"C" v Hampson

[2005] WASC 227

"C" -v- HAMPSON & ORS [2005] WASC 227

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 227
Case No:	SJA:1060/2005	Heard:	10 OCTOBER 2005
Coram:	SIMMONDS J	Delivered:	28/10/05
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	"C" CLINT JAMES HAMPSON ROBERT JAMES TALBOT LAWRENCE MELISSA AMY RIMMER CADE ANDREW EVANS PAUL ANTHONY WHITE
Catchwords:	Criminal law and procedure Sentencing Offender sentenced to 2 years' imprisonment on pleas of guilty to property, fraud and traffic offences Whether Magistrate erred in not taking into account offender's co-operation with police Whether Magistrate erred in refusing to order eligibility for parole Failure to backdate sentence for time spent remanded in custody
Legislation:	Sentencing Act 1995 (WA), s 8(5), s 89
Case References:	Austin v Grapes [2004] WASCA 102 Barany v The Queen [2000] WASCA 240 Chivers v The State of Western Australia [2005] WASCA 97 Lievense v The Queen, unreported; CCA SCt of WA; Library No 7175; 24 June 1988 Messiha v Royce [2004] WASCA 290 Myles v The Queen (1997) 17 WAR 518 Pickett v The State of Western Australia [2004] WASCA 291 R v Cartwright [1989] 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 R v Phan (2001) 126 A Crim R 257 Rafferty v The Queen [2002] WASCA 312 Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28(S) Smoker v The Queen [2001] WASCA 388 Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997 Breuer & Chaney v The Queen (1986) 32 A Crim R 1 Hayes v The Queen [1981] WAR 252 King v The Queen [2001] WASCA 198 Quartermaine v The Queen [2002] WASCA 60 R v Duffy (1996) 85 A Crim R 456 R v Garlett (2000) 111 A Crim R 336 R v Grein [1989] WAR 178 R v Tait (1979) 46 FLR 386 Thompson v The Queen (1992) 8 WAR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : "C" -v- HAMPSON & ORS [2005] WASC 227 CORAM : SIMMONDS J HEARD : 10 OCTOBER 2005 DELIVERED : 28 OCTOBER 2005 FILE NO/S : SJA 1060 of 2005 BETWEEN : "C"

Appellant

AND

CLINT JAMES HAMPSON
ROBERT JAMES TALBOT LAWRENCE
MELISSA AMY RIMMER
CADE ANDREW EVANS
PAUL ANTHONY WHITE
Respondents

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR F CULLEN SM

File No : PE 55283 of 2004, PE 55380 of 2004, PE 55381 of 2004, PE 13525 of 2005, PE 13526 of 2005, PE 13559 of 2005, PE 13561 of 2005, PE 13562 of 2005, PE 13563 of 2005, PE 13564 of 2005, PE 13565 of 2005, PE 13566 of 2005, PE 13567 of 2005, PE 15818 of 2005, PE 15819 of 2005, PE 15820 of 2005, PE 15821 of 2005, PE 15822 of 2005, PE 15823 of 2005, PE 17252 of 2005

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Catchwords:

Criminal law and procedure - Sentencing - Offender sentenced to 2 years' imprisonment on pleas of guilty to property, fraud and traffic offences - Whether Magistrate erred in not taking into account offender's co-operation with police - Whether Magistrate erred in refusing to order eligibility for parole - Failure to backdate sentence for time spent remanded in custody

Legislation:

Sentencing Act 1995 (WA), s 8(5), s 89

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr A J Robson
Respondents : Mr P D Yovich

Solicitors:

Appellant : Legal Aid Western Australia
Respondents : State Director of Public Prosecutions

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

Austin v Grapes [2004] WASCA 102
Barany v The Queen [2000] WASCA 240
Chivers v The State of Western Australia [2005] WASCA 97
Lievense v The Queen, unreported; CCA SCt of WA; Library No 7175; 24 June 1988
Messiha v Royce [2004] WASCA 290
Myles v The Queen (1997) 17 WAR 518


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Pickett v The State of Western Australia [2004] WASCA 291
R v Cartwright [1989] 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Phan (2001) 126 A Crim R 257
Rafferty v The Queen [2002] WASCA 312
Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28(S)
Smoker v The Queen [2001] WASCA 388

Case(s) also cited:

Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997
Breuer & Chaney v The Queen (1986) 32 A Crim R 1
Hayes v The Queen [1981] WAR 252
King v The Queen [2001] WASCA 198
Quartermaine v The Queen [2002] WASCA 60
R v Duffy (1996) 85 A Crim R 456
R v Garlett (2000) 111 A Crim R 336
R v Grein [1989] WAR 178
R v Tait (1979) 46 FLR 386
Thompson v The Queen (1992) 8 WAR 387


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SIMMONDS J:

Introduction

1 This is an appeal by way of leave under Criminal Appeals Act 2004 (WA) s 9 against the overall sentence of imprisonment, to be immediately served, without eligibility for parole, and not backdated to the date the appellant was remanded in custody. The grounds of appeal go to the failure of the learned Magistrate to take into account for the purposes of sentencing the appellant's co-operation with the police, his failure to make a parole eligibility order, and his failure to backdate the sentence. As will shortly appear, the focus in this appeal was on the first ground, which was understood to relate to the appellant's assistance to, and undertaking to assist, the police in relation to matters other than his own. As to the other grounds, it was conceded that the learned Magistrate was in error in his approach to the question whether or not to make a parole eligibility order, and had failed to address whether or not to backdate the appellant's overall sentence.

2 I should indicate at the outset that, during the course of the hearing before me, I made orders that the appeal be heard in closed court, and at the end of the hearing I made certain other orders. These were that there was to be no publication of the proceedings, and that this judgment not identify the appellant, until further order.

3 As I pointed out to the parties, these orders do not preclude the publication of my decision, or comment on it, nor of any further decision of mine at any further hearing in this matter, as I will indicate may need to occur.

4 These orders were made on the application of counsel for the appellant, and were not objected to by counsel for the respondent, on the basis of the risk to the appellant, if the orders were not made. That risk arose out of the assistance to law enforcement authorities to which I have referred, assistance which I was told had continued after the proceedings before the learned Magistrate had concluded. The affidavit of the appellant dated 29 September 2005, filed in these proceedings, in my view attests to this risk.

5 It is necessary, in determining applications of the sort referred to, to weigh the interests of the public in open justice with the interest of offenders in cases such as this one. I note the recent review of the general principles in Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28(S). The importance of public access to judicial

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decisions of the sort involved in this case is reinforced by Sentencing Act 1995 (WA) s 8(5), on making the fact and extent of any reduction of sentence for the undertaking to provide assistance to law enforcement authorities explicit "in open court". I return to this provision later in my reasons. As counsel for the respondent reminded me, I need to satisfy myself, both of the need for any order, and that any order made is no wider than is required.

6 In my view, the need for the orders emerges from the matter put to me concerning the risks to the appellant that currently exist. I have concluded that the interests I have identified are appropriately balanced in the orders I have made. This decision, and any further decision of mine, will make explicit and public my review of the matters of the assistance undertaken to be provided in this case, as well as the considerations relevant to any reduction of sentence because of such assistance. To the extent any further proceedings in this matter require, application may be made, as my order suggests, to provide additional public access to these proceedings, being to aspects of those proceedings not subsumed in my decision or decisions.

7 In the balance of my decision, I begin by indicating the nature of the charges the appellant faced on which he was sentenced to various terms of imprisonment, and the sentences which he received, on his pleas of guilty. I then consider each of the grounds of appeal in turn.

The appellant's convictions and sentences

8 The appellant was before the Magistrate on 37 complaints relating to events over various dates from 30 April 2004 to 8 March 2005. The complaints related to charges of stealing, attempting to steal, receiving stolen property, gaining a benefit by fraudulent means, obtaining property by fraudulent means, driving without a licence, and driving at a speed above the applicable limit. There was material before the learned Magistrate to indicate this offending, at least as to the property offences, which were the bulk of the offences complained of, was the result of the breakdown of a relationship of the appellant's, which caused him to relapse into a heroin habit, which in turn the property offences were meant to support.

9 There were a number of hearings, in relation to different groups of these charges. These hearings occurred on 23 February, 18 and 23 March, and 1 April 2005, culminating in the hearing on 2 May 2005 at which, on the accused's pleas of guilty to all charges, the learned Magistrate sentenced him on all of them.

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10 Sentences on 17 of the charges were fines, plus costs, compensation, return or restitution, without any other order. No appeal has been taken against any of those sentences.

11 Sentences on the remaining 20 charges were to terms of immediate imprisonment, without eligibility for parole. These sentences ranged from six months to 12 months, and in most cases were to be served concurrently. The effect of the sentences overall was imprisonment for a total term of 24 months. This appeal is taken against those sentences.

This appeal

12 On 26 July 2005 the appellant was granted leave to appeal against the sentences of imprisonment, on three grounds, as amended. The three grounds were:

"1. The Learned Magistrate failed to take into account the co-operation of the Appellant with the police in sentencing the Appellant.

2. The Learned Magistrate failed to take into account the period of remand custody the Appellant had prior to the sentencing date and failed to backdate the sentence when it was appropriate to do so.

3. The Learned Magistrate erred in failing to make a parole eligibility order in relation to the sentence of imprisonment imposed."

13 Particulars were provided of ground number 3. I return to those particulars below.

14 I deal with the grounds in the numbered order. I deal with the first at much greater length than the other two, because of the focus upon the first ground in the argument before me, and the concessions made with respect to the others. This requires me to go into some detail as to the basis to and background for the first ground, and then the relevant legal principles and their application.

Ground 1 - Failure to take co-operation with police into account - the basis and the background

15 The appellant's submissions before me were, in essence, that, notwithstanding the learned Magistrate had before him uncontradicted information indicating the appellant had undertaken to provide assistance

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to law enforcement authorities, and had provided assistance of some value, and indeed the learned Magistrate had accepted this, the learned Magistrate had refused to consider reducing the appellant's sentence because of that assistance. The learned Magistrate had so proceeded because of his insistence on particular written documentation of the matter. This was an error in his approach to the consideration of the matter.

16 To understand this submission, I must set out in some detail the history of this aspect of the proceedings before the learned Magistrate.

17 At the hearing before the learned Magistrate on 18 March 2005, the first at which the appellant appears to have been represented by counsel, his counsel made submissions as to sentence on the charges then before the court. Counsel referred to the way his client had "absolutely fully co-operated with the police and has pleaded guilty at the very first opportunity" (18 March 2005, t/s 5). I will return to the pleas of guilty later in these reasons. For now, I note no other form of co-operation was referred to by counsel.

18 Following these submissions, and some remarks by the learned Magistrate indicating that a sentence of imprisonment was likely on at least some of the charges, counsel for the appellant indicated the prosecutor wished to say something. The prosecutor then said this (t/s 7):

"PROSECUTOR: Your Worship, it's not my job to provide mitigation, however, your Worship, in relation to the matters that are present in court, I have had instruction from the case officers in relation to the numerous matters that are present in court and I have been asked to express to your Worship their view, in relation to the defendant, in that he has been extremely co-operative throughout this investigation.

In fact, he has assisted them greatly in cleaning quite a few headaches up in a very short time, with his co-operative matter, and they've been - - they've actually asked me this morning before court opened - - I - - that their views should be expressed to your Worship before you should pass sentence, your Worship."

19 On the face of those remarks, it is not altogether clear whether the reference in the second paragraph, to "cleaning quite a few headaches up", is to co-operation with the police on the appellant's own offending, or in

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relation to other matters. If it was the latter, this would have been the first such reference.

20 Counsel for the appellant before me (who was not counsel for the appellant at any of the hearings before the learned Magistrate) put to me the matter was indeed a reference to co-operation in other respects.

21 For this purpose, I was referred to submissions of counsel for the appellant at the next hearing before the learned Magistrate, that on 23 March 2005. Counsel for the appellant, Mr Strbac (it is not clear if Mr Strbac was counsel for the appellant on the previous occasion), indicated that on the previous occasion "we were probably cryptic". Mr Strbac went on to refer to his client's provision of information "that helped solve quite a few open matters", and to the fact his client had also "signed up to be a - for lack of a better word - informant for the police if he's let out" (23 March 2005, t/s 2). I also note Mr Strbac's application at the commencement of the hearing, immediately prior to these remarks, that the hearing be in closed court, which the learned Magistrate granted.

22 Mr Strbac also referred to information his client had provided that had enabled a person to be charged with "possession of intent to sell and supply of amphetamines, and they had almost 40 grams" (t/s 2). Reference was then made to the risk the appellant faced in prison from the conduct referred to, and the suggestion was made, that sentencing be deferred for three to four months, and the appellant put on bail, to avoid such a risk, and to permit him to be of further use to the police.

23 Following Mr Strbac's remarks, the learned Magistrate called on the prosecuting police officer to address him. It appears from the transcript of this hearing that the prosecuting officer was not the prosecutor present at the previous hearing. This is because the prosecuting officer at this hearing referred to the fact "I've only recently just had these matters put on my desk to come across during lunch" (t/s 3). The prosecuting officer went on to say this (t/s 3):

" ... So I haven't had occasion to really go through them and understand them too much, but to get a letter, so to speak, through the court in relation to his sentencing, pursuant to the help he gives us, of course, we would need some time for that to occur and for results to happen. So, if you are minded towards that, the extended period of bail would be worthwhile from a police perspective."

24 The learned Magistrate replied by saying (t/s 3):

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"HIS HONOUR: I mean, I -- I'm thinking that if the police want to provide a letter from the Assistant Commissioner for Crime, or any other senior officer, with regards to this matter, it should be done officially in a letter."

25 It became evident from the later remarks of the learned Magistrate the letter sought was for the purposes of "discounting" any term of imprisonment, as he would "not entertain bail" (t/s 4).

26 Counsel for the appellant, Mr Strbac, put to the learned Magistrate that detectives dealing with the appellant were prepared to come to court. However, the learned Magistrate replied (t/s 5):

"HIS HONOUR: Even that's not sufficient, Mr Strbac. To have it put on a proper basis, it has to be a letter that's signed by the Assistant Commissioner of Crime, or the Deputy Commissioner. It has to be placed before the court before actually coming to some arrangement with regards to discounting any penalty that I impose upon him by a considerable amount. That's what the usual basis is."

27 The learned Magistrate adjourned the matter until 1 April 2005, to permit the documentation to be gathered.

28 At the next hearing, on 1 April 2005, at a hearing that was again closed, the prosecutor indicated that the prosecution had been unable to obtain the letter sought, but that a detective who was "the one in close contact" with the appellant was willing to give evidence and advice as to the procedural methods in obtaining the letter (t/s 2). After the learned Magistrate reiterated his intention not to proceed to sentence without a document from "the Assistant Commissioner for Crime, or the Deputy Commissioner, or somebody of that rank" (t/s 2), he permitted a person, identified in the transcript as "male speaker", to address him. I was informed that this person was the detective that the prosecution had referred to. This is supported by what the transcript (t/s 3) indicates the person said, which, together with the learned Magistrate's response, was as follows:

"MALE SPEAKER: My understanding is that - - well I'm not the - - either of the two officers that register [the appellant], I am closely involved. I am the charging arresting officer on several matters that he appears before you in relation to. I have spoken to the two officer [sic] who did attend [the prison] and speak to [the appellant], when he did become registered. Their

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advice to me is that, obviously, the letter has to go through the chain of command, and at this point in time we would envisage that it would at least be another 1 to 2 weeks before we were able to obtain that information.

The - - the difficulty that poses us at the moment, I guess, is that in order to be provided with a letter we need to have received information that does lead to a - - to a significant arrest, which would warrant - - warrant the letter. Obviously, if [the appellant] remained in custody, it is very difficult for us to get any further results.

HIS HONOUR: Well, it's a catch 22. He's not going anywhere until I get the letter."

29 I note that this exchange had been preceded by counsel for the appellant, again Mr Strbac, stating to the learned Magistrate as follows (t/s 2):

"MR STRBAC: My - - my understanding, your Worship, is - - and I'm [sic] might be corrected by the detective, is that in - - in relation to these matters that the - - that they are results driven, and it's, at the moment, as I mentioned on the last occasion, the information [the appellant] provided led to a, I presume, arrest of a person in possession of 40 grams of amphetamines.

Now, it is a - - it is on those - - and it is hoped that if he was released, he would be able to provide a further and more useful information to the police force. However, the - - perhaps, your Worship, it would be the best if Mr - - if the Detective were to - - "

30 The detective, it will be noted, does not address these matters, but equally does not indicate he wished to correct or otherwise qualify what Mr Strbac had said.

31 I further note that, following a discussion of available dates for a further hearing to permit the gathering of the documentation the learned Magistrate required, the prosecutor and the learned Magistrate had this exchange (t/s 5):

"PROSECUTOR: My understanding it's the standard procedure to go through district officer and then across to our

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superintendent in charge of prosecuting. It's just that the rank doesn't normally go up that hight [sic].

HIS HONOUR: Well every - - every one that I've ever seen has come from an assistant commissioner."

32 At the next hearing, the commencement of which was again closed, on 2 May 2005, the prosecutor reported that the "case officer" had told the prosecutor "they attempted to get a letter, but they were unsuccessful as far as obtaining one and at this stage it would appear that there won't be one forthcoming" (2 May 2005, t/s 2).

33 Counsel for the appellant (it is not apparent whether or not this was again Mr Strbac) then indicated to the learned Magistrate that counsel was content to have sentencing proceed, and made brief sentencing submissions in addition to those made at previous hearings. Those submissions, including the learned Magistrate's immediate response, were as follows (t/s 2 - 3):

"COUNSEL: In that case your Worship, I suggest [the appellant] should be sentenced today. I can only reiterate what I've said on previous occasions, sir, that is that the pre-sentence report - - is a very positive pre-sentence report. This offending occurred in a relatively short period of time after the break-up in a relationship and [the appellant's] relapsing in drug use.

He's been subject to a Drug Court before that he's completed very successfully and a pre-sentence order that he's completed successfully. He's pleaded guilty at the very first opportunity. He's fully co-operated with the police and your Worship is aware that at least that a level of investigating officers they were prepared to have him - - well, the prosecutions were happy for him to be on the outside in order to help him further with their inquiries. He has helped already to solve - - to solve a number of cases that's been said on the last occasion.

I understand your Worship's position and the position is that these offences warrant a sentence of imprisonment. I would submit that his co-operation and his conduct since his arrest should be taken into account, also the time that he's spent in custody, or that any sentence that your Worship wishes to impose should be back-dated and I believe it's the 23rd of January - - February, sorry, 23rd of February.

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HIS WORSHIP: Right.

COUNSEL: And that any sentence should not be a crushing one and it should - - it should take into account overall the circumstances of [the appellant]."

34 The learned Magistrate, in the course of his sentencing remarks, said this (sentencing remarks, t/s 3 - 4):

"I might also comment, with regards to the question of the officers who had conduct of the case, with regards to the question of you being released with a reduced penalty for your co-operation with the police. I have no doubt that you have co-operated with the police, that has been accepted by the prosecutor on a prior occasion.

However, there was nothing with regards to any further inquiries that were made from the level of management within the police service that has afforded you a necessary letter with regards to any reduction of your penalty.

I am quite surprised, I might say, that officer [sic] of the lower levels who were involved in your arrest should, in fact, without consultation with more senior officers, have embarked upon that course with respect to you. If you have information that would assist the police, well, it's a matter for you whether or not you wish to give it to them, but that is not something that I have to take into account at this particular time. As I've said, I have structured the penalties with regards to these charges which, in my view, are minimal."

35 It is clear from these sentencing remarks from the learned Stipendiary Magistrate that he did not make any reduction because the offender had assisted, or undertaken to assist, law enforcement authorities. I note that the learned Magistrate was a very experienced sentencing officer, and I also note the Sentencing Act, s 8(5), to which I have previously made reference, and which runs as follows:

"If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court."

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No statement of the sort referred to in that sub-section was made here, and indeed the learned Magistrate appears to have indicated he was making no reduction, as he did not have the documentation he had called for. I return below to that aspect of the matter.

Ground 1: Failure to take co-operation with police into account - the relevant principles and their application

36 The authorities establish that offenders who show "genuine remorse" and provide information which leads to the conviction of accomplices or the recovery of property should receive a significant reduction in the sentence otherwise imposed: Lievense v The Queen, unreported; CCA SCt of WA; Library No 7175; 24 June 1988 (at 5). There is also authority that the public interest in encouraging offenders "to supply information to authorities that will assist them to bring others to justice" and "to give evidence" against them is such that the "appropriate reward" should be granted "whatever the offender's motive might be in giving it, be it genuine remorse (or contrition) or simply self-interest" (R v Cartwright [1989] 17 NSWLR 243 at 252, per Hunt and Badgery-Parker JJ, quoted with apparent approval in Barany v The Queen [2000] WASCA 240, at [16], per Parker J, Kennedy ACJ and Wallwork J agreeing).

37 Two rationales have been given for this position (Lievense, supra, at 5):

"One rationale for this is that it encourages persons to come forward with relevant information and discourages 'honour among thieves': R v James and Sharman (1913) 9 Cr App R 142. Another aspect of the matter is that the encouragement of those who give information leading to the recovery of property and the conviction of other offenders, including accomplices is of great value to the police: cf R v Lowe (1977) 60 Cr App R 122; R v Davies and Gorman (1978) 68 Cr App R 319; R v Sinfield (1981) 3 Cr App R 258; R v Ellis (1968) NSWLR 603; Burns v R, unreported; CCA 24th May 1988 (SCt Library 7141). It is made clear in all of these cases that there is no hard and fast rule as to the amount by which a sentence should be discounted or reduced in a case such as this. Each case must depend upon its own circumstances."

38 It will be apparent that these rationales are capable of different operation, as where the information provided turns out to be of no assistance. In that case, it is established in this jurisdiction that (Barany, supra, at [23] per Parker J):

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"In my view this brief reference to authority is enough to confirm that regard may properly be had for sentencing purposes, inter alia, to the value and benefit to the investigating authorities of the information and assistance provided by an accused in cases such as this, but that is only one of a number of relevant considerations. Even where the information and assistance in fact proves to be of no assistance, the provisions of that assistance, at least if fully and frankly provided, and also the degree of risk arising to the accused because of the assistance provided, will also be relevant considerations."

39 However, while it is clear that there is this "public interest objective of encouraging others to provide real assistance to investigating authorities" (Barany, at [26] per Parker J), the authorities also indicate that three further points at least need to be borne in mind.

40 One, as the immediately preceding quotation indicates, is that the co-operation should be genuine, at least in the sense that the "information which he gives must be such as could significantly assist the authorities" (Cartwright, above, at 253, per Hunt and Badgery-Parker JJ, quoted with apparent approval in Barany at [16] per Parker J, emphasis in the original in Cartwright).

41 The second point that needs to be borne in mind is that, as was said in R v Gallagher (1991) 23 NSWLR 220, at 232, per Gleeson CJ, Meagher JA concurring (also quoted with apparent approval in Barany, at [20] per Parker J):

"The court must be astute to ensure that it is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it."

(The emphasis is Parker J's.)

42 The third point, also from Gallagher, supra, at 232, per Gleeson CJ (also quoted, with apparent approval, in Barany above at [22], per Parker J), is that:

"Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. If sentencing

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principles are capable of producing an outcome of that kind, then that calls into question their legitimacy."

43 All three of these points appear to be of significance in this case, where the learned Magistrate had before him only the (uncontradicted) submissions of counsel for the appellant, and statements from the prosecutor on 18 March 2005 about what certain "case officers" had said to the prosecutor, and from the charging arresting officer about what the officers who had spoken to the appellant had indicated when he became a registered informant, as well as the fact of him having become a registered informant, all as reported to the charging arresting officer. There was no indication as to the nature of the information the appellant had supplied (other than that, on the uncontradicted assertion of counsel for the appellant, it had led to the arrest of a person on a charge of possession of an illicit drug with intent to supply, and helped to clear up a range of unspecified matters), or had undertaken to supply. Nor was there information before the learned Magistrate as to what other benefits were expected to result in the future.

44 There was indeed less information before the learned Magistrate in this case than the information before the sentencing Judge, and the New South Wales Court of Criminal Appeal, in Gallagher, supra (see 222 - 223, per Gleeson CJ). The body of information in Gallagher was characterised (at 233, per Gleeson CJ) as "inadequate for the purpose of forming an appropriate judgment as to the degree of leniency that should be extended to the appellant on account of that assistance".

45 That is, it is not enough a person has provided assistance, or undertaken to provide assistance, to law enforcement authorities. So much would seem to emerge from a consideration of the Sentencing Act 1995, s 8(5), in any event. I am indeed satisfied that the learned Magistrate found there had been assistance as well as an undertaking to provide it in this case, and there were bases for such a finding. However, as I have said, the authorities I have referred to indicate that is not enough.

46 At the same time, I consider the learned Magistrate was in error in proceeding as he did in insisting on receiving documentation from "either the Assistant Commissioner for Crime, or the Deputy Commissioner, or somebody of that rank" (1 April 2005, t/s 10), quoted above, before he would consider reducing the appellant's sentence on account of assistance he had provided to law enforcement authorities. There is nothing in the authorities to which my attention was drawn, or which I have been able to find, requiring documentation of that sort, or any sort, for such a purpose.

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For example, it might be appropriate, in a case such as this one, for the sentencing Judge to review the terms of any undertaking to provide assistance, and to hear from the officers to whom the appellant spoke about how forthcoming they found the appellant, and the nature of the information he had provided, as well as their evaluation of its extent and its likely utility. I have noted the information before the sentencing Judge in R v Phan (2001) 126 A Crim R 257 (SCt NSW, Greg-James J), on which the experienced sentencing Judge in that case was able to reduce the sentence otherwise applicable.

47 Counsel for the respondent put to me that the learned Magistrate should be seen to be indicating, if somewhat obliquely, that he lacked sufficient information on which he could act consistently with the applicable principles in this area. This would justify giving no reduction in this case.

48 However, I cannot so interpret the learned Magistrate's remarks, made repeatedly from the hearing of 23 March 2005 onwards, as I have indicated in some detail. The learned Magistrate has not indicated what sort of information he expected the relevant documentation for which he stipulated to contain, and refused to allow for alternative ways, including alternative documentary ways, in which information might be provided to him.

49 It follows I conclude that the learned Magistrate erred in his approach to the matter of the account he should take (if any) of the assistance the appellant had provided, and undertaken to provide, to the police. To this extent I would uphold the first ground of appeal.

50 Counsel for the respondent urged me, if such were my view, to note the reference in Gallagher (supra) at 232, as quoted in Barany (supra) at [20], to the need to bear in mind the "ultimate sentence" imposed in this case. He submitted that, applying Criminal Appeals Act 2004 (WA), s 14(2), no "substantial miscarriage of justice" was involved here. This was given the offender's mature years, the scale of his offending while on bail, and his significant criminal record. Any further reduction in the ultimate sentence of 2 years would be an "affront to community standards" within that reference in Gallagher.

51 I disagree. While the sentence may indeed appear to be on the more lenient side, I do not consider it to be so low, in light of the appellant's other circumstances, including his pleas of guilty which I reach later, that further reduction, to take proper account of his assistance to law

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enforcement authorities, would be such an "affront". Nor do I consider that no "substantial miscarriage of justice" would be done in leaving the sentence as it is, without affording a proper opportunity to the parties to address the matter of the appellant's assistance to law enforcement of authorities, an opportunity which the learned Magistrate's approach below precluded.

52 At the hearing before me, both counsel indicated that, if that were my conclusion, I should move to re-sentence the accused, with what information I had. That information would be the material before the learned Magistrate as indicated in the transcript. I have identified by quotation from the transcript what that information appears to be. I presume that it would also include the material in the affidavit of the appellant to which I have previously made reference, dated 29 September 2005. That affidavit confirms his registration as an informant, his provision of assistance in relation to a "drug supplier" and the person from whom he had received certain stolen property, and his undertaking to provide information in the future, in relation to which he gives an instance of recent provision of information.

53 However, I consider that it would not be satisfactory to re-sentence the appellant on the information I have referred to. I have already indicated that, on the authority of Gallagher, there was insufficient information before the learned Magistrate on which to form an appropriate judgment as to the degree of leniency (if any) that should be extended to the appellant. While the affidavit of the appellant adds information of the further provision of assistance, this does not have the features which would enable the court to evaluate the quality of the assistance provided and to be provided. The importance of the court being in a position to evaluate such quality is clear from Gallagher and my review of the relevant principles above.

54 This then raises the question of the appropriate course to follow. In Gallagher it was indicated that the matter should be relisted for further evidence in argument before the Court of Criminal Appeal on the question of the sentencing on the relevant offences (Gallagher, at 233, per Gleeson CJ, Meagher JA agreeing; Hunt J agreeing with the order). The alternative would be to remit the matter to the learned Magistrate for reconsideration in light of these reasons (and the further matters below). If such a remission were to occur, it would seem to me to be highly desirable that the same sentencing officer preside. However, I was told that this officer might not be available for that purpose. In either case, of a further hearing before this Court, or in remission, it would be open to

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the parties, it seems to me, to provide evidence of the assistance provided and results obtained since the sentencing hearing on 2 May 2005.

55 In the circumstances, I would quash the sentences of imprisonment and order that this matter be relisted before me for further evidence and argument about the appropriate reduction (if any) for assistance the appellant had provided to the date of that further hearing, as well as undertaken to provide, to law enforcement authorities.

56 I turn now to the remaining grounds of appeal.

Ground 2: Failure to backdate the sentence

57 This ground can be shortly dealt with. The appellant was remanded in custody on 23 February 2005. At the sentencing on 2 May 2005, then counsel for the appellant submitted that the sentence should be backdated to that date (t/s 3, previously quoted). The learned Magistrate did not backdate the sentence, however, and indeed made no reference to the matter in his remarks, other than to reply to counsel's submission "Right" (t/s 3, also already quoted).

58 As in Rafferty v The Queen [2002] WASCA 312, at [38] and [39], it would appear that the learned Magistrate failed to exercise his discretion not to give credit for the reason or reasons he should have assigned (see Sentencing Act 1995, s 87). As in that case, counsel for the respondent in this appeal did not suggest there was any reason not to give credit, and I consider that credit should indeed have been given.

59 Thus, I would uphold this ground of appeal also. Any sentence of imprisonment imposed on the appellant should be backdated to 23 February 2005. I return at the end of these reasons to the question whether sentences of imprisonment should be imposed in this case.

Ground 3: Failure to make a parole eligibility order

60 There were three particulars of this ground in the Amended Grounds of Appeal on which leave to appeal was granted. Those particulars were as follows:

"(i) The Learned Magistrate erred in law by stating that the Sentencing Act specifically states that it should be more difficult to get parole.

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(ii) The Learned Magistrate erred in law by stating that the Sentencing Act provides criteria, which are required for a parole order to be made.

(iii) The Learned Magistrate failed to take into account relevant factors in relation to considering whether or not to make a parole order such as rehabilitation and that the Appellant had never been sentenced to imprisonment before."

61 Before the learned Magistrate, then counsel for the appellant did not make, on the material before me, any submission as to the making of a parole eligibility order, should sentences of immediate imprisonment be determined to be appropriate. There was, however, a pre-sentence report before the learned Magistrate indicating the appellant was an "appropriate candidate" for such an order.

62 The learned Magistrate, as I have previously indicated, did not make a parole eligibility order in this case. In relation to the matter, he said this in his sentencing remarks (2 May 2005, t/s 3):

"Now then, what I have to do then is look at the question of whether or not I should make you eligible for parole. The reasons of the Sentencing Act, of course, make it - - or should make it more difficult for people to get parole.

You have, as I've said, a considerable history with regards to your dishonest behaviour, and you did, over this period of time, as I've said repeatedly, obtained valuable property from business premises and, of course, citizens who were not involved in any particular business at that time, you used their property, cheque books and their identification to enable you to obtain the heroin, with respect to your addiction.

As I've said, the Sentencing Act specifically states that it should be more difficult to get parole, but, of course - - providing of course the criteria are met. If they are, then parole is given, but if they're not, of course - - it depends upon the serious nature of the offences and also, in my view, your previous history with regards to offences of dishonesty.

I'm of the view that I ought not to make you eligible for parole. I'm of the view that 2 years imprisonment in relation to these

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charges is a very minimal charge we've reached [sic] that sentence - - with respect to what you have done."

63 Before me, counsel for the respondent conceded that the Sentencing Act 1995, s 89 does not specifically state that it should be more difficult to get parole, and the learned Magistrate erred in describing the provision's effect in those terms. This goes to the first particularised form of error.

64 I agree. At most, the effect of the changes to the provision reflected in the current form of s 89(4) is to negative any bias in favour of parole, and to make any decision not to make a parole eligibility order, where the terms s 89(4) are met, "ordinarily" difficult to challenge: Austin v Grapes [2004] WASCA 102 at [25], per Simmonds J; and Messiha v Royce [2004] WASCA 290 at [15], per McKechnie J, Templeman and Miller JJ agreeing (source of quotation). Below, I consider whether the terms of s 89(4) were met in this case, as it would appear was the view of the learned Magistrate, as I will explain. However, I consider the learned Magistrate's characterisation of s 89 in the passage on which counsel for the respondent focused represented an error in principle, even if the characterisation was viewed as restricted to a statement of the effect of s 89(4). That is because that sub-section still leaves the discretion whether or not to grant parole "at large": Pickett v The State of Western Australia [2004] WASCA 291, at [7] per McKechnie J, Miller and McLure JJ agreeing.

65 I also agree, in the terms of the second particular of this ground, that the learned Magistrate erred to the extent he suggested in the quoted passage from his sentencing remarks that s 89 of the Sentencing Act 1995 provides criteria for the grant of parole. This, however, seems to me simply to be an aspect of the error described in the first particular.

66 In terms of the third particular, matters going to rehabilitation appear in the appellant's pre-sentence report, having to do with his determination to deal with his drug habit, which, as I have previously indicated, lay at the root of the bulk of the offending for which he was before the court, on material before the learned Magistrate. The learned Magistrate, as has been seen, referred to the report, although he did not refer to it in this connection. The appellant's criminal record, also before the court, showed no penalty of immediate imprisonment, although there was a prior sentence of six months, suspended for 12 months. The learned Magistrate referred to this record in connection with the Sentencing Act 1995, s 89(4), although he did not note this aspect of that record in this connection.

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67 In view of my conclusions on the first particular, it is not necessary for me to reach a conclusion on this one. However, I note Pickett, supra, at [10] per McLure J:

"On the question of failure to refer to relevant matters, a failure by a decision-maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered. In the absence of credible evidence to the contrary, it is to be assumed that the decision-maker has complied with all relevant duties and taken all relevant matters into account."

68 I am not convinced that there is evidence in this case that the learned Magistrate failed to take the matters referred to in the third particular into account. However, for the reasons I have previously indicated, it seems to me he failed to properly weigh them.

69 In submissions before me, counsel for the appellant also put it to me that the learned Magistrate was in error in not inviting submissions on whether or not to make a parole eligibility order. Counsel for the respondent did not object to this addition to the particulars, but did not make any submissions on the point. Again, in view of my conclusion on the first particular, it is not strictly necessary for me to reach a conclusion on this one. However, in view of the similarities between this case and Austin, supra, at [23] per Simmonds J, I consider that there is some merit in the submissions put to me in this respect.

70 It follows I would uphold this ground of appeal also.

71 I have considered whether a parole eligibility order ought to have been made in this case, on the assumption that sentences of immediate imprisonment would be appropriate here. I return to that assumption below.

72 The strongest factor in favour of making an order was that the appellant had never before been sentenced to a term of an immediate imprisonment: see Messiha, supra, at [18] per McKechnie J. In addition, while there was at best a qualified history in relation to prior supervisory orders, there was most recently some sign of improvement in the appellant's response to supervision, in his history with the Drug Court. This is qualified, however, by his having committed offences in January and February 2005 while on bail. There was also the conclusion in the pre-sentence report, that he was an "appropriate candidate" for a parole eligibility order. This conclusion appears particularly to take into account

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the appellant's indications of his intention, for family reasons, to turn his life around.

73 I also note the pre-sentence report's indications of the appellant's Drug Court history and the possibilities for him in the future to address his substance abuse, which is a matter relevant to making a parole eligibility order: Smoker v The Queen [2001] WASCA 388, at [19] per Parker J, Wallwork J and Olsson AUJ agreeing. While these were pressed on me as matters of considerable significance, I also note the qualified importance attached to possibilities of this sort in that authority: see Smoker at [20], per Parker J.

74 Against the matters I have just referred to, there was what, as the learned Magistrate correctly determined, was a significant criminal record, a determination he apparently made within s 89(4). The appellant's criminal record, before the learned Magistrate, shows convictions totalling a considerable number and spanning offences of traffic, fraud, false pretences, and possession of illicit drug types. There were also a breach of bail, breaches of two intensive supervision orders, and a breach of a suspended sentence order. The learned Magistrate also appears to have determined that those offences for which he imposed terms of imprisonment were of a "serious nature" for the purposes of the Sentencing Act 1995, s 89(4) (2 May 2005, t/s 3). However, without diminishing the significance of the total value of the property involved (over $40,000), the "brazen way in which the offences were committed" (t/s 2), or the impact on the businesses affected, none of the individual charges related to property worth more than $4500 and most of the individual property items were worth less than $2000. I do not consider that any of those offences considered individually were "serious" in the sense in Sentencing Act 1995, s 89(4). However, the cumulative community impact of the total offences involved was indeed significant and, it might be argued, was capable of engaging s 89(4)(a). However, counsel for the respondent, who did not contend that the offences were "serious" for the purposes of s 89(4), did not make any such argument.

75 The only other paragraph of s 89(4) that it seems to me could be said to be engaged is (d), by the history of the appellant's response to supervising orders. I earlier referred to that history, which I would describe as a poor one, but with some qualified signs of improvement recently.

76 Recognising that my discretion remains "at large" even if s 89(4) is engaged as I have described it, I consider, on a preliminary view, that a

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parole eligibility order should be made. However, I reach this conclusion without regard to the assistance the appellant provided, or has undertaken to provide, to the law enforcement authorities, a matter on which, as I have indicated, further evidence in argument would be appropriate. Such further evidence and argument may show that such assistance further strengthens the evidence as to the appellant's prospects for rehabilitation emerging from the pre-sentence report. This would seem to strengthen the case for a parole eligibility order.

Conclusion and order

77 I have concluded that all of the grounds of appeal have been made out, and that I should quash the sentences of imprisonment imposed on the appellant and re-sentence him.

78 As I have also indicated, however, that re-sentencing should take place after an opportunity has been given to the parties to put before me evidence and argument on what reduction (if any) should be made in any sentences otherwise applicable in this case for assistance provided and undertaken to be provided by the appellant to law enforcement authorities.

79 I should at this point indicate my preliminary view as to the sentences that should be imposed on the appellant on the offences in respect of which the appeal before me was made, subject to that further hearing, and the evidence and argument at it.

80 In view of the appellant's extensive criminal history, to which I have referred, and the breaches of supervisory order, to which I have also referred, as well as the offending in relation to which the learned Magistrate imposed terms of immediate imprisonment, and after allowing for the personal circumstances which led to the offending, the appellant's pleas of guilty and what material was before the learned Magistrate on his assistance to the authorities, I am of the preliminary view that terms of immediate imprisonment are called for in this case. A review of all of that material, and particularly breaches of the prior intensive supervision and suspended sentence orders, further indicates that, although there are indeed, as I have indicated, signs of improvement in response to supervision as indicated in the pre-sentence report, it would not be appropriate to suspend these sentences.

81 I should further indicate that it was not put to me any of the learned Magistrate's individual terms of imprisonment or their combination as he provided for it were outside the range of the sound exercise of discretion. In view of the amounts involved, and the other circumstances of offending

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to which the learned Magistrate referred, as well as the other circumstances of the case, I am of the preliminary view, particularly in view of the matters I reach next, that those sentences are the appropriate ones to apply, and they should be combined as the learned Magistrate did.

82 I noted the manner in which the learned Magistrate proceeded, of indicating a combined head sentence before the application of the transitional period provision in the Sentencing Act 1995 of 3-1/2 years, or 28 months after the application of that provision. The learned Magistrate accepted that the appellant had by pleading guilty as he did "reduced the court's time considerably", and further reduced the overall penalty of 28 months by four months, to 24. I have considered whether the pleas of guilty should, in the exercise of my discretion on the re-sentencing have a larger effect on the overall sentence. I note the usual discount for fast track pleas of guilty is in the range of 20 to 35 per cent (Myles v The Queen (1997) 17 WAR 518, at 521). However, no objection was taken before me to the learned Magistrate's conclusion on this account, and having considered the resultant overall sentence of 24 months (before any reduction for assistance to the law enforcement authorities), I have determined that the effect of those pleas is properly reflected in the overall sentencing disposition.

83 I would stress that the views I have been expressing in relation to the sentences the appellant should receive, as "preliminary" views, are so expressed because there will be the further hearing indicated. That hearing may produce information or argument that would qualify these views. I note in this regard the approach to sentencing, that of intuitive synthesis, which (subject to a provision like Sentencing Act 1995, s 8(5)) has been indicated to courts in this State as the one sentencing officers should use as their preferred approach: Chivers v The State of Western Australia [2005] WASCA 97.

84 I will hear from counsel as to the appropriate detailed orders to give effect to these conclusions.