Criminal law and procedure - Sentencing principles - Offences indicative of drunkenness made manifest - No new principles

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jamieson v Silvestri, unreported; SCt of WA; Library No 980352; 11 June 1998

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999

R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 MCKECHNIE J: There are before me an application for leave to appeal, an extension of time within which to appeal, and an application for bail pending appeal. When the matter was called on in Chambers on Wednesday, 2 February 2005, it was clear that, if possible, it needed to be disposed of expeditiously because otherwise the sentences would be entirely served.

2 I acknowledge the assistance of counsel for the applicant and particularly counsel for the respondent in having this matter brought back today, that is two days later. I have heard full argument on the appeal so that I can determine the appeal, although strictly only an application for leave to appeal and application for extension of time within which to appeal are before me. I will grant the extension of time within which to appeal and grant leave to appeal and therefore hereafter refer to the applicant as the appellant.

3 On 14 December 2004 the appellant pleaded guilty to a series of offences in the Court of Petty Sessions: one count of assaulting a public officer, two counts of failing to supply his name and one count of breach of bail.

4 The circumstances of each of those offences were put before the Court and the Magistrate also had the benefit of a pre-sentence report. The Magistrate also dealt with some disorderly conduct charges and a simple possession of a small quantity of cannabis.

5 The appellant pleaded guilty to and was sentenced to imprisonment on the following charges:

• PE 04 21049 - Assaulting public officer - 1 month imprisonment;

• PE 04 21050 - Failing to supply name - 3 months concurrent;

• PE 04 50609 - Failing to supply name - 3 months cumulative;

• PE 04 52378 - Breach of bail - 3 months cumulative.

6 After hearing submissions, the Magistrate imposed a sentence totalling of 7 months' imprisonment. The appellant is aged 22, is of Aboriginal descent and, as the pre-sentence report discloses, has a very serious alcohol addiction, probably complicated by brain damage due to solvent abuse.

7 Thus he represents the sort of offender who is a continuing and intractable problem for criminal justice and for which there are no entirely satisfactory solutions. It would appear that he lacks insight into his offending and his offences in the main (and I include within that description not only the disorderly conduct but the refusal to supply his name and indeed the circumstances of assaulting the public officer) are what Sir Francis Burt once described as "drunkenness made manifest".

8 The assaulting the public officer, for example, as the Magistrate acknowledged, was towards the bottom end of the scale, involved a situation where the appellant was being strip-searched, was obviously drunk, flung his jeans in the air and the jeans leg struck an officer. The failure to give his name arose at times when he had been disorderly and declined to give his name to police. The breach of bail was in respect of a disorderly conduct offence. I note that disorderly conduct which once carried a term of imprisonment not longer does. Under s 54 of the Police Act 1892 (WA) the penalty is a fine of no more than $2500. That is, I think, an acknowledgment by Parliament of the essential truth of the observation by Sir Francis Burt many years ago.

9 The Magistrate clearly took time and care in his approach to the sentence. He said, and noted, that imprisonment is a sentence of last resort and that the appellant is still a young man and that he is the carer of his grandmother. He further said:

"The majority of these offences, apart from the incident at the lockup with police, are offences of what's described as disorderly behaviour, causing police to be called to keep the peace, causing disruption to law-abiding people going about their business..."

10 It is true that some of the offences were committed while the appellant was on bail. The Magistrate concluded by noting that the appellant owed something like $14,000 in outstanding fines and that the point had been reached where something different to previous dispositions was called for. Nothing else seems to have worked. He said:

"I have to say I've reached the point that this [is] the stage where the Court must impose a term of imprisonment because of the continued behaviour notwithstanding all of the constructive orders that you were given in the past."

11 The appellant's argument, as presented by counsel, is in essence that the offences themselves were not offences which should carry a term of imprisonment, having regard to the circumstances in which they are committed. I know it must be tempting for a Magistrate, faced with repeated and intractable behaviour of a disorderly nature, to move to imprisonment on the basis that nothing else has worked. However, it is nevertheless the case that each factual circumstance and the criminality of each offence must still be considered.

12 In my opinion, the Magistrate erred in this case because the factual circumstances of each offence did not require imprisonment, bearing in mind two things: first that imprisonment is a sentence of last resort and, secondly, that some of the conduct equates with disorderly conduct which does not carry a term of imprisonment.

13 For those reasons the sentences which were imposed were wrong in principle and ought to be set aside. As I have said, it is a difficult sentencing exercise for a Magistrate when faced with this type of conduct. However, Parliament and successive judgments of this Court have recognised that short sentences of imprisonment play very little role in rehabilitation, notwithstanding some views in the community to the contrary.

14 When a short sentence of imprisonment is to be imposed the principle that imprisonment is a sentence of last resort must play a great part. In this case application of that principle would strongly suggest that a short sentence of imprisonment was inappropriate in any event because, objectively, none of the offences themselves required imprisonment.

15 I allow the appeal and set aside the orders made by the Magistrate imposing imprisonment. Because the appellant has served a significant period of imprisonment, I consider the just result will be simply to impose a conditional release order on him in respect of each of the offences. It should not be thought that a conditional release order is in any way a precedent for offences of this nature. It is simply a recognition, in this case, that a significant period of imprisonment has been served.

16 I set aside the term of imprisonment and impose a conditional release order with the personal surety in the sum of $500 for a period of 6 months from today. As there is already a community based order, which will no doubt now revive, it will not be necessary to, and I will not, impose any further requirements.