Law v Woolfe
[2019] WASC 193
•6 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LAW -v- WOOLFE [2019] WASC 193
CORAM: DERRICK J
HEARD: 5 JUNE 2019
DELIVERED : 5 JUNE 2019
PUBLISHED : 6 JUNE 2019
FILE NO/S: SJA 1063 of 2019
BETWEEN: MITCHELL KENNETH LAW
Appellant
AND
LUKE WOOLFE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E C A DE VRIES
File Number : PE 60887/2018 - PE 60895/2018
Catchwords:
Plea of guilty to offence by unrepresented accused – Plea of guilty rendered accused liable to be sentenced for offences for which he had been placed on a community based order – Accused sentenced to terms of immediate imprisonment for offences for which he had been placed on community based order - Failure by magistrate to inform accused that his plea of guilty had rendered him liable to be sentenced for offences for which he had been placed on community based order – Failure by magistrate to inform accused of his right to obtain legal advice and representation or of his right to seek a reasonable adjournment to obtain legal advice and representation – Failure by magistrate to require prosecutor to read facts of offence to which accused had pleaded guilty – Failure by magistrate to give accused opportunity to dispute or comment upon facts of offence to which he had pleaded guilty - Failure by magistrate to require prosecutor to read facts of offences for which accused had been sentenced to community based order so as to give accused opportunity to comment upon facts - Failure by magistrate to give accused opportunity to dispute or comment upon oral report delivered by representative of Adult Community Corrections
Failure by magistrate to take into account time spent in custody by accused
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Sentencing Act 1995 (WA)
Result:
Application for an extension of time granted
Application for leave to appeal allowed
Appeal allowed
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 decision(s):
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Gable v Nardini [2010] WASC 321; (2010) 56 MVR 551
Goodwin v The State of Western Australia [2017] WASCA 184
MJS v The State of Western Australia [2011] WASCA 112
Narkle v Hamilton [2008] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Saylor v Shephard [2010] WASC 94
DERRICK J:
(This judgment was delivered extemporaneously and has been edited from the transcript)
Introduction
On 1 April 2019 the appellant was sentenced in the Magistrates Court to a total of 7 months imprisonment for eight offences of possessing property that was reasonably suspected to be stolen or otherwise unlawfully obtained contrary to s 417(1) of the Criminal Code (WA) (Code). The appellant now applies for an extension of time within which to appeal and for leave to appeal against the individual sentences of imprisonment imposed and the total sentence imposed for the eight offences.[1] The appellant's grounds of appeal as pleaded are as follows:[2]
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 in mitigation on his own behalf.
2.There was a miscarriage of justice in that the learned sentencing Magistrate was not made aware of and so did not take into account 7 days the appellant spent in custody for [the] offences from 24 November 2018 to 30 November 2018.
[1] The applications are made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
[2] Under s 8(1)(b) of the CAA an appeal may be made under div 2 pt 2 of the CAA on the ground there has been a miscarriage of justice.
On 13 May 2019 Strk AJ ordered that the appellant's applications for an extension of time within which to appeal and for leave to appeal were to be heard together with the appeal. On the same date her Honour also made an urgent appeal order in relation to the appeal.
The respondent concedes both grounds of the appellant's appeal.
For the reasons that follow I am satisifed that the application for an extension of time within which to appeal should be granted, that the application for leave to appeal should be allowed and that the appeal should be allowed.
The application for an extension of time
The last day for the appellant to appeal against the sentences of imprisonment imposed on him was 29 April 2019.[3] The appellant filed his appeal notice on 7 May 2019, that is, eight days late.
[3] CAA, s 10(3) and s 10(4).
The appellant's solicitor (who also appeared as counsel on the appeal) has affirmed an affidavit dated 7 May 2019 in support of the appellant's application for an extension of time. In her affidavit the appellant's solicitor affirms the following:
1.On 4 April 2019 the appellant applied for legal aid for consideration of the merits of an appeal;
2.On 8 April 2019 legal aid was granted and her office requested the transcript of the appellant's sentencing on that same day;
3.She received the transcript of the appellant's sentencing towards the end of April 2019 while she was on leave. Upon her return from leave she reviewed the transcript and made enquiries as to the appellant's time in custody in relation to the matters the subject of the appeal; and
4.On 6 May 2019 she spoke to the appellant on the telephone and was instructed to commence an appeal.
The respondent consents to the application for an extension of time.
As is apparent from the appellant's solicitor's affidavit, the appellant made his application for legal aid well within the time within which the appeal was required to be commenced. Further, and as is also apparent from the appellant's solicitor's affidavit, the delay in commencing the appeal is largely, albeit not solely, attributable to the need to obtain the transcript of the appellant's sentencing hearing. By r 65(1)(f) of the Criminal Procedure Rules 2005 (WA) it was necessary for the appellant, in order to apply for an extension of time within which to appeal, to file with his appeal notice the transcript of his sentencing hearing.
Ultimately the question is whether it is in the interests of justice to grant an extension of time. There may be cases where an extension of time is not granted even where there is merit in a ground of appeal.[4]
[4] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The delay in filing the appeal notice is not particularly lengthy. Further, the delay is, in my view, adequately explained. In these circumstances I am satisfied that it is in the interests of justice to grant the requested extension. I therefore grant the extension of time within which to appeal.
Leave to appeal
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[5] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[6] If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[7]
[5] CAA, s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CAA, s 9(3).
The sentencing hearing
On 1 April 2019 the appellant appeared before Magistrate De Vries on a charge of possessing 0.85 g of methylamphetamine. The appellant was unrepresented.
At the beginning of the hearing the magistrate asked the appellant how he was pleading to the possession of methylamphetamine charge.[8] The appellant pleaded guilty to the charge.[9]
[8] ts 2, 1 April 2019.
[9] ts 2, 1 April 2019.
The appellant committed the possession of methylamphetamine offence on 20 February 2019 while he was subject to a community‑based order (CBO) imposed on him on 11 January 2019 for one offence of possession of methylamphetamine, one offence of possession of a controlled prescription drug, one offence of possession of drug paraphernalia, one offence of possession of a thing with intent to apply graffiti and nine offences of possession of property that was reasonably suspected to be stolen or unlawfully obtained.
After the appellant entered his guilty plea to the possession of methylamphetamine charge the magistrate turned his attention to dealing with the appellant for breaching the CBO. The magistrate asked the appellant how he thought he was going on the CBO.[10] There was then a very brief exchange between the magistrate and the appellant during which the appellant stated that he had 'come back clean' and the magistrate responded, 'That's surprising, seeing you've been caught with drugs again'.[11] Following this exchange the magistrate stood the matter down so that he could be provided with an oral report from a representative of the Adult Community Corrections (ACC) in relation to the appellant's performance on the CBO.[12]
[10] ts 2, 1 April 2019.
[11] ts 2, 1 April 2019.
[12] ts 2 ‑ 3, 1 April 2019.
Sometime later on the same day the appellant's matter was recalled. The magistrate received a brief oral and very unfavourable report from an ACC representative in relation to the appellant's performance on the CBO.[13] In the course of providing the report the ACC representative informed the magistrate that the appellant had clearly indicated that he would rather go back to prison and serve his time. After hearing the report the magistrate said to the representative, 'Well, it's pointless for him being on a community‑based order, isn't it?'[14] The representative responded, 'That's correct, your Honour'.[15]
[13] ts 3, 1 April 2019.
[14] ts 3, 1 April 2019.
[15] ts 3, 1 April 2019.
The magistrate asked the ACC representative if she had a statement of the material facts for the offences for which the appellant had been placed on the CBO.[16] The representative said that she did, although it is not clear from the transcript of the proceedings if she actually provided the statement of material facts to the magistrate.[17] The magistrate asked the representative if she was requesting the court to summarily breach the appellant.[18] The representative confirmed that she was.[19]
[16] ts 4, 1 April 2019.
[17] ts 4, 1 April 2019.
[18] ts 4, 1 April 2019.
[19] ts 4, 1 April 2019.
Having concluded his discussion with the ACC representative the magistrate proceeded to deliver his sentencing remarks. In the course of delivering his remarks the magistrate stated that he was cancelling the CBO and was re‑sentencing the appellant for the offences for which he had been placed on the CBO.[20] His Honour then proceeded to sentence the appellant for a number of the offences for which he had been placed on the CBO as follows: for the offence of possessing methylamphetamine, a fine of $1,000; for the offence of possessing a controlled prescription drug, a fine of $400; for the offence of possessing drug paraphernalia, a fine of $250; for the offence of possessing a thing with intent to apply graffiti, a fine of $500; and for one of the offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained, specifically the offence which involved possessing a laptop cover, a fine of $300.[21] Having imposed these sentences, the magistrate next sentenced the appellant for the possession of methylamphetamine charge to which the appellant had pleaded guilty at the outset of the hearing. The magistrate imposed a fine of $400 for this offence.[22]
[20] ts 5, 1 April 2019.
[21] ts 5, 1 April 2019. The charge of possessing property that was reasonably suspected to have been stolen or otherwise unlawfully obtained in respect of which the magistrate imposed a fine of $300 was charge PE 60893/2018 which by its terms alleged possession not of a laptop cover but of a 'laptop computer carry bag'.
[22] ts 5, 1 April 2019.
The magistrate next turned his attention to the eight remaining offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained for which the appellant had been placed on the CBO. His Honour referred to the fact that the appellant had indicated that he did not intend to stop using methylamphetamine and that he would rather go to prison than complete the CBO. His Honour stated that in his view it was pointless for him to order that the appellant continue with the CBO bearing in mind the appellant's attitude to the order.
At this point the appellant interrupted the magistrate and asked if he could say something. In response to this request the magistrate said, 'Not at this stage. Thank you'.[23] His Honour then said the following:[24]
You were sentenced to terms of imprisonment back on 21 March of last year for breaching a violence restraining order, breaching protective bail conditions and a burglary on 11 December of 2017. You had been on a suspended imprisonment order and you breached that order and you were sentenced to a term of imprisonment of six months and one day.
And importantly on that date - that is 11 December 2017 - you were also sentenced to numerous counts of imprisonment to run concurrently with the six months and one day for possessing stolen or unlawfully obtained property and it seems to me that now that you have been given the opportunity of doing a community‑based order and not at all complying with that order, it seems to me that the only option available to me is in fact a term of imprisonment. Now, you wanted to say something?
[23] ts 6, 1 April 2019.
[24] ts 6, 1 April 2019.
In response to the magistrate's invitation the appellant stated to the magistrate, in substance, that he had been trying to work, that he did not want to 'get off meth' because he liked taking it, and that he could do an order without community service or a suspended sentence.[25]
[25] ts 6 ‑ 7, 1 April 2019.
Following the statements by the appellant there was a further exchange between the magistrate and the appellant during which the magistrate in effect expressed the view that it was pointless placing the appellant on another order and that imprisonment was the only option available to him, and the appellant in effect asserted that prison was not going to help him stop using methylamphetamine.[26] His Honour then completed his sentencing remarks by saying the following:[27]
So for possessing the laptop computer, taking into account all of the matters personal to you, there's very little that be said [sic] by way of mitigation but you did plead guilty to it originally. In my view the appropriate sentence, taking into account a discount for a plea of guilty, is a term of imprisonment seven months imprisonment. In relation to each of the others, the term would be three months imprisonment, to run concurrently with the seven months. As I've indicated, I don't believe it's appropriate [that] I make an order that the term be suspended in light of your attitude … And therefore, the sentence in relation to those matters is one of seven months imprisonment. I will make you eligible for parole.[28]
Section 133 of the Sentencing Act
[26] ts 7 ‑ 8, 1 April 2019.
[27] ts 8, 1 April 2019.
[28] The charge for which the magistrate sentenced the appellant to 7 months imprisonment was PE 60895/2018.
A court's power to deal with a person who breaches a community order, which term includes a CBO,[29] is set out in s 133 of the Sentencing Act 1995 (WA). Section 133 provides:
[29] Sentencing Act 1995 (WA), s 4.
(1)A court that may make an order under this section in respect of a person who is or was subject to a CRO or community order may -
(a)if the CRO or community order is then in force, do one of the following:
(i)confirm the CRO or community order;
(ii)amend the CRO or community order;
(iii)cancel the CRO or community order and sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence;
or
(b)if the CRO or community order is not then in force, sentence the person for the offence for which the CRO or community order was imposed in any manner the court could if it had just convicted the person of that offence.
(2)In dealing with a person under subsection (1) who is or was subject to a CRO, a court is not precluded from making an order under section 52(2).
In this case the magistrate chose to act pursuant to s 133(1)(a)(iii) by cancelling the CBO and re‑sentencing the appellant for the offences for which he had been placed on the CBO. In other words, the magistrate was required to sentence the appellant afresh for the offences for which he had been placed on the CBO having regard to the sentencing principles set out in s 6, s 7 and s 8 of the Sentencing Act.
Ground 1
Applicable legal principles
In Saylor v Shephard[30] Mazza J (as his Honour then was) said the following in relation to the approach that must be taken by a court when an unrepresented person appears before the court and pleads guilty to an offence:
[30] Saylor v Shephard [2010] WASC 94 [25] ‑ [28].
It is convenient to deal with ground 4 first. As Wheeler J observed in The State of Western Australia v Landers [2000] 22 WAR 278, 279:
'There are many authorities in this and other jurisdictions in which appellate courts have emphasised the great importance in the interests of justice of ensuring that an accused brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take.'
In Wood v Marsh [2003] WASCA 95 Malcolm CJ (with whom Murray & Anderson JJ agreed), cited with approval the statement made by Wells J in Cooling v Steel (1971) 2 SASR 249, 249 ‑ 250 as to the correct approach a court should take when an unrepresented person appears before it and pleads guilty to an offence. That approach requires a court to ensure that the person is appraised of their rights and specifically that he or she is told of:
(a)the ability to obtain legal advice and representation;
(b)the right to seek a reasonable adjournment to obtain that advice or representation;
(c)the seriousness of the charge and of the penalties that may be imposed, especially where there is a risk of being sentenced to a term of imprisonment; and
(d)the ability to dispute or comment upon the facts alleged by the prosecutor.
To these I would add that the court is required to ensure that the defendant is aware that he or she may put before the court any matter in mitigation. With great respect to the learned sentencing magistrate, he overlooked all of these matters.
Where an unrepresented person comes before a court and admits a breach of an order which may make the person liable to be resentenced, he or she should be informed of this possibility, especially where an offender may be sentenced to a term of imprisonment. The court should then give the person an opportunity to obtain legal advice and representation.
In resentencing the person, the court must consider the general principles of sentencing set out in s 6 ‑ s 8 of the Sentencing Act. The proceedings are not restricted to the reasons why the order was breached.
I respectfully adopt Mazza J's above statements of principle.[31]
The parties' submissions
[31] The principles were also stated and applied by EM Heenan J in Gable v Nardini [2010] WASC 321; (2010) 56 MVR 551 [53] ‑ [54].
The appellant acknowledges that he was able to make a limited number of statements to the magistrate after the magistrate had commenced his sentencing remarks. However, the appellant submits that he was not given the opportunity to seek legal advice and representation, or properly warned about the risk of imprisonment, or given the opportunity to present a plea in mitigation before the magistrate proceeded to sentence him, or given an opportunity to comment upon the facts of the offences for which he was sentenced to imprisonment these facts not having been read to the magistrate. The appellant submits that in these circumstances the manner in which his sentencing proceeded denied him the opportunity to put to the court information relevant to the disposition of the matter and that this amounted to a miscarriage of justice.
The respondent submits that the appellant's sentencing proceedings were fundamentally flawed. In support of this submission and concession the respondent makes two points. First, although the magistrate was informed of the amount of methylamphetamine the subject of the appellant's possession of methylamphetamine offence to which the appellant had pleaded guilty before the magistrate, the facts of this offence were not read to the magistrate. Second, the appellant was not given the opportunity to dispute, augment or explain the information provided by the ACC representative.
Although he concedes the grounds of appeal, the respondent does not concede that the total sentence of 7 months imprisonment imposed by the magistrate on the appellant was inappropriate.
The facts of the offence to which the appellant pleaded guilty
The facts of the appellant's possession of methylamphetamine offence to which he pleaded guilty are set out in a Statement of Material Facts prepared by the Western Australian Police Service, a copy of which the respondent has provided to the court and to the appellant. It is not necessary for me to recite the facts of the offence as set out in the Statement of Material Facts. It suffices to say that the facts set out in the Statement of Material Facts go beyond simply stating the amount of methylamphetamine found in the appellant's possession and describe, in brief terms, the circumstances in which the appellant came to be found in possession of the methylamphetamine, where on the appellant's person the methylamphetamine was found and the appellant's response to being found in possession of the methylamphetamine.
Analysis and decision
I do not accept the appellant's submission that he was not properly warned by the magistrate about the risk of him being imprisoned for some of the offences for which he had been placed on the CBO. The magistrate, after imposing fines for the possession of methylamphetamine offence to which the appellant had pleaded guilty before his Honour and for five of the offences for which the appellant had been placed on the CBO, made clear that he was turning to deal with the appellant for the remaining offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained. The magistrate then made clear by the statements that he made up until the point in time that he invited the appellant to address him that he considered that it was pointless to permit the appellant to remain on the CBO. Further, and immediately before inviting the appellant to say something, the magistrate told the appellant that it seemed to him that 'the only option available to me is in fact a term of imprisonment'.[32] In these circumstances I am satisfied that the appellant was sufficiently alerted to the risk of him being sentenced to a term of imprisonment for a number of the offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained for which he had originally been placed on the CBO.
[32] ts 6, 1 April 2019.
Although I am satisfied that the magistrate sufficiently alerted the appellant to the risk of being sent to prison for a number of the offences for which he had been placed on the CBO I am, with great respect to the magistrate, who was no doubt presiding over a busy list, persuaded that his Honour failed to comply with his obligations in a number of other material respects. His Honour did not, even after he had become aware that the appellant's plea of guilty to the possession of methylamphetamine charge had rendered the appellant liable to be sentenced afresh for the offences for which he had been placed on the CBO, inform the appellant of his right to obtain legal advice and representation or of his right to seek a reasonable adjournment to obtain legal advice and representation. His Honour did not clearly inform the appellant that his conviction for the possession of methylamphetamine offence constituted a breach of the CBO which had rendered him liable to be sentenced afresh for the offences for which he had been placed on the CBO. His Honour did not require the prosecutor to read the alleged facts of the possession of methylamphetamine offence to which the appellant had pleaded guilty and therefore in effect deprived the appellant of the opportunity to dispute or comment upon the alleged facts.[33] His Honour did not require the prosecutor to read the facts of the offences for which the appellant had been placed on the CBO and therefore in effect deprived the appellant of the opportunity to comment upon these facts also. Finally, his Honour, by proceeding to deliver his sentencing remarks immediately after the ACC representative had given her report, in effect deprived the appellant of the opportunity to dispute or comment upon the statements made by the ACC representative.
[33] The magistrate's failure to require the facts of the possession of methylamphetamine offence to be read was in contravention of s 129(3) of the Criminal Procedure Act 2004 (WA).
In my opinion the magistrate, by failing to do the things that I have identified in the preceding paragraph, made significant procedural errors that constituted errors of law and caused the proceedings to be fundamentally flawed. I am therefore satisfied that there was a miscarriage of justice and consequently uphold ground 1 of the appeal.
Although I have upheld ground 1 of the appeal I state, to avoid any doubt on the issue, that I make no finding as to the appropriateness or otherwise of the individual sentences and total sentence of imprisonment imposed by the magistrate on the appellant for the eight offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained.
Ground 2
The appellant had, prior to being placed on the CBO for the offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained, spent seven days in custody on remand, the period of seven days being from 24 November 2018 to 30 November 2018.
The magistrate who sentenced the appellant on 11 January 2019 and placed him on the CBO, Magistrate Hawkins, was not informed by the prosecutor or the appellant that the appellant had spent seven days in custody in respect of the offences for which he was being sentenced.[34] Further, Magistrate Hawkins did not, in sentencing the appellant, make any reference to the seven days that the appellant had spent in custody.[35] In these circumstances I am satisfied that Magistrate Hawkins did not, in determining the sentence to be imposed on the appellant for the offences, take into account the seven days that he had spent in custody on remand.
[34] ts 52 ‑ 53, 11 January 2019.
[35] ts 55 ‑ 56, 11 January 2019.
During the sentencing hearing on 1 April 2019 Magistrate De Vries was not informed that the appellant had spent seven days in custody on remand for the offences for which he had been placed on the CBO. Further, his Honour, in sentencing the appellant, did not make any other reference to the time that the appellant had spent in custody. In these circumstances I am satisfied that his Honour did not, in sentencing the appellant to the terms of imprisonment for the eight offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained, take account of the seven days that the appellant had spent in custody.
A court has a discretion as to whether to take into account time spent in custody.[36] Under s 87 of the Sentencing Act the court may take that time into account by either reducing the term by an appropriate period or by backdating the commencement date of the term. The manner in which the discretion is exercised will depend upon the individual circumstances of the case.[37] A failure to give full credit for time spent in custody may, depending upon the circumstances, be unjust.[38]
[36] Narkle v Hamilton [2008] WASCA 31 [40]; Goodwin v The State of Western Australia [2017] WASCA 184 [26(c)].
[37] Narkle v Hamilton [40].
[38] MJS v The State of Western Australia [2011] WASCA 112 [221].
Magistrate De Vries, given that he was not informed of the fact that the appellant had spent seven days in custody for the eight offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained, did not make any error by failing to take the appellant's time in custody into account. However, in my opinion the appellant was, bearing in mind that he was not given credit for the time in custody by Magistrate Hawkins when she sentenced him to the CBO, entitled to have his time in custody taken into account in one of the ways provided for by s 87 of the Sentencing Act. The fact that the appellant was not given credit for his time in custody was, in the circumstances of his case, unjust.
For the reasons I have stated I am persuaded that there was a miscarriage of justice arising from the fact that the magistrate, in sentencing the appellant to the sentences of imprisonment for the eight offences of possessing property that was reasonably suspected to be stolen or unlawfully obtained, did not give the appellant credit for the seven days that he had spent in custody in one of the ways provided for by s 87 of the Sentencing Act. I therefore uphold ground 2 of the appeal.
Proviso
If a miscarriage of justice has occurred I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred.[39]
[39] CAA, s 14(2).
The respondent does not suggest that I can dismiss the appeal on the basis that no substantial miscarriage of justice has occurred.
As I have already indicated, in my opinion the proceedings that took place before Magistrate De Vries were fundamentally flawed. Moreover, on the basis of the material adduced on the appeal I cannot be satisfied that if the magistrate had not made the procedural errors that I have I identified the result would have been no different for the appellant. In these circumstances I do not consider that no substantial miscarriage of justice has occurred. In my view this is not a case in which there is room for the application of the proviso.
Orders
The parties are in agreeance as to the orders that should be made to give effect to my decision. I will therefore make orders in the following terms:
1.The application for an extension of time within which to appeal is allowed;
2.The application for leave to appeal is allowed;
3.The appeal is allowed;
4.Pursuant to s 14(1)(c) of the Criminal Appeals Act 2004 (WA) the sentences imposed by his Honour Magistrate De Vries on 1 April 2019 for the offences the subject of charge numbers PE 60887/2018 ‑ 60892/2018, PE 60894/2018 and PE 60895/2018 are set aside;
5.Pursuant to s 14(1)(e) of the Criminal Appeals Act 2004 (WA), charge numbers PE 60887/2018 – 60892/2018, PE 60894/2018 and PE 60895/2018 are remitted to the Magistrates Court at Perth to be heard and determined according to law by a different magistrate; and
6.The accused is remanded in custody to appear in the Perth Magistrates Court at 10.00 am on 7 June 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick6 JUNE 2019
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