HILL -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2023] WASC 437 (14 November 2023)

1. The appellant relies upon two grounds of appeal in the following terms:[14]
   1. The learned sentencing Magistrate erred in categorising the appellant's offence as 'at the upper end of the range'.
   2. The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive as to type.
2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[15] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[16]
3. The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[17] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[18]
4. The Court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[19] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the Court determines that a different sentence should have been imposed.[20]

1. By ground two the appellant contends that the sentence imposed was manifestly excessive. 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 succeed on a ground pleading that a sentence is manifestly excessive requires the Court to be satisfied that the sentence is unreasonable or plainly unjust.[21]
2. The appellant contends that the imposition of a sentence of imprisonment, whether immediate or suspended, was not within the learned Magistrate's discretion. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one which was open in the exercise of a sound sentencing discretion. The appellant submits that the appropriate disposition in the Magistrates Court was a community-based order. The learned Magistrate expressly considered whether the term of imprisonment should be suspended and found that it was not appropriate to do so. By so doing, the learned Magistrate excluded all other sentencing dispositions by finding that only an immediate term of imprisonment should be imposed.
3. Where a sentence is said to be manifestly excessive as to type, the question for this Court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all the circumstances, to be positively satisfied that all the sentencing options listed before that type of sentence in s 39(2) of the Sentencing Act were not appropriate.[22]
4. 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.[23] The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. There is no single correct sentence. What is important is the unifying principles which sentences in comparable cases reveal and reflect.
5. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.
6. Pursuant to s 6(4) of the Sentencing Act, 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 that the protection of the community requires it.
7. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[24] The sentencing options available to the Court are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment. The two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act, 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 the final option and cannot be imposed unless the Court is satisfied that it is not appropriate to impose any other sentence.
8. Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to five years, suspension may be ordered in cases involving serious offending.
9. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term of imprisonment.[25] That is, all circumstances must be revisited. The Court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
10. In considering ground two, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing Magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing Magistrate. There is no single correct sentence, and the Magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[26]
11. I now turn to consider the factors in determining whether the sentence imposed by the learned Magistrate was manifestly excessive. The critical question in this case is whether the learned sentencing Magistrate was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend, wholly or partly, the term of imprisonment or impose a different sentence, namely a community-based order. If the learned sentencing Magistrate was not entitled to be so satisfied then the imposition of an immediate sentence of imprisonment was manifestly excessive. I will now turn and consider the relevant factors.

1. The statutory maximum penalty for the offence is 10 years imprisonment. The summary conviction penalty is 3 years imprisonment and a fine of $36,000.[27]

1. The appellant is 29 years of age with a reasonably lengthy criminal record that includes convictions for offences of dishonesty, possession of prohibited drugs, disorderly conduct, breach of bail and other court orders, common assault, escaping from lawful custody, and stealing a motor vehicle. Relevantly, the appellant was convicted in 2018 of one offence of criminal damage contrary to s 444(1)(b) of the Criminal Code and one charge of unlawful damage contrary to s 445 of the Criminal Code. The circumstance of the offending in respect to the two damage convictions is not known.
2. In mitigation, counsel for the appellant submitted that the appellant was dealing with personal challenges, including separating from his partner, the death of his brother, depression, and alcohol abuse.
3. The learned sentencing Magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act for the plea of guilty at the first reasonable opportunity. Thereby, the appellant accepted responsibility for his offending and was remorseful. Counsel for the appellant submitted in mitigation that the appellant was committed to reconnecting with his family and seeking employment.

Seriousness of the offence - circumstances of the offending

1. The factors that might be relevant in assessing the seriousness of an offence of criminal damage include whether the offender engaged in premeditated conduct, the degree of deliberation involved, the extent and value of the damage caused, whether there was a risk to the public and whether the damage occurred in the context of other offending such as a burglary.
2. The appellant committed the offence during the early evening in the presence of numerous members of the public who were dining in the restaurant. The offending was not premeditated but was a spontaneous act of violence that arose from anger whilst intoxicated. The offending did not occur in the context of other offences such as damage arising during a burglary. The offending was complete within moments rather than a concerted period of inflicting criminal damage.
3. The appellant was though, persistent in his conduct, striking the glass plater window three times with chairs, causing one window to break. An aggravating factor was the injury to the restaurant employee. Given the paucity of details concerning the injury and that no further criminal charges were preferred, it appears that the injury was minor. However, the injury does serve to highlight the risk to members of the community, that arise from the random smashing of glass in public.
4. The damage caused by the appellant was in the amount of $2000.[28]

Range of sentences customarily imposed for the offence of criminal damage

1. There is no established range of sentences for criminal damage. This is because the circumstances in which such an offence can be committed can vary markedly. The appellant referred to a number of cases namely, Howlett v Hesp;[29] Phelps v Standen[30]and Corpus v Roseveare.[31]
2. In Phelps v Standen the appellant punched two windows on an empty bus parked on the roadway, smashing both windows. The appellant was angry because he had been assaulted. An aggravating factor was that the appellant, who had a significant criminal record, was on parole at the time of the offending. A term of imprisonment of eight months was imposed. On appeal, Smith J stated that no one was endangered by the appellant's offending, the offending was not premeditated and took only moments to commit, occurred in the spur of the moment with no apparent planning or thought, and was not done in furtherance of other offending such as a burglary.[32] Her Honour found that the offending was at the lower end of the scale in terms of seriousness and that the sentence of eight months immediate imprisonment was unreasonable and plainly unjust.[33] The appeal was allowed and the appellant was resentenced with a fine of $1000.
3. In Corpus v Roseveare, the appellant entered a fast-food restaurant at 8.00 pm and, within sight of the employees but in the absence of customers, kicked four windows of the restaurant causing damage. The appellant suffered from schizophrenia which Hall J stated was likely to have affected his behaviour and was a significant mitigating factor.[34] A term of immediate imprisonment of eight months was imposed. On appeal, there was no ground contending that the sentence imposed was manifestly excessive, but Hall J accepted that a term of immediate imprisonment of eight months would appear to be 'a severe sentence' in all the circumstances and in particular, those personal to the appellant.[35] Ultimately, Hall J decided it was not necessary to determine whether the sentence in respect to the criminal damage offence was manifestly excessive.
4. In Howlett v Hesp,[36] the appellant appealed a total effective sentence of 12 months immediate imprisonment imposed for four charges of criminal damage, one offence of aggravated burglary, two offences of trespass, one offence of stealing and one offence of possession of cannabis. The criminal damage offences arose from the appellant painting graffiti tags and expletives on private property. The learned Magistrate imposed a term of imprisonment of 6 months imprisonment for the criminal damage to two excavators, two sea containers and damage to a wall of a commercial premises. The estimate of the damage caused was $9200. In respect to criminal damage to the West Leederville train station, a term of immediate imprisonment of 6 months was imposed. The estimate of the damage caused was $448.
5. Hall J found that the criminal damage offences did not fall into the category of minor offences given that there were three separate incidents over four months, there was an element of planning involved, the conduct would have taken some time, and each offence involved the breaching of property rights, either in circumstances of trespass or burglary.
6. Hall J stated that there are insufficient comparable cases to determine a range of sentences for this type of offending. However, Hall J stated that a term of imprisonment of 6 months would not appear to be inappropriate for offences of this level of seriousness given that offences of criminal damage involving planned acts of graffiti can cause significant cost.[37] Hall J accepted in such cases there is a need for general and personal deterrence.
7. Counsel submitted that the cases support the finding that the imposition of an immediate term of imprisonment on Mr Hill was manifestly excessive. The respondent submitted otherwise. The cases certainly demonstrate that the sentence imposed on Mr Hill is severe. That was accepted by the respondent.

1. The term of 7 months immediate imprisonment is a severe sentence for this offence. The appellant's offence was not planned or premeditated but rather occurred in what was a fit of rage. The appellant did not commit a planned act of criminal damage and the act causing the damage was spontaneous. The aggravating features of the offending in Howlett v Hesp are not present in this case. An aggravating factor in this case arises as a result of the risk to the public with breaking a glass window in a restaurant with diners. The injury to the restaurant employee is demonstrative of that risk.
2. The appellant pleaded guilty at the first reasonable opportunity and was afforded a 25% discount. The plea was indicative of remorse.
3. Having regard to all the circumstances and all relevant sentencing factors and principles, I am persuaded that the sentence of immediate imprisonment was unreasonable and plainly unjust. After careful reflection, I find that the sentence imposed on the appellant was, with respect to the learned sentencing Magistrate, outside the range of the proper exercise of the sentencing discretion. An immediate term of imprisonment was manifestly excessive.
4. Accordingly, leave is granted on ground two and the appeal must be allowed.

1. Given that I have allowed the appeal on ground two it is not necessary to consider ground one. However, it is appropriate to observe that in respect to a ground of appeal that asserts that the Magistrate has erred in characterising offending as being at 'the upper end of the range' the Magistrate has not made a finding of fact but rather made an evaluative judgment.[38] The appeal properly concerns whether the sentence is manifestly excessive not the learned Magistrate's evaluative statement. Therefore, leave is not granted on ground one.

1. Accordingly, having found that the sentence imposed by the learned Magistrate was manifestly excessive, I must now resentence the appellant. A significant issue that must now be considered in re-sentencing the appellant is that he has served 3 and a half months immediate imprisonment. On 10 November 2023, the appellant was released on parole and commenced serving the balance of the term of imprisonment in the community on parole.
2. Therefore, after considering all relevant sentencing factors, I have determined that a fine should be imposed. It is necessary that the fine be of such gravity to reflect the seriousness of the appellant's offending but I must give full weight to the fact that the appellant has served 3 and a half months immediate imprisonment. It is no longer possible to impose a term of imprisonment conditionally suspended. Nor is it appropriate to impose a community-based order. The appellant has served over half of the term of imprisonment that was imposed by the learned Magistrate.
3. I must also be mindful of the appellant's capacity to pay a fine. In that respect, the appellant is reasonably young man who is committed now to seeking fulltime employment. I impose a fine in the amount of $1000.

1. Therefore, I grant an extension of time in which to appeal, and grant leave on ground two but not on ground one. The appeal is allowed, and the sentence of 7 months immediate imprisonment is set aside and a fine in the amount of $1000 is imposed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Prosecution Notice lodged 28 July 2023, Charge Number MI 6367/2023.

[2] Affidavit of Ms Sinton affirmed 19 September 2023.

[14] Notice of Appeal filed 19 September 2023.

[15] Criminal Appeals Act 2004 (WA), s 9(1).

[16] Criminal Appeals Act 2004 (WA), s 8.

[17] Criminal Appeals Act 2004 (WA), s 9(2).

[18] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

[19] Criminal Appeals Act 2004 (WA), s 14.

[20] Roberts v The State of Western Australia [2014] WASCA 239 [47].

[21] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325.

[22] HNA v The State of Western Australia [2016] WASCA 165 [30].

[23] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.

[24] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

[25] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84] - [85].

[26] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

[29] Howlett v Hesp [2012] WASC 351.

[30] Phelps v Standen [2020] WASC 459.

[31] Corpus v Roseveare [2015] WASC 165.

[32] Phelps v Standen [2020] WASC 459, [31].

[33] Phelps v Standen [2020] WASC 459, [34], [37].

[34] Corpus v Roseveare [2015] WASC 165, [50].

[35] Corpus v Roseveare [2015] WASC 165, [51].

[36] Howlett v Hesp [2012] WASC 351.

[37] Howlett v Hesp [2012] WASC 351, [30].

[38] Lyons v The State of Western Australia [2022] WASCA 81, [67].