Ugle v Director of Public Prosecutions (WA) - [2025] WASC 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   UGLE -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2025] WASC 114
CORAM:   PALMER J
HEARD:   31 MARCH 2025
DELIVERED          :   10 APRIL 2025
FILE NO/S:   SJA 1004 of 2025
BETWEEN:   TORI JOSEPHINE UGLE
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
For File No:   SJA 1004 of 2025
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE COLEMAN
File Number            :   AR 17188 - 17191/2023; PE 23195/2023; PE 23205/2023; PE 27979/2023; PE 50212/2023; PE 1707 - 1710/2024; PE 3522/2024; PE 4807/2024; PE 4808/2024; PE 4809/2024; PE 4810/2024; PE 4974/2024; PE 8098/2024; PE 8112/2024; PE 8334/2024; PE 8347 - 8348/2024 & PE 16043/2024;

Catchwords:

Criminal appeal - Appeal against immediate term of imprisonment - Whether Magistrate took into Bugmy principles and submissions made about domestic abuse - Whether sentence for an offence of criminal damage manifestly excessive

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Investigation (Identifying People) Act 2002 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time in which to appeal granted
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr P X Tobin
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Corpus v Roseveare [2015] WASC 165
Edgill v Stilwell [2016] WASC 246
Hill v Director of Public Prosecutions (WA) [2023] WASC 437
Howlett v Hesp [2012] WASC 351
Kabambi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2024] WASCA 116
Lloyd v R [2022] NSWCCA 18
Ozan v The State of Western Australia [2013] WASCA 27
Phelps v Standen [2020] WASC 459
R v Hawkins; R v Garland (Sentence) [2024] NSWSC 80
SAL v The State of Western Australia [2021] WASCA 192
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SYO v The State of Western Australia [2024] WASCA 31
The State of Western Australia v DRN [2025] WASCA 45
The State of Western Australia v LZR [2025] WASCA 46
Ward v The State of Western Australia [2011] WASCA 172

PALMER J:

Introduction

On 13 October 2023, the appellant (Ms Ugle) was convicted following guilty pleas to 19 charges in the Perth Magistrates Court. The sentences imposed by Magistrate Johnston included:
(a)a 6 month term of imprisonment for common assault contrary to s 313(1)(b) of the Criminal Code (WA), conditionally suspended for 10 months from 13 October 2023; and
(b)a 4 month term of imprisonment for possession of stolen or unlawfully obtained property, contrary to s 417(1) of the Criminal Code (WA), to be served cumulatively, also conditionally suspended for 10 months from 13 October 2023.
Ms Ugle failed to comply with the conditions of the conditionally suspended terms of imprisonment. She also committed further offences.
On 12 June 2024, Ms Ugle was convicted following guilty pleas to a further 24 charges in the Perth Magistrates Court (including charges related to her breach of the conditions of the conditionally suspended terms of imprisonment). The sentences imposed by Magistrate Coleman included:
(a)a 4 month term of immediate imprisonment for trespass contrary to s 70A of the Criminal Code (WA), backdated to commence on 25 January 2024 (which was one of the new charges and the head sentence);
(b)a 6 month term of immediate imprisonment for criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) (which was also a new charge), backdated to 25 January 2024 and to be served cumulatively;
(c)a 6 month term of immediate imprisonment for the breach of the conditionally suspended imprisonment order for common assault imposed on 13 October 2023, to be served cumulatively; and
(d)a 4 month term of immediate imprisonment for the breach of the conditionally suspended imprisonment order for possession of stolen or unlawfully obtained property imposed on 13 October 2023, to also be served cumulatively.
Ms Ugle now wishes to appeal the sentences imposed by Magistrate Coleman. She maintains that in imposing the sentences that her Honour did, she failed to take into account various relevant matters and that the sentence that she imposed for criminal damage was manifestly excessive. Ms Ugle requires both leave to appeal and an extension of time in which to appeal.

The time for Ms Ugle to commence an appeal should be extended

This appeal is made pursuant to the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). Section 10(3) of the Criminal Appeals Act provides that an appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
Magistrate Coleman sentenced Ms Ugle on 12 June 2024. This appeal was not commenced until 8 January 2025.
The delay in commencing the appeal was explained in an affidavit filed by Ms Ugle's counsel, Mr Tobin.[1] Mr Tobin explained that:
(a)Ms Ugle had not received any legal advice about the possibility of an appeal after Magistrate Coleman sentenced her and she did not receive any such advice until late 2024; and
(b)when Mr Tobin was instructed to file appeal papers for Ms Ugle in late 2024, his personal circumstances delayed his ability to file those papers until January 2025.
[1] Affidavit of Paul Xavier Tobin Sworn 7 January 2025.
The delay in commencing this appeal has been explained. I am satisfied that it is in the interest of justice to extend the time within which to commence the appeal.

The sentencing before Magistrate Johnston on 13 October 2023

The sentencing submissions made

As I have mentioned, on 13 October 2023 Ms Ugle entered guilty pleas to 19 charges before Magistrate Johnston. Those charges consisted of:
(a)three counts of the breach of a CBO;
(b)three counts of the breach of a bail undertaking;
(c)one count of common assault contrary to s 313(1)(b) of the Criminal Code (WA);
(d)one count of gaining a benefit by fraud, contrary to s 409(1)(c) of the Criminal Code (WA);
(e)one count of giving false personal details to a public officer contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA);
(f)one count of breaching a CRO, or community based order, without reasonable excuse, contrary to s 131(1) of the Sentencing Act 1995 (WA);
(g)two counts of the possession of a prohibited drug contrary to s 6(2) of the Misuse ofDrugs Act 1981 (WA);
(h)two counts of the possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA);
(i)one count of stealing a motor vehicle (as defined in s 371A of the Criminal Code (WA)) contrary to s 378 of the Criminal Code (WA);
(j)one count of stealing contrary to s 378 of the Criminal Code (WA); and
(k)three counts of trespassing on a place without lawful excuse contrary to s 70A(2) of the Criminal Code (WA).
Ms Ugle was represented by counsel from the Aboriginal Legal Service, Ms Olson, who made sentencing submissions on her behalf.
Ms Olson accepted that the common assault and the stealing were serious, that the offending involved violence and there was a child present. She submitted that Ms Ugle's actions were senseless and that she was under the influence of methamphetamine at the time of the offending.
Ms Olson submitted that the year prior to Ms Ugle's offending had been a difficult one for her because she had had two children removed by the Department of Community Protection. Ms Olson argued that Ms Ugle's antisocial behaviour and drug use were linked to the removal of her children.
Ms Olson submitted that Ms Ugle's offending was motivated by her drug addiction and that the addiction was triggered by traumatic instances in her life. She argued that Ms Ugle used methamphetamine to cope with a difficult home environment and turned to drugs when things got hard.
Ms Olson submitted that Ms Ugle had not been prepared to discuss too much of her past with Ms Olson but that the Aboriginal Legal Service files indicated that Ms Ugle grew up in an environment where there was violence perpetrated on her mother by her father. She submitted that Ms Ugle's father was often incarcerated and had substance abuse issues.
Ms Olson submitted that Ms Ugle had previously been in relationships that involved violence. She noted that there was a gap in Ms Ugle's criminal record between 2013 and 2018 and submitted that during this period Ms Ugle was not using drugs and focusing on being a parent.
Ms Olson submitted that Ms Ugle's drug misuse went back to her youth when she was trying to leave home because of difficulties there and she spent time with antisocial peers on the streets. She argued that although self-induced intoxication is not ordinarily a mitigating factor, it can be where it can be linked to an offender's deprived upbringing, consistent with the principles in Bugmy v The Queen.[2] She submitted that there was a link between Ms Ugle's difficult upbringing and her drug use.
[2] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
Ms Olson argued that Ms Ugle had significant loss in her life, as her grandmother who had helped raised her had passed away and her criminal record started from there.
Ms Olson accepted that it was open to Magistrate Johnston to impose a term of immediate imprisonment for the more serious offences but submitted that her Honour should impose a suspended term of imprisonment. She contended that Ms Ugle had never had the opportunity of a suspended term of imprisonment before and she thought that this would provide a significant motivating factor.
Magistrate Johnston observed that the common assault occurred at 4.00 am in the morning after Ms Ugle had stolen some cigarettes from a car and when the car owner intervened, she had been assaulted. She observed that it was lucky that Ms Ugle had not been charged with robbery. Her Honour said that it was a serious type of common assault, committed in the early hours of the morning following a brazen robbery and the victim had been vulnerable.
With regard to the removal of Ms Ugle's children, Magistrate Johnston observed that this would have been very traumatic but it occurred towards the end of the period for which she was sentencing Ms Ugle.
Magistrate Johnston noted, however, that while a term of imprisonment would be open, she was not convinced that it was the only appropriate sentence.
The prosecution submitted that a term of immediate imprisonment should be imposed for the common assault, breach of bail, trespass and fraud and emphasised the need for specific and general deterrence. The prosecution expressed concern about whether Ms Ugle would comply with a community based order, given her history of breaching orders.

Magistrate Johnston's sentencing remarks

Magistrate Johnston considered that Ms Ugle was entitled to a 25% discount for her early pleas of guilty.
Magistrate Johnston observed that the most serious offence was the common assault. Her Honour said that while the offending was not at the highest end of the scale, it was not at the lower end of the scale either. Her Honour observed that it occurred in the early hours of the morning, the victim was isolated and therefore vulnerable and the assault occurred after taking property from the victim's car in a blatant manner. Her Honour observed that rather than walking away, Ms Ugle confronted the victim.
Magistrate Johnston observed that Ms Ugle scratched the victim's arm and spread her fingers around the victim's neck, although she did not impede her breathing. Her Honour observed that the victim threw an esky at Ms Ugle and Ms Ugle threw it back together with another item, hitting the victim in the head and index finger.
Magistrate Johnston observed that Ms Ugle's offending had been largely for dishonesty offences up to that time. Her Honour indicated that she accepted that this offending was related to Ms Ugle's drug use which was in turn related to the significant difficulties that she had had in her life.
Magistrate Johnston indicated that she accepted that the removal of Ms Ugle's children had caused her trauma and resulted in further drug use.
Magistrate Johnston said that Ms Ugle's other offending was largely consistent with her record for dishonesty offences. Her Honour observed that given Ms Ugle's history of committing such offences, the sentence that she imposed needed to send a strong message of personal deterrence.
Magistrate Johnston observed that Ms Ugle's offending was made worse by the fact that she was subject to an order for earlier dishonesty offences.
Magistrate Johnston said that the trespass offences seemed to be instances of looking for property. Her Honour said that they were serious examples of trespass and the offending might well have had an ongoing impact on the victim.
Magistrate Johnston said that the charges of possession of stolen, or unlawfully obtained property, were also serious examples of the offence. Her Honour observed that a message needed to be sent to Ms Ugle and the community because it was easy to get access to credit cards or their details. Her Honour observed that it was gravely concerning that Ms Ugle had six cards.
Magistrate Johnston observed that she was positively satisfied that in relation to the two offences of possession of stolen or unlawfully obtained property, the common assault and the trespass, that a term of imprisonment was the only appropriate sentence despite the mitigating factors.
Magistrate Johnston observed that she could not sentence Ms Ugle to serve a term of immediate imprisonment unless she was satisfied that that was the only appropriate sentence. Her Honour indicated that she was not satisfied that that was the case given there was a prospect of Ms Ugle's rehabilitation. Her Honour observed that Ms Ugle's children provided motivation for her to rehabilitate herself.
Magistrate Johnston then imposed the conditionally suspended terms of imprisonment that I have already mentioned. Her Honour also imposed three further 3 month conditionally suspended terms of imprisonment for the trespass and possession of stolen or unlawfully obtained property offences, also conditionally suspended for 10 months from 13 October 2023, to be served concurrently. Her Honour imposed fines, or made no orders, in relation to the other offences committed.

The sentencing before Magistrate Coleman on 12 June 2024

The sentencing submissions made by counsel

As I have mentioned, on 12 June 2024 Ms Ugle entered guilty pleas to 19 charges before Magistrate Colman. Those charges consisted of:
(a)eight counts of breach of a conditionally suspended imprisonment order;
(b)one count of breach of a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA);
(c)one count of criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code (WA);
(d)four counts of gaining a benefit by fraud contrary to s 409(1)(c) of the Criminal Code (WA);
(e)two counts of giving false personal details to police contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA);
(f)seven counts of stealing contrary to s 378 of the Criminal Code (WA); and
(g)one count of trespass contrary to s 70A(2) of the Criminal Code (WA).
Ms Ugle was again represented by counsel from the Aboriginal Legal Service, Ms Lees.
Magistrate Coleman was provided with a transcript of the hearing before Magistrate Johnston. The prosecutor also read the facts of the original offences.
Ms Lees submitted that Magistrate Johnston had commented that Ms Ugle had not reached the point where an immediate term of imprisonment was required and recognised that her offending was related to her drug use stemming from trauma and the significant difficulties that she has faced in her life thus far.
Ms Lees submitted that Magistrate Johnston pointed to a cycle of drug use and offending and noted that Ms Ugle's prior offending had largely been for dishonesty type offences, such as the matters then before the court.
Ms Lees submitted that Ms Ugle was in a relationship of coercive control in which her partner was pressuring Ms Ugle to join him in this kind of offending to acquire money for their drug use. She submitted that Ms Ugle was unable to engage with the order for the same reason.
Ms Lees accepted that Ms Ugle committed further offences not long after the imposition of the order and Magistrate Coleman observed that Ms Ugle did not last four weeks. Ms Lees submitted that this was due to her drug addiction and the family violence that she was suffering at that time.
Ms Lees submitted that Ms Ugle had never been sentenced to a term of immediate imprisonment and she had spent almost 5 months in custody. She contended that it had been a real 'eye-opener' for Ms Ugle.
Ms Lees submitted that Ms Ugle was still a young person and had faced some particularly difficult circumstances in her life. She submitted that Ms Ugle had five children who were cared for by family members, or foster carers. Ms Lees contended that Ms Ugle wanted to work towards reunification with her children and that was her motivation.
Ms Lees submitted that Ms Ugle's father was in and out of prison while she was growing up. She submitted that Ms Ugle was abused by her uncle when she was 12 years old and when she told her family, some family members did not believe her. She submitted that Ms Ugle had said that this had a significant impact on her mental health and caused her to enter a downward spiral of shame.
Ms Lees submitted that when Ms Ugle left school in year 10 she began associating with a negative peer group and started smoking and taking methamphetamine and cannabis as a coping mechanism. She contended that Ms Ugle's life then went downhill. She submitted that Ms Ugle was overwhelmed and struggling with personal issues.
Ms Lees submitted that Ms Ugle wished to seek employment on her release and had put her name down for drug and alcohol counselling.
Ms Lees submitted that the time in custody had done Ms Ugle good and she felt like she had a clear mind. She argued that given the relatively low value of the items, the time she had already spent in prison, the mitigating factors 'and taking into account the Bugmy principles' the matter could be dealt with by way of fines. She contended that the Magistrate might otherwise make an order that permitted Ms Ugle to remain in the community.
Magistrate Coleman observed that Ms Ugle was given that opportunity on 13 October 2023 but failed to take it. Ms Lees acknowledged that was the case but submitted that she had provided the reasons why Ms Ugle had failed to do so. The Magistrate responded that she heard those reasons but did not consider them acceptable.

Magistrate Coleman's sentencing remarks

In sentencing Ms Ugle, Magistrate Coleman again observed that Magistrate Johnston had given Ms Ugle an opportunity on 13 October 2023 but she did not take up that opportunity and showed no commitment whatsoever.
Magistrate Coleman referred to Ms Lees' submission that the stealing offences were low level and said that the people who had their cars broken into and trespassed on would not have felt that. She also noted that the offending was similar to that the subject of the conditional suspended imprisonment order.
Magistrate Coleman commented that the only thing in Ms Ugle's favour was that she had not assaulted anyone. Her Honour observed that it was a difficult thing to remove oneself from a domestic violence relationship and commended Ms Ugle for doing so. Her Honour also expressed hope that Ms Ugle would commit to not taking drugs and alcohol.

Magistrate Coleman commented that Ms Ugle had remained entrenched in abusive relationships because of substance abuse. Her Honour observed that Ms Ugle must break the cycle and she had been given that opportunity by Magistrate Johnston 'because of [her] tragic upbringing and the problems' that Ms Ugle had in her life.
Magistrate Coleman observed that Ms Ugle did not take the opportunity she had been given and in considering whether to give her another opportunity she needed to consider whether she was going to take up that opportunity. Her Honour observed that there was nothing before her that persuaded her that Ms Ugle was going to do so.
Magistrate Coleman then indicated that she would trigger the conditionally suspended imprisonment orders. Her Honour observed that Ms Ugle had made no meaningful commitment to the previous orders and she was not persuaded that Ms Ugle would do so if she made further orders.
Magistrate Coleman indicated that she had discounted the sentences she imposed on the fresh offences by 20% because of Ms Ugle's guilty plea.
Magistrate Coleman indicated that she took into account that she could not backdate the suspended imprisonment term and this was relevant to totality.
Magistrate Coleman then imposed the terms of immediate imprisonment for the trespass and criminal damage offences that I have already mentioned. Her Honour also imposed:
(a)a 4 month term of immediate imprisonment, backdated to 25 January 2024, for each of the four counts of gaining a benefit by fraud, to be served concurrently; and
(b)a 3 month term of imprisonment for breach of the conditionally suspended imprisonment orders, to be served concurrently from 12 June 2024.
Magistrate Coleman imposed fines for the balance of the offences.

The legal principles governing this appeal

Under the Criminal Appeals Act, a sentence imposed by the Magistrates Court may be appealed to the Supreme Court[3] on the grounds that the Magistrates Court:
(a)made an error of law or fact, or of both law and fact;[4]
(b)imposed a sentence that was excessive;[5] or
(c)there has been a miscarriage of justice.[6]
[3] Criminal Appeals Act s 6(f) and s 7(1).
[4] Criminal Appeals Act s 8(1)(a)(i).
[5] Criminal Appeals Act s 8(1)(a)(iii).
[6] Criminal Appeals Act s 8(1)(b).
Leave to appeal is required for each ground.[7] An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act.
[7] Criminal Appeals Act s 9(1).
Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[8] meaning that the ground is required to have a rational and logical prospect of succeeding.[9] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[10]
[8] Criminal Appeals Act s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[10] Criminal Appeals Act s 9(3).
A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[11] 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.[12]
[11] Sami v Duggan [2011] WASC 304 [38].
[12] Criminal Appeals Act s 14(2).
The general principles that error should be inferred on the basis that an individual sentence is manifestly excessive are well established and were relevantly summarised by the Court of Appeal in Kabambi v The State of Western Australia[13] in the following terms:[14]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances
…
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
[13] Kabambi v The State of Western Australia [2019] WASCA 44 (Kabambi) See also: The State of Western Australia v LZR [2025] WASCA 46 [60] and The State of Western Australia v DRN [2025] WASCA 45 [30].
[14]Kabambi [21].

Ms Ugle's grounds of appeal

At the hearing of the appeal, I granted Ms Ugle leave to amend her grounds of appeal to the following:
(a)the sentencing Magistrate erred by failing to make findings in relation to the operation of the principles in Bugmy and/or the evidence giving rise to the application of those principles (Ground 1);
(b)the sentencing Magistrate erred in not taking into account and giving weight to mitigation asserted by the appellant that she was in a domestic violence relationship and was being coerced into offending by her abusive partner who was violent towards her (Ground 2); and
(c)the sentence of 6 months immediate imprisonment for criminal damage was manifestly excessive taking into account all matters relevant to the sentencing exercise (Ground 3).
Grounds 1 and 2 allege express errors in that it is alleged that Magistrate Coleman mistook the facts and sentenced Ms Ugle on the wrong basis.
Ground 3 alleges an implied error in that it is alleged that the sentence imposed was so unreasonable, or unjust, that I should conclude that a substantial wrong has occurred.
Ms Ugle's original grounds of appeal also alleged that the 4 month term of immediate imprisonment imposed by Magistrate Coleman for trespass was manifestly excessive. The amendment of the grounds of appeal had the effect of abandoning that ground of appeal.
It is convenient to address Grounds 2 and 3 before turning to consider Ground 1.

Ground 2

Ms Ugle's submissions in support of the appeal

Ground 2 is that Magistrate Coleman erred in not taking into account and giving weight to mitigation asserted by Ms Ugle that she was in a domestic violence relationship and was being coerced into offending by her abusive partner who was violent towards her.
Ms Ugle submitted that Magistrate Coleman fell into error by giving no weight and making no reference to the mitigatory fact that Ms Ugle was being coercively controlled by her partner.
Ms Ugle submitted that the fact that she was being coercively controlled by a domestic violence perpetrator to offend to fund a cycle of addiction was a mitigating factor. It was submitted that the relevant facts were not challenged by the prosecution and no notice was given by the Magistrate that the assertion of coercion, pressure and domestic violence was not going to be accepted as mitigation in sentence. It was submitted that it was therefore an express error for the Magistrate not to give this factor weight as a mitigating factor.
Ms Ugle referred to provisions in the Evidence Act 1906 (WA) that acknowledge the impact that domestic violence has on victims and more generally to the impact of domestic violence on First Nations women.

The Director's submissions

The Director submitted that it was not expressly asserted before Magistrate Coleman that Ms Ugle was coerced by threats of violence or otherwise into the offending for which she was sentenced.
The Director referred to the Court of Appeal's decision in Ozan v The State of Western Australia[15] and contended that where an offender submits that they were under duress or a threat (falling short of the legal defence of duress) to commit an offence, the onus is on the defendant to satisfy the sentencing Magistrate, on the balance of probabilities, that the offence was committed under duress or threat. The Director contended that the submissions made lacked specificity.
[15] Ozan v The State of Western Australia [2013] WASCA 27.
The Director accepted that Ms Ugle was in a violent relationship at the time of the offending and that the pressure she faced from her partner to offend was a relevant personal circumstance for the purposes of sentencing. The Director submitted that the Magistrate took these matters into account and relied on comments made by Magistrate Coleman when her Honour sentenced Ms Ugle.

Whether Ground 2 has merit

Although Ms Ugle's submissions on the appeal referred to her being 'coerced into offending', it was not submitted to Magistrate Coleman that Ms Ugle was 'coerced' by threats of violence. Rather, what was submitted was that Ms Ugle was in a relationship of 'coercive control' and was being 'pressured'. It was that Ms Ugle:[16]
…was caught in a cycle of meth addiction and there was a relationship of coercive control whereby her partner was pressuring her to join him in this kind of offending to acquire money and goods for his own drug habit as well as hers and that she was also unable to engage on the order for the same reason...
[16] Transcript 12.06.24, ts 17.
A review of Magistrate Coleman's sentencing remarks does not suggest that she mistook the facts and sentenced Ms Ugle on the wrong basis.
Indeed, Ms Ugle's relationship assumed some prominence in her Honour's sentencing remarks. Her Honour expressly addressed Ms Ugle's relationship, the domestic violence that she had suffered and commended Ms Ugle for the changes that she had made in her life. Her Honour observed that Ms Ugle's involvement in the relationship arose out of Ms Ugle's entrenched methamphetamine addiction and that Ms Ugle needed to address that addiction if she was to rehabilitate herself and reunite with her children.[17]
[17] Transcript 12.06.24, ts 20 - 21.
I am satisfied that her Honour considered the submissions made. While her remarks were brief, they were given ex tempore in a busy court. I do not consider that Ground 2 has a reasonable prospect of succeeding and I would refuse leave to appeal on that ground.

Ground 3

Ms Ugle's submissions in support of the appeal

Ground 3 is that the sentence of 6 months immediate imprisonment imposed by Magistrate Coleman for the criminal damage offence was manifestly excessive, taking into account all matters relevant to the sentencing exercise.
Ms Ugle referred to the circumstances of the relevant charge and submitted that:
(a)she was punished for the stealing offence and received a fine;
(b)she made full admissions to the arresting officers; and
(c)there was no monetary value stipulated for the damage caused, meaning that it should be assumed that that value was low.
Ms Ugle submitted that as she was separately punished for the stealing offence, she should not be punished twice for the stealing with a more severe sentence for the criminal damage.
Ms Ugle referred to two other cases involving criminal damage to windows: Hill v Director of Public Prosecutions (WA)[18] and Phelps v Standen[19] and submitted that in those cases, terms of imprisonment were set aside on appeal and substituted with fines. Ms Ugle submitted that the offending in Hill was objectively more serious than the circumstances of Ms Ugle's case.
[18] Hill v Director of Public Prosecutions (WA) [2023] WASC 437.
[19] Phelps v Standen [2020] WASC 459.
Ms Ugle submitted that the sentence of 6 months for damaging a car window with no quantum of damage was severe, taking into account the circumstances of the offending and her personal circumstances.

The Director's submissions

The Director submitted that the 6 month sentence imposed was within the available range.
The Director accepted that it was not the most serious example of its kind but argued that it was characterised by some concerning features. He argued that it involved the violation of the victim's personal property rights, must have involved an element of premeditation and was committed while Ms Ugle was subject to a conditionally suspended imprisonment order for a similar offence.
The Director disputed that the offending in Hill was objectively more serious. He argued that Hill could be distinguished because:
(a)Ms Ugle's case involved offending to facilitate theft, while Hill involved damage caused in a fit of rage;
(b)Mr Hill:
(i)received a 25% discount for his guilty plea, while Ms Ugle only received a 20% discount;
(ii)was able to rely upon the existence of mitigating factors including depression arising from a recent bereavement and good prospects of rehabilitation; and
(iii)faced a single charge; and
(c)the option of a suspended term of imprisonment remained open and Mr Hill had already served half of his sentence by the time the appeal was determined.
The Director contended that Phelps could be distinguished because the offending in that case was spontaneous and committed in anger after Mr Phelps had been assaulted. It was submitted that Mr Phelps received a 25% discount for his guilty plea and his personal circumstances were favourable, he had saved money to pay a compensation order, gained employment while on bail and engaged in alcohol and drug rehabilitation by the time the appeal was heard.
The Director referred to Edgill v Stilwell[20] where Le Miere J rejected a submission that an individual sentence of 6 months imprisonment (where a car window was broken to steal a jacket) was manifestly excessive. He also referred to a decision of Hall J in Howlett v Hesp.[21]

Whether Ground 3 has merit

[20] Edgill v Stilwell [2016] WASC 246 [25].

[21] Howlett v Hesp [2012] WASC 351.

The circumstances in which Ms Ugle committed the criminal damage offence were that Ms Ugle was in a car park on Beaufort Street in Perth when she approached various parked cars and threw a small object through the window of one of the cars, breaking the window. She then took a backpack out of the car and rode away on the bicycle. The incident was caught on CCTV. Ms Ugle made full admissions to the Police when she was arrested.
The statutory maximum penalty for the offence of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) is 10 years imprisonment. The summary conviction penalty is 3 years imprisonment and a fine of $36,000.[22]
[22] Criminal Code (WA) s 444(1).
Ms Ugle was born in 1995 and was 28 when she was sentenced by both Magistrates, although she was younger when she committed some of the offences for which Magistrate Johnston imposed fines.
Ms Ugle has a lengthy criminal record which commenced when she was 16 and includes disorder offences, obstruction, stealing, trespass, assault, drug possession, gaining benefits by fraud, giving false details and breaching bail or orders. She has previously been sentenced to terms of imprisonment in the District Court and the Magistrates Court in 2019 and 2020.
There is no tariff for offences of criminal damage because of the great variation in the facts and circumstances of these offences.[23]
[23] Ward vThe State of Western Australia [2011] WASCA 172 [84] (Buss JA); Corpus v Roseveare [2015] WASC 165 [50] (Hall J).
In Howlett v Hesp,[24] the offender received a total effective sentence of 12 months immediate imprisonment for four charges of criminal damage, one offence of aggravated burglary, two offences of trespass, one offence of stealing and one offence of possession of cannabis.
[24] Howlett v Hesp [2012] WASC 351.
The criminal damage offences involved three different incidents during which the appellant painted graffiti tags and expletives on private property over a 4 month period. The Magistrate imposed terms of immediate imprisonment of between 1 month and 6 months and made one of the terms of 6 months imprisonment cumulative. The estimate for the damage caused by the offender was $9,200 in relation to one of the offences and $448 in relation to another.
Hall J considered that the criminal damage did not fall into the category of minor offences as there were three separate incidents over four months, there was an element of planning involved, the conduct would have taken some time and each offence involved breaching property rights.
Hall J considered that there were insufficient comparable cases to determine a range of sentences for this type of offending but he observed that a sentence of 6 months imprisonment would not appear to be inappropriate for offences of this level of seriousness. His Honour concluded that the sentences might have been thought to be severe but that did not mean that they were excessive.
In Edgill v Stilwell,[25] like the present case, the criminal damage involved the smashing of a car window. The appellant had approached a locked vehicle in a parking bay, smashed a rear passenger window and stolen a jacket. He later discarded the jacket. There was no evidence of the value of the damage. The Magistrate imposed a sentence of 6 months imprisonment.
[25] Edgill v Stilwell [2016] WASC 246.
The appellant alleged that the sentence of 6 months imprisonment for criminal damage was manifestly excessive. The appellant argued that it was a single incident, involving no planning, taking a matter of moments where the damage was not provided to the court but was unlikely to have been as significant as in Howlett v Hesp.
Le Miere J observed that in the case before him there was a particular need for personal deterrence and the appellant had a previous conviction for criminal damage committed in almost identical circumstances. His Honour thought that notwithstanding that the appellant was separately sentenced for stealing, damaging the window to steal items from the car aggravated the seriousness of the criminal damage offence. His Honour did not consider that the sentence imposed was manifestly excessive.
In Phelps v Standen[26] the appellant was walking home at about midnight after being assaulted and pushed off a balcony and was angry. While he was walking past a bus parked on the side of the road, he punched the rear passenger side window, causing it to smash. When he was arrested, he made full admissions and told the officers he was in a fit of rage.
[26] Phelps v Standen [2020] WASC 459.
Smith J considered that the offending was at the lower end of seriousness. Her Honour noted that it was not premeditated or planned, was not done in the furtherance of other offending, such as trespass or burglary, the quantum of damage was relatively low and no one was endangered by it.
Smith J considered that the sentence of 8 months imprisonment was manifestly excessive.
In Hill v Director of Public Prosecutions (WA)[27] the criminal damage involved the appellant picking up a chair and throwing it at the glass window of a restaurant. The glass did not break and the appellant picked up and threw another chair causing the entire window to smash. An employee inside the restaurant received a small cut to his arm. The appellant then threw a third chair at the window but it did not smash the glass. There were a number of families in the restaurant. The prosecutor sought restitution in the amount of $2,000.
[27] Hill v Director of Public Prosecutions (WA) [2023] WASC 437.

McGrath J considered that the critical question that arose on the appeal was whether the sentencing Magistrate was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend, wholly or partly, the term of imprisonment, or impose a different sentence, namely a community-based order. His Honour observed that if the learned sentencing Magistrate was not entitled to be so satisfied then the imposition of an immediate sentence of imprisonment was manifestly excessive.
In assessing the seriousness of the offending McGrath J observed that:
(a)the appellant committed the offence during the early evening in the presence of numerous members of the public who were dining in the restaurant;
(b)the offending was not premeditated but was a spontaneous act of violence that arose from anger whilst intoxicated;
(c)the offending did not occur in the context of other offences such as damage arising during a burglary;
(d)the offending was complete within moments;
(e)the offending was persistent;
(f)the offending was aggravated by the fact that a restaurant employee was injured; and
(g)the damage caused was in the amount of $2,000.
McGrath J considered that the term of 7 months immediate imprisonment imposed was a severe sentence given that the offending was not planned or pre-meditated and occurred in a fit of rage. He considered that the term of immediate imprisonment was manifestly excessive.
McGrath J noted that at sentencing the appellant had already served 3 1/2 months imprisonment and been released on parole and it was no longer possible to impose a conditionally suspended imprisonment order. He imposed a fine of $1,000.
I do not consider that the imposition of a 6 month term of immediate imprisonment in Ms Ugle's case was manifestly excessive.
The circumstances of Ms Ugle's case are similar to those considered in Edgill v Stilwell where Le Miere J considered a similar sentence was not manifestly excessive.
The need for personal and general deterrence were relevant sentencing considerations in this case.
Ms Ugle has a history of committing stealing offences. The criminal damage represented an escalation in her offending because it involved damaging property to steal. That the criminal damage offence was committed to facilitate the commission of another offence, was an aggravating feature of the offending. That offending was further aggravated by the fact that she was subject to a conditionally suspended term of imprisonment when she committed the offence.
Having regard to the maximum penalty for the criminal damage offence, the criminality involved, the aggravating and mitigating circumstances, and all relevant sentencing factors, a sentence of 6 months imprisonment for the offence was not unreasonable or plainly unjust. I do not consider that Ground 3 has a reasonable prospect of succeeding and I would refuse leave to appeal on that ground.

Ground 1

Ms Ugle's submissions in support of the appeal

The first ground of appeal is that Magistrate Coleman erred by failing to make findings in relation to the operation of the principles in Bugmy and/or the evidence giving rise to the application of those principles.
Ms Ugle contended that although unchallenged submissions were made to Magistrate Coleman that she had a deprived and traumatic upbringing that was causally connected to her offending and that she had been the subject of sexual abuse as a child, her Honour failed to make any findings about those matters or take Bugmy principles into account in sentencing her.
Ms Ugle submitted that in addition to the submissions made by counsel to Magistrate Coleman on 12 June 2024, her Honour also had before her the submissions that were made to Magistrate Johnston on 13 October 2023. This was because Magistrate Coleman was provided with the transcript from the hearing on 13 October 2023.
With regard to the submissions made on 13 October 2023 to Magistrate Johnstone, Ms Ugle referred to and relied upon the submissions made that:
(a)her father was violent towards her mother at home, spent time in prison and had difficulty with substance misuse;
(b)her difficulties at home made her gravitate towards negative peer associations and drug use; and
(c)there was a causal link between her offending and her deprived upbringing and the trauma she had experienced.
Ms Ugle submitted that those submissions were not challenged on 13 October 2023.
With regard to the submissions made on 12 June 2024 to Magistrate Coleman, Ms Ugle referred to and relied upon the submissions made that:
(a)Ms Ugle's exposure to substance misuse was connected to her sexual abuse by an uncle when she was 12 years old and domestic violence perpetrated by her father on her mother; and
(b)some of her family members did not believe that she had been sexually abused by her uncle which caused a downward spiral in her mental health and feelings of low self-worth.
Ms Ugle submitted that the combination of all of these factors meant that her childhood was significantly deprived to a point where they had left their mark on her and were causally linked to her early substance misuse, addiction and consequently to her offending.
It was submitted that, when combined with Ms Ugle's deprived upbringing, the abuse amounted to a profound or significant deprivation of a variety that would 'leave its mark' on a person and stunt their maturity, as it did in this case. It was argued that when objectively viewed, these circumstances reduced Ms Ugle's moral culpability and that such reduction was not reflected in the sentencing exercise. Ms Ugle referred to some of the consequences of childhood deprivation described in the Bugmy bar book.
Ms Ugle submitted that on 13 October 2023, Magistrate Johnston had acknowledged Ms Ugle's deprived upbringing and took it into account when sentencing her. She argued that Magistrate Coleman, however, made no reference to Ms Ugle's significantly deprived background, the sexual abuse she had suffered, or Bugmy principles.
Ms Ugle argued that her case was similar to the case of Lloyd v R[28] where the New South Wales Court of Criminal Appeal considered that the sentencing judge had indicated that he was satisfied that Bugmy principles were enlivened but gave no specific consideration to how it reduced the offender's moral culpability and moderated the application of general deterrence. It was contended that Magistrate Coleman made the same error in this case.
[28] Lloyd v R [2022] NSWCCA 18.
Ms Ugle submitted that when Magistrate Coleman's reasons were analysed, it could be seen that her Honour failed to give any consideration to Bugmy principles, or discuss their significance in any way. Ms Ugle argued that a review of the transcript revealed that Magistrate Coleman had only considered Ms Ugle's background in the context of considering whether to activate the conditionally suspended sentences and not in the context of sentencing her for the new matters.
It was submitted that the Magistrate made no reference to Ms Ugle's background being mitigating, or to Bugmy principles. She argued that there was no reference in her Honour's remarks to the requisite balancing and reduction in moral culpability.
It was also submitted that no reference was made to Ms Ugle's sexual abuse, although this had not been raised before Magistrate Johnston.
Ms Ugle argued that if the Magistrate did not accept the submissions that Bugmy principles were applicable, procedural fairness obliged her Honour to give Ms Ugle notice. Further, Ms Ugle submitted that a failure by a judicial officer to refer to a particular factor in their sentencing remarks will ordinarily be an indication that the judicial officer has overlooked the matter.
Ms Ugle also referred to the Court of Appeal's decision in SA v The State of Western Australia[29] and submitted that her case could be distinguished from that case because:
(a)Magistrate Coleman was obliged to give full weight to Bugmy principles as they had been raised, not challenged and her Honour gave no notice that she did not accept that those principles were applicable;
(b)the court made no reference to the appellant being a victim of sexual abuse as a 12-year-old; and
(c)the new offending was not subject to the conditional suspended imprisonment order.
[29] SAL v The State of Western Australia [2021] WASCA 192.
Ms Ugle submitted that where an indigenous person is sexually abused in a dysfunctional home, uses substances and starts offending, courts are 'sufficiently on notice' that there is a link between those factors, drug use and offending. Ms Ugle referred to remarks made by Hamil J in Hawkins[30] regarding the application of Bugmy principles in that case.
[30] R v Hawkins; R v Garland (Sentence) [2024] NSWSC 80.
Ms Ugle submitted that if she was to be re-sentenced, she has been in custody for 369 days as at 29 January 2025 and she should be released without further delay, or if a further penalty was appropriate, it should be a fine.

The Director's submissions

The Director submitted that Ms Ugle relied heavily on the submissions made on 13 October 2023 and the factual findings made by Magistrate Johnston but submitted that the same submissions were not made to Magistrate Coleman in their entirety. It was submitted that there was no information before Magistrate Coleman that Ms Ugle had witnessed family violence as a child and that the Magistrate was entitled to reach an independent assessment of the facts and their significance in the circumstances that existed on 12 June 2024.
The Director argued that Ms Ugle's plea in mitigation on 12 June 2024 focused heavily on her motivation to remain offence-free so that she could regain custody of her children. It was submitted that it was then unsurprising that the primary focus of the sentencing was whether the court could be satisfied that the appellant should be given the further opportunity that she sought.
The Director submitted that due allowance must be made for the realities of a busy Magistrates Court list.
In relation to Ms Ugle's counsel's approach to Bugmy principles, the Director referred to the observations made by the Court of Appeal in SYO v The State of Western Australia[31] and submitted that given the submission made to the Magistrate, her Honour was left to draw the connection between Ms Ugle's impaired capacity (presumably, her capacity to remain drug-free), her deprived childhood and the offending.
[31] SYO v The State ofWestern Australia [2024] WASCA 31 [93] (SYO).
The Director submitted that Magistrate Coleman accepted that Ms Ugle had a tragic upbringing and was involved in abusive relationships that were linked to her misuse of drugs and alcohol. It was argued that her Honour clearly considered that Ms Ugle would be required to address those issues if she was to avoid reoffending.
The Director submitted that it was unclear whether the Magistrate positively accepted that Bugmy principles were enlivened but that the resolution of the appeal did not turn on that question. It was contended that even if Bugmy principles were engaged, the nature and degree of Ms Ugle's history of deprivation, based on the information put before the Magistrate, did not warrant a dramatic reduction in sentence.
The Director submitted that the information provided to the Magistrate was limited to submissions that Ms Ugle's father was in and out of prison, Ms Ugle was abused by an uncle at the age of 12 and Ms Ugle left school in year 10 at which point she began to smoke cannabis and started to use methamphetamine.
The Director contended that it was not submitted to Magistrate Coleman that Ms Ugle was exposed to substance misuse as a young child, that she was exposed to family violence, or that she experienced significant economic deprivation. It was argued that on the basis of the information before Magistrate Coleman, none of the consequences of childhood deprivation referred to in Ms Ugle's submissions and taken from the Bugmy bar book appeared relevant.
The Director submitted that Ms Ugle's written submissions did not meaningfully engage with how or why full weight was not given to Ms Ugle's history of deprivation. The Director referred to the Court of Appeal's reasons in Kelly v The State of Western Australia[32] and submitted that giving 'full weight' to a person's history of deprivation does not necessarily mean that deprivation must constitute an overriding mitigating feature that has a radical effect on every sentence.
[32] Kelly v The State of Western Australia [2024] WASCA 116 [214] - [215].
The Director submitted that the circumstances of Ms Ugle's case presented Magistrate Coleman with limited options to deal with the old and new charges.
The Director referred to Ms Ugle's counsel's submission to Magistrate Coleman that her Honour should have imposed a fine or another community based order in relation to the offences which had been conditionally suspended by Magistrate Johnston. The Director submitted that the imposition of a fine would have been plainly inadequate given the nature of the common assault. Further, it was argued that Ms Ugle's failure to comply with the previous conditions of her suspension meant that immediate imprisonment was the only available option.
The Director submitted that in relation to the new charges, a fine would not have been proportionate to the seriousness of the offending and given Ms Ugle's history, a community based order would not have been appropriate.
The Director submitted that when Magistrate Coleman's sentencing remarks are considered in their entirety against the background of the limited sentencing options available, sufficient regard was had to Ms Ugle's difficult childhood. It was argued that the Magistrate clearly had regard to those matters because her Honour referred to Ms Ugle's tragic upbringing.
The Director referred to the reasons in Lloyd v R[33] and submitted that the question of whether Bugmy principles were properly considered is one of substance rather than form. It was contended that even absent express articulation of the point, setting out in reasons a relevant mitigatory circumstance may be sufficient depending on the context and the circumstances of the case.
[33] Lloyd v R [2022] NSWCCA 18 [33].
The Director submitted that while it may have been preferable for the Magistrate to make an express finding about whether Bugmy principles were engaged and then to what extend and how they were to be taken into account, the failure to do so did not result in a material error.

Whether Ground 1 has merit

The Director submitted that it was unclear from Magistrate Coleman's sentencing remarks whether or not she positively accepted that Bugmy principles were enlivened. The Director also submitted, however, that when her Honour's remarks are considered in their entirety against the background of the limited sentencing options available, sufficient regard was had to Ms Ugle's difficult childhood.
The Director argued that it was evident that her Honour was aware of Ms Ugle's circumstances because she referred to Ms Ugle's 'tragic upbringing'.
While it is correct that Magistrate Coleman referred to Ms Ugle's tragic upbringing, this was only in the context of referring to the approach adopted by Magistrate Johnston while explaining why she was triggering the conditional imprisonment order and would not afford Ms Ugle a further opportunity. Magistrate Coleman said:[34]
You remain entrenched in abusive relationships because those people are also misusing drugs and alcohol. You must break that cycle. You were given that opportunity by Magistrate Johnson because of your tragic upbringing and the problems that you have had in your life. You did not take that opportunity. When I consider whether or not to give you another opportunity, I need to consider whether you are going to take up that opportunity. There is nothing before me that persuades me you are going to do so.
Having said all that, I am triggering the conditional suspended imprisonment order. You will be required to serve the term, having made no meaningful commitment to that order at all. You did not even turn up for intake. Corrections went to your house more than twice. You were given a direction at Northbridge Court when you were arrested. You did not do what was asked of you. You made no commitment at all to any programs because you did not turn up at all, on the order. I am not persuaded that you would do so this time if I was to give you another opportunity.
[34] Transcript 12.06.24, ts 21 - 22.
When Magistrate Coleman turned to consider the sentence she would impose in relation to the new offences, she indicated that she would discount the penalty imposed for Ms Ugle's guilty plea and that she had given consideration to totality considerations but made no mention of Ms Ugle's tragic upbringing.
The Director also submitted, that Magistrate Coleman's remarks reflected the focus of the submissions that were made to her regarding Ms Ugle's motivation to remain free. Observing that her Honour's remarks had a particular focus, however, does not assist to identify whether she took into account Bugmy principles when sentencing Ms Ugle, given her Honour's failure to mention those principles.
In my view, the Director was correct to acknowledge it was unclear from Magistrate Coleman's sentencing remarks whether or not she positively accepted that Bugmy principles were enlivened. Even accepting that the question of whether Bugmy principles were properly considered is one of substance rather than form and making due allowance for the fact that the Magistrates Court is a busy court, my review of Magistrate Coleman's remarks leaves me in considerable doubt about whether she took Bugmy principles into account or not.
Ms Ugle submitted that Bugmy principles were a significant mitigating factor in her case and that Magistrate Coleman made an error comparable to that made in Lloyd. On the other hand, the Director submitted that any failure to make an express finding about whether Bugmy principles were engaged and then to what extend and how they were to be taken into account, did not result in a material error.
In assessing these competing submissions, it is necessary to recall that the childhood experience of an offender may be relevant to sentencing in a variety of ways. In SYO v The State of Western Australia, the Court of Appeal observed that:[35]
… Frequently, offenders who come before the courts to be sentenced have experienced disadvantage in their childhood. An offender's deprived childhood will ordinarily be relevant because it forms part of the appellant's overall background and antecedents. The disadvantage may help explain or place into context a pattern of offending and assist the assessment of the risk of re-offending and prospects for rehabilitation. The fact that an offender experienced a deprived and dysfunctional background may also be relevant to the determination of a just sentence because it is causally connected to the particular offending, or because it may explain why a person offended. It may also, in a particular case, be relevant because it bears upon the question of whether an offender's time in custody will be more onerous than might otherwise be the case, or in determining the issues that may be relevant if rehabilitation efforts are to be successfully adopted. It may also be relevant, as a mitigating factor, because the offender has managed to overcome a disadvantaged background and the offence committed was out of character.
(footnotes omitted)
[35] SYO [65].
While Bugmy factors are not limited to circumstances in which a person's capacity to mature and learn from experience has been effected, the application of the principles may depend upon the impact that the childhood deprivation has had on the offender. In SYO the Court of Appeal explained:[36]
Nor are the Bugmy principles confined to cases where the effect of profound childhood deprivation is to 'compromise the person's capacity to mature and learn from experience'. In that regard, it is plain that the plurality's qualification that immediately preceded those words, '[a]mong other things', was intended to convey that a compromised capacity to mature and to learn from experiences is only one possible effect of growing up in a deprived environment, including one surrounded by alcohol abuse and violence. However, the mere fact of childhood disadvantage or even profound deprivation is not mitigatory and does not, of itself, necessarily reduce the moral culpability of an offender. Moral culpability is rather reduced by the permanent effect of profound childhood deprivation on the capacities of the offender in a relevant way, for example by reducing the offender's capacity to control their actions or to appreciate right from wrong. The reduction in moral culpability follows from the impact of something which was beyond the control of the offender on the capacity of the offender to behave lawfully.
In applying the principles identified in Bugmy to an adult offender, it may be appropriate to distinguish between two different classes of case. The first is where profound childhood deprivation has in some way impaired the capacity of an offender to behave lawfully. In this first class of case, the moral culpability of the adult offender is reduced because of that impaired capacity, the impaired capacity may mean that personal deterrence will be less effective, and the impaired capacity makes the case a less appropriate vehicle for general deterrence. The second class of case is where the offender retains full capacity to make choices about unlawful behaviour, although the poor choices which the offender makes may be influenced by childhood experience (such as poor parental role models or early exposure to alcohol and illicit substances). In this second class of case, the adult offender is responsible for those choices and the offender's moral culpability, and the significance of personal and general deterrence, are not diminished by any impairment of the person's capacity to make those choices.
Childhood disadvantage, even profound deprivation, may have different effects on different people. As with mental disorders falling short of insanity which are not self-induced, the effects are variable as is the impact on moral culpability for the offending. In determining whether profound childhood deprivation reduces the moral culpability of the offender, it will be relevant to consider the impact of the deprivation on the person's relevant capacities.
The moral culpability of an offender is not ordinarily reduced by childhood disadvantage or deprivation which has not significantly impaired their capacity to control their actions, to understand that they should not engage in unlawful conduct and to mature and learn from experience. However, the fact that the offender has overcome childhood disadvantage or deprivation may still be mitigating for other reasons, which do not involve a reduction in the offender's moral culpability for the offending.
[36] SYO [69] - [71].

While submissions were made to both Magistrate Johnston and Magistrate Coleman about Ms Ugle's childhood deprivation, it was not submitted to either of them that her childhood experience had impaired her capacity to behave lawfully, or had the effect that personal deterrence would be less effective, or that she was a less appropriate vehicle for general deterrence. Indeed, the submissions that were made suggested that Ms Ugle had the capacity to behave lawfully and could be deterred from further unlawful conduct by personal deterrence.
Before Magistrate Johnston it was argued that the suspension of a term of imprisonment would provide a significant motivating factor.[37] It was implicit in this submission that Ms Ugle could behave lawfully and be discouraged from engaging in further unlawful conduct by the deterrent effect of the suspended term, otherwise suspension could provide no 'motivation'.
[37] Transcript 13.10.23, ts 22.
Before Magistrate Coleman it was argued that the time Ms Ugle had spent in prison had been an 'eye-opener'.[38] This submission seems to accept that Ms Ugle's custodial sentence had caused her to reconsider her previous conduct and she was capable of learning from her experiences. It was also again submitted to Magistrate Coleman that a term of imprisonment be suspended.[39]
[38] Transcript 12.06.24, ts 17.
[39] This is how what I understood to be meant by the submission that Magistrate Coleman should consider an order that would allow Ms Ugle to remain in the community to start afresh and work on her outstanding treatment needs: Transcript 12.06.24, ts 19.
Therefore, it seems to me that the submissions that were made about the effect of Ms Ugle's childhood deprivation suggested that she fell into the second category described by the Court of Appeal in SYO.
Although Ms Ugle submitted that if I proceeded to re-sentence, having regard to the mitigation provided by Bugmy principles, I should impose a lesser overall sentence than Magistrate Coleman, as the Director submitted, Ms Ugle's submissions failed to meaningfully engage with the sentencing exercise that it was necessary for Magistrate Coleman to perform.
The circumstances in which Ms Ugle breached the conditionally suspended sentences were that Ms Ugle failed to report to a community corrections centre following her release from custody and then despite the fact that the police issued Ms Ugle three different directions to report, she continued to fail to do so. She failed to engage with any of her program requirements. It is also relevant to note that Ms Ugle committed the first of the new offences for which she was charged, within less than four weeks of Magistrate Johnston's decision to conditionally suspend the sentences she imposed.
Section 84F(3) of the Sentencing Act1995 (WA) required Magistrate Coleman to order Ms Ugle to serve the suspended terms of imprisonment imposed unless she decided that it was unjust to do so.
In considering whether the presence of the Bugmy factors identified to Magistrate Coleman made it unjust to order that Ms Ugle serve the conditionally suspended sentences, it is important to recall that Magistrate Johnston had suspended the terms of imprisonment at the behest of Ms Ugle's counsel to deter Ms Ugle from engaging in further offending.
Ms Ugle failed to engage with the conditions imposed and committed further offences soon after her terms of imprisonment were conditionally suspended.
In my view, even if all of the submissions made about Ms Ugle to both Magistrates are taken into account, it was not unjust for Magistrate Coleman to order that Ms Ugle serve the conditionally suspended terms of imprisonment. Ms Ugle's counsel seemed to acknowledge as much at the hearing of the appeal.[40]
[40] Transcript 31.03.25, ts 16.
I have already discussed the circumstances in which Ms Ugle committed the criminal damage offence for which Magistrate Coleman imposed a 6 month term of immediate imprisonment.
Magistrate Coleman also imposed a cumulative term of immediate imprisonment of 4 months for trespass. Ms Ugle's original grounds of appeal alleged that the imposition of that term of imprisonment was manifestly excessive. This ground of appeal was abandoned, however.
The circumstances in which Ms Ugle committed the trespass charge were that she gained entry to a secure garage in company with others, walked around cars trying door handles, gained entry to a car and removed two bank cards.[41]
[41] Transcript 12.06.24, ts 10.
As I have mentioned in the context of discussing Ground 3, Ms Ugle had a history of committing trespass offences and her offending on this occasion was aggravated by the fact that she was subject to a conditionally suspended term of imprisonment when she committed the offence.
Even taking into account all of the submissions made about Ms Ugle to both Magistrates, the need for personal and general deterrence remained relevant sentencing considerations. I do not consider that the imposition of fines alone in relation to either the criminal damage or trespass offences would have provided appropriate personal and general deterrence. Nor would I consider that any term of imprisonment should be suspended given Ms Ugle's history of failing to comply with conditions.
Further, even if I were to take into account all of the submissions made about Ms Ugle to both Magistrates, I would not impose any lesser sentence than that imposed by Magistrate Coleman. In my view, having regard to the maximum penalties for the offences, the criminality involved, the aggravating and mitigating circumstances, and all relevant sentencing factors, any lesser sentence would have provided insufficient personal and general deterrence.
In these circumstances, even if Magistrate Coleman made an error in failing to make findings about Bugmy principles and/or failing to apply those principles as Ms Ugle maintains, I do not consider that there has been any substantial miscarriage of justice.
I would give leave to appeal in relation to Ground 1 but dismiss that ground of appeal on the basis that there has been no substantial miscarriage of justice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
10 APRIL 2025