HODDER -v- TE NAHU [2023] WASCA 20 (3 February 2023)

3. Magistrate Campione imposed a global fine of $3,000 for the offences contrary to s 63(1) of the Act, $800 for the offence contrary to s 51(1) of the Bail Act and $1,000 for the offence contrary to s 172(2) of the Criminal Code. Thus, the total fine imposed upon the appellant was $4,800.
4. Curthoys J dismissed the appellant's appeal against conviction, but, based on a concession made by the respondent that the learned magistrate had fined the appellant without complying with s 53(1) of the Sentencing Act 1995 (WA),[2] allowed the appeal against sentence. Relevantly to the proceedings before this court, his Honour chose not to resentence the appellant. Instead, he remitted the resentencing to her Honour. Relevantly, the formal orders made by Curthoys J were:
   1. The matter to be remitted back to the trial magistrate for resentencing at 9.30 am on 9 August 2021 at the Perth Magistrates Court, Perth, before Magistrate E Campione.
   2. $4,800 fines to be set aside.[3]
5. The appellant, who is self‑represented, appeals against order 3 (the remittal order) made by Curthoys J above. It is important to note that this is the only decision made by Curthoys J that is the subject of this appeal. It is necessary to make this observation because, in the course of the appellant's oral submissions in this court, the appellant exhibited some confusion as to whether the court was dealing with Curthoys J's decision to dismiss his appeal against conviction.
6. It is evident from the appellant's appeal notice and the appellant's case that the present proceedings do not challenge Curthoys J's decision to dismiss his appeal against conviction. During the hearing, this was made clear to the appellant. It remains open to the appellant to appeal against Curthoys J's decision to dismiss the appeal against conviction. If he does so, he will be required to seek an extension of time within which to appeal. Accordingly, the current appeal raises a very narrow issue concerning the remittal order. In essence, the appellant asserts that Curthoys J erred in making the order and, instead of remitting the resentencing to Magistrate Campione, his Honour should have resentenced the appellant.

1. The relevant background may be briefly stated.
2. The appellant is a reportable offender under the Act, having been convicted on 17 June 2005 of one count of indecently dealing with a child under the age of 13 years. On 20 March 2006, he commenced his reporting obligations for a period of 15 years under pt 3 div 5 of the Act.
3. The appellant was charged with and, on 30 November 2020, convicted after trial before Magistrate Campione of (i) failing to comply with his reporting obligations under the Act on 14 November 2018, 12 February 2019 and 13 March 2019; (ii) failing to appear in the Perth Magistrates Court on 22 January 2019 without reasonable excuse, being a requirement of a bail undertaking he had entered into on 20 February 2018, contrary to s 51(1) of the Bail Act; and (iii) obstructing a police officer on 24 March 2019 in the performance of the officer's function contrary to s 172(2) of the Criminal Code.[4]
4. It is unnecessary to describe the facts and circumstances underlying these convictions.
5. After finding the appellant guilty of the offences, the learned magistrate immediately sentenced the appellant. Her Honour was provided with the appellant's criminal record. She then asked the appellant about his personal circumstances.[5] She noted that he was not employed and that he had 'a lot of health issues'.[6] The appellant informed her Honour that he was suffering a number of conditions, stating colloquially 'my whole body is just buggered'.[7] The appellant did not provide, and her Honour did not seek, any details as to his means to pay a fine or the extent to which a fine would burden him.
6. Her Honour's sentencing remarks are brief. She observed, in substance, that imprisonment was inappropriate and that on previous occasions the appellant had been fined.[8] Her Honour then imposed the fines referred to in [[3 Subject to Division 1 of Part 2,[10] if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -

(a) the means of the offender; and

(b) the extent to which payment of the fine will burden the offender.

1. Ms Watson conceded that enquiries were not made at first instance about the means of the appellant and the extent to which payment of the fine would burden him. Ms Watson further conceded that her Honour erred in failing to enquire and thus take into account these matters, and that the appellant's appeal against sentence should be allowed and the appellant resentenced.[11]
2. Curthoys J asked Ms Watson whether any resentencing should be remitted to the Magistrate, to which she replied 'or could be remitted to the Magistrate, your Honour'.[12] The reference to 'the Magistrate' is to be understood as a reference to Magistrate Campione.
3. In his oral reasons for decision, Curthoys J dealt very briefly with the appellant's appeal against sentence stating:

The Crown - or, sorry, the respondent conceded that the magistrate failed to apply the Sentencing Act in fixing the amount of the fine and that the sentence should be set aside.

1. His Honour determined that it was appropriate that the question of the appellant's resentence be remitted to the sentencing magistrate for imposition of an appropriate fine after the appropriate enquiries are made under the Sentencing Act.[13] He did not give reasons for this decision.
2. His Honour then made the remittal order referred to above at [4].

1. The appellant relies on two grounds of appeal which, in essence, allege that Curthoys J erred in making the remittal order and that his Honour should have resentenced the appellant. The appellant's written submissions in support of the grounds are brief and assert that, by making the remittal order, his Honour denied the appellant justice. In particular, the appellant submitted that his Honour erred by remitting the resentencing to Magistrate Campione. In his oral submissions before this court, the appellant sought to air a number of grievances he has had in his past experiences with the criminal justice system, which are, for present purposes, irrelevant and can be put aside.
2. The respondent submitted that his Honour had the statutory power to remit the resentencing of the appellant to Magistrate Campione or a different magistrate pursuant to s 14 of the Criminal Appeals Act. The decision whether to do so is a matter of discretion and nothing advanced by the appellant established an error by Curthoys J in the exercise of this discretion. The respondent observed that Curthoys J did not possess sufficient material to resentence the appellant to a fine, and that it was appropriate for the matter to be remitted to the primary court to allow proper enquiry to be made pursuant to s 53(1) of the Sentencing Act. The respondent submitted that there was no pressing reason for Curthoys J to resentence the appellant and that the making of the remittal order would not give rise to any undue delay.
3. In oral submissions before this court, counsel for the respondent accepted that it would be 'better' if the resentencing was undertaken by a magistrate other than Magistrate Campione.[14]

1. The relevant effect of s 14(1) of the Criminal Appeals Act is to empower a judge of the General Division of the Supreme Court who decides an appeal against a sentence from a court of summary jurisdiction to allow the appeal, set aside the sentence imposed, and resentence the appellant or order that the court of summary jurisdiction resentence the appellant with or without orders as to how or by whom the court is to be constituted and as to how it must deal with the case.
2. By the remittal order, it is plain that Curthoys J decided not to resentence the appellant. Instead, he ordered that the appellant be resentenced in the Perth Magistrates Court by Magistrate Campione. Curthoys J made no order as to how the case was to be dealt with in the Magistrates Court by Magistrate Campione. However, given the way the proceedings were conducted before his Honour, fairness would dictate that the appellant should not be resentenced to anything more serious than a fine and, if a fine is imposed, the total sum of the fine should be no greater than $4,800.
3. Curthoys J's decisions not to resentence the appellant and to remit the resentencing to Magistrate Campione are discretionary decisions of the kind governed by the well‑known principles stated in House v The King.[15]
4. Given that the appellant is a self‑represented litigant, and bearing in mind the very limited submissions this court has received, the present case is not the occasion to exhaustively analyse questions of when an appellate court, which allows an appeal against sentence and sets aside the sentence originally imposed, should itself resentence the offender or remit the matter to the primary court, either to the same or some other sentencer. At the risk of stating the obvious, such decisions very much depend upon the facts and circumstances of the particular case.
5. To decide the present case, it is enough to state as follows. Generally, where an appellate court has all the information necessary to resentence an offender (including information as to the facts of the offence and the offender's personal circumstances) and it is practical to do so, the appellate court should undertake the task. When an appellate court decides to remit the sentencing of an offender, an important consideration that is relevant to whether the resentencing should be undertaken by the same judge or magistrate who originally sentenced the offender, or by another sentencer, will be to ensure an appearance of impartiality in the resentencing.
6. There was no information before Curthoys J as to the appellant's means and the extent to which the payment of any fine would burden him. In these circumstances, it was well open to Curthoys J in the exercise of his discretion to remit the appellant's resentencing to the Perth Magistrates Court to enable these matters to be ascertained. His Honour's decision to do so was not erroneous. In any event, a practical difficulty arises in the present case because, since Curthoys J delivered judgment, he has retired from office and can no longer resentence the appellant.
7. There remains the question of whether the resentencing of the appellant should be undertaken by Magistrate Campione or another magistrate. It appears from the appellant's submissions that he regards Magistrate Campione as being biased against him. There is no basis whatsoever to find that her Honour was biased against the appellant. Nor is there any basis for an apprehension of bias on her Honour's part. A perusal of the transcript of the trial shows that her Honour acted courteously, patiently, and even‑handedly towards the appellant. Her Honour's error was plainly an oversight. No fair‑minded lay observer might, in all of the circumstances, apprehend that Magistrate Campione might not resentence the appellant impartially. A further factor in favour of the resentencing being undertaken by Magistrate Campione is that she heard the trial and would be familiar with the facts of the offending.
8. This court may only intervene where error has been demonstrated on the part of Curthoys J. Counsel for the respondent's statement that it would be 'better' for the appellant to be resentenced by a magistrate other than Magistrate Campione was not a concession that Curthoys J had erred in the making of the remittal order. Even if this statement was to be understood as a concession of error, this court is not bound to accept it, given that, on an examination of all of the relevant facts and circumstances, no error was, in fact, committed. The appeal must be dismissed.
9. The orders we would make are as follows:
   1. An extension of time to appeal is granted.
   2. Leave to appeal is refused.
   3. The appeal is dismissed.

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

[1] His Honour's reasons for decision were not published, but were transcribed.

[2] Proceedings before Curthoys J, ts 33.

[4] The appellant was tried and acquitted of charge PE 6134 of 2019 which alleged a failure to appear in the Perth Magistrates Court in answer to a bail undertaking.

[10] Division 1 of Pt 2 of the Sentencing Act sets out the general sentencing principles to be applied by a court sentencing an offender.

[11] Proceedings before Curthoys J ts 32 ‑ 33. See Hodder v Police Department of Western Australia [2011] WASC 142 [49] ‑ [51], citing Sgroi v The Queen (1989) 40 A Crim R 197, 200.

[12] Proceedings before Curthoys J ts 33.

[13] Proceedings before Curthoys J ts 13.

[15] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.