Woodman v Begg
[2025] WASC 317
•8 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WOODMAN -v- BEGG [2025] WASC 317
CORAM: FORRESTER J
HEARD: 24 APRIL 2025
DELIVERED : 24 APRIL 2025
PUBLISHED : 8 AUGUST 2025
FILE NO/S: SJA 1018 of 2025
BETWEEN: JASON WOODMAN
Appellant
AND
BLAKE ALLEN BEGG
Respondent
ON APPEAL FROM:
For File No: SJA 1018 of 2025
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G MACLEAN
File Number : KH 1219 OF 2024
PH 370-372 OF 2025
PH 2766 OF 2024
Catchwords:
Criminal law - Single judge appeal - Appeal against sentence - Whether miscarriage of justice due to magistrate re-sentencing appellant on erroneous factual basis
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Extension of time granted
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal allowed in relation to ground 1
Appellant re-sentenced
Representation:
Counsel:
| Appellant | : | Mr N Mcingolwane |
| Respondent | : | Mr L Geddes |
Solicitors:
| Appellant | : | Legal Aid - South Hedland |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
House v R [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Nang & Associates Pty Ltd v Chan [2022] WASC 12
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
(This judgment was delivered extemporaneously on 24 April 2025 and has been edited from the transcript to correct matters of grammar and infelicities of language, and to insert headings and references.)
Introduction
On 9 July 2024, the appellant pleaded guilty to the offence of aggravated common assault. He was sentenced to a Community Based Order (CBO) for a period of 8 months, with programme and supervision requirements and a community work requirement of 40 hours.
The appellant failed to comply with the CBO and was charged with an offence pursuant to s 131 of the Sentencing Act 1995 (WA) (Act). Pursuant to s 133(1)(a)(iii) of the Act, the CBO was cancelled. On 7 February 2025, the appellant was sentenced by a different magistrate to a term of 7 months' imprisonment for the aggravated common assault, commencing on 7 February 2025.
The appellant now appeals that sentence, including on the basis that there was a miscarriage of justice because the learned magistrate who was called upon to sentence the appellant following his breach of the CBO was provided with an erroneous statement of material facts. An extension of time is required.
The respondent conceded the extension of time should be granted, and the appeal allowed on ground one, if ground one were amended to be in those terms.
For the reasons which follow, the respondent's concession was properly made. The appeal should be allowed and the respondent should be re‑sentenced.
Proceedings in the Magistrates Court on 9 July 2024
On 9 July 2024, in the Magistrates Court at South Hedland, the appellant pleaded guilty to the charge of aggravated common assault. The following facts were stated to have been agreed between the parties:
The assault, your Honour, it's family violence related. The victim, Ms S, 42. The accused is 44. She's 160 cm tall and a slim build. He's 185 cm and a medium build. They're ex-partners. Monday, 15 April 2024, it was 9 o'clock in the evening. The victim returned to her home address…in company with two of her children, aged five and seven years. The accused was waiting for the victim on the footpath out the front.
The victim told the children to go inside the address. When they did, the accused became angry with the victim about where she had been. He was being jealous. The victim sat down on a chair out the front, and the accused walked up to her and began shaking her. The accused then pushed the victim away from him. The victim has started yelling and swearing at the accused, when the son came outside to check on them. The victim told the son to run to the neighbours and call police, which he did.
The accused left the scene. He was arrested later.[1]
[1]9 July 2024, ts 3.
In response to submissions by the appellant's counsel at the sentencing hearing that the assault constituted 'shaking and pushing' and was 'a fairly low-end application of force',[2] the learned magistrate said:
Look, I agree that in terms of the level of physical violence, that's something that does tend to put it towards the lower end. It's just concerning - I mean, he knew the kids were there. The fact that the kids were in the house didn't dissuade him from engaging in this behaviour, and then so they've…obviously been exposed to at least the sound of the dispute, and the young son has come out. So it is, obviously, a significant aggravating feature that the kids were exposed…so that's something that, I think, lifts it above, you know, a really low-end assault. I accept it's still towards the lower end.[3]
[2] ts 4.
[3] ts 4 - 5.
Counsel again emphasised what he called the 'slightly physical' nature of the assault and the lack of injuries sustained by the victim.[4]
[4] ts 5.
The prosecution submitted that a fine would be inappropriate, but that a [community] order might be imposed.[5] In response, counsel for the appellant expressed concern at his ability to comply with such an order, given his family circumstances.[6]
[5] ts 6.
[6] ts 7.
Ultimately however, having regard to the circumstances of the offence, an early plea of guilty (which attracted a discount of 22%), remorse, the appellant's antecedents, personal deterrence and protection of the community, and general deterrence, the learned magistrate imposed an 8-month CBO with supervision and programme requirements, and a community service requirement of 40 hours.
Proceedings in the Magistrates Court on 7 February 2024
On 7 February 2025, the appellant was brought before the Magistrates Court at South Hedland. On that date, he pleaded guilty to a charge of failing to comply with the CBO imposed on 9 July 2024, as well as charges of breach of bail, giving false details, and obstructing a police officer.
A Community Corrections Officer (CCO) informed the court that, following the imposition of the CBO, the appellant failed to report within 72 hours as required, and made no contact with Community Corrections. Community Corrections attempted to make contact by home visits on several occasions, without success. He was charged with the offence of breaching the CBO in November 2024.
The appellant appeared in court on 20 January 2025, and was instructed by the magistrate on that occasion to attend Community Corrections and to engage with the order. The appellant failed to do so, but telephoned Community Corrections on 3 February 2025. He was instructed to attend on 5 February 2025, and did so.
The transcript records that it was the CCO who stated the facts for the aggravated common assault in relation to which the CBO was imposed. Whether that is in fact accurate or not, the facts were recited in the same terms as on 9 July 2024, until the details of the physical assault, at which point the facts were stated differently as shown below:
The victim sat down on a chair out the front,
and the accused walked up to her and began shaking her. The accused then pushed the victim away from him.when the accused walked up to her and punched her with a closed left-hand fist, making contact with the right-hand side of her chest, causing instant pain to her rib area. He then slapped her with an open right-hand palm to the left-hand side of her face, connecting with her ear. The victim then started yelling and swearing at the accused.[7][7] 7 February 2025, ts 4 - 5.
Neither the prosecutor nor the appellant's counsel (who was not counsel at the sentencing on 9 July 2024) identified that the facts were different to those recited at the initial sentencing of the appellant.
The appellant's counsel did not address the facts of the aggravated common assault, but submitted that his Honour should order that the CBO should continue.[8]
[8] ts 6.
In response to that submission, his Honour observed:
Yes. Well, he didn't do the last one. There's no – he didn't come to court. He just doesn't do anything. In terms of him being a vehicle for doing orders, he just doesn't do them. So we're left then for a re-sentence in relation to domestic violence, and, you know, you can go to jail for that…
You then get re-sentenced before a different magistrate, who might have a different view, armed also with the knowledge that you just didn't do the order…[9]
[9] ts 6.
The learned magistrate then proceeded to re-sentence the appellant for the aggravated common assault. His Honour referred to the facts as set out during the hearing, noted the appellant's criminal record, including a record for violence and his plea of guilty, and said:
In my view, domestic violence is always serious. This was not some sort of lower end assault. At the same time, it also wasn't at the upper end of seriousness in terms of this particular offence. But a term of imprisonment is, in my view, open.
…
In my view, the starting point for this particular offence is a prison term of 12 months.[10]
[10] ts 7.
Taking into account delay, and 'the somewhat complicated background to things', the learned magistrate sentenced the appellant to a term of imprisonment for 7 months.[11] His Honour declined to suspend the term of imprisonment.[12] A global fine was imposed for the other offences to which the appellant had pleaded guilty.[13]
[11] ts 7.
[12] ts 8.
[13] ts 8.
Grounds of Appeal
As I said, the appellant has appealed against the sentence imposed by the learned magistrate on 7 February 2025 on the following grounds:
1. There was error of both fact and law resulting in a miscarriage of justice when the learned magistrate in re-sentencing the appellant for the offence of aggravated assault re-sentenced the appellant on facts that were significantly more serious than the factual circumstances the appellant had entered a plea of guilty to and on which the appellant had been sentenced to a community based order, resulting in a miscarriage of justice (sic).
2.The Magistrates decision to impose an immediate term of 7 months imprisonment on resentencing the Appellant for a charge of aggravated assault was manifestly excessive (sic).
Respondent's concession
In light of the issues on the appeal and the time which had already expired, it is appropriate to acknowledge the respondent's conduct of this matter. In particular, the respondent agreed to file written submissions as to his position on the appeal without first requiring the appellant to do so, in order that the appeal proceed more efficiently and quickly. That has been of significant assistance to the court and the administration of justice and is to be commended.
In those submissions, the respondent indicated that, if the first ground of appeal was amended to allege that there was a miscarriage of justice because the appellant was sentenced on an erroneous factual basis, the respondent would concede that ground of appeal.
The appellant then sought leave to amend ground one accordingly, and leave was granted.
Statutory framework and legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). A sentence imposed as a result of a conviction is a decision which may be appealed.[14]
[14] CAA, s 6 (f) and s 7(1).
An appeal from a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by the court.[15]
[15] CAA, s10(3).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of appeal has a reasonable prospect of succeeding,[16] meaning that the ground is required to have a rational and logical prospect of succeeding.[17] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[18]
[16] CAA, s 9(2).
[17] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[18] CAA, s 9(3).
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.[19]
[19] CAA s 14(2).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[20]
[20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Extension of time
The delay in filing the notice of appeal has been adequately explained, and I am satisfied that an extension of time is appropriate in this case.
Ground 1 - disposition
As to ground one, it is common ground that, pursuant to s 133(1)(a)(iii) of the Act, the learned magistrate who dealt with the appellant on 7 February 2025 was entitled to sentence the appellant afresh for the offence of aggravated common assault. The appellant did not submit on appeal that his Honour erred in exercising his discretion to proceed in that manner, notwithstanding that the CBO was still in force.
Pursuant to s 133(1)(a)(iii) of the Act, the learned magistrate was entitled to cancel the CBO and:
…sentence the person for the offence for which the [CBO] was imposed in any manner the court could if it had just convicted the person of that offence.
In his written submissions, the respondent referred to s 129(3) and s 129(4) of the Criminal Procedure Act 2004 (WA) (CPA). Section 129(3) requires the prosecution to state aloud the material facts of the offence to which the accused pleaded guilty. Section 129(4) requires that, if the accused has been served with one or more written statements of material facts, it is the facts in the written statement last served which must be stated aloud.
In this case, I am told that an updated written statement of material facts was served on the appellant, and accordingly it was that written statement of material facts which was required to be stated aloud pursuant to s 129(4) of the CPA.
It is unclear to me how, in a case in which an updated written statement of material facts had been served upon the appellant, it was possible for the original statement of material facts to be read out at the re‑sentencing of the appellant. While it is possible that the involvement of Community Corrections in the matter resulted in some confusion, the original statement of material facts had no relevance to the proceedings at any time, and it is of some concern that the matter proceeded in the way that it did.
It is also concerning that the appellant's counsel at the hearing, notwithstanding that they were different counsel to counsel who appeared on the appellant's original sentencing, was not in a position to inform the court as to the facts upon which the appellant was originally sentenced.
In light of what occurred, the respondent conceded that there has been a miscarriage of justice in this case. On the basis that the incorrect facts were read, that concession was properly made.
In my view, it is more apt to characterise what occurred in this case as giving rise to a miscarriage of justice, although it may also be characterised as an error of fact.
In the case of a miscarriage of justice, the appeal may be dismissed if the court is satisfied that no substantial miscarriage of justice has occurred. If there has been an error of fact, the court is required to consider whether it can exclude the possibility that the error affected the sentence imposed.[21] In this case, that possibility cannot be excluded.
[21] Nang & Associates Pty Ltd v Chan [2022] WASC 12 [11].
In either case, the circumstances of this case ultimately require me to determine the sentence which I would impose if I were to exercise the sentencing discretion afresh. If a lesser sentence would be imposed, the appeal should be allowed and the appellant should be resentenced.
In my view, if the appellant were to be re-sentenced on the factual basis on which he was originally sentenced, a lesser sentence would undoubtedly have been imposed upon him. In those circumstances, there has been a substantial miscarriage of justice and the appellant must be resentenced.
Ground 2
It is neither necessary nor appropriate in those circumstances to determine ground two.
Orders
An extension of time is granted.
Leave to appeal is granted in relation to ground one and refused in relation to ground two.
The appeal is allowed.
Sentencing
After hearing sentencing submissions and receiving an oral pre‑sentence report, on 24 April 2025, pursuant to s 133(1)(b) of the Act, the appellant was re-sentenced to an Intensive Supervision Order, with a programme requirement, for a period of 6 months.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Honourable Justice Forrester
8 AUGUST 2025
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