Smart v The Director of Public Prosecutions for Western Australia [No 2] - [2023] WASCA 193

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMART -v- THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [No 2] [2023] WASCA 193
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   29 JUNE 2023
DELIVERED          :   5 JULY 2023
PUBLISHED           :   27 JUNE 2024
FILE NO/S:   CACR 60 of 2023
BETWEEN:   ANDREW JACOB SMART
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE O'DONNELL
File Number            :   AR 379 of 2016 & AR 380 of 2016

Catchwords:

Criminal law - Appeal against sentence - Where matter was remitted to sentencing magistrate - Where magistrate was required to resentence appellant according to law - Where resentencing was 'early‑listed' with no notice to parties - Where appellant was unprepared - Where appellant did not have opportunity to make submissions as to type of sentence and parole eligibility - Whether magistrate erred in law by reimposing exact same sentences - Whether resentencing procedurally unfair due to being brought forward in time by one month

Legislation:

Criminal Appeals Act 2004 (WA), s 13, s 14
Criminal Code (WA), s 5, s 317(1)(b)
Criminal Procedure Act 2004 (WA), s 137
Magistrates Court Act 2004 (WA), s 11
Road Traffic Act 1974 (WA), s 61
Sentencing Act 1995 (WA), s 87, s 89

Result:

Leave to appeal granted on ground A
Leave to appeal refused on grounds 1, 2, 3, 4, 5, 6, 7, 8, B and C
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	J Solliss & J Keogh (but only in respect of supplementary grounds A, B & C) In person (all other grounds)
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	Jennifer Solliss Barrister & Justin Keogh Barrister (but only in respect of supplementary grounds A, B & C) In person (all other grounds)
Respondent	:	Director of Public Prosecutions (WA)

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

Cain v Robson [2020] WASC 63
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fisher v O'Hehir [2020] WASC 353
Fisher v O'Hehir [2023] WASCA 19
Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Jackman v Director of Public Prosecutions (WA) [2023] WASC 63
Jetta v Director of Public Prosecutions (WA) [2021] WASC 234
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Narkle v Hamilton [2008] WASCA 31
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Smart v Director of Public Prosecutions (WA) [2023] WASCA 192
Smart v Radley [2011] WASC 96
Smart v WA Police [2011] WASC 99
Sparks v Bellotti [1981] WAR 65
Toop v Smart [2022] WASC 237
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

REASONS OF THE COURT:

Introduction

These reasons concern the appellant's appeal against sentences of immediate imprisonment imposed on him by Magistrate O'Donnell on 5 January 2023 in the Perth Magistrates Court in respect of two offences, being single counts each of assault occasioning bodily harm (AR 379 of 2016) and dangerous driving (AR 380 of 2016) (the offences).
On 5 July 2023, this court unanimously allowed the appeal and made orders as follows:
1.Leave to appeal granted on ground A.
2.Leave to appeal refused on the other grounds.
3.Appeal allowed.
4.The sentences imposed and the orders made by Magistrate O'Donnell on 5 January 2023 in respect of charges AR 379 of 2016 and AR 380 of 2016 are set aside.
5.The appellant is resentenced as follows:
(a)charge AR 379 of 2016: 12 months' immediate imprisonment; and
(b)charge AR 380 of 2016: 2 months' immediate imprisonment.
6.The new sentence for charge AR 380 of 2016 is to be served cumulatively upon the new sentence for AR 379 of 2016.
7.The new total effective sentence is therefore 14 months' immediate imprisonment.
8.The new total effective sentence is to be taken to have taken effect on 1 June 2022.
9.The appellant is not eligible to be released on parole.
These are our reasons for making those orders.
Much of the background to this appeal is set out in the reasons of an associated appeal, CACR 30 of 2023, which were published today in Smart v Director of Public Prosecutions for Western Australia.[1] For ease of expression, we will refer to those reasons as Smart [No 1]. These reasons should be read in conjunction with Smart [No 1].
[1] Smart v Director of Public Prosecutions (WA) [2023] WASCA 192.
As explained in Smart [No 1], on 26 July 2022, Curthoys J allowed the State's appeal against sentences imposed by Magistrate O'Donnell on 15 May 2020.[2] In essence, Curthoys J found that a miscarriage of justice had occurred by reason of her Honour being provided with incorrect information about the amount of time the appellant had spent in custody on remand prior to being sentenced. As a consequence, Magistrate O'Donnell erroneously backdated the sentences of immediate imprisonment she imposed to a date that was many months earlier than was permitted under s 87 of the Sentencing Act 1995 (WA). After Curthoys J set aside the sentences imposed by Magistrate O'Donnell, he ordered:
(5)The matters be remitted to the Magistrates Court of Western Australia for resentencing before O'Donnell SM according to law.
[2] Toop v Smart [2022] WASC 237.
On 9 September 2022, the remitted matters were listed in the Perth Magistrates Court. The proceedings were adjourned to 10 October 2022 and then to 11 October 2022. On 11 October 2022, a further adjournment was granted by Deputy Chief Magistrate Woods to 6 February 2023, and the appellant was given a notice to attend court on that day.[3] On 5 January 2023, the appellant, who was at liberty in the community at this time, appeared in the Perth Magistrates Court before Magistrate Tavener in respect of two charges completely unrelated to the matters that had been remitted to Magistrate O'Donnell by Curthoys J.
[3] Appeal ts 83.
Without notice to the appellant (or, apparently, to the prosecutor), the remitted matters were 'early‑listed' before Magistrate O'Donnell, apparently for the purpose of resentencing the appellant pursuant to the order made by Curthoys J referred to at [5] above.[4] 'Early‑listed' is the term used by the parties in this appeal to describe the circumstances in which proceedings are listed at a date or time earlier than had been originally scheduled. In the present case, it meant, in effect, to bring forward in time the appellant's resentencing. The entire transcript of the proceedings on 5 January 2023 before Magistrate O'Donnell is set out in Annexure A to these reasons. A summary of what occurred is set out below.
[4] Precisely how the matter was 'early‑listed' is unclear. It appears that no oral or written application was made by either party to do so. In the proceedings on 5 January 2023, Magistrate O'Donnell said that she had issued a warrant so that the appellant would 'come back' before her. It appears this warrant was cancelled sometime earlier than 5 January 2023. It is inferred that the matter came before her Honour on her own initiative, after learning that the appellant was in the building.
When the appellant was called before Magistrate O'Donnell, he objected to the early‑listing of the proceedings. The appellant said that he did not have his 'documents or anything'[5] and that he had commenced an appeal against Curthoys J's decision.[6] Her Honour responded that it would not 'make any difference whether we put [the resentencing] off until after 6 February or not',[7] and that she intended to resentence the appellant immediately. The appellant then submitted, in substance, that he should be resentenced to a term of suspended imprisonment because 'I've been out [of custody for] three years',[8] and if he were to be sentenced to a term of immediate imprisonment, then he would be unable to pursue his appeal.
[5] ts 5 January 2023, 2.
[6] ts 5 January 2023, 2 - 3.
[7] ts 5 January 2023, 3.
[8] ts 5 January 2023, 4.
Her Honour responded that, in resentencing the appellant, she had 'very little leeway in the matter'.[9] Her Honour noted that the decision of Curthoys J identified 218 days of the time spent in custody, before the appellant was sentenced on 15 May 2020, as available for backdating. Magistrate O'Donnell then sentenced the appellant as follows:[10]
So, as I say, I'm reimposing the terms that I imposed. So for Armadale 379 of 2016; 12 months' imprisonment. For Armadale 380 of 2016; 4 months' imprisonment cumulative. A total of 16 months. I did not make you eligible for parole and I have no reason to alter that either, but it is backdated by 218 days from today which takes it back to 1 June [2022] as the commencement date. And as I say, [the appellant], in view of appeal proceedings, it will be now for you to bring an application for bail pending appeal in the Supreme Court because that is the only jurisdiction that can deal with it. All right. That concludes the matter (indistinct). Thanks for your attendance, Sergeant.
[9] ts 5 January 2023, 5.
[10] ts 5 January 2023, 6.
It is apparent that Magistrate O'Donnell resentenced the appellant to the same individual sentences and the same total effective sentence that she originally imposed on him on 15 May 2020. Her Honour then backdated the sentences by 218 days, to commence on 1 June 2022, and refused parole eligibility, as she had also done previously on 15 May 2020. The only difference between the original sentences and the sentences imposed by Magistrate O'Donnell this time was the length of the period by which she backdated the sentences. On 15 May 2020, her Honour had backdated the sentences by approximately 23 months; whereas, on 5 January 2023, she backdated the sentences by 218 days.

The present appeal

At the time the appellant commenced the appeal against Curthoys J's decision the subject of Smart [No 1],[11] he was a litigant in person and was serving the custodial sentences that had been imposed by Magistrate O'Donnell on 5 January 2023. He had not yet filed an appeal against those sentences.
[11] 27 March 2023.
On 6 April 2023, a directions hearing took place before Buss P and Mazza JA, in respect of CACR 30 of 2023. Counsel for the respondent, Mr Scutt - whom, we would add, has acted with complete fairness towards the appellant throughout the proceedings before this court - properly pointed out this omission. In effect, Mr Scutt advised the court that, even if the appeal in CACR 30 of 2023 succeeded, the sentences imposed on 5 January 2023 would still stand, in the absence of an appeal against said sentences. Following this, Buss P informed the appellant:[12]
I have indicated to you that the view of the court is that in order for your appeal against Curthoys J's decision [to] have practical utility, you also need to appeal against Magistrate O'Donnell's resentencing decision made on 5 January. And that is the mechanism by which you can challenge the failure of the magistrate to make a parole eligibility order. The prosecution, as I understand it … have a right to appeal against Magistrate O'Donnell's resentencing decision on 5 January. But as I understand it, they have not done so. One way or another, if you want your appeal against Curthoys J's decision to have practical utility, you need to appeal against the resentencing decision on 5 January. Whether you do so is a matter for you.
[12] ts 6 April 2023, 18 - 19.
The appellant expressed some reluctance to take this step.[13] But, on 12 May 2023, he filed an appeal notice under pt 2 div 2 of the Criminal Appeals Act 2004 (WA) against Magistrate O'Donnell's decision of 5 January 2023. The appeal was filed in the General Division of the Supreme Court (SJA 1039 of 2023). On 12 May 2023, the appeal was transferred to this court, on the court's own initiative, by order of Vandongen J under s 13(2) of the Criminal Appeals Act.
[13] ts 6 April 2023, 19.
On 12 June 2023, the appellant, acting for himself, filed an appellant's case that contained eight grounds of appeal; only one of which, ground 4, is valid. Three of the grounds of appeal concern the convictions recorded by Magistrate O'Donnell on 15 May 2020 (grounds 5, 6 and 8) rather than the sentences imposed by her Honour on 5 January 2023. Grounds 1, 2 and 3 are argumentative and do not allege any error of law or miscarriage of justice relevant to the sentences imposed on 5 January 2023. Ground 7 alleges that Magistrate O'Donnell erred in having regard to the maximum penalty prescribed by statute for a second or subsequent dangerous driving offence, rather than the lesser penalty prescribed for a first‑time offence. In doing so, ground 7 seeks to impugn, in the absence of any appeal, a conviction recorded in 1998 for an offence of dangerous driving.
Ground 4 is the only valid ground of appeal. It effectively asserts that Magistrate O'Donnell erred by failing to reduce the sentences she imposed on 5 January 2023 for totality reasons, having regard to earlier terms of imprisonment that were imposed on the appellant for Commonwealth offences and for offences of contempt of court (see [44] of the reasons in Smart [No 1]).
Fortunately for the appellant, and shortly before the hearing of this appeal on 29 June 2023, Ms Solliss and Mr Keogh of counsel, acting on a limited grant of aid, agreed to represent the appellant in this appeal. The court is grateful for their assistance.
On the appellant's behalf, Ms Solliss and Mr Keogh were granted leave to file a supplementary appellant's case that relied on three grounds of appeal not previously relied upon by the appellant, which were designated as grounds A, B and C. These grounds, as amended at the hearing of the appeal, allege:[14]
[14] Appeal ts 89, 121 - 122.
Ground A
The learned magistrate made an error of law; alternatively, there was a miscarriage of justice because the appellant was sentenced without prior notice, where he was unable to properly prepare or present submissions or other material on his sentencing and was denied a proper opportunity to be heard.
Ground B
The learned magistrate made an error of law by denying the appellant eligibility for parole where she did not consider afresh whether to exercise the discretion; further or alternatively, the refusal to make a parole eligibility order was unreasonable or plainly unjust.
Ground C
There was a miscarriage of justice where the learned sentencing magistrate had represented the State against the appellant in a previous appeal against sentence, being Smart v WA Police [2011] WASC 99,[15] and the learned magistrate ought to have, but did not:
1.disclose that she previously represented the State against the appellant in Smart v WA Police [2011] WASC 99;
2.give consideration to whether, by reason of previously representing the State against the appellant, a fair‑minded lay observer might reasonably apprehend that she would not bring an impartial mind to the sentencing;[16] and
3.in any event, recuse herself from hearing and determining the sentence, by reason of having previously represented the State against the appellant.
[15] At the hearing of the appeal, counsel also referred to Smart v Radley [2011] WASC 96, an appeal against conviction in which Magistrate O'Donnell acted for the State, against the appellant.
[16] This is how ground C is worded in the supplementary appellant's case and how it was framed by counsel at the appeal hearing. We note, however, that the correct test is whether a fair‑minded lay observer might reasonably apprehend that her Honour might not bring an impartial mind, rather than whether she would bring an impartial mind: see, for example, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 [37] (Kiefel CJ & Gageler J), [274] (Jagot J); Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [17]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
In the written submissions forming part of the supplementary appellant's case, it was made clear that the submissions were in addition to, and not in substitution of, the documents previously filed by the appellant. At the hearing of the appeal, Ms Solliss and Mr Keogh addressed the court only in relation to grounds A, B and C. The appellant was also given the opportunity to address the court in respect of grounds 1 to 8.
As will be seen, it was only necessary to deal with ground A. As this ground was upheld, with the consequence that the appeal was allowed and the appellant was resentenced afresh by this court, it was unnecessary to deal with the other grounds of appeal.

Ground A - appellant's submissions

As developed at the hearing of the appeal, it was, in effect, submitted that the learned magistrate erred in law because she failed to resentence the appellant according to law, as required by the order made by Curthoys J. It was contended that the order made by his Honour required the learned magistrate to resentence the appellant afresh, having regard to all relevant circumstances and sentencing considerations, including events that had occurred between the original sentencing on 15 May 2020 and the resentencing on 5 January 2023. Instead, her Honour misapprehended the task she was required to perform as being, not to interfere with the terms of immediate imprisonment and the non‑parole order made on 15 May 2020, but only to backdate the commencement of those terms by the appropriate number of days in accordance with Curthoys J's reasons.
Further, and in the alternative, it was submitted on behalf of the appellant that the resentencing proceedings on 5 January 2023 were procedurally unfair and resulted in a miscarriage of justice. In support of this contention, it was emphasised that the appellant, as a litigant in person, had not been given notice of, and did not consent to, the early‑listing of the remitted matters on 5 January 2023. When brought before Magistrate O'Donnell that day, the appellant objected to the remitted matters being dealt with. He pointed out that those matters had been adjourned to 6 February 2023. The appellant said, in effect, that he had been unaware of the early‑listing and that he was not yet prepared to deal with his resentencing.
Having regard to those circumstances, it was submitted on behalf of the appellant that it was procedurally unfair for Magistrate O'Donnell to proceed to deal with the remitted matters, and that she should not have done so. A particular unfairness pointed to, on behalf of the appellant, was that he was unable to properly put before Magistrate O'Donnell evidence or submissions in respect of relevant matters that had occurred between the sentencing on 15 May 2020 and the resentencing on 5 January 2023. Such relevant matters included the 49 days spent in custody on remand in respect of a number of charges unrelated to the remitted matters; such time not having been taken into account in any other sentencing exercise involving the appellant prior to 5 January 2023 because the relevant charges were discontinued.
In oral submissions before this court, it was also submitted, in effect, that the appellant did not have the opportunity to make submissions that, in light of events since 15 May 2020, he should be made eligible for parole.

Ground A - respondent's submissions

As to the allegation of legal error on the part of Magistrate O'Donnell, the respondent accepted that her Honour's task was to genuinely resentence the appellant afresh, according to law.[17] It was submitted on behalf of the respondent that, although there was some ambiguity in the sentencing proceedings, when the transcript is read as a whole, it is apparent that Magistrate O'Donnell did not consider herself bound to impose the same sentences as her Honour had imposed on 15 May 2020 save for the number of backdating days.[18] Accordingly, her Honour did not err as alleged by the appellant.
[17] Appeal ts 118.
[18] Appeal ts 119.
As to whether the sentencing proceedings were procedurally unfair, counsel for the respondent (fairly and appropriately) accepted that '[i]t lacked features that one might expect',[19] and that '[t]he process was less than it should have been'.[20] However, counsel maintained that all of the information that her Honour needed was put before the court, and, ultimately, the appellant suffered no miscarriage of justice, let alone any substantial miscarriage of justice, as a result of any procedural deficiency in the resentencing on 5 January 2023.
[19] Appeal ts 120.
[20] Appeal ts 121.

Ground A - the two issues

Ground A raises two issues about Magistrate O'Donnell's resentencing of the appellant. First, did her Honour err in law by not resentencing the appellant according to law as required by Curthoys J's order? Secondly, were the proceedings on 5 January 2023 procedurally unfair to the appellant, thereby giving rise to a miscarriage of justice?
For the reasons that follow, we are of the opinion that her Honour erred in law, as alleged. Moreover, the resentencing proceedings were procedurally unfair. Accordingly, ground A has been made out.

Ground A - the first issue - alleged error of law

Section 14 of the Criminal Appeals Act sets out the powers of the Supreme Court, in an appeal from a court of summary jurisdiction, under pt 2 div 2 of that Act. Section 14(1)(b) and s 14(1)(c) empower the Supreme Court to allow an appeal; and to set aside, or vary, a sentence imposed by the court of summary jurisdiction or any order made, or thing done, as a result of a decision made by that court. Section 14(1)(d) enables the Supreme Court to substitute a decision that should have been made by the court of summary jurisdiction. Section 14(1)(e) permits the Supreme Court to remit the case to the court of summary jurisdiction, with or without orders as to how, or by whom, it is to be constituted; and how it must deal with the case.
After allowing the appeal and setting aside the sentences imposed at first instance, Curthoys J remitted the sentencing of the appellant to Magistrate O'Donnell. His Honour did not explain why he did not resentence the appellant himself. It may be inferred that he remitted the matter to her Honour because he was mindful that the appellant had not taken part in the appeal in the Supreme Court and was not present when judgment was delivered. Also, bearing in mind that more than two years had passed since the appellant had been sentenced, his Honour did not have any up‑to‑date information about him. It is understandable that Curthoys J remitted the matter to Magistrate O'Donnell, presumably because her Honour had presided over the trial, and had made findings as to the facts of the offending. She also had some familiarity with the appellant's circumstances.
Curthoys J did not make orders as to how Magistrate O'Donnell was to deal with the case. He did not, expressly or impliedly, order that the resentencing be limited to an adjustment of the number of days by which the sentences were to be backdated. Had this been his Honour's intention, he could have easily carried out that task himself. Instead, Curthoys J ordered that the appellant be resentenced according to law.
Curthoys J's order, properly understood, required the learned magistrate to resentence the appellant afresh. That is, Magistrate O'Donnell was required to re‑exercise the sentencing discretion according to law, after giving the appellant an opportunity to be heard and having had regard to the facts of the offending and all of the relevant circumstances, including anything relevant that had occurred since the appellant was originally sentenced. Of course, her Honour was also required to take into account the correct number of backdating days, as determined by Curthoys J.
To be clear, on resentencing, Magistrate O'Donnell was not bound to reimpose the terms of imprisonment she had originally handed down on 15 May 2020. Nor was she bound to remake the order refusing parole eligibility. Her Honour could have, properly, imposed the same terms of immediate imprisonment and the order refusing parole eligibility; but only after engaging in the process referred to in the paragraph above.
We now turn to the substance of the sentencing proceedings on 5 January 2023 before Magistrate O'Donnell set out in Annexure A.
The proceedings began with her Honour explaining to the appellant that she had early‑listed the proceedings to resentence him in accordance with Curthoys J's reasons. Her Honour summarised the findings of Curthoys J, emphasising that the appellant had 'substantially underserved' the sentences she had originally imposed. The learned magistrate informed the appellant that her views about the seriousness of his offending had not changed and that the offences warranted terms of immediate imprisonment. The learned magistrate told the appellant:[21]
I see no reason to exercise my sentencing discretion any differently for [sic] the way I exercised it in May 2020 aside from the issue of backdating.
[21] ts 5 January 2023, 4.
The learned magistrate continued:[22]
So as identified by the decision on appeal, it would have been appropriate to backdate to 11 October 2019 on 15 May 2020 when I was sentencing you. Now, that is 218 days prior to 15 May 2020. So what I propose to do today is to reimpose the terms of imprisonment that I imposed on 15 May, but backdate them by a period of 218 days. So I will do that now.
[22] ts 5 January 2023, 4.
The appellant then submitted that he should be resentenced to terms of suspended imprisonment or a community‑based order.[23] Her Honour's response was that she did not consider such a course was open to her. Her Honour elaborated:[24]
In terms of my sentencing exercise, though, I have very little leeway in the matter. (emphasis added)
[23] ts 5 January 2023, 4 - 5.
[24] ts 5 January 2023, 5.
After some interruptions by the appellant, the learned magistrate then imposed the sentences set out at [9] above.
The transcript of the proceedings on 5 January 2023 shows that her Honour did not resentence the appellant according to law, as she was required to by order of Curthoys J, because her Honour did not resentence the appellant afresh. Her Honour therefore erred in law.
On a fair reading of the transcript as a whole, it appears that the resentencing proceedings were conducted by her Honour on the basis that she had no real function other than to impose terms of immediate imprisonment identical to those originally imposed, and to make no different parole order. As her Honour apparently understood it, her only function was to backdate the terms of immediate imprisonment in accordance with Curthoys J's reasons. This understanding is most clearly reflected in her Honour's statement that she had 'very little leeway in the matter', and by the manner and speed with which the proceedings were conducted. Contrary to what would be expected in an exercise of resentencing the appellant afresh, her Honour did not call on the appellant to make submissions in mitigation of penalty. No enquiry was made regarding the appellant's current circumstances, nor was there enquiry as to what events of relevance, if any, had occurred since the original sentencing proceedings on 15 May 2020. The appellant was not asked whether he wished to address her Honour on the issue of parole eligibility.
For these reasons, the sentencing magistrate misapprehended her function in resentencing the appellant on 5 January 2023. We would resolve the first issue raised in ground A in favour of the appellant. We now turn to the second issue.

Ground A - the second issue - were the proceedings procedurally fair?

The submissions in respect of this issue focused on the fairness of early‑listing the appellant's resentencing proceedings without notice.
At the hearing of the appeal, counsel for both the appellant and the respondent accepted that the sentencing magistrate had the power to early‑list the appellant's resentencing, and both parties accepted that, as a matter of practice, the power to early‑list is frequently used in the interests of justice.[25]
[25] Appeal ts 105 - 106.
It was suggested by counsel for the appellant, and accepted by counsel for the respondent, that the source of this power is s 137(3)(a)(iii) of the Criminal Procedure Act 2004 (WA), read together with s 16, s 17(1) and s 17(2) of the Sentencing Act.[26] For present purposes, we will assume that those provisions empowered Magistrate O'Donnell to early‑list the appellant's resentencing. We observe that, although the Magistrates Court is a creature of statute and does not have inherent powers, it has implied powers, associated with the criminal jurisdiction granted to it by s 11 of the Magistrates Court Act 2004 (WA), to regulate its own practice and procedure.[27] In our opinion, such implied powers would enable a magistrate to early‑list sentencing proceedings on the application of one, or both, of the parties, or by motion of the court itself.
[26] Appeal ts 81, 106.
[27] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 15 ‑ 17 (Dawson J); Sparks v Bellotti [1981] WAR 65, 66 ‑ 67 (Lavan ACJ), 69 (Wickham J), 70 ‑ 71 (Wallace J); Fisher v O'Hehir [2020] WASC 353 [49] ‑ [50] (Smith J); Fisher v O'Hehir [2023] WASCA 19 [19] ‑ [20] (Buss P, Mazza & Mitchell JJA).
Whatever the source, the power to early‑list sentencing proceedings must be exercised judicially and must afford the parties procedural fairness. 'Fairness' in this context is not an abstract concept. It is essentially practical. The concern is to avoid practical injustice.[28] Procedural fairness dictates that where the court early‑lists a matter on its own motion, the parties are to be given adequate notice of the time and date on which it is proposed to deal with the matter, and the subject matter to be dealt with at the hearing. The parties are also to be given the opportunity to properly prepare for the hearing.
[28] Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).
In our opinion, the proceedings on 5 January 2023 were procedurally unfair.
The hearing on 5 January 2023 had the following features. First, the appellant was acting as a litigant in person. Secondly, his scheduled appearance at the Perth Magistrates Court that day was only in respect of the two charges before Magistrate Tavener, which were not associated with the charges remitted to Magistrate O'Donnell pursuant to Curthoys J's order. Thirdly, the charges to be dealt with by Magistrate O'Donnell pursuant to Curthoys J's order had been listed for hearing in just over one month's time, on 6 February 2023. Fourthly, prior to arriving at the Magistrates Court for his scheduled appearance on 5 January 2023, the appellant had not been given any notice that the charges to be dealt with by Magistrate O'Donnell would be early‑listed before her Honour for resentencing that same day. Fifthly, the early‑listing did not occur on the motion of either party. Sixthly, when brought before Magistrate O'Donnell, the appellant opposed the early‑listing of the proceedings and the matter being dealt with by her Honour that day. Seventhly, there was no apparent urgency or need for the resentencing to occur on 5 January 2023 as opposed to 6 February 2023. Eighthly, the appellant was completely unprepared to deal with the resentencing.
Although the appellant made some submissions to the court to the effect that he should be given a term of suspended imprisonment, he was not in a position to elaborate on this matter, nor was he in a position to address the court in any detail concerning his personal circumstances or any events that had transpired since he was originally sentenced on 15 May 2020. He was not provided with an opportunity to address the court as to his eligibility for parole, nor to make submissions as to whether any sentences of immediate imprisonment to potentially be imposed by Magistrate O'Donnell would take into account time spent in custody on remand for other matters that had occurred after his original sentencing.
As a result of her Honour's confined view as to the scope of the resentencing exercise she was required to perform, it appears that her Honour believed there was no point in waiting until 6 February 2023 to deal with the appellant, and that nothing the appellant could say would make any difference to the outcome of the resentencing. The effect of Magistrate O'Donnell's approach on 5 January 2023 was that the appellant was prevented from bringing any potential matters of mitigation to her Honour's attention. Given that the appellant was a litigant in person; was unprepared; and did not consent to the early‑listing of the resentencing, which evidently took him by surprise, it was not fair for her Honour to proceed to resentence him on 5 January 2023.
As a result of both her Honour's misapprehension as to the sentencing task she was to perform and, as a consequence, the sentencing proceedings being procedurally unfair, ground A must be upheld. Her Honour's decision in relation to the resentencing could realistically have been different (that is, relevantly, more favourable to the appellant) if the appellant had been accorded procedural fairness. See Nathanson v Minister for Home Affairs;[29] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[30] The appellant has suffered a miscarriage of justice. The circumstances are such that the miscarriage of justice in this case was substantial and cannot be subject to the proviso in s 14(2) of the Criminal Appeals Act. The sentences imposed by the sentencing magistrate must be set aside, and this court should resentence the appellant afresh.
[29] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [30] ‑ [33] (Kiefel CJ, Keane & Gleeson JJ). See also Gageler J at [45] ‑ [47].
[30] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [14] ‑ [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson & Jagot JJ), [38] (Beech‑Jones J).

Grounds B, C and 4

In light of the outcome in respect of ground A, it is unnecessary to decide grounds B and C; nor is it necessary to consider ground 4 of the appellant's appeal as a litigant in person.

Resentencing

At the conclusion of the hearing of the appeal on 29 June 2023, the court made orders requiring the parties to file written submissions in respect of any resentencing to be undertaken by this court. The court received written submissions from both the appellant and his counsel. Written submissions were also received from the respondent.
The appellant is to be resentenced for the assault occasioning bodily harm offence contrary to s 317(1)(b) of the Code (AOBH offence); and the dangerous driving offence contrary to s 61(1) of the Road Traffic Act 1974 (WA). The maximum penalty for the AOBH offence is 5 years' imprisonment.[31] The maximum penalty for the dangerous driving offence is 9 months' imprisonment, or a fine of $6,000, and mandatory disqualification from holding or obtaining a driver's licence for a period of not less than 12 months.[32] The AOBH offence also carries a summary conviction penalty of 2 years' imprisonment and a fine of $24,000.[33] The summary conviction penalty is a jurisdictional limit only.[34] For the purposes of assessing the seriousness of the offences on a resentencing, the relevant consideration is the maximum penalty and not the summary conviction penalty.[35]
[31] Code, s 317(1)(b).
[32] Road Traffic Act, s 61(3)(a)(ii).
[33] As to which, see s 5 of the Code.
[34] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26].
[35] See Jackman v Director of Public Prosecutions (WA) [2023] WASC 63 [80] ‑ [81]; Jetta v Director of Public Prosecutions (WA) [2021] WASC 234 [115]; Cain v Robson [2020] WASC 63 [36].
The facts of the offending, as found by the sentencing magistrate on 15 May 2020, essentially reflect the prosecution case as described in Smart [No 1]. Undoubtedly, the appellant's offending was serious. In respect of the AOBH offence, the appellant delivered multiple blows to the victim's face, including while he was on the ground, by either punching or kicking him. The assault rendered the victim unconscious and caused physical injuries that constituted 'bodily harm' as defined in s 1(1) of the Code. The dangerous driving offence took place the following morning. Out of anger, and after verbally abusing the victim, the appellant revved the motor of his vehicle and drove it directly at the victim at an unsafe speed. He then swerved heavily to avoid colliding with the victim at the last minute. The magistrate found that the driving was dangerous to anyone in the vicinity but, more specifically, it was dangerous to the victim. This offence was a serious example of its type.
The appellant's personal circumstances were covered at some length in the written submissions and do not need to be repeated in detail.
The appellant was 49 years of age at the time of the appeal hearing before this court. His parents were both teachers. He claimed to have been an excellent student, particularly in primary school and in the early years of his secondary education. However, his academic performance later deteriorated and he left school in year 11. He then successfully completed an apprenticeship and became a qualified mechanic.
The appellant is estranged from his family. Counsel for the respondent provided the court with material for the purposes of resentencing the appellant, including psychiatric evidence. According to a psychiatric report prepared for Magistrate Young, who sentenced the appellant in respect of one of his earlier contempt of court offences, the appellant has an antisocial personality disorder, which manifests itself as 'a disregard for the law and the rights of others; a toxic relationship with authorities; a need to dominate; [and] use of aggression to manage conflict'. According to the written submissions of his counsel, the appellant has been diagnosed with an 'anxiety condition' and post‑traumatic stress disorder. However, no expert evidence was tendered to this court to support the existence of such mental health conditions.
The appellant is by no means a first‑time offender. The criminal history, provided to the sentencing magistrate at the original sentencing on 15 May 2020, revealed prior convictions for assaults on public officers, and threats made against police officers and council workers. The appellant has also been convicted of the offences that were dealt with by Lonsdale DCJ and the contempt of court offences that were dealt with by Magistrate Young and Magistrate Maughan.
After the appellant was released from prison in May 2020, he was essentially itinerant, and he found it difficult to access medical, legal and employment services. Between 1 February 2022 and 21 March 2022, he served 49 days in custody as a result of being refused bail on five charges, which were preferred against him in the Perth Magistrates Court. Ultimately, those charges were either discontinued or dealt with other than by way of a custodial penalty. This time in custody has not been 'used' in any other sentencing proceeding. It is accepted by the respondent that this time in custody should be reflected, in a general way, in accordance with this court's decision in Narkle v Hamilton.[36]
[36] Narkle v Hamilton [2008] WASCA 31 [28] ‑ [43].

The appellant has spent significant other periods of time in custody since the offending the subject of this appeal, including 16 months' immediate imprisonment, being the total effective sentence that was imposed upon him by Lonsdale DCJ, and, significantly in respect of this resentencing exercise, 400 days in respect of the current case as of 5 July 2023.[37] There can be no doubt - indeed, it was accepted by the appellant's counsel - that terms of immediate imprisonment were the only appropriate penalty for the offences committed by the appellant. Taking into account all relevant facts and circumstances; the appropriate legal principles, which include the need for personal and general deterrence and for public protection; and the 49 days spent in custody, referred to at [58] above, we resentenced the appellant in accordance with the orders made on 5 July 2023.
[37] Respondent's sentencing written submissions, par 13.

As to parole eligibility, it was accepted by counsel for the appellant that the discretion to refuse eligibility for parole, pursuant to s 89(4) of the Sentencing Act, was enlivened because of the seriousness of the offences and the appellant's lengthy criminal history.[38] In our opinion, a parole eligibility order was not appropriate. The appellant has persistently shown defiance towards authority and has offended repeatedly. There was no reason to think that he would comply with the conditions of parole.

[38] Pursuant to s 89(4)(a) and s 89(4)(b) of the Sentencing Act.

Annexure A

Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written consent of the Attorney General is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.
THE MAGISTRATES COURT OF
WESTERN AUSTRALIA
CRIMINAL

JO 379 - 380 of 2016
WESTERN AUSTRALIA POLICE
and
[THE APPELLANT]

MAGISTRATE E O'DONNELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 5 JANUARY 2023, AT 10.49 AM
MR T. CONNOLLY appeared for the prosecution.
[THE APPELLANT] appeared in person.

ORDERLY: S file, [the appellant].
HER HONOUR: Thank you. Thanks, [the appellant]. For the prosecution.
CONNOLLY, MR: Connolly for the prosecution, your Honour.
HER HONOUR: Thank you. All right. So, [the appellant], you're here in front of me today as a result of the appeal decision in Toop v Smart - - -
[THE APPELLANT]: Yes.
HER HONOUR: - - - [2022] WASC - - -
[THE APPELLANT]: Which magistrate are you, please?
HER HONOUR: - - - 237. O'Donnell. I'm one who sentenced you back in May 2020.
[THE APPELLANT]: Well, the problem is, I've been bailed through to 6 February on these charges.
HER HONOUR: I've early listed the charges.
[THE APPELLANT]: I've received no notice of today's hearing.
HER HONOUR: No. But - - -
[THE APPELLANT]: And I do not consent for it to be early listed.
HER HONOUR: Well, nonetheless, that's what has happened and I do propose to deal with you today because you have to appear before me. That's the order of the Supreme Court in that decision. So - - -
[THE APPELLANT]: I am not - I was not told of today's hearing. I have none of my documents or anything. I can't - and I'm having - - -
HER HONOUR: No. But - - -
[THE APPELLANT]: And I'm having trouble with the Supreme Court appeal.
HER HONOUR: But - - -
[THE APPELLANT]: And I'm not going to be able to do that from custody.
HER HONOUR: Okay. [The appellant], though, the thing is, according to the decision of Curthoys J, I don't have any choice in the matter in terms of what I must do. I am required to resentence you according to law.
[THE APPELLANT]: Yes.
HER HONOUR: The issue being - - -
[THE APPELLANT]: But on 6 February, not early listing without notifying me.
HER HONOUR: No. The thing was that I had issued a warrant and the idea was that you would come back before me on that warrant. And to be honest, it's not going to make any difference whether we put it off until after 6 February or not.
[THE APPELLANT]: It is because my appeal is pending in the Supreme Court. I'm not going to be able to deal with it from custody.
HER HONOUR: Again, that doesn't make any difference to what I must do. What you can do - - -
[THE APPELLANT]: You can't early list it.
HER HONOUR: No.
[THE APPELLANT]: And not notify me when - - -
HER HONOUR: Yes. I can.
[THE APPELLANT]: - - - I've got a date - - -
HER HONOUR: And I have.
[THE APPELLANT]: - - - and a bail - - -
HER HONOUR: Right.
[THE APPELLANT]: - - - and everything from there onwards.
HER HONOUR: If you just listen for a moment, so pursuant to - what the - what that decision said was essentially, that there had been a miscarriage of justice on the basis that I have received the wrong information pertaining to backdating. I was given that information by [the appellant], but also by the prosecutor. There's no implication or insinuation that [the appellant] was deliberately misleading the court so that's - that's not an issue whatsoever.
However, the court decided that there had been a miscarriage of justice because you significantly underserved the term that I had imposed as a result of that wrong information. So it has been remitted for sentencing specifically to me. Now, nothing changes my view of the seriousness of the offences that I was dealing with or the fact that they warranted immediate imprisonment.
At paragraph 61 of the decision, Curthoys J has observed that you had substantially underserved your sentence that I imposed by a matter of months, not weeks, and if the backdating substantially overstates time served, then the purpose of section 87 of the Sentencing Act has not been met. You were unconditionally released at the conclusion of sentencing on 15 May 2020 and that was recognised by Curthoys J. However, at paragraph 63 his Honour said:
The longer the error in terms of the time not served, the less important that that was as a factor.

So it was significantly for that reason, the underserving of the term, that Curthoys J determined that there had been a substantial miscarriage of justice and he allowed the appeal. For those reasons I see no reason to exercise my sentencing discretion any differently for [sic] the way I exercised it in May 2020 aside from the issue of backdating.
So as identified by the decision on appeal, it would have been appropriate to backdate to 11 October 2019 on 15 May 2020 when I was sentencing you. Now, that is 218 days prior to 15 May 2020. So what I propose to do today is to re‑impose the terms of imprisonment that I imposed on 15 May, but backdate them by a period of 218 days. So I will do that now.
[THE APPELLANT]: Well, I would ask that any further term of imprisonment be suspended given that I've been out [for] three years and I have lodged [an] appeal in the Supreme Court. There are technical difficulties and if I'm in custody, I'm going to be totally unable to pursue that. And back in - between 28 January and March 15 I was in custody and the Supreme Court ignored me completely despite getting all the correct paperwork. So that's the problem. And I couldn't get to the legal library when I needed to at Casuarina Prison.
HER HONOUR: Okay.
[THE APPELLANT]: So I would ask that any further period of imprisonment be suspended or some sort of community-based order imposed given that I've been out of custody [for] three years now.
HER HONOUR: I appreciate those submissions, [the appellant], but in the circumstances I don't consider that that's open to me today. I also don't have jurisdiction to consider bail pending appeal. It's a matter for the District Court according to the schedules of the Bail Act. I did double check that carefully to see whether I could possibly consider that.
I can't, but you having lodged an appeal can certainly bring that application to the Supreme Court and perhaps raise exactly what you've raised now. In terms of my sentencing exercise, though, I have very little leeway in the matter. And so, as I say, I'm just going to double check that time in custody issue to make sure that it is correct.
[THE APPELLANT]: It's my understanding that I had served 24 months and was only sentenced to 16 [months] so there's an additional 8 months floating around in there.
HER HONOUR: But, in fact, what the appeal decision identified was that all of that time minus the 218 days had actually already been taken into account in other sentencing exercises; some in the Magistrates Court and at least one in the District Court.
[THE APPELLANT]: Well, the [sic] did this, the Supreme Court of Appeal - - -
HER HONOUR: So it's all set out.
[THE APPELLANT]: - - - in my absence saying that they couldn't find me which is ridiculous.
HER HONOUR: And that's - - -
[THE APPELLANT]: So there's a number of issues.
HER HONOUR: And that's - - -
[THE APPELLANT]: And now you're [sic] early listed it. This is the bodgiest effort - - -
HER HONOUR: And that's a matter to take up - - -
[THE APPELLANT]: - - - to throw me in jail that I've ever seen in my life. And I hope all those responsible are going to go to jail for miscarriage of justice and perverting the course of justice.
HER HONOUR: So, as I say, I'm re-imposing the terms that I imposed. So for Armadale 379 of 2016; 12 months['] imprisonment. For Armadale 380 of 2016; four months['] imprisonment cumulative. A total of 16 months. I did not make you eligible for parole and I have no reason to alter that either, but it is backdated by 218 days from today which takes it back to 1 June as the commencement date. And as I say, [the appellant], in view of appeal proceedings, it will be now for you to bring an application for bail pending appeal in the Supreme Court because that's the only jurisdiction that can deal with it. All right. That concludes the matter (indistinct) thanks for your attendance, Sergeant.
CONNOLLY, MR: Thank you, your Honour.
HER HONOUR: The court's adjourned. Thank you.
AT 10.57 AM THE MATTER WAS ADJOURNED ACCORDINGLY

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
27 JUNE 2024