BYKERK v Director of Public Prosecutions (WA)

In the matter of Bykerk v Director of Public Prosecutions (WA) [2022] WASC 451, the Supreme Court of Western Australia heard an appeal against a sentence imposed by the Magistrates Court. The appellant, Sacha Ashwin Silvain Bykerk, was convicted of assault occasioning bodily harm in circumstances of aggravation and was sentenced to a term of imprisonment of six months, conditionally suspended for 12 months. The appellant appealed the sentence on multiple grounds, including the legality of the sentence under s 86 of the Sentencing Act 1995 (WA), the appropriateness of the sentence, and the consideration of the appellant's criminal history as an aggravating factor.

The court found that the appellant's first ground of appeal, concerning the legality of the sentence under s 86 of the Sentencing Act, had a reasonable prospect of success. The court held that the learned Magistrate erred in imposing a term of imprisonment of six months conditionally suspended for 12 months, as it contravened the prohibition in s 86 of the Sentencing Act. The court did not accept the respondent's submission that the matter should be returned to the learned Magistrate to correct the sentence, nor did the court agree to arbitrarily increase the term of imprisonment by one day to circumvent the prohibition in s 86.

In the proper exercise of its sentencing discretion, the court set aside the conditionally suspended term of imprisonment of six months and imposed an intensive supervision order for a period of 12 months with conditions. The court found that a conditionally imposed term of imprisonment was unreasonable, taking into account the appellant's prospects for rehabilitation and outstanding treatment needs, as well as the seriousness of the offending. The court allowed the appeal on the first ground and set aside the original sentence, imposing the intensive supervision order in lieu thereof. The appeal on the second and third grounds was dismissed as the court found them to be without merit.