Citation : MESSIHA -v- ROYCE [2004] WASCA 87

Criminal law - Sentencing - Whether plea of guilty taken into account - Whether error in failing to order parole - Offender not previously sentenced to imprisonment - Courts and Judges - Appeals - Whether substantial miscarriage of justice

Sentencing Act 1995 (WA), s 8(4), s 89(4)

Messiha v Royce [2004] WASCA 87

Auburn v Sears, unreported; CCA SCt of WA; Library No 970508; 2 October 1997

Rowlands v Caporn [2001] WASCA 66

Sheppard v Blakey [2001] WASCA 309

Yanko v The Queen [2004] WASCA 37

1 TEMPLEMAN J: I agree for the reasons given by McKechnie J that the appeal should be allowed and I also agree with his Honour as to the appropriate disposition by way of re-sentencing.

2 MILLER J: I too agree that the appeal should be allowed. I agree with the orders proposed by McKechnie J in relation to re-sentencing and I adopt, with respect, his Honour's reasoning.

3 MCKECHNIE J: On 19 November 2003 the appellant pleaded guilty to the following charges in the Perth Court of Petty Sessions:

• Complaint No PE37000/03 that on 30 July 2003 at Innaloo unlawfully assaulted one Andrew Leon Philip and thereby did him bodily harm;

• Complaint No PE36996/03 that on 30 July 2003 he drove a motor vehicle whilst legally disentitled;

• Complaint No PE36997/03 that he had in his possession a smoking implement having detectable traces of tetrahydrocannabinol;

• Complaint No PE36998/03 that on 30 July 2003 he had in his possession a glass smoking implement having detectable traces of methylamphetamine;

• Complaint No PE37001/03 that without lawful excuse he had in his possession a Webley & Scott single-barrel shotgun that had been altered from the design or characteristics of its original manufacture;

• Complaint No PE43970/03 that on 30 July 2003 he had in premises a quantity of domestic equipment which was reasonably suspected of having been stolen or unlawfully obtained.

4 After hearing the prosecution outline the facts, and having had the benefit of a comprehensive plea in mitigation from counsel for the appellant, the Magistrate remanded the appellant, on bail, for a pre-sentence report. On 16 December 2003 the Magistrate imposed sentences totalling 2 years' imprisonment as follows:

• Assault occasioning bodily harm, 12 months' imprisonment;

• Driving whilst legally disentitled, 4 months' imprisonment and a disqualification for 18 months;

• Possession of smoking implements, each 1 month's imprisonment (2 months);

The sentences for the driving and possession offences were made concurrent with the sentence of 12 months for assault occasioning bodily harm.

5 For the offence of unlawful possession of property, the appellant was sentenced to a further term of 12 months' imprisonment cumulative on the other sentences. The Magistrate considered parole and without having called for submissions, said:

"The sentence has been structured to reflect the penalty. Now, then, I will however -- considered the penalties that have been imposed upon you with regards to whether or not I should make you eligible for parole.

In the circumstances, given your history and the comments that are made with respect to your behaviour and your behaviour, on this particular occasion, I will not make you eligible for parole.

Therefore you will serve the term of imprisonment imposed upon you."

6 The total sentence of 2 years was arrived at because the Magistrate considered that an appropriate penalty was one of 3 years which he reduced by one-third in accordance with the transitional provisions of the Sentencing Act. The appellant appealed against the sentences and his appeal was dismissed: see Messiha v Royce [2004] WASCA 87. From that decision he appeals by leave to this Court.

7 The facts in relation to the offences and the grounds of appeal are exhaustively set out in the judgment of Simmonds J and it is unnecessary to repeat them. The Judge concluded that the Magistrate made a number of factual errors in his summary of the offences, but concluded that the various errors were not substantial and therefore dismissed this aspect of the appeal: see Justices Act s 199(1)(b).

8 The Judge further held that the Magistrate had indicated, albeit in the Judge's words, in language not as strong as might have been wished for, that he recognised the plea of guilty as being to the appellant's credit [87]. The Judge concluded that the Magistrate was not in error in failing to suspend the sentence [78] and finally concluded that the Magistrate did not err in failing to order eligibility for parole [111] - [112].

9 This is an appeal from the Judge's decision. In my opinion the appellant has generally made good the grounds of appeal and it will be necessary for him to be re-sentenced. I deal with the main matters in outline.

10 The errors of fact made by the Magistrate, and found to have been made by the Judge, misinformed the sentencing process to a significant degree. The Magistrate appeared to be of the view that the actions of the appellant were premeditated. While the explanation put forward, through counsel, to the Magistrate was perhaps not overly persuasive, it was not inherently implausible.

11 The material facts stated by the prosecution did not directly contradict the appellant's version as advanced to the Magistrate. In the absence of a challenge, or plain implausibility, the Magistrate ought not to have sentenced the appellant on the facts that he found. The facts advanced on behalf of the appellant disclosed criminal conduct of much less seriousness than that found by the Magistrate. There was a real prospect that had the Magistrate correctly identified the facts, the sentence would have been different. For that reason it would not be possible to apply the proviso under the Justice Act s 199(1)(b).

12 The Magistrate considered the overall conduct merited a term of 3 years' imprisonment before adjustment under the transitional provisions of the Sentencing Act. Although the structure of such a sentence may offend the strict rule in Pearce v The Queen (1998) 194 CLR 610, an overall sentence of that magnitude, though high, may have been appropriate for the entire criminal conduct before some allowance was made for a plea of guilty. Without an allowance of, say, a quarter, one would have been looking at a sentence of 4 years' imprisonment.

13 A plea of guilty is a mitigating factor and if the Court reduces a sentence it would have otherwise imposed because of a mitigating factor, the Court must state that fact in open court: Sentencing Act, s 8(4). The Magistrate failed to do so. I do not consider that the one reference "Now then you pleaded guilty, to your credit" in any way complies with the Sentencing Act. Having regard to the selection of 3 years as a starting point, and the lack of a statement that the sentence was specifically reduced, I am left with the conclusion that the Magistrate made no allowance for the early plea of guilty.

14 I would not wish to be taken as suggesting that it is necessary to make a percentage reduction for a plea of guilty in all cases. However, it is necessary to specifically state the fact that a reduction was made. The Magistrate did not do so.

15 The appellant has an indifferent record stretching from 1994, chiefly for drug and vehicle offences. Under s 89(4) of the Sentencing Act the Court may decide not to make a parole eligibility order if at least two of the criteria under that section are present. It will ordinarily be difficult for an offender to argue that a Court exercised its discretion wrongly when at least two of those factors are present. However, in this case I do not consider that the factors were present.

16 The criminality disclosed in the offences has not, in my opinion, satisfied the statutory definition of "serious" in s 89(4). All criminal offences are of course, to a degree, serious. This goes without saying. However, attention must be given to the particular circumstances of the offending when considering whether the criteria under s 89(4)(a) are met. On the facts that should have been found by the Magistrate, the appellant did not go to the premises for the purpose of confronting the victim. The firearm did not belong to the appellant and was not used as a firearm but as a club, although it may also have had an intimidatory effect.

17 The assault occasioning bodily harm was serious but was committed, as it were, in the heat of the moment. The offence of driving whilst legally disentitled could have ordinarily been dealt with in the normal way under the Road Traffic Act. The possession of goods reasonably suspected of being stolen is not of the order of seriousness that would suggest a parole eligibility order was inappropriate.

18 The most important factor, however, is that the appellant has never before been sentenced to a term of imprisonment and it will be an extremely rare case where a person never before sentenced to a term of imprisonment is denied parole. This is not such a case.

19 The Magistrate also at no point stated that the record of the appellant was significant: s 89(4)(b). The record, as I have said, is an indifferent record, but when one has regard to the penalties that were imposed for the various offences, I do not think it qualifies as of such seriousness as to justify refusal of parole.

20 The pre-sentence report does contain indications that give rise to concern, but they are not, in my view, of such significance as would justify the refusal of parole under s 89(4)(d). There are in fact some positive indications in favour of the appellant.

21 The net result is that the appeal should be allowed. It is then necessary to re-sentence the appellant. The matters in the PSR which are of concern are balanced, to some degree, by the material which, by leave, the appellant has filed and we have accepted as exhibit A1. I take that material into account and, as I say, I do not think there are factors within s 89(4) which would justify the refusal of parole.

22 Notwithstanding the prosecution position before the Magistrate, I nevertheless consider that it was open to the Magistrate to impose a sentence of imprisonment to be served immediately. The assault occasioning bodily harm, even on the version most favourable to the appellant, was a significant violent incident committed with a firearm, albeit used as a club. The offence under the Police Act s 69 disclosed dishonest activity which is relatively common and which requires in itself a deterrent sentence.

23 I would re-sentence the appellant as follows. In doing so I would state that the sentences that I impose are reduced specifically for the plea of guilty and are sentences having regard to the transitional provisions of the Sentencing Act. I have made that adjustment:

• Complaint No PE37000/03 - assault occasioning bodily harm, 8 months;

• Complaint No PE36996/03 - driving a motor vehicle while legally disentitled, 4 months*;

• Complaints No PE36997/03 and PE36998/03 - possession of smoking implements, 1 month each* (2 months);

• Complaint No PE37001/03 - possession of the shotgun, 2 months*.

*Each of these sentences to be served concurrently with the term of 8 months for the assault occasioning bodily harm.

24 Complaint No PE43970/03, that of obtaining goods reasonably suspected of being stolen - 8 months' imprisonment which, for the reasons expressed by the Magistrate, I would also make cumulative; making a total sentence of 16 months' imprisonment. I would make that sentence, because this is a re-sentence, date from 3 December 2003. I would make a parole eligibility order in respect of that total sentence.

25 There is a ground of appeal addressed in the written submissions, although not addressed in the oral submissions as to the term of disqualification for 18 months. The Judge in his judgment at [125] held that the discretion to impose the disqualification of 18 months did not fall outside the appropriate range. I agree and would not vary the order for disqualification.

• Substantial miscarriage of justice
• Failure to credit the plea of guilty
• Parole eligibility
• Re-sentence
• The motor driver's licence suspension