GLASGOW -v- KRARUP [2016] WASC 418 (30 November 2016)

2 The appellant at the time of sentencing was serving a suspended term of 12 months' imprisonment, which was imposed on 11 January 2016 in respect to three burglary offences. As a consequence of the breach of that suspended sentence, the magistrate imposed a sentence of imprisonment of 12 months under s 80(1)(a) Sentencing Act 1995 (WA) in respect to the three burglary offences. I will refer to this as the suspended imprisonment offences. The sentences were made cumulative. The total effective sentence was, therefore, 16 months.

3 By an appeal notice on 5 October 2016, the appellant seeks leave to appeal against the sentence imposed. By consent notice dated 15 November 2016, the appellant sought to rely upon a second ground of appeal.

4 The appeal was filed out of time and, therefore, an extension is required. An affidavit was affirmed by the appellant's counsel which explains the circumstances of the delay. Whilst there was a delay in giving instructions to the Legal Aid Commission by the appellant, that delay was not inordinate, and his legal representative has acted diligently upon receiving the instructions. Accordingly, leave is granted for an extension of time to appeal.

5 On 11 January 2016 the facts in respect to the suspended term offences was accepted by the appellant at the sentencing hearing. The facts are as follows:

The burglary in Port Kennedy: 4.40 am the accused went to 371 Warnbro Sound Avenue, Port Kennedy. At the address he smashed a front glass door to gain entry into the building outside business hours. Once inside the building the accused has taken the petty cash from the business. Whilst doing this, the accused has cut himself on the front door and left blood at the scene which has been identified as his. He was subsequently interviewed on 18 March this year in regards to this matter. He made no comment. The petty cash tin contained $500. Further, 9 am on 9 September 2013, the accused attended Merredin Senior High School. The accused walked into a classroom that at that time was not occupied due to an assembly going on. The teacher has returned to a classroom and observed the accused in the classroom going through her drawer and holding a purse. The teacher has challenged him. He has just walked out of the classroom. The teacher followed the accused and observed him to get into a vehicle and drive off. He had no permission to be inside the school, or inside that classroom. The witness was able to obtain the registration of his vehicle, and the police have linked it to the accused. He was interviewed and made no comment in regards to that matter. Further, 9 am on 22 November 2013, the accused went to St Joseph's College in Spencer Park. He has entered the Cunningham Block. Once inside he has taken a purse belonging to the victim and stolen it. The accused was caught on CCTV footage. He was identified by that. He was later spoken to on 18 March and made no comment. When he was in the school he took a purse belonging to the victim. The breach of bail, your Honour, is just as per the complaint wording. He offered explanation, 'I just got out of prison in South Australia and just panicked, thought I will be going back inside'.

6 On 11 January 2016, the magistrate in his sentencing remarks in respect to the suspended imprisonment offences, referred to the appellant's long history of dishonesty which seem to be linked to his gambling problems. The magistrate determined that the only appropriate disposition in respect to the burglary offences was one of imprisonment, and therefore a term of 4 months was imposed in respect to each count. They were ordered to be cumulative.

7 The facts in respect of the breach offence were accepted by the appellant at the sentencing hearing on 22 August 2016. The facts are as follows:

[O]n 4.20 pm on 28 April of this year, the accused entered into a rental agreement with Avis Car Rentals at The Esplanade in Esperance. On 29 April and Saturday, 30 April, the accused extended the vehicle contract with Avis Car Rentals, return date of 12 May at 2.00 pm. Between 13 May and 29 May, your Honour, numerous attempts were made by Avis Car Rentals to contact the accused via phone. Numerous phone messages were left advising them that the vehicle contract had expired and that the vehicle be reported as a stolen motor vehicle if contact was not made with them. However, the accused did not return any of the calls. At 9.50 pm on 29 May the accused was stopped and spoken to in possession of the vehicle. He was arrested and conveyed to the Rockingham Detectives Office where he participated in an interview, making full admissions to knowing that the vehicle had been reported as stolen after his rental agreement had expired. He had no permission to continue to use the vehicle and he made no attempt to contact the victim, or to return the vehicle. His explanation was, 'I lost my job. My own car broke down. I had no money and was using it to sleep in as I had nowhere to live'.

8 On 22 August 2016 the magistrate, in respect of the breach offence made sentencing remarks as follows:

Mr Glasgow you were placed on a suspended term of imprisonment in January this year in relation to three burglaries committed, one in 2008 and two in 2013. That suspension, obviously, took into account the fact there was a gap in offending because your past record is not a good one in respect of the offences of dishonesty and included previous terms of imprisonment.

However, then you committed the further - this fresh offence of stealing a motor vehicle in May of this year when you hired a car and failed to return it. Your record was of little assistance other than the fact that there is a clear gap in offending. You entered pleas of guilty or plea of guilty to this charge at an early stage and you're certainly entitled to the maximum discount provided for in the Sentencing Act for that plea.

The real issue, though, is whether it is now - has there been anything that has arisen since the imposition of suspended term of imprisonment which would make it unjust for you to require to serve it. The only development seems to be that following your arrest on the steal motor vehicle matter, you have taken up residence with your parents and now have applied to become their carer. That appears to be something that has happened since the commission of the offence, but certainly something that has occurred since the imposition of the suspended term of imprisonment. And the presentence report and counsel have drawn my attention to the fact that there appears to be no one else that could adopt that role. In my view, however, that is not sufficient to make it unjust for you to be required to serve the term given that you have committed another offence of dishonesty whilst on a suspended term of imprisonment for such an offence.

Accordingly, each of the suspended terms will be triggered, giving a total of 12 months' imprisonment. I will impose 2 months cumulative in relation to the steal motor vehicle, making a total of 14 months' imprisonment. Given that is over the 12 month mark, I will make you eligible for parole in relation to the matter.

9 The notice had two grounds of appeal. Ground 1 being that the learned sentencing magistrate erred in concluding that it would not be unjust to order that the appellant serve all or part of the previously suspended sentence of imprisonment, having regard to all relevant circumstances, including those referable to the offender personally.

10 Ground 2 pleads that the learned sentencing magistrate erred in failing to give the appellant credit for the 31 days he had spent in custody in relation to the offence of stealing a motor vehicle.

11 During the hearing a further ground was relied upon by the appellant. I granted leave for the appellant to amend the appeal notice to rely upon a ground contending that the sentence imposed in respect to the breach offence was manifestly excessive. It is convenient to first consider ground 2.

12 Ground 2 contends that the magistrate failed to give the appropriate credit at sentencing for the time spent in custody by the appellant in relation to the breach offence of stealing a motor vehicle.

13 On 29 May 2016, the appellant was arrested and remanded in custody. On 28 June 2016 bail was granted. Accordingly, the appellant was in custody for 31 days. It was not open for the magistrate to backdate any suspended term of imprisonment pursuant to s 87 of the Sentencing Act (Dragon v The State of Western Australia [2008] WASCA 252). However, given that the appellant was held in custody in respect of the offence of stealing a motor vehicle, it was open for the magistrate to give appropriate credit for the time in custody. The magistrate did not consider the issue. At the time of sentencing, the prosecutor made no submissions that the appellant should not receive credit by backdating the commencement of the sentence imposed in respect to the breach offence.

14 The appellant contends that the issue was not considered by the magistrate. The respondent accepts that submission. Upon a reading of the transcript, it is clear that the magistrate did fail to take the time in custody into account. Accordingly, ground 2 is allowed.

15 Ground 3 contends that the sentence imposed in respect to stealing a motor vehicle was manifestly excessive. The ground, therefore, asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.

16 A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.

17 The maximum penalty for the offence in the summary jurisdiction for stealing a motor vehicle is 2 years in prison or a fine of $24,000. On indictment it is 7 years' imprisonment. There is no established range of sentences for stealing motor vehicle and, therefore, it is not possible to say the sentence imposed fell outside such a range. In any event, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion. Sentencing ranges can provide only general guidance.

18 Cases may assist in identifying the range of a sound sentencing discretion, but it is always necessary that the sentence imposed be one that is just in respect of the circumstances of the particular case. I am also mindful that consistency in sentencing is an important principle in sentencing. I consider that the circumstances of the offending, in respect of the breach offence, as somewhat unusual. In mitigation at the sentencing hearing, the appellant's circumstances were outlined to the magistrate.

19 The appellant was driving his own vehicle around the community looking for employment. On 28 April 2016, the appellant, after his own vehicle broke down, lawfully hired the rental vehicle from a private rental company. On 12 May 2016, at the expiry of the agreed rental period, he lawfully extended the agreement for a return date of 12 May 2016. The appellant continued to seek employment, during this stage he was sleeping in the vehicle.

20 At the expiry of the rental period on 12 May 2016, the appellant did not, at any stage, endeavour to surrender the vehicle. The appellant received phone calls and messages from the private rental company, but did not reply. Rather, he continued to drive the vehicle until apprehended by the police. The appellant's conduct was dishonest and deprived the owner of the use of the vehicle. That deprivation would have continued, but for the intervention of the police.

21 The appellant relies upon the case of Litt v Barlow (1992) 15 MVR 175. The offender in that case was convicted of driving a motor vehicle without previously obtaining the consent of the owner or person in lawful possession of the charge, contrary to s 89(1) of the Road Traffic Act 1974 (WA). The facts read to the court state:

The appellant failed to return a hire car which was lawfully hired. After 14 days the police apprehended the appellant who pleaded guilty to the charge. On appeal, the court determined that the term of imprisonment was not appropriate and set aside the original six month term of imprisonment and substituted the time served being one day less than five weeks as the sentence.

22 Similarly, in this case the appellant lawfully hired the motor vehicle. The appellant contacted the hire company who agreed to extend the contract. At the point of expiry, the appellant failed to act and neither extended the contract or returned the vehicle. The offence was completed. There are, of course, dissimilarities with this case.

23 In Litt v Barlow, the appellant had personal circumstances that the appellant does not share. Those circumstances involved her 18yearold daughter having given birth a week prior to the offending and the newborn having heart problems. Further, the appellant was subject to a different legislative scheme. The appellant was convicted under s 89(1) of the Road Traffic Act, which was a simple offence. In Litt v Barlow, the court ordered that the sentence be time served being one day short of five weeks.

24 The appellant has a history of offending and, relevantly, offences of dishonesty. The presentence report, dated 18 August 2016, outlines his offending history. In 2002, a suspended term of imprisonment was imposed for robbery. The appellant breached that suspended term and was imprisoned in 2004. The presentence report, as far as his personal circumstances, confirms that the appellant was 60 years of age, suffering from hearing loss and has commenced becoming the fulltime career to his parents.

25 The appellant has a history of gambling which appears to underlie his offences of dishonesty.

26 Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides the seriousness of the offence is such that only imprisonment can be justified.

27 I consider that the magistrate did not err in imposing a sentence of 2 months' imprisonment. However, that term should be backdated to take into account the 31 days served.

28 I now turn to ground 1, which is the gravamen of the appeal, being the contention the magistrate erred in concluding that it would not be unjust to order the appellant serve all or part of the previously suspended sentence of imprisonment.

29 Section 80(1) of the Sentencing Act provides:

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods -

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it 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, it 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) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

30 In considering the circumstances which have arisen since the imposition of the suspended term, the court may have regard to the length of the suspended imprisonment, the circumstances of the offence at which the suspended sentence was imposed and factors personal to the offender which may provide a context for the consideration of circumstances which have arisen since the suspended sentence was imposed: Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364.

31 Section 80(1) must be read with s 80(3) which provides:

A court must make an order under subsection (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.

32 The issue the appellate court is to determine therefore, is whether it was open to the magistrate at first instance not to decide that the order for the service of the suspended sentence would be unjust.

33 In Hall v The Queen, Murray J cited with approval the observations of the Queensland Court of Appeal in the R v Holcroft [1996] QCA 478; [1997] 2 Qd R 392 that a relevant consideration, and, indeed, often a significant determinative factor was the nature of the offences which gave rise to the need to consider activating the suspended term of imprisonment, particularly where they were trivial, committed late in the suspension period or did not themselves warrant punishment by imprisonment.

34 I am particularly mindful of the nature of the offence which gave rise to the need to consider the activation of the suspended sentence. I have already dealt with those unusual circumstances. I am mindful the breach offence was an offence of dishonesty. The circumstances of this offending, as I observed, are unusual.

35 The sentence imposed in respect to the breach offence is a relevant consideration in determining ground one. The offence of stealing a motor vehicle is not a trivial offence. However, this offending was at the lower end of possible seriousness for this type of offending. That this particular offence was at the lower end of that type of offending is reflected in the sentence imposed by the magistrate. This is a relevant consideration in determining the order to be made under s 80 of the Sentencing Act.

36 The appellant also relies on the circumstance that has arisen after the commencement of the suspended sentence being that he now is the carer for his ageing parents. He has also commenced residing with his parents. That he now resides with family and has taken on a significant responsibility, in itself, is a circumstance that has arisen that demonstrates the appellant has stability within his life.

37 As a general sentencing principle, hardship to the offender's family resulting from imprisonment is not a mitigating factor unless the particular circumstance is exceptional: Anderson v The State of Western Australia [No 3] [2014] WASCA 190.

38 The respondent contends that the fact of the impact on the family should be given little weight. I am still willing to give limited weight to the impact on the family. It was relied upon at sentencing as a factor in mitigation. The prosecutor did not challenge those circumstances relied upon at sentencing.

39 Much greater weight is to be given to the factors of residing with his parents and providing care which indicates taking responsibility and stability. This acceptance of responsibility and stability, evidenced by the caring role, is a circumstance that has arisen since the suspended sentence was imposed.

40 In discourse with Mr Murray, counsel for the respondent, the submission was made that the period under which the appellant had been taking this greater responsibility was limited to a period shorter than the actual period since the imposition of the term of the suspension of the period. That is so. However, it remains a factor and it must be given weight.

41 The other aspect is the appellant was 4 months into the 12 month suspension period. During that period the appellant did not breach a suspension. Whilst not a case of a breach very late into the suspension period, I am satisfied the appellant was making genuine attempts to meet his obligations under the sentence. It may be said the appellant was a reasonable distance into the period of suspension but certainly not late into that period. This is also a relevant factor.

42 After considering all relevant factors and applying s 80(3), I have determined that the magistrate erred in concluding that it would not be unjust to order that the appellant serve the entire previously suspended sentence. Accordingly, I would allow ground one and I would structure the sentence so the appellant is required to serve only part of the previous suspended term of imprisonment.

43 Given that the appeal is allowed on ground one and two it is open for me to resentence under s 41 of the Criminal Appeals Act 2004 (WA). I impose a sentence of 5 months on the suspended sentence counts but order that they be served concurrently. The effect is that the appellant must serve only part of the previous suspended sentence being 5 months' imprisonment. The sentence of 2 months' imprisonment imposed in respect of the breach offence will be cumulative. However, that 2 month term of imprisonment is backdated to commence on 22 July 2016. The previous total effective sentence is thereby reduced from 14 months to a total effective sentence of 7 months.