Wells v Hounslow

[2021] WASC 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WELLS -v- HOUNSLOW [2021] WASC 99

CORAM:   SMITH J

HEARD:   30 MARCH 2021 & BY WRITTEN SUBMISSIONS FILED 1 APRIL 2021

DELIVERED          :   9 APRIL 2021

FILE NO/S:   SJA 1013 of 2021

BETWEEN:   KASZEL LOIS WELLS

Appellant

AND

TOBY HOUNSLOW

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E O'DONNELL

File Number            :   KA 3817 of 2020, KA 3818 of 2020, KA 3819 of 2020, KA 3820 of 2020, KA 3821 of 2020, KA 3822 of 2020, KA 3823 of 2020, KA 3824 of 2020, KA 3825 of 2020, KA 3826 of 2020

Catchwords:

Criminal law - Appeal against sentence - PayWave fraud - Whether sentence of 9 months' immediate imprisonment manifestly excessive as to type - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 41(2)(b)
Criminal Code (WA), s 409(1)(c)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 76(2)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Mr T B L Scutt

Solicitors:

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

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

Bogers v The State of Western Australia [2020] WASCA 174

Brown v The State of Western Australia [2010] WASCA 228

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DKN v The State of Western Australia [2018] WASCA 87

Kotnowski v Richardson [2019] WASC 369

Krencej v The State of Western Australia [2019] WASCA 82

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Schulz v Coyne [2019] WASC 329

Shi v The State of Western Australia [2020] WASCA 197

Simms v Geeson [2020] WASC 381

Spirovski v The State of Western Australia [2017] WASCA 230

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

Tang v The Queen [2020] WASCA 194

The State of Western Australia v Zhuang [2021] WASCA 56

SMITH J:

1.0 The appeal, the grounds of appeal and the result

1. The appellant seeks leave to appeal, out of time, the sentence imposed on 11 January 2021 by Magistrate O'Donnell sitting in the Magistrates Court at Kalgoorlie for 10 counts of gaining a benefit by fraud, with intent to defraud by fraudulent means, contrary to s 409(1)(c) of the Criminal Code (WA).

2. Each of the offences occurred on 21 November 2020, and involved the use of a stolen credit card, given to the appellant by another person, to purchase goods at 10 shops utilizing payWave, to the total value of $1,376.01.

3. On 11 January 2021, the appellant entered pleas of guilty to each of the offences, and was sentenced to a total effective sentence of 9 months' immediate imprisonment with eligibility for parole (having applied a discount of 25% for the early pleas).

4. The details of the offences and the terms of imprisonment imposed for these offences are as follows:

   (a)for charge KA 3821/2020, 3 months' imprisonment (head sentence);

   (b)for charge KA 3820/2020 and charge KA 3823/2020, 3 months' imprisonment (each term cumulative); and

   (c)for charge KA 3817/2020, KA 3818/2020, KA 3819/2020, KA 3822/2020, KA 3824/2020, KA 3825/2020 and KA 3826/2020, 2 months' imprisonment (each term concurrent).

5. The appellant was also ordered to pay compensation in the amount of $1,376.01 to the victim of the offences.  There is no appeal against the order that the appellant pay the victim compensation.

6. The appellant appeals on grounds that the total sentence of 9 months was in error, as each individual sentence was manifestly excessive as to type.  In particular, that each type of sentence was unreasonable or plainly unjust, having regard to:

   (i)the statutory maximum penalty for the offences;

   (ii)the standards of sentencing customarily imposed for these offences;

   (iii)the circumstances and objective seriousness of the offences committed by the appellant; and

   (iv)the appellant's personal circumstances.

7. At the hearing of the appeal, during the course of argument, it was also argued on behalf of the appellant that the sentence was manifestly excessive as to type on grounds that the sentencing magistrate failed to consider whether to impose a sentence of suspended imprisonment.  As to this argument, the respondent's counsel properly points out that that allegation alleges an express error whereas the ground of appeal, as filed, alleges an implied error.

8. If it is necessary that the ground of appeal requires amendment, I would allow an amendment to be made, as both parties have comprehensively addressed the point in written submissions filed on 1 April 2021.

9. However, for the reasons that follow, I am of the opinion that leave to appeal out of time should be refused and the appeal dismissed.

2.0 Background

2.1 Other relevant offences for which the appellant was sentenced on 14 February 2021 (subsequent to the filing of this appeal)

1. When the appellant entered her pleas of guilty to each of the fraud offences on 11 January 2021, the appellant also entered pleas of guilty to four other offences, three of which had been committed prior to the fraud offences, but she was not sentenced for those offences because her counsel wanted to have further discussion with the prosecution about those charges.  The four charges were one count of burglary and commit an offence, and three counts of stealing.

2. The application for leave to appeal the sentence imposed on 11 January 2021 was filed on 22 February 2021.

3. On 14 February 2021, the appellant appeared in the Magistrates Court at Kalgoorlie before Magistrate Cleary, pleaded guilty and was sentenced for the four other offences and one other offence as follows:

Charge No	Date	Offence	Maximum Penalty	Sentence Imposed	Concurrency
KA 3703/2020	4 November 2020	Burglary and commit an offence, contrary to s 401(2)(c) Criminal Code (WA)	14 years' imprisonment or on summary conviction 2 years' imprisonment and a fine of $24,000	3 months' imprisonment	Concurrent on the sentence imposed on 11 January 2021 to commence on 4 February 2021 with eligibility for parole
KA 3704/2020	4 November 2020	Stealing, contrary to s 378 Criminal Code (WA)	7 years' imprisonment	No sentence, pursuant to s 11 Sentencing Act 1995 (WA)	N/A
PE 56556/2020	18 December 2020	Stealing, contrary to s 378 Criminal Code (WA)	7 years' imprisonment	$400 fine	N/A
PE 56557/2020	18 December 2020	Stealing contrary to s 378 Criminal Code (WA)	7 years' imprisonment	$400 fine	N/A
KA 22/2021	8 November 2020	Driving a motor vehicle on a road with prescribed illicit drug present in her oral fluid (methamphetamine), contrary to s 64AC(1) of the Road Traffic Act 1974 (WA)	For a second or subsequent offence not less than 10 PU or more than 20 PU and MDL disqualification for a period not less than 6 months	$500 fine and 6 months' MDL disqualification concurrent and ordered to pay costs of $185.00

1. Although no appeal has been filed by the appellant in respect of the sentence in respect of the burglary offence of 3 months' immediate imprisonment, concurrent on the term imposed on 11 January 2021, the appellant seeks that the court exercise its discretion, pursuant to s 41(2)(b) of the Criminal Appeals Act 2004 (WA), if the appellant is successful in the appeal against the sentence imposed on 11 January 2021, and the sentence is found to be manifestly excessive and results in this court resentencing the appellant for the 10 fraud offences.

2. If successful in the appeal, the appellant seeks that the sentence of 3 months' immediate imprisonment imposed by her Honour on 14 February 2021, for the offence committed by the appellant on 4 November 2020 of burglary, be varied, pursuant to s 41(2)(b) of the Criminal Appeals Act.

3. Section 41(2)(b) provides that if an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence that took into account sentence A.

2.2 The facts of the 10 offences of fraud (for which the appellant was sentenced on 11 January 2021)

1. The factual offences of the charges of fraud were as follows.

2. Sometime after 4.00 pm on Friday 20 November 2020, the victim lost her handbag containing her Bankwest Mastercard. 

3. It is common ground that the appellant used the victim's Bankwest Mastercard 22 times[1] by utilising the tap and go function embedded in the card, known as payWave, and that the function could only be used for the purchase of goods to the total value of $100 in any one transaction.

   [1] Although it is conceded on behalf of the appellant that the victim's Bankwest Mastercard was used by her between 6.54 am and 10.20 am on 20 November 2020 22 times, the facts read to the Magistrates Court indicated that the appellant used the card 21 times.

4. At 10.25 am on Saturday 21 November 2020, the victim logged on to her internet banking and discovered that there had been multiple transactions on her account that morning at 10 different businesses, which were as follows.

   (1)At 6.54 am, the appellant was present at the Lionel Street IGA in Boulder, where she selected miscellaneous food items and four $5 scratch cards.  She used the victim's bank card, utilising the tap and go function to purchase items to the value of $62.53.  The appellant used the victim's bank card a second time to purchase a pack of Rothmans Blue cigarettes to the value of $48.69 (being a total amount of $111.22 and use of the card twice) (KA 3817/2020).

   (2)At 6.59 am, the appellant entered Coles Express in Boulder and selected a Coles Myer gift certificate to the value of $30 and a packet of tobacco, White Ox, to the value of $68.50, being a total value of $98.50.  She used the victim's bank card by utilising the tap and go function.  She then purchased orange juice to the value of $3.50, a packet of Rizla (cigarette) papers to the value of $2 and used the tap and go function again (being a total amount of $104 and use of the card twice) (KA 3818/2020).

   (3)At 7.07 am, at the BP Golden Gate in Kalgoorlie, the appellant selected a packet of Tally Ho papers and a pack of White Ox tobacco, utilising the tap and go function on the card (being a total amount of $67.60 and use of the card once) (KA 3819/2020).

   (4)At 7.11 am, the appellant went to Hannan's Marketplace on Maritana Street, Kalgoorlie.  She selected food items to the value of $78.13 and paid for the items by using the tap and go function on the card.  She then selected more items to the value of $87.32, again utilising the tap and go function.  She then selected more items to the value of $10.29, and paid for those items utilising the tap and go function on the card.  The appellant then selected a Telstra pre-paid $50 top-up and a pack of Rothmans Blue cigarettes, to the value of $48, and used the tap and go function on the card again (being a total value of $273.74 and use of the card four times) (KA 3820/2020).

   (5)At 9.30 am, the appellant went to SportsPower in Kalgoorlie and selected miscellaneous clothing items to the value of $70, and paid for them using the card's tap and go function.  She then selected more items to the value of $79, and again paid for them by utilising the tap and go function on the card.  She then selected more miscellaneous clothing items to the value of $89.95, and paid for them again using the tap and go function on the card.  She then selected more miscellaneous clothing items to the value of $90 and paid for those items utilising the tap and go function on the card (being goods to the total value of $328.95 and use of the card four times) (KA 3821/2020).

   (6)At 9.41 am, the appellant went to the Pro Phone Repair store on Hannan Street in Kalgoorlie and selected two mobile phone cases, one to the value of $10 and the other to the value of $20.  She then paid for both of the cases using the tap and go function on the card (being an amount of $30 and use of the card once) (KA 3822/2020).

   (7)At 9.50 am, the appellant went to Coles on Brookman Street in Kalgoorlie and selected a Coles Group & Myer gift card to the value of $100.  She paid for the gift card by using the tap and go function.  She then selected another Myer gift card, to the value of $100, and again paid for the gift card by using the tap and go function on the card.  She then selected another Coles Group & Myer gift card to the value of $70, and paid for that third gift card using the tap and go function (being goods to the total value of $270 and use of the card three times) (KA 3823/2020).

   (8)At 9.53 am, the appellant went to the Kalgoorlie Newsagency and selected two scratch cards[2] to the value of $5, one $10 scratch card and a Powerade drink.  She paid for the items by using the tap and go function (being total value of $44.60 and use of the card once) (KA 3824/2020).

   (9)At 9.59 am, the appellant then went to Salty's Surf and Skate in Kalgoorlie.  She selected a pair of thongs to the value of $45 and paid for the thongs by using the tap and go function once on the card (KA 3825/2020).

   (10)At 10.20 am, the appellant went to the Boulder Newsagency on Burt Street in Boulder and selected two $10 scratch cards, six $5 scratch cards and miscellaneous food items.  She paid for the goods by using the tap and go function on the card.  She then selected a packet of Rothmans Blue 25 cigarettes and used the tap and go function on the card again (being goods to the total value of $100.90 and use of the card twice) (KA 3826/2020).

   [2] Lottery cards.

5. The appellant was arrested for the fraud offences 10 days later at 12.20 pm on 30 November 2020 in Boulder.  The appellant declined to participate in an interview when arrested.

2.3 The sentencing submissions made to the Magistrates Court on 11 January 2021

1. The appellant's counsel submitted in mitigation:

   (a)the appellant was extremely remorseful, she apologised for the inconvenience caused as she knew that the card did not belong to her and offered to pay the victim for what was taken;

   (b)an acquaintance had given the appellant a handbag containing the credit card but that she knew it was wrong to use the card;

   (c)the appellant had made an early plea of guilty after the third appearance, and had pleaded guilty to all the charges;

   (d)at the time of commission of the offences the appellant was under the influence of drugs.  Although she was in receipt of Centrelink payments at the time she committed the offences, she did not have any money in her account as that money had been used on drugs;

   (e)the appellant wished to 'come off' methyl amphetamine, and had a plan to move to Perth to live with her mother to obtain some support for her addiction;

   (f)there was a funeral taking place that week, and the appellant had stopped using drugs because she was going to see family and she wanted to continue to stop using drugs.  After the funeral, she intended to go to Perth for a couple of weeks and during this time she would seek some counselling and then return to Kalgoorlie for her next court appearance;

   (g)a fine or a community based order with counselling attached would be an appropriate sentencing disposition for the offences; and

   (h)the appellant had been subject to domestic violence and her partner was currently in custody.[3]

   [3] This submission was put to the sentencing magistrate before her Honour completed her sentencing remarks but immediately after her Honour had found that imprisonment was the appropriate sentencing disposition for the offences.

2. The prosecutor made a submission to the sentencing magistrate that:

   (a)the appellant had a long history of this type of offending and that although she knew she was not allowed to use the victim's card she did so anyway;

   (b)the multiple transactions within each charge constituted a well thought out plan by the appellant, and her criminal history of offences showed that she had received predominantly fines in the past for this kind of offending, which had not been a personal deterrent to her whatsoever; and

   (c)something other than a fine was an appropriate sentencing disposition for these fraud offences.

2.4 The sentencing magistrate's remarks

1. After hearing from counsel for the appellant and the prosecutor, her Honour made the following findings:

   (a)the appellant came before the court at the age of 30 charged with a total of 14 offences but would only be sentenced in respect of 10 of those offences today;

   (b)the appellant had used a credit card which was not hers and had come into her possession by unclear means.  She had used the card at 10 different locations around the Kalgoorlie and Boulder area to purchase various different types of goods to a total amount of $1,376.01.  The credit card had been used more than once at (some) locations because of the payWave system limit of $100;

   (c)the appellant has used cards before, so she had put some thought into this.  She used the card multiple times where necessary and it was aggravating that she went to 10 different places to obtain goods;

   (d)the total amount of $1,376.01 is a lot of money to be debited to another person's bank card when they are not aware of it, and it might be that the person who owns the bank card might have needed the money that was in the account;

   (e)the offences are frauds, and carry a penalty of imprisonment;

   (f)the appellant had reached the point where imprisonment was the appropriate disposition for the offences;

   (g)the appellant's criminal history is not mitigatory, as she does not come to court as a person of prior good character.  Nor is she able to claim youth as mitigation.  She had been dealt with by fines in the past (for similar offending).  However, fines have not had the effect of personal deterrence;

   (h)the appellant had last been imprisoned in 2017, when she had breached a suspended imprisonment order for different types of offences and she was sentenced to immediate imprisonment for the breach.  Since then, the appellant had not been subject to either suspended imprisonment or immediate imprisonment, but she had been convicted of (three) fraud offences in 2020, for which she received fines; and

   (i)the appellant had obtained a very large amount of goods in one day and this was not a case in which she had used the card to obtain essential groceries.

3.0 General appellate sentencing principles ‑ Implied error ‑ Manifest excess

1. A ground of appeal that alleges manifest excess is a ground of appeal that asserts implied, rather than express, error.  The principles of implied error are well‑established.

2. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

3. Where there is an allegation of express or implied error in the sentencing process, an appellate court will not intervene simply because the court might have imposed a different sentence.

4. 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.[4]

   [4] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55]; Tang v The Queen [2020] WASCA 194 [105].

5. Accordingly, an appellant must demonstrate that the sentencing outcome was one that was not open to the sentencing judge or magistrate in the proper exercise of his or her Honour's discretion.[5]

   [5] Shi v The State of Western Australia [2020] WASCA 197 [37].

6. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:[6]

   (1)the maximum sentence prescribed by law for the crime;

   (2)the standards of sentencing customarily imposed with respect to it;

   (3)the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and

   (4)the offender's personal circumstances.

   [6] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].

1. When sentencing an offender:

   (a)s 6(1) of the Sentencing Act 1995 (WA) requires that the sentence imposed must be commensurate with the seriousness of the offence; and

   (b)s 6(2) of the Sentencing Act requires that the seriousness of the offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.

2. A sentencing range is established by the Court of Appeal and not by appellate decisions of single judges.  This point was reiterated very recently by the Court of Appeal in The State of Western Australia v Zhuang:[7]

   A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

   When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

   Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome.  In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance.  See Hili v The Queen; Impicciatore v The State of Western Australia and Pomana v The State of Western Australia.

   [7] The State of Western Australia v Zhuang [2021] WASCA 56 [109] ‑ [111] (footnotes omitted).

3. Even if error is demonstrated, a single judge hearing an appeal from a decision of a sentencing magistrate should not intervene if they consider that no substantial miscarriage of justice has occurred.[8]

   [8] Criminal Appeals Act 2004 (WA) s 14(2).

4.0 Principles ‑ Whether a term of imprisonment should be suspended

1. Pursuant to s 6(4) of the Sentencing Act, a sentence of imprisonment ought not to be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.

2. A decision to impose a term of imprisonment or a suspended term of imprisonment involves a two‑step process.

3. Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

4. The first step is a sentencing judge or magistrate must determine that a term of imprisonment is called for and not some lesser sentence.  The second step requires the court to be satisfied that it is inappropriate to impose a term of suspended imprisonment before a term of imprisonment can be ordered to be served immediately.[9]  Thus, each step requires the court to form a requisite opinion.

   [9] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J).

5. It is not necessary for a sentencing judge or magistrate to make any express reference to the two‑stage process in coming to a decision not to suspend the terms of imprisonment.  It may be desirable, for the sake of clarity, for a sentencing judge or magistrate to explicitly state that she or he has again taken into account all relevant sentencing considerations before rejecting the option of a suspended imprisonment order.  However, if it is evident from a consideration of the sentencing remarks as a whole that the two‑stage approach required by the Sentencing Act has been undertaken, no express error emerges.[10]

   [10] Brown v The State of Western Australia [2010] WASCA 228 [40] (Mazza J) (Pullin JA & Newnes JA agreeing).

5.0 Was the term of immediate imprisonment for the fraud offences manifestly excessive?

1. The appellant argues that each individual sentence for fraud was manifestly excessive because first, the amount defrauded for each offence was significantly lower than the amount required for a sentence of immediate imprisonment.  This is said to be especially so when viewed in light of the fact that an offence of fraud where the value of the property taken is less than $50,000 is the highest amount that can be dealt with summarily. 

2. Second, the appellant argued that the following circumstances of each offence did not require a sentence of immediate imprisonment, and could only be assessed as an offence of fraud at the lower end of the scale of offences of its type:

   (a)each offence lacked sophistication and was not premeditated;

   (b)each offence could be easily detected;

   (c)there was no lack of a breach of trust, in the sense of a breach of a relationship of trust between the owner of the property and the offender;

   (d)each offence did not involve the use of false details, identification or any other deceptive means; and

   (d)the total value of the property fraudulently obtained, being $1,376.01, was low.

3. Third, the appellant's age, plea of guilty, the fact that she was in the grip of drug addiction when committing the offences, her need for counselling, and her willingness to pay compensation to the victim were powerful mitigating or personal factors that demonstrated error for each sentence.

4. The starting point in the consideration of the arguments put on behalf of the appellant is that first, when considering the maximum penalty available to the sentencing magistrate, her Honour's starting point, and thus ultimate disposition, is the maximum penalty, not the jurisdictional limit of the Magistrates Court to deal with the offence.[11] The maximum penalty for the offence of fraud is 7 years' imprisonment,[12] and the jurisdictional limit of the Magistrates Court to sentence an offender for the offence of fraud is imprisonment for 2 years and a fine of $24,000 if the value of the property obtained or delivered, or benefit gained or a detriment caused, is less than $50,000.[13]

   [11] Stanley v The State of Western Australia [2018] WASCA 229 [46].

   [12] Criminal Code (WA) s 409(1)(c), (h).

   [13] Criminal Code (WA) s 409(1)(c), (h), (b) and (2).

5. Second, as to the standards customarily associated with offences of this type, whilst acknowledging that each case is different, the appellant referred to the single judge decisions of Kotnowski v Richardson,[14] Schulz v Coyne,[15] and Simms v Geeson,[16] as authority for the point that sentences other than imprisonment are commonly imposed (for fraud offences at the lower end of the scale) even when the offender is not of prior good character.[17]  From this observation, a submission is made on behalf of the appellant that fraud offences at the lower end of the scale, particularly those involving the use of another person's bank or credit card, should not attract a sentence of immediate imprisonment.  The difficulty with this submission is that the appellant has been sentenced to fines for similar offences in the recent past, which have had no personal deterrent effect.  

   [14] Kotnowski v Richardson [2019] WASC 369 (Smith J).

   [15] Schulz v Coyne [2019] WASC 329 (Hill J).

   [16] Simms v Geeson [2020] WASC 381 (Derrick J).

   [17] Simms v Geeson [2020] WASC 381 [62] (Derrick J), citing Schulz v Coyne [2019] WASC 329 [40] and Kotnowski v Richardson [2019] WASC 369.

6. The offending in Kotnowski v Richardson, Schulz v Coyne, and Simms v Geeson was of a different kind.  Despite the submission made on behalf of the appellant that the appellant's conduct did not involve deceptive means, and was at the very lower end of the scale of offences of that type, that was not the case.  The appellant used the victim's bank card as if it was her own at 10 different retail businesses.  She used the card 22 times and obtained, as her Honour found, a large amount of goods.  It is clear from the sentencing magistrate's findings that she did not find the fraud offences to be at the very lower end of the scale of offences of its type.

7. As counsel for the respondent points out, fraud offences using debit or credit cards are difficult to detect where a transaction is made that is under the payment limit for the payWave function embedded in the card.  This is because such payments can be made without any need for identification or challenge by a customer service employee working in any of the retail locations that the appellant used the victim's bank card.  Further, such offences can be difficult to detect even where CCTV footage is readily available.  An offender using a card at a transaction point may be difficult to recognise when the footage is viewed.

8. In Kotnowski v Richardson, the appellant did not have the benefit of youth, had a long and extensive history of similar offences of fraud, stealing and other offences of dishonesty and had a history of poor compliance with community orders.  His sentence of 7 months' imprisonment was set aside on appeal as manifestly excessive.  The appellant was convicted of one offence of fraud by deceit by negotiating the sale of an oven and not providing the goods after receiving payment.  The circumstances of the offending were at the lower end of the scale because although it did involve deceit he had used his own email address and bank details.  Consequently, the offence could readily be detected.  Importantly, prior to being sentenced at first instance, the appellant had demonstrated that he had taken significant steps to rehabilitate himself, in the period of over eight months between committing the offence and sentencing, to address the triggers that led him to a cycle of criminal behaviour.  He had also paid off a very large part of his outstanding fines.

9. In Schulz v Coyne, the appeal against a sentence of immediate imprisonment of eight months for two counts of trespass, four counts of fraud and one count of breach of bail was allowed on the basis that no discount had been given for the appellant's plea of guilty at first instance.  The sentence of immediate imprisonment was set aside and the appellant was resentenced to an intensive supervision order for 12 months with programme and supervision requirements.  In that matter, the four offences of fraud were committed by the appellant by using a stolen credit card to obtain items to the total value of $239.95.  Unlike the appellant in this matter, the appellant in Schulz v Coyne had the benefit of youth as she was 19 years old when she committed the offences and at the time of being resentenced was in an advanced stage of pregnancy.

10. Simms v Geeson also does not assist.  In that appeal, the appellant had been sentenced to a total effective sentence of immediate imprisonment for 6 months and 1 day, partially suspended, for one offence of receiving a stolen credit card, and one offence of fraud by using the stolen credit card to purchase items to the value of $31.99.  The sentence of immediate imprisonment was set aside in the appeal.  Unlike the appellant in this matter, the appellant in Simms v Geeson had used the credit card for one transaction only and for the purpose of gaining property of very limited value.  Clearly, the circumstances of the receiving and use of the credit card by fraud were, as Derrick J found, at the lower end of the range of seriousness for offences of receiving and fraud.

11. The appellant's offending in this matter cannot be described as at the lower end of the range of seriousness of offences of this kind.  The appellant used the credit card 22 times over four hours, between 6.54 am and 10.20 am, and it does not appear that the appellant ceased to use the card voluntarily, as it was at 10.25 am that morning that the victim logged onto her bank account and found the transactions.  It can be inferred from this fact that the victim immediately took steps to have the use of the bank card rendered inoperative. 

12. Third, whilst a magistrate must fix an appropriate sentence for each offence, and consider questions of concurrence or cumulation, the sentencing magistrate was entitled when considering the seriousness of each offence, to consider whether each offence was part of a continuum of conduct of dishonesty over a period of four hours.  Consequently, where the offending involves a course of conduct over a period, the sentence should reflect the totality of that conduct.[18]

    [18] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).

13. The amount defrauded or attempted to be defrauded and any loss incurred by the victim will often be important in the assessment of the gravity of an offence. However, there will be cases where the seriousness of the offender's conduct is of such a level that the amount of benefit obtained is of less importance.[19]

    [19] Bogers v The State of Western Australia [2020] WASCA 174 [118].

14. In this matter, the fact that the total amount of property obtained by this course of conduct was $1,376.01 does not detract from the fact that the offences could not be found at the very lower end of offending of this type.  This is because the offending was persistent and extensive over a four hour period.

15. Apart from the pleas of guilty entered by the appellant, her mitigatory factors were remorse, and insight into the triggers of her offending behaviour evidenced by her willingness to engage in counselling and to make reparation to the victim for her loss.  It should be noted, however, that the appellant had not at the time of sentencing taken any steps to engage in drug counselling by attending any counselling or making any appointments to obtain counselling, and had at the time of sentence 'ongoing drug issues'.

16. The appellant cannot claim mitigation because of youth or good character, and substance abuse due to addiction to methyl amphetamine is not a mitigating factor.

17. A submission was made on her behalf that she was a disadvantaged member of the community.  Other than to make a submission that at the time of the offences she was in a relationship in which she was subjected to domestic violence, no submission was put to the court as to how disadvantage or domestic violence was connected to her offending behaviour.  As the sentencing magistrate found, the property obtained by the appellant and the use of the victim's bank card was not for essential groceries.  It is clear that most of the property purchased by the appellant using the victim's bank card were items that could be sold or traded by her for illicit drugs.

18. A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.[20]

    [20] Sentencing Act 1995 (WA) s 6(4).

19. Having regard to the appellant's course of conduct constituting the fraud offences, the persistent and extensive nature of the circumstances of the offending over the four hour period, and all other relevant factors, including factors mitigating and personal to the appellant, it cannot be found that the sentence of 9 months' imprisonment was unreasonable or plainly unjust.

20. The question that then arises is whether consideration was given by the sentencing magistrate as to whether the term should have been suspended or conditionally suspended.

6.0 Did the sentencing magistrate fail to consider whether it was inappropriate to impose a term of suspended imprisonment?

1. It is accepted by the respondent that the sentencing magistrate did not make explicit reference to the two-step process in her sentencing remarks.

2. The respondent argues that it can be inferred from her Honour's remarks that, having decided that imprisonment was the appropriate disposition and noting that the appellant had received a term of suspended imprisonment which she had breached in 2017, her Honour was clearly alive to the option of exercising her discretion to make a suspended imprisonment order, but rejected it in the result.

3. Having carefully reviewed her Honour's sentencing remarks, I agree that it is evident that her Honour, after determining that imprisonment was the appropriate disposition for the offences, then took into account all relevant sentencing considerations before implicitly rejecting the option of a suspended imprisonment order. 

4. This is because her Honour stated that the offences were frauds which carried a sentence of imprisonment and that the appellant had reached the point where imprisonment was the appropriate disposition.[21]  Her Honour then went on to consider the factors personal to the appellant, such as her prior criminal history and the fact that she had breached a suspended imprisonment order in the past, the fact that fines for similar offences had not acted as personal deterrence, the character of the particular offences and the objective element of persistence. 

   [21] ts 12.

5. Whilst the sentencing magistrate did not consider whether the appellant had any prospects of rehabilitation, a failure to give any or sufficient weight, or give excessive weight, to a relevant consideration is a weighting error, and is not, of itself, a ground of appeal which justifies appellate intervention in the sentencing discretion, unless it amounts to a failure to exercise the discretion.[22]  Given that the appellant had not taken any steps towards rehabilitation, and had only expressed a desire to engage in counselling, it cannot be found that a failure by the magistrate to consider the appellant's prospects of rehabilitation was a failure to exercise the sentencing discretion.

   [22] Spirovski v The State of Western Australia [2017] WASCA 230 [35].

6. In any event, even if the sentencing magistrate did err, I am not satisfied that a substantial miscarriage of justice arises[23] because I am not satisfied that the appellant's prospects of rehabilitation were such that this court would have exercised the sentencing discretion differently.  Having considered all of the relevant factors, I have reached the conclusion that I would have not exercised the sentencing discretion differently as I would not be satisfied that considerations of rehabilitation, which was merely a prospect of rehabilitation and remorse, outweighed the objective features of the offences.

   [23] Criminal Appeals Act 2004 (WA) s 14(2).

7. Having found that even if error was established there was no substantial miscarriage of justice, it is not necessary to consider whether the sentence of 3 months' immediate imprisonment imposed on 14 February 2021, concurrent on the total effective term of imprisonment imposed on 11 January 2021, should be varied pursuant to s 41(2) of the Criminal Appeals Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

VV

Associate to the Honourable Justice Smith

9 APRIL 2021