Dragon v WA Police - [2024] WASC 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DRAGON -v- WA POLICE [2024] WASC 147
CORAM:   FORRESTER J
HEARD:   21 FEBRUARY 2024 & 18 APRIL 2024
DELIVERED          :   7 MAY 2024
FILE NO/S:   SJA 1068 of 2023
BETWEEN:   BRADLEY PEN DRAGON
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1068 OF 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L DIAS
File Number            :   PE 7485/2023 & PE 7484/2023

Catchwords:

Criminal Law - High Risk Serious Offenders Act 2020 (WA) - Breach of supervision order - Whether sentence imposed manifestly excessive - Section 53 of the Sentencing Act1995 (WA) - Whether onus on judicial officer to make enquiry as to financial circumstances of the offender - Whether substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms F Sellers
Respondent	:	Mr Z Clifford

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	State Solicitor's Office (WA)

Cases referred to in decision:

Berry v Boggs [2009] WASC 378
CGF v The State of Western Australia [2023] WASCA 187
Cheshire v R (1994) 76 A Crim R 261
El Noor v The Queen (2001) 123 A Crim R 123
Gaskell v The State of Western Australia [2018] WASCA 8
Gobby v Taylor (1998) 27 MVR 538
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Higgins (1988) 10 Cr App R (S) 144
Hodder v Police Department of Western Australia [2011] WASC 142
Hodder v Te Nahu [2023] WASCA 20
House v R [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Magjarraj v The Queen (2001) 123 A Crim R 458
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Nelson v Meredith (2001) 118 A Crim R 433
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SJX v The State of Western Australia [2010] WASCA 243
State of Western Australia v Dragon [No 2] [2022] WASC 189
Ugle v Bailey [2023] WASC 398
Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339

FORRESTER J:

Introduction:

On 10 February 2023, the appellant was convicted on his plea of guilty to two counts that, being subject to a supervision order, he contravened a requirement of the order without reasonable excuse, contrary to s 80(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The appellant was sentenced to a global fine of $1,200 and was ordered to pay costs in the sum of $137.
The appellant appeals the sentence imposed on the ground the sentence was manifestly excessive, and on the ground that the learned magistrate failed to take into account his financial circumstances as required by s 53(1) of the Sentencing Act 1995 (WA).
An extension of time is required.
For the reasons which follow, I would grant the extension of time, refuse leave to appeal on ground 1, grant leave to appeal on ground 2 but dismiss the appeal.

Prosecution

On 31 May 2022, the appellant was declared a High Risk Serious Offender and was made subject to a supervision order pursuant to the HRSO Act (Supervision Order).
The Supervision Order includes conditions that the appellant:
4.Be under the supervision of a Community Corrections Officer, which includes comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
…
38.Maintain a daily diary of your movements, activities and associations if and as directed by the [Community Corrections Officer] and present this diary to the [Community Corrections Officer] and Police Officers upon request.
On 21 June 2022, the appellant was issued with a written lawful instruction to:
Maintain a daily diary of your movements, activities and associations. In recording daily events in your diary, you are required to include the following information:
(i)full address of any property
(ii)purpose of attendance at the address
(iii)mode of travel
(iv)duration of stay at the address
(v)name and surname (if known) of any individuals at the location
(vi)in the case of continuous travel without stopping you must include identifiable location of your travel, and if you stop, you must include duration of the stop and reason.
On 14 November 2022, the appellant was issued with a written lawful instruction which stated:
You are not permitted to collect any items from but not limited to residential bins, skip bins, kerbsides or any other parts of residential properties.
On 28 November 2022, the appellant attended a supervision session with his Senior Community Corrections Officer, at which he was reminded that the written lawful instruction included an instruction not to take items from the bins of the residential unit complex where he resided.
At 10.40 am on 7 February 2023, the appellant walked from his unit complex to an area in the carpark where the residential bins are stored. The appellant spent approximately nine minutes sorting through and selecting various items from the bins before entering into a conversation with a male in the car park and then returning to his unit.
At 10.59 am, the same morning, the appellant returned to the residential bins with a carrier bag and spent approximately 13 minutes sorting through and selecting various items from the bins before returning to his unit with them.
The taking of the items from the residential bins was the subject of charge PE 7484 of 2023: that the appellant, being subject to a supervision order, contravened a requirement of the order without reasonable excuse by failing to adhere to the reasonable direction of a Community Corrections Officer (CCO).
The appellant also failed to record the conversation he engaged in with the man at the bins. This resulted in charge PE 7485 of 2023: that the appellant, being subject to a supervision order, contravened a requirement of the order without reasonable excuse, by failing to accurately record data in his diary.
Counsel for the appellant informed the court that the appellant had taken his bins out and, when in the relevant area of his building, saw that someone who was moving out had thrown out a number of items. He looked through them, which was not contrary to the written instruction. He spoke to the father of the person moving out who invited the appellant to take what he wanted. The appellant went back to his residence, grabbed a bag and took some items, none of which he was not permitted to own. He failed to record the conversation, which came to light when the appellant mentioned it to his social support caseworker.[1]
[1] Transcript, Western Australia Police v Bradley Pen Dragon, Magistrates Court of Western Australia, 10 February 2023, 4 - 6 (ts 10 February 2023).
Counsel for the appellant submitted that the matter could be dealt with by way of s 46 of the Sentencing Act 1995 (WA) with no punishment imposed. He argued that:[2]
(a)the breach was trivial or technical;
(b)the appellant is subject to 62 conditions as part of the Supervision Order, with around 20 additional written lawful instructions;
(c)the appellant had otherwise complied with his conditions; and
(d)it is difficult to conceive of a situation in which the appellant's collecting items from a bin (which he would otherwise be allowed to possess) relates to a risk to which the HRSO Act is directed.
[2] ts 10 February 2023, 5 - 6.
Counsel submitted the purpose of the lawful written instruction in relation to the diary was to prevent the appellant concealing his actions. However, as the diary offence came to the attention of Community Corrections as a result of the appellant having an open conversation with his social support caseworker, the purpose of the instruction was still achieved.[3]
[3] ts 10 February 2023, 6.
Having regard to the appellant's character and antecedents, the prosecutor opposed the s 46 application. The appellant's counsel then submitted that, if the learned magistrate did not consider it appropriate to impose no punishment, a financial penalty would be appropriate, which could be suspended.[4]
[4] ts 10 February 2023, 9.
In sentencing the appellant, the learned magistrate stated:
… I've heard the version of events put forward as to the items which you did take from the bin, and the mischief which the direction relevantly would be – would address and seek to address in any event, but – and I've heard the explanation that you were upfront about the conversation that you had, and that's how that came to the attention of Community Corrections. But in this case, I consider that the requirements are made for – are imposed for a reason.
It is important to adhere to them, and I don't consider that the breach is technical or trivial as such, and I will impose a financial penalty on this occasion. There is a need for personal deterrence in your case as well as general deterrence. It is important for offenders to comply with the requirements, and you shouldn't have been – you've got to comply with those requirements, and you shouldn't have taken those items from the bin, really. And more importantly, the conversation should have been recorded at that time …
… it's important to – you know the obligations, and it's important in your case to comply with them, and you know that they're onerous, and you know what those requirements are, and you know that you need to comply, and the consequences of your failure to comply: you will face charges. On this occasion, because the breaches and the offences are towards the lower end of the scale of seriousness, I will impose a global fine.[5]
[5] ts 10 February 2023, 10.
The learned magistrate indicated that, but for the plea of guilty, she would have imposed a fine of $2,000. However, she reduced it by 25% for the early plea of guilty and applied a further discount for the fact that the appellant had spent the morning in custody. Her Honour imposed a global fine of $1,200 and ordered the appellant to pay costs in the sum of $137.[6]
[6] ts 10 February 2023, 10 - 11.

Grounds of appeal

The amended grounds of appeal are:
1.The global fine of $1,200 was manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness or the circumstances of offending and the personal circumstances of the offender.
2.The learned sentencing magistrate erred in law by failing to take into account a mandatory sentencing consideration pursuant to s 53 of the Sentencing Act 1995 (WA), namely the means of the appellant pay the fine (sic) and the extent to which the payment of the fine would burden the appellant.

Application to adduce additional evidence

The appellant seeks to rely upon additional evidence, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (CA Act), namely the affidavit of Faye Elisabeth Sellers affirmed on 20 March 2023 (sic) and annexure.
Ms Sellers' affidavit is to the effect that the appellant is in receipt of a disability pension of about $640 per week, of which $310 a week is rent, with average expenses of approximately $120 per week.
The respondent also seeks to rely upon additional evidence pursuant to s 40(1)(e) of the CA Act, namely the affidavit of Julian Misso affirmed 28 March 2024 and annexures.
The annexures to the affidavit of Mr Misso are transcripts of court appearances by the appellant on other charges on 20 November 2023, 4 May 2023 and 17 November 2022.

Statutory framework and legal principles

Appeal from a court of summary jurisdiction

The application for leave to appeal is made under div 2 of pt 2 of the CA Act. A sentence imposed as a result of a conviction is a decision which may be appealed.[7]
[7] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[8] meaning that the ground is required to have a rational and logical prospect of succeeding.[9] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[10]
[8] CA Act s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[10] CA Act s 9(3).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[11]
[11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12]

Application to adduce additional evidence

[12] CA Act s 14(2).

An appeal court must decide an appeal on the evidence and material that were before the lower court.[13] However, the court does have a broad power to admit any other evidence, pursuant to s 40(1)(e) of the CA Act.

The offence

[13] CA Act s 39.

Section 80 of the HRSO Act provides:
(1)An offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order. Penalty for this subsection: imprisonment for 3 years.

Sentencing Act 1995 (WA)

Pursuant to s 41 of the Sentencing Act, where a provision creating an offence states that the statutory penalty is imprisonment but:
(1)makes no mention of a fine;
(2)does not state that imprisonment must be imposed; and
(3)the offender is a natural person
a court may still impose one of the sentencing options contained in s 39(2) of the Sentencing Act.
If the court is a court of summary jurisdiction and decides to fine an offender, the maximum fine it may impose on a natural person is to be calculated as follows:[14]
Maximum fine ($) = Statutory penalty (in months) × 1000
[14] Sentencing Act s 41(6)(a).
Accordingly, the maximum fine which can be imposed by a court of summary jurisdiction for an offence under s 80 of HRSO Act is $36,000.
Section 53 of the Sentencing Act relevantly provides:
Considerations when imposing fine
(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account —
(a)the means of the offender; and
(b)the extent to which payment of the fine will burden the offender.
(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

Extension of time

The appeal notice was filed on 17 August 2023, 167 days out of time. The appellant has filed an affidavit which explains the delay. The respondent does not oppose the application and does not contend any prejudice to the respondent will arise if an extension of time is granted.

Disposition

Ground 2

It is convenient to deal with ground 2 first.
The appellant submitted that there was no mention of the appellant's financial situation in the course of the proceeding and accordingly, the learned magistrate failed to take it into account. In failing to do so, the appellant submits, the learned magistrate erred.[15]
[15] Appellant's submissions filed 20 March 2024 [5] - [6].
The respondent submitted that the learned magistrate was not obliged, by reason of s 53 of the Sentencing Act, to make enquiries as to the appellant's financial circumstances.[16] As there was no information put before the learned magistrate, she did not fail to take it into account.
[16] Respondent's submissions filed 28 March 2024 [23] (Respondent's submissions 28 March 2024).
In the alternative, the respondent submitted that, even if a judicial officer is obliged in some circumstances to make enquiries as to an offender's financial circumstances, those circumstances did not arise in the present case, in which the appellant was represented by counsel, who had submitted that a fine was an appropriate penalty.[17]
[17] Respondent's submissions 28 March 2024 [24] - [26].
The respondent's primary submission relied upon the decision of Murray J in Gobby v Taylor, in which his Honour stated:
This provision gives statutory effect to the general principle that a fine which is properly proportionate to the seriousness of the offence, having regard to the circumstances of its commission and matters personal to the offender, will be one which takes into account the capacity of the offender to pay the fine within a reasonable period. But no authority was cited to me for the proposition that s 53 imposes upon the court an inquisitorial function to obtain information about means to pay, nor do I think that s 53 itself is so worded as to lead to such a conclusion. Given that the court has a duty to take the means of the offender to pay a fine into account, sentencing proceedings are, just as are proceedings leading to the determination of guilt or innocence, adversarial in character. Prima facie it is for the parties to place before the court such information as they think to be relevant to the issues to be determined by the court. Given that the appellant was unrepresented before the Court of Petty Sessions, he had been fined before and he must have appreciated that he might be fined again, upon his conviction. It was not too much to expect that when, after his conviction, the appellant was invited by his Worship to say anything he wished 'before I impose a penalty', he might have said something about his means to pay if he wished to do so. While the learned magistrate might well have made a specific inquiry about means to pay, it was not, in my view, incumbent upon him to do so.[18]
[18] Gobby v Taylor (1998) 27 MVR 538, 543.
Whether the onus is on the judicial officer to make an enquiry has been the subject of limited appellate consideration in Western Australia since Gobby.
In Berry v Boggs,[19] McKechnie J held, without giving detailed reasons, that the sentencing magistrate erred by not making sufficient enquiries into the financial circumstances of the offender. It appears that the appellant was not represented at first instance.
[19] Berry v Boggs [2009] WASC 378 [25] - [26].
In Hodder v Police Department of Western Australia (Hodder),[20] the respondent conceded that the learned sentencing magistrate had erred by not making enquiries into the appellant's financial circumstances, a concession accepted without apparent question by Commissioner Sleight. It is unclear whether the appellant was represented at first instance.
[20] Hodder v Police Department of Western Australia [2011] WASC 142 [49] - [50].
In Hodder v Te Nahu (Te Nahu), the Court of Appeal observed that, in an appeal before Curthoys J, the prosecutor 'very properly drew to his Honour's attention s 53(1) of the Sentencing Act'.[21] The Court of Appeal noted, without further comment, that the prosecutor had conceded that enquiries were not made as to the factors in s 53(1) and that the learned magistrate had erred in failing to so enquire, a concession accepted by Curthoys J on appeal.[22]
[21] Hodder v Te Nahu [2023] WASCA 20 [13].
[22] Hodder v Te Nahu [2023] WASCA 20 [14] - [17].
In none of these cases does it appear that the decision in Gobby was brought to the court's attention, and it seems to have been accepted by all parties without demur that s 53 imposes an obligation on the court to make enquiries as to the matters set out in s 53(1).

The respondent also referred to Cheshire v R[23] and Nelson v Meredith.[24] In each case, the equivalent provision under consideration was in substantially the same terms as s 53 of the Sentencing Act.
[23] Cheshire v R (1994) 76 A Crim R 261.
[24] Nelson v Meredith (2001) 118 A Crim R 433.
In Cheshire, the Victorian Court of Criminal Appeal held:
The inquiry is to be made only if there has in the first place been a decision to impose a fine. The means of an offender cannot be relevant to the decision as to whether a fine is the appropriate disposition. Moreover, the court is not prevented from fining an offender because it has not been possible to ascertain his financial circumstances ... In the present case no such inquiry was undertaken despite the fact that in the course of the plea for leniency the judge clearly indicated that the imposition of a fine was within his serious contemplation.
…
Counsel was well aware of the real possibility that a fine would be imposed. Realistically, if imposed, it was likely to be substantial. If it were considered that the amount of it would cause financial embarrassment by creating a substantial or unacceptable financial burden it was for counsel to alert the judge to such a circumstance.
Plainly, we think, it is for the offender to put material before the court relating to financial circumstances: see Higgins (1988) 10 Cr App R (S) 144. If he fails to do so he can hardly expect then to be entitled to a reassessment of his penalty, by an appellate court. At least that must be so, we think, if there are grounds for inferring that the amount of the fine is not such as to cause a burden to the offender which is disproportionate to his criminality.[25]
[25] Cheshire v R (1994) 76 A Crim R 261, 269 - 270.
In Nelson, Martin CJ observed, in relation to the equivalent Northern Territory provision:
Clearly it was the intention of the legislature that fines not be imposed without regard to those matters which call into question the indiscriminate imposition of a fine with regard only to what may be regarded as a 'tariff'.
The other major question which arises is as to the way in which a court is to be informed about those matters. Obviously, there is an obligation on counsel for an accused to take instructions and inform the court about them. Failing that, it seems to me that there is an obligation on the court to inquire, a fortiori, if the offender is not legally represented.
It is provided in s 17(2) as follows: 'A court is not prevented from fining an offender only because it has been unable to find out the matters referred to in subsection (1). '
The use of the words 'unable to find out' import that there is a duty on the court. Amongst other things the Oxford English Dictionary defines 'find out' as (a) to discover by attention, scrutiny, study etc; (b) to come upon by searching or inquiry. All of that brings about the notion of activity by the court to ascertain the required information, not mere reception of information if any is offered.[26]
[26] Nelson v Meredith (2001) 118 A Crim R 433, 434.
The respondent submitted that the decisions in Gobby and Cheshire should be followed, rather than the decisions in Nelson, Berry, Hodder and Te Nahu, because:
(a)consistently with the general proposition that it is incumbent on an offender to bring matters in mitigation to the attention of the sentencing court, a court is not required to assume an inquisitorial function, but only to take into account information provided to it;
(b)s 53(1) exists in a framework which contemplates that a sentencing judicial officer may impose a fine where the offender has not attended court at all, and thus may not have any information about an offender's financial circumstances; and
(c)s 53(1) is in similar terms to the general obligation in s 6(2) of the Sentencing Act which provides that the seriousness of an offence must be determined by taking into account any mitigating factors. Further, in s 53(1), the requirement is qualified by the words 'as far as is practicable'.
The Macquarie Dictionary defines the phrase 'take into account' to mean 'to take into consideration; allow for'.
The opening words to s 53(1) of the Sentencing Act are '[s]ubject to Division 1 of Part 2'. That division provides for general sentencing principles, including that the sentence imposed on an offender must be commensurate with the seriousness of the offence. Accordingly, the opening words to s 53(1) impose a limit on the extent to which the court must 'take into account' the means of the offender and the extent to which payment of the fine will burden the offender.
Giving effect to this limitation, it is well established that in some cases, it may be necessary to impose a fine that is difficult or even impossible for an offender to pay, if a fine of any lesser amount would not be commensurate with the seriousness of the offence.[27]
[27] See Hussaini v Szolnoski [2013] WASC 64 [25] - [26]; Nang & Associates Pty Ltd v Chan [2022] WASC 12 [66] ‑ [68].
In addition to the limitation imposed by the opening words, the Court's obligation to take the factors set out in s 53(1) into account is further qualified by the phrase 'as far as is practicable'. Neither the word 'practicable' nor the phrase 'as far as is practicable' is defined, and none of the authorities to which I have been referred have dealt with the meaning of that phrase in the context of s 53(1).
In Wright v Western Australia, Blaxell J considered the meaning of the word 'practicable' in the context of s 118(1) of the Criminal Investigation Act 2006 (WA), which set out criteria which was capable of constituting a reasonable excuse for the absence of an audiovisual recording of an admission. His Honour observed:
The ordinary meaning of 'practicable' is 'capable of being put into practice, done, or effected, esp. with the available means or with reason or prudence; feasible' (the Macquarie Dictionary (2nd ed) p 1388). Consistent with this meaning, the issue whether a given task is 'practicable', involves an enquiry as to the means and resources available to accomplish it.[28]
[28] Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339 [148].
The phrase 'as far as is practicable' was also considered by Buss JA (as he then was), with whom McLure P agreed, in SJX v The State of Western Australia.[29] The provision under consideration in SJX was reg 5(a) of the Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA), which required that a visually recorded interview of a child be conducted such that, as far as is practicable, statements made by the child in the interview were not elicited by the use of leading questions. Buss JA stated:
The words 'as far as' are synonymous with 'to the extent that'. The word 'practicable' connotes, relevantly, 'that can be done or used' or 'possible in practice'. See The Australian Oxford Dictionary, (2nd ed), pp 452, 1013.
[29] SJX v The State of Western Australia [2010] WASCA 243.
An ordinary reading of s 53(1) of the Sentencing Act is that the words 'as far as is practicable' qualify the extent to which the court must take into account the means of the offender and the extent to which payment of the fine will burden the offender.
Of course, if the court is to take account of those factors to any extent, the information must be before the court. The issue which arises in the present case is what is to happen when it is not.
Principles of statutory interpretation require that the phrase 'as far as practicable' be given some meaning and effect additional to the opening words of s 53(1).[30] However, it is difficult to conceive of circumstances where, if the financial information were available, it would not be 'practicable' to take it into account for reasons other than those which already fall within the scope of those opening words.
[30] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 [71].
One potential circumstance is where the amount of the fine to be imposed is subject to a mandatory minimum. In that situation, the court may not be able to be take the financial information into account to the extent it would otherwise.
However, s 9(3) of the Sentencing Act already provides that, where the statutory penalty for an offence specifies a minimum penalty, the penalty to be imposed must be at least that minimum. In those circumstances, the words 'as far as is practicable' would be superfluous.
In my view, for the phrase 'as far as is practicable' to have meaning and effect, it must also incorporate circumstances in which the court does not have the information in s 53(1) before it at all.
This construction, while not necessarily the natural meaning of the statutory text in isolation, is supported by the terms of s 53(2).
Section 53(2) provides that a court may fine an offender even though it has been unable to find out about the matters in subsection (1) (emphasis added).
The Macquarie Dictionary relevantly defines 'unable' as meaning:
not able (to do something); lacking ability or power (to do something); weak; impotent.
According to the same source, to 'find out' means:
to learn, attain, or obtain by search or effort; to discover.
Section 15 of the Sentencing Act provides that, to decide on the proper sentence to be imposed, a court sentencing an offender may inform itself in any way it thinks fit.
The use of the phrase 'unable to find out' in s 53(2), having regard to the provisions of s 15, suggests that more is required of the court than to passively await the provision of the information required by s 53(1) before it can take it into account. It suggests that the court is required to seek that information. If, despite having done so, the court is unable to ascertain that information, it is not precluded from imposing a fine.
This was the construction favoured by Martin CJ in Nelson, and is consistent with the manner in which appellate courts in this State have applied s 53, with the exception of Gobby. It is inconsistent with Gobby and, on its face, Cheshire.
Of the Western Australian authorities, only Gobby specifically deals with the statutory construction point. As such, I would only depart from it with caution.
The decisions in both Gobby and Cheshire are based, in large part, upon the well‑established principle that it is for an offender to bring all relevant information before the court in sentencing.
Section 53 of the Sentencing Act only applies if the court has decided that the appropriate disposition is a fine, and is deciding the amount of the fine to be imposed. The purpose of that provision is, in my view, to enable the court to ascertain the amount of the fine which will, in combination with all of the other relevant factors, constitute the appropriate punishment in the case of the particular offender before it.
I do not consider that the means of an offender and the extent to which payment of the fine will burden the offender are, in this context, mitigating factors.
Section 8(1) of the Sentencing Act states that mitigating factors:
… are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
It is trite that a fine which would punish a person of limited financial means would not have the same punitive effect on a person of more substantial means. Seen in that light, the financial information referred to by s 53(1) is not a factor which decreases the offender's culpability, and it does not decrease the extent to which the offender should be punished. The provision of that information merely enables the court, as far as is practicable, to ensure that punishment is more consistently administered as between offenders of different financial means.
In those circumstances, it is my view that the general principle relied upon in Gobby and Cheshire has limited application when it comes to the provision of the information set out in s 53(1), at least to the extent that it suggests that if the offender does not supply the information, the court's function does not extend to seeking it.
In Cheshire, the court cited the case of Higgins[31] as authority for the proposition that it is for an offender to put information as to their financial circumstances before the court. There is no indication as to what legislation, if any, applied in Higgins. However, in that case, the appellant had refused to provide information as to his means to authorities. At first instance the sentencing judge enquired as to time to pay, and made orders taking into account the response. On appeal, the appellant failed to provide instructions to his counsel as to his means, despite knowing the court sought the information. It is unsurprising in those circumstances that the court rejected the submission that the fine was excessive and made the observation relied upon.
[31] Higgins (1988) 10 Cr App R (S) 144.
The respondent referred to the cases of El Noor v The Queen[32] and Magjarraj v The Queen,[33] in which the Court of Appeal referred with approval to the statements made in Cheshire. However, as the respondent acknowledges, neither of those cases considered the issue arising in this case. Further, in each of those cases the sentencing judge had made enquiries as to the financial circumstances of the offender; the issue was that the information provided by the offender in response proved to be incorrect.
[32] El Noor v The Queen (2001) 123 A Crim R 123 [19].
[33] Magjarraj v The Queen (2001) 123 A Crim R 458 [10].
In Cheshire, the court said that the obligation was generally on the offender to put the financial information before the court, failing which they 'could hardly expect to be entitled to a reassessment of penalty'.[34] However, that statement must be understood in light of the fact that the 'reassessment of penalty' sought in Cheshire was not merely a reassessment of the amount of the fine imposed, but a reassessment of the type of sentencing disposition imposed.
[34] Cheshire v R (1994) 76 A Crim R 261, 261.
Further, the court qualified its statement as to the offender's obligation with the observation that:
At least that must be so, we think, if there are grounds for inferring that the amount of the fine is not such as to cause a burden to the offender which is disproportionate to his criminality.
Such an inference may be drawn in this case.
In the circumstances, I am not satisfied that Cheshire is as strong support for the decision in Gobby as was submitted by the respondent.
In my view, Gobby should not be followed. While I acknowledge the force of the observations of Murray J in Gobby and, to a more qualified extent, Cheshire, as to the adversarial, not inquisitorial, nature of sentencing proceedings, and the general obligations of an offender to place all relevant material before the court, I am not persuaded that those matters overcome the statutory language contained in s 53(2).
In my view, a finding to the contrary would fail to give proper effect to the words 'unable to find out'. Had the legislature not been seeking to impose any obligation on the court to ascertain the information, it could easily have used neutral language in s 53(2), such as (for example) 'a court may fine an offender in the absence of information about the matters in subsection (1)'. The fact that it did not do so must be given due effect.
If that is the proper construction to be given to s 53(2), the words 'as far as is practicable' in s 53(1) can be seen as imposing a limit on the court's obligation to ascertain the information referred to in s 53(1)(a) and (b), and thus preventing that obligation from becoming unduly burdensome.
Such an interpretation enables the 'means and resources'[35] available to the court to be considered in determining the extent of the court's obligation to take the information into account. Particularly in Magistrates Courts, in which the overwhelming majority of fines are imposed, it enables the application of practical limits to an obligation to seek information from offenders, bearing in mind the extremely high volume of cases with which they deal daily.
[35] Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1; (2010) 203 A Crim R 339 [148].
This construction is also consistent with the manner in which summary matters proceed. As the respondent pointed out, any construction which does not facilitate the ability of the Magistrates Court to promptly hear and determine charges in the absence of an accused would create significant issues for the operation of that court. Similarly, any construction which prevents a magistrate, in appropriate circumstances, from proceeding to deal with a matter notwithstanding the financial information is not immediately available on request, is to be avoided.
Without being constrained by what is practicable, for example, a court dealing with an offender in their absence would potentially be required to use its powers under the Criminal Procedure Act 2004 (WA) to compel a person to appear for the purposes of sentencing, in order for the court to try to ascertain information as to the factors in s 53(1). It could not be considered practicable for the court to be routinely required to proceed in such a manner.
In so saying, I do not seek to define the limits of what might be encompassed by the phrase 'as far as is practicable' in any given case. What is 'as far as is practicable' will depend on all of the circumstances of the particular matter.
Further, none of the foregoing should be taken to relieve counsel of their responsibility to appear before the court properly instructed in relation to s 53(1) matters and to submit that information, if required, at the appropriate time, without the need for prompting.
However, where no such information is proffered, whether by counsel or a self‑represented litigant, in my view a magistrate presiding over a sentencing proceeding who decides that a fine is the appropriate disposition is obliged to enquire, as far as is practicable, as to the factors set out in s 53(1) and to take them into account before setting the amount of the fine.
In this case, the learned magistrate did not do so.
It is unfortunate that the appellant's counsel, having submitted that a fine would be an appropriate disposition, and being aware of a previous fine in a similar amount having been imposed on the appellant, did not make submissions as to the appellant's financial circumstances. However, as he did not do so, and there was no reason why it would not have been practicable for her Honour to make an enquiry, it follows that her Honour erred.
The State submitted that, in the event that ground 2 was upheld, I should find that there was no significant miscarriage of justice. I will return to consideration of the proviso after dealing with ground 1.

Ground 1

In order to establish the ground of appeal, the appellant must establish that the sentence imposed was unreasonable or plainly unjust.[36]
[36] Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)]; Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [161].
In considering whether a sentence imposed is manifestly excessive, the offence should be viewed in light of the maximum sentence for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[37]
[37] Kabambi v The State of Western Australia [2019] WASCA 44 [21(2)].
The appellant contends that the appellant's offending in each case falls at the lowest end of seriousness, rather than at the 'lower end of seriousness', as characterised by the learned magistrate, as demonstrated by the following factors:[38]
(1)the condition imposed on 14 November 2022 which restricted the appellant from removing items from bins is not clearly linked to the purpose of the HRSO Act, which is for the protection of the community and to provide continuing control, care or treatment for high risk serious offenders;
(2)the offending in relation to charge PE 7484 of 2023 was limited only to the taking of items from the bin (there was nothing which prevented the appellant rummaging through the bins);
(3)the appellant was frank and upfront about his failure to record the conversation with his CCO, bringing to light the offending where it would likely have gone undetected otherwise; and
(4)the short duration of the conversation, supporting the appellant's account that the failure to report the conversation was an easily made oversight.
[38] Appellant's submissions filed 22 January 2024, 7 - 8 (Appellant's submissions 22 January 2024).

The appellant submitted he is generally compliant with the complex and onerous conditions and written lawful instructions to which he is subject, and that there ought to be significant mitigation for the appellant's early plea of guilty and cooperation.[39]
[39] Appellant's submissions 22 January 2024 [31].
The respondent submitted the global fine imposed for the two offences was a small fraction of the possible maximum fine of $72,000 which could have been imposed by the learned magistrate.[40]
[40] Respondent's submissions filed 9 February 2024 [13], [15] (Respondent's submissions 9 February 2024).
The respondent contended that both written lawful directions imposed on the appellant were imposed to manage the risk that he poses to the community and that any breach of those conditions is a serious matter. The respondent submitted that both conditions serve the purpose of limiting any interactions the appellant may have where he poses a risk to the community, including unplanned interactions which CCOs cannot assess. The effectiveness of the diary condition depends on the accuracy of the information provided by the appellant.[41]
[41] Respondent's submissions 9 February 2024 [22] - [25].
Further, the offending was aggravated by the extended time the appellant spent sorting through the bins prior to taking items and that the appellant had previously been reminded not to take items from the bins where he resides.[42]
[42] Respondent's submissions 9 February 2024 [27] - [28].
The respondent noted that personal deterrence was a factor for the appellant as the appellant has an extensive criminal history including a history of poor response to supervision.
On 17 November 2022, the appellant was convicted of three charges of contravening a requirement of his Supervision Order without reasonable excuse. A global fine of $1500 was imposed.

The ground of appeal refers to the standard of sentencing customarily observed for offences of this type. However, there is no sentencing tariff for offences contrary to s 80 of the HRSO Act. There has been no appellate consideration of sentences previously imposed for contraventions of s 80 of the HRSO Act. Further, and in any event, the range of potential breaches and the circumstances in which they occur is so wide as to make it unlikely that a tariff will emerge over time.
The appellant referred to Ugle v Bailey[43] as a case said to involve a greater number of more serious offences than in the present case. In that case, the appellant was sentenced to global fines of $1,500, $1,000 and $500 at first instance. On appeal, when a number of convictions were set aside, global fines of $600, $300 and $200 were imposed.
[43] Ugle v Bailey [2023] WASC 398.
Manifest excess cannot be demonstrated by pointing to a single comparator, particularly without any reference to the aggravating and mitigating factors which were present. Further, and in any event, I do not accept that the sentences imposed in Ugle were such as to warrant grievance on the part of the appellant.
The respondent supplied a schedule of cases in which offenders were sentenced in the Supreme Court at first instance for offences committed contrary to s 40A of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), the predecessor to s 80 of the HRSO Act. As the respondent acknowledged, the maximum penalty under the DSO Act was 2 years' imprisonment (and, accordingly, a $24,000 fine). Further, review of comparable cases should be conducted by reference to appellate cases of intermediate courts of appeal or the High Court.[44] As such, the guidance to be taken from first instance cases is very limited. Further, the schedule demonstrates that immediate imprisonment, and not a fine, was commonly the sentence imposed for offences contrary to s 40A of the DSO Act.
[44] CGF v The State of Western Australia [2023] WASCA 187 [340].
The maximum penalty for each offence in this case is 3 years' imprisonment or a fine of $36,000. The appellant did not set out the basis of his submission that the fine of $1,200 was manifestly excessive having regard to the available maximum penalty, and it is difficult to see how that submission can be sustained.
As to the appellant's contention that the circumstances of the offending are 'trivial or technical'[45] in nature, I accept that, in the abstract, the offending does not appear to be particularly serious. However, it is necessary to consider the context of the appellant's conduct in assessing the seriousness of the offences in this case.
[45] Appellant's submissions 22 January 2024 [25].
The power under the HRSO Act to make a lawful written instruction is limited to making reasonable directions. It is not suggested that the written instruction not to remove items from bins and other places was unreasonable.
The purpose of the HRSO Act and conditions and directions made pursuant to it is to ensure adequate protection of the community and victims of serious offences and to provide continuing control, care or treatment of high risk serious offenders.[46] For an offender to be made subject to orders pursuant to the HRSO Act, it must have been demonstrated, by acceptable and cogent evidence, and to a high degree of probability, that an order is necessary to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[47]
[46] High Risk Serious Offenders Act 2020 (WA), s 8.
[47] High Risk Serious Offenders Act 2020 (WA) s 7.
It necessarily follows that adequate protection of the community against that risk, and proper control, care and treatment of the offender, rely upon the offender complying with the conditions imposed as part of the order. A failure to do so is likely to result in an increased risk of the commission of a serious offence.
As such, any breach of the conditions of an order under the HRSO Act cannot be considered in isolation from the reasons for the condition, the difficulty in detecting breaches of the condition, and the risk the offender otherwise poses to the community.
The appellant is, in effect, tightly monitored in relation to his possession and use of electronic devices, and is not permitted to have access to the internet without approval. He is prohibited from possessing images of children, whether they are electronic or paper images. He is prohibited from accessing pornographic materials. He is prohibited from possessing offensive or prohibited weapons.
In State of Western Australia v Dragon [No 2], Strk J noted the appellant had told a psychiatrist in interview that he could not control his urge to seek images of children. Dr Wynn Owen further recorded that the respondent stated that 'looking and searching' was the appeal, not sexual arousal to the images themselves.[48] The appellant also acknowledged to Ms Hasson his difficulty controlling the drive or urge to view child exploitation material.[49]
[48] State of Western Australia v Dragon [No 2] [2022] WASC 189 [65] (Dragon).
[49] Dragon [171].
In circumstances in which the appellant is unable to access online material relating to children or pornography, the condition preventing him removing material discarded by others is an important mechanism by which to deny him an alternative means of satisfying his urge to search for, and access, images of children and pornographic material. It is not to the point that the items he removed on this occasion were not of such a nature as to increase the appellant's risk; it is not practical to expect the authorities to monitor what he removes.
Similarly, the failure by the appellant to record in his diary the conversation with the man at the bins might be regarded as a minor breach in itself, but the requirement for the appellant to detail his daily movements was considered appropriate in order to manage the appellant's risk in the community. As was pointed out in Dragon,[50] GPS monitoring of the appellant does not provide the authorities with information as to the appellant's contact with others, and it is important that he provide full, frank and timely information to his supervisors.
[50] Dragon [187].
Even if the circumstances of the offence were 'trivial or technical',[51] s 46 of the Sentencing Act requires that the court also have regard to the offender's character, antecedents, age, health and mental condition and any other matter that the court thinks is proper to consider. In my view, it would be extremely rare that, when a person who meets the criteria to be declared a high risk serious offender breaches a requirement of their supervision order, it would be 'not just' to impose a sentence.
[51] Appellant's submissions 22 January 2024 [25].
In this regard, personal and general deterrence are critical aspects of sentencing offenders for breaches of conditions of a supervision order under the HRSO Act. The HRSO Act relies on strict supervision and monitoring, combined with the prospect of significant punishment or, in more severe cases, a return to custody, in order to achieve its purpose. As such, high risk serious offenders need to appreciate that breaches of conditions will be met with meaningful punishment.
The need for a sentence with personal deterrent effect is highlighted in the present case by the appellant's criminal history. Prior to the present offending, the appellant had contravened a requirement of his order on three other occasions, on two separate days. For that offending, he was sentenced to a global fine of $1,500.

The appellant did plead guilty at the earliest reasonable opportunity for which he received the maximum discount. The magistrate also discounted the sentenced by a further by a further 20% for the fact that the offender spent the morning in custody following his arrest, a discount which might be seen to be generous.[52]
[52] ts 10 February 2023, 10 - 11.
The offender is also entitled to mitigation for the fact that he admitted his contact with the man when speaking with his CCO, and effectively disclosed his own offending which may have otherwise gone undetected. Such frankness is to be encouraged, just as concealment is to be deterred.
However, having regard to all of the circumstances of the case, including all mitigating factors, I am not satisfied that the sentence imposed by the learned magistrate was unreasonable or plainly unjust.

Proviso

Having found that the learned magistrate erred, if I am satisfied that there has been no substantial miscarriage of justice, I may dismiss the appeal.
In this case, I would only be satisfied that there has been no substantial miscarriage of justice if I am satisfied that no different sentence would have been passed had the learned magistrate ascertained the information required by s 53(1).
The additional evidence relied upon by the appellant is to the effect that the appellant's income is about $640 per week, of which $310 a week is rent, with average expenses of approximately $120. That leaves an excess of more than $200 a week.
Despite enquiry, there was no evidence which was put before me that a fine of $1,200, which allowed for time to pay, would constitute an unreasonable burden on the appellant, such that it was disproportionate to the seriousness of the offence.
In my view, the additional evidence does not satisfy me that a different sentence should be passed. Accordingly, I am not satisfied that there has been a substantial miscarriage of justice.

Orders

1.Application for an extension of time granted.
2.Leave to appeal refused on ground 1.
3.Leave to appeal granted on ground 2 .
4.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
7 MAY 2024