CLARKE -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 468 (17 January 2023)

1. Grouped by date of offending, the charges for which the appellant was convicted by her plea on 13 May 2022 were as follows:

Possession of a prohibited drug, namely methylamphetamine.

Misuse of Drugs Act 1981 (WA) s 6(2)

Possession of drug paraphernalia in or on which there was a prohibited drug or plant, namely three glass smoking implements and methylamphetamine.

Misuse of Drugs Act 1981 (WA) s 7B(6)

Possession of drug paraphernalia in or on which there was a prohibited drug or plant, namely a plastic bottle adapted into a smoking implement and cannabis.

Misuse of Drugs Act 1981 (WA) s 7B(6)

Weapons Act 1999 (WA) s 6(1)(b)

Criminal Investigation Act (WA) s 153(1)

Criminal Investigation Act (WA) s 61(2)

1. The facts of the offending as read by the prosecutor at the appellant's sentencing hearing on 31 May 2022 are reproduced below:[1]

Tuesday, 8 March 2022, police executed a Misuse of Drugs Act search warrant at 8 Doley Road, Byford. Present at the address was [the appellant] and the co-accused Reece Stewart. They're in a relationship together and both reside at the premises with their one year old daughter. Upon entry [the appellant] was present with [her] daughter in the main living room area. She was in possession of a black Oppo mobile phone. She immediately informed police she would not be providing police with access to the phone ...

Formal requirement [was] given to [the appellant] to provide police with [the] passcode or pattern to the phone, to which she refused. Subsequently a data access order was obtained. That order was served on [the appellant] with a requirement to obey by 18 March 2022, to which she refused to provide ...

In relation to the search, sir, during the search the following items were located, three glass smoking implements with traces of methylamphetamine. One plastic smoking implement with traces of cannabis. A clipseal bag containing methylamphetamine, and a working cattle prod, electric shock weapon. [The appellant] was questioned at various stages through the search, to which she made full admissions to the possession of the methylamphetamine and smoking implements.

[The appellant] stated that the cattle prod belonged to her brother and she could not give an explanation as to why it was in her kitchen.

1. As to the total weight of the methylamphetamine in the clipseal bag, it was treated by the magistrate as a trace amount of 0.01grams.[2]
2. Neither the appellant nor the respondent took issue with the facts as recited by the prosecutor in the sentencing proceeding, nor in this appeal. In the written outline of submissions filed on behalf of the respondent for the purposes of the appeal, counsel only noted that during the prosecutor's recitation of the facts, the magistrate had sought clarification that the appellant had indicated to police that she would not be providing police with access to the mobile phone.[3]

1. As noted above, the appellant appeared before the learned magistrate on 31 May 2022 and on 21 June 2022 to be sentenced. I make the following observations in relation to the same.

1. After hearing the material facts of the offences, the magistrate indicated the appellant would receive full credit for her guilty pleas pursuant to s 9AA of the Sentencing Act 1995 (WA).[4]
2. The magistrate indicated that all offences, save for the appellant's failure to comply with the data access order, were capable of being dealt with by financial penalties, noting he was troubled by the appellant's failure to comply with the data access order.[5] The magistrate observed that the appellant's failure to comply with the data access order was 'the focus'.[6]
3. In the course of the plea in mitigation, counsel for the appellant produced a letter from the appellant addressed to the court, and two favourable character references.[7]
4. The magistrate raised with counsel what his Honour perceived were inconsistencies in the appellant's letter and the material facts as read.[8] Through counsel, the appellant sought to clarify the circumstances of her offending. In summary, it was submitted that:[9]

(a) on 8 March 2022, the appellant had stated to police that she would not provide access to the mobile phone in an attempt to maintain her right to silence, and not did do so with the perspective of defiance of what was a lawful obligation;
>
> (b) the appellant made attempts to provide to police the passcode details and access to the mobile phone after she was served with the data access order, contacting police on 18 and 25 March 2022; and
>
> (c) the appellant had forgotten the passcode details to access the mobile phone, having possessed six to eight mobile phones over the last few years. When the passcodes provided to police did not work, the appellant ceased in her engagement with police, concerned to not provide police with a number of incorrect passcodes.

5. The magistrate indicated that he had difficulties accepting the appellant's claim to have forgotten the passcode to her device.[10] However, the transcript reveals that the magistrate did not make a finding as to whether he accepted the appellant's assertion, rather his Honour noted that by pleading guilty to an offence under s 61(2) of the Criminal Investigation Act, the appellant accepted that her explanation was 'not a reasonable excuse'.[11]
6. Through counsel the appellant raised, and the magistrate acknowledged, the importance of the circumstances in which the data access order was issued to the consideration of the appellant's failure to comply with the same. In this regard, counsel noted that there did not appear in the material facts to be any indices of drug dealing by the appellant or anything that related to the sale or supply of illicit substances.
7. The magistrate also noted that it would not be appropriate to speculate on the contents of the mobile device.[12]
8. Through counsel, the magistrate was informed of the appellant's personal circumstances, summarised below:[13]

(a) the appellant was 25 years old at the time of offending;
>
> (b) the appellant has two children (aged 6 and 1 at the time of the sentencing hearing), and is the primary carer of her youngest child;
>
> (c) as to employment, there was a break in the appellant's employment between 2019 and about March 2022. However, the appellant had recently made a positive change in her life with the support of her employer, who was also her partner's step‑father. With her partner, and youngest child, the appellant had moved in with her partner's parents in March 2022 and had since been trained and employed in businesses run from that residence (which information was supported by the character refence provided by Alan Van Nieuwburg, the step‑father of the appellant's partner); and
>
> (d) the appellant had engaged in counselling and had a referral to 'South East Metro Drug and Alcohol Service'.

9. Counsel for the appellant submitted that given all of the circumstances, if a term of imprisonment was to be imposed it would be appropriate to suspend the term.[14] Neither counsel nor the court suggested that a pre‑sentence report ought be obtained.
10. In the course of the plea in mitigation, the magistrate referred counsel to a number of authorities, and adjourned the sentencing hearing to give counsel the opportunity to consider the authorities and be heard in relation to the same. The authorities provided by the magistrate to counsel and referred to during the sentencing hearing were as follows: Sumption v Gaunt [2013] WASC 258 (Sumption); The State of Western Australia v Doyle [2017] WASCA 207 (Doyle); Chadburne v The State of Western Australia [2017] WASCA 216 (Chadburne); Phan v The State of Western Australia [2019] WASCA 163 (Phan); and McCooke v The State of Western Australia [2020] WASCA 155 (McCooke).[15]

1. The sentencing hearing was adjourned to 21 June 2022. Counsel for the appellant addressed the authorities brought to counsel's attention on 31 May 2022.
2. Counsel noted that in contrast to the circumstances described in the authorities, the appellant's other offending did not warrant a term of immediate imprisonment. Counsel noted that the other offences described in the authorities were far more serious than those for which the appellant had been charged and convicted on her plea of guilty, and had warranted terms of immediate imprisonment.[16]
3. The magistrate accepted that there was no tariff for a conviction under s 61(2) of the Criminal Investigation Act; no authority for the proposition that only imprisonment would be an appropriate penalty for such an offence; and no obligation on the appellant to show exceptional reasons why imprisonment was not appropriate.[17]
4. In the course of the sentencing hearing, the magistrate agreed that any other related charges would be a relevant consideration. His Honour also noted that a failure to comply with a data access order inhibits investigation and denies any opportunity to secure further evidence.[18] His Honour described the offence of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act as being 'akin to a contempt'.[19]
5. Much of the discussion between the magistrate and counsel for the appellant concerned whether any sentence for the breach of the data access order could be suspended.[20]
6. For completeness I note that the magistrate also received a statutory declaration deposed by the appellant's brother, in which he described the circumstances that the cattle prod came to be left by him at the appellant's residence.[21]

1. The Criminal Investigation Act s 61(2) provides that a person who is served with a data access order and who, without reasonable excuse (the onus of proving which is on the person), does not obey it commits a crime. The maximum penalty for contravention of s 61(2) is 5 years' imprisonment. In a court of summary jurisdiction, the summary conviction penalty is a fine of $24,000 and 2 years' imprisonment.
2. As to the appellant's contravention of s 61(2), the learned magistrate imposed a term of 7 months' immediate imprisonment, and the appellant was made eligible for parole.
3. In sentencing the appellant, his Honour remarked that the appellant would get full credit for her pleas of guilty, applying a discount of 25%.[22]
4. The magistrate observed that contravention of s 61(2) was a challenging offence to deal with, because the court makes an order that has to be complied with; and if the court makes an order that is not complied with, the intention of the order is defeated. His Honour noted that he did not speculate as to what was recorded on the device.[23]
5. His Honour observed that the authorities to which he had had regard dealt with matters which concerned more serious criminality than the appellant's.[24]
6. His Honour noted that the maximum penalty for contravention of s 61(2) is 5 years' imprisonment, and remarked that:[25]

My view is - and I make it clear, I agree with Mr Geoghegan there's no tariff. There's certainly no direction that the only appropriate outcome is a term of immediate imprisonment. It certainly says nowhere that there has to be exceptional reasons shown for a sentence of imprisonment, whether suspended or otherwise, to descend. That's not there.

I'm trying to take away principles and guidance, and certainly, when one looks to the principles and guidance, allowing for all of those distinctions, the most recent case of McCooke highlights that penalties for a data access order must act as a deterrent to others and must overcome the reluctance that in your case yourself, Ms Clarke, and others may have to cooperate with the police.

1. His Honour then referred to the decision of Doyle and read into transcript the following passage from that decision:[26]

The purpose of a data access order is to compel the holder of the device to divulge information in order to allow law enforcement authorities to obtain relevant data. Such orders are made to be obeyed. Offenders who fail to comply are obstructing law enforcement authorities from undertaking their role in detecting offences. The penalty to be imposed on [an] offender who fails to comply with a data access order must serve as a deterrent to others.

1. His Honour also read the following passage from Chadburne:[27]

There is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity. Considerations of general and personal deterrence justified the imposition of a cumulative sentence in this case.

1. After imposing fines in relation to the other offences for which the appellant had been convicted by her own plea of guilty, his Honour stated as follows:[28]

Turning to the data access order offence, again, 25 per cent credit for your plea of guilty. Looking at your personal history, looking at your letters of support and the prospects for the future, the regret and remorse that you show, I need to establish, firstly, the appropriate sentence.

I take the view - and I disagree with Mr Geoghegan in this regard - I take the view that, as a starting point, the only appropriate sentence in this particular case is a term of immediate imprisonment as a starting point. I have to identify the duration. I then need to look again as to whether I can suspend it. I take the view in your circumstances, Ms Clarke - and as I've said to you, for a little time now, the issue of control, drugs, has been a problem in your history. There was some time along the way to perhaps deal with some of those problems. And some driving matters. You certainly don't come to court with the worst history.

My view is, reminding myself that the maximum for this particular offence on indictment is five years, two years in our court - I take the view the least sentence that can be imposed, having been positively satisfied that the only appropriate sentence, looking to particularly general deterrence, is a term of imprisonment of seven months. I then turn my mind as to whether or not it's available for that to be suspended, whether on conditions or not.

And that's from a Dinsdale perspective. That's the case that tells me the process in which to follow, Ms Clarke, and I don't take it lightly. I hope you've worked out that I take it seriously and I put time into it to make sure things are done properly. I've turned my mind in relation to the matter, before I dealt with Mr Geoghegan directly in relation to the matter, during the period of the adjournment, and I've refreshed my memory on the documents. My view, Ms Clarke, is this.

Having considered the authorities, considered the materials, and taken time to reflect upon it, it is with regret, I have to say, I take the view that the nature of the offending and the nature of the need for general deterrence, against some history - I accept it's not the worst - in relation to it, is of such a nature, regrettably, that I cannot suspend that sentence. In those circumstances, it's a term of immediate imprisonment. I've kept it to the minimum I genuinely can do in the circumstances. It's seven months' imprisonment. I most certainly make you eligible for parole.

1. The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to this court in respect of a decision made by a court of summary jurisdiction. As the appeal was commenced within the prescribed period, the appellant does not require an extension of time to appeal.[29]
2. This is an appeal under pt 2 of the Criminal Appeals Act and the appellant requires leave to appeal on each ground of appeal.[30] The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[31] This means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[32] If leave to appeal is refused, the appeal is taken to be dismissed.[33]
3. It was ordered that the appellant's application for leave to appeal be heard together with the appeal, which was appropriate in the circumstances.[34]
4. The Criminal Appeals Act s 8(1)(a) permits an appeal against conviction or sentence in the Magistrates Court to be made on grounds which include that the court of summary jurisdiction made an error of law or fact, or of both law and fact; acted without or in excess of jurisdiction; or imposed a sentence that was inadequate or excessive. Further, an appeal can be brought pursuant to s 8(1)(b) on the ground that there has been a miscarriage of justice.
5. This court's power on an appeal of sentence includes the powers under the Criminal Appeals Act s 14(1)(b) to allow the appeal, and s 14(1)(c) to set aside or vary the decision of the court of summary jurisdiction and sentence imposed. The court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. Intervention is only permitted if the sentencing court made an express or implied error.[35]

1. Before she was represented in the appeal, the appellant filed an appeal notice in which she set out her grounds of appeal. Ms Faye Sellers of Legal Aid subsequently filed a notice of acting on behalf of the appellant and an application pursuant to r 68 of the Criminal Procedure Rules 2005 (WA) for leave to amend the appellant's grounds of appeal. By the application, the appellant sought to abandon her first ground of appeal; amend her second ground of appeal; and add a third ground of appeal. With no objection by the respondent, on 16 November 2022 orders were made amending the appellant's grounds of appeal in the form reproduced at [3] above.[36]
2. As was observed on behalf of the respondent, the second and third grounds of appeal in effect allege the same error in the outcome of the sentencing exercise, namely that a sentence of imprisonment under pt 13 of the Sentencing Act was imposed.[37]
3. By the second ground the appellant contended that the magistrate's reasons reveal an implied error on the part of the magistrate in having reached the conclusion that the only appropriate sentence was a term of imprisonment.[38]
4. By the third ground the appellant contended that the magistrate's reasons reveal an express error on the part of the magistrate in failing to consider other sentencing options.[39] It is convenient to deal with the third ground of appeal before the second.

Ground 3 - the magistrate erred in not considering other sentencing options

1. The appellant contended that the learned magistrate had failed to give proper consideration to other sentencing options, and so fell into error.
2. Counsel for the appellant noted that all of the authorities referred to by the magistrate (listed at [21] above) concerned circumstances where the suite of offences in each case made the imposition of a term of imprisonment inevitable, thus limiting the other sentencing options available to the court on those occasions.[40] Counsel further noted that, in contrast to the circumstances described in those authorities, in this case the appellant's other offending resulted in the imposition of fines, such that other sentencing options were available to the magistrate.
3. Counsel for the appellant also noted that the magistrate had acknowledged that there was:[41]

[C]ertainly no direction that the only appropriate outcome is a term of immediate imprisonment. It certainly says nowhere that there has to be exceptional reasons shown for a sentence of imprisonment, whether suspended or otherwise, to descend.

1. The appellant argued that despite this acknowledgment, the sentencing remarks reveal that the magistrate's starting point was immediate imprisonment, without consideration of other sentencing options. It was submitted that the magistrate had focussed on the seriousness of the offence, which caused his Honour to believe that a term of immediate imprisonment was the 'starting point', and by being so focussed on seriousness, erred expressly by not considering other sentencing options.[42] Counsel further submitted that the magistrate's focus upon the seriousness of the offence was evident at the sentencing hearing on 31 May 2022, when his Honour stated:[43]

Much of the - the focus is on that data access order, I anticipate.

1. As to this comment, counsel submitted that:[44]

So it seems to me that [the magistrate is] focusing on the seriousness of that offence rather than everything as a whole and [the magistrate is] looking simply at that as the reason why he believes imprisonment is a starting point and we say that's an error.

1. Counsel further submitted that general deterrence would also have been achieved by any other of the sentencing options.[45]
2. In response, counsel for the respondent submitted that the appellant had failed to demonstrate that the sentencing magistrate had erred in failing to consider lesser sentencing options. In this regard, counsel noted that his Honour expressly considered the imposition of suspended imprisonment; referred to and applied the approach directed in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; and concluded that the sentence could not be suspended.[46]
3. I understood the respondent to submit that it was implicit that the magistrate had been positively satisfied that each of the lesser sentencing options were inappropriate. Further, counsel submitted that contravention of s 61(2) of the Criminal Investigation Act was plainly too serious an offence for a fine or community based order to be imposed, and in the absence of a pre‑sentence report it had not been possible to impose an intensive supervision order.[47]

1. In considering the third ground of appeal, I gave careful consideration to the magistrate's sentencing remarks. In so doing, I was cognisant that when considering the learned magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was observed by Martin CJ in Strahan v Brennan [2014] WASC 190 [89] ‑ [90], magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. As was observed at [90], accordingly:

[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

1. I was cognisant that these observations may have less weight when, as here, a magistrate has had the opportunity of a prolonged adjournment after hearing initial submissions raised by counsel, including the plea in mitigation. Notwithstanding this, a magistrate in such a case is still managing a large volume of cases daily and is faced with the requirement to conduct cases efficiently and with a degree of informality.
2. Section 39(2) of the Sentencing Act provides that a court sentencing an offender may impose no sentence and order the release of an offender (with or without making a spent conviction order) or it may pass any of eight forms of sentence (the first four with or without imposing a spent conviction order): conditional release order (Pt 7); fine (Pt 8); suspended fine (Pt 8A); community based order (Pt 9); intensive supervision order (Pt 10); suspended imprisonment (Pt 11); conditional suspended imprisonment (Pt 12); or imprisonment (Pt 13).
3. Section 39(3) of the Sentencing Act provides as follows:

A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.

1. It is well established that it is not incumbent on a sentencing magistrate imposing any sentence option provided for by s 39(2) of the Sentencing Act to make express reference to each of the options listed in s 39(2) before that option, and to state that to the magistrate's satisfaction it is inappropriate to use any of the same.[48] In the absence of credible evidence to the contrary, it is to be assumed that the decision‑maker has complied with all relevant duties and taken all matters into account.[49] As was observed by Franklyn J in Bessell v The Queen:[50]

A conclusion by a sentencing Judge that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. That the sentencing Judge does not express in positive terms that conclusion cannot lead to an inference that he failed to give proper consideration to the inappropriateness of the sentencing options not exercised by him.

1. In this case, the magistrate stated as follows:[51]

I take the view that, as a starting point, the only appropriate sentence in this particular case is a term of immediate imprisonment as a starting point.

1. I do not accept that it can be fairly inferred from his Honour's use of the words 'as a starting point', nor from the magistrate's comments which suggested a focus on the seriousness of the offence, that his Honour failed to observe s 39(3) of the Sentencing Act by failing to turn his mind to the other sentencing options. Indeed, his Honour's comments must be understood in a context where he had acknowledged that he was proceeding on the basis that there was no applicable tariff; had acknowledged that he was not bound to impose a term of imprisonment; and had considered whether to impose suspended imprisonment and order the release of the appellant.[52] Further, the sentencing remarks do not support a finding that his Honour failed to consider all matters relevant to the sentencing exercise, as was submitted on behalf of the appellant.[53]
2. As noted above, in the absence of credible evidence to the contrary, it is to be assumed that the decision‑maker has complied with all relevant duties and taken all matters into account.[54] Having considered the sentencing remarks as a whole, there was in this case an absence of credible evidence to the contrary.
3. For these reasons, I was not satisfied that the third ground of appeal was made out. Further, in my view, this ground did not have a reasonable prospect of success.

Ground 2 - the imposition of 7 months' imprisonment was manifestly excessive by way of type The appellant's position

1. By the second ground of appeal, the appellant contended that the sentence of 7 months' immediate imprisonment was manifestly excessive by way of type. That is, an implied error is alleged, specifically that the magistrate erred by concluding that the only appropriate sentence was a term of immediate imprisonment. Among other things, the appellant contended that as this was a first offence of its nature that the appellant had committed, and given the nature of the offence, it was not one which was so serious as to conclude that only imprisonment could be justified.[55]
2. The submissions made on behalf of the appellant in support of this ground addressed the maximum penalty for a breach of a data access order contrary to s 61(2) of the Criminal Investigation Act; sentencing standards; and the seriousness of the appellant's offending. They are summarised below.

1. As to the maximum penalty for not obeying a data access order, counsel for the appellant noted that the maximum penalty for the offence is 2 years' imprisonment and $24,000 when dealt with summarily, and 5 years' imprisonment upon indictment.[56] It was not suggested by the appellant that the magistrate had not had regard to the same.

1. As to the standards of sentencing customarily observed with respect to the offence, counsel for the appellant referenced and made submissions in respect to the authorities that the magistrate had identified at the first sentencing hearing.
2. As to the authorities, counsel noted that:

(a) the magistrate had acknowledged that 'there is a shortage of authority as it related to matters of a stand-alone nature';[57] and
>
> (b) the appellant had also been unable to identify any authority where contravention of s 61(2) of the Criminal Investigation Act was considered in a sentencing exercise without other serious offences that would typically result in a term of immediate imprisonment.[58]

1. Counsel referred to the decision of the Court of Appeal in McCooke, noting that the sentencing judge had sentenced Ms McCooke to 12 months' imprisonment for a charge of possession with intent to sell or supply methylamphetamine (count 1), and 10 months' imprisonment for possession of stolen or unlawfully obtained property (count 2), which terms were to be served concurrently. Ms McCooke was also sentenced to 3 months' imprisonment for having failed to obey a data access order contrary to s 61(2) of the Criminal Investigation Act (count 3), which term was to be served cumulatively. Thus, the total effective sentence imposed was 15 months' immediate imprisonment.[59]
2. Counsel submitted that while the facts of Ms McCooke's offending were similar to the circumstances of the appellant's offending, the appellant received more than twice the sentence that had been imposed on Ms McCooke for failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act. Counsel noted that this was despite:[60]

(a) Ms McCooke being 46 years of age, with no genuine remorse for her actions; and
>
> (b) the appellant's offending not being linked to the sale or supply of methylamphetamine, in circumstances where the appellant also had the benefit of youth.

3. It is convenient to set out here the facts of Ms McCooke's offending, which were recorded in the Court of Appeal's reasons as follows:[61]

At about 7.00 am on 26 June 2019, police officers executed a search warrant at the appellant's home in Gosnells. During the search of the appellant's bedroom, police located a clipseal bag containing 6.71 g of methylamphetamine with a purity of 84% inside the pocket of a pink handbag (count 1). Police also located $2,720 in cash in the appellant's bedroom, mainly in $100 note denominations (count 2). Some of the cash was found in close proximity to the methylamphetamine. A small quantity of cash was also found in the appellant's handbag.

In addition to the items found in the appellant's bedroom, the police located a set of digital scales and multiple packets of clipseal bags in the dining area of the home. The appellant failed to provide an explanation for the items.

The police seized the appellant's mobile telephone. As a result of the appellant's failure to provide the police with access information for her telephone, a data access order was obtained from a magistrate requiring her to provide her telephone PIN to the police by 8 July 2019. On 16 July 2019, the appellant attended at the Gosnells police station and provided the police with an incorrect PIN (count 3). The appellant claimed that she had short-term memory loss and could not recall the correct PIN.

The police later gained access by other means to text messages stored on the appellant's mobile telephone, which indicated that she had been involved in the sale and supply of methylamphetamine.

1. It is also convenient to note here that in sentencing Ms McCooke, the sentencing judge rejected the proposition that Ms McCooke did not provide the police with the correct personal identification number (PIN) to her mobile telephone because she was experiencing memory impairment;[62] and with respect to count 3, the sentencing judge noted that Ms McCooke's refusal to comply with the data access order was persistent and hindered the police in their investigation for a period of time.[63]
2. As to the sentence imposed by the sentencing judge in relation to count 3, the Court of Appeal made the following observations:[64]

In our opinion, even if the express error alleged by the appellant was made out, and this court was called upon to re-exercise the sentencing discretion, it is not reasonably arguable that a different sentence should have been imposed.

As the sentencing judge pointed out, the appellant's defiance of the data access order was persistent. The police were seeking information to ascertain whether the appellant was engaged in the sale or supply of prohibited drugs. The appellant attempted to thwart the investigation by not merely failing to comply with the order, but by actively misleading the police by stating that she could not recall the PIN to the mobile telephone. While the police were ultimately able to obtain access to the text messages stored on the mobile telephone, the appellant's actions had the potential of thwarting, at least to some extent, the police investigation. Penalties for non-compliance with a data access order must act as a deterrent to others and, as Hall J in Sumption v Gaunt put it, '[overcome] the reluctance that the person and others may have to cooperate with the police'.

Having regard to the maximum sentence of 5 years' imprisonment for the offence and taking into account the appellant's plea of guilty and the other mitigating circumstances identified by the sentencing judge, it is not reasonably arguable that a different sentence should have been imposed even if the express error alleged in ground 1 had been made out.

1. Counsel for the appellant also referred to the decision of Hall J in Sumption, noting that Ms Sumption had been sentenced by a magistrate to 30 months' imprisonment for possessing methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act, and 4 months' imprisonment concurrent for having not obeyed a data access order contrary to s 61(2) of the Criminal Investigation Act.
2. Counsel for the appellant noted that on appeal, the term of 30 months' imprisonment was reduced (the appellant was resentenced to 9 months' imprisonment), but the sentence of 4 months' imprisonment concurrent remained undisturbed. Further, counsel for the appellant noted that at [43] of his Honour's reasons, Hall J stated:

I am unable to conclude that the sentence of 4 months' imprisonment for the failure to comply with the data access order was manifestly excessive. Sentences of 6 months' imprisonment or less are prohibited by the Sentencing Act. However, for reasons which I will state later, I have concluded that on a resentencing the appellant should receive a sentence of imprisonment to be served for the possession offence. In those circumstances, the sentence for the data access order should stand. (emphasis added by counsel for the appellant)

1. Counsel for the appellant submitted that in contrast to the circumstances described in Sumption, the appellant did not receive a sentence of imprisonment for any other offence; and the circumstances now before the court are different than the circumstances considered by Hall J.[65]

1. Counsel for the appellant referred to the decision of the Court of Appeal in Chadburne.
2. As was recorded by the Court of Appeal, Mr Chadburne had been convicted after trial of four offences of possession of a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act, which offences were all committed on 26 March 2014. Mr Chadburne was also convicted, on his plea of guilty, of failing to obey a data access order without reasonable excuse contrary to s 61(2) of the Criminal Investigation Act. That offence was committed on 29 March 2014. The trial judge sentenced Mr Chadburne to a total effective sentence of 16 years and 6 months' imprisonment. That sentence included a term of 6 months' imprisonment for failing to obey a data access order (reduced from 18 months' for totality), to be served cumulatively with the head sentence of 14 years and 6 months' imprisonment.[66]
3. The circumstances of Mr Chadburne's offending concerned high level commercial drug dealing of large quantities of MDMA (approximately 8.4 kilograms) and methylamphetamine (approximately 2 kilograms). There had been a 5% discount on the sentence for failing to obey a data access order, as there had been a late plea of guilty.[67]
4. Counsel also referred to [69] of the Court of Appeal's decision, as did the respondent, which is reproduced in full below:

Cumulacy of this sentence was called for in order to avoid the result that a person apprehended in the course of committing serious offences might refuse to comply with an order that will produce evidence of the offending without any practical adverse consequences if the offences can be proven by other means. The experience of this court is that encrypted BlackBerry devices are commonly used by those in the illicit drug trade. There is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity. Considerations of general and personal deterrence justified the imposition of a cumulative sentence in this case.

1. Counsel for the appellant submitted that the circumstances of Mr Chadburne's offending were different to the appellant's. It was noted that the appellant was not otherwise apprehended in the course of committing a serious offence (as defined in s 57 of the Criminal Investigation Act as an offence including imprisonment of 5 years or more or life), nor was the device subject to the data access order encrypted or indicative of being used in the illicit drug trade.[68]

1. Counsel for the appellant also addressed the decision of the Court of Appeal in Doyle.
2. As recorded by the Court of Appeal, Mr Doyle was convicted on his pleas of guilty to 79 counts of offering to sell or supply a prohibited drug to another contrary to s 6(1)(c) of the Misuse of Drugs Act; two counts of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act; and one count of possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA). The Misuse of Drugs Act offences involved offers made to sell or supply MDMA (59 counts), cocaine (14 counts), methylamphetamine (four counts), GHB (also known as 'fantasy') (one count), and cannabis (one count). In respect of all counts, Mr Doyle was sentenced to a total effective sentence of 4 years' immediate imprisonment with eligibility for parole to commence on 18 November 2016.[69]
3. As to each of the counts which concerned contravention of s 61(2) of the Criminal Investigation Act, Mr Doyle was sentenced to 9 months' imprisonment to be served concurrently.
4. The State prosecuted two grounds of appeal. By the first, the State alleged that nine of the individual sentences imposed for offences of offering to sell or supply MDMA were manifestly inadequate. By the second the State alleged that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle. On appeal, both grounds were upheld and the Court of Appeal resentenced Mr Doyle to a total effective sentence of 6 years' imprisonment. The sentencing judge's imposition of 9 months' immediate imprisonment to be served concurrently for contravention of s 61(2) of the Criminal Investigation Act was undisturbed on appeal.
5. On behalf of the appellant it was submitted that given the significant number of illicit drug charges for distribution faced by Mr Doyle (79 separate charges) and his two charges for not obeying a data access order, the criminality of Mr Doyle's offending was vastly different to that of the appellant.[70]

1. As to the seriousness of the appellant's offending, counsel for the appellant submitted:[71]

(a) the level was at the lower end for offences of the type, with no indices of the sale or supply of drugs or of a serious offence which would give grounds for the grant of a data access order;
>
> (b) the appellant provided an explanation for her initial refusal to provide police with access to the mobile phone through counsel at the first sentencing hearing, and made attempts to provide access details to the phone upon being served with the data access order;
>
> (c) there were no aggravating features, such as other offences warranting an immediate term of imprisonment, the suggestion of a commercial enterprise or encrypted devices;
>
> (d) the appellant pleaded guilty at an early stage, was given full credit for her early pleas, and showed regret and remorse for her actions;
>
> (e) the appellant has a minimal criminal record which does not suggest participation in illicit drug trade, rather personal use; and
>
> (f) the appellant's contravention of s 61(2) of the Criminal Investigation Act was a first offence of its nature committed by the appellant, and given the nature of the offence, it was not one which was so serious as to conclude that only imprisonment could be justified.

1. It was the respondent's position that the appellant's second ground of appeal was bound to fail, particularly when regard was had to the maximum penalty that may be imposed for contravention of s 61(2) of the Criminal Investigation Act, and to the sentencing standards that may be gleaned from the authorities cited by the magistrate (listed at [21] above).

1. As to the maximum penalty, counsel for the respondent observed that the maximum summary conviction penalty, being a fine in the amount of $24,000 and imprisonment of 2 years, does not affect or limit the appropriate penalty for a particular offence.[72]

1. Counsel confirmed that he had also not found any appellate decision which concerned sentencing for contravention of s 61(2) of the Criminal Investigation Act, where the offender was not also sentenced to a term of imprisonment for other offences.[73] As to the decisions that had been identified by the magistrate, the following observations were made.

1. Counsel referred to the decision of Hall J in Sumption, and noted that Ms Sumption's appeal on the basis that the sentence of 4 months' imprisonment imposed for a breach of a data access order was manifestly excessive, had been refused leave.[74]
2. As to the circumstances of Ms Sumption's offending, counsel for the respondent noted that Ms Sumption had initially refused to comply with the data access order stating that she 'did not want to get anyone into trouble', and although she later provided an access code, attempts to access the phone with that code had been unsuccessful.[75]
3. Counsel further noted that Hall J had described factors that may be relevant to sentencing for an offence of failing to comply with a data access order.[76] It is convenient to record here that his Honour at [39] stated that factors that may be relevant include the following:

(1) the significance of the information to the police investigation;

(2) whether the information was readily available to the person served with the notice;

(3) the period for which non-compliance continued;

(4) the reasons that the person gave for non-compliance;

(5) the effect that non-compliance had on the police investigation; and

(6) the importance of imposing a penalty that acts as a deterrent and overcomes the reluctance that the person and others may have to cooperate with the police.

1. As to Doyle, the respondent noted that 9 months' imprisonment was imposed for two counts of failing to comply with a data access order, in circumstances where the offender (who was 18 ‑ 19 years of age at the time of the offending) was resentenced to a total effective sentence of 6 years' imprisonment for a conviction also including 79 offences of offering to sell or supply a prohibited drug.[77] As to the sentences for the offences of failing to comply with the data access order, counsel for the respondent noted that at [42], the Court of Appeal observed as follows:

It is the experience of this court that many drug transactions are conducted by mobile telephone. It is common for data stored on mobile devices to be encrypted and password protected. The detection of this criminal activity depends, to a significant degree, upon law enforcement agencies being able to interrogate the mobile devices that are seized. The purpose of a data access order is to compel the holder of a device to divulge information in order to allow law enforcement authorities to obtain relevant data stored on the device. Such orders are made to be obeyed. Offenders who fail to comply are obstructing law enforcement authorities from undertaking their role in detecting offences. The penalty to be imposed on an offender who fails to comply with a data access order must serve as a deterrent to others.

1. Counsel for the respondent also referred to the Court of Appeal decision of Chadburne, noting the most serious offence for which Mr Chadburne had been sentenced involved possession of over 8 kilograms of MDMA. Counsel also noted that when Mr Chadburne was arrested in the process of transporting a large quantity of drugs from Sydney to Perth, police had seized a BlackBerry device from his vehicle. Counsel particularly referred to [69] of the Court of Appeal's reasons, which is reproduced above at [79].

1. As to the decision of the Court of Appeal in McCooke, counsel noted that Ms McCooke had been sentenced to 3 months' imprisonment for having not obeyed a data access order, which term was cumulative upon the sentence of 12 months' imprisonment for possession with intent to sell or supply.[78] Counsel for the respondent further noted that:

(a) the circumstances of Ms McCooke's offending included her having attended a police station and having provided an incorrect PIN, and that the sentencing judge had rejected her claim that she provided the incorrect PIN due to a memory impairment;[79]
>
> (b) relevant mitigating factors included Ms McCooke's early plea of guilty, resulting in a 20% discount, prior good character and traumatic upbringing;[80]
>
> (c) the Court of Appeal rejected the contention that the sentencing judge had regarded Ms McCooke's refusal to provide the PIN as an aggravating factor, and had thereby fallen into error;
>
> (d) the Court of Appeal proceeded on the basis that Ms McCooke's conduct in providing an incorrect PIN was more than a 'mere' failure to obey, noting her defiance of the data access order had been persistent and while the case investigators were ultimately able to access the text messages on the phone, the Court of Appeal observed that Ms McCooke's actions had the potential of thwarting the police investigation;[81] and
>
> (e) the Court of Appeal accepted that penalties for non‑compliance with a data access order must act as a deterrent to others and, as Hall J in Sumption put it, '[overcome] the reluctance that the person and others may have to cooperate with the police'.[82]

2. In addition, I had regard to the submissions made on behalf of the respondent as to principles which might be discerned from these decisions to this appeal.[83] Counsel submitted that the second ground of appeal must fail as, among other things, the failure to obey a data access order is inherently serious, and involves the defiance of an order of a magistrate made to compel the appellant to provide information she had previously refused to provide when ordered by a police officer.[84]

1. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error.[85] An assertion that a sentence is manifestly excessive is an assertion of implied error, and the appellant must demonstrate that the disposition was unreasonable or plainly unjust to succeed. It is well settled that an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.[86]
2. The legal principles applicable to an appeal on the ground that a wrong type of sentence was imposed were recently summarised by Derrick J in Franco v Director of Public Prosecutions for Western Australia [2022] WASC 340. In the disposition of this appeal, I had regard to, and adopted the principles conveniently outlined below:[87]

The principles to be applied by an appellate court in a case such as the present where the allegation is that the wrong type of sentence was imposed are well established. Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred ... Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.

In order to determine whether it was reasonably open to the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not an appropriate disposition for the offence ...

The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in a particular case. Similarly the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried ...

1. As noted above, the question for the appellate court may be framed as whether it was reasonably open for the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not appropriate. In the end, I was satisfied that it was not reasonably open for the learned magistrate, upon application of the relevant sentencing principles and considerations, to be positively satisfied that a less serious sentencing option was not appropriate. In so finding, I had regard to the following.

1. First, the maximum sentence imposed by law for contravention of s 61(2) of the Criminal Investigation Act is 5 years' imprisonment. The sentence imposed by the learned magistrate was well below the statutory maximum penalty and below the jurisdictional limit. Further, the sentencing remarks make plain that the magistrate correctly proceeded on the basis that the jurisdictional limit did not affect or limit the appropriate penalty for that particular offence.
2. In the disposition of this appeal, I was cognisant that the jurisdictional limit must not be confused with the statutory maximum penalty,[88] and the statutory maximum penalty for the offence is 5 years' imprisonment.

1. Secondly, as to the standards of sentencing customarily observed with respect to the offence, all of the decisions identified by the magistrate and to which I had regard recorded the imposition of a term of imprisonment for failing to comply with a data access order.
2. The sentences imposed reflect that the offence of failing to obey a data access order is inherently serious; that personal and general deterrence are factors which are of particular significance in respect of contravention of s 61(2) of the Criminal Investigation Act; and that there is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity.[89]
3. That said, the decisions concerned circumstances where the other offences which informed the sentencing exercise were sufficiently serious that they would typically result in the imposition of a term of imprisonment, thus limiting the other sentencing options available to the court on those occasions when sentencing the contravention of s 61(2). In this respect, the cases provide limited assistance.
4. The circumstances of the appellant's offending did not display the level of criminality evident in the decisions identified by the magistrate and which were substantively addressed by counsel. In contrast to the circumstances of offending that informed the decisions of McCooke, Sumption, Chadburne and Doyle, the appellant was not also convicted of being in possession of a prohibited drug with intent to sell or supply it to another. I was also cognisant that, while in each of these decisions the sentence imposed for the failure to obey a data access order was less than the sentence imposed on the appellant, in each totality was also a relevant consideration.
5. I also had regard to the decision of the Court of Appeal in Phan, which decision was cited by the learned magistrate but not substantively addressed by either counsel in the appeal. Mr Phan was sentenced on his pleas of guilty to a total effective sentence of 5 years 6 months' imprisonment in respect of the offences of property laundering in contravention of s 563A(1)(b) of the Criminal Code (a head sentence of 4 years, 2 months' imprisonment); possession of a thing reasonably suspected to be unlawfully obtained contrary to s 417(1) of the Criminal Code (a sentence of 1 year, 4 months' imprisonment to be served cumulatively); and failure to obey a data access order contrary to s 61(2) of the Criminal Investigation Act (a sentence of 9 months' imprisonment to be served concurrently).
6. The Court of Appeal described the case as a 'serious example of a property laundering offence. The appellant was involved in 72 structured transactions over four days involving $431,825. He was trusted with well over $1.5 million in cash ...'[90]
7. As to the offending the subject of the second count, the Court of Appeal observed that it was also serious, involving a very significant amount of cash. During a search of Mr Phan's bag at the Commonwealth Bank, police located $32,278.20 in bundles of $50 notes. Police also located the key to Mr Phan's hire car, which was parked nearby and searched. In the car, police found $292,050.05 in two suitcases, and Mr Phan's wallet which contained $2,100.05. These amounts, totalling $326,428.30, were reasonably suspected of having been unlawfully obtained. Police also found deposit slips and ledgers for the approximate total of about $1.3 million, with which the group of offenders was involved.[91]
8. As to Mr Phan's failure to comply with a data access order, the Court of Appeal at [16] to [18] describe the facts of his offending as follows.
9. At the Commonwealth Bank branch, police located two iPhones in the pocket of Mr Phan's pants. Mr Phan was asked to provide access to the mobile telephones, as police reasonably suspected that they contained records that would afford evidence in relation to the serious offence for which he was arrested. Mr Phan refused to provide access codes, and on Friday 14 September 2018, police obtained a data access order in relation to the two devices. Following service of the order on Mr Phan, he provided police with two different PINs to access the devices, both of which were attempted in front of Mr Phan and did not unlock them.
10. Mr Phan was required to comply with the data access order by the end of 17 September 2018, but failed to provide police with access to either device. The reasons for decision record that Mr Phan refused to comply with the order because he did not want to implicate himself, and knew that police would find incriminating evidence on his devices.
11. Mr Phan sought leave to appeal against his sentences on two grounds, both of which allege inferred error. By the first ground, Mr Phan in effect contended that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle. By the second ground he contended that the individual sentence for the property laundering offence was manifestly excessive. Leave to appeal was refused on both grounds.
12. In refusing the first ground of appeal, the Court of Appeal found that some degree of accumulation of individual sentences was clearly appropriate, particularly having regard to the refusal to comply with the data access order.[92] Referring to Chadburne at [69],[93] the Court of Appeal noted that it had recognised that a cumulative sentence will often be appropriate for failure to comply with a data access order.[94]
13. As to Mr Phan's offending, the Court of Appeal noted that the sentencing judge did not impose a cumulative sentence for the offence of failing to comply with a data access order but observed that the offence added 'to the overall criminality involved in all of the offences, and remains relevant when considering whether the total effective sentence is disproportionate to that overall criminality'.[95]
14. The decision of Phan makes plain that the offence of failing to obey a data access order is inherently serious. That said, the circumstances of the appellant's offending in this case does not display the level of criminality as was evident in Phan, nor as was evident in Slade v The State of Western Australia,[96] to which I also had regard.
15. As noted above, the guidance afforded by comparable cases is flexible rather than rigid. All of the decisions discussed in these reasons recorded the imposition of a term of imprisonment for failing to comply with a data access order. The court has recognised that a cumulative sentence will often be appropriate for failing to comply with a data access order. However, the overall criminality in the cases discussed was marked by other serious charges for which a term of imprisonment typically would be imposed, and indeed in each case was imposed.
16. The absence of directly comparable cases does not prevent this court from deciding that an individual sentence is manifestly excessive. It simply means that the question of manifest excess must be approached by reference to the maximum sentence for the relevant offence, the place which the offending conduct occupies on the scale of seriousness of that kind, and the personal circumstances of the offender.[97] In this case, it is also possible to approach the question having regard to the principles which sentences imposed in those cases reflect (summarised at [103] above), and to the factors identified by Hall J in Sumption at [39] as being factors that may be relevant to sentencing.

1. Thirdly, when regard was had to the circumstances of the commission of the offence, the place that the appellant's criminal conduct occupies in the scale of seriousness of offences of the kind in question was at the lower end.
2. In so finding, I accept that the reasons that the appellant gave for non‑compliance do not mitigate the offence. By the appellant's plea of guilty, she accepted that without reasonable excuse, she did not obey a data access order, an offence which is inherently serious.
3. The respondent noted that the sentencing magistrate expressed difficulty in accepting that the appellant had forgotten her PIN, but did not make a finding that the provision of the incorrect PIN was a deliberate ruse or otherwise.[98]
4. The appellant was also not entitled to rely upon privilege against self‑incrimination so as to refuse to provide access to her device, as she said she had initially believed.[99] Parliament expressly abrogated this privilege in relation to a data access order.[100]
5. The significance of the information on the appellant's device to any police investigation, and the effect that non-compliance had on the police investigation, remains unknown. These matters and the fact that access to the device was never provided to police, all made the appellant's offending more serious and were factors relevant to sentencing.[101]
6. As noted above, the appellant was charged with six offences. Three concerned possession of a prohibited drug and drug paraphernalia; one concerned the possession of a prohibited weapon (being the cattle prod); one concerned the appellant's failure to comply with an order given by an officer under s 153(1) of the Criminal Investigation Act; and the last concerned the appellant's failure to comply with a data access order contrary to s 61(2) of the Criminal Investigation Act. On the appellant's early plea of guilty, convictions were entered for all charges.
7. The appellant was questioned at various stages through the search, to which she made full admissions to the possession of the methylamphetamine and smoking implements. There was no suggestion of a commercial enterprise or that she was involved in drug distribution. The appellant's circumstances of offending were not marked by such aggravating factors. Her device was not encrypted. The appellant has a minimal criminal record which did not suggest participation in illicit drug trade, rather personal use. The only potentially aggravating circumstance was the appellant's earlier refusal to comply with an order by an officer.
8. It is instructive to compare the offending of the appellant to the offending the subject of the decisions cited by the magistrate, and discussed above.
9. The appellant's offending occupies a lower place on the scale of seriousness than the offending in McCooke, Sumption, Chadburne and Doyle (in so far as the circumstances of offending in those cases involved drug distribution for personal gain), and the cases of Chadburne and Doyle (which concerned offending at the higher end of the drug industry). The appellant's offending also occupies a lower place on the scale of seriousness than Phan and Slade.
10. The circumstances of the commission of the offence in this case did not aggravate the inherent seriousness of the appellant's conduct in committing the offences.

1. Fourthly, as noted above, there were no aggravating features, such as other offences warranting an immediate term of imprisonment, suggestions of a commercial enterprise or encrypted devices. The appellant was questioned at various stages through the search undertaken of her home, to which she made full admissions to the possession of the methylamphetamine and smoking implements. The only possibly aggravating circumstance was the appellant's earlier refusal to comply with an order by an officer.
2. The appellant also pleaded guilty at an early stage, was given full credit for her early pleas, and showed regret and remorse for her actions.

The appellant's personal circumstances and antecedents

1. Fifthly, the appellant's record did not suggest participation in drug distribution, but rather personal use. As an adult she had incurred fines. She had never been subject to a community based disposition with programs or supervision. She had been subject to a suspended imprisonment order (not conditional) for a juvenile offence of dangerous driving in 2016.
2. The appellant's convictions upon her plea of guilty on 13 May 2022 for failure to comply with a data access order contrary to the Criminal Investigation Act s 61(2), and failure to comply with an order given by an officer contrary to the Criminal Investigation Act s 153(1), were the first of their kind.
3. As regards to the appellant's personal circumstances, she was 25 years old at the time of offending. While she was young, I note that youth as a mitigating factor decreases as an offender moves through their early 20s,[102] and so the appellant's age could be accorded only little weight.
4. The appellant has two young children. They were aged 6 and 1 at the time of sentencing. The appellant is the primary carer for her youngest child. That said, her partner and his family were able to assume care of her youngest child while the appellant spent time in custody.
5. At the sentencing hearing, the appellant accepted responsibility for her offending, appeared to have good prospects of rehabilitation, and had the support of her family, her partner and her partner's family.

1. I accepted that the decisions identified by the learned magistrate and discussed above consistently emphasise the significance of general and personal deterrence as relevant considerations in sentencing for failing to comply with a data access order. They also reflect that the offence is inherently serious, and that there is a public interest in ensuring that offenders cannot frustrate the exercise of statutory power to require access to data with impunity.[103]
2. Having regard to the same, and to the maximum penalty; the criminality involved in the appellant's offending; the lack of aggravating factors and the existence of mitigating factors; and the appellant's personal circumstances and antecedents, I was satisfied that the sentence imposed by the learned magistrate was unreasonable or plainly unjust. The sentence imposed did not bear a proper relationship to the appellant's overall criminality, in all of the circumstances. I so concluded cognisant of the importance of imposing a penalty that acts as a deterrent and overcomes the reluctance that the person and others may have to cooperate with the police. The imposition of a term of imprisonment is not however the only sentencing outcome that will act as a deterrent.
3. I was satisfied that it was not reasonably open for the learned magistrate, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not appropriate. I was in the end satisfied that the type of sentence imposed (being a term of imprisonment) was so unreasonable or unjust that a substantial wrong has occurred. Leave to appeal was granted on ground three and refused on ground two.
4. The appeal was allowed with respect to the sentence of 7 months' immediate imprisonment for charge AR 2642 of 2022, the sentence set aside, and the appellant resentenced to a community based order under pt 9 of the Sentencing Act, with a program requirement pursuant to s 66 of the Sentencing Act. The appellant was released subject to that order and therefore subject to the standard obligations of a community based order as prescribed in s 63 of the Sentencing Act. The term of the community based order will be 6 months commencing 14 December 2022.
5. In resentencing the appellant, I took into account the nature of the offending, and the circumstances of the commission of the offence (described at [8] to [10], [15], [17], [86(a)] to [86(c)], [105], [115] and [128] above); and the seriousness of the offending (described at [118] to [127] above).
6. I accepted that personal and general deterrence are factors which are of particular significance in respect of contravention of s 61(2) of the Criminal Investigation Act, and there is a clear need for general deterrence. I proceeded on the basis that there is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity.[104]
7. I took into account the appellant's early plea of guilty, noting that convictions were entered for all charges and granted full credit for the same. I also noted that by her plea of guilty the appellant had accepted that without reasonable excuse she did not obey a data access order.
8. As regards to the appellant's personal circumstances and antecedents, I took into account the matters described at [19], [86(e) and (f)], and [130] to [134] above. I was cognisant that the appellant's conviction upon her plea of guilty on 13 May 2022 for failure to comply with data access order contrary to the Criminal Investigation Act s 61(2), and failure to comply with order given by an officer contrary to the Criminal Investigation Act s 153(1), were the first offences of their kind.
9. I had regard to a pre‑sentence report dated 8 December 2022 prepared by Ms Errin Gregory, Senior Community Corrections Officer of the Adult Court Services Community Corrections. The report recorded that the appellant had presented with treatment needs largely pertaining to substance abuse, criminal attitudes and behaviours, and unaddressed mental health issues. It also recorded that since the appellant's release from custody, she had self-referred to substance abuse counselling at Wungening Aboriginal Corporation, now confirmed by Adult Community Corrections.
10. It was also recorded by Ms Gregory that the appellant had acknowledged a need to address her mental health issues and had expressed motivation to re-engage with her general practitioner to develop a treatment plan. Further, should the court consider a community disposition, Ms Gregory observed that a programme only requirement would allow Adult Community Corrections to monitor the appellant's compliance with any treatment providers.
11. I understood that the appellant had accepted responsibility for her offending, and had expressed embarrassment and particular concern for the impact the time she had spent in custody had on her eldest child, which was a negative one.
12. I accepted that the appellant has good prospects of rehabilitation. As recorded in the pre-sentence report, the appellant has the support of her family, partner and her partner's family. Since securing bail, the appellant has engaged with some work with her partner's parents (with whom she, her partner and her youngest child reside), up to three days a week.
13. As was observed in the pre-sentence report, the appellant's offending in March 2022 appears to be linked to poor consequential thinking and problem-solving skills, negative peer influences and illicit drug use. Additionally, she has long term mental health issues that remain unaddressed. It is reported that the appellant is taking steps to address the same.
14. As is noted above, the seriousness of the offence is reflected in the maximum sentence that is able to be imposed for the breach of a data access order without reasonable excuse, being 5 years' imprisonment. In the end, I was not persuaded that a fine was an appropriate reflection of the seriousness of the offending.
15. In resentencing the appellant, I took into account the time the appellant had already spent in custody. She had served 42 days of her sentence before she secured bail. This was a matter that was given considerable weight in the resentencing exercise.
16. In all of the circumstances, which included that the appellant had served 42 days of her sentence before she secured bail, I concluded that it is appropriate that the appellant be sentenced to a community based order.

1. Accordingly, it was appropriate that I make the following orders:

(a) leave to appeal granted on ground 2;
>
> (b) leave to appeal refused on ground 3;
>
> (c) appeal against the sentence of 7 months' immediate imprisonment allowed;
>
> (d) that the sentence be set aside; and
>
> (e) in lieu thereof the appellant be sentenced to a community based order for a term of 6 months, beginning on the day the order was imposed.

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

[3] Respondent's submissions pars 5 - 6, referring to ts 3 (31 May 2022).

[4] ts 4 (31 May 2022) and as stated by the learned magistrate again at the second sentencing hearing, ts 15, 18 (21 June 2022).

[10] ts 8 (31 May 2022); as noted in the respondent's submissions par 9.

[11] ts 15 (21 June 2022); see also ts 10 (31 May 2022).

[16] ts 4 (21 June 2022), as noted in the respondent's submissions par 12.

[17] ts 3 (21 June 2022); the magistrate agreeing there was no tariff, see ts 5, 9, 14, 17 (21 June 2022).

[20] ts 11 - 13 (21 June 2022), as noted in the respondent's submissions par 12.

[22] ts 15, 18 (21 June 2022). Also noted by the magistrate at the first sentencing hearing, ts 4 (31 May 2022).

[25] ts 17 (21 June 2022). The reference to Mr Geoghegan is a reference to the appellant's counsel at the sentencing hearing.

[26] Doyle [42]; ts 17 (21 June 2022).

[27] Chadburne [69]; ts 17 - 18 (21 June 2022).

[29] Criminal Appeals Act s 10(3), (4).

[30] Criminal Appeals Act s 9(1).

[31] Criminal Appeals Act s 9(2).

[32] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[33] Criminal Appeals Act s 9(3).

[34] By order 1 of the orders made by a registrar on 17 October 2022; see also Samuels v The State of Western Australia [56].

[35] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Gaskell v The State of Western Australia [2018] WASCA 8 [127].

[36] As noted on the application filed on 4 November 2022; and in the affidavit of F E Seller sworn in support of the application, par 6.

[41] ts 17 (21 June 2022); accepted by counsel for the appellant at ts 22 (25 November 2022). See also, appellant's submissions par 30.

[43] ts 4 (31 May 2022); submitted by counsel at ts 22 - 23 (25 November 2022).

[46] Respondent's submissions par 16; ts 33 (25 November 2022).

[48] Bessell v The Queen (Unreported, WASC, Library No 980199, 20 April 1998) 6 (Franklyn J).

[49] Rundle v Innerd [2015] WASC 340 [117], citing Pickett v The State of Western Australia [2004] WASCA 291 [10].

[54] Rundle v Innerd [117], citing Pickett v The State of Western Australia [10].

[57] Appellant's submissions par 10; ts 14 (31 May 2022).

[60] Appellant's submissions pars 11 - 12.

[61] McCooke [7] - [10] (footnotes omitted).

[64] McCooke [34] ‑ [36] (footnotes omitted).

[71] Appellant's submissions pars 19 - 25.

[72] Respondent's submissions par 20, citing Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.

[74] Respondent's submissions par 23, citing Sumption [45].

[75] Respondent's submissions par 24, citing Sumption [11].

[76] Respondent's submissions par 25, citing Sumption [39].

[77] Respondent's submissions pars 26 - 28, with specific reference to Doyle [42].

[78] Respondent's submissions par 31; McCooke [3].

[79] Respondent's submissions par 32; McCooke [20].

[80] Respondent's submissions par 33; McCooke [18].

[81] Respondent's submissions par 34; McCooke [35].

[82] Respondent's submissions par 34; McCooke [35].

[83] Respondent's submissions pars 35 - 48.

[85] Gaskell v The State of Western Australia [127(1)].

[86] Gaskell v The State of Western Australia [127]; and Kabambi v The State of Western Australia [2019] WASCA 44 [21(1)], recently applied by the Court of Appeal in OTR v The State of Western Australia [No 2] [2022] WASCA 123 [53].

[87] Franco v Director of Public Prosecutions for Western Australia [35] ‑ [37] (footnotes omitted).

[88] ts 18 (21 June 2022); see Wiltshire v Mafi, cited in the respondent's submissions at par 20, footnote 22; and Stanley v The State of Western Australia [2018] WASCA 229 [46]; Franco v Director of Public Prosecutions for Western Australia [40].

[89] Sumption [38] - [39]; Doyle [42]; Chadburne [69]; Phan [43]; McCooke [35].

[90] Phan [35]; the reference to 'structuring' payments relates to the requirements of s 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). That section requires banks to report a cash transaction of $10,000 or more to the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre (AUSTRAC). Deposits of less than $10,000 do not attract that automatic reporting requirement: see Phan [7].

[96] Slade v The State of Western Australia [2019] WASCA 65 (Slade); which decision is cited in Phan at [43], footnote 19.

[97] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33]; Doyle [36]; Gaskell [23], [143]; Tan v The State of Western Australia [2019] WASCA 112.

[98] ts 8 - 11 (31 May 2022); respondent's submissions par 42. See also ts 15 (21 June 2022).

[99] ts 7 (31 May 2022). See also ts 10 (21 June 2022).

[100] Criminal Investigation Act s 61(3).

[102] Juma v The State of Western Australia [2011] WASCA 54 [44]; Tran v The State of Western Australia [2019] WASCA 50 [88].

[103] Sumption [38] - [39]; Doyle [42]; Chadburne [69]; Phan [43]; McCooke [35]. See also Slade [50].

[104] Sumption [38] - [39]; Doyle [42]; Chadburne [69]; Phan [43]; McCooke [35]. See also Slade [50].