Lambert v The State of Western Australia - [2021] WASCA 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LAMBERT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 199
CORAM:   BUSS P
MAZZA JA
MCGRATH J

HEARD:   14 SEPTEMBER 2021
DELIVERED          :   30 NOVEMBER 2021
FILE NO/S:   CACR 189 of 2020
BETWEEN:   NATASHA LEE LAMBERT
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MACLEAN DCJ
File Number            :   IND 2571 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of four counts of stealing as a servant - Stolen amount totalled $1,157,555 - Pleas of guilty - Total effective sentence of 4 years 6 months' immediate imprisonment - Totality principle - Error by the sentencing judge in stating the period to be served before parole eligibility

Legislation:

Criminal Code (WA), s 378(7)
Sentencing Act 1995 (WA), s 34(2), s 93, s 94

Result:

Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Allie v The State of Western Australia [2016] WASCA 6
Collins v The State of Western Australia [2007] WASCA 108
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Gaskell v The State of Western Australia [2018] WASCA 8
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Giglia v The State of Western Australia [2010] WASCA 9
Heaney v The State of Western Australia [No 2] [2013] WASCA 238; (2013) 95 ATR 690
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
McNab v The State of Western Australia [2010] WASCA 66
McNamara v The State of Western Australia [2010] WASCA 193
Moore v The State of Western Australia [2019] WASCA 35
Petkov v The State of Western Australia [2019] WASCA 171
Pflug v The State of Western Australia [2018] WASCA 65; (2018) 272 A Crim R 376
Reynolds v The State of Western Australia [2010] WASCA 60
Roffey v The State of Western Australia [2007] WASCA 246
Ruich v The State of Western Australia [2006] WASCA 241
The State of Western Australia v Bianco [2007] WASCA 197
The State of Western Australia v Chapman [2012] WASCA 203
Wilkie v The State of Western Australia [2005] WASCA 156
Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123

JUDGMENT OF THE COURT:

The appellant has applied for an extension of time within which to appeal and leave to appeal against sentence.
The appellant was charged on indictment with four counts of stealing as a servant, contrary to s 378(7) of the Criminal Code (WA) (the Code).
At all material times, the appellant was a servant of FM Building and Mining Services Pty Ltd (FMBM).
Counts 1 and 2 related to the period between 30 June 2017 and 1 July 2018. Counts 3 and 4 related to the period between 30 June 2018 and 30 July 2019.
Count 1 alleged that the appellant stole the sum of $66,755.69 in money, which came into her possession on account of her employer (FMBM) and being the amount of a general deficiency. Count 2 alleged that the appellant stole the sum of $472,871.86 in money, which came into her possession on account of her employer (FMBM) and being the amount of a general deficiency. Count 3 alleged that the appellant stole the sum of $131,254.23 in money, which came into her possession on account of her employer (FMBM) and being the amount of a general deficiency. Count 4 alleged that the appellant stole the sum of $486,673.68 in money, which came into her possession on account of her employer (FMBM) and being the amount of a general deficiency. The total amount stolen was $1,157,555.46.
The appellant was convicted on her pleas of guilty of each of the charged offences.
The maximum penalty for the offence created by s 378(7) of the Code is 10 years' imprisonment.
On 27 March 2020, MacLean DCJ sentenced the appellant to 18 months' immediate imprisonment on count 1; 3 years' immediate imprisonment on count 2; 3 years' immediate imprisonment on count 3; and 3 years' immediate imprisonment on count 4. His Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 2 and that the sentences for counts 3 and 4 be served concurrently with each other and concurrently with the sentence for count 2. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. The total effective sentence was backdated to 6 September 2019 to take account of time the appellant had spent in custody in relation to the offences. A parole eligibility order was made.
The last date for the appellant to appeal against sentence was 17 April 2020. She did not file her appeal notice until 23 December 2020. The appellant has filed an affidavit sworn by her on 22 October 2020 in support of her application for an extension of time. On 19 March 2021, Buss P referred the application to the hearing of the appeal.
The appellant relies upon three grounds of appeal. Ground 1 alleges that the primary judge erred 'by failing to allow sufficient weight to mitigating factors personal to the appellant'. Ground 2 alleges that his Honour erred 'by failing to impose a sentence in [accordance with] broadly comparable cases'. Ground 3 alleges that his Honour erred 'with regards to the Sentencing Act 1995'. On 19 March 2021, Buss P referred the application for leave to appeal to the hearing of the appeal.
In our opinion, none of the grounds of appeal has merit. In the circumstances, it would be pointless to grant an extension of time within which to appeal. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending are, in summary, as follows.
Between July 2016 and July 2019 the appellant worked for FMBM. She was employed as a bookkeeper. The appellant was responsible for accounts payable to suppliers and for FMBM's employee payroll, leave and superannuation entitlements.
The appellant used two different methods to steal from FMBM.
The first method involved the appellant deliberately overpaying her own wages and making false payments of wages in the name of her husband who had previously been employed by FMBM. Counts 1 and 3 involve the use of this method.
The second method was more elaborate. The appellant was responsible for paying people and entities who supplied goods or services to FMBM. When a legitimate invoice was received, the appellant would enter the invoice in FMBM's accounting system for payment. However, instead of paying the supplier, the appellant arranged for an amount greater than that legitimately invoiced by the supplier to be paid into her own bank accounts. The appellant would then send the legitimate amount to the supplier from her own bank accounts and retain the difference between the inflated amount and the legitimate amount. Counts 2 and 4 involve the use of this method.
Each count alleged a single offence of stealing by way of a general deficiency in accordance with sch 1, div 2, cl 8(3) of the Criminal Procedure Act 2004 (WA). The offending in relation to all of the counts comprised in total more than 300 discrete transactions.
The sentencing judge was of the view that the offences fell 'towards the high end of the range of seriousness for offences of stealing as a servant' (ts 3). His Honour said that there was a 'degree of sophisticated planning that was required in order for the offences to have actually been committed' (ts 10).

The appellant's personal circumstances and the mitigating factors

The appellant was aged 44 years at the time of sentencing. The appellant and her husband were in a poor financial position. They had no equity in their home and significant other debts. The money stolen by the appellant was gambled and lost at casinos in Perth and Melbourne.
The appellant has not made any reparation to FMBM and there is no prospect of any reparation.
The information before the sentencing judge included a psychological report dated 31 January 2020 from Ms Cinzia Zuin and a pre-sentence report dated 4 February 2020.
Ms Zuin's report states:
(a)The appellant readily acknowledged her offending behaviour. She expressed shame and remorse for her actions. The appellant never felt any sense of entitlement to the money. She always knew that her actions were wrong. However, she claimed to have intended to return the money 'when she won [at the casinos]'.
(b)Psychological and emotional factors which were highly relevant to the appellant developing a gambling addiction included low self-esteem, poor self‑worth and a feeling of discontentment and unfulfillment in her marriage. Gambling was a form of escape from her problems. The casinos fed the appellant's need for attention and being liked.
(c)The appellant has significant psychological issues involving depression, anxiety, self-esteem and self-worth. She requires psychological counselling and programs that focus on self‑development. The appellant has commenced counselling through Centrecare with Gamblers Anonymous in a bid to overcome her gambling addiction.
(d)Although the appellant remains unemployed, her risk of reoffending is low. However, should she gain employment in a position with financial responsibility there is a risk that she could reoffend given her vulnerability to gambling.
It is apparent from the history given by the appellant to Ms Zuin that the appellant's gambling addiction began well before she commenced stealing from FMBM.
The author of the pre-sentence report said that the appellant had 'moderate' needs arising from poor mental health, lack of consequential thinking and a dysfunctional relationship with her husband. The appellant presented with a diminished sense of self-worth and expressed considerable shame and self‑loathing. The author assessed that the appellant was at a 'low-moderate risk' of reoffending.
The sentencing judge said that the appellant's mental health issues were relevant in that they explained and 'to a degree' mitigated the offending (ts 5). His Honour added that the offending reflected 'a series of very poor decisions, and those poor decisions are to some degree mitigated by way of the failure to think clearly, and that failure to think clearly arises by way of your depressive personality structure, as … evidenced [by] … the psychological report' (ts 5). His Honour considered that there was a connection between the appellant's depression, her failure to think clearly and her decision to steal from FMBM to fund her gambling addiction (ts 5).
His Honour accepted that since the appellant's offending had been revealed she had taken steps to address her mental health problems.
The sentencing judge treated the appellant, for sentencing purposes, as a person of previous good character. The appellant's only prior conviction was in 2007 for driving an unlicenced motor vehicle. His Honour proceeded on the basis that, for sentencing purposes, the appellant was a first offender. His Honour said that the appellant's previous good character was demonstrated by written references which his Honour had received from defence counsel.
His Honour found that the appellant was remorseful and had insight into her offending. His Honour considered that the appellant had excellent prospects of rehabilitation.
The appellant entered pleas of guilty at the first reasonable opportunity. The sentencing judge recognised the pleas of guilty by discounting the head sentence he would otherwise have imposed for each offence by 25%.

Grounds 1 and 2 of the appeal

Ground 1, as drafted, asserts that the sentencing judge erred by failing to allow 'sufficient weight to mitigating factors personal to the appellant'. The ground is misconceived. A ground of appeal which alleges that a judge made a weighting error, in the course of making a discretionary judgment, can only be established if there was a failure to exercise the discretion conferred on the judge. See Gelmi v The State of Western Australia.[1] In the present case, no such failure by his Honour is or could reasonably be alleged.
[1] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81].
Ground 2, as drafted, asserts that his Honour erred 'by failing to impose a sentence in [accordance with] broadly comparable cases'. The imposition by a sentencing judge of a sentence in accordance with broadly comparable cases is an aspect, but only one aspect, of proper sentencing practice.
It appears, however, from the appellant's written and oral submissions that the substance of the appellant's complaint on appeal is that the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle. A complaint of that character is broader than an allegation that the sentencing judge failed to impose a sentence in accordance with broadly comparable cases.
We will therefore consider grounds 1 and 2 by reference to whether the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle. That consideration of the total effective sentence will necessarily include an evaluation of the mitigating factors personal to the appellant and the sentencing pattern that is apparent from broadly comparable cases.
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 (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[2] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[3] Gaskell v The State of Western Australia.[4]
[2] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[3] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[4] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[5]
[5] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
As we have mentioned, the maximum penalty for the offence of stealing as a servant, contrary to s 378(7) of the Code, is 10 years' imprisonment.
In Dimanopoulos v The State of Western Australia,[6] McLure P (Buss JA agreeing) said that the offence of stealing as a servant is serious in that it involves the abuse of a position of trust. Consequently, significant weight is ordinarily accorded to general deterrence with a related reduction in the weight ordinarily given to personal circumstances and antecedents. The appropriate penalty is ordinarily, as a matter of fact, a term of imprisonment to be served immediately, especially where the total amount stolen is substantial and involves multiple offences.
[6] Dimanopoulos v The State of Western Australia [2011] WASCA 62 [19].
However, the sentence to be imposed in a particular case ultimately depends on its individual facts and circumstances, after having regard to the maximum penalty. Previous decisions in relation to stealing as a servant may provide only limited assistance in some cases because of the very wide variety of circumstances in which offences of this kind are committed. See Reynolds v The State of Western Australia.[7] It is important, nevertheless, in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.
[7] Reynolds v The State of Western Australia [2010] WASCA 60 [10] (McLure P; Owen & Newnes JJA agreeing).
We have examined numerous cases with at least some features comparable to the appellant's offending including Hladin v The State of Western Australia;[8] Wilkie v The State of Western Australia;[9] Collins v The State of Western Australia;[10] The State of Western Australia v Bianco;[11] Reynolds; McNamara v The State of Western Australia;[12] Dimanopoulos; Zande v The State of Western Australia;[13] The State of Western Australia v Chapman;[14] Heaney v The State of Western Australia [No 2];[15] Allie v The State of Western Australia;[16] Pflug v The State of Western Australia[17] and Petkov v The State of Western Australia.[18]
[8] Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176.
[9] Wilkie v The State of Western Australia [2005] WASCA 156.
[10] Collins v The State of Western Australia [2007] WASCA 108.
[11] The State of Western Australia v Bianco [2007] WASCA 197.
[12] McNamara v The State of Western Australia [2010] WASCA 193.
[13] Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123.
[14] The State of Western Australia v Chapman [2012] WASCA 203.
[15] Heaney v The State of Western Australia [No 2] [2013] WASCA 238; (2013) 95 ATR 690.
[16] Allie v The State of Western Australia [2016] WASCA 6.
[17] Pflug v The State of Western Australia [2018] WASCA 65; (2018) 272 A Crim R 376.
[18] Petkov v The State of Western Australia [2019] WASCA 171.
In general, a gambling addiction does not, of itself, reduce an offender's moral culpability, especially where the offending is committed over an extended period. Cases where a gambling addiction, of itself, has significance as a mitigating factor are 'uncommon, unusual and exceptional'. See McNab v The State of Western Australia.[19]
[19] McNab v The State of Western Australia [2010] WASCA 66 [10] (McLure P; Owen JA & Jenkins J agreeing).
In the present case, the appellant relied, in particular, on the decisions in Wilkie, Bianco and Petkov in support of her submission that, having regard to sentencing standards, the total effective sentence imposed on her was, in essence, unreasonable or plainly unjust.[20]
[20] The appellant also referred to a case by the name of 'McGovack v The State of Western Australia'. She did not provide a citation for the case. We have been unable to identify the case in any database. Counsel for the State informed the court that a search of the records held by the Office of the Director of Public Prosecutions (WA) did not reveal an offender with that surname.
In Wilkie, the appellant was convicted, on his fast track pleas of guilty, of 102 counts of stealing as a servant. The offending occurred over a period of about 5 years 6 months. The appellant stole the money while he was the manager in charge of Cockburn Shipping Services which was an operating division of CSBP. He was subject to only limited supervision. His position carried a high degree of trust and recognition. When the appellant was asked by his employer to explain a number of irregular transactions, he denied any involvement in any irregular transactions and failed to disclose the existence of an unauthorised bank account which he had used to facilitate the offending. CSBP then engaged a forensic accountant, at considerable expense, to collect evidence. The evidence collected by CSBP indicated that the appellant had misappropriated a total of $1,659,311.20. After bringing to account money recouped from the unauthorised bank account and after adding interest to the amount stolen, CSBP's ultimate loss was $1,537,054.47. The only explanation for the offending was that the appellant was embittered towards CSBP because he had not received an expected promotion. He did not have a drug, alcohol or gambling problem. The appellant had traded heavily on the stock market. The primary judge imposed a sentence of 5 years' immediate imprisonment. The mitigating factors were the appellant's fast track pleas of guilty, his remorse, his prior good character and some cooperation. The appellant's appeal to this court was dismissed. Miller AJA (Wheeler and Pullin JJA agreeing) said that the sentence of 5 years' immediate imprisonment was 'fully justified' and 'in no way could [the sentence] be said to be beyond the range of sentences available' to the primary judge [34].

In our opinion, the sentencing disposition in Wilkie was lenient. That is apparent from the observation of Miller AJA to which we have referred and also from the sentencing pattern revealed by more recent decisions of this court. Wilkie is of limited assistance in evaluating whether the total effective sentence imposed on the appellant in the present case was unreasonable or plainly unjust.
In Bianco, the respondent was convicted, on his pleas of guilty, of 297 counts of stealing as a servant. The offending occurred over a period of about 6 years 8 months. The respondent stole the money while he was the company accountant of his employer. The total amount stolen was $924,937.16. The explanation for the offending was that the respondent was a gambler at a casino. The respondent was able to use his knowledge of his employer's accounting systems to hide unauthorised transfers of money. His employer was a small company. The respondent attempted to influence a junior member of staff not to report him when she discovered his wrongdoing. The primary judge imposed a sentence of 2 years 6 months' immediate imprisonment. The State appealed against sentence. By the time the appeal was heard it was apparent that the respondent would pay a total of $336,000 by way of restitution. This court allowed the State's appeal and resentenced the respondent to 3 years 6 months' immediate imprisonment.
The sentence imposed by this court in Bianco is not a relevant comparator. As we have mentioned, Bianco involved a State appeal. The appeal was decided before the abolition of the double jeopardy principle applicable to State appeals. As Owen JA observed in Bianco, '[w]ere it not for the fact that this was a State appeal and for the otherwise good antecedents of the respondent, the substituted sentence could have been higher' [2].
In Petkov, the appellant was convicted, on his plea of guilty, of one count which alleged that between 1 July 2016 and 14 February 2018 the appellant, being a servant of Westpac Banking Corporation, stole a total of $3,674,495.92. The primary judge sentenced the appellant to 5 years 6 months' immediate imprisonment. When he committed the offending the appellant was the bank manager of a Westpac branch. The appellant actively manipulated Westpac's systems to conceal his theft. He involved staff members of the branch in his offending. None of the stolen money was recovered. Prior to the offending, the appellant had been in a relationship for about a year in which his partner was emotionally and physically abusive towards him. As a result, the appellant sought psychological treatment in relation to his leaving this relationship and was diagnosed with post‑traumatic stress disorder. At the time of his offending, the appellant had a significant gambling addiction and was an alcoholic. The appellant was aged between 35 and 37 years at the time of the offending. His gambling began when he was aged 21. After being charged with the offence, the appellant sought psychiatric assistance. He spent four weeks as an inpatient at the Marian Centre, where he was diagnosed with bipolar affective disorder. At the time of sentencing, the appellant was in remission and was taking prescribed antipsychotic and mood stabilising medications. There were a number of mitigating factors in addition to the appellant's plea of guilty for which he received a 25% discount. In particular, the appellant cooperated with the investigating authorities. He admitted his offending and endeavoured to assist Westpac to remedy the defects in its procedures which had facilitated the theft. The appellant was genuinely remorseful. He had attempted to rehabilitate himself since his arrest. The appellant's undiagnosed mental illness (bipolar affective disorder) had a 'direct impact' on his offending. The appellant was at a low risk of reoffending if he continued to be treated for bipolar affective disorder. The appellant had a minor and unrelated criminal record. The primary judge treated the appellant as of prior good character. The appellant's appeal against sentence was dismissed. This court was not persuaded that the sentence imposed by the primary judge was manifestly excessive.
It is true that the total amount stolen in Petkov was substantially greater than the total amount stolen in the present case. That difference was reflected in the higher total effective sentence imposed on the appellant in Petkov. However, the mitigating factors available to the appellant in Petkov were, in combination, slightly greater than those available to the appellant in the present case. Quinlan CJ, Buss P and Mitchell JA noted in Petkov that the primary judge had made findings as to the connection between the appellant's bipolar affective disorder, his gambling addiction and his offending as follows [26]:
His Honour found that the appellant's gambling addiction was due to his undiagnosed and untreated bipolar affective disorder, and his being in a manic phase of that disorder (ts 31). To fund his gambling, the appellant started stealing from Westpac. This occurred shortly after the breakdown of the abusive relationship. His Honour also found that the appellant's 'mental illness … had a direct impact on [his] offending behaviour' (ts 34).

In any event, the decisions in Wilkie, Bianco and Petkov do not in themselves establish a relevant sentencing pattern. We do not accept that, having regard to sentencing standards (including the decisions in Wilkie, Bianco and Petkov), it was not reasonably open to the sentencing judge in the present case to impose on the appellant a total effective sentence of 4 years 6 months' immediate imprisonment.
In the present case, the objective facts and circumstances of the appellant's overall offending were, no doubt, very serious. There were numerous thefts over a period of about two years. The offending comprised more than 300 discrete transactions. The offending involved a degree of sophistication and planning. No restitution has been made.
There were, of course, a number of mitigating factors. The appellant entered pleas of guilty at the first reasonable opportunity. The sentencing judge found that there was a link between the appellant's depression, her failure to think clearly and her decision to steal the money for the purpose of funding her gambling addiction. The appellant was remorseful. However, Ms Zuin noted that while the appellant 'impressed as genuinely ashamed and remorseful', that emotional state was also 'partly driven by the consequences to herself'. His Honour accepted that the appellant was of prior good character.
In our opinion, after taking into account:
(a)the maximum penalty for the offences;
(b)the very serious nature of the offending;
(c)the objective facts and circumstances of the offending;
(d)the vulnerability of the appellant's employer in respect of the offending;
(e)the sentencing pattern apparent from previous sentencing decisions of this court concerning the offence of stealing as a servant;
(f)the mitigating factors referred to by his Honour; and
(g)the appellant's personal circumstances and all other relevant sentencing factors,
the total effective sentence of 4 years 6 months' immediate imprisonment was not unreasonable or plainly unjust.
Error by the sentencing judge in the exercise of his discretion cannot be inferred from the sentencing outcome.
Grounds 1 and 2 are without merit.

Ground 3 of the appeal

Ground 3, as drafted, asserts that the sentencing judge erred 'with regards to the Sentencing Act'.
After imposing the total effective sentence of 4 years 6 months' immediate imprisonment, his Honour stated:
You'll be eligible for parole, which means halfway through the four and a half year term, which on my maths is 54 months total term, 27 months, you'll be eligible for parole. So whether you're released at that point will be a decision for the Parole Board, but that's when you'll be eligible for parole (ts 12).
His Honour's statement as to the time the appellant would have to serve in custody before becoming eligible to be considered for release on parole was wrong. The appellant would not become eligible for parole upon serving 2 years 3 months in custody. Rather, the appellant would not become eligible for parole until she had served 2 years 6 months in custody. See s 93 and s 94 of the Sentencing Act 1995 (WA).
However, the obligation imposed on a sentencing judge by s 34(2) of the Sentencing Act, where the sentencing judge imposes a fixed term on an offender, to state in open court the minimum period that the offender, as a result of the sentence and the operation of the Sentencing Act, will serve in custody in respect of the term, is procedural in character. The error by the sentencing judge in the present case did not invalidate the sentence. See Ruich v The State of Western Australia.[21] It is apparent, on a fair reading of his Honour's sentencing remarks as a whole, that his Honour's error related to the calculation of the minimum term to be served. The error did not relate to the length of the total effective sentence that his Honour had decided to impose. No miscarriage of justice has occurred. In any event, we are satisfied that, in the circumstances, no different sentence should have been imposed.
[21] Ruich v The State of Western Australia [2006] WASCA 241 [63] ‑ [70] (Roberts-Smith JA; McLure JA & Buss JA relevantly agreeing)
Ground 3 is without merit.

Conclusion

None of the grounds of appeal had a reasonable prospect of success. The application for an extension of time within which to appeal should be dismissed. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
30 NOVEMBER 2021