Bedford v Binnekamp - [2021] WASC 299

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BEDFORD -v- BINNEKAMP [2021] WASC 299
CORAM:   SMITH J
HEARD:   2 AUGUST 2021
DELIVERED          :   30 AUGUST 2021
FILE NO/S:   SJA 1023 of 2021
BETWEEN:   TODD JAMES BEDFORD
Appellant
AND
JOHN BINNEKAMP
Respondent

FILE NO/S: SJA 1024 of 2021
BETWEEN: TODD JAMES BEDFORD
Appellant
AND
PAUL HODGSON
First Respondent
JOHN BINNEKAMP
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1023 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 156 of 2019
For File No:   SJA 1024 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   RO 156 of 2019
RO 3154 of 2020

Catchwords:

Criminal Law - Appeal against sentence - Whether sentence of suspended imprisonment of 6 months and 1 day manifestly excessive for an offence of obstruct public officer when resentenced for a breach of conditional based order

Criminal Law - Appeal against sentence - Sections 9AA and 86 Sentencing Act 1995 (WA) - Whether sentencing magistrate failed to reduce a sentence of imprisonment because of a plea of guilty

Criminal Law - Appeal against sentence - Where a suspended imprisonment order is set aside on grounds of express error - Whether the suspended imprisonment order should be set aside retrospectively

Criminal Law

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Investigation (Identifying People) Act 2002 (WA)
Drugs Act 1981 (WA)
Public Transport Authority Regulations 2003 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Weapons Act 1999 (WA)

Result:

Appeals allowed
Suspended imprisonment order set aside retrospectively
Appellant resentenced

Category: B

Representation:

SJA 1023 of 2021

Counsel:

Appellant	:	N Sinton
Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

SJA 1024 of 2021

Counsel:

Appellant	:	N Sinton
First Respondent	:	TBL Scutt
Second Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
First Respondent	:	The Director of Public Prosecutions for The State of Western Australia
Second Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

Birch v Binnekamp [2018] WASC 58
Burrows v The State of Western Australia [2014] WASCA 147
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Djanghara v Law [2020] WASC 258
Drjeja v The State of Western Australia [2012] WASCA 151
Edwards v Collins [2018] WASC 119
GSO v The State of Western Australia [2021] WASCA 58
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Johnson v Vander Sanden [2021] WASCA 27
Krencej v The State of Western Australia [2019] WASCA 82
Langdon v Kelemete-Leoli-McLean [2011] WASCA 26
Roberts v The State of Western Australia [2014] WASCA 239
Stevenson v Mackay [2020] WASC 437
Vickery v McAlinden [2017] WASC 224

SMITH J:

1.0 The appeals, the grounds of appeal and the result

There are two related appeals before the court.
In SJA 1023 of 2021, the appellant seeks leave to appeal, out of time, a suspended sentence order imposed on 21 February 2020.
On 21 February 2020, a magistrate resentenced the appellant for an offence of obstructing public officer, contrary to s 172(2) of the Criminal Code to a term of 6 months and 1 day imprisonment suspended for 8 months from 21 February 2020, after entering convictions for breaches of a community based order (made on 20 May 2019 by a magistrate sitting at the Rockingham Magistrates Court).
In SJA 1023 of 2021, the appellant requires an extension of time within which to appeal. The respondent accepts that if it is found that a miscarriage of justice is established an extension of time to apply for leave to appeal should be granted.
In this appeal, the appellant seeks leave to appeal the sentence imposed on 21 February 2020, on grounds that:
(1)The sentencing magistrate erred in failing to give the appellant credit for his plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The sentencing magistrate erred in imposing a sentence of imprisonment, albeit suspended, when the offending was not of such seriousness as to warrant such a sentence.
In SJA 1024 of 2021, the appellant seeks leave to appeal a sentence imposed on 15 March 2021 by a magistrate that the appellant serve 6 months of the term of imprisonment which had been suspended as a head sentence. Her Honour sentenced the appellant to serve this term after having entered a conviction against the appellant for one count of wilfully driving a motor vehicle in a reckless manner in a confiscation zone on 2 May 2020, contrary to s 60(1A)(a) of the Road Traffic Act 1974 (WA) (which offence is punishable by a period of imprisonment).
By the conviction for reckless driving the appellant was deemed to have breached the suspended term of imprisonment imposed on 21 February 2020.
On 15 March 2021, a magistrate imposed a term of immediate imprisonment of 2 months (for the reckless driving charge) cumulative on the head sentence (of 6 months) being a total effective term of 8 months' imprisonment.
The appellant seeks leave to appeal the sentence of imprisonment imposed on 15 March 2021 on grounds that:
(1)The sentencing magistrate erred in imposing a sentence of imprisonment for the offence of reckless driving when the offending was not of such seriousness as to warrant such a sentence.
(2)The sentencing magistrate erred in finding that it would not be unjust to order that the appellant serve the previously suspended term of imprisonment imposed for the offence of obstruct public officer.
Leave of the court is required for each ground of appeal.[1] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
For reasons that follow, an extension of time to appeal the sentence imposed on 21 February 2020 should be allowed, and leave should be granted to appeal on grounds 1 and 2 of the appeal in SJA 1023 of 2021, and the appeal allowed. Having allowed the appeal on both grounds, the suspended imprisonment order should be set aside and the appellant resentenced for the offence of obstruct public officer.
For reasons that also follow, leave to appeal on ground 2 of the appeal in SJA 1024 of 2021 should be granted and the appeal allowed. I am of the opinion that the suspended imprisonment order should be set aside retrospectively together with the order that the appellant serve 6 months of the suspended term of imprisonment.
The consequence of allowing both appeals is that I must resentence the appellant for both the obstruct public officer offence and the reckless driving offence.
I am of the opinion that the appellant should be resentenced to a term of imprisonment of 16 weeks for the obstruct public officer offence and to a term of 8 weeks and 3 days' imprisonment for the reckless driving offence, being a total effective term of 26 weeks and 3 days' imprisonment, which terms should be suspended for 6 months.

2.0 Background

2.1 Imposition of the community based order for the offence of obstruct public officer

On 20 May 2019, the appellant received a 6 month community based order with supervision and program requirements after pleading guilty to one count of obstructing a public officer, and one count of failing to comply with a request to provide personal details, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA).
These two offences were committed on 18 November 2018 and arose out of a single course of conduct which resulted in the appellant being charged and convicted with two other offences for which he received fines. The other offences were one count of operating a device producing a sound on a facility without the use of a headphone or earplug, without the approval of the chief executive officer, contrary to reg 16(2) of the Public Transport Authority Regulations 2003 (WA) and smoking on a facility where a notice was displayed that smoking was prohibited, contrary to reg 11(2) the Public Transport Authority Regulations.
The appellant was charged with the four offences by summons and was required to appear in the Rockingham Magistrates Court on 21 January 2019. The appellant failed to appear on 21 January 2019 which resulted in a warrant for his arrest being issued by the presiding magistrate.
On 16 May 2019, the appellant appeared from custody and pleaded guilty to each of the four charges, but not sentenced as he wished to seek legal advice. He was released on bail and answered his bail on 20 May 2019 for sentence.
The facts of the offences read to the Magistrates Court on 20 May 2019 before the sentencing magistrate were as follows.
At approximately 8.23 pm on Sunday, 18 November 2018 the appellant exited a train at the Warnbro railway station. Upon doing so, he turned on a portable speaker which produced loud music. Public Transit Authority (PTA) officers had previously asked the appellant to turn the music off while he was on the train and they again asked him to desist. The appellant refused to turn off the speaker and directed abuse at the officers. He then lit a cigarette, despite signage in the area stating smoking was prohibited. When PTA officers asked him to extinguish the cigarette he refused and directed further abuse at the officers.
The officers asked the appellant to provide his name, date of birth and address for the purposes of issuing an infringement notice. The appellant was warned by the officers that he may be arrested if he failed to comply with their request. The appellant refused to give his details and shouted abuse at the officers before attempting to walk away.
The officers placed the appellant under arrest, but the appellant resisted by twisting his body and arms and pushing an officer in the shoulder in an attempt to break free. Despite the officers repeatedly warning the appellant to stop resisting, the appellant continued to use his legs to brace against the officers and tensed his body to avoid being restrained. He was finally restrained on the ground. During the struggle one officer suffered a chest injury that required medical treatment.
The sentencing magistrate remarked that the appellant's behaviour was totally unacceptable and found that the circumstances of the obstruct offence was not at the lower end of offending. Her Honour had regard to the fact the appellant had past and recent convictions for drug offences and formed the opinion that a community based order for the obstruct and failing to provide personal details was an appropriate sentencing disposition.

2.2 Imposition of a suspended imprisonment order following the breach of the community based order

It appears that the appellant only reported twice in accordance with the terms of the community based order imposed on 20 May 2019. He reported on 22 May 2019 and again on 25 June 2019. He was due to report on 25 July 2019 but did not do so, and further attempts to contact him failed.
The appellant was subsequently charged that on 11 September 2019, not being a person exempted under s 10 of the Weapons Act 1999 (WA), without lawful excuse possessed a controlled weapon. The appellant was charged with this offence by summons and was required to appear to answer the summons on 21 October 2019 at the Rockingham Magistrates Court. The appellant did not appear on this date and was convicted in his absence for the weapon offence. Following his non‑appearance, a summons was issued by the presiding magistrate requiring the appellant to appear on 18 November 2019 (for sentence).
The appellant did not appear on 18 November 2019, and a summons to issue orders was issued by the presiding magistrate requiring the appellant to appear on 16 December 2019.
On 19 November 2019, a prosecution notice was issued charging the appellant with two counts of breaching a community release order without reasonable excuse by failing to report for supervision on 25 July 2019. The appellant was required to appear in the Rockingham Magistrates Court on these two charges on 16 December 2019.
On 16 December 2019, there was no appearance by the appellant on the weapon offence or the breaches and further summonses to appear on 3 February 2020 were issued.
On 3 February 2020, there was no appearance by the appellant which resulted in the issue of a warrant for his arrest.
On 6 February 2020, the appellant appeared, pleaded guilty to the breaches of the community based order and was remanded on bail for sentence on 21 February 2020.
On 21 February 2020, the appellant appeared in the Rockingham Magistrates Court to be sentenced for possessing a controlled weapon and the two breaches of the community based order imposed on 20 May 2019.
The weapon charge related to the appellant possessing a machete with no lawful excuse for doing so. The breaches were due to the appellant's non-compliance with the supervision condition of the community based order, namely that he failed to attend an appointment on 25 July 2019, as directed on 22 July 2019. During the sentencing hearing the following sentencing submissions were made.
The appellant regularly rescheduled his supervision appointments, sometimes with very short notice, citing reasons such as having no money for transport, car breakdown or being unwell. There were also periods where he did not contact Adult Community Corrections despite their repeated requests for him to do so, including after leaving a business card in the appellant's mailbox at his home, making several telephone calls to the appellant and sending a warning letter by post.
By the reoffending in respect of the weapon charge, the appellant also breached the community based order.
As a result the appellant was sentenced for the weapon charge, sentenced for the breach charges and resentenced for the two underlying offences for which he was subject to the community based order.
In respect of the resentencing for the obstruct public officer charge, the appellant's counsel submitted it was a mitigating factor that the appellant was on the cusp of youth, being 24 years of age at the time of the offence. It was also submitted:
(a) the appellant had the support of his father;
(b) he had good prospects of rehabilitation;
(c) while the appellant had prior convictions, he had only received fines for the offences; and
(d) he had plans to move to the south-west to commence as a full‑time tree planter, which would allow him to 'get away from a negative group of peers, drugs, alcohol and attempt a fresh start'.[3]
[3] ts 21/02/2020, 6.
The appellant's counsel then made a submission that the offences for which the appellant was being resentenced (obstruct a public officer and failing to comply with a request to give the public officer personal details) did not warrant a term of imprisonment, be it immediate or suspended. Her Honour disagreed and remarked that the appellant had blatantly disregarded the court order and had unacceptably 'thumbed his nose at the court'. Her Honour then remarked it was her opinion that the appellant had reached a sentence of last resort (a sentence of imprisonment) which she was prepared to suspend.
In sentencing the appellant, her Honour made the following sentencing remarks:
[I]t has taken a warrant after the issue of a summons to get you before the court for the breach charges. You've entered your pleas of guilty in relation to those two breach charges, today. That is the fourth listing, but your second appearance, having been arrested on the warrant. So I'm still going to give you - because I don't believe you had counsel before. I'm still going to give you full credit for the pleas to the community-based order. Breach charges, that is.
As far as the possession of the weapon is concerned, you were convicted [under] section 55 on that matter, on 21 October 2019. You are not entitled to credit for that. Again, a summons had to be issued not once, but twice, and then you failed to answer that summons on 3 February, and were then arrested on a warrant. So I have to deal with you now, not only in relation to the fresh charge of possession of that machete, which will be forfeited, but also for the breach charges where you failed to comply with the community-based orders, and resentence you for the obstruct and the failing to give your personal details.
In sentencing the appellant for the breach offences, her Honour remarked that the appellant had wasted the limited resources of the Community Justice Service by not bothering to attend his appointments and by rescheduling his appointments. For these offences, her Honour fined the appellant $100 on each breach of the community based orders (being a total of $200) and ordered that he pay $225.90 in costs. Her Honour also fined the appellant $500 for being in possession of the controlled weapon and ordered him to pay $225.90 in costs in respect of this offence. The sentencing magistrate then resentenced the appellant for the offence of failing to comply with a request by fining him $400.
Her Honour then resentenced the appellant for the offence of obstruct public officer and found because of his blatant disregard of the court order (the community based order) and the 'serious nature of the obstruct itself', he would be sentenced to a term of imprisonment which she would suspend because the appellant had full-time work in the south-west, tree planting.
Her Honour imposed a term of imprisonment of 6 months and 1 day, suspended for 8 months for the offence of obstruct public officer. Her Honour then warned the appellant that if he committed another offence in the following 8 months that carried a term of imprisonment he may find himself going to jail.

2.3 Imposition of a term of immediate imprisonment for breach of the suspended term of imprisonment order and one count of reckless driving

The appellant was charged by summons on three charges arising out of driving a vehicle on 2 May 2020. The charges were one count of reckless driving, one count of driving a motor vehicle on a road when not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA), contrary to s 49(1)(a) of the Road Traffic Act and one count of using a vehicle on a road, whilst a required vehicle licence had been granted in respect of the vehicle but was not current, contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA).
The appellant was required to appear on each of these three charges in the Rockingham Magistrates Court on 7 July 2020 but did not do so. The charges were adjourned to 18 August 2020. On 18 August 2020, there was again no appearance by the appellant. As a result a summons to issue orders was issued by the presiding magistrate for the appellant to appear on 29 September 2020.
In the interim, the appellant had been charged with a further offence, namely being in possession on 26 July 2020 of drug paraphernalia, namely a multicoloured smoking implement, in which there was a prohibited drug, namely cannabis, contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA). The appellant was charged by summons in respect of that offence also and was due to appear in the Rockingham Magistrates Court on this charge on 24 August 2020. The appellant did not appear on that date and a summons was issued for his appearance on 21 September 2020.
On 29 September 2020, the appellant did not appear in the Rockingham Magistrates Court to answer the three driving charges which included the reckless driving charge which resulted in a warrant for his arrest being issued.

On 4 December 2020, the appellant appeared from custody, entered pleas of guilty to the driving charges and the smoking implement charge, and was remanded on bail to 8 January 2021 for sentence.
On 8 January 2021, the appellant answered his bail and the matters were further adjourned to 5 February 2021 and then to 12 February 2021. On each of those occasions the appellant's bail was renewed.
On 15 March 2021, the appellant was sentenced for reckless driving, driving without a licence, driving an unlicenced vehicle and possessing drug paraphernalia.
The facts read to the court were as follows.
The drug paraphernalia charge was committed on 26 July 2020 and related to a pipe containing cannabis.
The circumstances of the driving charges were that at approximately 5.30 pm on Saturday, 2 May 2020 the appellant drove a Subaru vehicle from his property across the road and onto Mitzi Park in Medina. The park is contained within a built-up area within a 50 km/hour speed limit, is open to the public, and is surrounded by residential properties on three sides. Whilst in the park the appellant drove at speed, caused the vehicle to spin its wheels and slide sideways before coming to an abrupt stop. He then drove the vehicle back to his home. When the police attended the appellant's home and interviewed him, he admitted the offences.
The charges of reckless driving and possessing drug paraphernalia both carry terms of imprisonment as the maximum penalty and, therefore, by committing these offences the appellant had breached the suspended imprisonment order imposed on 21 February 2020.
At the sentencing hearing on 15 March 2021, the appellant's counsel submitted that it would be unjust to sentence the appellant to an immediate term of imprisonment due to a combination of factors, and these were:
(a)the appellant had an entrenched drug habit, but had been 'off the methylamphetamine' for about three months;
(b)he had an extremely difficult childhood where he was subject to physical violence by family members. His father, who was the only family support available to him, had died in December 2020, which caused him to relive the trauma of his uncle dying in 2017. This set of circumstances seriously contributed to the deterioration in his mental health;[4]
(c)the appellant had stable accommodation with a friend after a period of being on the verge of homelessness. He had a job trial organised for the following week; and although a pre‑sentence report was before the court which raised issues regarding the appellant's ability and unwillingness to comply with court orders, the report was prepared shortly after the death of the appellant's father; and
(d)he had pleaded guilty at the earliest opportunity.
[4] ts 15/03/2021, 6.
After considering the sentencing submissions and reviewing the pre‑sentence report the sentencing magistrate considered that in all of the circumstances it would not be unjust to trigger the suspended sentence. Her Honour remarked that she accepted the plea was at the earliest opportunity and she would apply a 25% discount (to the head sentence) pursuant to s 9AA of the Sentencing Act.
Her Honour considered:
(a) it was an aggravating factor that he committed the driving offences within two months of being placed on a suspended imprisonment order;
(b) the offending was not trivial but serious; and
(c) the consequences of reoffending would have been clear to him.
Her Honour remarked that the reckless driving offence was serious because people could have been walking their dogs in the park at 5.30 at night and there could be children in that area. Consequently, her Honour was of the opinion that potentially the public were put significantly at risk by his driving at speed in the park. Her Honour also had regard to the fact that the vehicle he was driving was not licensed and he was driving without a licence, and this was a second offence of this nature (driving without a licence) that he had committed.
Her Honour also remarked that the appellant's criminal record did not aggravate his offending but it had the effect that he could not be regarded as a person of good character.
The sentencing magistrate did, however, accept that the appellant was now remorseful and prepared to comply with any direction given by Community Corrections but that the pre‑sentence report indicated that he had demonstrated little insight into his offending behaviour, and was ambivalent about complying with any directions of the court, which was borne out by the fact that he had reoffended within two months of being subject to a suspended sentence order.
Her Honour then ordered the appellant to serve 6 months of the previously suspended sentence, and a further term of immediate imprisonment of 2 months cumulative for the offence of reckless driving. The appellant received fines for the remaining driving offences, being $400 for the offence of no authority to drive, $200 for driving an unlicensed vehicle on the road, and $300 for the smoking implement charge. The appellant was also ordered to pay costs of $328.05 and $225.90.

3.0 SJA 1023 of 2021 - The suspended imprisonment order made on 21 February 2020

3.1 Section 9AA of the Sentencing Act 1995 (WA) - ground 1

In ground 1 of this appeal, the appellant contends that the sentencing magistrate erred in law by failing to reduce the term of imprisonment to reflect the benefits to the State and to any victim or witness from his plea of guilty, as required by s 9AA of the Sentencing Act.
Section 9AA provides:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The respondent concedes that the sentencing magistrate failed to indicate that she would apply a reduction in sentence specifically with respect to the obstruction offence, and that her Honour's remarks with regard to the discount to be applied with respect of each of the sentences (for the breach charges and the obstruct charge) were ambiguous.
Although her Honour made it clear that she did not intend to apply a discount to the sentence she would impose for the controlled weapon (on the basis that he was convicted in his absence), when her Honour said 'I'm still going to give you full credit for the pleas to the community based order. Breach charges, that is', it is not clear from this remark whether her Honour was indicating that she intended to apply a discount only to the offences of breaching the community based order, or whether she intended to also apply a discount to the underlying obstruction offence for which the community based order was imposed on 20 May 2019.
The respondent contends that when the magistrate's remarks are read as a whole and not with an eye finely tuned for error,[5] her Honour's remarks could be read as drawing a distinction between the new offence (the weapon charge) for which no discount would be applied, and the obstruct charge in respect of which a full discount would be applied.
[5] Stevenson v Mackay [2020] WASC 437 [108] (Derrick J).
The respondent points out that there is nothing in the sentencing remarks to suggest that the magistrate erroneously formed the opinion that the obstruction offence had not been the subject of a plea of not guilty. Further, the prosecution notice clearly indicates that the appellant had pleaded guilty before her Honour on 16 May 2019.
The respondent also points out that failure to state that a sentence has been reduced, and to quantify the reduction, does not necessarily mean that a reduction has not been made, and that the sentencing discretion miscarried.[6] However, to avoid the conclusion that a material error has occurred, it would be expected that the sentencing judicial officer should make reference to the mitigating effect of the guilty plea, and it should be apparent from the sentence that a reduction has been made.[7]
[6] Burrows v The State of Western Australia [2014] WASCA 147 [32].
[7] Roberts v The State of Western Australia [2014] WASCA 239 [48] - [49]; H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10] (Steyler P).
The respondent also submits that the suspension of the term of imprisonment in this case was suggestive of a recognition of the plea of guilty. However, I do not accept that a suspension of the term can constitute a reduction of a sentence pursuant to s 9AA of the Sentencing Act, as the imposition of a lesser sentencing option is not a reduction of a fixed term head sentence within the meaning of s 9AA(4).
Importantly, if a full discount of 25% for the offence of obstruct had been given by her Honour, her Honour must have started from a higher term than 6 months and 1 day imprisonment. Section 9AA, when read with s 86 of the Sentencing Act, requires that subject to the express exceptions in the section itself, unless, applying all relevant sentencing principles, sentence of at least 6 months and 1 day is appropriate in all the circumstances, imprisonment is not an available sentencing option.[8] Section 86 equally applies to the term of imprisonment irrespective of whether the term is immediate imprisonment or suspended.[9]
[8] Johnson v Vander Sanden [2021] WASCA 27 [53] - [57].
[9] Johnson v Vander Sanden [2021] WASCA 27 [85] - [96].
In Vickery v McAlinden Chaney J observed that the effect of the two step process of suspending a term of imprisonment required by s 76(2) of the Sentencing Act as explained by Kirby J in Dinsdale v The Queen[10] is:[11]
[I]t may be inferred from s 76, that suspension of imprisonment is only to be available where, first, the court has concluded that a sentence to a term of imprisonment is warranted and where the court imposes that sentence …
It follows that the first step requires that the court identify a term which, if suspension were not possible, would be appropriate in all the circumstances. By reason of s 86, a term of six months or less is not available. In light of that statutory prohibition, it cannot be that a term of less than six months would be appropriate if the capacity to suspend the sentence was not available.
[10] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [78].
[11] Vickery v McAlinden [2017] WASC 224 [33] - [34].
In Vickery v McAlinden Chaney J found error in the imposition of a term of imprisonment for 6 months and 1 day suspended for 12 months for a charge of obstructing a public officer on grounds of a factual error made by the sentencing magistrate that is not relevant to the facts and issues raised in this appeal. Justice Chaney went on to find when resentencing the appellant for the offence of obstruction (when s 9AA and s 86 is applied):[12]
[T]he question in resentencing the appellant is whether, having regard to the necessity to recognise the maximum discount for his early plea of guilty, the circumstances of the offending warrant a sentence of imprisonment in excess of six months. If allowance is made for a 25% discount, then putting aside any other mitigating circumstances, the circumstances must be such as to warrant a sentence, absent a plea of guilty, of something at least slightly in excess of 8 months' imprisonment. If that is not the case, then the imposition of a term of imprisonment is not available, and thus not available to be suspended, so that some other available penalty must be chosen.
[12] Vickery v McAlinden [2017] WASC 224 [36]; approved in Johnson v Vander Sanden [2021] WASCA 27 [85] and [95].
Consequently, in this matter, if her Honour gave full effect to the discount in s 9AA for the offence of obstruct public officer, she must have started from a head sentence of approximately 8 months.
The respondent submits that even were it the case that the magistrate failed to take into account the appellant's original plea of guilty to the obstruction offence (that is reduced the term because of the plea of guilty), the sentence imposed was within the exercise of a sound sentencing discretion such that there was no substantial miscarriage of justice, and that whilst leave to appeal on ground 1 should be allowed, the appeal should be dismissed.
I will consider this issue after determining ground 2.

3.2 Was a sentence of suspended imprisonment for the offence of obstruct public officer manifestly excessive

In ground 2, the appellant contends that the sentence of imprisonment of 6 months and 1 day suspended for 8 months was manifestly excessive as to the type of sentence.
Where, as in this appeal, there is an allegation of express or implied error in the sentencing process, an appellate court will not intervene simply because the court might have imposed a different sentence. Rather, an appellate intervention is only warranted where the court is satisfied that a different sentence should have been imposed at the original hearing.
The principles that apply on an appeal against sentence contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle are as follows:[13]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, 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.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls 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 (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) 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 unreasonable or plainly unjust.
[13] Krencej v The State of Western Australia [2019] WASCA 82 [55].
Pursuant to s 6(4) of the Sentencing Act, a sentence of imprisonment ought not to be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.
When sentencing an offender:
(a)s 6(1) of the Sentencing Act requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of the offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
Section 39 of the Sentencing Act prescribes the sentencing options in respect of natural persons. By s 39(3), a court must not impose a term of imprisonment[14] unless satisfied, having regard to div 1 of pt 2, that it is not appropriate to use any of the other options.
[14] See s 39(2)(h) of the Sentencing Act 1995 (WA).
Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[15]
[15] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; DKN v The State of Western Australia [2018] WASCA 87 [35].
A decision to impose a term of imprisonment or a suspended term of imprisonment involves a two step process.
Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The first step is a sentencing judge or magistrate must determine that a term of imprisonment is called for and not some lesser sentence. The second step requires the court to be satisfied that it is inappropriate to impose a term of suspended imprisonment before a term of imprisonment can be ordered to be served immediately.[16] Thus, each step requires the court to form a requisite opinion.
[16] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J).

The maximum penalty for the offence of obstruct public officer, contrary to s 172(2) of the Criminal Code, is 3 years' imprisonment. However, the maximum summary conviction penalty that could be imposed by the magistrate for the offence was 18 months' imprisonment and a fine of $18,000. The relevant maximum penalty for the purposes of dealing with ground 2 of the appeal in SJA 1023 of 2021 is 3 years.
The respondent argues that the circumstances of the obstruct public officer offence was serious, and that there were aggravating factors which rendered a suspended imprisonment order an appropriate disposition for the seriousness of the offence. The factors relied upon by the respondent are as follows.
When the appellant was arrested he struggled for approximately 40 seconds before officers were able to take the appellant to the ground. Once on the ground they struggled for a further 20 seconds.[17]
[17] ts appeal 02/08/2021, 20.
The struggle was witnessed by a number of members of the public. At the time of the struggle, an acquaintance of the appellant was present and circling around the immediate vicinity of the incident. The respondent submitted that while the officers were dealing with the appellant they were 'under threat' by the third party.[18] While the respondent acknowledged that the appellant cannot be held responsible for the actions of the third party, it submitted that in relation to the circumstances surrounding the offence, it was an aggravating factor. During the struggle to arrest the appellant a PTA officer was injured and required medical attention. The officer had been holding the appellant's portable speaker when the appellant fell on top of him forcing the speaker into his chest area and causing bruising and discomfort.
[18] ts appeal 02/08/2021, 20.
However, the fact that an officer was injured during the course of the struggle cannot be regarded as an aggravating factor, because the appellant was not charged with the more serious offence of assault public officer.[19] It is not, however, suggested by the appellant that her Honour had regard to this factor in assessing the seriousness of the offence.
[19] Langdon v Kelemete-Leoli-McLean [2011] WASCA 26 [28] and [35] - [38] (Buss JA); GSO v The State of Western Australia [2021] WASCA 58 [30].
Although there is a fine line between the permissible consideration of the circumstances surrounding the commission of an offence and the impermissible consideration of punishment for an offence which is not charged, the fact that an officer sustained an injury during the course of the struggle, but not because of any deliberate act by the appellant other than to resist arrest, is a factor whilst not aggravating, a background factor relevant to the sentencing discretion.
I also do not accept that the fact that a friend of the appellant was circling the officers and acting in a way that could be regarded as threatening to the officers, is an aggravating factor as there was nothing put to the magistrate or in this appeal to indicate that the appellant had incited the actions of the third party. In any event, this circumstance was not raised by the prosecutor at the sentencing hearing on 21 February 2020.
The appellant's lack of compliance with the community based order cannot be regarded as an aggravating factor of the circumstances of the assault public officer offence, but his lack of compliance with the order is a circumstance that is relevant to the appellant's personal circumstances and personal deterrence. Consequently, this was a factor that her Honour was entitled to take into account when determining that the appropriate penalty for the offence was a term of imprisonment.
There is no established tariff for the offence of obstruct public officer. Although penalties that have been imposed for the offence have ranged from fines to sentences of immediate imprisonment, the cases involve widely varying circumstances, and where a person has been sentenced to immediate imprisonment have involved total effective sentences imposed for a range of different offences.[20]
[20] Stevenson v Mackay [2020] WASC 437 [56] (Derrick J); See in particular each of the cases referred to by Archer J in Birch v Binnekamp [2018] WASC 58 [46].
In the recent case of Stevenson v Mackay Derrick J had regard to three cases that involved appeals against sentence for the offence of obstructing a public officer. The cases considered by his Honour were Birch v Binnekamp,[21] Vickery v McAlinden,[22] and Djanghara v Law.[23] The appellant relies in part upon the following observations made by his Honour in Stevenson v Mackay after having reviewed each of these three cases:[24]
I have reviewed all of the cases referred to by the respondent. In all of the cases the offence of obstructing a public officer was one of a range of offences of which the offender had been convicted. One of the cases was an appeal against conviction only. Further, in all but one of the cases in which the appeal was against sentence, the appeal was concerned with the individual sentence imposed for one or more of the offences of which the offender had been convicted other than the obstruct public officer offence, or with the total sentence imposed. In these circumstances the cases are, in my view, of very limited assistance when it comes to determining the ground of appeal. Consequently, I do not consider that there is any useful purpose to be served by me embarking upon any detailed discussion of the cases. Rather, it suffices, in my opinion, to say that a review of the cases in question reveals the following. First, that in the cases in which a term of immediate imprisonment was imposed for the obstruct public officer offence, the conduct of the offender involved him or her deliberately striking the police officer, or deliberately striking out at the police officer, or at least struggling against the police officer in a more violent fashion than was exhibited by the appellant in the present case. Second, that in those cases in which a term of immediate imprisonment was imposed for the obstruct public officer offence, the term did not exceed 3 months.
[21] Birch v Binnekamp [2018] WASC 58.
[22] Vickery v McAlinden [2017] WASC 224.
[23] Djanghara v Law [2020] WASC 258.
[24] Stevenson v Mackay [2020] WASC 437 [94] (footnotes omitted).
The factual circumstances in Birch v Binnekamp were not only of limited assistance in Stevenson v Mackay but are of limited assistance in this appeal because in Birch v Binnekamp the appeal against sentence was an appeal in respect of two counts of assault public officer (one of which occurred on a train), one count of unlawful assault and one count of making a threat to injure, endanger or harm a person. After being afforded the maximum 25% discount under s 9AA, the offender was sentenced to 3 months' imprisonment for each of the obstruct public officer offences and for the unlawful assault offence, and to a sentence of 6 months' imprisonment for the threat offence. He was ordered to serve one of the terms of the obstruct public officer offences, the unlawful assault offence and the threat offence cumulatively. The result was he was ordered to serve a total effective sentence of 12 months' imprisonment, suspended for a period of 12 months. The personal circumstances of the offender were that he was 27 years old at the time of sentencing, had a mental illness, a mild intellectual disability and history of drug use. The appeal against sentence was dismissed. In dismissing the appeal, Archer J found that all of the offences had a serious component and that the threat offence on its own would have justified a sentence of 12 months' imprisonment suspended for 12 months.[25]
[25] Birch v Binnekamp [2018] WASC 58 [83] and [91].
In Djanghara v Law the offender was convicted on early pleas of guilty to one count of street drinking, one count of disorderly behaviour in public, and one count of obstructing a public officer. The facts of this offence were summarised by Derrick J in Stevenson v Mackay as follows:[26]
The offender, while standing in the middle of the road, approached a police vehicle with an open can of Jim Beam bourbon. The police advised the offender that it was illegal to street drink and that they would destroy the alcohol. The offender began to drink the alcohol in front of the police. The police took the bourbon can from the offender and the offender started to become aggressive. He began to shout obscene, threatening and abusive language towards the police at the top of his voice. The offender was advised that if he continued with his behaviour he would be arrested. The offender's friends attempted to calm the offender down and to take him away from the police, but the offender continued to shout abuse at the top of his voice at the police. The offender then began to physically fight with his friends and push past one to adopt a fighting stance towards the police. The offender lunged towards police and was at this point arrested. The offender began to physically resist the arrest by throwing his arms in the air and trying to pull away from the police. The offender was placed on the ground. While on the ground the offender began to dig his arms into his chest and put his weight down. The offender was eventually subdued and handcuffed.
Once handcuffed the offender was escorted to the rear secure pod of the police vehicle where he continued to shout abuse and refused to step into the secure pod. The offender was eventually placed into the secure pod.
It was the offender's conduct in resisting arrest and resisting being placed in the secure pod that constituted his obstruct public officer offence.
The offender was a 47‑year‑old Aboriginal man from the Kimberley region of Western Australia. He had a relatively minor criminal record which included numerous convictions for disorderly behaviour and one prior conviction for obstructing a public officer. He also had prior convictions for two drug offences and for breaching community based orders. He had never been sentenced to an immediate term of imprisonment or to a suspended term of imprisonment.
The offender had been struggling with alcohol use issues since the death of his wife two years previously. The Kimberley Community Drug Alcohol Service had provided a positive report about the offender.
For the street drinking and disorderly behaviour in public offences the magistrate fined the offender. For the obstruct public officer offence the magistrate imposed a sentence of 6 months and 1 day imprisonment suspended for 9 months. The offender applied for leave to appeal against this sentence.
[26] Stevenson v Mackay [2020] WASC 437 [85] - [90].
By the time the appeal was heard in Djanghara v Law the offender had been subject to the suspended term of imprisonment for over 5 months. Justice Archer allowed the appeal and found that the seriousness of the offences was not such that imprisonment was the only option. Her Honour made the point that the offence did not involve physical acts of aggression towards the police and rather that the offender had been trying to make it more difficult for the police to arrest him. Her Honour resentenced the offender for the offence of obstruct public officer and imposed a fine of $200.
In Vickery v McAlinden[27] the offender was convicted on his plea of guilty of one count of disorderly behaviour in public and one count of obstructing a public officer. These offences occurred when the offender who was highly intoxicated was seen by police getting out of the vehicle on the Mitchell Freeway and walking in and out of the emergency lane. Police officers approached the offender, who was very irrate and acted aggressively towards the police, continually pacing back and forth, with his hands clenched, yelling, swearing at his partner in the vehicle and the police, screaming and growling. The police officers told the offender to stay on the other side of the safety barrier. He continued to yell abuse and the police told him he was under arrest and took steps to restrain him. He resisted arrest by fighting with the officers on the side of the freeway and attempted to get his arms free and push the officers away while screaming threats to kill the officers. The offender was fined $750 in the Magistrates Court for the disorderly behaviour offence and after applying a maximum discount of 25% for the early guilty plea imposed a term of imprisonment of 6 months and 1 day suspended for 12 months for the obstruct public officer offence. The offender applied for leave to appeal against the sentence of imprisonment. One of the grounds of appeal was that the magistrate had erred in sentencing the offender on the basis that he had elbowed a police officer in the face, as opposed to merely attempting to do so. Justice Chaney allowed the appeal on this ground and resentenced the offender to a fine of $5,000. In resentencing the offender his Honour concluded that having regard to the offender's early plea of guilty and to the requirements of s 86 of the Sentencing Act, a sentence of imprisonment was not the only disposition open.[28]
[27] Vickery v McAlinden [2017] WASC 224.
[28] Vickery v McAlinden [2017] WASC 224 [38]. The police officer became attached to the vehicle and was forced to run alongside the reversing vehicle in order to avoid falling underneath the vehicle.
The respondent submits that the decision of Chaney J in Vickery v McAlinden should be treated with caution because when resentencing the offender his Honour only had regard to the penalty for the obstruction offence when dealt with summarily.[29] I agree that to not have regard to the maximum penalty for an offence demonstrates error. For this reason, I have treated the sentence imposed for the offence of obstruct by his Honour with caution.
[29] Vickery v McAlinden [2017] WASC 224 [37].
In Stevenson v Mackay the offender was sentenced on pleas of guilty to one count of unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be endangered, one count of obstructing a public officer and one count of driving a motor vehicle on a road whilst a prescribed illicit drug was present in his blood. The appellant was sentenced by a magistrate to 12 months' imprisonment for the unlawful act offence, and 6 months' imprisonment for the obstruction offence to be served cumulatively, giving a total effective sentence of 18 months' imprisonment. The offender had been sitting in the driver's seat of a suspected stolen vehicle when the police who were in the area at the time approached the appellant in the vehicle and spoke to him through an open window. As the police started speaking to the offender, he immediately started reversing the vehicle while struggling with one of the police officers through the open window at the same time. However, the police officer was able to remove the keys from the vehicle's ignition which stopped the vehicle from moving. It was this conduct which resulted in the unlawful act offence. After the vehicle had come to a stop, the offender was removed from the vehicle by the police officers and placed against the vehicle so that handcuffs could be applied to him. The appellant continued to struggle with the police officers and pushed his body weight backwards against the officers. As a result, the officers were required to assist the appellant to the ground. It was this conduct which constituted the obstruction offence.
On appeal in Stevenson v Mackay Derrick J was not persuaded that it was not reasonably open to the magistrate to find that the seriousness of the obstruction offence was such that only imprisonment could be justified,[30] but found that the total effective sentence of 18 months' imprisonment for the unlawful act offence and the obstruction offence did not bear a proper relationship to the overall criminality involved in the offender's offences viewed in their entirety, having regard to all relevant facts and circumstances.[31] His Honour resentenced the offender for both offences to a total effective sentence of 14 months' immediate imprisonment by reducing the sentence for the obstruction offence to a sentence of 2 months' imprisonment, and reimposed the same term imposed by the magistrate for the unlawful act offence (being 12 months).
[30] Stevenson v Mackay [2020] WASC 437 [99].
[31] Stevenson v Mackay [2020] WASC 437 [148].
In this appeal, the respondent contends that the factual circumstances of Stevenson v Mackay and the sentencing results do not assist the appellant because the circumstances of offending were less serious than in the current case. I do not agree.
In some respects the offending in this matter was more serious, in that the appellant resisted arrest for a longer period, and in some respects it was less serious. In Stevenson v Mackay his Honour remarked that although the appellant had just engaged in dangerous behaviour that had put the safety of a police officer at real risk and that once out of the car he deliberately resisted police so as to make the task of placing him under arrest more difficult than it should have been, this type of conduct against the background of having already put one police officer at real risk of serious harm aggravated the seriousness of his conduct in committing the obstruction offence. His Honour did, however, find that the appellant did not at any point after he was removed from the vehicle, attempt to directly apply force to the police officers other than by pushing his body weight backwards against them. Once he was on the ground he calmed relatively quickly. Further, the offence was not committed in circumstances that gave rise to a risk of other members of the public being injured or being incited to act aggressively towards the police officers. By regard to these circumstances, his Honour was satisfied that the obstruction offence did not fall towards the high end of the range of seriousness for offences of this type, but was a moderately serious example of its type.[32] The offender in that matter was 36 years old, had received a supportive upbringing but had fallen into methylamphetamine use, had a not insignificant criminal history, had been placed on community based orders which he had breached, and had recently been released from prison (for possession of methylamphetamine with intent to sell or supply).
[32] Stevenson v Mackay [2020] WASC 437 [34] - [36].
Each offence must be assessed in each case by regard to its own circumstances. In this matter, although the appellant was verbally aggressive towards the PTA officers, and had struggled when he was arrested, he had not deliberately struck or attempted to strike any of the officers, and the obstruct offence was not part of a course of conduct involving other offences in which aggression or harmful acts were present and which would of themselves attract a term of imprisonment. Nor was the appellant sentenced for other related offences at the same time which resulted in the imposition of a term of imprisonment.
I am of the opinion that the obstruction offence was a serious example of its type, but not at the higher end of offences of its type. At the time the offence was committed he was, as his counsel submitted to the sentencing magistrate, on the cusp of youth, he had had a disadvantaged childhood, and although he was not of good character, he did not have a significant criminal history of offences. His prior record of offences were two charges of possession of cannabis, and offences involving driving a vehicle including exceeding 0.0 g of alcohol per 100 ml, dangerous driving, failing to stop when called upon to do so, driving an unlicensed vehicle, and unauthorised driving by a learner driver. For each of these offences he had received fines.

Although as the sentencing magistrate properly found he had blatantly disregarded the community based order which called for a sentence that reflected personal deterrence, the nature of the obstruct offence itself, whilst serious, was not so serious so as to attract a term of imprisonment of 8 months prior to applying a discount of 25% pursuant to s 9AA. The sentence was manifestly excessive as to the length of sentence, because without the discount a term of imprisonment of 8 months could not be considered an appropriate sentence to reflect the overall criminality of the offender's conduct viewed in its entirety, when regard was had to all relevant factors including the appellant's prior criminal history and the need for personal deterrence. In determining an appropriate sentencing disposition and where imprisonment is being considered, an essential component of the logical starting point must necessarily be before the discount is applied is whether the length of a particular term of imprisonment is an appropriate sentencing disposition.

I am satisfied it was not reasonably open to the magistrate on the matters before her Honour to conclude that less serious sentencing options, other than imprisonment were not open. This is because of the operation of s 9AA and s 86, before the discount was applied a term of imprisonment of 8 months would have had to have been imposed for the offence.
For these reasons, it is necessary to resentence the appellant for the obstruct offence. Although, I am of the opinion that a term of suspended imprisonment was not the only disposition open to her Honour in resentencing the appellant, I must have regard to the recent sentence of 2 months' immediate imprisonment for the reckless driving offence and the decision to trigger the suspended term of imprisonment which resulted in an order that the appellant serve 6 months (of the suspended imprisonment order).
Before resentencing the appellant it is necessary to consider the grounds of appeal in SJA 1024 of 2021.
For these reasons, an extension of time to apply for leave to appeal in SJA 1023 of 2021 should be granted and leave to appeal on grounds 1 and 2 should be allowed, and the appeal allowed.

4.0 SJA 1024 of 2021 - The sentences of imprisonment imposed on 15 March 2021

4.1 - The consequences that flow from allowing the appeal in SJA 1023 of 2021

The respondents accept that if the appeal in SJA 1023 of 2021 is allowed, on grounds the magistrate erred in making a suspended imprisonment order on 21 February 2020, leave to appeal should be granted, the appeal allowed in SJA 1024 of 2021, and the appellant should be resentenced for the obstruct public officer offence and the offence of reckless driving.
The first issue to be determined is whether the suspended imprisonment order should be set aside retrospectively.
In Drjeja v The State of Western Australia[33] the offender had been convicted of causing property damage and was sentenced to 7 months' imprisonment, suspended for 18 months. Within 18 months, the offender committed offences punishable by imprisonment, which required that he then be dealt with for breaching the suspended imprisonment order, one of which was a robbery offence. On 20 December 2010, he was dealt with in the Supreme Court by Corboy J who imposed a fine of $2,000 for breach of the suspended imprisonment order. On 9 September 2011, Hall J in the Supreme Court set aside the sentence of suspended imprisonment, and in lieu a fine was imposed. An appeal was subsequently made to the Court of Appeal against the $2,000 fine imposed by Corboy J for the breach of the suspended imprisonment order. The ground of appeal asserted that the fine imposed for the breach of a suspended sentence was now inappropriate as the suspended sentence had been set aside on appeal. The appeal was dismissed by the Court of Appeal.
[33] Drjeja v The State of Western Australia [2012] WASCA 151.
Appeal Judge Pullin found that the order setting aside the suspended sentence order (by Hall J) was not an order made that the suspended sentence order was void ab initio, and that in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.[34] Importantly, his Honour found:[35]
[A]n order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order…
s 14(1) of the Criminal Appeals Act (WA)…authorises the court to set aside sentences of imprisonment but it also authorises the appeal court to set aside convictions. The words 'set aside' cannot therefore be read to mean only to set aside prospectively.
s 14(1) authorises the 'setting aside' of convictions as well as sentences. The meaning of the words may have the more 'drastic' meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.
…
In submissions, counsel for the appellant having conceded that Hall J's order did not set the suspended sentence aside ab initio, did no more than assert, in effect, that it was unfair or 'inappropriate' that the appellant should have to pay the fines imposed under s 80 of the Sentencing Act because the suspended sentence order has been set aside. That submission has no merit. While the suspended sentence order was in force it had to be obeyed: see Bassett v Board [16]. The order made by Hall J setting aside the suspended sentence only had prospective effect. There was no miscarriage of justice. Appeal CACR 23 of 2012 must be dismissed.
[34] Drjeja v The State of Western Australia [2012] WASCA 151 [17] (Newnes and Mazza JJA agreed).
[35] Drjeja v The State of Western Australia [2012] WASCA 151 [15] - [19].
In this appeal, the respondents do not suggest that the suspended imprisonment order should not be set aside retrospectively, that is from the date on which it was made.
In Edwards v Collins Jenkins J observed in an appeal where her Honour had set aside a conviction and sentence which carried mandatory disqualification from driving, as to whether she should exercise her discretion to set aside a subsequent conviction and sentence for driving whilst disqualified:[36]
There are strong policy reasons why sentences imposed by courts should be complied with and enforced unless and until they are set aside. The appellant was aware of the disqualification order made by the Magistrates Court as part of the Milpara sentence. He chose to drive in knowing breach of that order. He was charged with, and pleaded guilty to the Mumbalup offence. The appeal against the Milpara conviction and sentence was not commenced for another 14 months. Even though I will now set aside the Milpara conviction and sentence, the circumstances do not require me to set aside the Mumbalup conviction and sentence. The Mumbalup conviction was executed action to enforce the Milpara disqualification order. It was complete prior to the Milpara charge being set aside. It remains a valid executed action. It is not rendered invalid or a miscarriage of justice by me setting aside the Milpara conviction and sentence
[36] Edwards v Collins [2018] WASC 119 [68].
Whilst I agree with the observation made by Jenkins J that there are strong policy reasons why sentences should be complied with until they are set aside, in this matter I am of the opinion the suspended sentence order should be set aside retrospectively.
The effect of the setting aside of the suspended prison order made on 21 February 2020, is that this court is required to resentence the appellant for the underlying offence, which necessarily requires that the appellant be resentenced for the offence of reckless driving which was one of the offences that triggered the suspended term of imprisonment. Consequently, this court is in a position to resentence the appellant as if he were first appearing having entered pleas of guilty to the offences of obstruct public officer and reckless driving.
For these reasons, the suspended term of imprisonment is to be set aside, which order will take effect on and from 21 February 2020. Although it is not necessary to set aside the order made on 15 March 2021 that the suspended imprisonment order be cancelled, an order should be made to set aside the order that the appellant serve 6 months of the suspended term of imprisonment.

4.2 - The appellant resentenced for the obstruct public officer and reckless driving offences

Having regard to the fact that the appellant committed the offence of reckless driving a little over two months after he had been made subject to a suspended imprisonment order, together with the fact that the appellant has a not insignificant record of further traffic offending including a prior conviction for dangerous driving and failing to stop, the sentence that should be imposed for the reckless driving offence should strongly reflect a need for personal deterrence.
Although the magistrate who sentenced the appellant on 21 February 2020 made it clear to the appellant that the court would not tolerate any further blatant disregard of orders made by the court, and that if the appellant committed an offence that carried as a penalty a term of imprisonment, he may find himself going to jail, the appellant not only ignored that advice when he was charged with the driving offences, including the reckless driving charge, he did not appear in the Magistrates Court when summoned to do so and it took another arrest warrant to issue for his arrest before he came before the court. The fact that he did so shows that the appellant continued to blatantly disregard orders of the court after he was sentenced to a suspended imprisonment order.
By the time the appellant came before the sentencing magistrate on 15 March 2021, the sentencing consideration of personal deterrence was a more significant factor than it was when the magistrate imposed the suspended imprisonment order on 21 February 2020, because the appellant had continued to disregard orders of the court despite the fact that he had been warned of the consequences of doing so.
I am of the opinion that in resentencing the appellant for the offences that personal deterrence and public protection are the main factors I should have regard to. I note that the pre‑sentence report that was before the Magistrates Court on 15 March 2021 was not favourable to the appellant. In particular, the author of the report formed the opinion after interviewing the appellant that it was difficult to support a further period of community supervision.
Turning first to the obstruct public officer charge, I have already found that the starting point for a term of imprisonment for this offence of 8 months was on the facts and circumstances of that offence unreasonable and unjust. However, having regard to those facts and circumstances of the offence, in particular that it was an offence of a serious nature, together with the need to impose a sentence that reflects the need of personal deterrence and public protection, I am of the opinion that the starting point of an appropriate sentence for this offence would be a sentence of 6 months' imprisonment, which when a discount of 25% for an early plea of guilty is applied results in a term of 4 1/2 months' (18 weeks') imprisonment.
Turning to the offence of reckless driving, the maximum penalty for the offence of reckless driving, pursuant to s 60B(2)(a) of the Road Traffic Act is a fine of $6,000 or imprisonment for 9 months. The parties agree that no tariff can be discerned with respect to the offence of reckless driving simpliciter.
The offence of reckless driving was serious. The appellant drove recklessly across a park enclosed by residential streets in a manner such as deliberately to lose traction and control of the vehicle at a time of the day when persons walk their dogs in the park. As the magistrate properly found there could have been children in that area and potentially the public were put significantly at risk by the appellant's driving at speed. It is an aggravating factor that the appellant was driving without a license having never held a license to drive other than a learner's permit and the vehicle was not licensed.
Having regard to general and personal deterrence and applying the full discount of 25% to a term of imprisonment of approximately 10 weeks, I would impose a term of 8 weeks and 3 days' imprisonment for the offence of reckless driving, which when added to the sentence for the obstruct public officer offence is a total effective term of 26 weeks and 3 days' imprisonment (being a term of 6 months and 3 days' imprisonment).
Because the appellant served 37 days in custody from 15 March 2021 until granted bail by this court on 20 April 2021, I am of the opinion that a lesser sentence than immediate imprisonment should be imposed. For this reason, I will suspend each of the terms of imprisonment I have imposed for the offences of obstruct public officer and reckless driving. Each term will be suspended for a period of 6 months.
I will hear the parties further as to the orders that should be made to reflect these reasons for decision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
30 AUGUST 2021