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[2011] WASC 99
General information, not legal advice.
Supreme Court of WA
2011-04-15
Hall J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SMART -v- WA POLICE [2011] WASC 99
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Whether appellant fit to represent himself before magistrate - Whether ostensible bias - Whether appellant had fair opportunity to present his defence
Criminal law - Appeal against sentence - Whether account taken of time spent in custody - Whether proper consideration given to eligibility for parole - Whether total effective sentence disproportionate to conduct
Criminal Code Act Compilation Act 1913 (WA), s 318, s 338B
Sentencing Act 1995 (WA), s 80, s 87, s 89
Dragon v The State of Western Australia [2008] WASCA 252
Isenhood v Green [2011] WASC 70
Johnson v The State of Western Australia [2009] WASCA 160
Narkle v Hamilton [2008] WASCA 31
Otway v The State of Western Australia [2008] WASCA 165
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Roffey v The State of Western Australia [2007] WASCA 246
Scolaro v Shephard [No 2] [2010] WASC 271
Smart v Albuquerque [2010] WASC 323
Smart v Scott [2007] WASC 295
Smart v The State of Western Australia [2010] WASCA 218
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
1 On 19 October 2010 following a trial in the Albany Magistrates Court, the appellant, Andrew Jacob Smart, was convicted of making a threat to unlawfully damage or endanger property contrary to s 338B(b) of the Criminal Code (WA). That conviction caused a breach of a suspended sentence of 12 months' imprisonment imposed in the Rockingham Magistrates Court on 15 July 2009 for an offence of assaulting a public officer contrary to s 318(1)(d) of the Code.
2 On 16 December 2010 Mr Smart was sentenced to 8 months' imprisonment on the threat to damage charge. In consequence of the breach of the suspended sentence order of 15 July 2009 the magistrate ordered that the suspended sentence be served. He also ordered that the sentences be served cumulatively, making a total of 20 months' imprisonment. His Honour declined to make any order that the appellant be eligible for parole.
3 Mr Smart has appealed against both his conviction on the threat to damage charge and the sentences imposed upon him in consequence of that conviction. Mr Smart represented himself on this appeal. His appeal notice only nominated that it was an appeal against conviction. However, on the hearing of the appeal Mr Smart said that he also wished to appeal against the sentences. Although there was no notice of appeal containing grounds that related to the sentences the respondent did not object to such grounds being raised at the hearing and I will return to those grounds as formulated at the hearing shortly.
4 In regard to the appeal against conviction, the notice of appeal stated the following grounds:
5 The grounds in relation to the sentences as formulated at the appeal hearing were as follows:
6 Although the grounds of appeal, particularly those relating to conviction, lack clarity, Mr Smart gave lengthy oral submissions in which he explained the nature of his complaints. Those submissions extended well beyond the grounds of appeal and I afforded him some liberty in making them given that he was unrepresented.
7 The prosecution case was that on Tuesday, 11 August 2009 Mr Smart made a telephone call to the Katanning Police Station. At the time he was on bail on other charges and was required to report to the police three times a week. The call was put through to the officer-in-charge of the station, Senior Sergeant Gregory Crofts.
8 Sergeant Crofts said that he answered the telephone and introduced himself and that Mr Smart then said, 'It's Andrew Smart here. I'm reporting for bail.' Sergeant Crofts then said, 'Andrew, where are you living?' According to Sergeant Crofts the response was, 'I'm in Perth.' And when Sergeant Crofts asked whereabouts in Perth he was, Mr Smart replied, 'I don't have to tell you.' Sergeant Crofts then said, 'You need approval from myself to reside in any other place apart from Dumbleyung and you need to tell me the address you are residing in for me to consider whether or not I will approve that to happen.'
9 According to Sergeant Crofts, Mr Smart continued to refuse to provide details of where he was presently residing and was told that if he maintained that position it may result in a breach of his bail conditions. Sergeant Crofts persisted and Mr Smart said that he was allowed to go to Perth for any reason and did not have to tell the police where he was staying. He then verbally abused Sergeant Crofts who shortly thereafter terminated the telephone call.
10 Sergeant Crofts said that he could recognise the voice of Andrew Smart having spoken to him on previous occasions both in person and on the telephone.
11 Sergeant Crofts said that shortly after hanging up he received a second call from Mr Smart. On this occasion he put the call on speaker phone so that another officer, Detective Constable Andrea Hull, could also hear what was being said.
12 Sergeant Crofts said that in the second call Mr Smart 'entered into quite a significant amount of diatribe and offensive and abusive language'. He said that Mr Smart then said, 'It won't be so funny down there when you get what happened to Warwick and Joondalup.' Sergeant Crofts then asked, 'What does that mean Andrew?' Mr Smart replied by saying, 'They did a good job there at Warwick and Joondalup and you're next.' Shortly after, Sergeant Crofts terminated the call.
13 At the time this call was received there had been arson attacks on police stations at Joondalup and Warwick. Sergeant Crofts said that there had been extensive media publicity about those attacks.
14 Sergeant Crofts said that due to his familiarity with Mr Smart he took the threat seriously. This caused him to take stock of security aspects of the Katanning Police Station, consider rostering practices and alert all staff. Sergeant Crofts said that he believed Mr Smart had the capability of carrying out the threat. Further, Mr Smart normally resided at Dumbleyung which was a relatively short distance from Katanning. Accordingly, steps were put in place within the police sub-district to reduce any opportunity for an attack to occur at the Katanning Police Station.
15 Sergeant Crofts was cross-examined but maintained the correctness of his evidence. It was put to him that he was rude and arrogant in the telephone call in demanding details as to Mr Smart's residence and that those details had already been provided to the police. Sergeant Crofts denied this and also said that he was the only person who had authority to approve for Mr Smart to reside at any other address apart from that in Dumbleyung. He said that because Mr Smart did not provide his current address that necessitated his continued questioning.
16 Detective Constable Hull gave evidence that she was present when Sergeant Crofts received the second telephone call from Mr Smart. She too recognised Mr Smart's voice and confirmed that he was verbally abusive. She then said that Mr Smart said words to the effect 'things won't be so funny down there when what happened to Warwick and Joondalup stations happens to you.' When asked by Sergeant Crofts what this meant, Detective Constable Hull said that Mr Smart had replied, 'You work it out, but - you work it out. They did a good job down there and you're next.'
17 Mr Smart gave evidence in his defence. He was asked by the magistrate:
Now, the evidence that I've received today relates to an event that is said to have occurred sometime after 2.00, and I presume that to be 2.00 in the afternoon, when a call was put through to the Katanning police station. Do you have anything to say about that? 2.40 in fact the evidence is?---I believe that might have been the time that I originally reported in for bail but I believe Sergeant Crofts actually called me on a number occasions as well, trying to demand my address and details and so forth, which I had already given to other officers who were allegedly a sergeant and so forth at the station before I had even met him before.
So is it your evidence that about that time you placed a call to the Katanning police station?---I made a call but it bore no resemblance to anything that they have said today.
But you initiated the communication by calling them. Is that what you're saying?---I had to. I had to report three times a week by phone at the Katanning police station (ts 27).
18 Mr Smart went on in his evidence to say that he recalled Sergeant Crofts demanding to know where he was living but that his response was:
I've already told the court. It's on my licence. If they won't let you look it up, then obviously you shouldn't have it (ts 29).
19 When asked whether he had made a threat, Mr Smart said:
No, I simply brought up the events in the media and said, 'This is what happens when people get unlawfully harassed by the police and have to fight back.'
Why did you bring up those other two police stations in the conversation?---Because I felt that that's where people that have been unlawfully harassed by the police brought their own justice on the system and I was telling the police that they're not very clever to go around unlawfully harassing people like they were doing because it can provoke reactions in people.
So what was your intent in bringing that to their attention?---That their actions were not very clever.
All right. What else do you want to tell me about any of the conversations that you had that day with members of the Katanning police?---I deny making any threats to burn down the police station or any property that surrounds it either directly or in a veiled form. I simply brought up events that were in the media and said that, 'This is what happens when police go out and illegally harass people, to the point where they become mentally ill and do such acts as those people then did' and I believe that that was a fair description of what happens with those particular people and the police harassing them and yellow stickering their vehicles and doing things to their vehicles and obviously not taking complaints from those people about those events and those people being forced to find their own justice. That's the only message or story that I was getting across (ts 30 - 31).
20 The magistrate gave his reasons immediately following the completion of the hearing. After referring to the relevant law and the onus and standard of proof, he said:
The police officers have given evidence about them being part of or participating in telephone conversation or conversations on 11 August 2009 at the Katanning police station when they were on duty in their role as police officers and the hour that's been mentioned.
In my view, I make a finding that the hour that these communications occurred was shortly after 11.40 pm that day. I'm satisfied that on that day the accused man, Andrew Jacob Smart, caused a phone call to be put through to the Katanning police station and that that initial phone call was relayed from another member of the staff at the police station, Inspector Crofts, who at the time was the officer in charge of the Katanning police station in the role of a senior sergeant in charge of that station.
I'm satisfied that on the evidence given by that officer, he immediately - although he says the caller introduced himself, but he was immediately aware that the person speaking to him was the accused in court today, Andrew Jacob Smart. I'm satisfied on the evidence that the intent of Senior Sergeant Crofts on that day was to elicit information that he did not have at that time. I know that the accused maintains that he had already shared that information with members of the staff at the Katanning police station, also he says with the courthouse at Katanning.
I am satisfied on the evidence that I've heard today that Senior Sergeant Crofts was not privy to that information and it was his intent to gain information as to the current living whereabouts of Mr Smart. I'm also satisfied that Mr Smart was annoyed and frustrated at being posed these questions because he believed that that information was already retained by the Katanning police station and I'm satisfied that that was the climate in which what happened next occurred, a police officer who was trying to gain information, a member of the public who's trying to assert that that information has already been provided and that the situation became strained because of that tension between the caller and the receiver of that call and I accept what happened next was that after the situation became more and more heated, in his frustration, Senior Sergeant Crofts hung up the call.
The evidence that he gives next is that there were further calls made to the station and that his colleague, Detective Hull, was also in his presence during the next call, the next call that he actually received. Again, it's said by them that the caller introduced himself as Andrew Smart and they recognised the caller to be - the voice to be that of Andrew Smart, who they were both already familiar with, and it's in that second call that it is said - or the second call that was received by Senior Sergeant Crofts that the controversial - or the words that are the subject of this charge were received by him on speaker phone, overheard by Detective Hull.
The evidence given by Mr Smart is that, yes, he did bring up into conversation, reference to the Warwick and Joondalup police stations. The view that I form about that is that Mr Smart was again frustrated in this next call, that he wasn't been listened to, he wasn't getting his message across and it occurred to me that in the way in which the evidence was given by the two police officers he devised a plan to gain their attention so that they would listen to what he had to say, and they did.
They did listen to what he had to say because it was then very topical about what was happening in the prosecution of individuals or an individual, associated with the arson and criminal damage attack on police stations, and it is said that only a week, or within a week, before this incident occurred there was significant publicity about that prosecution and no doubt it was circulating in the wider community.
It's clear to me that Mr Smart injected that information into the conversation so that those - well, he thought that one person at least was listening, would take stock of what he had to say, and it certainly achieved that end. He brought it into the conversation so that people would start to listen to him or the person would listen to him because it was a significant detail, an event to bring into the conversation. Where Mr Smart departs from the two police officers is in the words, 'and you're next.' He says he didn't say that. Both officers have said that he did say that.
Mr Smart makes something of the fact that Detective Hull didn't provide that information immediately in her narrative as to what happened on that day. I draw no adverse inference from the way she gave her evidence. I felt that she gave evidence in a thoughtful and considered way. She did say at one stage there was more to it and it wasn't coming to her recollection immediately. She was certainly not led or prompted by the prosecutor. He gave her time to think about her evidence and subsequently she came forward with that evidence. The evidence that Inspector Crofts gave in that regard was in fact a part of his original narrative and he gave that same information, 'and you're next' (ts 38 - 40).
21 It is to be noted that the magistrate referred to the telephone calls having been made at 11.40 pm on 11 August 2009. Mr Smart endeavoured to make something of this, suggesting that it made the prosecution witnesses' evidence as to what occurred unlikely. However, in my view this was clearly an inadvertent error by the magistrate, not a finding. Indeed, there was no evidence to suggest that the calls were made late in the evening. The uncontroverted evidence was that they had occurred at 2.40 pm and indeed that is what the magistrate put to Mr Smart when he gave evidence.
22 The magistrate then considered the relevant law in respect of the offence of making a threat to cause damage. He noted that it was necessary to look at the surrounding circumstances in order to determine the meaning of the words that were allegedly used. He then said:
It is clear that Mr Smart was trying to gain the attention of the officer that he was talking to when he felt frustrated because of other matters that he was putting that weren't being relayed. It is the evidence of Inspector Crofts that he took certain steps and he took the situation to heart and that he was then analysing his overall concerns for the safety of his officers at Katanning, the issue associated with the police station, and I dare say the police and civilian or the police and personal vehicles of those officers stationed there at the time.
I have no issue with the fact that when Mr Smart was talking on those phone calls he was upset, he was emotional and he was trying to convey something that he didn't think was getting through to the person he was speaking to at the other end of the phone and that in that climate he said things, although he's also said today in his summing up, although it's not evidence, that he believes that the actions of those involved in the Warwick and Joondalup station was warranted.
Now, that may well have been his point of mind on the day as well, which might add greater credibility to the fact that those words were said, but in my view, I believe that he was upset and angry and frustrated on that day and he said the words that have been attributed to him and they amount to a threat and as it's turned out, the officer who received that, the senior officer, took it upon himself to put in place a certain strategy in order to minimise that potential of development.
I am satisfied on the evidence before me today that the prosecution has proven its case, it's proven it to the requisite standard and that the charge therefore is proven and a conviction should be recorded. Sergeant, is there anything you want to say to me in regard to history or penalty? (ts 41)
23 As to ground 1, Mr Smart contended that he was not in a fit state to represent himself at the hearing before the magistrate. He said that he was extremely tired as a result of being in court in Perth the previous day and then being subjected to a lengthy road trip back to Albany. The implication appears to be that to proceed with a trial in these circumstances was unfair and the matter should have been adjourned.
24 It should be noted that the proceedings before the magistrate on 19 October 2010 also included other charges. One of the other charges was one of driving without authority. The prosecution sought an adjournment of the hearing of that charge because it needed to obtain further information from the Fines Enforcement Registry. Mr Smart opposed that adjournment and in doing so noted that he had been brought to Albany under a high security escort after appearing in the Perth Magistrates Court the previous day. The prosecution's application for an adjournment was refused and that charge was dismissed.
25 The fact that Mr Smart opposed an adjournment of another hearing prior to the one relevant to this appeal tends to contradict his suggestion that he was not in a fit state to represent himself that day. He disputes that inference saying that his opposition to the adjournment of the traffic charge was a tactical decision made with the expectation that if the prosecution was denied an adjournment it would withdraw the charge. That may be so, but a further charge, one relating to a breach of bail, also proceeded to trial that day without Mr Smart seeking any adjournment. That hearing occurred immediately prior to the hearing of the threat to cause damage charge.
26 Immediately after the completion of the breach of bail hearing the trial in this matter commenced. Again, Mr Smart did not seek an adjournment at the commencement of that hearing or make any complaint at that time of any inability to represent himself. During the course of the hearing Mr Smart did mention the fact that he had been up since early that morning, but this was in response to a question from the magistrate as to why he had not put a matter to Sergeant Crofts in cross-examination:
You say he called you?---Yes.
You didn't ask him that question when he was giving evidence?---Well like I said, I've been on the road now, out of prison, for all of yesterday and then this morning I've had to get up at 5.30 this morning.
...
But you never put that to him today?---Like I said, I've been up since 5.30 this morning; I was in court all day yesterday; I've had a lot of other issues to deal with (ts 30).
27 Towards the end of his evidence, Mr Smart also said:
It's been a very long two days for me. I'm sure I have missed things, but that's how it is when you're self-represented and have to try and make do and Legal Aid doesn't even have a record of their meeting with me three and a half months ago, where I made an application for aid, so all I can say is that I was being repeatedly harassed by police in Dumbleyung, from Katanning and later the Wagin police joined in as well (ts 34).
28 It is clear from these extracts that Mr Smart's concern was to endeavour to explain why he had failed to put some aspects of his defence case to the prosecution witnesses. He did not, however, seek an adjournment of the hearing. Indeed, it would seem from a reading of the whole of the transcript that Mr Smart wished for the matter to proceed on that day.
29 Furthermore, any assessment of whether the hearing should have proceeded on that day must turn upon whether there was in fact any unfairness. The hearing in this matter, like the breach of bail hearing that preceded it, was comparatively short, being completed in approximately two hours. Mr Smart cross-examined each of the prosecution witnesses and elected to give evidence on his own behalf. He addressed the magistrate at the end of the evidence and submitted that the evidence of the prosecution witnesses should not be accepted. It is apparent that he was an active participant in the trial and was not hindered in presenting his defence.
30 After the magistrate had delivered his reasons and convicted Mr Smart, some submissions were made regarding sentence. Mr Smart points to a reference towards the end of the proceedings on 19 October 2010 where the magistrate notes:
[Y]ou're tired and I'm tired and I'm certainly not going to be making a decision that effects your long-term security or your long-term outcome in regard to this charge by flying from the hip this afternoon, so I'm going to delay sentencing (ts 44).
31 It is important to read this reference in context. When so read, it is not a concession that Mr Smart was not fit to represent himself at the trial. Rather, it was simply a statement that by that time, being 4.30 pm in the afternoon, it was appropriate to adjourn the proceedings in regard to sentence to another day rather than press on. It was also an acknowledgement that the issues at stake in sentencing were significant and required further consideration, including obtaining a pre-sentence report.
32 In my view, in all of the circumstances, there is no merit in ground 1. No unfairness in the trial proceedings on 19 October 2009 on account of any material impairment of the appellant's ability to represent himself has been established.
33 As regards ground 2, it is correct that the same magistrate presided in the proceedings which resulted in the imposition of the suspended sentence. That sentence was imposed for an offence of assaulting a prison officer after a trial on 12 June and 15 July 2009.
34 Mr Smart appealed against that conviction. The application for leave to appeal was heard by McKechnie J on 29 October 2010: Smart v Albuquerque [2010] WASC 323. The application for leave was dismissed and I understand that Mr Smart has sought leave to appeal to the Court of Appeal.
35 None of that background, however, provides any basis for concluding that the magistrate erred in proceeding with this matter. The mere fact that the magistrate had heard other matters involving Mr Smart would not, in itself, provide any basis for concluding that there could be any reasonable apprehension of bias: Smart v Scott [2007] WASC 295 [51] - [53] (Jenkins J). In my view, there is no merit in this ground.
36 As to ground 3, as I have previously mentioned, immediately before the hearing of the threat to cause damage charge, the magistrate conducted a hearing into a breach of bail charge. At the conclusion of that earlier hearing the magistrate gave reasons for convicting Mr Smart and heard submissions on sentence. Those submissions included a reference to Mr Smart's criminal record.
37 When the next hearing commenced, Mr Smart did not make any submission to the magistrate that he should not hear the matter on the grounds that he had recently seen the criminal record. In any event, the issue of Mr Smart's prior record was raised as an issue during the course of the trial relating to the threat to damage charge in that Sergeant Crofts sought to explain why he treated the alleged threat with such seriousness. The magistrate noted that he would not normally see a criminal record until a person was convicted. Mr Smart then said:
You've already seen my criminal record.
HIS HONOUR: I know I have and I have to eliminate it from my thinking because I dealt with an earlier trial in regard to bail matters but I'm not a jury, I'm a judicial officer and I have to put that matter out of my mind but in this trial I've been asked to receive information that goes to the issue of identification (ts 14).
38 It is apparent from this that the magistrate was alive to the possibility that knowledge of the criminal record had the potential to adversely impact upon a consideration of the evidence. The magistrate was conscious that the record was not relevant and admissible in this regard and specifically stated that he would put knowledge of it to one side for that purpose.
39 It must be expected that in a busy magistrates court there will be occasions when a magistrate has to deal with a person who has come before him on a previous occasion. Magistrates in these circumstances may have knowledge of the defendant's prior record. However, a consciousness of the risk of prejudice together with a realisation that such knowledge must not be taken into account in determining guilt will normally be sufficient to ensure that any potential for prejudice is avoided.
40 In the present circumstances, there is nothing to suggest that the magistrate improperly took into account the prior record and, indeed, there is no reason not to accept his statement that he would not do so. In these circumstances, this ground is without merit.
41 As to ground 4, when Mr Smart gave evidence in his defence, the magistrate asked him questions which were directed to the principal issues in the prosecution case. Having read the transcript there is no basis whatsoever for suggesting that the magistrate curtailed the evidence that Mr Smart gave in any way.
42 It appears to me that the magistrate's questions only assisted Mr Smart in addressing the appropriate issues. At the end of the evidence the magistrate asked Mr Smart if he had anything further that he wished to add:
Anything further?---No. You seem to be blocking me from telling my story.
I'm asking you, 'Anything further?' I'm opening the door for you to say what you want to tell me before I ask the sergeant to cross-examine?---That's it. It's been a very long two days for me. I'm sure I have missed things, but that's how it is when you're self-represented and have to try and make do and Legal Aid doesn't even have a record of their meeting with me three and a half months ago, where I made an application for aid, so all I can say is that I was being repeatedly harassed by police in Dumbleyung, from Katanning and later the Wagin police joined in as well. I've been harassed. I'm a qualified mechanic; they kept yellow stickering my car, which was perfectly roadworthy; they kept searching me and my car for no reason and not finding anything; they made reporting for bail difficult for me, which was why it was changed to phone reporting in the first place, so I didn't have to drive over to Katanning, and then they tried to make that difficult as well for me. In the end I ended up leaving the area and moving back to Perth because after finding out the workshop foreman was a police officer's son and that Matthew Hartfield was living in Katanning, I didn't think it was worth staying down there because I could see the problems were going to be ongoing and moved back to Perth (ts 34).
43 Despite Mr Smart having complained that the magistrate was 'blocking' him, for which there appears to have been no basis, it is apparent that Mr Smart was given a fair opportunity to say everything that he wished to say in his defence and that he fully availed himself of that opportunity. In these circumstances, this ground must fail.
44 As to ground 5, this ground appears to relate to a reference made by the magistrate to possible sentences. To this extent it is not a ground relating to conviction, but I will deal with it at this stage. His Honour said:
This matter on its own is capable of me placing him in custody, when the Supreme Court recently, in the matter of Scolaro, a decision of his honour the chief justice in the Supreme Court, has made it clear that when considering in a summary conviction jurisdiction a penalty, the court should start at the starting point at what is the maximum indictable penalty for that offence when it comes to consider what the ultimate penalty is (ts 43).
45 This appears to be a reference to the decision of the Chief Justice in Scolaro v Shephard [No 2] [2010] WASC 271. At [161] of that decision Martin CJ said:
In a decision of the Court of Appeal published since the magistrate passed sentence in this case (Wiltshire v Mafi [2010] WASCA 111), it was unanimously decided that in respect of offences where the maximum penalty available in a superior court was higher than the penalty available in a court of summary jurisdiction (ie 'either way' offences), constraints upon sentences to be imposed by courts of summary jurisdiction should be regarded as jurisdictional limits which should not preclude such courts from starting at a point in the sentencing range which exceeds their jurisdictional limit. Of course, if, after taking into account all relevant considerations, a court of summary jurisdiction remains of the view that the sentence properly imposed exceeds its jurisdictional limit, the proper course is to remit the matter to a superior court.
46 To the extent that the magistrate's comments might be read as suggesting that the appropriate starting point will always be the maximum indictable penalty for an offence it is not correct. However, when read in context I think it is clear that the magistrate was not intending to suggest that for every offence the sentencing magistrate will start with the maximum indictable penalty regardless of the facts of the offending conduct or the personal circumstances of the offender. Rather, his Honour was simply recognising that the maximum indictable penalty had to be taken into account.
47 In any event, there is no suggestion in the sentencing remarks that the magistrate did anything other than follow the appropriate course set down in Scolaro. That is, to take into account the maximum indictable penalty and to treat the maximum penalty available when dealt with summarily as merely a jurisdictional limit. Accordingly, this ground must fail.
48 Mr Smart also took issue with his conviction on the basis that the allegation was that he had made the telephone calls on a Tuesday, which was not one of the days he was required to report for bail purposes. He said that this was relevant to the credibility of the prosecution witnesses.
49 In fact, Sergeant Crofts had stated in his evidence that although Mr Smart was required to report on each Monday, Wednesday and Friday his calls were very irregular and this one happened to occur on a Tuesday. Sergeant Crofts also said that on the preceding Monday inquiries had been made by the police to try to locate Mr Smart because he had failed to report (ts 15). On the face of it this seems to adequately explain why the calls had occurred on Tuesday, 11 April 2009 as alleged.
50 Furthermore, it is plain from the way in which Mr Smart conducted his defence that what was in issue was not whether he had spoken to Sergeant Crofts by telephone regarding his current residence, or when those calls occurred but whether a threat had been made as alleged by the prosecution (see ts 27 quoted earlier). In these circumstances this issue is without merit.
51 Mr Smart also contended that the evidence of Detective Constable Hull had been 'prompted' or 'coached'. In oral submissions Mr Smart said that what he was asserting was that the witness had been impermissibly led as to the crucial evidence of the making of the threat.
52 The transcript does not bear out this claim. When this was pointed out to Mr Smart he said that the transcript was not accurate. An audio recording of the hearing had been obtained and this was then played at the appeal hearing. The recording confirmed the correctness of the transcript. Mr Smart then claimed that the recording had been edited or tampered with. However, there was no proper basis for this assertion.
53 After receiving a pre-sentence report, the magistrate sentenced Mr Smart on 16 December 2010. His Honour noted that Mr Smart had an extensive criminal record and, in his Honour's view, had displayed 'a total disregard for his position in society to be a law-abiding person'.
54 His Honour stated that he had two issues to determine, sentencing for the threat to cause damage charge and re-sentencing in respect of a suspended sentence which had been breached as a result of the conviction. As I have noted earlier, the suspended sentence related to an offence of assaulting a public officer. A suspended sentence of 12 months' imprisonment had been imposed for that offence on 15 July 2009.
55 Mr Smart sought leave to appeal against the suspended sentence: Smart v Albuquerque. Leave was refused by McKechnie J, whose judgment sets out the relevant facts:
On 4 December, the appellant was on escort from the District Court in Perth back to Casuarina. [The prison officer] gave evidence that at the sallyport at Casuarina, the appellant was in the rear compartment of the escort van in an agitated state verging on abusive. [The prison officer] entered the rear of the van, unlocked the rear compartment, the door was pushed open in an aggressive manner. The appellant shuffled forward, restrained in handcuffs and chains linking his ankles. Approximately 7 inches away from [the prison officer's] face, the appellant was again very abusive and spat in his [the prison officer's] face [11].
56 The magistrate found that the suspended sentence had been triggered by the re-offending and that it was appropriate to order that that sentence now be served. In coming to that conclusion his Honour referred to s 80 of the Sentencing Act 1995 (WA) and decided that it was not unjust to order that the sentence be served in view of the circumstances that had arisen or become known since the suspended sentence was imposed.
57 In regard to the conviction for the threat to cause damage charge, the magistrate concluded that a sentence of immediate imprisonment was also appropriate. In that respect, his Honour said that, in his view, the appropriate sentence would have been one of 14 months' imprisonment but bearing in mind that the suspended sentence was to be activated, he was of the view that a reduction was appropriate on grounds of totality. His Honour therefore reduced the sentence in respect of the threat charge to one of 8 months' imprisonment but ordered that it be served cumulatively. Accordingly, the total effective sentence was one of 20 months' imprisonment.
58 His Honour then turned to the question of parole eligibility. He recognised that s 89 of the Sentencing Act was the relevant provision and came to a conclusion that parole was not appropriate and therefore declined to make an order that the appellant be eligible for parole. The question of parole eligibility arises under ground 1 of the appeal against sentence.
59 At the sentencing hearing Mr Smart submitted that a suspended sentence was appropriate because he had served a period in time in prison on remand for offences which he said would be discontinued on the Monday following the sentencing hearing. The magistrate accepted that Mr Smart had been held in custody on those charges as a result of being refused bail: Smart v The State of Western Australia [2010] WASCA 218. His Honour expressly declined to backdate either of the sentences he imposed. The failure to take into account the time that Mr Smart contended he had spent in custody is the subject of ground 2 of the appeal against sentence.
60 In respect of grounds 1 and 2, the relevant sentencing remarks of the magistrate are as follows:
Now, the question for me is whether or not I should grant parole eligibility to Mr Smart. Section 89 of the Sentencing Act says that, 'The court should not grant parole eligibility unless it is satisfied of various matters.' The various matters that I need to take into account are the seriousness of the offending, the seriousness of the charge, also the prior history of the offender, and his prior history is serious, and any other matters that I believe are relevant in the circumstances, and his response to previous supervisory orders. There has been one that he completed successfully, which was parole in 2000, in the year 2000.
However, in my view, the seriousness of this matter and the seriousness of his record override that previous response to parole supervision and I find that this should be a finite sentence of 20 months with no parole eligibility and I order that that sentence be served from today. I do not make any orders for backdating because the matters that have kept him in custody until now, since 4 June, have been matters entirely unrelated to the matters that I am determining today, the threats to cause detriment and a stalking charge, and those matters are the matters that have detained him in custody and they have no relevance to the court's decision today (ts 15).
61 The relevant part of s 89 reads as follows:
(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -
(a) the offence is serious;
(b) the offender has a significant criminal record;
(c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant.
62 The words that appear in the magistrate's sentencing remarks in quotation marks do not appear in s 89(4). Indeed, that section does not mandate that parole should not be granted if the factors referred to exist. Rather, it provides that if two or more of those factors are in existence the court has a discretion not to order parole eligibility. Where that discretion is enlivened there is no presumption that parole eligibility should not, or generally should not, be ordered: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [68] (Buss JA).
63 It is clear that the magistrate concluded that two of the s 89(4) factors did exist in this case, namely; that the offence was serious and that the appellant had a significant criminal record. As to the third factor there was one previous occasion when the appellant had been released on parole and, according to the pre-sentence report, he had completed that parole successfully. Given the magistrate's views of the offending and the criminal record it was open to him in the exercise of his discretion to come to the conclusion that the appellant should not be made eligible for parole. However, he also had a discretion to order that the appellant be eligible for parole notwithstanding those factors.
64 It is not clear from the magistrate's reasons that he appreciated that he had such a discretion in the circumstances of the case. On the face of his reasons, he appears to have been of the view that since he had found that the offence was serious, and the prior record significant, it followed that parole should not be ordered.
65 I accept that the magistrate made reference to Mr Smart's previous performance on parole and said that this was overridden by the other factors which does suggest some exercise of discretionary judgment. However, on balance, I have come to the conclusion that the magistrate erred by failing to properly apply the provisions of s 89(4). Accordingly, ground 1 succeeds.
66 As to ground 2, information provided by the respondent was to the effect that Mr Smart was facing charges of stalking (charge number PE 37938/2010) and threat with intent to cause detriment (charge number PE 37939/2010) at the time he came to be sentenced. In respect of those charges he had served time in custody. On the stalking charge, he had served 83 days in custody between 3 June 2010 and 24 August 2010. On the threat charge, he had served 53 days between 25 October and 16 December 2010.
67 However, during those periods in custody Mr Smart was also in custody in respect of a number of other charges. Some of those charges have been dealt with and the outcomes and penalties imposed are noted as follows:
Note: The above information has been sourced from the Lower Court Criminal Case Management System as of 14 April 2011.
68 Mr Smart contends that in respect of all but the stalking and threat charges referred to earlier he had been granted bail. As is evident, a significant number of those charges were discontinued or dismissed. Of the others the penalties were fines except for the contempt charge. The two month sentence for that charge commenced on 24 August 2010 and, accordingly, is not included in the periods of time served referred to earlier.
69 The stalking charge (charge number PE 37938/2010) was dismissed on 20 December 2010. However, the threat charge (charge number PE 37939/2010) is listed for trial on 13 June 2011. Given that the threat charge has not been determined, it is not appropriate to take time spent in custody on that charge into account as it may be taken into account in the event of a conviction on that charge.
70 Accordingly, as at the sentencing date, Mr Smart appears to have spent some 83 days in custody on the stalking charge which was ultimately discontinued. That is time that appears not to have been taken into account in respect of any other matter. It is somewhat less than the six months Mr Smart was urging the magistrate to take into account but it is nonetheless significant.
71 The extent to which Mr Smart has spent time in custody which has not been otherwise taken into account is difficult to precisely determine. However, the magistrate concluded that he had been held in custody on the stalking charge which he had been told would be discontinued, as indeed it was.
72 The magistrate correctly said that it was not possible to backdate the sentences he was imposing, bearing in mind that the time spent in custody was for unrelated charges: s 87 Sentencing Act. However, the magistrate appears to have failed to appreciate that it was open to him to take into account time spent in custody for other offences: Narkle v Hamilton [2008] WASCA 31.
The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody: King [57] (Wheeler J); R v Lambley (1989) 40 A Crim R 430, 440 (Kennedy J); Ratcliffe v The Queen (Unreported, WASCA, Library No 980651, 3 November 1998). The manner in which the discretion is exercised will depend upon the individual circumstances of each case. In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody. This case provides a good example. It is difficult to see why there should, as a matter of fairness, be any distinction, when taking time spent in custody into account, between a case in which the time in remand was spent solely in respect of the offence in question and one in which it was spent in respect of that offence and other offences of which the offender was subsequently acquitted. We agree, in that respect, with what was said by Kennedy J in his dissenting judgment in Mickelberg. It also seems to us that what was there said, in the context of time spent in custody in respect of a conviction that was later overturned on appeal, is equally applicable in a case of the present kind, where the time was spent in remand in respect of the subject offence and offences of which the appellant was later acquitted. What was said by the majority in Mickelberg seems not to have been followed in Palmer and is also inconsistent with the approach adopted in the Victorian cases.
Of course, it would be a mistake to assume that time wrongly spent in prison will inevitably be taken into account in sentencing for a later offence. As Callaway JA said in Arts and Briggs (264), time spent on remand 'cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody'. However, if Callaway JA meant to say, in the passage to which we have earlier referred, that time on remand in relation to an unconnected offence of which the offender is subsequently acquitted can never be taken into account in a general way in sentencing the offender for the subject offence, we would respectfully disagree with him [40] - [41].
74 In my view, having correctly decided that the sentences he was imposing could not be backdated the magistrate failed to then consider whether the time spent in custody should be taken into account in a more general way. There may well have been factors which would reduce the weight of this consideration, such as doubt as to whether time spent had produced any reformative benefits. However, fairness would suggest that time spent primarily in respect of a charge that was discontinued was deserving of some credit: see also Johnson v The State of Western Australia [2009] WASCA 160; and Otway v The State of Western Australia [2008] WASCA 165 [21] - [23] (Wheeler JA).
75 In Dragon v The State of Western Australia [2008] WASCA 252 the issue of whether an activated suspended sentence could be backdated to take into account time spent in custody was considered. Whilst it was not open to do so in that case the court held that it was open to take time spent in custody into account in determining whether it was unjust to order that the whole, rather than part, of that suspended sentence be served: Dragon [52] (Buss JA, with whom Wheeler JA agreed).
76 In my view the magistrate erred by failing to consider whether time spent on other charges should be taken into account. For this reason ground 2 must succeed. The sentences imposed should have taken into account the three months (approximately) spent in custody on the stalking charge that was discontinued. That could be done by either reducing the sentence for the threat conviction or ordering that only part of the suspended sentence be served.
77 As to ground 3, the magistrate's comments indicate that his Honour reduced the sentence he imposed for the threat to cause damage charge on the basis of totality. I understand this to mean that he reduced that sentence to take into account that the total sentence would otherwise be disproportionate to the total criminality involved: Roffey v The State of Western Australia [2007] WASCA 246.
78 It does not necessarily follow from that that the sentence imposed by the magistrate was appropriate. It remains necessary to look at the total criminal conduct involved to see whether the total effective sentence is proportionate. In my view, it was not. The total effective sentence of 20 months appears to me not to bear a proper relation to the total offending involved. Notwithstanding Mr Smart's serious prior record, the sentences imposed for these offences should not exceed what is otherwise appropriate bearing in mind what the High Court said in Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458. I do not, however, accept that cumulation of the sentences was in error as such. The offences were quite distinct and would not ordinarily justify concurrency. Nonetheless, I understood Mr Smart's complaint to be a more general one; that is, that the total sentence was too high. Accordingly, ground 3 is also made out.
79 As regards the threat offence, I accept that such offences are serious and this one was a cause of genuine concern. It resulted in action being taken to ensure the security of the police station and the safety of its staff. For these reasons it was deserving of a sentence of immediate imprisonment. However, the sentence imposed by the magistrate was too high, particularly when taking into account the cumulative effect of the sentences. I have noted in this regard the recent case of Isenhood v Green [2011] WASC 70.
80 Having taken into account all the relevant factors in this case the appropriate sentence is 6 months for the threat offence and an order that the appellant serve 9 months of the suspended sentence. In my view, it was unjust to impose the full 12-month sentence that had earlier been suspended bearing in mind the time spent in custody. A total effective sentence of 15 months properly reflects the overall criminal conduct.
81 It also falls to me to reconsider the question of eligibility for parole. I have come to the conclusion that Mr Smart should be made eligible for parole. I accept that he has a significant prior record but he has had few opportunities to be supervised and it is in both his and the community's interests that he be given an opportunity to have such supervision. On the one previous occasion that he had the benefit of parole he completed it successfully. Of course, whether or not he is granted parole will depend upon the views of the appropriate authority at the time he becomes eligible and upon his performance whilst in prison.
(2006) 33 WAR 48
(1979) 143 CLR 458