Parfitt Hamilton v WA Police - [2024] WASC 505

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PARFITT HAMILTON -v- WA POLICE [2024] WASC 505
CORAM:   SEAWARD J
HEARD:   19 DECEMBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   SJA 1088 of 2024
BETWEEN:   RACHELLE MARIAH PARFITT HAMILTON
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   MI 7754/2024

Catchwords:

Single Judge Appeal - Appeal against sentence - Whether there was miscarriage of justice - Whether it would be 'clearly unjust' to impose the mandatory minimum sentence

Application to admit further evidence - Discretion to admit further relevant evidence on appeal against sentence - Overriding obligation of the sentencing court to look at all the relevant facts - Subsequent events relevant to the sentencing process

Legislation:

Criminal Appeals Act 2004 (WA) div 2 of pt 2
Sentence Administration Act 2003 (WA) s 118
Sentencing Act 1995 (WA) s 86, s 87

Result:

Application for an extension of time within which to appeal is granted
Application to adduce additional evidence is granted
Leave to appeal is granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms E Zillessen
Respondent	:	Ms R Panetta

Solicitors:

Appellant	:	Legal Aid
Respondent	:	State Solicitor's Office

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

Clarke v The State of Western Australia [2018] WASCA 14
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485
Jacomb v The State of Western Australia [2021] WASCA 81
LAT v State of Western Australia [2018] WASCA 215
Narkle v Hamilton [2008] WASCA 31
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tsang v Francis [2021] WASCA 131
Wellstead v State of Western Australia [No 2] [2019] WASCA 130
Wheeler v The Queen [2010] WASCA 105
Wimbridge v The State of Western Australia [2009] WASCA 196

SEAWARD J:

Introduction

The appellant, Ms Rachelle Parfitt Hamilton, seeks an urgent appeal hearing in relation to the sentence imposed following her plea of guilty on 29 August 2024 in relation to the offence of removed, damaged or interfered with monitoring equipment to prevent or impede monitoring of a person's location contrary to s 118(6) of the Sentence Administration Act 2003 (WA) (SA Act).
The appellant alleges that a miscarriage of justice has occurred, owing to subsequent events relevant to the sentencing process.
The appeal is urgent, as if the appellant is successful, it may result in her immediate release from custody.
I heard the appeal on 19 December 2024 and on 20 December 2024 I dismissed the appeal. I indicated that my written reasons for so doing would follow. These are my reasons.

Procedural background and offending behaviour

The background facts are not in dispute, and the below summary is taken from the submissions of the parties and the affidavit filed in support of the appeal.
On 20 March 2024, the appellant was arrested and charged with the offence of forcibly, or fraudulently takes, or entices away, or detains a child under 16 years contrary to s 343(1) of the Criminal Code (WA) (being charge number MI 2789/2024) (Offence 1).
On 21 March 2024, the appellant attended court from custody in relation to Offence 1 and was remanded in custody. The appellant next attended court from custody on 4 April 2024 and was released on bail subject to conditions, including, inter alia, that the appellant reside at a particular address in Langford and comply with all electronically monitored Home Detention Bail conditions as directed by a community corrections officer. The appellant spent 15 days in custody prior to bail being granted (First Custody Period).
On 14 May 2024, the appellant was granted a leave of absence from her home detention bail, but she failed to return home. As a result, the appellant was arrested on the same day, and the appellant's bail was revoked.
On 15 May 2024, the appellant attended court from custody in relation to Offence 1. At this hearing, bail was not considered, nor was it considered at the next two hearings on 17 May 2024 or 6 June 2024.
On 20 June 2024, the appellant attended court from custody in relation to Offence 1 and was released on bail subject to numerous conditions including, inter alia, that the appellant reside at a particular address and comply with all electronically monitored Home Detention Bail conditions as directed by a community corrections officer. At this stage, the appellant spent 37 days in custody before being granted bail the second time (Second Custody Period).
Once the appellant was able to meet all conditions, she was released on bail on 23 July 2024.
On 6 August 2024, being 14 days later, the appellant was arrested and charged with the offence of removed, damaged or interfered with monitoring equipment to prevent or impede monitoring of a person's location contrary to s 118(6) of the SA Act (being charge number MI 7754/2024) (Offence 2). As a result of the charge, bail in relation to Offence 1 was cancelled. On the same day, the appellant attended court in relation to Offence 1 and Offence 2 and was remanded in custody at the conclusion of that appearance.
On 29 August 2024, the appellant pleaded guilty to Offence 1 and Offence 2. In response, the learned magistrate:
(a)recorded the plea (but not the conviction) in relation to Offence 1, committed the appellant to the District Court for sentence on 1 November 2024, and requested a pre‑sentence report; and
(b) recorded the plea and a conviction in relation to Offence 2, and sentenced the appellant to the 'minimum mandatory penalty' (in this case, 6 months and 1 day's immediate imprisonment) backdated to 6 August 2024 when the appellant was first remanded in custody in relation to Offence 2.
The Statement of Material Facts for Offence 2 provides as follows:
On Tuesday 23 July 2024, the accused was released from custody on home detention bail to reside at [redacted], Hamilton Hill
As part of her home detention bail conditions the accused signed a 'Declaration of understanding of liability' at Fremantle Adult Community Corrections. This declaration included that she understood that any intentional action to destroy or damage the home detention bail monitoring equipment may render him liable to prosecution.
The home detention monitoring equipment included a receiver unit and a transmitter (ankle bracelet) which was worn by the accused.
At approximately 2:30am on Tuesday 6th August 2024, the accused wilfully damaged the transmitter (ankle bracelet) in order to remove it from her person by unknown means whilst at [redacted], Hamilton Hill.
The home detention monitoring transmitter (ankle bracelet) which was worn by the accused was located in at [different address - redacted], Hamilton Hill.
The accused did not have approved leave by Fremantle Adult Community Centre.
Fremantle adult Community Corrections subsequently issued an arrest warrant for the accused.
At approximately 12:15pm on 6 August 2024, the accused was located at her home address of [redacted], Hamilton Hill.
At the time of his arrest the accused was not wearing the transmitter (ankle bracelet).
The accused signed an official document saying she would be liable if she damaged any of the monitoring equipment.
The appellant spent a total of 24 days in custody in relation to Offence 2 prior to her sentencing on 29 August 2024 (Third Custody Period).

Sentencing remarks

After accepting the plea of guilty to Offence 2 and entering a judgment of conviction, the learned magistrate proceeded to sentence the appellant.
The learned magistrate was informed that there was a statutory minimum penalty for Offence 2, being 6 months' imprisonment, unless it would be 'clearly unjust'.
Counsel for the appellant was asked if he was submitting that the minimum penalty would be unjust, and counsel replied that he was not.[1]
[1] ts 29 August 2024, 4.
There was then a discussion about the amount of time the appellant has spent in custody, which at that point was in the vicinity of around five months, but neither the appellant nor her counsel were sure precisely how long, given the appellant had spent some time released on bail.
The learned magistrate then concluded as follows in relation to the effect of the appellant's time spent in custody:[2]
Yes. Look, what I would be prepared to do is - and I think this is probably the most appropriate cause of action - backdate the sentence to when she was arrested for the removing the bracelet. … I think any of the time she has spent in custody regarding the primary offence should be left up to the District Court to factor into their sentence when it's clear exactly how long.
[2] ts 29 August 2024, 5.
Counsel for the appellant then sought clarification that any other time in custody would be taken into account by the District Court.[3]
[3] ts 29 August 2024, 5.
The learned magistrate stated that his Honour would impose the minimum mandatory penalty, and then imposed a sentence of 6 months' and 1 day imprisonment,[4] backdated to 6 August 2024, being the date the appellant was taken into custody on Offence 2.[5]
[4] The statutory minimum penalty is actually 6 months' imprisonment: Sentence Administration Act 2003 (WA) s 118 (7).
[5] ts 29 August 2024, 7 - 8.

Ground of appeal

The appellant filed a notice of appeal on 10 December 2024, and the sole ground of appeal is:
There is a miscarriage of justice because the learned sentencing Magistrate did not take all of the time in custody prior to the sentence being imposed into account when considering whether it was unjust to impose mandatory imprisonment for the offence.
The essence of the appeal is that the First Custody Period and Second Custody Period, being a total of 52 days, were not taken into account by the learned magistrate when sentencing the appellant.

Legal principles

Appeal

This appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[6] An appeal against sentence may be made on the grounds that, relevantly, there has been a miscarriage of justice.[7]
[6] CA Act, s 6(f) and s 7(1).
[7] CA Act, s 8(1)(b).

Leave to appeal is required for each ground of appeal.[8] Leave to appeal must not be granted on any ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[9] meaning that the ground is required to have a rational and logical prospect of succeeding.[10] A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[11]
[8] CA Act s 9(1).
[9] CA Act s 9(2).
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[11] Sami v Duggan [2011] WASC 304 [38].
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[13]
[12] CA Act s 14(2).
[13] CA Act s 9(3).
An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision unless the court orders otherwise.[14] An extension of time to appeal will be granted if it is in the interests of justice to do so.[15] In considering whether it is in the interests of justice to grant an extension of time, factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[16]

Legislative provisions

[14] CA Act s 10(3).

[15] Wimbridge v The State of Western Australia [2009] WASCA 196 [43].

[16] Wimbridge v The State of Western Australia [2009] WASCA 196 [45]; Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] - [30].

Section 118 of the SA Act is the offence creating provision and it relevantly provides:
(6)A person who, without reasonable excuse, damages, removes or interferes with, or interferes with the operation of, any monitoring equipment in such a way as to prevent or impede monitoring of a person’s location, commits an offence.
Penalty for this subsection: imprisonment for 3 years and a fine of $36 000.
(7)A court sentencing a person convicted of an offence under subsection (6), committed at a time when the person had reached 18 years of age, must, unless it would be clearly unjust given the circumstances of the offence and the person —
(a) sentence the person to a term of imprisonment of at least 6 months; and
(b)not suspend the term of imprisonment.
(8)Subsection (7) applies despite the Sentencing Act 1995 section 86.
Section 86 of the Sentencing Act 1995 (WA) (Sentencing Act) provides that a court must not sentence an offender to a term of imprisonment of 6 months or less, except in presently irrelevant circumstances.
Section 87 of the Sentencing Act is concerned with time spent in custody, and provides:
(1) If when an offender is being sentenced to imprisonment for an offence –
(a) the offender has previously spent time -
(i) in custody in respect of the offence for which the offender is being sentenced; or
(ii) in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b) the sentencing court decides that that time should be taken into account -
the court may take that time into account-
(c) if it imposes a fixed term, by reducing that term by an appropriate period; or
(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2) Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).

Application for an extension of time

In the present case, the last date for the filing of an appeal was 26 September 2024. The explanation for the delay is contained in the affidavit of Ms Zillessen affirmed 10 December 2024. The respondent does not oppose the extension of time. I am satisfied on the basis of the explanation contained in the affidavit that it is appropriate to grant the appellant an extension of time within which to appeal.

Application to admit further evidence

Additional evidence

The appellant seeks leave to rely on further evidence, being the decision of the State to discontinue Offence 1 on 31 October 2024 and the appearance in the District Court on 1 November 2024. That further evidence is contained in the affidavit of Ms Zillessen affirmed 10 December 2024.
The relevant evidence being that on 31 October 2024 (being after sentencing for Offence 2), a Notice of Discontinuance in relation to Offence 1 was signed by the prosecution. On 1 November 2024, the appellant attended the District Court from custody in relation to Offence 1.
The reasons given by the prosecutor for discontinuance were as follows:[17]
For public interest reasons, your Honour. After reviewing the case, and in considering further material which hasn't been forthcoming requested throughout the departments, the State have taken the view that it's not in the public interest to continue with this matter. And that's as far as I have knowledge of it.
I don't want to say much more because I know there's been other potential co-accused or allegations to others involved around certain happenings at certain times with different charges, so it's not a straightforward matter obviously.

Legal principles

[17] ts 1 November 2024, 8.

In accordance with s 39(1) of the CA Act, an appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal.[18]
[18] CA Act s 39(3).
The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal will indicate those considerations which are relevant to the exercise of the discretion.[19]

Submissions

[19] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].

The respondent submits that that regard cannot be had to the additional evidence at the stage of determining whether there has been a miscarriage of justice. Rather, regard could only be had to the additional evidence if the court is first satisfied that a miscarriage of justice has occurred. In this regard, the respondent relies on the decision of LAT v State of Western Australia,[20] in which the Court of Appeal described the process undertaken by an appeal court in an appeal against sentence as follows:
An appeal to this court is not an opportunity to revisit the question of the appropriate sentence in light of all material now available. The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed.
[20] LAT v State of Western Australia [2018] WASCA 215 [39].
The respondent accepts that when considering the first stage of the sentencing process, a miscarriage of justice may arise where a matter was not before the primary court. However, the respondent submits that not all instances of matters not before the primary court will give rise to a miscarriage of justice. The respondent relies in particular on the following passage from LAT v State of Western Australia,[21] and the authorities referred to therein:
[21] LAT v State of Western Australia [2018] WASCA 215.
40While, as a general rule, an appeal court decides an appeal on the evidence and material before the court below, this court has a broad discretion to admit other evidence on appeal under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). In exercising the power to admit additional evidence, ordinarily at least, a distinction is drawn between matters which existed at the time of sentencing, but were not known, and matters which have come into existence since the time of the sentence. The reasons for this are grounded in the role of an appellate court. The position was explained by Newnes JA (with whom Pullin and Mazza JJA agreed) in Colwell v The State of Western Australia [No 2], as follows:
[A]n appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177, 178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].
Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69].
41 This passage has been adopted and applied in many subsequent decisions of this court. See, for example, MacCauley v The State of Western Australia [No 2]; LWD v The State of Western Australia.
(footnotes omitted)

The respondent also referred to the decision of Wellstead v State of Western Australia,[22] and the authorities referred to therein to similar effect.
[22] Wellstead v State of Western Australia [No 2] [2019] WASCA 130 [91] - [94].
The respondent submits that as the discontinuance of Offence 1 was not a matter before the learned magistrate, and was not evidence of facts that were in existence at the time of sentencing and were not known to the sentencing officer or properly appreciated at the time, then it is not admissible as part of stage one of the appeal process, and is only admissible at stage two.
The appellant submits that the decisions referred to by the respondent are not authority for the proposition that evidence can never be admitted on a sentencing appeal, especially where a miscarriage of justice is alleged. The appellant submits that the test for the admission of evidence in an appeal against sentence is whether, had the additional evidence been before the sentencing judge, a different sentence would have been imposed. In this regard, the appellant refers to the reasons of Owen JA in decision of Wheeler v The Queen:[23]
52Generally an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) Criminal Appeals Act 2004 (WA). However, an appellate court has a broad power to 'admit any other evidence' under s 40(1)(e) of the Act.
53 The well known distinction between 'fresh' and 'new' evidence is of importance in deciding whether additional material should be admitted in an appeal against conviction. The distinction is of lesser significance in an appeal against sentence, although a court may be guided by similar considerations. An appeal against the sentence can only succeed where an appellate court concludes that a different sentence ought to have been imposed: s 31(4) Criminal Appeals Act. The test to be applied in determining whether additional evidence should be admitted, be it fresh or new evidence, is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed. But the capacity of an appellant to adduce additional material in the appeal is not at large. Each case has to be assessed according to its own facts. The circumstances in which the additional material came to light and its probative value will be significant considerations in deciding whether an appellant should have leave to adduce it.
[23] Wheeler v The Queen [2010] WASCA 105.
The appellant submits that had the learned magistrate had before him information that the State intended to discontinue Offence 1, it would not have been open for his Honour to impose the mandatory minimum sentence, as to do so would be clearly unjust.

Should regard be had to the additional information?

I am of the view that regard can be had by the court to the additional information, being the fact that Offence 1 was discontinued by the State on 31 October 2024 and the matters contained in the transcript on 1 November 2024, at the first stage of the appeal process.
The court has the power to 'admit any other evidence' for the purposes of dealing with an appeal. The scope of that discretion will depend on a number of factors, including the issues to be resolved in the appeal.
I do not consider the authorities referred to by the respondent compel an answer that information relating to matters occurring after the date of sentencing can never be admitted at 'stage one' of a sentence appeal. The authorities of LAT v State of Western Australia and Colwell v The State of Western Australia [No 2][24] all refer to a 'general' or 'usual' position regarding such evidence. None of the authorities expressly provide that the evidence can never be admitted. This would also be contrary to s 40(1)(e) of the CA Act.
[24] Colwell v The State of Western Australia [No 2] [2012] WASCA 196.
In both Wheeler v The Queen and Wellstead v State of Western Australia, the Court of Appeal held that the distinction between 'fresh' evidence and 'new' evidence is of lesser significance in an appeal against sentence as opposed to an appeal against conviction.[25]
[25] Wheeler v The Queen [2010] WASCA 105 [53]; Wellstead v State of Western Australia [2019] WASCA 130 [95].
In Wellstead v State of Western Australia, the Court of Appeal held that a miscarriage of justice may more readily arise in an appeal against sentence from the absence of evidence which was not known to, or reasonably obtainable by, the appellant at the time of sentence, as opposed to evidence which was actually known to an appellant at the time of sentencing.[26]
[26] Wellstead v State of Western Australia [2019] WASCA 130 [95] - [96].
Significantly for the purposes of this appeal, the Court of Appeal held as follows in relation to the reception of new evidence where the ground of the sentence appeal alleges a miscarriage of justice:[27]
However, even where no error of the kind referred to in House v The King is established, this court may interfere to avoid a miscarriage of justice from arising. The High Court in Betts recognised, in a similar statutory context to the present, that the New South Wales Court of Criminal Appeal has the flexibility to receive new evidence when it is necessary to do so in order to avoid a miscarriage of justice. The High Court referred to a number of authorities, including the observation of Gleeson CJ in Araya v The Queen that:
As a matter of practice this Court customarily adopts a flexible approach towards the reception of evidence in support of an application for leave to appeal against the severity of sentence. If it became necessary technically to justify reception of a good deal of the evidence we receive it would be done on the basis that it may become relevant to our resentencing the applicant if we decided to grant leave to appeal and have allowed the appeal.
However, I would prefer to say that the practice that the Court adopts is taken because of our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred.
In our view, these observations, which are consistent with those of Owen JA in Wheeler, are equally applicable to the Criminal Appeals Act.
[27] Wellstead v State of Western Australia [2019] WASCA 130 [90].
In the present case, the issue raised by the appeal is whether there has been a miscarriage of justice where the learned magistrate recognised a relevant sentencing factor (being the First Custody Period and the Second Custody Period), but concluded that the sentence did not need to accommodate this factor as the District Court would deal with this when sentencing the appellant for the First Offence. That the appellant spent time in custody for the First Offence was a matter known to the learned magistrate at the time of sentencing.
The respondent submits that the two matters - being that the appellant spent time in custody for Offence 1 and the subsequent discontinuance - are two separate matters, and the latter occurred after the date of sentencing.
However, whilst the discontinuance of Offence 1 occurred after the date of sentencing, it related to matters which were known at the time of the sentencing, being the First Custody Period and the Second Custody Period. The discontinuance changed the significance of the time spent in custody for the First Offence in the sentencing process for the Second Offence.
In this regard, the discontinuance is similar to a situation in which further evidence is sought to be led to demonstrate a medical diagnosis of an illness which existed at the time but either was not known, or the full extent of that illness and its impact on the individual, was not known. In a similar manner, the discontinuance sheds light on the significance and relevance of the First Custody Period and the Second Custody Period. For this reason, I am satisfied that it is appropriate to exercise my discretion to have regard to the subsequent discontinuance of Offence 1.
I am also of the view that it is appropriate to have regard to the additional evidence on the basis that it is necessary to consider that information as part of the court's overriding obligation to look at all the relevant facts, or possibly relevant facts, to determine whether a miscarriage of justice has occurred.
Ultimately, the question of whether this additional information results in a miscarriage of justice is largely dependent on whether, in light of all relevant sentencing matters, including the time spent in custody for Offence 1, it would be 'clearly unjust' to impose the mandatory minimum sentence. If it would be, then a miscarriage of justice has occurred and the appellant should be resentenced. If it would not be, then no miscarriage of justice has occurred.

Was there a miscarriage of justice?

Appellant's case

The appellant submits that a miscarriage of justice has occurred because she has spent 52 days in custody that have not been considered as part of the sentencing process for Offence 2, and that time spent in custody will not now ever be considered for Offence 1 either, following it being discontinued by the State.
The appellant acknowledges that the learned magistrate could not, under s 87 of the Sentencing Act, backdate or otherwise reduce the sentence for Offence 2 to take into account the First Custody Period or the Second Custody Period, as neither period falls within the scope of s 87 of the Sentencing Act. The appellant acknowledges that the learned magistrate did turn his mind to these periods, but assumed they would be taken into account when the appellant was sentenced for Offence 1 in the District Court. The appellant accepts that in these circumstances, it was open for his Honour to find that it was not unjust to impose a term of 6 months' and 1 day imprisonment, backdated to take into account the Third Custody Period.
However, the appellant also submits that it was open to the learned magistrate to consider when the time spent in custody in toto created a circumstance making it unjust to impose a mandatory minimum term of imprisonment on the appellant for discrete offending related to the damage charge. The appellant submits that the time spent in custody is a relevant factor in the sentencing process.
The appellant submits that the miscarriage of justice arises because:
a. The events expected by the sentencing magistrate did not come to pass;
b. The appellant's liability to criminal punishment contracted substantially upon the discontinuance of the kidnapping charge to being a liability based only upon the criminality for the damage charge;
c. The exercise of the discretion to find it was not unjust to impose a mandatory minimum term for the damage charge in circumstances where previous time in custody was put to one side miscarried when that time in custody could no longer be taken into account as anticipated.
The appellant submits that to the extent the learned magistrate did take into account the First Custody Period and the Second Custody Period, his Honour proceeded on a foundation that was later undermined and did not eventuate as anticipated. Therefore, his Honour was precluded by circumstances beyond his control from giving this factor proper and adequate consideration.
The appellant submits that the effect of s 87 of the Sentencing Act, combined with the later discontinuance of Offence 1, means that 'it is not open to find it would not be unjust to impose a further term of mandatory imprisonment that cannot be backdated to take that time into account'. Further, that the sentence imposed is in excess of the established culpability for Offence 2.

Respondent's case

The respondent's primary submission is that there has been no miscarriage of justice at the time of sentencing as it is not open for the court to have regard to the subsequent discontinuance of Offence 1 in the first stage of the appeal process. In these circumstances, the sentence imposed by the learned magistrate, based on the information known at the time, does not reveal a miscarriage of justice.
However, the respondent also submits that there has been no miscarriage of justice in any event, as the learned magistrate was not obliged to take into account the First Custody Period and the Second Custody Period in accordance with s 87 of the SA Act and could not backdate the sentence to accommodate these periods in custody. The respondent also made submissions as to the sentence imposed in the context of the relevant sentencing matters, including the First Custody Period and the Second Custody Period, and submitted that it was not clearly unjust to impose the minimum penalty.

Has there been a miscarriage of justice?

In all the circumstances, I am not satisfied that there has been a miscarriage of justice in the present case.
The maximum penalty for Offence 2 is imprisonment for 3 years and a fine of $36,000. The statute specifies a mandatory penalty of a term of imprisonment of at least 6 months (which cannot be suspended), which must be imposed by the court unless it is clearly unjust to do so. The effect of both the maximum penalty and the mandatory statutory minimum penalty is to reflect the serious nature of this offending and the range of sentences which must be imposed for this type of offending.
As explained by the High Court in Hurt v The King,[28] a mandatory minimum sentence serves a double function: first, it restricts the sentencing power to the minimum period of imprisonment; secondly, it provides a yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion. As a yardstick, it imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances.
[28] Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 [54].
I do not consider that imposing the statutory mandatory minimum sentence on the appellant in all the circumstances was clearly unjust, including taking into account the First Custody Period and the Second Custody Period.
The appellant submits that the offending is an example of the least serious circumstances of offending. The appellant places particular reliance on the removal of the monitoring equipment not posing any risk to the community and there being no suggestion of any attempt to 're‑offend' in terms of Offence 1, which was the reason the Home Detention Bail conditions were imposed. Further, the appellant was not charged with any offending whilst un‑monitored.
The respondent submits that the offending is an example of the upper‑end of seriousness. The respondent submits that the offending was deliberate and not a technical breach and that the monitor was found in a location where the appellant was not permitted to reside. The respondent submits that in relation to the question of risk, that risk existed as the appellant was placed on Home Detention Conditions for a reason, and had failed to comply.
In response, the appellant submits that it is not material that the offending was deliberate or wilful - as that is an element of the offence in any event.
I do not accept that the offending was as serious as submitted by the respondent, principally because no offence was committed by the appellant whilst un‑monitored and the appellant was un‑monitored for a relatively short period of time (approximately 10 hours). However, I also do not consider it can be said that the circumstances of the offending for Offence 2 makes it the least serious category of offending for this offence. The monitor was removed and was located at a different address to the address at which the appellant was required to remain. The appellant did not have permission to leave to go to the address where the monitor was located. The removal was therefore not only calculated to impede monitoring of the appellant, but was successful. The offending arose in circumstances where the appellant had already failed to comply with her bail conditions on 14 May 2024, by failing to return home after she had been granted a leave of absence. The appellant's bail was then cancelled, and this is the reason the appellant commenced the Second Custody Period. The offending also occurred only two weeks after being released on bail the second time.
I do not consider the fact that Offence 1 was discontinued in any way reduces the criminality or moral culpability of the appellant. The bail conditions were lawfully imposed orders of the court that the appellant was required to comply with. The subsequent discontinuance of Offence 1 does not alter that in any way.
In terms of mitigating factors, the appellant pleaded guilty at an early opportunity and this is a relevant mitigating factor and would ordinarily entitle the appellant to a discount in the vicinity of 20% - 25%. The appellant is 31 years of age and does not have youth as a mitigating factor. There is no evidence before either the learned magistrate or this court as to remorse on the appellant's behalf.
The appellant also has a criminal record containing many instances of failing to comply with community‑based orders or other orders of the court or breaches of bail conditions. The past offending of the appellant indicates a need for specific deterrence in the sentence. Previous sentences, including the imposition of fines, have not resulted in a lack of offending. I do not consider this is a case where the First Custody Period and the Second Custody Period have had an impact upon personal deterrence, as the periods of time pre‑dated the commission of Offence 2 and did not result in compliance with the bail conditions upon release. There is no evidence before me that the First Custody Period and the Second Custody Period have addressed the need for rehabilitation.
General deterrence is also a relevant factor in the sentencing process here, as it is important that those who are granted the privilege of home detention bail understand that they are required to comply with the conditions of that bail, and not to damage or remove monitoring equipment. The importance of general deterrence to this offence is illustrated by both the maximum penalty and the statutory minimum penalty.
I have not been referred to any comparable cases of sentences imposed for Offence 2.
I accept the appellant's submission that the total time spent in custody by the appellant is a relevant sentencing factor independently of s 87 of the Sentencing Act. The court has a discretion when determining whether it will make an allowance for time spent in custody and if so, how much. The manner in which the discretion is exercised will depend upon the individual circumstances. It would be a mistake to assume that time spent will inevitably be taken into account when sentencing for a later offence.[29]
[29] Jacomb v The State of Western Australia [2021] WASCA 81 [86]; Narkle v Hamilton [2008] WASCA 31 [38] - [43].
However, even taking the total time spent in custody into account, I do not consider that this makes imposing the mandatory minimum sentence clearly unjust. When taking into account time spent in custody, there is no requirement that a mathematical accounting for that time take place. Whilst time spent in custody remains at all times a relevant consideration, it is still one which falls to be considered in the broader exercise of the sentencing discretion. The Third Custody Period has been taken into account.
For the reasons outlined above, the offending behaviour cannot be described as the least serious category of offending. Accordingly, taking into account all other relevant sentencing matters, I do not consider that it is clearly unjust to impose the mandatory minimum penalty in circumstances where the appellant spent a further 52 days in custody for Offence 1, nor that a miscarriage of justice arises when considering all of the relevant factors. The facts and the statutory context of the present case is different to that in Jacomb v The State of Western Australia.[30]
[30] Jacomb v The State of Western Australia [2021] WASCA 81.

The appellant also submits that the total of the First Custody Period and the Second Custody Period, being 52 days, amounts to approximately one third of the mandatory minimum sentence, making the effect of this time in custody significant in the sentencing process and further supporting the submission that it was clearly unjust to impose the mandatory minimum.
I do not accept this submission in this case because its effect is to undermine the effect of the statutory mandatory minimum penalty. It does this because the appellant also submits that the effect of s 118(7) and s 118(8) of the SA Act, read together with s 86 of the Sentencing Act, is that it is not open to the sentencing officer to sentence an offender to a term of less than 6 months' imprisonment as to do so would offend s 86 of the Sentencing Act. The appellant submitted that s 118(7) and s 118(8) of the SA Act permit a sentence of at least 6 months' imprisonment, if it was not clearly unjust, but not a sentence of less than 6 months' imprisonment. This submission is consistent with the text of the provisions and in particular the reference to 'at least 6 months' in s 118(7) of the SA Act.
The submission also has this effect because of the text of s 87 of the Sentencing Act, which prohibits the sentence for Offence 2 being backdated to take into account time spent in custody for Offence 1.
The result of the combination of these matters is that if a person has served two months in custody prior to sentencing on a different offence, and this alone would make it clearly unjust to impose the mandatory minimum sentence, then the mandatory minimum could be avoided. This would undermining the purpose and effect of the mandatory minimum sentence set out by Parliament. The position may be different if an offender has served a period of imprisonment significantly closer to the 6 month period or greater than the 6 month period. But that is not the case here.
Finally, in the event that I were to conclude that a miscarriage of justice has occurred, and I were to resentence the appellant, for the reasons referred to in this section of the reasons, I would conclude that it is not clearly unjust to order that the appellant serve the statutory mandatory minimum sentence of at least 6 months, backdated to 6 August 2024. That is, I would not materially alter the sentence imposed by the learned magistrate. In these circumstances, there is no substantial miscarriage of justice.

Conclusion

In the circumstances I made the following orders:
1.The appellant is granted an extension of time within which to appeal.
2.The appellant is granted leave to rely on the additional evidence contained in the affidavit of Emma Zillessen affirmed 10 December 2024.
3.Leave to appeal is granted.
4.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Hon Justice Seaward
23 DECEMBER 2024