Sallie v Cursiter

[2018] WASC 318

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   SALLIE -v- CURSITER [2018] WASC 318

CORAM:   MCGRATH J

HEARD:   8 OCTOBER 2018

DELIVERED          :   19 OCTOBER 2018

FILE NO/S:   SJA 1083 of 2018

BETWEEN:   TAAHIR SALLIE

Appellant

AND

MICHAEL CURSITER

First Respondent

ANNE MARIE LOE

Second Respondent

ON APPEAL FROM:

For File No:   SJA 1083 of 2018

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R S HUSTON

File Number             :   PE 72513 of 2016, PE 11076 of 2017, PE 11077 of 2017

Catchwords:

Criminal law - Appeal against sentence - Offender subject to community based order - Breach community based order by reoffending - Re-sentenced by magistrate to a term of immediate imprisonment - Manifest excess - Breach of totality principle - Express errors of law - Magistrate failed to give credit for time spent in custody

Legislation:

Bail Act 1982 (WA), s 51(2a)
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 313, s 317
Misuse of Drugs Act 1981 (WA), s 6(2)R, s 7B(6)
Sentencing Act 1995 (WA), s 6, s 39, s 87, s 130, s 135

Result:

Leave to appeal is granted in respect of grounds one, three and four
The appeal is allowed
The sentence of a fine of $100 is set aside
The term of imprisonment of 12 months imposed by the magistrate is set aside and in lieu thereof a term of imprisonment of 7 months is imposed
The appellant is eligible for parole

Category:    B

Representation:

Counsel:

Appellant	:	Mr A J Robson
First Respondent	:	Ms M M Yeung
Second Respondent	:	Ms M M Yeung

Solicitors:

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

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

AMH v The State of Western Australia [2016] WASCA 180

Cartwright v The State of Western Australia [2010] WASCA 4

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Duncan v The State of Western Australia [2018] WASCA 154

Gillespie v The State of Western Australia [2016] WASCA 216

Kjellgren v Cameron [2012] WASC 80

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

McComish v Harman [2016] WASC 324

McCoombe v The State of Western Australia [2016] WASCA 227

MJS v The State of Western Australia [2011] WASCA 112

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Narkle v Hamilton [2008] WASCA 31

Roffey v The State of Western Australia [2000] WASCA 246

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sathitpittayayudth v The State of Western Australia [2015] WASCA

MCGRATH J:

1. Mr Sallie was convicted, on his own plea, of three offences, being one offence of aggravated assault occasioning bodily harm contrary to s 317 of the Criminal Code (WA), one offence of aggravated assault contrary to s 313 of the Criminal Code and one offence of breach of protective bail conditions contrary to s 51(2a) of the Bail Act 1982 (WA) (the first offences). On 1 March 2017, Mr Sallie was sentenced to a 12 month Community Based Order (CBO).

2. Subsequently, Mr Sallie was convicted of possession of methamphetamine contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA), one offence of possession of cannabis contrary to s 6(2) of the Misuse of Drugs Act and possession of drug paraphernalia contrary to s 7B(6) of the Misuse of Drugs Act (the breach offences).  The three breach offences were committed on 5 December 2017 and were therefore committed during the term of the CBO.

3. Mr Sallie appeared in the Magistrates Court to be sentenced for the breaching offences and also to be resentenced in respect of the first offences pursuant to s 130 of the Sentencing Act 1995 (WA). The magistrate imposed a global fine of $1,000 in relation to the breaching offences and then resentenced Mr Sallie to 12 months' immediate imprisonment for the first offences and further, imposed a $100 fine for breaching the CBO.

4. Mr Sallie now seeks leave to appeal against the sentence imposed in respect of the first offences.  Mr Sallie contends that the magistrate made express errors of law at sentencing and further, imposed a sentence that was either manifestly excessive or breached the totality principle in that the wrong type of sentence was imposed, being an immediate term of imprisonment.

5. For the following reasons I have determined that leave to appeal should be granted in respect to grounds one, three and four and that the appeal should be allowed.

6. In these reasons for decision, I will consider the following:

   (a)The Magistrates Court proceedings.

   (b)The grounds of appeal.

   (c)An assessment of the merits of the appeal.

The Magistrates Court proceedings

1. The prosecution notices lodged on 20 February 2017 plead the three first offences, being one offence of unlawful assault in circumstances of aggravation, namely being in a domestic relationship, contrary to s 313 of the Criminal Code; one offence of unlawful assault thereby doing bodily harm in circumstances of aggravation, namely, being in a family and domestic relationship, contrary to s 317 of the Criminal Code; and one offence of breaching a protective bail condition, contrary to s 51(2a) of the Bail Act.

2. On 1 March 2017, Mr Sallie appeared before his Honour Magistrate Gluestein in the Perth Magistrates Court.  Mr Sallie was represented by a legal practitioner.  The magistrate read the charges to Mr Sallie and he pleaded guilty to those charges. 

3. The facts, which were not disputed by Mr Sallie, were read to the court in the following terms:[1]

   Between 1.45 pm and 2 pm, Thursday 29 December 2016, the accused and victim, who are boyfriend and girlfriend, were seated within the accused's motor vehicle parked within the driveway outside the victim's address in Koondoola.  Whilst the accused and victim were seated within the vehicle, a verbal argument commenced between the two parties.  During the argument, the accused struck the victim to the face with the back of his left arm, causing the victim to bleed from her upper lip.  The accused also grabbed the accused's clothing in the area of her chest, resulting in grazing to her body.

   Around this time, the accused made a triple zero call to police, stating the victim was refusing to get out of his vehicle.  At some point during the telephone call, the victim was heard to say that she was being assaulted by her boyfriend.  There are photographs in relation to that matter, your Honour - and 11076, 11077:  about 11.30 pm, Saturday, 18 February 2017, the accused was in company at an - with the victim, the same victim, at an address in Mirrabooka.  The victim and accused are in a domestic relationship, in that they are boyfriend and girlfriend.

   The two were sitting in the accused's vehicle, a black Honda Accord, and the victim seated in the front passenger seat.  The accused started cleaning out his car when they engaged in a verbal argument over the accused's mobile phone.  The accused believed the victim had his phone, to which the victim stated she did not.  The accused commenced to yell at the victim about having his mobile phone.  The accused got out - got back in his car and grabbed the victim and was pushing his face into the victim's and pulling her hair.  The victim was trying to tell the accused she did not have his mobile phone and to get off.

   After the pair were pushing and pulling each other, they fell out of the vehicle onto the ground, where the accused continued to pull at the victim's hair.  The victim started yelling and screaming, 'Help', but the accused put his hand across her mouth to stop her from screaming and kneeled on her legs.  The victim managed to free herself by jumping up and ran off in an easterly direction towards Wintersweet Ramble in Mirrabooka and ran for police – rang for police assistance, and the police attended, spoke to the victim.  The accused had departed.  As a result of the incident, the victim received a scratch to her left cheek and a small cut inside her lip.

   [1] ts 2 - 3 (1/03/2017).

4. Mr Sallie was represented by counsel.  The magistrate imposed a 12 month CBO.

5. On 15 May 2018 and 5 June 2018, Mr Sallie was convicted, on his own plea, of the breach offences.  The Prosecution Notice pleaded that the three offences were committed on 5 December 2017. On 8 June 2018, Mr Sallie was sentenced.  The facts of the breach offending, which Mr Sallie accepted, were read to the court.[2]

   The facts are at 11.30 am on Tuesday, 5 December 2017 the police conducted a vehicle stop on a black Honda Accord sedan on Koondoola Avenue in Koondoola.  The vehicle stopped on Koondoola Avenue near Marangaroo Drive and police spoke to the accused who was the driver of that vehicle.  The search was conducted of the accused and the passenger and the vehicle.

   As a result of the search several drug related items were located concealed behind the centre console of that vehicle including clip‑seal bags containing methylamphetamine and cannabis.  Located throughout the vehicle were three glass smoking implements used to smoke methamphetamine, including one concealed with the prohibited drugs behind the centre console.  The accused declined to participate in a record of interview.

   The forensic examination was conducted on the drug items concealed in that vehicle and the accused's DNA was located on the exterior and interior surfaces of the clip-seal bag.  Subsequently the accused was summonsed and the present charge proffered.  The weight of the methylamphetamine was approximately one gram and also the weight of the cannabis was approximately one gram. 

   [2] ts 18 (8/06/2018).

6. Mr Sallie's counsel presented a plea in mitigation.[3]  Magistrate Huston then imposed sentence.[4]  The table below outlines the offences and the sentence imposed by the magistrate:

   [3] ts 30 - 34 (8/6/2018).

   [4] ts 34 - 41 (8/6/2018).

First Offences	Maximum Penalties	Sentence Imposed
Aggravated assault occasioning bodily harm s 317(1)(a) Criminal Code	7 years' imprisonment 3 years' imprisonment and $36,000 fine (summary)	6 months' imprisonment (head sentence)
Aggravated assault s 313(a)(a) Criminal Code	3 years' imprisonment and $36,000 fine	6 months' imprisonment (cumulative)
Breach of protective bail conditions s 51(2a) Bail Act	3 years' imprisonment or $10,000 fine or both	2 months' imprisonment (concurrent)
Breach Offences	Maximum Penalties	Sentence Imposed
Possession of prohibited drug namely methamphetamine s 6(2) Misuse of Drugs Act	2 years' imprisonment or $2,000 fine or both	$1,000 global fine
Possession of prohibited drug namely cannabis s 6(2) Misuse of Drugs Act	$1,000 fine	(Global fine)
Possession of drug paraphernalia namely glass pipe s 7B(6) Misuse of Drugs Act	3 years' imprisonment or $36,000 fine or both	(Global fine)

1. In imposing sentence his Honour found that Mr Sallie's offending was so serious that only an immediate term of imprisonment could be imposed.[5]

   [5] ts 40 (8/6/2018).

The Grounds of Appeal

1. The grounds of the appeal are in the following terms:[6]

   1.The learned sentencing Magistrate erred in sentencing the appellant to imprisonment, when in all of the circumstances a sentence of last resort was not open.

   2.The learned sentencing Magistrate erred in failing to suspend the sentence of imprisonment imposed.

   3.The learned sentencing Magistrate erred in failing to give the appellant credit for a period of time spent in custody prior to sentencing.

   4.The learned sentencing Magistrate erred in law in imposing a fine for the appellant's breach of Community Based Order in addition to resentencing him.

   [6] Appeal Notice dated 12 June 2018; Application in an appeal dated 10 September 2018.

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[7]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[8]

   [7] Criminal Appeals Act 2004 (WA), s 9(1).

   [8] Criminal Appeals Act, s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[9] 

   [9] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Robert‑Smith JJA).

4. The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[10]

   [10] Criminal Appeals Act, s 14.

5. In considering this ground of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.[11]  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[12]

   [11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, [15].

   [12] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, [27].

6. Grounds one and two contend that the sentence imposed either was manifestly excessive or breached the totality principle.  Given that Mr Sallie's complaint is that the wrong type of sentence was imposed in respect of the first offences, in that it was not within discretion to impose an immediate term of imprisonment.  The ground properly understood asserts a breach of the totality principle. 

7. Grounds three and four contend that the magistrate made express errors at sentencing. 

An assessment of the merits of the appeal

1. I will now consider each ground of appeal.  I will first determine grounds three and four.

Ground three – Time in Custody

1. Mr Sallie contends that the magistrate erred in failing to give him credit for a period of time spent in custody prior to the re-sentencing for the first offences. 

2. The court has a discretion as to whether to take into account time spent in custody.[13] The court may take that time into account by either reducing the term by an appropriate period or by ordering that the term it imposes be taken from the date when custody began or a later date that is not later than the date of the sentence.[14]  The manner in which the discretion is exercised will depend upon the individual circumstances of each case.[15]  A failure to give full credit for time spent in custody may, depending upon the circumstances, be unjust.[16]

   [13] Narkle v Hamilton [2008] WASCA 31, [40].

   [14] Sentencing Act 1995, s 87.

   [15] Narkle v Hamilton [40].

   [16] MJS v The State of Western Australia [2011] WASCA 112, [221].

3. The respondent accepts that Mr Sallie spent time in custody for the first offences, being a period commencing on 18 February 2017 until 1 March 2017.  His Honour's sentencing remarks do not refer to, nor do they take into account, the time that was spent in custody in respect of the first offences. 

4. At the resentencing for the first offences before Magistrate Huston the duty counsel appearing on behalf of Mr Sallie submitted that time spent in custody should be taken into account when resentencing.[17]

   [17] ts 21, 33 (08/06/2018).

5. His Honour did not state whether or not he took time spent in custody into account when re-sentencing Mr Sallie for the first offences.  Therefore, time in custody was not taken into account at either the sentencing for the first offences by Magistrate Gluestein, nor at the resentencing for the first offences by Magistrate Huston.

6. The respondent accepts that leave to appeal should be granted on this ground and that the ground should be allowed.

7. Therefore, leave is granted on ground three.

Ground four

1. By ground four Mr Sallie contends that the magistrate erred in law by imposing a fine for the breach of the CBO in addition to resentencing him for the first offences.

2. Mr Sallie was sentenced for breaching his CBO by reoffending and not for non‑compliance with the CBO. Accordingly, the magistrate was required to deal with Mr Sallie under s 130 of the Sentencing Act, which provides that if a person commits an offence while subject to a CBO then the court must sentence the person for the offence for which the CBO was imposed in any manner the court could, as if it had just convicted the person of that offence.  There was no separate charge pleading a breach of the CBO by non‑compliance before the magistrate.  Therefore, there was no lawful basis to impose a separate fine for the breaching.  The task of the magistrate was to resentence Mr Sallie in respect of the first offences.

3. The respondent concedes this ground of appeal for the reason that the magistrate erred by imposing the fine of $100.[18]  Accordingly, leave to appeal is granted on ground four.  The fine of $100 must be set aside.

Grounds one and two

[18] Respondent's submissions, [12] - [13].

1. It is appropriate that grounds one and two be considered together.  By ground one, Mr Sallie contends that the magistrate erred, as in all of the circumstances a sentence of last resort was not open.  The ground therefore appears to assert that each of the immediate terms of imprisonment imposed were manifestly excessive, for the reason that a different type of sentence should have been imposed.  Properly understood, ground one asserts that the magistrate breached the totality principle by imposing an immediate term of imprisonment.  By ground two, Mr Sallie contends that the magistrate erred in failing to suspend the terms of imprisonment imposed.  This ground may also be understood as a claim of manifest excess in respect to each of the terms of imprisonment.  The ground, given that it is a complaint in respect of three separate charges, may be understood as a complaint of a breach of the totality principle.

2. Mr Sallie contends that a sentence of imprisonment, whether immediate or suspended, was not within the magistrate's discretion.  That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[19] 

   [19] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

3. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[20]

   [20] Sentencing Act1995 s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

4. A claim that the totality principle is breached asserts implied error.  The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.  The total effective sentence must not be unreasonable or plainly unjust. 

5. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to the offender personally.[21]

   [21] Roffey v The State of Western Australia [2007] WASCA 246, [24].

6. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors and the vulnerability of any victim of the offence.

1. Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. 

2. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[22] The sentencing options available to the court are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment. The two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.

   [22] Cartwright v The State of Western Australia [2010] WASCA 4, [8].

3. Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.

4. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term of imprisonment.[23]  That is, all circumstances must be revisited.  The court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. 

   [23] Dinsdale v The Queen [18], [26], [84], [85].

5. I have outlined the maximum penalties in the table above.  Mr Sallie was convicted of three offences in the context of domestic violence.  General deterrence is a significant sentencing consideration in respect of offences involving assaults by offenders on women in the context of domestic relationships.

6. An aggravating factor in the offending was that Mr Sallie committed the aggravated assault whilst on bail for similar offences committed on the same victim.

7. At sentencing on 8 June 2018, the magistrate found that Mr Sallie's compliance with the CBO was poor.  His Honour received an oral pre‑sentence report.  That report disclosed that Mr Sallie, whilst completing the CBO, did not satisfactorily engage with Community Corrections.  His Honour stated that Mr Sallie's compliance was characterised by minimal engagement, entrenched denial of responsibility and that he had made no treatment gains.  Consequently there was no support from Community Corrections for a further order.[24]  The report confirmed that Mr Sallie had engaged in complete denial in respect to his domestic violence offending and that Community Corrections formed the view that it was not possible to assist Mr Sallie to develop insight into his behaviour.[25]  The report referred to the psychologist treating Mr Sallie who stated that no further treatment sessions should be scheduled due to Mr Sallies 'extreme denial of the offences'.[26]  The report stated that Mr Sallie would frequently fail to attend or reschedule programme appointments.[27]

   [24] ts 35 (08/06/2018).

   [25] ts 23 (08/06/2018).

   [26] ts 24 (08/06/2018).

   [27] ts 23 (08/06/2018).

8. During the period of the CBO Mr Sallie also committed two further offences which were not the subject of any breach action. The two other offences which were committed on 8 April 2017 were one offence of possession of cannabis contrary to s 6(2) of the Misuse of Drugs Act and one offence of no authority to drive (fines suspension) contrary to s 49(1)(a) and s 49(3)(d) of the Road Traffic Act.  Both offences were dealt with by way of fines in the magistrate's court.  His Honour expressly considered this offending which, as I have observed, occurred during the period of the CBO.[28]

   [28] ts 28 (08/06/2018).

9. Mr Sallie has a criminal record that discloses offending in 2011 for unlawful assault with circumstances of aggravation, breaches of violence restraining orders, assault occasioning bodily harm and drug offences.  

10. The respondent has referred to a number of authorities in respect of offending involving aggravated assault occasioning bodily harm: Duncan v The State of Western Australia,[29] McCoombe v The State of Western Australia,[30] Gillespie v The State of Western Australia,[31] AMH v The State of Western Australia,[32] Kjellgren v Cameron[33] and McComish v Harman.[34]  I have considered those authorities.

    [29] Duncan v The State of Western Australia [2018] WASCA 154.

    [30] McCoombe v The State of Western Australia [2016] WASCA 227.

    [31] Gillespie v The State of Western Australia [2016] WASCA 216.

    [32] AMH v The State of Western Australia [2016] WASCA 180.

    [33] Kjellgren v Cameron[2012] WASC 80.

    [34] McComish v Harman [2016] WASC 324.

11. At the hearing of the appeal counsel for Mr Sallie relied, in part, on the fact that Mr Sallie was still in a relationship with the victim, that they have a young child and that Mr Sallie is employed.  Further, counsel submitted that during the period of the CBO Mr Sallie did not commit any further offences of violence.  Also relied upon by counsel was the contention that Mr Sallie did meet the requirements of the CBO by not being breached for reoffending until late into the period of his CBO.  Whilst that is correct, as I have observed, his compliance with supervision and conditions was nonetheless extremely poor.  Further, Mr Sallie did commit two offences during the period of the CBO for which no breach action was commenced.

12. After considering all relevant factors I have determined that only a term of imprisonment was open.  Further, after re‑visiting all factors I do not consider that the term of imprisonment should be suspended.  The question is the length of the term of imprisonment.  I have determined that an immediate term of imprisonment of 12 months was in breach of the totality principle in that the length of the term was excessive.  In making that determination I have considered all sentencing factors.  I am mindful of the nature of the offending involved in the first offences.  However, Mr Sallie was breached later in the period of the CBO and the nature of the breaching offences were drug offences towards the lower end of seriousness.  The magistrate imposed a fine for the breach offences.  

13. Therefore, leave is granted on ground one but leave is refused on ground two.

14. I now turn to the length of the term of imprisonment to be imposed when exercising the re‑sentencing discretion.

Resentencing

1. The appeal is allowed on grounds one, three and four.  Where a sentencing magistrate's discretion has miscarried in respect of one of the individual sentences that forms part of the total effective sentence, the total effective sentence should be set aside and the sentencing discretion falls to be exercised afresh.[35]

   [35] Sathitpittayayudth v The State of Western Australia [2015] WASCA 152, [28] - [29].

2. The term of imprisonment imposed on the three charges, being a total effective sentence of 12 months, did breach the totality principle. I have outlined above, when considering grounds one and two, my reasoning as to why the imposition of a 12 month term of immediate imprisonment did breach the totality principle. I find that the length of the term of imprisonment must be modified to take into account the matters specified in s 135 of the Sentencing Act, namely, the length of the period that Mr Sallie has been subject to the CBO.  I must also take into account the time spent in custody by Mr Sallie.  That time in custody comprises the period served prior to sentencing by Magistrate Gluestein on 1 March 2017 and a further 14 days prior to bail being granted in respect of this appeal.

3. The term of immediate imprisonment to be imposed is an immediate total effective term of imprisonment of 7 months.  That term takes into account the time spent in custody by Mr Sallie.  That is, I have given Mr Sallie credit for time in custody by reducing the term of imprisonment to 7 months.  I would otherwise have imposed a term of imprisonment of 8 months.

4. I will structure that sentence by imposing a term of imprisonment of 4 months on charge PE 72513/2016, being the aggravated assault occasioning bodily harm, a term of imprisonment of 3 months on charge PE 11076/2017, being the aggravated assault and 1 month's imprisonment on charge number PE 11077/2017, being the breach of the protective bail condition.  The term of imprisonment of 3 months imposed for charge PE 11076/2017 will be served cumulatively on charge PE 72513/2016.  The term of imprisonment of 1 month imposed on charge PE 11077/2017 will be served concurrently with the term of imprisonment imposed on charge PE 72513/2016.

5. Consequently, I make the following orders:

   (1)Leave to appeal is granted in respect of grounds one, three and four.

   (2)The appeal is allowed.

   (3)The sentence of a fine of $100 imposed by the magistrate in respect to the breach of the CBO is set aside. 

   (4) The sentences of immediate terms of imprisonment for charges PE 72513/2016, PE 11076/2017 and PE 11077/2017 are set aside and in lieu thereof the following terms of imprisonment are imposed:

   PE 72513/2016: 4 months' immediate imprisonment, cumulative

   PE 11076/2017: 3 months' immediate imprisonment, cumulative

   PE 11077/2017: 1 month's immediate imprisonment, concurrent

   (5)The appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH

19 OCTOBER 2018