Apathy v Director of Public Prosecutions for Western Australia
[2024] WASC 448
•29 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: APATHY -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 448
CORAM: FORRESTER J
HEARD: 22 NOVEMBER 2024
DELIVERED : 22 NOVEMBER 2024
PUBLISHED : 29 NOVEMBER 2024
FILE NO/S: SJA 1061 of 2024
BETWEEN: AARON STEPHEN APATHY
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1061 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MACLEAN
File Number : PE 64086 of 2023 - PE 64090 of 2023; PE 10750 of 2024 - PE 10751 of 2024
Catchwords:
Criminal Law - Appeal against sentence - Whether sentence imposed for stealing of motor vehicle offence was manifestly excessive - Whether total effective sentence breached totality principle - Whether magistrate erred in application of s 9AA of the Sentencing Act 1995 (WA)
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time in which to appeal granted
Leave to appeal granted
Appeal allowed
Sentences imposed by the learned magistrate set aside and appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Ms S King |
| Respondent | : | Ms M Wong |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Cases referred to in decision:
Caruana v Director of Public Prosecutions for Western Australia [2024] WASC 27
Collard v Peden [2017] WASC 32
DeBono v Director of Public Prosecutions for Western Australia [2024] WASC 188
Giglia v The State of Western Australia [2010] WASCA 9
Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63
Kabambi v The State of Western Australia [2019] WASCA 44
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stretch v Director of Public Prosecutions for Western Australia [2022] WASC 268
The State of Western Australia v Paolucci [2020] WASCA 188
The State of Western Australia v PJW [2015] WASCA 113
Wass v Director of Public Prosecutions for Western Australia [2024] WASC 391
Wells v Hounslow [2021] WASC 99
Wood v The State of Western Australia [2024] WASCA 143
FORRESTER J:
(This judgment was delivered extemporaneously on 22 November 2024 and has been edited from the transcript).
Introduction
On 3 July 2024, the appellant was convicted of three charges of fraud, two charges of being in possession of property reasonably suspected of having been unlawfully obtained, stealing a motor vehicle and obstructing a public officer. For these offences he was sentenced to a total effective sentence of 20 months' imprisonment, backdated to 21 February 2024. He was made eligible for parole.
On 2 September 2024, the appellant filed a notice of appeal against sentence. An extension of time is required.
For the reasons which follow, the extension of time in which to appeal is granted, leave to appeal is granted, the appeal is allowed and the appellant is resentenced.
Proceedings before the learned magistrate
Facts
The facts of the offending are as follows.
At 1.04 pm on 31 October 2023, the appellant went to Cellarbrations Mirrabooka. He presented a stolen Co‑op bank card belonging to the complainant to the employee at the front counter to pay for alcohol valued at about $84. He did not have the consent of the complainant to do so.
Three minutes later, the appellant went back into the store and, using the same card, again without permission, bought more alcohol valued at $49.
The offences were captured on CCTV and the card was later found in the appellant's possession. The appellant made full admissions to police.
At 1.44 pm on the same day, the appellant went to the Puma in Malaga and, using the same card, again without permission, bought fuel valued at just over $11. The offence was captured on CCTV. The appellant later admitted this offending, claiming he had found the card on the street outside the petrol station.
The appellant was also charged with unlawful possession of the card, being an item that was reasonably suspected of having been stolen.
On 1 November 2023, police attended at the appellant's house in Westminster and arrested him. A search of his house located two vehicle registration plates which had been stolen on 28 October 2023.
On 11 February 2024 at 3.15 pm, the complainant drove his father's Mazda hatchback to Trigg Beach and parked in a car park off West Coast Highway. He wrapped his wallet, keys and phone in his towel and left it on the beach while he went for a surf. When he returned, the items he had wrapped in his towel were gone and the car had been stolen.
Using an iPad, the complainant and his father tracked the complainant's mobile phone and followed it to the street on which the appellant lived, where it was parked. The appellant was leaning into the car when they arrived at 4.50 pm. By that time, the vehicle registration plates had been changed.
When confronted, the appellant ran from the car, dropping the complainant's mobile phone and wallet. The complainant then used his phone to film the appellant.
The complainant recalled seeing the appellant and a woman sitting in the car park when he arrived at the beach. CCTV footage later showed them getting into the car and leaving the car park.
On 21 February 2024 at 1.45 pm, police arrived to arrest the appellant. He fled, trying to get over his back fence. Police gave chase and caught him before he did so. He turned and adopted a fighting stance towards the officer. When another officer entered the yard, the appellant turned back to the fence and the first officer grabbed him. The appellant then struggled to get away, struggling against both police and violently pulling away to avoid being handcuffed. He was eventually overpowered and arrested.[1]
[1] Transcript, WA Police v Aaron Stephen Apathy, Magistrates Court of Western Australia, 3 July 2024, 2 - 5 (ts 3 July 2024).
The appellant had been in custody since 22 February 2022.
Verbal pre-sentence report
A verbal pre-sentence report was provided. The appellant claimed he did not recall the majority of the offences due to polysubstance abuse. He said he was using about 0.8g of methylamphetamine daily, in addition to excessive alcohol and misuse of prescription medication. He claimed to have stolen the car so he could get home.
The appellant acknowledged his offending was stupid and was able to articulate some of the impact his offending might have had on the victims.
The appellant's first contact with the justice system was at age 14, for burglary and stealing offences. Until 2014, he appeared regularly in court for traffic, stealing, receiving, burglary, drug and weapon‑related offending. However, from 2014 there was a significant gap in his offending, which the appellant attributed to being abstinent from illicit substances and having full‑time care of his three children.
The appellant has previously been subject to 14 community based sanctions, and demonstrated poor compliance with conditions. He was linked with the Start Court in June 2022. However, he tested positive twice for methylamphetamine. While he denied using methylamphetamine, he admitted misusing his prescription medication. Further, his motivation was assessed as being limited.
The appellant has an entrenched history of polysubstance abuse, although he did have an eight year period of abstinence. He relapsed approximately two years before sentencing, which he attributed to negative peers. In addition to his methylamphetamine habit and excessive alcohol consumption, he was taking between five and 15 Lyrica tablets a day, despite his prescription being for two tablets daily.
The appellant has not been in full‑time employment for several years, due to poor health, mainly in relation to a back injury. He claimed to have been diagnosed with anxiety and depression and to be receiving counselling. It has been recommended that he engage with a pain specialist.
At the time of his arrest, the appellant was receiving Centrelink benefits. He owed a substantial sum in fines. He was concerned not to lose his accommodation, which he has had for 10 years.
At the time, the appellant claimed to be willing to engage in further programmatic intervention. While his failure to avail himself of the opportunities offered by the Start Court regime was not in his favour, he was tentatively assessed as being suitable for further community based intervention, given his previous community dispositions were more than 10 years ago.[2]
Plea in mitigation
[2] ts 3 July 2024, 5 - 6.
On behalf of the appellant it was submitted that his relapse into methylamphetamine use followed on from a back injury in 2019. Despite his vertebrae being fused, his condition was deteriorating and he was in significant pain, which was the purpose of the Lyrica prescription. His addiction led him to commit the offences to which he had pleaded guilty.
At the time of sentence, the appellant had been abstinent from illicit substances for over four months and was being medicated for his anxiety and depression.
It was submitted that the appellant's remand in custody in Hakea was onerous and the appellant was now motivated to stay out of custody.
By way of background, the now 52 year old appellant had a childhood impacted by abuse from his stepfather, and he left home at year 8, which is also when he left school. After spending a couple of years being homeless, he gained employment and a trade qualification. However, he was unable to work due to his back injury. He was in the process of applying for the disability support pension.[3]
[3] ts 3 July 2024, 7 - 8.
The appellant's youngest son was 17 at the date of sentence, and his two elder children were adults, living independently. Their mother had unfortunately died in 2014 or thereabouts.[4]
[4] ts 3 July 2024, 10.
The appellant had a 31 page criminal history. It was acknowledged that the appellant's record for dishonesty related offending was 'terrible' but that, having regard to the time he had spent in custody, a community order which enabled the appellant to participate in programmes would be appropriate.[5]
[5] ts 3 July 2024, 8.
It was also submitted that the plea to the charge of stealing a motor vehicle was entered at a 'relatively early stage'.[6]
Prosecution submissions
[6] ts 3 July 2024, 8 - 9.
The prosecutor submitted that in relation to the three charges of fraud, imprisonment was open. In relation to the charge of stealing the motor vehicle, the appellant had replaced the registration plates, suggesting a conversion of the vehicle. The prosecutor submitted that a sentence should take into account the need for general deterrence and the protection of the community.
Sentencing remarks
The learned magistrate observed that the charge of stealing a motor vehicle was particularly serious in the sense that it involved a callous disregard for the complainant and commerciality in the sense that the appellant had already changed the number plates with, his Honour inferred, nefarious intentions.
His Honour made it clear that the appellant's criminal history, particularly his Children's Court history, was not to be held against him, and he was not to be penalised more severely because of his record. However, it was also plain that dishonesty and property offending were not out of character for him.
The learned magistrate acknowledged that the appellant had had a difficult life, which made him vulnerable to drug use and then criminal offending.
His Honour noted the appellant's compliance with previous community dispositions and the fact that the appellant's conduct on this occasion had parallels with previous criminal conduct, leading to concerns about his prospects of rehabilitation. While the learned magistrate accepted that the appellant's back injury was relevant to the relapse into drug use, his Honour also observed that the appellant had a drug history extending well into his past, that is, prior to his injury.
The learned magistrate took into account the appellant's health, and the fact that it had made his time in custody more difficult, and that the appellant had been on remand. He took into account the fact that the appellant had pleaded guilty, although his pleas to some of the offences were 'somewhat late'.[7]
[7] ts 3 July 2024, 15.
His Honour regarded the offence of stealing a motor vehicle as being a serious example of its kind, as was the offence of obstruction. There was a need for personal and general deterrence.
Having regard to the appellant's overall criminality, his Honour considered the appropriate point to be a sentence in excess of two years. However, he reduced that term to 20 months on the basis of the appellant's plea of guilty and the totality principle. His Honour then stated that the sentence was to be structured as follows:
Charge No.
Offence
Sentence
PE 64086 of 2023
Gains benefit by fraud (s 409(1)(c) Criminal Code (WA))
2 months cumulative
PE 64087 of 2023
Gains benefit by fraud (s 409(1)(c) Criminal Code)
2 months concurrent
PE 64088 of 2023
Possession of stolen or unlawfully obtained property (s 417(1) Criminal Code)
2 months cumulative
PE 64089 of 2023
Gains benefit by fraud (s 409(1)(c) Criminal Code)
2 months concurrent
PE 64090 of 2023
Possession of stolen or unlawfully obtained property (s 417(1) Criminal Code)
2 months concurrent
PE 10750 of 2024
Steal motor vehicle (s 378 Criminal Code)
14 months concurrent
PE 10751 of 2024
Obstructing public officers (s 172(2) Criminal Code)
2 months cumulative
The sentence was backdated to 21 February 2024 and the appellant was made eligible for parole.
The appeal was filed on 2 September 2024. On 25 September 2024, a registrar of this court made an urgent appeal order, pursuant to the Criminal Procedure Rules 2005 (WA).[8]
[8] Criminal Procedure Rules 2005 (WA) s 69.
Grounds of appeal
The grounds of appeal are:
(1)the sentence of 14 months' imprisonment for stealing a motor vehicle was manifestly excessive in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending, and the personal circumstances of the offender;
(2)the total sentence of 20 months' imprisonment infringed the first limb of the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all of the relevant circumstances; and
(3)the learned Magistrate erred with respect to giving the appellant a discount pursuant to s 9AA of the Sentencing Act 1995 (WA).
Legal framework and general principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[9]
[9] CA Act s 6(f) and s 7(1).
An appeal from a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by this court.[10]
[10] CA Act s 10(3).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[11] meaning that the ground is required to have a rational and logical prospect of succeeding.[12] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[13]
[11] CA Act s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[13] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[14]
[14] CA Act s 14(2).
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established.[15]
[15] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
Disposition
Ground 1
The appellant referred to other cases of appeals from sentences imposed by magistrates to support its submission that the sentence of 14 months for the steal motor vehicle offence was manifestly excessive.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not, of itself, establish that the sentencing discretion has or has not miscarried. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. The range of sentences for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellate court dismisses an appeal against sentence, or resentences an offender, the decision does not, of itself, fix the upper or lower limit of the range. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[16]
[16] The State of Western Australia v PJW [2015] WASCA 113; Wood v The State of Western Australia [2024] WASCA 143 [47].
In light of those general principles, the authorities relied upon by the appellant are of limited, if any, utility. For example, the appellant cited the case of Stretch v Director of Public Prosecutions for Western Australia[17] and submitted that the fact that the term of imprisonment imposed in this case was seven times longer than the term of imprisonment imposed on the appellant in Stretch demonstrated that the sentence imposed on the appellant in this case was erroneously long. However, all that can be taken from Stretch in relation to the sentence for stealing a motor vehicle was that it was not manifestly excessive.
[17] Stretch v Director of Public Prosecutions for Western Australia [2022] WASC 268.
The same issue is evident in the appellant's reliance on Collard v Peden,[18] in which the appellant was fined for stealing a buggy at first instance, but sentenced to a total effective sentence of 18 months imprisonment on other charges. The grounds of appeal did not take issue with the sentence for the offence of stealing the buggy, and Collard is therefore not authority of utility in determining whether the sentence in this case was manifestly excessive.
[18] Collard v Peden [2017] WASC 32.
The appellant also sought to rely upon the cases of DeBono v Director of Public Prosecutions for Western Australia,[19] Jackman v Director of Public Prosecutions for Western Australia,[20] Caruana v Director of Public Prosecutions for Western Australia[21] and Wass v Director of Public Prosecutions for Western Australia.[22] However, none of those cases is of any use in assessing the sentencing range for the offence of stealing a motor vehicle.
[19] DeBono v Director of Public Prosecutions for Western Australia [2024] WASC 188.
[20] Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63.
[21] Caruana v Director of Public Prosecutions for Western Australia [2024] WASC 27.
[22] Wass v Director of Public Prosecutions for Western Australia [2024] WASC 391.
The appellant's offending was a serious example of its type. The theft of the complainant's motor vehicle involved the appellant watching the complainant arrive and park his car. The appellant must then have watched the complainant go to the beach, conceal his belongings and go into the water. The appellant then went down to the beach, stole those items and then stole the car. As such, the offence can only be described as calculated. Further, on arrival back at his home, the appellant changed the number plates on the car within an hour of its theft. As such, the appellant's claim that he stole the car to get home was implausible, or at least suggests that his motivation changed at some point after that, and the only available inference was that he ultimately intended to profit commercially from the theft of that car.
The maximum penalty for the offence of stealing a motor vehicle is 7 years' imprisonment.
The overwhelming majority of appellate cases involving sentences for stealing a motor vehicle generally involved consideration of sentences for other offending, often more serious than the offence of stealing of a motor vehicle. Their utility as comparable cases is therefore limited. There are very few cases which directly consider sentencing for stealing of a motor vehicle, too few to enable the range of a sound sentencing discretion to be discerned.
It is, however, correct to observe that a review of appellate cases demonstrates that a sentence of 14 months' immediate imprisonment is towards the upper end of sentences which have generally been imposed for this offence at first instance. However, this was an offence which was of more than usual seriousness. While the vehicle was not damaged, it is plain that the appellant had an intention to permanently deprive the complainant of his car. That is an unusual feature of this kind of offending. Further, the need for general and specific deterrence in this case was high.
In my view, the sentence can properly be characterised as severe. However, having regard to the maximum penalty for the offence, the circumstances of the offence and the offender, and the need for general and specific deterrence, I am not satisfied that it is outside the range of sound sentencing discretion such as to be demonstrative of error.
In Giglia v The State of Western Australia,[23] Owen JA, with whom McLure P and Pullin JA agreed, said:
[G]enerally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive.
[23] Giglia v The State of Western Australia [2010] WASCA 9 [40].
Even though I have determined that the sentence for the offence of stealing a motor vehicle is not, of itself, manifestly excessive, its severity falls to be assessed in light of the other sentences imposed, as part of consideration of ground 2, and that is how counsel for both parties approached the matter.
Ground 2
This ground requires consideration of whether it has been shown that first limb of the totality principle has been breached; that is, the total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in broadly comparable cases.
The appellant again relies upon the 'comparable' cases referred to in ground 1 in support of its submissions on this ground. However, in my view the appellant's analysis of those cases and what can be taken from them is flawed. In arguing that they are comparable, the appellant has not considered the personal circumstances of the appellant in each case, the stage at which pleas of guilty were entered (if at all) and the manner in which the sentences were imposed, but has focussed on what is necessarily a subjective view as to the seriousness of the conduct.
Critically, the appellant's submissions do not engage with the established principle that the dismissal of an appeal, or resentencing following a successful appeal, does not of itself fix the upper or lower limit of the range.
The respondent, while conceding that the total effective sentence of 20 months' imprisonment was 'firm', submitted that the sentence was appropriate to reflect the overall criminality of the appellant's conduct, having regard to his antecedents. It was submitted that it was appropriate to cumulate some of the sentences for the offences of fraud and obstructing a police officer.
The manner in which the learned magistrate sentenced the appellant was somewhat unorthodox, in that he commenced by identifying a starting point of a total effective sentence 'which exceeds two years', then reduced that sentence for the plea of guilty, arriving at a total effective sentence of 20 months. His Honour did not state the amount of the discount for the plea of guilty as was required by s 9AA(5) of the Sentencing Act. That omission is the subject of ground 3. The learned magistrate then specified the individual sentences and whether they were to be served cumulatively or concurrently and stated:
I've done my best to impose a term that is not otherwise crushing so as to deprive you of motivation for rehabilitation or otherwise. I've done my best to apply what they call the totality principle in relation to these offences. For some of these frauds, standing alone, given where things have gotten to, you would have received a much lengthier term in relation to the individual frauds or possession of people's credit cards. But I've reduced those to take into account the totality principle. So when I say the starting point is something in excess of two years, I suppose, the starting point would be a long way north of two years but for the application of the totality principle.[24]
[24] ts 3 July 2024, 16.
In The State of Western Australia v Paolucci, the Court of Appeal said:[25]
It is well established that:
(a) a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b) if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c) if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[26] Nguyen v The Queen[27]
[25] The State of Western Australia v Paolucci [2020] WASCA 188 [58].
[26] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[27] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
In arriving at the total effective sentence first, the way in which the learned magistrate discounted the sentences for the pleas of guilty and totality was somewhat obscured. Further, notwithstanding that the learned magistrate only ordered one of the sentences for the frauds to be served cumulatively, he referred to totality reductions for 'the individual frauds'.[28] It was not necessary for totality purposes to reduce terms of imprisonment which were to be served concurrently.
[28] ts 3 July 2024, 16.
I have already made some observations as to the seriousness of the offence of stealing a motor vehicle. While still serious, the other offences committed by the appellant for which he was sentenced to terms of imprisonment were undoubtedly less serious than that offence.
The appellant committed two fraud offences in quick succession at the Mirrabooka Cellarbrations, for the purpose of purchasing alcohol which he no doubt consumed. In total, the value of the benefit to the appellant was less than $140. He then went to Malaga where he purchased a small amount of fuel, using the same card.
When apprehended, the appellant lied about how he had come to be in possession of the card he had used to commit the offences. He cannot have found the card outside the petrol station in Malaga as he claimed, because he had already used it 40 minutes earlier at the bottle shop in Mirrabooka.
The maximum penalty for each of these offences was 7 years' imprisonment. One of the terms of 2 months' imprisonment was made cumulative.
The unlawful possession charges relate to the possession of the card used in the fraud offences and two registration plates (not the plates placed on the stolen car in February 2024). Again, the maximum penalty for these offences was 7 years' imprisonment. The appellant was sentenced to 2 months' imprisonment on each charge, with the term imposed for the unlawful possession of the card used in the fraud offences being made cumulative.
The offence of obstructing police officers was, again, a serious example of that offence. The offender physically confronted the police officer and struggled violently against both officers when they were trying to arrest him. That offence attracts a maximum penalty of 3 years' imprisonment. A sentence of 2 months was imposed, cumulative on the other sentences imposed.
None of the pleas of guilty were entered at the earliest reasonable opportunity, although the pleas of guilty to the charges of stealing a motor vehicle and obstructing police were entered just over four months after the appellant was charged, and prior to disclosure being required.
The appellant's adult criminal history is indeed lengthy, commencing in 1990 and involving offences of dishonesty, weapons offences, drug possession and possession of drug paraphernalia, driving without a licence and while under suspension, breaches of court orders, and, from the late 1990s, offences of burglary. There was a gap in his offending between 2004 and 2007. In 2007 and 2008 he committed a large number of property related offences, for which he was put on a pre‑sentence order (PSO). However, the PSO was terminated and he was ultimately sentenced to 12 months' imprisonment in May 2011. He was imprisoned again for 12 months for burglary in January 2014.
The appellant did not commit any further offences after that until March 2020. Initially, he was convicted only of driving and minor offences, but then committed a substantial number of driving offences, including dangerous driving to escape pursuit, and also a substantial number of property and unlawful possession offences. On 13 October 2022, for that offending, he was sentenced to a term of 3 months' imprisonment suspended for 12 months, and a $4,000 global fine.
The appellant completed the suspended imprisonment order, but the fraud offences were committed less than three weeks later. He was not on bail when he committed the offence of stealing a motor vehicle, but the fraud and unlawful possession charges were pending against him.
The respondent relied upon Wells v Hounslow[29] for the proposition that sentences of imprisonment may properly be imposed for fraud offending facilitated by the use of 'tap and go' payments.[30] That much may be accepted.
[29] Wells v Hounslow [2021] WASC 99.
[30] Respondent's submissions dated 18 November 2024 [23.2].
The sentences in Wells involved individual terms of imprisonment of 2 months and 3 months for the 10 offences, with a total effective sentence of 9 months. The amounts stolen were greater than the amounts stolen here, and the offending in Wells was persistent and prolific and involved 22 uses of the card in question.
Wells also demonstrates that, for offences of this kind, sentences of imprisonment at the lower end of the range are imposed, that is, between 1 and 3 months. This is relevant in light of the learned magistrate's statement in this case that, but for totality, the appellant would have 'received a much lengthier term in relation to the individual frauds …'.[31] However, given that his Honour did not specify the extent of the reduction he made for totality reasons, it is simply not possible to know what a 'much lengthier term' would have been.
[31] ts 3 July 2024, 16.
Having regard to the seriousness of the offences, the pleas of guilty, the personal circumstances of the appellant including the severity of his back pain, the fact that the appellant had spent 4½ months in custody at the time of sentence, and the gaps in the appellant's criminal record which demonstrated that he had prospects of rehabilitation, the total effective sentence of 20 months' imprisonment was, in my respectful view, more than what was required to reflect the overall criminality of the offending. Accordingly, I find that the sentence breached the first limb of the totality principle.
Ground 2 has been made out.
Ground 3
The respondent conceded that the learned magistrate erred in his application of s 9AA of the Sentencing Act but contended that there was no substantial miscarriage of justice.
Section 9AA requires that the discount for a plea of guilty be applied to individual head sentences, not just the total effective sentence. His Honour stated a starting point of a [total effective] 'sentence which exceeds two years' and applied a discount to that starting point to reduce the term to 1 year and 8 months' imprisonment.[32] The State's concession that the learned magistrate erred is properly made.
[32] ts 3 July 2024, 15.
Error having been made out, it would be necessary to resentence the appellant unless no different sentence should be imposed. In light of my conclusion on ground 2, it cannot be said that no different sentence should be imposed.
Further, and in any event, the manner in which the learned magistrate discounted the total effective sentence, set a head sentence and then referred to reductions for totality means that it is not possible to say that the error was not material. Accordingly, it would be necessary to resentence the appellant on ground 3 alone.
Application for extension of time
Having regard to my conclusion on grounds 2 and 3, despite the limited explanation for the delay in the filing of the appeal, I would grant an extension of time in which to appeal.
Resentencing
I have available to me all of the material necessary to resentence the appellant.
It is unnecessary to repeat the appellant's personal circumstances. I have received a letter from the appellant describing the impacts of his imprisonment on his mental health, having regard to the fact that while he was in custody in 2014, his wife committed suicide, and thereafter he has suffered chronic depression. I have also received a certificate verifying that the appellant has attended voluntary meetings relating to his substance abuse. I am told that, in fact, it contains a typographical error and that he has been attending those meetings weekly between August and October of this year.
He is being treated for his addiction using suboxone. He is about to undertake a forklift licence course and he has completed a parole plan which includes plans for counselling and engagement with Wungening if he is released.
In my view, the appropriate discounts for the head sentences for the steal motor vehicle and obstruct police should be 18%. The head sentences for the offences of fraud and unlawful possession are discounted by 15% for the pleas of guilty.
For the offence of stealing the motor vehicle (PE 10750 of 2024) I impose a sentence of 12 months' imprisonment (head sentence).
On charge PE 64086 of 2023 I impose a term of 2 months' imprisonment, cumulative on the head sentence.
On each of charges PE 64087 and 64089 of 2023, I impose terms of 2 months' imprisonment, to be served concurrently with the head sentence.
On each of charges PE 64088 of 2023 and 64090 of 2023, I impose terms of 1 month imprisonment, to be served concurrently on the head sentence.
For the offence of obstructing a police officer (PE 10751 of 2024) I impose a term of 2 months' imprisonment, to be served cumulatively on the head sentence.
That makes a total effective sentence of 16 months' imprisonment. The sentence will be backdated to 21 February 2024 and the appellant will be eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
29 NOVEMBER 2024
17
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