File No : PE 17928 of 2007, PE 48536 of 2008, PE 48537 of 2008

Criminal law - Appeal against sentence - Immediate imprisonment imposed on unrepresented defendant following upon breach of community based order - Magistrate inadvertently misled as to the facts - Magistrate failed to advise appellant of possibility of imprisonment - Error established

Sentencing Act 1995 (WA), s 6, s 133

Cooling v Steel (1971) 2 SASR 249

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

Wood v Marsh [2003] WASCA 95

(This judgment was delivered extemporaneously on 20 April 2010 and has been edited from the transcript)

2 On 30 November 2009 the appellant pleaded guilty before the learned sentencing magistrate to breaching a community based order imposed on 19 March 2009 for offences of unlawful assault and assault occasioning bodily harm. His Honour exercised his discretion to resentence the appellant pursuant to s 133(1)(a)(iii) of the Sentencing Act 1995 (WA) and imposed 6 months' imprisonment for the unlawful assault and 12 months' imprisonment for the assault occasioning bodily harm. These sentences were ordered to be served concurrently, making a total sentence of 12 months' imprisonment. The appellant was made eligible for parole.

3 Briefly, the appeal must be allowed for three reasons. First, the learned sentencing magistrate was inadvertently misled as to the facts of the assault occasioning bodily harm. Second, although the appellant was self-represented on 30 November 2009, the learned sentencing magistrate failed to inform the appellant of the possibility that he would receive immediate terms of imprisonment and then to give the appellant the opportunity of obtaining legal advice and representation. Third, the learned sentencing magistrate failed to inform the appellant that he could put before the court any matter in mitigation.

4 I will in due course resentence the appellant. What follows are my detailed reasons for allowing the appeal.

5 Shane Stanford and Michael Anderson were in Northbridge on a bucks' night on 12 November 2006. At somewhere between 4.15 am and 4.30 am both men were standing on Parker Street outside a nightclub having a cigarette. The appellant approached Mr Stanford and Mr Anderson and asked for a smoke. This request was refused. An argument then commenced which unfortunately turned to violence.

6 The appellant punched Mr Anderson in the face, causing his nose to bleed. Mr Stanford then intervened. The appellant, who was at the time wearing a plaster cast on his left arm, then struck Mr Stanford to the head with that arm. Mr Stanford fell to the ground. Mr Anderson's injuries were quite minor and the appellant was charged with unlawful assault. However, Mr Stanford suffered serious head injuries including a fractured skull and some brain damage. The appellant was charged with grievous bodily harm.

(ii) Proceedings before Deputy Chief Magistrate Woods

7 The appellant was spoken to by police shortly after the incident. There was a considerable delay in the police investigation and the appellant was not charged with any offence until 7 August 2008. On 19 March 2009 the appellant appeared before Deputy Chief Magistrate Woods in the Perth Magistrates Court. The prosecution applied to amend the prosecution notice relating to the offence against Mr Stanford by downgrading it to an allegation of assault occasioning bodily harm. After this amendment was made, the appellant pleaded guilty to this offence and the offence against Mr Anderson.

8 The transcript of those proceedings shows that the facts that were read to her Honour made no mention whatsoever of the injuries that were suffered by Mr Stanford. The only reasonable conclusion for this is that it was decided by the Director of Public Prosecutions that the appellant was not criminally responsible for those injuries.

9 The appellant was, on this occasion, represented by counsel who made a plea in mitigation. His counsel told her Honour that at the time these offences occurred the appellant was prone to going into Northbridge, drinking too much and getting involved in fights. However, in the two years that followed he had turned his life around dramatically. He told her Honour that the appellant was in a strong and stable relationship with his girlfriend, he was in full-time employment and he had stopped drinking to the extent that he had been at the time of the offences.

10 Defence counsel acknowledged that after the offences were committed the appellant committed further offences including further offences of assault occasioning bodily harm on 29 March 2007. Defence counsel also acknowledged that on 10 April 2007 the appellant pleaded guilty in the District Court to a charge of rioting which occurred on 22 January 2005.

11 The prosecutor submitted, on behalf of the State, that although the offending was serious, a disposition other than imprisonment was appropriate. Her Honour's sentencing remarks are brief. She said:

Mr Saylor, in relation to this matter then I will impose a community based order. There has been water under the bridge since this offence was committed; that's not to say it's not a serious offence and this sort of behaviour is becoming far too prevalent in this area. A fine of the sort that would be required to reflect the seriousness is not within your capacity with your change of circumstances and so a community based order with some obligations to the community would be more appropriate.

That will be for a period of 15 months. On that there will be a work order that you complete 120 hours work. There will be a program requirement as well and whilst your drinking doesn't seem to be a habit at the moment, I will make an order for a program for them to assess in relation to alcohol if that need be or psychological counselling.

Those appointments will be arranged once the order is in place. There's $60 in costs to be paid of 48536 of 08 and I'll order forfeiture of the $500 on the conditional release order which was made in relation to 17928 of 07. Take a seat in the jury box and we'll get the paperwork done. Thank you. Thank you, Mr Allen.

(iii) The breach of the community based order

12 The appellant breached the community based order primarily by failing to adequately perform the work requirement; the appellant completed only 18 of the 120 hours he had been ordered to work. Further, he was directed to complete the Holyoake men's program in order to address alcohol and anger management issues but he refused to do so. Not surprisingly, the appellant was charged with breaching the community based order.

(iv) Proceedings before Chief Magistrate Heath

13 On 30 November 2009 the appellant appeared before Chief Magistrate Heath to be dealt with for the breach. The appellant appeared without a lawyer. The appellant admitted that he had breached the order. His Honour then heard from a community corrections officer, Ms Green. Ms Green told his Honour of the appellant's unsatisfactory performance on the order.

14 Ms Green then informed his Honour of the facts of the offences. Ms Green read to his Honour the facts that had been alleged by the prosecution on the original charge of grievous bodily harm on Mr Stanford. Although Ms Green noted that the charge relating to him had been downgraded from grievous bodily harm to assault occasioning bodily harm, she said as a result of the blow struck by the appellant 'Mr Stanford suffered a fractured skull, two blood clots on the brain and lacerations to his chin'. Further, Mr Stanford, she said, 'suffered bruising to the language centre of his brain and required treatment for problems with his speech and memory which had resulted from his injuries'.

15 Pausing here, it is obvious that the facts put to his Honour about Mr Stanford's injuries were much more serious than those put to the court on 19 March 2009. Although his Honour was told that the offence had been downgraded from grievous bodily harm to assault occasioning bodily harm, he was not told, as he should have been, the facts upon which her Honour sentenced the appellant.

16 I have no doubt that Ms Green was unaware of the facts that were put before Deputy Chief Magistrate Woods on 19 March 2009; her error was entirely inadvertent. Nevertheless, the error was significant because it left the learned sentencing magistrate with the erroneous impression that the appellant had caused Mr Stanford to suffer very serious injuries. The true position was that although Mr Stanford suffered these injuries, the appellant was not criminally responsible for them.

17 His Honour asked the appellant if there was any reason why he had not complied with the orders. The appellant said, in effect, that he had onerous commitments working as well as training and playing football. His Honour then immediately proceeded to deal with the appellant. He fined the appellant a hundred dollars for breaching the order and then said:

I will resentence you in relation to each of these matters. These were serious assaults it appears without any provocation on the part of the victims and as a result of your attack on them particularly Mr Stanford suffered serious injuries.

Your record is not a good one in terms of assaults and offences of violence. In those circumstances of an unprovoked assault it would seem that a term of imprisonment and a term of immediate imprisonment is now the only appropriate alternative given your failure to comply with a community based order and your unwillingness to participate in anything that would assist with your rehabilitation.

In relation to the assault occasioning bodily harm, you will be sentenced to 12 months' imprisonment. In relation to the simple assault, 6 months' imprisonment, those terms to be served concurrently so it's a total of 12 months' imprisonment and I will make your eligible for parole.

18 At the initial hearing of the appeal I gave leave for the grounds of appeal to be amended.

19 The grounds of appeal that were argued were as follows, omitting the particulars which accompanied each ground:

1. His Honour erred in that he failed to appraise himself of mitigating factors under s 6(2)(d) of the Sentencing Act thereby imposing a sentence that was manifestly excessive;
2. His Honour erred in failing to consider all sentencing options as required under s 6(4) of the Sentencing Act, therefore imposing a sentence that was manifestly excessive;
3. The sentence imposed by his Honour was manifestly excessive;
4. His Honour erred in law in not ensuring the appellant, being self represented, understood his position and was given the opportunity to put all relevant matters before the court.

20 None of these grounds of appeal complained that the appellant was sentenced on an erroneous factual basis. Today, I have given leave to the appellant to include a fifth ground of appeal being: his Honour erred in fact in sentencing the appellant on the basis that he was criminally responsible for inflicting serious head injuries upon Mr Stanford.

21 A court's power to deal with a person who breaches a community order, which term includes a community based order, (Sentencing Act s 4), are set out in s 133 of the Sentencing Act. Relevantly to this case, that section is in these terms:

(1) A court that may make an order under this section in respect of a person who is or was subject to a CRO or community order may -

(a) if the CRO or community order is then enforced do one of the following:

(i) confirm the CRO or community order,

(ii) amend the CRO or community order,

(iii) cancel the CRO or community order and sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence.

22 His Honour chose to cancel the order and resentence the appellant or, to use the words in the statute, sentence him 'in any manner the court could if it had just convicted the person of that offence'. This expression simply means that the appellant may be sentenced afresh. Where a court resentences a person pursuant to s 133(1)(a)(iii) of the Sentencing Act, the court must have regard to the sentencing principles set out in s 6 - s 8 of the Sentencing Act.

23 The court may have regard to the person's performance on the order when deciding whether he or she may be an appropriate candidate for some form of community supervision. Further, the court may have regard to any fact, mitigating or aggravating, which occurred after the imposition of the original sentence.

24 The state has conceded, correctly in my view, grounds 1, 4 and 5. In my opinion, those grounds have been made out.

25 It is convenient to deal with ground 4 first. As Wheeler J observed in The State of Western Australia v Landers [2000] WASCA 125; [2000] 22 WAR 278, 279:

There are 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 brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take.

26 In Wood v Marsh [2003] WASCA 95 Malcolm CJ (with whom Murray & Anderson JJ agreed), cited with approval the statement made by Wells J in Cooling v Steel (1971) 2 SASR 249, 249 - 250 as to the correct approach a court should take when an unrepresented person appears before it and pleads guilty to an offence. That approach requires a court to ensure that the person is appraised of their rights and specifically that he or she is told of:

(a) the ability to obtain legal advice and representation;

(b) the right to seek a reasonable adjournment to obtain that advice or representation;

(c) the seriousness of the charge and of the penalties that may be imposed, especially where there is a risk of being sentenced to a term of imprisonment; and

(d) the ability to dispute or comment upon the facts alleged by the prosecutor.

To these I would add that the court is required to ensure that the defendant is aware that he or she may put before the court any matter in mitigation. With great respect to the learned sentencing magistrate, he overlooked all of these matters.

27 Where an unrepresented person comes before a court and admits a breach of an order which may make the person liable to be resentenced, he or she should be informed of this possibility, especially where an offender may be sentenced to a term of imprisonment. The court should then give the person an opportunity to obtain legal advice and representation.

28 In resentencing the person, the court must consider the general principles of sentencing set out in s 6 - s 8 of the Sentencing Act. The proceedings are not restricted to the reasons why the order was breached.

29 In my opinion, the appellant was not appraised of his rights. I do not think that he properly understood the nature of the proceedings, nor was he given an adequate opportunity to consider what course he might take. For these reasons I uphold ground 4.

30 With respect to ground 5, it is apparent that his Honour was inadvertently misled as to the appellant's criminal responsibility for the injuries that Mr Stanford sustained. As a result, the appellant was sentenced on a significantly more serious set of facts than he ought to have been. I have no doubt, based on his Honour's sentencing remarks that the facts as alleged before him were very influential to his decision to immediately imprison the appellant. I uphold ground 5.

31 With respect to ground 1, as I have mentioned earlier, the appellant was not told by the learned sentencing magistrate that he was free to put general matters in mitigation to the court. He should have been given this opportunity. I uphold ground 1.

32 In light of my decision to uphold grounds 1, 4 and 5 it is unnecessary for me to consider grounds 2 and 3. I uphold grounds 1, 4 and 5. I allow the appeal. I quash the sentences imposed by the learned sentencing magistrate on 30 November 2009.

33 The parties agree that I should resentence the appellant now rather than remit the matter to the Magistrates Court. I agree and I will resentence the appellant shortly.