Criminal law - Appeal against sentence - Maximum penalty 12 months' imprisonment - Effect of abolition of remission and discount for guilty plea - Whether sentence of imprisonment available

Sentencing Act 1995 (WA), s 8(2), s 8(4), s 86

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Appeal allowed, sentence set aside and no penalty imposed

1 TEMPLEMAN J: This is an appeal against a sentence of imprisonment of 6 months and 1 day imposed on the appellant on a charge that on 9 December 2006, at Northam, he took part in an unlawful assembly, contrary to s 62 of the Criminal Code (WA).

2 The appellant is Gavin James Ryder. He was charged with that offence on 10 December in Northam and was released to bail. He was required to appear at Northam on Wednesday, 13 December.

3 Mr Ryder normally lives in Midland. He returned to Midland having been granted bail. He did not appear at Northam on 13 December, and a bench warrant was issued for his arrest.

4 The appellant was located in Midland on Monday, 18 December, and conveyed to Northam where he appeared before the Magistrate and pleaded guilty to breaching bail and the unlawful assembly. It is not clear whether he gave any indication that he would plead guilty. However, it seems to me that the plea must be regarded as an early plea having regard to the fact that until 18 December Mr Ryder was not represented, and therefore did not have the benefit of advice.

5 At the hearing on 18 December, the prosecutor outlined the facts to the Magistrate. He said that Mr Ryder went to Atkinson Street, Northam, in company with an estimated 40 members of his family. They were involved in a conflict with members of another Aboriginal family. That conflict had developed from an incident on 7 December. Mr Ryder and members of his family became involved in a confrontation with a large number of persons belonging to the other family.

6 The prosecutor said that during the course of the confrontation, which occurred on the road in Atkinson Street, weapons were wielded by several persons, and petrol bombs and other objects were thrown. Several persons from both groups were injured and numerous members of the public who reside in Atkinson Street and Chidlow Street secured themselves in their premises and feared for their safety.

8 Counsel told the Magistrate that Mr Ryder ordinarily lived in Midland and had done so for the past two years but had lived in Northam before that, where his mother and her partner lived. Counsel said that in relation to the unlawful assembly Mr Ryder had been at Midland on the day in question and was contacted by his cousin who came to Midland and then took Mr Ryder back to Northam.

9 Counsel said that the events involving the two Aboriginal families seemed to have arisen from the fact that Mr Ryder's mother or her partner had been assaulted. That was the reason Mr Ryder himself came to Northam, as well as other members of his family. Counsel said that Mr Ryder was not party to "the weaponry and the petrol bombs being thrown and the assaults", but he admitted being part of the assembly.

10 Counsel then explained that Mr Ryder had breached his bail because he had no funds to enable him to return to Northam. He had contacted the Aboriginal Legal Service ("ALS") to explain that he could not appear as required. He understood that the ALS would inform the Northam Court.

11 Counsel then said that Mr Ryder was in receipt of a Newstart allowance and was due to start work on that Monday in brick recycling in the Midland area. He would be paid on a casual basis, earning approximately a hundred dollars a day. He was hoping that the employment would develop into a more long-term project.

12 Counsel said that Mr Ryder has a bricklaying ticket and is a qualified forklift driver. He had worked previously at the Wheatbelt Aboriginal Corporation in Northam, but had not worked since. It is not clear how long he had been unemployed.

13 The Magistrate asked the prosecutor if there was anything he wished to say in relation to penalty. The prosecutor referred again to the incident, which he said was "quite out of hand". He expressed the view that behaviour of that type had to be stamped out. The prosecutor said he did not believe that a fine or a community order was going to be of any real benefit. He said "the only way to start stamping out ... this sort of behaviour is to start giving them terms of imprisonment."

14 The prosecutor then said, "Unfortunately the minimum term would be six months and one day." That is a reference to s 86 of the Sentencing Act 1995 (WA), which provides that a Court must not sentence an offender to a term of 6 months or less, unless that is the aggregate of the term imposed and any other term. There are various other qualifications not relevant here.

15 In my view, the fact that the prosecutor referred to that as an unfortunate circumstance gives rise to the inference that the prosecutor thought that a period of imprisonment of six months and one day, would probably be excessive in all the circumstances.

16 The prosecutor did not challenge the statement by Mr Ryder's counsel that Mr Ryder was not involved in the petrol bombs or assault or in the use of weapons.

17 Indeed, the prosecutor said, "I don't know what part he played in all," but, "in the end of it they're all parties to the whole thing." He then went on to say that even though Mr Ryder said he was not involved, he, the prosecutor, found it very difficult to believe that Mr Ryder had come up to Northam with 40 other family members "and had just stood back and let the other 39 people do something because that doesn't seem logical considering that they came up here for that specific reason."

18 Mr Ryder's counsel pointed out to the Magistrate that although very serious things had occurred, there was no evidence that Mr Ryder was in any shape or form a ringleader or a main player.

19 The Magistrate then proceeded to sentence Mr Ryder. Her reasons were very short. She said:

"The sort of behaviour that you were involved in on 9 December whereby people were injured and no doubt householders in the area were terrified by what took place on that day in which you were involved. You were involved because you were there and you pleaded guilty to taking part in an unlawful assembly. That sort of gathering and behaviour is totally unacceptable and as the sergeant has said is something that needs to be stamped out. There has to be a penalty of general deterrence, Mr Ryder.

Although submissions have been made on your behalf as to the reasons why you came up to Northam on that day, the fact remains that you were involved in this dreadful event that took place on that day. I would have to agree with the sergeant that there has to be general deterrence and I consider that that overrides any matters that are personal to you as to why you were involved. So accordingly, Mr Ryder, I am sentencing you to six months and one day imprisonment in relation to that."

20 Her Honour then went on to impose a sentence of one month's imprisonment for the breach of bail to be served concurrently with the sentence of six months and one day.

21 Mr Ryder appeals on two grounds. The first ground is that the sentence was excessive, given:

(d) the statutory maximum sentence of imprisonment for the offence.

22 The second ground is that the Magistrate failed to give proper consideration to the applicability and/or appropriateness of a lesser penalty such as a fine or a suspended sentence of imprisonment.

23 In relation to the first ground, I turn to the nature of the offending behaviour. It is true, as the prosecutor said, that because Mr Ryder was present in the group of people, some of whom were engaged in violent activities, he was as guilty as they were. That of course is the basis for the plea of guilty. However, within the group of people who had assembled unlawfully, there was clearly a range of conduct which was more or less culpable.

24 On the basis that there was no evidence against Mr Ryder that he had been in any way a ringleader or had been involved in the most serious behaviour, his culpability must be taken to have been at the lower end of the seriousness for offences of that kind. All that could be said against him was that he was a member of an unlawful assembly.

25 So far as his youth is concerned, Mr Ryder was born on 9 April 1983. He was therefore 23 years old at the time of the offence. He was, therefore, still a young man. But against that, he has a very long history of offending from the age of about 14 years in the Children's Court and subsequently as an adult offender. There is nothing terribly serious in the earlier offences, having regard to the kinds of penalties imposed. However, in more recent times, he was sentenced to 17 months' imprisonment for breaches of Community Based and Intensive Supervision Orders, apparently resulting from offences of assault and possessing a controlled weapon. Having regard to his history I think that Mr Ryder's youth would not have been a mitigating factor of any great significance.

26 There is then the question of remorse. Remorse is demonstrated by the fact that Mr Ryder pleaded guilty and accepted the facts put against him.

27 The statutory maximum sentence of imprisonment is 12 months. But because Mr Ryder's culpability was at the lower end of the scale, if a sentence of imprisonment was to be imposed at all it should have been in the lower end of the range.

28 Section 8(2) of the Sentencing Act 1995 provides that a plea of guilty is a mitigating factor. Section 8(4) provides that 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. In this case, the Magistrate did not state in open court that she had reduced the sentence she would otherwise have imposed. I therefore draw the inference that the Magistrate did not give any weight to this mitigating factor, as, in my view, with respect, her Honour should have done.

29 I therefore think that her Honour's sentencing discretion miscarried.

30 However, there is a more important consideration: one which has arisen because of the combined effect of s 86 of the Sentencing Act and par 2 of Sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA). That paragraph provides:

"If a court sentencing an offender to imprisonment proposes to impose a fixed term (without or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."

31 The effect of that legislation is to reduce by one-third the maximum sentence prescribed for any offence by the Criminal Code (WA) or other legislation.

32 In the present case the sentence prescribed by s 63 of the Code for the offence of taking part in an unlawful assembly, is imprisonment for 12 months. However, even a person whose conduct was of the most serious kind for that offence could not now be sentenced to more than eight months' imprisonment.

33 As I have noted above, a plea of guilty is a mitigating factor: and by s 8(2) of the Sentencing Act, the earlier the plea is given, the greater the mitigating effect.

34 It is now accepted that an offender who pleads guilty at an early stage can expect a discount of up to one-third on the sentence which would otherwise be imposed. In this case a 25 per cent discount would have reduced an eight-month sentence to six months: but an offender cannot be imprisoned for six months or less.

35 In the present case Mr Ryder's conduct, as I have already indicated, fell far short of the conduct of the most serious kind contemplated by the section.

36 That means, in my view, that if the sentencing discretion had been exercised as I think it should have been, then, even if the Magistrate had considered - perhaps because of a need for general deterrence - that a sentence of imprisonment was appropriate, the starting point would have been somewhat below the maximum sentence of eight months' imprisonment. Allowing for the plea of guilty, the sentence should have been below the six-month threshold.

37 This case therefore raises an important point, which as far as my researches have discovered has not been dealt with previously. The point is, that in general, a sentence of imprisonment cannot be imposed on a person who pleads guilty to an offence where the prescribed maximum is 12 months' imprisonment, whose conduct is not of the most serious kind contemplated by the relevant provision, and who is not charged with any other offence.

38 That is the requirement of Parliament. It is not a matter of the courts being soft on offenders.

39 In the present case it seems to me, having regard to the circumstances to which I have referred, that even allowing for the need for general deterrence, the sentencing discretion miscarried in any event. As I have said, no credit was given for the plea of guilty and the circumstances were not, I think, such as to warrant a sentence of imprisonment.

40 The sentencing discretion miscarried, also, in my view because I accept that the Magistrate did not give proper consideration to the appropriateness of a lesser penalty, such as a fine. Although the second ground of appeal refers to a suspended sentence, I think that is inappropriate because a sentence can be suspended only if it is appropriate to impose a sentence of imprisonment in the first place. If it is not so, then suspension simply does not arise.

41 For those reasons I have come to the conclusion that the sentence imposed on Mr Ryder in relation to the unlawful assembly charge was excessive and should be set aside.

42 I should add that there is no appeal against the sentence of imprisonment imposed on Mr Ryder for breaching bail. However, as I have noted above, that sentence was made concurrent with the sentence for the unlawful assembly, and is therefore irrelevant to the application of the general principle.

NOTE: Having given this judgment I decided that although it would have been appropriate to impose a fine on Mr Ryder as at 18 December 2006, no penalty should now be imposed, having regard to the fact that he had spent some seven weeks in prison.