Masoud v Dhaliwal
[2019] WASC 56
•1 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MASOUD -v- DHALIWAL [2019] WASC 56
CORAM: TOTTLE J
HEARD: 20 FEBRUARY 2019
DELIVERED : 1 MARCH 2019
FILE NO/S: SJA 1124 of 2018
BETWEEN: ZAHID MASOUD
Appellant
AND
JASDEEP DHALIWAL
Respondent
ON APPEAL FROM:
For File No: SJA 1124 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE N J LEMMON
File Number : AR 10036 of 2018
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Miscarriage of justice - Where magistrate inadvertently led into error by counsel - Whether sentencing discretion miscarried
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14
Security and Related Activities (Control) Act 1996 (WA)
Security and Related Activities (Control) Regulations 1997 (WA)
Result:
Application for leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Watters |
| Respondent | : | Mr F Cardell-Oliver |
Solicitors:
| Appellant | : | Thexton Lawyers - Perth |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Bell v Carrier [2018] WASC 169
Bropho v Hall [2015] WASC 50
Director of Public Prosecutions v Fucile [2013] VSCA 312
Duncan v The State of Western Australia [2018] WASCA 154
Gaskell v The State of Western Australia [2018] WASCA 8
Pelemis v The State of Western Australia [2009] WASCA 151
Penny v The State of Western Australia [2016] WASCA 52
Powell v Tickner [2010] WASCA 224
R v Talia [2009] VSCA 260
Samuels v The State of Western Australia [2005] WASCA 193
Stark v Plant [2010] WASCA 74
The State of Western Australia v Egeland [2018] WASCA 228
TOTTLE J:
Introduction
On 21 September 2018 the appellant was convicted on his plea of one offence of assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code (WA). The relevant circumstance of aggravation was that the appellant and the victim, the appellant's wife, were in a family relationship. The magistrate imposed a fine of $1,200, ordered the appellant to pay costs of $107.50 and made a spent conviction order under s 45 of the Sentencing Act1995 (WA).
The appellant applies for leave to appeal against the imposition of the fine of $1,200. The ground of appeal reads as follows:
The sentencing discretion miscarried when his Honour was inadvertently led into error concerning the adverse impact to the appellant of the level of any financial penalty he imposed.
Particulars
A fine of less than $500 would not have infringed Section 24 of the Security and Related Activities (Control) Regulations 1997 (WA).
Counsel who appeared for the appellant on the application for leave to appeal did not appear before the magistrate.
The appellant supported his application with an affidavit sworn by him on 13 February 2019. In his affidavit the appellant explained the financial hardship that he and his family have suffered as a consequence of his being disqualified from holding a security officer's licence under the Security and Related Activities (Control) Act 1996 (WA).
I will grant leave to appeal but will dismiss the appeal for the reasons given below.
Factual background
The circumstances of the offence as described to the magistrate were as follows. On the evening of 4 August 2018 the appellant, his wife and their children, who were aged between one and eight years, were at home. The appellant and his wife were in the bedroom. An argument developed and it became heated. The appellant hit his wife with an open hand on the left side of her face, he then grabbed her by the throat with both hands, holding her for about five to six seconds until other family members intervened, at which point he let her go. Police officers came to the home and issued the appellant with a police order and he then left.
At the time the appellant committed the offence he held a security officer's licence. He worked as a security officer for three separate businesses. The licence was suspended on 29 August 2018. The appellant resigned from his principal employment before the sentencing hearing on 21 September 2018.[1]
[1] Appellant's affidavit sworn on 13 February 2019 [9].
The plea in mitigation
In the course of the plea in mitigation the appellant's counsel handed the magistrate a bundle of documents relied upon for mitigation purposes. The magistrate's attention was drawn to two matters relating to the appellant's employment. First, the magistrate was informed that the appellant had applied for a position with the Royal Australian Air Force as a part time 'airbase protection officer'. The appellant's counsel submitted, in effect, that unless the appellant remained 'conviction free',[2] that is, unless a spent conviction order was made, the air force application could not succeed. It appears from the magistrate's reasons for making a spent conviction order that his Honour accepted this submission and attached weight to it.
[2] ts 10.4.
The second matter to which the magistrate's attention was drawn was the fact that appellant's security licence had been suspended. On this subject the following exchanges took place between the magistrate and the appellant's counsel.[3]
[3] ts 5.2.
HIS HONOUR: Yes. All right. So, Mr Awada, just in relation to his security licence I notice that has been suspended.
AWADA, MR: That has, your Honour.
HIS HONOUR: And it says here that:
The suspension will remain in force until 14 days after the pending charge has been determined.
AWADA, MR: Yes, your Honour.
HIS HONOUR: So what happens to the suspension after that 14 days expires? I mean, the point, I guess, I'm trying to make is the letter - it doesn't sound like the licence has been permanently cancelled.
AWADA, MR: Not at all, your Honour. Not at all.
HIS HONOUR: No, it's just, what, further determination is given to the suitability for him to hold that?
AWADA, MR: That's correct, your Honour. That's correct.
HIS HONOUR: And that's looked at 14 days after the matter is dealt with? Is that - - -
AWADA, MR: That's correct. And your Honour's determination today will have, at the very least, the ongoing ramifications if he was to be convicted today.
HIS HONOUR: Yes. So I've read the stuff about the air force application. That's perhaps in a different category.
AWADA, MR: Indeed, your Honour.
HIS HONOUR: That communication seems to indicate that if the conviction is spent then the application can be pursued.
AWADA, MR: That's exactly it, your Honour.
HIS HONOUR: If I can put it that way.
AWADA, MR: That's exactly it, your Honour.
HIS HONOUR: But the security licence is in a different category, is it? It's really just a question of an assessment of character?
AWADA, MR: Indeed. Indeed.
HIS HONOUR: And the fact as to whether I make - even if I was to make a spent conviction order today, there may still be a decision not to, in effect, allow him to continue to hold that licence?
AWADA, MR: That's correct.
HIS HONOUR: Have I got that right?
AWADA, MR: That's correct, your Honour.
Following this exchange, there were further exchanges between the appellant's counsel and the magistrate about whether the appellant satisfied the criteria for the making of a spent conviction order. As a result of these exchanges it appears that the magistrate was led to believe that the appellant was still employed at his principal place of employment when this was not the case.
The magistrate's sentencing remarks
The magistrate's sentencing remarks were as follows:
The offence you committed is very serious. The courts have to send very strong messages to people who commit acts of violence in a domestic or family setting because it's very, very prevalent in our community. All right.
And it used to be something that wasn't treated very seriously, or not as seriously as it should have been, and there's now, I think, universal recognition that it must be dealt with very seriously. So that means that when people come before the courts for offences of this kind, even where they have no history of this type of offending, there has to be a very strong message sent to those people about the seriousness of this offending and that there will be serious consequences for it.
Now, in this particular case, there was, presumably, an argument involving your wife. You struck her to the face with your open hand and then you took her by the throat and you held her by the throat for a period of five to six seconds. That second part of the assault, I think, makes the assault very serious.
Having said that, aggravated common assault is a charge that I deal with frequently and it covers a very wide range of actions. In some cases I deal with quite sustained assaults, quite serious sustained assaults, that is, assaults that go on for some period of time. I accept that this was relatively fleeting. All right. It was, obviously, as a consequence of you losing your temper and behaving in the way that you did. So compared to other examples of aggravated common assault that the courts deal with on a regular basis, it's certainly not the most serious example and it's perhaps towards the lower end of the scale; towards the lower end of the scale, not at the lower end of the scale.
There are a number of things in your favour that I need to recognise here, most importantly, you've never been convicted of an offence of this kind before - in fact, any offence. You pleaded guilty at a very early stage. I accept that you feel very bad about what you did. It seems that your wife has largely forgiven you. All right. You've done some anger management courses which, obviously, are designed to ensure that this never happens again. Those things are all very much in your favour. I've read all the material from people who know you and they speak very highly of you. All right. So those things are all very important.
The maximum sentence for this offence, just so you have some understanding of how serious this is, the maximum sentence for aggravated common assault is three years imprisonment or a fine of $36,000. They are very significant penalties. All right. That's the maximum sentence available. I accept the submission made on your behalf, and it's not disputed by the prosecutor, that the appropriate penalty here is a fine. I don't think there's any necessity to look at any other type of penalty, but I repeat the maximum penalty in terms of a fine available is $36,000.
In this particular case, bearing in mind the inherent seriousness of the offence and the matters in mitigation that I've referred to - that is, the matters in your favour - in my view, the appropriate fine is one of $1200 and there's court costs that you must pay of $107.50.
The magistrate's reasons for making a spent conviction order
The magistrate's reasons for making a spent conviction order were as follows:
Now, I'm required, having announced that penalty, to consider the spent conviction application that's made on your behalf. I accept, as I said to your counsel, that you're a person of good character. I come to that conclusion because you've never been in trouble before and the people that know you well have spoken very highly of you.
I also accept that because you've never been in trouble before for this type of offence or, in fact, any other offence because you're genuinely remorseful, and you now I think have an appreciation of the seriousness of this offence, I accept that you're unlikely to commit this offence again or this type of offence again. What that means is you've met the legal test that would enable me to at least consider the making of a spent conviction order, that is, I can now exercise my discretion as to whether I grant or refuse the order.
Now, in simple terms, if I refuse to make a spent conviction order there is a real prospect that your current employment will be lost and there's another factor here which I think is very significant and that is that you have been attending [sic], I assume for some time now, to apply to be in the air force.
ACCUSED: Yes.
HIS HONOUR: And if I were to decline to make a spent conviction order, that pathway may well not be available to you. So, in other words, if I don't make a spent conviction order, there could be very serious consequences for you in terms of you pursuing employment and, by extension, your family - your immediate family and your extended family in Pakistan as well. So, in other words, if I decline to make a spent conviction order there could be very serious consequences for you and for others. And that includes, in fact, the complainant, the victim in this matter, your wife.
So they're factors which, in my view, are very important. I've taken into account that the prosecutor who has some knowledge of this matter is not opposing the making of a spent conviction order, and when all of those factors are looked at in combination, in my view, it's appropriate for me to make a spent conviction order and I make that order. All right.
The position in relation to the appellant's security licence was not, in fact, as represented by the appellant's counsel to the magistrate. The true position was that upon a finding of guilt of the offence the appellant would be automatically disqualified from holding a security officer's licence for a period of five years unless no penalty was imposed, or unless a fine of less than $500 was imposed.[4] The true position was not disclosed to the magistrate.
[4] The respondent stated the true position as follows: Offences against s 313 of the Code are Division 2 disqualifying offences and are subject to a five year disqualification from holding a security licence unless they are the first Division 2 offence committed and no penalty, or a penalty less than $500, is imposed: Security and Related Activities (Control) Regulations 1997 (WA) reg 25(2). Where there has been a conviction for a disqualifying offence, whether spent or not, a person becomes a 'prohibited person' for the relevant disqualifying period: Security and Related Activities (Control) Act 1996 (WA) s 4A(1) (definition 'prohibited person' by reference to a finding of guilt, not a conviction), 77A(1), 55(1)(b), 4(2)(b) (references to a conviction include a spent conviction). A prohibited person cannot be issued with or have their security licence renewed (Security and Related Activities (Control) Act 1996 (WA) ss 52, 55). The Commissioner must revoke all licences held by prohibited persons: Security and Related Activities (Control) Act 1996 (WA) s 67(1)(b).
The appellant's submissions
The appellant's submissions can be summarised as follows:
(a)The magistrate was 'erroneously led into error by the appellant's counsel with respect to the security licence' when counsel agreed with propositions articulated by the magistrate to the effect that a discretionary decision as to whether the appellant's security licence would be reinstated would be made after sentencing when in fact, if a fine of $500 or more was imposed then the licence would be revoked.
(b)The error was an express material error entitling this court to intervene and re-sentence because, when the true position concerning the security licence is understood, this court would conclude that a different sentence should be imposed, that is a fine of less than $500.[5]
(c)The appellant's counsel failed to make any submissions about the amount of the fine or the possible implications the imposition of a fine would have on the appellant's ability to continue to hold a security licence, and therefore the magistrate did not consider such implications.
(d)The sentence imposed would lead to a loss of employment with consequent hardship and a loss of financial security, an outcome the magistrate wished to avoid.
(e)The imposition of a fine in an amount of less than $500 would be within the range of an appropriate exercise of the sentencing discretion in the context of the circumstances of the offence and the relevant mitigating factors (being the appellant's age and evident remorse, the absence of any prior offending, and the fact that the appellant is the main financial provider for his family).
[5] Pelemis v The State of Western Australia [2009] WASCA 151 [4] (McLure JA).
During the course of the hearing counsel for the appellant contended that whilst being led into error in the manner described could constitute an error of fact as understood in the authorities, it might more appropriately be characterised as a miscarriage of justice.
The respondent's submissions
The respondent's submissions can be summarised as follows:
(a)There is a conceptual difficulty in arguing that an express error was made by the magistrate as his Honour never turned his mind to whether a fine of $1,200 would have the consequence that the appellant would be disqualified from holding a security officer's licence for a period of five years.
(b)In any event, that the appellant would be disqualified from holding a security officer's licence if a fine of $500 or more was imposed was a matter the magistrate was entitled - but not bound - to take into account. That consequence was not a mandatory relevant considerations and a failure by the magistrate to take it into account does not establish an appealable error where the matter was not drawn to the judge's attention.[6]
(c)The appellant is not seeking leniency in respect of the amount of the fine because of the loss of the security licence but to avoid that loss. In effect, he is seeking double mitigation.
(d)There was no obligation on the magistrate to take the disqualification from holding a security licence into account. It was a reasonable and expected consequence of the appellant's actions and therefore should not be given much weight in the exercise of the sentencing discretion.[7] This is especially so where there is a relationship between employment as a security officer, an occupation requiring self-restraint, and the appellant's actions, which demonstrated a lack of self-restraint in stressful circumstances against a victim in a vulnerable position.[8]
(e)The subsequent financial hardship faced by an offender's family resulting from a conviction is not a mitigating circumstance and is a matter which should only be considered in exceptional circumstances,[9] and the present case has no exceptional features.
(f)Even if an error can be made out, it would not have been a proper exercise of his Honour's discretion to impose a fine in an amount less than $500. Accordingly, there has been no substantial miscarriage of justice as the sentence imposed is consistent with the authorities.
[6] R v Talia [2009] VSCA 260 [28].
[7] Director of Public Prosecutions v Fucile [2013] VSCA 312 [111]
[8] R v Talia [2009] VSCA 260.
[9] Anderson v The State of Western Australia [No 3] [2014] WASCA 190 [96] - [97].
The approach to the grant of leave to appeal
Section 9(1) of the Criminal Appeals Act 2004 (WA) stipulates that leave to appeal is required for each ground of appeal. Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success,[10] meaning that the ground has a rational and logical prospect of succeeding.[11] The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal.[12]
[10] Criminal Appeals Act 2004 (WA) s 9(2).
[11] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[12] Criminal Appeals Act 2004 (WA) s 9(3).
Sentencing appeals - the legal principles
As was accepted by both parties, it is well established that an appellate court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[13] However, an appellate court may intervene where the appellant can establish that the primary judge made an express or implied material error of law or fact.[14]
[13] The State of Western Australia v Egeland [2018] WASCA 228 [56].
[14] Stark v Plant [2010] WASCA 74.
In The State of Western Australia v Egeland, the Court of Appeal stated:[15]
[46]In Kentwell v R, French CJ, Hayne, Bell and Keane JJ explained that when a sentencing judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination of the sentence, mistakes the facts or does not take into account some material consideration, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing judge's discretion has miscarried. It is the appellate court's duty to exercise the discretion afresh, subject to the applicable criminal appeals statute, the provisions of the applicable sentencing legislation and any other statute or rule of law, as required or permitted. Their Honours did not suggest that a sentencing judge's discretion will miscarry if the judge makes an 'immaterial' error of fact or law.
[15] The State of Western Australia v Egeland [2018] WASCA 228.
Even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[16] In Bell v Carrier,[17] Corboy J stated:
Accordingly, the fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh. Section 14(2) of the Criminal Appeals Act applies to sentencing appeals. In Wallam v Dent Jenkins J said:
'I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.' (citations omitted, emphasis supplied)
[16] Criminal Appeals Act 2004 (WA) s 14(2).
[17] Bell v Carrier [2018] WASC 169 [22].
In Powell v Tickner[18] Buss JA (as he then was) made observations to the same effect stating:
By s 14(2) of the Criminal Appeals Act, despite the magistrate's errors, Murray J was empowered to dismiss the respondent's appeal if he considered that no substantial miscarriage of justice had occurred. I consider that if, despite the magistrate's errors, a different sentence should not have been imposed, then no substantial miscarriage of justice, within s 14(2), would have occurred, and the respondent's appeal should have been dismissed.
[18] Powell v Tickner [2010] WASCA 224 [116].
Leave to appeal
In this case to say that the magistrate made an error is apt to distort what occurred in the sentencing process. That said, the magistrate was misinformed by the appellant's counsel about the operation of the Security and Related Activities (Control) Act 1996 (WA) and his Honour sentenced the appellant on the erroneous assumption that following the imposition of a sentence a discretionary decision would be made about the reinstatement of the appellant's security officer's licence. It is arguable that the magistrate made an error as to a future fact. As I explain below, even if it is assumed in the appellant's favour that an error was made, I am of the view that the appeal should be dismissed. I will proceed on the basis most favourable to the appellant, that is, I will assume, without deciding, that the learned magistrate made an error that entitled this court to reconsider the sentence and I will grant leave to appeal.
Disposition of the appeal
The appellant's focus in this appeal is on the financial hardship suffered by him and his family. Whilst that is understandable, it highlights the central and essential reason why the appeal must be dismissed. Focussing on financial hardship and its consequences elevates that consideration above all other relevant sentencing considerations. It may be a matter the magistrate was entitled to take into account but, as the cases establish, it was not the dominant consideration. To allow the appeal would elevate a sentencing consideration of limited weight into one of decisive significance.
I accept that the appellant is the primary financial provider for his family, and that the family is now experiencing financial hardship. The general principle, however, is that hardship to an offender's family is not a mitigating factor. In Anderson v Western Australia, [19] Mazza JA, with whom Hall J agreed, summarised the principles as follows:
The general principle is that hardship to an offender's family is not a mitigating circumstance. Imprisonment will, more often than not, cause hardship, sometimes serious hardship, to others. If hardship to others was routinely regarded as a mitigating factor, it would have a tendency to undermine the primary objective of sentencing, which is to impose a sentence commensurate with the seriousness of the offence. Moreover, to treat an offender who has dependents more leniently than one who does not has the tendency to defeat the appearance of justice and be patently unjust.
However, there are exceptional cases where family hardship may be mitigating. The threshold of exceptional circumstances is self-evidently very high. It has been said that it is 'extraordinarily difficult to satisfy'. As Wells J said in his frequently cited judgment in R v Wirth, the circumstances of hardship must be so exceptional that 'it would be, in effect, inhuman to refuse to [afford leniency]'. It cannot be overlooked that in all cases in which it is submitted that exceptional circumstances apply, the gravity of the offence must be considered. The more serious the offence, the less capacity the court has to mitigate punishment having regard to hardship to an offender's family. (citations omitted)
[19] Anderson v The State of Western Australia [No 3] [96] - [97].
Mazza JA's observations were made in the context of an appellant sentenced to a term of imprisonment but the observations are of general application.
In the context of this appeal it is important to emphasise two of Mazza JA's observations, first, that the primary objective of sentencing is to impose a sentence commensurate with the seriousness of the offence and, secondly, it is the exceptional case in which family hardship will be accepted as a mitigating factor.
The offence constituted domestic violence. The authorities make it clear that general and specific deterrence are important sentencing considerations in domestic violence cases because they contribute to the protection of vulnerable victims. In this respect, the observations of Mitchell J (as his Honour then was) in Bropho v Hall,[20] cited with approval by the Court of Appeal in Duncan v Western Australia, [21] merit repetition:
The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner. (footnote omitted)
[20] Bropho v Hall [2015] WASC 50 [16].
[21] Duncan v The State of Western Australia [2018] WASCA 154 [40].
The magistrate accepted that there were a number of mitigating circumstances that both favoured a lenient approach in sentencing and made it appropriate to grant a spent conviction order and no criticism is advanced, or could be advanced, of his Honour's approach. To reduce the fine imposed to less than $500 would, however, displace the primary sentencing consideration - that the sentence is commensurate with the seriousness of the offence - and the need for general deterrence in favour of the need to avoid financial hardship to the appellant and his family - a consideration that, in the context of established sentencing principles, is of much less significance.
There are other difficulties with the appellant's case.
First, as the respondent submitted, reducing the fine imposed on the appellant to below $500 would undermine the operation of the Security and Related Activities (Control) Act 1996 (WA). I accept that this is a case in which there is a connection between the offending and the appellant's occupation as a security officer. The offending demonstrated a lack of self-restraint whereas self-restraint is a quality that must be shown by those who act as security officers.
Secondly, there is force in the respondent's submission that the essence of the appellant's argument does not rest upon the proposition that the fine should be reduced because of the extra curial punishment constituted by the financial hardship consequent upon the loss of the appellant's security officer's licence but that the fine should be reduced to avoid that extra curial punishment with the result that the appellant is advantaged twice in terms of mitigation.
Thirdly, the maximum penalty for the offence of common assault in circumstances of aggravation is a fine of $36,000 or the imposition of a term of imprisonment for 3 years or both. I do not consider that a fine of less than $500 (in percentage terms less than 1.3% of the maximum fine) would constitute an appropriate sentencing disposition for the offence committed by the appellant. With respect, I agree with the magistrate's characterisation of the offence as 'towards the lower end of the scale, not at the lower end of the scale'. Though there is scope for significant variations in relevant sentencing factors and there is no single correct sentence for any offence,[22] in my view, a fine of less than $500 would not be commensurate with the seriousness of the offending in this case.
[22] Penny v The State of Western Australia [2016] WASCA 52 [18] (McLure P).
For the reasons given, even if it is assumed in the appellant's favour that the magistrate made an error, I am not satisfied that there has been any substantial miscarriage of justice and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle1 MARCH 2019
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