Gray v Hayter

[2017] WASC 140

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GRAY -v- HAYTER [2017] WASC 140

CORAM:   MCGRATH J

HEARD:   1 MAY 2017

DELIVERED          :   1 MAY 2017

FILE NO/S:   SJA 1024 of 2017

SJA 1030 of 2017

BETWEEN:   AARON BRADLEY GRAY

Appellant

AND

MARTIN DAVID HAYTER
Respondent

ON APPEAL FROM:

For File No              :  SJA 1024 of 2017

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :CHIEF MAGISTRATE S A HEATH

File No  :PE 7355 of 2015, PE 7356 of 2015

For File No              :  SJA 1030 of 2017

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G A BENN

File No  :PE 7355 of 2015, PE 7356 of 2015

Catchwords:

Criminal law - Intensive supervision order - Breach of intensive supervision order - No power for magistrate to cancel and impose new intensive supervision order - Invalid intensive supervision order - Leave to appeal granted - Appeal allowed - Orders granting intensive supervision order quashed

Criminal law - Breach of invalid intensive supervision order - Assault occasioning bodily harm - Unlawful damage to property - Imprisonment - Leave to appeal granted - Appeal allowed - Sentences following breach of invalid intensive supervision order quashed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 14
Criminal Code (WA), s 317(1), s 445
Magistrates Court Act 2004 (WA), s 36(4), s 36(6)
Sentencing Act 1995 (WA), s 69(4), s 128, s 129(3), s 131, s 133, s 135

Result:

SJA 1024 of 2017
Leave to appeal granted
Appeal allowed
Orders of Magistrate Benn quashed

SJA 1030 of 2017
Leave to appeal granted
Appeal allowed
Sentences imposed by Chief Magistrate Heath quashed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Mr B M Murray

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Gable v Nardini [2010] WASC 321

O'Connell v Welsh (2005) 151 A Crim R 526

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

MCGRATH J: 

(This judgement was delivered extemporaneously on 1 May 2017 and has been edited from the transcript.)

Introduction

1. The appellant seeks leave to appeal against conviction for breaching an intensive supervision order (ISO) contrary to s 131 of the Sentencing Act 1995 (WA). Upon conviction for breaching the ISO the appellant was resentenced in respect to the offences of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and unlawfully damaging property contrary to s 445 of the Criminal Code.

2. The appellant also seeks leave to appeal in respect to the terms of imprisonment imposed for these offences.

3. The appeals were filed out of time and, therefore, an extension is required.  An affidavit was affirmed by the appellant's counsel that explains the circumstances of the delay.  Whilst there was a delay in making the application and therefore the appellant giving instructions to the Legal Aid Commission, their legal representative has acted diligently upon receiving the instructions.  I have determined that leave should be granted for an extension of time to appeal in respect to both SJA 1024 of 2017 and SJA 1030 of 2017.

Magistrate Court proceedings

1. There are three separate Magistrate Court hearings that bear on this appeal.  Each proceeding was before a different magistrate.  I will outline each of the proceedings.

First hearing – first ISO imposed

1. On 28 April 2015, the appellant appeared before Magistrate Edwards to be sentenced in respect to one charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code and one charge of damage contrary to s 445 of the Criminal Code.  The facts upon which the appellant was sentenced are as follows:[1]

   The accused and the victim have been in a domestic relationship for the past five years.  They separated sometime in September 2014 and have been living apart.  Between 1.30 pm and 2.20 pm on 5 February the accused has gone to visit the home address in Wannanup.  There has been some discussion between the parties and this has escalated into an argument, where it is alleged he has been told to leave the area.

   He states the victim locked him out the back yard of the house and he has damaged the flyscreen door, causing an estimated damage of between $80 and $100.  Both parties went outside the front of unit and the accused has grabbed the victim by the hair and punched her several times to the face, causing swelling to the victim’s right eye and blood pouring from her nostrils.

   The victim has fallen to the ground and grazed her left elbow.  And the victim was taken to the Peel Health Campus by ambulance. He was arrested later.  They have two children together; one aged one, the other three, and the three year old was present during the incident. 

2. The magistrate imposed an ISO with a 12 month duration period with a condition that the appellant undertake domestic violence counselling with a supervision requirement.  That ISO commenced on 28 April 2015.

Second hearing - cancellation of the first ISO and new ISO

1. On 12 January 2016, the appellant appeared before Magistrate Benn to be sentenced for two offences of stealing contrary to s 371 of the Criminal Code.  The two offences involved stealing 57 litres of petrol and 49 litres respectively from two petrol stations.  The appellant pleaded guilty and the magistrate imposed fines of $100 and $60 respectively.

2. During the sentencing hearing of 12 January 2016, the magistrate referred to the ISO imposed by the first magistrate on 28 April 2015.[2]  It was accepted that the appellant had not reported for three months.  The appellant stated that he understood that a six month ISO was imposed and that it was completed resulting in him not reporting beyond October 2015.[3]  The appellant's belief was erroneous but the magistrate accepted that the appellant did report for a six month period ending in October 2015 which was consistent with that erroneous belief.

3. The magistrate stated that only one half of the ISO was completed.[4]  In fact, given that the ISO was imposed in April 2015 nearly eight months had been completed.  The magistrate then stated that the existing ISO was cancelled and that a new ISO was imposed being one of six months duration.[5] No reasons were given for the cancellation of the ISO and the imposition of a new ISO. There was no application by the Chief Executive Officer (Corrections) (CEO (Corrections)) before the magistrate to breach the appellant under s 131 of the Sentencing Act.  Further, the prosecutor did not make any application or submissions proposing that the magistrate should or was empowered to make the orders on the basis of the failure to report under the conditions of the ISO imposed by Magistrate Edwards.  Given that the two stealing offences did not have a term of imprisonment as the statutory penalty, the magistrate did not have power to summarily breach and resentence the appellant in respect to the ISO.  I will consider this issue further below when considering the grounds of appeal.  It is not possible, with certainty, to determine from the transcript of the proceedings the power purported to be relied upon by the magistrate to make that order.  The most likely power that the magistrate purported to rely upon to make that order was the failure to report under the conditions of the first ISO.

4. Given the order of the magistrate the appellant purported to enter into a new ISO which commenced on 12 January 2016 for a six month period ending on 11 July 2016.

Proceedings for breach of ISO

1. On 6 February 2017, the appellant came before the Chief Magistrate to be sentenced for a number of offences.  The offences and sentences imposed are summarised below:

Offence	Offence Date	Penalty Imposed
Breach of bail contrary to s 51 of the Bail Act 1982 (WA)	28 October 2016	$500 fine
Breach of bail contrary to s 51 of the Bail Act 1982 (WA)	13 January 2017	$500 fine
Damage contrary to s 445 of the Criminal Code	1 September 2016	$500 fine
False information to official contrary to s 170 of the Criminal Code	3 February 2017	$300 fine
Obstruct public officer contrary to s 172 of the Criminal Code	3 February 2017	$500 fine
Possess prohibited drug contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA)	20 November 2016	$300 fine
Possess prohibited drug contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA)	20 November 2016	$300 fine

1. In addition, before the Chief Magistrate were two charges on a prosecution notice dated 16 June 2016 alleging a breach of the ISO imposed by Magistrate Benn. The two charges were contrary to s 131 of the Sentencing Act.  The prosecution notice was in the following terms:

   1.Being an offender subject to a Community Order made by the Magistrates Court Midland on the 12^th day of January 2016 in respect of the offence of Assault Occasioning Bodily Harm breached the Intensive Supervision Order by failing to attend Psychological Counselling on the 11^th day of April 2016 as directed on the 7^th day of April 2016.

   2.Being an offender subject to a Community Order made by the Magistrates Court Midland on the 12^th day of January 2016 in respect of the offence of Damaging Property, breached the Intensive Supervision Order by failing to attend Psychological Counselling on the 11^th day of April 2016 as directed on the 7^th day of April 2016.

2. For completeness, I will outline the facts of the offending.  The following are the facts for the offences (excluding the breach offences):[6]

   At 11.05 pm on Friday 3 February 2016 the accused was located around the Nollamara Shopping Centre.  Police spoke to the accused and requested his name and date of birth.  The accused provided police with the name Harley Ashworth, 20 September '94.  After providing police with these details the accused immediately fled on foot from police through the shopping centre car park in a westerly direction in Nollamara.  The accused ran through a walk‑through alleyway onto Piedmont Street, Nollamara with one police officer following behind declaring himself and calling for the accused to stop.

   Police attended Piedmont Street in the police vehicle and located the accused running in a south‑easterly direction along Piedmont Street, Nollamara.  Police pulled the vehicle up next to the accused and again instructed him to stop running.  The accused turned away from police in a westerly direction onto Marion Stainton Park.  Police were able to catch up with the accused where the accused has thrown a small knife further into the park, which he had in his possession.  Police were able to get control of the accused and arrested him in the park without incident approximately 400 metres from the initial location.  Once the accused was under control, he stated his name was Aaron Gray and his date of birth.

   And 1 December 2016 the accused appeared at Midland Magistrates Court, entered into a bail undertaking on 13 January 2017.  He was going to appear.  The accused failed to appear at court and failed to appear as soon as practicable.  A warrant was issued.  And (indistinct) he was arrested on 3 February 2017. 'I knew I had a warrant' was his explanation, 'but I was trying to sort myself out'.

   On 2 September 2016 the accused was at the Armadale Magistrates Court and was further remanded on bail by the magistrate to appear at Armadale Court on 20 October 2016.  The accused failed to appear in court, a warrant was issued and the accused was arrested on 30 November 2016.  His explanation was, 'I honestly forgot'.

   And, further, 4.45 pm on 30 November 2016 the accused was observed riding a bicycle in Ellenbrook.  The accused was arrested for another matter and police searched the accused and located approximately three grams of cannabis inside (indistinct) bag.  There were three individual small clipseal bags.  And, further, police also located .8 grams of methamphetamines inside the same bag.

   And the unlawful damage.  11.25 am on Thursday 1 September 2016 the accused attended Centrelink on Gosnells.  The accused was using one of the phones located inside the Centrelink.  The accused became angry and slammed the phone down.  He stood up and struck the plastic sign that was hanging from the roof from two wires.  The sign fell from the roof and broke, hitting the ground, causing $200 in damage.  Due to the accused's behaviour in Centrelink, staff pressed the duress alarm.  The accused initially refused to leave, before eventually leaving the store.  The accused was arrested later by police.  His explanation was, 'I hit it, but I didn't mean to break it'.  There is a request for reparation for the $200, your Honour.   Those are the facts.

3. The facts were then presented in respect to the breach of the ISO as follows:[7]

   Mr Gray was placed on a six month intensive supervision order with supervision and program requirements.  The order has expired on the 11th of July 2016.  It is noted that the order was in progress following a breach by way of reoffending for a previous order dated the 28th of April 2015.  The offence is that Mr Gray failed to attend psychological counselling on the 11th of April, as directed on the 7th of April 2016. ·

   In regard to the supervision requirement, the first recorded contact with Mr Gray was on the 18th of January 2016 when he telephoned to advise that he had forgotten to report within 72 hours of the order imposition.  He was directed to report that afternoon at 4 pm, however, reported an hour earlier and then left without being seen by his officer.

   On the 5th of February an appointment letter for the 9th of February was hand‑delivered to his residence.  He attended this appointment as directed, which he acknowledged receiving.  When Mr Gray asked if he had received a previous warning letter for failing to report within 72 hours, he claimed to not have received it and admitted there was often confusion with his neighbour's address.  Mr Gray stressed that he did not want any staff from adult Community Corrections attending his house.  He also stated he would not comply with his order and hoped to receive a fine for his non‑compliance.

   On the 18th of February Mr Gray rescheduled an appointment to the 19th of February, as he was currently out of Perth.  Although Mr Gray attended further appointments, he was given some leeway with authorised absence, indicating that he had forgotten about two appointments.  Mr Gray failed to attend his last scheduled appointment on the 21st of April 2016 as directed on the 7th of April, and he (indistinct) made any further contact with the department.

   In regard to the program requirement Mr Gray refused to sign consent to release information to the service providers or to engage in programs.  As a result a referral to Communicare, the domestic violence program, was subsequently cancelled.  He was also referred to the departmental psychologist and was directed to attend on the 7th of April- sorry·- directed on the 7th of April to attend on the 11th of April.  However, he appears to have disengaged with this order and he was placed - removed from the waitlist.

4. In respect to the two breaches of the ISO by non‑compliance, the Chief Magistrate imposed a fine of $500 on each charge respectively.

5. The Chief Magistrate then resentenced the appellant regarding the two offences being the offences in respect to which the ISO was originally imposed.  His Honour imposed a 12 month term of imprisonment in respect to the assault occasioning bodily harm offence and a 6 month term of imprisonment in respect to the criminal damage offence.  The term of 6 months' imprisonment was ordered to be served concurrent with the 12 month term of imprisonment.[8] 

6. The Chief Magistrate's sentencing remarks in respect to the appellant was as follows:

   HIS HONOUR:  All right.  In relation to the breach of intensive supervision orders, I will impose a global fine of $200, costs of $169.10.  In relation to your new charges, you will be fined $500 for the damage, costs of $98.50 and a compensation order of $200 to Centrelink.  In relation to each of the breaches of bail, there's a fine of $500 with costs of $325 and in each case, you're ordered to forfeit $500 in accordance with your bail undertaking.

   In relation to the possession of the drug charges, each case, you will be fined $300 with a formal order for the destruction of the drug.  You will be fined $500 for the obstruction charge and $300 for giving a false name.  The difficulty is the charges for which you were placed on an intensive supervision order, given that the current order was imposed as a result of the previous breach of the intensive supervision order.

   ACCUSED:  That's correct.

   HIS HONOUR:  You have prior convictions for assault occasioning bodily harm in 2008 and 2010.

   ACCUSED:  Can I interrupt, briefly.

   HIS HONOUR:  You have failed to comply with the order and, therefore, the only sentence that's appropriate now is a term of immediate imprisonment.  You will be sentenced to 12 months' imprisonment for the assault occasioning bodily harm, six months' concurrent for the damage charge, and I will make you eligible for parole.  You will need to stand down in custody.

Appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[9]  An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[10]

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[11]  The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[12] Relevantly, in the context of this appeal the court may make any order under s 36(6) of the Magistrates Court Act2004 (WA). The court may grant relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari. [13]

3. The notice of appeal in respect to orders of Magistrate Benn (SJA 1030 of 2017) relies on one ground being:

   1.The learned sentencing magistrate erred in law cancelling the intensive supervision orders imposed on 28 April 2015 and resentencing the appellant to further intensive supervision orders when those matters were not properly before him.

4. The notice of appeal in respect to the sentence imposed by the Chief Magistrate (SJA 1024 of 2017) raises three grounds of appeal as follows:

   1.There was a miscarriage of justice in that the appellant, who was unrepresented, was not advised that he was at risk of a sentence of imprisonment nor given the opportunity to obtain representation or invited to deliver a plea of mitigation on his own behalf.

   2.The learned sentencing magistrate erred in law in failing to discount the sentences of imprisonment imposed to give credit for the appellant's pleas of guilty.

   3.The learned sentencing magistrate erred in law in failing to consider suspending the sentences of imprisonment imposed.

5. During the hearing of the appeal the appellant made application to amend the appeal notice in SJA 1024 of 2017 to appeal against the conviction for the two breach offences.[14]  I granted leave to the appellant to amend the appeal notice to rely upon the following ground of appeal (ground 4):[15]

   4.There was a miscarriage of justice in that the appellant pleaded guilty and thereby was convicted of two offences breaching an intensive supervision order contrary to s 131 of the Sentencing Act 1995 in circumstances where the intensive supervision order was invalid.

6. I will consider first ground 1 of SJA 1030 of 2017, which concerns the validity of the ISO imposed by Magistrate Benn on 12 January 2016 and ground 4 in SJA 1024 of 2017.

Ground 1 (SJA 1030 of 2017) and Ground 4 (SJA 1024 of 2017)

1. As outlined above, on 28 April 2015, Magistrate Edwards imposed an ISO for a 12 month period.  On 12 January 2016, Magistrate Benn purported to set the first ISO aside and impose a fresh ISO, in respect to the same two offences, being an ISO with a six month period of duration. 

2. On 12 January 2016, the prosecution did not make an application for the ISO to be set aside and for the appellant to be re-sentenced.  The transcript of the proceedings does not assist in determining the power that the magistrate purported to exercise.[16]  The magistrate, during discourse with the prosecutor, raised the question whether a spent conviction was an appropriate disposition.[17]  It was at that stage that the prosecutor informed the magistrate that the appellant was subject to an ISO.  The magistrate inquired of the prosecutor as to the most recent reporting of the appellant under the ISO.  The prosecutor confirmed that the appellant had not reported for three months. The appellant in reply confirmed that he understood that the ISO was for six months in duration.  At that point the magistrate informed the appellant that given that he had only done half the ISO he 'would cancel the existing order and place you on a new order for both matters for 6 months'.[18] 

3. As I have observed it is not possible to discern, with clarity, from the transcript, the power the magistrate was purporting to exercise.  It appears that the magistrate was relying upon the failure to report under the terms of the ISO. 

Statutory framework

1. The statutory power to cancel an ISO and resentence is provided by the provisions of the Sentencing Act.

2. Section 69(4) provides that:

   (4)An offender who -

   (a)commits an offence during the term of his or her ISO is liable to be dealt with under Division 3 of Part 18;

   (b)breaches his or her ISO is liable to be dealt with under Division 4 of Part 18.

3. Division 3 of pt 18 provides the statutory framework for dealing with an offender who re-offends while subject to a conditional release order or a community order. Section 128 relevantly provides:

   (1)If a court convicts a person of an offence (other than an offence under section 131(1)) the statutory penalty for which is or includes imprisonment and the offence was committed while the person was subject to a CRO or community order imposed in relation to another offence, then, even though there is no notice lodged under section 129, the court -

   …

   (b)if it is the Magistrates Court, may deal with the person under section 130 unless the CRO or community order was imposed –

   (i)by the Children’s Court or an indicatable offence; or

   (ii)by a superior court,

   in which case the court must commit the person to the court that imposed the order and that court may deal with the person under section 130.

4. Before Magistrate Benn the appellant pleaded guilty to two offences of stealing property with a value of $84.83 and $55.07 respectively.  The statutory penalty for the offence of stealing property worth less than $1,000 does not include imprisonment.[19] Accordingly, it was not open for Magistrate Benn to resentence the appellant under s 128 of the Sentencing Act.

5. In the event that the court convicts a person of an offence which does not have a statutory penalty which includes imprisonment, written notice alleging that the offending occurred whilst subject to a community order may be lodged. Section 129(3)(b) of the Sentencing Act requires that if the offender was subject to a community order, then the CEO (Corrections) must sign that order or that notice. 

6. In the present case, no notice was signed by the CEO (Corrections).  Accordingly, there were no proceedings lawfully commenced before the magistrate.  Given that the re-offending involved very minor stealing it would have been open to the CEO (Corrections) not to commence the proceedings.

7. The alternative path for the magistrate to resentence the appellant was if the breach action was commenced for a failure to comply with the conditions of the ISO under s 131 of the Sentencing Act. That section provides that a failure to comply with an intensive supervision order is an offence. The consequence of a conviction in the Magistrates Court is the imposition of a fine not more than $1,000 and the magistrate may make an order under s 133 of the Sentencing Act. Section 133(1)(b) of the Sentencing Act provides that if the community order is not in force, the magistrate may sentence the person for the offence for which the community order was imposed in any manner that the court could if it had just convicted the person of that offence. 

8. A prosecution under s 131 of the Sentencing Act may only be commenced in the case of an alleged breach of a community order by the CEO (Corrections).[20] There was no such determination by the CEO (Corrections) and therefore, no prosecution notice was before the magistrate. If the magistrate was purporting to exercise his power to convict and sentence the appellant for an offence under s 131 of the Sentencing Act then those orders were made in error in that the magistrate did not have power to breach the appellant summarily.

9. The consequence is that the purported determination by Magistrate Benn to set aside the first ISO was made without power.  Further, the purported determination of the magistrate to impose the second ISO was made without power.  Therefore, the first ISO was not set aside as purported.  The orders of Magistrate Benn, having been made without power, must be quashed.  Therefore, ground 1 in SJA 1030 of 2017 has been made out and the appeal is allowed. 

10. The further consequence is that, although before the Chief Magistrate there was a prosecution notice authorised by the CEO (Corrections) alleging a breach of the second ISO, that second ISO was, at all times, invalid.   Accordingly, the convictions for the two breach offences should be quashed. Ground 4 in SJA 1024 of 2017 has been made out and the appeal is allowed.

Other grounds

1. Given that the grounds concerning the ISO have been allowed it would not ordinarily be necessary to consider the other grounds relating to the sentences imposed by the Chief Magistrate.  However, given that the sentences that were imposed were subject to submissions by the appellant and respondent it is appropriate for me to briefly indicate why I would have concluded that the Chief Magistrate did err in imposing the sentences and that I would have allowed the sentence appeal and imposed a different sentence in any event.

2. The appellant contends by ground 1 in SJA 1024 of 2017 that there was a miscarriage of justice for the reason that as an unrepresented appellant he was not advised that he was at risk of a sentence of imprisonment nor given the opportunity to obtain representation or be invited to deliver a plea in mitigation.  The respondent concedes this ground of appeal for the reason that the appellant was not given an opportunity to obtain legal representation or to make a plea in mitigation.  The respondent further concedes that the appellant was disadvantaged by the procedure that the magistrate adopted.  I consider that the respondent’s concession has been properly made.

3. Given the consequence of the imposition of a term of imprisonment it was necessary that the sentencing magistrate ensure that the appellant was apprised of his rights and specifically that he had the right to obtain legal representation, the seriousness of the charges and the penalty that may be imposed.[21]  None of this was done.  

4. The appellant contends by ground 2 in SJA 1024 of 2017 that the Chief Magistrate erred in law by failing to consider discounting the sentences of imprisonment imposed to give credit for the appellant’s plea of guilty. The respondent accepts that the Chief Magistrate failed to state that he had taken the guilty plea into account and that he failed to make any reduction of the head sentence as required by s 9AA(5) of the Sentencing Act.  Accordingly, the appellant concedes this ground of appeal.  I consider that this concession has been properly made.

5. In the circumstances, if I was required to resentence, I would set aside the sentence imposed and order that time served by the appellant be the appropriate sentence.  That would be an appropriate disposition given the early plea of guilty for the two breach offences and the fact that the appellant had met his obligations under the ISO for over six months.  At the point Magistrate Benn cancelled the first ISO, the appellant had completed eight months of the 12 month period without the CEO (Corrections) taking action which is understandable given that the appellant has largely met his obligations.  The extent to which the offender has met his obligations is a relevant factor to be considered.[22] 

6. The breach allegation relied upon in the prosecution notice was the failure to attend the psychological counselling on 11 April 2016 which occurred with only 17 days of the first ISO remaining.  The appellant did not diligently meet his obligations under the second ISO.  In explanation the appellant maintained that as a single parent he was unable to attend the meetings due to the inability to obtain child care assistance.  The appellant would have benefited from properly having a plea in mitigation put before the magistrate.  I consider that the period of time served being 3 months' imprisonment would be an appropriate disposition, if I had been required to resentence.  However, given my findings on the other two grounds, it is not necessary to resentence the appellant.

Conclusion

1. Accordingly, leave to appeal is granted and the appeal is allowed in SJA 1030 of 2017. The orders of Magistrate Benn cancelling the first ISO and imposing the new ISO in respect to the two offences are quashed. I do so pursuant to s 14(1)(f) of the Criminal Appeals Act which provides that orders may be made under s 36(6) the Magistrates Court Act.  The consequence is that the first ISO was not cancelled, and remained in effect as the recorded sentence.

2. Further, leave to appeal and the appeal is allowed in the conviction appeal in SJA 1024 of 2017. The convictions for the two breach offences (PE 7355 of 2015 and PE 7356 of 2015) contrary to s 131 of the Sentencing Act are quashed.  The Chief Magistrate had no power to deal with the breach offences given that they alleged a breach of the second ISO which was invalid.  The consequence is that the sentences imposed by the Chief Magistrate in respect to the two underlying offences, being the assault occasioning bodily harm and the criminal damage, are quashed.  Accordingly, the original sentence imposed in respect to the two offences by Magistrate Edwards, being the ISO, continued in effect.

[1] ts 2 (28 April 2015 - Magistrate Edwards).

[2] ts 3 (12 January 2016 - Magistrate Benn).

[3] ts 4 (12 January 2016 - Magistrate Benn).

[4] ts 5 (12 January 2016 - Magistrate Benn).

[5] ts 5 - 6 (12 January 2016 - Magistrate Benn).

[6] ts 2 ‑ 3 (6 February 2017 - Chief Magistrate Heath).

[7] ts 3 ‑ 4 (6 February 2017 - Chief Magistrate Heath).

[8] (Transcript dated 6 February 2017 - Sentencing Remarks - Chief Magistrate Heath).

[9] Criminal Appeals Act 2004 (WA) s 9(1).

[10] Criminal Appeals Act 2004 (WA) s 8.

[11] Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].

[12] Criminal Appeals Act 2004 (WA) s 14.

[13] Magistrates Court Act2004 (WA) s 36(4).

[14] ts 4 (1 May 2017 - Appeal Hearing).

[15] ts 4 (1 May 2014 - Appeal Hearing).

[16] (Transcript dated 12 January 2016 - Magistrate Benn)

[17] ts 3 (12 January 2016 - Magistrate Benn).

[18] ts 4 ‑ 5 (12 January 2016 - Magistrate Benn).

[19] O'Connell v Welsh (2005) 151 A Crim R 526.

[20] Sentencing Act 1995 (WA) s 131(2)(b).

[21] Gable v Nardini [2010] WASC 321 [53].

[22] Sentencing Act1995 (WA) s 135.