Criminal law - Sentencing - Sentence of 6 months and 1 day - Not to be used to frustrate will of Parliament - Breach of bail - When error of principle to imprison

Sentencing Act 1995 (WA), s 86, Sch 1 Transitional provisions 2.(1)

Dinsdale v The Queen (2000) 2002 CLR 321

1 MCKECHNIE J: This is an application for leave to appeal. I am grateful to the State which has responded to this application for leave to appeal. I propose to treat the application for leave to appeal and the hearing of the appeal as one.

2 On 26 July 2005 the appellant pleaded guilty and received a series of sentences. The offence the subject of the appeal is PE 05 38985 that on 30 June 2005 at Perth, without reasonable cause, she failed to appear in Perth Magistrates Court, such appearance being a requirement of a bail undertaking entered into by her on the 25 June 2005.

3 She was fined for disorderly conduct. For the offence of breach of bail she received a sentence of 6 months and 1 day of imprisonment, suspended for 12 months. This appeal is in respect of the suspended sentence of imprisonment.

4 The Magistrate's reasons for imposing a sentence of imprisonment were expressed succinctly. He was aware that the appellant had failed to comply with the bail order and that she had given, what I regard as a very inadequate excuse for not complying. He said:

"You're in a situation where you're developing a history of just blatantly ignoring your obligation. So I'm going to show you in no uncertain terms that you cannot do that. You owe a substantial amount in fines. That's already conceded. So fining you is a waste of time. It doesn't have any impact whatsoever. In fact, a fine as a sentencing option has been reduced to a farce by the way in which fines are ignored by the people who are subject to them and by the way in which the system now treats that issue. So at the end of the day you are going to be sentenced to 6 months and 1 day in prison. That again is a farce. I'm required to impose a minimum of 6 months - -

...

Listen to me. That sentence is going to be suspended. So if you get yourself into more trouble you'll have to serve the suspended sentence."

5 The appellant appeals to this Court on grounds that the Magistrate imposed a sentence that was manifestly excessive, particularly having regard to the plea of guilty the appellant's personal circumstances, the appellant's age of 20 years, and the circumstances of the commission of the offence.

6 What seems to have guided the Magistrate is frustration, to a degree understandable, with the appellant. However, he also expressed frustration as to the various sentencing options open to him. This is not acceptable. It is for Parliament to enact penalties and sentencing dispositions, not for judicial officers to query them.

7 It does appear that the appellant owes a substantial amount in fines. That is a factor but not a decisive factor. If an offence otherwise merits a fine, it is an error of principle to impose a sentence of imprisonment simply because fines are unpaid. One has to look at the circumstances of the offence. The circumstances of this breach of bail, while serious, were not of the order which justified a sentence of imprisonment at all, particularly when one has regard to the fact that the bail was for disorderly conduct, an offence, for which the applicant could not be imprisoned. I hold that the Magistrate was in error in imposing a term of imprisonment albeit suspended.

8 The second error was to regard the sentence of 6 months 1 day as "a farce". It is an error of principle to decide to impose imprisonment and then impose 6 months and 1 day because that is the minimum which can be imposed.

9 Parliament has quite clearly abolished sentences of less than 6 months duration: Sentencing Act s 86. There will often be times when a Magistrate concludes that a sentence of imprisonment should be imposed and then sets an appropriate length of sentence. However, Parliament's intention is clear. At the same time as amending s 86, Parliament made other amendments to the Sentencing Act including amendments which effectively reduced sentences by one-third to account for the portion of a sentence that previously would not be served. A Court is required to impose a sentence that is two-thirds of the fixed term that it would have imposed before the amendments: Sentencing Act Sch 1 Transitional provisions 2.(1).

10 A Magistrate cannot impose a sentence of 6 months and 1 day unless it is determined that an appropriate sentence for the offence, prior to the amending provisions of the Sentencing Act, would exceed 9 months' imprisonment.

11 Prior to the amendments if a sentence would have been less than a term of 9 months then imprisonment is not now an available sentencing option.

12 It is a fundamental error for a Magistrate to conclude that imprisonment for a period is appropriate and then "jack up" the sentence to 6 months and 1 day merely to circumvent the mandatory provisions of the Sentencing Act s 86.

13 The breach of bail offence to which the appellant pleaded guilty is not one that would have merited a sentence of 9 months' imprisonment prior to the amendment.

14 I have so far dealt with imprisonment as if it were the actual final result. It was not. The Magistrate suspended the term of imprisonment. However, as the authorities such as Dinsdale v The Queen (2000) 2002 CLR 321 make clear, a term of suspended imprisonment is only imposed once a judicial officer decides that a term of imprisonment is the only appropriate penalty. Then there is a separate consideration as to whether the sentence should be suspended.

15 In this case, that the Magistrate made fundamental errors in deciding on a term of imprisonment in the first case so his discretion as to the suspension of that sentence becomes irrelevant.

16 I grant leave to appeal, allow the appeal, set aside the sentence of 6 months and 1 day suspended for 12 months and in lieu thereof impose a fine of $400.