Ramsay v Trovarello - [2009] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RAMSAY -v- TROVARELLO [2009] WASC 146

CORAM: HASLUCK J

HEARD: 20 MAY 2009

DELIVERED : 29 MAY 2009

FILE NO/S: SJA 1006 of 2009

BETWEEN: DAVID PHILIP RAMSAY
Appellant
AND
DEAN TROVARELLO
First Respondent
PAUL MICHAEL O'CONNOR
Second Respondent
CAITLIN BROOK LIEBMANN
Third Respondent

FILE NO/S :SJA 1007 of 2009
SJA 1008 of 2009

BETWEEN :DAVID PHILIP RAMSAY
Appellant
AND
CAITLIN BROOK LIEBMANN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S A HEATH
File No  :JO 6015 of 2008, JO 6016 of 2008, JO 6017 of 2008, JO 6018 of 2008, JO 6019 of 2008, JO 6020 of 2008, JO 6021 of 2008, JO 6023 of 2008, JO 6024 of 2008, JO 6025 of 2008, JO 6026 of 2008, JO 6027 of 2008, JO 6028 of 2008, JO 6029 of 2008, JO 6030 of 2008, JO 6031 of 2008, JO 6032 of 2008, JO 6033 of 2008, PE 66994 of 2008, BU 209 of 2006
For File No              :  SJA 1007 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 209 of 2006
For File No              :  SJA 1008 of 2009
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 209 of 2006

Catchwords:

Criminal law - Appeal against sentence - Offence of assault occasioning bodily harm - Appeal from Magistrates Court - Whether magistrate erred by purporting to impose a suspended imprisonment order and an intensive supervision order for one offence - Effect of offender not being present in court on the hearing of an application for correction - Whether circumstances sufficiently exceptional to justify an extension of time to appeal - Whether sufficient weight given to changed circumstances upon sentencing for a breach of suspended imprisonment order - Appropriate sentence for multiple fraud offences - Status of indicated sentence from Drug Court after sentencing for fraud offences referred back to Magistrates Court - Finding of miscarriage of justice in respect to totality of final sentence - Sentences quashed and offender resentenced

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)
Criminal Code (WA), s 317(1), s 409(1)(d)
Sentencing Act 1995 (WA), s 6, s 11, s 37, s 39, s 76, s 80

Result:

Extension of time to appeal allowed
Appeals allowed
Sentences quashed and offender resentenced

Category: B

Representation:

SJA 1006 of 2009

Counsel:

Appellant:     Mr A J Robson
First Respondent           :     Mr J Newton-Palmer
Second Respondent      :     Mr J Newton-Palmer
Third Respondent          :     Mr J Newton-Palmer

Solicitors:

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

SJA 1007 of 2009

SJA 1008 of 2009

Counsel:

Appellant: Mr A J Robson
Respondent: Mr J Newton-Palmer

Solicitors:

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

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

Anderson v Edwards [2003] WASCA 59
Dinsdale v The Queen (2000) 202 CLR 321
Ejueyitsi v Maloney [No 2] [2007] WASCA 227
Eves v State of Western Australia [2008] WASCA 7
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Lowndes v The Queen (1999) 195 CLR 665
Mills v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Pickett v State of Western Australia [2004] WASCA 291
R v State of Western Australia [2008] WASCA 127
Skerritt v O'Keefe [1999] WASCA 183
The State of Western Australia v BLM [2009] WASCA 88

HASLUCK J:

Introduction

The appellant, David Philip Ramsay, seeks relief by way of appeal in respect of a sentence imposed in the Magistrates Court at Perth on 15 January 2009. The sentencing orders made on that occasion gave rise to an effective aggregate term of imprisonment of 2 years backdated to commence on 19 November 2008.
The circumstances underlying the sentencing orders are complex. For this reason, and with a view to ensuring that all the relevant issues were fully ventilated, the appellant felt obliged to institute three separate appeals, being SJA 1006 to 1008 of 2009. Leave to appeal was obtained in respect of each of these matters on 1 April 2009. The appeals were heard together.
It follows from these preliminary observations that I must begin by examining the procedural history of the matter at some length. It will be convenient to identify issues raised by the various grounds of appeal along the way in general terms before dealing specifically with each of the grounds of appeal.

Background

At about 9.15 pm on Wednesday, 11 January 2006 the appellant was present at the Bunbury Village Caravan Park where he was residing. It appears from the statement of material facts that the appellant and his father were involved in a loud argument in the father's caravan. The complainant, who I will call S, occupied a neighbouring caravan. He and the appellant had been working together repairing railway lines.
When the complainant knocked on the door of the father's caravan and asked the appellant to calm down, the appellant told him to mind his own business. The complainant then put his open hands in the air to show that he did not want trouble and apologised for upsetting the appellant.
That was not the end of the matter. The appellant got out of the van and swung his fists at the complainant several times, before punching the complainant in the face with a closed fist. The complainant had been backing up towards his own caravan and was now outside the van door. A small group of men from the same labouring company began to gather and made some attempts to get between the appellant and the complainant, without success.
The appellant then punched the complainant again to the face with a closed fist and followed the complainant into his van, headbutting him with his forehead. The appellant's forehead struck the complainant's teeth, causing the appellant to bleed from his forehead.
The appellant's father got into the complainant's van also, and made attempts to remove the appellant. As the complainant tried to get past he was punched again to the face area.
For a while the appellant would not get out of the complainant's van despite the efforts of his father and others. When the appellant did get out of the van, he approached the complainant and punched him again to the face area with a closed fist. At this point the complainant walked away, slightly dazed, to try and find one of his work's supervisors.
The complainant suffered swelling and bruising to both sides of his forehead, mainly to his left cheek, his top lip and also suffered pain in his jaw. He advised police that he would be attending the hospital in the morning.
When spoken to by police, the appellant stated that an incident had occurred, but he did not wish to comment on the matter. He said that he hit his forehead on an overhead shelf while packing his bag. The appellant was arrested and held in custody to attend the Bunbury Magistrates Court.
It is apparent from a prosecution notice dated 12 January 2006 (BU 209/06) that the appellant was charged that on 11 January 2006 at Bunbury he unlawfully assaulted S and thereby did him bodily harm contrary to s 317(1) of the Criminal Code (WA). I note in passing that the effect of the relevant provision is that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable upon summary conviction if the offence is committed in circumstances of aggravation to imprisonment for 3 years and a fine of $36,000 or in any other case to imprisonment for 2 years and a fine of $24,000.
The appellant pleaded guilty to the charge and was sentenced before Magistrate Fisher in the Magistrates Court at Bunbury on 20 January 2006. It appears from the transcript of the relevant hearing that in the view of the learned magistrate the appellant had been involved in what was described as 'a very serious, deliberate, violent and protracted assault on what essentially was a submitting individual'.
His Honour then made these observations:
The circumstances of your conduct are so serious that, of themselves, it calls for a significant penalty, of which deterrent both personal and particular must form a significant part. In my respectful view, the position is such that a custodial sentence, in all the circumstances, is warranted. You will be given the benefit, in all the circumstances, of your plea of guilty at the first opportunity, and I propose to sentence you to 14 months' imprisonment.
The learned magistrate went on to observe that the appellant had lost his mother at an early age and had less than an ideal start to life. Moreover, he was a young man with 'an exemplary work ethic' and with a commitment to a domestic relationship. His Honour then held that the period of imprisonment should be suspended for 2 years (on the basis that the statutory penalty was 2 years' imprisonment and a fine of $24,000). His Honour made these further observations:
I propose, on this occasion, and in the circumstances to also release you on an intensive supervision order for 2 years, the conditions of which you will be subject to counselling for relationships, grief, alcohol and drug and anger management.
His Honour cautioned the appellant that if he broke the law he would be brought back to court and dealt with again. When counsel raised a point of clarification as to the nature of the sentence that had been imposed; that is, as to whether it was a suspended sentence or an intensive supervision order (ISO), his Honour said that it was 'both'.

Subsequent events

It is not clear from the transcript as to why exactly his Honour thought that it was open to him to impose both a suspended term of imprisonment and an ISO in respect of the one offence, notwithstanding that a query had been raised in that regard. It was common ground at the hearing before me (over three years later) that for a number of months following the hearing on 20 January 2006 the appellant liaised with the appropriate agencies and conducted himself upon the basis that he was subject to an ISO which was to last for two years. It was later said on his behalf, and not disputed, that while he remained on the ISO, he was compliant with respect to all of its conditions.
It seems that in due course the likelihood that an error had been made by the magistrate in seeking to impose an ISO in addition to a suspended term of imprisonment came to the notice of the authorities, without reference to the appellant. The materials before me include an application for correction of sentence dated 11 September 2006 which was signed not by the appellant or by a legal practitioner on his behalf but by a court officer.
I note in passing that by s 37 of the Sentencing Act 1995 (WA) the sentencing court may recall the order imposing a sentence if it has sentenced an offender in a manner that is not in accordance with the Act. Section 37(2) provides that the powers in that regard may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but 'in any event the court must give all parties the opportunity to be heard'. By s 37(4) the provision does not affect any right of appeal against a sentence.
The handwritten reasons appearing on the application form are difficult to decipher. However, essentially it was asserted that it was not open to a court under the Sentencing Act to impose an ISO with a suspended period of imprisonment on sentencing for one offence.

The application for correction

It was common ground at the hearing before me (being noted by me as an agreed fact) that the application for correction was brought before Magistrate Fisher on 13 October 2006 on which occasion an order was made that the ISO disposition be struck out. The appellant was not present when this order was made.
Unfortunately, there is no transcript now in existence of the subject hearing. There is nothing in the materials before me to suggest that the appellant was given notice that the application for correction was to be heard or that anything was said on his behalf other than that which appeared on the application form, namely, that an ISO could not be imposed with a suspended period of imprisonment on sentencing for one offence.
For present purposes, I must assume that the matter was dealt with upon that basis and without any consideration being given to the notion that the appellant was essentially being resentenced for the subject offence or to the notion that, of the two penalties purportedly imposed on the previous occasion, the ISO rather than the suspended term of imprisonment might arguably be regarded as the operative penalty.
I understand that in the period following the correction of sentence on 13 October 2006 the relevant authorities and the appellant were informed of the correction with the result that, thereafter, he conducted his affairs on the assumption that he was bound by the requirements applicable to a suspended term of imprisonment only.

The fraud offences

On Monday, 17 September 2007, while the two year period of suspension was still in force, the appellant unlawfully accessed his father's credit card account through internet banking and transferred $600 in cash to his own account. This was the first of various transactions of the same kind that led eventually to the appellant being charged with 18 offences of intent to defraud by fraudulent means contrary to s 409(1)(d) of the Criminal Code. These offences were committed in the period 17 September 2007 to 18 November 2007 with the overall amount appropriated being $27,000.
I note in passing that by s 409(1)(d) the penalty for a fraud offence of the kind in question upon summary conviction is imprisonment for 2 years and a fine of $24,000 or, if the person deceived is over 60 years of age, imprisonment for 3 years and a fine of $36,000.
By prosecution notice dated 11 April 2008 the appellant was charged with the 18 fraud offences and was brought before the Magistrates Court.
It emerged that the appellant had a history of alcohol and drug use with the result that he was referred to the Perth Drug Court and appeared there on 9 June 2008. He was remanded on conditional bail for the preparation of a court assessment and treatment services report (a CATS report) assessing his suitability for inclusion in the Drug Court programme.
Following a period on assessment, during which he struggled to provide clear urine samples, the appellant was placed on a 6 month Drug Court regime on 5 August 2008 (which was due to expire on 5 February 2009) with a 10 point breach limit and 'standard' Drug Court conditional bail requirements, including thrice weekly urinalysis, weekly court appearances, and a 9.00 pm to 7.00 am curfew.
The appellant was not eligible to be placed on a pre‑sentence order as the subject fraud offences were committed while he remained subject to the 2 years' suspended imprisonment order imposed on 20 January 2006.
On 12 September 2008 the appellant received an 'indicated sentence', that is a recommended sentence should he fail to complete the Drug Court regime. It was determined by Magistrate Stewart that the appellant would be subject to 20 months' imprisonment for the above offences. This was to be cumulative on the 14 months' suspended imprisonment received on 20 January 2006.

The next phase

It appears from a statement of material facts dated 14 November 2008 that at about 10.10 pm on that day the appellant was stopped whilst driving a certain vehicle in Balga and asked to produce his driver's licence. This led to his personal details being checked with the result that it was noticed that he was currently under protective bail conditions imposed by the Perth Drug Court. This in turn led to the appellant being charged that on 14 November 2008 he breached bail conditions by not being at his designated residence in the curfew period.
In advance of the court hearing at which it was anticipated all outstanding matters would be dealt with a CATS report was prepared dated 12 January 2009. The report in question addressed the appellant's previous court history and his personal circumstances.
The author of the CATS report noted that the appellant was a 29‑year‑old man with an entrenched history of illicit drug use. He was accepted into the Drug Court in an effort to address his drug use issues. During the initial assessment period he struggled to provide clear samples, but his urinalysis results 'of late' would indicated that he had made some significant gains in this area. Departmental records show that the last 29 samples had all been clear to illicit substances. It was said also that efforts made by the appellant to address his illicit drug use were acknowledged.
The author of the report went on to observe that unfortunately for the appellant, his honesty with the court came into question and as a result he was formally terminated from the programme. Given the serious nature of his offending and the fact that he was subject to a suspended imprisonment order at the time of the fraud offences, it would appear that the appellant had exhausted all community based dispositions. In the event of imprisonment, eligibility for parole was recommended.
It was against this background that Chief Magistrate Heath was required to deal with the matters brought before him at the Perth Magistrates Court on 15 January 2009.

The January hearing

The transcript of the hearing before his Honour Chief Magistrate Heath is available. It shows that a lengthy plea in mitigation was made by counsel for the appellant which included reference to the correction of sentence and the matters mentioned earlier. It was said on the appellant's behalf that he had completed the 2 year suspended term imposed on 20 January 2006, he had completed 10 months on an ISO and completed a significant period of time in the Drug Court.
I digress briefly to note that the so‑called honesty issue which led to the appellant's termination from the Drug Court, and thus to a remand to appear before the Chief Magistrate for sentencing, was due to the appellant having presented a letter to the Drug Court with a forged signature. I will come to the sentencing disposition in respect of that matter in due course.
It follows from the narrative to this point that on 15 January 2009 Chief Magistrate Heath, having regard to the pleas of guilty entered by the appellant to all the matters before the court, was required to sentence the appellant for the 18 fraud offences (bearing in mind the presence of an indicated sentence for those offences of 20 months' imprisonment), to sentence the appellant for the breach of bail offence, and to resentence the appellant for the assault occasioning bodily harm offence committed on 11 January 2006 in the caravan park at Bunbury (because the appellant had committed the fraud offences while the 2 year suspended term was still current).
As to the resentencing process, it will be useful to refer to the relevant provisions in summary form.
Section 80 of the Sentencing Act provides that, if satisfied that a person has been convicted of an offence the statutory penalty for which includes imprisonment and that the offence was committed during the suspension period, a court may order that the person serve the term that was suspended, or order the person to serve part of the term, or it may substitute another suspension period of not more than 24 months for the suspension period originally set. Alternatively, it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment.
Importantly for present purposes, by s 80(3) a court must make an order of the first kind 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 order was imposed. If a court does not make an order of such a kind it must state its reasons for not doing so.

By s 80(5) if under subs (1) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended, s 88 applies in respect of the term to be served and the court may make a parole eligibility order under s 89 as if the term to be served were a term of imprisonment being imposed by the court.
It will be useful to note also at this stage that, as a consequence of the correction of sentence previously made, the appellant's court record indicated that the sentence imposed on 20 January 2006 in respect of the assault offence was simply a term of imprisonment of 14 months suspended for a period of 2 years. The learned magistrate was not invited to address any issues concerning the validity of the correction process although counsel for the appellant invited his Honour to take account of the fact that the appellant had arguably been punished twice for the assault offence. It was said also that proper weight should be given to the fact that the appellant had complied with the terms of the purported ISO prior to the correction.
Let me now turn to the Chief Magistrate's reasons for decision.

Reasons for decision

His Honour noted, as to compliance with the requirements of the Drug Court regime, that the appellant had failed to attend certain of the scheduled appointments. However, it was significant that the results of the urine samples improved as the appellant progressed through the course. His Honour then observed that there were a number of things to be taken into account including the indicated sentence (that is, the indicated sentence of a term of imprisonment of 20 months to be served cumulatively upon the suspended term of 14 months for the assault). There was also an obligation to ensure that the appellant did not receive a sentence that was greater than the indicated sentence. In other words, it was important that the sentence imposed did not exceed what the appellant might otherwise have received if he had been sentenced immediately, that being the purpose of the indicated sentence.
His Honour referred also to 'an additional complication' in that the suspended term of imprisonment for the assault when initially imposed was erroneously combined with an ISO and it was some nine months before that matter was corrected by cancellation of the ISO. The appellant had been subject to supervision and compliance under the order during the subject period.
His Honour went on to observe that the appellant had been in employment and had effected a reconciliation with his father, notwithstanding that his father was the victim of the fraud offences. He observed that the suspended term 'clearly was a separate matter involving an assault and was nothing to do with the fraud matters and remained separate'.
His Honour then observed that as to the fraud matters there must be a reduction in the indicated sentence. However, given the seriousness of the offences and that progress during the Drug Court regime was somewhat limited (in that the appellant did not progress to the next stage and the regime was terminated), the starting point must be the indicated sentence accompanied by 'some discount' having taken into account what had occurred. His Honour said that in all the circumstances the appropriate sentence in relation to the fraud matters was a global sentence of 10 months' imprisonment, being a 50% reduction in the indicated sentence to give credit for what had been done. In relation to the breach of bail conditions, there was to be simply a penalty of 1 month's imprisonment to be served concurrently.
His Honour then summed up as follows:
That leaves the issue of the suspended term of imprisonment and the argument that had been put before me as to whether or not it would be unjust for you to serve that term. Whilst I note that you have complied with the intensive supervision order, the section 37 application did cancel the intensive supervision order and to [leave] the suspended term of imprisonment in place.
That, in my view, is an indication that it was to continue and in those circumstances the suspended term of imprisonment will now be imposed, and in accordance with the indicated sentence that will be cumulative on the 10 months, making a total of 24 months' imprisonment with eligibility for parole.
There was then some discussion about time spent in custody as a result of which his Honour held that the effective aggregate term of 24 months' imprisonment with eligibility for parole was to be backdated to 19 November 2008.

The appeals

The appellant seeks to challenge the sentence imposed upon him by way of appeal. As I indicated in earlier discussion, this has led to the institution of three discrete appeals.
In appeal SJA 1006 of 2009 the appellant contends (pursuant to the amended grounds of appeal reflected in a consent notice dated 26 March 2009) that the learned magistrate erred in law by ordering the appellant to cumulatively serve the full term of imprisonment that was previously suspended in relation to an offence of assault occasioning bodily harm by failing to adequately take into account that the appellant had wrongly been sentenced to two sentences in relation to that offence. I will return to the grounds of appeal in respect of this matter in more detail later.
By an appeal notice dated 10 February 2009 in respect of SJA 1007 of 2009 the appellant challenged the decision made on 13 October 2006 by Magistrate Fisher in respect of the application for correction. The time for appeal has long since expired and thus an extension of time is sought. In essence, it was said that the learned magistrate erred in law when correcting a previous sentencing error by cancelling an ISO and leaving in place a suspended sentence. I will turn to the particulars in support of that contention in due course.
I note in passing that at the hearing before me I granted leave to amend the notice of appeal by adding a second ground of appeal to the effect that the learned magistrate erred in law in determining the application for correction of sentence in the absence of the appellant.
By an appeal notice in respect of SJA 1008 of 2009 the appellant sought to challenge the sentencing disposition of Magistrate Fisher handed down on 20 January 2006 concerning the assault offence. The ground of appeal was that the learned magistrate erred in law by imposing both an ISO and a suspended sentence for the offence of assault occasioning bodily harm. It is readily apparent that this appeal cannot be pursued unless an extension of time is granted.
It emerges, then, by instituting these three appeals the appellant contends that the entire sentencing process commencing with the sentencing orders made on 20 January 2006 and running through to the current orders made on 15 January 2009 should be examined afresh. It is said that the various issues are inter‑related and the consequences of the various orders made at different stages of the process were not fully appreciated or properly considered.
It is said, in effect, that when proper consideration is given to the situation of the appellant as at 15 January 2009, having regard to the provisions of the Sentencing Act and related sentencing principles, it will be seen that an effective aggregate term of imprisonment of 2 years backdated to commence on 19 November 2008 with eligibility for parole is too severe and that other orders should be made.
It will now be useful to look at certain statutory provisions and legal principles bearing upon the matters in question.

Statutory provisions and legal principles

By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32.
However, in the case of a busy court it is not always practicable or necessary for a full or detailed statements of reasons to be given in every case. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion: Skerritt v O'Keefe [1999] WASCA 183 at 146.
A failure by a decision‑maker to mention a matter expressly does not reasonably give rise to an inference that it was not considered. It is to be assumed that the decision‑maker has taken all relevant matters into account: Pickett v State of Western Australia [2004] WASCA 291 at [10].
Sentencing principles are referred to in the Sentencing Act 1995 (WA). By s 6, a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of any victim, any aggravating factors and any mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.
A sentence may be reduced not only because of any mitigating factors but also pursuant to any operative rule of law such as the totality principle.
Section 88 of the Sentencing Act provides that an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that is yet to be served unless the sentencing court orders that the subsequent fixed term is to be fixed cumulatively or partly concurrently with the earlier fixed term.
It is apparent from Pearce v The Queen (1998) 194 CLR 610 at 623 that an appropriate sentence is to be fixed for each offence followed by consideration of cumulation or concurrence and then by questions of totality. To the extent to which two or more offences contain common elements, it would be wrong to punish the offender twice with the result that concurrence is appropriate where there is essentially one transaction or commonality is evident.
Put shortly the totality principle enables a court to mitigate what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long. An appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mills v The Queen (1988) 166 CLR 59 at 63.
In the recently decided case of The State of Western Australia v BLM [2009] WASCA 88 Buss JA made these observations:
As Steytler P noted in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, whether sentences for multiple offences should be made cumulative, partly concurrent or wholly concurrent arises at two of the three stages in the sentencing process. The orthodox approach is to decide upon the appropriate sentence for each offence, then to decide whether the sentences should be made cumulative, partly concurrent or wholly concurrent in accordance with established principle and, finally, to decide upon the net effective or total head sentence by reference to the totality principle. [108]
His Honour then went on to make these further observations:
The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. [110]
It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing court or sentencing judge exercised his or her discretion. It must be shown by the appellant that the court at first instance failed to properly exercise its discretion by acting upon wrong principles, mistaking the facts or allowing irrelevant matters to affect the decision: see Lowndes v The Queen (1999) 195 CLR 665 at 671.

More particular rules

In addition to the statutory provisions and principles of general application there are other provisions and rules which are of particular relevance to the circumstances of the present case.
Section 11 of the Sentencing Act provides that if the evidence necessary to establish the commission by a person of an offence is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
There are various decided cases which establish that multiple punishment of an offender for one offence is not permitted: Eves v State of Western Australia [2008] WASCA 7; Anderson v Edwards [2003] WASCA 59.
Importantly, for present purposes, s 39 of the Sentencing Act deals with sentencing options and essentially establishes a hierarchy of sentencing options. Section 39(3) provides that a court must not use a sentencing option described in s 39(2) unless satisfied, having regard to Div 1 of pt 2, that it is not appropriate to use any of the options 'listed before that option'.
By s 39(2) the court sentencing an offender can impose an intensive supervision order (known as an ISO) and order the release of the offender, impose suspended imprisonment and order the release of the offender, impose conditional suspended imprisonment (known as a CSI) and order the release of the offender, or impose a term of imprisonment.
By s 39(4) a court must not use more than one of the sentencing options in sub 2 when sentencing an offender except where s 41 or s 42 applies.
These provisions, especially when considered in conjunction with s 6(4) (which provides that a court must not impose a sentence of imprisonment unless it is warranted by the seriousness of the offence or the protection of the community), make it clear that the imposition of a custodial term of imprisonment is an option of last resort which is only to be employed when prior consideration has been given in turn to the preceding options in the hierarchy.
Section 76 of the Sentencing Act provides that a court that sentences an offender to an aggregate term of 60 months or less may order that the term may be suspended for a period set by the court. The ruling of the High Court in Dinsdale v The Queen (2000) 202 CLR 321 establishes that the same considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspended the term.
Section 14(1) of the Sentencing Act provides that a court is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under s 14A. By s 14(5) a court may compel an offender to appear personally to be sentenced by issuing a summons or issuing a warrant for the offender's arrest.

The Criminal Appeals Act

Section 41(1) of the Criminal Appeals Act provides that if under the Act an appeal court decides to impose a sentence, it may order that the sentence is to be taken to have taken effect on a date before the date of the order or on or after the date of the order. By s 41(3) if an appeal court decides to vary a sentence it may vary the sentence as imposed or impose a different sentence involving a different sentencing option.
Section 41(4)(b) of the Criminal Appeals Act was inserted by the Criminal Law and Evidence Amendment Act 2008 (WA). It came into operation on 27 April 2008.
Section 41(4) as amended reads as follows:
The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) ‑
(a)may take into account any matter, including any material change to the person’s circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b)despite paragraph (a), must not take into account the fact that the court’s decision may mean that the person is again sentenced for the offence.
For an appellant to be granted an extension of time within which to appeal, he must demonstrate that there has been a manifest miscarriage of justice: R v State of Western Australia [2008] WASCA 127 at [9] to [11].
In Ejueyitsi v Maloney [No 2] [2007] WASCA 227 Pullin JA made these observations:
The appellant wished to appeal after he was convicted, took advice and was told that because it was a minor matter it was not worth appealing. The appellant accepted that advice. Of more significance however, is that he could not afford to pay legal fees to commence an appeal. Subsequently he found that the conviction was not a minor matter. It had a very serious consequence when it came to planned migration to another country.
The power to extend time is a broad power to relieve against injustice. The discretion is not readily to be limited by 'judicial fiat'. See FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283. Nevertheless, where there has been a lengthy delay, exceptional circumstances usually have to be shown before an extension of time is granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: BPR v The State of Western Australia [2007] WASCA 41 at [4]; Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998).
The factors usually taken into account in relation to an application for an extension of time in which to appeal are the length of the delay, the reasons for the delay, whether or not there is an arguable case and the extent of prejudice. [36] - [38]
Let me now return to the circumstances of the present case. Before turning to the specific grounds of appeal in respect of each of the three separately instituted appeals, it will be useful to make some general observations.

General observations

I am of the view that in the circumstances of the present case it is appropriate that an extension of time to appeal be granted in respect of SJA 1007 of 2009 and SJA 1008 of 2009, notwithstanding that a significant amount of time has elapsed.
The respondent sought to identify a degree of prejudice to its position in that the transcript of the hearing on 13 October 2006 cannot be located with the result that there is not a full record of what took place on that occasion. However, in my view, the matter in issue on that occasion can reasonably be inferred from the terms of the application for correction and from the note made.
Further, and in any event, as will appear later, the fact that a decision was made in the absence of the appellant (being an agreed fact at the hearing before me), and apparently without an opportunity being afforded to him to be heard infringes those provisions of the Sentencing Act requiring the presence of the appellant.

Moreover, the failure to appeal within the prescribed time does not appear to be due to any real or significant default upon the part of the appellant. The application for correction proceeded in his absence and he failed to appreciate that there might be repercussions which were not properly covered by the application for correction of sentence. Implicit in the application for correction was an acknowledgement that the orders made at the initial hearing on 20 January 2006 were flawed.
These matters, considered in combination, amount to exceptional circumstances justifying an extension of time with respect to the appeals in question. I am not persuaded that the respondent will be prejudiced by the extensions.
The consequence of allowing the application for an extension of time in respect of the two subject appeals means that it is open to me, having regard to the various grounds of appeal, to review the entire sentencing process. Accordingly, I must begin by returning to the initial hearing on 20 January 2006 concerning the assault charge.
To my mind, it is quite clear, and this does not appear to be disputed by the respondent, that the learned magistrate erred at the initial hearing on 20 January 2006 in purporting to impose a term of imprisonment of 14 months suspended for a period of 2 years, followed then by an ISO for 2 years.
I noted in earlier discussion that s 37 of the Sentencing Act allows for a decision to be appealed against notwithstanding that it has been the subject of an application for correction. Accordingly, I am of the view that the orders made by the learned magistrate on that occasion are open to review. However, when it comes to determining what was the appropriate sentence I am of the view that he gave proper weight to the relevant factors and did not err in concluding that a serious and protracted assault of the kind referred to in his sentencing remarks warranted the imposition of a term of imprisonment of 14 months.
It is true that he did not expressly move from one sentencing option to the next in the hierarchy of sentencing options before arriving at that conclusion. However, as I have noted in earlier discussion, in the case of a busy Magistrates Court it cannot necessarily be assumed that because an important consideration was not mentioned that it was not considered. It appears to me, on a fair reading of his sentencing remarks, that the learned magistrate took account of the other options, but excluded them in the course of arriving at his determination that a term of imprisonment was necessary in order to serve the requirements of general and personal deterrence. This can be inferred from the fact that he went on to determine that the proposed term should be suspended and then, inadvertently (or erroneously) purported to ameliorate the primary penalty by referring to an ISO.
In other words, I am of the view, upon a fair reading of the transcript, that his Honour took account of the hierarchy of sentencing options and gave proper weight to the relevant considerations in respect of a serious and protracted assault in concluding, having regard to the need for deterrence and protection of the community, that a term of imprisonment was warranted, albeit then suspended in the light of the appellant's employment record and personal circumstances. The reasoning that led to what was clearly his primary conclusion was valid, although the orders he purported to make eventually were flawed. Viewed in context, his remarks concerning the purported ISO appear to have been an afterthought aimed at underlining the need for rehabilitation within the community, being an objective that had already been provided for by the suspension.
It follows from this view of the matter that when the application for correction came before the magistrate it was consistent with his previous reasoning for him to correct his error by striking out the ISO. Upon close analysis, the ISO could be regarded simply as surplusage. Having regard to his previous reasoning it was open to him to hold that the term of imprisonment of 14 months suspended for 2 years was indeed the appropriate disposition.
However, the fact remains, this being an agreed fact at the hearing before me, that the appellant was not present when the application for correction was heard. I am of the view that in dealing with the application for correction the magistrate was involved in sentencing. This meant, having regard to the statutory provisions mentioned earlier, that the appellant should have been present, and should have been allowed an opportunity to be heard.
It follows that the ruling made on 13 October 2006 in response to the application for correction was flawed and must be quashed on appeal. The absence of the appellant meant that there was a miscarriage of justice. The appropriate form of relief in such a case is to determine what is the appropriate sentence.
It follows from my earlier observations that, in my view, the appropriate sentencing disposition was that which can be characterised as the primary conclusion of the learned magistrate on 20 January 2006, namely, that there was to be a term of imprisonment of 14 months suspended for a period of 2 years.
I pause there to say that if the matter had come before the Supreme Court on 13 October 2006 by way of an appeal, rather than before the magistrate by way of an application for correction, it might have been open to the Supreme Court as an appeal court to take account of changed circumstances. Thus, after taking into account the appellant's compliance with the ISO over a nine month period, the court might have given consideration to substituting for the suspended term of imprisonment an ISO or some other form of disposition. However, the fact of the matter is that the magistrate was dealing only with an application for correction and in that regard the tenor of his reasoning at the earlier hearing on 20 January 2006 clearly was (as I indicated in earlier discussion) that the suspended term was the operative disposition and the ISO purportedly imposed was simply a form of surplusage.
It follows from my general observations to this point that, in my view, the appeals in respect of SJA 1007 of 2009 and SJA 1008 of 2009 should be allowed, for the reasons I have given, but in quashing the orders previously made and substituting a new sentence the essential outcome remains the same, namely, that the appellant was properly sentenced to a term of imprisonment of 14 months suspended for a period of 2 years.
This brings me now to the final orders made by Chief Magistrate Heath on 15 January 2009.

The final orders

I must begin by reminding myself that his Honour was entitled to proceed on the assumption that the ISO had been disposed of by the correction process with the result that the appellant was to be resentenced for the assault offence upon the basis that the term of imprisonment of 14 months imposed on 20 January 2006 had been suspended for a period of two years. The appellant was to be sentenced also for the breach of bail offence and 18 fraud offences, having regard to the matters mentioned in the CATS report and the indicated sentence of 20 months (to be served cumulatively upon the term for the assault offence if the appellant was required to serve that term).
I noted in earlier discussion that his Honour proceeded upon the basis that he should impose sentence for the breach of bail and fraud offences initially because the resentencing for breach in respect of the suspended term concerning the assault offence 'remained separate'. To my mind, it was appropriate to approach the matter in this way. The corollary is that any question of bringing to account issues relating to the wrongly imposed ISO was a matter to be addressed when the time came for the learned magistrate to resentence the appellant for the assault, being a matter I will come to shortly.
To my mind, his Honour did not err in considering that the appropriate sentence in respect of the fraud offences was an aggregate term of imprisonment of 10 months. The offences were serious, having been committed systematically over an extended period and giving rise to a wrongful appropriation in all of $27,000. A reconciliation might now have been effected between the appellant and his father as the victim of the crime, but the fact remains that the appellant gave effect to a deceitful intention for a period of two months in pursuit of his own self‑interest.
The indicated sentence of 20 months was not treated as a binding disposition, but as a starting point. It was then discounted by 50% in order to give weight to the appellant's employment record and other matters in his favour mentioned in the CATS report including the progress he had made in dealing with issues of drug and alcohol abuse. I am not persuaded that his Honour overlooked or misapplied any relevant consideration.
To my mind, his Honour did not err in imposing a term of imprisonment of 1 month for the breach of bail offence and in requiring it to be served concurrently with the effective aggregate term of 10 months for the various fraud offences.
This brings me to his Honour's obligation to resentence the appellant for the assault offence. His Honour was clearly aware of the statutory provision which obliged him to impose the previously specified term of 14 months for a serious and protracted assault unless it would be 'unjust' to do so in view of all the circumstances that had arisen.
On this appeal, the question is whether his Honour gave sufficient weight to circumstances that had arisen since the sentence was imposed on 20 January 2006.
As to this central issue, I am conscious that I am in a slightly different position to that of the learned magistrate because, as I have indicated, his Honour was entitled to assume that the original sentence had been corrected and the ISO struck out. On the other hand, in my own case, having allowed the two appeals bearing upon the procedural errors mentioned earlier, I now have the capacity to look at the situation as a whole.
Nonetheless, in determining whether it would be unjust to require that the term of 14 months' imprisonment previously imposed be served in its entirety, I am of the view that his Honour erred in failing to give any or any sufficient weight to the fact that there was an element of double punishment for the assault offence in that for nine months or so the appellant had complied with the requirements of the notional or purportedly imposed ISO. Moreover, notwithstanding his wrongdoing in respect of the fraud offences, the appellant had not been involved in any further acts of violence for over three years and had a good employment record in that period.
In the end, I am of the view that these matters should have been viewed as circumstances that had changed since the term of imprisonment of 14 months was first imposed and that weight should have been given to these factors accordingly so as to arrive at a determination that it would be unjust to insist that now, three years after the original sentence, the full term should be served. To require that the full term be served would not be giving sufficient weight to the prospect of gradual rehabilitation allowed for by the suspended term sentencing option.
The assault offence was undoubtedly serious, and it was still the case that a custodial term was warranted. However, in the end, I am of the view that in being resentenced the appellant should have been required to serve a term of 8 months only in respect of the assault offence, cumulative upon the term of 10 months for the fraud and breach of bail offences. This would give rise to an effective aggregate term of 18 months overall backdated to commence on 18 November 2008 with eligibility for parole.
Further, and in any event, it appears from the transcript that the learned magistrate erred in failing to give any or any sufficient consideration to the totality principle. This was not referred to explicitly in his sentencing remarks and the flow of his Honour's reasoning does not suggest that, having dealt with each of the offences in turn, he stood back to determine whether the proposed aggregate term of 2 years was inappropriately long, bearing in mind the circumstances mentioned earlier and the appellant's employment prospects. I am of the view that a proper application of the totality principle would produce the result also that the custodial term for the assault offence should have been reduced from 14 months to 8 months to be served cumulatively upon the term for the other offences and with eligibility for parole.
For the sake of completeness, I will round off these general observations by noting that a month after being sentenced for the offences mentioned earlier the appellant, on 27 February 2009, was sentenced to 4 months' imprisonment in relation to the uttering of a forged document. This charge related to the presentation of a letter with a forged signature to the Drug Court. It was the appellant's lack of honesty in that regard that led to the termination of his involvement with the Drug Court programme. However, as this further term does not affect the proposed aggregate term of 18 months with eligibility for parole mentioned earlier, I need only say that this does not affect the conclusion I have arrived at.
Let me now turn to the specific grounds of appeal, although, for the most part, my response to the grounds will be evident from what I have said in these general observations.

SJA 1006 of 2009

The amended grounds of appeal in respect of this matter are as follows:
a.The Learned Magistrate erred in law by ordering the Appellant to cumulatively serve the full term of imprisonment that was previously suspended in relation to an offence of assault occasioning bodily harm, by failing to adequately take into account that the Appellant had wrongfully been sentenced to two sentences in relation to that offence.
PARTICULARS
(i)The Appellant was wrongfully sentenced to a suspended sentence and an intensive supervision order in relation to an offence of assault occasioning bodily harm.
(ii)The Appellant complied with the intensive supervision order for a period of 9 months.
(iii)This fact made it unjust for the Appellant to later be required to serve the full term of imprisonment, which was previously suspended, upon the suspended sentence being breached.
b.The Learned Magistrate failed to consider requiring the Appellant to serve only part of the term of imprisonment that was previously suspended in circumstances where it was appropriate to do so.
c.The Learned Magistrate wrongly considered that the fact that the suspended sentence was allowed to continue, upon an application for correction of sentence, as determinative of the issue of whether or not it was unjust to require the Appellant to serve the full period of imprisonment that was previously suspended.
d.The Learned Magistrate erred in considering he was bound by a previously given indicated sentence, to make the sentence for breaching the suspended sentence, cumulative on the sentence for the fraud offences.
It follows from my general observations that I am of the view that the learned magistrate erred in law by ordering the appellant cumulatively to serve the full term of imprisonment that was previously suspended in relation to the assault offence. However, the changed circumstances that made it unjust for the appellant to be required to serve the full term consist essentially of the element of double punishment arising from the fact that the appellant had wrongly been required to comply with the requirements of the ISO for a period of 9 months.
It follows from my general observations that the appeal should succeed on ground b. also. In my view, his Honour failed to consider requiring the appellant to serve only part of the term of imprisonment. In other words, as appears from the analysis set out in my general observations, he should have been required to serve 8 months of the term only.
I am of the view that the appeal should succeed also on ground c. in that the reasoning of the learned magistrate does suggest that he took the view that the correction process meant that there was nothing more to be said about the ISO and the appellant's compliance with it.
As to ground d. I am not persuaded that the appeal should succeed on this ground. It follows from my general observations that, in my view, the learned magistrate was entitled to take the indicated sentence as a starting point. The tenor of his reasoning is to that effect only. His reasoning does not reflect the proposition implicit in this ground of appeal that he felt that he was obliged by the indicated sentence to make the proposed term cumulative. It seems that he simply came to that decision after his review of all the circumstances.

SJA 1007 of 2009

The grounds of appeal in respect of this matter are as follows:
1.The Learned Magistrate erred in law when correcting a previous sentencing error by cancelling an intensive supervision order and leaving in place a suspended sentence.
PARTICULARS:
(i)The Learned Magistrate imposed an intensive supervision order and a suspended sentence for one offence of assault occasioning bodily harm.
(ii)A court must not use a sentencing option unless it is satisfied that it is not appropriate to use any of the options listed before that option in s39(2) of the Sentencing Act 1995.
(iii)The Appellant complied with the intensive supervision order for a period of 9 months.
(iv)The Learned Magistrate indicated an intensive supervision order was appropriate when first sentencing the Appellant by imposing that sentence.
(v)It was therefore not appropriate to cancel the intensive supervision order and leave in pace the suspended sentence upon correction of the sentence.
2.The Learned Magistrate erred in law in determining the application for correction of sentence in the absence of the Appellant.
As to the first ground of appeal in respect of SJA 1007 of 2009, it follows from my earlier observations that I am not persuaded the appeal should succeed on this ground. As indicated in earlier discussion, I am of the view that the magistrate did give proper consideration to the various sentencing options and his decision to impose a term of imprisonment can be characterised as his primary conclusion. His reference to an ISO appears to have been an after thought and in the nature of surplusage. Accordingly, when the matter came before him again by way of application for correction it was entirely consistent with his previous reasoning to hold that the suspended term of imprisonment was the operative sentence and the ISO should be struck out as surplusage.
As to the second ground of appeal, it follows from my earlier observations that in my view the learned magistrate did err in determining the application for correction of sentence in the absence of the appellant. I consider that the appeal should be allowed on this ground.

SJA 1008 of 2009

The grounds of appeal in respect of this matter are as follows:
1.The Learned Magistrate erred in law by imposing both an intensive supervision order and a suspended sentence for the offence of assault occasioning bodily harm.
It follows from my earlier observations that, in my view, the learned magistrate did err in law as alleged in this ground of appeal. It was not open to his Honour to impose two discrete sentencing options in respect of the one offence. It follows that the sentencing orders made on 20 January 2006 should be set aside.
However, as appears from my earlier observations also, when it comes to determining what is the appropriate sentence, I am of the view, for the reasons I have given previously, that as at 20 January 2006, and having regard to the mitigatory and other factors then presented to him, the learned magistrate did not err in concluding that in respect of a serious and protracted assault offence it was in order to impose a term of imprisonment of 14 months, albeit suspended for a period of 2 years.

Summary

It follows from my preliminary and general observations, and from my responses to the various grounds of appeal, that each of the appeals must be allowed upon the grounds I have specified. The sentencing orders imposed by the respective magistrates on 20 January 2006, 13 October 2006 and 15 January 2009 are to be set aside. For the reasons I have given, I will exercise the power allowed to me by the Criminal Appeals Act to impose fresh sentencing orders to this effect:
1.As to the hearing the subject of appeal SJA 1006 of 2009 and the subject offence of assault occasioning bodily harm the appellant is sentenced to a term of 14 months' imprisonment suspended for a period of 2 years.
2.As to SJA 1007 of 2009 and the subject application for correction the decision of the learned magistrate that the subject ISO be struck out is confirmed.
3.As to SJA 1008 of 2009 the appellant is sentenced to an effective aggregate term of 10 months' imprisonment in respect of the subject fraud offences backdated to commence on 18 November 2008. He is sentenced to a term of 1 month's imprisonment in respect of the subject breach of bail offence to be served concurrently with the term for the fraud offences. He is sentenced to a term of 8 months' imprisonment in respect of the assault offence as a consequence of having breached the suspended term previously imposed with such term to be served cumulatively upon the term for the fraud and breach of bail offences.
This gives rise to an effective aggregate term of imprisonment of 18 months backdated to commence on 18 November 2008. There will be eligibility for parole in respect of the effective aggregate term with a result that the appellant will be required to serve 9 months of the prescribed term before being eligible for parole.
I will hear from the parties as to whether any further orders or directions are required.