Moody v French

Criminal Appeals Act 2004 (WA), s 14(2), s 40(1)(e)

Sentencing Act 1995 (WA), s 86

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Powell v The State of Western Australia [2010] WASC 54

Pustkuchen v The State of Western Australia [2010] WASCA 11

Royer v The State of Western Australia [2009] WASCA 139

Wallam v Dent [2008] WASC 170

(Delivered orally shortly after the conclusion of submissions and edited from the transcript.)

1 The appellant, at all times in this appeal, has represented himself.

2 On 8 September 2009, the appellant appeared in the Fremantle Magistrates Court to face two charges. The first charge, which is the only one the subject of this appeal, FR 11872 of 2009, alleged that, on 31 December 2008 at Munster, contrary to s 444(b) of the Criminal Code (WA), the appellant:

[W]ilfully and unlawfully damaged the front passenger door window of a Ford Falcon registration number 1COU 141, the value of such damage amounting to $250 the property of Hills Pet Nutrition Pty Ltd.

3 The second charge, FR 11873 of 2009, alleged that, on the same date and place as the first charge, contrary to s 378 of the Criminal Code, the appellant:

[S]tole $400, Nokia 6200 mobile telephone, Medicare card, a Rockman store card, WA MDL in the name of victim, brown tan coloured purse, black leather handbag and a set of keys, to the value of $700, the property of Kylie Thompson.

4 The appellant's appearance was his first for these charges. He was represented by duty counsel. Duty counsel entered pleas of guilty on behalf of the appellant. The summary conviction penalty for the offence of wilful damage is 3 years' imprisonment and a fine of $36,000. The summary conviction penalty for stealing property worth $1,000 or less is a fine of $6,000: s 426(4) Criminal Code.

5 The learned magistrate sentenced the appellant to 2 months' imprisonment on FR 11872 of 2009 cumulative upon a 28-month sentence of imprisonment he was then serving. On FR 11873 of 2009 the learned magistrate fined the appellant $500. I note in passing that the 2-month sentence did not offend s 86 of the Sentencing Act 1995 (WA) because the appellant was already serving a term of imprisonment.

6 At the outset of the appeal there was only one ground of appeal as set out in the amended appeal notice. This ground was in the following terms:

The magistrate heard no mitigating submissions from my legal aid lawyer. The said damage was under $1000 being $250. The offence occurred around the same time as others im [sic] currently imprisoned for. Early plea of guilty. Requesting 2 months to be run concurrent.

7 At the hearing of the appeal, and with the consent of the respondent, I gave leave to the appellant to add a second ground of appeal in the following terms:

The learned magistrate erred in fact by sentencing the appellant substantially on the facts relevant to charge FR 11873/09 and not FR 11872/09.

8 The first ground of appeal encompasses a number of different complaints about the sentencing proceedings and the outcome of those proceedings. I will come to this ground shortly.

9 In order to understand the second ground of appeal it is necessary to understand what occurred on the day the appellant was sentenced.

10 Duty counsel was provided by the prosecution with a Statement of Material Facts for the two offences. The alleged facts were:

Between 9.45am and 10.45am on Wednesday 31 December 2009 [sic 2008] the accused was in Woodman Point carpark, Woodman Point View, Munster.

Whilst at this location he approached a grey Nissan X Trail, registration number 1CVV737 which was parked in the carpark. He gained access to vehicle by smashing the front passenger window by unknown means.

The accused made a search of the vehicle and stole items from within which include, $400 Australian dollars, a Nokia 6200 mobile telephone worth $500, a brown tan coloured purse worth $100, black leather handbag worth $200 and a set of keys and a medicare card, a Rockman store card and a WA MDL all in the name of the victim.

The [appellant] approached a silver Ford Falcon, registration number 1COU141 and damaged the vehicle by smashing the passenger side front window. Whilst inside the vehicle he rummaged through the centre console and glove box but [did] not steal any items.

A forensic examination of the vehicle was conducted which identified the accused's blood on the dashboard on the passenger side.

The accused was interviewed in relation to the matters and could not account for why his blood was inside that vehicle. He does not know the owner of either vehicle and cannot remember what he was doing at the time and day of the offence as it was so long ago.

11 It is obvious from the statement of material facts, that during the one incident on 31 December 2008 the appellant broke into two vehicles. The first being a Nissan X Trail from which he stole a number of items. The second vehicle, which he broke into very shortly after the first, was a silver Ford Falcon from which he stole no items.

12 I note that although it was alleged that the appellant smashed the front window of the Nissan X Trail, he was not charged with wilful damage to this vehicle. In relation to this vehicle he was only charged with stealing its contents. As a result, he was only liable to be fined for his conduct concerning this vehicle.

13 When the appellant appeared before the learned magistrate the charges were read to him and he was asked if he understood them. The appellant replied that he did. Duty counsel then entered the appellant's pleas of guilty on behalf of his client. The learned magistrate was content to take the pleas from counsel. With great respect to him, the pleas should have been taken from the appellant himself. However, nothing turns on this here. Out of caution, I enquired from the appellant about his pleas. He made it clear that he accepted responsibility for his actions and that he did not wish to make any point about the way in which the pleas were entered.

14 The learned magistrate recorded the pleas of guilty and then requested that the police prosecutor read the facts.

15 The facts read by the police prosecutor were as follows:

It was between 9.45 am and 10.45 am on Wednesday, 31 December 2008, the accused was in Woodman Point carpark at Woodman Point in Munster. Whilst at the location he approached a grey Nissan X-Trail vehicle which was parked in the carpark. He gained access to the vehicle by smashing the front passenger window. The accused made a search of the vehicle and stole items from within which included $400 in cash, a mobile phone worth $500, a purse valued at $100, a handbag worth $200, some keys and a Medicare card (ts 2).

16 The learned magistrate then queried the total value of the items stolen from the vehicle. The police prosecutor told his Honour that the total value was $700, in accordance with the amount in the prosecution notice.

Further, whilst inside the vehicle he rummaged through the console, the glove box. Forensic examination located his blood on the dashboard passenger side of the vehicle. He was interviewed. He couldn't account for why his DNA was on the vehicle. He doesn't know the owner of the vehicle. He didn't remember what he did that day. The present charges were preferred (ts 3). (emphasis added)

18 When a comparison is done between the facts alleged in the statement of material facts and the facts proffered by the police prosecutor, it is evident that the prosecutor did not make it clear to the learned sentencing magistrate that the stealing charge related to the Nissan X Trail and that the damage charge related to the Ford Falcon. He conflated the two events. This is evident by the use of the phrase 'whilst inside the vehicle' in the context of the Nissan X Trail. Further, he omitted to make any reference to the Ford Falcon. He did not make it clear that the damage charge related to the Ford Falcon. It appears that the police prosecutor thought that both offences related to the Nissan X Trail and that he failed to appreciate that the damage charge related to the Ford Falcon and not the Nissan X Trail.

19 This error was not picked up by his Honour or duty counsel although the prosecution notices refer to different vehicles. No doubt all were working under pressure in a very busy court.

20 His Honour's sentencing remarks make no mention of the two cars. They are brief and are as follows:

But I am concerned about the incidents of car breaking which is going on at the present time. It's a very common offence. It's an offence that is difficult to detect and easy to commit.

People need the ability to repose some degree of trust or confidence in their car which is not only a mode of conveyance but also a store place for some people. For example, for businesses and people who should be entitled to keep their personal belongings in the car. There shouldn't be a culture of not being able to do that simply because so many people are committing this offence.

That will be punishable by a term of imprisonment, which I intend to make cumulative upon his present term, but taking into account the totality principle in one sense I will modify the term of imprisonment to a term of two months' imprisonment, which will be cumulative upon the concurrent sentence, and he is eligibility for parole.

In the other matter, treating it as a stealing of a total value of $700, I fine him $500 (ts 4).

21 When the error was raised by the appellant at the hearing of this appeal, counsel for the respondent acknowledged that an error had been made and consented to the grounds of appeal being amended to include ground 2. The respondent conceded that ground 2 has been made out. In my view, this concession was properly made. I uphold ground 2.

22 In light of this, it is unnecessary for me to decide the various complaints raised in ground 1. However, for the sake of completeness, I will say something about each matter contained in this ground, save for the last sentence which is really the appellant's prayer for relief.

23 I will deal first with the complaint contained in the sentence, 'The learned Magistrate heard no submissions from my Legal Aid lawyer'. It is clear from the transcript that duty counsel took an active role and addressed the court at a number of points in the proceedings. At no point did his Honour in any way restrict duty counsel in his participation in the proceedings. Duty counsel told his Honour that the pleas of guilty were being made at the first appearance. Duty counsel made submissions, albeit brief submissions, on the appellant's criminal history, the sentences the appellant was then serving and the appropriate sentences his Honour should impose. In my opinion, this aspect of ground 1 has not been established by the appellant because it is clear that the learned magistrate heard submissions from duty counsel.

24 The second complaint in ground 1 is that the said damage was under $1,000, being $250. This complaint reflects a misunderstanding as to the sentencing options open to his Honour with respect to the charge of wilful damage. While no sentence of imprisonment could be imposed on the charge of stealing property to the value of $1,000 or less, a sentence of imprisonment was available on the charge of wilful damage even though the value of the window that was smashed was $250. This aspect of ground 1 has not been made out by the appellant.

25 The third complaint is that 'the offence occurred around the same time as others I am currently in prison for'. It is true that the appellant committed the offence of damage during the period in which he committed the offences for which he was sentenced to 28 months' imprisonment. As I understood it, this aspect of ground 1 was a complaint that the learned magistrate failed to have regard to the totality principle.

26 There is no need, in the circumstances of this appeal, to examine in detail the authorities relating to the totality principle. I only need refer for current purposes to what was said by Owen JA with whom McLure P & Newnes JA agreed in Pustkuchen v The State of Western Australia [2010] WASCA 11 [36] - [38]:

The totality principle and the authorities in which it has been explained are well known. The principle has been described as having two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Secondly, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: see the authorities collected in Pollock v The State of Western Australia [2009] WASCA 121 [24] - [25].

A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences.

In Jarvis v The Queen (1993) 20 WAR 201 at 205 Ipp J described a 'crushing' sentence as one that:

(a) leaves the offender with no hope for the future;

(b) would provoke a feeling of hopelessness in the offender if and when he is released; or

(c) destroys a reasonable expectation of a useful life after release.

27 I accept that as the offending occurred during the period in which he committed other offences for which he was serving a lengthy total sentence the totality principle had to be considered by the learned magistrate. However, it is plain from his Honour's sentencing remarks that he not only considered the totality principle but he reduced the sentence because of it. Although it is not clear which limb of the totality principle he invoked, I am satisfied that it was invoked and mitigating weight was given to it. This aspect of ground 1 has not been made out by the appellant.

28 I now turn to the complaint concerning the early plea of guilty. I accept that the appellant entered an early plea of guilty. I also accept that his Honour made no mention of it in his sentencing remarks. Section 8(2) of the Sentencing Act makes it clear that a plea of guilty is a mitigating factor. In Moody v French [2008] WASCA 67; (2008) 36 WAR 393, Steytler P, Wheeler, McLure & Buss JJA in their joint judgment [35] said that while it is not mandatory to reduce a sentence on account of a plea of guilty, in all but the most exceptional cases, a plea of guilty will have that effect.

29 Section 8(4) of the Sentencing Act provides:

If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.

30 Plainly, the learned magistrate failed to comply with this requirement. However, this failure does not amount to an appealable error: Royer v The State of Western Australia [2009] WASCA 139 [59] - [60]. The issue is whether in fact the court reduced the sentence by virtue of the plea and if it did not was that approach justified: Royer v The State of Western Australia [60].

31 In the present case, because of the factual error that was made it would be completely academic for me to engage in this enquiry and I will not do so. However, acknowledging as I do that Magistrates Courts are very busy places where time does not always allow for lengthy and comprehensive sentencing remarks, care should be taken not to overlook the requirement in s 8(4) of the Sentencing Act.

32 The purpose of the subsection is to provide transparency to the sentencing process by allowing the offender and the public to understand how a sentence was arrived at. In the context of a Magistrates Court, all that will usually be required is a short statement acknowledging the plea of guilty and stating that the sentence has been reduced because of it. There is no requirement to quantify the reduction. If no mitigating weight is to be accorded to the plea of guilty the magistrate must say why.

33 Let me now return to ground 2 and to the consequences which flow from it being upheld. The respondent submitted that the error of fact disclosed in ground 2 did not give rise to a substantial miscarriage of justice and the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) applies. Section 14(2) of the Criminal Appeals Act provides:

...

(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

34 In light of the decisions of this court in Wallam v Dent [2008] WASC 170 [31] - [33] and Powell v The State of Western Australia [2010] WASC 54 [91], it is now settled that the proviso potentially applies to appeals against sentence from a magistrate. In a sentencing appeal the proviso will apply if it is established that the error or errors made by a court at first instance would not have led to any reduction in the sentence that was imposed by that court.

35 The appellant's case was that while he deserved 2 months' imprisonment for damaging the Ford Falcon it should be served concurrently with the 28-month term he is currently serving.

36 The respondent's case is that the damage to the Ford Falcon was a serious offence in the circumstances and warranted an immediate term of imprisonment, no different to the one imposed by the learned magistrate.

37 The appellant should have been sentenced for the damage offence on the basis that he deliberately broke the window of the Ford Falcon intending to steal property inside the car although no property was in fact stolen. In my opinion, although the value of the damage was small, this was not a trivial offence. Offences such as this are all too common. Cars left in public car parks are vulnerable to this kind of offending and it is conduct which needs to be deterred.

38 The appellant acted deliberately and selfishly without regard to the inconvenience that his offending must have caused to the owner of the vehicle. In terms of mitigation there is nothing in the appellant's personal circumstances which warrants leniency. He had several prior convictions for damage for which he had been fined and imprisoned. Personal deterrence is a matter of relevance in this case.

39 He was, at the time of the offending, a mature man. It seems that his offending was as a result of his drug addiction. While this might explain his actions it does not provide any mitigation. However, the appellant did - as I have already observed - plead guilty at the first opportunity. Further, he was at the time serving sentences of imprisonment which totalled 28 months.

40 The plea of guilty and the totality principle afford mitigation in this case. Having said that, this was separate offending on a different day to his other offending. Taking everything into account and having regard to s 6 of the Sentencing Act, the only appropriate penalty here was a term of immediate imprisonment.

41 In my view, the appropriate term for this offence was the term that was imposed by the learned magistrate, that is, a term of 2 months' imprisonment. That term of imprisonment should be served cumulatively to the terms of imprisonment the appellant is currently serving. In my opinion, to do so would not offend either limb of the totality principle and would recognise that the appellant's conduct was separate offending committed on a different day to the other offending for which the appellant had already been punished.

42 For these reasons, although error has been established, it has not given rise to a substantial miscarriage of justice. The appropriate order is that the appeal be dismissed.