File No : MI 8579 of 2006, MI 9032 of 2006, MI 10294 of 2006, MI 10295 of 2006, MI 10313 of 2006, MI 10314 of 2006

Sentencing - Failure to take into account time in custody - Relevance of prescribed amount in fines enforcement legislation - Deduction in fine imposed for time in custody

Community Protection (Offender Reporting) Act 2004 (WA), s 172

Sentencing Act 1995 (WA), s 23(1), s 87

Fine of $1,500 substituted for fine imposed by magistrate

Hodder v Hywell [2008] WASC 61

Hodder v State of Western Australia [2008] WASCA 146

Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984)

Narkle v Hamilton [2008] WASCA 31

Smith v The Queen [2000] WASCA 243

1 JOHNSON J: The appellant sought leave to appeal against conviction and sentence in respect of four charges under the Community Protection (Offender Reporting) Act 2004 (WA) (the Community Protection Act), one charge of obstructing a public officer under s 172(2) of the Criminal Code (WA) and one of escaping lawful custody contrary to s 146 of the Criminal Code. Leave to appeal in respect of conviction was refused by McKechnie J on 16 April 2008: Hodder v Hywell [2008] WASC 61. An appeal to the Court of Appeal from McKechnie J's decision to refuse leave to appeal against conviction was dismissed on 15 July 2008: Hodder v State of Western Australia [2008] WASCA 146. However, leave to appeal against sentence was granted by McKechnie J on 22 May 2008.

2 In 2005 the appellant was convicted of indecent dealing and sentenced to 16 months imprisonment. That sentence was later reduced on appeal to 12 months imprisonment. As a result of that conviction, on 20 March 2006 the appellant was registered as a 'reportable offender' under the Community Protection Act. The effect of the registration was that the appellant was required to report to certain police officers on certain dates. The magistrate found that the appellant failed, without reasonable excuse, to report as required on 11 July 2006, 28 September 2006, 12 October 2006 and 31 October 2006.

3 As to the offence of obstructing a police officer, on 31 October 2006 Sergeant Barry was off duty and travelling on a passenger train into Perth when he saw the appellant enter the carriage. Sergeant Barry contacted Senior Constable Skamp, who was stationed with the Australian National Child Offender Register (ANCOR). Senior Constable Skamp confirmed that the appellant had failed to report and instructed Sergeant Barry to arrest him. Sergeant Barry approached the appellant and showed him his police identification. Sergeant Barry asked the appellant his name and then placed him under arrest for not reporting as required. When the train started moving again the appellant stood up and walked down to the end of the carriage. Sergeant Barry followed the appellant and reminded him he was under arrest. The appellant told him to 'fuck off' and said that it was 'police harassment'.

4 Sergeant Barry sought the assistance of Detective Sergeant Tucker who was also aboard the train. The appellant continued walking about and had approached the exit doors when Tucker introduced himself. The appellant said he was not under arrest as he had a doctor's appointment. He was again advised that he was under arrest.

5 As the train approached the station, the appellant walked to the doors at the end of the carriage. Detective Sergeant Tucker stood across the doors of the carriage while Sergeant Barry stood near the appellant. When the train arrived at the station and the doors opened, the appellant left the carriage. Sergeant Barry grabbed hold of the appellant's arm. They fell on to the platform. The appellant fell down and Sergeant Barry fell on top of him. The appellant continued to struggle so Detective Sergeant Tucker assisted Sergeant Barry and they both restrained the appellant, telling him to calm down and that he was under arrest. Once the appellant stopped struggling, the police officers helped him to his feet and escorted him to the security building at the station.

6 The actions of the appellant in leaving the train and struggling with Sergeant Barry were held by the magistrate to amount to obstruction of a police officer, contrary to s 172(2) of the Criminal Code.

7 As to the offence of escaping lawful custody, on 10 November 2006 at 8.05 am Senior Constable Skamp, in company with another officer, attended at the appellant's home. Senior Constable Skamp observed the appellant through the front door letterbox. The accompanying officer remained at the front of the house whilst Senior Constable Skamp went to the back. He entered the house and located the appellant in the kitchen. Senior Constable Skamp advised the appellant he was under arrest for breaching his reporting obligations. The appellant's response was to say, 'Fuck off'. Senior Constable Skamp told the appellant to wait where he was while he went to the front of the house and opened the door for the other officer. When the constable returned to where he had left the appellant, the appellant was no longer there. A search of the back of the house and outside failed to locate the appellant. Approximately 20 minutes later, the appellant was seen in a nearby street and was apprehended at a vacant block some 300 metres aware from the house. The appellant was then taken to the ANCOR office.

8 The magistrate found that, having been lawfully arrested, in leaving the house when the constable went to the front door and then going to a location 300 metres from his house, the appellant had escaped lawful custody, contrary to s 146 of the Criminal Code.

9 On 28 December 2007 the magistrate delivered her reasons for decision and found the appellant guilty of all six charges. The sentencing range available to the magistrate in relation to each of the offences was as follows:

Section 63(1) of the Community Protection (Offender Reporting) Act 2004

10 The magistrate heard brief sentencing submissions. In mitigation, the appellant submitted that he was in receipt of social security payments, he did not own any property, and lived in and looked after his mother's house as she was now living in a nursing home. He further submitted that he would not be able to pay a huge fine. During the course of these submissions, the appellant made it clear that he did not agree with the magistrate's decision.

11 In view of the circumstances of the offence and the attitude of the appellant to his conviction, it is somewhat surprising that the prosecutor submitted that the appellant now understood that he must conform to the requirements of the Act 'because of the nature of one of the offences he was convicted of'. In my view, there was nothing in the evidence or in the material put before the magistrate which would justify such a proposition. Significantly, the prosecutor was unable to advise whether the appellant had reported since he was charged with the offences before the court and the appellant was particularly vague as to whether he had been required to report or had reported since his arrest. The prosecutor pointed out that the legislation was relatively new. He also submitted that the appellant's means would prevent the imposition of a large fine. However, the prosecutor did submit that a fine be imposed although he added that the fine imposed should be sufficient to instil in the appellant the significance of the obligation to report as directed.

12 The magistrate imposed on the appellant a global fine of $3,000 in relation to all six offences, together with costs of $55.50 on each charge. The magistrate made no sentencing remarks and hence made no reference to any time spent in custody. However, it appears that at no stage was the time spent by the appellant in custody drawn to the magistrate's attention, either by the appellant or by the prosecution.

13 Counsel for the respondent provided this court with the information that the appellant spent 19 days in custody in relation to the charge of failing to report and the charge of escaping legal custody. It is not known why the time in custody was attributed only to those two of the six charges.

15 Section 23(1) of the Sentencing Act 1995 provides:

When an offender is being sentenced for an offence the prosecutor must inform the court of the period, if any, that the offender has already spent in custody in relation to that offence and for no other reason.

16 Section 87 of the Sentencing Act 1995 is in these terms:

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994); and

(b) the sentencing court decides that that time should be taken into account,

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

17 In Narkle v Hamilton [2008] WASCA 31 the Court of Appeal considered the application and effect of s 87 of the Sentencing Act 1995, although in the specific context of taking into account time spent in custody in relation to another offence. The Court of Appeal held [30] that s 87 is not the source of the court's power to take time spent in custody on remand into account when sentencing an offender. It was further held that the section sets out the means by which the sentence can be reduced or backdated where the court has, in the exercise of its non-statutory power, determined, as contemplated by (b), to take it into account. It was said that the section is not the source of the power to which the court had referred, as is apparent from the provisions of (b) itself. Finally, the court noted that s 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion.

18 The Court of Appeal further concluded that the provision was facilitative and was not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate. The basis of that conclusion was that, prior to the enactment of the section, backdating of a sentence to take time served on remand into account was not an option that was available to the court: [31]

19 Consequently, the provisions of the Sentencing Act are of limited assistance in determining the way in which the sentence imposed on an offender takes into account the time spent by the offender in custody on remand. It is apparent from the decision in Narkle v Hamilton [31] that s 87 simply identifies two ways in which time in custody may be taken into account where the court has, in the exercise of its general discretion, determined to take time spent in custody on remand into account when imposing sentence. Of course, as is apparent from the precise wording of s 87, it applies only where the sentence imposed is a term of imprisonment. It is also apparent from the wording of s 87 that that there is no compulsion to reduce a sentence on account of time spent in custody: Smith v The Queen [2000] WASCA 243 per Murray J [15]. In Narkle v Hamilton the court further concluded ([31]) that the provision was facilitative and was not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate and in an appropriate way.

20 In Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984) Pidgeon J made the following statement:

Normally [the sentencing judge] would take into account any time spent in custody in respect of that particular offence.

21 However, in Narkle v Hamilton, the Court of Appeal made the following observations in relation to the discretionary nature of the power to take time in custody into account when passing sentence:

The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody: King [57] (Wheeler J); R v Lambley (1989) 40 A Crim R 430, 440 (Kennedy J); Ratcliffe v The Queen (Unreported, WASCA, Library No 980651, 3 November 1998). The manner in which the discretion is exercised will depend upon the individual circumstances of each case. In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody [40].

22 In Mickelberg v The Queen (Unreported, WASCA, Library No 5509B, 19 September 1984) Kennedy J, in his dissenting judgment, referred to the reason why the general approach is to take time spent in custody into account. His Honour referred to the sense of injustice or unfairness and the sense of unfair treatment which can arise when time spent in custody is not taken into account. Certainly one can well imagine there will be a sense of grievance on the part of an offender who has been remanded in custody, or has been unable to take advantage of an order for bail, if the time spent in custody is not later taken into account.

23 The sole ground of appeal against sentence is that, in passing sentence, the magistrate did not allow for time in custody.

24 On appeal, the appellant found it difficult to make submissions which did not involve disputing his conviction. However, essentially, the appellant's complaints were these:

(i) That the 19 days in prison should have been taken into account; and

(ii) If the fine were to be cut out by time spent in custody, 19 days in custody is equal to an amount in excess of $3,000.

25 In addition, the appellant submitted that the offence of failing to report was not a serious offence. He also maintained that he did not have any convictions for serious offences.

26 On behalf of the respondent it was accepted that time in custody is a matter relevant to the imposition of sentence and that the learned magistrate ought to have been properly informed by the prosecutor of the time the appellant spent in custody because that time specifically related to the charges before the court. It was further conceded that the time in custody was a factor that the magistrate was entitled to consider in reaching the appropriate penalty.

27 However, having made those concessions, counsel for the respondent submitted that, notwithstanding s 87 of the Sentencing Act 1995, the section is not intended to limit the inherent discretion in the court to consider time in custody and determine whether to make allowance for it. The state's position was that, even if the learned magistrate had taken the time in custody into account, the sentences imposed cannot be said to be excessive and consequently, there has been no substantial miscarriage of justice.

28 I will firstly deal with the appellant's submission as some matters raised by him, such as the seriousness of the offences and his criminal history, are relevant to the respondent's proposition that the sentence imposed, even taking into account the 19 days spent in custody, cannot be said to be excessive.

29 As an adult, the appellant's first conviction was in 1967 for the offence of stealing. Thereafter, he committed at least one, and sometimes three or four, offences every year or two. The appellant has convictions for wilful exposure, unlawful possession, unlawfully on curtilage, unlawfully on premises, resist arrest, indecent assault, aggravated assault and attempted stealing. He has five convictions for loitering, three convictions for disorderly conduct, four convictions for insulting words and behaviour, two convictions for giving a false name, three convictions for stealing, four convictions for breach of bail and four convictions for escaping legal custody. On 17 June 2005 the appellant was convicted of indecent dealing with a child under 13 years, the conviction which gave rise to the reporting requirements under the Act.

30 During the same time period the appellant was also convicted of a number of traffic offences, including multiple charges of driving contrary to a work order, driving without a seat belt, driving under suspension, failing to stop when called upon, removing a work order and failing to give the driver's identity.

31 However, there have been periods of time when the appellant did not offend. Between 1995 and 2003 the appellant was not convicted of any offences. In July 2003 the appellant was convicted of attempted stealing. His next conviction was in November 2004 when the appellant was convicted of two counts of breaching bail conditions. Between his conviction for the indecent dealing offence on 17 June 2005 and his conviction for the six offences, the subject of this appeal in December 2007, the appellant was convicted of a stealing offence in November 2007. However, that offence was committed after the six offences before this court.

32 I do not accept the appellant's submission that he does not have any convictions for serious offences. It is the case that the majority of his offences were dealt with in a court of summary jurisdiction. However, the appellant has three convictions in the District Court; one for indecent dealing with a child under 13 years, one for indecent acts and one for indecent assault. In relation to each of these offences, the appellant was sentenced to a term of imprisonment. In my view, each of these offences can properly be categorised as serious. The appellant has also been imprisoned in relation to other offences.

33 It can also be seen from the appellant's criminal history that he has quite an extensive history of failing to comply with court-ordered responsibilities. He also has many convictions for failing to comply with his statutory obligations to provide information. Relevantly, the appellant has four previous convictions for escaping legal custody. In my view, there is absolutely nothing in the appellant's criminal history which would entitle him to be dealt with leniently. Further, in view of the fact that the conviction for escaping custody is the appellant's fifth conviction for that offence, the court would have been justified in imposing a term of imprisonment for that offence.

34 As to the proposition that the offences of failing to report were not serious, in my view, none of the offences of which the appellant was convicted can be considered minor in terms of the circumstances in which they were committed. On behalf of the state, it was disputed that a failure to report was not a serious offence. Counsel for the state noted that one of the police officers who gave evidence at the appellant's trial explained that one of the purposes behind the requirement was for the officers to 'touch base' with offenders so that they cannot simply keep an eye on where they are living but also to pre-empt any problems that might be looming for that person.

35 The view expressed by the officer is consistent with the purpose of the Community Protection (Offender Reporting) Act 1994 (WA) as set out in the preamble to the Act which is in the following terms:

An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will reoffend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct and for related purposes.

36 In the second reading speech of the Community Protection (Offender Reporting) Bill 2004 (Hansard 22 September 2004), the Minister said that the Bill would provide an effective means by which greater protection can be extended to children and the broader community. The Minister stated:

This Bill will require convicted paedophiles and other serious sex offenders to report routinely to police and advise them of relevant personal information. Western Australian police will be empowered to share this information with other policing jurisdictions to better control the predatory migration of these offenders. Through a system of registration and monitoring, the Bill aims to reduce the likelihood of reoffending and assist in the investigation and prosecution of future offences.

37 The relevant personal information was described by the minister to include current and former name or names, date of birth, address, employment details, motor vehicles owned or driven, and affiliations with any club or organisation with child membership or child participation.

38 It can be seen that there is a community protection component to the requirement to report. Parliament clearly felt that it was in the interests of the community that people who fell into a particular category were required to report. In my view, the offences of failing to report are not minor, and the fact that the conduct was repeated over a period of time makes it more serious.

39 However, as counsel for the state observed, these are the appellant's first convictions for a breach of the Community Protection Act. Consequently, one might be minded to impose a sentence at the lower end of the scale because it is the appellant's first dealings with the responsibility of reporting.

40 The offences of escaping custody and obstructing police are public order type offences that are viewed quite seriously by the courts. The offence of obstructing police was, in my view, a serious offence of its type, occurring as it did in a railway carriage and then on the platform and in the presence of members of the community. The appellant's conduct required one police officer to physically restrain him as a result of which the appellant struggled, making it necessary for the other officer to assist in restraining him. In considering an appropriate penalty for this offence, it was relevant to consider the appellant's previous convictions, many of which show a complete disregard for the authority of police officers.

41 Similarly, in considering the offence of escaping custody, notwithstanding the fact that the appellant was not at large for a prolonged period, the appellant had previously committed four such offences.

42 In considering the appropriate penalty to impose it should also have been taken into account that the accused was convicted after trial and has failed to accept any wrongdoing on his part. Indeed, there was little to be said on the appellant's behalf in mitigation of penalty.

43 In my view, because of the repeated nature of the failure to report, and the seriousness of the other charges, the charges could easily have been the subject of a custodial term. However, at first instance, it was conceded by the state that a fine would be an appropriate outcome and that the appellant's 'means would prevent a big fine'. Further, on appeal, counsel for the respondent indicated that a fine would be an appropriate outcome.

44 It is also the case that, in the absence of knowing that the appellant had spent 19 days in custody, the magistrate considered that a $3,000 fine was the appropriate penalty for the offences. The logical extension of that is that, if she had known the accused had spent time in custody, the sentence would have been lower.

45 The appellant submitted that, in deciding the impact on the sentence imposed of the 19 days spent in custody, the court should take into account the amount used to determine the period of imprisonment under a warrant of commitment for enforcement of a fine. Enforcement of fines is dealt with under pt 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (Fines Enforcement Act). Under s 29(1), pt 4 applies to any fine imposed by any court on any offender except a fine in respect of which an order is made under s 58 or s 59 of the Sentencing Act. Section 58 and s 59 apply only to fines imposed by superior courts. Section 57 of the Sentencing Act deals with the enforcement of fines and provides in s 57(1) that the term fine has the same definition as in s 28 of the Fines Enforcement Act and in s 28(2) that a fine imposed by a court must be paid and may be enforced under the Fines Enforcement Act 1994.

46 Section 53(3) identifies the mechanism for determining the period of imprisonment to be set out in a warrant of commitment under the Fines Enforcement Act. Section 53(3) is in the following terms:

(3) A warrant of commitment is to commit the offender to be imprisoned for a period specified (in days) in the warrant that is the shorter of -

(a) the period of imprisonment determined by dividing the amount owed by $150 and rounding the result up to the nearest whole number of days; and

(b) the maximum term of imprisonment (if any) to which the offender could have been sentenced for the offence concerned

...

47 Following the hearing, counsel for the respondent advised the court that, according to the manager of the Sentencing Information Unit, if the appellant were to serve that time in custody now, his fine could potentially be cut out at a rate of $250 per day. However, the manager added that any such rate would be dependent on a number of variables, such as how the sentence was structured and that this was not an exact figure.

48 I note that r 6BAA of the Fines, Penalties and Infringement Notices Enforcement Regulations 1994, identifies the prescribed amount as $250 per day. However, r 6BAA was inserted in the Government Gazette on 27 March 2008. Consequently, at the time the appellant was sentenced, the prescribed amount for the purpose of determining the period of imprisonment in a warrant of commitment in default of payment of a fine was $150.

49 However, it does not follow that it is appropriate to take this figure into account when considering the impact of time spent in custody on a fine imposed for the commission of offences. As I have noted, the prescribed amount relates specifically to warrants of commitment for non-payment of fines. It is set by the government and published in the Government Gazette. As such, the sum represents the amount which the government is prepared to forego as a result of each day spent in prison in default. In setting the amount the government is entitled to take into account any factor it considers appropriate. For example, the government could take into account factors such as whether the prisons are at or near capacity or the costs of keeping a prisoner in custody. Indeed, there is nothing to prevent government from setting an entirely arbitrary figure.

50 Section 6 of the Sentencing Act sets out the principles of sentencing. No reference is made in that section, nor in the balance of the Sentencing Act, to factors such as those to which I have just referred. It can be seen that the considerations which the government may take into account simply are not relevant to the sentencing process and could even be in conflict with the principles of sentencing.

51 In my view, it is not open to the court at first instance or on appeal when considering the effect on sentence of time spent in custody to take into account the prescribed amount identified in s 53(3) of the Fines Enforcement Act or as modified by publication in the Government Gazette.

52 Whilst the respondent concedes that the appellant has lost the opportunity of having the time spent in custody considered by the magistrate, it is submitted that a $3,000 fine and a period of 19 days in custody is within a sound sentencing range and hence no substantial miscarriage of justice has occurred. I am unable to accept that submission.

53 Notwithstanding that I might have imposed a different sentence, the sentence imposed by the magistrate was, in my view, within a sound discretionary range. The prosecution was in error in not alerting the magistrate to the fact that the appellant had spent 19 days in custody. Having considered a global fine of $3,000 to be appropriate in the circumstances, I have no doubt that, had the magistrate been aware of the time spent in custody, a fine in a lesser amount would have been imposed. As I have concluded, in determining the impact on the sentence of that time in custody, it is not appropriate to consider the amount represented by 19 days in custody based on the prescribed amount. Taking into account all relevant circumstances, the conclusion I have drawn is that it would be appropriate to halve the total amount of the fine imposed.

54 For these reasons I would allow the appeal and substitute for the fine imposed by the magistrate a global fine of $1,500.