McKenzie v Director of Public Prosecutions
[2024] WASC 435 (S)
•4 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCKENZIE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 435 (S)
CORAM: SEAWARD J
HEARD: 22 & 28 NOVEMBER 2024
DELIVERED : 28 NOVEMBER 2024
PUBLISHED : 4 DECEMBER 2024
FILE NO/S: SJA 1015 of 2024
BETWEEN: DAMION JAMES MCKENZIE
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE RIDLEY SM
File Number : KR 1000/2022
Catchwords:
Single judge appeal - Re-sentencing - Where conviction overturned on appeal - Whether discretion should be exercised to vary other sentences - Where further offences committed while appeal was pending - Where further offences were committed during the suspension period of a suspended imprisonment order - Whether other orders are required in relation to the sentences given for the further offences
Legislation:
Criminal Appeals Act 2004 (WA) s 14, s 40(1)(l), s 40(1)(m), s 41(2)
Result:
Power exercised under s 14 and s 40 to make further orders
Declined to exercise discretion under s 41(2) to vary other sentences
Category: B
Representation:
Counsel:
| Appellant | : | Ms E Zillessen |
| Respondent | : | Ms M L Wong |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1
Dreja v The State of Western Australia [2012] WASCA 151
Leighton v Nelson [2016] WASC 354
Mallard v Director of Public Prosecutions [2023] WASC 473
McKenzie v Director Public Prosecutions [2024] WASC 435
NSA v The State of Western Australia [2023] WASCA 53
Pryor v Loos [2021] WASC 403
Roberts v Spencer [2020] WASC 255
Sallie v Cursiter [2018] WASC 318
Yappo v The State of Western Australia [2021] WASCA 133 (S)
SEAWARD J:
This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations.)
Introduction
On 21 February 2024, Mr McKenzie received the following relevant sentences for the below convictions:
Charge
Sentence
KR 1000/2022: aggravated assault occasioning bodily harm
6 months' and 1 day imprisonment, suspended for 12 months
KR 1001/2022: aggravated common assault
6 months' imprisonment suspended for 12 months, to be served concurrently with KR 1000/2022
KR 70/2024: breach of bail
1 month imprisonment suspended for 12 months, to be served concurrently with KR 1000/2022
Total term of imprisonment: 6 months' and 1 day imprisonment, suspended for 12 months
Mr McKenzie then appealed his conviction in relation to charge KR 1000/2022, being the offence of aggravated assault occasioning bodily harm only (SJA 1015 of 2024, being the current appeal). I heard that appeal in July 2024 and delivered my reasons granting the appeal and setting aside his conviction for that charge on 22 November 2024: McKenzie v Director Public Prosecutions [2024] WASC 435 (Conviction Decision). These reasons should be read together with the Conviction Decision, and I adopt the same defined terms as used in the Conviction Decision.
In between hearing the appeal and delivering the Conviction Decision, on 28 October 2024 Mr McKenzie was convicted of two offences of breaching a family violence restraining order. One occurred on 15 August 2024 and one on 18 September 2024. These two offences were committed during the suspension period of the suspended imprisonment order imposed on 21 February 2024. These two offences therefore triggered the requirement to deal with Mr McKenzie for breaching the suspended imprisonment order imposed on 21 February 2024.[1]
[1] Sentencing Act 1995 (WA) s 78 and s 80.
Mr McKenzie was sentenced or otherwise dealt with as follows on 28 October 2024:
Charge
Sentence
KR 1000/2022: aggravated assault occasioning bodily harm
6 months' imprisonment
KR 1001/2022: aggravated common assault
6 months' imprisonment, to be served concurrently with KR 1000/2022
KR 70/2024: breach of bail
Fine of $500
BM 2609/2024: breach of family violence restraining order
3 months' imprisonment, to be served cumulatively with KR 1000/2022
BM 2610/2024: breach of family violence restraining order
3 months' imprisonment, to be served concurrently with KR 1000/2022
Total term: 9 months' imprisonment
It does not appear that on 28 October 2024, the magistrate was informed of the pending appeal.
On 22 November 2024, I made orders allowing the appeal and setting aside the conviction entered for KR 1000/2022. However, it was necessary to hear further from the parties and to give consideration to any other appropriate orders to be made as a consequence of the Conviction Decision and in relation to the other sentences imposed on 21 February 2024 and 28 October 2024. I adjourned the hearing to 28 November 2024 to enable those steps to take place.
Effect of the Conviction Decision on the other sentences imposed
The issue which arises at this stage is the effect of the Conviction Decision on the other sentences or orders imposed or made on 21 February 2024 and 28 October 2024.
The sentences for the other offences imposed on 21 February 2024 were for terms of imprisonment of six months or less. In accordance with s 86 of the Sentencing Act 1995 (WA) (Sentencing Act), sentences of this length could not have been imposed on Mr McKenzie unless, as occurred here, the aggregate of the term imposed and any other term or terms imposed is more than six months.
Accordingly, whilst it may have been lawful to impose the terms for the other two offences on 21 February 2024 at the time, given the existence at that time of the term of six months and one day imprisonment imposed for charge KR 1000/2022, absent that sentence, the remaining sentences imposed on their face are contrary to s 86 of the Sentencing Act as they are for a period of six months or less.
A similar issue arises on 28 October 2024 in relation to the decision to order Mr McKenzie to serve the six month term of imprisonment for charge KR 1001/2022 and the imposition of the other individual terms of imprisonment of less than six months for the remaining two charges.
The issue which arises is whether the decision to set aside the conviction for charge KR 1000/2022 impacts the other sentences; if so whether this court has the power to deal with the impact of setting aside the conviction on these other charges; and if so whether the court should address the sentences imposed on the other charges.
The parties have made written and oral submissions on this issue. Both parties submit that the court has the discretion to vary any other sentence or order which depended on the sentence for KR 1000/2022 under either the powers contained s 40 or s 41 of the Criminal Appeals Act 2004 (WA) (CA Act).
There is a dispute between the parties in their written submission as to the scope of the powers contained in s 14 of the CA Act, and their effect in the present case.
Nonetheless, by application dated 26 November 2024, Mr McKenzie also applied for leave to appeal and for an extension of time within which to appeal the sentences imposed on charges KR 1000/2022, KR 1001/2022, BM 2609/2024 and BM 2610/2024 on 28 October 2024 on the following grounds:
1. The individual sentence imposed on each charge is manifestly excessive because KR 1000/22 has been set aside pursuant to SJA 1015 of 2023 on 22nd November 2024 and imprisonment is not open for the other sentences when the youth and antecedents of the appellant and sentencing standards are taken into consideration.
2. There is a miscarriage of justice because the head sentence of 6 months 1 day falls away as a result of SJA 1015 of 2023 leaving a sentence of 6 months imprisonment which was previously expressed to be concurrent as a stand alone sentence arising from the breach of a suspended imprisonment order which does not by itself comply with s 86 of the Sentencing Act 1995 WA.
There is no appeal against conviction. This new appeal (SJA 1082 of 2024) was also listed before me on 28 November 2024. During oral submissions, counsel for Mr McKenzie clarified that this second appeal was only filed in case I were to form the view that I could not deal with the sentences on the remaining charges under the provisions of the CA Act in relation to the current appeal.
For the reasons set out below, I am of the view that I have the discretion to vary any of the sentences imposed on the other charges under the provisions of the CA Act absent a separate appeal in relation to those sentences being lodged. Accordingly, it was not necessary to deal with the application for leave to appeal in matter SJA 1082 of 2024.
The issues referred to in these supplementary reasons arose at short notice, became conceptually difficult, and required counsel for both parties to consider the issues and make submissions promptly. I thank counsel for attending to these matters at short notice and for their helpful submissions.
Effect of a decision setting aside a conviction or a sentence
The effect of an order setting aside a conviction on appeal was considered by Mitchell JA in Yappo v The State of Western Australia as follows:[2]
The effect of an order setting aside a conviction on appeal was described by the High Court in Commissioner for Railways (NSW) v Cavanough. The conviction is avoided ab initio. Acts done in execution of a judicial order based on the conviction are protected as acts done in the execution of justice. Proceedings which, although based on the judgment of conviction, are brought to completion before its reversal are not avoided. But upon the reversal of a judgment of conviction, the judgment, execution and all former proceedings thereby become absolutely null and void.
(citation omitted)
[2] Yappo v The State of Western Australia [2021] WASCA 133 (S) [7].
However, the effect of an order setting aside a sentence on appeal is different. As outlined in Dreja v The State of Western Australia by Pullin JA (with whom Newnes and Mazza JJA agreed):[3]
14Thus, in a case where under s 14(1) a judge on appeal sets aside a judgment of conviction, the order in context will mean that the judgment is set aside ab initio: see Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220; Lynch v Hargrave [1971] VR 99. This is because the order could have no effect other than to annul the conviction because the judgment of conviction was complete on the date it was made.
15 On the other hand, an order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order …
…
17… s 14(1) authorises the 'setting aside' of convictions as well as sentences. The meaning of the words may have the more 'drastic' meaning of set aside ab initio, but it will all depend upon what is express or implicit in the particular order made. As already explained, in the absence of any indication to the contrary, an order setting aside a sentence of suspended imprisonment is an order nullifying that sentence only from the date of the setting aside order.
[3] Dreja v The State of Western Australia [2012] WASCA 151.
Accordingly, whilst it is correct that upon an order setting aside a judgment of conviction the judgment and its execution become absolutely null and void, it is not necessarily the case the sentence imposed at the time of the conviction is also void ab initio in the same manner.
Statutory framework
Section 14(1) of the CA Act sets out the powers of a single judge in the General Division of this court hearing an appeal from a court of summary jurisdiction. Section 14(1) of the CA Act provides the single judge hearing the appeal with the following relevant powers:
In deciding an appeal, the Supreme Court may do one or more of the following —
…
(b) allow the appeal;
(c) set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court -
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
Section 14(4) of the CA Act provides:
On an appeal against a conviction, the Supreme Court may vary a decision of a court of summary jurisdiction or substitute another decision for it if there is some excess which may, consistently with the merits of the case the, be corrected.
Mr McKenzie submits that the powers referred to in s 14(1)(c) ‑ 14(1)(e) and s 14(4) of the CA Act are sufficiently broad to enable an appeal court, when hearing an appeal, to remit other charges to the Magistrates Court for re‑sentencing. It is not clear to me that this is correct. The powers contained in s 14 of the CA Act are concerned with the charge that is the subject of the appeal to the appeal court, and the section does not make reference to any other charges (or decisions) that are not the subject of the appeal.
However, s 14 of the CA Act is not the only source of the powers of a single judge of the General Division of this court when hearing an appeal under the CA Act.
Section 40(1)(l) and s 40(1)(m) of the CA Act provide as follows:
(1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
…
(l)exercise any power that the Supreme Court may exercise in a civil case;
(m)issue any warrant or document, and make any order, that is necessary to give effect to its decision on the appeal or that may be necessary as a result of the discontinuance or dismissal of the appeal;
The Supreme Court has under these sections the power to declare null and void an order that has been made in consequence of an order that is set aside on appeal under either s 40(1)(l) or s 40(1)(m) of the CA Act.[4]
[4] Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 [126(e)], [133]; Yappo v The State of Western Australia [2021] WASCA 133 (S) [10] - [11].
Accordingly, to the extent it is submitted that this court should, as a result of the decision to set aside the conviction for charge KR 1000/2022, vary any other order made as a consequence of that conviction, then I am of the view that the appropriate source of the power to do so in the present case is contained in s 40(1)(l) or s 40(1)(m) of the CA Act (as opposed to s 14 of the CA Act).
Section 41 of the CA Act is also relevant. Section 41 is headed 'Sentencing or re-sentencing on appeal' and relevantly provides that:
(1) If under this Act an appeal court decides to impose a sentence, it may do one or more of the following —
(a) order that the sentence is to be taken to have taken effect on a date before the date of the order;
(b) order that the sentence is to take effect on a date on or after the date of the order.
(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence —
(a) that was imposed at or after the time when sentence A was imposed; and
(b) that took into account sentence A.
(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following —
(a) vary the sentence as imposed;
(b) impose a different sentence involving a different sentencing option;
(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;
(d) order that the sentence is to take effect on a date on or after the date of the order.
(4) The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) —
(a) may take into account any matter, including any material change to the person’s circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b) despite paragraph (a), must not take into account the fact that the court’s decision may mean that the person is again sentenced for the offence.
(5) If an appeal court decides to impose a sentence, or vary a sentence already imposed, on a party, it may do so in the absence of the party, despite the Sentencing Act 1995 section 14.
By its terms, s 41(2) of the CA Act expressly empowers an appeal court to vary 'any other sentence'. Accordingly, to the extent it is submitted that this court should, as a result of the decision to set aside the conviction for charge KR 1000/2022, vary any other sentence, then I am of the view that the appropriate source of the power to do so in the present case is that contained in s 41(2) of the CA Act (as opposed to s 14 of the CA Act), provided all the requirements for the exercise of that power are met.
I will now proceed to consider each of the other charges and whether I should exercise any discretionary powers in relation to any of the sentences or orders made in relation to each.
Charge KR 1000/2022
On 22 November 2024, I made orders setting aside the conviction in relation to this charge. I indicated I would hear further from the parties as to whether any other orders should be made.
I consider it is appropriate in all the circumstances to make an order pursuant to s 14(1)(c) of the CA Act setting aside the sentence imposed for this charge on 21 February 2024. This is a necessary consequence of the order setting aside the conviction. However, given the sentence was one of suspended imprisonment with ongoing effect, it is not appropriate that it be set aside as at 21 February 2024. Rather, it is appropriate that it be set aside as at the date of the conviction being set aside, being 22 November 2024. This recognises that the sentence (and the associated warrant of commitment) provided a lawful basis for Mr McKenzie to be held in custody until it was set aside.
On 28 October 2024, the magistrate delt with Mr McKenzie under s 80 of the Sentencing Act by ordering Mr McKenzie to serve six months of the suspended term of imprisonment. The process undertaken by the magistrate on that day was not a sentencing or a re-sentencing.[5] Nonetheless, an order was made by the magistrate to deal with Mr McKenzie for breaching his suspended imprisonment order. As that conviction and suspended term of imprisonment have now been set aside, it is appropriate to make an order under s 40(1)(l) and/or s 40(1)(m) to set aside that order made on 28 October 2024.
[5] Pryor v Loos [2021] WASC 403 [17] ‑ [18].
Charge KR 1001/2022
Does s 41(2) of the CA Act apply?
I am satisfied that s 41(2) of the CA Act is engaged in relation to charge KR 1001/2022.
I have made an order setting aside the sentence imposed for charge KR 1000/2022 on 21 February 2024.
I am satisfied that the sentence imposed on 21 February 2024 for charge KR 1001/2022 is a sentence that 'took into account' the sentence imposed for KR 1000/2022. In NSA v The State of Western Australia,[6] the Court of Appeal held that the meaning of the phrase 'took into account' in s 41(2)(b) of the CA Act is not a technical term and the words bear their ordinary and natural meaning.[7] In this regard Vaughan JA held:[8]
A sentence (sentence X) will be one that 'took into account' another sentence (sentence A) where in imposing sentence X the sentencing court had regard to or gave consideration to sentence A. So understood the condition in s 41(2)(b) will invariably be satisfied where the outcome represented by sentence X was affected by sentence A; it may be, however, that sentence X took into account sentence A even if the sentencing outcome represented by sentence X was not affected by sentence A. The question whether sentence X took into account sentence A will be fact dependent. The answer will generally be self‑evident by an analysis of the sentencing remarks and the sentencing outcome.
[6] NSA v The State of Western Australia [2023] WASCA 53.
[7] NSA v The State of Western Australia [2023] WASCA 53 [139] (Vaughan JA).
[8] NSA v The State of Western Australia [2023] WASCA 53 [139] (Vaughan JA).
I am satisfied the sentence imposed on 21 February 2024 for charge KR 1001/2022 took into account the sentence of six months' and one day imprisonment imposed for KR 1000/2022, because the sentence was for a term of imprisonment of less than six months, suspended for 12 months. A sentence of this length could not be imposed under s 86 of the Sentencing Act absent the sentence for KR 1000/2022. The sentence was also ordered to be served concurrently with the sentence imposed for KR 1000/2022. Further, the offending for charge KR 1000/2022 and KR 1001/2022 arose out of the same set of facts and behaviour.
Accordingly, I accept that my discretion is enlivened under s 41(2) of the CA Act. It is however a discretionary power, and the question is whether I should exercise it in the present case.
By way of overview, Mr McKenzie submits that when all of the relevant circumstances are taken into consideration, including Mr McKenzie's youth and his lack of violent antecedents, it is not open for a sentencing court to find that a term of suspended imprisonment is open for KR 1001/22.
The respondent submits that the power of the court to vary a sentence under s 41(2) CA Act is not limited to giving effect to the intention of the original sentencing magistrate, but is instead a power to impose an appropriate sentence in all of the circumstances. On this approach, the respondent submits that it is open to this court to conclude that the appropriate sentence on charge KR 1001/22 was an immediate term of imprisonment.
Having carefully considered the parties' written and oral submissions and the materials before me, I decline to exercise my discretion to vary the sentence imposed for charge KR 1001/2022. My reasons for doing so are as follows.
Intervening steps
First, the sentence that was imposed was one of imprisonment for six months, suspended for 12 months. However, on 28 October 2024 Mr McKenzie was dealt with under s 80 of the Sentencing Act and ordered to serve the term of six months' imprisonment owing to him committing the breaching offences (being charges BM 26019/2024 and BM 2610/2024). That is, the sentence as imposed was executed and concluded prior to the Conviction Decision and the sentence for charge KR 1000/2022 being set aside. What is left is the decision to deal with Mr McKenzie under s 80 of the Sentencing Act on 28 October 2024. I have addressed this separately below.
Sentence within the appropriate sentencing range
Secondly, and in any event, I do not consider there is any miscarriage of justice in relation to the sentence imposed for charge KR 1001/2022 on 21 February 2024, in that I consider that the sentence imposed, being one of suspended imprisonment, was within the sentencing range. In reaching this conclusion, I have had regard to the seriousness of the offending behaviour, the maximum penalty, any comparable cases and the personal circumstances of Mr McKenzie.
The maximum penalty for the offence of unlawful assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code is three years' imprisonment and a fine of $36,000. The circumstance of aggravation being that Mr McKenzie and the victim were in a family relationship. The circumstance of aggravation mean that sentencing must take into account the need to protect persons in that vulnerable position by the imposition of sentences which bear a proper relationship to the overall criminality.
The relevant offending behaviour the subject of charge KR 1001/2022 is revealed from the statement of material facts, excluding those parts that relate to charge KR 1000/2022, as follows:
The accused is a 22 year old Aboriginal male who is of solid build and approximately 185 cm tall.
The victim is a 26 year old Aboriginal female who is of slim build and approximately 165 cm tall.
The accused and the victim have been in a domestic relationship for the past 12 months with no children.
On Saturday the 16th of July 2022, the victim and the accused had been drinking in company with other people since the afternoon.
At about 1:00am the accused was sitting in the driveway of [redacted], Kununurra in company with his brother.
The victim has woken up at a separate address about 70 meters away from where the accused was drinking.
The victim was upset and attended the address and walked up to the accused to convince him to stop drinking and come back to where they were both staying.
The accused and the victim had an argument where he told her to stay with the women who were present so that he could keep drinking with the men.
The victim has become extremely upset and left returning with a metal shovel hoping to persuade the accused to come back with her.
The accused and the victim left the front of [redacted] and walked toward Pandanus Avenue, Kununurra.
Two of the people with the couple were following the couple.
The victim still had in her possession the shovel but was not observed waving it towards the accused.
The accused and the victim started arguing which escalated to a physical fight.
…
The accused has continued to punch the victim in the face multiple times while she was lying on the ground causing an abrasion to her upper lip and facial swelling.
The circumstances of the offending were, in my view, objectively serious. Mr McKenzie was in a family relationship with the victim and the offence occurred at night, or the early hours of the morning when it was still dark. Mr McKenzie and the victim got into an argument which escalated. The victim then ended up on the ground and was injured. The victim was therefore in a very vulnerable position, regardless of what had occurred prior. Notwithstanding this, Mr McKenzie has continued to punch the victim twice in the head when she was lying injured on the ground. It was open to Mr McKenzie to walk away, but he did not. The situation would have been very frightening for the victim.
Mr McKenzie's counsel provided written submissions addressing Mr McKenzie's personal circumstances. I have had regard to those circumstances as detailed in those written submissions. I have not set those out in full in these reasons owing to the need to deal with this matter expeditiously, but have had regard to each of them.
Of particular significance is that Mr McKenzie was born in Kununurra on 18 June 2000 and he is now 24 years of age. Mr McKenzie is the eldest of seven children born to his parents and recalls his father going to prison for violence related offending against his mother when he was a child.
Mr McKenzie went to school in Kununurra until he was in year 10, after which he left home to live with an uncle in Darwin when he was 17 years old.
Mr McKenzie has never had a job or attended higher education or TAFE courses. Mr McKenzie is literate and can read and write.
Mr McKenzie does not have an extensive adult criminal record. The two assault charges (KR 1000/2022 which is now set aside, and KR 1001/2022) are the first adult violence charges. Mr McKenzie of course now has the two breaches of the family violence restraining order (BM 2609/2024 and BM 2610/2024). These sentences of imprisonment were the first sentences of imprisonment for Mr McKenzie as an adult. The remainder of the record is driving offences and breaches of bail. Mr McKenzie has a more extensive juvenile record. The majority of these offences are property related or breaches of supervision or community release orders.
Mr McKenzie did not plead guilty to charge KR 1001/2022 but rather was convicted under s 55 of the CA Act. The question of a discount does not arise.
However, what is of more significance is that since the date of the original sentencing, Mr McKenzie has also pleaded guilty to and been convicted of two charges of breaching the terms of a family violence restraining order, with a different intimate partner (BM 2609/2024 and BM 2610/2024). Mr McKenzie has made submissions as to the circumstances of these offences, but the fact of these offences identifies the need for specific deterrence.
I have also considered comparable cases. The circumstances under which a common assault, including an aggravated common assault, may occur can vary significantly. Accordingly, it is not possible to discern a customary range of sentences.[9]
[9] Mallard v Director of Public Prosecutions [2023] WASC 473 [61].
I have considered a number of cases, including Mallard v The Director of Public Prosecutions,[10] Sallie v Cursiter,[11] Roberts v Spencer,[12] and Leighton v Nelson[13] and the useful summary of cases contained therein.
[10] Mallard v Director of Public Prosecutions [2023] WASC 473.
[11] Sallie v Cursiter[2018] WASC 318.
[12] Roberts v Spencer [2020] WASC 255.
[13] Leighton v Nelson [2016] WASC 354.
Accepting the different facts in each case, I do not consider it can be said that the sentence imposed was sufficiently different to or outside the ranges imposed in these other cases and that a term of suspended imprisonment for this type of assault is not uncommon.
In these circumstances, notwithstanding Mr McKenzie's age and criminal record, I am of the view that a term of imprisonment of six months suspended for 12 months was an appropriate exercise of the sentencing discretion for offending of this nature. I do accept that a term of immediate imprisonment was appropriate, but that was not what was ordered. Therefore, I am satisfied that the sentence of imprisonment of six months suspended was at least an appropriate exercise of the sentencing discretion. I therefore decline to exercise my discretion to vary the sentence imposed for KR 1001/2022 under s 41(2) of the Sentencing Act.
It is next necessary for me to consider whether it is necessary to vary the sentence to increase it from six months, to six months and one day. I do not consider it is necessary to do that in the circumstances of this case for two reasons.
First, the sentence was lawful when made, and it was lawful when it was dealt with on 28 October 2024. The Conviction Decision was not made until after these dates, and the decision to set aside the sentence, and the date for which it should be set aside, is also after these dates.
Secondly, I have had regard to s 80(1)(b) of the Sentencing Act, which deals with how a court deals with an offender if they have breached a term of suspended imprisonment. Under this section, unless an order under this paragraph, or paragraph (a), has already been made, the court may order that the person serve part of the term or terms of imprisonment that were suspended, even if the period to be served is six months or less.
In this case, because the term of imprisonment ordered to be served on that date was six months, I do not consider it contrary to the provisions of the Sentencing Act. Therefore, it is not necessary, in my view, to vary the sentence as imposed on 21 February 2024 to increase it from six months to six months and one day. The position may of course have been different if there had, as at today's date, been no breach of the terms of the suspended imprisonment order. In that circumstance, regard may have been needed to have taken place in relation to whether any amendment was required.
Charge KR 70/2024
I am satisfied that s 41(2) of the CA Act is engaged in relation to charge KR 70/2024 for the same reasons as for charge KR 1001/2022.
However, I do not consider it appropriate to exercise my discretion to re‑sentence Mr McKenzie in relation to charge KR 70/2024. When Mr McKenzie was dealt with under s 80 of the Sentencing Act for this offence on 28 October 2024, he was not ordered to serve the suspended term of imprisonment, but rather was given a fine of $500. Any re‑sentencing of Mr McKenzie for this offence would be unlikely to result in any less severe sentence. I therefore decline to exercise my discretion to re-sentence Mr McKenzie for this offence under s 41(2) of the CA Act or make any other orders in relation to this offence under s 40(1) of the CA Act.
Charges BM 2609/2024 and BM 2610/2024
I am satisfied that s 41(2) of the CA Act is engaged in relation to charges BM 2609/2024 and BM 2610/2024.
Whilst these sentences were not imposed until 28 October 2024, they were done so in circumstances where the magistrate was dealing with Mr McKenzie for the Kununurra charges under s 80 of the Sentencing Act and in circumstances where the sentences were ordered to be served concurrently or cumulatively on charge KR 1000/2022.
However, in circumstances where I am not varying the sentence imposed for charge KR 1001/2022, and therefore Mr McKenzie is still required to serve the term of suspended imprisonment, and was still to serve it on 28 October 2024, I do not consider it to be appropriate to exercise my discretion to vary either of those charges.
In relation to these charges, Mr McKenzie made the submission that if the court maintains the previous suspended imprisonment order, then any sentence imposed for the subsequent breach of the family violence restraining order should be made concurrent with that existing triggered sentence, rather than cumulative to reflect the change in circumstances. However, I do not consider the change in circumstances, being the Conviction Decision and the decision to set aside the sentence for KR 1000/2022, and there being no change to the sentence for charge KR 1001/2022, to be a sufficient reason to vary the sentence for these charges under s 41(2) of the CA Act.
There is no change to the underlying circumstances surrounding charges BM 2609/2024 and BM 2610/2024 in terms of the nature of the offending, especially the circumstances of offending arising in circumstances which result in the breach of a suspended imprisonment order.
In those circumstances, I decline to exercise my discretion to vary the sentences imposed in relation to these charges.
Other matters concerning the orders made on 28 October 2024
I also consider that it is appropriate to exercise my discretion under s 40(1)(l) and s 40(1)(m) of the CA Act and make some amendments to the orders which are necessary to give effect to the Conviction Decision and the decision to set aside the sentence for charge KR 1000/2022, and to ensure that there is clarity for the relevant authorities regarding the remaining sentences.
Those amendments are to specify that the head sentence is now charge KR 1001/2022 and to remove the order that the sentence for charge KR 1001/2022 be served concurrently with the sentence for charge KR 1000/2022. Rather, the sentence for charge BM 2609/2024 should now be served concurrently on charge KR 1001/2022 and the sentence for charge BM 2610/2024 should be served cumulatively on charge KR 1001/2022.
Pre-sentence Report
For completeness, I also note that I had before me a pre-sentence report prepared on 3 October 2023. The report outlined Mr McKenzie's history as at that date, and stated that Mr McKenzie's offending behaviour appears to be underpinned by poor decision making, coping, impulsivity and lack of consequential thinking; family and domestic violence behaviours; and pro-criminal attitudes and alcohol use. There was no dispute about those matters.
That written report outlines that Mr McKenzie was willing to be supervised in the community and engaged in the necessary intervention and comply with any requirements. The report indicated that Mr McKenzie was an appropriate candidate for community‑based sanction with supervision and programme requirements to address his outstanding criminogenic needs. The report indicated that Mr McKenzie's offending behaviour appears to be underpinned by poor decision making, coping, impulsivity and lack of consequential thinking; family and domestic violence behaviours; and pro‑criminal attitudes and alcohol use. The written report outlined that if a community‑based sentence was imposed, Mr McKenzie would be referred for substance abuse counselling. Whilst noting that Mr McKenzie would benefit from engaging in family and domestic violence intervention, the written report notes that engagement within Kununurra is limited. By that, I understand that there are presently no such services available in Kununurra.
As counsel for Mr McKenzie had proposed in her written submissions that I may consider imposing an intensive supervision order in relation to the sentences for charges BM 2609/2024 and BM 2610/2024, I arranged for an oral update to that pre‑sentence report. That occurred during the hearing. It was clear that the community corrections officer appearing to give the oral report did not completely agree with the recommendations in the written pre-sentence report. The community corrections officer considered Mr McKenzie's history of or disposition towards domestic violence and violence to be significant, and based that assessment on police incident reports. The community corrections officer also considered that as Mr McKenzie would live in Molly Springs aboriginal community, and did not have a driver's licence, there were concerns about supervision and engagement of Mr McKenzie. The community corrections officer also confirmed that there were no domestic violence programmes available in Kununurra.
To the extent that the basis of the oral opinion was police incident reports, I observe that there have been no convictions for any such incidents. I therefore have based my consideration today on the criminal record only. The police incident reports are not matters that are before me, or that Mr McKenzie has had an opportunity to consider or respond to, and as I have indicated, there were no convictions in relation to any such incidents.
It is, however, accepted by Mr McKenzie that he has drug (cannabis) and alcohol dependency issues and family and domestic violence behaviours.
It is of course entirely unacceptable and unhelpful that sufficient services have not been made available in Kununurra to address domestic and family violence issues for offenders. Such services should, as far as possible, be provided. They are essential to the operation of the criminal justice system, as is envisaged under the Sentencing Act.
I had regard to the written pre‑sentence report in reaching my conclusion as to whether I should exercise my discretion under s 41(2) of the CA Act to vary the sentences imposed on Mr McKenzie. Notwithstanding it indicating that Mr McKenzie was an appropriate candidate for a community based sanction, given all the other information before me, including Mr McKenzie's conduct after the imposition of the sentence, I have formed the opinion that the sentence imposed was not inappropriate, and therefore I would not exercise my discretion to vary the sentence in KR 1001/2022.
Orders
For the above reasons, I made the following orders:
1.The sentence for charge KR 1000/2022 imposed on 21 February 2024 is set aside as at 22 November 2024.
2.The order made on charge KR 1000/2022 on 28 October 2024 that the appellant serve a term of six months' imprisonment is set aside as at 22 November 2024.
3.Charge KR 1000/2022 be remitted to the Kununurra Magistrates Court at 10.00 am on 13 December 2024, differently constituted, to be determined according to law.
4.The orders made on 28 October 2024 be amended so as to:
(a)set aside the order that the sentence for KR 1001/2022 be served concurrently with the sentence for KR 1000/2022;
(b)make the sentence imposed on KR 1001/2022 the head sentence;
(c)order that the sentence for BM 2609 /2024 be served concurrently with the sentence for KR 1001/2022;
(d)order that the sentence for BM 2610/2024 be served cumulatively with the sentence for KR 1001/2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Honourable Justice Seaward
4 DECEMBER 2024
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