Chirimumimba v Smrcek

[2018] WASC 302

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CHIRIMUMIMBA -v- SMRCEK [2018] WASC 302

CORAM:   MCGRATH J

HEARD:   27 SEPTEMBER 2018

DELIVERED          :   28 SEPTEMBER 2018

FILE NO/S:   SJA 1102 of 2018

BETWEEN:   RONALD CHIRIMUMIMBA

Appellant

AND

THOMAS SMRCEK

Respondent

ON APPEAL FROM:

For File No:   SJA 1102 of 2018

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R S HUSTON

File Number             :   PE 34795 of 2018; PE 34796 of 2018; PE 34797 of 2018; PE 34798 of 2018

Catchwords:

Criminal law - Sentencing - Appeal against immediate term of imprisonment - Burglary - Stealing a motor vehicle - Driving while disqualified - Voluntary disclosure of guilt - Express errors of law - Failure to backdate sentence - Imposition of a further penalty for offence arising from same evidence - No breach of totality principle - Sentence not manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 371A, s 378, s 401(2)(c)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(b)
Sentencing Act 1995 (WA), s 6, s 8(4), s 9AA, s 11, s 80(1)(b), s 87

Result:

Extension of time in which to appeal is granted
Leave to appeal is granted in respect of grounds one and two
Leave is refused on grounds three, four and five
The appeal is allowed
The sentence imposed by the magistrate on charge PE 34796/2018 is set aside and in lieu thereof no penalty is imposed
The sentences of immediate terms of imprisonment for charges PE 34795/2018, PE 34797/2018 and PE 34798/2018 are affirmed

Category:    B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms M M Yeung

Solicitors:

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

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

Bell v Carrier [2018] WASC 169

Burrows v The State of Western Australia [2014] WASCA 147

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Gable v Nardini [2010] WASC 321

Gangemi v The State of Western Australia [2014] WASCA 39

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

MJS v The State of Western Australia [2011] WASCA 112

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Narkle v Hamilton [2008] WASCA 31

Ridley v The State of Western Australia [2013] WASCA 45

Roffey v The State of Western Australia [2000] WASCA 246

Royer v The State of Western Australia [2009] WASCA 139

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Schriever v The State of Western Australia [2008] WASCA 133

Taylor v The State of Western Australia [2016] WASCA 38

MCGRATH J:

1. Mr Chirimumimba was charged with four offences, being one offence of burglary contrary to s 401(2)(c) of the Criminal Code (WA), one offence of stealing contrary to s 378 of the Criminal Code, one offence of stealing a motor vehicle contrary to s 371A of the Criminal Code, and one offence of no authority to drive contrary to the Road Traffic Act 1974 (WA). Mr Chirimumimba pleaded guilty at the first reasonable opportunity and was sentenced to a term of imprisonment. Mr Chirimumimba now seeks leave to appeal against the sentence that was imposed. Mr Chirimumimba contends that the magistrate made express errors of law at sentencing and further, imposed a sentence that was either manifestly excessive or breached the totality principle.

2. For the following reasons I have determined that there should be an extension of time in which to appeal,[1] that leave to appeal should be granted and that the appeal should be allowed. 

   [1] Appellant's Application for an Extension of time filed 8 August 2018; Affidavit of Ms Sinton affirmed 7 August 2018.

3. In these reasons for decision, I will consider the following:

   (a)The Magistrates Court proceedings.

   (b)The grounds of appeal.

   (c)An assessment of the merits of the appeal.

The Magistrates Court proceedings

1. The Prosecution Notices lodged 4 July 2018 plead four charges, being one offence of burglary contrary to s 401(2)(c) of the Criminal Code, one offence of stealing contrary to s 378 of the Criminal Code, one offence of stealing a motor vehicle contrary to s 371A of the Criminal Code, and one offence of no authority to drive contrary to the Road Traffic Act.[2] 

   [2] Prosecution Notices - charges PE 34795/2018 - PE 34798/2018.

2. On 5 July 2018, Mr Chirimumimba appeared before his Honour in the Magistrates Court.  Mr Chirimumimba was represented by a legal practitioner.  The magistrate read the charges to Mr Chirimumimba and he pleaded guilty to those charges.[3]

   [3] ts 2 - 3.

3. The facts, which were not disputed by Mr Chirimumimba, were read to the court in the following terms.[4]

   Between 12 am and 1 am, Wednesday, 4 July 2018, the accused attended 101 Brown Avenue in Morley, DVG Morley Hyundai is located.  The accused approached a glass window to the business with a brick and used it to create a hole in the glass.  He entered the premises through the glass window.  Unfortunately he suffered severe bleeding to his arm.  He was bleeding on the brick at the point of entering.  The accused removed three sets of car keys to the value of $1800.

   The accused existed the business.  At about 4.20 am on Wednesday, 4 July, the accused returned to the caryard, stole a vehicle from the yard.  At about 10.30 am, Wednesday, 4 July, the accused attended a police station in the stolen motor vehicle, which was captured on CCTV.  He presented at the front counter of the police station with bandaging to his left and right hands.  The accused was arrested in possession of the keys to the stolen motor vehicle.

   The vehicle, as I stated before, was parked outside the Mirrabooka Police Station.  Police searched the vehicle and located two other sets of keys that were stolen.  And further, the accused drove the Hyundai Tuscon registered number 1GOL‑711 in an easterly direction on Chesterfield Drive, Mirrabooka.  At the time, he was not authorised to drive that motor vehicle.  Never held a licence and was disqualified from holding or obtaining a drivers licence in the Perth Magistrates.  Those are the facts, your Honour.

   [4] ts 4 - 5.

4. Mr Chirimumimba was represented by counsel who delivered a plea in mitigation,[5] submitting that any term of imprisonment should be suspended.[6] 

   [5] ts 8 - 10.

   [6] ts 10.

5. The magistrate found that Mr Chirimumimba's offending was aggravated by his previous persistent disregard for the law.[7] 

   [7] ts 13.

6. The table below outlines the offences and the respective sentences imposed by the magistrate:

Charge No.	Offence	Maximum and Summary Penalties	Sentence Imposed
PE 34795/18	Burglary and commit offence s 401(2)(c) Criminal Code	14 years' imprisonment (maximum) 2 years' imprisonment and a fine of $24,000 (summary)	3 months' imprisonment, cumulative
PE 34796/18	Stealing s 378 Criminal Code	7 years' imprisonment (maximum) 2 years' imprisonment and a fine of $24,000 (summary)	$1,000 fine
PE 34797/18	Stealing a motor vehicle s 378A Criminal Code	7 years' imprisonment (maximum) 2 years' imprisonment and a fine of $24,000 (summary)	3 months' imprisonment, cumulative
PE 34798/18	No authority to drive - never held and disqualified from holding or obtaining a licence (subsequent offence) s 49(1)(a) & (3)(b) Road Traffic Act	A fine of not less than 20 PU or more than 80 PU, and 18 months' imprisonment with a mandatory licence disqualification for not less than 9 months and not more than 3 years (summary only)	6 months' imprisonment (head sentence) and 12 months' licence disqualification
Total Effective Sentence		12 months' immediate imprisonment to commence on 5 July 2018, with eligibility for parole

Appeal

1. The grounds of the appeal are in the following terms:

   1.The learned sentencing Magistrate erred in law in failing to backdate the appellant's sentence to 4 July 2018, the date of his arrest.

   2.The learned sentencing Magistrate erred in law in imposing a further penalty for the offence of stealing car keys (PE 34796/18) contrary to s 11 of the Sentencing Act 1995 (WA).

   3.The learned sentencing Magistrate erred in ordering that the terms of imprisonment imposed be served immediately when in all of the circumstances it was open to his Honour to suspend the terms of imprisonment imposed.

   4.The learned sentencing Magistrate erred in law in imposing a sentence that was of a length that was disproportionate to the appellant's offending conduct.

   5.The learned sentencing Magistrate erred in law in failing to take into account the applicant's voluntary disclosure of guilt.

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[8]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[9]

   [8] Criminal Appeals Act 2004, s 9(1).

   [9] Criminal Appeals Act 2004, s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[10]

   [10] Criminal Appeals Act 2004, s 9(2), Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).

4. The court may dismiss or allow the appeal, and may set aside the sentence and substitute it with the sentence that should have been imposed.[11] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

   [11] Criminal Appeals Act 2004, s 14.

5. Grounds one, two and five contend that the magistrate made express errors in sentencing. 

6. Grounds three and four contend that the sentence imposed was manifestly excessive or breached the totality principle, respectively.  The two grounds therefore both assert implied error. 

7. In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[12]

   [12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Assessment of the merits of the appeal

1. I will now consider each ground of appeal.

Ground one

1. By ground one, Mr Chirimumimba contends that the magistrate erred by failing to backdate the appellant's sentence to 4 July 2018, being his date of arrest.  The respondent has accepted that Mr Chirimumimba was arrested on 4 July 2018 and spent that day in custody until released the following day.

2. The court has a discretion as to whether to take into account time spent in custody.[13] The court may take that time into account by either reducing the term by an appropriate period or by ordering that the term it imposes be taken from the date when custody began or a later date that is not later than the date of the sentence.[14]  The manner in which the discretion is exercised will depend upon the individual circumstances of each case.[15]  A failure to give full credit for time spent in custody may, depending upon the circumstances, be unjust.[16]

   [13] Narkle v Hamilton [2008] WASCA 31 [40].

   [14] Sentencing Act, s 87.

   [15] Narkle v Hamilton, [40].

   [16] MJS v The State of Western Australia [2011] WASCA 112.

3. The respondent accepts that Mr Chirimumimba did spend one day in custody for which no credit was given.  The respondent further accepts that in the present case neither the prosecutor nor the appellant's counsel drew his Honour's attention to the fact that Mr Chirimumimba had spent one day in custody.  Understandably, his Honour's sentencing remarks do not refer to taking into account the one day that was spent in custody.

4. The respondent submits that ground one has been made out and that leave ought to be granted, the ground upheld and that the sentence should be ordered to commence on 4 July 2018.  I accept that that concession is properly made.  Accordingly, ground one is allowed.

Ground two

1. By ground two Mr Chirimumimba contends that his Honour erred in law in imposing a further penalty for the offence of stealing car keys,[17] contrary to s 11 of the Sentencing Act 1995 (WA). That section relevantly provides that if evidence establishes the commission of an offence by a person and that same evidence is also evidence of another offence, then the person may be charged and convicted but is not to be sentenced for both offences.

   [17] Charge PE 34796/18.

2. The respondent accepts the contention that the stealing offence is wholly incorporated in the burglary charge[18] and that therefore the magistrate should not have sentenced Mr Chirimumimba for that offence. Accordingly, the respondent concedes that ground two has been made out and that leave to appeal ought to be granted, the ground upheld and that the fine be set aside with no penalty imposed.  I accept that that concession is properly made.  Therefore, ground two has been made out.

Ground five

[18] Charge PE 34795/18.

1. By ground five, Mr Chirimumimba contends that he voluntarily disclosed his offending to the police.  The respondent accepts that, having committed the offences in the early hours of the morning of 4 July 2018, Mr Chirimumimba drove the vehicle to a police station at approximately 10.30 am that same morning.  The magistrate did not refer to this mitigating factor in determining the length of the terms of imprisonment.  His Honour did refer, when considering the question of suspending the term of imprisonment, 'to the mitigating factors that I've been alerted to'.[19]  However, his Honour did not, at that stage, particularise those factors.

   [19] ts 13.

2. The voluntary disclosure of offending is a mitigating factor.  The voluntary disclosure of an offence which may remain undetected but for the offender's disclosure and cooperation with the police can be a significant mitigating factor.[20]

   [20] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] ‑ [13] (McHugh J); Schriever v The State of Western Australia [2008] WASCA 133 [22] (Steytler P).

3. By s 8(4) of the Sentencing Act, where a court reduces the sentence that it would otherwise have imposed upon an offender because of a mitigating factor, the court must state that fact in open court. The magistrate did not comply with s 8(4) of the Sentencing Act. However, a failure to comply with s 8(4) is not an appellable error. Non‑compliance with s 8(4) does not invalidate the sentence.[21]

   [21] Royer v The State of Western Australia [2009] WASCA 139 [59] (Owen JA).

4. The facts that were read to the court included reference to the voluntary disclosure.[22]  The magistrate received detailed submissions from defence counsel that comprised, in part, statements that 'shortly after that [the appellant] has attended the police station himself voluntarily, and he has handed himself in.  This is within half a day…' and further '[A]s soon as he sobered up and realised that he has actually broken in somewhere and stolen things, he has handed himself in and returned all the property.'[23]  Counsel for Mr Chirimumimba concluded his plea in mitigation by stating that 'he has insight, as indicated by him handing himself in so quickly and taking full responsibility'.[24]

   [22] ts 5.

   [23] ts 9.

   [24] ts 10.

5. In determining whether to impose an immediate term of imprisonment his Honour did not refer to any mitigating factors other than the early plea of guilty, for which his Honour afforded a 25% discount. His Honour, whilst not specifically citing the voluntary disclosure as a mitigating factor, did consider that mitigating factor but only when considering whether to suspend the term of imprisonment by making reference to 'the mitigating factors that I've been alerted to'.[25]

   [25] ts 13.

6. I am not persuaded that the magistrate did not take into account the voluntary disclosure of the offence as a mitigating factor and, on account of that factor, reduce the individual sentences he would otherwise have imposed.  Also, I am not persuaded that the magistrate did not take the voluntary disclosure of the offences into account when deciding his orders for accumulation.

Grounds three and four

1. It is appropriate to consider both grounds three and four together.  Properly understood, ground three asserts the same implied error, being that the failure to suspend the terms of imprisonment breached the totality principle.

2. By ground three, Mr Chirimumimba contends that his Honour erred by imposing a manifestly excessive sentence, in that the term of imprisonment should have been suspended.  A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. 

3. That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[26] 

   [26] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

4. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[27] 

   [27] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

5. The claim of manifest excess is pleaded in the ground of appeal contending that the terms of imprisonment should have been suspended.  Therefore, ground three properly understood forms part of ground four, being that the totality principle was breached both by the length of the term and the type of sentence.

6. By ground four, Mr Chirimumimba contends that the total effective sentence was excessive in that the sentencing magistrate failed to have sufficient regard to the totality principle.  A claim that the totality principle is breached asserts implied error.  Mr Chirimumimba relies upon the first limb of the totality principle.

7. The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.  The total effective sentence must not be unreasonable or plainly unjust. 

8. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[28]

   [28] Roffey v The State of Western Australia [2007] WASCA 246 [24].

9. I now turn to consider the factors in determining whether the length of the term of imprisonment or the failure to suspend the terms of imprisonment breached the totality principle.

10. The offending occurred on the same date.  At the time Mr Chirimumimba drove the stolen car he was not authorised to drive a motor vehicle, having never held a licence and having been disqualified from holding or obtaining a drivers licence from 26 June 2018 until 26 September 2018.  There was persistence in Mr Chirimumimba's conduct.  This was not spur of the moment offending but rather involved Mr Chirimumimba committing the offence of burglary and then returning to steal the vehicle.  He did so by driving the vehicle when not holding a drivers licence.

1. Turning to factors personal to Mr Chirimumimba.  It is clear that he presented as a 35‑year‑old who has a history of offending.  At the date of sentencing, Mr Chirimumimba had been convicted of ten offences of driving whilst unauthorised to do so between 2009 and 2018, five convictions for driving whilst disqualified, three convictions for driving whilst under fine suspension and two convictions for unauthorised driving by a learner.  The magistrate observed that for convictions four and five, of driving whilst not authorised, Mr Chirimumimba was sentenced to a term of imprisonment.[29]  Mr Chirimumimba was convicted of driving whilst under fines suspension only 8 days prior to the present offending.

   [29] ts 12.

2. Mr Chirimumimba has other convictions including common assault, aggravated common assault, possession of prohibited drugs, attempted stealing of a motor vehicle and breach of bail.  In the 12 month period prior to sentencing Mr Chirimumimba had committed over 15 offences.  The magistrate correctly remarked to Mr Chirimumimba at sentencing that 'having had the opportunities you've had to gain from the orders that have been made previously and including the sentencing outcomes previously, the disappointing feature of your behaviour is that you just continue to offend'.[30]

   [30] ts 13.

3. I have outlined the maximum penalties for the offences in the table above. 

4. The paramount sentencing considerations for burglary offending are personal and general deterrence.[31] 

   [31] Ridley v The State of Western Australia [2013] WASCA 45 [13].

5. Given the disparate circumstances in which such offending may occur and the variation in personal circumstances of offenders there is no tariff for offence of burglary.[32]  The respondent referred to a number of sentencing authorities: Taylor v The State of Western Australia;[33] Burrows v The State of Western Australia;[34] Ridley v The State of Western Australia;[35] Bell v Carrier.[36]  I have considered these sentencing authorities and the cases referred to therein.  Sentences for the offence of burglary have 'firmed up' in recent years to reflect the prevalence of the offence and considerations of general deterrence.[37]

   [32] Gangemi v The State of Western Australia [2014] WASCA 39 [19].

   [33] Taylor v The State of Western Australia [2016] WASCA 38 [29].

   [34] Burrows v The State of Western Australia [2014] WASCA 147 [35].

   [35] Ridley v The State of Western Australia [2013] WASCA 45.

   [36] Bell v Carrier [2018] WASC 169.

   [37] Bell v Carrier.

6. In respect of the offence contrary to s 49 of the Road Traffic Act, the penalties provided are designed to be both punitive and to secure public safety.  A paramount sentencing consideration is personal deterrence to ensure the safety of the public.[38] 

   [38] Gable v Nardini [2010] WASC 321 [33].

7. The mitigating factors were Mr Chirimumimba's plea of guilty, for which a 25% discount was afforded under s 9AA of the Sentencing Act,[39] his voluntary disclosure of the offending and his remorse.  The written submissions on behalf of Mr Chirimumimba appropriately acknowledge that the extent of the mitigation afforded by the voluntary disclosure may be more limited in this case, given that Mr Chirimumimba left blood at the crime scene after cutting himself.  Given that Mr Chirimumimba has previously been convicted of offences there is very high probability that the DNA would have identified him as the offender.[40]  However, appropriate weight must be given to the factor in mitigation.  Certainly, the voluntary disclosure facilitated justice and reveals that he is remorseful and has accepted responsibility for his offending.

   [39] ts 11.

   [40] Appellant's Written Outline of Submissions [49] ‑ [51].

8. After careful reflection I do not consider that the sentence of 12 months' immediate imprisonment breaches the totality principle.  A sentence of 12 months' immediate imprisonment was well within the magistrate's discretion.  The sentence which is a most fair disposition is explicable, in part, by the magistrate taking into account the voluntary disclosure as a mitigatory factor.  The offending was serious.  In all the circumstances it was open to his Honour to determine that a suspended term of imprisonment would not provide adequate personal deterrence or adequate punishment having regard to the seriousness of the offending and the factors personal to Mr Chirimumimba.

Appeal Allowed

1. Accordingly, leave is granted in respect of grounds one and two.  Grounds three, four and five do not have a reasonable prospect of success.  Accordingly, leave is refused on grounds three, four and five.

2. The appeal is allowed.  Given that the appeal is allowed it is necessary to re‑sentence the appellant.

3. Where a sentencing magistrate's discretion has miscarried in respect of one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside and the sentencing discretion falls to be exercised afresh.[41]

   [41] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28].

4. It is necessary that the fine of $1,000 imposed on the stealing charge be set aside.  In lieu thereof, I make no order as to penalty.  I do so for the reason that Mr Chirimumimba has been sentenced to 3 months' immediate imprisonment for the burglary charge which encompasses the same evidence.

5. The sentences imposed on the other three charges, being a total effective term of immediate imprisonment of 12 months, are without error.  I have outlined above when considering grounds three and four my reasoning as to why the imposition of a 12 month term of immediate imprisonment did not breach the totality principle.  I do not consider that there has been a miscarriage of justice in respect of the length of that term nor that the term was ordered to be served immediately.  Therefore, the same sentences imposed by the magistrate on the three charges are affirmed.  I impose the same terms of imprisonment as the magistrate. 

6. However, I order that the term of imprisonment will be backdated to commence on 4 July 2018 to give full credit for the time that Mr Chirimumimba has spent in custody in respect of the charges.  Mr Chirimumimba remains eligible for parole.

7. Consequently, I make the following orders:

   (1)Extension of time in which to appeal is granted.

   (2)Leave to appeal is granted in respect of grounds one and two.

   (3)Leave is refused in respect of grounds three, four and five.

   (4)The appeal is allowed.

   (5)The sentence imposed by the magistrate on charge PE 34796/2018 (stealing contrary to s 378 of the Criminal Code) is set aside and in lieu thereof no penalty is imposed for that charge.

   (6)The sentences of immediate terms of imprisonment for charges PE 34795/2018, PE 34797/2018 and PE 34798/2018 are affirmed and imposed.

   (7)The sentence is backdated to commence on 4 July 2018.

   (8)The appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH

28 SEPTEMBER 2018