Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction and sentence - Whether decision was unsafe and unsatisfactory - Turns on its own facts - Appeal against sentence - Failure to take into account capacity of offender to pay fine - Power to disqualify licence - Section 105(1) of the Sentencing Act 1995 (WA) - Resentencing of offender

Community Protection (Offending Reporting) Act 2004 (WA)

Sentencing Act 1995 (WA)

Fine of $500 substituted for a penalty imposed by magistrate

Anderson v Davis [2009] WASC 38

Chan v The Queen (1989) 38 A Crim R 337

Harvey v Matthews [1999] WASCA 58

Hodder v Skamp [No 2] [2009] WASC 53

Lam v The State of Western Australia [2010] WASCA 61

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Rasoolifard v Nichol [2001] WASCA 180

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sgroi v The Queen (1989) 40 A Crim R 197

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 COMMISSIONER SLEIGHT: The appellant, Mr Hodder, is a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (the Act).

2 Mr Hodder was charged with an offence that on 9 March 2010, being a person to whom s 6 of the Act applies, without reasonable excuse, failed to comply with his reporting obligations.

3 After a trial before his Honour Magistrate Boothman, Mr Hodder was convicted, fined $2,000, order to pay costs of $119.20 and his motor driver's licence was suspended for six months.

4 Mr Hodder appeals against his conviction and sentence.

5 The grounds of appeal against conviction are as follows:

1. The decision by Judge [sic] Boothman was unsafe and unsatisfactory.
2. Statements and transcripts entered during court hearing non-void.
3. Judge [sic] Boothman should not have allowed reportable obligation report to be used as evidence.

6 The appeal against sentence is on the following grounds:

1. That the fine of $2,000 was far to [sic] accessive [sic] to the nature of the alleged offence.
2. The decision to suspend motor driver's licence for six months is not acceptable as the alleged incident has no relation to driving a vehicle.

7 On 16 March 2011, Hall J granted leave to appeal on grounds 1 and 2 against sentence. The applications for leave to appeal against conviction were ordered to be heard at the same time as the appeal.

8 The offence for which Mr Hodder was convicted is pursuant to s 63 of the Act. Section 63 provides as follows:

Failure to comply with reporting obligations

(1) A reportable offender who, without reasonable excuse, fails to comply with any of his or her reporting obligations commits an offence.

Penalty: a fine of $12 000 and imprisonment for 2 years.

(2) In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, a court must have regard to the following matters -

(a) the person's age;

(b) whether the person has a disability that affects the person's ability to understand, or to comply with, those obligations;

(c) whether the form of notification given to the reportable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender's circumstances;

(d) any matter specified by the regulations for the purposes of this section;

(e) any other matter the court considers appropriate.

(3) It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation.

9 Section 28 of the Act requires a reportable offender to report his or her personal details to the Commissioner of Police each year. Further, the Commissioner of Police may, at any time, cause written notice to be given to a reportable offender requiring the reportable offender to report his or her personal details to the Commissioner at the time or times stated in the notice. A reportable offender must report his or her personal details to the Commissioner in accordance with such a notice.

10 'Personal details' are defined in s 26(1) of the Act and include the make, model, colour and registration number of any motor vehicle owned by, or generally driven by 'the reportable offender'. Section 26(2)(e) of the Act provides that 'a reportable offender does not generally drive a particular motor vehicle unless the person drives that vehicle for at least 14 days (whether consecutive or not) in any period of 12 months.

11 Section 29(1) requires a reportable offender to report to the Commissioner any change of his or her personal details within seven days after the change occurs.

12 Pursuant to s 37, as soon as is practicable after receiving a report from the reportable offender as to his personal details, an authorised person (which includes a police officer) receiving a report must acknowledge the making of the report. The acknowledgement must be in writing and must be given to the person who made the report. The report must be signed by the authorised person. There is no requirement that it be signed by the reportable offender

13 The prosecution case was that Mr Hodder acquired a motor vehicle on or about 15 February 2010 and failed to disclose that he owned the vehicle within seven days, as required under the Act.

14 The prosecution called three witnesses. These were as follows:

15 Constable Esslemont stated that he was attached to the Sex Offender Management Squad. He interviewed Mr Hodder on 19 May 2010. He asked a series of questions of Mr Hodder, including about his ownership of a motor vehicle. Mr Hodder's answers were recorded on a form pursuant s 37 of the Act.

16 The form had a series of questions headed: 'Has there been a change in your personal details in regards to'. Against each question, was provided a box to indicate the answer was 'Yes' or 'No'. One of the questions to be completed related to 'vehicle including the make, model, registration of any vehicle which you own or regularly drive'.

17 Mr Hodder, in relation to this question, had to indicate whether there had been a change or there had not been a change. He indicated there had not been a change.

18 The form pursuant to s 37 was tendered into evidence as exhibit 1. The form was signed by Constable Esslemont, but Mr Hodder had refused to sign the form.

19 Constable Daniels gave evidence that he received information on 25 May 2010 concerning a Nissan Pulsar motor vehicle registration GNG 673.

20 Constable Daniels conducted a computer search and ascertained that this vehicle was licensed in the name of James Leslie Hodder. Tendered into evidence pursuant to s 98(2) of the Road Traffic Act 1974 (WA) (as amended) was an extract from the vehicle register of the Department of Transport which stated that as from 15 February 2010 the vehicle was licensed in Mr Hodder's name.

21 Constable Daniels gave evidence that on 26 June 2010, he attended Mr Hodder's home address and, after giving Mr Hodder a caution, asked him a number of questions about the Nissan Pulsar motor vehicle. Mr Hodder agreed to answer these questions, but refused to have the interview recorded on video.

22 In this interview, Mr Hodder denied that he owned the vehicle. He admitted that he had driven it once, but stated it was not his vehicle. Mr Hodder said he had given $200 for the vehicle to a lady named Sue who he claimed lived upstairs in the apartment block where Mr Hodder resided.

23 Mr Hodder was asked whether he had keys to the vehicle and after he proceeded to search his flat in an attempt to locate the keys, then retrieved the set of keys from his right-hand jacket pocket. He was then asked if he could accompany the police officers to the vehicle. Mr Hodder was asked where the vehicle was located and he said in a nearby street. Mr Hodder attended the vehicle with the police officers and opened the vehicle with the keys he had produced from his pocket.

24 Mr Hodder was asked why the vehicle was parked in the street and he told the police officers that he had driven it there as he was not allowed to park it in the reserved carpark.

25 The prosecution tendered into evidence a certificate under s 113 of the Act which stated that Mr Hodder was registered as a reportable offender on 20 March 2006 (exhibit 4). Constable Daniels' evidence was that at every interview conducted with a reportable offender, the practice is to read to the reportable offender a copy of a notice of reporting obligations.

26 Produced in evidence (exhibit 5) was a notice of reporting obligations dated 13 January 2010 which was in the name of James Leslie Hodder. The form informed Mr Hodder of his reporting obligations under s 28(3) of the Act and required him to report his personal details every two months.

27 Under cross-examination, Constable Daniels was asked about information he had received concerning the vehicle GNG 673. Constable Daniels stated that he had received intelligence information that the vehicle had been stopped by a marked police vehicle and that Mr Hodder had been the driver.

28 Constable Daniels acknowledged that Mr Hodder had told him that the person named Sue, from whom Mr Hodder had purchased the vehicle, lived on the top floor of the apartments. Constable Daniels attended the unit of the person identified as Sue and knocked on the door but no-one answered. No further enquiries were made by the police concerning this person, as Mr Hodder had acknowledged that he had given the person named Sue $200 for the vehicle.

Detective Senior Constable Debbie Louise Chapman

29 Detective Chapman gave evidence that largely corroborated the evidence of Constable Daniels concerning the attendance on Mr Hodder (although she gave a different date being 24 June 2010 and said Mr Hodder produced the keys of the vehicle from his pants pocket).

30 Mr Hodder elected to give evidence and in his evidence denied that the Nissan Pulsar vehicle belonged to him.

31 He claimed that when he was interviewed on 19 May 2010, he gave the correct answer in relation to the question concerning a motor vehicle. He stated as follows:

The vehicle was owned by a girl - I can't tell you her second name. She's from Thailand. She owned the car and she could have - I'm not quite sure - tried to put it in my name, but I didn't want the car because it was too old.

32 Mr Hodder admitted he had driven the vehicle on one occasion. However, Mr Hodder stated that he was not the owner of the vehicle and therefore his response to the question of Constable Esslemont on 19 May 2010 concerning a motor vehicle was correct.

33 In the course of his decision, the magistrate stated:

I find as a fact that the certificate of ownership, the ownership of the keys and the fact that the motor car was parked close to the accused's home gives him either ownership and/or control of the motor car at that time. I do not know where the motor car is now. It may have been that because it is an old car, it was seized by the local council and taken to the dump. I cannot be certain of that. The accused says he does not know where it is.

There is no doubt, and it is not contested by the accused, that he is on the register of offenders. There is no doubt that he has given notice of all of his reporting conditions and his obligations so he knows exactly what he has to answer. In respect of this matter, I am satisfied that the accused did not answer the officers in relation to his obligations under the Act. I am satisfied that the prosecution has made out its case, that he is a person registered under the Child Offenders Register.

I am satisfied that he was a person in control of the motor car at the time. I am satisfied that when Constable Esslemont interviewed him, he did not tell the truth about the motor car and the prosecution has proved its case beyond reasonable doubt.

Criminal Appeals Act 2004 (WA)

34 Under s 8 of the Criminal Appeals Act 2004 (WA), an appeal may be made under one or more of the following grounds:

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

• (b) that there has been a miscarriage of justice.

35 Leave can only be granted on a ground of appeal if the court is satisfied that a ground has a reasonable prospect of succeeding: Criminal Appeals Act, s 9. This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

Leave to appeal and ground 1 of appeal against conviction

36 The first ground of appeal is that the decision of the magistrate was unsafe and unsatisfactory. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, the majority (Mason CJ, Deane, Dawson and Toohey JJ) stated:

When asked to conclude whether a decision is unsafe or unsatisfactory, the question which a court must ask itself is whether it thinks that upon the whole of the evidence, it was open to the decision-maker of fact to be satisfied beyond a reasonable doubt that the accused was guilty. In answering the question, the court must given consideration to the fact that the decision-maker has had the benefit of seeing and hearing the witnesses (493).

37 The principle applies to an appeal on a decision of a magistrate in a summary court: Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nichol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38.

38 Mr Hodder, who appeared on the appeal self-represented, submitted that the verdict was unsafe and unsatisfactory, based upon two contentions:

(i) the form completed by Constable Esslemont on 19 May 2010 (exhibit 1) should not have been tendered into evidence, as it had not been signed by Mr Hodder; and

(ii) there was insufficient evidence to establish beyond reasonable doubt that Mr Hodder was the owner of the Nissan Pulsar motor vehicle.

39 The first of these contentions is again repeated in ground 3 of the appeal against conviction. I will deal with this issue later in this decision.

40 As to the second contention, there was sufficient evidence before the magistrate for the magistrate to be satisfied beyond reasonable doubt that Mr Hodder was the owner of the motor vehicle. The evidence included the following:

(a) a certificate under s 98 of the Road Traffic Act 1974 (WA) (exhibit 3) was tendered into evidence which stated that the vehicle was licensed in Mr Hodder's name from 15 February 2010;

(b) the evidence of Constables Daniels and Chapman that Mr Hodder had admitted paying $200 for the vehicle;

(c) the evidence of Constables Daniels and Chapman that Mr Hodder had produced the keys of the vehicle, albeit that they gave a different account as to where the keys were located;

(d) the evidence of Constables Daniels and Chapman that Mr Hodder was able to tell them where the vehicle was parked and was able to take them to the vehicle; and

(e) the evidence of Mr Hodder admitting that he had driven the vehicle.

41 Mr Hodder submitted that it was significant that the prosecution failed to produce any evidence that it was Mr Hodder who had paid for and/or arranged the transfer of the licence of the motor vehicle into Mr Hodder's name. In my opinion, notwithstanding the absence of such evidence, on the totality of the evidence before the magistrate, it was open to the magistrate to conclude beyond reasonable doubt that Mr Hodder owned the motor vehicle. Further, there was evidence as to the other elements of the charge sufficient for the magistrate to be satisfied beyond reasonable doubt that Mr Hodder had failed, without reasonable excuse, to report his ownership of the motor vehicle, as he was required to do under the provisions of the Act.

42 In my opinion nothing has been advanced by Mr Hodder to satisfy me that ground 1 of the appeal against conviction has a reasonable prospect of succeeding. Accordingly, leave is refused in relation to this ground. If I am wrong about the question of whether leave should be granted, then ground 1 of the appeal against conviction is, in any event, dismissed.

43 Ground 2 is nonsensical and leave to appeal is refused.

44 Ground 3 relates to exhibit 1, being the form completed by Constable Esslemont pursuant to s 37 of the Act. As stated earlier in this decision, the form was signed by Constable Esslemont, but Mr Hodder refused to sign it. Mr Hodder contends that because the form was not signed by him, it was inadmissible.

45 However, the form does not have to be signed by Mr Hodder to become admissible. Under the provisions of the Act, the form need only be signed by the officer conducting the interview. It does not have to be signed by the reportable offender. The evidence was admissible to show that s 37 of the Act was complied with by the answers given by Mr Hodder being recorded in a written form signed by the interviewing officer.

46 Leave is refused on this ground of appeal, but, in any event, even if leave was given, the appeal would have been dismissed.

47 The first ground of appeal against sentence is essentially that it was manifestly excessive. In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place the criminal conduct occupies on a scale of seriousness of the offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342; Lam v The State of Western Australia [2010] WASCA 61 [9] (McLure P, with whom Owen JA and Jenkins J agreed).

48 The maximum penalty applicable for this offence is a fine of $12,000 and imprisonment for 2 years.

49 The respondent has conceded in its submissions that the magistrate erred in failing to take into account the personal circumstances of Mr Hodder as to his capacity to pay a fine. In Sgroi v The Queen (1989) 40 A Crim R 197 Malcolm CJ (with whom Rowland J agreed), stated:

The purpose of a fine is primarily to punish the offender. Consequently, the amount of a fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practical, the financial resources and income of the offender and the nature of the burden that its payment will impose ... the question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine, consideration of the offender's financial means [or] capacity are relevant in determining the amount of a fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender, and where appropriate the objective of general deterrence (200).

50 The learned magistrate failed to make any enquire of Mr Hodder as to his financial circumstances and therefore failed to properly determine the amount of the fine that should be imposed. The failure of the magistrate to do so was contrary to s 53(1) of the Sentencing Act 1995 (WA), which requires that if a court decides to fine an offender, then in deciding the amount of the fine, the court must, as far as is practicable, take into account:

(a) the means of the offender; and

(b) the extent to which payment of the fine will burden the offender.

51 Given this error, the appeal against sentence should be allowed and I should resentence Mr Hodder.

52 The magistrate imposed a 6-month disqualification of licence purportedly pursuant to s 105(1) of the Sentencing Act. Section 105 provides that a court sentencing an offender for 'a motor vehicle offence' may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's licence.

53 A 'motor vehicle offence' is defined in s 105(5) as meaning:

motor vehicle offence means -

(a) an offence an element of which is the driving or use of a motor vehicle;

(b) stealing or attempting to steal or conspiring to steal a motor vehicle;

(c) receiving or attempting to receive or conspiring to receive a motor vehicle;

(ca) an offence where -

(i) a motor vehicle is used in the commission of the offence;

(ii) the commission of the offence is aided or facilitated by the use of a motor vehicle;

(d) an indictable offence (whether it was tried on indictment or not) where -

[(i), (ii) deleted]

(iii) a motor vehicle is used after the commission of the offence to provide, or to attempt to provide, a means for the offender to leave the place of the commission of the offence;

(iv) a motor vehicle is used by the offender after the commission of the offence to avoid, or to attempt to avoid, apprehension.

54 A breach of s 63 of the Act is not a motor vehicle offence for the purposes of s 105(5) of the Sentencing Act. Accordingly, the order disqualifying Mr Hodder from holding a motor vehicle driver's licence for a period of 6 months should be set aside.

55 Mr Hodder is aged 66 and is a single person. He is on an age pension of approximately $690 per fortnight. He pays $160 per fortnight rent and is paying off a loan to a bank of approximately $170 per fortnight. He has no other fixed financial commitments.

56 Mr Hodder has a number of prior convictions for failing to comply with reporting obligations under the Act. The details of these are as follows:

1. On 28 December 2007 Mr Hodder was convicted of four offences under the Act. Following a successful appeal against sentence, he was fined a global fine of $1,500. The global fine also included convictions for an offence of Obstructing a Public Officer, contrary to s 172(2) of the Criminal Code (WA) and Escaping from Lawful Custody, contrary to s 146 of the Criminal Code.

The four offences under the Act related to failing to report as required under the Act. The global fine imposed following the successful appeal against sentence took into account that Mr Hodder had spent 19 days in custody: Hodder v Skamp [No 2] [2009] WASC 53 [13].

1. On 16 December 2008, Mr Hodder was convicted of a further offence for failing to comply with his reporting obligations and was fined $200.

57 The past convictions of Mr Hodder are not aggravating features (s 7(2) of the Sentencing Act), but they demonstrate that there is a particular need to place an emphasis in this case on personal deterrence. This is in accordance with sentencing principles as to the role that prior convictions can play: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477. Mr Hodder has demonstrated, by his past offending, a disregard for his obligations under the Act and there is a need to impress upon him a need to comply.

58 The nature of the offending in this case is not as serious as a complete failure to report, which was the nature of the offending on prior occasions. It appears that Mr Hodder has been reporting as required, but the offence on this occasion was failing to disclose his interest in a motor vehicle. The information concerning a motor vehicle is clearly included in the reporting obligations as a part of a methodology to keep control of potentially predatory behaviour: Hodder v Skamp [No 2] [36] - [37].

59 In considering what is the appropriate penalty, I have regard to the seriousness of the offence as defined in s 6(2) of the Sentencing Act. This takes into account the maximum penalty, which I have referred to earlier in this decision. This maximum penalty reflects the intention of Parliament that the reporting obligations under the Act are serious obligations, designed to provide community protection.

60 There is little that can be said in mitigation in favour of Mr Hodder. He has shown no remorse. However, he does have a limited capacity to pay a fine. I take into account both his means to pay and the burden a large fine will place upon Mr Hodder given his limited income. I conclude, that in all the circumstances, an appropriate fine is $500. I will substitute this for the penalty imposed by the magistrate.