Mical v Ward [2003] WASCA 149

Court of Appeal (WA)|2003-07-11|Before: McKechnie J, Barker J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MICAL -v- WARD [2003] WASCA 149

Criminal law - Sentencing - Appeal against sentence - Whether sentence "manifestly excessive" - Practice and procedure - Self-representation - Requirement to warn as to possibility of sentence of imprisonment

Police Act 1892 (WA), s 59

Sentence of 9 months' imprisonment suspended for 6 months substituted

R v Campbell (No 2) (1981) 6 A Crim R 208

1 This is an appeal under the Justices Act 1902 (WA) against sentence.

2 The appellant, having pleaded guilty on 4 March 2003 to a charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code 1913 (WA), was sentenced in the Court of Petty Sessions at Perth by Mr R Bromfield SM to 9 months' imprisonment.

3 An order granting leave to appeal and bail was made by McKechnie J on 31 March 2003. On the hearing of the appeal, leave was given to amend the grounds of appeal.

4 At the hearing of the appeal, the appellant relied on the following three grounds of appeal:

"(1) The learned Magistrate imposed a sentence which was manifestly excessive having regard to:

(a) the fact that the appellant has not previously suffered conviction for an offence of violence;

(b) the appellant was in full-time employment;

(c) the appellant had pleaded guilty to the offence.

(2) The learned Magistrate erred in imposing a sentence of imprisonment to be served immediately when in the circumstances of the case a sentence of imprisonment suspended ought to have been imposed.

(3) The learned Magistrate erred in law in failing to draw to the attention of the unrepresented appellant that he was considering imposing a period of imprisonment and offering the appellant an opportunity to seek legal advice before imposing such a period of imprisonment."

5 The circumstances in which the sentence appealed against came to be imposed are a little unusual. As the result of an incident on 17 June 2002, the appellant was charged with threatening, abusive or insulting words or behaviour contrary to s 59 of the Police Act 1892 (WA), as well as the offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code. It appears he was summonsed to appear in the Perth Court of Petty Sessions on 17 July 2002 to answer each of these complaints and that he was then remanded on each charge on that day to appear in the Court of Petty Sessions at Fremantle on 27 August 2002. The record of court proceedings notes that, on 17 July 2002, the matter was adjourned. The handwritten record appears in these words:

The Brief Jacket produced on the appeal by counsel for the Director of Public Prosecutions, which was admitted into evidence by consent, has a similar notation. It appears to be accepted by counsel for both the appellant and the respondent that the notation "ADJ LA" or "ADJ L/A" signifies that the matter was adjourned to enable the appellant to obtain legal advice.

6 The record of court proceedings then indicates that, on 27 August 2002, the appellant was further remanded until 10 September 2002. The Brief Jacket again is marked "L/A". This would again appear to suggest that the matter was adjourned to enable the appellant to obtain legal advice.

7 On 10 September 2002, it appears the appellant failed to attend the court, but he then appeared on 12 September 2002 and was remanded until 26 September 2002 at the Court of Petty Sessions at Perth.

8 On 26 September 2002, it appears that the appellant entered a plea of guilty in respect of the complaint of threatening, abusive or insulting words or behaviour and entered a plea of not guilty in respect of the complaint of assault occasioning bodily harm, which is the subject of this appeal. In respect of the latter complaint, he was then remanded until 7 January 2003.

9 Neither the record of court proceedings nor the Brief Jacket is marked with the notation "LA" or "L/A" in respect of the appearances of 12 September and 26 September 2002. It is not clear whether the appellant received legal advice at about those times. It would appear that the appellant was not represented by a solicitor or counsel on the occasion of those appearances.

10 In the event, the appellant appeared before Mr Bromfield SM in the Court of Petty Sessions at Perth on 17 January 2003 to answer the complaint of assault occasioning bodily harm. On that day, he changed his earlier plea of not guilty to a plea of guilty. There is nothing to show that the appellant was represented by a solicitor or counsel on that day. The learned Magistrate then called for a pre-sentence report, as he was entitled to do. He apparently did this in the light of a statement of material facts presented by the police prosecutor that stated the unlawful assault took the form of six punches to the face with a clenched fist by the defendant to the complainant.

11 In due course, a pre-sentence report, dated 30 January 2003, was prepared and presented to the learned Magistrate. On 7 February 2003, the matter came back on for hearing before the learned Magistrate for sentence. It appears that his Worship then decided to adjourn the sentencing proceedings for the purpose of conducting a hearing as to disputed facts before sentencing because the pre-sentence report suggested a number of "present defences" The pre-sentence report stated, in relevant respects, that:

" ... [the appellant] became involved in a dispute with the complainant over an alleged $100 debt owed to his girlfriend. The police statement of material facts indicates that [the appellant] then proceeded to assault the complainant who attempted to back away. On the day of the interview, 29 January 2003, [the appellant] claimed that the complainant punched him in the back of the head as he was walking away, and only then did he retaliate. He states he was angry but maintains it was an act of self-defence. [The appellant] states it was a stupid thing to do but claims he was provoked. He also avers that as an ex-professional kick-boxer he could have really hurt the complainant but showed a degree of control."

12 On 4 March 2003, the learned Magistrate conducted a hearing as to disputed facts. The appellant was not represented by a solicitor or counsel at this hearing. The hearing was for the purpose of deciding upon what material facts the learned Magistrate should sentence the appellant. The hearing was not a hearing of the complaint, as such. The Magistrate seems to have proceeded on the basis that the plea of guilty entered to the complaint by the appellant stood, even though questions of self-defence and provocation had been raised in the pre-sentence report. However, in the course of the hearing, the learned Magistrate appears to have given consideration to the question of provocation and self-defence.

13 The account of events given by the witnesses told of an altercation that took place between the appellant and the complainant. It had something to do with a debt owing by the complainant's girlfriend to the appellant's girlfriend. The appellant lost his temper and punched the complainant. He also took the complainant's wallet and threw it on the ground. The complainant was hit a number of times by the appellant. The appellant had been a professional kick-boxer and said that he could have hurt the complainant much more, had he wished to do so.

14 In the course of the hearing as to the material facts, it appears the appellant failed to cross-examine the complainant about the conflict in their respective version of events. However, the learned Magistrate did not allow this to influence the findings of fact that he made, noting that the complainant was somewhat vague, in any event, as to the initial events that gave rise to the ultimate altercation and the means by which he sustained bodily harm.

15 The learned Magistrate found that the appellant had struck the complainant a number of times, although the precise sequence of events was not clear.

16 In the result, the learned Magistrate was not able to say that the prosecution had established to the criminal standard of persuasion that the appellant had initially kicked and punched the complainant before taking hold of the complainant's wallet.

17 The learned Magistrate then referred to s 249 of the Criminal Code and discussed the question of provocation and self-defence. The learned Magistrate found that the appellant, if he had been provoked by the complainant, acted well beyond the range of conduct that could reasonably be viewed as proportional to the assault. He found that the appellant's actions were not authorised or excused by any of the provisions of the Criminal Code. Self-defence was not an issue.

18 The learned Magistrate then expressly found that the appellant:

" ... clearly, angered as he was at the actions of [the complainant] in attempting to recover the wallet that he had then taken hold of to act as collateral for this sum of $100 that was allegedly owed by [the complainant's girlfriend] to [the appellant's girlfriend] has then proceeded to flog him, to beat him, and to cause the injuries as described by [the complainant] and it's on that basis that I'll now proceed to sentence."

19 The complainant had described his injuries in evidence as bruising on the bridge of his nose, a cut to the eyebrow and a black eye. He also said there were marks on his throat from pressure applied by the appellant's thumb to his throat.

20 Having made the above observations, the learned Magistrate then directly addressed the question of sentence. He commenced by asking the appellant whether there was anything that he wished to say further by way of mitigation before he imposed sentence, to which the appellant said, "No."

21 The learned Magistrate then asked the appellant whether his financial circumstances were strained and whether he had paid anything off the "$8000-odd" that he presently owed by way of outstanding fines. The appellant answered this question by saying:

"No. I was just organising to get a direct debit but I just moved houses to a new address and ... "

22 The learned Magistrate then made reference to the pre-sentence report and said that the report suggested that the appellant might have some financial capacity to pay a fine. His Worship then asked:

"But you might wish to suggest to me as to the basis upon which that view might be held by the author of the report. It's not consistent, I might say, with the statement that you had at the time of the preparation of the report in excess of $8000 outstanding."

"Yes, I have, your Honour, because I had to get money just to move in, for a bond and stuff like that. But now I've got it all sorted out, so I can start paying off the fines."

23 The learned Magistrate asked for how long the fines had been outstanding. It appears they had been outstanding for some time.

24 The learned Magistrate then sentenced the appellant. Before doing so, he made the following sentencing remarks:

"This was a most serious assault. You'd made threats towards this person. For the reasons that I've just described, I've found that on the version of events as promoted by yourself, that you had taken this wallet as collateral for this alleged debt, if we can call it that, provoking the complainant to act as he did, as described by yourself and your witness, and you've then beaten him up. That's to put it in simple terms. You're a person although more slender than the other, you're not of diminutive stature.

You've indicated in the interview [which I take to be a reference to the pre-sentence report] that you have some formal training and that of itself doesn't give rise to you being exposed to more significant penalty than would otherwise be appropriate, but it does suggest that you had the capacity to effect appropriate defence from the actions of the complainant without behaving as you did in belting him not once but a number of times, to give rise to the injuries about the head. Any assault about the head region is a most serious offence, as of course is any assault, but in your circumstances you were obviously affronted by the fact that he endeavoured to get his wallet back. It's somewhat ironic, I might say, that you've taken it seems into your hands the actions that may well, if the scenario is as you've described it in the video record of interview, give rise to appropriate action by the police to fully investigate and take such action as would be appropriate, based on evidence that may be available to them.

I've examined the pre-sentence report. It suggested that you have some capacity to pay. Well that simply doesn't seem to be borne out by the long-outstanding fines that have obviously been imposed upon you previously, and given the serious nature of this assault and the actions that you took, I've reached the conclusion that there are none of the available community based options that would be appropriate in the circumstances.

I've concluded that a sentence of last resort is the only appropriate disposition of this charge, and I've further concluded that it is not appropriate to order that that sentence which I will now pronounce be suspended. Had the circumstances been that I had found that you had approached the complainant as he asserted, and assaulted him then, then the view I would have taken as to the penalty would have been even more significant than the one that I have reached the conclusion on based upon your version of events.

You'll be sentenced to serve a period of 9 months' imprisonment ... "

25 The first ground of appeal set out above involves the question whether the sentence of imprisonment was excessive. If it can truly be said that the circumstances of the case called for a sentence of imprisonment suspended, or some other sentence apart from a sentence of immediate imprisonment, and the sentence imposed was "plainly unjust", then it may well be concluded that the sentence of imprisonment was excessive.

26 The respondent contends that a variety of sentencing options were available pursuant to s 43(2) of the Sentencing Act 1995 (WA) and that the learned Magistrate obviously had regard to them. First, his Worship determined that a fine was not appropriate, given that, at the time of sentence the appellant owed a substantial sum in fines. He also determined that a community-based option was not appropriate, given the "serious nature of this assault and the action that you (the appellant) took". The learned Magistrate also determined that the term of imprisonment imposed should not be suspended. He considered that the circumstances of the case required that the penalty of "last resort" - namely, a term of imprisonment - should be imposed. The Crown accepts that the sentence imposed was at the higher end of the scale for such offending behaviour, but says that it was within the range of sentencing options - from community-based sentencing through to a term of imprisonment - and thus the sentencing discretion cannot be shown to have miscarried.

27 Counsel for the respondent rightly submits that the principles upon which an appellate court must approach an appeal from a decision in the exercise of a discretion are well established. It is not sufficient that an appellate court may have taken a different view of the appropriate sentence. It must be shown that the court at first instance has failed properly to exercise its discretion before an error of law will be found: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

28 Similarly, in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324, Gleeson CJ and Hayne J stated that the task of the Court of Criminal Appeal in hearing an appeal under s 689(3) of the Criminal Code (WA), is to determine whether there was an error made in sentencing an accused, error being understood in this context as it was explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of a discretion is reviewed on the ground that a substantial wrong has in fact occurred."

29 In Dinsdale (supra), Gleeson CJ and Hayne J characterised four grounds set out in the prosecution's notice of appeal to the Court of Criminal Appeal as amounting to one essential ground, namely, that the sentence imposed by the trial Judge was "manifestly inadequate", rather than the subject of specific error. As to what "manifest inadequacy" of sentence comprises, Gleeson CJ and Hayne J at 325 par [6] made the following observation, which also bears on the meaning of "manifestly excessive":

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

30 In Dinsdale, Kirby J at 340 par [59] made observations concerning the power to correct a manifestly inadequate or excessive sentence to similar effect. In particular, his Honour noted, at par [60], that:

"The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct 'idiosyncratic views' [footnote omitted] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate."

31 In this appeal, the power of the Court to reconsider the sentencing decision of the learned Magistrate arises pursuant to the terms of the Justices Act 1902 (WA). Unlike in Dinsdale, the power of the Court is not to be found in a statutory provision as general as that to be found in s 689(3) of the Criminal Code. Here, s 186(1)(a)(i) of the Justices Act provides that an application for leave to appeal may be made on the ground that the justices "made an error of law or fact, or of both law and fact". However, by s 186(1)(a)(iii) the Act provides that the appeal may be made on the ground that the justices "imposed a sentence that was inadequate or excessive". Thus, the dicta of their Honours in Dinsdale concerning the circumstances in which a sentence may be considered "manifestly excessive" are relevant to a proper understanding of the powers of the Appeal Court when an appeal is dealt with pursuant to the Justices Act on this latter ground.

32 Counsel for the appellant says that the facts found at the trial of the disputed facts before the Magistrate upon which he sentenced the appellant were that:

(1) there was no doubt that, as acknowledged by the defendant, the appellant struck a number of blows that caused injuries to the complainant as described;

(2) his Worship was not able to say that the prosecution had established to the criminal standard of persuasion that there was an initial kick and punch before the defendant took hold of the complainant's wallet;

(3) the appellant, having provoked the assault by the complainant, then acted well beyond the range of conduct which could reasonably be viewed as proportionate to the assault;

(4) the appellant angered by the actions of the complainant in attempting to recover the wallet proceeded to flog him, beat him and cause the injuries described by the complainant;

(5) the appellant was sentenced on the basis that he had taken the wallet as collateral for the alleged debt, provoking the complainant to act as he did to which the appellant responded by beating him up.

33 Counsel for the appellant says that the pre-sentence report referred to by the learned Magistrate plainly indicated that the appellant had some capacity to pay a fine, although there were long-outstanding fines, and that the learned Magistrate determined there was, as a result, a limited capacity to pay fines and that none of the available community-based options would be appropriate, including suspension of imprisonment.

34 On behalf of the appellant, counsel contends that a term of immediate imprisonment for 9 months for a man of 29 years of age, who was in full-time employment as a self-employed painter and who had been so employed for 13 years, who had pleaded guilty and was in a stable relationship, was excessive in all of the circumstances.

35 Counsel for the appellant refers to a number of cases which he says show that there is no discernible "tariff" in cases of assault occasioning bodily harm. Counsel for the respondent accepts there is no such "tariff" in this case and the most that can be said is that, depending on the circumstances of an assault causing bodily harm, a term of imprisonment may be considered appropriate.

36 In Kilner v The Queen [1999] WASCA 189, the Court of Criminal Appeal conducted an exhaustive review of sentences imposed for this offence. Analysis of the authorities referred to in Kilner's case suggests that a term of imprisonment seems to have been considered appropriate by the Court of Criminal Appeal in many circumstances where an attack on a person was particularly vicious and involved the use of a weapon of some sort, be it a spanner, a bar stool, various instruments, including metal knuckle-dusters, pepper spray, a screwdriver.

37 Counsel for the appellant submits that, in this case, there was no use of such a weapon and the physical attack, while plainly real, did not result in the sort of injuries that led to terms of imprisonment in the cases surveyed in Kilner's case. Rather, here, the complainant, by his own statement to the learned Magistrate on 4 March 2003, suffered a laceration to the eyebrow, a black eye, bruising to the bridge of the nose and a mark to the throat.

38 In these circumstances, counsel for the appellant submits that, having regard to the appellant's personal antecedents, in particular, his age, his full-time employment, an apparently positive pre-sentence report, no evidence that he was at risk of reoffending, and the lack of use of a weapon, the assault falls towards the lower end of the range of assault occasioning bodily harm and that the circumstances did not call for a sentence of immediate imprisonment. Counsel submits that, at most, the sentencing option of a period of imprisonment suspended would have been appropriate.

39 In my view, the submissions made on behalf of the appellant should be accepted. While it may be arguable, as the learned Magistrate ultimately decided, that a community-based supervision order was an inadequate sentence for an assault resulting in injuries to a person's head, and that the imposition of a sentence of a fine would, in the circumstances, be futile, given the apparent incapacity of the defendant at the time to pay existing fines, it seems to me that the learned Magistrate, with the greatest of respect, dismissed the option of a sentence of imprisonment suspended without fully considering it.

40 In that regard, the Sentencing Act by s 76(2) makes it plain that a sentence of suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Here, the learned Magistrate plainly considered that a sentence of immediate imprisonment was appropriate. Given the authorities canvassed by the Court in Kilner's case, that view may not be unreasonable. However, the Court was also under a clear obligation to consider the sentencing option of a suspended period of imprisonment, as Dinsdale (supra) confirms; see also R v P [1992] FCA 626; (1992) 39 FCR 276; R v Osenkowski (1982) 30 SASR 212; and Mishal v The Queen [2001] WASCA 328. Here, the learned Magistrate peremptorily stated that "it is not appropriate to order that the sentence which I will now pronounce be suspended." Shortly beforehand, the learned Magistrate considered the option of a fine and explored it at some length with the appellant. However, the sentencing option of suspended imprisonment was not explored and no reasons were given as to why it was properly to be rejected.

41 In my view, having regard to the antecedents of the appellant, which I have already set out, there would have been good reason to consider the option of a suspended sentence and to have imposed it. In particular, there was no evidence to suggest, on the basis of the existing record of offences of the appellant, that he would be likely to reoffend in the manner complained of in the complaint before the learned Magistrate.

42 I consider, in all the circumstances of the case, that the imposition of a sentence of immediate imprisonment of 9 months for the offence was unjust and excessive, having regard to the fact that this was the first time the appellant had been convicted of such an offence and that his antecedents were in his favour. I consider that a sentence of a term of imprisonment suspended would have been the appropriate sentence.

Whether the sentencing discretion miscarried in relation to the option of suspended imprisonment

43 Having regard to the matters set out above, the evidence before the Court also suggests that the learned Magistrate failed fully and properly to consider whether or not the sentencing option of a suspended imprisonment should be imposed in preference to a sentence of immediate imprisonment. However, as I consider the appeal should succeed on the basis of ground 1, it is redundant to make any findings on this ground.

Whether the procedure adopted by the Court denied the appellant natural justice

44 The appellant also says that the learned Magistrate erred in law in failing (1) to advise him, he being a self-represented defendant, that he was contemplating an order of imprisonment and (2) to provide him with the opportunity to seek legal advice and representation before sentence was passed. Even though I would allow the appeal on the ground specified in ground 1, it is appropriate to make some observations concerning this ground as it was fully argued before me.

45 Counsel for the appellant contends that a self-represented defendant must always be apprised of his rights and duties and the Court should take whatever steps in this regard as are necessary before sentence is passed.

46 In Wood v Marsh [2003] WASCA 95, the Full Court of this Court recently commented on the approach which a Court should take when an unrepresented person attends at court and pleads guilty to an offence. Malcolm CJ (with whom Murray and Anderson JJ agreed) accepted what the Full Court of the Supreme Court of South Australia stated in Cooling v Steel (1971) 2 SASR 249 at 251 as follows:

" ... the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.

If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath ... and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed [1970] SASR 374 and R v Maitland [1963] SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.

In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding."

47 In Wood v Marsh at [39], the Chief Justice also cited with approval what Wheeler J said in State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278 at 279:

"There are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.

In Cooling v Steel (1971) 2 SASR 249 at 250, Wells J noted that:

'It is imperative ... that courts of summary jurisdiction should follow practices that will avoid the possibility that a party ... should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him'.

The guidelines for dealing with unrepresented defendants, which his Honour derived from that general expression of principle, have been followed in many jurisdictions, including Western Australia (eg Jones v Holmwood [1974] WAR 33).

The danger that an accused person will not understand proceedings or will, for some other reason, fail to 'give a good account' of him or herself is obviously most pronounced in those cases where the person is unrepresented. However, counsel, and particularly duty counsel, in Courts of Petty Sessions are often faced with inadequate time to consult with clients, and with clients who, because of anxiety about the imminent proceedings, or for other reasons, are unable to give instructions with the detail and conciseness that would assist counsel in representing them appropriately."

48 In Wood v Marsh at [38] Malcolm CJ further stated that:

"It is important that any Court and, in particular, a Court constituted by Justices of the Peace, ensure that a defendant who appears before them is apprised not only of his or her rights, but also of his or her duties."

49 In Wood v Marsh, there was no evidence put forward by the Crown on the appeal against a sentence, in which a fine was imposed and an order made for restitution, that the Justices of the Peace who dealt with the matter were satisfied, or took any steps to enable themselves to be satisfied, that the appellant understood his rights and was aware of the various matters referred to in Cooling v Steel. The Chief Justice accepted that it was clear that the appellant did not understand the nature and seriousness of the charges against him, in the sense that a conviction could lead him to have a criminal record; that he had a right to legal representation and a right to apply for an adjournment to obtain legal advice or representation; what sentence could be imposed; his entitlement to make submissions on penalty; his right to dispute the statement of material facts; or that he was entitled to make submissions about a spent conviction order, having regard to s 6 and s 39 of the Sentencing Act 1995, or obtain further evidence in support of a spent conviction order.

50 The principles identified by the Full Court in Wood v Marsh derive from the fundamental principle that, as a matter of natural justice, a defendant appearing in a court is entitled to be heard and be legally represented: see Wood v Marsh per Malcolm CJ at [38]. It follows, that whether or not there has been a denial of natural justice in any given case depends very much on the particular circumstances in which a Court deals with a defendant. Not every case in which a defendant is denied a remand or adjournment to obtain legal advice or appears in a court without legal representation will necessarily amount to a denial of natural justice. However, as the authorities show, a refusal to consider, or raise the question whether, a remand or adjournment to obtain legal advice or to obtain legal representation is required, having regard to the seriousness of the matter before the Court, will constitute a denial of natural justice.

51 In this regard, counsel for the appellant also refers to recent decisions of the Supreme Court of South Australia that have applied Cooling v Steel. In Franks v Police [1998] SASC 6897, Bleby J said:

"It is well settled that in the case of a self-represented defendant, where a magistrate is contemplating an order of imprisonment, the defendant should be informed of that and be given an opportunity of seeking legal advice: Cooling v Steel; Ivanoff v Linnane (1979) 20 SASR 279. The principles expounded by Wells J in Cooling v Steel require that a self-represented defendant is appraised [sic] of his rights and duties at all times, and that the court should take whatever steps are necessary to ensure that the proceedings are free of error or misunderstanding."

52 Further, in Caston v SA Police [2002] SASC 222; (2002) 132 A Crim R 11, Wicks J at [18] observed:

"However, if a custodial sentence is in contemplation, as was the case here, the learned Magistrate should have warned the appellant to the possibility that he might receive such a sentence and offered to grant him an adjournment to enable him to obtain the services of counsel or at least, the services of a solicitor, to advise him generally on his situation. As far as I can ascertain from a perusal of the court file and the Magistrates' Court file, no warning of the kind suggested was given to the appellant."

Wicks J also expressly referred to Cooling v Steel and Ivanoff v Linnane (1979) 20 SASR 279.

53 Counsel for the respondent submits that the decisions of Franks v Police and Caston v SA Police do not represent the law in Western Australia. In my view, the principles enunciated in each of these recent decisions of the Supreme Court of South Australia apply the same principle of natural justice that is reflected in the decision of the Full Court of this Court in Wood v Marsh. Thus, while there is no overriding right to legal representation in every case in a Magistrate's Court, or when a matter is called on before Justices of the Peace, to be dealt with in a summary manner, the question of a defendant obtaining legal advice or legal representation should be addressed in appropriate cases to ensure that the right of a defendant to be heard is a real right as against one to which lip-service only is paid. The need to address this issue becomes especially pertinent when a custodial sentence is in contemplation.

54 The question in this appeal is whether, having regard to the principles enunciated by the Full Court in Wood v Marsh, it can be said that the appellant was denied natural justice when he was sentenced by the learned Magistrate on 4 March 2003. In that regard, I have already noted the unusual procedural background to the sentencing process. While it appears that, in the appellant's earlier appearances in the Court of Petty Sessions to answer the complaint in question, the matter may have been the subject of a remand to enable him to obtain legal advice, there is no evidence before me to show that he did, in fact, obtain any legal advice or that he was legally represented at any material time thereafter in relation to the hearing of the complaint the subject of this appeal. Indeed, when he, on 17 January 2003, changed his plea of not guilty in relation to the complaint to one of guilty, the appellant plainly was not legally represented before the learned Magistrate. The fact that then, and on 4 March, when the hearing as to the disputed facts was conducted, the appellant expressed remorse and repeated his expression of remorse, but otherwise had very little to say, suggests that the appellant largely fell on the mercy of the Court when appearing for sentence.

55 The learned Magistrate, no doubt having regard to the substance of the principles referred to by the Full Court in Wood v Marsh concerning the rights of a self-represented defendant and the duties of a Court in respect of a self-represented defendant, on 7 February 2003, in light of what was stated in the pre-sentence report, required a hearing as to disputed facts. That hearing took place on 4 March 2003. In the course of that hearing his Worship appears to have considered the questions of self-defence and provocation. This shows that his Worship was alert to the need to ensure that the defendant was sentenced on a proper assessment of the facts relating to the matter to which he had pleaded guilty. Indeed, the learned Magistrate appears, following the hearing in relation to the disputed facts, to have sentenced the appellant on an account of the facts that was closer to the account provided by the appellant than it was to the account provided by the complainant.

56 Be that as it may, the circumstances were that, on 17 January 2003, when the appellant appeared before the learned Magistrate and changed his plea to one of guilty to the complaint of assault occasioning bodily harm, the appellant was a self-represented defendant and the material facts stated by the police prosecutor to the Court alleged that some six blows to the body of the complainant were made by the defendant. The statement of material facts also alleged injuries about the head of the complainant. The apparent seriousness of the assault caused the learned Magistrate, of his own volition, then to call for a pre-sentence report. That his Worship called for the report may suggest that he recognised that the assault, on the face of it, was a serious one and that a sentence of imprisonment may be appropriate. Nothing produced in evidence before me suggests that his Worship warned the appellant of this sentencing prospect or suggested the appellant give some consideration to taking legal advice or obtaining legal representation.

57 It may be said that, by calling for a pre-sentence report, the learned Magistrate acted to ensure, as far as possible, that factors relevant to the sentencing decision would be placed before him, including those favourable to the appellant. However, there is no submission before me that a pre-sentence report is a substitute for the right of a defendant to be represented by counsel for the purpose of making an appropriate plea in mitigation and I do not consider that it is. Indeed, in some circumstances, a self-represented defendant, or a defendant represented by counsel, may wish to make submissions challenging the content of the pre-sentence report that is before a judicial officer. In this case, there is no indication that the whole of the pre-sentence report considered by the learned Magistrate was read by, or shown to, the appellant to permit him to make any observations on it that he thought might be appropriate. Only the passage concerning capacity to pay a fine was referred to by his Worship on 4 March 2003.

58 In my view, it is apparent from a perusal of the transcript of the hearing on 4 March 2003 that the appellant was at something of a disadvantage during the whole of the hearing on 4 March 2003. He was legally unrepresented. His ability practically to conduct a useful cross-examination of the complainant, or to give useful, complete testimony on his own account as to what occurred during or prior to the assaults in question, was diminished. The learned Magistrate noted that cautions given to the appellant about ensuring that he put his case to the complainant were not followed. The appellant seems to have been somewhat overawed. While it is clear that the learned Magistrate did not hold against the appellant his failure to examine or cross-examine in the manner that a competent legal counsel may have done, the manner in which the proceedings were conducted emphasises that the appellant was at something of a disadvantage.

59 When it came to the sentencing process following the trial on the disputed facts, the only thing that the appellant had to say, which he had previously said, was that he was sorry about what happened and sorry that he was wasting the Court's time. He then asked the learned Magistrate:

" ... if you could be lenient with me I ... it would never happen again."

The appellant put himself very much at the mercy of the Court.

60 The learned Magistrate, as noted above, specifically addressed the question of whether a fine might be an appropriate sentence in all the circumstances, but, having regard to outstanding fines of the defendant, considered that he had no capacity to pay. For that reason, that sentencing option was put to one side. As a result, it seems that the only questions then remaining for consideration by way of options to the learned Magistrate were sentences of imprisonment or suspended imprisonment.

61 On the evidence before me, it is reasonable to conclude that, at all material times in this sentencing process, the Court did not explicitly bring to the attention of the appellant that he was at risk of being imprisoned. Nor does the appellant himself seem to have appreciated that the learned Magistrate might sentence him to a term of imprisonment. The appellant only expressly addressed the question of his capacity to pay a fine when that question was raised by the learned Magistrate. As noted above, he responded to questions from the Magistrate about his capacity to pay a fine and indicated that he had moved residence and had had to pay money for a bond "and stuff like that". He indicated that he now had that all "sorted out, so I can start paying off the fines."

62 In all of the circumstances of the case, I have a real reservation about the extent to which the Court brought to the attention of the appellant his entitlement to seek legal advice or representation because of the seriousness of the charge and the real possibility that a sentence of imprisonment might be imposed following his plea of guilty. While the appellant, as the matter proceeded, was accorded the right to dispute material facts alleged by the prosecutor, once those facts were found by the learned Magistrate on 4 March 2003, nothing further was said by the Court before the sentence of imprisonment was imposed to apprise the appellant of the seriousness of the offence and the likelihood that he might suffer a sentence of imprisonment; nor was he afforded the opportunity to seek an adjournment to obtain legal advice or to have counsel or a solicitor make further representations on his behalf before sentence was imposed.

63 However, in light of my finding that the appeal should be allowed on ground 1, it is not ultimately necessary for me to make any finding on this ground.

64 The appeal should be allowed on ground 1 specified above.

65 I note that, in this case, prior to being granted bail by order of McKechnie J made on 31 March 2003, the appellant commenced serving the sentence of imprisonment of 9 months on 4 March 2003. Thus, he served approximately 27 days, or 1 month of the 9-month period of imprisonment. This time in custody should be taken into account in reconsidering what sentence should now be imposed.

66 This is a case where I consider the Court should exercise its discretion under the Justices Act to impose a sentence in lieu of that imposed by the learned Magistrate. I order that the appeal be allowed, the sentence of 9 months' imprisonment be set aside and that a sentence of 9 months' imprisonment suspended for 6 months be substituted in its place. I will hear further from counsel as to the formal terms of this order.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (106 paragraphs)

Whether the sentencing discretion miscarried in relation to the option of suspended imprisonment

Whether the procedure adopted by the Court denied the appellant natural justice

Parties

Cases Cited (9)