Pieri v W a Police
[2007] WASC 185
•13 August 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PIERI -v- W A POLICE [2007] WASC 185
CORAM: SIMMONDS J
HEARD: 3 JULY 2007
DELIVERED : 13 AUGUST 2007
FILE NO/S: SJA 1023 of 2007
BETWEEN: MARIO GUISEPPE PIERI
Appellant
AND
W A POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L H JONES
File No :AR 2971 of 2007, AR 2972 of 2007
Catchwords:
Application for leave to appeal and appeal - Conviction of possession of prohibited drug methamphetamine - Whether error in failing to offer offender opportunity of adjournment to obtain advice when Magistrate considering term of immediate imprisonment - Whether error in imposing term of imprisonment rather than a fine - Not taking account of cancellation or suspension of previous grant of parole - Whether error in not referring to discount for plea of guilty or to effect of transitional sentencing provision
Legislation:
Sentence Administration Act 2003 (WA), s 68(1), s 69(1)
Sentencing Act 1995 (WA), s 6(2), s 8
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1)
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Ms R Haylock
Solicitors:
Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abdullah v Allen, unreported; SCt of WA (White J); Library No 970367; 15 July 1997
Attenborough v Western Australia [2005] WASCA 132
Austin v Grapes [2004] WASCA 102
Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 4 March 1999
Chick v The Queen (2000) 114 A Crim R 417
Dinsdale v The Queen (2000) 202 CLR 321
Dixon v Scott [2002] WASCA 280
Fullgrabe v Western Australia [2006] WASCA 138
House v The King (1936) 55 CLR 499
Kezkiropoulos v The Queen (2002) 36 A Crim R 522
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Maroney v Western Australia [2006] WASCA 130
Ryder v Abbott [2007] WASC 41
Tulloh v The Queen, [2004] WASCA 169
Yassin v Williams [2007] WASCA 8
SIMMONDS J:
Introduction
This is an application for leave to appeal heard together with the appeal against the sentence of imprisonment without parole imposed on a conviction on a plea of guilty to a drug related offence. The appellant was self‑represented before the sentencing Magistrate, but not before me.
The grounds for which leave is sought are certain failures in the decision of the sentencing Magistrate, and his imposition of a sentence that was manifestly excessive. The failures were to take certain matters into account and adequately to consider other matters, as well as his failure to permit the appellant an adequate opportunity to put certain matters to him, to advise the appellant of the prospect of a sentence of imprisonment, and to offer the appellant an adjournment to seek legal advice.
At the outset counsel for the respondent conceded that the appeal should be allowed, the appellant had to be re‑sentenced, and, with counsel for the appellant, agreed that I should do the re-sentencing. It will become evident in respect of what ground of appeal the concession was made. However, I permitted the parties to make submissions as to all of the grounds of appeal, as these submissions would also assist me in the re-sentencing. These are my reasons for making the orders setting aside the sentences in question, and providing for the re-sentencing of the appellant in those respects.
I begin by setting out the background to the matter. I then describe the proceedings in this Court in more detail, particularly as to the grounds for which leave to appeal is sought. I then deal with the grounds in turn.
Background
On 13 March 2007 the appellant was stopped by police while driving a vehicle for which the appellant deposes in his affidavit for the purposes of this appeal that he was undertaking repairs. The appellant was a diesel mechanic, and he deposes he was endeavouring by driving the vehicle to identify the source of a problem with the vehicle reported by his customer, the vehicle's owner.
At the stoppage the police located a quantity of methylamphetamine in the vehicle. The quantity was 0.94 grams, in two packets, one of 0.9 grams of brown crystal methylamphetamine, and one of 0.04 grams, of clear crystal methylamphetamine. Methylamphetamine is a prohibited drug for the purposes of Misuse of Drugs Act 1981 (WA), s 6(2). The appellant was charged with possession of a prohibited drug under that provision. I return to the penalty for that offence below.
The appellant was also charged with three offences under the Road Traffic Act 1974 (WA) arising out of the driving of his customer's vehicle.
One of those charges was driving a motor vehicle on a road while legally disentitled to hold a driver's licence contrary to RT Act, s 49(1)(a) and s 49(2)(iii). The proceedings before the learned sentencing Magistrate indicate that appellant’s driver’s licence was then suspended. The maximum penalty for that offence is, pursuant to RT Act, s 49(3)(a)(ii) (applicable by virtue of the appellant's prior driving record, it appears to have been accepted before me), of a fine of not less than 20 penalty units and not more than 80 penalty units, and imprisonment for not more than 18 months.
Another of those charges was driving a vehicle on a road while a valid vehicle licence for that vehicle was not held by the owner of the vehicle, contrary to RT Act, s 15(3). The maximum penalty for that offence was a fine of 10 penalty units: s 15(4).
The third of those charges was driving a vehicle bearing registration plates on a road when those plates were other than the ones issued for that vehicle, contrary to RT Act, s 97(f)(iii). The maximum penalty for that offence was a fine of 32 penalty units: s 107(2).
On 14 March 2007 at the Armadale Magistrates Court the appellant pleaded guilty to all of the charges. On the same day, Magistrate Jones sentenced the appellant as follows:
•On the charge of the offence of driving while under licence suspension, imprisonment for a term of 12 months, to be immediately served, and with 12 months' licence disqualification;
•On the charge of the offence involving methylamphetamine, 5 months' imprisonment, cumulative on that 12 months term;
•On the charge of driving an unregistered vehicle, a fine of $200; and
•On the charge of driving a vehicle with the wrong licence plates, a fine of $250.
The appellant had committed these offences while on parole for four offences for which on 8 June 2006 he had been sentenced to a total term of imprisonment of 14 months. Those offences were breach of bail, burglary and commission of an offence in a dwelling, burglary and commission of an offence in a place, and obtaining of property by fraud. At the time of the offending he had been subject to a return to prison order.
The learned Magistrate made the term of imprisonment for the offence involving methylamphetamine cumulative on that 14 month sentence.
It is not in contest that as a result of the breach of parole, the previous sentences and the sentences the subject of the current proceedings in this Court, the appellant is currently serving the following sentence with the following release dates:
•1,495 days for breach of parole
•12 months on the sentences the subject of the current proceedings, commencing 13 March 2007
•The earliest date for parole is 13 March 2008
•The earliest release date if not granted parole is 16 April 2012.
I return below to certain aspects of that prior sentence.
The proceedings in this Court
By appeal notice dated 24 March 2007 and filed on 30 March 2007, the appellant applied for leave to appeal, representing himself. The draft grounds of appeals were given as:
"1.Manifestly Excessive Sentence
2.No Parole Component Attached
3.No Concurrency on Two Sentences Totality Principal [sic]
4.No Discount for Early Plea of Guilty at the Earliest Opportunity
5.No Consideration to Personal Reasons Given
6.No Consideration Towards Deffendents [sic] Possitive [sic] Changes
7.No Leniancy [sic] Toward Deffendents [sic] Situation
8.Number of cases in presidence [sic]
9.No Consideration to Other Available Actions."
By orders on the application for leave dated 23 April 2007, Blaxell J ordered that the application for leave to appeal and the appeal be heard together.
On 1 May 2007 the appellant received a grant of legal aid, and subsequently Legal Aid filed a minute of proposed amended grounds of appeal. The grounds so set out are as follow:
"1.The learned Magistrate erred in law by failing to give the Appellant an adequate opportunity to provide information as to the appellant’s personal background and circumstances.
2.The learned Magistrate erred [in] law in failing to advise the Appellant of a prospect of imprisonment and offer the Appellant an adjournment to obtain legal advice.
3.The learned Magistrate erred in law by imposing a sentence of 5 months imprisonment for the offence of possession of methylamphetamine. This sentence was manifestly excessive taking into account the penalty ordinarily imposed for offences of this type, the place of this offence in the scale of seriousness for offences of this type, the Appellant's plea of guilty and the personal circumstances of the Appellant.
4.The learned Magistrate erred in law by failing to taking into account the totality principle in deciding to make each sentence of imprisonment cumulative upon each other and cumulative upon a previous sentence.
5.The learned Magistrate erred in law by failing to apply a reduction in the sentences of imprisonment imposed to take into account the plea of guilty of the Appellant and to take into account the transitional sentencing provisions.
6.The learned Magistrate erred in law by failing to adequately consider the suitability of the Appellant for parole. In particular, the learned Magistrate failed to invite the Appellant to make submissions in relation to suitability for parole."
It will be seen the grounds so put forward both vary the draft grounds in the appeal notice, and add to them. However, by agreement of the parties, the grounds so put forward were treated as those forming the basis of the hearing before me.
Grounds 1 and 2: Failing to give an adequate opportunity to provide information as to the appellant's background circumstances; and failing to advise of a prospect of imprisonment and offer an adjournment to obtain legal advice
These two grounds were dealt with together. For reasons that will become apparent, they are in my view properly so dealt with, as they are inter‑related.
At the sentencing hearing on 14 March 2007, after the prosecutor had recited the material facts, the learned Magistrate indicated to the appellant he had been before the Armadale Magistrates Court on 8 June 2006 on similar driving related charges to those he then faced.
The certified copy of traffic convictions for the appellant shows that on 8 June 2006 he was convicted of various driving related offences committed on various dates, and sentenced as follows:
•Driving with a licence under suspension on 14 November 2005 ‑ imprisonment for 1 month, licence cancelled and disqualified for 12 months, cumulative;
•Driving an unlicensed vehicle apparently on the same date ‑ fine of $50;
•Driving a vehicle with forged or fraudulently altered false number plates apparently on the same date - fine of $50;
•Driving with a licence under suspension on 16 March 2006 ‑ imprisonment for 6 months, licence cancelled and disqualified for 12 months, cumulative;
•Driving an unlicensed vehicle, apparently on the same date ‑ fine of $50;
•Driving a vehicle with forged or fraudulently altered false number plates, apparently on the same date - fine of $50;
•Driving with a licence under suspension on 14 March 2006 ‑ imprisonment for 1 month, licence cancelled and disqualified for 12 months, cumulative / concurrent.
The learned Magistrate after referring to the degree of identity of the charges on that occasion with those he faced for sentencing and that he had not long been released from gaol (the date proved to be 6 January 2007) provoked this response from the appellant and the resultant exchange with the learned Magistrate (TS 4 – TS 5):
"PIERI, MR: No I haven't, sir. No, I haven't, and just starting to make a life for myself, trying to get a business together, get married and ---
HIS HONOUR: Well, why did you drive yesterday?
PIERI, MR: I was holding onto this car for these people and wanted to see what the noise it was making in the front end, and it was stupid choice.
HIS HONOUR: It's more than stupid, I think.
PIERI, MR: It was ridiculous, yeah, I know.
HIS HONOUR: I mean, you really – I'm in a situation where my hands are tied. You have to go back to gaol.
PIERI, MR: There's no other avenue, sir? I mean, gaol I do not believe to be the answer. I have been ‑ I have just ---
HIS HONOUR: Well, I don't either. It’s obviously not the answer for you? What is it?
PIERI, MR: I believe something within the community.
HIS HONOUR: Chop your foot off?
PIERI, MR: Yea. Yeah, something within the community would be far more beneficial to me, sir. I have just been ---
HIS HONOUR: Are you working?
PIERI, MR: --- in the process of applying – yeah, I have been in the process of applying for an extraordinary driver's licence and everything."
At this point the prosecutor interjected that the appellant was the subject of a return to prison order, which the learned Magistrate had the appellant confirm, which resulted in the following exchange (TS 5):
"HIS HONOUR: You don't do anything right.
PIERI, MR: Yeah, I can, I can. I was doing everything right. My fiancee is here in the court and I'm sure she will vouch for me that it was a legitimate reason why I did not report for parole last week. I did ring them up and let them know and I can't understand how it's been ---"
The learned Magistrate then explored with the appellant on what basis the return to prison order had been made, which resulted in the following exchange:
"PIERI, MR: Well, it's actually two occasions, sir, which was ---
HIS HONOUR: Well, now, it's two. It one a moment ---
PIERI, MR: No, but I mean, it's all consisting of one, because it's with failing to report for the urinalysis as directed as well, which was at the same time.
HIS HONOUR: Obviously your urinalysis, you would have failed that because you were found in ---
PIERI, MR: No, actually, I would not have, because I had not been using.
HIS HONOUR: Well, what's the ‑ whose methamphetamine was that?
PIERI, MR: That was mine, but I ---
HIS HONOUR: You weren't using it?
PIERI, MR: Not at that time I had not, no.
HIS HONOUR: You must have been. What would you have it for?
PIERI, MR: This was for supposedly this weekend. I was, you know, going away and ---"
Then followed an exchange between the learned Magistrate and the appellant concerning his release from imprisonment for the offences of burglary, breach of bail and obtaining of property, in which the appellant confirmed he had been released from prison on those offences on 6 January 2007. This resulted in the following exchange (TS 6 – TS 7):
"HIS HONOUR: So you have only been out for a very short time.
PIERI, MR: Three months, yes, and I mean, honestly, sir, it was a very stupid and ridiculous mistake. I mean, my fiancée has been driving me around doing everything. We have been ‑ and actually been doing quite well. It's just that one time in my life that I have found some stability in my life and ---
HIS HONOUR: You go and stuff it up.
PIERI, MR: --- I made a mistake, yeah, and I strongly if I don't get further imprisonment over this, that my parole officer will do everything in her care ---
HIS HONOUR: What's that?
PIERIE, MR: I believe that if I don't get any further imprisonment over this matter that my parole officer will do everything in her power to get me back on parole, because they ‑ she has told me there is much more opportunity for me out there than in prison.
HIS HONOUR: Part of your parole would have indicated that you are to be clean urinalysis and you are not to have any – not to take an ---
PIERI, MR: Actually, sir, that was not part of my parole when I was released from prison. It was only made a condition about two weeks ago.
HIS HONOUR: Of course it would have been. I mean, part of the parole is you are not to commit any offences.
PIERI, MR: Yes, I do completely understand that, sir, and I can assure you it would never happen again. I have too much to lose."
At this point the learned Magistrate asked for the prosecutor's view of the matter. The prosecutor stressed that the offences had been committed while on parole, and submitted there was "very little option for you other than immediate imprisonment" (TS 7).
At the conclusion of that submission, the following exchange between the appellant and the learned Magistrate ensued (TS 8 – TS 9):
"PIERI, MR: Sir?
HIS HONOUR: Yes.
PIERI, MR: This is what I was doing. I did not realise that the number plates on that vehicle were false. That is as honest as I can be. I did not realise at any time that that vehicle was unregistered. I have been working, sir.
HIS HONOUR: Mario, look, you - I have got no choice. I have gone through every sentencing possibility open to me. I have heard what you have said, I have looked at your record, and I have noted that you were before this court in June of last year, and it seems that you were for burglaries and for driving under suspension - three, I think, driving under suspension. In fact, it's very similar offences, apart from the meth - possession of methylamphetamine. Very similar offences for which you were sentenced to a term of imprisonment back in June last year.
I note that you have just been released from prison in January of this year, but unfortunately you continue to reoffend. The point is, as you say, well, gaol does not work. Of course it does not work, but there needs to be general and specific deterrence.
PIERI, MR: Sir - ‑ ‑
HIS HONOUR: I understand that you - well, you have had your opportunity of telling me. I understand that you are in a stable relationship with your fiancée. I understand that.
PIERI, MR: Which I am very fearful of losing.
HIS HONOUR: I mean, you were getting your life back in order and I understand that and will take that into consideration. However, it seems to me that no matter what is set up for you and put on your plate there for you to deal with - and in this case your life was going swimmingly, I thought, it seems. It seems that everything was going well, you have got a stable relationship. What do you do? You go out and you get yourself some methylamphetamine to use this weekend, if you can get away from the CJS people, and you are driving whilst under suspension.
You say it was a silly mistake because you were trying to look at the car for a friend. There's not even anywhere near an excuse for that. I cannot think of any other reason other than you just have got no regard whatsoever for the law and for the orders of the court and for your own welfare and wellbeing as far as being out of prison.
PIERI, MR: Could I make a suggestion, sir?
HIS HONOUR: I have made my suggestions. My suggestion is – and no, I don't need your suggestion. My only decision I can make, and I have to take this, is that in relation to the driving whilst under suspension you will be imprisoned again immediately for a period of seven months, cumulative upon the present term; 12 months' cumulative disqualification of your licence. The methylamphetamine, there will be a five months' imprisonment cumulative on that same term, and so that's on top of the ones you are already serving. $200 fine for the unregistered and $250 fine for the wrong plates. Thank you.
PIER, MR: Cumulative?"
That concludes the transcript.
It will be noted that the learned Magistrate during these exchanges indicated to the appellant he was facing immediate imprisonment, with the reference that "my hands are tied" in that respect (TS 5). It will also be noted the learned Magistrate had allowed the appellant the opportunity to describe the circumstances of the offending, of the breach of his parole and his personal circumstances, and echoed back to the appellant the learned Magistrate's understanding of what he had been told in both respects.
However, there was undoubtedly much more that the appellant could have said to the learned Magistrate, in respect of the breach of his parole and his personal circumstances at least. He might also have addressed the learned Magistrate on his criminal and traffic convictions record. In doing this he would in my view clearly have benefited from the opportunity to obtain advice as to these matters.
The appellant in his affidavit of 21 June 2007 refers to the various forms of stress that he was under at the time of the offending. Those forms were from the illness of his sister, to whom he was close, and from his efforts to establish his own business while also working for another business. His affidavit indicates that the first source of stress at least goes to explain his possession of the methylamphetamine.
The affidavit also provides detail as to the duration (17 months) of the appellant's relationship with his de facto partner. The partner has a 7 year daughter for whom he is a father figure. The appellant also has a 77‑year‑old father for whom he is "concerned".
The affidavit also describes the appellant's education, his qualification as a diesel mechanic and his work as an auto body builder.
The affidavit further describes a heart attack he suffered in 2000, and that while in prison he had gone back on to heart medication due to the stress of being in prison.
The affidavit also sets out detail as to aspects of his extensive traffic and criminal record, including one of the convictions for burglary on 8 June 2006, certain armed robbery offences, and indicates that his previous offences of driving under suspension "have generally occurred in relation to driving for work purposes concerning my work in the motor repair industry". On one occasion he had been driving an ex-partner to hospital.
There is no doubt that those additional matters were ones that could, under Sentencing Act 1995 (WA), s 6(2), have been put to the learned Magistrate as relevant to the exercise of his sentencing discretion. Some at least were mitigatory.
It will be noted that the learned Magistrate at no time provided the appellant with the opportunity to seek advice as to the submissions he might make, or that might be made on his behalf, in relation to sentence. A proper opportunity to make such submissions would in my view have been one that would have permitted reference to the further matters to which I have just referred. The importance of such an opportunity lay, of course, in the prospect of imprisonment.
I note the position in respect of matters of this kind that has been described as "settled" in this State referred to in Yassin v Williams [2007] WASCA 8, Blaxell J, at [18], [19] where, after considering authorities from both South Australia and this State, his Honour said this:
"It would therefore seem that in this jurisdiction (as in South Australia) it is 'well settled' that a Magistrate considering a sentence of immediate imprisonment for a self-represented offender should first inform the defendant of that prospect and offer the opportunity of an adjournment for the purpose of legal advice. Of course, in respect of minor offences in some remote areas of the State where there is no real hope of a defendant obtaining legal advice, it might be impractical to take this step. However, in the present instance, it would have been very easy for the Magistrate to have stood the matter down until later in the day to enable the appellant to consult duty counsel. By then the appellant would probably have changed his mind about obtaining legal advice given that his expectations of a fine had evaporated.
The late involvement of duty counsel would also have had the benefit of bringing all of the appellant's personal circumstances to the attention of the court before sentence was passed. Some of those circumstances were undoubtedly mitigatory in effect, and s 6(2) of the Sentencing Act required that they be taken into account. Even if the Magistrate had remained of the opinion that a sentence of immediate imprisonment was the only appropriate sentence, this additional information may have had some impact on the length of the term imposed."
It follows I would uphold the first two grounds of appeal.
Whether or not that would result in disturbing the sentence imposed is a different matter. The fact the appellant was denied a proper opportunity to present mitigatory matter does not mean that the sentence imposed was necessarily "wrong": Yassin (supra), at [21]. I return to this matter below.
Ground 3: Manifestly excessive sentence for the offence in relation to methylamphetamine
The penalty for the simple offence in MD Act, s 6(2), is a fine not exceeding $3,000 or imprisonment for a term not exceeding 2 years, or both: s 34(1)(e).
Counsel for the appellant put to me that the usual penalty for offences of this sort whether a first or a second offence is a fine. I was referred to Criminal Law of Western Australia, at [20.165.10], which in turn refers to Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 4 March 1999. That case was concerned with possession of cannabis and a smoking implement. The offender had a prior conviction for possession of the same drug and of a "bong". His Honour reviewed a number of other decisions, all concerning possession otherwise than for the purposes of sale or supply of cannabis and smoking implements, saying this (at page 4):
"In this case, the appellant has, through counsel, provided a very useful schedule which I will incorporate into these reasons showing the approach of this Court over a number of years as to offences of this nature. The cases would suggest that the range of offences for what might be described as a first offence are as decided by Owen J in Burrows v Merdzan, unreported; SCt of WA; Library No 8872; 10 May 1991, between $50 to $150.
While the range of offences for a second offence is less clear, in my opinion, the range from my reading of the authorities would be somewhere between $100 and $300 to $400 depending on the circumstances.
When a judicial officer proposes to go outside the range of penalties most commonly imposed for a particular offence, he or she has an obligation to explain what special circumstances have been taken into account to justify the departure from that range. In this case the Justices gave no reasons as to why they considered the fines of $500 and $1,000 respectively were necessary.
There was nothing in the facts which took the matter beyond the normal range in respect of each offence."
I note, however, that the prohibited drug in this case was one which the Courts have identified as at the higher end of the range of seriousness, and render matters of general deterrence more significant than they would be otherwise: see on methylamphetamines, and on amphetamines more generally, Kezkiropoulos v The Queen (2002) 36 A Crim R 522, CCA WA, per Olssen AUJ, Malcolm CJ agreeing, at [58]; Chick v The Queen (2000) 114 A Crim R 417, per Anderson at [25], quoted with approval in Kezkiropoulos, per Steytler J, at [7]; and Tulloh v The Queen, [2004] WASCA 169, per Miller J, Murray J agreeing, at [14] and McLure J, at [47].
At the same time, these authorities do not it seems to me require that a sentence of imprisonment be imposed in each case.
In the event, I do not consider I need to determine the learned Magistrate was in error in imposing a sentence of imprisonment rather than a fine in this case, in the sense required for such a determination to be made. That sense of error is identified in the well known authorities of Lowndes v The Queen (1999) 195 CLR 665 and Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J, at [3], quoting from House v The King (1936) 55 CLR 499 at 505. I do not need to apply that sense because I consider that there was, as I will shortly explain, an error in the sentencing of the appellant on the two offences such that the sentences must be set aside, and the offender re‑sentenced on them.
Ground 4: Failing to take into account the totality principle in deciding to make each sentence of imprisonment cumulative upon each other and cumulative upon a previous sentence
It was not clear from the material in front of me whether or not the appellant’s parole had been cancelled or suspended as result of the breaches of parole in question. However, in either case, the appellant had to resume service of the terms of imprisonment in respect of the offences on which he had been sentenced on 8 June 2006: Sentence Administration Act 2003 (WA), s 68(1) and s 69(1). In either case this would not prevent the making of another early release order: s 68(5) and s 69(5). I have already indicated the remaining time for the period of that imprisonment.
It is not in contest that the learned sentencing Magistrate was not informed of the effect of the suspension or cancellation, and so could not be said to have taken it into account, as he was required to do, in his consideration of the totality principle: see Maroney v Western Australia [2006] WASCA 130, per Martin CJ, Wheeler and Buss JJA agreeing, at [24] ‑ [27].
It was common ground between the parties that the effect of this determination was that the appellant had to be re-sentenced. In my view that necessity does indeed arise. Indeed, there is another ground for so determining, as I will explain next.
Ground 5: Failing to apply a reduction in the sentences of imprisonment to take into account the plea of guilty and the transitional sentencing provisions
The appellant's plea of guilty was at the earliest opportunity. It was common ground this made a discount of at least 25 per cent appropriate: see Dixon v Scott [2002] WASCA 280, Barker J, at [34] ‑ [38]. In my view a higher discount would be appropriate in this case, given the early admission of the appellant of his liability at least for driving under licence suspension. On such higher discounts, see Attenborough v Western Australia [2005] WASCA 132, per McLure JA, Roberts‑Smith and Pullin JJA agreeing, at [10] and [11]. I note that there was no equivalent admission as to the methylamphetamine, and the statement of material facts put to the learned sentencing Magistrate indicated there had been an initial attempt to conceal the drug (see TS 4).
However, the appellant's circumstances at the time in relation to the drug, to which I have already referred, and his ready acceptance of responsibility for it, indicate to me that no distinction should have been made with respect to the two offences.
In any event, the learned sentencing Magistrate made no reference to any reduction he had made for the plea of guilty, whether by way of quantification of a discount or otherwise. As a plea of guilty is a mitigating factor, this was contrary to Sentencing Act 1995 (WA), s 8(4), read with s 8(2). In such circumstances an inference may be drawn that he had erred in failing to give this factor any weight: see Ryder v Abbott [2007] WASC 41, Templeman , at [28], [29]. This inference would in my view be particularly liable to be drawn in a case where the judicial officer was not experienced in sentencing matters. There appears to be some indication from the transcript that that might have been the case for the learned sentencing Magistrate in this case: see TS 5. Whether or not it was the case he was experienced, the inference in my view is one that should be drawn in this case, particularly in view of the magnitude of the discount that might have been expected to be given. I recognise of course that a failure to specify the percentage of the discount is not itself appealable error: Fullgrabe v Western Australia [2006] WASCA 138, per Martin CJ, Wheeler and Roberts‑Smith JJA agreeing, at [29].
It was common ground that the learned sentencing Magistrate failed to refer to the reduction of the sentence to two-thirds of that otherwise appropriate by reason of the transitional period provision in Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2(1). While there is no requirement to state that fact in open court, it is well established that the reasons for a judicial decision must be stated so that the appellate court is in a position to determine whether or not the decision is erroneous: Lloyd v Faraone [1989] WAR 154, per Malcolm CJ, Brinsden J agreeing, at 163. There is no reason, from the length of the sentences, and particularly allowing for the maximum term of 18 months for the driving offence, after allowing for a reduction for the plea of guilty, to consider that the transitional period reduction had in fact been allowed for.
It follows I would uphold the present ground of appeal. It also follows, in my view, that on this ground alone the appellant would fall to be re‑sentenced on the offences in question.
Ground 6: Failing to adequately consider the suitability of the appellant for parole: in particular, the learned Magistrate failed to invite the appellant to make submission in relation to suitability for parole
It was common ground that the learned Magistrate did not invite the appellant to make a submission in relation to this matter. The question of making a parole eligibility order was open for both sentences in this case, given the prior sentence of imprisonment in respect of which parole had been suspended or cancelled: Sentencing Act, s 89(2). It is an error not to consider the question of parole in such a case: Abdullah v Allen, unreported; SCt of WA (White J); Library No 970367; 15 July 1997. Further, where the Court intends not to make a parole order, it should invite submissions as to why an order for parole should be made, at least if there is reason to consider that the party concerned would not have appreciated that parole eligibility might be in question: see my judgment in Austin v Grapes [2004] WASCA 102, at [23].
In this case, there were reasons why parole eligibility was in issue: see Sentencing Act, s 89(4)(a) ‑ (c), all of which would appear to have been engaged, at least arguably, in this case. However, the appellant was a self‑represented litigant, and I do not consider the learned Magistrate could readily have concluded he would have been aware of the effect of that provision.
It follows I would uphold the present ground of appeal.
While it seems to me an error was indeed made by the learned Magistrate in the respect contended for, it is not evident to me, in view of Sentencing Act, s 89(4), that the decision as to parole eligibility would have been otherwise had the opportunity to make submissions been provided.
However, in view of my earlier conclusions I do not consider I need to arrive at a final conclusion on the present point.
Conclusion and orders
I have concluded that, on grounds 4 and 5 at least, there were errors in the decision of the learned sentencing Magistrate either of which requires the sentences appealed against to be set aside.
I discussed with counsel what orders should follow from this conclusion. They agreed I should re-sentence the appellant on the two offences. In doing so, I should take into account, for the purposes of the application of the totality principle, not only the sentence for the offences for which he had been sentenced on 8 June 2006, but also the sentences for the driving offences imposed on 14 March 2007, against which no appeal had been taken. I agreed.
I so ordered, and re‑sentenced the appellant accordingly.
0
14
3