Foreman v Pargin

[2001] WASCA 351

FOREMAN -v- PARGIN & ANOR [2001] WASCA 351

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 351
Case No:	SJA:1144/2001	Heard:	24 OCTOBER 2001
Coram:	HASLUCK J	Delivered:	9/11/01
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	BRADLEY KEVIN FOREMAN GILES TIMOTHY PARGIN TREVOR LEONARD FISHER
Catchwords:	Criminal law Sentencing Whether parole and suspended imprisonment sufficiently considered Ambiguity in calculation of aggregate term Appeal against sentence allowed
Legislation:	Criminal Code, s 378, s 409, s 414 Justices Act 1902, s 196(1)(b), s 199 Police Act 1892, s 20 Road Traffic Act 1974, s 49(1)(a), s 49(2) Sentencing Act 1995, s 6, s 39, s 87, s 89
Case References:	Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Cross v Cook [2001] WASCA 242 Dinsdale v The Queen (2000) 175 ALR 315 Etrelezis v The Queen [2001] WASCA 327 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 Police v Cadd (1997) 69 SASR 150 R v Gallagher (1991) 23 NSWLR 220 R v Holder & Johnston (1983) 13 A Crim R 375 R v Lambley (1989) 40 A Crim R 430 R v Liddington (1997) 18 WAR 394 R v Wroblewski (1999) 105 A Crim R 129 Radebe v The Queen [2001] WASCA 254 Ratcliffe v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Rowlands v Caporn [2001] WASCA 66 Shooter v The Queen (1997) A Crim R 581 Swain v R (1989) 41 A Crim R 214 Wilkinson (1996) 85 A Crim R 353 Wongawol (1998) 101 A Crim R 350 Abdullah v Allen, unreported, SCt of WA, Library No 970367, 15 July 1997 Auburn v Sears, unreported, SCt of WA, Library No 970508, 2 October 1997 Australian Coal and Shale Employees' Federation & Anor v The Commonwealth & Ors (1953) 94 CLR 621 Cunningham v Walsh [2000] WASCA 201 House v R (1936) 55 CLR 499 Latham v The Queen [2000] WASCA 338 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Chan (1999) 38 A Crim R 337 R v Davey (1980) 50 FLR 57 R v Percy [1975] Tas SR 62 R v Tait & Anor (1979) 46 FLR 386 Stewart v Waghorn & Anor [1999] WASCA 150 Thompson v The Queen (1993) 8 WAR 387 Vlek v The Queen, unreported, CCA SCt of WA, Library No 990153, 29 March 1999 Williams v Franzinelli [2001] WASCA 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : FOREMAN -v- PARGIN & ANOR [2001] WASCA 351 CORAM : HASLUCK J HEARD : 24 OCTOBER 2001 DELIVERED : 9 NOVEMBER 2001 FILE NO/S : SJA 1144 of 2001 BETWEEN : BRADLEY KEVIN FOREMAN

Appellant

AND

GILES TIMOTHY PARGIN
TREVOR LEONARD FISHER
Respondents

Catchwords:

Criminal law - Sentencing - Whether parole and suspended imprisonment sufficiently considered - Ambiguity in calculation of aggregate term - Appeal against sentence allowed

Legislation:

Criminal Code, s 378, s 409, s 414

Justices Act 1902, s 196(1)(b), s 199
Police Act 1892, s 20
Road Traffic Act 1974, s 49(1)(a), s 49(2)
Sentencing Act 1995, s 6, s 39, s 87, s 89

(Page 2)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr M Flynn
Respondents : Ms F B Seaward

Solicitors:

Appellant : Legal Aid of Western Australia
Respondents : State Crown Solicitor

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

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 175 ALR 315
Etrelezis v The Queen [2001] WASCA 327
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Police v Cadd (1997) 69 SASR 150
R v Gallagher (1991) 23 NSWLR 220
R v Holder & Johnston (1983) 13 A Crim R 375
R v Lambley (1989) 40 A Crim R 430
R v Liddington (1997) 18 WAR 394
R v Wroblewski (1999) 105 A Crim R 129
Radebe v The Queen [2001] WASCA 254
Ratcliffe v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Rowlands v Caporn [2001] WASCA 66
Shooter v The Queen (1997) A Crim R 581
Swain v R (1989) 41 A Crim R 214
Wilkinson (1996) 85 A Crim R 353


(Page 3)

Wongawol (1998) 101 A Crim R 350

Case(s) also cited:

Abdullah v Allen, unreported, SCt of WA, Library No 970367, 15 July 1997
Auburn v Sears, unreported, SCt of WA, Library No 970508, 2 October 1997
Australian Coal and Shale Employees' Federation & Anor v The Commonwealth & Ors (1953) 94 CLR 621
Cunningham v Walsh [2000] WASCA 201
House v R (1936) 55 CLR 499
Latham v The Queen [2000] WASCA 338
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Chan (1999) 38 A Crim R 337
R v Davey (1980) 50 FLR 57
R v Percy [1975] Tas SR 62
R v Tait & Anor (1979) 46 FLR 386
Stewart v Waghorn & Anor [1999] WASCA 150
Thompson v The Queen (1993) 8 WAR 387
Vlek v The Queen, unreported, CCA SCt of WA, Library No 990153, 29 March 1999
Williams v Franzinelli [2001] WASCA 241

(Page 4)

1 HASLUCK J: This is an appeal against sentence by the appellant, Bradley Kevin Foreman, who was convicted of various offences in response to a plea of guilty. The issues raised on appeal include the question of whether proper consideration was given to parole and suspended imprisonment.

2 On 20 June 2001, the appellant was sentenced in the Court of Petty Sessions held at Rockingham for seven offences to which he pleaded guilty.

3 The appellant appeals against the sentences in respect of five offences being the five charges described in more detail hereafter.

4 The appellant was charged (RO2177/01) that on 9 February 2001 he received stolen property contrary to s 414 of the Criminal Code being jewellery, passport, prescriptions, Australian and foreign currency, last will and testaments, ANZ and Commonwealth Bank passbooks and assorted papers valued at $9,000.

5 By s 414 of the Criminal Code, any person who receives stolen property is liable to the greatest punishment provided for the kind of offence by means of which the property was obtained or imprisonment for 14 years, whichever is the lesser. By s 378, the penalty for stealing is described as imprisonment for 7 years.

6 He was sentenced to 9 months' imprisonment in respect of this offence.

7 The appellant was also charged (RO1622/01) with fraud contrary to s 409 of the Criminal Code. It was alleged that on 9 February 2001, with intent to defraud by deceit, namely, by falsely pretending to Rockingham Cash and Gold Exchange to be the lawful owner of a gold neck chain he obtained $85 the property of Rockingham Cash and Gold Exchange.

8 Section 409(1)(a) provides that any person who with intent to defraud, by deceit or any fraudulent means, obtains property from any person is guilty of a crime and is liable to imprisonment for 7 years. The summary conviction penalty is imprisonment for 2 years, or a fine of $8,000.

9 He was sentenced to 4 months' imprisonment in respect of this offence, to be served concurrently.

(Page 5)

10 The appellant was charged also (RO1623/01) with fraud contrary to s 409(1)(a) of the Criminal Code in that on 12 February 2001 with intent to defraud by deceit, namely, by falsely pretending to an employee of ANZ Bank to be David Ronald Jones, he attempted to obtain $2,400.

11 He was sentenced to 6 months' imprisonment in respect of this offence, to be cumulative.

12 The appellant was charged (RO2577/01) with driving whilst legally disentitled to hold a driver's licence contrary to ss 49(1)(a) and 49(2) of the Road Traffic Act1974. The particulars were that he drove a motor vehicle registered number 1AEP 299 on a road, namely, Commodore Drive without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence.

13 The effect of the relevant statutory provisions is that a person who drives a motor vehicle in such circumstances commits an offence. The offender was liable to imprisonment for 18 months and to a fine of $1,000 and $4,000 with disqualification for 9 months to 3 years.

14 The appellant was sentenced to 4 months' imprisonment cumulative and disqualification of motor driver's licence for 15 months.

15 The appellant was also charged (RO1619/01) with resisting a public officer, contrary to s 20 of the Police Act1892. The particulars were that on 12 February 2001, he resisted one Senior Constable Giles Timothy Pargin in acting in the course of his duty.

16 Section 20 of the Police Act provides that if any person shall resist any member of the police force in the execution of his duty, every such offender being convicted thereof before any two or more justices shall, for every such offence, forfeit and pay a sum not exceeding $500 and shall be liable in addition to be imprisoned for a term not exceeding 6 months.

17 The appellant was sentenced to a term of imprisonment for 4 months, to be served concurrently.

18 I pause to note that the appellant had come before the Court of Petty Sessions on a number of occasions prior to the convictions being recorded against him on 20 June 2001, being the occasion on which the learned Magistrate, in the course of her sentencing remarks, disclosed the basis upon which the sentences were imposed.

(Page 6)

19 The consequence of these various appearances is that a degree of ambiguity exists as to exactly what materials were before the court prior to sentences being imposed in respect of the five offences, the subject of this appeal. I note in passing that the two other matters before the court were pleas of guilty by the appellant to breach of a restraining order and using a vehicle without registration plates. These two offences led to the imposition of fines and therefore do not have any bearing upon the issue mentioned below as to whether the learned Magistrate identified a "head sentence" in order to define the duration of the aggregate term of imprisonment. On one view of the matter, if the first sentence imposed, being 9 months for receiving (RO2177/01) be regarded as the primary sentence to which was added 6 months cumulative for RO1623/01 and 4 months cumulative for the driving offence RO2577/01, the aggregate term would be 19 months' imprisonment commencing 20 June 2001 to be served immediately.

20 The appellant's case on appeal proceeded from the premise that the learned Magistrate in the course of her sentencing remarks did not identify a "head sentence" or summarise the effect of the total period to be served. The transcript indicates also that she did not make any reference to parole.

21 Counsel for the appellant went on to draw attention to the fact that the learned Magistrate signed a warrant of commitment in which a "head sentence" is nominated, being 4 months on the resist arrest charge with the total term being given as "1 year 2 months" or 14 months. "No" is indicated in response to eligible for parole. Counsel submitted that the effect of the warrant was to confirm that the appellant was sentenced effectively to 14 months' imprisonment, commencing 20 June 2001 (being the day on which the offender was sentenced), with no eligibility for parole. For the time being, I will assume, without deciding, that the warrant of commitment is the operative point of reference, as this marks the end of the sentencing process.

22 The relevant calculation on this view of the matter is that two cumulative terms of 6 months and 4 months respectively are to be added to the sentence of 4 months (to produce a total of 14 months) with the remaining terms to be included within this total as concurrent terms. The difficulty with this line of reasoning is that the first sentence imposed (RO2177/01) was not expressly classified by the learned Magistrate in her sentencing remarks or on the relevant complaint form as being either concurrent or cumulative.

(Page 7)

23 It was against this background, without objection from counsel for the respondent, that at the hearing before me I received an affidavit by the appellant sworn 18 October 2001 with a view to clarifying the events in the court below. The power to admit further evidence of his kind is allowed to the appellate court by s 196(1)(b) of the Justices Act 1902. The principles governing the admission of such evidence were summarised by Roberts-Smith J in Rowlands v Caporn [2001] WASCA 66.

24 Counsel for the appellant addressed this aspect of the matter in his written outline of submissions and in his submissions to the court at the hearing of the appeal. The notations upon the complaints and the transcript were also of use in reconstructing the relevant chronology.

25 It seems that on 13 February 2001 the following charges were laid, namely, resist arrest charge, jewellery fraud charge, attempted bank fraud charge, being charges 1619, 1622 and 1623. Charges of aggravated burglary and stealing were also laid (being charges 1620 and 1621). The appellant obtained bail and was remanded to 6 March 2001. He was remanded again to 20 March 2001, with bail being extended on the same terms.

26 On 20 March 2001, he pleaded guilty to the jewellery fraud charge and the attempted bank fraud charge and obtained hearing dates for the resist arrest charge and the charges of aggravated burglary and stealing.

27 On 15 May 2001, he pleaded guilty to the driving offence, but without facts being taken. Bail was then revoked following an application for withdrawal of surety.

28 On 21 May 2001, a status conference confirmed hearings for 25 May 2001 for the resist arrest charge and the charges of aggravated burglary and stealing. Later on that date, the prosecutor withdrew the charge of aggravated burglary and stealing and the appellant pleaded guilty to the receiving charge, but without facts being taken. An oral pre-sentence report was ordered and he was remanded to 25 May 2001 for hearing of the resist arrest charge.

29 On 25 May 2001, he pleaded guilty to the resist arrest charge. Facts were read out and an oral pre-sentence report was provided. He was remanded to 20 June 2001, with bail being granted subject to residential and CATS conditions.

(Page 8)

30 The transcript for 20 June 2001 shows that on that day the learned Magistrate sentenced the appellant. However, as I have already indicated, it is not entirely clear from the various exchanges what evidentiary materials were before the Magistrate on that day. The transcript certainly shows that she requested, and apparently received, the appellant's prior record. I pause to observe that the record forming part of the materials in the appeal book discloses various offences prior to the convictions on 20 June 2001, being, more particularly, false name and address 29 June 1988, stealing 18 May 1990, cannabis possession 24 April 1991 and common assault 30 September 1993. The certified copy of traffic convictions shows various convictions, including a conviction for no motor driver's licence on 27 February 2001.

31 According to the affidavit of the appellant received at the hearing of the appeal, the learned Magistrate was not informed of the circumstances of the receiving and fraud offences before imposing a sentence, apart from circumstances that were evident from the contents of the complaints relating to those offences and the contents of the oral pre-sentence report given on 25 May 2001.

32 The appellant said further in his affidavit that the offences occurred when he became aware that a person who was renting a room in his house had a substantial quantity of stolen items in her possession. She owed him money for rent and paid that debt by giving him jewellery that he redeemed at Rockingham Cash and Gold Exchange.

33 The appellant went on to say that a few days later, he was served with Family Court documents relating to a property dispute with his former wife. As a result of the breakdown of his marriage and the Family Court proceedings, his business was in a desperate financial position and he took a bank book in the name of a certain individual from the person renting the room, with a view to obtaining money to pay outstanding debts, including his mortgage, car loan and trade creditors. On being questioned by police in relation to the offences, he admitted his involvement and informed the police of the probable location of other items of stolen property that they were seeking.

34 He said that with respect to the driving while legally disentitled offence, the learned Magistrate, so far as the appellant was aware, was not informed of the circumstances of the offence before imposing a sentence apart from circumstances that were evident from the contents of the complaint relating to the offence.

(Page 9)

35 The appellant went on to say this in his affidavit:

"(b) The offence occurred in unusual circumstances. I was working at a job near Commodore Drive, Rockingham when my girlfriend, Dina Mussen, arrived and informed me that she had run out of fuel near-by while driving my diesel land cruiser. She proceeded to obtain a can of fuel and I instructed her to attempt to start the engine while I worked on getting the fuel 'pumping' correctly. The vehicle would not start. Some by-standers offered to push the vehicle. I accepted the offer and 'drove' the vehicle for 100 metres on the road in an attempt to get the vehicle started. I succeeded, although the vehicle engine was running poorly. I parked the vehicle on a vacant block and left the driver's seat in order to allow Dina Mussen to continue driving. Shortly afterwards, police officers approached me and informed me that I was to be charged in relation to my driving."

36 It was against this background that the appellant obtained leave to appeal against sentence in respect of the five offences mentioned earlier as the subject of his appeal. Leave was obtained at the hearing of the appeal, without objection from counsel for the respondent, for two further grounds of appeal to be added. The position then became that the grounds of appeal and particulars in their final form were as follows:

"(a) The learned Magistrate erred in not making a parole eligibility order.

PARTICULARS
(i) When imposing sentence on 20 June 2001, the learned Magistrate erred in failing to consider at all making a parole eligibility order.

(ii) When imposing sentence on 20 June 2001, the learned Magistrate erred in failing to consider or properly consider or place any or sufficient weight upon the circumstances of the Appellant that were relevant to the making of a parole eligibility order, namely:

(Page 10)

A. The relative level of seriousness attending the circumstances and commission of each offence;

B. The last non-Traffic conviction of the Appellant had been eight years previously (30 September 1993) and the Appellant had never been sentenced to a term of imprisonment;

C. The improved prospects of rehabilitation of the Appellant as a result of parole.

(b) The learned Magistrate erred in failing to take into account time previously spent in custody in respect of the offences the subject of this appeal.

PARTICULARS
(i) The learned Magistrate failed to have regard to the following periods of time that the Appellant had spent in custody in respect of the offences the subject of this appeal: A. 5 days between 13 February 2001 and 18 February 2001; and B. 17 days between 8 May 2001 and 25 May 2001.

(c) The learned magistrate erred in treating a failure to observe a bail condition as an aggravating factor when imposing sentence.

PARTICULARS
(i) When imposing sentence on 20 June 2001, the learned Magistrate treated the Appellant's failure to observe bail conditions imposed on 25 May 2001 as a matter that increased the culpability of the Appellant.

(d) The learned magistrate erred in imposing a sentence that was, in all of the circumstances, manifestly excessive.

PARTICULARS
(i) The learned Magistrate erred in failing to place any or proper weight upon the record of the

(Page 11)

Appellant, particularly, that the Appellant's last convictions for a property offence was on 18 May 1990 when the Appellant was sentenced to a 100 hour community service order;

(ii) The learned Magistrate erred in failing to place any or proper weight upon the relatively low level of seriousness attending the circumstances and commission of each offence;

(iii) The learned Magistrate erred in failing to place any or proper weight upon the circumstances of the Appellant relevant to the commission of the offences, particularly, that the Appellant was motivated to commit the offences by reason of being a drug addict;

(iv) The learned Magistrate erred in failing to place any or proper weight upon the 'totality principle'.

…

(e) In relation to each sentence imposed with the exception of the sentence for the offence of resisting a member of the police force, the learned Magistrate erred in law by imposing a sentence without being sufficiently advised as to the circumstances of the commission of the offence.


Particulars

Section 6 (2) Sentencing Act1995 (WA) provides that the seriousness of an offence must be determined by taking into account inter alia '(b) the circumstances of the commission of the offence'. The learned Magistrate was not informed of the circumstances of the commission of the offence and failed to inquire as to the circumstances of the commission of the offence.


(f) The learned Magistrate erred in law by failing to consider properly or at all whether to suspend the sentence of imprisonment imposed upon the Appellant.

Particulars

(Page 12)

(i) In deciding whether or not to suspend the sentence of imprisonment that was imposed, the learned Magistrate erred in failing to reconsider matters relevant to the decision to imprison the Appellant, namely, circumstances of the offence and matters personal to the Appellant;

(ii) The learned Magistrate erred in failing to consider at all whether or not to suspend the sentence of imprisonment that was proposed."

37 I pause to note that at the hearing of the appeal on 24 October 2001, the appellant applied for and obtained orders effecting his release on bail pending determination of the appeal.

38 It will be useful to look briefly at a number of legal principles bearing upon the sentencing process and the issues raised by the grounds of appeal.

39 I begin by noting that by s 196 of the Justices Act 1902 the court shall determine the appeal on the material before the court below, although, as I have already noted, there is power to admit such further evidence as the court thinks fit to receive, especially if there is a degree of ambiguity as to what plea in mitigation or version of events the appellant wished to put before the court below.

40 By s 199, the court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for rehearing.

41 The court is not required to set aside or quash if the facts or evidence in substance support the decision. If the court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

42 It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. Lowndes v The Queen (1999) 195 CLR 665.

43 Principles of sentencing in this State are reflected in s 6 of the Sentencing Act1995 and related provisions. The sentence must be commensurate with the seriousness of the offence, this being determined

(Page 13)

by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence, or a need to protect the community. Mitigating factors include a plea of guilty, with weight being given to an early plea. The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. Radebe v The Queen [2001] WASCA 254.

44 The sentencing options for a natural person are set out in s 39 of the Sentencing Act. A court must not use a particular option unless it is satisfied, having regard to the principles of sentencing mentioned earlier, that it is not appropriate to use any of the options listed before that option.

45 A court need not refer explicitly to each option, for the conclusion that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. Shooter v The Queen (1997) A Crim R 581.

46 A court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The Queen (2000) 175 ALR 315 which was later approved by this Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. cfR v Liddington (1997) 18 WAR 394.

47 A fixed term of imprisonment is to be served concurrently with any other fixed term, unless the court directs that it be served cumulatively. It is necessary in such cases to identify the head sentence.

48 The totality principle requires a sentencing officer who has passed a series of sentences, each properly calculated in relation to the offence, to consider whether the aggregate is just and appropriate. Wilkinson (1996) 85 A Crim R 353.

49 This may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate: Mill v The Queen (1988) 166 CLR 59 at 63. The aggregate sentence must not be inappropriately long having regard to the course of criminal conduct viewed as a whole. The ultimate decision

(Page 14)

is arrived at by reference to the totality of the criminality involved in all of the offences. R v Holder & Johnston (1983) 13 A Crim R 375 at 389.

50 Once a court sentences a person to a term of imprisonment, s 89 of the Sentencing Act requires that the question of eligibility for parole must be considered, save for terms of less than 12 months. The relevant provisions suggest a bias towards eligibility, although the discretion in that regard cannot be triggered unless there is something in the materials which points positively towards such an outcome. Wongawol (1998) 101 A Crim R 350.

51 The principles concerning the grant of parole are reflected in Wongawol.

52 Parole serves to mitigate punishment as well as to provide an opportunity for rehabilitation. In determining whether an order for eligibility for parole should be made, the sentencing court may have regard to factors such as the nature of the offence, the circumstances of the commission of the offence, the antecedents of the offender and circumstances which are relevant to the offender which might, in the opinion of the court, be relevant to the offender at the time at which the offender would be eligible to be released on parole if an order were made. This facilitates consideration of whether, in terms of rehabilitation, the offender is likely to benefit from serving the relevant portion of the sentence under supervision in the community.

53 In Swain v R (1989) 41 A Crim R 214, Malcolm CJ noted at 281 that if the antecedents of the offender show a series of prior convictions for similar offences, it has been accepted that this would tend to show that the offender was a poor parole risk and suggest that an eligibility order would not be appropriate. On the other hand, one of the strongest positive pointers to eligibility would be that the applicant for parole was a first offender.

54 Against this background, let me now turn to the various grounds of appeal.

55 The first ground raises the issue of whether the learned Magistrate erred in not making a parole eligibility order.

56 It is apparent from the transcript of the hearing before the learned Magistrate on 20 June 2001 that she did not expressly give consideration to whether a parole eligibility order should be made. I have previously indicated that the decided cases, and especially Wongawol (supra),

(Page 15)

indicate that the question of eligibility for parole must be considered. Section 89(3) of the Sentencing Act provides that a parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months. It follows that if the aggregate of the fixed terms exceeds 12 months, as in the present case, then a court must consider eligibility for parole, although it is a matter of discretion s to whether eligibility for parole should be granted.

57 The failure of a Magistrate to invite both parties to make submissions as to the appropriateness of a parole eligibility order, will not necessarily amount to an error of law, if the relevant factors for the Magistrate's consideration are before the court. However, in the present case, it is difficult to accept that matters of the kind referred to in s 89(2), being matters to which the court is to have regard in addressing the parole issue, such as the seriousness and the circumstances of the commission of the offence, were properly before the court when the appellant was unrepresented and it seems that a statement of material facts was not presented to the court in respect of the various offences.

58 Counsel for the respondent submitted that it was open to the learned Magistrate not to make a parole eligibility order, having regard to the appellant's criminal record and the seriousness of the receiving offence which related to goods of the value of $9,000. Further, the appellant had indicated an unwillingness to keep appointments with his CATS counsellor to discuss his drug problem.

59 On the other hand, counsel for the appellant submitted that there were personal circumstances of the appellant presented to the court in the form of the oral pre-sentence report which suggested that the appellant would be likely to benefit from serving a portion of the sentence under supervision in the community and, consistently with the decided cases, could be viewed as material pointing positively towards the grant of eligibility for parole. Counsel pointed out that the appellant's prior record did not disclose any contemporary or persistent pattern of wrongdoing. The breakdown of his marriage had caused him to act in a manner that was out of character.

60 In the circumstances of the present case, I consider that the learned Magistrate erred in failing to give proper consideration to the question of whether eligibility for parole should be granted. It is apparent from the transcript that the matter was not considered expressly and, thus, it is difficult to conclude that proper consideration was given to the factors identified by the Sentencing Act as material to the exercise of a discretion

(Page 16)

concerning parole. Further, and in any event, the position in the court below is complicated by the presence of an ambiguity at the time the sentencing remarks were uttered as to the length of the aggregate term. There were factors before the court which arguably suggested that the appellant would benefit from serving a portion of the sentence under supervision in the community. For these reasons, I consider that the learned Magistrate erred in the exercise of her discretion, with the result that on this ground the appeal should be allowed. I will return to the question of what is the appropriate form of relief later.

61 The next ground of appeal concerns the question whether the learned Magistrate erred in failing to take into account time previously spent in custody in respect of the offences the subject of the appeal, that is to say, five days between 13 February and 18 February 2001 and 17 days between 8 May and 25 May 2001.

62 Section 87 of the Sentencing Act gives the court a discretion to take time spent in custody into account in respect of the offence the subject of the sentencing order "and for no other reason". Ordinarily, a court will exercise the discretion to take time spent in custody into account unless it can be said that the offender's own conduct contributed to remaining in custody. R v Lambley (1989) 40 A Crim R 430 at 440; Ratcliffe v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 per Murray J.

63 It is material to note in the present case that, in the course of presenting an oral pre-sentence report to the learned Magistrate on 25 May 2001, Ms Whelan referred to the fact that the appellant had been in custody, had an awful time, and was not keen to return there. These observations were in the course of providing particulars of his circumstances to the court. Ms Whelan noted that he had been running his own business as a plasterer for the last eight years, but his lifestyle had gone downhill since he separated from his wife late last year. She went on to say that he had fallen into the wrong company and reference was made to the receiving offence having occurred in the context of the offender being owed money for rent by a female who was staying with him and some goods being received in those circumstances.

64 The transcript of the hearing does not make any explicit reference to the time spent in custody as a factor in the sentencing process and as to whether the time in question was to be brought to account in determining the appropriate term of imprisonment or the commencement date. I have already noted in the course of referring to various legal principles that a

(Page 17)

court need not refer explicitly to each sentencing option, for the conclusion that a specific sentencing option is appropriate carries the necessarily inference of satisfaction that all other options are inappropriate. Likewise, prima facie, one must assume that a judicial officer took account of the relevant factors in passing sentence, even though no explicit reference is made to such factors, for a judicial officer is presumed to know the law. Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998.

65 I have to say, however, that in the circumstances of the present case the absence of any direct reference to the time spent in custody, and especially in circumstances where the appellant was said to have had a difficult time, leaves an impression that this aspect of the matter was overlooked. I consider that this is another aspect in regard to which the exercise of the sentencing officer's discretion miscarried in that there was a failure to give appropriate weight to a significant factor. I consider that the appeal should be allowed on this ground also.

66 The next ground raises the question of whether the learned Magistrate erred in treating a failure to observe a bail condition as an aggravating factor when imposing sentence.

67 The sentencing principles reveal that the object of the sentencing provisions is to arrive at an appropriate sentence for the particular offence. The object of the process is not to censure the wrongdoer for supposed flaws in his character or conduct, but to impose a just penalty for a particular offence. It follows that, in general terms, a sentence that is considered to be proportionate to the offence ought not to be increased in order to mark the court's disapproval of subsequent conduct. In other words, a sentence imposed should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. R v Wroblewski (1999) 105 A Crim R 129 at 130 and 134.

68 In the present case, however, I do not consider that the learned Magistrate treated the failure to observe a bail condition as an aggravating factor. It is true that the Magistrate referred in passing the appellant's failure to abide by his bail conditions, and his failure to take the opportunity to address his drug problem. But these observations seem to have been articulated in the course of reviewing his antecedents and his prospects of rehabilitation. It follows that I am not satisfied that the appeal should be allowed on this ground.

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69 The next question raised by the grounds of appeal is whether the learned Magistrate erred in imposing a sentence that was, in all of the circumstances, manifestly excessive.

70 Counsel for the appellant submitted that the learned Magistrate had failed to place any or any proper weight upon the appellant's record and the fact that the appellant's last conviction for a property offence was on 18 May 1990, when the appellant was sentenced to a community service order. The learned Magistrate, arguably, failed to give sufficient weight to the relatively low level of seriousness attending the circumstances and commission of each offence and failed to give any or any proper weight to the totality principle. The submission was that an error may be inferred if the sentence is plainly unreasonable or unjust.

71 Counsel for the respondent reviewed the maximum penalties allowable upon a summary conviction for the offences in question and submitted that the offences were serious, especially having regard to the value of the property involved in the receiving offence. Further, the offence of driving whilst disqualified is a very serious offence and evidences a disregard for the normal rules of society. Where the offences are the second or third offences of this type, the decided cases suggest that it will be difficult to dispose of the matter otherwise than by a term of imprisonment. Police v Cadd (1997) 69 SASR 150; O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 per McKechnie J.

72 I have already noted that a sentencing officer is not necessarily obliged to advert to every factor bearing upon the sentence imposed. However, in the present case where the sentencing officer was in the process of imposing sentences of imprisonment for multiple offences, one would naturally expect to find in the transcript of the sentencing remarks an indication that some weight had been given to the totality principle before an aggregate term was arrived at. There is no such indication in the circumstances of the present case. As I have already noted, in the absence of a clear singling out in the sentencing remarks of the way in which the aggregate term was arrived at one cannot be confident that the totality principle was applied. It was only when the warrant of commitment was prepared and signed by the sentencing officer that an assumption could be made as to what the aggregate term was intended to be, namely, 14 months. Further, it is not clear what weight, if any, was given to the various pleas of guilty as a mitigating factor. This sequence of events suggests that in the exercise of the sentencing discretion, the learned Magistrate did not give proper weight to all of the relevant

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considerations and that the sentence imposed was excessive. Accordingly, I consider that the appeal should be allowed on this ground also.

73 The next question is whether, in relation to each sentence imposed with the exception of the sentence for the offence of resisting a member of the police force, the learned Magistrate erred in law by imposing a sentence without being sufficiently advised as to the circumstances of the commission of the offence.

74 Section 6(2) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account the circumstances of the commission of the offence. A court is generally astute to ensure that it has been given reliable information. R v Gallagher (1991) 23 NSWLR 220.

75 Counsel for the respondent in the present case conceded that the police prosecutor did not read to the learned Magistrate the statement of material facts in relation to the following charges, namely, charge RO2177/01 as to the receiving stolen property and charge RO2577/01 as to the driving of a motor vehicle without being the holder of an appropriate licence. Counsel contended, however, that the learned Magistrate was advised of the appellant's version of events in relation to the receiving charge in the oral pre-sentence report on 25 May 2001 and was aware of the central facts as set out in those complaints. Counsel recognised that it was unclear as to whether the learned Magistrate was sufficiently informed of the circumstances of the fraud offences. I was reminded, however, that, when the appellant was asked if there was anything he wished to tell the court, he did not put forward any additional details regarding his version of the events underlying the charges.

76 It appears from the materials before me that the learned Magistrate received the prosecution summary of facts in relation to the resist arrest charge and no other charge. I have already noted that the affidavits received on the hearing of the appeal provide further information as to the circumstances in which the receiving and fraud offences were committed and of the events leading up to the driving without a licence offence.

77 The sentencing principles mentioned earlier establish that the object of the sentencing process is not to censure the wrongdoer for supposed flaws in his character or conduct, but to impose a just penalty for a particular offence. This obviously requires (being a precept reflect in s 6(2) of the Sentencing Act) that careful consideration be given to the

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facts of the matter. It is for that reason that the court is generally vigilant to obtain an admission in response to the statement comprising the material facts. Accordingly, in my view, in circumstances where the appellant has not been asked to admit to a prosecution summary of facts, and where, in any event, it seems that there was no clear and comprehensive summary before the court, this amounts to an error in the exercise of the sentence discretion because it must follow that the court has not given proper weight to the relevant considerations.

78 I will allow the appeal on this ground also.

79 The next question is whether the learned Magistrate erred in law by failing to consider properly or at all whether to suspend the sentence of imprisonment imposed upon the appellant.

80 The particulars in support of this ground assert that the learned Magistrate erred in failing to reconsider matters relevant to the circumstances of the offence and matters personal to the appellant. Further, the learned Magistrate erred in failing to consider at all whether or not to suspend the sentence of imprisonment that was imposed.

81 I have already reviewed the legal principles bearing upon this issue. It is apparent that in determining whether a term of imprisonment should be suspended in the manner allowed for by s 39 of the Sentencing Act all of the considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.

82 In Cross v Cook [2001] WASCA 242, being a case in which suspended imprisonment was allowed to an offender with a fourth conviction for driving without a valid licence, Miller J concluded that after the High Court decision in Dinsdale (supra) it was not correct to say that a suspended sentence of imprisonment would only be allowed in exceptional circumstances. Such a sentence was always open and only if it is decided that it is not appropriate to impose such a sentence may a court impose a term of immediate imprisonment.

83 Counsel for the respondent contended that it was open to the learned Magistrate not to suspend the appellant's term of imprisonment in that his record contained prior driving offences, a stealing offence and two false name and address charges. The serious nature of the offences, in particular the $9,000 value of the stolen goods, and the fact that this was the appellant's second conviction of driving without an appropriate licence had to be given proper weight. It was also material for the learned

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Magistrate to have taken account of the appellant's previous unwillingness to keep appointments with his CATS counsellor and participate in rehabilitation programme regarding the drug problem.

84 Counsel for the respondent submitted further that a sentence of imprisonment should not be suspended unless there was some reasonable prospect that suspension would have a sufficiently salutary effect upon the offender to deter further offending and encourage reform.

85 I note from the transcript that the learned Magistrate made no explicit reference to suspending the sentence of imprisonment imposed upon the appellant. Further, and in any event, the transcript does not suggest that the learned Magistrate followed the two-stage process prescribed by Dinsdale whereby, having first determined whether imprisonment is appropriate, the court must then address the question of whether the proposed term should be suspended, and in doing so revisit or give double value to the factors bearing upon the imposition of a sentence of imprisonment such as the seriousness of the offence and the various aggravating and mitigating factors.

86 Against this background, I conclude that the Magistrate erred in the exercise of her discretion on this ground also.

87 I have previously acknowledged that an appellate court must not be too ready to assume that a sentencing Magistrate, with an obligation to attend to the business of the Court of Petty Sessions expeditiously, has fallen into error simply because no express reference has been made to certain sentencing principles or options, or because aggravating and mitigating factors bearing upon the exercise of a sentencing discretion have not been mentioned. In the circumstances of this case, however, the lack of particularity in the sentencing remarks in various respects leaves an impression that a number of significant factors were overlooked, with the result that the learned Magistrate erred in the exercise of the sentencing discretion. The shortcomings are reflected in the grounds of appeal I have previously allowed. To my mind, when the various grounds of objection that I have allowed are considered in combination, it follows that the sentences imposed by the Court of Petty Sessions must be quashed and the case remitted to the Court of Petty Sessions for a rehearing. The same result would follow from my allowance of the various discrete grounds of appeal that I have identified in earlier discussion, and especially the failure to give proper consideration to eligibility for parole.

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88 In summary, then, I will quash the orders made by the learned Magistrate on 20 June 2001. The matter will be remitted to the Court of Petty Sessions for rehearing pursuant to s 199(1)(d) of the Justices Act 1902. My expectation is that a statement of material facts in respect of each offence will be presented to the court on that occasion and an opportunity afforded to the appellant to present a comprehensive plea in mitigation. I will hear from the parties as to whether any further orders or directions are required.