Citation : PE 36272 of 2009, PE 36273 of 2009, PE 40960 of 2009, PE 40961 of 2009, PE 40962 of 2009, PE 40963 of 2009, PE 40964 of 2009, PE 40965 of 2009, PE 40966 of 2009, PE 40967 of 2009, PE 40968 of 2009, PE 40969 of 2009, PE 40970 of 2009, PE 40971 of 2009, PE 40972 of 2009, PE 40973 of 2009, PE 40974 of 2009, PE 40975 of 2009, PE 40976 of 2009, PE 40977 of 2009, PE 40978 of 2009, PE 40979 of 2009, PE 40980 of 2009, PE 40981 of 2009 and PE 40982 of 2009

Criminal law - Unlawful access to computer data - Fraud - Whether sentence of 14 months' imprisonment manifestly excessive - Whether suspended sentence appropriate

CJ v The State of Western Australia [2009] WASCA 42

Collins v The State of Western Australia [2007] WASCA 108

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

Hull v The State of Western Australia [2005] WASCA 194

Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74

R v Minchinton (1998) 104 A Crim R 502

R v Stockdale [1995] VSC 181

1 HALL J: On 5 October 2009 the appellant was sentenced to a total of 14 months' imprisonment in the Magistrates Court at Perth. That sentence followed a plea of guilty made on 17 August 2009. The offences for which the appellant was sentenced were 23 offences of unlawfully accessing a computer contrary to s 440A(3)(c) of the Criminal Code (WA), one offence of fraud contrary to s 409(1)(a) of the Criminal Code, and one offence of creating a false belief contrary to s 171(2) of the Criminal Code.

2 The grounds of appeal as originally filed are as follows:

1. The Magistrate erred in determining that she had to find unusual circumstances before she could suspend the terms [of] imprisonment.
2. The Magistrate erred in failing to take into account relevant sentencing factors, namely:

1. Assessing the nature of the information that has been accessed by the Appellant. 2. The quantity of the information the subject of the unlawful access.

1. The purpose of gaining the access.
2. The Magistrate erred in taking into account that the Appellant was in a position of trust:
   1. As an aggravating factor.
   2. As a factor relevant to whether an immediate term of imprisonment was the only appropriate disposition.
3. The sentence imposed by the Magistrate was manifestly excessive having regard to:

1. The Appellant's antecedents. 2. The factual basis upon which she was sentenced.

3 At the hearing of this appeal on 27 November 2009 the appellant sought leave to add two additional grounds. There being no objection I granted leave. The two additional grounds are as follows:

1. The length of the term of imprisonment for the offences of unlawful access of a computer were manifestly excessive having regard to:

1. The Appellant's antecedents. 2. The factual basis upon which she was sentenced.

1. The mitigating factors.
2. The sentences of imprisonment imposed by the Magistrate for the offences of fraud and creating a false belief were manifestly excessive having regard to:

1. The Appellant's antecedents. 2. The factual basis upon which she was sentenced.

4 The appellant was an associate to a District Court judge. In the course of her work she had access to a number of computer systems. One of these was the total offender management solution (TOMS) database. Another was the lower court's criminal case management (CHIPS) database. She was authorised to access these databases to perform her work as an associate. She had no authority to access them for any other purpose.

5 Between 25 February and 28 May 2009 the appellant accessed the databases in order to obtain information about friends or others who were associated with her friends. The nature of the information to which she had access for this purpose related to whether the persons were in custody; whether they had scheduled court appearance dates; and, on one occasion, whether a bench warrant had issued for a person. On seven occasions the appellant contacted one of her friends and passed on information that she obtained from the database.

6 Not all of the information appears to have been of a confidential nature. Some of it, for example when a person was next to appear in court, might have been accessible by other means. Other information, such as where a person was incarcerated, was likely to be less easily accessible. In any event, the appellant was not permitted to use her computer access for this purpose. There was, however, no suggestion that the appellant received any benefit or that her unlawful accesses facilitated any greater criminal purpose, either of her own or of those to whom she divulged information.

7 On 13 April 2009 the appellant made a report to the police that her suitcase and laptop computer had been stolen when she had momentarily left her bags at the front of her house when she went back inside to get her car keys. The police initiated inquiries as a result of receiving the report. On 28 April 2009 the appellant made a claim to her insurer, HBF Insurance, in respect of the alleged theft for the total amount of $5,591.10. She provided receipts for individual items to support her claim. On 15 May 2009 the claim was settled and the appellant was provided with a credit of $2,426 for purchases at an electrical supplier and $3,114.10 in cash. The full value of the benefit received was $5,540.10.

8 On 4 June 2009 the appellant was interviewed and admitted that the report made to the police on 13 April 2009 was false. She also admitted having accessed the computer systems available to her in her employment for personal purposes. She was charged with the offences and pleaded guilty at the first reasonable opportunity.

9 In written submissions to the learned magistrate an explanation for the commission of the offences was provided. That explanation is significant because it places the offending into context and also assists in assessing its seriousness. It is important to note in this regard that the explanation was not contested by the prosecution.

10 No doubt because the explanation related to issues of personal safety for the appellant, little was said in oral submissions about the matter. Similarly, little was said by the magistrate in this regard. However, given the circumstances, I am not prepared to infer that the magistrate did not consider the explanation. Importantly, her Honour did not state that she was not prepared to accept or act upon the explanation that was advanced. In these circumstances her Honour was required to act on the correctness of the explanation. In CJ v The State of Western Australia [2009] WASCA 42 McLure JA said [4]:

In sentencing proceedings, it is only if an assertion made by counsel for the defendant in mitigation is controverted by the prosecution or if the judge is not prepared to act on the assertion that it is necessary for the defendant to call evidence on the issue: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25]. The judge is required to give notice to the defendant if he or she is not prepared to act on the uncontroverted assertion of the defendant: Nguyen v The State of Western Australia [2009] WASCA 8 [20]. The notice requirement is to enable the defendant to adduce evidence on the fact in issue prior to sentencing. In the absence of a defence assertion being controverted by the prosecution and notice from the judge, the court is required to act on the correctness of the assertion: Hutchins v The State of Western Australia [2006] WASCA 258 [25].

11 The explanation was that in early 2009 the appellant was introduced to a man who quickly became a good friend. They spent much time together and he was a frequent visitor to her house. As she came to know the man better, she became aware that he owed $15,000 to another man (she suspected for drugs). That became apparent when the second man began making demands of the appellant to meet her friend's debt. These demands were sufficiently aggressive and intimidating to cause the appellant to have fear for her safety. On one occasion two other men came to her home and demanded that the appellant provide property to offset the debt. On this occasion the men took a number of items of the appellant's property including a laptop computer. The claim made to the insurer related to some, but not all, of the items that were stolen by these men and included at least one other item that had not been stolen. This theft was not, however, reported to the police and the appellant said that this was because she feared the man to whom the debt was owed. Instead, she made the false report to the police and the false claim to the insurance company. In relation to the unlawful computer accesses, the appellant said that these related either to the friend, the man to whom the debt was owed, or other friends with whom she was trying to make contact.

12 The magistrate ordered a pre-sentence report and I have relied upon that report as setting out the personal circumstances of the appellant.

13 At the time she came to be sentenced the appellant was 29 years old and a single mother of a 2-year-old child. She had been employed as an associate for nine years and references from her work colleagues attested to her diligence and ability. As a result of these offences the appellant lost that employment and, accordingly, her source of income. This put at risk her ability to maintain mortgage payments and retain her home.

14 As the circumstances of the offending indicate, the appellant was a very poor judge of character. Notwithstanding her position in the justice system, she continued to associate and form friendships with people who had criminal histories and an involvement in drugs. The appellant herself had used drugs recreationally but did not seek to assert that any addiction or substance abuse had in any way contributed to the commission of the offences. The indications were that she was a vulnerable person who was susceptible to allowing those she thought to be her friends to prey upon her goodwill. She claimed that her computer accesses were motivated by concern either for her own safety or for that of friends and this claim was not disputed.

15 The magistrate referred to the fact that the appellant had no record and a prior good character. She also referred to the appellant's solid work history and favourable references. She then referred to the circumstances of the offending.

16 The magistrate said that the 23 charges relating to unlawful access occurred over a four month time period. That was not correct; the period is in fact a little over three months. However, in my view, nothing turns on that mistake as the point that the magistrate was making was that the offending conduct continued over a period of time and was not a mere single incident or an isolated error of judgment. Her Honour noted that some information was passed onto others and that the false insurance claim was made with a view to trying to recover some recompense for items that had been stolen by means other than those claimed in the police report.

17 Her Honour recognised the need to go through all of the sentencing options. She referred to and rejected a community based order and a fine. Her Honour recognised that a term of imprisonment should only be imposed if it was the only appropriate sentence: s 6(4) of the Sentencing Act 1995 (WA).

In relation to that matter, it is my view that a term of imprisonment is appropriate and for that reason I need to make some consideration of how long that might be and whether that should be suspended or should be an immediate term of imprisonment.

I need to take into account obviously those matters that I have already referred to; the fact that you have no record, your early pleas of guilty and your age and personal circumstances, but against those matters are matters which lead me to the view that imprisonment is appropriate, and they are the seriousness of the offence, which Mr Tooker has also referred to in his submissions before the court today.

You were in a position of trust; these offences are hard to detect; it was not something that you came forward with; it was something that was the result of an investigation by the CCC and obviously some intercept material and no doubt warrants in the background that needed to be applied for. There is a continued period of offending which lasted for four months. There was 13 separate occasions when the information was accessed and whilst I appreciate that on a couple of occasions persons you did not intend to look up were in fact accessed, that just highlights for me and the general community, I would think, the necessary requirements that the system be safe; that you can access by mistake people's details that should be confidential and private and in a couple of occasions you did access people who were not known to you and not of any particular interest to you.

There does need to be a mark of general deterrence in relation to this because in my view, this was not a one-off occasion when you looked at the records of the court through this system that is available to court officers but it was something that you did on a regular basis over a number of months for different, various people (ts 8 - 9).

19 It should be noted at this point that general deterrence does not always require a sentence of immediate imprisonment. Other sentences can have a general deterrent effect. In some cases the loss of position, employment, public humiliation and recording of a conviction, in themselves, can have very significant deterrent effects. That is not to say that in appropriate cases it will not be necessary to impose a prison sentence, both to give full effect to general deterrence and to reflect the seriousness of the offence.

20 Her Honour then turned to the expectations of the community that those who have access to computer databases of the type in question here will respect the confidentiality and privacy of those whose information is recorded. Her Honour referred to the fact that the appellant only had access to this information by reason of her position.

21 Her Honour referred to what she considered was limited remorse that had been shown and then turned to the question of rehabilitation. She said:

There are no issues of specific rehabilitation in relation to alcohol or drugs, although I do note from the materials provided that there have been a couple of occasions where amphetamines have been an issue for you, but the pre-sentence report and the materials before me from Ms Boston indicated that there are no such issues and they are not ongoing issues in relation to the use of amphetamines and you most recently finished a period of detox in August of this year (ts 9 - 10).

22 Rehabilitation is a proper consideration, but it is not one that is confined to the question of whether the offender has drug or alcohol issues. Rehabilitation is concerned to identify and address the factors that contributed to the offender making the choices involved in committing the offences. In this case it was evident that there were issues relating to vulnerable personality, poor judgment and inappropriate associations. The appellant had recognised these factors and had indicated a resolve to move to a country town where she had family support and to change her lifestyle and friendship group.

23 Immediately following her reference to rehabilitation, her Honour said:

Having come to that view then, the question of whether the sentence should be suspended or not is something that I need to consider. In my view, all-up this offending is in the general vicinity of 14 months' imprisonment and whether that should be suspended or not is something I need to turn my mind to. In that regard I have to have regard to any unusual circumstances that would warrant departure from what would be seen as a likely outcome of offending of this nature and I do not agree with the prosecution's submission the sentence should be suspended.

Again, I need to repeat myself and indicate that those matters of age, your previous record, the fact that you have the care of a young child, your rehabilitation, which is not an issue here - there is no requirement or anything outlined in terms of supervision or anything specifically to be addressed as part of the pre-sentence report. All of those matters plus the references that have been provided indicate that you are a person of good character. However, it is my view that the offences are so serious and it is over a sustained period of time relating to matters of trust and the difficulty of detection that brings me to the view that a term of immediate imprisonment is the only appropriate way to deal with the matter (ts 10).

24 The appellant submits that by using the phrase 'unusual circumstances' the magistrate inappropriately narrowed the availability of a suspended sentence. It is argued that having come to the conclusion that a sentence of imprisonment was appropriate, her Honour sought to find some unusual or extraordinary circumstance that would justify suspending the sentence.

25 Section 39 of the Sentencing Act sets out a list of sentencing options and requires that an option not be used unless the court is satisfied that no option listed prior to it is appropriate. A sentence of immediate imprisonment is the sentence of last resort. There is some tension between this provision and s 76 of the Sentencing Act: Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74, 78 (Parker J). That section provides that a suspended sentence is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

26 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kirby J held that there was a two-stage process required by s 76. The first stage involves looking at all of the relevant factors to determine whether a sentence of imprisonment is the only appropriate option. The second stage involves examining all the same considerations again in determining whether to suspend the term of imprisonment. Kirby J (with whom Gaudron and Gummow JJ agreed on this point) held that rehabilitation was not the only relevant factor in considering whether suspension was appropriate and that all of the relevant circumstances needed to be considered. It follows that a suspended sentence may be appropriate in cases where rehabilitation is not an issue.

27 To come to a conclusion that a sentence of imprisonment is appropriate and then seek some factor which is unusual to justify suspension may suggest that a suspended sentence of imprisonment is reserved for cases which exhibit such a feature. No such requirement is contained in the Sentencing Act: R v Minchinton (1998) 104 A Crim R 502, 507 (Anderson J). Indeed, as Dinsdale makes clear, if, having considered all of the circumstances of the offending and the personal circumstances of the offender, the court is satisfied that a suspended sentence is appropriate then it may be imposed. Section 39 would require that such a sentence be imposed if appropriate rather than imposing a sentence of imprisonment to be immediately served.

28 The respondent submitted that her Honour's use of the phrase 'unusual circumstances' should not be interpreted as meaning that her Honour considered that there was a general rule that a court must find unusual circumstances before it can impose a suspended term of imprisonment. Rather, it was suggested, that her Honour should be understood as meaning that the offending behaviour in this case was so serious that it would require unusual circumstances to justify suspension. There may be categories of cases where a sentence of immediate imprisonment would be usual, such that it could be said as a matter of fact that to impose a suspended sentence would be exceptional: Collins v The State of Western Australia [2007] WASCA 108 [17] (McLure JA). Whether or not this case fell into such a category will be considered in respect of ground 4, but it is sufficient to state at this point that use of words such as exceptional or unusual in respect of a suspended sentence will not necessarily connote error.

29 It should also be noted that her Honour did repeat a number of the relevant circumstances in the context of considering suspension. However, whether this was to demonstrate that the circumstances were not unusual, in her Honour's view, or whether it was a reconsideration of all of those factors to determine whether a suspended sentence could be justified is not apparent. However, even if I was of the view that her Honour erred in limiting her discretion in respect of the availability of a suspended sentence, that conclusion would little avail the appellant unless it was established that the sentence imposed was otherwise not appropriate: s 14(2) Criminal Appeals Act 2004 (WA).

30 As I have come to the conclusion in respect of other grounds that the sentence imposed was manifestly excessive, it is not necessary to determine this ground. Were it necessary to do so, I am of the view that her Honour did not intend by the use of the phrase 'unusual circumstances' to narrow her discretion and was merely using that term to express her view of the seriousness of this particular offending conduct.

31 In Hull v The State of Western Australia [2005] WASCA 194 Wheeler JA identified three factors that would be generally relevant in sentencing for offences involving unlawful use of a computer. Those factors are the nature of the information to which access was gained (that is, factors such as personal sensitivity, or the potential public mischief stemming from access); the quantity of information the subject of the access; and the purpose of the offender in gaining access. It is submitted by the appellant that the magistrate failed to take into account these factors.

32 Her Honour had before her material that indicated the dates, names, and nature of the information that was accessed. Her Honour made no specific reference to the nature of the information. She did state that the information was obtained 'so that you could know personally some circumstances relating to these people'. She also referred to the fact that the appellant had access to the information as a court officer and said:

Certainly if you had been in court some of this information would have been part of the public record and available, certainly it may have been if you had been able to satisfy the prison authorities of your relationship with a person that they may have been able to pass on information but generally speaking, no-one is able to ring the prison and just make a general inquiry whether somebody is there and when their next court date might likely be and whether they are going to be transferred to another facility (ts 9).

33 Her Honour certainly made it clear that the public has an expectation that private information should be treated with confidentiality. Her Honour was satisfied that it was an abuse of the appellant's position to access this information and that, whilst some of it may have been available by other means, some of it was not. This does not, however, address the issue of whether the information was personally sensitive. In fact, there was nothing to suggest it was and no submissions were made by the prosecution that access to this information in any way seriously infringed the privacy of the individuals concerned or posed any risk to security.

34 As to the quantity of information, the number of offences is somewhat misleading in this regard. For example, several of the accesses related to the same individual and occurred on the same day (for example, charges 7, 8 and 9) and apparently involved no additional information being obtained. There were also occasions when the appellant inadvertently accessed information whilst conducting a search for a person with a similar name. According to the statement of facts the information that was obtained appears to have been very small in compass and related to the record of the outcome of court proceedings, in particular the next date a person was due to appear or whether they had been remanded in custody.

35 The only reference by the magistrate to the purpose for which the offender obtained access is that to which I have already referred, namely, for personal interest. This might suggest that the appellant was motivated by mere idle curiosity. As I have noted earlier, the appellant did advance a detailed explanation for her conduct which was not contested by the prosecution. That explanation centred on concern for her own safety and the safety of friends. Whilst that concern did not excuse the conduct, it was an important mitigating factor and to refer only to personal interest did not accurately reflect the appellant's motivation.

36 In my view, her Honour did fail to take into account, or to give appropriate weight to, these sentencing factors. The failure that this error had on the outcome is best appreciated by taking into account all of the circumstances, which I will do in relation to ground 4.

37 The appellant submits that the magistrate was wrong to take into account that the appellant was in a position of trust when she committed the unlawful access offences. It was argued that it is implicit that a person with access to a restricted access computer system is in a position of trust and that, therefore, anyone who commits this offence will be in such a position.

38 Section 440A is headed 'Unlawful use of computers'. It is not confined to the unlawful use of computers by those who have authorised access to a restricted access computer system. A person who does not have authorised access to a computer system but obtains such access by some unlawful means such as hacking will commit an offence under s 440A. Thus the provision is not confined to those people who are in a position of trust.

39 In my view, that a person has authorised access to a restricted use computer and uses that access for unauthorised purposes is an aggravating factor. Clearly, unauthorised use in such circumstances is more insidious and may prove more difficult to detect because mere access to the computer system by the person concerned will not be considered unusual. A person who is given password access to a restricted use computer system is entrusted to use such access for the purpose it was given. It is an abuse of that trust to use the access for an extraneous purpose. Accordingly, her Honour was not wrong to refer to this factor and this ground must fail.

40 The appellant had very favourable personal antecedents. She was a young person with a good work history and no criminal record.

41 Unlawful access offences may fall into various categories. A person commits an offence of a more serious type if their unlawful access results in a benefit being gained for any person or a detriment being suffered by any person. If the benefit or detriment is more than $5,000 the maximum penalty for such an offence is 10 years' imprisonment. If a person unlawfully uses a restricted access computer system to otherwise gain or intend to gain a benefit or cause a detriment to a person the maximum sentence is one of five years' imprisonment. In any other case the maximum sentence is two years' imprisonment on indictment or 12 months' imprisonment if dealt with summarily. There was no allegation of benefit or detriment in this case. These offences fell into the least serious of the categories contained in s 440A.

42 The fact that the appellant had caused no detriment nor obtained any benefit for herself or another by her offending was a consideration that can be put to one side since, had those elements been present, it would have resulted in an offence of a more serious category for sentencing purposes. Nonetheless, it was important to recognise that unlawful access offences cover a range of potential conduct and these offences were of a less serious type than others provided for in the section. In this regard it should be noted that the comments of the magistrate regarding public concern for privacy and confidentiality and the need for general deterrence apply equally, indeed more acutely, to the aggravated forms of the offence.

43 In my view, one of the most significant mitigating factors was the circumstances in which the offending occurred. As I have previously noted, that was a factor which the magistrate only mentioned briefly. Perhaps that can be explained by the appellant's continuing concerns for her safety. However, in my view, had the factors I have referred to in respect of ground 2 been given appropriate weight, it would not have been possible to come to a conclusion that a sentence of imprisonment to be immediately served was the only appropriate sentence.

44 The case of R v Stockdale [1995] VSC 181 illustrates the type of serious offending that may be engaged in by public servants. In that case a prosecution appeal against a suspended sentence of 12 months for Commonwealth offences relating to unlawful access to a computer and disclosure of information was dismissed. The case involved an employee of the Department of Social Security who used his position to access computer records. The conduct continued over a seven month period and related to 126 individual client records. The information was passed onto a private investigation firm who paid the offender $5 - $10 for each name checked. The charges covered only part of the conduct and it was estimated that the offender had received between $4,500 and $10,000 and had unlawfully accessed as many as 1,400 records. The Victorian Court of Appeal held that the suspended sentence was within the available range, notwithstanding the gross breach of trust for personal gain. That case involved significantly more serious conduct than does the present case.

45 In Hull the appellant was employed at the Albany Licensing Centre as a manager. In that capacity she had access to the corporate computer database. She used that access to falsely load onto the system a theory test and pass result for a motor driver's licence for her de facto husband. She also used her position to cancel the fee that would normally have been payable for the licence. She subsequently also used her position to obtain personal information regarding a person who complained about her previous conduct. She was charged with corruption contrary to s 83(c) of the Criminal Code and unlawful use of a computer contrary to s 440A and received sentences of 12 months and three months cumulative to be immediately served. The appeal against the aggregate sentence of 15 months was allowed and the sentence was varied by being suspended for a period of two years. Whilst the number of individual offences was less, the circumstances of the offending in that case were considerably more serious than the present. The maximum sentence for the corruption offence was one of seven years' imprisonment. The offending conduct involved a serious abuse of trust in order to obtain a benefit for another. The court considered the significance of general deterrence in the circumstances of that case. Wheeler JA said:

[A] close analysis of the circumstances of this offence and of its consequences for this offender lead to the conclusion that neither personal nor general deterrence requires that the sentence of imprisonment which was appropriately imposed should be immediately served. I acknowledge that general deterrence is an issue of importance in these cases, and the community rightly expects that those public servants who, like the appellant, have certain powers because of their access to official computers must be required to be very careful and very conscientious in making only proper use of that access. Because of the very great possible variation in circumstances, however, these are the type of offences in which, while acknowledging the importance of general deterrence, there must always be a close analysis of the seriousness of the particular offending [11].

46 In the present case the magistrate gave appropriate regard to general deterrence for offences of this type. However, in my view, she allowed that consideration to prevail over an assessment of the seriousness of this particular offending. Had the magistrate given proper weight to the limited amount of information that was accessed; the nature of that information; the fact that the appellant passed information onto others on only seven occasions; that there was no suggestion that the accesses had any adverse consequences; and that the appellant committed the offences in circumstances where her judgment was impaired by her concern for her own safety and the safety of her friends, the conclusion that immediate imprisonment was required would not have been reached. When these factors are taken together with the significant mitigating factors such as the appellant's youth, early plea of guilty and prior good record a suspended sentence can not properly be excluded. Indeed, in my view, it was the appropriate option.

47 These grounds are in the same terms as ground 4 but relate respectively to the sentences imposed for the unlawful access offences and the fraud and false belief offences. Given my conclusion in respect of ground 4 it is not necessary to consider these grounds. I would note, however, that the approach taken by the magistrate was to determine an appropriate sentence for the overall criminal conduct and to then apportion that sentence between the various offences.

48 When looked at individually the sentences for each offence might be difficult to justify, but that would be to conduct an artificial analysis. Her Honour imposed eight months' imprisonment in respect of each of the unlawful access offences and made those sentences concurrent. She then imposed a cumulative sentence of six months' imprisonment for the fraud offence and a concurrent sentence of three months for the creation of a false belief offence. A sentence of eight months' imprisonment for the unlawful use offences, when the maximum available summarily was 12 months, could be seen as a high sentence particularly having regard to the fact that the appellant pleaded guilty. The fraud and false belief charges were not of such seriousness as to otherwise require a sentence of imprisonment. It appears to be accepted that the only reason these offences attracted such sentences was because of the sentences of imprisonment being imposed on the unlawful access offences. Whatever the rationale, it now falls to me to resentence given that grounds 2 and 4 of this appeal succeed.

49 On the hearing of the appeal the appellant did not seek to assert that some sentence other than one of suspended imprisonment was appropriate. It was accepted that the offences were sufficiently seriousness to attract a suspended sentence. I also note that this was the sentence that the prosecution submitted to the magistrate was the appropriate disposition. Having taken into account all of the relevant circumstances and considered the available options I am satisfied that a suspended sentence of imprisonment is appropriate in this case. I also take into account that before being released on bail in respect of this appeal the appellant served a little over three weeks in custody.

50 Unlike her Honour, it is my view that rehabilitation is an issue in this case. Some of the factors that contributed to the offending, such as poor judgment, vulnerable personality and inappropriate associations could be addressed by changes in lifestyle and behaviour. The appellant has expressed a determination to make these changes and supervision and support may be beneficial in this regard.

51 Taking into account that some of the unlawful access offences also involved the divulging of information to others and were thus more serious, I set aside the sentences imposed by the magistrate and in lieu thereof impose the following sentences:

10 months' imprisonment, conditionally suspended for 18 months with a supervision condition.

52 To the extent that it may be necessary to clarify the basis upon which I resentenced the appellant, I make the following remarks.

53 On an appeal from the Magistrates Court the powers of this court are set out in s 14 of the Criminal Appeals Act 2004 (WA). This court can set aside a magistrates decision and pursuant to s 14(1)(d) substitute a decision that 'should have been made by the court of summary jurisdiction'. The power in s 14(1)(d) is limited to the making of sentencing orders that would have been available to the magistrate.

54 It was not open to the magistrate in this case to impose a conditional suspended imprisonment order (CSI order), however, that does not affect my findings of error (as they did not turn on any suggestion that such a sentence should have been imposed). Nonetheless, the question might arise as to the power of this court to make a CSI order when resentencing.

55 A CSI order may only be made by a prescribed court: s 81 Sentencing Act 1995 (WA). The prescribed courts are the Supreme Court, District Court, Children's Court and a speciality court: reg 6B Sentencing Regulations 1996 (WA). The phrase speciality court is defined in s 5 and pursuant to reg 4A of the Sentencing Regulations includes the Magistrates Court but only when sitting at Central Law Courts and when dealing with drug offences under the Misuse of Drugs Act 1981 (WA). Accordingly, this court would not have power under s 14(1)(d) to make a CSI order.

56 However, s 14(1)(i) gives the Supreme Court power to make 'any other order it thinks fit'. This is a broad power and one obviously intended to supplement that contained in s 14(1)(d). Section 14(1)(i) enabled the making of a CSI order in the circumstances of this case because:

1. the Supreme Court is a prescribed court and may make such orders in appropriate cases;
2. there is no prejudice to the appellant in this case because the sentence imposed on appeal is of a lesser severity than that imposed by the magistrate;
3. whatever the rationale may be for not prescribing the Magistrates Court (other than in the limited way referred to), there is no reason why the Supreme Court should be constrained from imposing a CSI order where it most suitably meets the circumstances of the case;
4. the offences in this case were indictable offences, that, had they been dealt with in the District Court could have resulted in a CSI order; and
5. a magistrate could have achieved a similar effect by imposing an ordinary suspended sentence on one count and an intensive supervision order on another to operate concurrently.