Stanley v The State of Western Australia [No 2]
[2019] WASCA 177
•7 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STANLEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 177
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 4 NOVEMBER 2019
DELIVERED : 4 NOVEMBER 2019
PUBLISHED : 7 NOVEMBER 2019
FILE NO/S: CACR 208 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KYLIE STANLEY
Offender
Catchwords:
Criminal law - Sentencing - Conditional suspended imprisonment order - Breached by further offences - Personal circumstances - Fines imposed
Legislation:
Sentencing Act 1995 (WA), s 84F
Result:
Offender fined in respect of each breach
Category: B
Representation:
Counsel:
| Prosecution | : | Ms K C Cook |
| Offender | : | Mr S B Watters |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Offender | : | In person |
Case(s) referred to in decision(s):
Stanley v The State of Western Australia [2018] WASCA 229
JUDGMENT OF THE COURT:
(These reasons were given orally and have been edited from the transcript).
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 nine 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 comes before this court today in respect of reoffending while she was subject to the conditional suspended imprisonment order.
The offender has 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 nine 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 nine 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 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 six months of the nine month period of suspension.
The offender is now engaged in full-time employment. She works seven days a week from 7.00 am to 6.00 pm. Her employment should assist in preventing her from reoffending. It is also a significant change in her personal circumstances.
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 and is generally living in a positive and prosocial environment.
In all the circumstances, this court is of the opinion that it would be unjust to order that the offender serve the term of imprisonment that was suspended.
This court has 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 each offence of driving whilst disqualified, making a total fine of $200. The offender has until 4.00 pm on 2 December 2019 to pay the fines. No other order should be made in respect of the conditional suspended imprisonment order or either of the breaches.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss7 NOVEMBER 2019
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