Clements v Director of Public Prosecutions - [2025] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CLEMENTS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 222
CORAM:   SOLOMON J
HEARD:   9 APRIL 2025
DELIVERED          :   9 APRIL 2025
PUBLISHED           :   6 JUNE 2025
FILE NO/S:   SJA 1083 of 2024
BETWEEN:   DAMIEN WILLIAM CLEMENTS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1083 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE RIDLEY
File Number            :   FR 994/23 - FR 1002/23

Catchwords:

Criminal law - Sentencing - Appeal against sentence - No authority to drive - suspended (other than fines suspension) - Obscene act in public - Breach of totality principle - Express error of law - Magistrate failed to impose sentence on each offence - Failure to take account of guilty plea - Requirement to pronounce each sentence in court in the accused's presence - Whether periods of disqualification ordered under s 49(1) of the Road Traffic Act 1974 (WA) must be served cumulatively - Offender resentenced according to law

Legislation:

Criminal Appeals Act 2004 (WA), s 6(f), s 7
Criminal Code (WA), s 202(1)(a)
Misuse of Drugs Act 1981 (WA), s 6(2)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(b), s 49(3)(c)
Sentencing Act 1995 (WA), s 9AA(5)

Result:

Leave to appeal granted on ground one
Leave to appeal granted on ground two
Appeal allowed
Offender resentenced

Representation:

Counsel:

Appellant	:	Mr G Chin
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Challis v Davison [2008] WASC 198
Cooke v Ginby (unreported), WASC, Library No 90726, 22 December 1994)
Fennell v Somerville [2009] WASC 214
H v State of Western Australia [2006] WASCA 53
Hayter v Thomson [2020] WASC 194
La Macchi v Minister for Primary Industries and Energy (1992) 110 ALR 201
Matthews v Whalley [2010] WASC 165
Mustac v Medical Board of Western Australia [2007] WASCA 128
Samuels v The State of Western Australia [2005] WASCA 193
Sheiner v Roberts [2009] WASC 281
Stone v State of Western Australia [2010] WASCA 80
Whitby v Williams (1987) 5 MVR 268

SOLOMON J:

This is an application for leave to appeal against a sentence of imprisonment totalling two years and three months. The matter was heard on 9 April 2025. It resulted in the appellant's sentence being set aside. The appellant was therefore required to be resentenced. Resentencing was required in respect of the term of imprisonment and the period of disqualification from holding or obtaining a driver's license.
These reasons up to [51] were delivered extemporaneously on 9 April 2025 and have been edited from the transcript. The reasons delivered on 9 April 2025 dealt with the grounds of appeal. In respect of resentencing, the reasons and remarks on 9 April 2025 related only to the resentencing of the appellant for a term of immediate imprisonment. In relation to the resentencing for the period of disqualification, the parties requested the opportunity to file further submissions. Following the filing of those further submissions, the matter was relisted on 6 June 2025 for reasons to be delivered in respect of the period of disqualification, and for the pronouncement of the appellant's resentencing, both for the term of imprisonment and for the period of disqualification.

Background

On 2 July 2024, in the Magistrates Court at Perth, the appellant, Mr Clements, entered a plea of guilty to 11 charges. He was sentenced to an immediate term of imprisonment by the learned magistrate for a total period of two years and three months, for nine of those 11 charges. That period of two years and three months was ordered to be cumulative on a four-year sentence imposed by the District Court, which Mr Clements was already serving.[1]
[1] ts The State of Western Australia v Clements, District Court of Western Australia, 27 May 2024, 16 (ts District Court).
Mr Clements seeks leave to appeal and if leave is granted, to appeal against the sentence of imprisonment of two years and three months. The 11 offences to which Mr Clements pleaded guilty included one count of possession of a prohibited drug under s 6(2) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act) and one count of driving without authority - which occurred on 29 December 2022 - contrary to s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA) (Road Traffic Act). Those two convictions are not directly the concern of this appeal, because this application concerns only those convictions in respect of which Mr Clements received a prison sentence. The learned magistrate dealt with those two offences by the imposition of fines.
The remaining nine charges in respect of which the prison sentence was imposed, and which are the subject of this appeal, comprise five further charges of driving without authority[2] and four charges of obscene conduct.[3]
[2] Road Traffic Act 1974 (WA), s 49(1)(a), (3)(c).
[3] Criminal Code (WA), s 202(1)(a).
The material facts for the remaining nine charges were read out by the prosecution in the Magistrates Court on the day of sentence, as set out from [8] - [16] below. These offences related to events occurring on four separate days.

25 January 2023

The appellant's conduct on 25 January 2023 was described in the following terms:
At about 1 pm on 25 January 2023, the accused drove into the car park of Woolworths, Mount Pleasant, located at 37 to 39 Reynolds Road, Mount Pleasant. The accused parked his vehicle in the bay next to the victim, who had walked out of Woolworths and was placing her shopping into the boot of her vehicle. The accused remained sitting in the driver's seat of his vehicle as the victim began reversing her vehicle out of the parking bay, and who observed the accused sitting with his stomach exposed. The victim further observed that the accused's pants were around his thighs and his shirt was tucked midchest, the accused rubbing his flaccid penis with his right hand. Whilst rubbing his penis, the accused was looking at the victim and smiling. The victim continued reversing out of the parking bay and took a photograph of the accused's vehicle.[4]
[4] Transcript, Western Australia Police v Clements, Perth Magistrates Court, 2 July 2024, 4 - 5.
For this conduct the appellant was charged with one count of no authority to drive - suspended (other than fines suspension) pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act and one count of doing an obscene act in public pursuant to s 202(1)(a) of the Criminal Code (WA) (Criminal Code).

29 January 2023

The appellant's conduct on 29 January 2023 was described as follows:
At 6.45 pm on 29 January 2023, the accused was driving along May Street in East Fremantle. The accused drove his vehicle towards the victim and pulled over to the side of the road beside her as she was walking her dog along May Road. The accused said, 'Do you know where the shops are'. The victim told the accused that the closest shops were in Melville. The accused began to speak to the victim, stepped closer to her. The victim heard the accused say to her, 'Yes, you want to touch it, you want to suck it'. At the time, the victim observed that the accused was naked from the waist down and was tugging and rubbing on his penis which was visible. The accused continued asking the victim to suck it. The victim said, 'Are you serious' and the accused drove off in his vehicle.[5]
[5] ts 5.
For this conduct the appellant was charged with one count of no authority to drive - suspended (other than fines suspension) pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act and one count of doing an obscene act in public pursuant to s 202(1)(a) of the Criminal Code.

31 January 2023

The appellant's conduct on 31 January 2023 was described as follows:
At about 5 pm on 31 January 2023, the accused was on Fourth Avenue in Applecross. The accused drove his vehicle towards the victim and her one year old grandson, pulled over to the side of the road beside her and asked her for directions to the supermarket. The victim provided directions, however the accused stated he could not hear her and asked her to come closer. As the victim approached, she saw the accused had removed his erect penis from his pants and was masturbating whilst staring at her. The accused continued this for approximately five seconds before speeding away.[6]
[6] ts 5 - 6.
For this conduct the appellant was charged with one count of no authority to drive - suspended (other than fines suspension) pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act and one count of doing an obscene act in public pursuant to s 202(1)(a) of the Criminal Code.
Later that day, the appellant committed further offences:
At 7.55 pm on 31 January 2023, the accused was on Melville Beach Road in Applecross. The accused drove his vehicle towards the victim and pulled over to the side of the road beside her. The accused stared at the victim with his tongue out. As the victim looked over at the accused, she saw he had his erect penis exposed and was masturbating while staring at her. The victim shouted 'eff off' which caused the accused to drive away from the area.[7]
[7] ts 6.
For this conduct the appellant was charged with one count of no authority to drive - suspended (other than fines suspension) pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act and one count of doing an obscene act in public pursuant to s 202(1)(a) of the Criminal Code.

3 February 2023

The appellant's conduct on 3 February 2023 was described as follows:
At 2.30 pm, 3 February 2023, the appellant drove a BMW on Helm Street in Mount Pleasant and parked at Canning Auto Lodge in Applecross. He was stopped by police and it was ascertained that he has never held a West Australian driver's license, and was disqualified from driving by the Perth Magistrates Court.[8]
[8] ts 4.
This resulted in the appellant being charged with one count of no authority to drive - suspended (other than fines suspension) pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act.

Sentencing remarks

Mr Clements was represented by counsel at a brief hearing before the Magistrates Court in which, as I have already observed, he pleaded guilty to all charges. The learned magistrate gave brief reasons as follows:
So Mr Clements, in relation to the possession of cannabis, there's no mitigation on your record. An indicated plea was back in November. I will take it as an early plea. 10 grams, not the lowest that we see, but not a significant quantity. It's properly dealt with by way of fine. I'm imposing a fine of $700, costs of $137. There's an order for destruction of the cannabis.
In relation to the driving offences, as I say, 29 December sits on its own. It's the driving only. Your last offence was February and April of 2022, so there had been some gap. These are all third offences, but there's no other offending on the - relevant to the driving on 29 December. Had the matter come alone and, as a third offense [sic], without the cluster, I would properly deal with it by way of fine, and so I'm giving you the benefit of the doubt in relation to that matter and dealing with it by way of fine, imposing a fine of $1200, costs of $264.30 and a nine month licence disqualification.
Obscene acts, on 29 January and the 5 pm on 31 January. Calculating those, it's a two year, three month term of imprisonment. So, as I say, I have taken totality into account by reducing the no authority to drive, and I've taken it into account on the sentences on the obscene acts, and I'm not satisfied that anything less than I have imposed would properly reflect the seriousness of the conduct in all of the circumstances.
It would be and is cumulative in relation to the four years, but of course that was separate offending. Cumulation is appropriate because this is separate offending and different offending than that, and so I am satisfied that it properly reflects the criminality of your conduct. So the start date will be today. It's cumulative live on your existing sentence and you will be eligible for parole. So, as I say, it's a total of two years and three months in relation to those matters.
In relation to each of those driving matters, I'm also going to impose the minimum disqualification period of nine months, which will be cumulative, again, because it's separate offending on each of those occasions. So, it will be a significant period of time before you're able to obtain your licence once you are released.[9]
[9] ts 8.
The brief reasons are difficult, in some respects, to understand. Having dealt with the convictions for which a fine was imposed, the learned magistrate turned to the remaining nine offences in respect of which she resolved to impose a custodial sentence. As is apparent from the passage extracted from the transcript, her Honour began by referring to the obscene act on 29 January 2023 and the first obscene act of 31 January 2023, that is, the one that was committed at 5.00 pm.[10] Her Honour said nothing about the other two offences of an obscene act. Both counsel before me today suggested that her Honour was referring to the former two offences (of the four obscene act offences), because they were more serious and were more targeted to a particular victim. That may well be so. Be that as it may, her Honour made no reference at all to the two remaining charges of obscene acts nor to the remaining five charges of driving without authority. As is apparent from the transcript, her Honour nevertheless concluded:
Calculating those, it's a two-year three-month term of imprisonment.[11]
[10] ts 8.
[11] ts 8.
The difficulty with that is, as I have said, that there is no reference at all to the other two charges of doing obscene acts nor to any of the driving without authority charges where a term of imprisonment was imposed.
Her Honour then went on to say that she had taken totality into account by reducing the sentences imposed in relation to the authority to drive charges and that she had taken this into account on the sentences for the obscene acts. It is difficult to understand what her Honour intended by that. There is no reference to her Honour having taken totality into account in the authority to drive charges because there is no reference to the length of sentence in respect of the no authority to drive charges. Indeed, there is no reference to them at all in respect of the sentence of imprisonment. Be that as it may, her Honour concluded that anything less than the two years and three months would not properly reflect the seriousness of the conduct.
Her Honour then went on to consider cumulation. The passage in which her Honour considers the issue of concurrency or cumulation appears to be directed to cumulation in respect of the four-year sentence imposed by the District Court, which Mr Clements was then serving. On the face of the transcript, it does not appear that her Honour expressly considered the issue of concurrency or cumulation in respect of the individual offences for which she was then imposing sentences of imprisonment. Her Honour concluded by saying she would impose a period of nine months' disqualification for each of the driving without authority offences.
The prosecution notice produced to the court set out the individual sentences of imprisonment in respect of each offence. That document indicates that a sentence of three months' imprisonment, each cumulative, was imposed for each of the driving without authority offences. Four-month sentences were imposed for the two, it appears, more serious obscene act offences, and two months for each of the other obscene act offences. Each was said to be cumulative. That then gave a total of two years and three months imprisonment, which was then cumulative on the sentencing already imposed by the District Court.
It is plain that the learned magistrate did not allocate those sentences in open court or at least did not do so expressly. It is also not clear whether her Honour allocated sentences for each individual offence while in the courtroom or afterwards administratively. Either way, it is plain that sentencing in these proceedings was not a process in respect of which there was any articulation in court, or visibility as to how that process unfolded or what was actually done.

Appeal proceedings

Mr Clements appeals on three grounds in the following terms:[12]
[12] Appeal Notice, 27 November 2024, 2.
1.The learned magistrate erred in law by imposing a global sentence.
a.The learned magistrate failed to impose a sentence in respect of each offence.
b.The learned magistrate purported to complete the sentencing of the appellant administratively.
2.The learned magistrate erred in law by not taking into account the offender's plea of guilty.
3.The total effective sentence imposed by the learned magistrate infringed upon the first limb of the totality principle.
a.The cumulation of the sentences imposed for the driving offences resulted in a total effective sentence much higher than the usual type of sentence imposed.
b.The total effective sentence was not reduced to take into account the personal circumstances of the offender, the mitigating factors, and that the offender was serving a sentence of 4 years imprisonment.
The application for leave is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). Leave to appeal is required and must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding, meaning that the ground is required to have a rational and logical prospect of succeeding - in effect; that it has a real prospect of success. Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed. Further, as is well established, even if a ground of appeal might be decided in favour of the appellant, the court can dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13]

Preliminary issue

[13] Criminal Appeals Act 2004 (WA), s 9(3); Samuels v The State of Western Australia[2005] WASCA 193, see especially [60].

A preliminary issue might also be said to arise in relation to s 7 of the Criminal Appeals Act (WA) which provides for the right to appeal 'a decision'. The question relates to s 6(f) which provides that 'a decision' means 'a sentence imposed or order made, as a result of a conviction or acquittal'. The question is whether there was a 'decision' in circumstances where a global sentence was imposed.
That issue was dealt with by McGrath J in the decision of Hayter v Thomson [2020] WASC 194(Hayter) at [24] - [25]:
The contention of the appellant was that the magistrate had failed in her duty to act by not imposing a sentence in respect of each offence. Therefore, there was no decision under s 6(f) of the Criminal Appeals Act. Accordingly, the appropriate remedy was a review order under s 36 of the Magistrates Court Act requiring the matter to be returned to the summary jurisdiction for the magistrate to impose sentence on the appellant and thereby make a decision.
I am of the view that properly considered, her Honour did impose sentence on the appellant and thereby did make a decision as defined in terms of s 6(f) of the Criminal Appeals Act. Her Honour did sentence the appellant by imposing, in effect, a global penalty of 12 months' immediate imprisonment in respect of seven separate offences. I do not accept that her Honour failed to sentence the appellant. Rather, the issue raised on appeal is whether her Honour, by imposing a global sentence with respect to seven separate charges, erred in law. Therefore, an appeal lies under the Criminal Appeals Act in respect of the orders made by her Honour.

I respectfully adopt what McGrath J said. An appeal lies under the Criminal Appeals Act in respect of the sentence imposed by the magistrate.

Ground 1

I turn then to the grounds of appeal. Turning firstly to ground 1, the issue was dealt with squarely by McGrath J in the decision in Hayter, in very similar circumstances. McGrath J deals with those issues under ground 2, at [32] - [50]:
Her Honour erred in law by imposing a global sentence and thereby failed to impose a sentence in respect of each offence and further erred by purporting to sentence the appellant but not in his presence and in open court
Her Honour imposed a 12 month term of imprisonment stating:
But ultimately, given the quantity, given the nature of the dealing, where you sat in the hierarchy and taking all personal circumstances into account and most particularly, a lack of record and obviously a first time in custody, I've arrived at 12 months imprisonment in relation to these matters … I haven't broken those down. I will over the seven charges. I have dealt with it as a total sentence.
However, her Honour did not during the sentencing hearing specify the actual term of imprisonment to be imposed on each respective charge. I requested that copies of the Prosecution Notices and the Warrant of Commitment be obtained in order to determine, whether subsequent to the sentencing of the appellant, her Honour made entries on these documents.
The Prosecution Notice is defined by s 3 of the Criminal Procedure Act to mean the document that contains one or more charges, complies with s 23(2), and is lodged with a court of summary jurisdiction. The Prosecution Notice is the formal document that commences a prosecution in the summary court. Section 68 of the Criminal Procedure Act provides:
If a court determines a charge, or dismisses a charge for want of prosecution, it must record on the prosecution notice the determination or dismissal and any order it makes as a result of the determination or dismissal.
In relation to these charges, her Honour made entries on the Prosecution Notices in the following terms:
Imprisonment PH 1714/2018 1M CM Eligible for Parole: Yes; PH 1715/2018 1M CC Eligible for Parole: Yes; PH 1716/2018 2M CM Eligible for Parole: Yes; PH 40/2020 1M CC Eligible for Parole: Yes; PH 41/2020 3M CM Head Sentence: Yes Eligible for Parole: Yes; PH 42/2020 3M CM Eligible for Parole: Yes; PH 43/2020 3M CM Eligible for Parole: Yes Total term: 1 Y Eligible for Parole: Yes Sentence Start Date: 17/02/2020
Section 36 of the Sentencing Act 1995 (WA) provides that 'if a court imprisons an offender and does not suspend the term, it must issue a warrant of commitment accordingly.' The Warrant of Commitment is a warrant issued by a judicial officer subsequent to the imposition of sentence that authorises the chief executive officer under the Prisons Act 1981 (WA) to imprison the offender for the term stated on the warrant. The Warrant of Commitment states the date of sentence, the commencement date of sentence, the offences, and the respective sentences imposed on each offence. The Warrant of Commitment records the terms of imprisonment imposed on each respective charge; that is, the terms that were imposed in the courtroom at the time of sentencing the offender.
The Warrant of Commitment issued by her Honour, in part, records the respective sentences that were imposed:
The Warrant of Commitment and the entries on the Prosecution Notices are not means by which the Court passes sentence on the offender but rather should record the sentence that was imposed at the time of the pronouncement of the sentence in the courtroom
Section 171(2) of the Criminal Procedure Act requires all proceedings to be in open court unless that Act, or the rules of court or another written law provides otherwise.
Section 14(1) of the Sentencing Act provides that a court is not to sentence an offender unless the offender is personally present for the sentencing process:
14.Offender to be present for sentencing
(1)A court is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under section 14A.
(2)Despite subsection (1), a court may, in an offender's absence —
(a)    under Part 6 impose no sentence; or
(b)    under Part 8 impose a fine; or
(c)    under Part 8A impose a suspended fine,
and, in connection with such a sentence, may also make an order under Part 15, 16, or 17, or under another written law if that law does not require the offender to be present when such an order is made.
(3)Despite subsection (1), a court may sentence an offender in his or her absence if the offender is in custody and the proceedings, because of the offender's conduct, have been directed to proceed in the offender's absence.
(4)Despite subsection (2) or any other law that does not require an offender to be present when a sentence is imposed, a court may require an offender to appear personally to be sentenced.
The exceptions specified in sections 14(2) and (3) are not presently relevant. Her Honour failed to impose a sentence for each of the offences in the presence of the appellant and thereby erred in law.
Further, her Honour imposed a single term of imprisonment for the seven offences. Subject to limited exceptions, the Sentencing Act contemplates that a court will impose a sentence for each offence for which an offender is convicted. The only circumstance in which a court may impose a single sentence for two or more offences is set out in s 54 of the Sentencing Act. A single sentence of a fine is permitted by the Sentencing Act when a court sentences an offender for two or more offences that are founded on the same facts or form, or are part of, a series of offences of the same or similar kind. In all other circumstances, the court must impose sentence for each offence. Accordingly, it was necessary that her Honour impose a sentence in respect of each offence.
A judicial officer is not permitted to impose a global sentence and then after the offender is so sentenced administratively impose an appropriate sentence for each offence and then consider questions of cumulation and concurrency.
Section 88 of the Sentencing Act provides that an offender sentenced to one or more fixed terms is to serve the terms concurrently unless the court makes an order that the fixed term is to be served cumulatively on the other fixed term or that the fixed term is to be served partly concurrently with the other fixed term.
There are very good reasons why the Sentencing Act requires that the judicial officer impose a sentence in respect of each offence. A global term of imprisonment disguises possible error. In Pearce v The Queen the proper approach to sentencing an offender for multiple offences was stated as follows:
To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
By imposing a global term of imprisonment it is not known to the appellant whether proper principle has been applied given that there is no transparency with respect to the length of the respective terms, nor how the principles of concurrency, cumulation and totality were applied.
The respondent contended that properly understood, the magistrate's error was not explaining the effect of the sentence in accordance with s 34(1) and s 34(2) of the Sentencing Act. Section 34 requires the judicial officer to, relevantly, explain the total effective sentence and the minimum period that the offender will serve in respect of the term, or if more than one term is imposed, the aggregate term.
I do not accept the respondent's submission. The error made by her Honour was not merely a failure to explain the effect of the sentence. Rather, her Honour erred by imposing a global sentence and thereby failed to impose a sentence in respect of each offence and further erred by purporting to sentence the appellant, but not in his presence and in open court (by recording on the Prosecution Notice and Warrant of Commitment specified terms and whether the terms were to be served concurrently or cumulatively).
Given that a global sentence was imposed for seven offences, I am satisfied that leave to appeal should be granted on ground two and that the ground has been made out. If a ground of appeal is decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. I find that there has been a substantial miscarriage of justice. Accordingly, the appeal must be allowed. I must therefore resentence the appellant. Given that the appeal is allowed on ground two I will not determine ground one. Leave is not granted on ground one. (Citations omitted)
The essential point that emerges from the Hayter decision is that the statutory regime requires all proceedings to be in open court, and that a court is not to sentence an offender unless the offender is personally present (other than in circumstances that are not presently material). It further emerges from Hayter that a prison sentence in respect of each offence must be pronounced and articulated in open court, and in the presence of the accused, unless certain circumstances apply, again, which are not presently material.
As McGrath J points out, the prosecution notice is not the means by which the court passes sentence on the offender. Rather, that is a document that administratively records the sentence that has been imposed with the pronouncement of the sentence in the courtroom. Whilst considerable latitude should be permitted in respect of understanding the remarks of a magistrate, in what is invariably a very pressured and busy atmosphere, it must be said that there is considerable difficulty in understanding, with reference to the sentencing remarks outlined at [17], precisely what her Honour intended.
For present purposes, it is clear, in my respectful view, that the learned magistrate did not impose sentences in respect of each of the offences in the manner required by the legislative regime, as explained in the Hayter decision. The respondent, sensibly, conceded that point and, on the basis of that ground alone, the sentence must be set aside. As an illustration of the difficulty presented by the magistrate's sentencing remarks, the absence of her articulation as to how she arrived at the total sentence means that it is not possible to understand, for example, how the issue of totality was considered.
Putting that to one side, as a matter of fundamental justice, it is important for there to be transparency in the allocation of a sentence for each offence, particularly where a custodial sentence is imposed. Whilst it is important to have an appreciation for the difficulties faced by magistrates in the critical role that they play, it is equally important for this court - where the opportunity presents - to undertake a more considered reflection of the circumstances and to correct outcomes where these requirements have not been met.

Ground 2

I turn then to the second ground. It is well established that the failure to refer to the effect of a guilty plea will ordinarily be an indication that a sentencing judge has overlooked it, unless it is otherwise obvious that the sentence reflects an appropriate reduction for the plea.[14] It should also be noted that the Sentencing Act 1995 (WA) (Sentencing Act) at s 9AA(5) provides:
If a court reduces a sentence because of a guilty plea, the court must state that fact and the extent of the reduction in open court.
[14] H v State of Western Australia [2006] WASCA 53 [10].
The magistrate's comments refer only to an early guilty plea in respect of the drug offence. There is no reference to the plea of guilty in relation to the other offences, which are the subject of this appeal. Nor is there anything in the sentence itself that would indicate that an appropriate discount or indeed any discount at all has been given for the plea of guilty. In those circumstances, I am satisfied that ground 2 is made out.
The respondent, in effect, also conceded ground 2, to its credit.

Ground 3

Turning to ground 3, the respondent accepted that the case might be characterised as borderline but stopped short of conceding ground 3. In the circumstances, it is unnecessary for me to reach a conclusion in relation to ground 3, although I am inclined to the view that a total prison sentence of two years and three months is, at least, on the very high side, if not a crushing sentence in the circumstances. Therefore, my provisional view is that it does contravene the first limb of the totality principle. But, as I say, it is not necessary for me to reach that conclusion because I am required, in any event, given grounds 1 and 2, to resentence Mr Clements.

Resentencing

I turn then to the resentencing. Again, the decision in Hayter has conveniently set out the well-known principles in relation to resentencing. They appear at [51] - [56] of that decision:
Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, 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, and any aggravating and mitigating factors.
Pursuant to s 6(4) of the Sentencing Act 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 that the protection of the community requires it.
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 offending, viewed in its entirety and having regard to the circumstances of the case including those referrable to the offender personally. 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 of the terms that are appropriate for each of the individual sentences. The total effective sentence must not be unreasonable or plainly unjust.
The sentencing options available are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.
The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial. 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. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.
The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. That is, all of the circumstances must be revisited. The judicial officer must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.

Maximum penalty

In relation to the obscene acts, the maximum penalty is imprisonment for three years for each offence. In relation to the driving without authority, the maximum penalty is imprisonment for not more than 18 months in respect of each offence and a mandatory licence disqualification for a period of not less than nine months in not more than three years.
In respect of comparative cases, I turn first to the issue of driving without authority. The appellant has very helpfully set out a number of authorities that deal with the range of penalties which have been given for multiple offences of driving without authority. Those authorities are Fennell v Somerville [2009] WASC 214, Challis v Davison [2008] WASC 198, Sheiner v Roberts [2009] WASC 281. I accept that broadly speaking it may be said that in respect of multiple offences for driving without authority, a total sentence in the range of six to 12 months may be appropriate.
In respect of the obscene acts, it is trite to observe that there is a very broad range or spectrum of conduct that might constitute an obscene act and it is not helpful or really possible to nominate or identify a range of prison terms or other form of penalty that would be appropriate. The appropriate sentence for an obscene act is extremely fact dependent.

Personal circumstances

I turn then to the personal circumstances of Mr Clements. I have read the pre-sentence report and psychological report prepared on 29 January 2024 for the District Court matter.[15] A particular mitigating feature is Mr Clements' youth. He was only 22 years old when he committed these offences. In addition, all the offences the subject of this appeal, were committed between 25 January 2023 and 3 February 2023. And all but one driving without authority offence were committed within a week between 25 January 2023 and 31 January 2023.
[15] Adult Community Corrections Pre-Sentence Report, 29 January 2024, 1; Psychological Report for Court, 29.
It was submitted on behalf of Mr Clements that he was intoxicated and abusing Xanax at the time, and that this caused him to be disinhibited in his behaviour.[16] I do not regard that as a strong mitigating factor, if it is one at all.
[16] ts Clements v The Director of Public Prosecutions, Supreme Court of Western Australia, 9 April 2025, 17.
Mr Clements has a criminal record, but it is relatively minor. Prior to the offending the subject of the District Court sentence in 2024, and referred to at [2], Mr Clements has never previously been sentenced to a term of imprisonment.
I take account of the matters raised in the pre-sentence report and psychological report regarding Mr Clements' pro-social relationships and difficulties that it appears he may have experienced in childhood.[17] I was also advised that before his imprisonment, Mr Clements had taken steps to address the issues he was encountering. This includes his mental health; he had been to see his GP and, was on a waiting list to see a psychologist.

Circumstances of the offence

[17] Adult Community Corrections Pre-Sentence Report, 29 January 2024, 3.

Taking account of all those matters, in my view, the issue of personal deterrence is a very important one for Mr Clements. He is young, he needs to understand the seriousness of what he did, and he needs to be deterred for his own benefit and the benefit of society and the community which we hope he will, in due course, rejoin. This conduct is abhorrent and harmful. The obscene acts, in at least two of the offences, targeted a victim who, it appears, was randomly chosen. That sort of conduct has the capacity to be deeply impactful and, indeed, terrifying to a victim. In particular, Mr Clements' conduct is harmful to himself because if it does not cease, it will ultimately destroy his life.

Resentencing the term of imprisonment

Taking account of all of those matters, I consider that the appropriate sentence should be as follows. In respect of the obscene acts, I intend to impose the same penalty that the learned magistrate did, that is; four months for each offence in respect of the conduct of 29 January 2023, and the 5.00 pm offence of 31 January 2023. I intend to impose two months each in respect of the other obscene acts, that is the conduct of 25 January 2025 and of 7.55 pm on 31 January 2025.
In respect of the unlawful driving, I will impose a period of two months' imprisonment in respect of each of the five instances of unlawful driving. Of those instances of unlawful driving, four occurred as part of the conduct that also comprised obscene acts and therefore I intend to order that those four be served concurrently with the 12 month total imposed for the obscene acts. The two month sentence in respect of the fifth charge of unlawful driving will be served cumulatively.
The effect of all of that is that there is a 12-month sentence for the four obscene acts, and a 10-month sentence for the five driving without authority charges, eight months of which - or, in other words, four of those charges - will be served concurrently, with the one remaining offence of 3 February 2023 to be served cumulatively. This means that the total effective sentence will be 14 months' imprisonment. In that term, I take account of Mr Clements’ early plea of guilty and afford him the full 25% discount.
I turn to consider whether that term should be suspended. I note that nobody suggested this should be the outcome, but in any event, I am satisfied that it is not appropriate to suspend the sentence in all the circumstances, and that an immediate term of imprisonment is the only appropriate sentencing disposition.
I then turn to consider the issue of totality, both in respect of the nine offences the subject of the total effective sentence, and in respect of the District Court sentence Mr Clements is currently serving, and whether the 14 months should be served cumulatively. I am satisfied that the 14 months should be served in addition to - that is, cumulatively - on the District Court sentence. I am further satisfied that the totality of the sentence appropriately reflects the criminal conduct, and it is not crushing.
I make an order that Mr Clements will be eligible for parole. I also observe that it is quite plain that Mr Clements, for his own benefit and for the society and community which we hope he will rejoin in due course, needs considerable treatment. I would urge those who have the capacity to ensure that Mr Clements receives that treatment, to ensure that such opportunities are forthcoming, and that Mr Clements is given whatever assistance he can to meet his treatment needs.

Licence disqualification

Before the learned magistrate, Mr Clements was ultimately convicted of six offences of driving without authority. The magistrate imposed the minimum period of disqualification of nine months in respect of each offence. These were ordered to be cumulative, making a total licence disqualification period of 54 months, that is, four and a half years.
For the purposes of resentencing, the parties were at odds as to whether the periods of disqualification were required to be cumulative or whether there was a discretion to order that some or all of the periods of disqualification could be served concurrently. The appellant filed written submissions on 30 April 2025, in support of the proposition that the terms of disqualification could be ordered concurrently. The respondent in its responsive submissions of 14 May 2025, submitted that the terms were required to be cumulative.
Section 49(1) of the Road Traffic Act provides that, in the circumstances of the appellant's offending, the offence of driving without authority attracts a minimum licence disqualification period of nine months.
Section 49(8) of the Road Traffic Act provides:
A period of disqualification ordered under subsection (1) is cumulative upon —
(a) any other period of disqualification to which the person may then be subject; or
(b) any period for which the operation of a driver's licence held by the person may currently be suspended.
The question that arises is whether s 49(8) requires each nine-month period to be served cumulatively or whether a discretion is preserved to order all, or some, of the periods to be served concurrently. That is a matter of the proper construction of the statutory provision.
The provision or its predecessors have been considered by various cases in this court. Earlier decisions concluded that the section did not require periods of disqualification to be served cumulatively in circumstances where more than one period of disqualification was imposed for separate offences[18] The court had the discretion to order that terms of disqualification could be served concurrently.
[18] Whitby v Williams (1987) 5 MVR 268; Cooke v Ginby (unreported), WASC, Library No 90726, 22 December 1994).
However, more recent decisions of the court have consistently held that the terms must be served cumulatively and that s 49(8) leaves no room to permit the periods of disqualification to be served concurrently. The earlier and the more recent decisions were all considered by Murray J in Matthews v Whalley[2010] WASC 165 (Matthews). Having reviewed the authorities, his Honour concluded:[19]
A period of disqualification of at least 9 months must be ordered when the court is required to do so under s 49(1) by the mandatory terms of par (c) of the statement of penalty in that subsection. That is an order which may not be made globally in relation to a number of different offences for which sentence is to be imposed on the same occasion, but it is an order which must be made in respect of each offence.
It matters not in my opinion, that having imposed sentences for a series of offences, the court then says, as his Honour the Chief Magistrate did on this occasion, that there would be orders of disqualification in respect of each of the matters before the court. The orders must necessarily be made in a formal sense in sequence, one after the other, in respect of the convictions to which they relate.
When one comes then to consider the effect of s 49(8) and the requirement for a period of disqualification to be cumulative, the subsection is clear. If it is an order of disqualification under s 49(8)(a) it must be cumulative upon any other period to which the accused is then subject. That must include a period of disqualification previously imposed, whether on a different earlier occasion or earlier upon the same occasion.
[19] Matthews[61] - [63].
As Murray J noted, the matter was also considered, albeit not finally decided, by the Court of Appeal. In Stone v State of Western Australia[2010] WASCA 80 (Stone), the Court of Appeal (McLure P, Owen JA) said:[20]
At first glance s 49(8)(b) seems to require that all terms of disqualification ordered at the same time (that is, for separate offences dealt with at the same court sitting) be served cumulatively. There is a conflict in the authorities on the meaning of this section. In Cooke v Ginby (1994) 21 MVR 351 Walsh J held that s 49(3) (which was not materially different from the current s 49(8)) permitted the imposition of concurrent periods of disqualification. In Nabhan v Wood [2009] WASC 66 Hasluck J came to the opposite view, although it must be said that his Honour seems to have felt constrained by other authorities that touched on this question.
While our tentative view is that s 49(8) requires the imposition of cumulative terms, it is neither necessary nor desirable to determine the matter in this appeal.
[20] Stone [2010] WASCA 80 [29] - [30].
The Court of Appeal went on to observe:[21]
We should say in passing that if and when the proper construction of s 49(8) arises squarely for determination, regard would need to be paid to s 105 of the Sentencing Act 1995 (WA). In case it should be thought that a construction which favours automatic accumulation of periods of disqualification is unduly harsh and could not represent the intention of the legislature, attention would also have to be directed at the potentially ameliorating effect of s 78 of the Road Traffic Act.
[21] Stone [31].
Two things may be observed in that regard. First, Murray J considered the impact of s 105 of the Sentencing Act in Matthews. Section 105 provides as follows:
105.Driver's licence disqualification
1)A court sentencing an offender for a motor vehicle offence may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's licence.
2)The term is concurrent with —
a.any other term for which the offender's driver's licence is or may be disqualified; or
b.any term for which the offender's driver's licence is or may be suspended,
unless the court orders that the term is to be cumulative on those terms.
….
4)This section does not affect —
a.the right or duty of a court to disqualify, under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, a person from holding or obtaining a driver's licence as defined in that section;
Murray J held that while s 105 provides a general power, s 105(4)(a) makes plain that s 105 does not qualify the ambit of the power of disqualification under the Road Traffic Act. Section 105 therefore cannot be applied to the interpretation of the provisions of the Road Traffic Act.[22] Murray J continued:[23]
[T]he purpose and effect of s 105(4)(a) of the Sentencing Act is to make it clear that s 49(8) of the Road Traffic Act is to be given its full force and effect to provide that the cumulative nature of the disqualification imposed under s 49, is not dependent upon the making of an order that the term of a disqualification shall take effect cumulatively.
[22] Matthews[47] - [48].
[23] Matthews [50].
Secondly, the Court of Appeal in Stone referred to the 'ameliorating effect' of s 78 of the Road Traffic Act. That observation was made in support of the Court of Appeal's tentative view regarding s 49(8), a view that was adopted by Murray J (and others). It should be observed that under s 20 of the Road Traffic Legislation Amendment Act2012 (WA) (Road Traffic Amendment), s 78 of the Road Traffic Act was deleted. However, as explained in the Explanatory Memorandum, the equivalent provision is now contained in Part 3 (s 24) of the Road Traffic (Authorisation to Drive) Act 2008 (WA).[24]
[24] Road Traffic Legislation Amendment Bill 2011, clause 20.
The court in Matthewshad the benefit of being able to reflect upon the conflicting authorities, including the comments of the Court of Appeal. The conclusion of Murray J was consistent not only with the tentative view of the Court of Appeal, but also with the conclusions of all the decisions that followed Cooke v Ginby.
In Mustac v Medical Board of Western Australia [2007] WASCA 128, Martin CJ (with whom Wheeler and Buss JJA agreed) considered the issue of judicial comity. The Chief Justice observed that judicial comity is a non-binding practice that may be described in terms expressed in La Macchi v Minister for Primary Industries and Energy in the manner:[25]
A judge of first instance will as matter of judicial comity usually follow the decision of another judge of first instance [of coordinate jurisdiction] unless convinced that the judgment was wrong.
[25] La Macchi v Minister for Primary Industries and Energy(1992) 110 ALR 201 [5].
I am not convinced that the conclusion of Murray J, and the tentative view of the Court of Appeal, are wrong. In the circumstances, I adopt the conclusion of this court in Matthews. Mr Clements must serve his periods of disqualification cumulatively.

Conclusion

Leave to appeal is granted on ground 1 and ground 2 and the appeal is allowed. I have determined that the order of the learned magistrate imposing a global term of imprisonment of two years and three months and the 45-month licence disqualification, in respect of the nine offences, should be set aside.
Mr Clements is resentenced as follows:
1.A term of immediate imprisonment of two months is imposed in respect of charge 999/23.
2.A term of immediate imprisonment of four months is imposed in respect of charge 1000/23.
3.A term of immediate imprisonment of four months is imposed in respect of charge 1001/23.
4.A term of immediate imprisonment of two months is imposed in respect of charge 1002/23.
5.A term of immediate imprisonment of two months is imposed in respect of charge 994/23.
6.A term of immediate imprisonment of two months is imposed in respect of charge 995/23.
7.A term of immediate imprisonment of two months is imposed in respect of charge 996/23.
8.A term of immediate imprisonment of two months is imposed in respect of charge 997/23.
9.A term of immediate imprisonment of two months is imposed in respect of charge 998/23.
10.A licence disqualification of nine months is imposed in respect of charge 994/23.
11.A licence disqualification of nine months is imposed in respect of charge 995/23.
12.A licence disqualification of nine months is imposed in respect of charge 996/23.
13.A licence disqualification of nine months is imposed in respect of charge 997/23.
14.A licence disqualification of nine months is imposed in respect of charge 998/23.
The terms of imprisonment in respect of charges 994/23, 999/23, 1000/23, 1001/23 and 1002/23 are to be served cumulatively. The terms of imprisonment in respect of charges 995/23, 996/23, 997/23 and 998/23 are to be served concurrently with the other terms of imprisonment. The total effective term of imprisonment, being 14 months, is to be served cumulatively on the District Court sentence Mr Clements is currently serving. The licence disqualification periods in respect of charges 994/23, 995/23, 996/23, 997/23 and 998/23 are to be served cumulatively.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Honourable Justice Solomon
6 JUNE 2025