Hanley v The Director of Public Prosecutions
[2025] WASC 66
•6 MARCH 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HANLEY -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 66
CORAM: TOTTLE J
HEARD: 24 FEBRUARY 2025
DELIVERED : 6 MARCH 2025
FILE NO/S: SJA 1003 of 2025
BETWEEN: JEROME MATTHEW RAENER HANLEY
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1003 of 2025
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE CRAWFORD
File Number : PE 51983/2024; PE 51982/2024; PE 51981/2024; PE 51980/2024; PE 51979/2024; PE 41334/2023; PE 41333/2023; PE 41332/2023; PE 41331/2023; PE 41330/2023; PE 41329/2023; PE 41328/2023; JO 8243/2023
Catchwords:
Criminal Law - Appeal against sentence - Error of fact Magistrate not aware of time spent in custody - Sentencing discretion miscarried - Appellant resentenced - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Firearms Act 1973 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time for application for leave to appeal granted
Leave to appeal on ground 2 granted
Appeal allowed on ground 2
Appellant resentenced on charges PE 41328/2023 and PE 41333/2023
Category: B
Representation:
Counsel:
| Appellant | : | Mr D T Shackles |
| Respondent | : | Ms N Sinton |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| Respondent | : | The Director of Public Prosecutions (WA) |
Cases referred to in decision:
Dahl v Arnold [2020] WASC 224
Fernandes v The State of Western Australia [2009] WASCA 227
Hishmeh v The State of Western Australia [2025] WASCA 14
LJH v State of Western Australia [2016] WASCA 155
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TOTTLE J:
Introduction
The appellant applies for leave to appeal against the imposition of a total effective term of immediate imprisonment of 14 months in respect of 13 offences. In grounds of appeal amended shortly before the hearing, the appellant contended, among other matters, the learned magistrate erred by failing to take account of the time spent by the appellant in custody before being sentenced. There were two elements to the error. First, there was a miscalculation of the number of days the appellant spent on remand in respect of the offences for which he was sentenced. The magistrate sentenced on the basis the appellant had been on remand for 172 days when in fact the figure was 179 days. Second, the magistrate was not informed, and thus did not take account of, the fact the appellant had spent 58 days on remand in relation to other offences between March and May 2024. Leave to appeal is granted in relation to this error, the appeal will be allowed, and the appellant resentenced.
The table below contains summaries of the offences, the maximum penalty in respect of those offences and sentences imposed by the magistrate. The terms of imprisonment were to be served concurrently, unless otherwise stated.
No.
Date of Offence
Offence and date of pleas
Facts
Maximum sentence
Sentencing disposition
1
17/8/23
PE/41328/23 Possess firearm without a licence
Plea: Guilty; 23/10/24
Winchester rifle found in a guitar case within stolen vehicle; See [5]
5 years imprisonment; (s 19(1)(c) Firearms Act 1973 (WA))
6 months imprisonment
(cumulative)
2
PE/41329/23 Possess ammunition without a licence
Plea: Guilty; 23/10/24
44 rounds of 9mm ammunition found in guitar case within stolen vehicle; See [5]
5 years imprisonment; (s 19(1)(c) Firearms Act 1973 (WA))
2 months imprisonment
3
PE/41330/23 Possess ammunition without a licence
Plea: Guilty; 23/10/24
44 rounds of 9mm ammunition found in a guitar case within stolen vehicle; See [5]
5 years imprisonment; (s 19(1)(c) Firearms Act 1973 (WA))
1 month imprisonment
4
PE/41331/23 Possess unlawfully obtained firearm
Plea: Guilty; 23/10/24
Winchester lever action rifle found in guitar case within stolen vehicle; See [5]
7 years imprisonment; (s 417(1) Criminal Code)
2 months imprisonment
5
PE/41332/23 Stole motor vehicle valued over $1,000
Plea: Guilty; 23/10/24
The appellant stole a motor vehicle from a used car dealer after completing a test drive; See [5]
7 years imprisonment; (s 378, 436(3) Criminal Code)
5 months imprisonment
6
PE/41333/23 Possess methylamphetamine
Plea: Guilty; 23/10/24Small clip seal bag containing 11 grams of methylamphetamine found in appellant's pocket; See [5]
2 years imprisonment and a fine of $2,000 (s 6(2) Misuse of Drugs Act 1981 (WA))
8 months imprisonment
(cumulative)
7
PE/41334/23 No authority to drive
Plea: Guilty; 23/10/24Drove while licence suspended; see [5]
18 months imprisonment and a fine of 80 penalty units PU (s 49(3)(c) Road Traffic Act 1974 (WA))
6 months imprisonment and licence disqualified for 9 months
(cumulative)
8
JO/8243/23
Stealing
Plea: Guilty; 23/10/24Stole a large crystal rock worth $5000; see [3]
7 years imprisonment; (s 378, 426(2) Criminal Code)
2 months imprisonment
9
27/3/24
PE/51982/24 No authority to drive
Plea: Guilty; 23/10/24
Drove while licence suspended
18 months imprisonment and a fine of 80 PU (s 49(3)(c) Road Traffic Act 1974 (WA))
6 months imprisonment; and licence disqualified for 9 months.
(cumulative)
10
PE/51979/24 Careless driving
Plea: Guilty; 23/10/24
Drove without care and collided with the rear of a Mitsubishi Mirage; see [9]
A fine of 30 PU (s 62 Road Traffic Act 1974 (WA))
A fine of $1,500 (global)
11
PE/51980/24 Driver involved in accident and failed to report incident
Plea: Guilty; 23/10/24
See [9]
A fine of 8PU (s 56(4) Road Traffic Act 1974(WA))
12
PE/51981/24 Driver involved in accident and failed to stop.
Plea: Guilty; 23/10/24
See [9]
A fine of 30 PU (s 55(1) Road Traffic Act 1974 (WA))
13
18/9/24
PE/51983/24 Failed to give information to police officer
Plea: Guilty; 23/10/24Appellant failed to identify the driver of a vehicle captured speeding during a time he was responsible for that vehicle; see [11]
A fine of 24 PU (s 34(2) Road Traffic (Administration) Act2008 (WA))
14
Total effective sentence
(14 months) 1 year & 2 months; 9 month driving suspension and a fine of $1,500 (global)
Factual Background
At approximately 2:25 pm on 17 August 2023 the appellant entered a Crystal and Stone store in Wangara and stole a large pink crystal valued at $5,000. The appellant was recorded on CCTV and later identified by police.[1]
[1] Statement of Material Facts (Western Australia Police), 1 September 2023.
At approximately 3:15 pm the appellant attended Twin Star Autos, a used car dealership. The appellant took a white Mazda for a test drive with an employee of the dealership. At the end of the test drive the employee got out of the vehicle and the appellant drove off. The appellant's drivers licence was suspended at the time.[2]
[2] Statement of Material Facts (Western Australia Police), 17 August 2023.
Later that night the appellant was involved in a disturbance which was attended by police. The appellant was arrested and subjected to a search nearby the stolen Mazda. During the search the police found the keys to the stolen vehicle and 11 grams of methylamphetamine. This search led to a search of the stolen vehicle. Inside a guitar case located in the vehicle, the police found a Winchester lever action rifle and two different types of ammunition, namely, 44 rounds of 9 mm ammunition and four rounds of 308 mm ammunition. The police identified the firearm by its serial number and were able to confirm that it had been stolen by unknown offenders in February 2022. The appellant did not have a firearms licence and has never held one. He was not authorised to be in possession of the firearm or the two types of ammunition. On 18 August 2023 the appellant was charged with the following eight offences relating to the events of 17 August 2023:
(a)possession of a firearm without a firearms licence or permit, contrary to s 19(1)(c) Firearms Act 1973 (WA);
(b)possession of ammunition without a firearms licence or permit, contrary to s 19(1)(c) Firearms Act;
(c)possession of ammunition without a firearms licence or permit, contrary to s 19(1)(c) Firearms Act;
(d)possession of a firearm that was reasonably suspected to be stolen or unlawfully obtained, contrary to s 417(1) Criminal Code (WA);
(e)stealing a motor vehicle the value of which exceeded $1 000, contrary to s 378 Criminal Code;
(f)possession of a prohibited drug, contrary to s 6(2) Misuse of Drugs Act 1981 (WA);
(g)driving a motor vehicle without authority to drive, contrary to s 49(1)(a) Road Traffic Act 1974 (WA);
(h)possession of a firearm and a prohibited drug without authority to be in possession of the drug or plant contrary to s 19(1ab)(a)(i) Firearms Act.
The appellant was taken to the Joondalup Police station where he declined to take part in an audio‑visual record of interview, but in relation to the stealing a motor vehicle offence he said 'I didn't steal it, I didn't take the keys I was just taking it for a test drive'.[3]
[3] Statement of Material Facts (Western Australia Police), 17 August 2023.
The appellant was refused bail and taken to the Perth Watch House.
On 1 September 2023 the appellant was charged with stealing the pink crystal contrary to s 378 Criminal Code.
On 10 September 2024 the Director of Public Prosecutions (DPP) discontinued the charge relating to the possession of a firearm and a prohibited drug contrary to s 19(1ab)(a)(i) Firearms Act.
VRO offence
On 31 December 2023 the appellant breached a violence restraining order.
March 2024 offences
On 27 March 2024 the appellant was involved in a traffic incident whilst driving a Holden Astra. The appellant's driving licence was suspended at the time. On this occasion the vehicle driven by the appellant collided into the back of a vehicle (a Mitsubishi Mirage) which was stationary in a left lane at a red traffic light. The collision caused extensive damage to the Mitsubishi which was written off as a result. The driver of the Mitsubishi approached the appellant to obtain his details at which point the appellant reversed his Holden Astra, drove into the right lane and yelled to the driver of the Mitsubishi 'my leg cramped' before driving off at speed. The driver of the Mitsubishi contacted the police to report the incident.[4]
[4] Statement of Material Facts (Western Australia Police), 18 September 2024.
On 18 September 2024 the appellant was charged with the following four offences relating to the March 2023 traffic incident:
(a)driving a motor vehicle without due care and attention contrary to s 62 Road Traffic Act;
(b)driving a motor vehicle, involved in an incident in which property was damaged and failed to report the incident to the officer in charge of a police station, contrary to s 56(4) of the Road Traffic Act;
(c)driving a vehicle which was involved in an incident in which property was damaged and failed to stop immediately after the occurrence of the incident and for as long as was necessary to comply with the requirements of s 55(4) of the Road Traffic Act, contrary to s 55(1) of the Road Traffic Act; and
(d)driving a motor vehicle whilst not being a person authorised by the Road Traffic (Authorisation to Drive) Act 2008 since drivers licence was suspended contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act.
The appellant was taken into custody on 18 September 2024 and participated in an audio‑visual record of interview. In the interview the appellant stated he was suffering from psychosis at the relevant time but did not elaborate any further.[5] He was subsequently arrested and charged.
Criminal damage and VRO offences
[5] Statement of Material Facts (Western Australia Police), 18 September 2024.
On 28 March 2024 the appellant was charged with criminal damage and was remanded in custody in relation to that charge.
On 2 April 2024 the appellant committed a further breach of a violence restraining order while in custody.
On 23 May 2024 the appellant was sentenced in respect of the criminal damage and violence restraining order offences. He was fined in respect of both offences. He had been in custody in respect of those offences for 58 days.
September 2024 offences
On 15 September 2024 a Mazda 3B sedan was caught by a speed camera travelling at 196 kilometres per hour in a 70 kilometre per hour travel zone. The appellant was nominated as the person responsible for the vehicle at the relevant time having borrowed it from a friend.[6]
[6] Statement of Material Facts (Western Australia Police), 18 September 2024.
On 18 September 2024 the appellant was interviewed at Mirrabooka Police Station and did not supply information regarding the identity of the driver when required to do so. The appellant was arrested and charged with failing to give information requested by a police officer which may have led to the identity of the driver involved in an offence, contrary to s 34(2) Road Traffic (Administration) Act 2008.
In the interview the appellant initially advised police that the vehicle had been taken by another person, later he stated that he was being chased. When asked about who was chasing him, the appellant stated he was suffering from psychosis and was not sure if he was being chased or if 'it was just his mind'[7].
Negotiations
[7] Statement of Material Facts (Western Australia Police), 18 September 2024.
There were negotiations between the appellant and the State regarding the 2023 offences and in particular the offence related to the possession of methylamphetamine and the firearm. The record of court proceedings endorsed on the prosecution notice in respect of the August 2023 offending include a note made on 26 March 2024 to the effect that negotiations had been unsuccessful.
On 10 September 2024 the State withdrew the s 19(1ab)(a)(i) Firearms Act indictable offence.
The appellant pleaded guilty to all 13 charges in the Magistrates Court on 23 October 2024 and his sentencing hearing was adjourned to 28 October 2024.
Time in custody
Between the date of the commission of the 2023 offences and the date of the appellant's sentencing hearing, the appellant spent 237 days in custody comprising the following four 'periods':
(a)On 17 August 2023 the appellant spent one night in police custody and was denied bail for the '2023 offences' the following day. He was remanded in custody on 18 August 2023 and released on bail on 18 December 2023, totalling 124 days.
(b)On 9 March 2024 the appellant was remanded in custody until 22 March 2024, totalling 14 days.
(c)On 27 March 2024 the appellant spent one night in police custody, the following day he was remanded in custody in relation to the offence of criminal damage. He spent 58 days on remand before being sentenced on 23 May 2024.
(d)On 18 September 2024 the appellant was remanded in custody in relation to the '2024 offences'. The time spent in custody between 18 September 2024 and his sentencing hearing on 28 October 2024 totalled 41 days.
Magistrates Court Sentencing Hearing
At the commencement of the appellant's sentencing hearing on 28 October 2024, there was an exchange between counsel and the magistrate regarding the number of days the appellant had spent in custody. Her Honour was informed the appellant had spent 172 days in custody comprising the following three periods:
(a)120 days from 17 August 2023 until 15 December 2023.
(b)39 days from 19 September 2024 until 28 October 2024.
(c)13 days from 9 March 2024 until 22 March 2024.
In the magistrate's sentencing remarks, her Honour categorised the offences into 'two groups of charges', the first group were those from 17 August 2023, the second group related to the offences committed in March and September of 2024.[8]
[8] ts 28 October 2024, page 12.
Her Honour considered that the offences committed on 17 August 2023 were in the 'more serious category' and that two of the 17 August 2023 offences were 'particularly serious', namely, possession of the Winchester lever‑action firearm and possession of 11 grams of methylamphetamine.[9] Although the appellant was charged with simple possession of methylamphetamine, her Honour considered that the volume of the drug was 'significant for sentencing purposes'.[10]
[9] ts 28 October 2024, pages 12 ‑ 13.
[10] ts 28 October 2024, page 13.
Her Honour then turned to the driving under suspension offences and reminded herself of the sentencing principles to be applied:[11]
HER HONOUR: … now, the other offence for which the court has to consider a term of immediate imprisonment is the driving under suspension, and I say that because of the court history here.
There have been previous convictions for driving under suspension and, and when determining sentence for each of the matters I've particularly drawn attention to, it's necessary to give particular attention to specific and general deterrence and, of course, totality, and I proceeded in a two-step manner, that is, considering the appropriate penalty for each of these offences in isolation, and then gone back and reviewed them so as to give effect to the principle of totality.
[11] ts 28 October 2024, page 13.
Her Honour considered the discounts to be applied to take account of the appellants guilty pleas. In relation to the 2023 offences, her Honour said:[12]
With respect to the first group of offences, that was some 10 months later or thereabouts. Now, he has pleaded guilty, so he deserves some credit for that, and I've applied a discount of approximately 10 per cent for those pleas.
[12] ts 28 October 2024, page 13.
In relation to the 2024 offences, her Honour said:[13]
The other groups of offences, second in time, so they were committed on 27 March 2024, again, pleas of guilty entered at an earlier point in time, shall we say, by comparison with the early group, and I've given effect to a discount for those pleas of the order of 15 per cent or thereabouts. Of course, that group of offences, save for the driving under suspension, can be dealt with by fine only.
[13] ts 28 October 2024, page 13.
In relation to a reduction in sentence to take account of the time the appellant had spent in custody, her Honour said:[14]
Now, the other significant matter that the court has to take into account in this case is the time already spent in custody, and that appears to have been approximately three tranches. Now, counsel identified each of those, and the number of days that that totalled was 172 days. This is not a case where one can simply backdate any term of imprisonment, so I've, in determining sentence for each matter and then when proceeding to consider all of them in totality, I've taken account of the accused having spent approximately 5.7 months or thereabouts in custody on remand.
[14] ts 28 October 2024, page 14.
Having 'given effect' to the factors above, her Honour formulated the penalties to be imposed for all 13 convictions. Her Honour began by imposing the following sentences:[15]
(a)for stealing a large crystal rock to the value of $5,000, two months made concurrent;
(b)for possession of the unlicensed firearm, six months cumulative;
(c)for possession of the two types of ammunition two months and one month made concurrent;
(d)for possession of the firearm that was reasonably suspected to be stolen or unlawfully obtained, two months made concurrent, noting the sentence already imposed for the possession of an unlicensed firearm;
(e)for stealing the motor vehicle, five months made concurrent;
(f)for the possession of methylamphetamine, eight months made cumulative;
(g)for the first conviction of driving under suspension, six months concurrent 'and the other driving under suspension', six months concurrent.
[15] ts 28 October 2024, page 14.
With respect to the two convictions for driving under suspension, her Honour also imposed 'disqualification for nine months each' made cumulative.
The total effective term of imprisonment was fourteen months, her Honour concluded:[16]
What I've done when determining sentence for each of these matters, I've given effect to the fact that you've spent almost six months in custody and applied an additional discount to the sentences imposed particularly for possession of the firearm and for the possession of the methylamphetamine. Right. So, for those reasons, the total effective term is one year and two months.
[16] ts 28 October 2024, page 14.
In relation to the 'fine only matters' her Honour imposed a global penalty of $1,500. The fine only matters comprised:
(a)driving without due care and attention;
(b)being the driver of a vehicle which was involved in an accident in which property was damaged and failed to report the incident;
(c)failing to stop immediately after the occurrence of a road traffic incident;
(d)Failing to give information to police when required.
Grounds of appeal
As amended the appellant's grounds of appeal were as follows:
1.The learned sentencing magistrate erred in law by failing to consider whether or not to suspend the terms of imprisonment after finding that terms of imprisonment were appropriate.
2.A miscarriage of justice occurred by reason that the learned sentencing magistrate was not informed of all of the time the appellant had spent in custody that could have been taken into account in sentencing.
3.The learned magistrate erred in law and fact with respect to apportioning the discounts in sentence pursuant to Sentencing Act 1995 (WA) s 9AA.
4.The learned sentencing magistrate erred in fact, or alternatively a miscarriage of justice occurred, in sentencing the appellant based on an incorrect number of prior convictions.
5.The total sentence of 14 months' immediate imprisonment infringed the first limb of the totality principle in that the aggregate sentence did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.
Leave to appeal
Appeals against decisions of courts of summary jurisdiction are governed by pt 2 of the Criminal Appeals Act 2004 (WA). The appellant requires leave to appeal in respect of each ground of appeal.[17] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[18] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[19] If leave to appeal is refused, the appeal is taken to be dismissed.[20]
[17] Criminal Appeals Act 2004 (WA) s 9(1).
[18] Criminal Appeals Act 2004 (WA) s 9(2).
[19] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[20] Criminal Appeals Act 2004 (WA) s 9(3).
The appellant required an extension of time within which to bring the application. The delay was satisfactorily explained and an extension was granted at the hearing on 24 February 2025.
The powers of the Supreme Court in relation to appeals against decisions of a summary jurisdiction are contained in s 14 of the Criminal Appeals Act which relevantly provides:
(1)In deciding an appeal, the Supreme Court may do one or more of the following —
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court —
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
...
(2)Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Time spent in custody (ground 2)
As explained in the introduction two errors were made in relation to the time spent by the appellant in custody before sentencing. First, the three periods of time the appellant had spent in custody and of which her Honour was aware was 179 days not 172 days, accordingly seven days were not accounted for. Second, her Honour was not aware that the appellant spent 58 days on remand between 27 March 2024 and 23 May 2024 in relation to the offence of criminal damage.
Relevantly, the first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally and the total effective sentences imposed in comparable cases.[21]
[21] Hishmeh v The State of Western Australia [2025] WASCA 14 [31].
The totality principle requires that a court, in deciding upon the appropriate sentence for an offence, take into account any sentence the offender is then serving for another offence. The principle has been applied by analogy, in some circumstances, where a sentence for a previous offence has been completed.[22]
[22] Hishmeh v The State of Western Australia [34] ‑ [36].
The errors are material, in the sense they were capable of affecting the sentence imposed,[23] in two respects. First, having chosen to exercise the discretion to take account of the time spent in custody, the miscalculation of time necessarily tainted the exercise of that discretion. Second, the time spent in custody in respect of the criminal damage offence was relevant to a consideration of the appellant's personal circumstances in the context of the first limb of the totality principle. This was so even though the appellant was ultimately sentenced to fines in respect of those offences and the periods on remand had come to an end by the time the appellant came to be sentenced. Leave to appeal in respect of ground two is granted and the ground is made out.
Section 9AA reduction (ground 3)
[23] Fernandes v The State of Western Australia [2009] WASCA 227 [10].
Although it is unnecessary to determine grounds 1, 3, 4 and 5 since this court is obliged to exercise the sentencing discretion afresh, I make the following brief observation regarding her Honours approach to the application of s 9AA of the Sentencing Act 1995 (WA).
Section 9AA of the Sentencing Act provides:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section –
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if –
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) –
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA contemplates a fixed and quantified reduction in sentence, not a range. It is not possible to apply a range or a discount of a stated order,[24] to do so would imply that a sentencing judge has erroneously stated a percentage reduction without, in fact, going through the process required by s 9AA.[25] In LJH v State of Western Australia, the Court of Appeal observed that such an error had occurred because the sentencing judge had applied a reduction in 'the order of 14/15%'.
[24] LJH v State of Western Australia [2016] WASCA 155 [118].
[25] LJH v State of Western Australia [118].
In the present case, her Honour applied a discount of 'approximately 10%' for the appellant's guilty pleas in relation to the 2023 offences and a discount 'in the order of 15% or thereabouts' for the guilty pleas in relation to the 2024 offences. The language used by her Honour is suggestive of an error of the nature made by the sentencing judge in the application of s 9AA in LJH.
Resentencing
The maximum penalties for the offences are set out in the table at [2].
The appellant's counsel did not contend the individual sentences imposed were manifestly excessive.
The 2023 offending involved the commission of a series of serious offences, a brazen shop theft of a valuable gem, stealing a motor vehicle, possession of a stolen and unlicensed firearm and possession of ammunition, possession of a significant quantity of methylamphetamine and driving while subject to a court ordered suspension. In relation to the quantity of methylamphetamine, it may be noted that in Dahl v Arnold,[26] Archer J described 2.69 g as a 'large quantity' for a simple offence of possession. The appellant had possession of 11 g.
[26] Dahl v Arnold [2020] WASC 224 [33].
Objectively, save for the further offence of driving while subject to a court ordered suspension, the 2024 offences were of a lesser order of seriousness but the offences were committed while the appellant was on bail and only five days after the appellant was released from his second period on remand in custody for the 2023 offences.
The appellant has an extensive record of offending. His past offending has resulted in fines, community‑based orders, suspended terms of imprisonment and terms of imprisonment to be served. His offending includes multiple breaches of: community‑based orders, violence restraining orders and bail conditions. With one exception all the appellant's offending has been dealt with in the Magistrates Court. Other particularly relevant aspects of the appellant's record include:
(a)convictions for the possession of methylamphetamine and MDMA in June 2013 for which fines were imposed, a conviction for possession of methylamphetamine in November 2014 for which a fine was imposed, a conviction in November 2014 for possession of MDMA for which the appellant was fined in the District Court, convictions for the possession of methylamphetamine and cannabis in April 2016 for which a community based order was imposed, and a conviction for the possession of dexamphetamine in September 2017 for which an intensive supervision order was imposed;
(b)convictions for the possession of a prohibited weapon in April 2016 for which a community-based order was imposed, conviction for possession of a controlled weapon in November 2016 for which a fine was imposed, a conviction for possession of an article with intent to cause fear for which an intensive supervision order was imposed, convictions for possession of a prohibited weapon in February 2020 for which fines were imposed, and convictions for being armed or pretending to be armed in May 2020 for which the appellant received terms of imprisonment of four months to be served concurrently with terms imposed for other offences; and
(c)the driving whilst suspended offences were the appellant's fourth convictions for sentencing purposes.
The appellant's criminal record is not a factor of aggravation but it highlights three matters. First, the appellant has demonstrated a persistent disregard for the law. Second, fines and community‑based orders have proved to be ineffective deterrents. Third, the appellant has a long-standing illicit drug use problem.
There are three matters that provide mitigation.
The first matter is the appellant's guilty pleas. The pleas in respect of the 2023 offending were not made at the first reasonable opportunity but at least part of the delay is explicable by the negotiations between the appellant and the prosecution. The prosecution case was very strong in relation to the 2023 offending but nevertheless the pleas were of utilitarian benefit. I would allow a reduction in sentence of 15% in respect of the guilty pleas for the 2023 offences.
The pleas in respect of the 2024 offending were made on the appellant's third appearance in respect of those charges that was five weeks after the appellant had been charged. If imposing a term of imprisonment, I would have allowed a reduction of 25% on account of the guilty pleas.
The second matter of mitigation is the time spent in custody prior to sentence. Like the magistrate I would reduce the term of imprisonment by the time spent in custody in respect of the offences for which the appellant was being sentenced, that is, 179 days (rather than the 172 days allowed by the magistrate). Separately, I take account of the 58 days the appellant spent on remand in respect of the criminal damage offence. This does not translate to a further reduction of 58 days in the sentence to be imposed but it is one of the several matters taken into account in the process of intuitive synthesis.
The third matter of mitigation is one not developed to any extent before the magistrate and concerns the appellant's personal circumstances and his mental health. The magistrate was told that the appellant was 34 years old. He is the second eldest of seven children. His father died in late 2023. His relationship with his mother has been problematic and it appears she had obtained the violence restraining order that he was found to have breached. By the time the appellant was sentenced by the magistrate his relationship with his mother had improved and they were on good terms. The appellant was single at the time of sentencing but it appears that he was in a relationship that had ended badly. The appellant had attempted to take his own life and sought help from mental health services. He had also resorted to methylamphetamine use to deal with the difficulties he was facing. The appellant's counsel told the magistrate the appellant had not been the subject of a formal diagnosis but that he was on a medication regime in custody. The appellant has a history of working as a scaffolder though before going into custody had periods of unemployment brought about by the difficulties he had encountered in his personal life and his drug use. At the appeal hearing the appellant's counsel informed the court that his instructions were to the effect he had been diagnosed with post‑traumatic stress disorder, an antisocial personality disorder, depression and anxiety and the medication he has been receiving in custody has had a stabilising effect on him.
There is no question that the appellant's offending was serious offending. By reference to the appellant's criminal record the 2023 offending marked a significant increase in the seriousness of his offending. The seriousness of the offending and the requirement for sentences that deter the appellant from further offending mean that terms of imprisonment are the only appropriate sentencing options for the 2023 offences.
For the purposes of resentencing and to ensure compliance with the first limb of the totality principle it is only necessary for me to set aside the sentences imposed by the magistrate in respect of the possession of methylamphetamine offence (PE 41333/23) and the possession of a firearm without a licence offence (PE 41328/23). I will not set aside or vary the sentences imposed in respect of the other offences.
In my judgment the appropriate sentence for the possession of methylamphetamine offence is 12 months' imprisonment and the appropriate sentence for possession of a firearm without a licence is eight months' imprisonment. I would reduce these head sentences by 15% in recognition of the appellant's guilty pleas. The sentence imposed for the possession of a firearm without a licence is to be served cumulatively with the sentence imposed for the possession of methylamphetamine. I would make a further reduction in recognition of the time spent by the appellant in custody while awaiting sentence on the criminal damage charge and the matters of mitigation referred to at [57]. The result is a sentence of 291 days in respect of the possession of methylamphetamine and a sentence of 189 days in respect of the possession of the firearm without a licence.
To take account of the 179 days spent by the appellant in custody, I would further reduce the sentence to be imposed in respect of the possession of methylamphetamine by 90 days and in respect of the sentence imposed for the possession of the unlicensed firearm I would reduce that sentence by 89 days. The arithmetic outcome of this process would be a sentence of 201 days imprisonment in respect of the possession of methylamphetamine and a sentence of 100 days imprisonment in respect of the possession of the firearm without a licence. Expressed conventionally and adjusting to produce sentences expressed in complete months, the sentences imposed will be 7 months imprisonment in respect of charge PE 41333/23 and 3 months imprisonment in respect of charge PE 41328/23.
Given the seriousness of the offending and the need for specific deterrence the terms of imprisonment must be served. I will make a parole eligibility order in relation to each offence.
The total effective sentence is a term of imprisonment to be served of 10 months.
Conclusion
I will make the following orders:
1.The appellant is granted an extension of time within which to appeal.
2.Leave to appeal is granted in respect of ground 2.
3.The appeal is allowed on ground 2.
4.The sentences imposed on 28 October 2024 for charges PE 41328/2023 and PE 41333/2023 are set aside.
5. The sentence imposed in respect of charge PE 41333/2023 is 7 months imprisonment commencing on 28 October 2024 with eligibility for parole.
5.The sentence imposed in respect of charge PE 41328/2023 is 3 months imprisonment commencing on 28 October 2024 with eligibility for parole.
7.The sentence imposed in respect of charge PE 41328/2023 is to be served cumulatively to charge PE 41333/2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
6 MARCH 2025
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