Cronin v Calder SM - [2017] WASC 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CRONIN -v- CALDER SM [2017] WASC 145

CORAM: CORBOY J

HEARD: 19 & 27 JANUARY 2017

DELIVERED : 30 MAY 2017

FILE NO/S: SJA 1004 of 2001

BETWEEN: SEAN JAMES CRONIN
Appellant
AND
CALDER SM
Respondent

FILE NO/S :SJA 1005 of 2001

BETWEEN :SEAN JAMES CRONIN
Appellant
AND
ALAN FOSTER
MARK WALTER DONNELLY
CRAIG ROBERT McLENNAN
JESS OLSEN
MICHAEL JOHN MAHONEY
Respondents

FILE NO/S :SJA 1035 of 2001

BETWEEN :SEAN JAMES CRONIN
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION AND FAMILY SUPPORT
Respondent

FILE NO/S :SJA 1061 of 2001

BETWEEN :SEAN JAMES CRONIN
Appellant
AND
GUY ROBERT GRANT
Respondent

ON APPEAL FROM:
For File No              :  SJA 1004 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CALDER SM
File No  :PE 42140 of 2000
For File No              :  SJA 1005 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CALDER SM
File No  :PE 51590 of 1998, PE 53620 of 1998, PE 53621 of 1998, PE 53622 of 1998, PE 53624 of 1998, PE 4290 of 1999, PE 4293 of 1999, PE 5744 of 1999, PE 5746 of 1999, PE 5747 of 1999, PE 5748 of 1999, PE 2577 of 2000
For File No              :  SJA 1035 of 2001
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :GORDON SM
File No  :CC 4044 of 2000
For File No              :  SJA 1061 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CULLEN SM
File No  :PE 611 of 2001

Catchwords:

Appeal - Single judge appeal - Children and Community Services Act 2004 (WA) - Protection order - Delay - Utility of appeal

Appeal - Single judge appeal - Dismissal for want of prosecution - Delay

Criminal law - Appeal against conviction and sentence - Delay - Utility of appeal where sentence no longer impacts time to be spent in custody

Criminal law - Appeal against conviction and sentence - Automatic cancellation of parole order - Calculation of time liable to be served as a consequence of cancellation

Practice and procedure - Governing legislation for parole orders made prior to the commencement of the Sentence Administration Act 1999 (WA)

Practice and procedure - Governing legislation for applications for leave to appeal under the Criminal Procedure (Summary) Act 1902 (WA) that were pending before the repeal of the Criminal Procedure (Summary) Act and the commencement of the Criminal Appeals Act 2004 (WA) - Applicable statutory test for such applications for leave to appeal

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA), s 40, s 50
Criminal Code (WA), s 697
Criminal Procedure (Summary) Act 1902 (WA), s 187, s 206A
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Justices Act 1902 (WA), s 41
Rules of the Supreme Court 1971 (WA), O 63 r 7, O 1 r 4A, O 1 r 4B
Sentence Administration Act 1995 (WA), s 71, s 73, s 86, s 87
Sentence Administration Act 1999 (WA), s 73
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 1999 (WA), s 18

Result:

Applications to dismiss appeals for want of prosecution granted
Appeals dismissed

Category: B

Representation:

SJA 1004 of 2001

Counsel:

Appellant: In person
Respondent: Mr B D Nelson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

SJA 1005 of 2001

Counsel:

Appellant: In person
Respondents : Mr B D Nelson

Solicitors:

Appellant: In person
Respondents : State Solicitor for Western Australia

SJA 1035 of 2001

Counsel:

Appellant: In person
Respondent: Mr B D Nelson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

SJA 1061 of 2001

Counsel:

Appellant: In person
Respondent: Mr B D Nelson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Armstrong v Reksmiss [2014] WASC 134
Bilos v State of Western Australia [2004] WASCA 94
Birkett v James [1978] AC 297
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gliosca v Ninyett (1992) 10 WAR 562
Hughes v Gales (Unreported, WASCA, Library No 950292, 8 June 1995)
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218
Lewandowski v Lovell (1994) 11 WAR 124
Lingard v Dearnley [2007] WASCA 82
Maxwell v Murphy (1957) 96 CLR 261
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v The Queen (1996) 90 A Crim R 126
Moore v Jack Brabham Holdings Pty Ltd (1986) 7 NSWLR 470
Nicholson v The Queen (Unreported, WASCA, Library No 980698, 7 December 1998)
R v Parenzee [2008] SASC 245; (2008) 101 SASR 469
Reilly v Devcon Australia Pty Ltd [2006] WASC 99
Roddan v Gwilliam [2005] WASCA 209
Roddan v The Queen [2005] WASCA 87
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stuart v Brown (1996) 17 WAR 525
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Windie v The State of Western Australia [2012] WASCA 61
CORBOY J:

The background to the appeals and respondents' applications

The appellant was convicted of numerous offences in the Court of Petty Sessions in October and December 2000 and March 2001. Appeals against conviction and sentence were commenced in 2001. The appeals were adjourned sine die in mid‑2001. It is convenient to refer to those appeals as the Adjourned Appeals.
The appellant also commenced an appeal in 2001 against a wardship order made in respect of his son by the Children's Court. He was granted an extension of time within which to appeal and leave to appeal in January 2002.
The appellant was released to parole in October 2001. However, his parole order was cancelled in March 2002 and a warrant for his arrest was issued. The appellant had left Western Australia by that time and no further steps were taken in the appeals.
The appellant was returned to custody in October 2015. The time that he was required to spend in custody was recalculated by the Sentencing Information Unit of the Department of Corrective Services to include the breach of parole days owing as a result of his breach by leaving the State. According to the Sentencing Information Unit, the appellant is required to serve 870 days commencing on 13 October 2015.
The appellant wrote to the Principal Registrar by letter dated 28 October 2015 stating that he wished to 'reignite' his appeals. The letter further stated that the appellant had left Western Australia in February‑March 2002 due to 'family issues'.
A hearing was held in March 2016 at which directions were made requiring the appellant to make an affidavit explaining why no step had been taken in the appeals since 2001/2002 and why he sought to revive the appeals. The appellant did not file that affidavit until September 2016. He made a further affidavit in October 2016.
The respondents applied for orders dismissing the appeals for want of prosecution following the March 2016 directions hearing. The applications were supported by affidavits made by Mr Joshua Berson and Mr Nathan Smith. Mr Berson is a solicitor employed in the Office of the State Solicitor for Western Australia. His affidavit provided a chronology of the proceedings in each appeal. Mr Smith is the Acting Manager of the Sentencing Information Unit. He undertook an audit of the sentences that had been imposed for offences committed by the appellant since 1988. The sentencing audit disclosed the effect of the sentences from which the appellant had appealed with the passage of time. The audit also disclosed the basis on which the breach of parole days currently being served by the appellant had been calculated.
I have concluded that the respondents' applications to dismiss the appeals for want of prosecution should be allowed and the appeals dismissed for the reasons that follow.

The appeals

SJA 1004/2001

SJA 1004/2001 is an appeal against conviction and sentence. The appellant was summarily convicted on 3 October 2000 of wilfully interrupting the proceedings of a sitting justice, contrary to s 41 of the Justices Act 1902 (WA). He was sentenced to 4 months imprisonment to be served immediately. He was not made eligible for parole.
The appellant applied for leave to appeal and for an extension of time within which to appeal by an application filed on 5 January 2001. Orders were made to obtain the hearing transcript and the appeal was adjourned at directions hearings held on 22 January, 5 February and 12 March 2001 to enable the appellant to obtain legal advice. The appellant was granted an extension of time within which to appeal at a further hearing held on 3 May 2001. It was also ordered that the appeal be heard on 17 May 2001 in conjunction with the appeal in SJA 1061/2001.
The appeal was adjourned sine die on 17 May 2001. The respondent was granted leave to apply to strike out the appeal for want of prosecution after three months. The appeal was further adjourned sine die at a directions hearing held on 28 August 2001.

SJA 1005/2001

SJA 1005/2001 is an appeal against conviction and sentence. The appellant was convicted of a number of complaints on 6 December 2000. He was sentenced to a total effective sentence of 27 months imprisonment to be served immediately.
The appellant filed an application for leave to appeal and for an extension of time within which to appeal on 5 January 2001. Orders were made for obtaining the hearing transcript and the appellant was granted an extension of time within which to appeal on 3 May 2001. The appeal was adjourned to 17 May 2001. The appeal was further adjourned sine die on that date with the respondent being granted leave to apply to strike out the appeal for want of prosecution after three months. The appeal was further adjourned sine die at the directions hearing held on 28 August 2001.

SJA 1035/2001

SJA 1035/2001 is the appeal from the wardship order made by the Children's Court. The order was made on 21 December 2000. The appellant applied for leave to appeal and for an extension of time within which to appeal by an application filed on 2 March 2001. The Associate's Record indicates that the appellant did not appear at the first directions hearing in the appeal and the application was adjourned at two further directions hearings. Eventually, Miller J (as his Honour then was) made orders on 17 January 2002 extending the time within which to appeal and amending the grounds of appeal. His Honour gave leave to appeal on the grounds as amended and made directions programming the appeal to a hearing.

SJA 1061/2001

SJA 1061/2001 is an appeal against conviction and sentence. The appellant was convicted on 22 March 2001 of a complaint that he had breached a restraining order. He was sentenced to 6 months imprisonment to be served concurrently with the term of imprisonment that he was then serving.
The appellant applied for leave to appeal and for an extension of time within which to appeal by an application filed on 30 April 2001. Leave to extend the time within which to appeal was granted at a directions hearing held on 3 May 2001. The appeal was adjourned to 17 May 2001. The appeal was further adjourned on that date with the respondent being granted leave to apply to strike out the appeal for want of prosecution after three months. The appeal was further adjourned sine die at the directions hearing held on 28 August 2001.

The adjournments in May and August 2001

The appeals that were listed for hearing on 17 May 2001 were adjourned at the request of the appellant. He wrote to the Principal Registrar on 26 July 2001 requesting an adjournment for reasons relating to discussions about the placement of his son being held between himself, his partner and the predecessor of the Department for Child Protection and Family Support. He requested that the appeals be listed sometime in August 2001.
As has been noted, the appeals were further adjourned in August 2001. The hearing on that occasion was taken to be a directions hearing. However, the appellant stated that he only wished to appeal against the severity of his sentences and not from his convictions (29 August 2001, ts 37 and ts 40). Templeman J granted leave to amend the names of the respondents to the appeals and otherwise adjourned the appeals sine die. The appellant was also given leave to file further transcript in respect of his conviction for breaching a restraining order.

The relevant principles

Which Act applies?

The Adjourned Appeals were commenced pursuant to s 184 of the Criminal Procedure (Summary) Act 1902 (WA) (formerly known as the Justices Act). The Criminal Procedure (Summary) Act (the CP(S) Act) was repealed by s 4 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) on 2 May 2005. Accordingly, there was an issue as to whether the provisions of the CP(S) Act continued to apply to the Adjourned Appeals or whether the appeals were to be conducted according to the provisions of the Criminal Appeals Act 2004 (WA) (CA Act). The CA Act and the Criminal Procedure Act 2004 (WA) commenced on the same day.
In Lingard v Dearnley [2007] WASCA 82, Buss JA (with whom McLure JA agreed on this point) held that the provisions of the CP(S) Act applied to an application for leave to appeal that was pending at the time of the repeal of that Act and the commencement of the CA Act. There were no relevant transitional provisions in the CA Act and s 206A of the CP(S) Act conferred a right on an applicant for leave to have the application heard and determined under that section in accordance with the provisions of s 187 of that Act.
Section 187 of the CP(S) Act provided that a judge shall grant leave to appeal unless it was considered that the appeal was frivolous or vexatious or that the grounds of appeal advanced did not disclose an arguable case. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 the Court of Appeal noted that the provisions of the CA Act with respect to granting leave set a 'higher threshold' than previously applied under s 187 of the CP(S) Act. That was because the CA Act required leave to be granted for each ground of appeal and the Act postulated a presumptive refusal of leave unless the court was satisfied that the ground had a reasonable prospect of succeeding. Section 187, on the other hand, required leave to be granted unless the court concluded that the appeal was frivolous, vexatious or that the grounds of appeal did not disclose an arguable case. The expression 'arguable case' has been held to mean a case that was not merely capable of being argued but one that was reasonably capable of being argued in the sense that it was an argument which had some prospect of success: Dempster v National Companies & Securities Commission (1993) 9 WAR 215 (Malcolm CJ, Walsh & Anderson JJ agreeing). The test specified by the Court of Appeal in Samuels was that the ground of appeal must have a reasonable prospect of success.
The conclusion that the CP(S) Act continued to apply to an application for leave to appeal pending at the time of the enactment of the CA Act rested on the proposition that s 206A of the CP(S) Act conferred a right on the applicant for leave. That right was preserved following the enactment of the CA Act.
However, the CA Act applies to any matter of procedure that relates to the appeals. That is because a party does not have a vested right in matters of procedure: Maxwell v Murphy (1957) 96 CLR 261 and see s 37 of the Interpretation Act 1984 (WA). Consequently, a party may have an accrued right to appeal from a decision of a lower court but they will not have a vested right in the procedure by which the appeal is to be determined. A statutory amendment to the procedure for prosecuting and determining an appeal will apply to appeals that were pending at the time of the amendment.
In my view, it follows that the power to consider the respondents' applications is to be determined on the basis that the CA Act applies to the extent that it is relevant. However, as will be explained, the court has an inherent power to dismiss an appeal from a decision of summary jurisdiction.
The merits of the appellant's proposed grounds of appeal are obviously relevant to the determination of the respondents' applications and to the question of whether he should be permitted to revive his appeals. Arguably, the appellant should be required to show more than that he can satisfy the requirement for leave given the extraordinary delay. However, I have kept in mind the test for leave, and that the test is that specified in s 187 of the CP(S) Act, when considering the merits of the appellant's proposed grounds of appeal.

Want of prosecution

The Court of Criminal Appeal dismissed an appeal for want of prosecution in Mickelberg v The Queen (1996) 90 A Crim R 126. The court noted that the application by the Crown to dismiss the appeal for want of prosecution was without precedent. Malcolm CJ (with whom Steytler J agreed), held that the court had power to dismiss a criminal appeal under s 697 of the Criminal Code (WA), read with O 63 r 7 of the Rules of the Supreme Court 1971 (WA).
Prior to its repeal on enactment of the CA Act, s 697 of the Criminal Code provided that the Court of Criminal Appeal might, among other things, 'exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters'. Malcolm CJ held that:
This provision, in my opinion, is sufficient to bring into play all of the powers of the Full Court in civil appeals, including the power to dismiss an appeal for want of prosecution under O 63 r 7 of the Rules of the Supreme Court 1971.
In my opinion also, these provisions equally bring into play the residual powers of the court in its inherent jurisdiction: Muto v Faul [1980] VR 26 at 27 and 31; Lewandowski v Lovell (1994) 11 WAR 124 at 137 and Hughes v Gales (1995) 14 WAR 434, in my judgment at 12, 26 (129).
His Honour further observed:
What then is the test to be applied? Counsel for the respondent has submitted that the test to be applied is that which would be applied in civil appeals; namely, the test which was most recently applied in the Full Court in Lewandowski v Lovell at 132 - 133 in the judgment of Murray J. His Honour referred to the decision of the House of Lords in Birkett v James [1978] AC 297 and applied the statement of the general principles applicable by Lord Diplock which was in the following terms (at 318):
'A power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party (129 - 130).'
In Nicholson v The Queen (Unreported, WASCA, Library No 980698, 7 December 1998), Kennedy J (with whom White & Scott JJ agreed) adopted the observations of Malcolm CJ in Mickelberg on the source of the court's power to strike out a criminal appeal for want of prosecution. The Court of Criminal Appeal subsequently exercised that power in Bilos v State of Western Australia [2004] WASCA 94 and Roddan v The Queen [2005] WASCA 87.

In Bilos, the Court of Criminal Appeal observed that:
An appeal or application for leave to appeal will only be struck out or dismissed for want of prosecution in a clear case, where it appears that the appellant has no intention of progressing the matter to a final hearing and determination, or where there are other reasons to suppose the matter is without merit and the appellant has had every opportunity to put it into a state where it might be heard and determined, particularly if issues of prejudice to another party or witnesses can be advanced [8].
I considered the power of the court to dismiss a single judge appeal for want of prosecution following the enactment of the CA Act in Armstrong v Reksmiss [2014] WASC 134. I noted that McKechnie J had determined an application to dismiss a single judge appeal in Reilly v Devcon Australia Pty Ltd [2006] WASC 99. His Honour dismissed the application, applying the principles stated by the Court of Appeal in Roddan v Gwilliam [2005] WASCA 209 and The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398. However, his Honour observed:
Clearly the delay is unexplained. The delay is significant, though measured against tardy litigation that has been excused in this court for one reason or another, is probably not inordinate. The respondent has not contributed to the delay.
This application is appropriate. The discretion to dismiss the appeal is enlivened by the appellant's continued failure without explanation to comply with [the order made for written submissions, a chronology and a list of authorities]. In the end two matters stand out as decisive. Both derive from this being a criminal prosecution. The defendant has been acquitted. The prosecution at trial is not simply the first step in a process that may include many appeals. It is a final decision. A party is entitled to the fruits of judgment and if an acquittal is put in issue by an appeal is entitled to a prompt resolution. A delay in the appeal without default by the respondent presumptively increases the prejudice necessarily suffered.
On the other hand, there is a clear public interest that the Occupational Health and Safety laws are upheld and that convictions and acquittals are attained without error. The Criminal Appeals Act imposes no restriction on prosecution appeals from the Magistrates Court. There is a clear public interest in an authoritative determination of questions of law and this appeal raises questions of mixed law and fact. The public interest represented by a prosecutor is a different interest from those of other litigants. That public interest is not easily defeated notwithstanding the unexplained, and I hope extraordinary delay in this case unless the prejudice to the respondent becomes too great a cost to allow the matter to continue [10] ‑ [12].
McKechnie J gave the appellant a last chance to comply with the direction that had been made on the public interest ground identified in the passage cited above. However, there was no suggestion in his Honour's reasons that the court lacked the power to dismiss the appeal for want of prosecution.
Part 4 of the CA Act contains provisions that are applicable to any appeal under the Act. Part 4 includes s 40, which provides that, 'for the purposes of dealing with an appeal' the court may do all or any of a number of things, including exercise any power that the Supreme Court may exercise in a civil case (s 40(1)(l)). Consequently, s 40(1)(l) is in substantially identical terms to that part of s 697 of the Criminal Code that was held by the Court of Criminal Appeal in Mickelberg to expressly confer a power on the court to dismiss a criminal appeal for want of prosecution.
Section 50 of the CA Act provides that, 'the Supreme Court may make rules of court prescribing any matter that is required or permitted by this Act to be prescribed, or that is necessary or convenient to be prescribed for giving effect to the purposes of this Act', including providing for a proceeding under the Act to be dismissed without a hearing if the person who commenced it 'does not conduct it in accordance with the rules of court or orders made by the court'. Although the Criminal Procedure Rules 2005 (WA) contain provisions relating to the failure of a party to attend a hearing in an appeal, the Rules do not deal with the dismissal of an appeal for want of prosecution. Consequently, there is no rule in the Criminal Procedure Rules that expressly deals with that matter.
However, in my view this court has power to hear and determine an application to dismiss an appeal for want of prosecution in its inherent jurisdiction and under the Rules of the Supreme Court (read with s 40(1)(l) of the CA Act). In particular:
(a)The court has inherent power to prevent its processes from being abused and the corresponding power to protect their integrity once they are set in motion. That power extends to dismissing proceedings that have not been expeditiously prosecuted: see, for example, the observations of Steytler P and Owen JA in The Hancock Family Memorial Foundation Ltd v Fieldhouse.
(b)The principles that apply in determining an application to dismiss an action for want of prosecution will also apply to an application to dismiss an appeal. However, the content of those principles, and the public policy considerations that they reflect, will be shaped by the particular context in which they are applied: see, for example, Moore v Jack Brabham Holdings Pty Ltd (1986) 7 NSWLR 470, 477 (and note the references to Birkett v James [1978] AC 297, Lewandowski v Lovell (1994) 11 WAR 124 and Hughes v Gales (Unreported, WASCA, Library No 950292, 8 June 1995) in Mickelberg; and Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 in The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285). There is an overriding concern in a criminal appeal with ensuring that a substantial miscarriage has not occurred.
(c)Nevertheless, there is a strong public interest in the timely disposition of all criminal cases, including criminal appeals: Silich [36] (Martin CJ).
(d)The principles of case management for civil proceedings cannot be imported into the management of criminal appeals without acknowledging the significance of the different contexts. Nevertheless, O 1 r 4A and r 4B of the Rules of the Supreme Court specify objectives for the just, efficient and economical conduct of all proceedings in this court. The interests and concerns embodied in the Rules are fundamental to the proper administration of all proceedings.
(e)A particular concern in the management of criminal appeals is the possibility of a re‑trial being ordered. Inordinate delay in the prosecution of a criminal appeal may prejudice a fair trial if a further trial is ordered. In a passage that has often been cited with approval, Doyle CJ observed in R v Parenzee [2008] SASC 245; (2008) 101 SASR 469, that:
There is a strong public interest in certainty and finality in the exercise of the criminal jurisdiction. The prospect of a conviction being questioned, and of a retrial, long after the conviction recorded, is unsettling. It is unsettling for persons affected by the circumstances giving rise to the charge, and for those who are witnesses called to give evidence. The prospect of a retrial of a charge, years after the event, and years after a trial, is not a good one. There is a risk that if a charge has to be retried, the passage of time will have had an effect on the quality of the evidence that cannot be anticipated until the retrial is under way. There is always a risk that memories will have faded, or that some evidence will be lost [55].

The sentencing audit

The sentencing audit undertaken by the Sentencing Information Unit disclosed that the appellant was first sentenced to a term of imprisonment in February 1988. The appellant was again sentenced to a term of imprisonment on 23 June 1988 - a total effective sentence of 6 years and 6 months, with eligibility for parole. On the following day, the appellant was sentenced to a further term of imprisonment of 7 years and 6 months. He was not made eligible for parole and the sentence was ordered to be served cumulatively upon any existing sentence. As a result of those sentences, as at 24 June 1988, the sentence maximum date for the appellant was 22 June 2002; the earliest eligibility date for parole was 19 August 1995 and the parole expiry date was 19 August 1997. Between June 1988 and June 1994, the appellant was sentenced for further offences and punished for numerous prison offences. As at June 1994, the sentence maximum date for the appellant was 16 June 2004; the earliest eligibility date for parole was 5 November 1997 and the parole maximum date was 24 August 2002.
The appellant was released to parole on 19 December 1997 (the 1997 Parole Order). According to the sentencing audit, the 1997 Parole Order was suspended and a warrant issued for his arrest on 12 March 1999. He was returned to custody on 22 March 1999. However, the suspension of the 1997 Parole Order was lifted on 29 April 1999 and the appellant was re‑released to parole on the following day.
The 1997 Parole Order was again suspended on 26 July 1999 and the appellant was returned to custody and his sentence dates were recalculated so that the period of his parole suspension was adjusted to expire on 5 November 1999. However, his parole suspension was again lifted on 26 August 1999 and the appellant was re‑released to parole on the following day.
On 3 October 2000, the appellant was sentenced to 4 months imprisonment to be served immediately (the conviction and sentence is the subject of SJA 1004/2001). He was not made eligible for parole so that the sentence maximum date was 2 February 2001.
The appellant was sentenced to further terms of imprisonment on 6 December 2000 - a total effective sentence of 27 months imprisonment (the convictions and sentences are the subject of SJA 1005/2001). He was made eligible for parole and the sentence was ordered to be served concurrently with the sentence imposed on 3 October 2000.
One of the offences for which the appellant was sentenced on 6 December 2000 was committed on 25 November 1998 during the period of the 1997 Parole Order. The offence was driving without a motor driver's licence and while not entitled to hold a licence (the November 1998 driving offence). According to the sentencing audit, the 1997 Parole Order was automatically cancelled as a result of committing that offence and he became liable to serve a number of 'breach of parole' days. The number of parole days required to be served was calculated as 1,296 days. That number of days was added to the date the appellant was sentenced (6 December 2000) to calculate a new sentence maximum date. As a result, the sentence maximum date and the parole maximum date for the appellant was 23 June 2004 with an earliest eligibility date for parole of 4 September 2001. It was that calculation that became the focus of the appellant's concern in the appeals.
The appellant was further sentenced on 21 December 2000 to 2 months imprisonment to be served cumulatively on his existing sentence so that the revised sentence maximum date was 23 August 2004, with an earliest eligibility date for parole of 14 October 2001.
In March 2001, the appellant was sentenced to 6 months imprisonment for a breach of a violence restraining order. The sentence was ordered to be served concurrently with his existing sentence. The conviction and sentence is the subject of SJA 1061/2001.
In August 2001, the appellant was sentenced to a further term of 6 months imprisonment. That sentence was ordered to be served concurrently with his existing sentence and a parole eligibility order was made.
The appellant was released to parole on 30 October 2001. His parole order was cancelled on 19 March 2002 and a warrant was issued for his arrest. He was not returned to custody until 13 October 2015. The Sentencing Information Unit calculated that the appellant owed 870 breach of parole days. His sentence maximum date was recalculated to 28 February 2018.

The grounds of appeal and related matters

The appellant's affidavits

As has been noted, the appellant was directed to file an affidavit explaining the extraordinary delay in prosecuting his appeals and the reasons why he should be now permitted to proceed with the appeals. The affidavit that he filed in September 2016 did not explain the delay. However, the reason why the appeals had not been prosecuted was obvious - the appellant had left Western Australia.
The appellant's affidavit further stated that:
6.The sentence is manifestly excessive absolutely. The convictions and entire magistrate matters was forced to be unrepresented.
7.The legal system was misinformed, misled and hoodwinked with fabrication, obfuscation, subterfuge resulting in our family unit being subjugated through four different States.
8.Justice Miller stated before I was sentenced my Magistrates Courts I already done enough time for the alleged offences!!!
The appellant made a further affidavit in October 2016 in response to the affidavits filed on behalf of the respondents and in particular, the sentencing audit. The appellant alleged that:
(a)The consequences of any breach of a parole order were to be determined according to the provisions of the Sentencing Act 1995 (WA) and not according to what the appellant referred to as the 'Parole Act 2003' - by which I assume he meant the Sentence Administration Act 2003 (WA) (letter attached to affidavit made by the appellant on 4 October 2016).
(b)He had satisfactorily completed in 1999 his '1997 parole sentence'. That was said to be established by various documents including the pre‑sentence report submitted to Calder SM for the purpose of sentencing the appellant on 6 December 2000. Accordingly, the only breach days that he owed were in respect of the cancellation of his parole in March 2002, which was the only parole order that has been cancelled (affidavit made by the appellant on 4 October 2016).
(c)Any breach days owed in relation to the 1997 Parole Order should have run concurrently with the sentence imposed by Calder SM on 6 December 2000.

The annexures to the September 2016 affidavit

The affidavit made by the appellant in September 2016 annexed a number of documents. Those documents included transcript of proceedings held before Miller J on 9 November 2000. The proceedings concerned an application made by the appellant for bail pending sentencing on the charges dealt with by Calder SM on 6 December 2000. The appellant had spent eight months in custody at the time of the hearing. He advised Miller J that he had pleaded guilty to the pending charges some time ago and had been remanded for sentencing. In the course of argument, his Honour stated that:
I think the exceptional circumstances [it was the appellant's second application for bail] are that he has done eight months which is two years if he is eligible for parole and that would seem to accommodate everything he has been convicted of. It would seem, on the face of it, to be about what he would get (MCR 3/1999; 9 November 2000, ts 131).
His Honour subsequently ordered that the appellant be released on bail subject to completion of the sentence that had been imposed on 3 October 2000. In making that order his Honour further stated:
All that's happening is, I'm giving you the opportunity to be released on bail pending the determination of these matters in the Petty Sessions because you have done eight months which is effectively two years, which would seem on the face of it, although I can't bind the magistrate in any way, to be something like what might be imposed and therefore it would be unjust to leave you in prison indefinitely waiting for those matters to be dealt with (ts 137).
A letter from the Prisoners Review Board dated 2 November 2015 was also attached to the appellant's affidavit of October 2016. The letter concerned an enquiry made by the appellant about the cancellation of his parole on 19 March 2002. The letter stated that the parole order had been cancelled as the appellant had failed to:
(a)report as directed;
(b)notify a change of address;
(c)obtain permission to leave Western Australia.
The letter further advised that a prisoner could seek a review of a decision to cancel a parole order under s 115A of the Sentence Administration Act. Alternatively, a prisoner could reapply for parole consideration. The Board had taken the appellant's enquiry to be a request to review his case. That review would be undertaken after the appellant submitted any further material that he wished to be taken into account in the review.
The appellant also annexed a letter dated 15 June 2016 from the Department of Corrective Services replying to a freedom of information application made by the appellant. The appellant contended that the letter established that he had satisfactorily completed the 1997 Parole Order in November 1999 and that no notice of cancellation of his parole had been issued.

The applications for leave to appeal filed in 2001

The appellant's application for leave to appeal and for an extension of time dated 5 January 2001 in SJA 1004/2001 alleged that Calder SM had erred by:
(a)failing to 'request' the appellant to plead;
(b)not recusing himself on the ground that he was not impartial;
(c)failing to find that there was no intention to commit the alleged offence (and by inference, that the appellant's behaviour on 3 October 2000 was explained by errors made by the magistrate, the prosecutor and the appellant resulting in the proceedings becoming confused and the appellant agitated);
(d)imposing a sentence that was manifestly excessive and a sentence that was less than the statutory minimum prescribed by the Sentencing Act;
(e)failing to allow the appellant sufficient time to prepare submissions on sentencing so that mitigating factors were not referred to and properly taken into account;
(f)not 'allowing alleged accused [to] properly to be defended in this matter'.
The appellant's application for leave to appeal and for an extension of time dated 5 January 2001 in SJA 1005/2001 contained numerous grounds including that:
(a)the convictions were unsafe and unsatisfactory;
(b)the sentences imposed were manifestly excessive;
(c)Calder SM erred by:
(i)not 'allowing alleged accused [to] properly to be defended in this matter';
(ii)not recusing himself on the ground that he was not impartial;
(iii)not permitting the appellant to change his plea;
(iv) not allowing the appellant to cross‑examine witnesses;
(v)failing to take into account mitigating factors, the totality principle and the time that the appellant had spent on home detention bail and by accumulating the sentences imposed for driving offences.
The appellant's undated application for leave to appeal and for an extension of time in SJA 1061/2001 alleged that the magistrate who dealt with the alleged breach of the violence restraining order had erred by:
(a)denying the appellant natural justice in refusing an application for the matter to be remanded;
(b)failing to give the appellant sufficient time to obtain legal representation;
(c)not finding that the prosecution had failed to prove its case as it had relied on a copy of the restraining order and had failed to adduce evidence that corroborated the evidence given by other prosecution witnesses and which demonstrated how the appellant had breached the order;
(d)failing to find that the appellant had not been properly cautioned prior to participating in a video record of interview;
(e)imposing a sentence that was manifestly excessive.

The appellant's explanation for the delay

The explanation ultimately provided by the appellant for why he did not prosecute the Adjourned Appeals after August 2001 and the appeal in SJA 1035/2001 after January 2002 was that he had left Western Australia due to family and other concerns (the explanation was not given on oath or affirmation but in the course of submissions). The appellant referred in his affidavit of September 2016 to the 'legal system' being 'hoodwinked'. At a hearing of his application to revive his appeals and the respondents' applications to dismiss the appeals for want of prosecution, the appellant stated:
[T]hen I got released and I got told to leave the State, because my son was taken - I took my son and wife and we left the State. We got told to leave, because my wife was taking my son out of the State and that's why I've been breached; for leaving the State...
It all stemmed around this person using the system and abusing it and trying to hide his secrets and then - and I've come along and was (indistinct) was abused in that situation, but I understood that. I said I wouldn't take anyone to court, because I understood that the system was hoodwinked and that I can't blame someone who was hoodwinked, and so I never took the court action; I left it out and I left the State with my wife and now I've been brought back 15 years later to go to the same situation. Now, don't you think that's unfair?
I think I've done enough jail; I've done - well, I've lost four kids in the process and my wife and, you know, I've been brought back and I shouldn't be - and then I get a breach of parole which I never knew that I was breached and I'm doing this (indistinct) I just want to - I didn't want to go and take this to court though; I just wanted to get out of jail, and live the rest of my life and helping my wife, and hopefully being a good role model to my kids and that's all I want (19 January 2017, ts 32).
I then put the following proposition to the appellant:
Now, Mr Cronin, let me tell you what I have taken from that. Am I right in understanding that you say that when these appeals of 2001 were adjourned sine die, that was a decision on your part, because, as you have put it, the system was being hoodwinked, and it wasn't anybody's fault that that had occurred, and you had decided it was better to not appeal and then, as soon as you could, leave the State; is that what you are telling me? (ts 32).
The appellant confirmed that this summary was an accurate statement of his explanation for why he had not continued to prosecute the appeals but had left Western Australia.
It should be noted that the appellant did not dispute that he was subject to the 1997 Parole Order when he left Western Australia. It would be most surprising if the appellant had not understood that by leaving Western Australia he was in breach of the order. However, that is not entirely clear from the passage reproduced above. Nevertheless, it was not in issue that the appellant had breached the Parole Order by leaving the State. That was a matter that was confirmed by the letter from the Prisoner's Review Board which the appellant annexed to his affidavit.

Preliminary findings on the respondents' applications

I make the following findings in relation to the respondents' applications to dismiss the appeals for want of prosecution by reference to the principles identified earlier:
(a)The appellant failed to prosecute the appeals because he chose not to continue with the appeals but to leave Western Australia in breach of the conditions on which he had been granted parole.
(b)Self‑evidently, the delay in prosecuting is inordinate. The delay was intentional - the appellant chose to not to continue with the appeals and to leave Western Australia. In my view, the delay was also inexcusable - the appellant left Western Australian in breach of the conditions of the 1997 Parole Order and following a decision not to prosecute the appeals. His explanation for leaving the State neither justified the breach of parole nor the delay in prosecuting the appeals.
(c)There can be no doubt that it would be impractical, indeed impossible, to order a retrial of the charges on which the appellant was convicted.
(d)There could be no utility in the Adjourned Appeals unless success would impact on the appellant's current status as a prisoner serving time in custody for breach of the 1997 Parole Order. It would be necessary for the appellant to establish that setting aside a conviction or sentence would affect his liability to serve breach of parole days to demonstrate that a substantial miscarriage might have occurred.
The appellant contended at the directions hearing held in March 2016 that he should be permitted to revive his appeals as the fact that he was in custody was a direct consequence of the convictions and sentences that were the subject of the Adjourned Appeals. The purpose of the sentencing audit undertaken by the Sentencing Information Unit was to provide information to the court to assess whether there was utility in allowing the appeals to proceed to a substantive hearing notwithstanding the extraordinary delay; that is, whether there was a connection between the time that the appellant is currently serving in custody and any of the convictions or sentences under appeal so that setting aside a conviction or sentence would reduce or extinguish the time that the appellant is now required to serve. However, the contentions made by the appellant in his October 2016 affidavit concerned administrative steps taken by the Sentencing Information Unit and other authorities; they did not, in themselves, provide grounds for setting aside the convictions and sentences that are the subject of the appeals.
As will be explained, the only matter that arises in the appellant's appeals that could impact on the time that he is currently required to spend in custody is his conviction for the November 1998 driving offence and the sentence that was imposed for that offence. That is because it was that conviction and sentence that resulted in the automatic cancellation of the 1997 Parole Order with the result that the appellant owed the breach of parole days that he is currently serving.
The appellant's conviction for that offence forms part of his appeal in SJA 1005/2001. It is convenient to first consider the other appeals and the respondents' applications to dismiss those appeals for want of prosecution.

SJA 1035/2001

I have not been advised about the current status of the appellant's son and the wardship order made by the Children's Court in 2000. However, the order was made 16 years ago and it could not be in the child's best interests to re‑agitate the order on appeal if he is still subject to any form of protection order under the Children and Community Services Act 2004 (WA). On the other hand, there is no utility in the appeal if the appellant's son is no longer subject to any order made by the Children's Court.
Further, the appeal is not relevant to the reasons given by the appellant for seeking to revive his appeals. Presumably, for that reason the affidavits filed by the appellant in answer to the respondents' applications did not deal with this appeal.
In the circumstances, the lack of utility in this appeal with the passage of time is so overwhelming that I have not further considered the possible merits of the appeal notwithstanding that Miller J granted leave. The application to dismiss the appeal for want of prosecution will be allowed.

SJA 1061/2001

The hearing of the appeal in SJA 1061/2001was adjourned sine die on 28 August 2001, with the appellant being given leave to file a further affidavit exhibiting the transcript of the hearing of the restraining order charge. The appellant did not file any further affidavit. Consequently, it is not possible to assess the allegations made by the appellant concerning the conduct of the hearing by reference to the transcript of the hearing.
As has been noted, it was ordered that the sentence imposed for the appellant's breach of a restraining order was to be served concurrently with the sentences then being served by the appellant. Accordingly, the sentence had no impact on the time to be spent by the appellant in custody or on the calculation of breach of parole days made by the Sentencing Information Unit following the appellant's return to custody in October 2015.
There is no utility in allowing the appeal to be revived and no means of assessing the merits of the appellant's proposed grounds of appeal. The respondent's application to dismiss the appeal for want of prosecution will be allowed.

SJA 1004/2001

Section 41 of the now repealed Justices Act provided that:
Any person who insults any justices sitting in the exercise of their jurisdiction under this or any other Act, or wilfully interrupts the proceedings of justices so sitting, may be excluded from the court by order of the justices, and may, whether he is so excluded or not, be summarily convicted by the justices on view, and on conviction shall be liable to imprisonment for a term not exceeding 12 months, or to a fine not exceeding $5,000, or to both, or in default of immediate payment of the fine imposed to imprisonment -
(a)until the fine is paid; or
(b)for a term not exceeding 12 months,
whichever may be the shorter period.
No summons need be issued against any such offender, nor need any evidence be taken on oath, but he may be taken into custody then and there by a police officer by order of the justices, and called upon to show cause why he should not be convicted.
The meaning and effect of s 41 of the Justices Act was considered by the Court of Criminal Appeal in Stuart v Brown (1996) 17 WAR 525. Owen J (with whom Parker J agreed), adopted what was said by Murray J in Gliosca v Ninyett (1992) 10 WAR 562 to the effect that the word 'wilfully' in s 41 meant 'intentionally or deliberately in the sense that what occurred was intended as an insult so that the purpose of the words uttered could be said to be consciously or deliberately to insult the judge'. The accused's conduct must be capable of being seen as 'a deliberate or intentional process of delay or obstruction of the proceedings of the court'. Further, the purpose of the section was to vindicate the integrity of the court and its proceedings rather than the personal dignity of a judge; the summary power conferred by the section was to be used sparingly and only in serious cases; an interruption would be wilful if the accused must have known that the interruption was an inevitable consequence of deliberate conduct and continuing to dispute or make submissions after a ruling had been announced could constitute a breach of s 41: see Stuart v Brown (530 - 531).
Calder SM produced written reasons (dated 16 October 2000) for summarily convicting the appellant of a breach of s 41. His Honour noted that the appellant had appeared before him in respect of 42 complaints. The matters were listed for mention and it was a difficult task to ascertain the stage that had been reached in respect of each complaint.
His Honour found that the appellant continually interrupted the court and refused to remain quiet; he prevented the court from addressing the appellant; he attempted to leave the courtroom while the hearing was in progress; he manifested an attitude of intentional confrontation and disrespect for the proceedings with the object of preventing the court from continuing to deal with him; he ignored unequivocal warnings to the effect that he was at risk of being summarily convicted as a consequence of his behaviour and despite being warned that he risked being sentenced to a term of imprisonment, he showed no remorse. A sentence of 4 months imprisonment was imposed to reflect the nature and circumstances of the offence, the need to demonstrate both general and personal deterrence and to preserve the integrity of the judicial process. His Honour considered that a fine would not have been an adequate punishment in the circumstances.
I have reviewed the transcript of the proceedings on 3 October 2000. In my view, his Honour's observations are a fair and accurate assessment of the appellant's conduct. Indeed, his Honour showed considerable patience in endeavouring to deal with the matters before the court in the face of persistent interruption and abuse by the appellant. By way of comparison, the appellant's conduct was significantly more egregious than the behaviour of the appellant in Stuart v Brown.
The findings made by Calder SM in convicting the appellant were consistent with the interpretation of s 41 of the Justices Act adopted by the Court of Criminal Appeal in Stuart v Brown and I am unable to discern any error of fact or law in his Honour's reasoning. Further, the section permitted his Honour to immediately deal with the breach and, having regard to the offence and circumstances in which it was committed, it was not necessary for a charge to be formally put to the appellant to enable a plea to be taken. The appellant was given several warnings and ample opportunity to control his behaviour. There is nothing in the transcript that could support the allegation of bias or the assertion that the magistrate ought to have recused himself for any reason. There is no arguable case that the magistrate erred in convicting the appellant.
As has been noted, the appellant has fully served the sentence imposed for his breach of s 41. Accordingly, there is no utility in granting leave to appeal against sentence. Further, I do not consider that there is an arguable case that the sentence imposed was manifestly excessive having regard to the maximum penalty prescribed for the offence, the nature of the offence and the circumstances in which it was committed. The magistrate correctly identified the relevant sentencing considerations. The personal circumstances of the offender for such an offence are, in my view, less relevant than they might be for other offences.
The appellant alleged that the sentence of 4 months imprisonment was contrary to the minimum period for any custodial sentence imposed by the Sentencing Act. Section 86 of the Sentencing Act, as presently enacted, provides that a court must not sentence an offender to a term of 6 months or less unless the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months. However, as at December 2000, s 86 provided that an offender could not be sentenced to a term of 3 months or less. The section was amended in 2003 to increase the minimum term of imprisonment that could be imposed to 6 months.

SJA 1005/2001

The proceedings in the Court of Petty Sessions

As has been noted, there were 42 complaints before the court when the appellant appeared on 3 October 2000. It was not possible to progress those matters at that appearance because of the appellant's behaviour.
The appellant again appeared before Calder SM on 12 October 2000. He stated that he intended to plead not guilty to charges that alleged that he had breached his bail undertakings and received stolen property and that he intended to plead guilty to the remaining charges (ts 13). There followed a lengthy exchange about various matters, including the provisions of the Sentencing Act relating to the backdating of sentences and the bail application that had been heard by Miller J. The hearing was adjourned for a short time to enable the appellant to review documents and the magistrate to make enquiries about some of the pending charges.
There were further exchanges when the hearing resumed about matters such as the effect of the appellant changing his plea on some charges. The charges before the court were then put to the appellant. He pleaded not guilty to those charges that alleged that he had breached his bail undertakings and received stolen property and guilty to the remaining charges. In some instances, the pleas of guilty involved a change of plea. The appellant was remanded to appear again on 5 December 2000 to be sentenced.
The charges to which the appellant pleaded guilty included the November 1998 driving offence. The magistrate confirmed that the appellant understood the charge prior to taking the plea.
Calder SM indicated at the commencement of the hearing on 5 December 2000 that he had received information concerning the time that the appellant had spent in custody. He had requested that a representative of the Prisons Department attend the hearing to clarify the position in respect of the time that the appellant had spent in custody and backdating the sentences to be imposed having regard to the provisions of s 87 of the Sentencing Act (which provides that time spent in custody must be in respect of the offence for which the sentence is to be imposed and for no other reason if the sentence is to be backdated). The appellant then stated that he wished to change his plea on all matters, including on the charge that he had contravened s 41 of the Justices Act, as he had not been represented at the hearings on 3 and 12 October 2000.
The prosecutor opposed the appellant's application to change his pleas, noting that the appellant had pleaded separately to each charge at the hearing on 12 October 2000; that the appellant had pleaded not guilty to some charges and that the only change in circumstances between 3 October and 5 December 2000 was that the appellant had been granted bail by Miller J in the interim.
The appellant stated that he had terminated his lawyer at the commencement of the hearing on 3 October 2000 because he had been provided with what he had considered to be wrong advice. Accordingly, he had not been 'properly' represented at the hearing on that day and at the further hearing on 6 October 2000. Further, he had been taking medication. However, his primary submission was that he had pleaded guilty because he believed that he had 'done my time already' (ts 15).
Calder SM refused the appellant's application. His Honour noted that the comments made Miller J were based on the information that the appellant had supplied about credit for time spent in custody and that the comments were in the context of the application for bail - they were not intended to direct the sentencing magistrate on the sentences that should be imposed (the comments made by Miller J in the bail application are further considered below). The appellant had represented himself in other proceedings in which he had demonstrated a good understanding of the criminal justice system and in particular, the provisions of the Sentencing Act relating to the backdating of sentences. He had entered his pleas deliberately with that knowledge and had understood the charges and the consequences of his pleas. The charges had been pending for a considerable time, the appellant had voluntarily terminated his lawyer's instructions and the matters to which the appellant had referred in his submissions would not have provided a defence to the charges (5 December 2000, ts 17 ‑ 18).
The appellant then requested Calder SM recuse himself on the basis that he had commenced an appeal against the sentence imposed on 3 October 2000, there were differences between them regarding backdating any sentence that might be imposed and his Honour had indicated that he did not regard himself as bound by the comments made by Miller J. The application was refused.
The facts alleged by the prosecution in relation to the charges to which the appellant had pleaded guilty were read and the appellant then stated that he wanted to plead guilty to the receiving charges to which he had previously entered a plea of not guilty. Given the appellant's earlier application in the hearing to change his pleas of guilty, Calder SM not surprisingly indicated that he would consider that matter the next day when the appellant would be sentenced on the charges for which he had been convicted.

His Honour commenced the hearing on the following day (6 December 2000) by considering the question of the time that the appellant had spent in custody in respect of the offences for which he was to be sentenced. The court and the appellant had received a letter from the manager of the Sentencing Information Unit, Mr Knott, indicating that the appellant had spent only 13 days in custody on account of the offences for which he was to be sentenced. The letter also indicated that the appellant was liable to serve a number of breach of parole days as a result of being convicted of the November 1998 driving offence (as the offence was committed while the appellant was on parole pursuant to the 1997 Parole Order and in breach of his parole conditions).
Mr Knott was called to give evidence regarding his understanding of the reasons why the appellant had been held in custody and the time that he had spent in prison. The appellant was given an opportunity to cross‑examine Mr Knott. He was also able to make extensive submissions on factors relevant to his sentencing.
Calder SM accepted the evidence given by Mr Knott and held that the appellant had spent 13 days in custody on account of the offences for which he was to be sentenced. However, his Honour took into account, on grounds of totality, the time that the appellant had spent in custody in determining the sentences that he imposed. He sentenced the appellant to a total effective sentence of 27 months imprisonment to be served immediately. In relation to the November 1988 driving offence, the appellant was sentenced to a term of imprisonment of 6 months with his Honour having observed that a term of imprisonment of 9 months would have been appropriate but the sentence was to be reduced on account of totality.

The proposed grounds of appeal

The lack of legal representation

The appellant had been represented until the hearing on 3 October 2000. He dismissed his lawyer sometime prior to that hearing. He had been remanded on 12 October 2000 to appear on 5 December 2000 for sentencing. Accordingly, he had ample time prior to 5 December 2000 in which to apply for legal aid or to make other arrangements for representation. The appellant did not formally apply for an adjournment at the hearings on 5 and 6 December 2000.
In my view, there is no arguable case that the magistrate erred in proceeding to sentence the appellant - it was within a proper exercise of the magistrate's discretion to proceed. An accused person does not have a common law right to be provided with legal representation at the public expense. However, a criminal proceeding may be adjourned where it would be unfair to the accused person to proceed in the absence of representation. In this instance, the appellant had a good understanding of the principles relevant to his sentencing and the transcript of the hearing on 6 December 2000 indicates that he was able to make detailed submissions in mitigation. As the Chief Justice observed in Silich, there is a strong public interest in the timely disposition of all criminal cases.

Reasonable apprehension of bias

The test to be applied in determining whether a judicial officer is disqualified because of the appearance of bias is whether a fair, open‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The application of that test involves two steps. First, the test requires the identification of what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a logical connection established between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8]. The test is objective and it is to be assumed that the lay observer will base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the hearing as a whole.
In my view, it is not arguable that any of the matters raised by the appellant when he objected to Calder SM proceeding with the sentencing hearing would have caused a fair‑minded lay observer to reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to sentencing the appellant. To the contrary, his Honour made extensive enquiries regarding the extent to which the appellant was entitled to have the sentences to be imposed backdated and had arranged for Mr Knott to attend court. His Honour gave the appellant a full opportunity to make submissions on sentencing; indeed, the hearings on 5 and 6 December 2000 were, in my view, marked by the care with which his Honour proceeded so as to ensure that the appellant received a fair hearing.

Change of plea

The court has an obligation to ensure that a plea of guilty is unequivocal and not made in circumstances suggesting that it was not a true admission of guilt. Those circumstances may include ignorance, fear, duress, mistake, a lack of understanding of the significance of the plea or a desire to gain a technical advantage: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 (511) (Dawson & McHugh JJ). However, an accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense or to avoid publicity or to protect family or friends or in the hope of obtaining a more lenient sentence. The entry of such a plea is valid and a conviction based upon the plea will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 [157] (Dawson J).
The appellant in Windie v The State of Western Australia [2012] WASCA 61 claimed that he had pleaded guilty to a charge in the Magistrates Court to 'get it over and done with' and because he was angry at the time that he instructed his lawyer on his plea. An application to change his plea was subsequently refused. His appeal from that decision was dismissed.
Although the application to change the plea was made under s 99 of the Criminal Procedure Act, the reasons of Mazza JA (with whom McLure P & Newnes JA agreed) for dismissing the appeal were of general application. His Honour stated that, at best, the affidavit sworn by the appellant in support of his application indicated that he was under a misapprehension as to the seriousness of the offence and the penalty that he might receive. However, that misapprehension was not a material misunderstanding as to the charge, the plea or the purpose of the proceedings [29]. His Honour observed:
Turning to the question of miscarriage of justice, it is not easy to persuade a court to set aside a plea of guilty on this basis. There must be a strong case to do so. Although cases of miscarriage of justice cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:
1.where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2.if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like [31].
There are obvious similarities with circumstances considered by the Court of Appeal in Windie and the circumstances in which the appellant sought to change is pleas of guilty before Calder SM on 5 December 2000. In this instance, Calder SM was at pains to ensure that the appellant's pleas on 12 October 2000 and 6 December 2000 were unequivocal admissions of guilt. His Honour correctly identified and considered the factors relevant in determining the appellant's application to change his pleas. A reading of the transcripts of the hearings on 3 and 12 October and 5 and 6 December 2000 indicates that many of the appellant's submissions were impulsive and capricious. That is amply illustrated by the fact that the appellant indicated in the hearing on 5 December that wanted to change all of his pleas to not guilty and then he subsequently advised that he wished to change his pleas of not guilty to the receiving charges. Moreover, as the prosecutor observed, the only change of circumstance between 12 October and 5 December 2000 was that Miller J had granted the appellant bail in late November. It is also relevant to note that his Honour did not accept some of the appellant's proposed pleas of guilty on the ground that there might be a defence available as a matter of law - see, for example, 6 December 2000, ts 115 (and see at ts 108 ‑ 109; this was a matter that was also relevant to assessing the allegation of bias).
In my view, there is no arguable case that Calder SM erred in dismissing the appellant's application to change his plea.

Cross-examination of witnesses

Although the appellant disputed some facts alleged by the prosecutor, in my view those disputes were not sufficiently material to the appellant's sentencing as to require a trial of an issue. The appellant was permitted to cross‑examine Mr Knott. He did not otherwise apply to examine any person and there would have been no basis for such an application.

The comments of Miller J

The appellant placed considerable emphasis in the sentencing hearings before Calder SM, and in the applications presently under consideration, on the comments made by Miller J in determining the appellant's application for bail in November 2000. The appellant's submission was to the effect that Miller J had held that the eight months that the appellant had spent in custody prior to the bail application had been a sufficient punishment for the offences to which the appellant had pleaded guilty on 12 October 2000 and for which he was sentenced by Calder SM on 6 December 2000. However, there are three reasons why the appellant's reliance on the comments made by Miller J was misconceived.
First, as Calder SM noted in the sentencing hearing, the comments made by Miller J assumed that the time that the appellant had spent in custody was solely on account of the offences for which he was to be sentenced. However, the information provided by Mr Knott indicated that this assumption - which was based on statements made by the appellant in the bail application - was incorrect. In fact, the appellant had spent only 13 days in custody in respect of the offences for which he was sentenced by Calder SM. Accordingly, the time that the appellant had spent in custody prior to being sentenced was relevant only to considerations of totality (apart from the 13 days).
Second, the comments by Miller J were made in the context of determining whether the appellant should be granted bail. They were not intended to - and could not - constitute a direction to the sentencing magistrate on the appropriate sentencing disposition; nothing that was said by his Honour could govern the sentencing discretion exercised by Calder SM.
Third, the comments made by Miller J took into account remission and the likelihood of parole. His Honour suggested that the total effective sentence that might be imposed without regard to remission and parole was approximately 2 years. The total effective sentence imposed by Calder SM of 27 months was close to the sentence that Miller J suggested might be imposed.

Utility

The sentencing audit indicates that the number of breach of parole days owed by the appellant as at 6 December 2000 was greater than the sentence of 27 months imprisonment imposed by Calder SM. Accordingly, setting aside the sentence imposed by his Honour would have no effect on the fact that the appellant is currently held in custody or on the number of breach of parole days that he owes. The only aspect of the proceedings before Calder SM that could affect those matters is the appellant's conviction for the November 1998 driving offence.

The appellant's affidavits

The appellant alleged in his affidavit of 16 September 2016 that 'the sentence' was 'manifestly excessive absolutely'. It is to be inferred that the reference to 'the sentence' was to the total effective sentence of 27 months imposed by Calder SM on 6 December 2000. The appellant was sentenced to terms of imprisonment for 12 offences: driving while not entitled to hold a driver's licence (x 3); burglary; criminal damage (x 2 including one charge of damaging a video recorder at a police station while the appellant was being interviewed); dangerous driving; failure to stop (x 2); providing a false name (x 2); and assaulting a public officer. The convictions for driving while not entitled to hold a licence were the appellant's seventh to ninth convictions for that offence. The assault on the police officer was the appellant's eighth conviction for the offence.
The terms of imprisonment imposed for each of the driving while not entitled to hold a driver's licence offences and for assaulting a public officer were ordered to be served cumulatively. All other terms of imprisonment were ordered to be served concurrently.
I have reviewed the facts alleged by the prosecutor and his sentencing submissions, the appellant's submissions in mitigation and the sentencing remarks of Calder SM. An allegation that the total effective sentence imposed was manifestly excessive is an allegation of implied error. I am unable to discern any error, express or implied, in his Honour's sentencing remarks or in the sentences that were imposed. There is no arguable case that the total effective sentence or the individual sentences imposed were not within the sound exercise of his Honour's sentencing discretion having regard to the seriousness of the offending, the circumstances of the offences, the maximum penalties for the offence and the appellant's personal circumstances, including his criminal history.
The matters referred to in par 7 of the appellant's affidavit of 16 September 2016 do not disclose any ground of appeal or matter relevant to the appellant's conviction or the sentences that were imposed which are the subject of any of the Adjourned Appeals.
The matters to which the appellant referred in his affidavit of October 2016 concerned the circumstances by which he presently finds himself in custody and the calculation of his breach of parole days. As has been explained, those matters are not relevant to the determination of the Adjourned Appeals, except for his conviction for the November 1998 driving offence and the sentence that was imposed for that offence.

The November 1998 driving offence

The facts alleged by the prosecutor for the November 1998 driving offence were that on the afternoon of 25 November 1998 the appellant was stopped by police while driving a vehicle on Oxford Street, Leederville. The appellant's driver's licence had been suspended on 12 February 1998 for non‑payment of fines and the period of suspension had not expired as at 25 November 1998. It was alleged that the appellant had admitted the offence and explained that he was merely driving on the verge of the street.
When asked by Calder SM whether he admitted the facts alleged, the appellant stated that:
I was on the verge of the - - I was half on the verge and half off when they arrested me. My missus was in the police station. She rang up. I got on the phone and the police officer spoke to me on the phone and said, 'If you are not here in five minutes, you will have a warrant for your arrest' (5 December 2000 ts 40).
His Honour then enquired as to whether the appellant was admitting that he drove the vehicle, to which the appellant replied:
I drove on the verge, yes. I don't believe that I was driving on the road. So I'm really not guilty of that, and being asked by the police to get there within a certain time or else have a warrant, I believe that that was under duress (ts 40).
His Honour subsequently held that the matter stated by the appellant did not disclose a defence. That was plainly correct.
Section 49 of the Road Traffic Act 1974 (WA) as at the relevant time made it an offence for a person to drive a motor vehicle where that person's driver's licence had been cancelled or suspended. The maximum penalty for the offence when the offender had been previously convicted of the offence was a term of imprisonment not exceeding 18 months, a fine or both. The term of imprisonment imposed by Calder SM for the November 1998 driving offence was 6 months imprisonment, reduced from 9 months on the grounds of totality. His Honour noted that the November 1998 driving offence was the appellant's seventh conviction for driving while not entitled to hold a driver's licence or without a driver's licence. There is no arguable case that sentence imposed by his Honour was manifestly excessive.
The respondents' application to dismiss this appeal for want of prosecution will be allowed.

Breach of parole days

As has been explained, the appellant's primary complaint concerned the calculation of the breach of parole days that he is currently serving. The Adjourned Appeals are irrelevant to that matter except for the conviction and sentence for the November 1998 driving offence. There is no basis for setting aside that conviction or the sentence that was imposed for the reasons that have been given.
It would be necessary for the appellant to commence other proceedings to challenge the calculation of his breach of parole days and to determine the allegations that he has made concerning that calculation. However, I have given some consideration to those allegations as the matter has been raised in these proceedings and the appellant is being held in custody. I would have permitted the appellant to cure any procedural defect had I concluded that there was a real possibility that he had been wrongfully detained in custody or that the calculation of the breach of parole days, as disclosed by the sentencing audit, was wrong. However, I am not persuaded that there has been an error for the reasons that follow.

The relevant legislation

The Sentence Administration Act 1999 (WA) (SAA 1999) governed matters relating to parole as at 6 December 2000. The Act replaced the Sentence Administration Act 1995 (WA) (SAA 1995). That Act was repealed by s 13 of the Sentencing Legislation Amendment and Repeal Act 1999 (WA) (SLAR Act). Section 18 of the SLAR Act contained transitional provisions in respect of sentences of imprisonment that had been imposed prior to the commencement of SAA 1999. The effect of the transition provisions was that the SAA 1995 and the SAA 1999 applied to the calculations and assessment made in the sentencing audit. In particular, the 1997 Parole Order was made prior to the commencement of SAA 1999 but the appellant's conviction for the November 1998 driving offence was recorded after that Act commenced. In particular, applying the transitional provisions in the SLAR Act meant that:
(a)the question whether the 1997 Parole Order had been lawfully cancelled on the appellant being sentenced to a term of imprisonment for the November 1998 driving offence was to be determined according to the provisions of s 73 SAA 1999 read with s 18(2)(d) SLAR Act;
(b)the effect of cancelling the Parole Order was to be determined according to s 71 SAA 1995: see King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218 (which dealt with transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) that were in identical terms to the relevant provisions of the SLAR Act);
(c)the number of breach of parole days the appellant was liable to serve as a consequence of the cancellation of the 1997 Parole Order was to be determined according to s 73 SAA 1995 read with s 18(2)(a)(ii) SLAR Act.

The relevant provisions of SAA 1995, SAA 1999 and the SLAR Act are lengthy and consequently, they are reproduced in a schedule to these reasons.

Cancellation of the 1997 Parole Order

The appellant contended that the 1997 Parole Order could not be cancelled as he had satisfactorily completed his parole by November 1999. He also alleged that the order could not be automatically cancelled but rather, it was necessary for a notice to have been served informing him that he was in breach of the conditions of his parole. However, s 73(1)(a) SAA 1999 expressly provided for the cancellation of an early release order (that is, a parole order) where the prisoner has committed an offence during the period of the order for which he or she was sentenced to a term of imprisonment. The order is cancelled 'by virtue of' s 73; that is, the cancellation is automatic and no notice is required to be served on the prisoner. Further, s 73(2) provided that it did not matter if the sentence of imprisonment was imposed after the period of the order or after the date when, but for the cancellation of the order, the prisoner would have served or be taken to have served the term to which the order related.

Calculation of balance of parole days

Section 73(4)(b)(i) SAA 1999 provided that an early release order was taken to have been cancelled on the day that the offence that constituted the breach was committed. Accordingly, the 1997 Parole Order was deemed to have been automatically cancelled on 25 November 1998, being the date on which the appellant committed the November 1998 driving offence.
Section 73(1) SAA 1995 applied to determine the number of 'clean street days' served by the appellant as at the date of cancellation of the Parole Order - 340 days, being the number of days between the date on which the appellant was released on the Parole Order (19 December 1997) and the date on which he committed the November 1998 driving offence (25 November 1998).
The sentencing audit disclosed that the appellant had been convicted of various offences for which terms of imprisonment had been imposed between 1988 and 1992. Further, the appellant was punished for prison offences and one sentence that had been imposed was set aside on appeal. The appellant was resentenced by the Court of Criminal Appeal following that appeal. As has been previously noted, the cumulative effect of the sentences imposed and the punishments received for prison offences was that the appellant's parole maximum date at the time that the Parole Order was made in December 1997 was 24 August 2002.
As the Full Court explained in King v Alan Piper, there is a distinction between 'the end of the term and the fact that it may have been, or is taken to have been, served before then, with the result that at an earlier time the prisoner was discharged from the sentence and entitled to his or her release' [20]. That distinction is reflected in s 85(4) of the Sentencing Act. Consequently, the parole maximum period was the time that the appellant was required to serve to complete the full term of the sentences that had been imposed prior to his release to parole on the 1997 Parole Order.
The parole period for the 1997 Parole Order was 19 December 1997 to 24 August 2002 - a total of 1,709 days. Consequently, the appellant was required to serve 1,369 breach of parole days to complete the full term of his sentences following the cancellation of the 1997 Parole Order (1,709 days less 340 clean street days). The calculation of the breach of parole days contained in the sentencing audit accords with the relevant provisions of SAA 1995, SAA 1999 and the SLAR Act. It is, put simply, a reflection of the old 'one third/one third/one third' sentencing regime.

Other matters relating to the sentencing audit

Further, according to applicable statutory provisions the sentencing audit properly took into account:
(a)The days that the appellant spent in custody when the Parole Order was suspended.
(b)The date on which the breach of parole days commenced was 6 December 2000 as it was on that date that the appellant was sentenced for the November 1998 driving offence (the breach of the 1997 Parole Order was constituted by an offence committed during the period of the order for which the appellant was sentenced to a term of imprisonment). The effect of the orders made by Calder SM was that the sentences that he imposed, and the breach of parole days that the appellant became liable to serve on being sentenced for the November 1998 driving offence, commenced on 6 December 2000. Accordingly, the sentences and breach days were to be, and were, served partly concurrently with the sentence of 4 months imposed on 3 October 2000.

Schedule

Sentencing Legislation Amendment and Repeal Act 1999 (WA)
Section 18:
18.Sentences of imprisonment imposed before commencement
…
(2)If immediately before commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement -
(a)the old provisions apply for the purpose of calculating -
(i)when the person is eligible to be released on parole;
(ii)the parole period for the person; and
(iii)when the person is discharged from the sentence and must be released;

…
(b)the new provisions apply for the purpose of determining whether the person is to be released on parole;
(c)if the person is to be released on parole, the release is to be by means of a parole order (supervised) made under Part 3 of the Sentence Administration Act 1999 and for that purpose -
(i)the parole period in the order is to be the parole period calculated under the old provisions; and
(ii)the supervised period for the order is to be the same as the parole period;

and
(d)if the person is released on parole, the Sentence Administration Act 1999 applies to and in respect of the person and the order except to the extent that paragraph (a) or (c) provides otherwise.

Sentence Administration Act 1995 (WA)
Section 71:
71.Effect of cancellation
(1)If an early release order, other than a WRO, in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.

Section 73:
73.Clean street time counts as time served
(1)Subject to subsections (2) and (3), if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order -
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is cancelled counts as time served in respect of the fixed term; and
(b)the period (if any) beginning on the day when the order is cancelled and ending on the day when the prisoner concerned is returned to custody does not count as time served in respect of the fixed term.

(2)Subject to subsection (3), if an early release order in respect of a prisoner serving a fixed term is suspended and, without the suspension ceasing, is subsequently cancelled, then -
(a)the period beginning on the day when the prisoner was released under the order and ending on the day when the order is suspended counts as time served in respect of the fixed term;
(b)the period (if any) beginning on the day when the order is suspended and ending on the day when the prisoner is returned to custody does not count as time served in respect of the fixed term.

…
(4)For the purposes of subsection (1), the day when an early release order is cancelled is -
…
(b)if it is cancelled by virtue of section 70 -
(i)the day when the offence that resulted in the cancellation was committed; or
(ii)if the CEO cannot ascertain the day when that offence was committed - the latest day on which that offence could have been committed, as determined by the CEO.

(5)For the purposes of subsection (2), the day when an early release order is suspended is the day of the decision to suspend the order.

Sentence Administration Act 1999 (WA)
Section 73
73.Cancellation automatic if prisoner imprisoned for offence committed on early release order
(1)If a prisoner, while subject to an early release order, commits an offence (in this State or elsewhere) and is sentenced to imprisonment for that offence -
(a)any early release order applicable to the prisoner when the offence was committed is cancelled by virtue of this section

…
(2)For the purposes of subsection (1) it does not matter if the sentence of imprisonment for the offence committed while subject to the early release order is imposed on the prisoner -
(a)after the period of the order; or
(b)after the date when, but for the cancellation of the order by virtue of subsection (1), the prisoner would have served or be taken to have served the term to which the order relates.