Davies v Director of Public Prosecutions - [2025] WASC 434

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DAVIES -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 434
CORAM:   LUNDBERG J
HEARD:   15 OCTOBER 2025
DELIVERED          :   23 OCTOBER 2025
FILE NO/S:   SJA 1041 of 2025
BETWEEN:   STEVEN JOHN DAVIES
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1041 of 2025
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   MI 7051/2024

Catchwords:

Criminal law - Appeal against sentence - Offence of stealing dealt with summarily - Magistrate imposed term of imprisonment of six months and one day, wholly suspended for 12 months, together with a disqualification of the appellant's driver's licence for six months - Whether sentence manifestly excessive - Turns on own facts

Criminal law - Appeal filed nine months out of time - Whether extension of time ought be granted - Impetus for the late appeal was the presence of new charges of fraud against the appellant, a conviction for which would likely trigger the period of suspension - Turns on own facts

Criminal law - Effect of an order to set aside original sentencing decision - whether original order is to be set aside prospectively only or ab initio - Issue not necessary to address in the circumstances

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9, s 10, s 14
Criminal Code (WA), s 378, s 426
Sentencing Act 1995 (WA), s 6, s 9AA, s 39, s 76, s 77, s 80

Result:

Application for leave to appeal out of time dismissed.
Appeal dismissed.

Category: B

Representation:

Counsel:

Appellant	:	O Paxman
Respondent	:	M L Wong

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	Director of Public Prosecutions (WA)

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

Coleman v Director of Public Prosecutions [2025] WASC 144
Corpus v Roseveare [2015] WASC 165
Dreja v The State of Western Australia [2012] WASCA 151
Fogg v The State of Western Australia [2011] WASCA 11
Houghton v The State of Western Australia [No 2] [2022] WASCA 7
Jackman v Director of Public Prosecutions [2023] WASC 63
Law v The Queen [2019] WASCA 81
LAW v The State of Western Australia [2009] WASCA 193
Mason v The State of Western Australia [2018] WASCA 43
R v Parenzee [2008] SASC 245; (2008) 101 SASR 469
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wass v Director of Public Prosecutions [2024] WASC 391
Watson v The State of Western Australia [2022] WASCA 80
Wimbridge v The State of Western Australia [2009] WASCA 196

Table of Contents

Introduction

The circumstances of the offence

The proceedings below

Issues arising on this appeal

Legislative framework and principles

The CA Act

Suspended sentences

Principles as to extensions of time

Appellant's submissions

Respondent's submissions

First issue – whether an extension of time ought be granted

Nature and extent of delay and explanation

Merits of the appeal

Conclusion as to extension of time

Second issue – whether the sentence was manifestly excessive

Conclusion and orders

LUNDBERG J:

Introduction

This is an appeal from the sentencing decision of a Magistrate sitting in the Midland Magistrates Court on 6 August 2024, arising from one count of stealing contrary to s 378 of the Criminal Code (the Criminal Code). The offence concerned the removal of seven temporary fencing panels from a construction zone.
The appeal has been brought well out of time, some nine months after the expiry of the appeal period.
The appellant, who was represented by a duty lawyer at the hearing, was sentenced to a term of imprisonment of six months and one day, to be suspended for 12 months, together with a six month disqualification of his driver's licence.
The appellant seeks leave to appeal out of time, and contends the suspended sentence of imprisonment was manifestly excessive. The application for leave to appeal is brought under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). The respondent opposes the extension of time and the appeal.
For the reasons which follow, I am of the opinion that the application for leave to appeal out of time should be dismissed and it follows that the appeal itself should be dismissed.

The circumstances of the offence

The underlying facts may be briefly stated.[1]
[1] ts 3 - 5 (hearing on 6 August 2024).
On 6 June 2024, the appellant, who is 40 years of age, was at the BMX Track on Barker Road in South Guilford, in the company of another man. Both the appellant and the other person removed seven temporary fencing panels from a construction zone. Those panels were being used to keep people out of that zone.
The panels, which were estimated to be worth $1,041, were the property of the City of Swan. The two men loaded the panels onto the appellant's vehicle, secured them, and drove away from the scene. The offence was not spontaneous. There had evidently been some planning, with the appellant paid $100 for his involvement. Vision of the incident was captured by a passing motorist's dashboard camera.

The proceedings below

The appellant was convicted, on his plea of guilty, of one offence of stealing contrary to s 378 of the Criminal Code. Section 378 provides:
378. Penalty for stealing
Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.
At the hearing on 6 August 2024, after hearing the statement of facts, the Magistrate indicated he was considering an order to disqualify the appellant's driver's licence 'because he has used his car in the commission of a criminal offence'.[2] The duty lawyer responded that this would cause the appellant 'some significant issues' as he was 'currently working'.[3] The Magistrate then explained that stealing fences was causing significant issues and the appellant ought to have thought about the consequences before he 'engaged in this illegal conduct'.[4] The Magistrate then commented that losing his driver's licence 'may well be the least problem for him [sic], because I'm also looking at a term of imprisonment'.[5]
[2] ts 3.
[3] ts 3.
[4] ts 3.
[5] ts 3 - 4.
The duty lawyer then made the following submissions:[6]
Mr Davies has entered a plea of guilty at an early – the earliest opportunity. This is the first hearing.
He has also made admissions to police when arrested. He says that he was approached by his friend, the co-accused, who has asked him to help, essentially, take these fences, transport them from where they were taken to Karrinyup. Mr Davies knew that he was not entitled to take those fences. He was offered $100 by his friend, as is – his friend, as is reflected in the statement of material facts.
He says that things have been financially tough, but he is getting things back on track, and he hasn't – it doesn't – it doesn't appear that he has been in trouble since this occurred in June.
[6] ts 3 - 4.
The prosecution submitted that a term of imprisonment was open but did not make strong submissions on the issue before the Magistrate.[7] His Honour then exercised his sentencing discretion to impose the suspended term of imprisonment, and observed as follows:[8]
Firstly, I do note your plea of guilty at the earliest possible stage and, as a result of that, you are entitled to the full discount on that – on whatever sentence I impose of 25 per cent. Secondly, not only did your agreement to engage in this offence make it possible for the items to be stolen but, as well as depriving the owner of this property, it created a potential situation of danger, given the fencing was blocking off a worksite.
As I've already mentioned, you used your vehicle to commit this offence. And having a driving licence is an absolute privilege and that privilege is not to be abused by using it to commit a criminal offence. In respect to the matter, there needs to be a penalty that reflects the seriousness of the offending and acts as a personal and general deterrent. Very difficult to secure this kind of offending – this kind of property, fencing, against theft, and I am of the view, ultimately, that the only appropriate penalty to reflect those matters is a term of imprisonment, but I'm going to suspend that term.
There will be a term, taking into account your early plea of guilty and the other factors raised by counsel, of six months and one day's imprisonment suspended for 12 months. You commit any offence in the next 12 months that carries jail as a penalty, expect to come back to court and then have to serve that six months and one day.
[7] ts 4 - 5.
[8] ts 5.
The appellant was sentenced to a term of imprisonment of six months and one day, to be suspended for 12 months, together with a six-month disqualification of his driver's licence. The Magistrate allowed the full 25% discount for the early plea of guilty, pursuant to s 9AA(4) of the Sentencing Act 1995 (WA) (Sentencing Act). The appellant was ordered to pay a compensation order for the panels and court costs.
Given the value of the property involved, which exceeded $1,000 but did not exceed $50,000, the offence in question carried a maximum penalty of two years' imprisonment and a fine of $24,000 (as it was dealt with summarily): s 426(2) Criminal Code.
If the property had been valued at less than $1,000, the maximum penalty would have been a fine of $6,000: s 426(4) Criminal Code.
Section 426 is engaged, inter alia, where a person is convicted of a stealing offence contrary to s 378 of the Criminal Code and the charge is dealt with summarily.

Issues arising on this appeal

It is convenient at this stage to provide a short overview of the issues arising on the appeal and the explanation for the delay in filing the appeal.
The appellant did not challenge his sentence until this appeal was filed on 9 June 2025, nine months after the statutory appeal time limit of 28 days had expired. The appellant therefore requires an extension of time to proceed with this appeal.
The impetus for the belated appeal is that the appellant was charged with fraud offences on 11 February 2025, being two counts of fraud and one count of attempted fraud. The appellant has deposed in his affidavit sworn on 4 June 2025, that he did not receive legal advice about appealing the sentence at the time he was dealt with in August 2024. He deposes that he only received legal advice after being charged with the further offences in February 2025.[9]
[9] Affidavit sworn by the appellant on 4 June 2025 (Folio 2) [6].
While accepting he may not have had legal advice as to his appellate rights, as noted above, the transcript confirms the Magistrate explained to the appellant the effect of the suspended imprisonment. It is thus not open to the appellant to assert that he did not know the sentence exposed him to serving the suspended term if he reoffended within the 12 month period.
It is nonetheless contended by the appellant that a conviction in respect of the further offences would trigger the suspended sentence imposed by the Magistrate in August 2024. The appellant contends this would constitute a miscarriage of justice as the original sentence was, in his submission, erroneously imposed and not a sentencing option reasonably open to the Magistrate. The appellant contends the Magistrate prejudged the matter by indicating an intention to consider imprisonment before hearing the plea in mitigation, failed to give adequate weight to mitigating factors, and imposed a penalty disproportionate to a low-level offence of stealing committed by a person with a limited record of prior offences.[10]
[10] Appellant's submissions (AS) dated 28 August 2025 (Folio 11).
The respondent opposes the appeal.[11]
[11] Respondent's submissions (RS) dated 19 September 2025 (Folio 13).
The respondent contends that the delay of nine months is lengthy and that the appellant has failed to demonstrate the exceptional circumstances required to grant an extension. The appeal is framed by the respondent as a 'belated challenge' and an 'attempt to circumvent the legal consequences' of the appellant's alleged re-offending. As to the original sentence, the respondent concedes the sentence was 'stern', but maintains it falls within a reasonable sentencing range, justified by various factors present in the circumstances, such as the creation of a public safety risk and the premeditated nature of the offence.
In these circumstances, the appeal requires the court to address two issues. First, whether an extension of time should be granted given the lateness of the filing of the appeal. Second, if leave is granted, whether the sentence imposed by the Magistrate was manifestly excessive. The question as to the merits of the proposed appeal are relevant to the first issue and whether an extension ought be granted. I therefore propose to address the merits within the context of the first issue.

Legislative framework and principles

The CA Act

The legislative framework for this appeal is found in the CA Act. An aggrieved party may appeal a sentence imposed as a result of a conviction.[12] Any such appeal must be filed within 28 days, unless the court orders otherwise.[13]
[12] CA Act, s 6(f) and s 7(1).
[13] CA Act, s 10(3).
The grounds of appeal may include a complaint there has been an error of law, a complaint that a sentence has been imposed which is manifestly excessive, and where there has been a miscarriage of justice.[14]
[14] CA Act, s 8(1)(a) and (b).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[15] meaning that the ground is required to have a rational and logical prospect of succeeding.[16] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[17]
[15] CA Act, s 9(2).
[16] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[17] CA Act, s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[18]
[18] CA Act, s 14(2).
Pursuant to s 14(1) of the CA Act, this court on appeal may dismiss the appeal, may allow the appeal, or may set aside or vary the decision of the court below and the sentence imposed, order made or thing done as a result of the decision. Additionally, pursuant to s 14(1)(d) of the CA Act, the court may substitute a decision that should have been made by the court below.

Suspended sentences

Suspended sentences are authorised and controlled by pt 11 of the Sentencing Act. Section 76 of the Sentencing Act relevantly provides:
76.When imprisonment may be suspended
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended 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.
(3)Suspended imprisonment is not to be imposed if —
(a) the offence was committed when the offender was subject to an early release order; or
(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended.
The effect of a suspended sentence is addressed by s 77(1) of the Sentencing Act which provides that an offender sentenced to suspended imprisonment is not to serve any part of the suspended imprisonment unless during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment, and a court makes an order under s 80.
Section 80 of the Sentencing Act details the options available to a court when dealing with a person in this circumstance. The first option, in s 80(1)(a), is that the court may order the person to serve the term of imprisonment that was suspended. The other options, in s 80(1)(b), (c) and (d), enable the court to order the person to serve part of the suspended term, substitute another period of not more than 24 months for the suspension period, and impose a fine of not more than $6,000 without an order in respect of the suspended imprisonment.
Importantly, by s 80(3), a court must make an order under s 80 (1)(a) unless it decides 'that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed'.
The effect of these provisions is that, while the court has a discretion whether to order the person to serve the term of imprisonment which was suspended, it must adopt that course unless it would be unjust to do so, in accordance with s 80(3).

Principles as to extensions of time

An extension of time to appeal will be granted if it is in the interests of justice to do so. The relevant principles were explained by Buss JA, as his Honour then was, in Wimbridge v The State of Western Australia.[19] It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal against conviction, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. The court's power to extend time to appeal against conviction is broad and flexible, and its purpose is to enable the court to achieve justice in the particular case.
[19] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] - [44] (Buss JA).
Buss JA then stated that the achievement of justice in a particular case was not confined to justice from the applicant's perspective. In this regard, his Honour cited with approval the statement of Doyle CJ in R v Parenzee[20] to the effect there is a strong public interest in certainty and finality in the exercise of the criminal jurisdiction.
[20] R v Parenzee[2008] SASC 245; (2008) 101 SASR 469 [55] (Doyle CJ).
Buss JA referred to five principal factors relevant to an application for an extension of time, without intending to be exhaustive.[21] His Honour referred to the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merit, the prejudice to the applicant if an extension of time is not granted, and the prejudice (if any) to the State or the Crown if an extension of time is granted.
[21] Wimbridge [45] (Buss JA).

Appellant's submissions

The appellant submits that an extension should be granted to prevent a miscarriage of justice. The appellant deposes that he 'did not receive any legal advice about the sentence or the timeframe for appealing' at the original hearing, and he candidly accepts that the present appeal was only initiated after he received legal advice following the further fraud charges which were laid against him on 11 February 2025.[22]
[22] Affidavit sworn by the appellant on 4 June 2025 (Folio 2); AS [10].
The appellant submits that, if he is convicted of the new fraud charges, he will become liable to serve the suspended term of imprisonment. It is submitted that this term was 'erroneously imposed' and forcing him to serve it would compound the initial sentencing error, resulting in a miscarriage of justice.[23] The appellant contends that the delay has caused no discernible prejudice to the State or to the victim.
[23] AS [46].
Both parties made submissions as to the merits of the proposed appeal as to sentence. The parties made reference to the brief plea in mitigation presented by the duty lawyer who represented the appellant at first instance. The duty lawyer emphasised the following matters:
(a) that the appellant was not the instigator but assisted a friend in return for a payment of $100;
(b) the appellant made full admissions upon arrest;
(c) the appellant was experiencing significant financial hardship but had recently returned to full-time work as a plumber, a trade he had worked in for some 15 years;
(d)the appellant had a limited criminal record, with only a single prior dishonesty offence for a minor fuel theft in 2020; and
(e)the disqualification of the appellant's driver's licence would cause 'significant issues' for his employment.

The Magistrate, in his remarks, concluded that the appellant's actions had 'made it possible for the items to be stolen' and the removal of the panels had 'created a potential situation of danger'. Further, the use of a vehicle to commit an offence was an abuse of the privilege of holding a driver's licence. The Magistrates made mention of the need for both general and personal deterrence.
The appellant submits that the sentence was not within the range of a sound sentencing discretion and error can be inferred. The appellant points to the following matters in support of the asserted error:[24]
(a)pursuant to the Sentencing Act, imprisonment (including a suspended term of imprisonment, should only be imposed as a last resort when no lesser option is appropriate;
(b)the offence should be characterised as a 'single instance of relatively low-level theft' which lacked sophistication and did not involve vulnerable victims, or any breach of trust;
(c)the value of the property, being $1,041, was only marginally above the $1,000 threshold, below which imprisonment is not a sentencing option for this offence when dealt with summarily;
(d)once the 25% discount for the early plea of guilty is taken into account, it can be inferred that the Magistrate's starting point was 8 months and 1 day, which is around 40% of the maximum term of two years which was available;
(e)the Magistrate gave little or no weight to significant mitigating factors, including the appellant's early plea, his cooperation, his financial hardship, his limited criminal record, and the lack of any prior community-based orders;
(f)the Magistrate's observation that he was considering imprisonment prior to hearing from the appellant's counsel is significant, as it gives rise to an inference that his Honour failed to consider lesser options and was improperly predisposed to a term of imprisonment based only on hearing the facts of the offence; and
(g)it is submitted that the Magistrate placed too much weight on the 'potential situation of danger' without any evidence as to the actual danger posed by the worksite.
[24] AS [40] - [41].

Respondent's submissions

The respondent opposes the application for an extension of time and characterised the delay as 'lengthy'.[25] In the context of the 28 day time period in the CA Act, I agree with this characterisation. The respondent contends that no exceptional circumstances have been identified and describes this appeal as a 'belated challenge' and an 'attempt to circumvent the legal consequences of the appellant's decision to re-offend during the suspension period'.[26] The respondent criticises the late appeal as having only been filed when the appellant 'became aware that new offences (presently pending) could trigger the suspended term of imprisonment'.[27]
[25] RS [10].
[26] RS [12].
[27] RS [11].
If the appeal were to be allowed, the respondent submits that the sentence should not be set aside ab initio.[28] Rather, the respondent contends the consequence of setting aside the sentence should be prospective, and the appellant 'will not necessarily be relieved of the consequences of re-offending during the currency of the suspended imprisonment order, notwithstanding that the order was liable to be set aside on appeal'.[29]
[28] RS [28] - [33].
[29] RS [31].
That said, the respondent, quite properly, accepted that it would be unjust in this particular case to order that the term of imprisonment previously suspended be served under s 80(1)(a), as required by s 80(3), if the sentence was prospectively set aside.[30]
[30] RS [32].
In any event, the respondent submits the sentence was not manifestly excessive. Rather, the sentence was available and it was open to the Magistrate to be satisfied that a lesser sentencing option was not appropriate. As to the seriousness of the offence itself, the respondent emphasised certain factors in this regard including that the removal of the fencing created a 'health and safety risk', the type of property stolen was 'notoriously difficult to secure from theft', and the offence was premeditated.[31]
[31] RS [20].
The respondent submitted that the value of the stolen property was not the only, or even the most important, factor. The respondent also pointed to the limited mitigation and that the 'only significant mitigating feature' was the appellant's early plea of guilty, noting he 'is not youthful, nor did he appear before the court as a person of prior good character'.[32]
[32] RS [21].
The respondent distinguished those cases where immediate imprisonment was imposed for similar offences, noting that the offenders in those cases had more significant criminal histories. The fact that the appellant received a suspended sentence, rather than an immediate term of imprisonment, reflected a point of distinction that made the sentence reasonable.[33]
[33] RS [26].

First issue – whether an extension of time ought be granted

Nature and extent of delay and explanation

The appellant's delay in filing this appeal is lengthy. The length of the delay requires a demonstration of exceptional circumstances.
The delay is explained by reference to the appellant's absence of legal advice. In truth, however, this appeal must be seen through the prism of the subsequent charges brought against the appellant. It is evident that those additional, fresh charges are the real catalyst for the appeal, with the appellant now rather belatedly attempting to avoid the legal consequences of his conduct during the period of suspension.
The appellant has given no indication that he attempted to seek legal advice about his rights at the time he was sentenced in August 2024. The appellant's affidavit provides only a narrow statement of fact, namely that he 'did not receive any legal advice about the sentence or the timeframe for appealing'.[34]
[34] Affidavit sworn by the appellant on 4 June 2025 (Folio 2) [6].
The appellant's statement does not take the matter very far.
There is no explanation from the appellant as to whether he took any steps to seek legal advice after the sentence was imposed. The absence of an explanation in this regard is significant. The appellant received a sentence of imprisonment at the hearing, albeit suspended, and he was represented at that hearing. He had access to legal advice at that stage. The statement that he did not receive legal advice does not address the question whether he took any steps in this regard, which strikes me as unusual given the sentence which had been imposed and the position the appellant took, through his lawyer, at the sentencing hearing.
In any event, accepting the appellant's sworn statement that he did not in fact receive such legal advice, it should not be thought as acceptable for a sentenced offender to take a passive approach to the exercise of his or her appellate rights. To allow an extension of time in such circumstances would significantly undercut the importance of the 28 day time period and the imperative that any appellate challenge to a sentence should be brought promptly.
The decision whether to appeal should not be driven, as I consider it was in the present case, by the prospective appellant's assessment as to whether or not the suspensive effect of the custodial sentence has come under jeopardy. That will, generally speaking, not constitute exceptional circumstances which are sufficient to ground an exercise of the discretion to extend the prescribed appeal period, and certainly not to the extent sought in the present case.
I do not regard the concatenation of events in this case as compelling and, indeed, I consider the matters relied upon by the appellant tend to explain why it is not in the interests of justice for an extension of time to be granted. I turn next to consider the merits of the proposed appeal.

Merits of the appeal

The appellant's contention that the sentence imposed was manifestly excessive depends on establishing an implied error from the type or length of sentence imposed. It is necessary to view the sentence in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type, and the personal circumstances of the offender.[35]
[35] Watson v The State of Western Australia [2022] WASCA 80 [43].
The discretion conferred on a sentencing court has been described as being of 'fundamental importance'.[36] An appellate court may not substitute its opinion as to sentencing for that of the sentencing court merely because it would have exercised the discretion in a different manner.[37]
[36] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [228] (Buss P, Mazza and Hall JJA) (Houghton).
[37] Houghton [228].
The sentencing discretion operates within the context of the statutory framework. Section 39(2) of the Sentencing Act sets out the sentencing options, in increasing order of seriousness.[38] The ultimate option is a term of immediate imprisonment, with less serious options including:
(a)conditional suspended imprisonment;
(b)suspended imprisonment;
(c)an intensive supervision order, and
(d)a fine.
[38] Sentencing Act, s 39.
Pursuant to 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 principles of sentencing are described in s 6 of the Sentencing Act, which include a clear statement that a sentence must be commensurate with the 'seriousness of the offence': s 6(1). The seriousness must be determined by then taking into account the statutory penalty, the circumstances of the offence, any aggravating factors and any mitigating factors: s 6(2). 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 the protection of the community requires it: s 6(4).
Further, s 76 of the Sentencing Act provides that a suspended term of imprisonment may not be imposed unless it would be appropriate, if suspension were not possible, to impose an immediate term of the same length.
As the respondent correctly submitted, in some circumstances different types of sentences may be reasonably open. That can be the case even though the court has to be positively satisfied that a lesser sentence is not appropriate.[39] In the absence of express error, the latitude of the sentencing court as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust.
[39] Fogg v The State of Western Australia [2011] WASCA 11 [8]-[9] (McLure P, Mazza J agreeing).
I accept that the question in the present case was therefore whether it was open to the sentencing magistrate to find that a less serious sentencing option was not appropriate.[40]
[40] Mason v The State of Western Australia [2018] WASCA 43 [55] - [56].
In the present case, the Magistrate approached the sentencing task by reference to the maximum penalty stipulated in s 426(2) of the Criminal Code, being two years' imprisonment and a fine of $24,000. Given the value of the property, that was the correct jurisdictional limit for the offence. It is important to recall, however, that the statutory limit for the offence is a term of seven years' imprisonment. It is the statutory limit for the offence, rather than the jurisdictional limit, which is relevant when determining the seriousness of the offence.[41]
[41] Corpus v Roseveare [2015] WASC 165 [49] (Hall J).
The respondent acknowledges that the sentence imposed in this case is toward the upper end of the available range. Indeed, it is evident the Magistrate used an 8 month period of imprisonment as a starting point in the sentencing process, before then applying the 25% discount in s 9AA(4) of the Sentencing Act. The respondent also accepts that the offending in this case was not the most serious example of a stealing offence.
The respondent nonetheless contends it was open to the Magistrate to conclude that a less serious sentencing option was not appropriate, and that no implied error has been demonstrated. In my view, there is considerable force in the respondent's submission. I have reached that view for the following reasons.
First, while the appellant has correctly submitted that the value of the property was only marginally in excess of the threshold, this emphasis is not the only relevant sentencing factor and not the most important factor in this particular case. It is also not correct to ignore the statutory thresholds in s 426 of the Criminal Code. These thresholds impose limits upon the exercise of the sentencing discretion. In the present case, the threshold having been exceeded, it became open to the Magistrate to impose a period of imprisonment.
Second, there were present in this particular case a range of factors which provided additional context to the circumstances of the appellant's offending.
The offending was premeditated in nature and not opportunistic.
Further, this type of offending, involving the removal of items from a construction site, is notoriously difficult to detect and to prevent, a matter to which the Magistrate properly had regard. In this sense, there is an aspect of general deterrence to which it appears the Magistrate had regard, concerning the prevalence of thefts from construction sites, an issue which has been the subject of public discourse in recent years in this State.
In the present case, the site in question was controlled by a government instrumentality, being the City of Swan. Theft of items from a local government is an expense ultimately borne by ratepayers.
Further still, the facts to which the appellant pleaded included a statement that the panels had been erected 'to keep people out of a construction zone'. The prosecutor expanded on that, by stating that the removal of fencing panels increased 'the risk'. This factual issue was not contested before the Magistrate. The Magistrate sentenced the appellant on the basis that the removal of the fencing panels 'created a potential situation of danger'. That finding was open, as a matter of reasonable inference, on the facts as presented, particularly without any challenge to that issue from the appellant or his counsel.
As a matter of common experience, fencing panels are put in place around construction zones to guard against the health and safety risks associated with members of the public trespassing onto such sites. Fencing panels are also designed to reduce theft from such sites, an issue to which the Magistrate also alluded. There may be other reasons for such fencing panels.
As I have said, it was open to the Magistrate to sentence on the basis that the removal of the fencing panels created a health and safety risk.
I do not regard the health and safety risk issue as an aggravating factor, in the strict sense of that term, but simply part of the circumstances of the commission of the offence. In this sense, it was not necessary for this fact to be proven by the prosecution to the criminal standard.[42] In any event, this factual point was not put in controversy below.
[42] LAW v The State of Western Australia [2009] WASCA 193 [33] (Buss JA, as his Honour then was).
As an aside, it must also be said that the potential for the appellant to now, nine months after being sentenced, place this factual issue in contest, is a factor which also points against the extension of time sought by the appellant.
Third, the appellant was not able to point to much in the way of mitigation, other than his early plea of guilty and cooperation. The Magistrate gave full credit to the appellant in this regard.
Fourth, both the appellant and the respondent recognise that sentences imposed for stealing offences can vary widely. The respondent has drawn the attention of the court to Wass v Director of Public Prosecutions,[43] Jackman v Director of Public Prosecutions,[44] and Coleman v Director of Public Prosecutions,[45] in this regard. Each of those cases involved sentences of immediate imprisonment, rather than a suspended term, in circumstances involving similarly-valued property items, although in the context of multiple charges.
[43] Wass v Director of Public Prosecutions [2024] WASC 391.
[44] Jackman v Director of Public Prosecutions [2023] WASC 63.
[45] Coleman v Director of Public Prosecutions [2025] WASC 144.
Fifth, the appellant's reliance on the remark made by the Magistrate, prior to the plea in mitigation, that he was considering a term of imprisonment, is misplaced. That was not, on a fair reading of the transcript, a statement that the Magistrate had prejudged the issue; rather, it was an observation made to assist counsel in presenting her plea in mitigation. For a judicial officer to say that he or she is 'looking at' a particular disposition is not conclusionary, and not a dispositive statement. Indeed, in the present case, the Magistrate, having listened to the plea in mitigation, concluded that the appropriate sentence ought by a term of suspended imprisonment.
Additionally, it is orthodox that such remarks, made in that context, do not form part of the sentencing reasons of the Magistrate.[46]
[46] Law v The Queen [2019] WASCA 81 [113].
Against the foregoing matters, it may be accepted, as the respondent has, that the sentence imposed by the Magistrate was stern. Another judicial officer may have imposed a different, lesser sentence. The severity of the sentence tends to indicate that the appellant's assertion that there was an implied error has at least some degree of merit. I would not characterise the appeal as strong, however, given the factors and circumstances I have outlined above, nor would I conclude that the sentence imposed, if left undisturbed, amounted to a miscarriage of justice.
The matters I have identified, taken together, provide a proper foundation for the Magistrate's implicit assessment that a less serious sentencing option would not have been an appropriate disposition. That is, I consider it was open to the Magistrate to conclude that a fine or some non-custodial disposition would not have been appropriate in all the circumstances.

Conclusion as to extension of time

In the present circumstances, the length of the delay in filing the appeal, the lack of cogency in the appellant's explanation for that delay, together with my assessment as to the prospects of the sole appeal ground, persuade me that the extension of time which is sought should not be granted.
I recognise that a denial of the appellant's rights operates to the prejudice of the appellant, but that is outweighed by the factors I have just mentioned, including the public interest in the finality of proceedings which must also be weighed in the balance.

Second issue – whether the sentence was manifestly excessive

It is unnecessary to further address the merits of the proposed appeal ground, which I have dealt with already.
The foregoing conclusion also renders it unnecessary to address the further issue raised on appeal, namely whether, if the sentence imposed by the Magistrate was set aside, the effect of that order ought be prospective only, as opposed to being an order by which the sentence was set aside ab initio. The respondent submitted that there is no particular reason in the present case why the Magistrate's sentence should be set aside as void ab initio if the appeal was allowed, relying on the approach adopted by the Court of Appeal in Dreja v The State of Western Australia.[47]
[47] Dreja v The State of Western Australia [2012] WASCA 151.
As I consider the challenge to the suspended sentence imposed by the Magistrate must be dismissed, it is unnecessary to express any view on this further issue.

Conclusion and orders

For the foregoing reasons, I will dismiss the application for an extension of time and the appeal itself.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
23 OCTOBER 2025