Riley v The WA Police - [2023] WASC 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RILEY -v- THE WA POLICE [2023] WASC 335
CORAM:   FORRESTER J
HEARD:   22 & 30 AUGUST 2023
DELIVERED          :   30 AUGUST 2023
FILE NO/S:   SJA 1055 of 2023
BETWEEN:   LESLIE ROBERT RILEY
Appellant
AND
THE WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1055 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   AR 11488 - 11491 OF 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against sentence - Whether sentence imposed manifestly excessive - Whether miscarriage of justice due to material before magistrate not complete

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Code 1913 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on ground 2
Appeal allowed in relation to ground 2
Sentence imposed by learned magistrate on 11 May 2023 set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	N R Sinton
Respondent	:	M I Olds

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

Cases referred to in decision:

Abduramanoski v The State of Western Australia [2019] WASCA 216
Bennier v Millar [2016] WASC 393
Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420
Corpus v Roseveare [2015] WASC 165
Fordham v The Queen (1997) 98 A Crim R 359
Horner v Hunt [2013] WASC 241
House v R [1936] HCA 40; (1936) 55 CLR 499
Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234
Johnson v Vander Sanden [2021] WASCA 27
Kabambi v The State of Western Australia [2019] WASCA 44
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [2004] WASCA 236
Moir v The State of Western Australia [2014] WASCA 25
O'Brien v Narang [2018] WASC 376
Pearman v The State of Western Australia [2021] WASCA 106
Phelps v Standen [2020] WASC 459
R v Araya (1992) 63 A Crim R 123
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SBJ v The State of Western Australia [2019] WASCA 32
Sikora v Gibson [2018] WASC 271
Wellstead v The State of Western Australia [2019] WASCA 130
Weston v Cartmell [2015] WASC 87
Wheeler v The Queen [No 2] [2010] WASCA 105

FORRESTER J:

Introduction

On 4 January 2023, the appellant was sentenced to a 6 month intensive supervision order (ISO) in respect of two offences of damage, one offence of trespass and one offence of possession of methylamphetamine.
On 9 February 2023, the appellant was charged with four charges that on 4 February 2023, he breached a requirement of the ISO by testing positive to an illicit substance. The appellant pleaded guilty to these charges.
On 11 May 2023, pursuant to s 133 of the Sentencing Act 1995 (WA), the learned magistrate cancelled the ISO and resentenced the appellant to a total effective sentence of 8 months' imprisonment.
The appellant now appeals the sentence of imprisonment imposed on 11 May 2023.

Facts

The facts of the offences are that at about 1.20 am on 2 December 2022, the appellant entered the Amaroo Retirement Village in Gosnells which, as its name suggests, provides accommodation to elderly retirees. He had no reason or permission to be there. He went to one unit, picked up a small statue which belonged to the resident of that unit and threw it through the living room window. Understandably, the occupant was frightened, and called police.
Before the police arrived, the appellant climbed onto the roof. He was yelling and walking around on the roof in a paranoid state. He appeared to be affected by drugs. He failed to come down on request, leading to a seven hour stand-off with the police. While he was on the roof, he broke a number of the roof tiles. The incident caused stress and fear to the occupants of the retirement village.
The appellant eventually came down from the roof, at which time he was searched, and found to be in possession of less than a gram of methylamphetamine.[1]
[1] Transcript, Bradley Smith v Leslie Robert Riley, Magistrates Court of Western Australia, 4 January 2023, 3 ‑ 4 (Transcript 4 January 2023).
The four charges of breaching a requirement of the ISO relate to a positive urinalysis test for a sample submitted by the appellant on 4 February 2023; one charge for each ISO imposed on 4 January 2023.

Sentencing

Sentencing on 4 January 2023

The prosecution informed the learned magistrate that the appellant had a substantial criminal record, and had completed a parole order about five weeks before his offences; his parole was focused around rehabilitation for substance use.[2]
[2] Transcript 4 January 2023, 3.
The prosecutor submitted that an ISO was appropriate. In the course of hearing submissions from the appellant, who was self‑represented, the learned magistrate told him:[3]
… I don't intend to impose a sentence that includes imprisonment because it doesn't - I don't reach - - - I don't reach that level. But I do think it reaches the level of an order because you've come off - but I would like to hear what they have to say, and how you went on parole.
[3] Transcript 4 January 2023, 10.
Her Honour ordered an oral pre-sentence report. The report officer told the learned magistrate that the respondent had completed parole in October 2022. He had completed 26 weeks of residential rehabilitation and afterwards continued with substance counselling. He attended every supervision appointment without fail and demonstrated a good level of motivation and insight. In relation to the current offending, the appellant had had a lapse, had since made a substance counselling appointment and had indicated a willingness to engage with a further order.[4]
[4] Transcript 4 January 2023, 11 - 12.
In light of the information presented to her, her Honour imposed an ISO of six months' duration.
In the course of her sentencing remarks, the learned magistrate categorised the offending as 'towards the lower end of the scale' but said it was 'push[ed] up from very low level' as a result of the fact that the residents were likely to have been terrified by his conduct.[5]

Sentencing on 11 May 2023

[5] Transcript 4 January 2023, 15 - 16.

The matter was first brought before the learned magistrate on 2 March 2023, when an adjournment was sought in order for the appellant to try to get his drug levels down.[6]
[6] Transcript, Krista Clark v Leslie Robert Riley, Magistrates Court of Western Australia, 2 March 2023, 2.
A further adjournment was sought on 30 March 2023, at which time the Community Corrections Officer (CCO) indicated that the appellant had failed to engage. The matter was adjourned to enable the appellant a final opportunity to do so.[7]
[7] Transcript, Krista Clark v Leslie Robert Riley, Magistrates Court of Western Australia, 30 March 2023, 2 ‑ 3.
On 27 April 2023, the appellant entered pleas of guilty to four charges of breaching a requirement of the ISO and the matter was adjourned to 11 May 2023 to enable material to be obtained from the South West Aboriginal Medical Service (SWAMS).[8]
[8] Transcript, Krista Clark v Leslie Robert Riley, Magistrates Court of Western Australia, 27 April 2023, 2.
On 11 May 2023, the matter proceeded to sentence. However, the supporting material had not been obtained from SWAMS. The prosecution informed her Honour that, of five scheduled program appointments made for the appellant with SWAMS, he had failed to attend every one. He had attended for supervision. He had had eight positive urinalysis results, two void samples and one failure to attend.[9]
[9] Transcript, Krista Clark v Leslie Robert Riley, Magistrates Court of Western Australia, 11 May 2023, 3 (Transcript 11 May 2023).
In mitigation, it was put that the appellant had mental health issues, which have 'somewhat paranoid or delusions aspects to his state of mind', and the offending occurred in the context of a drug induced mental breakdown. The appellant had a background which included inflicted trauma with which he was trying to deal. He had not committed any offences since 2 December 2022. His counsel conceded that the matter had perhaps reached the end of Community Corrections' involvement, but submitted a term of imprisonment to be suspended or conditionally suspended would be appropriate.[10]
[10] Transcript 11 May 2023, 5 - 6.
In sentencing, the learned magistrate said that, in her view, the offending was 'very serious'. Her Honour said:[11]
I don't need to impose a sentence that acts as deterrence to others in the community, though, you're not a good vehicle for that in light of your mental health issues, but I do need to impose a sentence that acts as a specific deterrence to you.
…
I do reach the position where a term of imprisonment ought to be imposed, because that offending was very serious on the first occasion, and I have a very strong recollection of the factual circumstances, and I think I was the magistrate who sentenced you on that occasion, and I was giving you a chance and an opportunity; moreover, when you came back before me, not on the last occasion, but the time before, I allowed you to continue to see whether you could re-engage with the order, and you haven't done that, and you're still taking drugs.
You're still getting negative urinalysis testing. So it really comes to the point where I do reach the position that a term of imprisonment is appropriate.
[11] ex tempore judgment, Krista Clark v Leslie Robert Riley, Magistrates Court of Western Australia, 11 May 2023, 2, 4 (ex tempore judgment 11 May 2023).
Having determined that imprisonment was appropriate, the learned magistrate turned to the issue of whether the sentence could be suspended. Her Honour considered the seriousness of the offending and repeated her finding that the appellant was not a good vehicle for general deterrence and said:[12]
I've taken into account your personal factors. I've taken into account also there's a need on my behalf to demonstrate the community's condemnation for the type of offence you committed. And, as I said, these were elderly people, and they would have been extremely traumatised by your behaviour.
I've also got to consider your prospect of rehabilitation versus any threat of your breaching. And, as I said, I've given you the opportunity on an intensive supervision order. You've not done well on that. You've continued to take drugs. And even when I gave you an extended opportunity, you still haven't re-engaged. And I've got to consider whether you've spent any time in custody, which I don't think applies in this case. So on balance, I've reached the position that I shouldn't suspend the term of imprisonment, Mr Riley …
…
I'm going to impose eight months on the 11488, damaging property, eight months on the other damaging property, but I've made that concurrent. And I have taken into account 25 per cent discount for an early plea of guilty and totality. I'm imposing four months on the trespass, but I'm making that concurrent, and the possession of prohibited drug, two months; I'm making that concurrent. Comes to a head sentence of eight months, starts today, and I've made you eligible for parole.
[12] ex tempore judgment 11 May 2023, 5.
The learned magistrate imposed a $1,000 fine for the offences of breaching the requirement of the ISO.

Grounds of Appeal

There are two grounds of appeal:
(1) The learned magistrate imposed a sentence which was manifestly excessive.
(2)There was a miscarriage of justice in that the information the learned sentencing magistrate received as to the appellant's engagement in programmes as part of his ISO was incomplete.
An extension of time is required. Sentencing took place on 11 May 2023 and the notice of appeal was not filed until 22 June 2023. In my view, the delay has been adequately explained, and, as it is very short, I propose to grant the extension of time.

Application to adduce additional evidence

The appellant has filed an application to adduce additional evidence in the appeal, namely:
(1)Adult Community Corrections Statement of Breach Facts dated 8 and 9 February 2023;
(2)letter of Les Barlow, Counsellor, SWAMS Mental Health and Alcohol and Other Drug Service dated 3 August 2023;
(3)affidavit of the appellant affirmed 28 July 2023, paragraphs [11] to [32];
(4)SWAMS Patient Summary dated 20 July 2023.

Statutory framework and legal principles

Appeal from a court of summary jurisdiction

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[13]
[13] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[14] meaning that the ground is required to have a rational and logical prospect of succeeding.[15] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[16]
[14] CA Act s 9(2).
[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[16] CA Act s 9(3).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[17]
[17] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[18]

Application to adduce additional evidence

[18] CA Act s 14(2).

An appeal court must decide an appeal on the evidence and material that were before the lower court.[19] However, the court does have a broad power to admit any other evidence, pursuant to s 40(1)(e) of the CA Act.
[19] CA Act s 39.
The principles to be applied in determining an application to admit additional evidence in an appeal against sentence where the ground of appeal alleges a miscarriage of justice occurred because the additional evidence was not before the primary court were summarised by Derrick J in Jetta v Director of Public Prosecutions for Western Australia[20] as follows:
1.Before additional evidence can be admitted on an appeal against sentence the court must conclude that if the additional evidence had been before the primary court a different sentence should have been imposed. However, the fact that the additional evidence demonstrates that a different sentence should have been imposed is not of itself sufficient to justify the admission of the evidence. It must also be demonstrated that the absence of the evidence before the primary court has given rise to a miscarriage of justice;[21]
2.Although a miscarriage of justice may arise from the absence of material evidence before the primary court, a miscarriage of justice will not arise in all such cases because the process of identifying a miscarriage in such circumstances must be undertaken consistently with the nature of an appeal and in a manner that does not have the practical effect of obliterating the distinction between original and appellate jurisdiction;[22]
3.Although as a matter of practice the courts customarily adopt a more flexible approach to the determination of applications to admit additional evidence on appeals against sentence than on appeals against conviction, there is a need to consider the particular circumstances in which the evidence was not adduced before the primary court at the sentencing in order to determine whether there was a miscarriage of justice;[23]
4.A miscarriage of justice may more readily arise in an appeal against sentence from the absence of evidence which was not known to, or reasonably obtainable by, an appellant at the time of sentence;[24]
5. In general terms a miscarriage of justice will be difficult to establish where evidence was actually known to an appellant at the time of sentencing, and was reasonably obtainable by the appellant at the time of sentencing, but was not used in the sentencing hearing;[25] and
6.It has been recognised that consistently with the role of an appellate court evidence of events subsequent to the time of sentencing may be received to show facts relevant to the sentencing process which were in existence at the time of sentencing but either not known to the sentencing judge or not properly appreciated at the time. This may occur, for example, where a mental health impairment which existed prior to sentencing is diagnosed, or its significance is appreciated, after sentencing has occurred. A miscarriage of justice may arise from the absence of evidence of this kind at the sentencing hearing.[26]
[20] Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [80].
[21] Wheeler v The Queen [No 2] [2010] WASCA 105 [53]; Wellstead v The State of Western Australia [2019] WASCA 130 [82] - [86], [88], [90]; LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1 [120], [124]; Abduramanoski v The State of Western Australia [2019] WASCA 216 [50(a)].
[22] Wellstead v The State of Western Australia [91]; Abduramanoski v The State of Western Australia [50(b)].
[23] R v Araya (1992) 63 A Crim R 123, 129 - 130; Wheeler v The Queen [2], [53]; Wellstead v The State of Western Australia [90], [97].
[24] Wellstead v The State of Western Australia [95].
[25] Fordham v The Queen (1997) 98 A Crim R 359, 377; M v The Queen [2004] WASCA 236 [7]; Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10]; Wellstead v The State of Western Australia [90]; Pearman v The State of Western Australia [2021] WASCA 106 [16].
[26] Wellstead v The State of Western Australia [29], [93]; Abduramanoski v The State of Western Australia [50(d)].

Disposition

It is convenient to deal with ground 2 first.

Ground 2

By this ground, the appellant contended that there has been a miscarriage of justice due to the fact that the material before the learned magistrate at the sentencing hearing was not complete.
The respondent conceded that ground 2 has been made out.

Additional evidence

The Adult Community Corrections (ACC) Statement of Breach Facts dated 4 January 2023 indicated that the appellant had maintained satisfactory contact with ACC.
In relation to his programme requirement, he was initially referred to the South West Community Alcohol and Drug Service. However, the case notes indicate that, due to risks relating to the appellant's mental health issues, it was decided that an interagency meeting was to be arranged to consider safe options. The appellant was referred to the Departmental psychologist. However, the Statement of Breach Facts indicates that the South West position is 'currently uncovered'.
The appellant was also referred to a program in relation to violent offending, which was unavailable in the south-west.
The unavailability of these critical resources are matters which one might have expected to be dealt with in the pre-sentence report obtained by the learned magistrate prior to sentence. While the pre-sentence report obtained was an oral report (and therefore less time was available to the officer providing the report), and her Honour was primarily interested in the appellant's past parole performance, the purpose of obtaining a pre-sentence report before imposing an ISO is to provide information regarding the suitability of such an order for an offender. In this case, that information was not sought or provided.
Ultimately, therefore, the only service which was available declined to see the appellant, and otherwise he was referred to services which were not reasonably available to him.

The material obtained from SWAMS indicates that the appellant initially self-presented seeking assistance on 1 February 2023. He maintained contact with the Mental Health and Alcohol and Other Drug Service before an appointment with the Social Emotional Wellbeing team on 24 February 2023. He also made contact in April 2023. He sought assistance for referral to local drug and alcohol rehabilitation counselling while awaiting acceptance by SWAMS.
The letter from SWAMS indicates that the appellant 'disengaged' for a period. That period coincides with his time in custody after sentencing. He reconnected on 20 July 2023, which was shortly after his release on bail pending appeal. He attended two counselling sessions and attended weekly SWAMS Men's Group support network meetings.
In his affidavit affirmed on 28 July 2023, the appellant deposed to his family circumstances and said that, after his release on parole on 10 January 2022, he spent six months in residential rehabilitation in Broome. Afterwards, he moved to Beeliar and secured full time employment. He began a relationship with a woman, but it was 'rocky' and after they broke up he started using amphetamines again.
The appellant conceded that all of the evidence was available to him prior to his sentencing, but deposed that on the day of his sentencing he 'wasn't doing well' and so he was not able to tell the duty lawyer everything he should have.
Annexed to the appellant's affidavit is a record of the appellant's contact with SWAMS. It records a number of consultations between February and May 2023.
The additional evidence the appellant seeks to admit on the appeal is new, not fresh, evidence. However, it was clearly information which would have been relevant to the sentencing of the appellant on 11 May 2023.
The sentencing remarks of the learned magistrate indicate that her Honour regarded the fact that the appellant had 'still' not re-engaged with his ISO, despite having been given an 'extended opportunity', to be of considerable significance in determining that imprisonment was the appropriate disposition, but particularly in determining that it was not appropriate to suspend that sentence of imprisonment, whether conditionally or not.
Section 135 of the Sentencing Act provides that, in dealing with a person under s 133(1) of the Sentencing Act, the court must take into account the extent to which the person has complied with an ISO and how long they have been subject to the ISO. The learned magistrate clearly had regard to this requirement in sentencing. However, some information relevant to that question was not before her Honour, and other information as to steps the appellant was taking outside the ISO was not also made available to her Honour.
The new evidence establishes that the appellant was, at the outset, effectively precluded from engaging in a meaningful manner with the ISO, largely because of a lack of local resources. Despite this, he made attempts of his own accord to engage with SWAMS and the programs it could assist him with. While his engagement was somewhat sporadic, and he plainly continued to use methylamphetamine during this time, it could in no way be said that the appellant was not making any attempts to recommence treatment. That he was doing so of his own accord made those attempts more meaningful.
The appellant's adult criminal history is, without question, very bad. He was first sentenced to imprisonment at the age of 18 years, for 11 counts of burglary. Thereafter, he has been convicted of numerous burglary offences, charges of assault public officer and assault to prevent arrest, escape legal custody, attempt to pervert the course of justice, damage, grievous bodily harm, assault occasioning bodily harm, threats and aggravated armed robbery. His most recent sentence was one of 6 years' imprisonment for aggravated robbery, steal motor vehicle, threats to kill, unlawfully wounding another with intent to do grievous bodily harm, and doing an act with intent to harm, which act resulted in a danger to life, health or safety.
As a result, the appellant has rarely been out of custody during his adulthood, with the exception of a period between November 2014 and October 2016. His offending is clearly linked to an enduring substance abuse problem, which he had taken steps to address while on parole. Regrettably, he relapsed and committed the offending on 2 December 2022. While that offending was of a somewhat different character to most of his previous offending, it was still serious.
The appellant remained on bail between 2 December 2022 and 11 May 2023. During that time, he continued to use methylamphetamine, but did not commit any other offences.
In my view, given the significance which the learned magistrate attached to the appellant's engagement with rehabilitation services, if the new material had been before her Honour, a different sentence should have been imposed.
However, it is not sufficient that I find that a different sentence should have been imposed; it is necessary for the appellant to demonstrate that a miscarriage of justice has occurred.
During the course of submissions at the sentencing hearing, the learned magistrate said that the appellant 'was given [the] opportunity to try and re-engage, and he hasn't done that.' At that point, the appellant interjected, and sought to speak on his own behalf, but was prevented from doing so.[27] Her Honour invited the appellant's counsel to stand the matter down, but that invitation was not taken up; his counsel advised her Honour of certain matters that the appellant wanted emphasised. However, when the appellant was asked whether that was correct, he said, 'sort of' and said:
Can I please speak on my own behalf? You know, you're not actually saying what needs to be said …[28]
[27] ex tempore judgment 11 May 2023, 2.
[28] ex tempore judgment 11 May 2023, 3.
The learned magistrate indicated that she was prepared to hear from the appellant, but before doing so, indicated the matters put by his counsel, which her Honour listed, would be taken into account. None of those matters included his attempts to engage with SWAMS or any other service.[29]
[29] ex tempore judgment 11 May 2023, 3 - 4.
Having listed the matters, the learned magistrate asked the appellant if he was satisfied she had heard what he had to say, and the appellant responded 'In a way, it does … You know, like, but it – it's okay, your Honour.' When her Honour asked if he was 'happy with that', he confirmed he was.[30] The learned magistrate then proceeded to sentence, without hearing further from the appellant or his counsel.
[30] ex tempore judgment 11 May 2023, 4.
The appellant deposed that, on the day of his sentencing, he 'wasn't doing well' and therefore was not able to tell the duty lawyer everything he should have.[31] This is consistent with his counsel's submission to the learned magistrate that he was in a 'much more depressed state than he was on the last occasion'.[32]
[31] Affidavit of the appellant affirmed 28 July 2023 [35].
[32] ex tempore judgment 11 May 2023, 3.
In my view, the fact that, at the point at which the appellant's attempts to re-engage with his rehabilitation was being addressed, he sought to address her Honour himself, but ultimately did not do so, is consistent with the appellant's evidence on the appeal that he had not fully instructed his counsel and that he wished to remedy that.
It is understandable that both the learned magistrate and his counsel would seek to dissuade him from making his own submissions while represented by counsel. It is also understandable that her Honour's invitation to the appellant's counsel to stand the matter down was not taken up. However, the result was that the appellant may have inadvertently been prevented from placing the substance of the new evidence before the court.
In those circumstances, and having found that a different sentence should have been imposed had the learned magistrate been informed of the additional evidence, it is my view that a miscarriage of justice has occurred in this case.
Accordingly, I am required to re-sentence the appellant.

Ground 1

Having determined that the appeal should be allowed in relation to ground 2, it is strictly unnecessary for me to decide ground 2. However, as it was the subject of detailed written submissions, it is appropriate that I address it.
The submissions as to this ground of appeal were, in substance, that the total effective sentence was manifestly excessive, that is, that it breached the first limb of the totality principle. The individual sentences were not challenged.
The appellant submitted that, while his offending had serious features, it was not sufficiently serious to warrant an immediate term of imprisonment. The appellant points to his period of compliance with the ISO, as established by the additional evidence, as a matter which warranted the imposition of a lesser sentence, or an order suspending the term of imprisonment.
The respondent submitted that, on the evidence available to her Honour at the time of sentencing, the sentence imposed was open to the learned magistrate.
The maximum penalty for the offence of unlawful damage is 2 years' imprisonment and a fine of $24,000.[33]
[33] Criminal Code 1913 (WA) s 445.
The maximum penalty for the offence of trespass is imprisonment for 12 months and a fine of $12,000.[34]
[34] Criminal Code s 70A(2).
The maximum penalty for the offence of possession of a prohibited drug, namely methylamphetamine is a fine not exceeding $2,000 or to imprisonment for a term not exceeding 2 years or both.[35]
[35] Misuse of Drugs Act 1981 (WA) s 34(1)(e).
A ground of appeal alleging that a sentence is manifestly excessive is asserting an implied error. An appeal on such a ground cannot succeed unless it is demonstrated that the sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[36]
[36] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.[37]
[37] Kabambi v The State of Western Australia [21].
On 4 January 2023, the learned magistrate indicated that she did not consider that the point had been reached that a term of imprisonment was appropriate. However, it is clear that her Honour was prepared, at that point, to place very significant, even generous, weight on the appellant's previous attempts at rehabilitation as indicating his future prospects. At resentencing on 11 May 2023, that mitigation was not available to the appellant.
While the appellant had been on the ISO for 5 months (from a total required 6 months), the information before her Honour had indicated a total lack of compliance with his program requirement.
The appellant pointed to the fact that, when sentencing the appellant to the ISO, the learned magistrate categorised the offending as being towards the lower end of the scale, although elevated by the impact it would have had on the residents of the property but on resentencing, described the offending as being 'very serious'. However, unless the learned magistrate was wrong in her later description of the offence as 'very serious', the discrepancy cannot assist the appellant to establish manifest excess.
The parties have been unable to locate comparable cases which assist in identifying any range for the offence of unlawful damage. Appellate decisions of relevance, as the respondent points out, have generally involved multiple counts of varied offences, or wilful damage, as opposed to unlawful damage.
Both parties have referred to Corpus v Roseveare[38] and Phelps v Standen.[39] In those cases, Hall J (as his Honour then was) and Smith J respectively observed that sentences of 8 months' imprisonment for the offence of wilful (rather than unlawful) damage (which carries a maximum penalty of 10 years' imprisonment) involving the breaking of a window to be 'severe' in the particular circumstances of those cases.
[38] Corpus v Roseveare [2015] WASC 165.
[39] Phelps v Standen [2020] WASC 459.
Both parties also referred to Bennier v Millar[40] in relation to the offence of trespass. In that case, the 23-year-old appellant was standing on a railway overpass for passenger trains, in an area which was fenced off, and limited to access to authorised persons only. Police were called and they tried to speak with the appellant, who refused to engage. The resulting 10 hour stand-off resulted in the cancellation of trains between Mandurah and Rockingham, and required several specialist resources to deal with the appellant. The appellant had a mental illness, but there 'may have been some drug use on the day … or leading up to that day.'[41]
[40] Bennier v Millar [2016] WASC 393.
[41] Bennier v Millar [10].
In that case, Martino J found that no customary range of sentencing could be discerned for the offence of trespass.[42] His Honour considered the cases of Weston v Cartmell,[43] Horner v Hunt[44] and Moir v The State of Western Australia[45] but noted that the fact that the sentences of imprisonment imposed in those cases were all shorter than in Bennier did not make the sentence manifestly excessive.[46] The sentence of 7 months' imprisonment, suspended for 9 months, was not disturbed, given the serious nature of the trespass involved.
[42] Bennier v Millar [27]; see also Sikora v Gibson [2018] WASC 271 [21] (Corboy J) and O'Brien v Narang [2018] WASC 376 [55] (Jenkins J).
[43] Weston v Cartmell [2015] WASC 87.
[44] Horner v Hunt [2013] WASC 241.
[45] Moir v The State of Western Australia [2014] WASCA 25.
[46] Bennier v Millar [27].
The present case is comparable to Bennier in terms of the seriousness of the trespass involved; that is, it was towards the upper end of the range of seriousness for the offence of trespass. It started in the very early hours of the morning, took place over a very lengthy period, would have been extremely distressing for the elderly occupants of the premises, involved considerable police resources and had no mitigating features, it being solely the result of the appellant's drug induced state of paranoia.
In this case, the appellant's personal circumstances at the time of sentencing were also of limited mitigation. He was 47 years of age, with a very serious criminal history. He relapsed into methylamphetamine use within a very short time after completing parole, which had involved intensive residential rehabilitation. The relapse was demonstrated not to be a one-off; the appellant had returned to regular drug use, in breach of a court order. The appellant was attempting to deal with past traumatic issues so, in a finding not challenged by the respondent, the learned magistrate considered the appellant to be a poor vehicle for general deterrence. However, community protection was an important factor. The only significant mitigating factor was the plea of guilty.
The trespass was the most serious of the offences committed by the appellant. In turn, the offence of damage relating to the broken window was more serious than the offence of damage relating to the broken tiles. In those circumstances, the sentences of 8 months' imprisonment for the two damage offences are difficult to reconcile with each other and with the sentence of four months' imprisonment in relation to the trespass.
I have already found that, had the additional evidence been before her Honour, a different sentence should have been imposed. However, in the absence of that material, I am unable to find that, in all of the circumstances, the total effective sentence was disproportionate to the overall criminality of the appellant's conduct.
I am also not satisfied, having regard to all of the circumstances of the offending, and matters personal to the appellant, that it was not open to her Honour to decline to suspend the term in light of the information that was then available to her.
Ground 1 is not made out.

Resentencing

I have before me the material necessary to re-sentence the appellant.
I have already referred to the factors which place the offence of trespass towards the upper end of the range of seriousness for offending of this type.
As indicated, the appellant is now 48 years of age, with very limited mitigation to be found in his personal circumstances. At the time of the offending, he had made recent attempts to deal with his entrenched substance abuse issues. However, it was submitted on his behalf that, on completion of his residential rehabilitation program, he was effectively sent out on his own into the community. He had been struggling to come to terms with childhood trauma which he had only recently begun to address and, without any structure or support, he sought refuge in what was familiar to him: methylamphetamine.
The appellant is entitled to the maximum discount on his sentence of 25% pursuant to s 9AA of the Sentencing Act for his plea of guilty. I also take into account that he has spent 75 days in custody for his offending.
It is relevant that the offences committed on 2 December 2022 were of a somewhat different character to the majority of the appellant's criminal offending and that, other than using substances, the appellant has not offended since that date.[47]
[47] I note that he has been charged, but not convicted, of two minor offences.
I am required to take into account the extent of the appellant's compliance with the ISO and the length of time for which he has been subject to it.[48] The appellant had less than one month of the ISO to serve by the time he was sentenced by her Honour on 11 May 2023. Further, the fact that his compliance was relatively poor was explained, at least in part, by the inability of the Department to provide the necessary resources to him as part of the ISO. He is also entitled to credit for having attempted, on his own, to access treatment and support through SWAMS.
[48] Sentencing Act s 135(2).
It is not an aggravating factor that the ISO did not achieve the purpose for which it was imposed.[49]
[49] Sentencing Act s 7(2)(c).
The appellant was released on bail on 11 July 2023 on conditions that he report every Monday, Wednesday and Friday to the officer in charge of the Bunbury Police Station, that he not possess or use any prohibited drugs, and that he submit to random urinalysis. On 16 August 2023, he surrendered his bail, having been arrested for summary offences of trespass and possession of cannabis. I was also informed that he had tested positive for methylamphetamine and amphetamine in tests conducted on 2 August 2023 and 12 August 2023, and failed to report on 7, 9, 11 and 14 August 2023. On his arrest, he had a small amount of cannabis in his possession. He is to be presumed innocent of the new charges, and I do not take them into account. However, I do take into account the positive urinalysis results.
The materials did reveal that, notwithstanding his drug use after his release on bail, the appellant did, of his own accord, return to SWAMS for counselling and other services. He was due to attend further sessions when he was arrested. I am satisfied that he is still motivated to address his substance use issues, even if that motivation is not presently sufficient to entirely prevent his substance use.

Had I been sentencing the appellant in May 2023, with all of the necessary information before me, I would have imposed a term of imprisonment of 7 months, to be suspended after 3 months, with the remaining sentence to be suspended for 4 months. However, for the following reasons, that is now not appropriate.
A term of suspended or partially suspended imprisonment cannot be backdated,[50] which would mean that the appellant would not get credit for the 75 days he has already spent in custody.
[50] SBJ v The State of Western Australia [2019] WASCA 32 [136].
The court is not entitled to impose a term of imprisonment of 6 months or less, with or without an order suspending the term in whole or in part.[51] Further, a court cannot impose a suspended or partially suspended term of imprisonment unless a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all of the circumstances.[52]
[51] Sentencing Act s 86; Johnson v Vander Sanden [2021] WASCA 27 [12(b)].
[52] Sentencing Act s 76(2).
In my view, a term of imprisonment of more than 6 months to be immediately served from today would not be appropriate in this case. Accordingly, I am unable to impose a suspended or partially suspended term of imprisonment.
Having determined that a (partially) suspended term of imprisonment would, if possible, be appropriate, it is not open to me to impose a term of immediate imprisonment.[53]
[53] Sentencing Act s 39(3).
I have had the benefit of an oral pre-sentence report, to provide me with the most up to date information as to the available resources were I to impose a further community order. While the situation has improved somewhat in the south-west, such that the Departmental psychologist position has now been filled, there are still significant concerns as to the ability of Community Corrections to manage the appellant's mental health issues, particularly if he continues to use illicit substances.
It is recognised by both Community Corrections and the appellant that he needs psychological intervention to deal with his substance use and his psychological issues arising out of his childhood trauma, but the appellant has been assessed as being potentially 'pre-contemplative' when it comes to full engagement with such psychological intervention.
A further issue arises, and that is that the appellant is presently in custody on his summary matters, and it is not known whether he will be granted bail on those matters. Accordingly, a community order is not possible at this stage.
I did consider remitting the matter to be dealt with by a magistrate at the same time as the appellant's other matter. I particularly considered whether the appellant was suitable for referral to the Drug Court. However, the appellant does not have available suitable accommodation in the Perth metropolitan area, as would be required. Further, his outstanding matter is not ready to be finalised, and may take some time to do so. In circumstances in which this matter needs to be brought to a conclusion, I declined to remit the matter.
The next available sentencing option is a suspended fine. Curiously, that sentencing option is a sentencing option listed after the option of a fine to be immediately paid, and thus is regarded as a more serious sentencing option than a fine to be immediately paid.
In the circumstances, it is my view that a suspended fine is the appropriate disposition in this case. However, it is important to make the observation that at first instance, I would consider this sentence to be considerably outside (as in below) the range of appropriate sentences for the offending in this case, even taking into account the 75 days the appellant has now spent in custody.
I cannot impose a suspended fine unless a fine equal to that suspended would, if it were not possible to suspend the fine, be appropriate in all of the circumstances.[54] In deciding the amount of the fine, I am obliged to consider, as far as practicable, the means of the appellant and the extent to which payment of the fine will burden the offender.[55]
[54] Sentencing Act s 60A(2).
[55] Sentencing Act s 53(1).
Having heard from counsel, I determined that a fine of $1,000 suspended for 6 months was the appropriate sentence.

Orders

The orders I make are as follows:
(1) Leave for an extension of time is granted.
(2)The application to adduce additional evidence is allowed.
(3)Leave to appeal is granted in relation to ground 2.
(4) Leave to appeal is refused in relation to ground 1.
(5)The appeal is allowed.
(6)The sentence imposed by the learned magistrate on 11 May 2023 is set aside.
(7)The appellant is resentenced to a fine in the sum of $1,000, suspended for 6 months.
(8)There is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
30 AUGUST 2023