Lockyer v The Director of Public Prosecutions - [2022] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LOCKYER -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2022] WASC 207
CORAM:   TOTTLE J
HEARD:   2 JUNE 2022
DELIVERED          :   23 JUNE 2022
FILE NO/S:   SJA 1010 of 2022
BETWEEN:   CURTIS JAVIS JORDDEN LOCKYER
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

FILE NO/S: SJA 1011 of 2022
BETWEEN: CURTIS JAVIS JORDDEN LOCKYER
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

FILE NO/S: SJA 1012 of 2022
BETWEEN: CURTIS JAVIS JORDDEN LOCKYER
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   SJA 1010 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MACLEAN
File Number            :   PH 1986 - PH 1987 of 2020; PH 2102 of 2020 & PE 6057 - PE 6059 of 2021
For File No:   SJA 1011 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MACLEAN
File Number            :   PH 1986 - 1987 of 2020; PH 1033 - PH 1034 of 2021 & PE 6057 of 2021
For File No:   SJA 1012 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MACLEAN
File Number            :   PH 1986 - PH 1987 of 2020; PH 1033 of 2021; PH 2000 - PH 2002 of 2021; PE 6057 of 2021 & PH 166 of 2022

Catchwords:

Criminal law - Sentencing - Appeal against imposition of intensive supervision orders - Where the sentencing judge did not refer to the appellant's guilty pleas as a mitigating factor - Whether there has been a substantial miscarriage of justice - Whether a lesser penalty would have been imposed - Appeal dismissed

Criminal law - Sentencing - Appeal against conditional suspended imprisonment order - Where the sentencing judge did not refer to the appellant's guilty plea - Whether there has been a substantial miscarriage of justice - Whether a lesser penalty would have been imposed - Appeal dismissed

Criminal law - Conditional suspended imprisonment order - Breach by re‑offending - Breach by failure to comply with programme requirements - Whether it was reasonable or plainly unjust for the magistrate to have ordered the term of suspended imprisonment to be served - Appeal dismissed

Legislation:

Bail Act 1982 (WA), s 51(1), s 51(2)
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 10(3), s 14(2)
Criminal Code Act Compilation Act 1913 (WA), s 84J(1), s 131(1), s 378, s 378(2)(a), s 401(2)(a), s 401(2)(ba)
Road Traffic Act 1974 (WA), s 49(1)(a)
Sentencing Act 1995 (WA), s 8(4), s 9AA, s 84D, s 84F, s 84J(1), s 84K(3), s 84L, s 84P(1), s 133(1)

Result:

SJA 1010 of 2022
Application for an extension of time refused
Application for leave to appeal refused
Appeal dismissed

SJA 1011 of 2022
Application for an extension of time refused
Application for leave to appeal refused
Appeal dismissed

SJA 1012 of 2022
Application for leave to appeal granted in respect of ground 1 and refused in respect of grounds 2 and 3
Appeal dismissed

Category: B

Representation:

SJA 1010 of 2022

Counsel:

Appellant	:	W Yoo
Respondent	:	S Packham

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth (Criminal)
Respondent	:	Director of Public Prosecutions (WA)

SJA 1011 of 2022

Counsel:

Appellant	:	W Yoo
Respondent	:	S Packham

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth (Criminal)
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

SJA 1012 of 2022

Counsel:

Appellant	:	W Yoo
Respondent	:	S Packham

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth (Criminal)
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Churnside v The State of Western Australia [2016] WASCA 146
Dillon v The State of Western Australia [2020] WASCA 24
Inglis v Pinch [2016] WASC 30
Mason v The State of Western Australia [2018] WASCA 43
Nannup v The State of Western Australia [2021] WASCA 140
Neach v Hobbs [2021] WASC 135
Nolan v The State of Western Australia [2013] WASCA 235
Peterson v The State of Western Australia [2019] WASCA 207
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Ryan v The State of Western Australia [No 2] [2018] WASCA 230
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

TOTTLE J:

Overview

On 2 June 2022 I dismissed the appellant's applications for leave to appeal in appeals numbered SJA 1010 and 1011 of 2022 and, in respect of each application, gave brief oral reasons for my decision. I said the oral reasons would be incorporated in written reasons that would be published later.
I reserved my decision in respect of a third and related appeal numbered SJA 1012 of 2022 which was heard at the same time. After I had reserved my decision in appeal SJA 1012 of 2022 I invited the parties to make further submissions on one issue and extended the opportunity for the appellant to amend his grounds of appeal if he was so advised. Further submissions and an amendment to the grounds of appeal were filed and served on the appellant's behalf and the respondent filed and served responsive submissions.
As will become clear there is a substantial overlap in the factual background, statutory provisions and principles applicable to all three appeals and to avoid unnecessary repetition it is convenient for the appeals to be dealt with in one set of reasons.

The appeal in SJA 1010

On 7 April 2021 the appellant pleaded guilty to the following charges:
(a)Aggravated home burglary[1] and associated stealing[2] committed in November 2020 (the November 2020 offences).
(b)Breaching bail undertaking for failing to appear in court on 14 December 2020.[3]
(c)Stealing a motor vehicle and driving it recklessly committed in February 2021 (the February 2021 offence).[4]
(d)Stealing committed in February 2021.[5]
(e)Driving while having no authority to drive.[6]
[1] Criminal Code Act Compilation Act 1913 (WA) s 401(2)(a) - MC PH 1986/2020.
[2] Criminal Code Act Compilation Act 1913 (WA) s 378 - MC PH 1987/2020.
[3] Bail Act 1982 (WA) s 51(1) - PH 2101/2020.
[4] Criminal Code Act Compilation Act 1913 (WA) s 378(2)(a) - MC PE 6057/2021.
[5] Criminal Code Act Compilation Act 1913 (WA) s 378 - PE 6058/2021.
[6] Road Traffic Act 1974 (WA) s 49(1)(a) - PE 6059/2021.
The magistrate imposed fines of $50 in respect of the stealing and no authority to drive charges committed in February 2021 and a $20 fine in respect of the breach of bail offence.
The magistrate imposed intensive supervision orders of eight months duration with 40 hours of community work in respect of the November 2020 offences and the February 2021 offence.
The application for leave to appeal was filed on 17 February 2022, approximately nine months after the time limited for making the application had expired. The appellant relied on the merits of the appeal to support the grant of leave to appeal out of time.

The appeal in SJA 1011

On 17 August 2021 the appellant pleaded guilty to aggravated burglary[7] and associated stealing,[8] committed on 7 June 2021 (the aggravated burglary will be referred to as 'the June 2021 offence').
[7] Criminal Code Act Compilation Act 1913 (WA) s 401(2)(ba) - MC PH 1033/2021.
[8] Criminal Code Act Compilation Act 1913 (WA) s 378 - MC PH 1034/2021.
The magistrate made a conditional suspended imprisonment order in respect of the June 2021 offence. The term of imprisonment was eight months and the period of suspension was eight months commencing on 17 August 2021. The magistrate continued the intensive supervision orders that were in place at the time the offences were committed.
The application for leave to appeal was filed on 15 February 2022 approximately five months after the time limited for making the application had expired. As in appeal SJA 1010 of 2022, the appellant relied on the merits of the appeal to support the grant of leave to appeal out of time.

The appeal in SJA 1012

On 28 January 2022 the appellant pleaded guilty to the following charges:
(a)Breaching an intensive supervision order imposed on 7 April 2021[9] in respect of the November 2020 offences.
(b)Breaching a further intensive supervision order imposed on 7 April 2021[10] in respect of the February 2021 offence.
(c)Breaching the terms of a conditional suspended imprisonment order made on 17 August 2021[11] imposed in respect of the June 2021 offence.
(d)Failing to comply with the requirements of his bail undertaking.[12]
[9] Sentencing Act 1995 (WA) s 131(1) - PH 2000/2021.
[10] Sentencing Act 1995 (WA) s 131(1) - PH 2001/2021.
[11] Sentencing Act 1995 (WA) s 84J(1) - PH 2002/2021.
[12] Bail Act 1982 (WA) s 51(2) - MC PH 166/2022.
The magistrate imposed fines of $50 in respect of each of the breaches of the intensive supervision orders (the orders had expired by effluxion of time on 7 December 2021), the breach of the conditional suspended imprisonment order and the breach of bail.
The magistrate imposed a term of imprisonment of two months in respect of the aggravated home burglary offence committed in November 2020, a fine of $50 in respect of the stealing offence committed in November 2020 and imposed a term of imprisonment of two months in respect of the February 2021 offence. These terms of imprisonment were imposed under the power conferred on the court by s 133(1)(b) of the Sentencing Act 1995 (WA) (Sentencing Act) to sentence the appellant for the offences for which the intensive supervision orders were imposed as 'if [the court] had just convicted [the appellant] of [those] offences'.
The magistrate ordered that the appellant serve the term of eight months imprisonment that was the subject of the conditional suspended imprisonment order imposed on 17 August 2021 for the June 2021 offence. In the circumstances of this case there were two potential sources of power for the making of this order, s 84F and s 84L of the Sentencing Act. The issue of the provision under which the order was made by the magistrate is considered later.
The magistrate ordered that the terms of imprisonment imposed in relation to the November 2020 aggravated home burglary offence and the February 2021 offence be served concurrently with the eight month term of imprisonment the magistrate ordered the appellant to serve for the June 2021 offence.
The appellant applies for leave to appeal against the terms of imprisonment imposed in respect of the November 2020 aggravated home burglary offence, the February 2021 offence and against the order made that the appellant serve the eight month term of imprisonment.

Statutory provisions relevant to all appeals

Section 8(4) of the Sentencing Act provides:
(4)If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
Section 9AA of the Sentencing Act is as follows:
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 14(2) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) provides that even if a ground of appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
When considering the application of s 14(2) of the Criminal Appeals Act, I will follow the approach to sentencing appeals described by Archer J in Neach v Hobbs:[13]
In my view, the proper approach can be described in this way.
The first question is whether the appellate court can exclude the possibility that a different sentence would have been imposed if the error had not been made. That is, the first question is not whether the sentence was within the range of a sound exercise of the sentencing discretion. The question is whether the error could not have made a difference.
If the answer to the first question is yes, the appeal will be dismissed. (It is unnecessary to resolve whether this is because the error was not material, such that the jurisdiction to allow the appeal was not enlivened, or because no substantial miscarriage of justice had occurred.)
If the answer to the first question is no, the appellate court should consider the sentencing discretion afresh. If the appellate court would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal. (footnotes omitted)
[13] Neach v Hobbs [2021] WASC 135 [19] - [22].
Part 2 of the Criminal Appeals Act governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[14] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[15] 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.[16] If leave to appeal is refused, the appeal is taken to be dismissed.[17]
[14] Criminal Appeals Act 2004 (WA) s 9(1).
[15] Criminal Appeals Act 2004 (WA) s 9(2).
[16] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[17] Criminal Appeals Act 2004 (WA) s 9(3).
Section 10(3) of the Criminal Appeals Act is relevant only to SJA 1010 and SJA 1011. It provides that an appeal from a court of summary jurisdiction to this court cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by this court.[18]
[18] Criminal Appeals Act 2004 (WA) s 10(3).

SJA 1010

Background

The facts of the November 2020 offences were as follows: on 23 November 2020 the appellant kicked down the front door of a home in South Hedland. The appellant and the co-offenders searched the house looking for items to steal. They stole $3 and alcohol. Police arrived and the appellant and the co-offenders forced open a rear door of the property and ran off. The police arrested the appellant two days later and he made full admissions.
On 14 December 2020 the appellant failed to appear in court and was charged with breaching his bail undertaking for failing to appear. The appellant failed to appear in court on 18 January 2021, which was his next court date, but was not charged with breaching his bail undertaking on that occasion.
The facts of the February 2021 offence were as follows: (while on bail for the November offences) on 6 February 2021 the appellant was driving a stolen Ford Ute in company with two juvenile co-accused. The appellant at one point drove past an unmarked police vehicle at 167 km per hour. The appellant refuelled the vehicle at a service station and made no attempt to pay. The appellant did not have a licence at the time of driving. The appellant was arrested on the same day and was remanded in custody until the sentencing hearing on 7 April 2021.
Pleas of guilty were entered into on 22 February 2021 for the November 2020 offences (sixth appearance) and the February 2021 offence (third appearance).
A pre-sentence report dated 1 April 2021 was prepared in respect of the appellant. The report: (i) described the appellant's childhood as being one adversely affected by neglect, parental abandonment, exposure to substance abuse and family violence; (ii) referred to the appellant's long history of offending as a juvenile, commencing when he was 10 years of age; and (iii) referred to the fact the appellant started smoking cannabis at the age of 14 and that his education was disrupted and he left school in year 10. The appellant was 18 years and 11 months of age when sentenced in April 2021.
The fact that the appellant had pleaded guilty was mentioned by counsel for the appellant at the beginning of the sentencing hearing but was not referred to by the magistrate in sentencing.[19]
[19] Transcript of primary court dated 7 April 2021, 2.
In his sentencing remarks the magistrate recorded the appellant accepted his offending was serious offending and that he had expressed remorse.[20] The magistrate referred to the appellant's youth, that he had been in custody and to his difficult background.[21] The magistrate observed that rehabilitation remained a primary consideration for the court.[22]
[20] Transcript of primary court dated 7 April 2021, 7.
[21] Transcript of primary court dated 7 April 2021, 8 - 10.
[22] Transcript of primary court dated 7 April 2021, 8.
The magistrate acknowledged that the starting point for the appellant's offending was a term of imprisonment and that he had to think 'long and hard' about what to do with the appellant before deciding that imposing an intensive supervision order was the appropriate disposition.[23]

SJA 1010 - ground of appeal

[23] Transcript of primary court dated 7 April 2021, 8 - although the magistrate referred to one intensive supervision order, the record shows that an intensive supervision order was imposed in respect of each of the November 2020 offences and the February 2021 offence.

The appellant relies on one ground of appeal which is as follows:
The learned magistrate erred in law by failing to discount the sentence imposed on 7 April 2021 arising from the appellant's pleas of guilty. The discount should have been awarded generally or pursuant to s 9AA of the Sentencing Act 1995 (WA). The discount should have been imposed for [the November 2020 offences] and [the February 2021 offence] for which guilty pleas were entered on 22 February 2021.

Disposition in SJA 1010

Five observations may be made.
First, in my opinion s 9AA of the Sentencing Act has no application when a court imposes an intensive supervision order. In forming this opinion I accept the reasoning of Archer J in Neach v Hobbs,[24] and the observations of Pritchard J (as her Honour then was) in Inglis v Pinch.[25]
[24] Neach v Hobbs [24] - [26].
[25] Inglis v Pinch [2016] WASC 30[50] - [54].
Secondly, s 8(4) of the Sentencing Act imposes an obligation on a sentencing court to state in open court if it has reduced the sentence because of a mitigating factor. The magistrate did not do so and that was an error on his Honour's part. A failure to state in open court that a sentence has been reduced because of a mitigating factor is not of itself an appealable error.[26] I acknowledge, however, that in this case, the absence of an express reference to the guilty plea is relied on to infer the magistrate did not take the guilty plea into account when imposing the intensive supervision orders.
[26] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] (Owen JA). See also Nolan v The State of Western Australia [2013] WASCA 235 [44] (Buss JA), [55] (Mazza JA), [59] (Hall J).

Thirdly, given that the oral reasons of the magistrate are to be construed beneficially, I have reservations about the contention that the magistrate failed to take the guilty plea into account when his Honour imposed the sentence. It is open to infer that he did do so from two matters:
(a)The leniency of the sentence imposed.
(b)A major aspect of the plea in mitigation was the appellant's acceptance of responsibility for his offending and his admissions, and the magistrate commenced his sentencing remarks by making a reference to those admissions. This might be thought to suggest that the guilty pleas were at the forefront of the magistrate's mind.
The respondent, however, accepts the appellant's contention that the magistrate did not take into account his guilty pleas when sentencing. Notwithstanding the reservations I have expressed I will deal with the appeal on the basis most favourable to the appellant, that is, the magistrate made an error of law because he failed to take into account the appellant's guilty pleas when sentencing.
Fourthly, even though the magistrate made an error of law, this is a case which attracts the operation of the proviso in s 14(2) of the Criminal Appeals Act. In considering the operation of the proviso, I cannot exclude the possibility that a different sentence would have been imposed if the magistrate had not erred by failing to take the appellant's guilty pleas into account. Consequently, I must consider whether this court would have imposed a lesser sentence. It is at this point that the appellant's application runs into difficulty. The sentencing disposition may fairly be described as very lenient in respect of serious offending for which the appellant might have realistically expected to have been sentenced to an immediate term of imprisonment.
I accept there is much mitigation to be found in the appellant's personal history and background. Even taking those considerable mitigating factors into account on his behalf, however, I am not satisfied that a lesser penalty would have been imposed, and on that basis, I am not satisfied that there has been a substantial miscarriage of justice. In particular, it is difficult to understand how a reduction in sentence for a guilty plea would alter the type of sentence, or the duration of the intensive supervision orders or the programme requirements given that they are essentially directed to rehabilitation. It may be accepted that the community service obligations are, at least partly, punitive in nature but the number of hours the appellant was ordered to serve - 40 hours - was modest.
Fifthly, and related to the last point, given that the intensive supervision orders expired by the effluxion of time on 7 December 2021, it is not clear how it can be said that it is in the interests of justice to grant an extension of time to appeal against the imposition of them.

Conclusion

I conclude that the magistrate erred by failing to take into account the appellant's guilty pleas but the error did not occasion a substantial miscarriage of justice. Accordingly, I refuse the application for an extension of time within which to bring the appeal, refuse the application for leave to appeal and dismiss the appeal.

SJA 1011

Background

The facts of the offending were as follows. On 7 June 2021 the appellant and others climbed through the roof of a tavern in South Hedland while it was closed and stole approximately $400 worth of alcohol and soft drinks. The incident was recorded on CCTV. The appellant was arrested later that day. The appellant admitted the offence and gave an explanation to the effect that he was encouraged to commit the offence by a younger co-offender.
On his second appearance before the magistrate on 23 June 2021 the appellant entered guilty pleas to the charges.
At the sentencing hearing on 17 August 2021 the magistrate had a pre‑sentence report dated 5 August 2021 and a psychological report dated 31 July 2021. The pre-sentence report largely identified the same circumstances of the appellant that were contained in the pre-sentence report dated 1 April 2021.
At the sentencing hearing counsel for the appellant relied on the contents of the psychological report, in particular, the appellant's history of substance abuse, exposure to domestic violence and substance abuse, development of post-traumatic stress disorder, limited self-awareness and emotional management and reduced problem solving, decision making and stress management.
The psychological report recorded that the author had attempted to undertake a personality and diagnostic assessment but found that the appellant was unable to complete the assessment due to comprehension difficulties. The author of the psychological report expressed the following opinions:[27]
[27] Psychological report for court dated 31 July 2021, 6 - 7.
Psychological Formulation of Offending
8.1 The available information indicated that Mr Lockyer's early development was impacted by experiences of neglect, parental abandonment, exposure to substance abuse and family violence. It appears that the instability and maltreatment during his formative years resulted in him developing post-traumatic symptoms and associated mistrust of others as well as hypersensitivity to threat. This, along with his transience, would have impaired his opportunities to engage with schooling and available positive sources of support. Instead, Mr Lockyer has gravitated towards other disenfranchised peers, who have exposed him to problem behaviours such as substance use and criminal activity. Mr Lockyer identified that over time that he 'got addicted to' the 'rush of' stealing and continued to commit various property offences 'for fun'. This would have served to reinforce the attitudes and behaviours associated with his offending behaviour, which now appear to be well-established within Mr Lockyer's cognitive and behavioural repertoire.
8.2 In addition, this developmental trajectory would have limited Mr Lockyer's opportunities to develop cognitively and socioemotionally. As a result, he has limited self (planning, problem-solving, goal-setting, consequential thinking), relationship (communication, conflict resolution) and emotional management skills. A prior report suggested that Mr Lockyer may have experienced some 'neurological impacts related to trauma and inter-uterine exposure to cannabis (and potentially other substances), and perhaps his capacity for problem solving, responding to stress (stress tolerance) and decision making is impacted by cognitive deficits and neuro-psychological factors' (Marley, 2018).
8.3 Of further relevance is the presence of Mr Lockyer's maladaptive coping mechanisms, which are underpinned by unresolved trauma symptoms. Those appear to include his tendency to be self-reliant, mistrustful of others, as well as interpersonally withdrawn and avoidant. The presence of such issues appears to have played a role in Mr Lockyer's poor engagement with prior supervision and may impact his future involvement with treatment options. Conversely, such issues may serve to maintain his involvement with negative peers and behaviours that he is familiar with, in particular criminal activity.
8.4 It appears that Mr Lockyer's current offences were an example of him returning to old and familiar patterns of behaviour, which he can engage in 'for fun' and that provide him with some degree of momentary positive reinforcement. Mr Lockyer's skill deficits and patterns of interpersonal avoidance would serve to maintain such behaviour and limit his capacity to start making changes to his lifestyle. Lack of other positive activities, whether this be employment, leisure activities or involvement with support services, most likely contributes to Mr Lockyer returning to old patterns of behaviour.
…
Recommendations for Treatment and Management
10.1 The author speculated that Mr Lockyer's unresolved trauma symptoms contribute to his tendency to be mistrustful of others, interpersonally avoidant and hence resistant to engaging with support and treatment services. Ideally supporting him in gaining a better understanding of those protective mechanisms and ways of managing his trauma symptoms more adaptively may increase his capacity to participate in treatment.
10.2 Mr Lockyer advised that community-based supervision 'orders are too hard to stick to' for him, which raised concerns about his capacity to engage with such an intervention option. Although he could benefit from some degree of support and monitoring in the community, it is possible that Mr Lockyer may be more likely to participate in prison‑based treatment options.
10.3 Mr Lockyer presented with considerable criminogenic treatment needs, which will need to start being addressed to moderate his currently elevated risk of similar reoffending. Development of better relapse prevention, planning, problem-solving, consequential thinking and coping skills is suggested. As suggested above, targeting his unresolved trauma symptoms is also a relevant treatment area.
In the course of his sentencing remarks the magistrate referred to the fact that the appellant had been in custody for 'about two months' and to the appellant's age - by that date he was 19 years and three months old.[28] The magistrate referred to the fact that the appellant had been engaging with the requirements of the intensive supervision orders and observed that 'that literally is what has saved you from a term of imprisonment'.[29] Parenthetically, and as will appear from what is said in the reasons concerning appeal SJA 1012 of 2022, objectively his Honour's assessment of the appellant's engagement with the intensive supervision orders appears to have been a generous one. The magistrate's concluding observations were as follows:[30]
And in terms of the new offences - well, in terms of the aggravated burglary, there's going to be a conditionally suspended imprisonment order. The conditionally suspended imprisonment order will be in place for eight months. I would have thought the starting point would be a sentence somewhere in the range of 12 months, but I take into account that this is a burglary on a business, not on a home, which means it's not as bad, not as serious. I also take into account there was a bit of a construction site there, so it was - it seems it was easier for you to get in. I don't think that there was any damage.
I take into account that, you know, you were young. It was someone else's suggestion to you, but really he was younger and you should have just told him not to get involved in it, because that's going to be your job from now on Curtis. If any of these young people like [redacted] try to get you to do something bad, then it's your job to make sure they don't do it. So not only is it important that you don't do it, but you've got to tell the younger ones that they can't do it either. Otherwise, they're going to end up where you are now. So eight months.
There will be supervision and program requirements, which I think will probably tailor with the intensive supervision order that you're already required to do, and that's it. But realistically, Curtis, I know you've been given the final chance speech a couple of times, but this really is it. It's a conditionally suspended imprisonment order. Any breaches by way of future property offences, the sort of stuff you've been involved in, will absolutely mean that you're going to go to jail.
[28] Transcript of primary court dated 17 August 2021, 6 - 7.
[29] Transcript of primary court dated 17 August 2021, 8.
[30] Transcript of primary court dated 17 August 2021, 8 - 9.
The magistrate made no reference to the appellant's guilty plea in his sentencing remarks.

SJA 1011 - ground of appeal

The appellant relies on one ground of appeal which is as follows:
The learned magistrate erred in law by failing to discount the sentence imposed on 17 August 2021 arising from the appellant's plea of guilty. The discount should have been awarded generally or pursuant to s 9AA of the Sentencing Act 1995 (WA). The discount should have been imposed for [the June 2021 offence] for which a guilty plea was entered on the second court appearance on 23 June 2021 in the Magistrates Court.
It was common ground that the magistrate erred by failing to take into account the appellant's guilty plea. The respondent contended the proviso applied. It was accepted that the guilty plea, had it been taken into account, was a matter that could have resulted in a different sentence. The question for the court to consider is whether when considering the sentencing discretion afresh the court would not impose a lesser penalty.
Counsel for the appellant contended the court would impose a lesser penalty. This contention was supported by reference to a combination of matters: the guilty plea, the appellant's psychological difficulties and their origin as discussed in the psychological report, the time spent in custody on remand (62 days) and the mitigation afforded by the appellant's deprived and difficult upbringing. Counsel for the appellant accepted an immediate term of imprisonment in the region of 18 months was not outside the range of sound sentencing discretion and would be at the lower end of the range.[31] Counsel for the appellant contended, however, that the appellant's circumstances engaged considerations of the nature present in the cases of Churnside v The State of Western Australia,[32] Mason v The State of Western Australia,[33] and Nannup v The State of Western Australia.[34]
[31] ts 16.
[32] Churnside v The State of Western Australia [2016] WASCA 146.
[33] Mason v The State of Western Australia [2018] WASCA 43.
[34] Nannup v The State of Western Australia [2021] WASCA 140.
The respondent contended the conditional suspended imprisonment order was a lenient disposition and one which was merciful in the circumstances. The respondent contended the magistrate's sentencing remarks make it clear that his Honour was endeavouring to give the appellant as many chances as he could to avoid having to serve a term of imprisonment.
The respondent emphasised the aggravated burglary was committed whilst the appellant was on the intensive supervision orders and this was a significantly aggravating factor, especially as one of the intensive supervision orders was imposed for an aggravated burglary offence.
The respondent contended the magistrate took proper account of the appellant's difficult childhood. The respondent accepted that the appellant's childhood deprivation - assuming such deprivation was established in this case - attracted the factors identified in Bugmy v The Queen,[35] but while they might reduce the appellant's culpability they might increase the importance of protecting the community.

Disposition in SJA 1011

[35] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

Section 9AA of the Sentencing Act applied to the sentence imposed by the magistrate and the appellant's guilty plea was a powerful mitigatory factor.
The magistrate was obliged by s 9AA(5) of the Sentencing Act to state in open court the fact that his Honour had reduced the sentence and the extent of the reduction. That no such statement was made by the magistrate and there being nothing else to suggest that his Honour did in fact take the guilty plea into account in his sentencing disposition, his Honour made an error of law.
The next question is whether there has been a substantial miscarriage of justice. I am unable to exclude the possibility that had the magistrate taken account of the guilty plea, there could have been a different sentencing outcome. The critical question, however, is whether this court would not have imposed a lesser sentence.
The maximum penalty for aggravated burglary is a term of imprisonment of 20 years. On summary conviction the maximum penalty is a term of imprisonment of three years and a fine of $36,000. As noted earlier, counsel for the appellant accepted that the lower end of the discretionary range of sentences for the offending in question is an immediate term of imprisonment in the region of 18 months.
In Nannup v The State of Western Australia the appellant pleaded guilty to aggravated home burglary and was sentenced in the District Court to two years imprisonment, conditionally suspended for 15 months. The appellant was 18 years of age when he committed the offence. The Court of Appeal found that having regard to the combination of mitigating circumstances identified by the sentencing judge and, in particular, that the appellant had been diagnosed with Foetal Alcohol Spectrum Disorder and his mental impairments, his youth and early guilty plea, their Honours would not have interfered with the length of the term, but for the time spent in custody - five and a half months.[36] The time spent in custody had been considered by the sentencing judge only as a factor relevant to the question of whether any sentence of imprisonment should be suspended and not in his assessment of the length of that term.[37] Consequently, the Court of Appeal found that the sentence imposed was manifestly excessive and resentenced the appellant to 14 months imprisonment to be conditionally suspended for 12 months. Objectively the circumstances of the appellant's offending in Nannup v The State of Western Australia were more serious - the offence was an aggravated home burglary, committed at night when the female occupant of the home and her three young children were present. At the time of the offence the offender was the subject of a youth conditional release order.
[36] Nannup v The State of Western Australia [65] - [66].
[37] Nannup v The State of Western Australia [66].
In Churnside v The State of Western Australia the appellant appealed against a total effective sentence of 22 months imprisonment for two counts of aggravated home burglary. The appellant, who was 20 years of age when sentenced, suffered from a cognitive deficit caused by Foetal Alcohol Spectrum Disorder. The Court of Appeal observed his cognitive deficits limited the general and personal effect of imprisonment. The Court of Appeal had before it specialist reports which indicated hope for rehabilitation if support could be provided to the appellant in the community. Whilst some material was before the sentencing judge which indicated there may be some support available in the community, further inquiries were made by the Court of Appeal which indicated that arrangements could in fact be made in the community to offer a better prospect than imprisonment for breaking the cycle of offending. The Court of Appeal found that the sentencing judge erred in finding that there was no viable community-based disposition without directing the making of inquiries which would establish whether that was in fact the case. The Court of Appeal resentenced the appellant to a Community Based Order of 12 months in respect of each offence, to be served concurrently.[38] Fundamental to the Court of Appeal's decision was the development of a specific proposal to remove the appellant from the adverse influences from the town in which he was living and to place him in a supported environment in a remote community in which alcohol was prohibited. The proposal also provided for support and assistance from immediate and extended family and the prospect of engagement in worthwhile daily activities in a protected environment, augmented by support from Community Corrections officers. Regrettably for the appellant in this case no such support was available to him.
[38] Churnside v The State of Western Australia [22].
In Mason v The State of Western Australia the appellant, who was 32 years of age and suffered from a 'significant intellectual disability',[39] appealed against the imposition of a 12 month suspended imprisonment term in respect of an offence of aggravated home burglary committed at night when the home owner and her children were asleep. The appeal was dismissed. The Court of Appeal found that it was open to the judge to conclude that any lesser sentencing option than imprisonment, including an intensive supervision order, would not have been commensurate with the seriousness of the offence.
[39] Mason v The State of Western Australia [69].

In Bugmy v The Queen the High Court was considering the case of an Aboriginal man from a deprived community on the western fringes of New South Wales who assaulted a prison officer. The majority of the Court reflected upon the relevance of disadvantage in a sentencing exercise, and made the observation ultimately that there were no 'special' rules for Aboriginal people, but the circumstances of Aboriginal people and a circumstance of a deprived upbringing and other matters relating to disadvantage were relevant in the sentencing exercise.
The plurality (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ) held that social disadvantage may reduce an offender's moral culpability. The plurality stated:[40]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (citations omitted)
[40] Bugmy v The Queen [43] - [44].
As articulated by Buss P and Mazza JA in Peterson v The State of Western Australia[41] the principles that can be derived by the plurality's statement, referred to as 'the Bugmy principles' are as follows:[42]
(a)The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.
(b) The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.
(c) However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.
(d) Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.
[41] Peterson v The State of Western Australia [2019] WASCA 207.
[42] Peterson v The State of Western Australia [54].
Conformably with what has been said in the authorities, the matters raised before the magistrate and emphasised in the submissions made to me concerning the appellant's background and his psychological health taken with his guilty plea are powerful mitigatory factors. Weighed against those factors is the seriousness of the offending, compounded on this occasion by the fact that the June 2021 offence was committed whilst the appellant was the subject of intensive supervision orders.
Taking all of the matters into account, I conclude that this court would not have imposed a lesser penalty on the appellant than that imposed by the magistrate. By making the conditional suspended imprisonment order, the magistrate was giving the appellant every opportunity (and his last opportunity) of rehabilitation in the community with the benefit of the structure of programme and supervision requirements. The magistrate's disposition is properly characterised as lenient and was a disposition which, I have no doubt, reflected the magistrate's consideration of the appellant's background and the relevance of the principles discussed in the authorities to which I have referred.

Conclusion

Because I have concluded that this court would not have imposed a lesser penalty, there has been no substantial miscarriage of justice. Accordingly, the application for an extension of time within which to appeal and the application for leave to appeal are refused and the appeal is dismissed.

SJA 1012

Background

I refer to what occurred in the course of the hearing on 28 January 2022 in more detail later in these reasons.
Before turning to the three grounds of appeal, it is convenient to set out the statutory provisions that apply when an offender breaches a conditional suspended imprisonment order by re-offending or by breaching the requirements of such an order and the provisions which apply when an offender breaches the requirements of an intensive supervision order.
Section 84D of the Sentencing Act governs how a person who is the subject of a conditional suspended imprisonment order who re‑offends is to be dealt with. Relevantly it provides:[43]
[43] Section 84P(1) of the Sentencing Act 1995 (WA) is not presently relevant.
84DRe‑offender may be dealt with or committed
(1)Subject to section 84P(1), if a court convicts a person of an offence the statutory penalty for which is or includes imprisonment and that offence was committed during the suspension period of CSI imposed on the person in relation to another offence, the court -
(a)if it is the Magistrates Court, must deal with the person under section 84F unless the CSI was imposed -
(i)by the Children's Court for an indictable offence; or
(ii)by a superior court,
in which case the court must commit the person to the court that imposed the CSI and that court must deal with the person under section 84F; or
Section 84F of the Sentencing Act provides:
84FHow re-offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of CSI, a court that must deal with the person under this section must deal with the person by one of the following methods -
(a)unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph, paragraph (a) or section 84L(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the CSI.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the CSI was imposed.
Section 84J(1) of the Sentencing Act provides:
84JBreach of CSI requirement, offence
(1)A person who breaches a CSI requirement without reasonable excuse, proof of which is on the person, commits an offence.
Section 84K of the Sentencing Act provides relevantly:
84KOffence under s 84J, procedure and penalty for
…
(3)Subject to subsection (4), if some other court of summary jurisdiction convicts a person of an offence under section 84J(1), the court may fine the person not more than $1000 and must deal with the person under section 84L.
Section 84K(4) is not relevant.
Section 84L of the Sentencing Act provides:
84LAdditional powers to deal with s 84J offender
(1)A court that is required by section 84K or 84R to deal with a person under this section must deal with the person by one of the following methods -
(a)unless an order under this paragraph, paragraph (b) or section 84F(1)(a) or (b) has already been made, it may subject to subsection (2), if the Children's Court convicts a order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph, paragraph (a) or section 84F(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may make no order in respect of the CSI.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -
(a)section 88 applies in respect of the term to be served; and
(b)the court may make a parole eligibility order,
as if the term to be served were a term of imprisonment being imposed by the court.
(4)If a person is dealt with under subsection (1)(d), then, unless the suspension period has ended, the sentence of CSI remains in effect and the suspension period continues to elapse.
(5)In dealing with a person under this section a court must take into account the extent to which the person has complied with the CSI and how long the person has been subject to the CSI.
Section 131(1) of the Sentencing Act relevantly provides that a person who breaches a community order (which term includes an intensive supervision order) without reasonable excuse commits an offence.
Section 133(1) of the Sentencing Act provides:
133.Additional powers to deal with s. 131 offender
(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.

Ground 1

As amended at the hearing, ground 1 was as follows:
1There was a miscarriage of justice for the sentences imposed on 28 January 2022 for the [June 2021 offence],[44] the [November 2020 aggravated home burglary offence][45] and the [February 2021 offence],[46] created by the:
(a)Failure to take into account the appellant's guilty plea on 17 August 2021 when the appellant's 8 month imprisonment order conditionally suspended for 8 months was imposed for the [June 2021 offence].
(b)Failure to take into account the appellant's guilty plea on 7 April 2021 when the appellant's 8 month intensive supervision order was imposed for the [November 2020 aggravated home burglary offence] and the [February 2021 offence].
The sentence on 17 August 2021 and 7 April 2021 [are] the subject of separate appeal[s].
[44] MC PH 1033/2021.
[45] MC PH 1986/2020.
[46] MC PE 6057/2021.
The chapeau to ground 1 conflates the exercise of the powers conferred by the Sentencing Act to deal with the appellant for the breach of the conditionally suspended imprisonment order by ordering that the appellant serve the eight month term of imprisonment to which he was sentenced on 21 August 2021 with the sentencing exercise (in effect a re-sentencing exercise) in respect of the November 2020 offences and the February 2021 offence, undertaken under s 133(1)(b) of the Sentencing Act.
When dealing with an offender under either s 84F or s 84L of the Sentencing Act the court is not sentencing the offender. Thus, and turning to ground 1(a), by the time the magistrate came to deal with the appellant on 28 January 2022 and consider whether to activate the term of imprisonment the time for taking into account the appellant's guilty plea had passed. Other than as part of the general background the guilty plea was not relevant to the exercise of the court's discretion to order that the appellant serve the term of imprisonment in full. The appellant's appeal against the sentence of the conditional suspended imprisonment order of eight months imposed on 21 August 2021 has failed because, as explained above, the sentence was so lenient that this court would not have imposed a lesser penalty. Thus, contrary to the appellant's submission, the order made on 28 January 2022 that the appellant serve the term of imprisonment was not 'infected' by the error made in sentencing on 21 August 2021.
Turning to ground 1(b) the appellant's appeal against the imposition of the intensive supervision orders on 7 April 2021 was dismissed because, again as explained above, while the magistrate erred in failing to take the appellant's guilty pleas into account when imposing the intensive supervision orders this did not occasion a substantial miscarriage of justice. Thus, the re-sentencing undertaken on 28 January 2022 was not infected by the error made in sentencing on 7 April 2021.
The respondent conceded that the magistrate made an error when sentencing the appellant for the November 2020 offences and the February 2021 offence under s 133(1)(b) of the Sentencing Act on 28 January 2022 because, on that occasion, his Honour failed to take into account that the appellant had pleaded guilty to each of those offences in February 2021. In fairness to the magistrate, counsel who appeared for the appellant at the hearing on 28 January 2022 did not rely on the guilty pleas in mitigation nor otherwise draw his Honour's attention to them. There is nothing in the transcript of the hearing on 28 January 2022 to suggest that the magistrate did turn his mind to the guilty pleas and take them into account as he was required to do by s 9AA of the Sentencing Act. I am satisfied that the respondent's concession that the magistrate made an error of law in resentencing the appellant for the November 2020 offences and the February 2021 offence was properly made.
The respondent addressed the error by contending it was not an error that occasioned a miscarriage of justice and invoked s 14(2) of the Criminal Appeals Act.I have referred to the approach to be taken to the application of the proviso earlier in these reasons.
I cannot exclude the possibility that a different sentence would have been imposed if the magistrate had taken the appellant's guilty pleas into account and thus it is necessary to consider the sentencing discretion afresh.
I have set out the facts of the November 2020 offences and the facts of the February 2021 offence earlier in these reasons. I have also referred to the contents of the pre-sentence reports and the psychological report. Likewise, I have referred earlier to the maximum sentence that may be imposed in respect of aggravated burglary.
The maximum sentence for the offence of stealing a motor vehicle and driving it recklessly is eight years imprisonment.[47]
[47] Criminal Code Act Compilation Act 1913 (WA) s 378(2)(a).
Even taking into account the time spent by the appellant in custody between 6 February 2021 and 7 April 2021, the guilty pleas and the considerable mitigation afforded by the appellant's deprived background, the sentence of two months imprisonment in respect of the aggravated home burglary offence committed in November 2020 and the sentence of two months imprisonment for the February 2021 offence were lenient sentences. This court would not have imposed lesser sentences. Thus, the error made by the magistrate on 28 January 2022 in the course of sentencing the appellant for the aggravated home burglary offence committed in November 2020 and the February 2021 offence did not occasion a substantial miscarriage of justice.
I grant leave to appeal in respect of ground 1 but dismiss the appeal.

Ground 2

Following the hearing the parties were invited to makes submissions on whether s 84F or s 84L of the Sentencing Act was the source of the power exercised by the magistrate to order that the appellant serve the suspended term of imprisonment. Both parties filed submissions. The appellant sought leave to amend ground 2 to identify s 84L as a source of power for the making of the order in addition to s 84F.
Both parties agreed that both s 84F and s 84L applied in the appellant's circumstances.
In its proposed amended formulation ground 2 was as follows:
2The learned sentencing Magistrate's decision on 28 January 2022 to order that the appellant serve the whole term pursuant to ss 84F and 84L of the Sentencing Act 1995 (WA) on the [June 2021 offence] was plainly unreasonable or unjust. This is because of:
(a)The appellant's age, guilty plea and deprived background (which included his psychological developmental issues) which made it unjust to impose the whole of the term to the extent that s 84F applied.
(b)To the extent that s 84F applied the nature of the breaching offence did not warrant imprisonment and resulted in a $50 fine for breach of bail MC PH 166/2022.
(c)The discretion in light of the facts listed above also meant that the decision under s 84L was plainly unreasonable and/or unjust.
I will grant leave to the appellant to amend the ground in the manner set out above.
Section 84F and s 84L of the Sentencing Act are similar in their terms and structure. Reflecting that s 84F applies when a person the subject of a conditional suspended imprisonment order commits an offence punishable by imprisonment (cf the maximum penalty for breaching a community order is a fine) s 84F(3) provides that the court must order the person to serve the term of imprisonment 'unless [the court] decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the [conditional suspended imprisonment order] was imposed'. Those circumstances may include the person's compliance with any supervision and programme requirements. Section 84L does not include a provision to the same effect of s 84F(3).
The respondent submitted, and I accept, that where an offender who: (i) has breached a conditional suspended imprisonment order by re‑offending involving the commission of an offence that attracts a statutory penalty that includes imprisonment; and (ii) has also breached a requirement of the conditional suspended imprisonment order appears before a court, it is both logical and appropriate for the court to deal with the offender under s 84F of the Sentencing Act as the court is obliged by the mandatory language of s 84D(1) ('the Magistrates Court must deal with the person under s 84F'). If the power to order that the person serve the term of imprisonment is exercised then there is no reason to consider the exercise of the power under s 84L. Accordingly, in my view, when the magistrate made the order that the appellant serve the term of imprisonment, his Honour was exercising the power under s 84F of the Sentencing Act.

In Ryan v The State of Western Australia [No 2],[48] the Court of Appeal observed:[49]
Undoubtedly, a decision as to whether it would be unjust to make an order under s 84F(1)(a) involves a value judgment. It is a matter about which reasonable minds may differ … If a sentencing judge makes a material express or implied error, for example, if the judge fails to take into account a relevant consideration, or takes into account an irrelevant consideration, or if the opinion that is formed is unreasonable or plainly unjust, this court's power to intervene is enlivened.
[48] Ryan v The State of Western Australia [No 2] [2018] WASCA 230.
[49] Ryan v The State of Western Australia [No 2] [28] (Buss P & Mazza JA).
In making an assessment of whether it was unreasonable or plainly unjust for the magistrate to have ordered that the appellant serve the term of imprisonment it is convenient to begin by referring to the account of the appellant's non-compliance with the supervision requirements provided to the magistrate by a community corrections officer, Ms Van Der Berg, who said:[50]
Mr Lockyer was subject to a conditional suspended imprisonment order from 17 August last year as well as the intensive supervision order from 7 April last year. Mr Lockyer failed to engage in any form of supervision or intervention. He reported once in relation to the conditional suspended imprisonment order and the intensive supervision order. He failed to attend intake upon release from custody on 17 August last year. Home visits were conducted with no success until 15 September, in which he was unable to provide an explanation for his lack of engagement.
He attended South Hedland Adult Community Corrections on 16 September last year and completed an appointment. He was directed to report the following Friday, however, failed to attend. Multiple home visits have been conducted to known possible residences for Mr Lockyer and with no success made. Consideration for funerals held in Jigalong were noted. However, Mr Lockyer has made no contact with our agency. During a separate home visit on 2 November last year - Mr Lockyer was identified outside a house during a separate home visit in relation to another offender. He was issued with a direction to report and confirmed willingness to attend by phone, however, failed to do so.
Mr Lockyer then reported to South Hedland Adult Community Corrections on 4 November, unannounced, in person. He was advised that he would be seen shortly in person, noting another person had to be seen before him. Mr Lockyer was directed to wait in reception, had - and not to leave prior to an appointment being completed. He confirmed he would wait, however, left a short time later. Since this time he made no contact with our agency.
Mr Lockyer was then subject to conditional bail from 30 December until 24 January this year. Order conditions included that he report within 72 hours and obey all lawful and reasonable directions. This included urinalysis testing and counselling. He failed to report within 72 hours of his order imposition and made no contact with our office.
Home visits were conducted on 4 January, with no success, and on 11 January he was - contact was made with his grandmother, who advised that he had been taken to Yandeyarra approximately a week prior for law commitments. It could not be determined when he would be returning. However, on 17 January Mr Lockyer was sighted outside of work hours by our team leader and was encouraged to make contact with our office, however, failed to do so.
[50] Transcript of primary court dated 28 January 2022, 4 - 5.
The appellant's counsel submitted that the appellant did not have the capacity to comply with the order and contended that the magistrate should impose 'a straight term of imprisonment'. The magistrate responded to this submission as follows:[51]
I struggle a little to accept that he's simply unable to comprehend his way to report but at the same time he's able to carry out relatively complicated offences.
I struggle with the notion that he's able to come to court because he knows that's what he's supposed to do, but then he somehow lacks the capacity to understand he has got to stay in order for the matter to be resolved. I mean, he was given a last chance; he hasn't taken advantage of that and I struggle to see how incapacity - I mean, he simply doesn't understand, but on the other side of the equation he's able to commit offences that involved at least a degree of planning and assessment.
So, you know, if you get a conditional suspended sentence order, you've got to do it; if you don't, you go to jail, unless, obviously, it's an unfair result and I'm not persuaded that there's anything unfair about now activating that suspended sentence in circumstances in which the accused has just ignored it. You don't get rewarded for just ignoring your obligations to comply with court orders. So I'm going to deal with it by way of a term of imprisonment today.
[51] Transcript of primary court dated 28 January 2022, 8.
The magistrate concluded his dispositive observations as follows:[52]
The most recent aggravated burglary will be the head sentence so when ninth that I've - I'm making him serve every day of that eight-month term. Then, in terms of totality I'm going to make the other terms concurrent with the existing term, so I haven't allowed a discount as such for the fact that he hasn't engaged in further trouble, save for the breaches of those orders.
In my view, a failure to engage in those orders is not an insubstantial consideration either in the circumstances of this offending, but I have taken in - taken the absence of more substansive offences into account when I make Mr Lockyer serve all of those terms at the same time, rather than one after the other, so that's how I've applied the principles of totality to the overall sentencing exercise. The term of imprisonment starts from yesterday and I've also made Mr Lockyer eligible for parole for that (indistinct) be a relevant consideration.
[52] Transcript of primary court dated 28 January 2022, 10.
The appellant accepted that he carried a forensic onus to demonstrate that it would be unjust to require him to serve the term of imprisonment. The appellant sought to rely on the observations of the Court of Appeal in Dillon v The State of Western Australia:[53]
[T]he legislation also recognises that there are circumstances in which the courts should refrain from requiring service of suspended imprisonment. An obvious example would be where an offender, who has otherwise been of good behaviour and achieved rehabilitation, commits a relatively trivial offence at the end of the suspension period which, while punishable by imprisonment, does not warrant the imposition of a term of immediate imprisonment.
[53] Dillon v The State of Western Australia [2020] WASCA 24 [32].
The appellant relied also on the mitigatory factors I have identified at [50] above.
The appellant's counsel contended that the breaches of the supervision requirements and the breach of bail offence highlighted that the appellant was incapable of understanding the obligations imposed by the order. The appellant's counsel contended that the breach of bail and the breaches of the supervision requirements were not of themselves serious offending, and further that the offences were committed at the end of the period of suspension.
The respondent submitted that there is a clear legislative policy that, generally, a breach of a suspended sentence should result in the offender serving that sentence.[54]
[54] Dillion v The State of Western Australia [31].
The respondent distinguished the example cited by the appellant in Dillon v The State of Western Australia to the current case. The appellant was described by Ms Van Den Berg as someone who failed to comply with orders, subject to some very minor, sporadic compliance. The appellant also accepted that his performance of the orders from at least 17 August 2021 to 28 January 2022 was 'dismal'.[55]
[55] Appellant's submissions filed 14 April 2022 [68].
The appellant's contention that he was incapable of understanding the supervision requirements was raised with the magistrate who did not accept it for the reasons identified by him.[56]
[56] Transcript of primary court dated 28 January 2022, 8 - 9.
The respondent contended that regard must also be had to the appellant's antecedents and the need for personal deterrence and the protection of the community. The respondent contended that the appellant had not made out that the decision that the appellant should serve the term of imprisonment was not plainly unjust or unreasonable.
I do not accept that the appellant can be described as falling within the 'obvious example' category described by the Court of Appeal in Dillon v The State of Western Australia.
It is clear from the transcript of the hearing on 28 January 2022 that the magistrate had regard to all of the circumstances relevant to the value judgment that he was required to make including the appellant's overall performance under the terms of the order. There is nothing to suggest that the magistrate did not give proper consideration to the submission that the appellant was unable to comply with the supervision requirements. The weight given by the appellant's counsel in submissions to the appellant's deprived upbringing and to the psychological difficulties from which the appellant suffers is readily understandable. As I have stated earlier, I have no doubt that those are matters that led the magistrate to adopt a lenient approach to sentencing in August 2021. Ultimately the submissions made on the appellant's behalf are an invitation for this court sitting in an appellate capacity to reach a different conclusion from that of the magistrate. The appellant's submissions do not identify any error of principle that warrants appellate intervention nor am I persuaded that there are any circumstances that make the activation of the sentence of imprisonment plainly unreasonable or unjust.
Leave to appeal in respect of the amended ground 2 will be refused and the appeal will be dismissed.

Ground 3

Ground 3 was as follows.
3The learned sentencing Magistrate's decision on 28 January 2022 to order that the appellant serve [2] months' imprisonment pursuant to [s 133] of the Sentencing Act 1995 (WA) in respect of the [November 2020 aggravated home burglary offence] and the [February 2021 offence] was plainly unreasonable or unjust.
The appellant relies on the particulars in ground 2 with modification to particulars (a) and (c) to the extent that they reflect an unreasonable or unjust sentence under Sentencing Act 1995 (WA) [s 133].
As was pointed out in the respondent's written submissions this ground can only provide the appellant with any benefit if ground 2 succeeds because the magistrate ordered the two terms of imprisonment in respect of the November 2020 aggravated home burglary offence and the February 2021 offence to be served concurrently with one another and concurrently with the term of eight months imprisonment ordered to be served. As ground 2 has failed and the order to serve the term of eight months has not been disturbed on appeal, ground 3 is of no practical significance. Moreover, it is implicit in what I have said above about the operation of the proviso in respect of ground 1 that I do not accept that it was plainly unreasonable or unjust for the magistrate to have sentenced the appellant to terms of imprisonment of two months in respect of the November 2020 aggravated home burglary offence and the February 2021 offence.
Leave to appeal in respect of ground 3 will be refused and the appeal in respect of ground 3 be dismissed.

Conclusion

Leave to appeal in respect of ground 1 will be granted but the appeal in respect of that ground will be dismissed, leave to amend ground 2 will be granted but leave to appeal in respect of grounds 2 and 3 will be refused. The appeal will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
23 JUNE 2022