Toop v Smart
[2022] WASC 237
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TOOP -v- SMART [2022] WASC 237
CORAM: CURTHOYS J
HEARD: 1 JUNE 2021
DELIVERED : 26 JULY 2022
FILE NO/S: SJA 1043 of 2020
BETWEEN: CHRISTINE TOOP
Appellant
AND
ANDREW JACOB SMART
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E O'DONNELL
File Number : AR 379 of 2016, AR 380 of 2016
Catchwords:
Criminal law - Appeal against sentence - Error in backdating sentence - Whether magistrate erred in proceeding on basis of information provided by the offender - Whether backdating gave rise to miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Sentencing Act 1995 (WA), s 87(2)
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | T B L Scutt |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Not applicable |
Cases referred to in decision:
Cogan v Velkovski [2016] WASC 158
Cowie v Bacopak Pty Ltd [2022] WASC 14
Debono v The State of Western Australia [2019] WASCA 193
Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114
Nugawela v Devellerez [2022] WASC 190
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
CURTHOYS J:
Introduction
On 15 May 2020, the respondent, Mr Smart, was convicted after trial in the Magistrates Court of one charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and one charge of dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA). The magistrate imposed a total effective sentence of 16 months' immediate imprisonment which was backdated to 14 June 2018.
The appellant appeals the sentence on two grounds. First, that the magistrate erred in fact or law, or both, by ordering that the terms of imprisonment imposed be taken to have begun on 14 June 2018, contrary to s 87(2) of the Sentencing Act 1995 (WA), given a substantial proportion of the period between 14 June 2018 and the sentencing date was already taken into account in sentencing for other offences. Second, that the backdating by the magistrate gave rise to a miscarriage of justice.
Two issues arise in this appeal. First, whether the sentence was correctly backdated to 14 June 2018 and second, if the sentence was incorrectly backdated, what is the appropriate order.
Mr Smart did not take part in the appeal. The appellant filed an affidavit of police sergeant, Sarah Louise Brookes, sworn 15 January 2021, as proof of service of the appeal documents. I am satisfied from that affidavit that Mr Smart was personally served with the appeal documents on 26 November 2020, as set out in par 1 of Ms Brookes' affidavit. Despite being served with the appeal documents Mr Smart chose not to participate in the appeal. There was only an appearance by counsel from the Office of the Director of Public Prosecutions (ODPP).
The appellant sought leave for an extension of time to file its submissions. I granted the appellant leave at the hearing of the appeal.
For the following reasons, I have determined that the appeal should be allowed.
Magistrates Court proceedings
Mr Smart was charged that on 9 January 2016, he unlawfully assaulted Kenneth Allan Unsworth and thereby did bodily harm contrary to s 317(1) of the Criminal Code (the assault offence).[1] He was also charged that on 10 January 2016, he drove a motor vehicle, namely a Subaru Liberty bearing registration plate 1EEW‑118, on Coops Avenue, Thornlie, in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person contrary to s 61(1) of the Road Traffic Act (the driving offence).[2]
[1] Prosecution notice lodged 11 January 2016, charge number AR 379/2016.
[2] Prosecution notice lodged 11 January 2016, charge number AR 380/2016.
Mr Smart pleaded not guilty to the charges and stood trial between 13 and 14 May 2020.
On 15 May 2020, the magistrate convicted Mr Smart of the charges. The magistrate sentenced Mr Smart to 12 months' immediate imprisonment for the assault offence and 4 months' immediate imprisonment for the driving offence, to be served cumulatively with the 12-month head sentence, resulting in a total effective sentence of 16 months' imprisonment. The magistrate declined to make a parole eligibility order.
After the magistrate pronounced the lengths of the terms of imprisonment, the following exchange took place:[3]
[3] Reasons for decision ts 3 - 4 (15/5/2020).
HER HONOUR: … Senior Constable, is there a date for backdating?
[PROSECUTOR]: Just one moment while I just check that.
ACCUSED: My submission on the backdating is that I was taken into custody on these charges in May 2018 when I allegedly missed a court date, and any sentence would have to be backdated until that time when I was taken into custody in 2018 on these charges.
HER HONOUR: What's the date you say, Mr Smart?
ACCUSED: It was 14 June 2018 when I was taken into custody specifically on these charges, on the basis that I had missed a court date, which I don't accept, but that is what has landed me in custody on that day in June 2014, these charges specifically.
[PROSECUTOR]: I have no issue with that date, ma'am.
HER HONOUR: So 14 June?
[PROSECUTOR]: Yes, ma'am.
HER HONOUR: Okay. All right. So I direct that the sentence is taken to have begun on 14 June 2018.
Just prior to the conclusion of the sentencing the following further exchange took place:[4]
HER HONOUR: … Anything else, Senior Constable?
[PROSECUTOR]: No, ma'am, thank you.
HER HONOUR: Thank you. All right. So - - -
ACCUSED: Can I confirm that's a 12-month sentence with a cumulative four months on the top and it's backdated to June 2018?
HER HONOUR: Yes, that was the date that you gave me, and [the prosecutor] agreed.
ACCUSED: Thank you. No problem.
[4] Reasons for decision ts 6 (15/5/2020).
The magistrate accordingly backdated Mr Smart's sentence to commence on 14 June 2018. The effect of the backdating was that the sentence expired upon being imposed. Mr Smart was released later that day.
Grounds of appeal
The appellant filed a notice of appeal on 12 June 2020. The grounds of appeal are stated as follows:
1.The learned sentencing magistrate erred in fact or law or both by ordering that the terms of imprisonment imposed be taken to have begun on 14 June 2018, contrary to s 87(2) Sentencing Act 1995; a substantial proportion of the period between 14 June 2018 and the sentencing date having already been taken into account in sentencing for other offences.
2.Alternatively, the making of the above order gave rise to a miscarriage of justice.
The appellant submitted that due to other terms of imprisonment previously imposed in other matters, it was not open to the magistrate to backdate the sentence to any date earlier than 11 October 2019. It is submitted that Mr Smart misled the magistrate as to his time in custody. A term of 16 months' imprisonment without parole eligibility that commenced on 11 October 2019 would not have expired until 10 February 2021, almost nine months after Mr Smart was released.[5]
[5] Appellant's outline of submissions dated 25 May 2021 [8] (Appellant's Submissions).
In addition to orders allowing the appeal, the appellant seeks an order that the sentences imposed by the magistrate be set aside and remitted to the Magistrates Court for resentencing before Magistrate O'Donnell. The appellant also seeks an order that the Magistrates Court issue a warrant for the arrest of Mr Smart, pursuant to s 14(5)(b) of the Sentencing Act, to ensure his appearance in person at that resentencing.[6]
[6] Appellant's orders wanted dated 25 May 2021.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required for each ground of appeal.[7]
[7] Criminal Appeals Act 2004 (WA) s 9(1).
Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of success.[8] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum.[9]
[8] Criminal Appeals Act 2004 (WA) s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Court's powers on appeal
The discretion of this court to allow an appeal is sourced in s 14(1) of the Criminal Appeals Act, which provides:
(1)In deciding an appeal, the Supreme Court may do one or more of the following -
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court -
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
(f)make any order under the Magistrates Court Act 2004 section 36(6);
…
(h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction;
(i)make any other order it thinks fit.
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. Section 14(2) of the Criminal Appeals Act is a proviso to s 14(1).
A necessary, albeit not necessarily sufficient, condition of the application of the proviso is that the appellant's guilt was established beyond reasonable doubt.[10] The appellate court must make an independent assessment of whether, despite the error, guilt was proved beyond reasonable doubt on the admissible evidence at trial.[11] In doing so, the appellate court must make 'due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record'.[12]
[10] Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114 [54] (Kiefel CJ, Keane & Gleeson JJ); see also Nugawela v Devellerez [2022] WASC 190 [45], [48].
[11] Hofer v The Queen [62] (Kiefel CJ, Keane & Gleeson JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41].
[12] Weiss v The Queen [41].
In State appeals against sentence, it has been held that this court has a residual discretion to decline to allow an appeal notwithstanding error in the sentence imposed.[13] In its submissions, the appellant appears to have framed this residual discretion as distinct from the proviso in s 14(2).
[13] Cogan v Velkovski [2016] WASC 158 [11] - [12]; Cowie v Bacopak Pty Ltd [2022] WASC 14 [19] - [22].
To the extent that a residual discretion applies in appeals to this court, it arises from, and is accordingly limited by, the proviso in s 14(2). In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been if no error had been made in exercising the sentencing discretion at first instance.[14]
[14] Cowie [19] - [22].
The Sentencing Act
Section 87 of the Sentencing Act provides for the circumstances in which time on remand may be taken into account when an offender is sentenced. It relevantly provides:
(1)If when an offender is being sentenced to imprisonment for an offence -
(a)the offender has previously spent time -
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
Time in custody and the earlier sentences
The appellant comprehensively set out the details of Mr Smart's time in custody and his earlier sentences in its submissions. I accept that those submissions are an accurate statement of the backdating which should have occurred.
In addition, the appellant filed a chronology dated 1 June 2021 which appears with minor amendment as Annexure A to these reasons.
It is evident from the submissions and the chronology that the calculation of the backdating must have required hours of work and a very detailed assessment of various transcripts. That must have been a difficult task for experienced counsel from the ODPP. It would surely have been beyond the ken of an unrepresented defendant.
It is unnecessary to restate the appellant's submissions in full. I have instead summarised the submissions as follows.
Time in custody in respect of offences for which sentenced
In respect of the offences for which Mr Smart was sentenced on 15 May 2020, Mr Smart was on bail for these offences from 15 January 2016 until bail was refused on 14 June 2018, whereupon Mr Smart was remanded in custody without bail from 14 June 2018 to his sentencing on 15 May 2020.
The sentences for contempt of court
On 11 April 2019, Mr Smart was sentenced to a total effective sentence of 4 months' imprisonment by Magistrate Young,[15] being 2 months' imprisonment for a contempt offence committed on 18 December 2018,[16] to commence on the date of sentence, and 2 months' imprisonment cumulative for a contempt offence committed on 18 March 2019.[17] Magistrate Young reduced the sentence his Honour would have otherwise imposed on the contempt committed on 18 March 2019 from 3 months to 2 months to take into account, in a general sense, time spent in custody on other matters.[18]
[15] ts 21 (11/4/2019).
[16] Charge number PE 65840/2018.
[17] Charge number PE 13322/2019.
[18] ts 21 (11/4/2019).
On 8 May 2019, Mr Smart was sentenced to a further 2 months' imprisonment by Magistrate Maughan[19] for a contempt offence committed on 4 February 2019,[20] to be served cumulatively upon the 4 months' imprisonment imposed by Magistrate Young. Magistrate Maughan reduced the further sentence imposed by an unspecified amount for totality reasons, having regard to the sentences imposed by Magistrate Young.[21]
[19] ts 4 (8/5/2019).
[20] Charge number PE 5832/2019.
[21] ts 4 (8/5/2019).
Thus, pursuant to the sentences imposed on 11 April and 8 May 2019, the respondent was serving a total effective sentence of 6 months' imprisonment, without parole, between 11 April 2019 and 10 October 2019.
It is relevant to note that the Sentencing Act does not apply to sentences imposed for contempt.[22] Accordingly, there is no power for a court to backdate sentences imposed for contempt as the only power to sentence derives from s 87 the Sentencing Act.
The Commonwealth sentencing of 5 June 2019
[22] Sentencing Act 1995 (WA) s 3(a), s 3(b).
On 5 June 2019, Mr Smart was sentenced in the District Court by Lonsdale DCJ after trial to a total effective sentence of 10 months' imprisonment, backdated to 12 June 2018. This sentence comprised 3 months for the Commonwealth offence of using a carriage service in a menacing, harassing or offensive manner contrary to s 474.15(2) of the Criminal Code (Cth),[23] and 10 months for using a carriage service to make a threat to cause serious harm contrary to s 474.15(2) of the Criminal Code (Cth).[24] The sentences were to be served concurrently and were backdated to 12 June 2018. The sentence immediately expired upon having been imposed.[25]
[23] Charge number PE 16883/2018.
[24] Charge number PE 16884/2018.
[25] The total term effectively expired on 11 April 2019.
The parties ultimately agreed that the time in custody to be taken into account in sentencing Mr Smart was as follows:
(a)13 January 2017 ‑ 3 February 2017 (said to be 21 days but should have been 22 days including the start and end dates), being the period for which Mr Smart was in custody on the Commonwealth charges;[26]
(b)14 June 2018 ‑ 10 April 2019 (301 days), being the period between Mr Smart's return to custody and the commencement of the contempt sentences on 11 April 2019;
(c)30 April 2019 ‑ 4 June 2019 (36 days) being the period from conviction on the Commonwealth charges to the day before the sentencing date.[27]
[26] Albeit an earlier iteration of the charges as charge numbers PE 2592 - 2593/2017.
[27] ts 335 (5/6/2019).
Thus, the total period of time in custody which the parties invited the court to take into account for backdating purposes was 358 days, which resulted in a backdating date of 12 June 2018. Lonsdale DCJ agreed and backdated the sentence to that date accordingly.[28]
[28] Although the appellant questioned whether backdating to this extent was permissible, that sentence was not the subject of this appeal.
Lonsdale DCJ took into account the 6-month term of imprisonment imposed for the contempt offences.[29]
[29] ts 346 (5/6/2019).
During submissions as to whether there should be backdating of the Commonwealth sentences to reflect time in custody, Lonsdale DCJ relevantly observed:[30]
Well, if I decide that I should give him credit for the 300-odd days that he's spent in custody, the record can reflect that and if he is convicted of the assault occasioning bodily harm [being the first of the offences the subject of this appeal] if he's convicted and if he comes to be sentenced for that then the Magistrates Court will know that the time that he has spent in custody has been taken into account in respect of these offences.
…
And so he won't get double credit for time spent in custody.
[30] ts 331 (5/6/2019).
By the time Mr Smart was sentenced by the magistrate on 15 May 2020, all the time that he had spent in custody since the commission of the offences before the magistrate (in January 2016) until the commencement of his terms of imprisonment for contempt had already been taken into account in the sentencing before Lonsdale DCJ. Mr Smart then served the terms of imprisonment for contempt between 11 April 2019 and 10 October 2019.
It is unclear whether Mr Smart was on bail for the Commonwealth offences until 29 April 2019 or 2 May 2019.
In any event, he was on bail for the entire period from 14 June 2018 to 10 April 2019, that period having been taken into account in the Commonwealth sentencing.[31]
[31] As per [29(b)] above.
It thus follows that the basis on which that period was taken into account by Lonsdale DCJ in backdating Mr Smart's sentence was s 87(1)(a)(ii) of the Sentencing Act. This has implications for subsequent sentencing by operation of s 87(2) of the Sentencing Act.
Merits of the appeal
Ground 1 - Express error
By ground 1 the appellant contends that the magistrate erred in fact or law, or both, by backdating the sentence to 14 June 2018 when a substantial proportion of the period between that date and the date of sentencing had already been taken into account in sentencing by Lonsdale DCJ for the Commonwealth offences.
As noted above, in sentencing Mr Smart, Lonsdale DCJ took into account the period from 14 June 2018 to 10 April 2019.
The period that Mr Smart had spent in custody from 14 June 2018 to sentence on 15 May 2020 satisfies the terms of s 87(1)(a)(i) of the Sentencing Act as time spent in custody in respect of the offences for which the offender was being sentenced.
However, by s 87(2) of the Sentencing Act, s 87(1)(a)(i) does not apply if the time in custody had already been taken into account in sentencing for another offence under s 87(1)(a)(ii).
The appellant submitted that as the period from 14 June 2018 to 10 April 2019 could not, at law, have been taken into account in backdating the term of imprisonment imposed by the magistrate, the backdating of the sentence to that date by the magistrate was an error of law.[32]
[32] Appellant's Submissions [44].
In Debono v The State of Western Australia,[33] the sentencing judge took into account only 172 days of the 189 days available for backdating. His Honour did so because the prosecution had supplied erroneous information at sentencing. The Court of Appeal held that the sentencing judge did not err in proceeding on the basis of the unchallenged information before the sentencing court.[34]
[33] Debono v The State of Western Australia [2019] WASCA 193.
[34] Debono [38].
The appellant sought to distinguish the finding in Debono as to error on the basis that it would have been legally open for the sentencing judge in that case to backdate by a lesser period than that available under s 87 of the Sentencing Act because it is not mandatory to give credit for the entire period of time in custody.[35] The appellant submitted that by contrast, in this case, the magistrate backdated by a period significantly greater than that available, thus significantly exceeding the power to backdate contained in s 87.[36]
[35] Appellant's Submissions [45].
[36] Appellant's Submissions [46].
The magistrate acted on the basis of information as to backdating provided by Mr Smart and agreed to by the prosecution. The sentence was backdated on the basis of unchallenged information before the court. The magistrate did not err in proceeding on the basis of that unchallenged information.[37] I do not accept that the finding in Debono is distinguishable from this case.
[37] Debono [38].
The implied criticism of the magistrate in the appellant's submissions is without substance.[38] Courts are entitled to proceed on the basis that the information provided by the prosecutor in relation to sentencing is accurate. To require judicial officers to check every statement as to backdating would impose an unacceptable burden on the time and resources of courts.
[38] See, for example, [50] of the Appellant's Submissions.
Ground 1 is without merit and therefore leave to appeal is refused.
Ground 2 - Miscarriage of justice
By ground 2 the appellant alleges that the backdating by the magistrate gave rise to a miscarriage of justice.
In support of this ground, the appellant submitted that had the magistrate been aware of the sentences imposed on 11 April 2019, 8 May 2019 and 5 June 2019, her Honour would not only not have backdated the sentence with respect to the period 14 June 2018 to 10 April 2019, but further, in the exercise of her discretion, her Honour would not have backdated with respect to the period from 11 April 2019 to 10 October 2019, as Mr Smart was serving a sentence of imprisonment at that time for the contempt offences.[39]
[39] Appellant's Submissions [51].
The appellant relies heavily on Mr Smart's 'misleading submission' to the magistrate. It was submitted that had that submission not been made, or had it been corrected by the prosecutor, the magistrate would not have backdated the sentence earlier than 11 October 2019.[40]
[40] Appellant's Submissions [52].
The appellant contended that Mr Smart was 'self-evidently aware that a significant amount of that period had already been taken into account in the Commonwealth sentencing, and that he had then also been serving time for the contempt sentences'.[41]
[41] Appellant's Submissions [48].
The Court of Appeal in Debono held that the failure of the sentencing judge to take into account 17 days in backdating the appellant's sentences gave rise to a miscarriage of justice.[42]
[42] Debono [38] - [39].
The appellant submitted that the error in this case similarly gives rise to a miscarriage of justice, specifically, that the effective error of almost nine months in this case was self-evidently material and constituted a substantial miscarriage of justice.[43]
[43] Appellant's Submissions [52].
As noted earlier, I query whether Mr Smart necessarily understood the intricacies of sentence backdating, particularly where there are multiple offences, under multiple Acts and over different periods. In particular, it is unlikely that Mr Smart would have appreciated that sentences for contempt could not be backdated.
The appellant submitted that Mr Smart 'was well aware that all of his time in custody … had been "used" in previous sentencings'.[44] However, Mr Smart has not been cross‑examined about his understanding and the proposition that he actively misled the court has not been tested. I am not prepared to make my decision on the basis that Mr Smart actively misled the court.
[44] Appellant's Submissions [62].
The following factors are relevant to whether there was a miscarriage of justice:
(a)there was a significant error of law in the backdating process leading to a substantially lesser period in custody than might otherwise have been imposed;
(b)the calculation of the date to which the sentence should have been backdated was complex involving multiple offences and sentences;
(c)the prosecutor concurred in Mr Smart's statement as to the appropriate date to which the sentence was backdated;
(d)Mr Smart was unconditionally released at the conclusion of sentencing; and
(e) there was a long period between the offending (9 - 10 January 2016) the sentencing (15 May 2020) and the hearing of the appeal (1 June 2021).
The most significant factor is that Mr Smart has substantially underserved his sentence by a matter of months not weeks. The purpose of backdating is to reflect time served. If the backdating fails to reflect the time served but substantially overstates it then the purpose of s 87 of the Sentencing Act has not been met. It is also contrary to s 87(2) of the Sentencing Act.
The prosecutor concurred in the backdating. However, the reality is that the prosecutor had no clear idea of what the period of backdating should have been. The fact is that prosecutors in the Magistrates Court are under significant pressure. Although I do not accept that there is sufficient evidence to conclude that Mr Smart intended to mislead the court, it was his statement of the date that led to the confusion.
Mr Smart was unconditionally released at the conclusion of his sentencing. However, the longer the error the less important this is as a factor. A court might overlook an error of weeks but an error of months is far more significant.
Similarly, the delay between sentencing and the hearing of the appeal is of lesser significance the greater the error in backdating.
I have come to the conclusion that there has been a substantial miscarriage of justice and that it is appropriate that the appeal be allowed. To allow the respondent to avoid serving a significant part of the sentence imposed on him for serious offending due to an error in the backdating would be a substantial miscarriage of justice having regard to the factors set out at par 60.
Accordingly, leave to appeal is granted with respect ground 2 and the ground is upheld.
I am satisfied that the appellant has negated any reason to exercise the court's residual discretion to dismiss the appeal under s 14(2) of the Sentencing Act.
Orders
I accordingly make the following orders:
(1)Leave to appeal is refused on ground 1.
(2)Leave to appeal is granted on ground 2.
(3)The appeal is allowed.
(4)The sentences imposed on 15 May 2020 be set aside.
(5)The matters be remitted to the Magistrates Court of Western Australia for resentencing before O'Donnell SM according to law.
I am not prepared to issue a warrant for the arrest of Mr Smart in terms of the order sought by the appellant. Despite the difficulties of service, Mr Smart should at least be given the opportunity to respond to a summons without the exercise of the coercive powers of a warrant for his arrest.
ANNEXURE A
CHRONOLOGY OF EVENTS
| DATE | EVENT |
| 31 July 2014 | Mr Smart is released from prison from earlier unrelated terms of imprisonment. He does not return to custody until 13 ‑ 14 January 2017. |
| 9 January 2016 | Mr Smart commits the assault occasioning bodily harm offence (AR 379/2016), the subject of this appeal (the assault offence). |
| 10 January 2016 | Mr Smart commits the dangerous driving offence (AR 380/2016), the subject of this appeal (the driving offence). |
| 11 January 2016 | Mr Smart is charged and bailed with respect to the offences the subject of this appeal. |
| 8 January 2017 | Mr Smart commits the use carriage service offences for which he is ultimately sentenced by Lonsdale DCJ on 5 June 2019. (the Commonwealth charges/offences). |
| 13 January 2017 | Mr Smart is arrested and charged by police with the Commonwealth charges. He is denied police bail. |
| 14 January 2017 | Mr Smart is denied bail by the Magistrates Court on the Commonwealth charges (then PE 2592 - 2593/2017). He remains in custody on these charges until bailed on 3 February 2017. |
| 3 February 2017 | Mr Smart is granted bail on the Commonwealth charges (then PE 2592 ‑ 2593/2017) and as a result leaves custody. |
| 2 November 2017 | The Commonwealth charges change from PE 2592 ‑ 2593/2017 to PE 59571 ‑ 59575/2017. Mr Smart remains on bail. |
| 6 April 2018 | The Commonwealth charges change again from PE 59571 ‑ 59575/2017 to their final iteration as PE 16882 ‑ 16886/2018. Mr Smart remains on bail. |
| 14 June 2018 | Mr Smart is refused a renewal of bail on the original assault and driving charges as well as other unrelated offences (but continues to have bail on the Commonwealth offences). He re‑enters custody and remains in custody for various reasons until 15 May 2020, when he is sentenced in the sentencing now appealed. |
| 17 August 2018 | Bail continues on the Commonwealth charges (but Mr Smart remains in custody on AR 379 ‑ 380/2016 and other charges). |
| 24 August 2018 | Bail continues on the Commonwealth charges (but Mr Smart remains in custody on AR 379 - 380/2016 and other charges). |
| 7 September 2018 | Bail continues on the Commonwealth charges (but Mr Smart remains in custody on AR 379 - 380/2016 and other charges). |
| 12 October 2018 | Bail continues on the Commonwealth charges (but Mr Smart remains in custody on AR 379 - 380/2016 and other charges). |
| 18 December 2018 | During sentencing for an unrelated matter that attracted a fine, Mr Smart commits a contempt before Magistrate Young for which he is later sentenced on PE 65840/2018 on 11 April 2019. |
| 25 January 2019 | Bail remains on the Commonwealth charges (but Mr Smart remains in custody on AR 379 - 380/2016 and other charges). |
| 4 February 2019 | During sentencing for an unrelated matter that attracted a fine, Mr Smart commits a contempt before Magistrate Maughan for which he is later sentenced on PE 5832/2019 on 8 May 2019. |
| 8 March 2019 | Bail remains on the Commonwealth charges (but Mr Smart remains in custody on AR 379 - 380/2016 and other charges). |
| 18 March 2019 | During a hearing with respect to the contempt committed on 18 December 2018, Mr Smart commits a further contempt before Magistrate Young for which he is later sentenced on PE 13322/2019 on 11 April 2019. |
| 11 April 2019 | Mr Smart is sentenced by Magistrate Young with respect to the two contempt charges on 18 December 2018 (PE 65840/2018) and 18 March 2019 (PE 13322/2019) to 4 months' imprisonment commencing on 11 April 2019. |
| 30 April 2019 | Mr Smart is convicted of the Commonwealth offences (specifically PE 16883 ‑ 16884/2018) after trial before Lonsdale DCJ. It is unclear whether bail is revoked on this date on the Commonwealth charges or instead on 2 May 2019 (but in any event Mr Smart remains in custody on AR 379 ‑ 380/16 and other charges, and as a sentenced prisoner for the contempt offences). |
| 2 May 2019 | Mr Smart is acquitted on some other Commonwealth offences, but Lonsdale DCJ expressly revokes bail. In any event, Mr Smart remains in custody on AR 379 ‑ 380/2016 and other charges, and as a sentenced prisoner for the contempt offences. |
| 8 May 2019 | Mr Smart is sentenced by Magistrate Maughan with respect to the contempt on 4 February 2019 (PE 5832/2019) to 2 months' imprisonment cumulative upon the 4 months imposed by Magistrate Young. |
| 5 June 2019 | Mr Smart is sentenced by Lonsdale DCJ on the Commonwealth offences to 10 months' imprisonment backdated to 12 June 2018. The term thus immediately expired effective 11 April 2019. He remains in custody as a sentenced prisoner for the contempt offences. |
| 5 July 2019 | Mr Smart makes a bail application before Curthoys J (approximately his fifth such application) with respect to AR 379 ‑ 380/2016. Bail is refused. |
| 11 October 2019 | The sentences for contempt expiring at the end of 10 October 2019, Mr Smart is from this day in custody only with respect to AR 379 ‑ 380/2016. Backdating to this date would have been appropriate. |
| 19 ‑ 24 December 2019 | Mr Smart makes a bail application before Derrick J with respect to AR 379 ‑ 380/2016. Notwithstanding that these charges are now the only reason Mr Smart is in custody, bail is refused. |
| 15 May 2020 | Sentencing before Magistrate O'Donnell on AR 379 ‑ 380/2016. This sentencing is the subject of this appeal. As the sentence of 16 months' imprisonment is backdated to 14 June 2018, Mr Smart is immediately released. |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
26 JULY 2022
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