DPP (Vic) v O'Brien - [2021] WASCA 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JOHNSON -v- VANDER SANDEN [2021] WASCA 27
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   4 NOVEMBER 2020
DELIVERED          :   17 FEBRUARY 2021
FILE NO/S:   CACR 150 of 2020
BETWEEN:   DAVID JOHNSON
Appellant
AND
ASHER FAYE VANDER SANDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HILL J
File Number            :   SJA 1064 of 2020

Catchwords:

Criminal law – Appeal against sentence – Failure to comply with a direction under Emergency Management Act2005 – COVID-19 pandemic – Whether court required to impose sentence of imprisonment greater than 6 months – Whether suspended imprisonment may be imposed for 6 months or less

Legislation:

Emergency Management Act 2005 (WA), s 86
Sentencing Act 1995 (WA), s 6, s 39, s 76, s 77, s 80, s 86
Sentencing Legislation Amendment Act 2004 (WA), s 4
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 33(3)

Result:

Leave to appeal refused on grounds 1, 2 and 3
Leave to appeal granted on ground 4
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	A L Forrester SC and L M Fox SC
Respondent	:	S B Watters

Solicitors:

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

Cases referred to in decision:

Almonte v Beswick [2013] WASC 207
Casotti v Pickering [2013] WASC 174
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duong v State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
Nikora v The State of Western Australia [2018] WASCA 235
SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Vander Sanden v Johnson [2020] WASC 331
Vickery v McAlinden [2017] WASC 224

Table of Contents

Introduction and summary

Background facts

Proceedings before the learned magistrate

Appeal before Justice Hill

Grounds of appeal

Statutory context

Grounds 1, 2 and 3 – is s 86 irrelevant to the type of sentence that may be imposed?

Ground 4 – does the prohibition in s 86 apply to suspended imprisonment?

Conclusion

JUDGMENT OF THE COURT:

Introduction and summary

This is a State appeal against the decision of Hill J, in which her Honour allowed the respondent's appeal against the sentence imposed upon her in the Magistrates Court for an offence of failing to comply with a direction given under the Emergency Management Act 2005 (WA).[1] The particular direction, the subject of the charge, was the Quarantine (Closing the Border) Directions made under the Emergency Management Act in response to the COVID‑19 pandemic.
[1] See Emergency Management Act 2005 (WA) (Emergency Management Act), s 86.
The public interest underlying the Quarantine (Closing the Border) Directions is obvious and requires no elaboration. The failure of the respondent to comply with that direction, as Hill J recognised, required that a sentence be imposed upon the respondent that properly reflected the need for both general and personal deterrence.[2]
[2] Vander Sanden v Johnson [2020] WASC 331 (Primary reasons) [42].
Nevertheless, the sentencing of persons under the Emergency Management Act, in times of emergency such as the COVID‑19 pandemic, does not involve some special category of case in which the law is to be applied differently than in other times. The rule of law remains unaffected and the fundamental principles of the criminal law continue unaltered.
One of the fundamental principles of law that applies in this State, which is clearly expressed in the Sentencing Act 1995 (WA), is that imprisonment, and in particular immediate imprisonment, is a punishment of last resort.[3] A court sentencing an offender must not impose a sentence of imprisonment unless satisfied, having regard to pt 2, div 1 of the Sentencing Act, that it is not appropriate to use any other sentencing option, including the option of suspended or conditionally suspended imprisonment.[4]
[3] Sentencing Act 1995 (WA) (Sentencing Act), s 6(4), s 39(3); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale) 328 [14] (Gleeson CJ & Hayne J).
[4] Sentencing Act 1995 (WA), s 39(3).
It follows from these principles that a judge or a magistrate who sentences an offender to a term of immediate imprisonment, without giving consideration to whether the term should be wholly or partly suspended or conditionally suspended, will have made an error of law.
In the present case, Hill J concluded that the learned sentencing magistrate made such an error when he sentenced the respondent to a term of immediate imprisonment of 6 months and 1 day. Hill J also concluded that the sentence of immediate imprisonment was unreasonable or plainly unjust. Her Honour resentenced the respondent to a community based order.
The appellant, who was represented by the Director of Public Prosecutions in the appeal, did not challenge Hill J's conclusion that the learned magistrate had made an error of law in imposing the original sentence. That is, the appellant accepted that the initial sentence was imposed in error and that it was necessary to resentence the respondent. Ultimately, therefore, the appeal was only concerned with the sentence imposed by Hill J, when her Honour resentenced the respondent.
In that context, the appellant made two broad submissions relevant to the sentencing exercise in the present case.
First, the appellant submitted that s 86 of the Sentencing Act, which provides that (subject to certain exceptions) a court must not sentence an offender to a term of imprisonment of 6 months or less, operates to require the court to impose a sentence of no less than 6 months and 1 day, where the appropriate sentence would otherwise be a term of imprisonment of less than 6 months.
Secondly, the appellant submitted that the prohibition in s 86 of the Sentencing Act, does not apply to a term of a suspended imprisonment. That is, the appellant submitted that it was open to a court to impose a suspended term of imprisonment of 6 months or less.
Both submissions advanced by the appellant must be rejected.
For the reasons that follow, on a proper construction of the Sentencing Act as a whole:
(a)subject to the express exceptions in s 86 of the Sentencing Act itself, the prohibition in that provision operates such that a sentence of imprisonment exceeding 6 months may only be imposed if, applying all relevant sentencing laws and principles, a sentence in excess of 6 months would be appropriate. Section 86 does not in effect, as the appellant submitted, create a mandatory minimum sentence of 6 months and 1 day for any offence for which, in the absence of s 86, a term of imprisonment of 6 months or less might have been appropriate; and
(b)the prohibition in s 86 of the Sentencing Act applies to the imposition of a term of suspended imprisonment. That is, subject to the express exceptions in s 86, a court must not impose a term of suspended imprisonment of 6 months or less. That is because a suspended sentence may not 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.
It follows that the appellant has not established that Hill J was in error. The appeal should therefore be dismissed.
One matter should be made clear, however, lest there be any confusion. Hill J did not find that a partly or wholly suspended term of imprisonment could not have been imposed by the learned magistrate. On the contrary, her Honour considered that such a sentence would have been within the range of appropriate sentences. Hill J made clear that the reason that she sentenced the respondent to a community based order was because the respondent had already spent 3 weeks in custody and her Honour could not, as a matter of law, impose a suspended sentence of imprisonment for a term of 6 months or less. For the reasons that follow, her Honour was correct to so conclude.

Background facts

The facts may be briefly stated.
On 30 July 2020, the respondent was granted an approval to enter Western Australia from Victoria, where she had been for approximately one month visiting and assisting her sister who was unwell. On her arrival back into Western Australia, the respondent was required to comply with the terms or conditions of the approval, including a quarantine direction. The approval included a requirement that the respondent quarantine for 14 days at a quarantine centre at her own expense.
Between 31 July and 1 August 2020, the respondent was in Mildura, in north‑west Victoria and requested a lift to Perth from a truck driver, who agreed to take her to Perth. Between 3 and 4 August 2020, she passed through the Eucla border control point hidden in a car being transported by the truck. On arrival, the respondent contacted her partner to collect her from an unknown petrol station in Midland. The respondent's partner then drove her to an address in Scarborough.
Between 5 and 11 August 2020, the respondent was aware that police were trying to locate her but, despite numerous opportunities, she failed to inform the police of her location.
On 11 August 2020, the police attended at the address where the respondent was located. She participated in an interview and made full admissions. On that day, the respondent was charged with the offence of failing to comply with a direction, contrary to s 86(1)(a) of the Emergency Management Act. She was remanded in custody.

Proceedings before the learned magistrate

On 25 August 2020, the respondent pleaded guilty to the charge. The facts were admitted. In her plea in mitigation, counsel who appeared for the respondent emphasised that the respondent had pleaded guilty at the earliest opportunity and that after entering Western Australia, she had self‑quarantined at a friend's house and had no contact with any person other than this friend after her arrival in Western Australia.
The prosecutor submitted to the learned magistrate that the only appropriate sentence was immediate imprisonment. He did not, however, dispute the contention that the respondent had, in effect, self‑quarantined with her friend following her arrival in Perth.
The maximum penalty for the charge was 12 months imprisonment or a fine of $50,000.
In sentencing the respondent to immediate imprisonment for 6 months and 1 day, the learned magistrate, quite properly, identified specific and general deterrence as important sentencing considerations. His Honour accepted that the respondent's plea of guilty was made at the first reasonable opportunity and allowed a 25% discount under s 9AA of the Sentencing Act.

Appeal before Justice Hill

The respondent appealed from the decision of the learned magistrate on two related grounds:
1.that a sentence of immediate imprisonment was manifestly excessive; and
2.that the learned magistrate erred in law in failing to consider whether the sentence of imprisonment should be wholly or partly suspended.
In dealing with ground 1, Hill J set out the relevant principles, the maximum penalty, the seriousness of the offending and the respondent's personal circumstances. In the context of the seriousness of the offence her Honour said:[5]
It is clear from the sentencing remarks of the learned magistrate that he considered that the appellant should be entitled to a discount of 25% as a consequence of her plea of guilty. While this ground of appeal is assessed by reference to the sentence imposed rather than a notional starting point, this implies that his Honour considered that a starting point of 8 months or more was appropriate. This would place the appellant's offending at the upper end of seriousness of the offence, given the maximum term of imprisonment of 12 months.
[5] Primary reasons [43].
Her Honour concluded, in relation to ground 1:[6]
Where the maximum sentence for the offence of failing to comply with a direction is considered with the appellant's personal circumstances, notwithstanding the seriousness of the appellant's conduct, the imposition of a term of imprisonment of 6 months and 1 day, after discounting the sentence by 25% for her plea of guilty, was unreasonable and plainly unjust and outside the range of a proper exercise of sentencing discretion.
As has been noted by this court previously, whenever a sentence of 6 months and 1 day is imposed, it raises a suspicion that the sentence has been increased to avoid the mandatory provisions contained in s 86 of the Sentencing Act. However, suspicion is not enough; it is necessary for an appellant to establish either an express or implied error.
Whilst there are no express errors in the sentencing remarks of his Honour, it is difficult to understand, with the greatest respect to the learned magistrate, how a sentence of immediate imprisonment could have been reached. In my view, while I do not consider that a pecuniary penalty was open given the seriousness of the appellant's conduct, options other than immediate imprisonment, including a suspended sentence or partially suspended sentence, were clearly both open and appropriate in all of the circumstances. In those circumstances, I consider a sentence of immediate imprisonment of 6 months and 1 day should not have been imposed.
[6] Primary reasons [49] ‑ [51].
Her Honour concluded that, had it been necessary, she would also have upheld ground 2. Her Honour's reasons were as follows:[7]
Before a court can impose a suspended term of imprisonment, it is necessary for the court to come to the view that an immediate term of imprisonment should be imposed. In determining whether or not to suspend or partially suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the accused. In the absence of express error, it is for the appellant to satisfy the court that the discretionary judgment that suspension was not appropriate, was a conclusion that was not reasonably open.
In this case, it was not in dispute that the learned magistrate did not expressly refer to whether the sentence should be suspended partly or at all. The respondent relied upon the statement by the learned magistrate that he was 'still … inclined' to impose a term of immediate imprisonment as indicating that his Honour had considered whether a lesser sentence should be imposed.
The failure to expressly refer to a sentencing option does not require this court to conclude that the learned magistrate failed to consider and reject that as an alternative; it can be assumed that his Honour complied with his duties and considered all relevant matters. However, in this case, where a wholly or partially suspended sentence was a realistic sentencing option open to the learned magistrate, I consider that his Honour should have explained, albeit briefly, why he did not consider either of these less severe options was appropriate.
…
Had I not considered that the appeal should succeed on ground 1, I would have granted leave to appeal and allowed the appeal on ground 2.
[7] Primary reasons [54] ‑ [56], [58].
In resentencing the respondent, Hill J said:[8]
Counsel for the appellant submitted that the appellant should receive either a wholly suspended sentence or a fine. Counsel for the respondent submitted that in the event I allowed the appeal on ground 1, which I have, a sentence of immediate imprisonment was not open.
In re-sentencing the appellant, I am required to take into account the time she has spent in prison. The appellant spent three weeks in prison before being released on bail.
Any sentence must take into account the appellant's plea of guilty and a discount of up to 25% on the head sentence. In this case, a discount of 25% is, in my view, higher than appropriate given the strength of the prosecution case. However, the plea of guilty demonstrated an acceptance of responsibility by the appellant for the offence she had committed and an expression of remorse.
While I consider a wholly or partially suspended sentence may well have been an appropriate sentence at first instance, it is not now possible for me to impose that sentence, taking into account the time the appellant has spent in custody. This is because it is not possible to impose a suspended sentence unless it is open to the court to impose a term of imprisonment of an equal length.
In my view, given the seriousness of the offence of which the appellant has been convicted and the limited ability of the appellant to pay a fine, I do not consider that a fine is an appropriate sentence. If a fine was to be imposed, it would have to be a very significant penalty, given the maximum fine of $50,000, which is beyond the means of the appellant.
Having regard to the time the appellant spent in custody, the circumstances of the offence and the personal circumstances of the appellant, I consider that a community based order is the appropriate sentence. In imposing this sentence on the appellant, this should not be considered to be the sentence that should ordinarily be imposed for an offence against the Act where the offender has avoided the quarantine regime required by the Directions. I am imposing this sentence only because the appellant has spent three weeks in custody.
The appellant will be re-sentenced to a community based order of 6 months commencing today. The community based order will include a supervision requirement and community service requirement. The supervision requirement will require contact with a Community Corrections Officer as ordered, but at least once every eight weeks. The community service requirement will be that the appellant undertake 50 hours of community service work.
[8] Primary reasons [60] ‑ [66].

Grounds of appeal

The appellant seeks leave to appeal on four grounds. They are:
1.The primary appeal judge erred in concluding that the sentence of 6 months and 1 day of imprisonment imposed by the primary magistrate on the respondent was manifestly excessive.
2.The primary appeal judge erred in concluding that the prohibition against terms of imprisonment of 6 months or less contained in s 86 of the Sentencing Act was relevant to the determination of whether the term of immediate imprisonment at first instance was manifestly excessive.
3.The primary appeal judge erred in allowing the primary appeal on the ground alleging manifest excess in circumstances where the primary appeal judge failed to find that a term of immediate imprisonment was not open to the sentencing magistrate.
4.In exercising her re-sentencing discretion, the primary appeal judge erred in concluding that it was not open to re-sentence the respondent to a suspended, conditionally suspended or partially suspended term of imprisonment which was of a length of 6 months or less.
As we have noted above, the appellant did not challenge Hill J's conclusion that the learned magistrate had made an error of law in imposing the original sentence. Indeed, the appellant accepted that the learned magistrate's error in failing to consider whether the sentence of imprisonment should be wholly or partly suspended 'was sufficient to trigger [Hill J's] power to re‑sentence the respondent'.[9]
[9] Appellant's Submissions [6] (WAB 8).
For this reason, it is strictly unnecessary to determine grounds 1, 2 and 3. Even if they were established, it could make no difference to the outcome of the appeal. Underlying each of those grounds, however, is the appellant's submission that the prohibition in s 86 of the Sentencing Act on the imposition of terms of imprisonment of 6 months or less was irrelevant to the assessment of whether the sentence was manifestly excessive, because the prohibition does not inform consideration of the type of sentence that may be imposed.[10] Given that the appeal is concerned with the proper construction of s 86 of the Sentencing Act generally, it is appropriate to consider that underlying proposition as part of the appeal.
[10] See [9] above.

Ground 4, which contends that the prohibition in s 86 of the Sentencing Act does not apply to a term of suspended imprisonment,[11] more directly challenges the orders made by Hill J. In that regard, the appellant submitted that this Court ought to impose a partly suspended sentence of imprisonment and that s 86 creates no impediment to a partly suspended sentence of 6 months or less.
[11] See [10] above.
Before turning to those issues it is necessary to set out some of the relevant statutory context.

Statutory context

The principles of sentencing are set out in s 6 of the Sentencing Act. They include the following:
6.Principles of sentencing
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account –
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
…
(4)A court must not impose a sentence of imprisonment on an offender unless it decides that –
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
The sentencing options available to a court, in relation to natural persons, are identified in s 39 of the Sentencing Act. Section 39(2) provides for sentencing options of ascending severity:
(2)Subject to sections 41 to 45, a court sentencing an offender may –
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or
(ca)with or without making a spent conviction order, under Part 8A impose a suspended fine; or
(d)with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or
(e)under Part 10 impose an ISO and order the release of the offender; or
(f)under Part 11 impose suspended imprisonment and order the release of the offender; or
(g)under Part 12 impose CSI and order the release of the offender; or
(h)under Part 13 impose a term of imprisonment.
Section 39(3) provides:
A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
As has been made clear by the High Court of Australia, s 6(4) and s 39(3) of the Sentencing Act reflect the principle that the imposition of a term of imprisonment (under s 39(2)(h)) is a sentence of last resort.[12]
[12] Dinsdale [14] (Gleeson CJ & Hayne J), [54] (Kirby J).
Imprisonment is dealt with generally in pt 13 of the Sentencing Act. Relevantly, s 86 provides:
86.Term of 6 months or less not to be imposed
A court must not sentence an offender to a term of 6 months or less unless –
(a)the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months; or
(b)the offender is already serving or is yet to serve another term; or
(c)the term is imposed under section 79 of the Prisons Act 1981.
Section 85(1) of the Sentencing Act provides that in pt 13 'term' means, relevantly, a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment.
Part 11 of the Sentencing Act makes provision in relation to suspended imprisonment (the option in s 39(2)(f)). Section 76 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.
As a consequence of amendments to the Sentencing Act that came into effect in 2017, suspended imprisonment under pt 11 could be imposed in relation to the whole of the term or part of the term. This was achieved by the deletion of the words 'the whole of' in s 76(1) and the introduction of s 4(4), which provides:
In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of –
(a)the whole of the term or terms; or
(b)part of the term or terms.
Section 77 of the Sentencing Act provides for the effect of sentencing an offender to suspended imprisonment in the following terms:
77.Effect of suspending imprisonment
(1)An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless –
(a)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
(b)a court makes an order under section 80.
(2) The suspension period begins on the day on which the sentence is imposed.
(3) If during the suspension period an offender is sentenced to imprisonment for another offence that was not committed during the suspension period, the suspension period continues to elapse while the offender is serving that sentence.
(4) An offender who is sentenced to suspended imprisonment is to be taken to be discharged from the sentence at the end of the suspension period.
(5) Subsection (4) does not affect the operation of subsection (1) or sections 78 to 80.
(6) For the purposes of a law other than this Part and Parts 12 and 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment.
Sections 78, 79 and 80 make provision in relation to dealing with offenders who reoffend during the suspension period of suspended imprisonment. Section 80, in particular, relevantly provides:
80.How re-offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)A court must make an order under subsection (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.
Part 12 of the Sentencing Act makes similar provision in relation to conditional suspended imprisonment to that found in pt 11, save that the power to partly suspend a term of imprisonment does not apply to conditional suspended imprisonment.[13] Otherwise, it is not necessary to refer to pt 12 for present purposes.
[13] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 (SBJ v The State of Western Australia) 332 [100] (Mazza, Beech & Pritchard JJA).
We turn, then, to the grounds of appeal.

Grounds 1, 2 and 3 – is s 86 irrelevant to the type of sentence that may be imposed?

As noted above, the first three grounds are concerned with the appellant's contention that the prohibition in s 86 of the Sentencing Act on the imposition of terms of imprisonment of 6 months or less was irrelevant to the assessment of whether the sentence was manifestly excessive, because the prohibition does not inform consideration of the type of sentence that may be imposed.
The argument runs as follows:
(a)section 39(2) is concerned with the type of sentence that may be imposed, and not with, for example, the amount (in the case of a fine) or the length (in the case of imprisonment) of a sentence that might (or could) be imposed of that type;[14]
(b)in determining, for the purposes of s 39(3), whether it is 'not appropriate' to use any of the types of sentence in s 39(2), the court is, again, not to have regard to the amount or the length of a sentence that might (or could) be imposed of that type;[15]
(c)if the court, without regard to those matters, concludes that all types of sentence other than imprisonment are 'not appropriate', only then does the court consider the length of the term of imprisonment;[16] and
(d)as a consequence of the prohibition in s 86, the court must impose a term of imprisonment of at least 6 months and 1 day, notwithstanding that such a sentence would not otherwise be appropriate.
[14] See Appellant's Submissions [22] ‑ [23] (WAB 12 ‑ 13).
[15] Appeal ts 15 ‑ 16.
[16] See Appellant's Submissions [28] ‑ [29] (WAB 13 ‑ 14).
Lest it be thought that this is a caricature of the appellant's position, we will set out verbatim the appellant's submission as to the combined effect of the various provisions of the Sentencing Act:[17]
Having reached the conclusion that all other types of sentences listed in s 39(2) are 'not appropriate', a judicial officer must impose a term of immediate imprisonment. Division 1 of Part 2, and relevant common law principles, govern the exercise of the discretion as to how long such a term of imprisonment ought to be. However, s 86 of the Sentencing Act in effect acts as a fetter on the discretion where it applies, in that it requires the imposition of a term of no less than 6 months and 1 day of imprisonment even if, but for that statutory requirement, a lesser term of imprisonment would have been imposed. (Footnotes omitted)
[17] See Appellant's Submissions [29] (WAB 13 ‑ 14).
Thus the appellant submitted that Hill J's reference to the 'notional starting point' in the passage reproduced at [25] above was in error because '[a]bsent the operation of s 86, the Magistrate may well have imposed a sentence of immediate imprisonment less than 6 months and 1 days' imprisonment'.[18]
[18] See Appellant's Submissions [31] (WAB 14).
As the Director, on behalf of the appellant, accepted at the hearing of the appeal, the appellant's proposed construction of s 86 was that the effect of that section is to make 6 months and 1 day imprisonment a mandatory minimum for any offence for which, in the absence of s 86, there would be a term of imprisonment of 6 months or less.[19]
[19] Appeal ts 16.
Having regard to the fundamental principles upon which the Sentencing Act as a whole is based, that is a surprising, if not startling, proposition. Indeed, the Director submitted that such a construction of s 86 did not produce a 'desirable outcome'[20] and that the argument was not a 'palatable one'.[21]
[20] Appeal ts 16.
[21] Appeal ts 17.
Whether or not the construction contended for by the appellant is 'unpalatable', it is, as a matter of law, wrong.
Properly construed, s 86 does not operate so as to require a court to impose a minimum sentence of 6 months and 1 day imprisonment where the application of the law, and all relevant sentencing principles, would result in a sentence of 6 months or less. On the contrary, the effect of s 86 is that, subject to the express exceptions in the section itself, unless, applying all relevant sentencing principles, a sentence of at least 6 months and 1 day is appropriate in all the circumstances, imprisonment is not an available sentencing option.
The legislative purpose behind s 86 is to remove imprisonment as a sentencing option, where the courts might previously have imposed short sentences of imprisonment. As originally enacted, s 86 prohibited sentences of 3 months or less. In 2003, the provision was amended to extend the prohibition to sentences of 6 months or less.
On both occasions however, the legislative purpose behind s 86 was the same: 'short sentences serve little useful purpose'[22] and 'short prison sentences serve no useful purpose'.[23] As the Minister said, at the time of the introduction of the Sentencing Bill 1995 (WA):[24]
[Short sentences] fail as a deterrent, fail as a means of protecting the community, and fail as a means of addressing a prisoner's offending behaviour. The intensive supervision order and suspended prison sentence introduced in this Bill will provide a more effective means of achieving these ends. … In addition, it will assist in reducing the number of relatively minor offenders serving short terms of imprisonment. This is particularly so in relation to members of the Aboriginal community, who have been proportionally overrepresented in prisons and police lockups.
[22] See Second Reading Speech, Sentencing Bill 1995, Parliamentary Debates, 25 May 1995, page 4259.
[23] See Second Reading Speech, Sentencing Legislation Amendment and Repeal Bill 2002, Parliamentary Debates, 15 August 2002, pages 177 ‑ 180.
[24] See Second Reading Speech, Sentencing Bill 1995, Parliamentary Debates, 25 May 1995, page 4259.
Evidently, the legislative purpose underlying s 86 was, at least in part, to decrease the rate of imprisonment, not increase it.
Similarly, our preferred construction of s 86 is consistent with the provisions of the Sentencing Act as a whole, namely the principle (in s 6(1)) that a sentence imposed on an offender must be commensurate with the seriousness of the offence and the principle (apparent from s 6(4) and s 39(3)) that imprisonment is a sentence of last resort.
The construction for which the appellant contends would offend these fundamental principles. It would require a court to impose a term of imprisonment that was not commensurate with (and greater than) the seriousness of the offence.
Contrary to the appellant's submissions, a court, in determining the appropriate sentence for an offence, and in particular, whether imprisonment is the only appropriate option, must have regard to the fact that any term of imprisonment cannot be 6 months or less. If having regard to all of the circumstances of the case, the court concludes that (but for the prohibition in s 86) any appropriate term of imprisonment would be 6 months or less, the court is required to consider one of the other sentencing options in s 39(2) of the Sentencing Act.
Of course, it follows from this that the application of s 39(3) of the Sentencing Act, while requiring that the court only use a sentencing option in s 39(2) if it is satisfied that it is not appropriate to use any of the options listed before that option, does not require the court to approach that issue in a mechanical or linear fashion.[25] Section 39(3) calls for an exercise of judgement in the particular case, not an abstract comparison of 'types' of sentence. In exercising that judgement it is to be expected that the sentencing judge or magistrate will have regard to the various considerations relevant to each sentencing option in making comparison between those options in arriving at the state of satisfaction required by s 39(3).
[25] Duong v State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA).
As has been made clear in the context of suspended imprisonment (which we shall come to next), the process of reasoning leading to the conclusion as to the appropriate sentencing option in a given case may involve the consideration of the various requirements of the Sentencing Act at different stages of that process. In the end, what is critical to the propriety of the sentencing process is not when those requirements (such as s 6(4) and s 39(3)) are considered but that they are properly considered.[26]
[26] Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74 [18] (Parker J, Wallwork and McKechnie JJ agreeing), approved in Collins v The State of Western Australia [2007] WASCA 108 [15] (McLure JA, Steytler P agreeing) and Nikora v The State of Western Australia [2018] WASCA 235 [47] ‑ [48] (Buss P, Mazza & Pritchard JJA).
Grounds 1, 2 and 3 reveal no error on the part of Hill J. Leave to appeal should be refused in relation to those grounds.

Ground 4 – does the prohibition in s 86 apply to suspended imprisonment?

Ground 4 contends that Hill J erred in concluding that it was not open to resentence the respondent to a suspended, conditionally suspended or partly suspended term of imprisonment of 6 months or less.
The appellant's essential proposition on this ground is that the prohibition in s 86 on the imposition of terms of imprisonment of 6 months or less has no application to sentences of suspended imprisonment under pt 11 or conditionally suspended imprisonment under pt 12 of the Sentencing Act.
The appellant submits, for example, that it would have been open to Hill J to sentence the respondent to a wholly or partly suspended term of imprisonment of 3 months.
To be clear, the issue is not concerned with whether it is open to a court, in an appropriate case, to impose a partly suspended sentence of imprisonment of more than 6 months in which the portion to be immediately served (i.e. the non‑suspended part) is 6 months or less. Nor is it concerned with whether a court dealing with an offender who has reoffended during the suspension period of suspended imprisonment under s 80 of the Sentencing Act,[27] may order that the person serve part of the term that was suspended, even if the period to be served is 6 months or less. It is clear from s 80(1)(b) that, in an appropriate case, a court may so order.[28]
[27] Or, in the case of conditional suspended imprisonment, s 84F of the Sentencing Act.
[28] Or, in the case of conditional suspended imprisonment, s 84F(1)(b) of the Sentencing Act.
Rather, the issue is whether a court may, in imposing a sentence of suspended imprisonment, order a single term of imprisonment to be suspended that is 6 months or less.[29]
[29] We have specifically referred to a 'single' term of imprisonment, as s 86 contemplates that a term of imprisonment of 6 months or less may be imposed where the aggregate of the term, and any other term, is more than 6 months (s 86(a)).
The appellant made essentially three submissions in support of the proposition that s 86 has no application to suspended imprisonment.
First, the appellant relied upon s 77(6) of the Sentencing Act, which provides that for the purposes of a law, other than pt 11, pt 12 and pt 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment. Thus, the appellant submitted, s 86 (which appears in pt 13) must be excluded from sentences imposed under pt 11 and pt 12 unless otherwise picked up.[30] In this regard the appellant relied upon the decision of this Court in SBJ v The State of Western Australia, which held that the provisions of pt 13 do not apply to a partly suspended term of imprisonment, such that there was no power to backdate such a sentence or to make a parole eligibility order.[31]
[30] Appellant's Submissions [47] (WAB 18).
[31] SBJ v The State of Western Australia [136] (Mazza, Beech & Pritchard JJA).

Secondly, the appellant submitted that s 76(2) of the Sentencing Act, which provides that suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances, does not import the prohibition in s 86.[32] The word 'appropriate' in s 76(2), the appellant submitted, did not bring about that result.
[32] Appellant's Submissions [57] (WAB 21).
Thirdly, the appellant submitted that the reference, in s 76(1), to the court sentencing an offender to a 'term of imprisonment', was not a reference to a term of imprisonment within the meaning of pt 13. The appellant submitted, in particular, that the definition of the word 'term' in s 85 only applies to pt 13.[33]
[33] Appeal ts 35 ‑ 37.
As will be apparent, the resolution of this issue is a question of statutory construction. The court's task, in that regard, must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.[34]
[34] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] ‑ [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
That question of statutory construction has not previously been considered by the Court of Appeal, although it has been the subject of a number of general division appeals. In Casotti v Pickering,[35] for example, Hall J concluded (like Hill J in the present case) that while a suspended sentence of 6 months and 1 day may have been appropriate at first instance, it could not be imposed on appeal as it would not take into account time already spent in custody. His Honour continued, by reference to s 86, that '[a] suspended sentence of 6 months or less for a single stand alone offence is prohibited'.[36]
[35] Casotti v Pickering [2013] WASC 174 (Casotti v Pickering). See also Zinga v Johnson [2012] WASC 216 (Zinga v Johnson) [21] (Hall J).
[36] Casotti v Pickering [38] (Hall J).
The same conclusion was reached by Beech J (as his Honour then was) in Almonte v Beswick[37] and by Chaney J in Vickery v McAlinden.[38]
[37] Almonte v Beswick (2013) 63 MVR 543; [2013] WASC 207 [68] (Beech J).
[38] Vickery v McAlinden [2017] WASC 224 (Vickery v McAlinden).
In the latter decision, Chaney J specifically addressed the textual matters relied upon by the appellant in the present case. His Honour said:[39]
Section 86 is found within pt 13 of the Sentencing Act. Thus, the respondent argues, because a sentence of suspended imprisonment is not to be taken as a sentence of imprisonment for the purposes of pt 13, s 86 has no application to a sentence of suspended imprisonment. Counsel for both parties agreed that that construction of s 77(6) and s 86 did not reflect common practice in Magistrates Courts which is to treat s 86 as applicable for the purpose of determining the minimum term of a suspended imprisonment order. Counsel for the appellant submitted that s 77(6) did not have the effect of rendering s 86 inapplicable to suspend imprisonment sentences.
I do not accept that it is open to set a term of imprisonment for six months or less where a court proposes to order suspension of that term.
[39] Vickery v McAlinden [27] ‑ [28] (Chaney J).
After referring to the decisions in Casotti v Pickering and Almonte v Beswick, Chaney J continued:[40]
[40] Vickery v McAlinden [31] ‑ [35] (Chaney J).
To ignore the provisions of s 86 of the Sentencing Act for the purposes of imposing a suspended sentence would be contrary to the two step process required by s 76(2) as explained by Kirby J in Dinsdale v R.
Section 76(2) provides:
(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.
Kirby J said that it may be inferred from s 76, that suspension of imprisonment is only to be available where, first, the court has concluded that a sentence to a term of imprisonment is warranted and where the court imposes that sentence. He continued:
The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'. (citations omitted)
It follows that the first step requires that the court identify a term which, if suspension were not possible, would be appropriate in all the circumstances. By reason of s 86, a term of six months or less is not available. In light of that statutory prohibition, it cannot be that a term of less than six months would be appropriate if the capacity to suspend the sentence was not available.
The question which then arises is as to the effect of s 77(6). Part 12 of the Sentencing Act deals with conditional suspended imprisonment. It contains s 82(6) which is in the same terms as s 77(6) save that s 82(6) refers to pt 11 and pt 13. Part 13 deals with imprisonment. The precise reach and effect of s 77(6) and s 82(6) is not immediately apparent. Much of pt 13 deals with questions of concurrency or cumulation of sentences and parole eligibility. Section 77(6) would appear most readily to be relevant to those provisions so as to make clear that suspended terms of imprisonment do not need to be brought to account for the purposes of those matters. In my view, having regard to the clear requirements of s 76(2), s 77(6) cannot be read as excluding the prohibition in s 86 from the court's consideration of the first step to be taken in imposing a suspended sentence. That conclusion draws some support from s 80(1)(b) of the Sentencing Act. Section 80 deals with how a person who re-offended during a period of a suspended sentence is to be dealt with. Section 80(1)(b) permits a court dealing with such a person to order that the person serve part of the term of imprisonment that was suspended 'even if the period to be served is 6 months or less'. That proviso assumes that s 86 might otherwise be applicable. (footnotes omitted)
We agree with the conclusions reached by Chaney J, for the reasons that his Honour gave.
We would add the following.
The critical provisions in this context are s 76(1) and (2). While it is clear that suspended imprisonment (under pt 11) and immediate imprisonment (under pt 13) are separate and distinct sentencing options, it is also the case that the decision to impose suspended imprisonment necessarily requires, as a first step, a determination that a 'term of imprisonment' is appropriate in all the circumstances.
In that context the expression 'term of imprisonment' in s 76(1) can only mean a term of imprisonment that is (save for the possibility of suspension) 'to be served'. That is, it means a term of imprisonment that (in the absence of the power of suspension) would otherwise be imposed in accordance with pt 13.[41] The 'term of imprisonment' logically precedes any order of the court that it 'be suspended'.
[41] This does not mean that the underlying 'term of imprisonment' that is suspended under pt 11 is imposed under pt 13. A term of imprisonment that is suspended remains, at all times, a sentence under pt 11 (see [92] ‑ [93] below).
The fact that the definition of 'term' in s 85 is expressed to apply to pt 13 only does not lead to a different conclusion. The relevant expression in s 76(1) is the composite phrase 'term of imprisonment'. That composite phrase is not defined in the Sentencing Act and there is no reason to give it other than its ordinary meaning in s 76(1); namely a term of imprisonment which (in the absence of the logically subsequent step of 'suspension') is to be served. This meaning is also reflected in the expression, in s 77(1), 'the imprisonment that is suspended'.
This is also confirmed by the use of the expression 'term or terms of imprisonment' in s 80(1)(a) and (b). In the event of reoffending, it is the 'term of imprisonment' that was originally suspended that, under those provisions, the court may order the person to serve. When such an order is made the offender does not serve a new, or different, 'term of imprisonment' but the one imposed at the time of the initial sentence.
Returning then to s 76, as Kirby J observed in Dinsdale, s 76(2) provides, as the logical starting point: the 'determination that a sentence of imprisonment, and not some lesser sentence, is called for'.[42] To this may also be added (from the express terms of s 76(2) itself) that a sentence of imprisonment 'for a term or terms equal to that suspended' is otherwise called for.
[42] Dinsdale [79] (Kirby J).
It is, therefore, an essential component of the logical starting point that it would otherwise be 'appropriate in all the circumstances' to impose the particular term of imprisonment. As in the case of s 39 of the Sentencing Act, the determination of what would be an 'appropriate' term of imprisonment is an exercise of judgement in the particular case, not an abstract exercise. In that context, the prohibition in s 86 operates such that it cannot be the case that a term of 6 months or less would be 'appropriate in all the circumstances' if it were not possible to suspend imprisonment. A term of imprisonment that would be contrary to a statutory prohibition could not, at the same time, be 'appropriate'.
In addition, as Chaney J observed in Vickery v McAlinden, the words in parenthesis in s 80(1)(b) ('even if the period to be served is 6 months or less'), also support the construction of s 76 whereby the term or terms of imprisonment that are suspended under that section are subject to the limitation in s 86 and cannot be for a term of 6 months or less. Section 80 presupposes that the 'term or terms of imprisonment that were suspended' could not have been 6 months or less.
In context, for example, the reference in s 80(1)(b) to '6 months or less' must be interpreted as a direct reference to, and in contemplation of, that expression in s 86. The proviso, which empowers the court to order a person to serve part of a suspended term, notwithstanding that the part is 6 months or less, reveals a legislative purpose to create an exception to what might otherwise be the effect of s 86.
That legislative purpose is confirmed by the statutory history. The proviso in s 80(1)(b) did not appear in the Sentencing Act as originally enacted. At that time s 86 provided for a prohibition on short sentences of imprisonment of '3 months or less'.
The change in the prohibition in s 86 from '3 months or less' to '6 months or less' was made by the Sentencing Legislation Amendment and Repeal Act 2003 (WA).[43] The following year the proviso in s 80(1)(b) was inserted by the Sentencing Legislation Amendment Act 2004 (WA).[44] The parliamentary debates[45] and explanatory memorandum[46] with respect to the Sentencing Legislation Amendment Bill 2004 (WA), confirm that the purpose of the proviso s 80(1)(b) was to avoid any conflict with the effect of s 86.
[43] Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 33(3).
[44] Sentencing Legislation Amendment Act 2004 (WA), s 4.
[45] Second Reading Speech, Sentencing Legislation Amendment Bill 2004 (WA), Parliamentary Debates, 1 July 2004, page 4762; Consideration in Detail, Sentencing Legislation Amendment Bill 2004 (WA), Parliamentary Debates, 24 August 2004, pages 5474 ‑ 5475.
[46] Sentencing Legislation Amendment Bill 2004 (WA), Explanatory Notes, page 1.
Not only does the presence of the proviso in s 80(1)(b) support the construction that a suspended term of imprisonment of 6 months or less cannot be imposed under s 76, that construction is also supported by the absence of the proviso in s 80(1)(a). Section 80(1)(a) provides that the court may order the person to serve the whole of the 'term or terms that were suspended'. It was unnecessary to include the proviso in s 80(1)(a) because, in light of s 86, the whole of the term initially suspended could not have been 6 months or less.
Finally, it is necessary to refer to s 77(6) and the appellant's reliance on this Court's decision in SBJ v The State of Western Australia.
SBJ v The State of Western Australia, concerned a different issue to the present case, namely whether partly suspended imprisonment was inconsistent with s 39(4), which provides that a court must not use more than one of the sentencing options in s 39(2), except where s 41 or s 42 applies. The submission made in that case was that a partly suspended term involves a portion to be served immediately (pursuant to pt 13) and the suspended portion (pursuant to pt 11).
This Court rejected that submission, confirming that suspended imprisonment (under pt 11) and immediate imprisonment (under pt 13) are separate and distinct sentencing options. In the case of a partly suspended term, the part of the term that is ordered to be served remains imprisonment under pt 11.[47]
[47] SBJ v The State of Western Australia [132], [133] (Mazza, Beech & Pritchard JJA).
It is for this reason that the provisions of pt 13, in relation to imprisonment under that part, do not automatically apply to suspended imprisonment under pt 11 and why provisions such as s 80(5) are necessary. Section 80(5) provides that if the court orders a person to serve a term, or part of a term, of imprisonment that was suspended, s 88 and s 89 apply 'as if the term to be served were a term of imprisonment being imposed by the court'.[48] It is therefore necessary, in the case of each of the separate sentencing options in pt 11, pt 12 and pt 13, that (unless, in relation to a particular provision, a contrary intention appears) the courts' statutory powers, and the conditions on those powers, be found within each part itself.
[48] SBJ v The State of Western Australia [135] (Mazza, Beech & Pritchard JJA).
In that regard, as we have explained, the prohibition on a term of suspended imprisonment of '6 months or less' in pt 11 arises from the express words of s 76(2), which impose the statutory condition upon suspended imprisonment that 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. That condition could not be satisfied in the case of a putative term of imprisonment that contravened s 86.
It may, finally, be noted that the court in SBJ v The State of Western Australia cited, with apparent approval, both Hall J's decision in Zinga v Johnson and Chaney J's decision in Vickery v McAlinden in support of its construction in that case. There is, in our view, no inconsistency between any of those decisions.
For these reasons, in the present case Hill J was correct to conclude that she could not resentence the respondent to a suspended, conditionally suspended or partly suspended term of imprisonment of 6 months or less.
Given that it has not previously been considered by this Court, we would grant leave to appeal in respect of ground 4. The ground, however, must be rejected.

Conclusion

The appeal must be dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
17 FEBRUARY 2021