Result : Appeal allowed - Fine $500 substituted

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Result : Appeal allowed - Fine $200 substituted

Criminal law and procedure - Sentence of imprisonment suspended - Breach of bail - Whether imprisonment appropriate

Bail Act 1982 (WA), s 51(1)

Road Traffic Act 1974 (WA)

Sentencing Act 1995 (WA), s 7(2)(c)

Dodd v Hoogewerf [2002] WASCA 15

Eades v Dunstan, unreported; SCt of WA (Scott J); Library No 950663; 30 November 1995

Heaton v Moulden [2004] WASCA 29

Indich v Bracknell [2005] WASC 225

Kelly v Lockwood [2005] WASC 18

Quartermaine v The Queen [2000] WASCA 107

1 McKECHNIE J: This appeal was argued at the same time as the appeal in SJA 1052 of 2006, Edwards v Clayson. In Indich v Bracknell [ 2005] WASC 225, I set out the principles in cases of sentencing for breach of bail both generally and in particular to sentences for imprisonment of 6 months and 1 day. In the case of Ms Spratt, she came before a Magistrate on 2 March 2006 and pleaded guilty to a series of offences including giving a false name, breach of a move on order and various Road Traffic Act and stealing offences.

2 In addition, she pleaded guilty to a breach of bail, contrary to s 51(1) of the Bail Act 1982 (WA). Judging by her record, and by the statement of facts that were given in relation to these offences, she epitomises what I described in Kelly v Lockwood [2005] WASC 18 as the sort of offender who is a continuing and intractable problem for criminal justice and for which there are no entirely satisfactory solutions.

3 The offence of breach of bail occurred in the following circumstances: on 16 February 2006, the appellant was due to appear in the Magistrates Court; she did not. She had been released on 11 February with an undertaking to appear. When she failed to appear a warrant was issued. In due course when, as inevitably she did, she reoffended, the warrant was executed. There really was no explanation advanced as to why. In relation to sentencing the Magistrate said:

"And then in relation to the non-appearance [sic] of court, you have a lot of breaches of bail on your record; a lot. Counsel's correct in relation to the matter that if I'm going to imprison you in relation to that, because the maximum is 3 years, that I should suspend that and I agree with that, to allow you to remain in the community. Six months and one day imprisonment, suspended for a period of 12 months."

4 I have every sympathy with busy Magistrates who daily deal with appellants in this position. At times it must be frustrating to know what to do because of the limited range of sentencing options dealing with what are offences that have societal causes far beyond the criminal law. However, a Magistrate is required to apply the proper principles of sentencing and they commence with but are not concluded by the Sentencing Act 1995 (WA).

5 Section 7(2)(c) of the Sentencing Act 1995 provides that an offence is not aggravated by the fact that a previous sentence has not achieved the purpose for which it was imposed. Plainly, the very many sentences imposed on the appellant have not achieved the purpose for which they were imposed if that purpose was to deter her from future offending. Applying the principle that I set out in Indich v Bracknell, the Magistrate was required to go through a process of reasoning that resulted in a period of imprisonment, prior to the 2003 transitional provisions, of 9 months or in fact in excess of 9 months' imprisonment.

6 I say that, conscious that the actual sentence was a suspension of imprisonment, because the decision first has to be made that a term of imprisonment is the only appropriate disposition before suspension is considered. It is the first decision that is attacked by the appellant. Put simply, I conclude that the offence of breach of bail disclosed in the facts before the Magistrate did not require a sentence of imprisonment of 9 months or in excess of 9 months' imprisonment prior to the transitional provisions.

7 If it required less then, by reason of the transitional provisions, a sentence of 6 months may not be imposed. Effectively then imprisonment was not an option available to the Magistrate. I think the facts do indicate that the breach of bail either required a fine or a sentence of imprisonment significantly less than one of 9 months' imprisonment.

8 Counsel for the appellant has put forward a number of cases. I think it would probably be going too far to say that they necessarily represent a full range of sentences commonly imposed for this offence, but they do give some background so I will list some of them. In Kelly v Lockwood, to which I have made reference, the term of 3 months cumulative for breach of bail was set aside. In Heaton v Moulden [2004] WASCA 29, there were many offences which were dealt with by a sentence, including a breach of a bail undertaking, which received a sentence of 1 month's imprisonment cumulative. That 1 month was permitted because there were other sentences which exceeded 12 months.

9 In Dodd v Hoogewerf [ 2002] WASCA 15, on appeal a sentence of 3 months' imprisonment for breach of bail, together with other sentences (which other sentences totalled 9 months' imprisonment) was varied by suspending the sentence. Implicit in that was an acceptance of 3 months was within the range of sentence but was before the amendments, as I have said.

10 In Quartermaine v The Queen [2000] WASCA 107, the Court of Criminal Appeal varied the sentence, but considered that, as Kennedy J said, " ... 3 months for the breaches of bail undertakings in this case where the applicant was, shortly after the date on which he was required to attend the Court of Petty Sessions in Armadale, arrested in that court, was more than was necessary and it should be reduced to 1 month in each case ... ". The order was that the terms would be served concurrently with each other, but cumulatively on other sentences.

11 In Eades v Dunstan, unreported; SCt of WA (Scott J); Library No 950663; 30 November 1995, offences of disorderly conduct and breach of bail and other matters; sentence of 12 months' imprisonment for each breach of bail offence concurrent. On appeal, there were additional facts put before the Court and a probation order and a community service were substituted. In determining the seriousness of the breach of bail, it is necessary to look at the seriousness of the offences with which the offender was charged because one matter which would increase the seriousness is the seriousness of the offence for which they failed to appear.

12 In the present case, the offences for which the appellant failed to appear were giving a false name to a police officer on 10 February 2006, failing to comply with a move on order and driving a motor vehicle with a percentage of alcohol exceeding .08. The offence of the false name was dealt with by way of a $100 fine, and the breach of the move on order by way of a $200 fine, the breach of s 64(1) of the Road Traffic Act 1974 was dealt with by way of a $1000 fine. In short, objectively, the offences were not of such seriousness as to warrant imprisonment, and that is often a good guide as to the disposition for breach of bail.

13 As I have said, I consider the Magistrate erred. She imposed a sentence of imprisonment, albeit suspended, when the objective seriousness of the offending, measured by reason of the offence with which the appellant was charged and for which she failed to appear, did not require imprisonment at all. Moreover, if, contrary to my view, imprisonment was required, having regard, to some degree, to the cases that I have outlined, but more through an assessment of the circumstances, a sentence of 6 months and 1 day was manifestly excessive. That would reduce the sentence then to a range where a sentence of imprisonment simply could not be imposed at all.

14 Finally, the mere fact that a sentence previously has failed to achieve its purpose is not to be regarded as an aggravating circumstance. That is a temptation in sentencing which at all times must be guarded against. For those reasons I allow the appeal, set aside the sentence of 6 months' imprisonment suspended and in lieu impose a fine of $500.

15 In my opinion, for the reasons I have set out in SJA 1050 of 2006, Spratt v Canavan, the Magistrate in this case was also in error in the same manner in imposing a term of imprisonment, albeit suspended. I would allow the appeal, set aside the decision of the Magistrate to impose a term of imprisonment, and in lieu thereof impose a fine of $200.