had, in fact, stopped in the southbound lanes.
It was not necessary for the sentencing judge to conclude that the appellant only formed the intent to commit the offence under s 304(2)(a) 'on the spur of the moment', but the evidence was consistent with his being confronted by the complainant as he endeavoured to drive south. The complainant was standing before him, armed with a crowbar and with the intention to prevent him from leaving the scene. Again, it was difficult of the sentencing judge to accept beyond reasonable doubt that, contrary to the appellant's contention that he was trying to drive away, he 'full of malice towards [the appellant]' aimed his car directly at him 'to teach him a lesson and extract a degree of revenge on him'.
In my view, there is substance in the first ground of appeal and I would uphold it.
Ground 2
This ground is much the same as ground 1. It contests the sentencing judge's conclusion that the appellant had stopped his vehicle in the southbound carriageway. I have already dealt with this issue under the previous ground, and it is unnecessary to deal with ground 2.
Ground 3
This ground contends that the sentencing judge erred in concluding that the appellant had caused grievous bodily harm to the complainant and yet he had been acquitted of a charge under s 294(1) of the Criminal Code.
In my opinion, the sentencing judge did not conclude that the appellant intended to cause the complainant grievous bodily harm. Her Honour expressly accepted that the verdict of the jury meant that they were not satisfied beyond reasonable doubt that the appellant had intended to cause grievous bodily harm when he struck the complainant.
I have already quoted the passage in which the sentencing judge said that it was the appellant's intention to drive at the complainant and to place him in serious danger by so doing. Her Honour specifically found that the appellant did not intend to cause an injury 'which would be permanent or life endangering'.
The sentencing judge made reference to the extent of the injuries sustained by the complainant, but it was legitimate for her to do so. Those injuries were particularly severe. I have already quoted the passage in which the sentencing judge made reference to them.
In my opinion, there is no substance in ground 3.
Ground 4
This ground contends that the sentencing judge erred in imposing sentences that were manifestly excessive having regard to the nature and circumstances of the offences and the appellant's personal circumstances and antecedents.
In point of fact, the only sentence which is challenged is that which was imposed for the offence under s 304(2)(a). The sentence imposed for the offence under s 444(b) (wilfully and unlawfully damaging a motor vehicle) is not challenged.
Because I have concluded that the sentencing judge erred in the factual basis upon which she sentenced the appellant (grounds 1 and 2), the appellant falls to be resentenced, in any event. Nevertheless, it seems to me that the sentence imposed under s 304(2)(a) was manifestly excessive in the circumstances.
There is no doubt that the offence was serious. The circumstances in which it was committed and the consequences to the complainant make this clear. Further, the appellant initiated the events that led to the commission of the offence under s 304(2)(a). It was he who went to the house where T and the complainant were staying. He caused significant damage to the complainant's vehicle. It was he who reappeared early the following morning, causing trouble. Because he was yelling abuse outside the house of the Symes, the complainant and Mr Syme pursued him. What was unexpected was that the complainant would appear on the southbound lanes of Marmion Avenue, armed with a crowbar as the appellant endeavoured to get away. In these circumstances, the offence that he committed, although serious, can be explained, although not excused.
The matters personal to the appellant are set out in a pre‑sentence report, a psychological report and in a number of character references which were tendered on his behalf.
Pre-sentence report
The pre‑sentence report said that the appellant was 'remorseful that the confrontation took place in the manner it did', but, at the same time, he felt that he was the victim of deceit and betrayal. He did however say that 'given his time again he would have walked away and thought before he acted'.
The appellant was 36 years of age at the time of sentence. He had, in the five months preceding the writing of the report (25 October 2007) formed another de facto relationship, which he described as supportive and positive. He was employed as a commercial plasterer, had secure employment and was assured of re‑employment upon release from prison.
The summary to the pre‑sentence report described the appellant as 'a genuine, polite man who was extremely forthcoming and organised with information' who had been affected by his childhood and exasperated by the breakdown of past relationships and separation from a child born as a consequence of his first serious relationship when he was 28 years of age. Despite this, he was said to have a sound education and employment history, and presented with a high level of optimism and determination to address his offending behaviour. He had taken action to seek therapy and gain insight into his 'unconstructive behaviours' and claimed that he felt that he had regained control of his life.
The writer of the pre‑sentence report considered that the appellant would benefit significantly from intervention to address his underlying feelings of insecurity, abandonment and rejection and also to assist him to continue to address his feelings of depression and anxiety.
Psychological report
The psychological report added little to the pre‑sentence report. Psychometric testing revealed that the appellant attempted to present himself favourably, but had feelings of anger which he attempted to control. He evidenced minimal signs of depression and anxiety, and was estimated to be of average intelligence. His childhood was said to be characterised by a number of unsettling events, the most noteworthy of which were his feelings of rejection and abandonment by his father. As an adult, he had experienced the breakdown of his first serious relationship. The alleged unfaithfulness of his second partner had resulted in further feelings of rejection. He experienced severe symptoms of depression, anxiety and panic attacks by reason of being separated from his son.
The opinion of the psychologist was that all of these conditions were further aggravated when the appellant discovered the deceit of his former partner. The recommendation made in the report was that he may need increased support and assistance from a psychologist, and his family, in the event that he experienced any further setbacks in life which might heighten his risk of reoffending.
References
Numerous references were tendered to the sentencing judge in which people spoke highly of the appellant's character. In general, the writers expressed the view that the offences committed by the appellant were entirely out of character with what was known of him. He was described as a 'caring and intelligent parent' and 'honest, trustworthy and caring'.
Victim impact statement
A victim impact statement of the complainant painted a dismal picture of his life in consequence of the injuries he had sustained. Those injuries included fractures of the tibia, fibula and left ankle. The left ankle became infected and required surgery. Nine operations had been performed on the complainant's leg by October 2007 and he was pessimistic as to whether he would ever fully recover from the injuries he sustained. He was also concerned about medical advice he had received that he may suffer problems with his pelvis, low back, upper back and neck. He was unable to play with his children, unable to get back to his work as a fisherman, or as a plasterer, and was hampered in daily activities around the house.
Record of appellant
The appellant had a minor record of criminal offences, including a conviction for common assault, one for damage and a number of traffic convictions. They were of no practical consequence for sentencing purposes.
Sentence
In my opinion, the sentence of 6 years' imprisonment imposed by the sentencing judge was excessive in all the circumstances. A sentence of 4 years' imprisonment would have been more appropriate and, in my opinion, that sentence should be substituted for the sentence of 6 years which was imposed.
I would therefore allow ground 4.
Conclusion
In my opinion, the appeal should be allowed on grounds 1, 2 and 4, but dismissed on grounds 3, 5 and 6. I would set aside the sentence of 6 years' imprisonment imposed for the offence under s 304(2)(a) and substitute in lieu thereof a sentence of 4 years' imprisonment. The sentence of 6 months' imprisonment imposed for the offence of wilfully and unlawfully damaging a motor vehicle should remain unaffected, and the orders for concurrency eligibility for parole and commencement date of the sentences should remain.
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