DEARNLEY -v- DAMON [2007] WASC 124 (12 June 2007)

1. The learned Magistrate erred in law in imposing a single sentence of suspended imprisonment for the two matters for which the Respondent had previously been placed on sentences of suspended imprisonment.
2. The learned Magistrate erred in law in failing to make available to the prosecution a copy of the pre-sentence report upon which the learned Magistrate relied.
3. The learned Magistrate erred in law in failing to state his reasons for not ordering the Respondent to serve the term of imprisonment previously suspended.
4. The learned Magistrate erred in law by failing to order the Respondent to serve the term of imprisonment previously suspended in circumstances where it was not unjust to do so.
5. In the alternative to ground 5, the sentence imposed was so inadequate as to manifest error."

At the hearing of the appeal, counsel for the appellant advised the Court that she did not intend to pursue ground 2 because there was some indication that the Magistrate had in fact imposed the sentence of 16 months' imprisonment, suspended for 2 years, in relation to each of the offences, to be served concurrently.

3 On 24 May 2004, the respondent was sentenced for an offence committed on 19 May 2004 of driving a motor vehicle whilst legally disentitled to hold a driver's licence contrary to s 49(2)(a)(iii) of the RTA. For convenience I will refer to this as the first driving offence even though it was not the first offence of that type committed by the respondent. The respondent was sentenced to 12 months' imprisonment with parole, suspended for 2 years. At the time of sentencing, the Magistrate noted that the respondent had not been in court since 10 December 2001 and took into account that he had just had a heart operation and had no alcohol in his system when he was apprehended. The Magistrate also commented that the respondent was getting older and hopefully wiser.

4 On 31 January 2005, the respondent pleaded guilty to an offence committed on 17 September 2004 of driving a motor vehicle whilst legally disentitled to hold a driver's licence contrary to s 49(2)(a)(iii) of the RTA ("the second driving offence"). That offence constituted a breach of the suspended imprisonment order made on 24 May 2004. The respondent was sentenced to a term of 16 months' imprisonment without parole, suspended for 2 years, in relation to both offences of driving whilst legally disentitled to hold a driver's licence.

5 On 19 October 2006, the respondent appeared in the Magistrates Court on charges of possession of an offensive weapon contrary to s 8(1)(b) of the Weapons Act 1999 (WA), assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and possession of cannabis contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The charges had been listed for trial, but the respondent pleaded guilty to both charges following an amendment in relation to one of the charges. The conviction for these offences was a breach of the term of suspended imprisonment imposed on 31 January 2005. In relation to the offences the subject of that term of suspended imprisonment, the respondent was re-sentenced to a term of 16 months' imprisonment with parole, suspended for 2 years. It is this sentence which is the subject of appeal.

6 The circumstances of the offence of assault occasioning bodily harm were that at approximately 3 am on 19 May 2006 the respondent was asleep at home when he received a telephone call from his brother, who was at a nightclub, asking for assistance. As a result of the call, the respondent picked up a six-centimetre knife which he concealed in his jeans and went with another to the nightclub. Once there, the brother pointed out to the respondent the person with whom he had been having trouble. The respondent approached him, had a short conversation and then the complainant left the nightclub. A short time later, the respondent was told the complainant was out the front and was summoning the respondent for a fight. The respondent went outside and a fight ensued during which the complainant was punched numerous times about the head and body until he fell to the ground. The respondent continued to punch him until the two men were separated by crowd control staff. It can be seen that the assault occasioning bodily harm was a very serious offence of its type.

7 When the respondent was taken into custody one of the police officers noticed the knife in the back of his jeans. When asked to hand over the knife the respondent also declared a small stick of cannabis which was in his possession. The respondent participated in a videotaped record of interview in which he admitted the offences. However, he did not plead guilty until the morning of the trial.

8 The facts of the possession of cannabis with intent to sell or supply were that the police attended at the home of the respondent's mother. During a search of the premises, the police found in the laundry six plastic clip-seal bags each containing 28 grams of cannabis. The total weight of the cannabis was 158 grams. When interviewed, the respondent's mother indicated that the bags belonged to her son. When the respondent was interviewed, he stated that the cannabis was for his own use and that he had left the cannabis near the dryer, wrapped in a towel. In mitigation, the respondent's counsel submitted that the cannabis was used by the respondent as a stress-relief mechanism because he was unable to drink alcohol or take any other substances because of his heart condition. However, counsel stated that a small amount of the cannabis was to be sold to cover enough costs to support the respondent's habit.

9 At the time of sentencing, the court had the benefit of a pre-sentence report prepared by a Community Development Officer ("the PSR"). The report referred to the respondent's extensive criminal history as both a juvenile and adult offender, mainly for stealing motor vehicles and burglary offences. The report also referred to a conviction on 26 June 2006, within the period of the offending outlined above, for possession of a prohibited drug (cannabis) with intent to sell or supply. The respondent was fined $900 for that offence.

10 According to the author of the PSR, the respondent's response to supervision as a juvenile was generally poor and had no impact on his ability to reoffend. His response to adult supervision was no better. Prior to the suspended imprisonment order of 24 May 2004, on only one of the five occasions that the respondent was released into the community under supervision did he manage to successfully complete the order, and that was for a period of only seven months.

11 In relation to his personal circumstances, at the time of preparation of the report the respondent was 31 years old and living with his current partner of four years and their 2-year-old child. The respondent described the relationship as "pretty stable". The report also referred to the respondent's heart condition for which he was taking a medication called Warfarin on a daily basis. At the time of the preparation of the PSR, the respondent was attending Broome Regional Aboriginal Medical Services on a weekly basis for check-ups. The respondent's health needs were described in these terms: " ... apart from the mechanical valve he has in his heart he is otherwise fit". Although he has a heart condition, in the report it is noted that the respondent still has the occasional drink and smokes cigarettes on a daily basis. The respondent denied any illicit drug use.

"Damon is seen as a 31-year old institutionalised male with an extensive Court History; however it is noted that he has not been back before the Courts since 2001. It is also noted that despite his many past Court appearances, prior to March 2006 Damon has not been before the Courts for similar drug convictions or any type of drug related offences for that matter.

As stated earlier Damon does accept full responsibility for his actions and given his extensive Court History expects to be incarcerated today. Despite this Damon is hoping for some leniency from the Court on the basis that he has been of good behaviour for the last couple of years and has complied well with his most recent Parole supervision.

It would seem that Damon has matured considerably over the last few years and it appears that he is making a real effort not to re-offend; the Court may also take into consideration his good behaviour over the last couple of years. Despite his extensive Court History and negative response to supervision in the past the writer believes Damon has the capacity to comply with a community based sanction on this occasion. Community work however is not recommended given that Damon suffers from a heart condition. However given that it has been many years since Damon has come before the Court for the type of offences which have been his downfall in the past it would seem that Damon has matured and the writer suggests that he probably does not need any supervision at this point of time.

If the Court was considering a custodial penalty perhaps Damon would benefit more from a Suspended Imprisonment Order; this would serve as a constant reminder to him the consequences of further re-offending. If a term of imprisonment was inevitable, Damon may benefit from a period of Parole in the future."

With respect to the last paragraph, I note that the previous terms of suspended imprisonment were not a sufficient reminder of the consequences to prevent him from reoffending.

13 Having been referred to the PSR by the respondent's counsel, the Magistrate made this comment: "But putting him back in gaol, having an institutionalised prisoner would not really accomplish anything for society or for victims, for that matter of fact."

14 In the plea in mitigation, counsel for the respondent submitted that the respondent put the knife in the back of his shorts and then he forgot all about it. He further stated that the knife was not used in the fight and when it was pointed out to the respondent after the fight that the knife was in his pocket he threw it towards the police to get rid of it. In the submissions on sentence made by the prosecution, it was noted that the victim of the assault was rendered unconscious and that the respondent continued to assault the victim despite that fact. The prosecutor also questioned the credibility of the proposition that the respondent forgot he had the knife and attempted to submit that an inference could be drawn from the fact that he armed himself after being asked to assist his brother with his problem at the nightclub. Unfortunately, the Magistrate persistently interrupted the prosecutor, so the exact inference which the prosecution was submitting the Magistrate should draw was not precisely articulated. The Magistrate's interjections were to the effect that, as there had not been a trial, legally he was not entitled to draw any inference. However, that is not to say that the Magistrate was obliged to ignore the fact that, prior to responding to his brother's request for assistance, the respondent armed himself. Although the sentence with respect to the offence of assault occasioning bodily harm is not the subject of appeal, in my view, it is an aggravating factor that the respondent armed himself with a weapon before going to the nightclub, even if, for whatever reason, he did not ultimately resort to its use.

15 As noted above, the respondent was sentenced to a term of 16 months' imprisonment, suspended for 2 years, in relation to each of the driving offences, the sentences for which had been breached by the further offending. In relation to the assault occasioning bodily harm, the order made was a term of 9 months' imprisonment, suspended for 15 months, to be served concurrently with the sentence for the driving offences. For the possession of cannabis, a fine of $200 was imposed and for the possession of cannabis with intent, the order made was a fine of $500. For the offence of possessing an offensive weapon, the respondent was fined $200.

16 On any interpretation of the circumstances of some of the offences which resulted in the respondent being again dealt with for the driving offences, they were serious indeed. When committed by a person with a significant record of offending, the circumstances of the offence of assault occasioning bodily harm and the possession of the knife would, in my view, have justified a term of imprisonment. However, there is no appeal from the sentence imposed in relation to those offences. Nevertheless, in my view, it was of considerable relevance to the disposition of the driving offences that the "breaching" offences were far from being of a trivial or minor nature: see R v Holcroft [1996] QCA 478; [1997] 2 Qd R 392 at 402 per Fryberg J, who stated that the nature of the breach offence and its seriousness can be taken into account.

17 I propose to deal firstly with this ground, which alleges that the Magistrate erred in law in failing to make available to the prosecution a copy of the PSR upon which the learned Magistrate relied.

18 It is apparent from the affidavit of Craig Steven Haven, a Senior Police Prosecutor for the Kimberley District of Western Australia, sworn on 14 December 2006, that the failure to provide the prosecution with a copy of the PSR was neither an oversight nor an approach taken solely with respect to this matter. It was a continuation of a practice adopted by the particular Magistrate. Mr Haven deposes to the fact that the Kimberley District Magistrate, Magistrate Bloemen, has a firm rule that police prosecutors are not permitted access to pre-sentence reports or sentencing reports. Mr Haven states that on the basis of procedural fairness he has requested access to these reports on many occasions and his applications have been refused. On 23 October 2006 Mr Haven made an application for access to a pre-sentence report relying on the authority of "HAS" v The State of Western Australia [2005] WASCA 29, a decision of the Court of Appeal of Western Australia. The application was refused. Although in relation to the respondent's matters no application was made, I accept that this was because of the practice adopted by the Magistrate. The affidavit of Mr Haven does not indicate the rationale behind the approach taken by the Magistrate. Neither were counsel able to provide an explanation. It would appear that, in refusing access by the prosecution to the pre-sentence report, no explanation for refusing the request was given by the Magistrate.

19 The appellant submitted that the Magistrate clearly relied on the PSR in reaching his determination and hence the prosecution was entitled to have access to the information contained in it. I accept the proposition that the Magistrate relied on the PSR. That is evident from the comment made by the Magistrate in passing sentence that he found the PSR extremely helpful. On behalf of the respondent, it is conceded that the Magistrate erred in failing to make the PSR available to the prosecutor. Nevertheless, where the decision of the Court of Appeal in "HAS" v The State of Western Australia (supra) has been drawn to the Magistrate's attention and he has still declined to alter his approach, it is necessary to set out the reasons for the conclusion I have reached that the prosecution, whether represented by counsel or by a police prosecutor, is entitled to be provided with a copy of the pre-sentence report, subject to any conditions imposed by the Court, which would in almost all cases be the same conditions imposed on defence counsel.

20 Section 172 of the Criminal Procedure Act 2004 (WA) ("the CP Act") addresses the representation of parties to a case. Section 172(1) provides that a party to a case is personally entitled to appear before the court in order to present and conduct the party's case and to call, examine, cross-examine and re-examine witnesses. Although there is no express reference in s 172 to the sentencing process, as the sentencing process is an integral part of a criminal trial where there is a judgment of conviction, the logical extension of the right in a criminal matter to appear and conduct a party's case is a right to be heard on sentence. In my view, such a right would necessarily involve access to any material on which the judicial officer may rely.

21 Under s 172(3)(a)(i) of the CP Act and despite the provisions of the Legal Practice Act 2003 (WA), any entitlement of a party may be performed on a prosecutor's behalf in a court of summary jurisdiction by a police officer, provided the prosecutor is the State or a police officer acting in the course of his duty. Therefore, in the Magistrates Court, a police officer appearing on behalf of the prosecution where the prosecutor is the State or a police officer has the rights of a party and hence a right to be heard on all relevant issues. In this case, in relation to both driving offences the prosecutor, in the sense of the person or entity bringing the charge, was a police officer, as authorised by s 20(3)(iii) of the CP Act.

22 In order to properly fulfil the role of prosecutor, the police officer should be able to view or have access to all materials relied upon by the Magistrate and to make submissions thereon. In particular, any document or information provided to the defence must also be provided to the police officer acting as prosecutor.

23 I consider this view to be consistent with the terms of s 22(5) of the Sentencing Act 1995 (WA) which specifically provides for access to pre-sentence reports. Section 22(5) provides:

"A court may make a pre-sentence report available to the prosecutor and to the offender, on such conditions as it thinks fit."

Counsel for both the prosecution and the defence submitted that, because of the use of the term "may", there exists a discretion in the Court whether to provide to the parties a copy of the report. In that regard it is said that Roberts-Smith JA, who wrote the judgment in "HAS" v The State of Western Australia (supra), was in error in stating (at [55] and [59]) that sentencing reports must be made available to the prosecution and the offender (if self-represented) or their counsel and that the Sentencing Act 1995 gives a sentencing Judge no discretion in respect of a pre-sentence report ordered under s 20. I do not agree with the submission that there is a discretion to provide a pre-sentence report to the parties. Section 22(5) must be considered in its context. The effect of s 22(4) is that a written pre-sentence report must not be given to anyone other than the court by or for which it was ordered and the CEO. Consequently, the Court would not be entitled to provide a pre-sentence report to the parties without a specific statutory authority. Therefore, s 22(5) must be seen as allowing that which would otherwise not be allowed. On that basis, the inclusion of the term "may" does not confer a discretion, it confers a power.

24 The question of whether the word "may" imports an obligation rather than a discretion was discussed in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1970) 127 CLR 106 where the High Court was called on to construe the term "may allow" in the Income Tax Assessment Act 1936 (Cth). Windeyer J stated (at 134 - 135):

"In some contexts the word 'allow' in the phrase 'may allow' might enhance a discretion said to be embodied by the word 'may'. But not, I think, in this context. ... The question, which comes back to the words 'may allow', is not to be solved by concentrating on the word 'may' apart from its context. Still less is the question answered by saying that 'may' means 'shall'. While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it is given: it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. However, that general proposition is irrelevant in this case. Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?

This does not depend on the abstract meaning of the word 'may' but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes 'must'."

25 Windeyer J considered the decision of Jervis CJ in Macdougall v Paterson [1851] EngR 970; (1851) 11 CB 755 (at 773) to be directly applicable to the case before him, in particular the following words (at 135):

"We are of opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judges, but upon the proof of the particular case out of which such power arises."

26 The decision in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (supra) and in Macdougall v Paterson (supra) have been cited with approval and followed by the High Court on many occasions, for example in Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 at 345 and in Leach v The Queen [2007] HCA 3; (2007) 81 ALJR 598 where the majority stated (at [38]):

"It is true that s 19(5) [of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT)] says that the Court 'may refuse to fix a non-parole period' if satisfied of the matters set out in the provision. But it by no means follows that, if the Court is satisfied of those matters, it then has to exercise a discretion. Rather, s 19(5) is a provision of the kind considered in Finance Facilities Pty Ltd v Federal Commissioner of Taxation and Mitchell v The Queen. The word 'may' is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision."

27 I consider that the conclusion I have drawn that the use of the term "may" in s 22(5) of the Sentencing Act 1995 confers a power to be exercised in accordance with the precise terms of the provision is consistent with these authorities. On that basis, the effect of s 22(5) is to confer a power to give the report to someone other than the Court or the CEO. That power, having been conferred, must be complied with in accordance with the terms of s 22(5); that is, the report must be made available to the prosecutor and the offender.

28 In my view, that conclusion is also consistent with the decision of the Court of Appeal in "HAS" v The State of Western Australia (supra) (at [54]) where Roberts-Smith JA (with whom Malcolm CJ and Pullin JA agreed) referred to the statutory authority to order a pre-sentence report: s 20 Sentencing Act 1995. Relying on a number of authorities from other jurisdictions, his Honour concluded (at [55]) that sentencing reports generally, including pre-sentence reports, must be made available to the prosecution and the offender (if self-represented) or their counsel: see R v Carlstrom [1977] VicRp 44; [1977] VR 366; O'Keefe v Tankard [1989] VicRp 34; [1989] VR 371 at 381; Stanton v Dawson (1987) 31 A Crim R 104 at 110; Slattery v Davis [1993] NTSC 13; (1993) 65 A Crim R 116 at 123 per Kearney J. The principles of procedural fairness were a factor in the decision in these authorities.

29 Roberts-Smith JA acknowledged (at [56]) that care must be taken in referring to authorities from other jurisdictions because there is often a difference in the relevant statutory regimes. By way of example, his Honour referred to the decision in R v Webb [1971] VicRp 16; [1971] VR 147 where the Full Court of Victoria dealt with social welfare regulations which specifically conferred on the sentencing Judge a discretion to decide whether or not to disclose the relevant report to any party. It was in that context that Roberts-Smith JA observed (at [59]) that the Sentencing Act 1995 gives a sentencing Judge no such discretion. In my view, that observation is correct in that, compared with other jurisdictions, there is no express provision which provides that the sentencing Judge has a discretion whether or not to disclose a pre-sentence report to a party.

30 For these reasons, I consider that s 22(5) does not confer a discretion on a Judge to withhold a pre-sentence report from a party. Whether the result is based on common law requirements of procedural fairness and natural justice or on the principles of statutory construction, under the Sentencing Act 1995 both the prosecution and the defence are entitled to a copy of the pre-sentence report. Consequently, a pre-sentence report must be provided to both the prosecution and the defence, a result which is, in any event, consistent with the principles of procedural fairness. Further, it logically follows that if both parties are entitled to access such reports, they are entitled to make submissions thereon.

31 Because of the practice adopted by the Magistrate and continued by him, despite having the decision in "HAS" v The State of Western Australia (supra) drawn to his attention, I must emphasise that the decision in "HAS" v The State of Western Australia is binding on the Magistrate as is this decision.

32 The remaining grounds of appeal deal with allegations of error in relation to the sentence imposed.

33 This ground alleges error in imposing a new sentence of suspended imprisonment following a breach of the former suspended imprisonment.

34 Section 80(1)(a)-(d) of the Sentencing Act 1995 sets out the way in which the Court may deal with a person who commits an offence during the period of suspension of a term of imprisonment. The available options are these:

(a) The Court may order the person to serve the term or terms of imprisonment that were suspended;

(b) The Court may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less;

(c) Unless the suspension period has ended, the Court may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) The Court may fine the person not more than $6000 and make no order in respect of the suspended imprisonment.

35 A consideration of these options reveals that sentencing the person to a term of imprisonment, whether suspended or not, which is greater than the term originally imposed, is not an available option under s 80(1) of the Sentencing Act 1995. Under s 80(1)(c), it is only the suspension period not the sentence for the offence which may be altered. The rationale behind excluding the option of increasing the sentence is apparent. The term of imprisonment initially imposed is the term considered by the Court, in all the circumstances relevant to the offence and the offender, to be appropriate for the offence committed. The fact that a person has reoffended during any period of suspension of that term of imprisonment does not make the offence more serious or the offender deserving of a greater punishment for that offence. Therefore, reoffending during the period of suspension should not have the effect of increasing the term of imprisonment for the offence. However, the fact that a person has been under a sentence of suspended imprisonment for a period of time, in particular where that suspension is conditional on participating in programme requirements or being under supervision, the impact of that on the person may be taken into account by reducing the term of imprisonment. However, s 80(1)(b) only allows the sentence to be reduced if it is ordered to be served.

36 The original sentence imposed on the respondent for the first driving offence was a term of 12 months' imprisonment. The original sentence imposed on 31 January 2005 for the second driving offence was a term of 16 months' imprisonment. The commission of that offence triggered the operation of s 80 in relation to the first driving offence and the respondent was sentenced for the first driving offence to a term of 16 months' imprisonment, suspended. It can be seen from the terms of s 80(1), outlined above, that increasing the term of imprisonment for the first driving offence was not an option open to the Magistrate and he fell into error in doing so. Further, if the respondent was not to be fined under s 80(1)(d) or ordered to serve the whole or part of the term of imprisonment under s 80(1)(a) or s 80(1)(b), the only option was to order another period of suspension of not more than 24 months to commence on the day of sentence, as provided by s 80(1)(c). In my view, on each occasion on which the Magistrate dealt with the respondent for the second or third time with respect to the two driving offences, the only effect was that the 24-month period of suspension commenced anew. At the hearing of the appeal, counsel for the respondent agreed that the period of suspension restarted on each relevant occasion.

37 Clause 2 of sch 1 of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) provides that a court sentencing an offender to a fixed term of imprisonment must impose a term that is two-thirds of the fixed term the court would have imposed prior to the new legislative provisions. This requirement came into effect when the legislative provision allowing a one-third remission on sentences was repealed. Counsel for the appellant advised that the effect of the transitional provisions is that an offender sentenced to a term of imprisonment will not serve more time in custody than under the previous legislation.

38 The correct approach to the sentencing exercise under the transitional provisions is to first determine an appropriate sentence and then reduce it by one-third: Cooper v Yates [2005] WASC 34 at [15]; Bakdadi v O'Neill [2003] WASCA 267 at [5] and [8]. On that basis, in imposing on the respondent a term of imprisonment of 16 months, the sentence the Magistrate considered to be appropriate for the offence was imprisonment for 24 months. The statutory maximum penalty of imprisonment for an offence under s 49(2)(a)(iii) of the RTA is 18 months' imprisonment for a subsequent offence, as were both the first and second driving offences, as the respondent had previously committed a number of such offences. On that basis, the Magistrate clearly fell into error in imposing sentences of 16 months' imprisonment, suspended, in relation to both the first and second driving offences on each occasion such a penalty was imposed. Indeed, the respondent concedes that, as a result of the transitional provisions, the sentences imposed on each charge were in excess of the maximum available.

39 This ground of appeal alleges that the Magistrate fell into error in failing to provide reasons for not ordering that the original term of imprisonment be served.

40 Section 80(3) of the Sentencing Act 1995 provides that the court must make an order under s 80(1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. Section 80(1)(a) requires the court to order the offender to serve the term or terms of imprisonment that were suspended. Under s 80(4), if an order is not made under s 80(1)(a) the court is required to state its reasons for not doing so.

41 The only comments of the Magistrate explanatory of the sentences imposed for the two driving offences was that the respondent had basically kept himself clean since 2001 and that the respondent had been an institutionalised prisoner. As to the latter comment, its meaning and the relevance of that to the sentence imposed was not elaborated on. The Magistrate referred to a Victorian case which dwelt on the issue of institutionalised prisoners. The only decision of the Victorian Supreme Court which had been handed down at the time the remark was made, that this Court has been able to locate, is R v Nystrom, unreported; VicCA 37/97; 30 June 1997. Of course, I cannot be certain that this is the authority to which the Magistrate referred. In R v Nystrom (supra), the argument before the Court was that the Magistrate had paid insufficient regard to the rehabilitation of the appellant, who had been sentenced to a term of imprisonment for armed robbery, by failing to reduce his sentence to save him from becoming "institutionalised". There had been before the sentencing Judge a report from a clinical psychiatrist in which the view was expressed that any further period of imprisonment would have additional adverse effects upon the appellant's already blighted psychological development and would actually elevate the likelihood of him reoffending in the future. The appellant in that case had spent a great part of the years between 16 years and 23 years in adult prisons and had what the court described as "an astonishing criminal history". Whilst Winneke P (at 9) commented that "there is much to be said for the proposition that this applicant is in danger of becoming institutionalised", the Court unanimously rejected the appeal. The Court held that it could not be said that the Judge had disregarded the matters in the appellant's favour and the sentence was one that was open to the Judge to impose. In reaching that conclusion, Tadgell JA, with whom Winneke P and Batt JA agreed, noted certain countervailing considerations; in particular, the fact that the appellant had previously committed offences of the same type: (at 7).

42 The observation of the author of the PSR was that the respondent "is seen as a 31-year-old institutionalised male with an extensive Court History". It was not said that the respondent was likely to become institutionalised, something which, in appropriate circumstances, might lead the Court to consider an option other than further imprisonment. The respondent had already reached that point. Unfortunately, the Magistrate did not identify the basis upon which he concluded that suspending the terms of imprisonment imposed for the two driving offences could change the fact that the respondent was already institutionalised.

43 The appellant submits that the Magistrate does not appear to have considered s 80(4) of the Sentencing Act 1995 in that there is no direct reference to the section. The failure to mention the section would not cause concern if it were otherwise clear that the Magistrate was aware of the requirements of the section: see, for example, Ripper v Blakey [2002] WASCA 153 at [12] and [20] per Pullin JA. Unfortunately, there is nothing in the sentencing comments made by the Magistrate that allows me to conclude that he was indeed aware of the options open to him under s 80(1) or of his obligation to provide reasons for departing from s 80(1)(a).

44 I accept the submission of counsel that, in a busy court such as the Magistrates Court, it is not practicable or necessary to provide detailed reasons for decision. However, the obligation to provide reasons in these circumstances is a specific statutory obligation. In particular, the requirement is not simply to provide reasons for the sentence imposed, but to explain why it is considered unjust to make an order that the respondent serve the term of imprisonment. In my view, the comments made by the Magistrate do not address this issue and fall short of what is required to satisfy the obligation placed on him under s 80(4) of the Sentencing Act 1995. In that regard, the Magistrate fell into error.

45 It does not necessarily follow, however, that the failure to provide adequate reasons should result in the sentence being set aside, although in this case the fact that the term of imprisonment imposed exceeded the statutory maximum when the transitional provisions are applied, necessarily leads to that result.

46 I propose to deal with these grounds of appeal together, as they both essentially relate to the issue of whether the Magistrate erred in imposing the penalty that he did with respect to the two driving offences. In ground 5, the appellant alleges that the learned Magistrate erred in failing to order the respondent serve the term of imprisonment previously imposed for each offence. Ground 6 alleges that the sentences imposed were so inadequate as to manifest error. The only basis on which the sentences are said to be inadequate is that the term of imprisonment imposed should not have been suspended.

47 In R v Liddington (1997) 18 WAR 394, Malcolm CJ (at 398) and Steytler J (at 406) expressed the view that suspending a sentence was for the primary purpose of rehabilitation of the offender. However, as Steytler J noted (at 406), the prospect of rehabilitation is not the only relevant factor when considering whether or not to suspend a sentence of imprisonment nor should it be the determining factor. His Honour stated (at 406):

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby, (at 62 - 67); R v Kirk (1984) 6 Crim App R (S) 231; GP per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243)), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1994) 61 SASR 589 at 592; cf R v Percy (at 72 - 73)); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP per Murray J (at 234)).

That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case."

48 The offence of driving without a valid driver's licence is a serious offence as evidenced by the penalties prescribed by the legislature for the commission of the offence. In Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994, Murray J referred to the decision of Walsh J in Milentis v Chitty, unreported; CCA SCt of WA; Library No 7826; 4 September 1989 at 3 in the following terms (at 7 - 8):

"In that case his Honour had occasion to deal with such an offence as this and made for this Court the point which has long been accepted about the seriousness of this offence. His Honour mentioned that a licence to drive a motor vehicle is in a real sense a privilege. He said that those who have the benefit of that privilege are required to undertake their activities with due regard for the law and the general safety and protection of motorists. Those who fail in that regard lose the privilege of the capacity to drive. On that basis, as his Honour said, the law has always regarded the offence of driving whilst under disqualification as being a particularly serious offence, certainly in circumstances where it may be seen that the commission of the offence involves a willed defiance of the law, a wilful disobedience of the order of disqualification made on a former occasion by the court. I would take this opportunity to respectfully endorse and repeat those remarks."

See also Eldridge v Bates (1989) 51 SASR 532 at 533 per King CJ.

49 Decisions of the Court have consistently emphasised that where there is a long record of prior convictions for offences such as driving under the influence or without a licence, the defiance of the law which the offences demonstrate, and the need to protect the public, will require sentences which are specifically and generally a deterrent for similar behaviour: Calway v Wiebe unreported, Sct of WA; Library No 990001; 13 January 1999 per Miller J at 10 - 11; Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998, per Miller J at 16 - 17.

50 Miller J, in both Krakouer v Durka (supra) at 17, and in Calway v Wiebe (supra) at 9, made the following observation:

"What was said in Liddington is entirely consistent with the view of the majority of the Full Court of the Supreme Court of South Australia in Cadd (supra) and, in particular, the views of Doyle CJ, to which I have referred. Moreover, the views expressed by the majority in Cadd reflect the consistent line of authority in this Court, to which I earlier referred. That is, the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence, it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Whilst a sentence of suspended imprisonment will always be open in the particular circumstances of any case, it will be an unusual case where the circumstances of the offence support suspension. Cases such as those cited by Doyle CJ in Cadd (cases of genuine emergency; cases in which the driving is really trivial) may support suspension of the sentence, as may cases in which personal factors of rehabilitation of the offender and 'reasons militating in favour of an exercise of mercy'."

51 In Calway v Wiebe (supra), Miller J concluded that it was necessary to find something exceptional to justify the suspension of a term of imprisonment for an offence of driving under suspension or disqualification rather than requiring that the term of imprisonment be immediately served: at 10. However, in Cross v Cook [2001] WASCA 242 at [13] - [15] and in Mason v Morrison [2004] WASCA 181 at 10, following the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Miller J observed that this conclusion was doubtful in view of that decision and that it would be preferable to now say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may a court impose a sentence of immediate imprisonment. His Honour further noted that the emphasis tended to be the other way around before the decision in Dinsdale v The Queen. However, in Mason v Morrison (at 10 - 11) Miller J noted that since the High Court's decision, the South Australian Court of Criminal Appeal made reference in passing to Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 and clearly accepted that the case was still authority in South Australia for the proposition that it will be an unusual case where the circumstances of driving under disqualification support suspension of sentence.

52 I accept that suspension of a term of imprisonment is always open. However, in my opinion, where there is a significant record of prior convictions for offences of the same type and the offender has previously been given the benefit of suspension of imprisonment, it is necessary to identify some factor, either personal to the offender or in relation to the commission of the offence itself or of the "breaching" offence, which would justify suspending the term of imprisonment. Further, consistent with the terms of s 80 of the Sentencing Act 1995, where, as a result of reoffending, a person is again being dealt with for an offence for which he had been given a suspended sentence, in order to justify a further term of suspended imprisonment, that factor must be of such cogency to render it unjust to require that the term of imprisonment be served: see s 80(3).

53 Whilst the courts have acknowledged that there are circumstances in which it is proper to not make an order that a suspended term of imprisonment be served, it has been emphasised that the legislative policy which emerges from s 80 of the Sentencing Act 1995, and similar provisions in other jurisdictions, is that, prima facie, a court ought to order that a suspended term of imprisonment is served: Hall v The Queen (1999) 21 WAR 364 per Murray J at [34]; R v Holcroft [1996] QCA 478; [1997] 2 Qd R 392 at 397. The origin of this statement of legislative policy can found in the judgment of King CJ in R v Buckman (1988) 47 SASR 303 where his Honour stated (at 304):

"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of recognisance."

54 In R v Marston (1993) 60 SASR 320 King CJ repeated this statement of principle and added (at 322):

"It is of great importance that the courts adhere to that principle. Departure from it by the nonrevocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders."

55 It is against this background of legal principle and legislative policy that the sentences imposed by the Magistrate must be evaluated. Accordingly, it is necessary to consider, as far as one is able, the reasons behind the decision not to order that the respondent serve the terms of imprisonment imposed on him for the two offences the subject of this appeal. I have already referred to the comments made by the Magistrate in passing sentence. The proposition that the respondent had not offended since 2001 requires scrutiny because it appears to have played a substantial role in the decision not to order that the respondent serve the terms of imprisonment for the driving offences and to impose a further term of suspended imprisonment. In March and August of 2001, the respondent was sentenced to a number of terms of imprisonment for various offences. He was in prison from at least 6 August 2001 and was not released on parole until 29 December 2002. Any period of non-offending cannot reasonably be said to commence in 2001 as the respondent was not released from prison until December 2002. The respondent completed his parole period on 25 July 2003. Therefore, for the seven-month period following December 2002 when the respondent did not offend he was under parole supervision.

56 The respondent reoffended again on 19 May 2004 by committing one of the driving offences the subject of this appeal. The next offence, the other driving offence the subject of this appeal, was committed on 17 September 2004. The next offences, committed on 28 February 2006, were the respondent's first drug-related offences. Following that, the respondent committed the offences relating to the nightclub incident on 18 May 2006 and a further drug offence on 8 June 2006. It would seem that in 2005 the respondent did not offend.

57 It is, therefore, inaccurate to say that the respondent has not offended since 2001. The source of the statement that the respondent had not offended since 2001 may have been the Criminal History which has no convictions recorded between August 2001 and March 2006 and also the PSR which notes that the respondent "has not been back before the Court's since 2001. However, it is apparent that a term of 18 months' imprisonment was imposed in August 2001 and the PSR refers to the respondent's release on parole on 29 December 2002. The Magistrate was also aware that the respondent had offended on 24 May 2004 and 31 January 2005 because he was required to sentence the respondent for those offences because he had reoffended. The two driving offences also appear in the Certified Copy of Traffic Convictions. Consequently, as the respondent had clearly commenced offending again, the period during which the respondent did not offend becomes increasingly less significant with each offence.

58 Counsel for the respondent referred to the Magistrate's comment on one of the occasions the respondent was sentenced that in the Kimberley staying out of trouble even for a short period of time can be quite significant. Even if that general comment is an accurate assessment of the level of offending in the Kimberley region, and even though the Magistrate is entitled to consider all and any mitigating factors, the principles of sentencing remain the same throughout the State.

59 It is apparent that the nature of the respondent's offending changed after 2001 when he commenced committing drug offences. However, the respondent has committed motor vehicle related offences intermittently during the entire period of his offending. Dealing only with offences committed by the respondent as an adult, he has three prior convictions for driving without a driver's licence for which he was imprisoned on each occasions and three prior convictions for driving whilst his licence was suspended, receiving a term of imprisonment on each occasion. When the respondent's juvenile record is taken into account, he has more than 20 convictions for driving whilst under suspension.

60 I have attempted to determine whether it can be said that the respondent's level of offending has diminished since January 2003 when he was released on parole. Looking at the respondent's adult record, there are certainly periods in the past where no offences are recorded against him. It appears, however, that for much of those periods the respondent was serving terms of imprisonment. On balance, I think it is fair to say that the respondent's rate of offending has diminished somewhat. However, it cannot be said that his offending is minor and it remains the case that the respondent continues to offend despite repeatedly being given the benefit of having the terms of imprisonment imposed on him suspended and hence being aware that continuing to offend may result in him serving those terms of imprisonment. In R v Holcroft (supra), Lee J observed (at 397):

"A prison term is therefore imposed because it is perfectly justified, but its suspension, in whole or in part, because of all circumstances then prevailing, is conditional upon the offender mending his ways and leading a law-abiding life by not committing offences punishable by imprisonment."

The reduction by the respondent of his level of offending is a positive factor. However, in my view, it is not a response to the suspension of a term of imprisonment sufficient, of itself, to justify repeatedly suspending the term of imprisonment, if, indeed, it is a response to receiving a suspended term.

61 Despite the Magistrate's glowing comments about the PSR, I have difficulty in identifying any material in it which would make it unjust for the respondent to be required to serve the terms of imprisonment imposed on him for the driving offences. The respondent is stated to be 31-years-old and already institutionalised. His extensive history as both a juvenile and adult offender is noted as is his generally poor response to supervision orders and parole supervision. He was unemployed at the time of sentence, although he had been employed in the past. Apart from his mechanical heart valve he is said to be otherwise fit. Interestingly, the PSR states that the respondent accepted full responsibility for his actions and, given his extensive criminal history, he expected to imprisoned, hoping only for some leniency because of what he describes as his good behaviour for the last couple of years. The community corrections officer states that the respondent has matured considerably over the last few years. It would appear that this comment is based on the belief that the respondent "has made a real effort not to re-offend". Further, the author of the report draws the conclusion that the respondent "has the capacity to comply with a community based sanction on this occasion" despite his negative response to supervision in the past. The basis of that conclusion is unclear to me. Putting aside the respondent's criminal history, the respondent was before the court for having breached one order of suspended imprisonment on two separate occasions and another order on one occasion. In my view, there was no information in the report which would justify such optimism. The statement that the respondent would benefit from a suspended imprisonment order as it would serve as a constant reminder to him of the consequences of further reoffending overlooks the fact that suspending the terms of imprisonment had not on the previous occasions prevented the respondent from reoffending.

62 On behalf of the appellant, it is said that if a significant breach of a suspended sentence does not lead to its revocation, the suspended sentence would be deprived of its salutary quality and of its viability as a sentencing option: DPP v Burrow [2004] NSWSC 433 per Hidden J at [22]. It is also clear that, in relation to the first driving offence, again suspending the term of imprisonment when the respondent was dealt with on 31 January 2005 clearly did not act as a deterrent from reoffending.

63 Counsel for the appellant submits that because of the respondent's extensive record of driving under suspension and accompanying offending behaviour and the fact that the respondent has previously been imprisoned on a number of occasions for such offences, imposing further sentences of suspended imprisonment was manifestly inadequate and is outside the normal sentencing range. I am in complete agreement with that view. Further, there was, in my opinion, no basis upon which to conclude that again suspending the terms of imprisonment would have any greater rehabilitative effect on the respondent than suspending the terms on the previous occasion. In my opinion, for all the reasons identified by the appellant, it simply cannot be said that it would be unjust to order that the terms of imprisonment be served.

64 I have taken into account the importance of the discretion which resides in a Magistrate when passing sentence: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. However, I have formed the view that the Magistrate did indeed fall into error in placing undue emphasis on rehabilitation whilst giving little if any consideration to other aspects of the sentencing process such as punishment, deterrence and protection of the community. The respondent was treated with considerable lenience on the first occasion on which he reoffended whilst subject to a term of suspended imprisonment. There was no factor identified by counsel for the respondent, by the community corrections officer or by the Magistrate that would, in that and all the other circumstances, justify again suspending the sentence for these offences.

65 In view of my conclusion that the Magistrate erred in imposing the sentences that he did, both as to the terms of imprisonment and in suspending the terms of imprisonment, the appeal will be allowed and the sentences set aside. The appellant submits that, the decision of the learned Magistrate having been set aside, sentences of imprisonment should be imposed. In the alternative, the matters should be remitted to a differently constituted court for the respondent to be resentenced in accordance with s 80 of the Sentencing Act 1995. Although the respondent does not concede that the Magistrate fell into error in ordering that the term of imprisonment be suspended, as the error with respect to the length of the term of imprisonment is conceded, the respondent accepts that the sentence should be set aside. However, the respondent disputes the need to remit the matters to a differently constituted court.

66 In one sense, it is not necessary to remit the matter as all the sentencing material is available to me and, under s 14(d) of the Criminal Appeals Act 2004 (WA), this Court has the power to substitute a decision that should have been made by the court of summary jurisdiction. I believe it would be preferable that sentence be passed by this Court, however, this issue was overlooked at the hearing and hence counsel have not had the opportunity to be heard on whether I should now sentence the respondent. For that reason, I propose to remit the matter to the Magistrates Court.

67 Counsel for the appellant noted at the hearing that the suspended imprisonment orders which were made on 31 January 2005 for a period of 16 months would expire on 30 May 2007 and hence the sentencing options would be reduced if the respondent were to be resentenced after that date. I believe counsel misunderstands the terms of the sentence and the scope of the power to resentence following appeal. Firstly, the 16-month periods were the periods of imprisonment to be served and not the period of suspension which is the relevant period. Secondly, as I have noted above, I consider the effect of the sentences passed by the Magistrate was that the 24-month suspension period commenced to run, on each occasion, from the date on which the order was made. Finally, when a person is sentenced following appeal, the sentence takes effect as if it were made on the day the sentence appealed from was passed, unless the court directs otherwise.

68 On behalf of the respondent, the submission is made that this matter should be remitted to be heard by the same Magistrate because he is an experienced Magistrate who has been in charge of the Broome Court for a number of years and is aware of the needs and issues of the region. That may well be the case, but where the matter has been on appeal and the relevant factors are identified in the judgment of the Court, I am not persuaded that knowledge of the region is of particular importance.

69 Counsel for the prosecution has referred the Court to a number of decisions which deal with the desirability of a matter being heard before a differently constituted Court, but those authorities are based on findings of bias or the apprehension of bias. I do not consider that authorities on that issue provide assistance in circumstances where the Magistrate has fallen into error, but there is no suggestion of bias.

70 Having considered the competing submissions and all the circumstances of this case, I consider it would be preferable for the matter to be heard by another Magistrate.

71 In passing sentence, it will be important to recognise that this is a State appeal which puts an offender in jeopardy of punishment for a second time and as such it is conventional for the appellant court to impose a substituted sentence towards the lower end of the range of available sentences: Dinsdale v The Queen (supra) at [62]; R v Allpass (1993) 72 A Crim R 561. In the context of a sentence which must conform with s 80 of the Sentencing Act 1995, the impact of that principle would be to impose a term less than the term of imprisonment passed in relation to the offences, even if the period to be served is 6 months or less: s 80(1)(b).

72 For the reasons set out above, I would allow the appeal and remit both matters to the Magistrates Court to be heard by a different Magistrate.