Narrier v Director of Public Prosecutions

Case •

[2024] WASC 480

•

17 DECEMBER 2024

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NARRIER -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 480

CORAM:   MCGRATH J

HEARD:   8 NOVEMBER 2024

DELIVERED          :   17 DECEMBER 2024

FILE NO/S:   SJA 1043 of 2024

BETWEEN:   CANDICE LEE NARRIER

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

FILE NO/S:   SJA 1044 of 2024

BETWEEN:   CANDICE LEE NARRIER

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ON APPEAL FROM:

For File No:   SJA 1043 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE S M DE MAIO

File Number            :   JO 2716-2719/2022, JO 5678-5679/2022, JO 6172-6173/2022, PE 23003-23007/22, PE 23009-23012/2022, PE 24035-24039/2022, PE 24041-24043/2022, PE 30648-30656, PE 37257-37270/2022, PE 41282-41287/2022, PE 58383/2022, PE 58385/2022, PE 1825-1833/2023, PE 42580-42588/2023

For File No:   SJA 1044 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE S M DE MAIO

File Number            :   JO 2716-2719/2022, JO 5678-5679/2022, JO 6172-6173/2022, PE 23003-23007/22, PE 23009-23012/2022, PE 24035-24039/2022, PE 24041-24043/2022, PE 30648-30656, PE 37257-37270/2022, PE 41282-41287/2022


Catchwords:

Criminal law - Stealing from the person of another - Breach of conditional suspended imprisonment - Whether imprisonment open for the offence - Proper construction of s 426(4) of Criminal Code (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

SJA 1044 of 2024

Leave to appeal granted
Appeal allowed
Terms of imprisonment of 8 months conditionally suspended imposed on charges JO 2716-2719/2022 by Magistrate De Maio set aside and terms of imprisonment of 2 months conditionally suspended imposed on charges JO 2716-2719/2022 in lieu thereof

SJA 1043 of 2024

Leave to appeal not granted on grounds 1, 2, 3 and 4

Appeal dismissed

Category:    B

Representation:

SJA 1043 of 2024

Counsel:

Appellant : Ms S H King
Respondent : Ms M L Wong

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

SJA 1044 of 2024

Counsel:

Appellant : Ms S H King
Respondent : Ms M L Wong

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

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

BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234

Borsa v The Queen [2003] WASCA 254

Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220

Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139

Dreja v The State of Western Australia [2012] WASCA 151

Dukes v Barrett [2001] WASCA 338

Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd (2007) 230 CLR [135]; [2007] HCA 22

Fripp v Carter [2012] WASC 288

Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504

Gibson v The State of Western Australia [2017] WASCA 141

Gillespie v The State of Western Australia [2016] WASCA 216

Hancock v Prison Commissioners [1960] 1 QB 117

Kuhnert v Fyneman [2015] WASC 257

Liberti v The Queen (1991) 55 A Crim R 120

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

R v Delk (1999) 46 NSWLR 340

R v Stewart [1929] SASR 500

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Snook v The State of Western Australia [No 2] [2015] WASCA 29

SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214

Vella v The State of Western Australia [2006] WASCA 129

Wolfenden v Brigden [2013] WASC 461

Woods v Kingsbury [2019] WASC 336

Wright v McMurchy [2012] WASCA 257

MCGRATH J:

Introduction

  1. The appellant brings two separate appeals arising from orders made by three different magistrates. The appellant appeals her convictions, upon her own pleas, of two charges of stealing from the person of another contrary to s 378(5)(a) of the Criminal Code (WA), and also appeals various sentences imposed by two different magistrates. It is necessary that the procedural history be outlined to understand the grounds of appeal.

Magistrate Court proceedings

  1. On 13 June 2022, the appellant pleaded guilty to nine charges before Magistrate Coleman in the Perth Magistrates Court.[1]  The particularisation of each charge and the sentences imposed by Magistrate Coleman are outlined in Annexure A to this judgment.

    [1] ts 3 ‑ 5 (13/06/2022).

  2. Relevantly, Magistrate Coleman imposed a conditionally suspended imprisonment order (CSIO), being a 2‑month term of imprisonment suspended for 12 months in respect to each of the four charges of gaining a benefit by fraud contrary to s 409(1)(c) of the Criminal Code.[2]  The total term of imprisonment was therefore 8 months, suspended conditionally for 12 months.  The conditions imposed on the terms of imprisonment comprised program requirements and being subject to supervision by a community corrections officer.[3]  Her Honour imposed fines in respect to the other five charges.  The four charges of gaining a benefit by fraud involved the appellant receiving amounts of $86.00, $80.00, $80.00 and $39.95 respectively.

    [2] Charges JO 2716‑2719/2022.

    [3] ts 12 (13/06/2024).

  3. On 3 November 2022, the appellant appeared before Magistrate De Maio in the Perth Magistrates Court and pleaded guilty to 57 new charges and consequently, to being in breach of the CSIO imposed on 13 June 2022 for the four charges of gaining a benefit by fraud. The offences comprised, in part, 47 charges of gaining, or attempting to gain, a benefit by fraud contrary to s 409(1)(c) of the Criminal Code.  The offending in each case involved the appellant using stolen credit cards to make 'tap and go' purchases of less than $100 from retailers.  The offending occurred between April and July 2022.  

  4. The particularisation of the 57 new charges and the sentences imposed are outlined in Annexure A.  Relevantly, in respect to the 57 new charges, Magistrate De Maio imposed a CSIO on 50 of the new charges and fines on the remaining seven new charges. 

  5. Magistrate De Maio then resentenced the appellant in respect to the four breach charges of gaining a benefit by fraud by setting aside the respective terms of imprisonment of 2 months imposed by Magistrate Coleman and increasing the respective individual terms to 8 months' imprisonment, conditionally suspended.  The respective individual terms of 8 months' imprisonment imposed on the four charges of gaining a benefit by fraud were made wholly concurrent.  The terms of imprisonment were structured to make the total effective term 20 months' imprisonment, suspended for 18 months.[4] 

    [4] ts 18 - 22 (03/11/2022).

  6. On 18 January 2024, the appellant appeared before Magistrate Lyons in the Perth Magistrates Court and pleaded guilty to a further 23 new charges.  Consequently, the appellant breached the CSIO imposed on 3 November 2022 by Magistrate De Maio in respect to the four charges of gaining a benefit by fraud, and the 50 other charges. 

  7. On 6 February 2024, Magistrate Lyons heard the prosecution facts and the plea in mitigation.  The sentencing hearing was adjourned to 26 February 2024.

  8. On 26 February 2024, Magistrate Lyons delivered his sentencing remarks and imposed sentence.  The particularisation of each of the 77 charges and the sentences imposed by Magistrate Lyons are outlined in Annexure A.  Relevantly, Magistrate Lyons imposed a 1‑month term of immediate imprisonment in respect to each of the four breach charges of gaining a benefit by fraud, and terms of immediate imprisonment of 1 or 2 months in respect to the charges subject to breach proceedings of the CSIO imposed by Magistrate De Maio.  In respect to the 23 new charges, Magistrate Lyons imposed a term of 10 months' immediate imprisonment in respect to 20 charges and fines in respect to three charges.  Magistrate Lyons structured the sentence so that the total effective term of immediate imprisonment was 1 year 4 months.[5] 

    [5] ts 4 ‑ 9 (26/02/2024).

  9. In imposing that term of imprisonment, Magistrate Lyons took into account the 531 days that the appellant had spent in custody in respect to the offences.  His Honour determined that it would be unjust to order that the appellant serve the entire term of the CSIO, being 20 months, and ordered the term imposed was to be 6 months.  Magistrate Lyons ordered that the terms of imprisonment of 4 months imposed in respect to the two charges of stealing from the person of another (charges PE 42587/2023 and PE 42588/2023) be served cumulatively on the 6‑month term.[6]

    [6] ts 8 (26/02/2024).

Appeal

  1. The notice of appeal in respect to appeal SJA 1044/2024, which concerns Magistrate De Maio's orders, provides:

    1.The learned sentencing Magistrate erred in law in resentencing the appellant in relation to offences for which she was subject to a conditionally suspended imprisonment order that had been breached, an option that is not available under the Sentencing Act 1995.

  2. The notice of appeal in respect to appeal SJA 1043/2024, which concerns the orders of Magistrate Lyons, provides:

    1.There was a miscarriage of justice in that the appellant pleaded guilty to PE 42588/2023 stealing from the person of another, an offence for which she was not guilty.

    2.There was a miscarriage of justice in the court ordering that the appellant serve the sentences of imprisonment that were imposed on 3 November 2022 contrary to the provisions of the Sentencing Act 1995.

    3.On the agreed facts, the appellant cannot be guilty at law of the offence PE 42587/2023, of stealing from the person of another.

    4.Sentences of imprisonment were not open to be imposed on offences PE 42587/2023 and PE 42588/2023.

  3. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[7]  An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[8]

    [7] Criminal Appeals Act 2004 (WA), s 9(1).

    [8] Criminal Appeals Act, s 8.

  4. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[9] 

    [9] Criminal Appeals Act, s 9(2); Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

  5. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[10]

    [10] Criminal Appeals Act, s 14.

  6. In considering the grounds of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[11]

    [11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

SJA 1044/2024

Ground 1 (SJA 1044/2024)

  1. I now turn to ground 1 in appeal SJA 1044/2024, being the contention that the learned Magistrate erred in law in resentencing the appellant in relation to offences for which she was subject to a CSIO that had been breached, being an option that was not available under the Sentencing Act 1995 (WA).

  2. This appeal concerns the sentence imposed by Magistrate De Maio on 3 November 2022. Her Honour sentenced the appellant in respect to 57 new charges and consequently, resentenced the appellant in respect of being in breach of the CSIO imposed by Magistrate Coleman. As noted, Magistrate Coleman imposed a CSIO comprising a 2‑month term of imprisonment suspended for 12 months in respect to each of the four charges of gaining a benefit by fraud contrary to s 409(1)(c) of the Criminal Code.  Magistrate Coleman structured the sentence with the total effective term of imprisonment being 8 months conditionally suspended. 

  3. In respect to the four charges of gaining a benefit by fraud, Magistrate De Maio imposed terms of imprisonment of 8 months conditionally suspended on each of the four charges of gaining a benefit by fraud, and thereby increased the terms of 2 months imposed on each charge.  Magistrate De Maio ordered that each of the four terms of 8 months' conditionally suspended imprisonment be served wholly concurrent and thereby, the total effective term of imprisonment was 8 months.  The appellant contends that the learned Magistrate thereby erred in law.  The respondent concedes the ground of appeal.

  4. Section 84F of the Sentencing Act relevantly provides as follows:

    (1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of CSI, a court that must deal with the person under this section must deal with the person by one of the following methods -

    (a)unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

    (b)unless an order under this paragraph, paragraph (a) or section 84L(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

    (c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

    (d)it may fine the person not more than $6 000 and make no order in respect of the CSI.

    (2)The powers in subsection (1) may be exercised as often as is necessary.

    (3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the CSI was imposed.

    (4)If a court does not make an order under subsection (1)(a) it must give written reasons for not doing so.

  5. The options available under s 84F do not include the imposition of a different term of imprisonment for the offences that are subject to the breached CSIO. In respect to each option available to the learned Magistrate under s 84F of the Sentencing Act, the originally imposed CSIO remains the applicable term of imprisonment, though it may be varied depending upon which specific order is made.  This position was confirmed in Woods v Kingsbury.[12]

    [12] Woods v Kingsbury [2019] WASC 336 [38] ‑ [39].

  6. Magistrate De Maio, in resentencing the appellant for the four breach offences, stated that the appropriate sentence was imprisonment suspended with conditions.  Her Honour then stated as follows:[13]

    So I've lumped them into two.  That eight months that you've got, may I actually - because there are so many charges, I'm just going to lump it into one of eight months.  And all of those charges that around April and May, I'm going to just give them eight months each.

    All of the ones after that, all of the June and July ones, they're 12 months.  So the head sentence is the last imprisonment order.  That should have been the wakeup call.  That's the chance.  That was on 13 June and then just, like, a few days later, you're back doing the same stuff.  So I've picked the last one to be the head sentence, so that's 37269.  So that's eight months plus 12 months; 20 months.  I'm going to suspend that for 18 months with conditions, supervision and programs, because you need the help.  Right.

    [13] ts 21 (03/11/2022).

  7. Counsel for the appellant submits that Magistrate De Maio's 'clear intention' was to allow the appellant to be released on a further CSIO but erroneously increased the terms of imprisonment on the four fraud charges.  The appellant submits that the appeal should be allowed and that she should be sentenced according to law.[14]

    [14] Appellant's written submissions, [15] ‑ [16].

  8. The respondent submits that Magistrate De Maio 'plainly intended' to release the appellant in respect to the four charges by substituting a new suspension period of 18 months pursuant to s 84F(1)(c). The respondent correctly observes that Magistrate Coleman imposed a total effective term of imprisonment conditionally suspended for 8 months and Magistrate De Maio also imposed a total effective term of imprisonment conditionally suspended for 8 months. Counsel for the appellant submitted that the appeal should be allowed and that the court should substitute the decision that should have been made by the court of summary jurisdiction, namely that the terms of imprisonment be suspended for a period of 18 months.[15] 

    [15] Criminal Appeals Act, s 14(1)(d).

  9. It is plain that Magistrate De Maio intended to impose the same term of imprisonment in respect to the four charges of gaining a benefit that was imposed by Magistrate Coleman, but extend the period of suspension. This required Magistrate De Maio to substitute a new suspension period of 18 months in respect of the CSIO imposed by Magistrate Coleman pursuant to s 84(1)(c) of the Sentencing Act.

  10. Accordingly, the learned Magistrate erred in law by purporting to resentence the appellant to an increased term of imprisonment of 8 months for each of the four charges to be served concurrently.  I grant leave to appeal on the ground in SJA 1044 of 2024, the ground is made out and the appeal is allowed.  I substitute the decision that should have been made by Magistrate De Maio by setting aside the length of the terms of imprisonment of 8 months conditionally suspended on each of the four charges and substituting terms of imprisonment of 2 months conditionally suspended, which are the terms of imprisonment imposed by Magistrate Coleman.  The period of suspension on conditions remains the same as imposed by Magistrate De Maio, being 20 months. 

SJA 1043/2024

Ground 2 (SJA 1043/2024)

  1. By ground 2 in appeal SJA 1043 of 2024, the appellant contends that there has been a miscarriage of justice in that Magistrate Lyons imposed terms of imprisonment in breach of the impugned CSIO imposed by Magistrate De Maio.  I have outlined the factual basis for this ground when considering appeal SJA 1044 of 2024.  I note that Magistrate Lyons imposed the terms of imprisonment conditionally suspended by Magistrate De Maio, but made the terms wholly concurrent with the terms of imprisonment imposed for the other separate new charges.  Therefore, the terms of imprisonment imposed concurrently for the breach of the CSIO did not increase the total effective term of imprisonment imposed.  

  2. The appellant's contention is that the sentence imposed by Magistrate Lyons for the four charges of gaining a benefit by fraud cannot stand because the CSIO that the appellant breached was itself erroneously imposed.  

  3. The issue raised by this ground of appeal is whether the impugned CSIO imposed by Magistrate De Maio is void ab initio.  In Dreja v The State of Western Australia,[16] the Court of Appeal considered whether imposing a fine as a result of a breach of a suspended imprisonment order could stand in circumstances where the suspended sentence was subsequently set aside on appeal.  The Court of Appeal stated that an order on appeal setting aside the suspended imprisonment order was not an order that made the suspended sentence void ab initio.  The Court of Appeal stated:[17]

    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.  In Hancock v Prison Commissioners [1960] 1 QB 117 the court had to consider the effect of an order made under s 4(3) of the Criminal Appeal Act 1907 (UK) which relevantly provided:

    'On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence.'

    This provision does not correspond in its conferral of power with s 14(1) of the Criminal Appeals Act (WA). The latter section authorises the court to set aside sentences of imprisonment but it also authorises the appeal court to set aside convictions. The words 'set aside' cannot therefore be read to mean only to set aside prospectively.

    [16] Dreja v The State of Western Australia [2012] WASCA 151.

    [17] Dreja v The State of Western Australia [15].

  1. The Court of Appeal stated that 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.[18]  Similarly, in Commissioner of Railways (NSW) v Cavanough,[19] the High Court confirmed the principle that a conviction quashed is voided ab initio and is the same as no judgment.  However, acts done according to a judicial order later reversed are protected as they are done in the 'execution of justice' and are not unlawful.

    [18] Dreja v The State of Western Australia [15].

    [19] Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220.

  2. Accordingly, having found that Magistrate De Maio erred in law by increasing the terms of imprisonment from 2 months on each of the four charges to 8 months, I have ordered that the terms of imprisonment are set aside and in lieu thereof, terms of imprisonment of 2 months are imposed.  The CSIO imposed by Magistrate De Maio was not voided ab initio.  The terms of imprisonment of 1 month subsequently imposed by Magistrate Lyons on the four charges of gaining a benefit by fraud need not be disturbed. 

  3. Therefore, leave to appeal is not granted on ground 2 in SJA 1043 of 2024.

Grounds 1 & 3 (SJA 1043/2024)

Legal principles of setting aside a plea of guilty

  1. Grounds 1 and 3 of SJA 1043 of 2024 contend that the appellant could not, in law, have been guilty of charges PE 42587/2023 and PE 42588/2023, being offences of stealing from the person of another contrary to s 378(5)(a) of the Criminal Code.

  2. On 6 February 2022, the appellant pleaded guilty to both charges. 

  3. Section 8(2) of the Criminal Appeals Act provides that an appeal may be commenced against a decision 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'.  An appellate court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[20]

    [20] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Gibson v The State of Western Australia [2017] WASCA 141.

  4. Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty, namely:[21]

    1.where the appellant did not understand the nature of the charge or did not intend to admit guilt;

    2.if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or

    3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.

    [21] Vella v The State of Western Australia [2006] WASCA 129 [26]; Gillespie v The State of Western Australia [2016] WASCA 216 [34] ‑ [35]; Borsa v The Queen [2003] WASCA 254 [20].

  5. A court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection'.[22]  This is all the more so when the offender has had the benefit of legal advice.[23]  There is a distinction between legal advice and improper pressure.  A legal practitioner who provides reasoned advice does so properly to assist the client to make the voluntary decision as to whether they will plead guilty.

    [22] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104]; Liberti v The Queen (1991) 55 A Crim R 120, 122.

    [23] Wright v McMurchy [2012] WASCA 257.

  6. It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty.[24]  That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt.  A person may plead guilty for many reasons, for example to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty.[25]

Assessment of grounds 1 & 3

[24] Meissner v The Queen (141, 157); Gillespie v The State of Western Australia [34].

[25] Meissner v The Queen (157); Snook v The State of Western Australia [No 2] [106].

  1. The contention of the appellant is that upon the facts, to which she pleaded guilty, she could not, as a matter of law, have been guilty of stealing from the person of another. The appellant accepts that the facts establish stealing contrary to s 378 of the Criminal Code, but not stealing from the person of another.

  2. The facts in relation to both offences involve the appellant taking the complainant's property, not directly from the complainant's body, but from the apparatus that the complainant was using whilst shopping in a public place. 

  3. Charge PE 42587/2023 concerned the appellant taking the complainant's purse out of her handbag whilst the bag was draped over a rollator being pushed by her.  The facts upon which the appellant pleaded guilty to charge PE 42587/2023 are as follows:[26]

    At approximately 3.30 pm, 17 August 2023, the accused was at Dianella Plaza Shopping Centre in Dianella.  At the time the victim was shopping in Woolworths and had her handbag draped over the rollator.  The accused, having observed the victim doing her shopping, noticed that the victim's handbag was open and her purse was visible.  When the victim was unaware, the accused took the purse out from her handbag. 

    The victim was unaware that her purse had been stolen prior to going to pay for her groceries.  When she went to pay she advised the store that her purse was missing.  Due to being unable to pay for her shopping, Woolworths gave her the groceries for free and arranged for her to get a lift home.

    [26] ts 5 (06/02/2024).

  4. Charge PE 42588/2023 involved the appellant taking the victim's bumbag, which the victim had placed in his shopping trolley, which he was pushing.  The facts upon which the appellant pleaded guilty to charge PE 42588/2023 are as follows:[27]

    Charge 42588, stealing from the person of another.  The victim in this matter is a male, is 77 years of age with limited mobility.  At approximately 11.50 pm, 24 August, the accused was at the Morley Galleria Shopping Centre in Morley.  At the time the victim was shopping in Woolworths and had his bumbag inside the shopping trolley.  The accused, having observed the victim doing his shopping, noticed that the victim's bumbag within the shopping trolley.  When the victim was unaware, the accused took the bumbag from out of the trolley and ran away. 

    The victim was unaware that this item - the bumbag had been stolen, and when he observed it, managed to use a member of staff's mobile phone to contact his wife so that all the credit cards containing within that item could be cancelled.  Contained within the bumbag was two mobile phones, various banks and membership cards, along with house and vehicle keys. 

    [27] ts 6 (06/02/2024).

  5. The appellant's submission is that stealing property of another when the particularised property was inside a trolley or a rollator being pushed by the complainant does not constitute stealing from the person of another.[28]  The respondent's submission is that the appellant, upon the admitted facts, could have been guilty of the offence, and therefore, the plea should not be set aside.

    [28] Appellant's written submissions, [22].

  6. The meaning of the words 'stealing from the person of another' was considered by the Full Court of South Australia in R v Stewart,[29] and subsequently by the New South Wales Court of Appeal in R v Delk.[30] 

    [29] R v Stewart [1929] SASR 500.

    [30] R v Delk (1999) 46 NSWLR 340.

  7. In R v Delk the Court of Appeal of NSW considered the offences of robbery and stealing from the person in the Crimes Act1900 (NSW). Section 94 and s 95 of the Crimes Act (NSW) provided as follows:

    94  Robbery or stealing from the person

    Whosever -

    (a)robs or assaults with intent to rob any person, or

    (b)steals any chattel, money, or valuable security from the person of another

    shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years.

    95  Same in circumstances of aggravation

    (1)Whosever robs or assaults with intent to rob any person, or steals any chattel, money or valuable security from the person of another in circumstances of aggravation, shall be liable to penal servitude for twenty years.

  8. In R v Delk, the offender contended on appeal that the ordinary and natural meaning of the words 'steals from the person' is that the items stolen must be held by the person, for example a handbag or a wallet in a pocket.[31] 

    [31] R v Delk.

  9. The Court of Appeal of NSW rejected that contention, accepting the reasoning of the Full Court of South Australia in R v Stewart that for the purpose of the statutory offence of stealing from the person, a taking in the person's presence was sufficient.  In R v Stewart a bank teller was sorting notes on the counter in front of him when the accused entered the bank.  The teller placed the notes on a shelf under the counter.  The subsequent taking of those notes was held to constitute 'stealing from the person'.

  10. The Court of Appeal of NSW in R v Delk held that the offence of stealing from the person of another includes the taking of goods in the possession, care, custodianship and immediate presence of the victim.  The Court of Appeal of NSW observed that there are policy reasons for having a separate offence of stealing from the person of another in such circumstances, being that the taking of goods from a person or from his immediate presence when he has sufficient possession and care of it invites a personal confrontation and steps in prevention, which will often involve breaches of the peace in the struggle which ensues.[32]

    [32] R v Delk [21].

  11. The Court of Appeal of NSW stated that whilst it was unnecessary to elaborate on what satisfies the requirement of the person's immediate presence, 'it certainly embraces a case such as this where the victim is standing beside the property and guarding it'.[33]  It is a question for the trier of fact, whether a jury or judicial officer, to decide whether the victim was sufficiently the custodian of the stolen property and had sufficient possession and care of it to constitute the stealing as being in his presence.

    [33] R v Delk [15].

  12. The appellant submitted that R v Delk concerned a provision in NSW that dealt with both robbery and stealing from the person of another and that s 378(5)(a) of the Criminal Code only concerned stealing from the person of another.  There is no merit in that contention.  The historical relationship with the two offences was considered in both R v Stewart and R v Delk. The Court of Appeal of NSW observed that robbery is generally defined as 'stealing from the person with violence or threat of violence'. Stealing from the person (as provided by s 94 of the Crimes Act (NSW) can be defined as 'robbery without violence or threat of violence', but both offences involve the concept of stealing from the person and, when looked at in the context of the legislation, the words 'stealing from the person' has the same meaning in both contexts, that is taking something that is on the person of the victim or in their presence and control.[34]

    [34] R v Delk [30].

  13. Turning to the facts upon which the appellant was convicted, I am satisfied that the appellant stole property from another in the possession, care, custodianship and immediate presence of the respective victims.  In respect to charge PE 42587/2023, the victim had her handbag draped over the rollator that she was pushing whilst shopping.  In respect to charge PE 42588/2023, the complainant had his bumbag inside a shopping trolley, which he had possession of.

  14. I am satisfied that the appellant, upon the facts to which she pleaded guilty, could, as a matter of law, have been guilty of stealing from the person of another.  Therefore, leave to appeal is not granted on grounds of appeal 1 and 3 in SJA 1043 of 2024.

Ground 4 (SJA 1043/2024)

  1. By ground 4 the appellant contends that a term of imprisonment was not available to Magistrate Lyons in respect of charges PE 42587/2023 and PE 42588/2023, being the two charges of stealing from the person of another.  The gravamen of this ground is that the statutory penalty for the offence of stealing from the person of another in circumstances where the value of the property in question does not exceed $1,000, is a fine of $6,000 and that imprisonment is not prescribed.  The respondent accepts that the value of the property in question in the respective charges does not exceed $1,000.

  2. The ground requires a consideration of s 378 and s 426 of the Criminal Code, which are the two relevant provisions that provide the statutory framework for the applicable penalties for the various offences of stealing.

  3. Section 378 of the Criminal Code provides as follows:

    378.Penalty for stealing

    Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.

    Alternative offence: s. 382, 383, 388, 390A, 409, 414, 417 or 429.

    Punishment in special cases

    (1)If the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender is liable to imprisonment for 10 years.

    (2)If the thing stolen is a motor vehicle and the offender -

    (a)wilfully drives the motor vehicle in a manner that constitutes an offence under the Road Traffic Act 1974 section 60 or 60A; or

    (b)drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving), the offender is liable to imprisonment for 8 years.

    [(3), (4) deleted]

    (4a)If the thing stolen is an aircraft the offender is liable to imprisonment for 10 years.

    (5)If the offence is committed under any of the circumstances following, that is to say -

    (a)If the thing is stolen from the person of another;

    (b)If the thing is stolen in a dwelling, and its value exceeds $10 000, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling;

    (c)If the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another;

    (d)If the thing is stolen from a vessel which is in distress or wrecked or stranded;

    (e)If the thing is stolen from a public office in which it is deposited or kept;

    (f)If the offender, in order to commit the offence, opens any locked room, box, or other receptacle by means of a key or other instrument;

    (g)If the thing stolen is a firearm as defined in the Firearms Act 1973 section 4;

    the offender is liable to imprisonment for 14 years.

  4. Section 426 of the Criminal Code provides as follows:

    426.Summary conviction penalty for certain stealing and like offences

    (1)Subsection (2) applies to the following indictable offences -

    (a)an offence under section 378, 382, 383 or 388 in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;

    (b)an offence under section 378 to which Item (5)(a), (6), or (7) of that section applies;

    [(c)deleted]

    (d)attempting to commit, or inciting another person to commit any of the offences mentioned in paragraph (a) or (b);

    (e)receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.

    (2)Summary conviction penalty: for an offence to which this subsection applies where the value of the property in question does not exceed $50 000, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.

    (3)Summary conviction penalty: for an offence -

    (a)under section 378 or 414; or

    (b)of attempting to commit, or inciting another person to commit, an offence under section 378 or 414,

    where the property in question is a motor vehicle, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.

    (4)Summary conviction penalty: for an offence -

    (a)under section 378, 382, 383, 388 or 414; or

    (b)of attempting to commit, or inciting another person to commit, an offence under section 378, 382, 383, 388 or 414,

    where the value of the property in question does not exceed $1 000 - a fine of $6 000.

    (5)Subsection (4) is subject to section 426A.

Dukes v Barrett

  1. In Dukes v Barrett,[35] Hasluck J considered s 426(4) and (6) of the Criminal Code in the terms that that section then provided.  In Dukes v Barrett, the appellant was convicted of the offence of stealing as a servant from his employer contrary to s 378(7) of the Criminal Code. Section 378 of the Criminal Code considered in Dukes v Barrett was relevantly in the same terms as the current provision. 

    [35] Dukes v Barrett [2001] WASCA 338.

  2. Section 426 of the Criminal Code, as considered by Hasluck J in Dukes v Barrett, provided as follows:

    426.Summary trial of stealing and like offences

    (1)Subsection (2) applies to the following indictable offences -

    (a)an offence under section 378, 382, 383 or 388 in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;

    (b)an offence under section 378 to which item (5)(a), (6), or (7) of that section applies;

    [(c)deleted]

    (d)attempting to commit, or inciting another person to commit any of the offences mentioned in paragraph (a) or (b);

    (e)receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.

    (2)If a person is charged before a court of petty sessions with an offence to which this subsection applies and -

    (a)the value of the property in question does not exceed $10 000; or

    (b)whatever may be the value of the property in question, the court, having regard to the nature and particulars of the offence and to such particulars of the circumstances relating to the charge as the court may require from the prosecutor, considers that the charge can be adequately dealt with summarily,

    the charge may be dealt with summarily at the election of the person charged, and, subject to subsection (4), the person is liable on summary conviction to imprisonment for 2 years or to a fine of $8 000.

    (2a)If -

    (a)a person is charged before a court of petty sessions with an offence under section 378 or 414, or with attempting to commit, or inciting another person to commit, an offence under section 378 or 414; and

    (b)the property in question is a motor vehicle,

    the prosecutor may request the court to deal with the charge summarily and, if that request is made, the court shall deal with the charge and, subject to subsection (4), the person is liable on summary conviction to imprisonment for 2 years or to a fine of $8 000.

    (3)If -

    (a)a person is charged before a court of petty sessions with an offence under section 378, 382, 383, 388 or 414, or with attempting to commit, or inciting another person to commit, an offence under section 378, 382, 383, 388 or 414; and

    (b)the value of the property in question does not exceed $1 000,

    the prosecutor may request the court to deal with the charge summarily and, if that request is made, the court shall deal with the charge.

    (4)If -

    (a)a person is charged before a court of petty sessions with an offence under section 378, 382, 383, 388 or 414 or with attempting to commit, or inciting another person to commit, an offence under section 378, 382, 383, 388 or 414; and

    (b)the value of the property in question does not exceed $1 000; and

    (c)the charge is dealt with summarily under subsection (2), (2a) or (3),

    the person charged is liable on summary conviction to imprisonment for 6 months or to a fine of $2 000.

  1. In Dukes v Barrett, counsel for the respondent contended that the effect of subsection (4) was to leave the three special forms of stealing to the prima facie position set out in subsection (2), and to allow for the general offence of stealing to be the subject of the lesser penalty prescribed by subsection (4). That was the point of the distinction to be found in s 378 between the general offence of stealing in s 378 for which the penalty was 7 years and the more specific forms of the offence for which the penalty was higher. The respondent contended that s 426(4) is restricted to an offence under s 378 and does not extend to the three specific forms of stealing in s 426(1).

  2. In respect to s 426, Hasluck J relevantly stated:[36]

    Section 426 makes provision for summary trial of stealing and like offences. Section 426(1) provides that subsection (2) is to apply to certain indictable offences. The list of offences includes those in subparagraph (a) being an offence under s 378, s 382, s 383 or s 388 in respect of which the greatest term of imprisonment does not exceed 7 years and those in subparagraph (b) being an offence under s 378 to which item (5)(a), (6) or (7) of that section applies. This suggests that for this purpose the parliamentary draftsman has chosen to draw a distinction between stealing and three specific forms of stealing, namely, stealing from the person of another (s 5(a)), stealing as a public servant (6), and stealing as a servant (7).

    Section 426(2) provides that if a person is charged before a Court of Petty Sessions with an offence to which this subsection applies, and the value of the property in question does not exceed $10,000, or the court considers that the charge can be adequately dealt with summarily, the charge may be dealt with summarily at the election of the person charged, and, subject to subs (4), the person is liable on summary conviction to imprisonment for 2 years, or to a fine of $8,000.

    Prima facie, then the general offence of stealing and the three special forms of stealing can be dealt with summarily if the value of the property does not exceed $10,000 or a summary trial is adequate in which case the offender will be liable to imprisonment for 2 years or to a fine of $8,000.  That prima facie position, however, is expressly made subject to subparagraph (4).

    Subsection (4) of s 426 (omitting the inessential parts for present purposes) provides that if a person is charged before a Court of Petty Sessions with an offence under s 378, and the value of the property in question does not exceed $1,000, and the charge is dealt with summarily, the person charged is liable on summary conviction to imprisonment for 6 months or to a fine of $2,000.

    [36] Dukes v Barrett [15] - [18].

  3. Ultimately, his Honour stated:[37]

    I have given careful consideration to the respective contentions of the parties. In my view, there would be no point in the distinction created by s 426(1)(a) and s 426(1)(b) between stealing and the three specific forms of stealing, and those provisions would serve no purpose, unless the intention was to allow for a lesser summary penalty for the general offence of stealing. It follows that I prefer the argument advanced by counsel for the respondent. From this point on, I will proceed from the premise that the maximum penalty for the offence before the sentencing Magistrate in the circumstances of the present case where the value of the property taken was less than $1,000 was imprisonment for 2 years, or a fine of $8,000.

    [37] Dukes v Barrett [23].

  4. The practical effect of Dukes v Barrett is that s 426(2) may, depending on the value of the property, apply to the offence of stealing as a servant committed by the appellant, so that it may be dealt with in a summary court. However, on his Honour's analysis, s 426(4) did not apply to the offence of stealing as a servant even if the property did not exceed $1,000. An offender would, therefore, be liable on summary conviction to imprisonment for 2 years or a fine of $24,000 even if the property is valued less than $1,000.

  5. The decision of Dukes v Barrett has been approved in Director of Public Prosecutions for Western Australia v Peters,[38] although the issue before the Court was not the same as in Dukes v Barrett.  In Kuhnert v Fyneman,[39] Martin J in determining an appeal against sentence for offences of stealing as a servant contrary to s 378(7) of the Criminal Code imposed terms of imprisonment but observed that for offences where the value of the property does not exceed $1,000, imprisonment is not open given s 426(4) of the Criminal Code.  It is clear that neither counsel raised Dukes v Barrett nor addressed the proper construction of s 426 of the Criminal Code.

    [38] Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139 [22].

    [39] Kuhnert v Fyneman [2015] WASC 257.

  6. The respondent referred to the case of Fripp v Carter.[40]  In Fripp v Carter, Hall J held that in respect of an offence of stealing a motor vehicle under s 378, where the value of the vehicle was valued at less than $1,000, the maximum penalty was a fine of $6,000 pursuant to s 426(4). At the time the maximum penalty for the offence of stealing a motor vehicle was 7 years' imprisonment. His Honour did not expressly analyse s 426(4) given that the court did not receive argument concerning the proper construction of s 426 of the Criminal Code.  Accordingly, Fripp v Carter provides no assistance.

    [40] Fripp v Carter [2012] WASC 288.

  7. The reasoning of Hasluck J in Dukes v Barrett was directly considered and applied by Allanson J in Wolfenden v Brigden.[41]  In Wolfenden v Brigden, the appellant was convicted of an offence of stealing as a servant where the value of the property was less than $1,000. In support of the ground of appeal that the term of imprisonment was manifestly excessive, the appellant contended that the magistrate could not impose imprisonment because of s 426(2) and (4) of the Criminal Code.  Allanson J considered the appellant's contention that Dukes v Barrett was wrongly decided and that he should not follow it.  Allanson J stated that Dukes v Barrett was correctly decided and that it should be followed.[42]  Allanson J observed that if Dukes v Barrett was wrongly decided then there would be an irreconcilable inconsistency between s 378(1), which deals with the stealing of a testamentary instrument, a document which almost invariably would be of nominal value, and where the prescribed offence is 10 years' imprisonment, and s 426(4) where such an offence would be liable to a fine only.[43]

Appellant and respondent's submissions

[41] Wolfenden v Brigden [2013] WASC 461.

[42] Wolfenden v Brigden [24].

[43] Wolfenden v Brigden [24].

  1. Both the appellant and the respondent in this instance submit that I should not follow the reasoning of Hasluck J in Dukes v Barrett.[44]

    [44] Respondent's written submissions, [45]; Appellant's written submissions, [38].

  2. The appellant's submission is that the determination of Hasluck J concerning the applicable maximum penalty for stealing as a servant when the value of the property in question did not exceed $1,000 was obiter dicta and not the ratio decidendi.[45]  The appellant submits that the ground of appeal before Hasluck J in Dukes v Barrett was whether the sentence imposed was manifestly excessive and that there was not a ground concerning the jurisdictional limit.[46]  I do not accept the appellant's submission.

    [45] Respondent's written submissions, [39].

    [46] Appellant's written submissions, [39].

  3. In Dukes v Barrett there were three grounds of appeal, including the contention that the learned Magistrate erred in imposing a term of immediate imprisonment.  His Honour stated that an issue arose on the hearing of the appeal as to what was the maximum penalty for stealing as a servant in the circumstances of the case where the charges were dealt with summarily.  The circumstances of the offending comprised 13 charges of stealing as a servant.  Relevantly, six of the charges involved amounts ranging from $3.15 to $13.35 and the further seven charges were stated as totalling $46.44 and $63.07.[47]  Accordingly, it was necessary for Hasluck J to determine the maximum penalty available summarily in order to decide whether the learned Magistrate erred in imposing a term of immediate imprisonment.  Therefore, I do not accept the appellant's contention that the reasoning of Hasluck J was only obiter.

    [47] Dukes v Barrett [2] ‑ [3].

  4. Further, the appellant contends that the statutory regime considered by Hasluck J was different to the present form of s 378 and s 426 of the Criminal Code.[48] I do not consider that the subsequent legislative amendments affect the application of Hasluck J's reasoning to the present form of s 378 and s 426.

    [48] Appellant's submissions, [40].

  5. The respondent concedes the ground of appeal, submitting that on a plain reading of s 426(4) the maximum penalty available on summary conviction for an offence under s 378, including all subsections of s 378, is a fine of $6,000 only where the value of the property does not exceed $1,000. The respondent submits that there is nothing in the text of s 426 that supports an interpretation that s 426(4) only has application to the general offence of stealing and not to the 'special cases' of stealing in s 378(1) to (9) inclusive, where the value of the property does not exceed $1,000.[49]

Whether the reasoning in Dukes v Barrett is plainly wrong

[49] Respondent's written submissions, [44].

  1. On the question of the proper construction of s 426 of the Criminal Code, I must follow Dukes v Barrett unless I conclude that the reasoning of Hasluck J in that case was plainly wrong.[50]

    [50] Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].

  2. In BHP Billiton Iron Ore Pty Ltd v National Competition Council,[51] the Full Federal Court considered the difference between a previous decision that it considered to be wrong and one that may be classed as plainly wrong.

    [51] BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234.

  3. In BHP Billiton, Greenwood J, with whom Sunberg J agreed, stated:[52]

    The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

    That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.

    The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment.

    The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated.  However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is 'plainly wrong' or 'clearly wrong'.  In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is 'plainly wrong' notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided.  There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is 'plainly wrong' and thus ought not to be applied and followed.

    [52] BHP Billiton [83] - [86].

  4. In SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs,[53] Weinberg J, with whom Allsop J agreed in his reasons,[54] stated that the word 'plainly' does more than simply add emphasis; it suggests that the error must be manifest or, if it does not rise to that level, is at least capable of being easily demonstrated.  His Honour said that '[i]n a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable'.[55]

    [53] SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214.

    [54] SSZEEU [187] - [193].

    [55] SSZEEU [148].

  5. In Gett v Tabet,[56] Allsop J, Beazley and Basten JJA observed that on a number of occasions the expressions 'plainly' or 'clearly' wrong have been used, and stated that those adverbs do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived; rather they bespeak the quality of the error or the level of conviction of error that must be perceived.  Their Honours said that in order for an intermediate appellate court to depart from a previous decision, the later court must have a strong conviction that the earlier judgment was erroneous, not merely that the earlier court exercised an approach which was open to it but was no longer to be preferred, and the nature of the error can be clearly demonstrated.[57] 

    [56] Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504.

    [57] Gett v Tabet [294] - [295].

  6. I do not consider that the reasoning of Hasluck J in Dukes v Barrett is plainly wrong. 

  7. The appellant's position that there is no ambiguity on the plain reading of the text, and therefore Dukes v Barrett should not be followed, is not accepted.

  8. There is clearly ambiguity in s 426(4) of the Criminal Code in relation to the meaning of the words 'an offence under s 378', in circumstances where there is, strictly speaking, only one offence under s 378 but different penalties that apply in the circumstances of aggravation (punishment in special circumstances) described in s 378(1) to (9). The ambiguity arises because s 426(1) draws a distinction between 'an offence under s 378' which depends upon the application of different maximum penalties, depending upon whether particular circumstances of aggravation apply. As Hasluck J held, to construe s 426(4) as applying to any offence under s 378, irrespective of any aggravating features, would undermine the maintenance of the distinction as to the penalties otherwise maintained by s 426(1) and (2).

  9. On the other hand, however, it may be that the Parliament intended that the distinction should not apply if the value of the property did not exceed $1,000.  The policy rationale for such an approach would clearly be to remove the penalty of imprisonment for the offence when smaller amounts of value are involved.  

  10. Unfortunately, there is nothing in the Second Reading Speeches or Explanatory Memoranda in relation to s 426 as it stood at the time of Dukes v Barrett, or in amendments to that section since then, which provides guidance as to the proper construction of the section.

  11. I am left in the position that whilst there exists a counter argument as to the construction set out above, I am not persuaded that the reasoning of Hasluck J in Dukes v Barrett is plainly wrong.  The decision of Dukes v Barrett has stood since 2001 and has been applied by this Court and in the Magistrates Court. If, on the several occasions on which s 426 has been amended since 2001, the Parliament had wished to amend s 426(4) to clarify its meaning or to make clear that a different meaning applied, it could have done so.

  12. Therefore, leave is not granted on ground 4 in SJA 1043 of 2024.

Conclusion

  1. Accordingly, in respect to SJA 1044 of 2024, leave to appeal is granted and the appeal is allowed.  I substitute the decision that should have been made by Magistrate De Maio by setting aside the terms of 8 months' imprisonment conditionally suspended imposed in respect to the four charges, JO 2716‑2719/2022, and in lieu thereof impose the terms of imprisonment that were originally imposed by Magistrate Coleman, being 2 months' imprisonment conditionally suspended on each of the four charges.

  2. In respect to SJA 1043 of 2024, leave to appeal is not granted on grounds 1 to 4 inclusive.  The appeal must be dismissed.

ANNEXURE A

No Charge Offence Penalty
Charges 13 June 2022 - Magistrate Coleman (CSIO imposed)
1.     JO 2714/2022 Stealing - s 378, Criminal Code Fine $750
2.     JO 2715/2022 Stealing - s 387, Criminal Code   Fine $750
3.     JO 2716/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 2 months CM
4.     JO 2717/2022  Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 2 months CM
5.     JO 2718/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 2 months CM
6.     JO 2719/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 2 months CM
7.     PE 20012/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code Fine $500
8.     PE 22149/2022 Breach of bail - s 51(2), Bail Act 1982 (WA) Fine $400, C$134.50
9.     PE 22150/2022 Give false details to Police - s 16(8), CI(IP) Act 2002 (WA) Fine $200
Charges 3 November 2022 - Magistrate De Maio (breach CSIO, 20 months suspended for 18 months)
Breach charges from Magistrate Coleman's CSIO
1.     JO 2716/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CM
2.     JO 2717/2022  Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
3.     JO 2718/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
4.     JO 2719/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
New charges before Magistrate De Maio
5.     JO 5678/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
6.     JO 5679/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
7.     JO 5680/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
8.     JO 6172/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
9.     JO 6173/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
10.     PE 23002/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
11.     PE 23003/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
12.     PE 23004/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
13.     PE 23005/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code CSIO 8 months CC
14.     PE 23006/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
15.     PE 23007/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code CSIO 8 months CC
16.     PE 23008/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
17.     PE 23009/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
18.     PE 23010/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
19.     PE 23011/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
20.     PE 23012/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
21.     PE 23013/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
22.     PE 24035/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
23.     PE 24036/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
24.     PE 24037/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
25.     PE 24038/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
26.     PE 24039/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code CSIO 8 months CC
27.     PE 24040/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
28.     PE 24041/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
29.     PE 24042/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
30.     PE 24043/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
31.     PE 30647/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
32.     PE 30648/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
33.     PE 30649/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 8 months CC
34.     PE 30650/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
35.     PE 30651/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
36.     PE 30652/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
37.     PE 30653/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
38.     PE 30654/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
39.     PE 30655/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
40.     PE 30656/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
41.     PE 37256/2022 Stealing - s 387, Criminal Code Fine $1,000 (G)
42.     PE 37257/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
43.     PE 37258/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
44.     PE 37259/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
45.     PE 37260/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
46.     PE 37261/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
47.     PE 37262/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
48.     PE 37263/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
49.     PE 37264/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
50.     PE 37265/2022 (Att) Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 6 months CC
51.     PE 37266/2022 (Att) Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
52.     PE 37267/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
53.     PE 37268/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
54.     PE 37269/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months (Head)
55.     PE 37270/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
56.     PE 41282/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
57.     PE 41283/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
58.     PE 41284/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
59.     PE 41285/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code   CSIO 12 months CC
60.     PE 41286/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
61.     PE 41287/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code CSIO 12 months CC
Charges 6 and 26 February 2024 - Magistrate Lyons
Breach charges from Magistrate De Maio's CSIO
1.     JO 2716/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
2.     JO 2717/2022  Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
3.     JO 2718/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
4.     JO 2719/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
5.     JO 5678/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
6.     JO 5679/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
7.     JO 6172/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
8.     JO 6173/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
9.     PE 23003/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
10.     PE 23004/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
11.     PE 23005/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code 2 months CM
12.     PE 23006/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code   1 month CC
13.     PE 23007/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code 2 months CM
14.     PE 23009/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
15.     PE 23010/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
16.     PE 23011/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
17.     PE 23012/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
18.     PE 24035/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
19.     PE 24036/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
20.     PE 24037/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
21.     PE 24038/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
22.     PE 24039/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code 2 months CM
23.     PE 24041/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
24.     PE 24042/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
25.     PE 24043/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
26.     PE 30648/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
27.     PE 30649/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
28.     PE 30650/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
29.     PE 30651/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
30.     PE 30652/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
31.     PE 30653/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
32.     PE 30654/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
33.     PE 30655/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
34.     PE 30656/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code   1 month CC
35.     PE 37257/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
36.     PE 37258/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
37.     PE 37259/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
38.     PE 37260/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
39.     PE 37261/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
40.     PE 37262/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
41.     PE 37263/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
42.     PE 37264/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
43.     PE 37265/2022 (Att) Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
44.     PE 37266/2022 (Att) Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
45.     PE 37267/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
46.     PE 37268/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
47.     PE 37269/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
48.     PE 37270/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
49.     PE 41282/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
50.     PE 41283/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
51.     PE 41284/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
52.     PE 41285/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
53.     PE 41286/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
54.     PE 41287/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
New charges before Magistrate Lyons
55.     PE 58382/2022 Stealing - s 387, Criminal Code Fine $300
56.     PE 58383/2022 Possession of stolen or unlawfully obtained property - s 417(1), Criminal Code 2 months CM
57.     PE 58384/2022 Unlawfully possessed a controlled or prescription drug Fine $100
58.     PE 58385/2022 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
59.     PE 1825/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
60.     PE 1826/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
61.     PE 1827/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
62.     PE 1828/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
63.     PE 1829/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
64.     PE 1830/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
65.     PE 1831/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
66.     PE 1832/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
67.     PE 1833/2023 (Att) Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
68.     PE 42580/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
69.     PE 42581/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
70.     PE 42582/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
71.     PE 42583/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
72.     PE 42584/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
73.     PE 42585/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
74.     PE 42586/2023 Gains benefit by fraud - s 409(1)(c), Criminal Code 1 month CC
75.     PE 42587/2023 Stealing from person of another 4 months (Head)
76.     PE 42588/2023 Stealing from person of another 4 months CM
77.     PE 42589/2023 Possess a prohibited drug (cannabis) Fine $100

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NA

Associate to the Honourable Justice McGrath

17 DECEMBER 2024


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Cases Citing This Decision

1

Narrier v Director of Public Prosecutions (WA) [2025] WASCA 51
Cases Cited

26

Statutory Material Cited

3

Samuels v The State of Western Australia [2005] WASCA 193
Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Markarian v The Queen [2005] HCA 25