Ali v WA Police - [2024] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ALI -v- WA POLICE [2024] WASC 64
CORAM:   SOLOMON J
HEARD:   29 NOVEMBER 2023; FURTHER SUBMISSIONS 22 DECEMBER 2023
DELIVERED          :   11 MARCH 2024
FILE NO/S:   SJA 1095 of 2023
BETWEEN:   ABDIRISAK OSMAN ALI
Appellant
AND
WA POLICE
Respondent

FILE NO/S: SJA 1066 of 2023
BETWEEN: ABDIRISAK OSMAN ALI
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1095 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T WATT
File Number            :   PE 50339/2021 & PE 50340/2021
For File No:   SJA 1066 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   DEPUTY CHIEF MAGISTRATE E WOODS
File Number            :   PE 50339/2021 & PE 50340/2021

Catchwords:

Assault public officers - Spitting - Powers of court under s 80 Sentencing Act 1995 (WA) - Legal effect of magistrates' remarks - Where further offences committed during suspension period - Application for extension of time to appeal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

SJA 1095 of 2023
Leave to appeal granted
Appeal dismissed

SJA 1066 of 2023
Leave to appeal granted
Appeal allowed

Category: B

Representation:

SJA 1095 of 2023

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

SJA 1066 of 2023

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Pryor v Loos [2021] WASC 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Tulloh v Chief Executive Officer of the Department of Corrective Services [2020] WASCA 10
Wood v Kingsbury [2019] WASC 336

SOLOMON J:

Introduction

Well over two years ago, in early December 2021, the appellant Mr Ali spat on the bare arms of two police officers. He was charged and convicted of two counts of assaulting public officers. The Magistrate sentenced Mr Ali to terms of imprisonment. Appropriately, the Magistrate suspended those terms. Sadly, that was far from the end of the matter. In a tragic spiral of descent, the impact of an apparent drug addiction has combined with the complexities of the applicable legislation to confound and prolong the just resolution of Mr Ali's punishment.

Background

This matter relates to two applications for extension of time to appeal, and, if granted, two appeals against sentence from the Magistrates Court under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). The appeals relate to the same offender, the appellant Mr Ali, in respect of the same charges. The applications were therefore heard together.
On 4 December 2021, Mr Ali was at a BWS store in Rivervale when he was arrested under suspicion of having committed an offence. While being searched, Mr Ali spat in the direction of two officers that were present, and he was cautioned. Once inside the police vehicle, Mr Ali again spat at the officers. Mr Ali's saliva landed on the arm, sleeve and body armour of the first officer, and on the arm of the second officer.
Arising from that incident, Mr Ali was charged with two counts of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code (WA). I shall refer to these offences as the primary offences.
Upon his plea of guilty, Mr Ali was sentenced for the primary offences (amongst others) on 4 March 2022 by Magistrate Malone. For each count of assaulting a public officer, Magistrate Malone sentenced Mr Ali to 7 months' imprisonment suspended for 9 months, to be served concurrently.
I shall return to a more detailed consideration of the statutory provisions relating to a suspended sentence later in these reasons. For the purpose of this narrative, it is sufficient to observe that under pt 11 of the Sentencing Act 1995 (WA) (Sentencing Act) if, during a period of suspension, a person commits an offence the penalty for which includes imprisonment, then s 80 of the Sentencing Act is triggered. Section 80(1) provides:
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
Section 80(3) goes on to provide that a court must require the offender to serve the suspended prison sentence 'unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed'.
In short, and subject to various qualifications, the Magistrates Court can require the person to serve all or part of the suspended prison sentence, substitute a fresh period of suspension, or impose a fine.
On 20 April 2022, Mr Ali committed a further offence under s 68 of the Criminal Code (WA), namely being armed in a way that may cause fear (April offence). The statutory penalty for that offence includes a period of imprisonment. The April offence was carried out during the period of the suspended prison sentence for the primary offences.
On 6 June 2022, Mr Ali committed another offence, namely failing to obey a police order (June offence). That appears to have been an offence under s 153 of the Criminal Investigation Act2006 (WA) (Criminal Investigation Act). Again, the statutory penalty for that offence includes a period of imprisonment, and the June offence was carried out during the period of suspension for the primary offences.
On 29 July 2022, Mr Ali was sentenced by Magistrate Watt for the April and June offences. For the April offence, the Magistrate imposed a 7‑month intensive supervision order under pt 10 of the Sentencing Act. In relation to the June offence, as Mr Ali had already spent time in custody, the Magistrate imposed no sentence under s 46 of the Sentencing Act.
Because both the April and June offences were committed during the suspension period for the primary offences, Magistrate Watt was required to deal with Mr Ali under s 80 of the Sentencing Act in respect of the primary offences. In doing so, the Magistrate concluded that she was 'marginally persuaded' that it was unjust in the circumstances to require Mr Ali to serve the prison sentences. The Magistrate then said:
I'm cancelling the suspended imprisonment order and I'm re-sentencing you to 7 months on each one of those assault public officers, suspending it for 9 months, so it starts from now. It's a new order.
Thus, in respect of the primary offences, Magistrate Watt purported to cancel the suspended imprisonment orders imposed by Magistrate Malone, and impose 'new' 7‑month imprisonment orders suspended for 9 months for each offence.
On 23 October 2022, Mr Ali committed a further offence under s 153 of the Criminal Investigation Act, namely failing to obey a police order (October offence). Again, the statutory penalty for that offence includes a period of imprisonment. Mr Ali committed the October offence during the 'new' period of suspension for the primary offences imposed by Magistrate Watt on 29 July 2022, and indeed also during the original period of suspension imposed by Magistrate Malone, which Magistrate Watt had purportedly cancelled.
On 1 November 2022, Mr Ali committed the offence of possessing drug paraphernalia under s 7B(6) of the Misuse of Drugs Act 1981 (WA) (November offence). The statutory penalty for the November offence included a period of imprisonment. The November offence was also committed during the 'new' period of suspension for the primary offences imposed by Magistrate Watt on 29 July 2022. Again, this fell during the original 9‑month period of suspension imposed by Magistrate Malone on 4 March 2022, which Magistrate Watt had purportedly cancelled. In addition, Mr Ali committed the November offence during the period of intensive supervision ordered by Magistrate Watt on 29 July 2022 for the April offence.
The November offence thus triggered the operation of s 80 of the Sentencing Act in respect of the primary offences. In addition, under s 69(4), a person who commits an offence during the term of an intensive supervision order may be re-sentenced for the offence.[1] That section was thus triggered in respect of the April offence.
[1] See pt 18 div 3 of the Sentencing Act.
On 2 February 2023, Mr Ali came before Deputy Chief Magistrate Woods, no doubt being one of many matters on that day which demanded her Honour's attention. Duty counsel appeared for Mr Ali and advised the Magistrate that Mr Ali was subject to the substituted 9‑month period of suspension imposed on 29 July 2022 (by Magistrate Watt). Magistrate Woods imposed fines in respect of the October and November offences. Magistrate Woods then considered the triggering of s 80 in relation to the two primary offences, and the triggering of s 69 in relation to the intensive supervision order for the April offence. Magistrate Woods dealt with the primary offences on the basis that the operative sentence was that of Magistrate Watt on 29 July 2022, and the suspended terms had therefore not expired (being within 9 months of 29 July 2022).
Magistrate Woods then concluded as follows:
In relation to the orders which have not expired, there are two breaches of a suspended imprisonment order and one breach of an intensive supervision order. In relation to all of those, they will be cancelled. And then in relation to those three offences, taking into account some progress has been made … there will be a conditional suspended imprisonment order that relates to all three of those matters imposed today. …
That will be a term of seven months on the two assaults [the primary offences] and four on the being armed [the April offence]. They will be concurrent and it will be suspended for a period of nine months. And there will be supervision and program requirements as part of that sentence so that you can get some counselling and get these matters attended to, so, hopefully, you will get the assistance you require and not be in the court system.
With respect to the primary offences, the intended effect of Magistrate Woods' conclusion was to substitute the suspended prison sentence imposed by Magistrate Watt in July 2022 with a fresh 7‑month sentence of imprisonment, conditionally suspended for 9 months under pt 12 of the Sentencing Act, with programme requirements under s 84A and s 84B. In respect of the April offence, Magistrate Woods imposed a fresh 4‑month sentence of imprisonment, conditionally suspended for 9 months to be served concurrently.

Extension of time to appeal

Section 11(3) of the Criminal Appeals Act provides that an appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise. The relevant decisions were made on 29 July 2022 and 2 February 2023. The appeals were commenced on 11 August 2023. Mr Ali therefore requires an extension of time.
The background relevant to Mr Ali's application to extend time was set out in the affidavit of his counsel Ms Miranda Ajduk affirmed on 11 August 2023. That affidavit set out the following matters. On 21 May 2023, Mr Ali committed a further offence of failing to obey the police and two counts of possessing cannabis. Those additional offences came before the Magistrates Court on 14 June 2023. At that point, arguments in relation to the validity of the orders made on 29 July 2022 and 2 February 2023 were raised on behalf of Mr Ali, who had obtained the assistance of Legal Aid. Those orders were said to be invalid, essentially for the reason advanced in these appeals. On that basis, an application was made by Mr Ali under s 37 of the Sentencing Act for the correction of those sentences. The decision in Wood v Kingsbury [2019] WASC 336 (Wood v Kingsbury) was brought to the Magistrate's attention. The Magistrate expressed the view that the challenge to the validity of the orders was arguable, but that it was beyond her authority under s 37 and was a matter for appeal.[2] Thereafter, an application was made for assistance from Legal Aid which was subsequently granted. There was some delay in the preparation and provision of advice and obtaining instructions from Mr Ali, but on 11 August 2023, notices were filed initiating the appeal.
[2] ts 3, 14 June 2023.
The basis for an appeal was only identified and brought to Mr Ali's attention in June 2023. Thereafter, the delay in commencing the appeal was not substantial. Given the important issues raised by the appeal, I consider that it is in the interests of justice that time be extended to permit Mr Ali to commence his appeals by 11 August 2023 and orders to that effect ought to be granted.

Appeal

Mr Ali appeals against the sentences imposed in respect of the primary offences by each of Magistrate Watt on 29 July 2022, and by Magistrate Woods on 2 February 2023.
In SJA 1095 of 2023, Mr Ali contends that Magistrate Watt erred in law in imposing substituted new suspended imprisonment orders on 29 July 2022 when that option was not available pursuant to s 80 of the Sentencing Act.
In SJA 1066 of 2023, Mr Ali contends that Magistrate Woods erred in law in imposing new conditionally suspended imprisonment orders on 2 February 2023, when that option was not available pursuant to s 80 of the Sentencing Act.
As this is an appeal under div 2 of pt 2 of the Criminal Appeals Act, leave to appeal is required.
Section 7(1) of the Criminal Appeals Act provides as follows:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
Section 6 of the Criminal Appeals Act provides that a 'decision' of a court of summary jurisdiction includes, relevantly, 'a sentence imposed, or order made as a result of a conviction'. The orders of Magistrate Watt and Deputy Chief Magistrate Woods were made as the result of a conviction, and were therefore 'decisions' for the purposes of pt 2 of the Criminal Appeals Act.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[3]
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

Relevant law

Section 80(1) of the Sentencing Act stipulates that a court 'must deal with the person' by one of the methods set out at paragraph 3 above. The discretion is limited and only extends to the choice within the range provided by s 80. The relevant statutory provisions were considered by Fiannaca J in Woods v Kingsbury, and by Corboy J in Pryor v Loos [2021] WASC 403 (Pryor v Loos). The following principles may be distilled from the statutory text and those decisions.
Where an offender has been sentenced to a suspended imprisonment order (SIO) and, during the period of suspension, is convicted of another offence punishable by a term of imprisonment, the court convicting the offender of that offence must deal with the offender for the offence or offences in respect of which the SIO was made.
The expressions 'a court that must deal with' and 'must deal with the person by one of these methods' in s 80 are mandatory. The court must deal with the offender by adopting one of the options specified in s 80(1)(a)‑(d), subject to s 80(3).
There is therefore a mandatory requirement to deal with the offender under s 80 and to adopt one of the methods stipulated in subsection (1). The choice of method involves an exercise of discretion, subject to the mandatory requirement of subsection (3).
In dealing with an offender under s 80, the court does not sentence or resentence the offender. The SIO remains the sentence that was imposed. Rather, the court 'deals with' the offender under s 80 in the circumstances to which the section refers.
That much is plain in respect of an order that the offender serve part or all of the sentence or an order substituting a new suspension period. But even the imposition of a fine under s 80(1)(d) is not a resentencing. The SIO remains the sentence whether it is continuing or has expired. Fiannaca J described the fine as a penalty for the commission of an offence during the period of suspension. It represents therefore the imposition of a statutory form of supplementary sentence, rather than a resentencing.
The sentencing options identified in s 39 of the Sentencing Act do not apply; indeed, the balance of the Act does not apply except as expressly provided for by the Act. There is no discretion to adopt any method other than those prescribed in s 80(1) to deal with the offender for the offence or offences in respect of which the SIO was imposed.
It follows that it was not open to Magistrate Watt on 29 July 2022 or Magistrate Woods on 2 February 2023 to 'cancel' the suspended sentence of imprisonment imposed by Magistrate Malone on 4 March 2022 and to impose a 'new' sentence. There can be no doubt that if, and insofar as that was the effect of each of the Magistrate's orders, it was an error of law and must be set aside.
A further matter arises if the sentence imposed by Magistrate Watt on 29 July 2022 is set aside. If that is the case, then by 2 February 2022, the 9‑month period of suspension imposed by Magistrate Malone on 4 March 2022 would have expired. In that event, the option provided by s 80(1)(c) was not available because the period of suspension had ended. The only options available were to require Mr Ali to serve part or all of the sentence under s 80(1)(a) or (b), or to impose a fine under s 80(1)(d).
Yet a further issue arises if the sentence imposed by Magistrate Woods in respect of the primary offences on 2 February 2023 is set aside. As noted above, Magistrate Wood also imposed a 4‑month conditionally suspended imprisonment order for the April offence. However, if the terms of imprisonment for the primary offences fall away, then by reason of s 86 of the Sentencing Act it was not open to the Magistrates Court to impose a term of imprisonment of 6 months or less. The appeal notices did not challenge the sentence imposed on 2 February 2023 for the April offence. However, under s 41(2) of the Criminal Appeals Act, if an appeal court sets aside a sentence it may vary any other sentence that was imposed at the same time and that took into account the impugned sentence. On that basis, in his supplementary submissions filed after the hearing on 22 December 2023, Mr Ali submitted that the sentence imposed on 2 February 2023 for the April offence should also be set aside.

SJA 1095 of 2023 - Decision of 29 July 2022

On 29 July 2022, Magistrate Watt was, relevantly, exercising the statutory power conferred by s 80 in relation to the primary offences. On a proper understanding and application of the statutory provision, it was not an exercise in resentencing. The Magistrate was required to adopt one of the 'methods' available under s 80. Those alternatives did not include the cancellation of the existing suspended sentence of imprisonment or the substitution of a new sentence.

The Magistrate imposed a substituted period of suspended imprisonment starting on that day, 29 July 2022. To the extent that the Magistrate's remarks in imposing that sentence reflected an intention to 'cancel' the sentence imposed by Magistrate Malone on 4 March 2022, or to impose a 'new' sentence, the remarks were not merely infelicitous; they were misplaced and reflected an erroneous understanding of the statutory power. However, the effective outcome imposed by the Magistrate, that is, a substituted period of suspended imprisonment starting on 29 July 2022, was squarely within the discretionary power available to the Magistrate under s 80(1). In my view, it is the legal effect of the Magistrate's remarks, rather than its elaboration or explanation, that must be evaluated. If the legal effect embodied an available exercise of power, that effect is not rendered invalid because the Magistrate made remarks reflecting an erroneous understanding of the operation of the statutory provision. The remarks were strictly superfluous to the exercise of statutory power and must in any event be understood in accordance with the well‑accepted principle that magistrates are to conduct their business with expedition and with a degree of informality. In that context it is to be expected that some infelicity of language is likely to occur. This court should not therefore readily infer legal error from misplaced remarks where the substantive exercise of statutory power is within the scope of the statutory power: see Strahan v Brennan [2014] WASC 190 [89] ‑ [90]. This is not (as the appellant contended) a matter of artificially and impermissibly straining the language of the Magistrate. Rather, it is to put to one side the superfluous and misplaced remarks of the Magistrate and to focus on the substantive legal effect of what the Magistrate did. Section 80 required the Magistrate to 'deal with [Mr Ali] by one of the methods' set out in s 80(1). By substituting another suspension period, that is precisely what the Magistrate did.
Given the difficulties associated with the Magistrate's remarks I would grant leave to appeal. But for the reasons I have explained, I would dismiss the appeal.

SJA 1066 of 2023 - Decision of 2 February 2023

The Magistrate on 2 February 2023 imposed a conditionally suspended sentence of imprisonment under pt 12 of the Sentencing Act. That was not merely, in effect or in substance, the substitution of another period of suspension. It was the imposition of a different sentence under a different part of the Sentencing Act. That was not one of the methods available under s 80. It follows that the Magistrate did not 'deal with [Mr Ali] by one of the methods' set out in s 80(1). The sentence imposed by the Magistrate was therefore imposed without the requisite statutory power and must be set aside.
I digress to observe at this point that the decision of Magistrate Woods was, in my respectful view, a wise and judicious response to Mr Ali's situation. As will be explained, I have nevertheless reached the conclusion that the Sentencing Act did not permit the flexibility embodied in Magistrate Woods' sagacious effort to administer a just outcome.
Accordingly, I would grant leave to appeal and would grant the appeal in respect of the decision of the Magistrates Court of 2 February 2023 in respect of the primary offences. The two imprisonment orders of 7 months conditionally suspended for 9 months must be set aside.

Re-exercise of the discretion under s 80

In the circumstances, it falls to this court to exercise afresh the discretion under s 80(1) in respect of the primary offences. It is necessary first to identify the options available in the exercise of the discretion. A question arises in respect of s 80(1)(c). The suspension periods which are the subject of the orders of 4 March 2022, 29 July 2022, and 2 February 2023 have all ended. Mr Ali's counsel submitted that in those circumstances it is no longer open to the court to set a new substituted suspension period. In contrast, the Director of Public Prosecutions submitted that it remains open to the court to set a new period of suspension under s 80(1)(c). That is because under s 14(1)(d) of the Criminal Appeals Act, in deciding an appeal, the Supreme Court may (among other things) substitute a decision that should have been made by the court of summary jurisdiction. It was submitted that the court should put itself in the place of the original decision maker, that is, to make the decision that ought to have been made by the magistrate at that time.
In my view, the words of s 14(1)(d) of the Criminal Appeals Act are not sufficient to displace the plain terms of s 80(1)(c). This court may of course substitute a decision that should have been made by the court of summary jurisdiction. But in the absence of a clear legislative indication to the contrary, that must be done subject to any prevailing statutory limitations that apply at the time the court makes the decision. I observe that Corboy J proceeded on that basis in Pryor v Loos at [38]. Similarly, Fiannaca J observed in Woods v Kingsbury at [35]:
Having regard to the plain meaning and context of the words 'unless the suspension period has ended' in s 80(1)(c), they are concerned with the point in time at which the court is dealing with the offender under s 80. Therefore, if the period of suspension under the SIO has ended when the court is dealing with the offender, the option in par (c) is not available.
It follows, in my view, that the method prescribed by s 80(1)(c) is not available. I must therefore decide whether to require Mr Ali to serve part or all of the sentence, or to fine him. The terms of s 80 mean that no other option is available, including the imposition of no sentence under s 46. That is so no matter how constructive or sensible a different method might be.
The re‑exercise of the discretion under s 80 requires attention to be directed to Mr Ali's circumstances. That includes circumstances that have transpired since the hearing of 2 February 2023. Section 41(4) of the Criminal Appeals Act provides that the appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard. In my view, those words are sufficiently broad to encompass the exercise of the statutory discretion conferred by s 80 notwithstanding that the exercise may not strictly be a re‑sentencing. But in any event, it is plain that s 80(3) not merely permits but requires consideration to be given to all subsequent circumstances.
Mr Ali's personal circumstances were the subject of oral submissions at the hearing before me on 29 November 2023. I have also reviewed the transcript of the Magistrates Court proceedings in which Mr Ali's counsel detailed Mr Ali's childhood prior to relocating to Western Australia. The following outline is based on those sources.
Mr Ali was born in Kenya on 7 September 1995 in a Kenyan refugee camp. While living in the camp, Mr Ali was the victim of assaults and witnessed traumatic events, including violent assaults and children being forcibly separated from their parents. As a result of these experiences, Mr Ali has been diagnosed with post‑traumatic stress disorder which Mr Ali attempts to self‑medicate with illicit drug and alcohol abuse.
In 2004, when Mr Ali was 9 years old, his family were able to relocate to Australia on a humanitarian visa. Mr Ali is now an Australian citizen. Mr Ali completed Year 12 at Canning College and, in 2013, began studying a Bachelor of Engineering in Chemical Engineering at the University of Western Australia. Mr Ali completed this qualification in 2016, and immediately commenced studying a Master of Professional Engineering, specialising in Chemical Engineering. Regrettably, Mr Ali abandoned his studies in 2018 following a family incident in Kenya in which a close relative died.
Mr Ali completed an internship with Rio Tinto which had been organised through his studies at UWA. He has not yet been able to secure paid employment in his field of study. Otherwise, Mr Ali has a sporadic work history spanning warehousing, youth work, and stagehand work, including as a lighting and audio technician at Optus Stadium. At the time of the hearing of these proceedings, Mr Ali was reliant on Centrelink. He was receiving the JobSeeker allowance while looking for paid employment.
As at November 2023, Mr Ali was residing in Kewdale with his parents and siblings. Mr Ali advised the court that his family were aware of his legal matters. At the time of these proceedings, Mr Ali had a number of charges pending before the Magistrates Court which consisted mainly of possession of unlawful drugs. According to Mr Ali, his family, especially his mother, remains supportive of him.
It is clear that Mr Ali is an intelligent, capable and educated man. It is to his credit, and possibly to the greater credit of his parents, that he overcame the very challenging environment of his younger years to achieve high‑level educational and vocational qualifications. Tragically, however, it appears from Mr Ali's continued offending that the potential benefits of these achievements are being eroded all too quickly by the scourge of drug addiction. That is pitifully illustrated by the fact that these appeals, which continue into 2024, ultimately relate to events that spiralled from Mr Ali spitting on two police officers in late 2021.
While compassionate consideration must be given to the strife and deprivation of his early years and the subsequent grief the family has endured, they are of diminishing force if, as appears to be the case, Mr Ali's drug dependence fuels further anti‑social and criminal behaviour. There can be no doubt that Mr Ali's family and all the organs of the justice system (including the courts) would wish Mr Ali to utilise his achievements and opportunities to become a functional, productive and successful member of the community. It is ultimately, however, only Mr Ali who must bear responsibility for the realisation of that hope.
Subsequent to the hearing of the appeal, Mr Ali's counsel provided the court with a report from Mr Ali's Community Corrections Officer regarding Mr Ali's fulfilments of the counselling and supervision requirements imposed by Magistrate Woods on 2 February 2023 as part of the conditionally suspended imprisonment order.
The Community Corrections Officer advised as follows:
… Mr Ali was subject to CSIO for Being Armed or Pretending to be Armed in a way that may Cause Fear and 2 x Assault Public Officer. His previous SIOs were cancelled due to reoffending and was replaced by the CSIO imposed on 02.02.2023. This Order was closed on the 1/11/23 (Expired-Unresolved Court Matters)
Supervision:
- Mr Ali generally attends supervision as instructed. Sessions are often used to discussion (sic) his substance misuse and negative peers. Encouragement to pursue employment often occurs but Mr Ali has limited motivation to gain employment. His association with negative peers and drug use continue to put him down.
Program:
- Linked with AsSets for counselling. It was confirmed that he only attended 3 sessions and missed several appointments.
- Referral to substance misuse counselling occurred but as always Mr Ali is [uncontactable] by services due to having no working phone.
Reoffending:
- Mr Ali has reoffended on several occasions and insured (sic) fines, however, he has pending court matters which also occurred during the term of this Order.
There appears to be significant issues with alcohol and illicit drugs which continues to contribute to Mr Ali's offending. Limited prosocial pursuits, association with negative peers and limited motivation to seek employment.
Mr Ali is an educated man, but his drug and alcohol misuse appears to let him down. He often does not have a working phone which makes it difficult for him to be contacted by program intervention services or potential employers.
AOD misuse remain a significant risk factor for future offending and Mr Ali present[s] as a high risk for generalist recidivism.
Mr Ali failed to attend EPACC for 'Order to Attend' for 'Work Development Order' (Converting court fines to community work) hence OTA was closed.
The report has some positive features, but in my view, overall it does not inspire confidence in Mr Ali's propensity to respond or adhere to the conditions imposed and receive the opportunities thereby provided. I do not overlook the fact that that I have found that the imposition of the conditionally suspended sentence was in fact not open to the Magistrate. Viewed retrospectively, Mr Ali's failure to comply with the orders therefore cannot amount to a failure to comply with a lawful order.[4] At the time, however, Mr Ali was bound by the orders, and the report therefore provides an important indication of the manner in which Mr Ali responded to orders of that nature.
[4] It is not necessary on this appeal to consider the precise legal status of the orders which are to be set aside and the impact on the legal status of the offender who was subjected to those orders; as to which see the discussion and the authorities referred to in Tulloh v Chief Executive Officer of the Department of Corrective Services [2020] WASCA 10.
Mr Ali has other outstanding fines for which he was on a time‑to‑pay arrangement as at November 2023.
I have decided on balance that it would be unjust to require Mr Ali to serve any part of the term of imprisonment. That is for the following reasons. Firstly, each of the experienced Magistrates considered in the circumstances before them that it would be unjust. Secondly, the Director of Public Prosecutions agreed that Mr Ali should not be required to serve any of the term. Thirdly, Mr Ali has spent some time in custody, and fourthly, the course of events that led to these appeals, and in particular the passage of time that has now elapsed, militate against the making of an order that Mr Ali now serve a term of imprisonment.
In the circumstances, I shall make an order under s 80(1)(d) that Mr Ali be fined $125 for each of the two primary offences.

The April offence

As the conditionally suspended sentences imposed by Magistrate Woods for the primary offences must be set aside, the issue explained at [39] above necessarily arises. By reason of s 86, the term imposed by Magistrate Woods for the April offence can only be sustained if it was imposed together with the terms of imprisonment of more than 6 months. As those orders are to be set aside, the conditionally suspended sentence imposed on 2 February 2023 for the April offence must also be set aside. In the circumstances, that was conceded by the Director of Public Prosecutions.
The circumstances of the April offence were described to the Magistrates Court on 2 February 2023 in the following terms:
At about 10 am on Wednesday, 20 April '22 the accused was at Fulham Street, Cloverdale near the intersection of Fisher Street. The accused and the victim are not known to each other. The accused was on foot, walking in a northerly - north-easterly direction along Fulham Street whilst the victim was in his vehicle, a black utility, travelling in the opposite direction.
The victim saw the accused in the middle of the lane he was travelling in and slowed the vehicle to a speed of not more than 10 kilometres per hour. The victim beeped his horn for the accused to move out of the way as he approached within 20 metres. The accused pulled out a knife about 15 centimetres in length and held it up and out with the blade pointed in the direction of the victim. The accused stared at the victim, who was in his vehicle and still travelling at a slow speed.
The victim locked his car doors and proceeded to drive his vehicle contra‑flow onto the wrong side of the road to avoid colliding with the accused who was still blocking the victim's lane about five metres away. The accused continued to hold the knife and stare at the victim as he drove by him. The accused was arrested a short time later on 20 April. He was located on Arlunya Avenue, Cloverdale, a short distance from the incident location.
A basic search was conducted on the accused whereby a knife was located in his right pants pocket. He declined to participate in an audio record of interview and was conveyed to his home address. The accused was summonsed with the present charge preferred. Explanation, 'I was using the knife to clean my hands'.
It will be recalled that the 4‑month conditionally suspended term of imprisonment for the April offence was imposed on 2 February 2023 because Mr Ali committed an offence during the term of the intensive supervision order imposed by Magistrate Watt on 29 July 2022. The intensive supervision order of 29 July 2022 was for 7 months. It is therefore no longer in force. It appears the court is therefore required to deal with Mr Ali under s 130(b) of the Sentencing Act.
However, this issue only arose after the hearing before me on 29 November 2023. I consider that the parties ought to be afforded an opportunity to be heard in relation to the appropriate course to be adopted and the sentence to be imposed. I shall relist the matter for that purpose.

Conclusion

I therefore make the following orders:
1.The application for extension of time to appeal in SJA 1095 of 2023 be granted.
2.Leave to appeal in SJA 1095 of 2023 be granted.
3.The appeal in SJA 1095 of 2023 be dismissed.
4.The application for extension of time to appeal in SJA 1066 of 2023 be granted.
5.Leave to appeal in SJA 1066 of 2023 be granted.
6.The appeal in SJA 1066 of 2023 be allowed.
7.The orders of the Magistrates Court of 2 February 2023 are set aside, and fines of $125 are imposed in respect of each of the two primary offences (PE 50339/2021 and PE 50340/2021).
8.The order of the Magistrates Court of 2 February 2023 in respect of the April offence (PE 20275/2022) is set aside, and the matter be listed before me on a date to be fixed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
13 MARCH 2024