File No : PE 65492 of 2009, PE 65493 of 2009, PE 65494 of 2009, PE 65495 of 2009, PE 65496 of 2009, PE 65497 of 2009, PE 65498 of 2009, PE 65499 of 2009, PE 65500 of 2009

Criminal law - Appeal against sentence - Offences of criminal damage by graffiti - Pleas of guilty - Term of imprisonment for 7 months imposed - Whether sentencing magistrate's discretion miscarried - Turns on own facts

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Gherardi v Pedder [2007] WASC 242

Jones v Sadler [2009] WASC 405

The State of Western Australia v Gibbs [2009] WASCA 7

1 On 4 December 2009 the appellant pleaded guilty in the Magistrates Court to eight counts of criminal damage by graffiti. He was sentenced to a term of 7 months' imprisonment on each count, to be served concurrently. He appealed that sentence. He was granted bail pending the appeal: Jones v Sadler [2009] WASC 405.

2 Prior to the hearing of this appeal, the respondent conceded that the learned sentencing magistrate's discretion had miscarried. At the hearing of the appeal on 5 March 2010 I allowed the appeal and resentenced the appellant to a community based order for a term of 12 months with a community service requirement of 80 hours. I stated that I would provide reasons for allowing the appeal later. These are my reasons.

The charges and the circumstances of the offence

3 The appellant was charged with eight counts of unlawful damage contrary to s 445 of the Criminal Code (WA). The property damaged was, in six cases, a brick wall; in one case, a traffic light power control box; and in the remaining case, a security roller door. Values of the property were stated in each case. The values totalled $900.

4 The appellant was also charged with one count of possessing a permanent black felt tip marker with the intention of using it to cause damage consisting of graffiti. He was fined $500 in relation to that offence. There is no appeal against that sentence.

5 All the offences were committed in the central business district of Perth on 10 September 2009 with a co-offender. He and his co-offender used the permanent black felt tip marker to draw symbols on walls and other places. In some cases, the appellant acted as a lookout while the co-offender drew graffiti symbols on the wall or property.

6 At the time of sentencing, the appellant was aged 23.

7 He had a record that included two previous convictions of a similar nature. As will be seen, this appeared to loom large in the approach taken by the learned magistrate to sentencing.

8 On 2 March 2006 the appellant had been convicted in the Perth Magistrates Court of one count of marking, painting or writing anything on a conveyance or facility contrary to the Public Transport Authority Regulations 2003. A fine of $250 was imposed.

9 On 26 April 2005 the appellant had been convicted of one offence of damage by graffiti and fined $200. That offence related to using paint on the toilet wall of a hotel.

10 The appellant had not previously been imprisoned or subject to any community based or intensive supervision order. His most recent conviction was the offence in March 2006.

11 At the time that he was sentenced, and at the time of the hearing of the appeal, the appellant was in a stable relationship and was working part-time with a company called Venture Ads. His work with that company involved putting up posters at bus shelters and cleaning up graffiti off those shelters. I will say more about this work later. He was also working part-time as a disc jockey. He was living with his parents and was able to pay a fine.

12 When the matter came before the learned sentencing magistrate on 4 December 2009, the appellant entered pleas of guilty on all counts. It was common ground that he pleaded guilty at the first opportunity.

13 Counsel for the appellant submitted to the magistrate that the appellant was aware that his behaviour was unacceptable, referring to the work done by him with Venture Ads. Counsel submitted that this work had caused the appellant to realise the damage, expense and inconvenience caused by his behaviour.

14 Counsel referred to the appellant's personal circumstances and submitted that a fine would be appropriate. In response, the magistrate stated that he had been fined before for graffiti. Counsel responded that the appellant says that he realises he is too old now to be continually making the same mistakes and that he is taking steps to address that. The magistrate then stated that:

I have in mind a term of imprisonment. There is a concern in the community about this type of damage. All the councils around the metropolitan area and beyond spend thousands of dollars having to clean up after these people.

While there are more cameras around now, it is still difficult to detect, and I think that a deterrent penalty needs to be imposed, to not only deter him but to send a message to others in the community that if they get caught then they are likely to suffer the consequences (ts 4 - 5).

15 Counsel next submitted that perhaps a community based order with a community work requirement might be appropriate. The magistrate responded that 'that doesn't send a message to those that cause this sort of damage' (ts 5).

16 The prosecutor submitted that a deterrent penalty was called for and that the circumstances warranted a term of imprisonment.

17 The magistrate then made the following statement:

I caught a train into town the other day, and every window of that train had been vandalised, and this is not the same as that but it is similar. It is people defacing property. The Criminal Code has in mind imprisonment for this sort of offence. It provides for a penalty of 12 months' imprisonment or a fine of $12,000. Imprisonment is mentioned before the fine, and the accused has two prior convictions... where he was fined $200 on one and 250 on another. They are paltry penalties for this sort of thing (ts 5).

18 In response, counsel submitted that those offences occurred in 2006 while the appellant was still young, and that he had seen the error of his ways and has taken steps to realise the damage that his conduct caused to the community and the expense to the community. Counsel also pointed out that the appellant had pleaded guilty at the earliest opportunity. He submitted that imprisonment was not appropriate, but if the court was minded to order a term of imprisonment, the court should consider suspending the term of imprisonment. The magistrate then sentenced the appellant as follows:

You know, I think there needs to be a deterrent penalty. We are having some international event take place next year, as I understand, and there will be this sort of - I just can't understand the mentality of someone, particularly of his age. It's very hard to - or detecting the bits on the fences is difficult.

Yes. Just stand up, Mr Jones. I don't understand the mentality of people who go around like you and your friend have done, vandalising walls and other items around the city. It's behaviour that concerns every law-abiding citizen. They come into town and see this scribble. You only have to catch the train and see the vandalism that takes place on railway stations and on the trains themselves. As I said, I had first-hand experience of that recently and people out there are not getting the message.

My view is that this type of offence calls for a deterrent penalty, and that means in my view imprisonment. So what I propose to do is on each of the eight damage charges you will be sentenced to seven months' imprisonment. Those terms will be concurrent, and on the possession of the marker pen you will be fined $500. Yes. That's all.

19 The grounds of appeal were drafted before a transcript of the hearing became available. The grounds are in the following terms:

1. The learned magistrate erred in law by failing to give adequate consideration to sentencing options other than immediate imprisonment and failed to give adequate consideration to suspending the sentence of imprisonment.
2. The learned magistrate erred in law in imposing a sentence for the offending that was manifestly excessive, considering sentencing standards for offending of this type, the circumstances of the offences and the personal circumstances of the offender.

20 Ground 1 is, perhaps, not happily drafted in that it complains of a failure to give adequate consideration. A ground framed in those terms is difficult to establish. Failure to give sufficient weight to a relevant sentencing consideration only gives rise to an express error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; The State of Western Australia v Gibbs [2009] WASCA 7 [52]. However, in this case it was common ground that the reasons stated by the sentencing magistrate for excluding options other than an immediate term of imprisonment revealed error. Thus, it was agreed that the appeal should succeed on ground 1, understood in that way.

21 As I have said, prior to the hearing of the appeal the respondent conceded ground 1 of appeal, but did not concede ground 2. However, in the course of the hearing of the appeal, counsel for the respondent conceded that on a proper exercise of the sentencing discretion, imprisonment was not an available option. In substance, therefore, the respondent conceded ground 2. In any event, in my opinion, both ground 1 and ground 2 succeed.

22 Section 6(4) of the Sentencing Act 1995 (WA) requires that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community otherwise requires it. The court is not permitted to sentence a person to a term of imprisonment unless it has excluded all of the other sentencing options: s 39(3).

23 In this case, in my respectful opinion, the substance of the learned magistrate's reasons, read with the preceding interchange with counsel, involved reasoning on the following lines:

(b) because the appellant had been fined in the past and reoffended, a fine was not an adequate deterrent for the appellant; and

(c) nothing short of immediate imprisonment would serve the necessary general deterrent element.

24 His Honour stated that a community based order with a community work requirement would not send a message to those who have caused graffiti damage (ts 5). Further, he stated that 'this type of offence calls for a deterrent penalty and that means, in my view, imprisonment' (ts 6). Bearing in mind the circumstances of the offence and the appellant's personal circumstances, the need to provide a deterrent penalty was, in my respectful opinion, an inadequate reason for excluding a community based order. Moreover, the need to provide a deterrent penalty was, in the same circumstances, an inadequate reason for rejecting a suspension of the term of imprisonment, if the threshold required by s 6(4) had been reached. It cannot be said that a suspended term of imprisonment is not a deterrent.

25 In summary, in my opinion, the need for deterrence was not capable of justifying the exclusion of all penalties in this case other than immediate imprisonment.

26 Consequently, ground 1 was, as the respondent conceded, made out.

27 In my opinion, ground 2 succeeded in that in this case it was not open to the sentencing magistrate to reach the conclusion that the seriousness of the offence meant that only imprisonment could be justified. Nor was it open to conclude that the protection of the community required imprisonment.

28 It is relevant that the appellant had, by the time he was sentenced, commenced employment in a job which had given him a real appreciation of the expense and inconvenience caused by graffiti. He had also pleaded guilty at the first opportunity.

29 The maximum penalty for the appellant's offences was, at the relevant time, 12 months' imprisonment. (Since then, the maximum has been increased, but as the respondent conceded, that does not bear upon this case.)

30 The appellant was convicted of offences of unlawfully destroying or damaging property. Consequently, the nature of the offence is not restricted to damage by graffiti. That is relevant to an appreciation of where the appellant's offending sits in the scale of seriousness of the range of offences under s 445 of the Criminal Code. There will undoubtedly be a range of circumstances in which an offence under this section may be substantially more serious than the offences committed by the appellant. For example, some offences against s 445 will result in the destruction of the property in question. That is not to deny the serious elements of the offences committed by the appellant. Many members of the community see graffiti as visual pollution. Graffiti undoubtedly causes considerable inconvenience and expense.

31 It is difficult to find much material regarding sentences customarily observed with respect to offences of this kind.

32 The court was informed that in Murray v Winston and Murray v Wright SJA 1087 of 2008 and SJA 1088 of 2008, the Magistrates Court imposed a total of 7 months' imprisonment for wilful damage, trespass and unlawful damage. Both of the damage offences related to graffiti damage. The respondent conceded the appeal and the offender was resentenced to a 12-month conditional release order.

33 In Gherardi v Pedder [2007] WASC 242 a $3,000 fine for a graffiti damage offence was reduced on appeal to $1,500. The circumstances of that offence, being a single offence, were materially different from the present case.

34 The respondent did not point to any case (apart from Murray v Winston) in which a term of imprisonment had been imposed for graffiti offences.

35 In my opinion, as I think the respondent conceded, on a proper exercise of discretion it was not open to impose a sentence of immediate imprisonment.

36 For these reasons, I upheld grounds 1 and 2 of the appeal.

37 On 5 March 2010 I resentenced the appellant and gave oral reasons. In summary, I took into account the matters set out above, together with a reference from the appellant's employer. That reference reinforced the submission already made that the appellant had learned about the social costs of graffiti offending. The reference also spoke in glowing terms of the appellant's attitude to his work. In all the circumstances, I consider it very unlikely that the appellant will reoffend.

38 I also took into account that the appellant had spent 11 days in custody before he was granted bail pending this appeal. This was the appellant's first experience of imprisonment.

39 I sentenced the appellant to a community based order for a term of 12 months, with a community service requirement of 80 hours.