ANDERSON -v- TOWNSEND [2020] WASC 456 (9 December 2020)

$1000 fine (imposed under s 80(1) of Sentencing Act in substitution for 9 month's imprisonment suspended for 12 months)

Driving while disqualified contrary to s 49(1)((a) and s 49(3)(b) of the Road Traffic Act 1974

$1000 fine (imposed under s 80(1) of Sentencing Act in substitution for 9 months' imprisonment suspended for 12 months - concurrent with term imposed for WU 2/2017)

Aggravated assault contrary to s 313(1)(a) of the Criminal Code

6 months' imprisonment (conditionally suspended for 12 months)

Breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982

2 months' imprisonment (cumulative) (conditionally suspended for 12 months)

Giving false personal details to Police contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002

2 months' imprisonment (cumulative) (conditionally suspended for 12 months)

Breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982

2 months' imprisonment (cumulative) (conditionally suspended for 12 months)

1. The appellant sought leave to appeal against each of the sentences of 2 months imprisonment, conditionally suspended for 12 months, imposed in respect of the first breach of bail offence, the false details offence and the second breach of bail offence.

1. The facts can be summarised as follows. On the evening of 15 September 2017 the appellant, her mother and some friends and family were drinking outside a house in Wiluna. The appellant and the appellant's mother began to argue. The appellant got a children's plastic toy out of a car parked nearby and hit her mother with it, striking her in the mouth. The appellant's mother was knocked unconscious. In addition, she suffered a swollen lip and her teeth were loosened. The appellant's mother was 48 years old and of a large build. The appellant was 27 years old and of a medium build and shorter than her mother. The appellant was arrested, charged with aggravated assault and released on her bail undertaking to attend the Wiluna Magistrates Court on 19 September 2017.
2. The appellant failed to appear at the Magistrates Court on 19 September 2017 and a warrant was issued for her arrest. The appellant was arrested on the warrant on 22 March 2018 and was charged with the first breach of bail offence.
3. On 22 March 2018 the appellant attended Carnarvon Magistrates Court and pleaded guilty to both the first breach of bail offence and to the aggravated assault charge. The appellant was granted bail to appear at the Wiluna Magistrates Court on 27 March 2018 for sentencing.
4. The appellant failed to appear on 27 March 2018 at the Wiluna Magistrates Court, however her absence was excused because it was reported to the magistrate that the appellant was residing at a domestic violence refuge and had recently suffered facial injuries. The appellant's bail was renewed to attend Wiluna Magistrates Court on 17 April 2018.
5. The appellant failed to attend court on 17 April 2018. The appellant's bail was renewed once again to attend court on 22 May 2018. Bail was renewed on the assumption that the appellant's circumstances as explained on 27 March 2018 accounted for her failure to attend on 17 April 2018.
6. On the evening of 17 April 2018 the appellant was seen hitting the cars driving past while she crossed Hay Street in the Perth CBD. She was stopped by police, who requested her full name, date of birth and current address.
7. The appellant initially provided the false name of Bianca Scott from Wiluna. After making further inquiries the police found this name to be false. When the appellant was asked to give correct details she provided the name Bianca Anderson from Wiluna, with the date of birth 25 October 1988. When the police officers were unable to confirm these details the appellant was arrested and taken to the police station where she repeated her claim to be Bianca Anderson. The appellant's fingerprints were taken and her true identity established. All that was said by the appellant was 'You're a dog, so why should I give you my real name'. The appellant was charged under s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA) with providing false details to police. She was released on a summons to attend Perth Magistrates Court on 6 June 2018.
8. The appellant failed to attend Wiluna Magistrates Court on 22 May 2018. An arrest warrant was issued for the aggravated assault and breach of bail undertaking charges.
9. The appellant failed to attend Perth Magistrates Court on 6 June 2018. A further warrant for the appellant's arrest was issued.
10. On 13 December 2019 the appellant was arrested in accordance with the arrest warrants and appeared before Wiluna Magistrates Court on that day. The appellant pleaded guilty to the charge of providing false details to police and was released on bail on the aggravated assault, breach of bail undertaking and providing false details to police charges. The appellant signed a bail undertaking to appear before the Wiluna Magistrates Court for sentencing on 17 December 2019.
11. The appellant failed to attend court on 17 December 2019. A further warrant for her arrest was issued.
12. The appellant was arrested on 4 April 2020 and appeared before Wiluna Magistrates Court and was charged with the second breach of bail offence.
13. Bail was granted and the appellant returned to Wiluna Magistrates Court on 21 April 2020, where she pleaded guilty to the second breach of bail offence.

1. The sentencing hearing was conducted by an audio-visual link. The magistrate was sitting in Carnarvon and the appellant appeared in the Wiluna Magistrates Court. The appellant was represented by counsel present in person before the magistrate in Carnarvon.
2. In mitigation the appellant's counsel referred to some letters of support that the appellant had obtained. Unfortunately, the appellant's counsel did not have copies of the letters - they were with the appellant at Wiluna police station - but the contents of the letters were summarised for the magistrate. Their effect was that the appellant had received counselling from the Aboriginal Medical Service and had been engaging in arts activities run by the local shire.[1]
3. Counsel said that the appellant had 'her own medical issues' and that her young daughter had been required to attend hospital in Perth. It was submitted, in effect, that the appellant had accorded the health issues from which she and her daughter suffered priority over the court appearances. Counsel was unable to provide any evidence in support of this submission, though he was able to inform the magistrate that at the appearance on 4 April 2020 police officers had informed the magistrate, who was then sitting, that the appellant was 'regularly receiving medical treatment' and was staying with her aunt at a 'stable address'.[2]
4. Counsel submitted that a community based order would be the appropriate sentencing disposition so the appellant could receive the support she needed in the community. In discussion with counsel for the appellant, the magistrate suggested that making a community based order and not activating the suspended sentences of imprisonment imposed on 1 March 2017 would be to reward the appellant for her breaches of bail.[3]
5. In response, counsel submitted that a community based order would reward the appellant 'for staying offence free for that substantial period'.[4] The reference to being 'offence free' appears to have been a reference to the fact the appellant had not committed any further driving offences. That this was so is apparent from a later reference by counsel to the 'primary purpose of the suspended term' being to deter the appellant from committing driving offences. Counsel submitted that to sentence the appellant to a term of imprisonment for breaching bail 'when she advises she had pressing medical issues would be unjust'.[5] Counsel acknowledged that he did not have evidence of the 'pressing medical issues' and said he would seek an adjournment to obtain such evidence if that 'was going to be the deciding factor' but did not make an application for an adjournment.[6]
6. The magistrate adjourned to consider the sentences to be imposed. In later remarks he described the sentencing exercise as 'complex'.[7]
7. The magistrate began his sentencing remarks by referring to the transcript of the sentencing hearing on 17 March 2017 and to the careful explanation of the consequences of re-offending given on that occasion by the sentencing magistrate to the appellant.[8]
8. The magistrate described the appellant's assault on her mother as 'a very serious assault'. The magistrate acknowledged that when apprehended following the first breach of bail the appellant pleaded guilty to the aggravated assault charge. His Honour said that he would reduce the discount for the guilty plea from 25% to 10% because of the delay of six months in the guilty plea caused by the appellant's failure to comply with her bail undertaking.[9]
9. The magistrate referred to the latitude extended to the appellant following her failure to appear on 17 April 2018 and noted that later that same day the appellant committed the false details offence.[10] The magistrate noted the appellant had pleaded guilty to the false details offence on 13 December 2019 and reduced the discount for her guilty plea from 25% to 10% because of the delay in entering the plea caused by the appellant's failure to comply with her bail undertaking and appear as she was required to do on 6 June 2019.[11]
10. The magistrate also noted that on 4 April 2020 the appellant had pleaded guilty to the second breach of bail offence. His Honour noted that the 4 April 2020 hearing was the first hearing of the second breach of bail charge and allowed a reduction of 25% in respect of that offence.[12]
11. The magistrate noted that what had been said in mitigation about the appellant's mental health issues had not been supported by evidence but he accepted that the appellant had resided for some time at a women's refuge and his Honour also accepted that the appellant suffered from some mental health issues.[13]
12. The magistrate said that any expectation of leniency had been substantially eroded. His Honour referred to the fact that the appellant had been convicted of breaching bail in the past for which she had been sentenced to suspended terms of imprisonment. His Honour noted that the appellant had been sentenced for breaching an intensive supervision order and for failing to comply with a summons. His Honour observed that the appellant's record were not aggravating factors.[14]
13. The magistrate noted the maximum penalties that could be imposed for the various offences. His Honour referred to the need for personal and general deterrence.[15]
14. The magistrate said that financial penalties would fall well short of community expectations for the appellant's offending. His Honour observed that the only appropriate penalty was a term of imprisonment.
15. The magistrate cancelled the suspended terms of imprisonment imposed on 17 March 2017 and, noting that there had been no further driving offences and that the appellant had made it 'halfway through' the suspended terms, imposed fines of $1,000 in respect of each of those offences.[16]
16. Having identified the sentences, he proposed to impose the magistrate considered the issues of accumulation and totality. His Honour said:[17]

So all of those terms of imprisonment are cumulative, being a total of 12 months. I've considered carefully whether some of the terms should be concurrent so as to make sure that totality was observed as part of the sentencing and ultimately I achieved the same objective of ensuring totality was not breached by reducing the terms of imprisonment to be imposed for the breach of bail on 19 September 2017, the false details to the police on 18 April 2018, and the breach of bail on 17 December 2019.

Each of those offences warranted in themselves a term of imprisonment exceeding two months but I've reduced each of them to two months so as not to breach - that is, not to myself fail to take into account the requirement for totality. I'm satisfied that the overall - the cumulative terms of imprisonment of 12 months for the four offences is an appropriate sentencing disposition in a totality sense, noting, again, that the assault on Ms Anderson's mother was a very serious assault and each of the other offences was an example of serious offending.

1. The magistrate said that the appellant should not be rewarded for breaching her bail. His Honour observed that it was clear that the appellant understood that had she been sentenced in the 12 months following 17 March 2017 the potential outcome was that she would be required to serve the terms of imprisonment that had been imposed.
2. In relation the issue of whether to suspend the terms of imprisonment, the magistrate said:[18]

I'm required to take into account carefully all of the factors that have been raised today, the disadvantage that Ms Anderson may have, the health issues. I will take account of the fact that she was at the refuge for a period of time.

It seems clear that Ms Anderson has had her challenges and some of those challenges continue because in April it was acknowledged by local police that Ms Anderson had some mental health issues and it was for that reason that local police in Wiluna on 4 April 2020 didn't oppose the adjournment to today's date even though there had been those absences from court and other breaches. It's a very marginal exercise for the court today in determining whether to suspend the terms of imprisonment.

So blatant is the offending after 15 September 2017 - that is, not coming to court and when apprehended by the police giving false details to the police - ultimately I am satisfied by, I would have to say, the most narrow of margins - and, indeed, it is of the most narrow of margins because I was compelled to reflect for a substantial period during the gap between the hearing this morning and now really on this issue whether or not to suspend the terms of imprisonment.

And ultimately by the most slender of margins because of Ms Anderson's challenges, I'm satisfied that she should be given an opportunity - a further opportunity on suspended terms of imprisonment. It is, however, by the most slender of margins ...

1. The appellant advanced three grounds of appeal. First, that the sentences imposed were manifestly excessive. Second, the magistrate erred in law in concluding that the false details offence had reached 'the point of imprisonment'. Third, the magistrate made an implied error by sentencing inconsistently on the breach of bail offences. The third ground of appeal was added by leave at the hearing of the application.

1. The appellant required leave to appeal on each ground as this is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA).[19] Leave to appeal must not be granted by the court unless it is satisfied that the ground has a reasonable prospect of success.[20] To meet this threshold each ground must be shown to have a rational and logical prospect of succeeding.[21]

1. Grounds 1 and 2 both allege manifest excess and it is convenient to consider them together.

1. In outline the appellant's submissions were as follows:

(a) The sentences were manifestly excessive because the magistrate imposed the wrong type of sentence. Any term of imprisonment, suspended or otherwise, was outside the range of appropriate sentences, as the appellant had not yet reached 'the point of last resort'.

(b) The magistrate's sentencing remarks do not disclose any real consideration of lesser sentencing options or whether lesser options could sufficiently meet the sentencing aims of specific and general deterrence.

(c) That the magistrate declined to consider the supporting material the appellant had prepared in respect of a community based outcome and that he did not order a pre-sentence report reinforced the concern the magistrate failed to give proper consideration to an intensive supervision order as a sentencing option.

(d) The magistrate placed undue weight on the fact that the breaches of bail had caused a delay in the matters being finalised and that the circumstances of the offending were otherwise 'at the low end of the range' for this type of offending. Having regard to the appellant's personal circumstances and 'dated minimal record', the magistrate was wrong to conclude that only imprisonment could be justified.

(e) While the appellant's conduct in providing the police with false details was disruptive and a nuisance to the police, her offending was not sufficiently serious as to attract a sentence of imprisonment.

1. By alleging that the sentence is manifestly excessive the appellant is asserting the existence of an implied error. An implied error will be established where the final result is so clearly unreasonable or unjust, that the court must conclude that a substantial wrong has occurred.[22]
2. The principles to be applied when it is alleged that a sentence is manifestly excessive are well established. They were stated by the Court of Appeal in Nguyen v The State of Western Australia as follows:[23]

It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

1. A court on appeal will not interfere with a sentence imposed merely because it would have exercised the sentencing discretion differently. In the absence of explicit error, the appellant must demonstrate that the sentence was unreasonable or plainly unjust. [24]

1. The maximum penalty for the breach of bail offences is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.[25]
2. The maximum penalty for providing false personal details to a police officer is imprisonment for 12 months.[26]

1. The circumstances under which a breach of bail may occur can vary significantly. As a consequence, it is not possible to discern a customary range of sentences imposed for breach of bail offences.[27]
2. The appellant referred to the cases of Indich v Bracknell,[28] Spratt v Canavan,[29] Kelly v Lockwood[30] and Edgill v Maguire.[31] The respondent referred to the decision of the Court of Criminal Appeal in Etheridge v The State of Western Australia.[32]
3. I have considered the sentencing dispositions at first instance and on appeal in each of those cases. As was acknowledged in the appellant's submissions, only limited guidance may be obtained from the authorities because each sentencing disposition is so heavily fact specific. Two general themes may, however, be discerned. First, where the charge in respect of which bail has been granted is in respect of an offence of a more serious nature, the breach of bail will generally be regarded as more serious. Thus, if the offence in respect of which bail was granted was sufficiently serious to attract a sentence of imprisonment, then consideration will be given to the imposition of a custodial sentence for a related breach of bail offence. Secondly, the seriousness of the offence, and thus the severity of the sentence, will usually be proportionate to the duration of the failure to comply with the bail undertaking.
4. There are too few appellate authorities to establish customary sentencing patterns in respect of providing false personal details to a police officer. The respondent drew my attention to two cases in which sentences of imprisonment (in one case of 1 month and in the other of 2 months) had been imposed for the offence and not varied on appeal. In each case the sentences imposed for the false details offence were part of a larger sentencing exercise and there was no discussion of the sentences imposed for the false personal details offence.[33]

1. There were three particular reasons why the appellant's first breach of bail was a serious offence. First, the offence occurred six months after the appellant had been sentenced to suspended terms of imprisonment. It is reasonable for the magistrate to have concluded, as his Honour apparently did, that the appellant did not comply with her bail undertaking because she wished to avoid the term of imprisonment being activated. Second, independent of the possibility of the suspended sentences being activated, the appellant's assault on her mother was, as the magistrate found, 'a very serious offence' for which the appellant faced the prospect of a sentence of imprisonment. Third, the appellant remained at large for approximately six months and within that time made no effort to surrender herself into custody.
2. The second breach of bail offence was serious for largely the same reasons, though the period during which the appellant remained at large was some four months. Objectively, however, the second breach of bail offence may be regarded as more serious because it was the second breach of bail offence in respect of bail granted for the aggravated assault charge and it was a breach of bail granted in respect of the first breach of bail offence.
3. Turning to the false details offence - the seriousness of the appellant's offending was aggravated by her persistence in providing false details and refusing to disclose her identity. As recorded earlier the appellant provided two different false names and a false date of birth, and continued the deception until she was positively identified by her fingerprints. The offending was aggravated by the fact it occurred during a period in which she was not attending court in respect of her earlier serious offending. In my judgment, the appellant's persistence in providing false details means that the false details offence was a serious example of that offence.

1. The magistrate was provided with very little information about the appellant's personal circumstances. The paucity of information made the sentencing exercise more difficult. The information before the magistrate was limited to the appellant's age (27 at the time of the assault offence), that she was a mother with a daughter who was six years old at the time of the first breach of bail undertaking and that her daughter had at some point required medical treatment of an unspecified nature in Perth. The magistrate was told that the appellant suffered from mental health difficulties and his Honour accepted that was so. The magistrate accepted that the appellant had been the victim of violence and had spent some time in a women's refuge. The magistrate was aware from what had been said at earlier hearings that the appellant had been living with her aunt with whom she had a stable relationship.
2. The magistrate knew that the appellant had a criminal record comprised mainly of driving offences including:

(a) 15 offences of driving while not authorised to do so, plus associated offences such as driving an unlicensed vehicle or not wearing a seatbelt;

(c) breaching an intensive supervision order on the same date; and

(d) breaching a bail undertaking on 30 July 2013, for which the Appellant received a 3 month term of imprisonment (suspended).

1. Although the magistrate did take into account, as mitigating factors, the appellant's mental health issues and the fact she had experienced domestic violence, a difficulty that confronted his Honour was that there was no material put before him that attempted to explain how the difficulties suffered by the appellant, that is, her mental health difficulties, her child's requirement for hospital treatment or the domestic violence she suffered, related to the offending.
2. No application was made in the present application for leave to appeal to put forward additional material that addressed these issues. I note, however, that in the exercise of prosecutorial discretion no charge was preferred in respect of the breach of bail that occurred on 22 May 2019.

1. Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors. Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
2. I am satisfied that the seriousness of the appellant's breach of bail offences was such that it was open to the magistrate to conclude that imprisonment was the only appropriate sentencing disposition. I have referred at [48] - [50] to the factors that meant that the appellant's offending was serious. This was a case in which personal and general deterrence loomed large.
3. In my assessment, the magistrate was entitled to form the view that the appellant had reached the point where terms of imprisonment were the only option. It can be inferred from the magistrate's reasons that his Honour had concluded that the appellant had reached 'the point of last resort' (to use the appellant's counsel's phrase) when the appellant was sentenced to terms of imprisonment of nine months suspended for 12 months for the driving offences. The fact that terms of imprisonment were imposed for the breach of bail offences and the length of those terms were not unreasonable or plainly unjust.
4. Likewise I am satisfied that it was open to the magistrate to conclude that imprisonment was the only appropriate disposition in respect of the false details offence. I am not persuaded that the imprisonment or the term of two months was unreasonable or plainly unjust.
5. I refuse leave to appeal in respect of grounds 1 and 2.

Ground 3 - Inconsistency The parties submissions

1. The appellant submits that the sentences imposed in respect of the first and second breach of bail offences are objectively inconsistent and reveal implied error. The steps in the appellant's argument were as follows:

(a) the magistrate considered the first breach of bail offence to be more serious and reduced the sentence by 10% to arrive at a sentence of 2 months;

(b) the reduction for the guilty plea applied in respect of the second breach of bail was 25% and because, on the appellant's argument the magistrate considered this offence to be less serious, it should have resulted in a of less than 2 months.

(a) The magistrate's reasons do not reveal that his Honour considered the first breach of bail to be more serious than the second breach of bail.

(b) The apparent inconsistency is explicable by the magistrate's approach to totality as recorded in the passage of his Honour's reasons quoted at [32].

(c) The magistrate did not say each offence had been reduced by the same amount, or the same percentage, and there is no requirement that sentences which are reduced for totality be reduced uniformly. When totality comes into effect, it is of little importance how the ultimate aggregate is made up.

(d) The mere fact that the ultimate sentence imposed is the same for each breach of bail offence, notwithstanding the different discounts, does not establish implied error.

1. I am not persuaded that the magistrate made an error of the nature contended by the appellant largely for the reasons advanced by the respondent. First, I do not accept that it is implicit in the magistrate's sentencing remark that he accepted that the first breach of bail offence was more serious. And, as I have already observed, there are objective factors that support the view that the second breach of bail offence was more serious. Second, the apparent discrepancy of which the appellant complains is explicable by reference to the magistrate's approach to totality.
2. I refuse leave to appeal in respect of ground 3.

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

[19] Criminal Appeals Act 2004 (WA) s 9(1).

[20] Criminal Appeals Act 2004 (WA) s 9(2).

[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

[22] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J); Slade v The State of Western Australia [2019] WASCA 65 [36].

[23] Nguyen v The State of Western Australia [2019] WASCA 56 [17] (Buss P & Beech JA).

[24] The State of Western Australia v Delaney [2020] WASCA 93 [23](2).

[25] Bail Act 1982 (WA) s 51(6).

[26] Criminal Investigation (Identifying People) Act 2002 (WA) s 16(8).

[27] Edgill v Maguire [2013] WASC 472 [14] (Hall J)

[28] Indich v Bracknell [2005] WASC 225.

[29] Spratt v Canavan [2006] WASC 223.

[30] Kelly v Lockwood [2005] WASC 18.

[31] Edgill v Maguire [2013] WASC 472.

[32] Etheridge v The State of Western Australia [2004] WASCA 152.

[33] Lawson v The State of Western Australia [2018] WASCA 129 [106], endorsing two sentences each of 1 month's imprisonment; Ninyette v Holmes [2015] WASC 287 [50], endorsing a sentence of 2 months' imprisonment.