Stack v Joye

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   STACK -v- JOYE [2021] WASC 322
CORAM:   ARCHER J
HEARD:   26 AUGUST 2021
DELIVERED          :   26 AUGUST 2021
PUBLISHED           :   22 SEPTEMBER 2021
FILE NO/S:   SJA 1036 of 2021
BETWEEN:   ROBERT ARTHUR STACK
Appellant
AND
ELI JOYE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B MAHON
File Number            :   AR 13804/2020

Catchwords:

Appeal against imposition of part of suspend sentence for breach - Whether wrong test applied - Whether no miscarriage in any event

Legislation:

Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant	:	W Yoo
Respondent	:	NTL John

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	State Solicitor's Office

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

Baini v R [2012] HCA 59; (2012) 246 CLR 469
Crocker v Vinicombe [2019] WASC 416
Dillon v Western Australia [2020] WASCA 24
Dragon v Western Australia [2008] WASCA 252
Gaskell v The State of Western Australia [2018] WASCA 8
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Neach v Hobbs [2021] WASC 135
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139

ARCHER J:

(This judgment was delivered extemporaneously on 26 August 2021 and has been edited to correct matters of grammar, include complete references, and add headings.)

Overview

The appellant seeks leave to appeal against an order that he serve part of a suspended term of imprisonment that had been imposed on him.
The appellant alleges the learned magistrate made an error of law in considering he was bound to make an order that at least part of the suspended term be served unless he was positively satisfied it would be unjust to do so.
The respondent agrees that, if the magistrate had done that, it would have been an error of law. However, the respondent contends that the magistrate did not do that. In the alternative, the respondent contends that no miscarriage of justice occurred because no lesser penalty would be imposed if the appellant was resentenced.
The application for leave to appeal was ordered to be heard together with the appeal.
What follows are my reasons for concluding I should grant leave to appeal and allow the appeal.

Background

On 12 January 2021, the appellant pleaded guilty to a charge of aggravated unlawful assault. The assault was aggravated because the appellant was in a family domestic violence relationship with the victim and she was over the age of 60 years. In fact, the victim was the appellant’s 74-year-old mother.
The facts of the offence were that the appellant and his mother were having an argument. The appellant was yelling loudly and swearing. He had been drinking. His mother told him to leave the address or she would call the police. While she was calling the police, the appellant grabbed the phone out of her hands. They got into a struggle over the phone and the appellant struck the left side of his mother's face with a clenched fist. He then struck her a second time, hitting her on the left lower arm.
Magistrate Mahon gave the appellant 25% credit for his plea of guilty. The magistrate imposed a sentence of 12 months' imprisonment but suspended it for a period of 15 months. His Honour made it plain to the appellant that it was very important that he not commit any offence during that 15-month period. His Honour said:[1]
If you commit any offence in the next 15 months starting today, Mr Stack, including, but not limited to violence, then you are almost certainly going to serve the 12 months that I have imposed today. I give you a fair warning as well. If you were to come back before me in those circumstances, I doubt I would make you eligible for parole, Mr Stack, because today's your chance to rehabilitate yourself, and if it's the case that you were to come back, particularly, but not limited to [alcohol-affected] violence, you will have told me loud and clear you're not interested in doing the right thing, and I would have no interest in you getting parole. So just bear that in mind. The stakes are pretty high.
[1] ts 12 January 2021, page 7.
On 6 February 2021, less than one month later, the appellant committed the offence of driving without authority, contrary to s 49(1) of the Road Traffic Act 1974 (WA) (the driving offence). The appellant was not authorised to drive because, among other things, he had been disqualified from driving by a court (including for life).
The statutory penalty for such an offence includes imprisonment.
The appellant was convicted of the driving offence in his absence. The appellant appeared in court on 25 March and 23 April 2021 for the driving offence, but was not finally dealt with.
On 9 May 2021, the appellant committed an offence of possessing cannabis (the drug offence). The statutory penalty for this offence also includes imprisonment.
The appellant was sentenced for the driving offence on 21 May 2021 by Magistrate Mahon. The prosecutor said that the facts were that the appellant was stopped by police when driving a car in Armadale. The police discovered he was not authorised to drive and that his licence was subject to 12 revocations.[2] The appellant's explanation was that he was collecting items from the verge collection.[3]
[2] ts 21 May 2021, page 3.
[3] ts 21 May 2021, pages 5 - 6.
Defence counsel told the magistrate that the appellant’s friend had been driving a car which got stuck between two piles of verge material. The appellant had then come along on his push bike, saw his friend, and offered to reverse the car out and drive it down the road to the next pile of rubbish. Defence counsel said it was when he was doing that that the police happened to come along and catch him.[4]
[4] ts 21 May 2021, page 6.
Although that explanation was highly implausible, the magistrate did not indicate he did not accept it and nor did the prosecutor seek to challenge it. Accordingly, the appellant is to be treated on the basis that those are the facts of the driving offence.
The magistrate fined the appellant $1,000 in relation to the driving offence.[5]
[5] ts 21 May 2021, page 12.
As the driving offence was committed during the suspension period and carried a potential penalty of imprisonment, s 80 of the Sentencing Act1995 (WA) was enlivened.
Section 80 relevantly provides:
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
…
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
The learned magistrate was satisfied that it would be unjust to order the appellant serve all of the term of imprisonment that had been suspended. His Honour decided, however, that the appellant should serve part of it. He ordered that the appellant serve 7 months of it. In reaching this decision, his Honour said:[6]
The legislation, as set out in this area, section 80 Sentencing Act and it pushes the court in the direction of imposing the full term unless the court is satisfied that it would be unjust to do so based upon matters that have arisen or have become known since that suspended imprisonment sentence was imposed…
… My view of it is this, when I carefully step through section 80, I am left with a further difficulty, in my view, notwithstanding the numbers for your driving, a conspicuous aspect with your driving, is that you have not driven errantly since 2017. Were I dealing with this matter on its own, and I do propose to deal with it on this basis, notwithstanding the numbers of times you’ve been caught driving.
The (indistinct) would allow me to deal with this particular matter by way of a fine, which only further adds mystique into the wrinkles and challenges of this particular circumstance. My view is this, Mr Stack and I don't reach the view lightly and either direction, my view is this, on a proper assessment I am not in a position to form the view that a mature man, given opportunities both then and now, is in a position to - where I can find that it would be unjust in totality basis.
That obliges me, ordinarily, to impose the full sentence that I impose; however, my view that of itself, would be unjust. I am impressed with the steps that you've taken, and I propose to deal with you in a marginally different way. My view is this, Mr Stack, I am of the view that it would be unjust to impose the totality of the sentence that I refer to and imposed upon you 12 January. That was a sentence of some significance. 12 months suspended for 15 months.
In light of the steps that you've taken, the dissimilar nature of this matter, the efforts you've made and to try recognise those, I am prepared to reduce the term of imprisonment. Regrettably, I am not persuaded it would be unjust to such an extent that no period should be imposed. In those circumstances, I propose to sentence you on the following basis pursuant to section 80 subsection 1B and impose part of the sentence.
In relation to the driving matter, I deal with you by way of the minimums. A find of $1000, disqualification nine months cumulative. In relation to the original sentence, which was expressed in clear terms to you, Mr Stack, which was 12 months. I take the view, it would be inappropriate and unjust to impose that full sentence. But I do impose on an immediate basis a sentence of imprisonment commencing today being seven months.
I've reduced that sentence considerably. The sentence will start today. I will make you eligible for parole, which again is a matter that recognises the efforts you've made. It derails you in the short term, Mr Stack, but I am sorry, sir. I simply cannot be persuaded it would be unjust not to activate at least that aspect. That's the very best I can do for you, Mr Stack. I'm hoping I haven't derailed you. That's why I put you on a suspended.
[6] ts 21 May 2021, pages 10 - 12.
On 15 June 2021, the appellant pleaded guilty to the drug offence. Magistrate Mahon fined him $300. Although the drug offence was committed during the suspension period, the learned magistrate did not again deal with the appellant under s 80.

Ground of appeal

The sole ground of appeal is that the learned magistrate erred in law
[b]y holding that the appellant was required to demonstrate that it was not unjust to order part of the service of the immediate imprisonment term under Sentencing Act 1995 (WA) s 80(1)(b) when there was no requirement at law to do so.

Legal principles[7]

Appeals from magistrates' decisions

[7] The first three sections substantially reproduce my reasons in Neach v Hobbs [2021] WASC 135 [12] - [22].

Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence in the Magistrates Court to be made on various grounds, including that the court made an error of law.
Leave to appeal is required.[8]
[8] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[9] This means that the ground is required to have a real, rational and logical prospect of succeeding.[10]
[9] Criminal Appeals Act s 9(2).
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[11] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[12]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

Principles relating to sentencing appeals

[11] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[12] Strahan [90].

Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[13] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[14]

If, despite error, no substantial miscarriage of justice

[13] Ninyette v Holmes [2015] WASC 287 [56(3)]. And see Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139 [117].

[14] Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].

By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[15]
[15] Criminal Appeals Act s 14(2).
Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[16]
[16] Ninyette [65]. See also Crocker v Vinicombe [2019] WASC 416 [42] ‑ [60].
Different views have been expressed as to the proper approach to sentence appeals from the Magistrates Court. Fiannaca J provided a useful summary in Crocker v Vinicombe.[17] In my view, the proper approach can be described in this way.[18]
[17] Crocker [42] ‑ [60].
[18] See s 14 of the Criminal Appeals Act, Ninyette [65] and Crocker [42] ‑ [60]. See also, in the context of conviction appeals, Baini v R [2012] HCA 59; (2012) 246 CLR 469 [28] ‑ [33] and Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12] ‑ [16].
The first question is whether the appellate court can exclude the possibility that a different sentence would have been imposed if the error had not been made. That is, the first question is not whether the sentence was within the range of a sound exercise of the sentencing discretion. The question is whether the error could not have made a difference.
If the answer to the first question is yes, the appeal will be dismissed. (It is unnecessary to resolve whether this is because the error was not material, such that the jurisdiction to allow the appeal was not enlivened, or because no substantial miscarriage of justice had occurred.)
If the answer to the first question is no, the appellate court should consider the sentencing discretion afresh. If the appellate court would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal.

The proper construction of s 80 of the Sentencing Act

It has been observed that[19]
there is a clear legislative policy that, in general, breach of a suspended sentence should result in the offender serving that sentence. A suspended sentence is imposed where imprisonment is the only appropriate sentencing disposition, but the sentencing court considers it appropriate to give the offender a last chance to avoid immediate imprisonment by leading a law-abiding life. It is intended to be a sanction hanging over the head of the offender which is to be activated if there is a lapse into offending. The court will not lightly interfere with the ordinary consequence of offending while subject to a suspended imprisonment order. To do so would be to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending.
Of course, the legislation also recognises that there are circumstances in which the courts should refrain from requiring service of suspended imprisonment. An obvious example would be where an offender, who has otherwise been of good behaviour and achieved rehabilitation, commits a relatively trivial offence at the end of the suspension period which, while punishable by imprisonment, does not warrant the imposition of a term of immediate imprisonment.
[19] Dillon v Western Australia [2020] WASCA 24 [31] - [32].
There is no dispute as to the proper construction of s 80. It may be summarised as follows:[20]
1.In general, an offender should be ordered to serve the full term or terms of imprisonment that were suspended.
2.This must be ordered unless it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
3.If a court decides it would be unjust to do so, the court then has a discretion as to whether to make an order under s 80(1)(b), (c) (if applicable) or (d).
4.The discretion to make an order under s 80(1)(c) (if applicable) or (d) is not conditioned upon the court being satisfied that it would be unjust to make an order under s 80(1)(b) that the offender serve part of the term of suspended imprisonment.
[20] And see Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [32] - [35] and Dillon [30] - [32].
In considering whether it would be unjust to order the offender to serve the full term (the first question), the court should consider:[21]
1.the circumstances of the offence for which the sentence of suspended imprisonment was imposed (the original offence);
2.the period of suspended imprisonment imposed;
3.the nature of the offence which triggered the need to consider s 80 (the breaching offence), including whether the breaching offence was trivial and/or did not of itself warrant a term of imprisonment;
4.whether the breaching offence was committed late in the suspension period;
5.whether the breaching offence was isolated or out of character;
6.factors personal to the offender, including any circumstances which have arisen since the suspended sentence was imposed;
7.the legislative policy that, in general, an offender who breaches a term of suspended imprisonment should serve the sentence which was suspended.
[21] See Hall [32] - [35].

If the court answers the first question negatively, the discretion arises.
I consider that the first six factors are equally relevant to exercise of the discretion and the determination of whether any of the suspended term should be served and, if so, how much.
Further, even though the first question will have been answered negatively, I consider that the final factor, the legislative policy, remains relevant to the discretion. In exercising the discretion, the court should keep in mind the desirability of maintaining the integrity of the system of suspended sentences and the effectiveness of such sentences as a means of deterring future offenders.

Analysis

The appellant alleges that the learned magistrate held that the appellant was required to demonstrate that it was not unjust to order part of the service of the immediate imprisonment term under s 80(1)(b) of the Sentencing Act. The appellant alleges this was an error.
The respondent agrees that, if the magistrate had done that, it would have been an error of law. However, the respondent contends that the magistrate did not do that.
The relevant parts of the magistrate’s reasons are extracted earlier. In particular, his Honour said:[22]
…I am prepared to reduce the term of imprisonment. Regrettably, I am not persuaded it would be unjust to such an extent that no period should be imposed. …
It derails you in the short term, Mr Stack, but I am sorry, sir. I simply cannot be persuaded it would be unjust not to activate at least that aspect. That's the very best I can do for you, Mr Stack. I'm hoping I haven't derailed you.
[22] ts 21 May 2021, pages 11 - 12.
The respondent submits that the magistrate's reasons may be read in one of two ways. He accepts that one of the ways in which it can be read is what is contended by the appellant. However, the respondent argues that the reasons may also be read as involving infelicity of expression in the course of ex tempore reasons when his Honour used the term 'unjust' in considering whether at least part of the sentence needed to be served.
The respondent submits that this is supported by the sequence of the magistrate’s reasons. In summary terms, the respondent says that the magistrate’s reasons followed this path:
1.The Magistrate referred to, and understood, the legislative push to impose the full term of a breached suspended sentence unless the court is satisfied it would be unjust to do so;
2.His Honour decided that it would be unjust to impose the full term;
3.The Magistrate also decided that some part of the term should be served;
4.His Honour was not satisfied from the materials put before him that he should make a different decision.
The respondents submits that it was in the context of this last point that his Honour used the expressions to the effect that he was not satisfied it would be unjust to impose any of the term.
The respondent correctly points out that the onus is on the appellant to satisfy me that it is the first reading that should be preferred to the second reading. The respondent also pointed to the authorities which make it plain that, in considering a magistrate's reasons, it is necessary to have regard to the considerable volume of work magistrates are required to conduct efficiently and on a daily basis.
The respondent submitted that, having regard to all these matters, I ought not be satisfied that the magistrate made the alleged error.
The respondent’s submissions were measured and sensible. Had the magistrate used the word 'unjust' only once in this context, the respondent's submissions would have been compelling. However, the magistrate said it twice: first by saying 'I am not persuaded it would be unjust to such an extent that no period should be imposed'[23] and then again towards the end of his Honour's reasons 'I simply cannot be persuaded it would be unjust not to activate at least that aspect.'[24] These statements were made in the context that the magistrate was plainly concerned that imprisonment would derail the appellant’s rehabilitation.
[23] ts 21 May 2021, page 11.
[24] ts 21 May 2021, page 12.
Accordingly, I am satisfied that the magistrate ordered the appellant to serve part of the period of suspension because he was not satisfied it would not be unjust to make that order. The respondent properly concedes this would be an error of law.
Accordingly, I would grant leave to appeal on the ground of appeal contained in the appeal notice and uphold this ground of appeal.

No miscarriage of justice?

The respondent contends that, if the magistrate did err as alleged, no miscarriage of justice occurred because no lesser penalty would be imposed if the appellant was resentenced.
I am unable to exclude the possibility that a different sentence would have been imposed if the error had not been made. I cannot be certain that the error could not have made a difference.
I am therefore required to consider the sentencing discretion afresh. If I would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and I may dismiss the appeal.

Fresh consideration

The respondent does not challenge the magistrate’s finding that it would be unjust to order that the appellant serve the entire period that had been suspended.
I earlier set out seven factors that I consider to be relevant in determining whether any of the suspended term should be served and, if so, how much. I will deal with each in turn.
As to the first factor, the facts of the original offence (the aggravated assault offence) were serious – the appellant struck the left side of his 74-year-old mother's face with a clenched fist. He then struck her a second time, hitting her on the left lower arm.
As to the second factor, the period of suspended imprisonment for the original offence was 12 months, suspended for a period of 15 months.
During the appeal, counsel for the appellant raised an argument in relation to the 19 days the appellant had spent in custody before being sentenced for the original offence. It was asserted that this was not taken into account by the magistrate in imposing the suspended term and that it was a ‘circumstance that had become known’ since the suspended term of imprisonment was imposed. I accept that such circumstances may include matters that had occurred prior to the term being imposed but subsequently became known. However, I do not accept the magistrate was not aware of the time in custody at the time of imposing the suspended sentence. Indeed, in the transcript of the sentencing for the original offence, his Honour expressly referred to the time spent in custody.[25]
[25] ts 12 January 2021, pages 3, 6.
Counsel for the appellant also appeared to seek to raise an argument that the magistrate did not take into account the time in custody in determining the appropriate sentence. I accept that the magistrate did not expressly state he had taken it into account. However, having regard to the transcript as a whole and the ultimate penalty imposed for the original offence (which I consider to have been lenient), I infer that the magistrate did take it into account.
In relation to the third factor, the breaching offence was of a different character to the original offence.[26]
[26] The Court of Appeal has implicitly acknowledged this may be relevant in some cases – see Dillon [33]. The Court found it was not relevant in that case as the breaching offences themselves required substantial terms of imprisonment, making it ‘scarcely arguable’ that it would be unjust to require the appellant to actually serve the suspended term.
The driving itself, on the appellant’s unchallenged version, was at the bottom of the scale of seriousness. However, the driving occurred in the context of the appellant’s licence having been suspended on many occasions, including for life. The appellant simply should not be getting behind the wheel of a car. In my view, a sentence of imprisonment would have been warranted were it not for the appellant’s uncontradicted version of the circumstances.
As to the fourth factor, the breaching offence (the driving offence) occurred less than a month after the suspended term of imprisonment was imposed.
As to the fifth factor, the breaching offence was not isolated. The appellant also committed a simple drug offence.
Further, the breaching offence was not out of character. The appellant has an extensive record of driving without authorisation.
In relation to matters personal to the appellant, the sixth factor, the appellant did not have the benefit of the mitigating factors of youth or a clean record.
The appellant was 50 at the time of the driving offence.
He has multiple convictions for breaching orders, including restraining orders, a police order, bail, suspended sentences (imposed in 2001 and 2002). He did, it seems, not breach a conditionally suspended sentence of 7 months imposed in 2019.
His record includes numerous convictions for driving without authority and driving under the influence, for which he has been imprisoned or fined and had his licence suspended. He was disqualified for life in 2014 for a subsequent offence of driving under the influence of alcohol.
Of particular concern, drawn to my attention by counsel for the respondent, is the fact that the appellant has twice breached suspended imprisonment orders which had been given for a driving offence.
He has previous convictions of violence, including aggravated assault occasioning bodily harm and, albeit nearly 20 years ago, armed robbery.
However, in more recent times, his pattern of offending appears to have eased.
Between August 2015 and October 2017, no convictions were recorded against him.
In the period from October 2017 to the time of the original offence, he was not imprisoned. He was given a conditionally suspended sentence of 7 months on 15 March 2019 suspended for a period of 10 months. He did not commit any offences in that 10-month period (although was convicted of offences during that period that pre-dated the imposition of the suspended term).
In relation to the original offence, the appellant had the benefit of the mitigation that flowed from his plea of guilty. It must be assumed this plea was made at the first reasonable opportunity as the magistrate gave the appellant 25% credit for his plea of guilty.[27]
[27] See s 9AA of the Sentencing Act.
The appellant also seeks to adduce evidence as to his engagement with counselling through the Wungening Aboriginal Corporation. The evidence shows he underwent an intake assessment at the Wungening Aboriginal Corporation on 23 March 2021. That entity provides, among other things, alcohol and drug services and programs. The appellant then attended two individual counselling sessions, on 5 May and 10 May 2021. He also attended three group sessions during that time.
The evidence also shows he engaged in Noongar language classes.
Under s 40(1)(e) of the Criminal Appeals Act, I have the power to admit any evidence.
I will give leave to adduce this evidence. It is, however, limited to establishing that the appellant has engaged in counselling and language classes. It tells me nothing about the nature and focus of the counselling or the prospects it will impact on the appellant’s risk of future offending. Nor do I know anything else that would be relevant, such as, for example, any previous attempts the appellant has made to deal with his alcohol and drug problem. What I have is that he engaged in counselling. This is a good thing. However, the absence of any detail reduces its weight.
Finally, as to the seventh factor, I have considered the legislative policy.
Having regard to all of these factors, if I had been exercising the sentencing discretion afresh, I would have considered that it was necessary to order that part of the suspended term be served.
In my view, it would undermine the integrity of the system of suspended sentences and pay insufficient regard to the importance of general deterrence if the appellant was not required to serve any part of the suspended term (subject to what I will say later about my inability to backdate any sentence I impose under s 80).
Nevertheless, given the unchallenged version of the driving offence and the matters before the magistrate as to what had occurred after the suspended term had been imposed,[28] I consider that it should be a shorter period than the seven months imposed by the magistrate.
[28] As to which, see, in particular, ts 21 May 2021, pages 4, 8, 9.
This is not to say that it was not open to the magistrate to order that seven months be served. In my view, it plainly was open. However, I am unable to conclude that I would not have imposed a lesser sentence. I am therefore unable to conclude that there was no miscarriage of justice. I would therefore grant leave to appeal and allow the appeal.
It is appropriate to exercise the discretion under s 80 myself, rather than remitting it to the Magistrates Court.
Had I been sentencing him on the day the magistrate did, I would have required him to serve three months of the suspended term. However, I am unable to backdate such an order.[29]
[29] Dragon v Western Australia[2008] WASCA 252 [48] - [53].
I am, however, able to take into account the fact that he has been in custody in considering what order I should make under s 80 now. He has been in custody for 97 days. In my view, having regard to the time in custody, it is appropriate to impose a fine of $100 and make no order in respect of the suspended imprisonment, under s 80(1)(d) of the Sentencing Act.

Conclusion

Accordingly, I grant leave to appeal and allow the appeal. I set aside the order imposed by the magistrate and order that the appellant pay a fine of $100.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
22 SEPTEMBER 2021

[2021] WASC 322

22 SEPTEMBER 2021

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Sentencing