Debono v Director of Public Prosecutions for Western Australia - [2024] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DEBONO -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 188
CORAM:   HOWARD J
HEARD:   25 APRIL 2024
DELIVERED          :   17 MAY 2024
FILE NO/S:   SJA 1097 of 2023
BETWEEN:   JAMIE CHARLES DEBONO
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G RANDAZZO
File Number            :   AM 106/2001

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence imposed for offences under Criminal Code 1913 (WA) - Whether Magistrate erred in application of s 9AA of the Sentencing Act 1995 (WA) - Whether sentence imposed infringed the first limb of the totality principle - Whether miscarriage of justice arose from certain information not being before the Magistrate

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal be refused on Ground 1, 2, and 3
The application to adduce new evidence be refused
The appeal be dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	M L Wong

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151
Brooks v The State of Western Australia [2021] WASCA 156
Caruana v The Director of Public Prosecutions [2024] WASC 27
Donovan v Director of Public Prosecutions for Western Australia [2024] WASC 9
Garlett v Director of Public Prosecutions [2021] WASC 353
Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63
Marich v WA Police [2024] WASC 173
NI v The State of Western Australia [2020] WASCA 78
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v State of Western Australia (2005) 30 WAR 473
Vander Waide v The State of Western Australia [2019] WASCA 148

HOWARD J:

Convictions below and sentences appealed from

On 7 November 2023, at the Magistrates Court at Perth, the appellant entered pleas of guilty to 21 charges.
On 15 November 2023, he was sentenced to custodial sentences for seven of the offences. The remainder of the offences were dealt with by way of fines.
The appellant was represented at the sentencing hearing. At the sentencing, counsel for the appellant addressed in mitigation: the appellant's guilty pleas, the appellant's history of incarceration,[1] the appellant's prospects of rehabilitation,[2] the appellant's personal circumstances,[3] and the appellant's medical condition.[4] Relevantly, as to the last, no medical records, or expert reports, were handed up or otherwise before the Magistrate.[5]
[1] Sentencing ts 16.
[2] Sentencing ts 16.
[3] Sentencing ts 16; see also sentencing ts 18 - 20.
[4] Sentencing ts 15 - 17.
[5] Sentencing ts 15 - 17.
The appellant received a total effective sentence of 2 years' imprisonment, backdated to 7 September 2023 for time already spent in custody. He was made eligible for a parole.
This appeal is only concerned with the custodial sentences imposed.
A full list of the offences and sentences is set out in Annexure A to these reasons.

Grounds of Appeal

By an appeal notice filed 7 December 2023, the appellant sought leave to appeal against sentences of imprisonment imposed by the learned Magistrate.
The appellant filed:
1.an amended appeal notice on 22 December 2023 (but dated 20 November 2023);
2.a further amended appeal notice on 2 January 2024 (but dated 23 December 2023); and
3.an amended appeal notice on 6 February 2024 (Third Amended Appeal Notice) (but dated 5 February 2024); this was prepared with the assistance of Legal Aid Western Australia.
Legal Aid (who was then assisting the appellant in a limited capacity), indicated that the Third Amended Appeal Notice was intended to supersede the previously filed appeal notices. That was the basis on which the appeal hearing proceeded.
The appeal grounds in the Third Amended Appeal Notice are:
1.the Magistrate erred in his application of s 9AA of the Sentencing Act 1995 (WA)(in failing to grant the appellant a full 25% reduction on his sentence attributable to a plea of guilty);
2.the Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle; and
3.a miscarriage of justice arose from the fact that medical information relating to the appellant was not before the Magistrate.

Relevant provisions for this Appeal

The appellant seeks to appeal pursuant to s 7(1) and ss 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's sentencing is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each appeal ground.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[6]
[6] Samuels v State of Western Australia (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).

The charges and convictions

In respect of the charges with which this appeal is concerned, the following facts were read by the prosecution at the sentencing hearing:
1.PE 54066 of 2022 (sentence: 4 months' concurrent): stealing against s 378 of the Criminal Code:
Between the hours of 5.30 pm on Saturday, 5 November 2022 and 11 am on Sunday, 6 November 2022, the accused was at 144 Odin Road in Innaloo, Western Australia. The accused walked down the vacant neighbouring property driveway and gained access to the victim's driveway by jumping the fence. The accused entered a detached shed located towards the rear of the property via an open roller door.[7]
[7] Trial ts 12; this formed part of a trespass charge 54065/2022 (dealt with by a fine): see Annexure A.
Whilst inside the garage the accused rummaged through the victim's property, opened a cupboard to access a safe that was bolted to a wall. During this the accused left behind latent fingerprint on the door of the safe. The accused was arrested and later released to summons. Explanation offered of, 'I don't know how my fingerprint would have gotten there'.
…
Whilst at the address of 144 Odin Road at the previous trespass mentioned the accused stole a large number of Ryobi, Milwaukee and Bosch power tools as well as three large trays of meat; 45 litre portable fridge; portable washing machine; and a mountain bike. Total value of the combined property $8800. At 12.58 pm on 6 November last year the accused hocked the portable fridge freezer at Cash City, Guildford.
At 5.46 pm the same day the accused hocked a number of Ryobi power tools to Cash City Cannington. These items were recovered by police and returned to the victim. The accused was captured on CCTV at Cash City making the transactions and while there the accused signed a tax invoice as well as a pawn ticket. The accused was later arrested and released to summons with the present charges proffered.[8]
[8] Sentencing ts 12.
2.PE 5456 of 2022 (sentence: 2 months' concurrent): stealing against s 378 of the Criminal Code:
At approximately 4 am on Monday, 28 November 2022, the accused gained entry to a white Isuzu D-MAX utility truck. The vehicle was parked outside 66 Mackie Street in Victoria Park. The accused stole 14 miscellaneous tool items valued at approximately $3570 from the toolbox situated at the back of the vehicle.
On Monday, 5 December in the early hours of the morning the accused returned a number of the stolen items to the victim's front door. About six miscellaneous tool items were still missing, valued at approximately $1530. The incident was captured on CCTV. At approximately 11.50 am the accused was arrested at 68 Leonard Street, Vic Park. The accused participated in a field interview where full admissions were made. The accused was charged and released to summons. Offered an explanation of, 'I'm sorry'.[9]
[9] Sentencing ts 12.
3. PE 10564 of 2023 (sentence: 7 months' head sentence): being armed in a way that may cause fear against s 68(1) of the Criminal Code:
At 5.55 pm on Tuesday, 28 February this year, the accused walked along Albany Highway near McMillan Street in Victoria Park in company of another male not charged. The accused was holding a metal pole in his hands and swinging it around in an erratic manner. The accused was swearing loudly and saying words to the effect of, 'I'm sick of everyone', and using the C word frequently.
The two victims were also nearby. One walked towards the accused and his companion on Albany Highway. The other was seated in a vehicle outside 441 Albany Highway. Victim Duffy felt nervous immediately, and as she passed the accused felt she needed to cross the street. Seconds after crossing paths with the accused, victim Duffy heard the sound of glass smashing behind her. The - she ran across Albany Highway into a nearby shop. She later provided a statement to police describing feeling terrified and her hands shaking in fear.
The second victim, Shahandrupahl, was seated in a vehicle, a white MG HS vehicle, registration ARV 12. The accused approached the rear of this vehicle holding the metal pole. He also provided a statement to police describing feeling afraid and his hands shaking in fear. Both victims called police who attended, sighting the accused. He briefly attempted to run and hide from officers before being located in a street laneway adjacent to McMillan Street.
He was arrested and conveyed to Kensington Police Station where he consented to an uncharged suspect identifying procedure, photographs of him and his clothing. He was subsequently released for further inquiries.[10]
[10] Sentencing ts 10 - 11.
4.PE 17934 of 2023 (sentence: 3 months' concurrent): stealing against s 378 of the Criminal Code:
At 4.30 pm on Friday, 24 March this year, the accused was at the front of the Vic Park TAB, King George Street, Vic Park. The accused walked past a Holden Colorado utility bearing registration plate 1GUU 136 where he sighted a large Milwaukee toolbox on the tray of the vehicle. The accused lowered the tailgate and climbed into the tray of the vehicle where he removed the toolbox. The accused then wheeled the toolbox from the area. The toolbox and items inside belonged to Caden Posani, the victim in the matter.
The incident was captured on CCTV. Approximate value of the tools is $4500. On Saturday, 8 April this year, the accused was located and arrested on George Street, Kensington. The accused was conveyed to Kensington Police Station where he participated in an electronic record of interview making full admissions. The accused was charged with the current charges and bail refused. An explanation was offered of, 'I sold it to put food in the fridge'.[11]
[11] Sentencing ts 10.
5.PE 27113 of 2023 (sentence: 7 months' concurrent): being armed in a way that may cause fear against s 68(1) of the Criminal Code:
On Tuesday, 30 May, this year at 6.38 pm, the accused was near 6 McMaster Street, Victoria Park, with a wooden table leg in his possession. The accused was yelling and screaming whilst in possession of the leg and swinging it around towards cars. The accused used the table leg to hit rubbish bins and knock them over in the street. After multiple calls to police they attended and found the accused around the corner from the original address on Gloucester Street, Vic Park.
The accused was still holding the table leg in an aggressive manner and appeared to be having an argument with himself. Police asked the accused multiple times to put the leg down and he finally did. The accused was arrested for the matter and conveyed to the Perth Watchhouse. Bail was refused. The accused offered an explanation of, 'I wanted to be arrested'.[12]
6.PE 33201 of 2023 (sentence: 8 months' cumulative): being armed in a way that may cause fear against s 68(1) of the Criminal Code:
At 8.42 am on Friday, 30 June this year, the accused was standing on a platform of Victoria Park Train Station in Lathlain. The accused approached the victim and said, 'Do you want to go one on one?'. The victim retreated into his office. The accused produced a meat cleaver and waved it in the air. The accused then hit a post at the train station with the meat cleaver.
Other members of the public were present on the train station platform when this occurred - when the accused was waving the meat cleaver in the air. Due to being fearful, the victim remained in the office and called for PTA attendance. PTA officers attended. When the accused sighted the PTA officers he dropped the meat cleaver. Police attended and the accused was conveyed to Kensington Police Station. He was charged and bail refused. He offered an explanation of, 'It's for protection. People are after me'.[13]
7.PE 44576 of 2023 (sentence: 9 months' cumulative): being armed in a way that may cause fear against s 68(1) of the Criminal Code:
At 1.25 pm on Thursday, 7 September 2023, the accused was on Barrack Street near Murray Street in Perth. This location is the heart of the central business district and the entrance to the pedestrianised Murray Street Mall. At the material time the area was bustling with inner city workers, members of the public utilising the many retail and food outlets located in the vicinity.
The accused produced a 23 centimetre kitchen knife in his right hand and used the edged article in a manner that caused fear to several members of the public, resulting in several calls to the police for assistance. He was observed by one victim to act in an aggressive manner, shout out offensive remarks and make lunging motions with the knife resulting in significant fear that someone would be seriously injured or harmed.
After utilising the knife in the aforementioned manner he proceeded to conceal it down the front of his trousers prior to entering the Murray Street Mall. Police initiated an emergency response. The accused was tracked using City of Perth CCTV. The accused was physically apprehended by police and swiftly taken to the ground without incident. Officers searched the accused locating the knife on his person still secured in the front of his waistband trousers. The accused offered no particular explanation for possessing the knife, causing fear to the public as outlined. The accused was advised of the offence and present charges proffered.[14]
[12] Sentencing ts 9.
[13] Sentencing ts 7.
[14] Sentencing ts 3 - 4.
In relation to this last charge (PE 44576 of 2023), at the hearing of this appeal, the appellant emphasised that he disputed that he had lunged at anyone.[15] However, the appellant accepted that dispute and argument could not be made on this sentencing appeal,[16] where the material facts as read to the court had been accepted by the appellant and had formed the basis of the Magistrate's sentencing.
[15] Appeal hearing ts 94 - 97, 109.
[16] Appeal hearing ts 94.

Consideration of the appeal grounds

Ground 1:

The appellant's submissions simply state:
The appellant submits that he should have been given a higher discount pursuant to s 9AA for the offending on 7 September 2023. The appellant pleaded guilty after 3 adjournments, and two months after the appellant first appeared in Court for the offence PE 44576/2023, being armed in a a way that may cause fear.[17]
[17] Appellant's submissions filed 14 February 2024 at [15].
It is apparent that the Magistrate dealt with all the charges and s 9AA of the Sentencing Act globally in his sentencing. By that, I mean that the Magistrate did not expressly apply a discount to each offence one by one.
So, by way of example, the following exchange occurred between the appellant's counsel and the Magistrate:
HIS HONOUR: So what I'm asking you to address more specifically is the extent of mitigation for the plea of guilty.
WOODFORD, MR: Yes. Pretty soon after he received a full set of advice about everything then he could get the total picture of what - - -
HIS HONOUR: Well, for example, in relation to being armed, charge 10564 at Victoria Park, and this was the charge where he was seen to be swinging around the instrument - the metal pole and was seen initially by - well, in fact, not necessarily initially but by two named persons in the facts, a Duffy and a person by the name of Avinda Shahandrupahl who was also in a vehicle at one point in time.
The record of proceedings shows that the first mention of that charge was initially early listed on 16 March; 22 March; 5 April; 3 May was a bail application; 31 May; 14 June; 17 June; 28 June; 8 July; 12 July; 31 July; 17 October, and I see that your name features on the 17 October appearance. 30 October, and I do note that was for trial allocation incidentally, but on 7 November he entered a plea. So the point that I make is - using that as an early charge - that there have been multiple appearances by this accused in court.
WOODFORD, MR: Yes. I understand from people who were representing him before me that they simply ran out of time to deal with it because they had other pressing commitments and - - -
HIS HONOUR: All right.
WOODFORD, MR: But - - -
HIS HONOUR: But I want to make it clear and hear your submission: this cannot be said to be a plea of guilty at the first reasonable opportunity. Do you accept that on his behalf?
WOODFORD, MR: It is the first reasonable opportunity after.
HIS HONOUR: The first reasonable opportunity after that number of appearances, including trial allocation?
WOODFORD, MR: After he received the - the - the advice about the full effect of his - the full picture of what his circumstances were he took that virtually immediately. It's one of the problems when things keep cropping up that when they settle down after someone gets into custody that's when his representation can put the full set of things to him. If things just keep cropping up all the time then they just build up, but once custody arises he's in a position where he can be given the advice about the full picture. He takes it straight away.[18]
[18] Sentencing ts 21 - 22.
As may be seen, in the above exchange, the Magistrate referred to charge PE 10564 of 2023.
The charge referred to in the appellant's submission however (PE 44576 of 2023), was similarly before the Court on a number of occasions prior to the plea of guilty being entered. The appellant's submission, as quoted, referred to three adjournments and two months after the first appearance. Accepting that as correct, it does not, on its face, show that the Magistrate was wrong to conclude that the plea of guilty (on charge PE 44576 of 2023) had not occurred at the first reasonable opportunity.
In his sentencing remarks, the Magistrate said:
I also want to make clear that in terms of mitigation, I readily accept that the plea of guilty, entered on 7 November and, of course, today, are pleas of guilty that require - and I do reduce the penalty which might otherwise be imposed upon him.
The pleas of guilty have had benefits in this sense, very clearly. The prosecution has not had to continue preparation towards any trial. I do note that, at one point, there had been an intention to set a trial date in relation to some matters. It appears that there had been limited preparation by the prosecution. The senior constable has conceded that. But, in any event, ultimately, there has been no plea of not guilty actually entered and, therefore, no trial had to take place.
No preparation by the prosecutor. No witnesses had to be prepared to give evidence, because, of course, these matters have now resolved by pleas of guilty. As against that, I also note that in my judgment, these are pleas that cannot be said to have been entered at the first reasonable opportunity. I do not accept Mr Woodford's contention, to the extent that he was putting it otherwise, that these are pleas of guilty entered the first reasonable opportunity.
By way of illustration, I outlined to Mr Woodford the number of appearances and multiple appearances that were the subject of charge 10564 before the plea of guilty was entered on that charge, on 7 September. I also weigh into the balance in assessing the extent of the reduction, not only the timing of it, but I realise that this is an accused who has, at times, had different representation, at times is self-represented and, of course, he would have, necessarily, needed some advice.
Fortunately, Mr Woodford was able to give him some further advice and, therefore, I temper the extent to which I take the view that these are delayed pleas. But it cannot be said, in my judgment, that these are pleas of guilty entered at the first reasonable opportunity.
Therefore, for the purposes of section 9AA of the Sentencing Act, in respect of any head sentence, before any other mitigation is taken into account, weighing into account that these are pleas of guilty entered at that time and, in my view, not at the first reasonable opportunity but, equally, to some extent, delayed, I am of the view, also taking into account the strength of the prosecution case in respect of all of these charged offences, that this was a prosecution case that was, relatively, strong.
There were witnesses to much of the accused's offending. In some instances, there was forensic evidence implicating him and, also, there were admissions made by this accused in respect of some of the offences, but not all. So in assessing the percentage reduction for the purposes of section 9AA of the Sentencing Act, in respect of each and every one of these offences, I would express the percentage reduction as 18 per cent.
I'm not prepared to give him, certainly, the maximum of 25 per cent and, in my view, assessing all of those factors, the percentage reduction should be 18 per cent, in respect of each of these offences. I also want to make it clear that I regard, on the occasions - and there were some occasions that were outlined in the facts where the accused made admissions. He made admissions to police but not on each and every one of the occasions.[19]
[19] Sentencing ts 27 - 28.

The relevant general principles relating to the application of s 9AA of the Sentencing Act were outlined in Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [45] - [62] (Buss JA with whom McLure P agreed); and in NI v The State of Western Australia [2020] WASCA 78 [60] - [68] (Buss P, Mazza and Mitchell JJA).
The Court of Appeal in NI stated [65]:
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
(citations omitted)
Further, the Court of Appeal in NI stated at [68] relevantly for this appeal:
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.
(citations omitted)
Applying those statements, I do not detect an error in the way that the Magistrate considered and applied s 9AA of the Sentencing Act in this case and gave the appellant, globally, an 18% discount.
Further, from the sentencing remarks quoted above, it was observed by the Magistrate that in relation to the charged offences, the prosecution cases were relatively strong.
No error is apparent in the Magistrate expressing his consideration of a discount for the pleas of guilty in a global way. It has often been said that a Magistrate's sentencing remarks are to be read as a whole, in context (which include relevant exchanges with counsel), and with regard to the busy workload of the Magistrates Court, and not with an eye finally tuned for error.[20]
[20] See for example Marich v WA Police[2024] WASC 173 [28] (Forrester J) and the cases cited therein.
Even if, consistently with the appellant's submissions, one was to isolate out the charge PE 44576 of 2023, it seems, with respect, that the Magistrate in not applying the maximum discount, in and of itself, does not disclose an error. That is in the circumstances where it was open to conclude that the plea was not entered at the first reasonable opportunity, and the prosecution case was strong.

Ground 2:

The appellant submits that when considering both his personal circumstances, and the relevant authorities, the total effective sentence of 2 years' imprisonment was in breach of the first limb of the totality principle.
There was no ground or submission to the effect that any one of the sentences imposed were manifestly excessive.
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard as to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] (Steytler P, McLure and Miller JJA).
This Ground asserts an implied error. An appellate court (including on a single judge appeal), is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge or magistrate: Roffey [23].
The appellant's written submissions stated that it was difficult to find cases with similar offending; and accepted that 'the appellant committed significantly more offences than any of the cases'[21] referred to in the written submissions.
[21] Appellant's outline of submissions filed 14 February 2024 at [7].
The appellant's submissions referred to the following cases.
In Garlett v Director of Public Prosecutions [2021] WASC 353 (McGrath J), the appellant was walking around the streets with a pitchfork. Several people called the police. When police approached, the appellant was initially aggressive and then compliant. For the weapon offence, after pleading guilty at the first possible opportunity, he received a period of 7 months' imprisonment, which included a 20% sentencing discount. Aggravating factors in this instance included the multiple phone calls to the police, the aggressive manner in which the appellant initially presented to the police, and the appellant's criminal record. McGrath J dismissed the appeal.
In Donovan v Director of Public Prosecutions for Western Australia [2024] WASC 9 (Whitby J), the appellant, after having stolen goods from a service station, returned, tapped on the window with an axe, and showed the service station attendant the weapon. In this instance, the offending also included other offences relating to breaches of a post-sentence supervision order, burglary, and other low-level dishonesty offences. For the weapons offence, the appellant received a term of 2 years' imprisonment, which on appeal was reduced to 14 months. In this instance it was found that the total effective sentence of 2 years and 3 months (for the weapons offence and the burglary offence) was not in breach of the first limb of the totality principle. However, as a result of the appeal, the total effective sentence was reduced to 1 year, 10 months and 23 days.
In Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63 (Derrick J), the appellant appealed his sentence for criminal damage and stealing. The appellant was intoxicated and got into an altercation with a man on a mobility scooter. He then stole the scooter and drove it into a bollard, causing significant damage to the scooter, rendering it inoperable. For the property damage offence, the appellant received a term of 9 months' imprisonment, which on appeal was reduced to 7 months and 2 weeks' imprisonment (head sentence) (on the basis of an error of law), and 6 months for the stealing offence (which was ordered to be served concurrently).
In addition to those cases, the respondent referred to Caruana v The Director of Public Prosecutions [2024] WASC 27 (Lemonis J), where the appellant was convicted of two offences: being armed with an intention to cause fear, and a threat to kill. The appellant was in a public place, where he pulled out a knife and threated the victim who was unknown to him. For the weapon offence, the appellant was initially sentenced to 9 months' imprisonment, which on appeal was reduced to 7 months on the basis of an error of law by the learned Magistrate. The total effective sentence imposed on the appellant was 15 months. On appeal, no finding was made as to the totality of the initial sentence imposed by the learned Magistrate.
The maximum sentence for stealing against s 378 of the Criminal Code, if no other punishment is provided, is imprisonment for 7 years.[22]
[22] The appellant's offending does not fall into the categories specified by s 378 (1) - (9) of the Criminal Code, and so the maximum penalty is 7 years.
The maximum sentence for being armed in a way that may cause fear against s 68(1) of the Criminal Code is, if tried summarily, imprisonment for 3 years and a fine of $36,000.
As noted above, three of the sentences for offences against s 68(1) of the Criminal Code were to be served cumulatively, while the fourth was to be served concurrently. Each of the stealing sentences were ordered to be served concurrently.
The appellant has a significant criminal record including previous sentences of imprisonment. In his submissions he accepted that he was not youthful nor of prior good character.[23]
[23] Appellant's written submissions filed 14 February 2024 at [12(a)].
The principal personal circumstances on which the appellant relied in this Ground were multiple identified past traumatic events which have had a serious impact upon him; they included being the victim of a rape and a separate incident of wounding inflicted upon him by his partner.[24]
[24] Appellant's written submissions filed 14 February 2024 at [12(b)].
As to the totality of the sentences imposed, the learned Magistrate said:
…I'm very conscious that there is a need to ensure that the terms of imprisonment, like the fines, take account of the - what's called the totality principle.
The totality principle is well-known to the court and I want to make it clear that this total effective sentence that is to be imposed is, in my judgment, going to bear a proper relationship to the overall criminality, viewed in the entirety of the offences and, also, having regard to the circumstances of the case and, also, particularly referable to this accused, personally.
The practical effect of the totality principle, in the end, will result in an aggregate sentence that is less than would otherwise be arrived at by, simply, adding up all of the terms that, in my judgment or otherwise, appropriate to the individual sentences. I also make it clear that I have ensured that the aggregate sentence of imprisonment is not going to be crushing of this accused, in the sense of connoting a destruction, any reasonable expectation of useful life after that release from a term of imprisonment.
I also want to make it clear that, in my judgment, there were a number of offences that were distinct and separate, and deserving of distinct, separate, cumulative sentence. I have sacrificed, for totality reasons, and extending a degree of leniency to this accused, to not make some of those sentences, which would, ordinarily, be deserving of a cumulative sentence to be served cumulatively on the head sentence…[25]
[25] Sentencing ts 34 - 35.
As noted, the question for this Court is not whether it would have imposed the same or similar sentence upon the appellant. The question is whether the total effective sentence imposed reveals an error. That error, in this case, must be that the Magistrate imposed a total effective sentence that no reasonable sentencing officer would have imposed.
Taking into account that:
1.four of the charges were against s 68(1) of the Criminal Code and members of the public were involved in, or affected by, the offending;
2.the Magistrate did not, simply, aggregate the terms of imprisonment for the seven offences;
3.the appellant's antecedents;
4.the spread of the dates of the relevant offending; i.e. there was distinct offending; and
5.some of the offences were committed while the appellant was on bail;
it cannot be said, in my judgment, that no reasonable sentencing officer could have imposed the total effective sentence imposed here.
In all of the circumstances, I am unable to reach the conclusion that the Magistrate erred.

Ground 3:

As to the appellant's medical conditions, the following exchange occurred between the learned Magistrate and counsel for the appellant:
HIS HONOUR: Now, it's not being suggested, is it, that there's any mental impairment that's causative of this offending?
WOODFORD, MR: There is a suggestion, but there's also a suggestion that it would be a drug induced psychosis type of situation because a lot of the behaviour, particularly in the being armed - I can't resile from the possibility that might be an amphetamine induced episode.[26]
HIS HONOUR: Where's the evidence of that?
WOODFORD, MR: There's no evidence of it, and there's no evidence of it being a psychosis either. The suggestion has arose [sic] from 'I thought people were after me'.[27]
[26] See also, Sentencing ts 20.
[27] Sentencing ts 17.
The appellant's written submissions stated:
17.The appellant received medical documents after the sentencing hearing which detail a period of drug induced psychosis suffered by the appellant in December 2022 to January 2023.
18.These documents were not before the learned Magistrate.
19.The appellant submits that had these documents been taken into account by the Magistrate a different, and lower sentence would have been imposed as they highlight his mental health struggles at a period of time when the appellant was offending. The material also confirms the appellant's paranoid beliefs at a time relevant to the offending the subject of this appeal.[28]
[28] Appellant's written submissions filed 14 February 2024.
The appellant's written submissions correctly identified that the principles as to adducing new evidence on an appeal are relevantly set out in Vander Waide v The State of Western Australia [2019] WASCA 148 [43] (Buss P, Mazza JA and Hall J):
In LWD v The State of Western Australia and, most recently, in Wellstead v The State of Western Australia, this court set out the relevant principles applicable to the admission in an appeal against sentence of additional evidence not available to the primary judge. It is enough for present purposes to reiterate that:
(a)an appeal against sentence can only succeed where an appellate court concludes that a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA) (the CA Act);
(b)an appellate court may be persuaded to reach such a conclusion by the establishment of a material express or implied error, or a miscarriage of justice;
(c)in the context of an appeal against sentence, an appellate court may be persuaded of a miscarriage of justice based on additional evidence which was not before the sentencing court, where that evidence shows that the appellant had a mental impairment that existed prior to sentencing and was undiagnosed, or its nature and significance were not known or appreciated until after the sentencing; and
(d)where such evidence is sought to be adduced, the appeal against sentence cannot succeed unless it is demonstrated that had it been before the sentencing judge, a different sentence should have been imposed.
(citations omitted); see also Brooks v The State of Western Australia [2021] WASCA 156 [130].
I have considered the medical records which the appellant now seeks to rely on. The records were made between 22 and 28 December 2022 inclusively.
As may be seen from the dates of the offending in Annexure A, at its highest, it may be said that the diagnoses and observations contained in the medical records may have had a direct bearing temporally on a small number of the 21 offences, including some only of those in respect of which the appellant received terms of imprisonment.
More particularly, it is not apparent, with respect, that counsel who appeared before the Magistrate on the sentencing would, or could, have made any different submission as a matter of substance, from the one made as quoted above. That is, in my judgment, even if the medical records were handed up and taken into account by the Magistrate, the essential submissions made by the appellant's counsel would not have been materially different.
In all of the circumstances, even if the medical records were before the Magistrate, I do not consider it demonstrated that a different sentence would necessarily, that is 'should', have been imposed: cf Vander Waide [43(d)] quoted above.
Again, the question is not whether this Court would have imposed a different sentence, but rather whether there was a miscarriage of justice due to the sentence that was imposed without the medical records being before the Magistrate.
In all of the circumstances, I do not consider that such a miscarriage has been established.

Orders

I will make Orders in terms of the respondent's Minute of Proposed Orders in the following terms:
1.Leave to appeal be refused on Grounds 1, 2 and 3.
2.The application to adduce new evidence be refused.
3.The appeal be dismissed.
I will hear the parties as to costs.

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

JR Associate to Hon Justice Howard

17 MAY 2024

Annexure A

Custodial Sentences

Prosecution Notice	Charge	Offence	Date of offence	Penalty
PE 54066/ 2022	Stealing	Criminal Code (WA) s 378	05/11/2022	4-months (CC)
PE 5456/ 2023	Stealing	Criminal Code (WA) s 378	28/11/2022	2-months (CC)
PE 10564/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	28/02/2023	7-months (CM) (Head Sentence)
PE 17934/ 2023	Stealing	Criminal Code (WA) s 378	24/03/2023	3-months (CC)
PE 27113/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	30/05/2023	7-months (CC)
PE 33201/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	30/06/2023	8-months (CM)
PE 44576/ 2023	Being armed in a way that may cause fear	Criminal Code (WA) s 68(1)	07/09/2023	9-months (CM)

Non-Custodial Sentences (fines)

Prosecution Notice	Charge	Offence	Date of offence	Penalty
PE 54065/ 2022	Trespass	Criminal Code (WA) s 70A (2)	5/11/2022	$1,000
PE 9537/ 2022	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	12/02/2023	$1,000
PE 10565/ 2023	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	28/02/2023	$1,000
PE 17935/ 2023	Unlicensed possession of ammunition	Firearms Act 1973 (WA)	08/04/2023	$400
PE 31530/ 2023	Stealing	Criminal Code (WA) s 378	31/03/2023	$500
PE 31531/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	31/03/2023	$500
PE 31532/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	01/04/2023	$500
PE 31533/ 2023	Gaining benefit by fraud	Criminal Code (WA) s 409(1)(c)	01/04/2023	$500
PE 33202/ 2023	Possess a prohibited drug (cannabis)	Misuse of Drugs Act 1981 (WA) s 6(2)	30/06/2023	$300
PE 40375/ 2023	Disorderly behaviour in public	Criminal Code (WA) s 74A (2)(a)	11/08/2023	$400
PE 42750/ 2022	Trespass	Criminal Code (WA) s 70A (2)	04/08/2023	$1,000
PE 42751/ 2023	Stealing	Criminal Code (WA) s 378	04/08/2023	$750
PE 42752/ 2023	Criminal damage to property	Criminal Code (WA) s 444(1)(b) A	08/08/2023	$1,000
PE 53321/ 2022	Possession of stolen property	Criminal Code (WA) s 417(1)	07/09/2023	$750