Stanley v The State of Western Australia - [2020] WASCA 15

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   STANLEY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 15
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   3 FEBRUARY 2020
DELIVERED          :   3 FEBRUARY 2020
PUBLISHED           :   7 FEBRUARY 2020
FILE NO/S:   CACR 208 of 2018
BETWEEN:   KYLIE STANLEY
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Sentencing - Conditional suspended imprisonment order - Breached by further offence - Personal circumstances - Fine imposed

Legislation:

Sentencing Act 1995 (WA), s 84F

Result:

Offender fined in respect of the breach

Category: B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	L M Fox

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	The Director of Public Prosecutions (WA)

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

Stanley v The State of Western Australia [2018] WASCA 229

JUDGMENT OF THE COURT:

On 19 October 2018, the offender, Kylie Stanley, was sentenced in the District Court of Western Australia, on her fast-track plea of guilty, to 15 months' immediate imprisonment for an offence of aggravated burglary of a dwelling.
On 10 December 2018, this court allowed the offender's appeal against that sentence. This court set aside the sentencing decision of the primary judge and resentenced the offender to 9 months' imprisonment, conditionally suspended for 9 months, pursuant to s 81 of the Sentencing Act 1995 (WA), subject to the standard obligations in s 83 of the Act, a programme requirement under s 84A of the Act and a supervision requirement under s 84B of the Act. See Stanley v The State of Western Australia.[1]
[1] Stanley v The State of Western Australia [2018] WASCA 229.
The conditional suspended imprisonment order began on 10 December 2018 and expired on 9 September 2019.
The offender came before this court on 4 November 2019 in respect of reoffending while she was subject to the conditional suspended imprisonment order.
The offender had been convicted on her pleas of guilty of two offences of unauthorised driving.
On 25 July 2019, the offender pleaded guilty in the Magistrates Court to the offence that on 1 June 2019 she drove a motor vehicle whilst disqualified. She was fined $1,200 and her motor driver's licence was disqualified for 9 months, cumulative upon any other periods of disqualification.
On 27 September 2019, the offender pleaded guilty in the Magistrates Court to the offence that on 15 July 2019 she drove a motor vehicle whilst disqualified. She was fined $1,200 and her motor driver's licence was disqualified for 9 months, cumulative upon any other periods of suspension.
On 4 November 2019, this Court ordered, relevantly, pursuant to s 84F(1)(d) of the Sentencing Act, that the offender should be fined $100 in respect of the breach constituted by each offence of driving whilst disqualified, making a total fine of $200.
On 3 February 2020, the offender came before this court in respect of other reoffending while she was subject to the conditional suspended imprisonment order. The offender had been convicted on her plea of guilty of an additional (that is, a third) offence of unauthorised driving.
In particular, on 28 November 2019, the offender pleaded guilty in the Magistrates Court to the offence that on 5 September 2019 she drove a motor vehicle whilst disqualified. She was fined $1,300 and her motor driver's licence was disqualified for 9 months, cumulative upon any other periods of suspension.
Section 84F of the Sentencing Act deals with the manner in which a person is to be dealt with for reoffending while subject to a conditional suspended imprisonment order. By s 84F(3), this court must make an order under s 84F(1)(a) that the person serve the term or terms of imprisonment that were suspended unless the court decides that it would be unjust to do so in view of all of the circumstances that have arisen, or have become known, since the conditional suspended imprisonment order was imposed.
In the present case, this court is and was of the opinion, in relation to the offender, that it would be unjust to require her to serve the term of imprisonment that was suspended in view of all the circumstances that have arisen, or have become known, since the conditional suspended imprisonment order was imposed. We are of that opinion for the following reasons.
The offender has an 'extremely low' intellectual capacity. Her capacity has been assessed as falling within the lowest 1% of her peers. Her 'extremely low' intellectual capacity was a factor which caused her to commit the offence of aggravated burglary of a dwelling. See Stanley [21] - [22].
The offender's cognitive difficulties are highly significant in dealing with her for the breaches of the conditional suspended imprisonment order by way of her reoffending. The offender asserts, and we accept, that she did not understand that, at the material time, her licence was under suspension because she thought that her suspension period had elapsed while she was in custody.
Despite her past non-compliance with community based orders, the offender has not previously breached a conditional suspended imprisonment order.
Although the offences of driving whilst disqualified are not trivial, they are significantly different from and less serious than the offence of aggravated burglary of a dwelling in respect of which the conditional suspended imprisonment order was imposed. Also, the offender did not reoffend within the first 6 months of the 9 month period of suspension.
The offender was engaged in full-time employment until mid‑November 2019. She then resigned from her employment as a cleaner to assist her husband, Jason Hunt, in establishing a scaffolding business. The offender and Mr Hunt live at a home in Cannington. The offender jointly owns the home with her former husband. The offender's 12 year old son lives with her and Mr Hunt.
The offender and Mr Hunt were married on 13 December 2019.
The offender and Mr Hunt have immobilised their motor vehicles so that the offender is not tempted to drive while disqualified.
The offender's use of methylamphetamine and her abuse of alcohol played an important role in her commission of the offence of aggravated burglary of a dwelling. Fortunately, it appears that while she was in custody for that offence she was able to abstain from the use of illicit substances.
The material put before this court on behalf of the offender indicates that she has maintained her abstinence from illicit substances, has reunited with her son, has remarried and is generally living in a positive and prosocial environment.
In all the circumstances, this court is and was of the opinion that it would be unjust to order that the offender serve the term of imprisonment that was suspended.
This court decided, pursuant to s 84F(1)(d) of the Sentencing Act, that the offender should be fined $100 in respect of the breach constituted by the additional (that is, the third) offence of driving whilst disqualified.
For these reasons, on 3 February 2020 we made the following orders:
(a)The offender is fined $100 in respect of the breach constituted by the offence of driving on 5 September 2019 whilst disqualified.
(b)The offender has until 4.00 pm on 21 February 2020 to pay the fine.
(c)No other order is made in respect of the conditional suspended imprisonment order or the breach.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
7 FEBRUARY 2020