RUTTER -v- BOARD [2012] WASC 488 (11 December 2012)

Last Updated: 11 December 2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : RUTTER -v- BOARD [2012] WASC 488

CORAM : EM HEENAN J

HEARD : 8 AUGUST 2012

DELIVERED : 11 DECEMBER 2012

FILE NO/S : SJA 1124 of 2011

BETWEEN : CATLIN MICHAEL RUTTER

Applicant

AND

MARIA BOARD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M PONTIFEX

File No : BS 1553 of 2011, BS 1554 of 2011

Catchwords:

Application for leave to appeal against sentence - Disorderly conduct and obstructing police - Pleas of guilty - 'Global fine' irregular - Fine of $2,000 - Not excessive

Legislation:

Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Ms M J Woo

Solicitors:

Applicant : In person

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

1 EM HEENAN J: On 1 November 2011 the applicant, Catlin Michael Rutter, appeared before her Honour Magistrate M Pontifex in the Magistrates Court at Busselton and pleaded guilty to two charges, namely:

(a) that on 12 August 2011 at Busselton he obstructed one Senior Constable 13001 Matthew Hemblen, a member of Western Australia Police Force, performing duties imposed on him under the provisions of the Road Traffic Act 1974 (WA) contrary to s 273(4) of the Road Traffic Code 2000 (WA); and

(b) that on 12 August 2011 at Busselton Catlin Michael Rutter, being in a public place, behaved in a disorderly manner by using abusive language contrary to s 74A(2)(a).

2 The applicant had been charged with these two offences following his arrest at the scene at about 11.30 pm on Friday, 12 August 2011. He subsequently entered endorsed pleas of guilty to the two charges but appeared in person and by counsel before the learned magistrate when the charges were listed on 1 November 2011.

3 On that occasion her Honour was informed of the material background facts, heard submissions from counsel for the applicant in mitigation and received written character evidence on his behalf. Her Honour took the view that the applicant's disorderly conduct was particularly insulting and offensive to the woman police officer at whom it had been directed. Her Honour, therefore, decided to impose a fine of $2000 collectively for both offences and to order that the applicant should submit himself to a program of alcohol counselling and advice. Her Honour thereupon adjourned the hearing and the application for a spent conviction order pending the report of the alcohol counselling agency. The case was relisted before her Honour in Busselton on 13 December 2011, by which time the applicant had completed a series of basic sessions on alcohol counselling four sessions in all. On this occasion her Honour formed the view that although these offences were not trivial offences, the applicant was otherwise of good character and would suffer adverse consequences of the convictions given his chosen occupation and that he was, in any event, unlikely to offend again. Consequently, her Honour granted the applicant spent conviction orders in relation to both matters.

4 On 28 November 2011 the applicant filed an appeal notice which, at least on its face, appeared to seek leave to appeal against both convictions and the composite sentence. This was, however, amended by the applicant in manuscript and as amended the notice sought leave to appeal only against the sentence imposed for both offences. The applicant confirmed that this was the case and that he sought leave to appeal only against the sentence when the application came on for hearing in this court. In the notice of appeal the single proposed ground of appeal was stated as follows:

I feel the fine that was imposed was too high. My Legal Aid representative told the court of my PROJECTED earnings as a commercial driver (I think this is why the fine was high), however work is not regular in the industry and his statement was incorrect. I have never been to court before which I don't think was taken into consideration. I have completed four sessions of alcohol counselling since the first of November. I felt terrible about the events that happened the night of the offence, so I wrote the officer a letter of apology and tried to apologise face to face. I am due back in court on 13th of December to see if I will be granted a spent conviction.

5 By orders and directions made on 31 May 2012 Hall J directed that the application for leave to appeal should be heard at the same time as the appeal and made other directions in preparation for that hearing including orders for the filing of written submissions.

Background facts

6 The events leading to the commission of these offences and the facts constituting them had been put before the learned magistrate in the court at Busselton on 1 November 2011 and were not disputed. At 11.30 pm on Friday, 12 August 2011, police stopped a Subaru Forester sedan on Lockhart Street at the intersection with Busselton Highway, Busselton in order to conduct a roadside breath test. The driver was spoken to and asked to provide a sample of breath for analysis. The applicant, a passenger in the vehicle, was observed to get out from the passenger's side. He walked around the vehicle and stood right next to Senior Constable Hemblen, the officer speaking to the driver.

7 The applicant was asked to move away as he was standing too close. He did not move and asked why he should move. He was informed that he was standing too close. He then walked to the other side of the vehicle. Senior Constable Hemblen and the second police officer then continued with the vehicle stop. The applicant returned to where the two officers were standing and again came very close. He began asking questions about why the vehicle was stopped and why they (the officers) thought they were doing a good job. The driver had provided a positive sample of breath and was placed under requirement to go to the police station. The applicant then asked the officers if they got a thrill out of doing drink drivers and what they got out of it.

8 The three other occupants of the vehicle told the applicant to shut up and tried to take him away from the vehicle. He was approximately 10 metres away from the police and began shouting at Senior Constable Board, a female police officer, in insulting and obscene terms. The actual words spoken are set out in the transcript of proceedings before the learned magistrate but need not be repeated because of the coarseness, insulting and derogatory terms used. Following this Senior Constable Board approached the applicant and asked him what he had said and tried to obtain his details. The other persons present kept apologising and telling the applicant to stop being stupid. The applicant was arrested for disorderly conduct and held by both arms back towards the police vehicle.

9 The applicant struggled and tried to break free from police. He continued being abusive and asking the police if they felt like heroes. He was handcuffed, taken to a secure police vehicle and later charged.

10 As the applicant now freely acknowledges, he was very drunk at the time. He had no record of prior offending.

Reasons for decision

11 At the completion of submissions in mitigation on the plea of guilty and after receiving written character evidence about the applicant, and submissions of how he felt ashamed of his conduct, had expressed remorse and had attempted to apologise directly to the police officer concerned, her Honour gave reasons for her decision for the sentence imposed. These were:

Mr Rutter, I hear a lot of nasty language and things in here that people have said and that is probably up there. That was disgraceful. Quite clearly when you are drunk you are a very ugly person and that causes me concern. This may be your first offence but that was quite appalling language and the way you treat a serving officer of the police force.

You have given me these references and I just wonder if Ms [B] and Ms [T] if you had said that to them whether they would still have been prepared to give you a letter and say what a great bloke you are, if you had said those words to them, and if the boot was on the other foot this constable, who was just doing her job, and if someone you were doing your job sober and some person came up to and spoke to you like that just because you were doing your job I think you would be pretty offended.

...

It is really disgraceful. The disorderly is a fine only. The fine for that is up to $6000. I think taken this, even though it is your first offence and you have pleaded guilty, it has to be a substantial fine for that and you are fined $2000 globally for those two offences. In respect to your spent conviction I note your references but my view is that, as I have said, you are capable of great ugliness when you are drunk and I need to know that you have at least taken some basic advice.

There are a number of alcohol counselling organisations around. You can go and deal with them, talk to them, and you bring me back some evidence that you have, at the very least, engaged in a basic manner with an alcohol and drug service in our community so I can - because I have to be satisfied you are unlikely to offend again. Clearly, alcohol affects you badly and you need to know how to manage it.

...

So I am going to adjourn the matter to 13 December. It gives you plenty of time with working away to go and get that - I'm only speaking for the sixmonth course and I want you to go and do some basic counselling at a community drug service centre or some other place and if you come back and show me that you have done that, then I can have some faith that you will not offend again and I will be likely to be more faithful in consideration of a spent conviction application.

12 As previously outlined, the applicant did attend an alcohol counselling service, undertake a course of sessions, and when he appeared before the learned magistrate again on 13 December 2011 was granted spent conviction orders.

Leave to appeal

13 By virtue of s 9(2) of the Criminal Appeals Act 2004 (WA) this court may not grant leave to appeal from a decision of the Magistrates Court such as this unless the proposed ground of appeal has reasonable prospects of succeeding. That requirement must be met in relation to each ground of appeal proposed but, as noted, in this case there is only one. For a proposed ground of appeal to have a reasonable prospect of succeeding it must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] and Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187 [11].

14 In the present case the respondent submits that this proposed ground of appeal has no prospects of success and that, accordingly, leave to appeal should be refused or, alternatively, if leave is granted the appeal should be dismissed. In view of the order for directions of 31 May 2012 it is, therefore, both convenient and appropriate to deal with the application for leave to appeal and any prospects of success of the appeal if leave were granted, simultaneously.

Submissions

15 Mr Rutter's written submissions are short and succinct. He reiterates the basic facts of his conduct leading to the commission of the offences and acknowledges unequivocally that he was very drunk. Nevertheless, he submits that the global fine imposed by the learned magistrate was manifestly excessive bearing in mind the circumstances of the offences. He submits that his conduct was of short duration, that his guilt and remorse as evidenced by a letter of apology and an attempt to apologise personally to the officer concerned mean that the composite penalty of $2000 was manifestly excessive bearing in mind that the offences committed are, in his submission, at the lower end of the scale of such offences. He further submits that these background facts, coupled with his personal circumstances in having no prior record, previous good character and youth are factors which warranted a more lenient sentence. In further support of that submission he relies upon his voluntary attendance at alcohol counselling and on the two character references put before the Magistrates Court. He further submits that he does not have paid regular work and, by the time of this hearing on 8 August 2012 had not worked since the previous midJune.

16 In the course of submissions at the hearing of this application counsel for the respondent accepted that I should treat the application for leave to appeal against sentence on the basis that the fine of $2000 was, in all the circumstances, beyond the range of a sound sentencing discretion for the offences concerned. This construction of the proposed ground of appeal may involve some favourable interpretation of the language used by the applicant as a concession but it is one that I am satisfied should be made having regard to the fact that the applicant is a selfrepresented litigant without legal training or experience. Treating the proposed ground of appeal in this way allows the principles of review of discretionary judgments to be applied.

17 Nevertheless, it is important always to accept that any judicial officer sentencing an offender necessarily has a wide discretion with regard to the sentence to be imposed, unless specifically constrained by statute. The width of this discretion has often been emphasised as being of importance so that a wide measure of latitude must be given by any appeal court to a discretionary sentencing decision made by a judicial officer: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 337 (Kirby J).

18 As the learned magistrate correctly observed at the hearing on 1 November 2011, a penalty imposed by s 74A of the Criminal Code for disorderly behaviour in public is a fine of up to $6000. As at 12 August 2011 the modified penalty prescribed by reg 273(4) of the Road Traffic Code for obstructing any member of the Police Force exercising any of the powers vested in him or her or performing any of the duties imposed upon him or her was a Modified penalty of 2 PU but by nature of reg 9(2) the maximum penalty for a first offence is 24 PU. In the circumstances of this case, a penalty unit is equivalent to $50 by virtue of s 5(a) of the Road Traffic Act. Hence in this case the maximum penalty for the offence of obstructing a police officer was a fine of $1200 for a first offence.

'Global fine'

19 The practice of imposing a 'global fine' or other penalty for two or more offences dealt with by a court at the same time has been criticised on more than one occasion and is capable of causing problems. In Johnson v Ball [2006] WASC 216 McKechnie J observed at [14]:

I have difficulty with the concept of 'a global sentence' in relation to sentences of imprisonment. The service of terms of imprisonment is governed by the Sentencing Act s 88. The offender may be sentenced to concurrent terms, cumulative terms or partly concurrent terms. The magistrate erred in imposing a global sentence, a term not known to law. By doing so it cannot be known whether he regarded one assault as more serious than the other, whether he regarded the assaults as each attracting concurrent sentences because they arose substantially out of the one transaction, or whether he regarded one assault as requiring a separate or partly separate punishment from the other. It would be merely speculation on my part to conclude that his sentence could be explained as two concurrent sentences of 16 months each.

20 Similarly, in Fakie v Shelverton [2000] WASCA 177; (2000) 115 A Crim R 177 when the court was reviewing on appeal a global penalty of a fine imposed for offences committed under the Fisheries Management Act 1991 (Cth) Heenan J said at [7] that the 'global sentence' imposed by the learned magistrate in respect of each appellant does not comply with the provisions of the Crimes Act (Cth) which were applicable, s 4K(3) and (4). His Honour observed that the learned magistrate should have imposed separate penalties in respect of the separate offences so that, on the appeal, it became necessary to decide in respect of each appellant what penalty is appropriate to the offences under each of those provisions. While it may be an error of law to impose a global penalty for numerous offences without indicating how that penalty is allocated as between each offence, such an error will not necessarily lead to success on appeal or any variation in the terms of the sentence or fine imposed see Isak v Garbellini [2006] WASC 50.

21 In the present case there is no express indication by the learned magistrate of how the global fine of $2000 was allocated as between the two offences of obstructing a member of the police force on the one hand and disorderly conduct on the other. As already noted, the maximum penalty for obstructing a police officer is significantly less than the maximum penalty for the offence of disorderly conduct. Despite the absence of any express allocation of the 'global fine' as between the two offences, there are obvious indications in the learned magistrate's reasons for decision that her Honour regarded this offence of disorderly conduct as the more reprehensible and culpable conduct of the applicant. It was his conduct in relation to his behaviour to the woman police officer which was singled out for marked criticism. It follows from this that I consider that the major portion of the fine imposed was intended to constitute a punishment in respect of the offence of disorderly conduct and that a smaller proportion was, by implication, reserved for the offence of obstructing the police officer. The most favourable assumption which I can make in the applicant's favour in the situation where there is this lack of precision is that almost all of the penalty was imposed for the disorderly conduct offence so that the question of excessiveness or disproportion of the penalty should be approached on this appeal on the footing that most if not all of the fine has been imposed because of the disorderly conduct. I shall proceed on that assumption.

22 The principles applicable to appellate review of a discretionary judgment are wellknown and established: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505 and Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ). In a case such as the present it is necessary to consider whether the sentence proposed to be challenged is outside the range of sentences for offences of the particular kind customarily imposed to such an extent that, in all the circumstances, this must lead to a conclusion that there is some unidentified error in the exercise of the discretion: Vagh v The State of Western Australia [2007] WASCA 17 [47]. Any determination of error of this kind will in a case like the present require a sentence imposed to be considered in the light of the maximum penalty prescribed by law for the particular offence, the standards of sentencing customarily observed for that type of offence, the degree of seriousness of the circumstances of the particular offending and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13] (McLure P).

23 The reference to the range of sentences customarily imposed for a particular offence will in itself require caution in use and application. This is because a sentence outside that range, but within the statutory maximum, is not necessarily erroneous: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] and Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533 [6]. Nevertheless, sentences customarily imposed in comparable cases provide an indication for ensuring broad consistency in sentencing notwithstanding that in individual cases there may be factors calling for variation: Sabau v The State of Western Australia [2010] WASCA 3 [18].

24 The offence of disorderly behaviour can cover a very broad range of unlawful conduct ranging from the relatively minor to the more serious. Even more so, the offence can be committed in a wide variety of circumstances by offenders with very different backgrounds, characters and personal histories. This makes a comparison between penalties imposed in other cases of limited utility. So in Thompson v McKay [2008] WASC 207, 270 a fine of $500 was imposed for disorderly behaviour which involved the offender abusing the manager of a hotel in an insulting and obscene manner. However, in that case, the unlawful conduct was not directed towards a police officer performing duties or in circumstances where the offender and his associates outnumbered the police officers. In the present instance, it is significant to note that the maximum penalty or disorderly behaviour was increased by the Parliament on 31 May 2005 from a fine of $2500 to $6000, so reflecting the gravity attached by the community to the more serious instances of this form of offending.

25 Counsel for the respondent has submitted that there were numerous features of the applicant's conduct which revealed the seriousness of his behaviour. He was aged 21 years at the time of the offence, he was seriously affected by alcohol, the offence occurred at night, the two police officers were carrying out their duties, the applicant decided to get out of the car and go to intrude on what the officers were doing, although he had no reason to do so, he was very persistent despite the officers and his friends attempting to direct or persuade him to cease his conduct, the words which he shouted were obscene and highly insulting to the woman police officer, the applicant was with three other occupants of the car at the time and when arrested struggled and tried to break free and continued to be abusive after his arrest. All these factors can be accepted as can be the description by the learned magistrate that the language used to the police officer was 'quite appalling' and 'really disgraceful'. Notwithstanding that this was a first offence, no objection can be taken to the learned magistrate's determination that this was an occasion for the imposition of a substantial fine.

26 The personal circumstances of the applicant were, largely, favourable. He had no prior record, he ultimately accepted responsibility and showed remorse, and he entered early pleas of guilty. These are mitigating factors which entitle him to a discount in the sentence which might otherwise have been imposed: Sentencing Act 1995 s 8(2) and Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] where discounts for early pleas of guilty were recognised to attract a reduction in sentence of somewhere between 20% and 35%. The learned magistrate expressly acknowledged the fact that this applicant had pleaded guilty at an early stage and his conduct amounted to a first offence. The sentence was imposed after the learned magistrate had been informed that the applicant was in regular work and in receipt of a significant income. He now says that that is not the case but the reasons for a change in employment conditions and his current prospects were not enlarged upon or pursued at the hearing of this application.

27 This is not a case in which the sentence imposed has exceeded the statutory penalty fixed by the Parliament for the offences or in which there has been any error of fact or omission of material fact by the learned magistrate in enumerating the factors relevant to the sentence imposed. The only contention is that the sentence imposed, taken globally, is so disproportionate to the gravity of the offences in the particular circumstances and having regard to factors personal to the applicant that it implies an error in the exercise of the sentencing discretion. I do not consider that that proposition has been made out or could be accepted. Certainly, the penalty was a significant one but the conduct was, for the reasons explained by the learned magistrate, particularly offensive. The personal circumstances of the applicant were recognised in the decision to grant spent conviction orders but the fact that those orders were made and that the learned magistrate recognised that there were factors which justified them do not suggest any inconsistency with the fine which was imposed. In short, I see no reason to conclude that there has been any error in the exercise of the sentencing discretion by the learned magistrate and no justification for intervention by this court on appeal. In other words, I consider the proposed ground of appeal has no reasonable prospects of success and for that reason leave to appeal should be refused and, as a consequence, the appeal will be dismissed.