CHARLIE -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 199 (14 June 2022)

3 On 19 January 2022, Mr Charlie appeared before the South Hedland Magistrates Court and pleaded guilty to five charges. On the same day, he was sentenced to a total effective sentence of 8 months imprisonment backdated to 13 January 2022. Mr Charlie appeals against that sentence.

4 I heard this matter on 27 May 2022 and further argument on 2 June 2022. Given that Mr Charlie had already served more than half his sentence of imprisonment, at the conclusion of submissions on 2 June 2022 I made orders setting aside the sentence of immediate imprisonment and resentenced Mr Charlie to an Intensive Supervision Order (ISO). Those orders are set out at the end of this judgment. I advised that I would deliver reasons in due course. These are those reasons.

5 The charges of which Mr Charlie was convicted are:

(a) stealing a motor vehicle pursuant to s 378 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) (the first offence);

(b) stealing pursuant to s 378 of the Criminal Code (the second offence);

(c) driving without authority pursuant to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (RTA) (the third offence);

(d) reckless driving pursuant to s 60(1A)(b) of the RTA (the fourth offence); and

(e) failing to comply with police directions while driving a vehicle pursuant to s 44 of the RTA (the fifth offence).

6 The offences arose from a single chain of events that is depressingly familiar.

7 On 11 January 2022, at 11.30 pm, Mr Charlie entered a vehicle belonging to his uncle, which had been left idling outside a residential property in Newman. Without his uncle's consent, Mr Charlie drove away in the vehicle. This is the substance of the first offence, for which Mr Charlie was sentenced to 6 months imprisonment.

8 At 12.36 am on 12 January 2022, Mr Charlie drove the vehicle to a Caltex petrol station in Newman. He filled the vehicle with $76.24 worth of petrol, and then drove away from the petrol station without paying. This is the substance of the second offence, for which Mr Charlie was fined $100.

9 At the time of the offences, Mr Charlie's driver's licence was suspended. This is the substance of the third offence for which Mr Charlie was fined $400 and was disqualified from holding or obtaining a driver's licence for 9 months.

10 That same morning, that is 12 January 2022, Mr Charlie drove around the townsite of Newman, to Meekatharra, and back to Newman. He was seen by police after he arrived back in Newman and was assessed as traveling between 120 km/h and 140 km/h in a 60 km/h zone. In front of the learned magistrate, Mr Charlie pleaded guilty to the charge of reckless driving (the fourth offence), (though he thought that he may not have been travelling in excess of 120 km/h). For this offence, Mr Charlie was sentenced to 2 months imprisonment (cumulative) and was disqualified from holding or obtaining a driver's licence for 6 months (cumulative).

11 The police activated their emergency lights and sirens. Mr Charlie failed to stop. This is the substance of the fifth and final offence for which Mr Charlie was fined $300.

12 Mr Charlie's personal circumstances are of significance. At the time of the offences, Mr Charlie was 22 years old. He was born and raised in Newman in circumstances of family violence and was placed under the care of the State at the age of 15. Mr Charlie also has a history of substance abuse, including solvent abuse and binge drinking, which began when he was 11 years old.

13 In 2016, Mr Charlie was diagnosed with foetal alcohol spectrum disorder (FASD) by way of a multidisciplinary report conducted by FASTRACK Clinical Services dated 30 December 2016 (the FASD Report).

14 Mr Charlie left school in year 9 and underwent Martu Lore in 2016. Mr Charlie speaks Martu, an Indigenous language spoken across Martu country (the Western Desert). Mr Charlie speaks limited English and has never been gainfully employed.

15 Mr Charlie also has a criminal history and has previously served three terms of imprisonment as an adult.

16 On 13 August 2018, Mr Charlie was sentenced to 8 months immediate imprisonment for a variety of traffic offences, including dangerous driving and failing to comply with police directions.

17 On 10 June 2020, Mr Charlie was sentenced to 7 months immediate imprisonment for a range of offences including stealing a motor vehicle and unlawful assault.

18 The most recent of these terms was imposed in October 2021. Mr Charlie was convicted of several charges including attempted burglary, unlawful assault causing bodily harm, and assault on a public officer. He was sentenced to 10 months immediate imprisonment, backdated to February 2021. His term expired on 20 December 2021.

19 It was also accepted by the learned magistrate that Mr Charlie had, prior to the sentencing hearing, suffered some corporeal punishment at the hands of his community for the events of 11 and 12 January 2022.

20 Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made on one or more of these grounds:

(i) Made an error of law or fact, or of both law and fact;

(iii) Imposed a sentence that was inadequate or excessive;

(b) That there has been a miscarriage of justice.

21 Leave to appeal is required for each ground of appeal.

22 The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has reasonable prospect of succeeding. This means that the ground is required to have a real, rational, and logical prospect of succeeding.[2]

23 The appellant requires an extension of time in order to bring this appeal. Section 10(3) of the Criminal Appeals Act provides that an appeal against sentence in the Magistrates Court cannot be commenced later than 28 days after the date of the decision, unless the court otherwise orders.

24 The last date for appealing the decision of 19 January 2022 was 16 February 2022. The appeal notice was filed with the court on 9 March 2022. Therefore, the appeal was filed 21 days out of time.

25 The appellant's application for an extension of time was supported by the affidavit of Anthony Doug Sullivan dated 9 March 2022. The explanation of delay provided by the affidavit is less than fulsome. In summary, a series of small delays resulted in the appeal being lodged three weeks out of time. These delays principally related to the availability of relevant documents but there is no substantive explanation for a delay of a further week once all necessary documents became available.

26 The respondent's position in relation to the extension was that it should stand or fall with the question of leave.[3] That is, in the event that leave to appeal should be granted, the need to extend time should not be prohibitive.

27 The delay was not extensive and was largely if not entirely explained. As I have determined that this appeal has merit, I shall grant the extension of time so as to permit Mr Charlie to commence his appeal on 9 March 2022.

28 Mr Charlie appeals against his sentence on five grounds.

29 First, it was submitted on behalf of Mr Charlie that the sentencing magistrate erred in characterising Mr Charlie's personal circumstances as having less weight than the need for general deterrence.

30 Secondly, it was submitted on behalf of Mr Charlie that the sentencing magistrate failed to take account of Mr Charlie's mental health issues as required by the principles outlined in Krijestorac v The State of Western Australia.[4]

31 Thirdly, it was submitted on behalf of Mr Charlie that the individual sentences imposed by the learned magistrate were manifestly excessive.

32 Fourthly, it was submitted on behalf of Mr Charlie that the total effective sentence imposed by the magistrate was manifestly excessive.

33 At hearing of the appeal, I granted leave for the appellant to amend the appeal notice to include a fifth ground of appeal. That fifth ground is that the learned magistrate's exercise of the sentencing discretion without consideration of the content of the FASD Report, amounted to a miscarriage of justice.

34 First, the appellant submits that the magistrate erred in characterising Mr Charlie's personal circumstances as having less weight than the need for general deterrence.

35 In his submissions, Mr Charlie's counsel drew attention to various transcript extracts and invited me to draw the conclusion that the learned magistrate intended to elevate general deterrence as the primary sentencing consideration.

36 The transcript extracts identified by Mr Charlie's counsel included:

HIS HONOUR: And the message has to be clearly sent. Whether it's effectively sent to Mr Charlie or otherwise, it has to be clear to the community that if you do this, it's dangerous and, you know, you go to jail.[5]

HIS HONOUR: The community more generally has to be aware that if someone engages in this type of offence ... that individuals who engage in the behaviour will be punished, punished severely.[6]

37 In support of this ground, Mr Charlie's counsel submitted that the charges of which Mr Charlie was convicted were not offences where 'matters personal' are to be reduced in weight or considered as having less significance than general deterrence. Mr Charlie's counsel further contended that Mr Charlie is not an 'appropriate vehicle' for general deterrence.

38 It is well-established that it is not the role of an appellate court to scrutinise the reasons of a magistrate with an eye keenly attuned to the identification of error. It is also not appropriate to read into the magistrate's reasons an error or failure of law because of some infelicity of language. The circumstances in which magistrates are expected to perform their function result, unsurprisingly, in these occasional infelicities.[7]

39 It may be that the magistrate expressed himself in such a way as to give the impression in parts of his remarks that he placed some heightened significance on the consideration of general deterrence. Read as a whole, it is far from clear that the learned magistrate's remarks can fairly be understood in that way. But in any event, the legal principles in this regard are not controversial. The failure to give adequate weight to a relevant sentencing consideration is an appealable error only if it amounts to a failure on behalf of the sentencing judge to properly exercise his or her discretion.[8]

40 I am not persuaded that the magistrate afforded so much weight to the general deterrence consideration as to amount to a failure to properly exercise his discretion. General deterrence is, obviously, a valid and indeed important sentencing consideration. So too are community protection, specific deterrence, and the possibility of rehabilitating the offender, all of which were considered by the magistrate.[9] The weighing of the various relevant factors is a necessary and inherent aspect of the exercise of the sentencing discretion.

42 Both the third and fourth grounds of appeal allege manifest excess on the part of the sentencing magistrate. The third ground alleges that the individual sentences were excessive. The fourth ground alleges that the total effective sentence was excessive, and in particular that a sentence other than imprisonment was warranted, or at least that the term of imprisonment should have been suspended.

43 The principles in relation to manifest excess, both in respect of individual sentences and the total effective sentence were summarised in Kabambi v The State of Western Australia and need not be repeated.[10]

Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.

...

(2) If the thing stolen is a motor vehicle and the offender -

wilfully drives the motor vehicle in a manner that constitutes an offence under the Road Traffic Act 1974 section 60 or 60A; or

drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving),

the offender is liable to imprisonment for 8 years.

45 The summary conviction penalty for stealing a motor vehicle is 2 years imprisonment.[11] An accused may be charged with an offence under s 60 of the RTA, and also charged with stealing in the circumstances of s 378(2) of the Criminal Code. An offender may be punished for both of those offences.[12]

46 There is no established range of sentences customarily imposed for offences of the type committed by Mr Charlie. Driving and stealing offences are subject to significant variation regarding the seriousness of the offence and the moral culpability of the offender. In the case of Mr Charlie, he drove a stolen motor vehicle some considerable distance, when he was disqualified from driving, and drove in a manner that was objectively extremely dangerous to the point of being reckless. He committed those offences against the background of the criminal history outlined above.

47 Error in the exercise of the learned magistrate's discretion could only be found if it was not open to the learned magistrate to find that a term of imprisonment was the only appropriate sentence.

48 Counsel for Mr Charlie drew attention to two cases intended to assist the court in understanding his submission: Douglas v Ferguson,[13] and Bedford v Binnekamp.[14]

49 Respectfully, I am not persuaded that either of these decisions are sufficient to indicate manifest excess in the case of Mr Charlie. Within the wide range of possible sentences available for offences such as stealing and reckless driving, it is possible of course to identify cases where the accused is sentenced to a lesser punishment. It is equally possible to identify cases where an accused is sentenced to terms similar to those given by the magistrate in this case,[15] or indeed significantly harsher sentences.[16]

50 There is nothing before the court to suggest that it was not open to the sentencing magistrate to find that a term of imprisonment was the only appropriate sentence in respect of the first and fourth offences. There is also nothing before the court to suggest that the terms of six months and two months respectively were inappropriate, outside of the range, or otherwise not open to the sentencing magistrate.

51 On the basis of the information before the learned magistrate, I am not prepared to grant leave to appeal on the basis of manifest excess as formulated by the appellant's third and fourth grounds.

52 Both these grounds of appeal concern the FASD Report.

53 The appellant's second ground of appeal contends that the sentencing magistrate failed to take account of Mr Charlie's mental health conditions, and specifically his diagnosis of FASD and the related impairments.

54 It is uncontroversial that the learned magistrate did not have before him, less still received into evidence, the written report related to Mr Charlie's FASD diagnosis. Mr Charlie's counsel did not have the FASD Report in her possession at the hearing. I was advised by Mr Charlie's counsel that the information provided to the magistrate came from notes that Mr Charlie's counsel had relating to the content of the FASD Report.[17]

55 On that basis, the information conveyed to the learned magistrate was that Mr Charlie had significant motor and visual impairments resulting from his FASD. Mr Charlie's counsel also submitted to the magistrate that FASD 'would also explain his decision to do that upon seeing the car idling, without any consideration for the consequences'.[18]

56 The learned magistrate did not ask to receive the FASD Report and told counsel 'I don't have to see the report to be persuaded that these [things] are true, and that has some mitigation'.[19]

57 The FASD Report was made available to me without objection. It is dated 30 December 2016. The information contained in the report provides a diagnosis of FASD. The report identifies and describes various forms of impairment suffered by Mr Charlie. It also contains a series of recommendations made by attending psychiatrists and therapists when Mr Charlie was 17. There is nothing before the court to indicate which, if any, of these recommendations were implemented.

58 In respect of both grounds 2 and 5, the appellant relies on the decision in Krijestorac and refers to the principles in that decision as the 'Krijestorac factors'.

59 The principles explained by the Court of Appeal in Krijestorac concern the manner in which courts, in the exercise of the sentencing discretion, ought to consider mental or psychological deficiencies suffered by an offender, but falling short of insanity. The principles are not confined to serious psychiatric illness but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality, or impairment of mental function.[20]

60 In Krijestorac, Wheeler JA referred with approval to the Victorian decision in R v Verdins[21] where the Court of Appeal reviewed the relevant principles. The decision in Verdins has since been referred to numerous times by many courts in Australia, including in Western Australia and most recently by the Court of Appeal in Bogers v State of Western Australia.[22] The principles were summarised in Verdins as follows:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[23]

61 A further point was emphasised in Verdins. In the exercise of the sentencing discretion, it is important to have regard to the particular symptoms of the altered mental state, not the classification of the illness. The court explained:

The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[24]

62 The appellant's second ground of appeal is that these factors were not considered by the sentencing magistrate.

63 I have already outlined the appropriate approach to take when examining the comments made by a sentencing magistrate at [38] above. The learned magistrate clearly did turn his mind to Mr Charlie's impairments. His Honour accepted the truth of the diagnosis and accepted that FASD was a mitigating factor. The failure of the learned magistrate to set out the factors listed by the Court of Appeal and deal with them expressly does not reflect error. It is clear from the transcript that the factors relating to Mr Charlie's mental health were considered by the magistrate. For instance, a consideration of the impact of Mr Charlie's condition can be discerned from the following comments made by the learned magistrate:

HIS HONOUR: I also take into account the fact that you are someone who suffers from a diagnosis of, you know, FASD. Clearly not your fault, but something that has a role to play, particularly in terms of - as I understand the symptoms of that condition - with things like impulse control. There's no suggestion that you planned this, but rather you found an opportunity to commit the driving offences in the form of a vehicle, engine is on, driver is not sitting there, someone else is - I understand that was a member of your own family.

64 It is tolerably clear that the learned magistrate did consider both the existence of Mr Charlie's FASD diagnosis, and the mitigatory impact of such a diagnosis. In the circumstances, I am not satisfied that the learned magistrate erred in the manner asserted by the appellant and I decline to grant leave to appeal in respect of ground 2.

65 Ground 5 is distinct from ground 2. Ground 5 is based on the contention not that the learned magistrate 'failed to take into account Mr Charlie's mental health issues', but rather that an injustice was caused by deciding on the appropriate sentence for Mr Charlie without regard to the content of the FASD Report (which could have been made available). The additional ground emerged in my exchange with counsel for the appellant. Counsel for the respondent quite properly did not object to the grant of leave to add the further ground.

66 As noted above, an offender's mental condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. In my view, this is of particular significance in the circumstances such as those that confronted the learned magistrate in respect of Mr Charlie. The nature of Mr Charlie's cognitive and other defects may be particularly relevant to a consideration of whether it was appropriate to suspend the term of imprisonment.

67 The learned magistrate turned his mind to the question of a suspended sentence, as reflected in the following passage from the transcript:

HIS HONOUR: In my view, a term of imprisonment is the appropriate disposition. I've had - I've reconsidered those matters particular to this case and particular to you in considering whether a suspended term is appropriate, and in my view, it isn't.[25]

68 In the absence of any reasoning, it is not clear why the learned magistrate dismissed the possibility of a suspended sentence. The information offered by Mr Charlie's counsel in submissions at sentencing and to a greater extent, the FASD Report itself, raised issues beyond Mr Charlie's moral culpability. They were relevant to the appropriateness of the sentence to be imposed. As counsel for the respondent properly conceded, the absence of the FASD Report meant that the magistrate was not properly informed as to the 'interplay between the appellant's particular deficits and disabilities and sentencing considerations'.[26]

69 Having regard to the principles referred to at [60] and [61] above, the proper exercise of the sentencing discretion required the magistrate to have regard not to the broad diagnosis of FASD, but to the manner in which the particular symptoms of Mr Charlie's condition impacted upon the appropriateness of the sentencing options. In the circumstances, it is difficult to appreciate how the magistrate could have positively satisfied himself that a suspended sentence was not open.

70 It is very difficult to be critical of a magistrate who is consistently dealing with a multitude of pressing and complex circumstances in a busy court, seeking to administer justice in a way that balances the interests of the community and the offender in accordance with the relevant sentencing principles. Nevertheless, in my respectful view, a fair and proper sentencing exercise required a consideration of the FASD Report to enable the sentencing magistrate to evaluate the appropriateness of the various sentencing options. The learned magistrate ought not to have sentenced Mr Charlie simply by reference to a high-level acceptance of the selected highlights of the report conveyed by the appellant's counsel on the day, rather than the content of the FASD Report. The FASD Report would have given the learned magistrate a fair and proper basis to assess the appropriateness of the various sentencing options. I am satisfied that in the circumstances, the learned magistrate's exercise of the sentencing discretion in the conscious absence of the content of the FASD Report, amounted to a miscarriage of justice.

71 I would grant leave to appeal on ground 5, and I would allow the appeal.

73 In the circumstances where the appeal has been successful and the power to resentence is enlivened, I am able to consider all circumstances that have arisen prior to the resentencing.[27] In addition to the circumstances of offending and the personal circumstances of Mr Charlie referred to above, there are a number of peculiar features of this matter that impact upon the resentencing considerations.

74 First, at the time of resentencing on 2 June 2022, Mr Charlie had already served more than half of his original sentence.

75 Secondly, the respondent concedes that, in the event that the appeal is upheld, the appropriate sentence would be something other than immediate imprisonment.[28]

76 Thirdly, the court cannot impose a conditional suspended imprisonment order (CSI) where the term that is suspended is six months or less, as the court can only impose a CSI if satisfied that the sentence that is suspended would have been appropriate had it not been possible to suspend the sentence. By reason of s 86 of the Sentencing Act 1995 (WA), a court is precluded from imposing a sentence of six months or less. Nor does the Sentencing Act allow for the backdating of a suspended sentence.

77 Fourthly, if the court were to impose a CSI with a term of six months and one day, and Mr Charlie were to subsequently breach that order, the effect is likely to be that he will serve a longer term than if he had not appealed his sentence.

78 In light of those matters, I did not consider that a CSI was an appropriate outcome.

79 In all the circumstances, I am satisfied that an Intensive Supervision Order (ISO) would be an appropriate sentence.

80 In order to impose an ISO, the court must have received a pre‑sentence report about the offender.[29] This presented some difficulty, as counsel for the respondent suggested that it may take six to eight weeks to receive such a report.

81 However, Mr Charlie's counsel drew to the court's attention to a pre-sentence report (PSR) about the offender dated 28 May 2021.

82 Section 20(3) of the Sentencing Act provides that:

A court considering imposing an ISO must order a pre-sentence report about (among any other things) the offender's suitability for such a sentence.

83 The PSR was an assessment of suitability for a community-based disposition. ISOs are community-based dispositions. In the circumstances I ordered the PSR to be made available for the resentencing pursuant to s 20(3). Pursuant to s 22(5) of the Sentencing Act the PSR was made available to the parties.

84 The PSR addresses the matters required by s 21 of the Sentencing Act. In particular, it takes account of Mr Charlie's FASD diagnosis, his history of community work requirements as a child and his various criminogenic needs. I am satisfied that the PSR considers Mr Charlie's suitability for a wide range of non-custodial sentences, including an ISO.

85 In light of Mr Charlie's needs I shall also make a programme requirement under s 73 of the Sentencing Act. Mr Charlie has indicated a preference to live in Jigalong. The information available to me suggests that Mr Charlie would benefit from residing with the community in Jigalong and may be exposed to a greater risk of reoffending when not residing in Jigalong. In the circumstances I will impose a curfew under s 75 for such time that Mr Charlie is not in Jigalong.

86 I am cognisant of the fact that Mr Charlie lives in a small town in northern Western Australia where there is a paucity of government services designed to assist offenders on supervision orders. If I were to account for the time already served and impose the ISO for the remaining three or four months, it seems unlikely that any programme or supervision requirements would be of much utility. In the circumstances I will order the ISO for a period of 10 months.

(a) an Intensive Supervision Order for 10 months;

(b) a programme requirement under s 73; and

(c) a curfew under s 75 between the hours of 10.00 pm and 6.00 am when Mr Charlie is not in Jigalong.

1. The appellant's application for an extension of time is granted.

5. The sentence of 8 months immediate imprisonment imposed by Magistrate MacLean on 19 January 2022 is set aside.

6. The appellant is resentenced to an Intensive Supervision Order pursuant to s 69 of the Sentencing Act for a period of 10 months.

7. The Intensive Supervision Order shall include a programme requirement.

8. For the purpose of the programme requirement, the FASTRACK multidisciplinary report dated 30 December 2016 can be released to the relevant Community Corrections personnel.

9. The Intensive Supervision Order shall include a curfew requirement pursuant to s 75 of the Sentencing Act that the appellant, unless in Jigalong, shall remain at his residential address from 10.00 pm to 6.00 am, unless otherwise expressly permitted by the Community Corrections Officer. If the appellant resides outside of Jigalong for a continuous period of longer than six months, the curfew shall cease to apply.

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

[1] Churnside v The State of Western Australia [2016] WASCA 146 [82] (Martin CJ, Mazza & Mitchell JA).

[2] Ninyette v Jones [2018] WASC 317 [17]; [2018] WASC 317; (2018) 86 MVR 186; Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[3] Transcript, Clancy Charlie v Director of Public Prosecutions for Western Australia, Supreme Court of Western Australia, 27 May 2022, 9.

[4] Krijestorac v The State of Western Australia [2010] WASCA 35 (Krijestorac).

[5] Transcript, Western Australia Police v Clancy Charlie, Magistrates Court of Western Australia at South Hedland, 19 January 2022, 8.

[7] Strahan v Brennan [2014] WASC 190 [90].

[8] Vagh v The State of Western Australia [2007] WASCA 17 [47].

[10] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[12] Moore v The Queen [1995] WASC 183; (1995) 15 WAR 87.

[13] Douglas v Ferguson [2012] WASC 207.

[14] Bedford v Binnekamp [2021] WASC 299.

[15] For example, Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81.

[16] For example, Whitelaw v Quin [2014] WASC 19; (2014) 238 A Crim R 118; JA (a child) v The State of Western Australia [2008] WASCA 70.

[21] R v Verdins [2007] VSCA 102.

[22] Bogers v State of Western Australia [2020] WASC 174.

[23] R v Verdins [2007] VSCA 102 [32].

[26] Respondent's Outline of Submissions (29 April 2022) [29].

[27] Criminal Appeals Act 2004 (WA) s 4(a).

[28] Respondent's Supplementary Submissions in Relation to Resentencing (31 May 2022) [6].

[29] Sentencing Act s 68.