WILLIAMS -v- PENNUTO [2016] WASC 325 (10 October 2016)

4 January 2016 sentencing - circumstances of offending

2 On 4 January 2016, Magistrate Watt sentenced the appellant for separate offences of aggravated burglary and unlawful damage that were committed in 2015.

3 The facts of the aggravated burglary offence were that the appellant kicked through a door of commercial premises, damaging the door and a security screen, then entered the premises and took a can of spray paint. The magistrate imposed a sentence of 9 months' imprisonment, suspended for 12 months.

4 The facts of the unlawful damage offence were that the appellant repeatedly kicked a door of a service station, damaging a screen and smashing a glass panel. The magistrate imposed a sentence of 3 months' imprisonment, suspended for 12 months, and to be served cumulatively if served.

5 Community based orders were imposed for three other offences (one count of dangerous driving and two counts of stealing).

6 There was no appeal from the sentence imposed by Magistrate Watt.

12 May 2016 sentencing - circumstances of offending

7 On 12 May 2016, the appellant was sentenced by Magistrate Benn with respect to further offences. Four of those offences resulted in sentences of imprisonment. Those offences comprised aggravated common assault, receiving stolen property, attempted stealing of a motor vehicle and breach of bail. Each offence occurred after the 4 January 2016 sentencing.

8 The magistrate also withdrew the community based orders and imposed fines for those offences, and imposed a fine for a fresh offence of giving false details. The imposition of those fines is not the subject of this appeal.

9 The circumstances of the aggravated common assault were that the appellant and his partner were involved in a verbal altercation. They then went to a deli together where the altercation escalated and the appellant punched his partner to the mouth with his fist, causing her mouth to bleed and with sufficient force to cause her to fall to the ground.[1] The appellant was in a family and domestic relationship with the victim. The appellant was granted bail following the offence.[2]

10 Whilst on bail, the appellant committed the offence of receiving and attempted stealing of a motor vehicle. A third party stole car keys from a house and gave them the appellant, who received them knowing them to be stolen and then attempted to use the keys to steal the motor vehicle. He started the car but his efforts to steal the car were stopped when a witness intervened.[3]

11 The breach of bail concerned the failure by the appellant to attend court, a term of the bail undertaking entered into with respect to the aggravated common assault.[4]

12 The magistrate imposed a sentence of 6 months' imprisonment to be served cumulatively for the aggravated common assault. The magistrate imposed a sentence of 3 months' imprisonment to be served concurrently for the receiving offence and 6 months' imprisonment to be served concurrently for the attempted stealing of the motor vehicle. A sentence of 3 months' imprisonment for breach of bail was imposed, also to be served concurrently.

13 The commission of the 2016 offences activated the suspended sentences for the aggravated burglary and damage offences previously imposed.

14 At the 12 May 2016 hearing, the magistrate considered the operation of s 80(3) of the Sentencing Act 1995 (WA) and found that there was no evidence to suggest it would be unjust to activate the suspended sentence.[5] However, the magistrate took into account that the appellant had spent 1 month in custody and so the sentence that was triggered was imprisonment for 8 months, rather than the original 9 months. Neither the appellant nor the respondent took any issue with the magistrate's application of s 80 in this appeal.

15 The penalties imposed for the offences are summarised as follows:

Maximum penalty/jurisdictional limit in the Magistrates Court

Dangerous driving (first offence) (resentence, breach CBO) (KT 730/2015)

12 months (fine available per s 41(2), s 39(2)(c) Sentencing Act

16 A presentence report was provided to the magistrate. At the time of sentencing, the appellant was 27 years old. He had a history of prior adult convictions dating back to 2007 which were mainly property offences, with two convictions for violence and one for breaching police orders under the Restraining Orders Act 1997 (WA).[6] The presentence report referred to a difficult childhood.

17 Counsel for the appellant submitted that the appellant's record reflected an ongoing struggle with substance abuse, a struggle that started with solvent abuse as an 8yearold and continued into adulthood. It was said that the 2016 offences occurred whilst he was affected by substance abuse. Counsel also stated that despite statements to the contrary in the presentence report, the appellant accepted the facts as alleged with respect to the assault, took responsibility for what happened and that he felt sorry for what had occurred.[7]

18 Counsel also said that the appellant fully cooperated with the police, made full admissions, and after the previous sentencing had wished to get assistance with his substance abuse but had moved to a country area and it was difficult to travel and keep appointments. He found it difficult to find family members with driving licences who were able to assist him.[8]

19 Counsel asked the magistrate to take into account the early plea of guilty, the fact that the appellant had spent time in custody, the difficulties he faced in his life from a young age, totality principles and eligibility for parole.[9]

20 The magistrate noted the plea of guilty and allowed the full 25% discount on sentence.[10] The relevant sentencing remarks were as follows:[11]

[W]hen Watt M sentenced you only in January this year, she made it pretty clear that she was giving you a final opportunity to make a determined effort to deal with your substance abuse problems, make some changes in your life and avoid coming back to court on any new charges, and she made it clear what the result would be if that were to occur, and at the end of the day, you commenced reoffending a relatively short time after you were given the orders; about a month, roughly.

So it would seem that the opportunity had little impact. I'm aware of what your counsel said, but at the end of the day, I'm far from the view that it would be unjust to now activate the sentences ...

...

So I'm going to deal with you as follows: for the aggravated burglary, rather than the original term of nine months' imprisonment, there will be a term of eight months imprisonment... Three months cumulative, as indicate by Watt M for the property damage and then I'm going to apply the principle of totality and make some of the sentences run at the same time.

For the aggravated assault there will be six month's imprisonment. That will be cumulative. In regard to the receiving, three months' imprisonment, concurrent. In regard to the attempted steal motor vehicle, six months imprisonment, concurrent and in regard to the breach of bail, three months' imprisonment, concurrent (ts 10 11).

21 The magistrate also made the appellant eligible for parole after serving half of the 17 months imposed.

22 There were three grounds of appeal relied upon. The first ground was that:

The learned magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all the relevant circumstances, including those referable to the offender personally.

The learned sentencing magistrate erred in failing to give the appellant credit for his cooperation with the police.

24 The third ground introduced at the hearing before me was that:

There was a miscarriage of justice in that imprisonment was imposed for the offence of receiving.

25 This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). Section 8(1) provides that:

An appeal may be made under this Division on one or more of these grounds -

(a) that the court of summary jurisdiction -

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

26 Section 14(2) provides that:

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.

27 The general principles relevant to an appeal against sentence are well known, and were summarised in Wilson v The State of Western Australia.[12] An appellate court can only intervene in the sentencing court's exercise of discretion if the appellant demonstrates either express or implied error. Express error involves acting on a wrong principle, for example by taking into account an irrelevant matter or failing to take into account a relevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

28 Even where there is express error, the jurisdiction of the court to resentence an appellant will not be enlivened unless the error is material to the exercise of the sentencing discretion.[13] There is some debate as to whether for an appeal under pt 2 of the Criminal Appeals Act (as against pt 3) there is a requirement that any error as referred to in s 8(1)(a)(i) be material before the appellate court's jurisdiction is enlivened: see Ninyette v Holmes[14] and Winmar v Clark.[15] For reasons set out below, I do not need to address that debate in the circumstances of this appeal. In any event, this court may dismiss an appeal under s 14(2) Criminal Appeal Act if it considers that no substantial miscarriage of justice has occurred.

29 It is appropriate to start with ground 3, because it is relevant to the totality issue which arises with respect to ground 1.

30 The value of the car keys received by the appellant was not addressed in the original prosecution notice, nor during the hearing before the magistrate. The value is relevant to the sentencing options available to the court. In its submissions, the respondent noted that the value of the keys was less than $1,000, and so the applicable maximum summary conviction for the offence was a fine of $6,000 under s 426(4) of the Criminal Code (WA). The parties submitted before me that there was a defect in the prosecution notice rather than any real error on the part of the magistrate. The appellant submits there has therefore been a miscarriage of justice. In any event, although the value of the goods received was not brought to the magistrate's attention, in my view there was an error of law in that a sentence was imposed which was not open on the facts. In this case, the error is clearly material, in that a sentence was imposed which the magistrate was not entitled to impose under the legislation. The nature of the error is distinguishable from those cases where the error is to misstate a maximum penalty but in any event impose a sentence which is less than that penalty. In such cases, there may or may not be material error: see Harding v The State of Western Australia.[16]

31 I would therefore grant leave to appeal and allow the appeal insofar as the sentence of 3 months' imprisonment was imposed for the offence of receiving.

32 It is open to me under s 14(1)(c) of the Criminal Appeals Act to set aside the sentence of 3 months' imprisonment and substitute a fine. Taking into account the circumstances of the offence and the appellant, I impose a fine of $250 with respect to charge number MI 3767/2016. Ordinarily an offence of the nature of receiving car keys knowing them to be stolen would attract a higher fine, but taking into account principles of totality, I do not consider a higher fine is required.

33 By this ground, the appellant contends that the total term of 17 months offends the first limb of the totality principle: namely that it is disproportionate to the total criminality involved. The second limb is not relied upon (that the sentence is crushing on him).

34 In summary, the total period of imprisonment for the 2015 offences (aggravated burglary, damage) is 11 months. Counsel for the appellant accepted that in the absence of any appeal with respect to the sentence for the 2015 offences or the triggering of those sentences, the starting point is that a sentence of 11 months has been imposed and is not challenged.

35 As appears from the above table, the magistrate ordered the imprisonment terms for receiving, attempting to steal and breach of bail be served concurrently. The only cumulative term was for the aggravated common assault. Counsel accepted (rightly, in my view) that some accumulation for those offences would not be inappropriate, taking into account the separate nature of the 2016 offences and the fact that they occurred during the period of the suspended sentences, but submitted that the additional period of 6 months was too great a period.

36 I respectfully adopt Mazza JA's summary of the totality principle in Brown v The State of Western Australia:[17]

These allegations [of implied error] can be dealt with together. The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a crushing sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. It was not submitted that the total effective sentence imposed on the appellant was crushing.

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. Where the totality principle comes into effect, it is of little importance how the ultimate aggregate is made up. The real issue is whether the total effective sentence offended the totality principle, not whether one or more of the individual sentences were excessive: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]; and Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40].

37 An additional issue now is that in light of my finding as to ground 3, one in a series of sentences that were imposed as part of an application of totality principles was wrong. The effect of this error must be considered.

38 Sections 41(2) and s 41(3) of the Criminal Appeals Act provide:

(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -

(a) vary the sentence as imposed;

(b) impose a different sentence involving a different sentencing option;

(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;

(d) order that the sentence is to take effect on a date on or after the date of the order.

39 In this case, the preconditions in s 41(2)(a) and s 41(2)(b) are present and it is open to me to vary the sentences. See generally Ex parte Richards[18] as to potential outcomes where s 41(2) is enlivened; also Beard v The State of Western Australia.[19]

40 The appellant submitted that the error affected the total effective sentence that was imposed. Implicit in this submission is that the magistrate's view of the seriousness of the total course of offending would have been affected had his Honour realised at the time that only a fine could be imposed for the receiving offence. The respondent submitted that the error was immaterial because the sentence imposed was concurrent and so even if a fine were imposed, it would not affect the total effective sentence.

41 In my view, it does not follow from the fact that ground 3 has been made out that the total effective sentence imposed upon the appellant would have been reduced in this case. As noted previously, such a submission directs attention to the 6 month cumulative sentence imposed for the aggravated common assault (without suggesting the sentences imposed for attempted stealing and breach of bail are not also relevant).

42 There are few appellate cases in which sentences for aggravated common assault are discussed. The appellant referred to Harrison v Hunter.[20] The respondent referred to Bropho v Hall.[21] The offence was also considered in Brown v The State of Western Australia.

43 In Harrison v Hunter, the court considered that a sentence of 8 months' imprisonment for an offence of aggravated common assault, an offence which did not fall within the upper range of seriousness, to be appropriate.

44 In Brown v The State of Western Australia, the offender was sentenced in the District Court for multiple offences to a total effective sentence of 2 years and 4 months' imprisonment. Many offences were different to those the subject of this appeal. One offence in the series was aggravated common assault and for that offence the offender was sentenced to 9 months' imprisonment, cumulative. The offence involved an assault on the offender's partner by throwing lighter fluid on her and in front of a young child, and in circumstances arguably more serious than in this case. An appeal based on the application of totality principles was dismissed.

45 In Bropho v Hall, there were two aggravating factors, in that the appellant and the victim were in a domestic relationship and the assault occurred in front of their children.[22] The appellant was sentenced to 15 months' imprisonment for the assault and 2 months for breach of protective bail, an effective total sentence of 17 months. The appellant served 4 months of the sentence before the sentence was overturned on the basis that it was excessive in the circumstances, and he was resentenced. He was resentenced (taking into account, relevantly, that 4 months' imprisonment had already been served) to a 6 months' supervision order.

46 The appellant also referred to Langdon v KelemeteLeoli-McLean[23] in the context of the injury suffered by the victim and the need to guard against a sentence that might more properly be imposed for assault occasioning bodily harm. In this regard, I note Mitchell J's analysis of decisions dealing with sentences for aggravated assault occasioning bodily harm in Bropho v Hall and his conclusion that a sentence of 15 months' immediate imprisonment would stand at the upper range of sentences for that offence involving domestic violence.[24]

47 Little assistance can be gained by analysing cases where the combinations of offences and the facts are inevitably quite different. Furthermore, there are insufficient cases to constitute reasonable guidelines.[25]

48 I accept the appellant's submissions that the offending could not be said to be in the upper range of seriousness of offences of aggravated common assault given that it involved one punch delivered in the heat of an argument. Having said that, the circumstances of aggravation were significant. Domestic violence is properly regarded as serious by the community: see generally Bropho v Hall[26] and Harrison v Hunter.[27] It was not open to the magistrate to impose a suspended sentence in this case. In all of the circumstances, I do not consider a sentence of 6 months' imprisonment (having taken into account mitigation) is disproportionate to the offence.

49 In any event, the question is not whether or not any one of the individual sentences was excessive, but whether the total effective sentence of 17 months offends the totality principle.

50 I do not consider that removal of the receiving charge from the sentences of imprisonment should result in any different sentence being imposed, including as to cumulation. The application of totality principles is reflected in the concurrent nature of the sentences imposed for attempted stealing of the motor vehicle and breach of bail. Taking into account the five other offences for which periods of imprisonment were imposed (counts 1, 2, 3, 5 and 6 in the above table), the nature of those offences and the personal circumstances of the appellant, I do not consider the total effective sentence was disproportionate to the appellant's offending. The need for both personal and general deterrence arose from the circumstances of the appellant's offending, particularly as the appellant was on bail for the common assault charge at the time of committing the attempted stealing offence. I see no reason to vary under s 41(2) of the Criminal Appeals Act the sentence otherwise imposed.

51 The content of the statutory requirement that a ground have a reasonable prospect of succeeding was considered by the Court of Appeal in Samuels v The State of Western Australia.[28] In that case the court noted that, in a similar statutory context to s 9(2) of the Criminal Appeals Act, it had been held that leave will ordinarily be granted to appeal against sentence where the appellant has made out a sufficiently arguable case that the sentence imposed was inappropriate in all the circumstances.[29] Adopting that approach, I do not consider that the appellant has made out a sufficiently arguable case that the sentence of 17 months infringes the first limb of the totality principle. I do not consider ground 1 has a reasonable prospect of succeeding and it follows that I refuse to grant leave as to ground 1.

52 Counsel for the appellant before the magistrate stated that:[30]

Mr Williams tells me that he fully cooperated with police and that he was able to provide them with names with regards to that burglary offence.

53 The cooperation related to the burglary which preceded the receiving of the stolen keys and the attempted stealing of the motor vehicle. The appellant contends that the magistrate failed to give credit for such cooperation.

54 The respondent does not contest that such cooperation was provided to the police, but contests its significance. No other details of the alleged cooperation were provided. The respondent says that the degree of cooperation was very limited. It was not suggested that it went so far as giving evidence against the alleged offender or demonstrating any preparedness to do so. It was not suggested that the appellant was placed in any position of risk by providing the information. Although cooperation may in some circumstances lead to a substantial discount, there are examples where failure by a sentencing judge to refer to such limited cooperation has not led to any different sentence being imposed: see, for example, Hill v The State of Western Australia.[31]

55 The magistrate did not expressly refer to co-operation in his sentencing remarks. It is not to be inferred from the magistrate's failure to mention co-operation that no regard was given to the issue. Further, it is to be assumed that the magistrate has complied with the duties imposed and taken relevant matters into account: Brewer v Bayens.[32]

56 In any event, even if the magistrate failed to have regard to the cooperation as described, the nature of the co-operation was of a limited nature and extent. Very little information was provided to the sentencing magistrate. Having regard to all the circumstances, I do not consider that a different total effective sentence should have been imposed. I do not consider there was any substantial miscarriage of justice: s 14(2) Criminal Appeals Act.

57 Accordingly, I would refuse leave with respect to ground 2.

1. Leave to appeal on grounds 1 and 2 is refused.
2. Leave to appeal on ground 3 is granted and the appeal is allowed.
3. The sentence imposed by the magistrate on charge MI 3767/2016 is set aside and in lieu thereof the appellant is sentenced to a fine of $250.

[4] Prosecution notice charge MI 3770/2016.

[6] Unlawful wounding, common assault: Respondent's outline [28]; ts 7. The existence of a prior record is not an aggravating factor: nor is it an aggravating factor that a previous sentence has not achieved the purpose for which it was imposed: s 7(2)(b) and s 7 (2)(c) Sentencing Act.

[10] Section 9AA Sentencing Act.

[12] Wilson v The State of Western Australia [2010] WASCA 82 [2].

[13] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505; Harding v The State of Western Australia [2015] WASCA 27 [36] [40], [73] [74]; Roberts v The State of Western Australia [2014] WASCA 239 [47]; Rowsell v The State of Western Australia [2015] WASCA 2.

[14] Ninyette v Holmes [2015] WASC 287 [65] (Mitchell J).

[15] Winmar v Clark [2015] WASC 314 [29] [30] (Martino J).

[16] Harding v The State of Western Australia [41] [45] (Martin CJ).

[17] Brown v The State of Western Australia [2010] WASCA 228 [41] [42].

[18] Re The State of Western Australia; Ex parte Richards [2005] WASCA 176 [31] [33].

[19] Beard v The State of Western Australia [2015] WASCA 74 [61] [63].

[20] Harrison v Hunter [2012] WASC 166.

[21] Bropho v Hall [2015] WASC 50.

[23] Langdon v KelemeteLeoli-McLean [2011] WASCA 26 [93] [96].

[24] Bropho v Hall [25] [35] (and noting at [25] that there are few appellate cases on sentencing for aggravated common assault under s 313 Criminal Code).

[25] See also Garlett v Balic [2016] WASC 172 [49] [51] (Beech J) (noting there are few appellate cases on sentencing for common assault under s 313 Criminal Code).

[28] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

[29] Samuels v The State of Western Australia [61].

[31] Hill v The State of Western Australia [2014] WASCA 150 [89] [91].

[32] Brewer v Bayens [2001] WASCA 37 [31].