Simms v Geeson - [2020] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SIMMS -v- GEESON [2020] WASC 381
CORAM:   DERRICK J
HEARD:   20 OCTOBER 2020
DELIVERED          :   23 OCTOBER 2020
FILE NO/S:   SJA 1050 of 2020
BETWEEN:   PETER SIMMS
Appellant
AND
LEE SEAN GEESON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   KA 1087 of 2020, KA 1088 of 2020

Catchwords:

Criminal law - Offences of receiving and fraud - Appeal against sentence - Sentence of immediate imprisonment partially suspended - Prosecution notice containing charge of receiving not alleging value of received property contrary to cl 6(5) of sch 1, div 2 of the Criminal Procedure Act 2004 (WA) - Prosecution statement of facts of receiving offence not alleging value of received property - Whether magistrate made an error of law in sentencing the appellant on the basis that the applicable maximum summary conviction penalty for the receiving offence was that provided for in s 426(2) of the Criminal Code (WA) rather than in s 426(4) of the Criminal Code (WA) - Whether miscarriage of justice occurred as a result of the magistrate sentencing the appellant on the basis that the applicable maximum summary conviction penalty for the receiving offence was that provided for in s 426(2) of the Criminal Code (WA) rather than in s 426(4) of the Criminal Code (WA) - Failure to refer to reduction in sentences for pleas of guilty - Whether wrong type of sentence imposed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr C Y Stockdale
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Dillon v The State of Western Australia [2020] WASCA 24
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Eldrige v The State of Western Australia [2020] WASCA 66
Forrest v The State of Western Australia [2019] WASCA 172
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Hamlett v Whitney [2013] WASC 100
Kelly v The State of Western Australia [2020] WASCA 29
Kotnowski v Richardson [2019] WASC 369
Law v The Queen [2019] WASCA 81
Mason v The State of Western Australia [2018] WASCA 43
MJ v Sanders [2020] WASC 150
NTH v The State of Western Australia [2020] WASCA 22
Page v The State of Western Australia [2018] WASCA 76
Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schulz v Coyne [2019] WASC 329
The State of Western Australia v Jacoby [2020] WASCA 150
Williams v Pennuto [2016] WASC 325
Winmar v Clark [2015] WASC 314
Wolfenden v Brigden [2013] WASC 461
WRT v The State of Western Australia [2020] WASCA 68

DERRICK J:

Introduction

On 8 June 2020 the appellant pleaded guilty to, and was convicted of, one offence of receiving a stolen credit card contrary to s 414 of the Criminal Code (WA) (Code) (KA 1087/2020) and one offence of gaining a pecuniary benefit by deceit and with intent to defraud contrary to s 409(1)(c) of the Code (KA 1088/2020). On the same date the appellant was sentenced by Magistrate O'Donnell to 3 months and 1 day imprisonment for the receiving offence and to 3 months imprisonment for the fraud offence. Her Honour ordered the sentences to be served cumulatively giving a total effective sentence of 6 months and 1 day imprisonment.[1] Her Honour also ordered that 4 months and 1 day of the total sentence be suspended for 6 months.[2] Accordingly, the end result was that the appellant was required to serve 2 months in prison and the remaining 4 months and 1 day of the term imposed in the community on a suspended imprisonment order.[3]
[1] ts 7.
[2] ts 7.
[3] ts 7.
The appellant now applies for an extension of time within which to appeal, and for leave to appeal against the individual sentences and the total sentence imposed on three grounds the details of which are set out below.[4]
[4] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 30 July 2020 the appellant was granted bail pending the determination of the appeal. Despite being granted bail the appellant has already served the vast majority of the 2 months immediate imprisonment imposed by the magistrate.
On 10 September 2020 the Principal Registrar made an urgent appeal order in respect of the appeal. The Principal Registrar further ordered that the application for an extension of time within which to appeal and the application for leave to appeal should be heard together with the appeal.
For the reasons that follow I am of the opinion that the appeal should be allowed.

The application for an extension of time

The last day for the appellant to appeal against the sentence imposed was 6 July 2020.[5] The appellant filed his appeal notice on 16 July 2020, that is, 10 days out of time.
[5] CAA, s 10(3), s 10(4).
The appellant's counsel has sworn an affidavit dated 16 July 2020 in support of the appellant's application for an extension of time within which to appeal.
Ultimately the question is whether it is in the interests of justice to grant the requested extension of time.[6]
[6] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The delay in filing the appeal notice was relatively short and is adequately explained by the appellant's solicitor's affidavit. Further, the application for an extension of time is not opposed by the respondent. In these circumstances, and given the conclusion that I have come to in relation to the merits of the grounds of appeal, it is in my opinion in the interests of justice to grant the requested extension of time.

Leave to appeal

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[7] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[8] If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.[9]
[7] CAA, s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[9] CAA, s 9(3).

The facts of the offences

The facts of the appellant's offences were read to the magistrate by the prosecutor during the hearing before her Honour on 8 June 2020.[10] The facts as read were not disputed by the appellant. The facts of the offences are as follows.
[10] ts 3.
At approximately 12.50 am on 11 March 2020 the appellant was walking down Wittenoom Street in Piccadilly, a suburb of Kalgoorlie. He was in company with his partner. He was approached by a friend who gave him a credit card which had been stolen earlier that night. He took the credit card knowing that it had been stolen.
Four minutes after taking possession of the credit card the appellant went to the BP Golden Gate service station in Kalgoorlie. He entered the service station store and selected a packet of cigarettes valued at $31.99. He used the stolen credit card to pay for the cigarettes. He then shared the cigarettes with the friend from whom he had obtained the credit card.
The appellant was arrested on 18 March 2020. He made full admissions to his offences. He told the police that his friend 'told me to try it'.
It was the appellant's conduct in taking possession of the credit card knowing that it had been stolen that constituted his receiving offence. It was the appellant's conduct in using the credit card to purchase the packet of cigarettes that constituted his fraud offence.

The sentencing hearing

At the sentencing hearing on 8 June 2020 the appellant was represented by counsel. After the facts of the offences were read to the magistrate by the prosecutor, the appellant's counsel made a brief plea in mitigation during which he informed the magistrate of the following:[11]
1.At the time of committing the offences the appellant was affected by alcohol and had no money;
2.The appellant was 22 years old;
3.The appellant lived in a de facto relationship and had a 2‑year‑old child who was in the care of his partner's older sister in Perth;
4.The appellant was unemployed;
5.The appellant was in receipt of a Centrelink payment of $550 per fortnight, of which he received $100 in cash with the balance of $450 being paid into the 'Indue card'; and
6.The appellant paid board of $100 per fortnight to the family that he was living with.
[11] ts 4.
The appellant's counsel submitted that the appropriate sentences for the offences were fines.[12]
[12] ts 4.
A little later in the hearing, in response to a statement by the magistrate that given the appellant's past performance when placed on orders she did not think that she could have 'very much confidence that [the appellant] would engage',[13] the appellant's counsel said the following:[14]
… I do note, when he got those orders, he had more than two charges before the court. I don't have his records, but I just note that he's before the court today with two charges and being given that card and knowing it was stolen, he could have went to town with the card but he didn't. He has just made the one transaction for that small amount. So normally someone gets that card they will go out all day, all night, go and make 100 transactions. He has only made one, to his credit, which he shouldn't have done at all. We know that.
[13] ts 6.
[14] ts 6.
The prosecutor, in his submissions, while raising concerns about the appellant's ability to comply with any form of community based disposition and stating that there was a need for personal deterrence, did not expressly press for the imposition of a term of imprisonment.[15] As part of his submissions the prosecutor said to the magistrate that 'if it is a fine today, I think there needs to be a substantial fine'.[16] The prosecutor concluded his submissions in these terms:[17]
… Anyway, so what I'm saying is, he doesn't get any credit for his history. He's still 21 years old but he's just definitely, from hearing that, you know, he's just not complying. So a CBO or ISO, I mean, where does that take us? Even his ISO, he's still not compliant and a fine, well.
…
I don't know, so.
[15] ts 4 ‑ 5.
[16] ts 4.
[17] ts 5.
Having heard the submissions of the appellant's counsel and the prosecutor the magistrate proceeded to sentence the appellant. Her Honour's sentencing remarks were as follows:[18]
Alright. Well, the concern in this case is the complete lack of engagement with the orders. And as I say, as I've already mentioned, he has got orders going back to 2016 when he first started accumulating adult convictions. And I am only taking into account his adult history. Community based order, he breached that one and it was cancelled ultimately. Then he was given a suspended imprisonment order. He breached it: it was allowed to continue. It was allowed to continue - that was on 17 October 2017. He then received, I think, a term of imprisonment for an attempted aggravated home burglary.
He then got a community based order. The most recent one, which as I say and we've canvassed already, that was breached and allowed to continue. He has been given all sorts of opportunities to engage and to show that he's interested in engaging. In those circumstances, I say I - like, if he had made some effort, then I could say alright, well, he made some effort, he found it difficult, but he tried. But really he hasn't tried at all.
…
So what I propose to do, Mr Simms, you're still young. You're 22 years old but as I say, you just haven't taken the opportunities given to you. I'm going to sentence you to a term of imprisonment for these matters. They are offences that carry imprisonment. They are not the most serious examples by any means of offences of their type but your problem is you've got this history of the same sort of thing and you don't seem to be taking on any of the opportunities given to you. But I'm going to partially suspend it. So what I will do is give you, on 1087, the receiving, the [sic] 3 months and 1 day imprisonment. On the gaining benefit by fraud, which was getting the $31.99 worth of whatever it was, 3 months imprisonment.
The total is therefore 6 months and 1 day. You will serve 2 months of that. Four months and 1 day will then be suspended for a period of 6 months. …
[18] ts 6 ‑ 7.

Ground 3

It is convenient to deal first with ground 3 of the appellant's grounds of appeal. Ground 3 is expressed in the following terms:[19]
The learned sentencing Magistrate erred in law by failing to appropriately consider s 426(4) of the Criminal Code (WA) and subsequently imposing a sentence beyond the summary conviction penalty for the charge of receiving stolen property under s 414 of the Code.
[19] An appeal may be made on a ground alleging an error of law pursuant to s 8(1)(a)(i) of the CAA.
The ground of appeal is conceded by the respondent.

Section 426 of the Code

Section 426 of the Code relevantly provides as follows:
(1)Subsection (2) applies to the following indictable offences -
(a)an offence under s 378 … in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;
...
(e)receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.
(2)Summary conviction penalty: for an offence to which this subsection applies where the value of the property in question does not exceed $50,000, unless subsection (4) applies - imprisonment for 2 years and a fine of $24,000.
…
(4)Summary conviction penalty: for an offence -
(a)under section 378… or 414;
…
where the value of the property in question does not exceed $1,000 - a fine of $6,000.
In the present case the appellant was convicted of receiving an item, the credit card, that had been stolen contrary to s 378 of the Code. The maximum penalty that could be imposed for the theft of the credit card under s 378 was 7 years' imprisonment. Therefore, by reason of s 426(1)(a), s 426(2) was applicable to the offence of the theft of the credit card if the value of the credit card did not exceed $50,000 and s 426(4) was applicable to the offence of the theft of the credit card if the value of the credit card did not exceed $1,000. Consequently, by reason of s 426(1)(e), s 426(2) was applicable to the appellant's offence of receiving the credit card if the value of the credit card was less than $50,000 and s 426(4) was applicable to the appellant's offence of receiving the credit card if the value of the credit card was less than $1,000.

The approach taken by the magistrate

During the course of the appellant's counsel's brief plea in mitigation, the magistrate asked counsel if the receiving offence could be dealt with by the Magistrates Court.[20] The appellant's counsel answered, 'Yes'.[21] The magistrate then said:[22]
Yes, okay, because we've got 426, haven't we? Okay, yes. That's fine. I forgot about the existence of that provision for a moment. Yes, certainly. All right, Senior Constable.
[20] ts 4.
[21] ts 4.
[22] ts 4.
The prosecutor then confirmed the magistrate's statement of the position by saying, 'Yes, all the matters can be dealt with summarily'.[23] The magistrate responded, 'Yes. That's fine, thanks'.[24]
[23] ts 4.
[24] ts 4.
It is apparent from the sentence of imprisonment imposed by the magistrate for the appellant's receiving offence that her Honour considered that the maximum summary conviction penalty that she could impose was that specified in s 426(2).

The parties' submissions

The appellant submits that although it might have been possible for him to have gained a significant sum by making fraudulent use of the credit card, the value of the credit card itself (being a common plastic credit card complete with a chip) was clearly well below $1,000. The appellant submits that in these circumstances it was not open to the magistrate to impose a term of imprisonment for the receiving offence under s 426(2), and that the maximum penalty that the magistrate could impose was, by reason of s 426(4), a fine of $6,000. The appellant seeks to derive support for this submission from two decisions of this court, Wolfenden v Brigden[25] and Williams v Pennuto.[26]
[25] Wolfenden v Brigden [2013] WASC 461.
[26] Williams v Pennuto [2016] WASC 325.
The respondent formally concedes that the value of the credit card was nominal and was therefore below $1,000. On the basis of this concession the respondent agrees with the appellant's submission that it was not open to the magistrate to impose a term of imprisonment for the receiving offence under s 426(2) and that the maximum penalty that the magistrate could impose was that provided for by s 426(4).

Analysis

The prosecution notice which contained the receiving charge of which the appellant was convicted did not, in the section specifying the 'Written Law' which the appellant had contravened, make any reference to s 426(4). The 'Written Law' section of the prosecution notice referred only to s 414. Further, the charge as pleaded in the prosecution notice to which the appellant pleaded guilty did not by its terms allege the value of the credit card. The charge simply alleged that the appellant had 'received a credit card, the property of Shrestha which had been stolen which the accused well knew'. Finally, the prosecutor did not as part of his statement of the facts of the receiving offence specify the value of the credit card or assert that its value did not exceed $1,000.
Section 23(2)(b) of the Criminal Procedure Act 2004 (WA) (CPA) provides that a prosecution notice must comply with sch 1, div 2. Clause 6(5) of sch 1, div 2 of the CPA provides that in a charge that alleges an offence relating to property it is not necessary to allege the value of the property unless the value is relevant for the purposes of deciding whether the offence must or may be dealt with on indictment or summarily, or is relevant to the offence's statutory penalty. The offence of receiving is obviously an offence relating to property. Moreover, the value of the credit card the subject of the appellant's receiving offence was relevant for the purposes of deciding whether the offence could be dealt with summarily and also the offence's statutory penalty. Accordingly, the prosecution notice containing the receiving charge of which the appellant was convicted did not comply with cl 6(5) of sch 1, div 2 of the CPA and was therefore defective. The prosecution notice should have specified the value of the credit card.
The prosecution notice is a 'court document' as defined in s 178(1) of the CPA. The failure to specify in the prosecution notice the value of the credit card was a defect in a 'court document' within the meaning of s 178(2) of the CPA. The appellant did not, prior to pleading to the charge, or for that matter at any stage in the proceedings, object to the prosecution notice under s 178(2) of the CPA on the ground that it did not comply with cl 6(5) of sch 1, div 2. In these circumstances, and as is accepted by both the appellant and the respondent, the fact that the prosecution notice did not comply with cl 6(5) of sch 1, div 2 does not render it invalid.[27]
[27] CPA, s 178(2); Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [28]; Wolfenden v Brigden [18]. In par 13 of the appellant's Outline of Submissions dated 9 October 2020 it is stated that '[a]lthough the appropriate course was clearly to require the prosecution to specify a value by amending the prosecution notice, it appears that prosecution notices for such matters rarely contain a value and are routinely dealt with summarily on the basis that they have a value not exceeding $1,000'. I take the reference to 'such matters' to be a reference to stealing and receiving offences involving credit cards and perhaps also other items of property apparently valued at less than $1,000. In any event, if prosecution notices are routinely dealt with under s 426(4) (and for that matter, s 426(2) also) notwithstanding that the charge does not allege the value of the property, this is a practice that should cease. Prosecution notices should be prepared in accordance with the requirements of the CPA.

In Wolfenden v Brigden the offender stole a credit card and then fraudulently used the card to purchase items. The offender was charged with, and pleaded guilty to, one offence of stealing as a servant, this offence relating to the theft of the credit card, and 21 offences of fraud, these offences relating to the subsequent use of the card to purchase items. The prosecution notice containing the stealing as a servant charge did not specify the value of the credit card. The magistrate sentenced the offender to a pre‑sentence order (PSO) for the offences under pt 3A of the Sentencing Act 1995 (WA). The offender appealed against the sentence imposed by the magistrate on a number of grounds. Allanson J allowed the appeal on the ground that it was not open to the magistrate to impose a PSO because the seriousness of the offences did not warrant the imposition of a term of imprisonment, a pre‑condition to the imposition of a PSO being that an offence warrants a term of imprisonment.[28] On allowing the appeal Allanson J remitted the offences to the Magistrates Court for sentencing.[29]
[28] Sentencing Act, s 33A.
[29] Wolfenden v Brigden [25] ‑ [26].
One of the grounds of appeal advanced in Wolfenden v Brigden was that because the value of the credit card did not exceed $1,000 it was not open to the magistrate to conclude that a term of imprisonment could be imposed for the stealing as a servant offence with the consequence that it was not open for the magistrate to impose a PSO for the offence. It was contended that the maximum penalty that could be imposed for the stealing as a servant offence was a fine of $6,000 under s 426(4) of the Code. Allanson J, after making the point that the prosecution notice did not comply with cl 6(5) of sch 1, div 2 of the CPA (because it did not specify the value of the credit card) and was therefore defective, albeit not invalid, said the following:[30]
I am not aware of any authority where consideration has been given to what is the appropriate value to specify for a credit card, and counsel could refer to none. The analogy with a cheque, though, is sound. The value, for the purposes of s 426, is the value of the item, and not the value of what can be obtained by its fraudulent use. This does not impose any unnecessary limitation on dealing with serious offences, because a matter can be dealt with on indictment if the offence is too serious, notwithstanding the nominal value of the property: Code s 5(3). And on each occasion of fraudulent use, a separate offence is committed.
In this case, the prosecution should present a notice that complies with the Criminal Procedure Act, and specifies the value of the card, or at least specifies that it is less than $10,000 or $1,000. In the absence of full argument, I am not prepared to decide what value should be given, although my preliminary view is that it is a nominal value.
[30] Wolfenden v Brigden [19] ‑ [20].
Thus Allanson J, given his decision to remit the offences the subject of the appeal to the Magistrates Court for sentencing and his direction that the prosecution present a prosecution notice that specified the value of the credit card, or at least specified the value of the credit card to be less than $1,000, was not required to, and did not, decide what value should be given to the credit card or whether, in the absence of the prosecution notice specifying the value of the credit card to be less than $1,000, it was open to the Magistrates Court to proceed on the basis that the applicable summary conviction penalty was that provided for by s 426(4).
In Williams v Pennuto the offender appealed against the sentences imposed on him by the Magistrates Court for a number of offences. One of the offences the subject of the offender's appeal was an offence of receiving a stolen set of car keys. For this offence the offender had been sentenced by the magistrate to 3 months imprisonment. He appealed against the sentence imposed on the ground that because the value of the car keys was less than $1,000 the maximum summary conviction penalty that was able to be imposed by the magistrate was a fine of $6,000 under s 426(4). Banks‑Smith J upheld this ground of appeal. In doing so her Honour said the following:[31]
The value of the car keys received by the [offender] was not addressed in the original prosecution notice, nor during the hearing before the magistrate. The value is relevant to the sentencing options available to the court. In its submissions, the respondent noted that the value of the keys was less than $1,000, and so the applicable maximum summary conviction for the offence was a fine of $6,000 under s 426(4) of the Criminal Code (WA). The parties submitted before me that there was a defect in the prosecution notice rather than any real error on the part of the magistrate. The [offender] submits there has therefore been a miscarriage of justice. In any event, although the value of the goods received was not brought to the magistrate's attention, in my view there was an error of law in that a sentence was imposed which was not open on the facts. In this case, the error is clearly material, in that a sentence was imposed which the magistrate was not entitled to impose under the legislation. The nature of the error is distinguishable from those cases where the error is to misstate a maximum penalty but in any event impose a sentence which is less than that penalty. In such cases, there may or may not be material error: see Harding v The State of Western Australia [[2015] WASCA 27 [41] - [45]].
I would therefore grant leave to appeal and allow the appeal insofar as the sentence of 3 months' imprisonment was imposed for the offence of receiving.
[31] Williams v Pennuto [30] ‑ [31].
It is apparent from Banks‑Smith J's decision that her Honour was, in light of the submissions of the respondent in that case that the value of the car keys was less than $1,000, willing to find that the keys were valued at less than $1,000. It is also apparent from Banks‑Smith J's decision that her Honour was, on the basis of her finding that the keys were valued at less than $1,000, and despite the absence of any reference to the value of the car keys in the relevant prosecution notice or during the proceedings that took place before the magistrate, satisfied that the magistrate made an error of law in sentencing the offender on the basis that the applicable summary conviction penalty was that provided for in s 426(2) as opposed to s 426(4).
I have already pointed out that the respondent concedes that the value of the credit card the subject of the appellant's receiving offence did not exceed $1,000. The concession accords with common sense. In light of the respondent's concession I am, similarly to Banks‑Smith J in Williams v Pennuto, willing to find for the purposes of dealing with the appeal that the card was not valued in excess of $1,000.
The question which remains is whether, in light of my finding, it can be said that the magistrate made the alleged error of law.
As I have already indicated, the prosecution notice containing the receiving charge did not specify the value of the credit card and no express reference was made to its value during the hearing before the magistrate. However, it was expressly accepted by both the prosecution and the appellant that the charge could be dealt with summarily. It necessarily follows that both parties also accepted that the value of the credit card did not exceed $50,000 since it was only if the value of the card did not exceed this amount that the appellant could be dealt with for the receiving offence summarily. In these circumstances there was, in my opinion, a sufficient factual foundation for the magistrate to proceed to deal with the appellant on the basis that the credit card was valued at less than $50,000.
I do not, however, consider that there was a sufficient factual foundation for the magistrate to proceed to deal with the appellant on the basis that the value of the credit card did not exceed $1,000. The acceptance by the parties that the appellant could be dealt with summarily amounted to no more than an acceptance of the fact that the card was valued at less than $50,000. In my view, in order for there to have been a sufficient factual foundation for the magistrate to have proceeded to deal with the appellant on the basis that the value of the credit card did not exceed $1,000, it was necessary for the charge to which the appellant pleaded guilty to make this allegation, or for the prosecutor to make the allegation in his statement of the facts of the offence and for the appellant to admit the facts, or for the appellant, through his counsel, to make such an assertion and for the prosecutor to accept the assertion, or for the magistrate to inquire of the parties as to the value of the card and to be told by the parties that it did not exceed $1,000. In the absence of any of these things occurring, I do not consider that there was a basis for the magistrate to proceed to deal with the appellant under s 426(4) of the Code. Consequently I am not persuaded that the magistrate made an error of law in failing to do so.
As is apparent from what I have just said, it would have been open to the magistrate, had it occurred to her Honour, to raise the value of the credit card with the parties. However, I do not consider that it can be said that her Honour made an error of law in failing to do so. It was, at the end of the day, for the prosecution to make clear to the court exactly what it was alleging in relation to the value of the credit card and for the appellant to make clear to the court if he admitted the allegation.
Although, I am not, for the reasons I have stated, persuaded that the magistrate made the contended for error of law, I am, given my finding as to the value of the credit card, satisfied that the imposition by the magistrate on the appellant of a sentence that exceeded the maximum summary conviction penalty provided for by s 426(4) has resulted in a miscarriage of justice.[32] I would therefore allow the appeal on this ground on this basis.[33]
[32] CAA, s 8(1)(b). During the hearing of the appeal neither party sought to actively press the contention that the magistrate had, in the circumstances specified in par 41 above, made an error of law. Further, both parties accepted that it was open to me to find that the magistrate's imposition of a sentence that exceeded the maximum summary conviction penalty provided for in s 426(4) had resulted in a miscarriage of justice.
[33] The respondent, as part of his submissions made in relation to this ground of appeal, contends that if error is established by the appellant and the court considers that the prosecution notice should be amended to expressly reflect the applicability of s 426(4), the court has the power to make such an amendment. In support of this contention the respondent points to cases in which appellate courts have amended charges which have been held on appeal to be duplicitous so as to remove the duplicity in circumstances where the amendment did not prejudice the appellant (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 [48] ‑ [53]; MJ v Sanders [2020] WASC 150 [70] ‑ [73]), as well as s 132 and s 178(3) of the CPA, and s 14(1)(c), s 14(1)(d) and s 14(4) of the CAA. As is apparent from my above expressed reasoning and conclusion, I do not consider that it is necessary to make any amendment to the prosecution notice in order to enable me to deal with the ground of appeal. I therefore refrain from expressing any view as to whether I have the power to amend the prosecution notice so as to incorporate references to s 426(4) and the value of the credit card.
In case, contrary to my above expressed conclusion, it is not open to me to find that the value of the credit card was less than $1,000, I propose to deal with the remaining two grounds of appeal on the assumption that the applicable summary conviction penalty for the appellant's receiving offence is that provided for in s 426(2) and that consequently it was open to the magistrate to impose the 3 months and 1 day term of imprisonment for the offence.

Ground 1

The appellant's first ground of appeal is expressed in the following terms:
The learned sentencing Magistrate erred in law by failing to discount the sentences of imprisonment imposed to reflect the benefits arising from the appellant's pleas of guilty pursuant to section 9AA of the Sentencing Act 1995 (WA).
The ground of appeal is conceded by the respondent.

Relevant statutory provisions and applicable legal principles

If a person pleads guilty to an offence, s 9AA(2) of the Sentencing Act permits the sentencing judicial officer to reduce the 'head sentence' (as that term is defined in s 9AA(1)) imposed for the offence in order to recognise the benefits to the State, and to any victim of, or witness to, the offence, resulting from the plea. If the sentencing judicial officer reduces the head sentence for an offence pursuant to s 9AA(2), they are required by s 9AA(5) to state in open court both that the sentence has been reduced under s 9AA(2) and the extent of the reduction. Section 9AA(4) deals with the extent of the reduction that can be given pursuant to s 9AA(2).
Ordinarily, the failure by a sentencing judicial officer to refer to the effect of a plea of guilty is an indication that the sentencing judicial officer has overlooked the plea of guilty and has failed to take the plea of guilty into account in determining the sentence to be imposed on the offender.[34]

Analysis and decision

[34] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10]; Winmar v Clark [2015] WASC 314 [26].

It is apparent from the magistrate's above quoted sentencing remarks, that her Honour did not, in sentencing the appellant, make any reference to the appellant's pleas of guilty. In particular, her Honour did not make any statements to the effect that she had under s 9AA(2) reduced the length of the individual sentences of imprisonment imposed for the offences to take account of the appellant's guilty pleas. Nor, for that matter, did her Honour make any statement to the effect that she had taken the pleas of guilty into account in determining the type of sentence to be imposed on the appellant for each of the offences.
Given the magistrate's failure to make any reference to the appellant's pleas of guilty in her sentencing remarks, I am satisfied, consistently with the respondent's concession made in relation to this ground of appeal, that her Honour overlooked the appellant's pleas of guilty in determining both the type of sentence to be imposed for each of the offences, and the length of the individual sentences imposed.
It is not in dispute that the appellant entered his pleas of guilty to the offences at the first reasonable opportunity.[35] The pleas were therefore clearly relevant to the determination of the type of sentence to be imposed for each of the offences, and in any event clearly warranted a reduction under s 9AA(2) in the length of the head sentence imposed for each offence. Accordingly, her Honour's failure to have regard to the guilty pleas in determining the type of sentences to impose, and her Honour's failure to take account of the guilty pleas by reducing the head sentences imposed, amounted to material errors of law.[36]
[35] Sentencing Act, s 9AA(4).
[36] Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154 [47].
This ground of appeal has been made out.

Ground 2

The appellant's second ground of appeal is expressed in the following terms:[37]
The learned sentencing Magistrate erred by imposing sentences that were manifestly excessive for the offences of receiving and gains benefit by fraud.
Particulars
(i)The circumstances and objective seriousness of the offence;
(ii)The appellant's personal circumstances;
(iii)The imposition of sentences of imprisonment (albeit that one term and part of the other term was suspended); and
(iv)The sentences imposed in comparable cases.
[37] An appeal may be made on the ground that a sentence imposed was manifestly excessive pursuant to s 8(1)(a)(iii) of the CAA.
It is apparent from particular (iii) of the ground and from the appellant's submissions,[38] that by this ground the appellant alleges an implied error, specifically that the wrong type of sentence was imposed given the circumstances and objective seriousness of the offences, the appellant's personal circumstances, the appellant's early pleas of guilty and sentences imposed in comparable cases.
[38] Appellant's Outline of Submissions dated 25 September 2020 [23].
The ground of appeal is conceded by the respondent.

Legal principles

The principles to be applied by an appellate court in a case where the allegation is that the wrong type of sentence was imposed are well established. Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred.[39] To put the matter another way, the question for the appellate court is whether it was reasonably open for the sentencing judicial officer to find that the less serious sentencing option was not appropriate.[40]
[39] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
[40] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Sentencing Act, s 39(3).
In order to determine whether it was reasonably open to the sentencing judicial officer to find that the less serious sentencing option was not an appropriate disposition for the offence, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.[41]
[41] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in a particular case. Similarly the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive.[42]

Analysis and decision

Maximum penalty

[42] Eldrige v The State of Western Australia [2020] WASCA 66 [22(3)] ‑ [22(4)]; WRT v The State of Western Australia [2020] WASCA 68 [40].

For the appellant's offence of fraud, the maximum sentence that could be imposed by the magistrate, being the maximum summary conviction penalty, was 2 years imprisonment and a fine of $24,000.[43] However, the maximum summary conviction penalty was only a jurisdictional limit. It was not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of dealing with the ground of appeal, is 7 years' imprisonment.[44]
[43] Code, s 409(1).
[44] Code, s 409(1)(h).
In relation to the receiving offence, assuming for the sake of the argument and contrary to the conclusion I have expressed in relation to ground 3 that the maximum summary conviction penalty that could be imposed was that specified in s 426(2), the maximum sentence that could be imposed by the magistrate was, as I have already indicated, imprisonment for 2 years and a fine of $24,000. However, again the maximum summary conviction penalty was only a jurisdictional limit. It was not the statutory maximum penalty. The statutory maximum penalty for the offence, which is the relevant maximum penalty for the purposes of dealing with the ground of appeal, is 7 years' imprisonment.

The seriousness of the appellant's conduct

The appellant engaged in knowingly dishonest conduct. However, the conduct was not premeditated, was unsophisticated, was engaged in over a very short period of time, and involved the use of the credit card for one transaction only and for the purpose of gaining property of very limited value. In these circumstances the appellant's conduct fell very much at the lower end of the range of seriousness for offences of receiving and fraud.

Standards of sentencing customarily observed

The offences of receiving and fraud can encompass a diverse variety of conduct. It is therefore not possible to identify a range of sentences commonly imposed for either offence. What can be said, however, is that for offences of dishonesty (such as fraud and receiving) that fall towards the lower end of the range of seriousness for such offences, sentences other than imprisonment are commonly imposed even when the offender is not of prior good character.[45]

Criminal record

[45] See for example, Schulz v Coyne [2019] WASC 329 [40]; Kotnowski v Richardson [2019] WASC 369.

The appellant at the time of sentencing had a significant criminal record both as a juvenile and an adult. With respect to his adult record, the appellant had prior convictions for offences of stealing, damaging property, aggravated burglary with intent, attempted aggravated home burglary, obstructing police officers, providing false personal details, breaching bail, and possessing stolen or unlawfully obtained property. He also had six prior convictions for fraud, with five of these prior convictions being recorded on 9 July 2019.
The appellant had been sentenced for his prior offences to fines, community based orders, suspended imprisonment and immediate imprisonment. He had breached his community based orders by reoffending. He had also breached by reoffending the suspended imprisonment order imposed on him for his aggravated burglary with intent offence.
Clearly, the appellant's criminal record and his past poor performance on orders did not aggravate or increase the seriousness of the offences for which he was to be dealt with by the magistrate.[46] Nor did the fact that the previous community based sentences imposed on him had not achieved the obvious purposes for which they were imposed.[47] Nonetheless, the nature and extent of the appellant's record, particularly given that it included a significant number of convictions for offences of dishonesty, was such as to preclude the appellant from being afforded any leniency for good character.[48] Further, the fact that the sentences previously imposed on the appellant had not deterred him from committing similar offences meant that specific deterrence was of relevance in determining the sentences to be imposed on him for the offences.[49]

Mitigatory factors

[46] Sentencing Act, s 7(2)(b).

[47] Sentencing Act, s 7(2)(c).

[48] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].

[49] Hamlett v Whitney [2013] WASC 100 [27].

The primary mitigatory factors in the appellant's case were his relatively young age, the fact that he had made full admissions to the police once he was arrested, and his early pleas of guilty.

Decision

The Sentencing Act sets out the options as to penalties that can be imposed following conviction for an offence. A court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any of the less severe options available.[50]
[50] Sentencing Act, s 39(3).
In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment.[51]
[51] Sentencing Act, s 6(4).
The appellant is still a young man. His offences were on any view of the matter at the low end of the range of seriousness for offences of their type. He pleaded guilty at the first reasonable opportunity. In these circumstances, and while acknowledging that he was not of good character and that personal deterrence had a role to play in the sentencing process, I am satisfied that it was not reasonably open to the magistrate to find that the seriousness of the offences or the protection of the community was such that only imprisonment could be justified. That is, I am satisfied that it was not reasonably open to the magistrate to conclude that less serious sentencing options, that is, sentences other than imprisonment, were not appropriate. In my opinion the imposition of a partially suspended term of imprisonment fell outside the range of a sound exercise of the sentencing discretion.
The ground of appeal has been made out.

Resentencing of the appellant

Express and implied error having been established the sentencing discretion falls to be exercised afresh.[52]
[52] NTH v The State of Western Australia [2020] WASCA 22 [163] ‑ [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65].
In exercising the sentencing discretion afresh I must apply the principles embodied in the Sentencing Act. The principles, so far as is relevant in the present context, may be stated in brief terms as follows.
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[53]
[53] Sentencing Act, s 6(1).
In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[54] Aggravating factors are factors that in the court's opinion increase the offender's culpability.[55] Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished.[56]
[54] Sentencing Act, s 6(2).
[55] Sentencing Act, s 7(1).
[56] Sentencing Act, s 8(1).
In my opinion, given that the appellant has now served the vast majority of the 2‑month term that he was required to serve immediately for the offences, and taking into account the various matters that I have referred to in dealing with ground 2, the appropriate sentence in all the circumstances for each offence is a very modest fine. I therefore impose a fine of $100 for each offence.

Conclusion

For the reasons I have stated I would make orders as follows:
1.The application for an extension of time within which to appeal is granted;
2.Leave to appeal is granted;
3.The appeal is allowed;
4.The sentences imposed by Magistrate O'Donnell for the offence of receiving (KA 1087/2020) and for the offence of fraud (KA 1088/2020) are set aside;
5.The appellant is sentenced to a fine of $100 for the offence of receiving (KA 1087/2020) and a fine of $100 for the offence of fraud (KA 1088/2020).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
23 OCTOBER 2020