EDGILL -v- STILWELL [2016] WASC 246 (11 August 2016)

Fifth Respondent : Director of Public Prosecutions (WA)

Sixth Respondent : Director of Public Prosecutions (WA)

1 On 9 March 2016 in the Magistrates Court at Perth his Honour Magistrate Huston sentenced the appellant for 21 offences committed over a period between 21 February 2015 and 12 August 2015. The offences included driving without authority, possession of stolen or unlawfully obtained property, receiving, gaining benefits by fraud, criminal damage, stealing, breach of bail undertakings, trespass, causing a detriment by fraud and carrying an article with intent to cause fear. The appellant was sentenced to terms of imprisonment and fines totalling $4,500. The total effective sentence imposed on the appellant was 15 months' immediate imprisonment which was backdated to commence on 12 August 2015. The appellant was made eligible for parole.

2 The appellant applied to the court for leave to appeal against that sentence on four grounds. The appellant does not pursue ground 1. The remaining grounds of appeal are:

1. The learned sentencing magistrate erred in failing to give consideration to suspending the sentence of imprisonment imposed.
2. The learned sentencing magistrate erred in imposing a sentence for the offence of criminal damage that was, in all of the circumstances, manifestly excessive.
3. The learned sentencing magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.

3 The appeal notice was filed on 18 April 2016, 11 days out of time. The court may extend the time for commencing an appeal: Criminal Appeals Act 2004 (WA) s 10(3). The solicitor for the appellant, Natalie Sinton swore an affidavit which explained the delay. The delay is said to result from the fact that the appellant was granted legal aid on 14 March 2016 and by the time the transcript was received the appellant's solicitor was engaged in preparing for trial and did not immediately review it. When the appellant's solicitor did review the transcript the time to appeal had expired and the appellant's solicitor wished to consult two more senior members of Legal Aid's appeals team. After consulting with the more senior members of the appeal team the appeal notice was prepared and filed. The delay was relatively short and caused no prejudice to the respondent. The time for commencing the appeal will be extended to the date on which the application for leave to appeal was lodged.

4 The magistrate imposed a sentence of 6 months' imprisonment for criminal damage to a car window. The statement of facts in relation to that offence is as follows. The appellant approached a vehicle that was locked and unattended in a parking bay. He smashed a rear passenger window, reached inside and stole a grey jacket and left the area. He walked away with the jacket and discarded it some distance from the vehicle. There is no evidence of the value of the damage.

5 The appellant was sentenced to 3 months' imprisonment for the offence of trespass. The statement of facts is as follows. The victim was present at a residence having parked her vehicle inside the garage, leaving the vehicle unlocked and her handbag on the rear seat of the vehicle. The appellant entered the garage through an unlocked door, opened the rear passenger side door of the vehicle and removed the handbag from the rear seat.

6 The appellant was sentenced to 3 months' imprisonment for carrying an article with intent to cause fear. The statement of facts is as follows. The appellant was arrested at Oak Street train station for breaching a bail undertaking. A search revealed a knife with a blade of approximately 24 cm located on his person. The knife was located inside a sheath and was attached to his shorts. The appellant informed the police he carried the knife for his protection. The appellant informed the magistrate that he carried the knife for his protection because he had previously been put in a car and a gun put to his head.

7 The appellant was sentenced to 3 months' imprisonment for each of five offences of possession of stolen or unlawfully obtained property. In each case the appellant was found in possession of the property and admitted he knew it was stolen or unlawfully obtained.

8 His Honour ordered that each sentence of imprisonment be cumulative with the exception of the sentences for the offences of possession of stolen property which were to be served concurrently with each other but cumulatively on the other sentences. The total effective sentence was 15 months' imprisonment.

9 The appellant says that in imposing sentence the learned magistrate expressly rejected community based orders as adequately reflecting the seriousness of the offending conduct but did not consider whether a term of imprisonment should be suspended.

10 A court sentencing an offender may impose no sentence and release an offender or it may pass any of six forms of sentence, conditional release order, fine, community based order, intensive supervision order, suspended imprisonment or imprisonment: Sentencing Act 1995 (WA) (the Act) s 39(2). A court must not use a sentencing option unless satisfied that it is not appropriate to use any of the options listed before that option: s 39(3) of the Act. Thus, a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act. In this case the appellant says the appropriate sentencing option is a term of suspended imprisonment. The magistrate may only impose a term of immediate imprisonment if satisfied that it is not appropriate to impose a term of suspended imprisonment: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [13] (Gleeson CJ and Hayne J).

11 In Powell v The State of Western Australia [2010] WASC 54 Simmonds J said:

It also appears to me to be equally well established that a sentencing judge's failure to refer to a sentencing option below immediate imprisonment in the hierarchy in Sentencing Act 1995 (WA) s 39(2), including suspended imprisonment, is not necessarily an indication that he or she has overlooked that option in non-compliance with s 39(3): see Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA) referring to Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998) 6 - 7 (Franklyn J, with whom Malcolm CJ and Ipp J agreed); and Samuel [31] - [32].

Whether or not the failure to refer to a suspended sentence is an indication that such an option was overlooked in my view depends on what was apparent to the learned magistrate as a result of the sentencing hearing. If it were 'readily apparent' that suspended imprisonment was not 'realistically open', then a failure to refer to it expressly would not be an error; however, where it was an option that was 'realistically open', then it would 'usually be necessary for the sentencing judge to make some reference to why the less severe option was not appropriate': Samuel [34]. [41] [42].

12 In this case counsel for the appellant submitted that it was open to the court to deal with the offences by way of a community based order and if the court was of the view that that was not appropriate and the only appropriate disposition was a term of imprisonment then the court should consider a suspended term of imprisonment (ts 19). The prosecutor submitted:

But it's a sustained, continual pattern of behaviour over a significant period of time, and our position is that as a general and personal deterrence there should be an immediate term of imprisonment imposed, and whether your Honour takes - in matters of totality and discount backdates back to the time - recognising the time he's already spent in custody would be a matter for your Honour, but we would say that it needs to be an immediate term of imprisonment for those offences which carry terms of imprisonment (ts 22)

13 His Honour did not expressly advert to whether a suspended term of imprisonment was appropriate for any offence. The magistrate commenced his sentencing remarks by stating that the appellant would be required to serve terms of imprisonment for some of the offences. The magistrate stated that where the offence is so serious as to require the court to impose a term of imprisonment, the court must not impose that term unless the offending is so serious as to warrant that outcome. The magistrate said that some of the offences warranted imprisonment. His Honour then stated reasons why community based orders were not appropriate.

14 It should be found the magistrate did not consider suspension of the sentence unless it can be inferred from the sentencing remarks that he did consider a suspended term of imprisonment. Whether the terms used by the magistrate that the appellant must serve terms of imprisonment is to be taken as meaning that only immediate imprisonment is available in the circumstances is a matter of speculation and not inference.

15 Counsel for the appellant submitted at the hearing that for this ground to succeed it was necessary to show that the magistrate had not considered suspension of the term of imprisonment and establish that there was a substantial miscarriage of justice by reason of the error. Counsel for the appellant submitted that a substantial miscarriage of justice would have occurred if it could be shown that suspension of the term of imprisonment was open in the circumstances. Counsel for the respondent submitted that the court must be convinced that the sentence was so far outside the sentencing discretion so as to not be a proper exercise or a just exercise of the sentencing discretion to establish a substantial miscarriage of justice. I am persuaded that it is a substantial miscarriage of justice for a magistrate who has not considered suspending a term of imprisonment to impose a term of immediate imprisonment where it was open in the circumstances for imprisonment to be suspended.

Was a suspended term of imprisonment open in the circumstances

16 Section 39(2) of the Act contains the sentencing options open to a court. Under s 39(3) a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Therefore a sentence of immediate imprisonment is only open to a court if a term of suspended imprisonment or a term of conditionally suspended imprisonment is not appropriate in the circumstances. The term 'appropriate' in its statutory context signifies the conclusion reached by the decision-maker after the exercise of the sentencing discretion: Fogg v The State of Western Australia [2011] WASCA 11 [8] McLure P (Mazza JA agreeing).

17 The principles of sentencing are set out in s 6 of the Act. The sentence imposed on an offender must be commensurate with the seriousness of the offence: the Act s 6(1). The seriousness of the offence must be determined taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of the victim of the offence; and any aggravating factors and any mitigating factors: the Act s (6)(2). A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: the Act s 6(4). In concluding that it is open to suspend a term of imprisonment the court must consider all the circumstances: Dinsdale v The Queen [13] [16]; Samuel v The State of Western Australia [2004] WASCA 154 [35].

18 The maximum penalty on summary conviction was 3 years' imprisonment for the criminal damage offence, 2 years' imprisonment for the offence of carrying an article with intent to cause fear, 12 months' imprisonment for the offence of trespass and 2 years' imprisonment on each offence of possession of stolen or unlawfully obtained property.

19 The appellant's offending was serious but not within the most serious category of offending for offences of that nature. The offending as a whole demonstrated ongoing criminal conduct and a disregard for the property rights of others. The appellant was sentenced to a total effective sentence of 15 months' imprisonment in relation to 21 offences committed over a period of approximately six months. It must be noted that the appellant received fines for 13 of those charges. In relation to the offences of possession of stolen property, all five offences arose from the same search. The criminal damage offence involved no apparent planning, nor did the offence take any significant amount of time and although there is no evidence of the value of damage it is unlikely to be at the higher end of value for offences of criminal damage. In relation to the offence of carrying an article with intent to cause fear the appellant was not brandishing the weapon but had it tucked into his pants.

20 The appellant has a long history of offending similar to the offending the subject of this appeal. His prior history does not aggravate the offending for which the sentencing magistrate had to impose a sentence but he was not entitled to any mitigation for good antecedents. The appellant's history demonstrated that after having repeated opportunities to address his offending through community based orders and despite the imposition of imprisonment he continued to offend. The relevance of this is twofold. First, the appellant's demonstrated noncompliance made him a poor candidate for community supervision. Secondly, there was a real need for the sentence imposed to act as a personal deterrence. Having regard to the offences committed by the appellant general and personal deterrence and the protection of the community were factors which the sentencing magistrate was entitled, and indeed required, to give serious weight.

21 However, there are mitigating circumstances in this case. The strongest mitigating factor was his plea of guilty for which he received a discount of 25% pursuant to s 9AA of the Act. The appellant was at the time of offending 22 and 23 at the time of sentencing. That age is still relatively young enough that the offender's youth must be taken into account in sentencing. The magistrate also accepted that the offender had had difficulties as a child, that he had not had the support he might have hoped as a young person and that he had already spent 7 months in remand prior to sentencing.

22 In some cases the circumstances may be such that two or more options may be realistically open: Samuel v The State of Western Australia [2004] WASCA 154 [34] Roberts-Smith J (Malcolm CJ and Murray J agreeing); Fogg v The State of Western Australia [2011] WASCA 11 [9] McLure P (Mazza JA agreeing). I am satisfied that for the reasons given by the Magistrate that the seriousness of the offending is such that only a term of imprisonment can be justified. What remains to be considered in this case is whether it was open to the magistrate to suspend any term of imprisonment. A sentence of immediate imprisonment is a sentence of last resort. Although the circumstances of offending are serious, they are not of the most serious kind. The personal circumstances of the offender also suggest that while there is a strong need for personal deterrence there are also mitigating factors that must be considered. I am of the opinion that this is a case where reasonable minds may differ in the proper exercise of the sentencing discretion. I am persuaded in the circumstances in this case, weighing the factors to be taken into account, that it was open to impose a term of suspended imprisonment and such a sentence would have reflected the seriousness of the offending.

23 Leave to appeal on ground 2 of the appeal will be granted and the appeal will be allowed.

24 Ground 3 is that the sentence of 6 months' imprisonment for criminal damage in breaking a car window was manifestly excessive. The appellant says that the offence involved a single incident, involving no apparent planning, taking place over a matter of moments and in circumstances where the value of damage done was not provided to the court but it is unlikely to have been as significant as the damage in Howlett v Hesp [2012] WASC 351.

25 There is no tariff for offences of criminal damage because of the great variation in the facts and circumstances of these offences: Ward v The State of Western Australia [2011] WASCA 172, [84] (Buss JA). In this case there was a particular need for personal deterrence. The appellant had a previous conviction for criminal damage committed in almost identical circumstances. The appellant targeted an unoccupied car and smashed the window to gain access to the car for the purposes of stealing. The respondent submits, and I accept, that the appellant's intention in damaging the car window in order to steal items from the car owner aggravate the seriousness of the criminal damage offence, notwithstanding that the appellant was separately dealt with stealing the items. I am not satisfied that the sentence was manifestly excessive.

26 Ground 4 is that the aggregate sentence did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally. This ground alleges a breach of the first limb of the totality principle which requires that a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence bears a proper relationship to the total criminality involved in all of the offences viewed in their entirety and having regard to all of the relevant circumstances, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246, [26] (McLure JA with whom Steytler P and Miller JA agreed).

27 The maximum penalty on summary conviction was 3 years' imprisonment for the criminal damage offence, 2 years' imprisonment for the offence of carrying an article with intent to cause fear, 12 months' imprisonment for the offence of trespass and 2 years' imprisonment on each offence of possession of stolen or unlawfully obtained property.

28 The appellant's offending was serious but not within the most serious category of offending for offences of that nature. The offending as a whole demonstrated ongoing criminal conduct and a disregard for the property rights of others. The appellant was sentenced to a total effective sentence of 15 months' imprisonment in relation to 21 offences committed over a period of approximately six months. The appellant has a long history of offending similar to the offending the subject of this appeal. His prior history does not aggravate the offending for which the sentencing magistrate had to impose a sentence but he was not entitled to any mitigation for good antecedents. The strongest mitigating factor was his plea of guilty for which he received a discount of 25% pursuant to s 9AA of the Act.

29 The appellant's history demonstrated that after having repeated opportunities to address his offending through community based orders and despite the imposition of imprisonment he continued to offend. The relevance of this is twofold. First, the appellant's demonstrated noncompliance made him a poor candidate for community supervision. Secondly, there was a real need for the sentence imposed to act as a personal deterrence. Having regard to the offences committed by the appellant general and personal deterrence and the protection of the community were factors which the sentencing magistrate was entitled, and indeed required, to give serious weight.

30 My decision that a sentence of suspended imprisonment was open is not the same as a decision that a sentence of imprisonment was outside the range of sound discretionary judgment. Having regard to the objective seriousness of the offending conduct the total effective sentence of 15 months' imprisonment is not outside the range of a sound discretionary judgment. No miscarriage of justice has occurred in that respect. The sentence does not fall outside the range of a sound exercise of sentencing discretion.

31 At the hearing the appellant applied for leave to add a fifth ground of appeal and the respondent did not oppose that application. I granted leave to add a fifth ground of appeal. Ground 5 of the appeal is that there was a miscarriage of justice in that the learned sentencing magistrate was not advised of the appellant's true time in custody and that the sentence imposed ought to be backdated to 24 July 2015. The respondents submitted that the time spent by the accused in custody that was unknown to the magistrate would not have made any difference to the overall sentence imposed and merely that the sentence should have been backdated to an earlier time.

32 The original sentence was backdated to reflect the time that the appellant had spent in custody to 12 August 2015. However, as the parties have informed me, the magistrate was misinformed as to the time the appellant had actually spent in custody. The parties agreed that taking into account the time actually spent in custody, the sentence should be backdated to 24 July 2015. I am satisfied that the result of the magistrate not taking into account the extra 14 days that the accused had spent in custody resulted in a miscarriage of justice. Leave to appeal on ground 5 of the appeal will be granted and the sentence will be backdated to 29 July 2015.

33 It is open to the court to set aside or vary the decision of the magistrate and substitute the decision with the decision that should have been made by the court of summary jurisdiction: see Criminal Appeals Act s 14(c), (d). Where a sentence of imprisonment is suspended there is no power to backdate it: Zinga v Johnson [2012] WASC 216 [23] Hall J. Nor is it possible for a court to impose a sentence of imprisonment that is suspended when that period would for 6 months or less: the Act s 86. At the hearing, both counsel submitted that, taking into account time already served, it was open to me resentence the appellant and impose a sentence that corresponded to the time already spent in custody (ts 18, 20). Furthermore, I am persuaded that the original sentence was not backdated to reflect the full time spent by the appellant in custody. Section 41(1) of the Criminal Appeals Act allows a court which has decided to impose a sentence to order that the sentence is to be taken to have taken effect on a date before the date of the order. I believe the justice of the case requires me to sentence the appellant to a term of custody commensurate with the amount of time served.

34 I will resentence the appellant to a term of 384 days immediate imprisonment backdated to 24 July 2015 which will mean the appellant has now served his full sentence.

35 Leave to appeal will be granted on ground 2 and ground 5 of the appeal and the appeal will be allowed on ground 2 and ground 5. The appellant will be resentenced to an aggregate term of 384 days imprisonment backdated to 24 July 2015. The sentence of 6 months' imprisonment for criminal damage (charge AR 7212/15) will be set aside and in lieu thereof the appellant will be sentenced to a term of 3 months and 19 days imprisonment for the offence, cumulative upon the others terms of imprisonment. Those are a period of 3 months' cumulative for possession of stolen or unlawfully obtained property (PE 60571/15) and 3 months concurrent on four other charges of possession of stolen or unlawfully obtained property (PE 60572/15 60575/15), a period of 3 months' cumulative for trespass (PE 44640/15) and a period of 3 months' imprisonment cumulative for carrying an article with intent to cause fear (MI 8606/15).