Prieto v Millar - [2018] WASC 80

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PRIETO -v- MILLAR [2018] WASC 80

CORAM: MCGRATH J

HEARD: 15 MARCH 2018

DELIVERED : 16 MARCH 2018

FILE NO/S: SJA 1051 of 2017

BETWEEN: ANTHONY CHRISTOPHER PRIETO
Appellant
AND
ADAM MILLAR
First Respondent
TANIA SINDEN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M WHEELER
File No  :MI 6238 of 2017, MI 6239 of 2017, MI 6240 of 2017, MI 6241 of 2017, RO 5786 of 2015

Catchwords:

Criminal law - Sentencing appeal - Breach of suspended sentence - Intention to defraud - Resentence - Concurrent sentences

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14, s 41
Criminal Code (WA), s 409
Misuse of Drugs Act 1981 (WA), s 6
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 6, s 80

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Ms S H King
First Respondent           :     Ms G N Beggs
Second Respondent      :     Ms G N Beggs

Solicitors:

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

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

Alabbasi v The State of Western Australia [2012] WASCA 133
Brown v The State of Western Australia [2009] WASCA 74
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Finnigan v Neil [2007] WASC 199
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Monteleone v Versperman [2009] WASC 349
Munda v The State of Western Australia [2013] HCA 38; (2013) CLR 600
R v Alimic [2006] VSCA 273
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skipworth v The State of Western Australia [2008] WASCA 64
Trew v The State of Western Australia [2004] WASCA 155
Vargess v Hughes [2017] WASC 291
MCGRATH J:

Introduction

The appellant was serving a 9 month term of imprisonment suspended for 12 months. As a consequence of being in breach of the suspended imprisonment order, by further offending, the appellant was sentenced to serve the 9 month term of imprisonment. In addition, concurrent terms of imprisonment were imposed in respect of the further offences.
The appellant now seeks leave to appeal the term of imprisonment on the ground that the sentencing magistrate erred in concluding that it would not be unjust that the appellant serve all of the previously suspended term of imprisonment. The appellant also appeals the terms of imprisonment for the other offences on the basis that each term is manifestly excessive.
For the following reasons, I have determined that leave to appeal should be granted and that the appeal is allowed.

Magistrates Court proceedings

On 30 January 2017, the appellant was convicted on his own plea of one charge of driving a motor vehicle on a road whilst not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act2008 (WA) and whose authority was at the time suspended contrary to s 49(1)(a) of the Road Traffic Act1974 (WA). The facts upon which the appellant was convicted were that on 14 August 2015 he was driving the motor vehicle in circumstances where his authority had been suspended for 9 months by court order made 25 November 2014.[1]
[1] ts 2 (30/01/17).
Her Honour Magistrate Edwards imposed a 9 month term of imprisonment suspended for 12 months. Her Honour made the following sentencing remarks: [2]
As you're aware, for sentencing purposes, this is your eleventh conviction, although, I think, in terms of numbers, it's your thirteenth. It was an offence that was committed on 14 August 2015 and the most recent conviction before that date was 25 November 2014, so it's a space of nine months later, you're driving under suspension again. I'm told the circumstances related to the battery in the vehicle going flat, and it had to be jump started and you drove the vehicle.
It's not at the highest end of the scale as far as driving under suspension is concerned. However, given the number of prior convictions, Mr Prieto, it is certainly warranted for a term of imprisonment. The question then to be answered is whether or not that term ought to be suspended. There has been, I'm told, since the commission of this offence, no similar offending. You have work available to you. You have recently had a naltrexone implant, and you have support from family members.
Given all of those circumstances, Mr Prieto, it's only by the merest of margins, that I'm persuaded to suspend the term of imprisonment I'm about to impose. Its nine months suspended for a period of 12 months. That means if during the next 12 months you were to commit any offence which can carry a term of imprisonment, and then the court can order that you serve the nine months that I have suspended today. In addition to that, you are disqualified from obtaining a driver's licence for a period of 12 months, and that is cumulative on any other current disqualification. In addition, you are to pay court costs of $169.10.
[2] ts 5 – 6 (30/01/17).
On 15 August 2017, the appellant was convicted on his own plea of five separate charges and then sentenced by his Honour Magistrate Wheeler in respect of the five offences and being in breach of the suspended imprisonment order. The offences and the respective sentences imposed are outlined in the following table:

Date	Charge No	Offence	Max Penalty/Summary	Sentence imposed
26/11/16	MI 6240/17	Intent to defraud by deceit (s 409 Criminal Code)	2 years/$24000 fine (summary) 7 years (indictment)	3 months' imprisonment Concurrent
26/11/16	MI 6241/17	Intent to defraud by deceit (s 409 Criminal Code)	2 years/$24,000 fine (summary) 7 years (indictment)	3 months' imprisonment concurrent
15/01/17	MI 6239/17	Intent to defraud by deceit (s 409 Criminal Code)	2 years/$24,000 fine (summary) 7 years (indictment)	3 months' imprisonment concurrent
10/03/17	MI 6238/17	Intent to defraud by deceit (s 409 Criminal Code)	2 years/$24,000 fine (summary) 7 years (indictment)	3 months' imprisonment concurrent
25/05/17	MI 6237/17	Possession of cannabis (s 6(2) Misuse of Drugs Act 1981)	2 years / $2,000 fine	$200 fine
14/08/15	RO 5786/15	No authority to drive s 49(1)(a) Road Traffic Act 1974 (WA)	Breach options (s 80 Sentencing Act)	9 months' imprisonment Head Sentence
Total effective sentence				9 months' imprisonment; $200 fine

The facts in respect of the five offences were accepted by the appellant at the sentencing hearing on 15 August 2017.[3] The facts of the possession of cannabis charge were that at 8.30 am on 25 May 2017 at the Midland Tourist Caravan Park the appellant was searched and found on his person was 3.4 grams of cannabis. The cannabis was for personal use only.
[3] ts 3 (15/08/17).
The four fraud charges involved the appellant approaching the cashier in a retail business to make payment for the purchase of a nominal item. The appellant offered the cashier a larger Australian bank note. The appellant requested that the change be modified whilst secreting part of the change provided. This modus operandi was used in respect of all four fraud offences.
On 26 November 2016, the appellant committed two of the fraud offences. Charge MI 6240/17 involved the gaining of a benefit in the amount of $50.00 cash and a calendar to the value of $5.00. Charge MI 6241/2017, which was committed on the same date, involved the gaining of a benefit in the amount of $100.00. On 15 January 2017, the appellant committed Charge MI 6239/2017 which involved the gaining of a benefit in the amount of $40.00 cash and a bottle of water to the value of $1.95. On 10 March 2017, the appellant committed Charge MI 6238/2017, being the offence committed during the period of the suspended term, and gained a pecuniary benefit in the amount of $50.00 cash and throat lozenges valued at $5.00.
Therefore, the total amount of benefit gained by the fraud from the four fraud offences is in the amount of $251.95. The fraud offence that occurred during the period of the suspension involves a benefit gained in the amount of $55.00.

Magistrate's reasons

On 15 August 2017, his Honour Magistrate Wheeler sentenced the appellant for the five offences. However, only two offences occurred during the period of the suspended imprisonment order, being the defrauding charge committed on 10 March 2017 (MI 6238/17) and the possession of cannabis charge committed on 25 May 2017 (MI 6237/17). As a consequence of being convicted of those two offences the appellant was in breach of the suspended imprisonment order.
On 15 August 2017, after receiving the appellant's plea in mitigation from counsel,[4] his Honour delivered his sentencing remarks as follows:[5]
Mr Prieto, please stand. I take into account your pleas of guilty to these charges at an early occasion; everything counsel has very ably said on your behalf. Your circumstances are difficult. I take into account the pre‑sentence report and the attempts you've been making to get your addiction under control. The trouble is, though, you were placed on a suspended term of imprisonment, and that is a conditional release from prison whilst you comply with all the laws, whilst you agree and undertake not to commit any further jailable offences.
But you haven't done that. You've committed a fraud in that period and you've possessed cannabis, which many people aren't aware actually carried a jail term. No one ever gets imprisonment for it, but you didn't have the luxury of doing it, and I am required to imprison you on that - call that in unless circumstances have arisen or become known since the sentence was imposed in January which would make it unjust to do so. With respect, I see no such circumstances.
It is a different type of offence, that's for sure, but Parliament does not say in the Act that they require you to commit the same or similar offence before you can be imprisoned. They've simply said 'no offences carrying a jail term'. I've looked at the circumstances of both. The cannabis one is a minor charge. It is considered by the community as a minor charge, so that - but the fraud is not. The fraud is you returning to type. You also committed a fraud on 15 January, 26 November and - two on 26 November, which don't breach the order.
I appreciate that, because they were from 2016. However, your record indicates a number of stealing and fraud charges over the journey, and that's not unusual to see someone in the grips of substance abuse to have those issues. But you are a mature man of mature years, born in 1974. I don't see any basis for not calling the sentence in, and I'm going to do so. That will be the total, however, taking into account your attempts to rehabilitate by making everything else concurrent.
There's nothing - no backdating that can apply on an imprisonment - calling in a suspended imprisonment, so you have to pay what you owe. You've imprisoned for nine months, eligible for parole on all those matters. The possession of cannabis: fine of $200, order for destruction. All the fraud charges: you will be imprisoned for three months on each, concurrent with each other and concurrent with the nine months. So it's a nine month term. Eligible for parole. Thanks, Mr Prieto. Please stand down.
[4] ts 3 ‑ 4 (15/08/17).
[5] ts 5 ‑ 6 (15/08/17).

Appeal

This is an appeal under pt 2 of the Criminal Appeals Act, which means that leave to appeal is required.[6] 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.[7]
[6] Criminal Appeals Act s 9(1).
[7] Criminal Appeals Act s 8.
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.[8] The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[9]
[8] Criminal Appeals Act s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).
[9] Criminal Appeals Act s 14.
The notice of appeal raises two grounds being:
1.Having regard to the breaching offence, the personal circumstances of the appellant and sentencing standards it was unjust to activate the suspended sentence.
2.The sentence of three months' imprisonment for fraud was manifestly excessive in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender.
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.[10] Further, 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 which accords with the statutory regime.[11]
[10] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
[11] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
I will first consider ground two before turning to ground one.

Ground 2

By ground 2 the appellant contends that the terms of imprisonment imposed for the fraud offences were manifestly excessive. The respondents' written submissions contend that the ground properly understood is a claim of a breach of the totality principle.[12] During the hearing of the appeal it was made clear by the appellant that the ground is in respect of each of the sentences imposed on the four fraud offences. The ground is that each sentence was manifestly excessive in that a different type of sentence should have been imposed. That is, it was not within his Honour's discretion to impose a term of imprisonment in respect to each respective fraud offence.
[12] Respondents' Submissions [23].
Therefore, I will consider ground two as contending that the sentence imposed in respect of each of the four fraud offences was manifestly excessive. The ground therefore asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires that the court be satisfied that the sentence is unreasonable or plainly unjust.[13]
[13] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. The appellant contends that the wrong type of sentence was imposed. To determine whether a sentence is excessive involves considering the maximum sentence imposed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[14]
[14] Munda v The State of Western Australia [2013] HCA 38; (2013) CLR 600.
In considering this ground I am mindful that pursuant to s 6(4) of the Sentencing Act 1995 (WA) a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Further, s 6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating factors, any mitigating factors and the vulnerability of any victim of the offence.
The maximum penalty for the fraud offences was 2 years' imprisonment and a $24,000 fine when dealt with summarily and 7 years' imprisonment upon indictment.
The nature of the fraud offending may be characterised as low level unsophisticated acts of fraud. In short, the appellant enters a retail business and deliberately causes confusion when purchasing an item of nominal value resulting in the cashier giving an incorrect amount in change. The appellant adopted this modus operandi when committing each of the four fraud offences.
The total value of the four acts of fraud is approximately $250.00. The breach fraud offence is in the amount of $55.00. The amount that is defrauded is a factor in assessing the relative gravity of a fraud offence.[15] The breach fraud offence, given its unsophisticated means and the amount that was defrauded, may be characterised as being at the lowest level for fraud type offences.
[15] R v Alimic [2006] VSCA 273 [10].
I now turn to the antecedents of the appellant and factors referable to him. The personal circumstances of the appellant are outlined in the pre-sentence report dated 9 August 2017. That pre‑sentence report was before his Honour at the sentencing hearing on 15 August 2017.
The appellant is 43 years of age with a criminal record. The appellant's prior offending has involved both driving offences and drug offences. Whilst the appellant has no record of violent offending he does, relevantly, have a prior conviction in 2010 for fraud.
Regrettably, the appellant has a history of entrenched illicit drug use and alcohol abuse issues. Consequently, the appellant's participation in the workforce has been intermittent and he has been relying on Centrelink benefits for the last two years.
The appellant at the time of the breach offending did not have stable accommodation and had financial difficulties. The author of the pre‑sentence report confirmed that the appellant was seeking residential rehabilitation.[16] The appellant has made previous attempts to rehabilitate himself through Freshstart by having a naltrexone implant in February 2017. The appellant received his first implant in 2010 and completed a three month recovery programme. The appellant was making inroads in respect to his addictions. He is positively engaged with professional persons and is currently in a stable relationship.
[16] Pre-sentence Report dated 15 August 2017.
The appellant has endeavoured to make restitution to the persons who were defrauded.[17] This supports the finding that the appellant is remorseful for his offending.
[17] Respondents' Submissions [14].
I now consider the standard of sentences that are customarily observed with respect to this type of offending. The appellant acknowledges that there is no tariff for this type of offending and that the circumstances and seriousness of these offences can differ widely.[18] The appellant, whilst accepting that comparable cases of similar offending have not been identified, submitted that a number of authorities may assist. The appellant relies upon Monteleone v Versperman,[19] Vargess v Hughes,[20] Alabbasi v The State of Western Australia[21] and Finnigan v Neil[22]. I have considered those cases.
[18] Skipworth v The State of Western Australia [2008] WASCA 64 [70].
[19] Monteleone v Versperman [2009] WASC 349.
[20] Vargess v Hughes [2017] WASC 291.
[21] Alabbasi v The State of Western Australia [2012] WASCA 133.
[22] Finnigan v Neil [2007] WASC 199.

The respondent did not refer the court to any particular cases rather observed that the cases relied upon by the appellant are not comparable and that sentences imposed in other cases do not dictate the limits of the sentencing discretion.[23]
[23] Respondents' Submissions [10].
However, the cases relied upon by the appellant do establish that having regard to the place which the criminal conduct of the appellant has on the scale of seriousness of offences of that type the appellant's offending is at the lower end of the scale. The cases do support the conclusion that a term of imprisonment would not, ordinarily, be imposed for the type of fraud offences committed by the appellant.
Having regard to all relevant factors and circumstances, I do not consider that only imprisonment was justified or that the protection of the community required that type of sentence. To the contrary, a disposition of a fine or a community based order was the appropriate type of sentence. The sentences of imprisonment imposed on each of the four fraud charges were manifestly excessive.
Accordingly, leave to appeal is granted on ground two and the ground is allowed.

Ground One

I now turn to ground one, which is the gravamen of the appeal, being the contention the magistrate erred in concluding that it would not be unjust to order the appellant serve all or part of the previously suspended sentence of imprisonment. I turn first to the legislative provisions.
Section 80(1) of the Sentencing Act provides:
(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 suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods -
(a)unless an order under this paragraph or paragraph (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 or paragraph (a) 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 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 suspended imprisonment.
In considering the circumstances which have arisen since the imposition of the suspended term, the court may have regard to the length of the suspended imprisonment, the circumstances of the offence for which the suspended sentence was imposed and factors personal to the offender which may provide a context for the consideration of the circumstances which have arisen since the suspended sentence was imposed.[24]
[24] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364.
Section 80(1) must be read with s 80(3) which provides:
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 suspended imprisonment was imposed.
Therefore, the issue that the appellate court must determine is whether it was open to the magistrate at first instance not to decide that the order for the service of the suspended sentence would be unjust.
Section 80 of the Sentencing Act was considered in Hall v The Queen, where Murray J (with whom Kennedy & Pidgeon JJ agreed) stated:[25]
[T]he section requires the Judge to order service of the suspended imprisonment unless it would be unjust to do so. On appeal the applicant carries the forensic onus to persuade the court that a Judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the Judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the Judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused.
As to whether it would or would not be unjust to make the order to which by s 80 the Judge is primarily directed, in R v Holcroft [1997] 2 Qd R 392 at 394 Fitzgerald P said:
All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.
All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P at 394, Lee J at 394 - 5 and Fryberg J at 404 - 5. On the same general consideration reference may be made to R v HolleyEx p. Attorney-General [1997] 2 Qd R 407 per de Jersey J at 410, Lee J at 416 and 419 and Fryberg J at 425.
[25] Hall v The Queen [31] - [33].
The observations of Murray J in Hall v The Queen were approved and followed in Trew v The State of Western Australia[26] and Brown v The State of Western Australia.[27]
[26] Trew v The State of Western Australia [2004] WASCA 155.
[27] Brown v The State of Western Australia [2009] WASCA 74.
I must consider all relevant factors and circumstances. The appellant, in particular, relied upon three factors to support the contention that the order requiring him to serve the suspended term was unjust. First, that the appellant did not commit any further driving offences whilst on the suspended order; second, that the fraud breaching offence was not sufficiently serious to warrant that outcome; and thirdly that the fraud offence was of a different type to the driving offence.[28]
[28] Appellant's Submissions [12] ‑ [15].
I now turn to those circumstances and factors. First, I will consider the offence for which the suspended term of imprisonment was imposed. The appellant was convicted of the offence of driving whilst under suspension. That was the appellant's 13^th conviction for offending of that type and his 11^th conviction for penalty purposes.[29] At the date of his offending the appellant was subject to five current revocations and six outstanding fine suspensions.[30] Her Honour, after considering all circumstances including those referable to the appellant suspended the term of imprisonment of 9 months but did so 'by only the merest of margins'.[31] Her Honour warned the appellant that if he were to commit any offence which carries a term of imprisonment the consequence is that the court can order that the term be served.[32]
[29] ts 2 (30/01/17).
[30] ts 2 (30/01/17).
[31] ts 5 ‑ 6 (30/01/17).
[32] ts 6 (30/01/17).
The appellant contends that the offending is of a different nature than the offence for which the suspended term was imposed. The appellant has not breached the suspended imprisonment order by committing another driving under suspension. However, the exercise that I must undertake is to consider the nature of the subsequent offending (and the other circumstances).
I therefore consider the nature of the offence which gave rise to the need to consider the activation of the suspended sentence. I am mindful that the breach offence was an offence of dishonesty. The amount of money obtained by the deceit is pleaded as being $55.00. The fraud offence was a continuation of the appellant's dishonest practice that commenced prior to the imposition of the suspended term. I have outlined the nature of the other three fraud offences. Whilst not convictions for breach purposes the convictions are factors that I must consider. The convictions form part of the circumstances that are new in that they have become known since the imposition of the suspended term, although they are circumstances which existed at or prior to that time. Each of the other three fraud offences may be characterised as low level and unsophisticated acts of fraud involving small nominal amounts of money.
The fraud offence was not committed late in the suspension period. To the contrary, the appellant committed the breaching offence within weeks of the suspended imprisonment order being imposed.
The other breach offence, being the possession of the cannabis, is not a serious offence. The respondent did not contend that the drug offence was of such a nature that it would warrant the appellant serving the suspended term. However, that conviction forms part of the circumstances.
The sentence imposed in respect to the breach offence is a relevant consideration in determining ground one. This is a relevant consideration in determining the order to be made under s 80 of the Sentencing Act. As I have determined in considering ground two, imposing a term of imprisonment on each of the four fraud charges was manifestly excessive.
The antecedents of the appellant are relevant to considering the circumstances that have arisen and become known since the imposition of the suspended term. I have outlined the antecedents when considering ground two.
I am mindful in determining ground one that courts will not readily interfere with a decision of a judicial officer at first instance under s 80 of the Sentencing Act for the reason that the non‑revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences.[33] However, s 80 clearly contemplates that there will be circumstances in which it is proper to refrain from revoking the suspension of the sentence. I find that this is an occasion that warrants refraining from ordering the appellant to serve the suspended term of imprisonment.
[33] Hall v The Queen [35].
The appellant committed one fraud in the amount of $55.00 during the period of suspension and one offence of possession of 3.42 g of cannabis. The offence of fraud occurred in the circumstances of three other similar charges that preceded the imposition of the suspended imprisonment order. The breaching offences are at the lower level of offending. A term of imprisonment was not within his Honour's sentencing discretion. After considering all relevant factors and applying s 80(3), I have determined that the magistrate did err in concluding that it would not be unjust to order that the appellant serve the entire previously suspended sentence. Accordingly, leave to appeal is granted in respect of ground one and the ground is allowed.

Conclusion and Resentencing

Accordingly, leave to appeal is granted on grounds one and two and the appeal is allowed on both grounds. Given that the appeal is allowed it is necessary to re‑sentence under s 41 of the Criminal Appeals Act. The sentences imposed in respect of the four fraud offences by his Honour are set aside. In lieu thereof, I have determined that a community based order should be imposed under pt 9 of the Sentencing Act in respect of each of the four fraud offences.[34] The community based order will be 12 months in duration with a programme and supervision requirement.
[34] Charges MI 6238 ‑ 6241/17.
The order and sentence imposed by his Honour in respect to the suspended term of imprisonment is set aside.[35] Given that the term of the suspension has expired, I must deal with the appellant under s 80(1) (d) of the Sentencing Act. I impose a fine of $500 and make no order in respect of the suspended imprisonment order.
[35] Charge RO 5786/17.