Supreme Court of WA|2007-10-12|Before: Kechnie J, Magistrate P

NARKLE -v- HAMILTON [2007] WASC 236 (12 October 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NARKLE -v- HAMILTON [2007] WASC 236

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Whether time spent in custody for another offence to be taken into account - Plea of guilty - Requirement for plea to be taken into account

1 McKECHNIE J: On 24 May 2005 the appellant was charged with unlawfully and indecently assaulting the complainant on 18 February 2005. In May 2005 the appellant was in custody on another matter. He was remanded in custody. In due course, the other matter was discontinued and the appellant was granted bail in respect of this offence. He served some 443 days in custody on the other matter.

2 On 27 July 2007, a few days before the trial was to commence, the appellant pleaded guilty. On 24 August 2007 the magistrate heard the prosecution statement of facts and the plea in mitigation. He remanded the appellant on bail pending a pre-sentence report. On 21 September 2007 the appellant was sentenced to a term of 8 months' imprisonment.

3 The appellant seeks leave to appeal against that sentence and also applied for bail. On Monday, 8 October 2007, I granted bail and made an order for expedition of the application for leave to appeal and appeal to be heard together on Wednesday, 10 October 2007 at 9.15 am. The appellant filed amended grounds. The appellant failed to appear on 10 October 2007. The hearing proceeded in his absence. At the conclusion, I reserved my decision and issued a bench warrant for his arrest.

4 The amended grounds display sufficient merit for a grant of leave.

Proceedings before the magistrate on 24 August 2007

5 The appellant and the complainant were known to each other. On 18 February 2005 at about 9.00 pm they were in a delicatessen in Armadale. While there the appellant approached the complainant and asked for sex. She declined. She went inside. The appellant continually asked her to return to his house and she further declined. The appellant then squeezed her firmly on the buttocks. Thereafter he ran his right hand down the front of her left hip and touched her to the side of her groin. The complainant pushed his hand away and told him not to touch her in that manner.

6 The prosecutor characterised the offence as 'a relatively minor indecent assault'. He submitted:

The offence cannot be characterised as being at the higher end of the scale of seriousness. Nevertheless, the accused made persistent attempts to touch the complainant in the context of having propositioned her for sex and she having declined.

7 The prosecutor submitted in due course that the matter could be dealt with by way of a community based order, or potentially by way of fine. The prosecution expressly did not call for imprisonment.

Mr Narkle does accept that he's touched her as alleged and that ultimately that wasn't - or those advances I suppose weren't welcome but we have really in my submission a situation touching on the outside of the clothes. It's a mature complainant and it's a matter in which, in my submission, is very much towards the lower end of the scale. (ts 5)

9 Counsel then made a submission for release without a sentence under the Sentencing Act s 46. The submission was repeated on appeal. Such a submission could best be described as hopeful. The offence is neither trivial nor technical - pre-conditions to the exercise of power under s 46. Unsurprisingly, the magistrate rejected the submission.

10 Counsel drew attention to the period of 443 days spent in custody and submitted that under the Sentencing Act s 87 the magistrate could take time on remand into account.

11 In the course of discussions with counsel the magistrate said:

But it can't be said that because he was acquitted he spent time in gaol unjustly. In fact, he spent time in gaol pursuant to the justice system. So that's not unjustly time in gaol. He was acquitted. It's not unjust. It's not injust; it's the way it is. (ts 14)

12 The matter was adjourned until 21 September 2007 for sentencing. The magistrate noted that the penalty for the offence, if dealt with on indictment, is 5 years' imprisonment, but 2 years if dealt with summarily. The magistrate accepted it could be dealt with summarily as the offence 'cannot be characterised as being at the higher end of the scale'. He described the actions of the appellant as:

[C]learly the act of a sexual predator ... This behaviour by [the appellant] appears not to be an aberration to his way of life, but to be his way of life. It was grossly inappropriate for [the appellant] to touch this lady in the intimate manner that he did, when she had clearly refused his persistent proposition for sex.

The fact that he only touched her once on the groin is not the only measure of the degree of severity of this indecent assault. The contempt of his actions towards the lady and the indignity suffered by her, by his behaviour, are factors probably far more significant than the simple counting of the number of times he touched her on the groin.

13 The magistrate did not refer to the days spent in custody. What he said was:

Given the fact that [the appellant] appears to be a sexual predator, who very readily slips into the role when the opportunity presents itself. Despite the perception that this is only a minor indecent assault, I think that society is entitled to some protection from [the appellant], at least for the course of the prison sentence that is about to be imposed.

... I think that the appropriate penalty to be imposed in the circumstances is one of 12 months' imprisonment, reduced by four months, to reflect the plea of guilty and the transitional provisions of the Sentencing Act.

The learned Magistrate erred when he determined to impose a sentence of immediate imprisonment without properly considering relevant and lesser alternatives.

14 The appellant's submissions are in the alternative. First, it is submitted that the magistrate ought to have exercised discretion under the Sentencing Act 1995 (WA) s 87(b) and was in error not to do so. Alternatively, if s 87(b) did not apply, the magistrate ought to have taken the days spent in custody, on the unrelated matter, into account as part of the antecedents of the appellant and reduced the sentence accordingly.

Sentencing Act 1995 (WA) s 87

15 The discretion to take time into account can only be exercised if the offender has previously spent time in custody in respect of that offence and for no other reason. There may be a gloss on that section so that the court looks to the substantial reason for the appellant being in custody: R v Jones (Unreported, WASC, Library No 970210, 30 April 1997). The appellant relies on the decision of Steytler J in King v The Queen [2001] WASCA 198. Steytler J was in disagreement with the majority judgment in some respects:

Rather, the legislature must have intended only that credit should not be given in respect of time in custody when that time was not, for sentencing purposes, able to be attributed solely to the offence or offences (see, in this respect, s 10(b) of the Interpretation Act 1984) in respect of which the offender was then being sentenced. [12]

16 Steytler J was dealing with a case where the applicant was convicted of multiple offences at the one time. Wheeler J (with whom Wallwork J agreed) was unable, on the facts, to reach a conclusion about s 87 but, in any event, concluded that no error was shown in backdating for discretionary reasons.

17 In Palmer v The Queen [1999] WASCA 253 the court held that the time of 7 months spent in custody in relation to a conviction, which was overturned by the Court of Appeal, could not be taken into account under the Sentencing Act s 87. I do not read Steytler J as expressing a contrary view in King v The Queen. Indeed, I consider his judgment follows the principle established in Palmer.

18 The matter must be approached in a practical way. The substantial reason for the appellant being in custody was not because he was charged with this offence but because of the other far more serious offence. This was confirmed by the fact that when the other matter was discontinued the appellant was granted bail in respect of this assault.

19 I hold that the Sentencing Act s 87 has no bearing on the case.

Can the time spent in custody for another offence be taken into account?

20 In Brian Mickelberg v The Queen (Unreported, WASCA, Library No 5509, 19 September 1984) Wallace and Pidgeon JJ held that time spent in custody in respect of a conviction, which was overturned on appeal, could not be taken into account by a sentencing judge in respect of another offence. Any intervention was a matter for the Executive. Kennedy J dissented on the basis that it was wrong to fail to take into account the period spent in custody just as other factors personal to the accused must be taken into account.

21 The issue arose again in Palmer v The Queen following the court's rejection of s 87. Malcolm CJ said:

The fact that the applicant did spend time in custody is, however, a part of the applicant's antecedents and a matter to be taken into account in the context that it was time in relation to offences in respect of which his convictions were quashed by this Court. It is accepted that it would not be proper simply to give the applicant credit for that time in custody in relation to his sentences for the present offences. [22]

In principle, as it seems to me, it is only when the time in custody is solely related to the criminal process in relation to the offence or offences for which the prisoner is to be sentenced that it may be taken into account as a reason for reducing the sentence imposed below that which would otherwise be proportionate to the offence or offences committed, preferably by backdating the sentence. To my mind the logic of that reasoning is inescapable when one considers that in a case such as this, no 'credit' would be available if the applicant had not committed the offences for which he was sentenced on 9 April. [39]

23 The decision in Brian Mickelberg v The Queen was apparently not cited to the court in Palmer v The Queen.

24 In the result, there is irreconcilable Court of Criminal Appeal authority on the issue. While normally one might accept the later decision as authoritative, the absence of reference to the earlier decision weakens its authority.

25 There is good reason for declining to take into account time served on an unrelated matter. It is not equivalent to a bank balance to be drawn on until it is exhausted: R v Arts & Briggs [1998] 2 VR 261 at 264. A person who was acquitted after some time in custody might commit a further crime with immunity from punishment if time spent in custody was automatically deducted from a sentence for further offending.

26 However, the view to which I incline is that the time spent in custody on another matter is part of the general antecedents of an offender to be taken into account and given such weight in the sentencing process as is appropriate. On some occasions that may mean a reduction in sentence approaching an arithmetical calculation; on other occasions little, if anything, may be allowed in respect of it.

27 Probably because of the magistrate's views, as set out earlier, when he came to sentence he did not refer to the time spent in custody on the unrelated matter. In Palmer v The Queen, the Chief Justice spoke about the applicant's efforts at rehabilitation, albeit in the context that they were not prejudiced by leaving him with a sense of injustice.

28 The pre-sentence report that the magistrate obtained demonstrates eloquently the lack of insight or prospect of rehabilitation for the appellant, whether with or without a sense of grievance. While the appellant has been deprived of those days of freedom, there is little to show that he has gained from the experience. I acknowledge that he may feel a sense of grievance but as the magistrate pointed out, it is neither just nor unjust that he spent such time in custody. It is a concomitant of the criminal justice system, and in particular the provisions of the Bail Act 1982 (WA) that innocent persons will be remanded in custody from time to time.

29 I am not persuaded that the magistrate erred in the exercise of his discretion by in failing to take into account the time spent in custody.

30 I turn to the actual sentence. True it is that the offence was not of the greatest seriousness. The magistrate recognised this by accepting jurisdiction to deal with it. Having regard to the definition of 'to sexually penetrate' in the Criminal Code s 319, it is likely that an indecent assault will generally occur in situations similar to the present; that is, a touching of an intimate area above or beneath clothing. Anything more is likely to be a sexual penetration, leading to a more serious offence.

31 In this case the dominant sentencing considerations were personal deterrence and protection of the community. The appellant has consistently offended all his adult life, including offences of a sexual character. The outlook in the pre-sentence report was bleak. The magistrate did not err in concluding that a term of imprisonment to be served immediately was the only appropriate sentence.

32 It was submitted by counsel that a disposition other than imprisonment ought to have been imposed. The magistrate clearly considered and rejected other options. I am not persuaded that he was in error.

The learned Magistrates' discretion miscarried when he failed to afford the Appellant a discount in his sentence for the plea of guilty;

Particulars

the starting point for His Honour was 12 month imprisonment;
this was supposedly reduced by His Honour for the "transitional provisions" and to "reflect the plea of guilty";

the final sentence of 8 months therefore reflects no discount for the plea of guilty.

33 The magistrate deducted one-third from the sentence on the basis of the transitional provisions of the Sentencing Act found in sch 1. I raised with counsel whether he was in error in so doing. By sch 1 cl 5(a) the clause does not apply if the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced.

34 By the Criminal Law Amendment (Simple Offences) Act (WA) (No 70 of 2004) the summary penalty for indecent assault (Criminal Code s 323) was increased from a fine of $8,000 to $24,000, although the period of imprisonment of 2 years did not change. Possibly the amendment to the penalty meant that a one-third reduction was not necessary. However, counsel for the respondent, very fairly, did not press this view and was content for me to deal with the matter on the basis that the one-third reduction was valid.

35 Ground 2 is conceded by the respondent. When the magistrate reduced the sentence by one-third to take into account the plea of guilty and the transitional provision, it is plain that no allowance was made for the plea of guilty.

36 The Sentencing Act requires a plea of guilty to be taken into account: Sentencing Act s 8. That said, this was no early plea. The first appearance was on 24 May 2005. The hearing date of 14 November 2006 was adjourned. A second hearing date of 4 April 2007 was vacated. A third hearing date was set for 30 July 2007. At a mention hearing on 29 June 2007 the hearing date was confirmed. The plea of guilty was not entered until 27 July 2007, some 14 months after the first appearance. Moreover, the pre-sentence report, as counsel for the appellant frankly acknowledged, is unable to support a reduction by way of remorse or contrition.

37 In the end, a modest reduction should be made to acknowledge the plea of guilty. There is nothing else to reduce the sentence. I would reduce the sentence indicated by the magistrate from 12 months to 10 months. From that I apply the statutory one-third reduction.

38 I allow the appeal, set aside the sentence of 8 months' imprisonment and in lieu impose a sentence of 6 months 2 weeks' imprisonment.

NARKLE -v- HAMILTON [2007] WASC 236 (12 October 2007)

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NARKLE -v- HAMILTON [2007] WASC 236 (12 October 2007)