McKeagg v The Director of Public Prosecutions
[2021] WASC 457
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCKEAGG -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2021] WASC 457
CORAM: SOLOMON J
HEARD: 1 NOVEMBER 2021
DELIVERED : 15 DECEMBER 2021
FILE NO/S: SJA 1058 of 2021
BETWEEN: LANCE DEAN MCKEAGG
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
FILE NO/S: SJA 1059 of 2021
BETWEEN: LANCE DEAN MCKEAGG
Appellant
AND
WOOD
Respondent
Catchwords:
Criminal law - Appeal against sentences - Leave granted to appeal - Errors in sentence - Miscalculation of sentence - Error in taking account of irrelevant statutory provisions - Error in application of sentencing power under s 84F and s 88
Legislation:
Bail Act 1982 (WA), s 51(1), s 51(2a)
Criminal Appeals Act 2004 (WA), s 8(1)(b), s 9, s 10(3)
Criminal Code Act Compilation Act 1913 (WA), s 68(1), s 444(1)(b)
Restraining Orders Act 1997 (WA), s 10H, s 61(1), s 61A, s 61A(1)
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 84F, s 84F(5), s 86, s 86(a), s 88, s 89(1)
Weapons Act 1999 (WA), s 7(1)
Result:
Application for extension of time to appeal granted
Leave to appeal granted on ground 1 of SJA 1059 of 2021 and grounds 2 and 3 of SJA 1058 of 2021
Appeal allowed
Appellant resentenced
Category: B
Representation:
SJA 1058 of 2021
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
SJA 1059 of 2021
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Edgill v Maguire [2013] WASC 472
Neach v Hobbs [2021] WASC 135
Pryor v Loos [2021] WASC 403
Strahan v Brennan [2014] WASC 190
Western Australia v Paolucci [2020] WASCA 188
SOLOMON J:
This proceeding concerns two single judge appeals to the Supreme Court under Part 2 Division 2 of the Criminal Appeals Act 2004 (WA). On 3 September 2021, a registrar of the court ordered the two appeals to be heard at the same time. The appellant appeals against a sentence of imprisonment of seven months imposed in the Magistrates Court on 4 December 2020 (SJA 1059 of 2021) and against a sentence of imprisonment of 22 months imposed in the Magistrates Court on 9 July 2021 (SJA 1058 of 2021).
Extensions of time
Both applications were filed on 27 August 2021. Section 10(3) of the Criminal Appeals Act requires an appeal to be commenced within 28 days of the relevant decision, unless the Supreme Court orders otherwise. It follows that an order is required to permit the appellant to commence his appeals on 27 August 2021.
Ms Natalie Sinton, a solicitor with the Legal Aid Commission of Western Australia, who also appeared as counsel for the appellant on the appeal, affirmed an affidavit in support of the applications to extend time. Ms Sinton explained that it was only following the sentencing on 9 July 2021 that an application for Legal Aid was made. Various documents then had to be obtained and Ms Sinton was able to speak with the appellant by phone on 26 August 2021 to provide him with advice. It was only at that point that Ms Sinton received instructions to seek to appeal the prison sentences imposed on both 4 December 2020 and 9 July 2021. The applications were lodged the next day.
The respondent did not object to the orders sought.
In my view, the explanation for the delay is adequate. Moreover, as explained below, in my view the prison sentences imposed on the appellant on both 4 December 2020 and 9 July 2021 involved error.
In the circumstances, I have concluded that the interests of justice warrant an order permitting the appellant to commence the appeals the subject of the appeal notices dated 27 August 2021 in SJA 1059 of 2021 and SJA 1058 of 2021.
Leave to appeal
Section 9 of the Criminal Appeals Act also requires leave to appeal. I shall deal with the question of leave in respect of each ground as it is considered.
Background
There is some complexity to the background. The events of both 4 December 2020 and 9 July 2021 emanate to some degree from sentences of imprisonment imposed on the appellant but conditionally suspended on 17 July 2020. It is therefore necessary to understand the background to the sentences imposed on 17 July 2020.
On 14 September 2019, the appellant was served with a Family Violence Restraining Order (FVRO) preventing him from having any contact with a woman with whom the appellant had previously been in a relationship (the protected person) or entering or remaining upon her residence.[1] From October to November 2019, the appellant breached the FVRO by having contact with the protected person and attending her residence on five occasions over four separate days.
[1] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Joondalup, 2 January 2020, 5.
Two of those occasions occurred on 12 November 2019. On that same day, the appellant committed the offence of being armed with an offensive weapon or instrument in circumstances likely to cause fear, contrary to s 68(1) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) (the weapon charge). That offence carries a maximum term of seven years' imprisonment. The maximum summary conviction penalty is three years' imprisonment and a fine of $36,000. The victim of the weapon charge was the protected person.
On 2 January 2020, the appellant was sentenced by Magistrate Millington in the Magistrates Court at Joondalup for the five offences of breaching his FVRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA). On that occasion, the learned magistrate also dealt with a range of other offences committed by the appellant. He was fined for those other offences, which included (but were by no means limited to) two offences of breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA), and two offences of possessing a controlled weapon contrary to s 7(1) of the Weapons Act 1999 (WA).
During the sentencing on 2 January 2020, the appellant pleaded not guilty to the weapon charge and a trial date was set for 29 July 2020.[2] The appellant was granted bail for the weapon charge. Independently of the FVRO, it was a condition of bail that the appellant not have any contact with the protected person.
[2] ts 2 January 2020, 3, 9.
It was made clear to the appellant at the sentencing on 2 January 2020 that he was precluded from having any contact with the protected person.[3]
[3] ts 2 January 2020, 15.
The trial date of 29 July 2020 for the weapon charge was later adjourned to 10 February 2021, at which time the appellant pleaded guilty and was fined $500.[4]
[4] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Joondalup, 10 February 2020, 9, 17.
Subsequent to the sentencing of 2 January 2020, the appellant again breached the FVRO on three occasions, 16 January 2020, 1 February 2020 and 17 March 2020. The conduct on 1 February 2020 and 17 March 2020 also amounted to a breach of the protective bail conditions in respect of the weapon charge. The victim on all three occasions was the protected person. On the third occasion, that is on 17 March 2020, the appellant smashed the windscreen of a car in a driveway as an act of retribution.
On 17 July 2020, the appellant was sentenced in the Magistrates Court at Joondalup for the three offences of breaching the FVRO, for the two corresponding offences of breaching protective bail conditions contrary to s 51(2a) of the Bail Act, one offence of criminal damage in respect of the smashed windscreen contrary to s 444(1)(b) of the Criminal Code, and one offence of driving without authority contrary to s 49 of the Road Traffic Act 1974 (WA).
In the sentencing remarks of 17 July 2020, the learned magistrate characterised the appellant's conduct as a 'complete and contemptuous and ongoing disregard for both the family violence restraining order and the protective bail conditions'[5] and described the appellant as 'a repeat offender when it comes to breaching family violence restraining orders'.[6]
[5] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Joondalup, 17 July 2020, 3 - 4.
[6] ts 17 July 2020, 5.
The appellant was sentenced to a total of nine months' imprisonment, conditionally suspended for 12 months for the seven charges set out at para [19] below (suspended prison term). The transcript of the learned magistrate's sentencing records is as follows:
(a)the learned magistrate first stated: '[a]t the end of the day, I'm sentencing you to nine months, which I'm going to suspend for 12, with conditions';[7]
(b)the learned magistrate then went through each of the individual offences and imposed the relevant sentence and determined whether it would be served concurrently or cumulatively;[8] and
(c)the learned magistrate concluded: '[t]hat should be nine months by my reckoning, suspended for 12 months with conditions of supervision and programs'.[9]
[7] ts 17 July 2020, 6.
[8] ts 17 July 2020, 6 - 7.
[9] ts 17 July 2020, 7.
The respondent's written submissions helpfully set out the detail of the suspended prison term in a table form as follows:
Charge
Offence
Offence date
Penalty
JO 3030 of 2020
Breach FVRO
16 January 2020
3 months' imprisonment, concurrent
JO 3031 of 2020
Breach FVRO
1 February 2020
4 months' imprisonment, concurrent
JO 3032 of 2020
Breach PBCs
1 February 2020
4 months' imprisonment, concurrent
JO 3034 of 2020
No MDL
1 February 2020
2 months' imprisonment, cumulative 12-month licence disqualification
JO 3035 of 2020
Breach FVRO
17 March 2020
4 months' imprisonment, cumulative
JO 3036 of 2020
Breach PBCs
17 March 2020
4 months' imprisonment, concurrent
JO 3037 of 2020
Criminal damage
17 March 2020
3 months' imprisonment, cumulative
TOTAL TERM
9 months' imprisonment, conditionally suspended for 12 months
In sentencing, her Honour allowed a 25% discount for the appellant's plea of guilty,[10] applied s 61A of the Restraining Orders Act,[11] considered issues of totality in the structuring of the sentence,[12] and took into account the 115 days that the appellant had spent in custody leading up to 17 July 2020.[13] The learned magistrate noted that the period of custody had been continuous since 25 March 2020 and that 'there's a considerable reduction because of your time in custody'.[14]
SJA 1059 of 2021
[10] ts 17 July 2020, 5.
[11] ts 17 July 2020, 5.
[12] ts 17 July 2020, 5 - 6.
[13] ts 17 July 2020, 5.
[14] ts 17 July 2020, 6.
Subsequently, on 20 September 2020, and during the suspended prison term, the appellant committed one offence of stealing and one offence of using a false number plate.
It appears that by this time, the FVRO had been lifted and replaced with a conduct agreement order under s 10H of the Restraining Orders Act. The terms of the conduct agreement order did not emerge clearly on the materials before me. It appears that the order permitted some level of contact between the appellant and the protected person but certainly non-consensual, threatening or violent contact remained prohibited.
In any event, however, on 14 October 2020, the appellant's protective bail conditions in respect of the armed weapon charge were renewed. The renewed conditions maintained the prohibition on contact with the protected person by whatever means.
Subsequently, and again during the suspended prison term, the appellant committed a further breach of the protective bail conditions. The offence related to the failure to abide by the requirements of the bail undertaking on a single day, 11 November 2020, by attending the residence of the protected person, contacting the protected person in person and by mobile phone and by being in company with the protected person.
On 4 December 2020, the appellant was sentenced before his Honour Magistrate Walton in the Magistrates Court at Joondalup for the two offences of 20 September 2020 and the breach of protective bail conditions on 11 November 2020. The appellant pleaded guilty to all three offences.[15]
[15] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Joondalup, 4 December 2020, 2 - 3.
It was accepted by the appellant before Magistrate Walton and by his counsel in this appeal that the offence of 11 November 2020 was not an isolated occurrence. That is, although the offence related only to the events of 11 November 2020, for the purposes of sentencing it was accepted in the Magistrates Court and before this court on appeal that there had been additional breaches leading up to 11 November 2020. The offence carries a maximum penalty of a term of three years' imprisonment and/or a fine of $10,000.
It was accepted by the learned magistrate that the contact on 11 November 2020 with the protected person was consensual. The contact was not alleged to be violent or threatening. The appellant claimed he was under the misapprehension that he was permitted to have contact with the protected person. The misapprehension was said to arise from the lifting of the FVRO and its replacement by the conduct agreement order. The learned magistrate in effect rejected the appellant's contention that he believed he was permitted to be with the protected person.
In sentencing the appellant, the learned magistrate observed that the appellant's conduct reflected 'a continued approach by Mr McKeagg to simply ignore court orders, protective bail conditions and other orders... it's a consistent continuous thread... a refusal to follow those orders... a blanket refusal to follow those conditions'.[16]
[16] ts 4 December 2020, 15.
The learned magistrate imposed a term of seven months' imprisonment for the breach of protective bail conditions and 'by a very small margin' decided that the sentence should be suspended for 12 months.[17]
Grounds of appeal in SJA 1059 of 2021
[17] ts 4 December 2020, 16.
The appellant advances two grounds of appeal. By his first ground, the appellant contends that the learned magistrate erred by applying or having regard to s 61A of the Restraining Orders Act in sentencing the appellant.
In the course of his sentencing remarks, the learned magistrate made a number of express references to s 61A of the Restraining Orders Act.[18] That section requires the imposition of a sentence that is, or includes, imprisonment for offences of breaching a restraining order or police order. The section does not apply to an offence of breaching protective bail as a breach of protective bail conditions does not fall within the definition of a 'relevant offence' for the purposes of s 61A(1).
[18] ts 4 December 2020, 7, 13, 16.
The appellant submits that the learned magistrate's references to s 61A of the Restraining Orders Act demonstrates that his Honour erroneously took that provision into account in imposing the seven month prison sentence. The respondent conceded that the learned magistrate so erred.
In my respectful view, the appellant's contention is well made and the point is properly conceded by the respondent. The learned magistrate's comments must be read allowing for some inexactitude in analysis and expression. That is the invariable consequence of a busy court dispensing summary justice accompanied by ex tempore reasons.
As was pointed out by Martin CJ in Strahan v Brennan,[19] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.[20]
[19] Strahan v Brennan [2014] WASC 190.
[20] Strahan v Brennan [90].
But on any fair reading, it is not possible to escape the conclusion that the learned magistrate erred by taking account of s 61A of the Restraining Orders Act in exercising the sentencing discretion.
Accordingly, leave to appeal in respect of the appellant's first ground must be granted and the appellant's appeal in SJA 1059 of 2021 must be allowed, and the appellant resentenced in respect of the offence of breach of protective bail committed on 11 November 2020.
The appellant advances a further ground of appeal against the seven-month sentence of imprisonment imposed on 4 December 2020. The appellant contends that the term of seven months was in all the circumstances, manifestly excessive. In light of the conclusion I have reached, there is no need for the court to consider that second ground. Accordingly, leave is declined in respect of the second ground of SJA 1059 of 2021.
SJA 1058 of 2021
Subsequently, between the hearing in the Magistrates Court on 4 December 2020 and July 2021, the appellant committed further offences.
The appellant committed eight stealing offences (the more significant ones in April 2021) between 25 February 2021 and 11 May 2021.
On 9 May 2021, the appellant breached the conduct agreement order that had replaced the FVRO. For the purposes of the Restraining Orders Act, a conduct agreement order is taken to be a Family Violence Restraining Order.[21]
[21] Restraining Orders Act, s 10H.
As I have noted above, the precise terms of the conduct agreement order did not emerge at the hearing, however, it apparently did permit some consensual contact. Following some consensual contact on that same day 9 May 2021, the appellant attended the protected person's residence. She asked the appellant to leave thereby revoking any consent to the contact. The appellant became aggressive and forcibly removed a fly screen from the window. The appellant was then challenged by a male person inside the residence with a baseball bat while the protected person then left the residence and contacted the police. After some discussion between the appellant and the baseball-bat-bearing male, the appellant was allowed inside to collect his things and then left.
On 8 February 2021, the appellant failed to attend an appointment in breach of the conditions of the suspended prison sentence of 17 July 2020.
On 8 July 2021, before her Honour Magistrate De Maio in the Magistrates Court at Perth, the appellant pleaded guilty to the eight stealing offences, the breach of conditions of the suspended prison sentence and the breach of the conduct agreement order.
In respect of the breach of conditions of the suspended prison sentence, the information before the learned magistrate provided by the Judicial Support Officer, Ms Strezlenkiana, at the hearing of 8 July 2021, was that the appellant had missed appointments in December 2020 and in January and February 2021, and that after a letter was delivered to the appellant's residence, he had failed to make any further contact.[22]
[22] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Perth, 8 July 2021, 10.
Submissions were made on the appellant's behalf in mitigation that his phone had been stolen which hindered his ability to receive messages and make contact.[23] It was submitted on behalf of the appellant in mitigation in relation to the stealing offences that there was no intent to steal the radio devices and that the appellant's co-accused pressured him to commit the offences.[24]
[23] ts 8 July 2021, 15.
[24] ts 8 July 2021, 12.
In respect of the breach of the conduct agreement order, submissions in mitigation were made on behalf of the appellant, principally to the effect that the incident emanated from the protected person's initial consent and invitation for the appellant to be with her and that indeed the relationship was ongoing.[25] In addition, the incident did not involve any violence directed to the protected person and indeed the appellant had never engaged in violent behaviour directly with the protected person.[26]
[25] ts 8 July 2021, 12.
[26] ts 8 July 2021, 14.
The appellant was sentenced on 9 July 2021. The magistrate imposed a total term of immediate imprisonment of 22 months comprising:
(a)seven months, cumulative, being the term imposed by the learned magistrate (and suspended) on 4 December 2020 in respect of the breach of protective bail on 11 November 2020 and which I have found was the subject of error in SJA 1059 of 2021;
(b)for the seven charges set out in para [19] above, a total of 11 months' imprisonment being the term the learned magistrate understood had been imposed on 17 July 2020 and then suspended for 12 months but was now required to be served; and
(c)in effect, a further four months, cumulative, for the various stealing offences of April 2021 and the breach of the conduct agreement order in May 2021. The details of the sentences imposed by the learned magistrate in respect of those charges were as follows:
Charge
Offence
Offence date
Penalty
PE 20269 of 2021
Stealing
4 April 2021
2 months' imprisonment, concurrent
PE 20270 of 2021
Stealing
13 April 2021
2 months' imprisonment, concurrent
PE 20271 of 2021
Stealing
20 April 2021
2 months' imprisonment, cumulative
PE 20273 of 2021
Stealing
20 April 2021
2 months' imprisonment, concurrent
PE 20274 of 2021
Breach of violence restraining order
9 May 2021
2 months' imprisonment, cumulative[27]
[27] The appellant's History of Court, as provided to the court, incorrectly notes the sentences for PE 20269 of 2021 as cumulative and PE 20274 of 2021 as concurrent. The transcript of the learned magistrate's sentencing on 9 July 2021, at pages 5 and 7, shows PE 20269 of 2021 was concurrent and PE 20274 of 2021 was cumulative.
The appellant was also fined for the breach of the conditional suspended imprisonment order and for some of the stealing offences. The appellant only seeks to appeal the sentence of the total term of imprisonment and does not appeal, or otherwise assert error in respect to the fines or any of the individual sentences of imprisonment (other than the seven month sentence the subject of SJA 1059 of 2021 and the error in the total effective term of imprisonment imposed on 17 July 2020 as explained below at para [52]).
The appellant advances three grounds of appeal.
First, the appellant contends that the total effective sentence of 22 months' imprisonment offends the totality principle.
Secondly, the appellant contends that the erroneous sentence of seven months of 4 December 2020 has contributed to the total sentence, and if the sentence of 4 December 2020 is to be set aside, then its inclusion in the total effective sentence on 9 July 2021 has resulted in a miscarriage of justice and is thus a ground of appeal under s 8(1)(b) of the Criminal Appeals Act.
Thirdly, the appellant says that the learned magistrate based the 22 month sentence on the premise that the total effective suspended prison sentence was 11 months when in fact it was nine months. The magistrate thus erred in the exercise of the sentencing discretion.
In my view, for the reasons set out below, the second and third grounds of appeal must succeed, and it is therefore not necessary for the court to consider the first ground. Leave to appeal is therefore granted in respect of the second and third grounds but leave in respect of the first ground is declined.
As to the second ground, the respondent conceded that if the appellant is to be resentenced in SJA 1059 of 2021, then that 'must filter through the sentence imposed in respect of SJA 1058 of 2021'.[28] As set out below, the court's re-exercise of the sentencing discretion in respect of the offence the subject of SJA 1059 of 2021 has led to a different and a significantly lesser sentence. It follows in my view that it would amount to a miscarriage of justice to leave undisturbed the sentence of 22 months' imprisonment which is partially predicated on a sentence that is set aside by the court's orders and replaced with a lesser sentence.
[28] Respondent's Outline of Submissions, 29 September 2021 [28].
As to the third ground, the respondent has again conceded that the adoption of a term of 11 months instead of nine months' imprisonment was 'an express and material error'.[29] In my view, that concession was properly made.
[29] Respondent's Outline of Submissions, 29 September 2021 [30].
Counsel for the appellant submitted that the learned magistrate came to the total of 11 months by reference to the same individual sentences imposed on 17 July 2020 but by setting aside and making afresh different orders for cumulation and concurrency in respect of those sentences.[30] The appellant submitted that it was not open to the learned magistrate to do that in exercising the powers under s 84F of the Sentencing Act 1995 (WA) because the statutory power is only to require the person to serve the term of imprisonment that was suspended.[31] Perhaps put somewhat differently, the appellant contends that the powers under s 88 of the Sentencing Act in respect of the concurrency or otherwise of the relevant sentences was not available to the magistrate in exercising the power under s 84F of the Sentencing Act to order the person to serve the suspended term of imprisonment. Counsel for the respondent agreed the learned magistrate erred in that regard.
[30] Appellant's Additional Outline of Submissions, 13 October 2021 [6] - [7].
[31] Appellant's Additional Outline of Submissions, 13 October 2021 [9] - [11].
In Pryor v Loos, Corboy J recently considered s 84F of the Sentencing Act.[32] His Honour observed (with citations omitted):
An offender who must be dealt with under s 80 is not resentenced by the sentencing judicial officer. Rather, the judicial officer is required to 'deal with' the offender by one of the methods prescribed by s 80(1). As Buss JA observed in Dragon v The State of Western Australia:
The concluding words of s 84F(5) emphasise that a judge who is dealing with an offender under s 84F and orders the offender to serve a term, or part of a term, of imprisonment that was suspended, is not, in performing that function, imposing the term of imprisonment, or the relevant part of the term. The term of imprisonment, or the relevant part of the term, which is activated under s 84F remains part of the sentence imposed by the court which originally suspended it.
Accordingly:
a.The expressions 'a court that must deal with' and 'must deal with the person by one of these methods' in s 80 are mandatory.
b.In dealing with an offender under s 80, the court does not sentence or resentence the offender. Rather, the court 'deals with' the offender under s 80 in the circumstances to which the section refers.
c.The sentencing options identified in s 39 of the Sentencing Act do not apply; indeed, the balance of the Act does not apply except as expressly provided for by the Act. It is for that reason that s 80(5) expressly refers to and picks up ss 88 and 89 of the Act.[33]
[32] Pryor v Loos [2021] WASC 403.
[33] Pryor v Loos [17] - [18].
It is plain that under s 84F, the court's power is relevantly limited to ordering the offender to serve the term or terms that was or that were suspended, not a different term or terms. As Corboy J observed, s 84F(5) expressly picks up s 88 which confers the power to order that a term be served cumulatively on another term and provides that terms are otherwise to be served concurrently. A question arises as to whether in the exercise of the power under s 84F to serve a number of previously suspended terms, a sentencing judge or magistrate has power under s 88 to make fresh orders under s 88 so as to change the effective length of the term by providing for a greater 'accumulation' than was effected by the orders of the original judge when those terms were suspended.
I am inclined to the view that it is unlikely that the legislature intended that the power under s 84F extended to a re-exercise of the sentencing discretion so as to permit the altering of the effective total length of imprisonment. However, in my view, it is not necessary to resolve that point. That is because even if the power was available to the learned magistrate, her Honour did not so much as purport to exercise such a power. There is no indication from the transcript that the learned magistrate in requiring the appellant to serve the suspended term, re-exercised any powers under s 88. On the face of the transcript, the learned magistrate simply adopted the figure of 11 months observing that she had arrived at the figure 'by my calculation'.[34] The figure appears to be a plain error, not the product of a re-exercise of statutory power.
[34] Transcript, Western Australia Police v McKeagg, Magistrates Court of Western Australia at Perth, 9 July 2021, 7.
Counsel for the appellant advised that her understanding derived from the eCourts portal which provides a print-out of the outcome which shows that the cumulation and concurrency orders for the suspended prison sentence had been recalibrated.[35] That document was not before me. Moreover, in my view, it is an administrative tool produced by court staff and cannot effect a substantive change in a sentence. Such an outcome, even if permissible in the circumstances, could only be the product of an exercise of a statutory power. As I have already noted, the learned magistrate did not so much as purport to exercise such a power.
[35] Transcript, McKeagg v The Director of Public Prosecutions; McKeagg v Wood Supreme Court of Western Australia at Perth, 1 November 2021, 35.
In my respectful view, therefore the learned magistrate plainly erred by adopting a term of 11 months instead of nine months. Leave must be granted in respect of that ground and the appeal allowed.
It follows that the sentence of 22 months' imprisonment of 9 July 2021 reflects both a miscarriage of justice and error. In the circumstances, as I have already noted I need not consider whether the 22 months offended the totality principle.
Resentencing
In Western Australia v Paolucci, the Court of Appeal said:[36]
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced.[37]
[36] Western Australia v Paolucci [2020] WASCA 188.
[37] Western Australia v Paolucci [76].
In the circumstances, it falls to this court to re-exercise the sentencing discretion purportedly exercised by the learned magistrate on 4 December 2020 and 9 July 2021. That requires this court to deal with each of the elements of the sentence referred to in para [47] referred above, being:
(a)the breach of protective bail conditions on 11 November 2020;
(b)the suspended term of imprisonment, that is, for the seven offences dealt with by the learned magistrate on 17 July 2020 and set out in the table at para [19] above; and
(c)the additional offences of April and May 2021 referred to at para [47(c)] above.
Breach of protective bail 11 November 2020
As set out above, the appellant received a seven month suspended term of imprisonment, for the breach of protective bail conditions on 11 November 2020. If the appellant were being sentenced for that offence alone, s 86 of the Sentencing Act precludes a sentence of six months or less. If in those circumstances the court were to consider that a sentence of six months or less was warranted, it would not be open to the court to order a term of imprisonment. However, counsel for both parties agreed that by reason of s 86(a), if, in the exercise of its discretion the court considered that a lesser sentence was warranted, the court would in the present circumstances not be precluded from imposing a sentence less than six months if the court considered that the aggregate term for that offence and the other offences set out in para [47] above, exceeded six months.[38]
[38] ts 1 November 2021, 45 - 47.
As I have already observed, the offence carried a maximum penalty of three years' imprisonment and/or a fine of $10,000. The fact that the breach was in respect of a protective bail condition may justify a greater penalty. As noted by Hall J in Edgill v Maguire:[39]
Section 51(6) of the Bail Act provides that the maximum penalty for an offence under s 51(1) or s 51(2a) is $10,000 or a term of imprisonment not exceeding 3 years or both. Whilst failure to comply with a protective bail condition attracts the same maximum penalty as other breaches of bail, a breach of protective bail conditions may justify a higher penalty due to the particular circumstances.[40]
[39] Edgill v Maguire [2013] WASC 472.
[40] Edgill v Maguire [13].
Further, it is clear that the offence was not an isolated incident, but as the respondent submitted, it was somewhat representative of several instances of the appellant having been in contact with the protected person.[41]
[41] Respondent's Outline of Submissions, 29 September 2021 [21].
Moreover, as the learned magistrate observed, the offence reflected the appellant's continued approach towards ignoring, and indeed flouting court orders and protective bail conditions.[42]
[42] ts 4 December 2020, 15.
The learned magistrate rejected the appellant's contention that he was innocently mistaken about whether he was permitted to be with the protected person. Although the FVRO had been lifted, as recently as 14 October 2020 the appellant re-signed his bail undertaking, which as I have noted prevented any communication with the protected person by any means. The offence for which he was on bail carried a maximum term of seven years' imprisonment. The offence occurred against a backdrop of repeated breaches of FVRO and protective bail, all involving the same victim. In light of the appellant's fairly extensive criminal history, both general and personal deterrence are important sentencing considerations. That criminal history is replete with offences flouting court orders. In short, the appellant's criminal history discloses a history of non-compliance with court orders. As the appellant's counsel accepted, the offence was aggravated by having been committed during the currency of the suspended prison term imposed on 17 July 2020.[43]
[43] ts 1 November 2021, 12, 26.
At the same time, the particular offence was committed without violence or threatening conduct and indeed with the protected person's consent.[44] The offence was identified not through the protected person's complaint, but rather through the appellant's own admission while subsequently attending a police station in the company of his mother where he admitted to having been in the company of the protected person to report to the police in compliance with his bail conditions.[45] Viewed in isolation, the offence was at the lower end of seriousness.
[44] ts 4 December 2020, 14.
[45] ts 4 December 2020, 9.
Prior to sentencing, the appellant was in custody from 14 November 2020 to 4 December 2020, a period of 21 days. In addition, as the learned magistrate observed, the appellant is entitled to a 25% discount for his prompt plea of guilty.[46]
[46] ts 4 December 2020, 12.
In a recent decision, her Honour Archer J in Neach v Hobbs considered an appeal against a sentence for breach of protective bail conditions.[47] The offence in that matter was more serious; the offender argued with the protected person and chased her through Kalgoorlie's town centre. The offender was sentenced to six months and one day. Having found error, Archer J resentenced by the imposition of a fine of $300. Her Honour observed:
Neither side submitted that it is possible to discern a customary range of sentence for these types of offences. Offences of this type have attracted short terms of imprisonment, community-based orders and fines. The terms of imprisonment imposed in those cases to which my attention was drawn ranged from 1 month to 4 months. I am also aware of a case in which a 6-month term was not reduced on appeal.[48]
[47] Neach v Hobbs [2021] WASC 135.
[48] Neach v Hobbs [31].
The respondent accepted that 'it is evident from a review of the few decisions of the Court of Appeal concerning sentencing for breaches of protective bail, and from appeals to single judges of this court, that terms of no more than four to six months' immediate imprisonment have been imposed for breaches of protective bail conditions'.[49]
[49] Respondent's Outline of Submissions, 29 September 2021 [24].
In weighing up the various factors, it is plain that in light of the appellant's persistent breach of court orders, a sentence reflecting the need for personal deterrence is warranted. In the circumstances, a term of immediate imprisonment is the only appropriate sentence. Having considered the terms customarily imposed for such offences, the circumstances of the offence, the 21 days spent in custody as of 4 December 2020 and the appellant's plea of guilty, I would impose a term of three months' imprisonment.
Serving the term of imprisonment suspended on 17 July 2020
In respect of the term of imprisonment imposed and suspended on 17 July 2020, I shall adopt the remarks of the learned magistrate of 9 July 2021 other than the erroneous reference to 11 months rather than nine months. In light of the appellant's history of offending, to which I have already referred, I am satisfied that requiring the appellant to serve a sentence of immediate imprisonment is the only appropriate outcome. Pursuant to s 84F of the Sentencing Act, I shall order the appellant to serve the term of imprisonment imposed on 17 July 2020 as set out at para [19] above, being a total effective sentence of nine months. I observe that the term of nine months imposed by the learned magistrate on 17 July 2020 took account of the appellant's pleas of guilty and the 115 days spent in custody.
The additional offences of April and May 2021
The appellant does not complain in relation to the terms of immediate imprisonment set out in para [47(c)] above in respect of the offences committed in April and May of 2021. The appellant's counsel also accepted that the offences were committed during the currency and in breach of the suspended prison sentence of 4 December 2020.[50] That concession was made notwithstanding the prospect of that sentence being set aside, as the appellant accepted that it was not appropriate, and he did not seek, to have that sentence set aside ab initio.[51]
[50] ts 1 November 2021, 27 - 28.
[51] ts 1 November 2021, 37.
I shall adopt the observations and remarks of the learned magistrate on 9 July 2021 in respect of these offences, including the appellant's pleas of guilty and two months spent in custody on remand.[52] Having regard to all the circumstances, I shall impose the same sentences of immediate imprisonment as imposed by the learned magistrate of 9 July 2021. These are set out at para [47(c)] above.
Total sentence
[52] ts 9 July 2021, 5.
It follows from what I have set out above that the appellant's sentence shall comprise:
(a)three months, for the breach of protective bail condition of 11 November 2020 which shall be cumulative upon the sentences set out below;
(b)nine months, being the effective term imposed by the learned magistrate 17 July 2020 and then suspended for 12 months but is now required to be served cumulatively; and
(c)in effect a further four months, cumulative, for the various stealing offences of April 2021 and the breach of the conduct agreement order on 9 May 2021.
I am required to then consider whether the total sentence, which is now being imposed on the appellant at one time, offends the first limb of the totality principle. That is, I must consider whether the total sentence is just and appropriate in that it bears a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to all the circumstances. I am satisfied in light of the appellant's repeated conduct and the need for personal deterrence that the total effective sentence is appropriate. I reach that conclusion taking into account the time the appellant has already spent in custody being 115 days up to 17 July 2020 (which, as I have observed, the learned magistrate factored into her Honour's sentence of nine months), the 21 days up to 4 December 2020 and the 58 days up to 9 July 2021. I am also satisfied that the sentence in para [78] above should not be suspended and should be served immediately.
I shall sentence the appellant to 16 months' immediate imprisonment, backdated to 9 July 2021 as follows:
| Charge | Offence | Offence date | Penalty |
| JO 3030 of 2020 | Breach FVRO | 16 January 2020 | 3 months' imprisonment, concurrent (previously suspended) |
| JO 3031 of 2020 | Breach FVRO | 1 February 2020 | 4 months' imprisonment, concurrent (previously suspended) |
| JO 3032 of 2020 | Breach PBCs | 1 February 2020 | 4 months' imprisonment, concurrent (previously suspended) |
| JO 3034 of 2020 | No MDL | 1 February 2020 | 2 months' imprisonment, cumulative (previously suspended) |
| JO 3035 of 2020 | Breach FVRO | 17 March 2020 | 4 months' imprisonment, cumulative (previously suspended) |
| JO 3036 of 2020 | Breach PBCs | 17 March 2020 | 4 months' imprisonment, concurrent (previously suspended) |
| JO 3037 of 2020 | Crim. damage | 17 March 2020 | 3 months' imprisonment, cumulative (previously suspended) |
| PE 50963/20 | Breach protective bail | 11 November 2020 | 3 months' imprisonment, cumulative |
| PE 20269/21 | Stealing | 4 April 2021 | 2 months' imprisonment, concurrent |
| PE 20270/21 | Stealing | 13 April 2021 | 2 months' imprisonment, concurrent |
| PE 20271/21 | Stealing | 20 April 2021 | 2 months' imprisonment, cumulative |
| PE 20273/21 | Stealing | 20 April 2021 | 2 months' imprisonment, concurrent |
| PE 20274/21 | Breach of violence restraining order | 9 May 2021 | 2 months' imprisonment, cumulative |
I also make a parole eligibility order under s 89(1) of the Sentencing Act.
Orders
The sentences of 4 December 2020 and 9 July 2021 be set aside.
The appellant be sentenced to a total effective term of 16 months, backdated to 9 July 2021, with eligibility for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
15 DECEMBER 2021
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