Criminal law - Appeal against sentence - Plea of guilty to taking part in a riot - Self represented 20-year-old first offender - Sentence of 8 months immediate imprisonment - Whether a failure to give sufficient weight to mitigating factors - Whether the appellant should have been informed that a sentence of immediate imprisonment was likely and provided with an opportunity of legal representation before that sentence was imposed

Appeal allowed and suspended term of imprisonment substituted

Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11

Cooling v Steel (1971) 2 SASR 249

Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315

Franks v Police [1998] SASC 6897

Mical v Ward [2003] WASCA 149

State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278

Wood v Marsh [2003] WASCA 95

Ainsworth v "D" (A Child) (1992) 7 WAR 102

Chan (1989) 38 A Crim R 337

Etrelezis v The Queen [2001] WASCA 327

Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 3 April 1998

Johnson v Hayter [2001] WASCA 118

Latham v The Queen [2000] WASCA 338

R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999

R v Caird (1970) 54 Cr App R 499

R v McCormack [1981] VicRp 11; [1981] VR 104

R v Nevermann (1989) 43 A Crim R 347

Ravi-Pinto v Power, unreported; SCt of WA (Murray J); Library No 930647; 26 November 1993

1 BLAXELL J: This is an appeal from the decision of the Chief Magistrate in the Magistrates' Court at Perth on 28 November 2006 sentencing the appellant to 8 months immediate imprisonment for an offence of taking part in a riot. On 6 December 2006 the appellant was granted leave to appeal from that sentence on the following ground:

"1. The learned Magistrate erred in deciding that immediate imprisonment was the only appropriate option having regard to the appellant's youth, plea of guilty, lack of any prior record and previous good character."

2 On the hearing of the appeal, leave was also granted in respect of the following additional ground:

"2. The learned Magistrate erred in failing to observe the requirements of procedural fairness by not affording the appellant the opportunity to obtain legal representation and in failing to adequately warn the appellant that his Honour was contemplating a term of imprisonment."

3 The statement of material facts as read out to the court was as follows:

"At about 2.30am on Thursday the 16th of November 2006, the accused was in the Base Lounge Bar, in Lake Street, Northbridge.

The accused was called by his cousin and asked to come outside because a fight was brewing.

The accused went out into the street and joined a large group of acquaintances. An argument started between that group and another group assembled. Soon after a fight erupted which escalated into a riot.

The incident began with two males fighting each other but escalated into several fights between the two groups.

The accused assisted one of these groups. He looked in a nearby bin trying to arm himself with a bottle.

The fighting moved into the grassed area at the corner of James and Lake Street, Northbridge. The accused picked up a shoe and threw it into a group fighting on the ground. Punches were being thrown, people were being kicked and bottles were being thrown.

The fighting continued across James Street, towards Effies Kebab Shop. Several chairs were picked up and thrown.

The accused and his group ran down James Street and regrouped in Mountain Terrace. They emptied rubbish bins [and] armed themselves with bottles. The accused picked up four bottles and ran back towards James Street, to engage in the fighting. The other party had also regrouped. They armed themselves with chairs and bottle[s] and walked down the centre of James Street, towards Mountain Terrace.

The two groups met at the corner of James Street and Mountain Terrace, Northbridge. Dozens of bottles were thrown towards each other.

The actions of the group scared and endangered onlookers and significantly disturbed the peace. Vehicles were prevented from driving down the street. Shop keepers locked themselves in the safety of their premises and people in the street ran to avoid being hit with bottles. The event lasted approximately 20 minutes before police arrived and the crowd dispersed.

The accused was identified by video surveillance. On Wednesday the 22nd of November 2006, he was located outside the Leederville Hotel and conveyed to Perth City Detectives Office. He participated in a video record of interview and admitted his role. In explanation he stated he wanted to help his cousin and did not want to leave him.

He was arrested and charged and bailed to appear on this charge."

4 The proceedings at the time of sentence were very brief, and the transcript shows that when the appellant's matter was called on, the following took place:

"HIS HONOUR: Mr Yassin, there's the one charge against you. Are you in a position to enter a plea today or would you like a remand to get some legal advice.

MR YASSIN: Can you repeat that again, please?

HIS HONOUR: Okay. There's one charge against you, of participating in a riot.

MR YASSIN: Yeah.

HIS HONOUR: Do you wish to enter a plea to the charge today, to say guilty or not guilty, or do you want to remand it so that you can talk to a lawyer and get some legal advice?

MR YASSIN: No, the thing is, I already do know that I'm guilty, I've seen the video - -

HIS HONOUR: Mm.

MR YASSIN: - - so there's no point in saying I'm not guilty.

HIS HONOUR: All right. But do you want a lawyer to represent you before you get sentenced?

MR YASSIN: No, it's all right.

HIS HONOUR: All right. So you wish to plead guilty to the charge?

MR YASSIN: Yep."

5 The prosecutor then read out the facts (as set out above), after which the following exchange occurred:

"HIS HONOUR: Yes, stand up, please, Mr Yassin. You've heard what I've been told, agree that's what happened?

MR YASSIN: Yeah, but the thing is I did not hurt anybody in that incident that happened.

HIS HONOUR: Mm hm.

MR YASSIN: And the cop even agreed with me. We already went through the surveillance and stuff, you know, and we - - I've seen myself in there and the cop, he picked me up from Leederville, and you know, he told me, 'You want to come with me.' If I knew I did something wrong, I would have said no, you know, but I kept - - I went with him because I knew I did nothing wrong. And at the time of the incident I was intoxicated and he knew about it.

HIS HONOUR: Mm.

MR YASSIN: At that time when Base Nightclub fight was happening, I'd been arrested at that time, you know. I'd been caught by the cops that came at the - - after 20 minutes later, but they let me off because they thought I wasn't in the fight then. I told them then I did not hit nobody and there was nothing on my shirt, no blood, nothing, so I talk to them and they said, 'Okay, we will let you go.' And then after that I got caught at Leederville. That's why I went with the cops and explained everything and to see the video.

HIS HONOUR: Yes. Mr Yassin, they're very serious offences. Is there a reason that you participated in this riot?

MR YASSIN: Yeah, there is a reason. My cousin was outside and he called me out from the nightclub as he said and I didn't know where he went, so I thought he was in there so I ran in there because I was thinking that he would be in there getting injured and stuff. And he just finished his Year 12, you know, and he just graduated. We were just trying to have fun at that time.

HIS HONOUR: Yes. Look, participating in a riot is a crime that carries imprisonment of up to 5 years. As a summary conviction penalty it carries imprisonment up to 2 years and a fine of up to $24,000.

MR YASSIN: But this is the - -

HIS HONOUR: The - -

MR YASSIN: - - this is the first time anything ever happen to me like this.

HIS HONOUR: I can appreciate that, but the - - by the same token, you participated in a riot. It's not just disorderly conduct and it's not just a fight outside, it's an ongoing incident that you've searched for weapons, you've regrouped, it's a serious matter. And notwithstanding that you have no prior convictions yourself and you pleaded guilty at the first opportunity, I think the seriousness of the charge, the threat to the peace and good order of the community, demands that there be a severe penalty for this kind of conduct, one that reflects the community's abhorrence with such conduct, and sends a clear message to those that might think they can fight and riot in the streets. And I think the only appropriate penalty that reflects that is a term of immediate imprisonment.

The maximum, as a summary conviction penalty is 2 years. I think that the appropriate penalty prior to the amendments to the Sentencing Act would have been 12 months' imprisonment. I'm required to reduce that by one third in accordance with the Sentencing Act Amendment Act and accordingly you will now be sentenced to 8 months' imprisonment.

You may stand down in custody.

MR YASSIN: Can I please get a fine?

HIS HONOUR: No.

MR YASSIN: Please, because I can't go to prison. Please, I have my life ahead of me, I just - -

HIS HONOUR: I'm sorry."

6 The appellant was born in Somalia on 1 January 1986 and was 20 years of age when sentenced. His family migrated to Australia as refugees in 1999 and he is the eldest of six children (the other children being aged between 10 and 18 years).

7 Following his arrival in Australia the appellant enrolled at the Islamic College and also studied English which he is now able to speak, read and write fluently. He has also become an Australian citizen. After completing his secondary schooling in 2005 he enrolled at Edith Cowan University for a bridging course. However he suspended these studies after six months because he wanted to work and buy a car.

8 During 2006 the appellant obtained a security guard licence and worked part-time as a security guard earning approximately $800 per fortnight. It has been his intention to return to his university studies in 2007 with a view to qualifying for a business or mining and resources course.

9 As the appellant's father now lives overseas, he plays a significant role within his family assisting with the care of the younger children. His mother works full-time at a laundry between 6 am and 4 pm, and consequently he has taken on the responsibility of getting the four youngest children to school. This involves driving them to the Islamic College in another suburb.

10 The appellant is active within the local Somalian community and he has produced character references from the presidents of each of the Waberi Youth Association Inc and the Somali Women's Association of Western Australia. These references describe the appellant as a conscientious, hard working young man with a reputation for responsible behaviour. It is also clear that the appellant is genuinely remorseful at having committed the offence.

11 The appellant pleaded guilty on his first appearance to the charge. He appeared that day as one of eight defendants charged with involvement in the riot but the others were all represented by duty counsel and did not enter pleas. According to the appellant, he did himself not seek legal advice or representation because he had been "told by the police who arrested me that I would probably get a fine". (However, the arresting officer does not recall any such conversation and is sure that he did not tell the appellant that he would be fined).

12 A significant feature of the sentencing process in the present case is that the Magistrate did not seek any information as to the appellant's personal background and circumstances. In this regard, all that was known to the court was the appellant's age (which was apparent from the prosecution notice) and the fact that he had no previous convictions. It follows that the Magistrate considered the offence to be so serious that it warranted a term of immediate imprisonment regardless of the appellant's personal circumstances.

13 The appellant contends by his first ground of appeal that the Magistrate was in error in coming to this view. The underlying contention of the second ground of appeal is that the appellant was denied a proper opportunity to make submissions as to penalty. The second ground also relies upon a line of authorities in South Australia to the effect that:

"It is well settled that in the case of a self-represented defendant, where a Magistrate is contemplating an order of imprisonment, the defendant should be informed of that and be given an opportunity of seeking legal advice." (Franks v Police [1998] SASC 6897.)

14 Similarly, in Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11, Wicks J at [18] stated:

" ... if a custodial sentence is in contemplation, as was the case here, the learned Magistrate should have warned the appellant [of] the possibility that he might receive such a sentence and offered to grant him an adjournment to enable him to obtain the services of counsel or at least, the services of a solicitor, to advise him generally on his situation."

15 It was in much the same vein that in the earlier South Australian case of Cooling v Steel (1971) 2 SASR 249 at 250, Wells J noted that:

"It is imperative ... that courts of summary jurisdiction should follow practices that will avoid the possibility that a party ... should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him."

16 In this State, Wheeler J in State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278 at 279 has referred to Cooling v Steel as one of:

" ... many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced."

17 The decisions in Landers and in Cooling v Steel were referred to with approval by the Full Court in Wood v Marsh [2003] WASCA 95. Furthermore, in Mical v Ward [2003] WASCA 149 Barker J relied upon all of these authorities in coming to the conclusion that in the particular circumstances of that case:

" ... I have a real reservation about the extent to which the Court brought to the attention of the appellant his entitlement to seek legal advice or representation because of the seriousness of the charge and the real possibility that a sentence of imprisonment might be imposed following his plea of guilty. While the appellant, as the matter proceeded, was accorded the right to dispute material facts alleged by the prosecutor, once those facts were found by the learned Magistrate ... nothing further was said by the Court before the sentence of imprisonment was imposed to apprise the appellant of the seriousness of the offence and the likelihood that he might suffer a sentence of imprisonment; nor was he afforded the opportunity to seek an adjournment to obtain legal advice or to have counsel or a solicitor make further representations on his behalf before sentence was imposed."

18 It would therefore seem that in this jurisdiction (as in South Australia) it is "well settled" that a Magistrate considering a sentence of immediate imprisonment for a self-represented offender should first inform the defendant of that prospect and offer the opportunity of an adjournment for the purpose of legal advice. Of course, in respect of minor offences in some remote areas of the State where there is no real hope of a defendant obtaining legal advice, it might be impractical to take this step. However, in the present instance, it would have been very easy for the Magistrate to have stood the matter down until later in the day to enable the appellant to consult duty counsel. By then the appellant would probably have changed his mind about obtaining legal advice given that his expectations of a fine had evaporated.

19 The late involvement of duty counsel would also have had the benefit of bringing all of the appellant's personal circumstances to the attention of the court before sentence was passed. Some of those circumstances were undoubtedly mitigatory in effect, and s 6(2) of the Sentencing Act required that they be taken into account. Even if the Magistrate had remained of the opinion that a sentence of immediate imprisonment was the only appropriate sentence, this additional information may have had some impact on the length of the term imposed.

20 As it was, the failure to offer the appellant a final opportunity for legal advice meant that he was unable "to give a good account of himself" and denied the chance of making full submissions in mitigation of penalty. For these reasons, I consider that the second ground of appeal must be upheld.

21 Turning now to the first ground of appeal, the fact that the appellant was denied the opportunity of presenting additional mitigatory material does not necessarily mean that the sentence imposed was wrong. However, the appropriateness of that sentence must now be reconsidered in light of all relevant factors including those of which the court failed to inform itself.

22 Dealing firstly with the seriousness of the offence, s 65 of the Criminal Code provides that any person who takes part in a riot is guilty of a crime and is liable to imprisonment for 5 years. The summary conviction penalty for the offence is imprisonment for 2 years and a fine of $24,000.

23 There is no established pattern of sentencing for the offence because convictions are something of a rarity. However, the maximum penalty provided indicates that the law regards the offence of taking part in a riot as being in general less serious than other offences such as stealing (maximum 7 years' imprisonment), receiving (maximum 14 years), fraud (maximum 7 years), assaults occasioning bodily harm (maximum 7 years) and threats to kill (maximum 7 years).

24 As to the degree of culpability reflected by the particular circumstances of the present offence, it was obviously not at the top end of the scale of seriousness for such offences. Although it is not known how many participants there were altogether, the facts suggest that in terms of numbers, it was a moderately sized riot. It is not alleged that the appellant himself committed any act of violence other than throwing a shoe. Nevertheless, the gravamen of the offence is the appellant's encouragement of violent and disorderly behaviour by other people by joining and gathering with them. A mitigating feature is that the acts of violence in fact committed by those other people did not result in any significant injuries or property damage.

25 Aggravating features of the offence include the fact that the appellant was armed with bottles, the prolonged period of violent confrontation between the two groups, the hindrance of traffic, and the need felt by "shopkeepers" to lock their doors for their own protection.

26 A further aggravating feature was the brazen nature of the riot, occurring as it did for a period of approximately 20 minutes along the main thoroughfare of Northbridge. Notwithstanding that the event took place at approximately 2.30 am on a week day, it seriously inconvenienced some members of the public and also had potential to endanger them. In these circumstances it was necessary that the sentence imposed should reflect a strong element of general deterrence.

27 Mitigating factors included the appellant's young age, his previous good character and lack of convictions, his remorse, and his plea of guilty at the earliest opportunity. Account must also be taken of the potential for a term of immediate imprisonment to disrupt the appellant's university studies and to cause some limited hardship to immediate members of his family.

28 When regard is had to all of these factors I consider that a sentence of 8 months' imprisonment fell within the range of a sound discretion and was entirely appropriate. Although the transcript shows that the Magistrate did not expressly consider whether or not this term could be suspended, his Honour is very experienced and obviously was well aware of the two stepped process mandated by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315, 334 - 336. Accordingly, his Honour must have come to the view that the appellant's degree of culpability and the seriousness of the offence so outweighed all conceivable personal considerations as to require that the term of imprisonment be served immediately.

29 With all due respect to that view, I consider it to be wrong. The appellant had committed a moderately serious offence of participating in a riot, was a first offender, and had excellent antecedents. In my view, when these factors are considered collectively they do not compel the imposition of the ultimate sentence of last resort. A suspended term of imprisonment would be entirely commensurate with the seriousness of the offence having regard to all aggravating and mitigating factors. It follows that the first ground of appeal should also be upheld.

30 For the above reasons the decision sentencing the appellant to 8 months' immediate imprisonment will be set aside. In substitution for that sentence the appellant will be sentenced to 8 months' imprisonment suspended for a period of 1 year from 28 November 2006.

31 The following general remarks do not form part of my reasons for decision. It seems to me that the present case is a classic example of the type of injustice that can result from an overcrowded list. In this regard, I am reliably informed that the first appearances list at the Perth Magistrates' Court usually comprises between 60 and 100, and sometimes up to 150 individual defendants. A large number of these defendants are subject to multiple charges, and many have disputed bail applications.

32 Of necessity, a Magistrate faced with the onerous task of completing such a list must deal with it efficiently, and without any waste of time. However, there is a danger in too much efficiency because justice is not a commodity that can be readily adapted to a process line. In any list, there will always be at least a few marginal cases in which a just result will depend upon the Magistrate having sufficient time to reflect upon the appropriate outcome. This is especially so when the Magistrate has no way of knowing in advance which cases will require such particular attention.

33 Any decision to send a young first offender to prison is a life changing event which requires careful consideration. In the present instance, it is my respectful opinion that the duration of the appellant's appearance was insufficient for the court to properly inform itself of all relevant circumstances and to come to a considered view as to the appropriate sentence.

34 Accordingly, I suggest that further thought should be given to the management of long lists with a view to ensuring that individual matters in need of special attention receive the necessary time. Unless this occurs, it will not be possible for the Magistrates' Court to achieve and maintain consistently high standards of justice in all cases.