Winmar v Clark
[2015] WASC 314
•19 AUGUST 2015
WINMAR -v- CLARK [2015] WASC 314
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 314 | |
| Case No: | SJA:1047/2015 | 19 AUGUST 2015 | |
| Coram: | MARTINO J | 19/08/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | CARL SHANE JEREMY WINMAR NATHAN JAMES CLARK LEANNE GREEN BRADLEY GLENN RICHARDS-SCULLY ANDREW CRAIG PURSLOWE |
Catchwords: | Appeal against sentence Whether error must be material Failure to refer to reduction in sentences for pleas of guilty Failure to give offender opportunity to make plea in mitigation |
Legislation: | Criminal Appeals Act 2004 (WA), s 8, s 14 Sentencing Act 1995 (WA), s 9AA |
Case References: | Burrows v The State of Western Australia [2014] WASCA 147 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Downey v The State of Western Australia [2012] WASCA 55 Gable v Nardini [2010] WASC 321 H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 Ninyette v Holmes [2015] WASC 287 Papertalk v The State of Western Australia [2011] WASCA 229 QJS v The State of Western Australia [2015] WASCA 9 Roberts v The State of Western Australia [2014] WASCA 239 Roffey v The State of Western Australia [2007] WASCA 246 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Rowsell v The State of Western Australia [2015] WASCA 2 Witlshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
NATHAN JAMES CLARK
First Respondent
LEANNE GREEN
Second Respondent
BRADLEY GLENN RICHARDS-SCULLY
Third Respondent
ANDREW CRAIG PURSLOWE
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S HEATH
File No : FR 11886 of 2012, AR 2085 of 2014, PE 68417 of 2014, PE 69104 of 2014, PE 69105 of 2014
Catchwords:
Appeal against sentence - Whether error must be material - Failure to refer to reduction in sentences for pleas of guilty - Failure to give offender opportunity to make plea in mitigation
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 14
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
First Respondent : Ms K C Cook
Second Respondent : Ms K C Cook
Third Respondent : Ms K C Cook
Fourth Respondent : Ms K C Cook
Solicitors:
Appellant : Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Third Respondent : Director of Public Prosecutions (WA)
Fourth Respondent : Director of Public Prosecutions (WA)
Cases referred to in judgment:
Burrows v The State of Western Australia [2014] WASCA 147
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Downey v The State of Western Australia [2012] WASCA 55
Gable v Nardini [2010] WASC 321
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Ninyette v Holmes [2015] WASC 287
Papertalk v The State of Western Australia [2011] WASCA 229
QJS v The State of Western Australia [2015] WASCA 9
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v The State of Western Australia [2007] WASCA 246
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Rowsell v The State of Western Australia [2015] WASCA 2
Witlshire v Mafi [2010] WASCA 111
- MARTINO J:
(This is an edited version of reasons delivered ex tempore on 19 August 2015.)
1 The appellant, Mr Winmar, seeks an extension of time to appeal and leave to appeal against a total effective sentence of 15 months' immediate imprisonment imposed by his Honour the Chief Magistrate on 17 February 2015. The grounds of appeal are:
1. The learned sentencing Magistrate erred in law in failing either to give the appellant credit for his plea of guilty, or to specify the reduction to his head sentence as required by s 9AA (5) of the Sentencing Act 1995 (WA).
2. The learned sentencing Magistrate erred in failing to consider whether to suspend the term of imprisonment imposed.
3. The learned sentencing Magistrate erred in imposing a total aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.
2 On the morning that this appeal was heard, by email sent at 8.59 am, Mr Winmar's solicitor gave notice that at the hearing of the appeal she would seek leave to add a fourth ground of appeal in the following terms:
4. There was a miscarriage of justice in that the appellant, who was unrepresented, was not advised that he was at risk of a sentence of imprisonment nor given the opportunity to obtain representation or invited to deliver a plea in mitigation on his own behalf.
3 The last date for appealing was 17 March 2015. The appeal notice was filed on 16 June 2015.
4 On 30 June 2015 Corboy J ordered that the application for an extension of time and the application for leave to appeal be heard at the same time as the appeal. Leave to appeal on a ground of appeal cannot be granted unless the ground has a reasonable prospect of succeeding.1
The extension of time to appeal
5 The appeal was filed almost three months late. The reasons for the delay are contained in an affidavit file by Mr Winmar's solicitor. Mr Winmar was not represented by a legal practitioner when he was sentenced. Following his sentence he was unaware of the possibility of appealing until his uncle told him so, which was some time after the sentences were imposed. I note that at the time the sentences were imposed Mr Winmar was aged 22 and had not previously been sentenced to a term of imprisonment. He asked to see Legal Aid at the prison as soon as he became aware that he could appeal. On 2 April 2015 Mr Winmar applied for legal aid for assistance with a possible appeal against sentence. Legal Aid was granted on 4 May 2015. The transcript of the sentencing was requested on 5 May 2015. The transcript was received some weeks after it was requested. Once the solicitor had the transcript she made arrangements to see Mr Winmar in prison. She saw him on 15 June 2015 and he instructed her to commence an appeal.
6 In the circumstances I am satisfied that it is appropriate to grant the extension of time.
The facts of the offending
7 The facts of the offending were provided to his Honour by the prosecutor on 17 February 2015 and were not disputed by Mr Winmar.
8 The first charge, FR 11886/12, was for an offence of aggravated burglary of a place of human habitation which Mr Winmar committed at approximately 12.22 pm on Monday 19 November 2012. Mr Winmar was outside a home in company with two other males. He had gone to the property with the specific intention of breaking into the address. He jumped the side fence and made his way around to the rear of the house. He entered the garage and selected two hammers and two screwdrivers from a small workshop inside the garage. Using a hammer and the screwdrivers he attempted to break glass at the rear and side of the house. A neighbour who had observed all three co-offenders jump the fence into the yard contacted police. Police attended and located Mr Winmar in the rear of the yard. A short foot chase took place and Mr Winmar was arrested by police.
9 The second charge, AR 2085/14, was for an offence of breaching a Community Based Order. On 2 April 2013 Mr Winmar was sentenced to a 12-month community based order with supervision and program requirements for the offence of aggravated burglary of a place of human habitation which he had committed on 19 November 2012. Mr Winmar moved between Narrogin and Perth in the early months of the order. His compliance was erratic between April and August 2013, but he appears to have been granted authorised absences on those occasions when he did not report as directed. There was an improvement in compliance between August and December 2013, although he failed to report on two occasions. One of those occasions, the failure to report on 23 December 2013, formed the basis of the breach with which Mr Winmar was charged. He last reported on 12 December 2013 and there was no further contact with him.
10 The remaining charges, PE 69104/14, PE 69105/14 and PE 68417/14, all of which were committed on 13 February 2014, were for an offence of aggravated burglary of a place of human habitation, an offence of stealing electrical items and jewellery to the value of $2,000 and an offence of trespass. At approximately 11.50 am on Thursday 13 February 2015 Mr Winmar and his co-offenders were in a car outside a residential unit. The car reversed into the drive way of the unit. All offenders got out of the car and the rear wooden door to the unit was forced open. One offender waited out the front, near the vehicle. Mr Winmar and his co offenders looked through rooms in the unit. They stole various electrical items and jewellery, which they placed in the car. This was observed by a neighbour who contacted police. Mr Winmar and his co-offenders got back into the car and it drove off. The car was intercepted by police. The car in which Mr Winmar was a passenger was involved in a police pursuit. The car was driven into bushland and Mr Winmar fled on foot. Eventually Mr Winmar was found hiding in the rear yard of a house. He had jumped a fence to get into the yard. The occupants of the property did not know Mr Winmar.
11 Charge PE 69104/14 is incorrectly recorded on Mr Winmar's record as an offence of attempted aggravated burglary of a dwelling. Mr Winmar was charged and convicted of the completed offence.
The history of the prosecutions
12 Mr Winmar's first appearance on FR 11886/12 was on 11 December 2012. A pre-sentence report was requested at that appearance, so although there is no record on the prosecution notice of a plea of guilty having been entered it is likely that it was entered. A plea of guilty is recorded as having been entered on the second appearance on 11 January 2013. On 2 April 2013 he was sentenced to the community based order.
13 In prosecution AR 2085/14 Mr Winmar was charged on summons. He failed to appear in court on 21 March 2014 and on 29 April 2014. On the second occasion an arrest warrant issued. On 20 May 2014 he attended court in custody and bail was granted. He appeared on two further occasions before a guilty plea was entered on 10 November 2014. There were appearances on 8 December 2014 and 13 January 2015, which had to be adjourned because Mr Winmar had not attended the Department of Corrective Services for the preparation of a pre-sentence report.
14 The first appearance on prosecutions PE 69104/14, PE 69105 and PE 68417/14 was on 27 February 2014. At his sixth appearance, on 8 July 2014, a trial was listed to commence on 10 November 2014. Mr Winmar was represented by counsel on 8 July and on 10 November 2014. On the morning of 10 November 2014 he pleaded guilty. There were appearances on 8 December 2014 and 13 January 2015, which had to be adjourned because Mr Winmar had not attended the Department of Corrective Services for the preparation of a pre-sentence report.
The sentences imposed by the Chief Magistrate
15 On FR 11886/12, an offence of aggravated burglary of a place of human habitation committed on 19 November 2012 the Chief Magistrate sentenced Mr Winmar to 12 months' imprisonment. On AR 2085/14, an offence of breaching a Community Based Order committed on 23 December 2013, the Chief Magistrate fined Mr Winmar $100. On PE 69104/14, an offence of aggravated burglary of a place of human habitation, the Chief Magistrate sentenced Mr Winmar to 3 months' imprisonment, on PE 69105/14, an offence of stealing, the Chief Magistrate sentenced Mr Winmar to 1 month's imprisonment and on PE 68417/14, an offence of trespass, the Chief Magistrate sentenced Mr Winmar to 3 months' imprisonment. His Honour ordered that the term of 3 months' imprisonment he imposed on PE 69104/14 be served cumulatively on the term of 12 months' imprisonment he imposed on FR 11886/12 and that the remaining terms be served concurrently. His Honour made Mr Winmar eligible for parole.
The Chief Magistrate's sentencing remarks
16 The Chief Magistrate's sentencing remarks can be quoted in full:
HIS HONOUR: Yes. All right, Mr Winmar. Mr Winmar, you have pleaded guilty to a burglary, a trespass, which is of a minor nature, and a - you've admitted that you breached the terms of your community based order, but, more significantly, of course, you've committed a further burglary whilst on a community based order for a burglary. In those circumstances, given that you appear not to have shown any motivation to address the underlying issues, a term of imprisonment and a term of immediate imprisonment is the only appropriate sentence in relation to you.
I will cancel the existing community based order, although, it has expired, re-sentence you in relation to that to matter to a term of 12 months imprisonment. There will be a sentence of three months concurrent with respect to the trespass, three months cumulative in relation to the further burglary, and one month's concurrent in relation to the associated stealing, making a total of 15 months imprisonment, and you will be eligible for parole. You need to stand down in custody. You're fined a hundred dollars in relation to the breach of the order, but no order as to costs.
Mr Winmar's personal circumstances
17 Mr Winmar was born on 5 December 1992. At the time that he committed the burglary on 19 November 2012 he was aged 19 and was about to turn 20 the following month. He was aged 21 when he committed the offences on 13 February 2014.
18 Mr Winmar had a limited history of offending as a juvenile and as an adult before he had committed the offences for which the Chief Magistrate sentenced him. He had not committed a burglary offence prior to the offence that he had committed on 19 November 2012. The pre-sentence report prepared for his Honour disclosed that the community based order which had been imposed on 2 April 2013 was the only occasion on which Mr Winmar had been sentenced to a period of community supervision.
19 He had not committed an offence after 13 February 2014.
20 Mr Winmar informed the author of the pre-sentence report that he was raised predominantly by his maternal grandmother. His grandmother passed away during the term of the community based order. During the term of that order he had experienced the passing of three close family members within a short period of time, including the violent passing of two relatives. He had also ceased an intimate relationship. The author of the pre-sentence report said that these events had apparently significantly and negatively impacted his mood and ability to maintain compliance with the order. He had been evicted from his residence. Mr Winmar's compliance with the order improved following his relocation to Perth.
21 At the time of the preparation of the report Mr Winmar was living with his uncle who operates an employment agency for Noongar men. In December 2014 Mr Winmar commenced a commercial cooking traineeship. Mr Winmar's uncle confirmed the information provided by Mr Winmar and said that Mr Winmar demonstrated a positive work ethic and was likely to be required to complete work experience on a mine site for the final six months of his traineeship. He expected the on-site work placement component of the traineeship to commence in mid-2015.
22 Mr Winmar informed the author of the pre-sentence report that he had used amphetamines prior to committing the offences. He said that following the passing away of his grandmother he had decided to cease alcohol and illicit substance use. He said that the first two months of abstinence had been difficult, but that he no longer felt the need to consume alcohol or drugs.
23 Mr Winmar informed the author of the pre-sentence report that he did not wish to be subject to any further court order.
Failure to refer to s 9AA of the Sentencing Act 1995 (WA)
24 If a person pleads guilty to an offence s 9AA(2) of the Sentencing Act 1995 (WA) permits the sentencing judicial officer to reduce the head sentence imposed for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. If the sentencing judicial officer reduces the head sentence for an offence pursuant to s 9AA(2) then the judicial officer is required by s 9AA(5) to state in open court both that the sentence has been reduced to recognise those benefits and the extent of that reduction.
25 The section does not expressly require a sentencing judicial officer to reduce a sentence by reason of a plea of guilty. It is yet to be decided whether, and if so in what circumstances, a plea of guilty may not result in any, or any significant discount.2
26 The Chief Magistrate was clearly aware that Mr Winmar pleaded guilty to all charges. The question remains whether he adjusted the sentences which he imposed by reason of that fact.3 The learned Chief Magistrate did not state that he made any reduction to the sentences by reason of the pleas of guilty. The failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judicial officer has overlooked it.4
27 The pleas of guilty for the offences which were listed for trial on 10 November 2014 were very late pleas and it is conceivable that, in those circumstances, a presiding judicial officer may have considered the question of whether a reduction in sentence should have been provided and decided that there should be no reduction, or no significant reduction.
28 However the plea of guilty on the first charge was entered at an early stage of the prosecution. In my view it clearly warranted consideration of a reduction in the sentence by reason of the plea of guilty. I infer from the failure to refer to consideration of a reduction in the sentence by reason of the plea of guilty that in respect of each of the charges the learned Chief Magistrate overlooked doing so. That inference is confirmed by the sentence of 12 months' imprisonment that was imposed on FR 11886/12, having regard to the facts of the burglary, Mr Winmar's age at the time that he committed the offence and his personal circumstances which I have summarised.
29 In Ninyette v Holmes5 Mitchell J referred to Burrows v The State of Western Australia6 where Hall J said that the failure of the sentencing judicial officer to quantify the discount under s 9AA of the Sentencing Act was not a material error on the facts of that case. Mitchell J noted that in that case the requirement of materiality was referenced to s 31(4)(a) of the Criminal Appeals Act 2004 (WA), which is in pt 3 and that there is no equivalent to s 31 in pt 2 of the Criminal Appeals Act.7 Mitchell J expressed the view that there is no warrant for reading the word 'material' into s 8(1)(a)(i) of the Criminal Appeals Act and that the materiality of the error is to be addressed when considering whether there is no substantial miscarriage of justice under s 14(2) - [65].
30 Although s 31(4)(a) of the Criminal Appeals Act was referred to in Burrows v The State of Western Australia at [34] the word material does not appear in that section. Section 14 of the Criminal Appeals Act applies to appeals from courts of summary jurisdiction. Section 14(1)(b), like s 31(4), provides that the Supreme Court may allow an appeal, but does not require an appeal to be allowed if an appellant has demonstrated error. The need for an error to be material was expressed in the recent decisions of the Court of Appeal in Roberts v The State of Western Australia at [47] and Rowsell v The State of Western Australia8at [34]. Although those appeals were under pt 3 of the Criminal Appeals Act the requirement for an error to be material before the appellate jurisdiction is enlivened was expressed in general terms, not limited to appeals under pt 3 and without reference to s 31. On the present state of the authorities it is my view that I am bound to follow the principle expressed by the Court of Appeal in those cases that not all errors made by a sentencing judicial officer will enliven the appellate court's jurisdiction, which will only be enlivened if the error is material.
31 Whether or not my conclusion that the court's jurisdiction is enlivened by an error only if the error material is correct the Supreme Court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred.9
32 Whether the error was material and whether a substantial miscarriage of justice has occurred can be determined when considering the remaining grounds of appeal.
Whether the learned Chief Magistrate failed to consider whether to suspend the term of imprisonment
33 When a judicial officer sentences an offender to a term of imprisonment for which a suspended term is possible the judicial officer is required to examine all the considerations that were relevant to the decision to sentence the offender to a term of imprisonment to decide whether to suspend that term.10
34 By ground 2 the appellant contends that the Chief Magistrate failed to consider whether to suspend the term of imprisonment. The Chief Magistrate referred to a term of imprisonment then said 'and a term of immediate imprisonment' was the only appropriate sentence. The fact that his Honour referred to a term of imprisonment and then referred to an immediate term demonstrates in my view that his Honour had considered whether to suspend the term and had decided not to do so. This ground of appeal has no reasonable prospect of success.
Whether the sentence infringes the totality principle
35 Mr Winmar relies on the first limb of the totality principle. This requires that the total sentence imposed on an offender bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.11
36 The maximum penalty for each of the two offences of aggravated burglary of a place of human habitation is 20 years' imprisonment. The maximum penalty that can be imposed in the Magistrates Court is 3 years' imprisonment and a fine of $36,000. The maximum penalty in the Magistrates Court limits the jurisdiction of that court, but it is the statutory maximum of 20 years' imprisonment that is relevant to the assessment of the seriousness of the offending.12
37 The aggravated burglary committed on 13 February 2014 was committed when Mr Winmar was on the community based order for the aggravated burglary that he had committed on 19 November 2012. This was an aggravating factor.13
38 The range of sentences for aggravated burglaries of homes has firmed up by reason of the prevalence of that offending.14 Ordinarily, the offence attracts a term of immediate imprisonment, but each case must be determined on its own facts.15
39 Mr Winmar was a young man who had taken steps to rehabilitate himself by ceasing consuming drugs and alcohol and undertaking employment training. However the burglaries of homes were serious offences and Mr Winmar committed the second burglary when he was on a community based order for the first burglary.
40 In the second burglary electrical items and jewellery were stolen and, as I have said, it was aggravated by the fact that it was committed when Mr Winmar was on the community based order. I infer that the sentence of 3 months' imprisonment imposed for that offence was reduced in the application of the totality principle.
41 The reduction for that reason, together with the failure to comply with s 9AA of the Sentencing Act, mean that it is necessary to consider appropriate sentences for each of the offences of aggravated burglary before deciding whether the totality principle has been offended. For the burglary committed on 19 November 2012 in my view an appropriate head sentence would have been 12 months' imprisonment. An appropriate reduction for the early plea of guilty would have been a reduction of 25%. Having regard to the mitigation provided by Mr Winmar's youth and steps that he had taken towards rehabilitation an appropriate sentence would have been 6 months' imprisonment.
42 For the burglary committed on 13 February 2014 in my view an appropriate head sentence would have been 18 months' imprisonment. An appropriate reduction for the late plea of guilty would have been a reduction of 5%. Having regard to the mitigation provided by Mr Winmar's youth and steps that he had taken towards rehabilitation an appropriate sentence would have been 12 months' imprisonment.
43 They were two separate offences committed at separate times and in my view two sentences of 6 and 12 months' imprisonment could have been ordered to be served cumulatively.
44 In my view it cannot be said that the total sentence of 15 months' imprisonment that was imposed for the two aggravated burglary offences failed to bear a proper relationship to the overall criminality involved in all the offences having regard to the circumstances of the case, including those referable to Mr Winmar. In my view the length of the total sentence that was imposed was appropriate. This ground of appeal has no reasonable prospect of success.
Whether the Chief Magistrate erred in failing to allow Mr Winmar to secure legal representation or to deliver a plea in mitigation
45 As I have noted Mr Winmar was not represented at the hearing on 17 February 2015. After the prosecutor provided the facts to his Honour the following exchange occurred:
HIS HONOUR: Do you agree that's what happened?
ACCUSED: Yes.
HIS HONOUR: Yes. All right. When you attended the presentence report, they indicated that you weren't happy to go on any further order; is that right?
ACCUSED: Suspended sentence. It was a suspended sentence.
HIS HONOUR: Yes. You don't want to go on any community supervision, though?
ACCUSED: Well, I almost completed the other one. I did, like, 11 months of it.
46 His Honour then proceeded to sentence Mr Winmar.
47 Mr Winmar relies on Gable v Nardini16 where EM Heenan J said:
53 In Wood v Marsh [2003] WASCA 95 Malcolm CJ at [35] (with whom Murray and Anderson JJ agreed) cited with approval a statement made by Wells J in Cooling v Steel (1971) 2 SASR 249, 249 - 250 about the correct approach which a court should take when an unrepresented person appears before it and pleads guilty to an offence. These observations were to the effect that the court should ensure that the person is appraised of their rights and specifically that he or she is told of: the ability to obtain legal advice and representation; the right to seek a reasonable adjournment to obtain that advice or representation; the seriousness of the charge and the penalties which may be imposed, especially where there is a risk of being sentenced to a term of imprisonment; the ability to dispute or comment upon the facts alleged by the prosecutor; and that the accused is aware that he or she may put before the court any matter in mitigation. This approach has been expressly adopted in this court in Saylor v Shephard [2010] WASC 94 [26] - [27] per Mazza J.
54 These obligations were also recognised in Scanlon v Bove [2008] WASC 213; Warren v Van Den Berg [2004] WASCA 32; and Giowkos v The Queen (Unreported, WASCA, Library No 980224, 5 May 1998). Remarks to the same general effect about the need to ensure that a litigant in person is not unfairly prejudiced because of ignorance of the law or its procedures can be found in Tobin v Dodd[2004] WASCA 288, and in Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129. Obviously, much depends upon the particular circumstances and it is not the responsibility of the court to assume that the burden of identifying and presenting the case for the unrepresented litigant. Nevertheless, especially in the criminal jurisdiction, the court should be astute to ensure that an unrepresented litigant is not, because of inexperience, ignorance or lack of familiarity with the procedure, exposed to a liability or a consequence which could have been avoided or diminished had an opportunity been taken to address the critical issues or to take some other initiative which may have led to relevant factors receiving due attention.
…
56 In a number of cases where appeals have been undertaken by persons who initially were unrepresented, but who then submitted that their lack of representation exposed them to some disadvantageous consequence which could have been avoided had their attention been drawn to the impending peril, the response of the appeal court has been that nothing which might have been said or advanced on behalf of the unrepresented person would have led to any different outcome. That is not an answer to a failure to ensure that the litigant is aware of the risks which he or she may be facing and of the opportunities of obtaining legal representation or an adjournment but, rather, amounts to a conclusion that there has been no miscarriage of justice notwithstanding the course of events followed.
57 So in the present case counsel for the respondents has submitted that no substantial miscarriage of justice has arisen because the applicant was not alerted to the possibility of immediate imprisonment or given an opportunity to seek legal advice or an adjournment when before the court on 21 July 2010. However, I do not think that that submission should be accepted because it proceeds on the assumption that the sentences imposed on 21 July were, in any circumstances, inevitable. That is plainly not the case and, had the applicant had an opportunity to obtain an adjournment and obtain legal advice, there is every possibility that he may have been advised to seek leave to appeal against the decision of 7 August 2009, which he is now doing, and to put before the court submissions to the effect that even if the later offence had involved a breach of a term of suspended imprisonment it did not automatically follow, as his Honour treated it as following, that an immediate term of imprisonment was inevitable on 21 July 2010.
48 In this case Mr Winmar was represented by very experienced counsel at the hearings on 8 July and 10 November 2014. It is inconceivable that counsel did not provide Mr Winmar with appropriate advice. I asked the solicitor for Mr Winmar if she wished to obtain an adjournment to investigate whether Mr Winmar obtained appropriate advice. She did not apply for an adjournment.
49 The Chief Magistrate asked Mr Winmar if he agreed with what had happened. Mr Winmar said he did. The Chief Magistrate did not deny Mr Winmar the opportunity to obtain legal representation.
50 However it is my view that the learned Chief Magistrate did not give Mr Winmar the opportunity to present a plea in mitigation in person. In this case there were substantial mitigating factors. As I have said Mr Winmar was a young man who had taken steps to rehabilitate himself by ceasing consuming drugs and alcohol and undertaking employment training. He had not offended since for a period of 12 months. These matters warranted consideration. They were not referred to by his Honour. In my view it cannot be said that if they had been given consideration that a different sentence would not have been imposed. It follows that the error was material and that there has been a substantial miscarriage of justice and that the appeal should be allowed.
Resentencing
51 In resentencing Mr Winmar I take into account that he has spent 6 months in prison since he was sentenced on 17 February 2015. I take into account the seriousness of the offending to which I have referred. I also take into account the matters to Mr Winmar's credit to which I have referred.
52 In the circumstances I consider it appropriate to sentence Mr Winmar as follows.
53 On FR 11886/12 for the burglary committed on 19 November 2012 the cancellation of the community-based order was appropriate. It had in any event expired. In my view an appropriate head sentence is 12 months' imprisonment. An appropriate reduction for the early plea of guilty is a reduction of 25%. Having regard to the mitigation provided by Mr Winmar's youth and steps that he had taken towards rehabilitation an appropriate sentence is 6 months' imprisonment.
54 For the offences committed on 13 February 2014 an appropriate reduction for the late pleas of guilty is a reduction of 5%. On PE 69104/14 for the burglary offence in my view an appropriate head sentence is 18 months' imprisonment. Having regard to the mitigation provided by Mr Winmar's youth and steps that he had taken towards rehabilitation an appropriate sentence would have been 12 months' imprisonment. However, I reduce that sentence to 3 months' imprisonment for two reasons: totality reasons and to reflect the time spent in custody.
55 On PE 69105/14, the offence of stealing, it is appropriate to impose no sentence under s 11 of the Sentencing Act as the stealing offence is incorporated in the burglary. On PE 68417/14, the offence of trespass the sentence of 3 months' imprisonment originally imposed remains appropriate.
56 I order that the sentence of 3 months' imprisonment on PE 69104/14 be served cumulatively on the sentence of 6 months' imprisonment on FR 11886/12. The other sentence will be served concurrently, so the total sentence is 9 months' imprisonment.
57 I have considered whether that term should be served or suspended. Having regard to the matters to Mr Winmar's credit, the time already spent in custody and the fact that while in custody Mr Winmar has continued to work towards rehabilitation I consider it appropriate to suspend that term of imprisonment for 9 months, notwithstanding the seriousness of the offending.
58 The fine imposed on AR 2085/14 is unaffected.
Conclusion
59 The Chief Magistrate did not fail to consider whether to suspend the term of imprisonment. The sentence imposed by his Honour did not offend the totality principle. The Chief Magistrate failed to apply s 9AA of the Sentencing Act and he denied Mr Winmar the opportunity to make a plea in mitigation. These errors were material and resulted in a substantial miscarriage of justice.
60 I give leave to appeal out of time. I give Mr Winmar leave to add the fourth ground of appeal. I refuse leave to appeal on grounds 2 and 3. I grant leave to appeal on grounds 1 and 4, allow the appeal and resentence Mr Winmar as I have indicated.
1Criminal Appeals Act 2004 (WA) s 9(2).
2Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [59].
3Roberts v The State of Western Australia [2014] WASCA 239 [48].
4H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10].
5Ninyette v Holmes [2015] WASC 287.
6Burrows v The State of Western Australia [2014] WASCA 147 [32].
7Ninyette v Holmes [2015] WASC 287 [56].
8Rowsell v The State of Western Australia[2015] WASCA 2.
9Criminal Appeals Act 2004 (WA) s 14(2).
10Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
11Roffey v The State of Western Australia [2007] WASCA 246 [26].
12Witlshire v Mafi [2010] WASCA 111.
13QJS v The State of Western Australia [2015] WASCA 9.
14Papertalk v The State of Western Australia[2011] WASCA 229.
15Downey v The State of Western Australia[2012] WASCA 55.
16Gable v Nardini [2010] WASC 321.
22
2