The appellant, who is unrepresented, appeals against the sentence imposed by the learned magistrate on 30 July 2024 in relation to one charge of driving without authority and one charge of possession of stolen or unlawfully obtained property contrary to s 417 of the Criminal Code (WA).
The magistrate imposed cumulative sentences of 12 months' imprisonment on each charge, the total effective sentence being 2 years' imprisonment. On the same date, the learned magistrate sentenced the appellant on four other charges which are not the subject of appeal.
I dismissed the appellant's appeal against conviction on the unlawful possession of stolen property charge on 17 March 2025.[1] In the course of that appeal, the appellant indicated that he also wished to appeal his sentence, and the respondent did not oppose that being done or the extension of time required for that to occur.
The appellant filed a notice of appeal together with a document entitled 'Grounds of Appeal' dated 31 March 2025 in relation to his appeal against sentence, seeking, in effect, leave to appeal against his aggregate sentence under pt 2 of the Criminal Appeals Act 2004 (WA).
Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding,[2] which requires that the ground of appeal be shown to have a rational and logical prospect of succeeding, meaning a real prospect of success.[3]
Leaving to one side two matters the appellant conceded at the hearing of the present appeal did not bear on his appeal against sentence, and taking the grounds out of order, the appellant's grounds of appeal can be stated as follows:
the sentencing magistrate sentenced him unfairly, because of his behaviour in court;
the sentence imposed for the unlawful possession charge was manifestly excessive;
the total effective sentence imposed by the learned magistrate breached the totality principle because, the appellant submits, a suspended sentence or community‑based order ought to have been imposed in relation to the unlawful possession charge; and
the total effective sentence breached the totality principle, because the sentences should have been ordered to be served concurrently.
The facts relating to the appellant's conviction are set out in my earlier judgment in Coleman v Director of Public Prosecutions.[4] Briefly, the police attended the appellant's address on 30 November 2022 on an unrelated matter. A Kawasaki motorcycle was found at the premises. The motorcycle had a false number plate attached, a damaged ignition cylinder and the vehicle identification number plate and engine control unit had been removed by the appellant.
The motorcycle had been reported stolen by its owner on 7 November 2022.
The appellant was interviewed regarding the motorcycle by police on 1 December 2022. He denied knowing it was stolen, and told police that he had paid $300 for it. The appellant told police that he started the motorcycle with a screwdriver.
There was no evidence of the value of the motorcycle before the learned magistrate.
The appellant was convicted on the possession charge after trial, the learned magistrate rejecting the appellant's defence that he did not know that the motorcycle was stolen, having (he said) purchased the motorcycle only after he had obtained a report to the effect that the motorcycle had not been reported stolen. That report was dated the same day as the motorcycle was reported stolen.
While on bail awaiting trial on the unlawful possession charge, the appellant drove an electric scooter to the Mandurah Police Station in order, he said, to sign his bail conditions. The appellant was subject to a lifetime disqualification from holding a driver's licence at the time.
The appellant was convicted in his absence on the driving offence on 28 February 2024.
The magistrate considered that the driving offence was aggravated by the fact the appellant knew he was not entitled to drive. At the time of sentencing, the appellant was subject to 17 current driving licence revocations, four of them being permanent life disqualifications. The conviction relevant to this appeal was the appellant's thirteenth conviction for driving without authority.
Although the appellant did not enter a plea of guilty, the magistrate allowed a 25% discount on the driving offence to reflect that the matter was determined on the first hearing and that the appellant did not challenge the conviction.
There is no appeal against the sentence of 12 months' imprisonment on the driving offence.
As already stated, the learned magistrate imposed a term of 12 months' imprisonment in relation to the unlawful possession offence. As the appellant had proceeded to trial, the sentence was not discounted. The sentence on the unlawful possession offence was made cumulative with the sentence for the driving offence.
The total effective sentence was therefore 2 years' imprisonment, with the sentence being backdated to 26 June 2024 and an order being made making the appellant eligible for parole.
It is convenient to deal with the ground that the sentence in relation to the unlawful possession offence was manifestly excessive first.
A claim of manifest excess in sentencing depends on establishing an implied error from the type or length of sentence imposed. In determining whether a sentence is manifestly excessive, the sentence must be considered in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of serious offences of that type and the personal circumstances of the offender.[5]
The maximum penalty for a contravention of s 417 of the Criminal Code is 7 years' imprisonment. The maximum sentence that may be imposed summarily is a $24,000 fine or 2 years' imprisonment.
I take into account, without repeating here, the summary of the principles relevant to the use of comparable cases in sentencing in The State of Western Australia v PGW,[6] but a difficulty with assessing whether a sentence imposed for possession of stolen or unlawfully obtained property is that such sentences vary widely, reflecting the wide range of circumstances in which the offence may arise.[7]
The respondent submits that the sentence in this case is broadly comparable with the sentences imposed in respect of two charges of stealing a motor vehicle and three of possession of unlawfully obtained property recently considered by the Court of Appeal in Hishmeh v The State of Western Australia.[8] In that case, the two stealing offences proceeded on the basis that the appellant was in possession of the vehicles, rather than having been shown to have been involved in taking them.[9] The Court of Appeal considered that sentences of 12 months' imprisonment on those two charges within the 'usual range'.[10] The three charges of possession of stolen property concerned $7,000 in cash, a chainsaw and a trailer. Those three charges attracted individual sentences between 2 and 6 months' imprisonment each, the Court of Appeal describing those terms as 'unremarkable'.[11]
The respondent supports the analogy by reference to the maximum sentences for the offences of stealing and possession of stolen property, which are the same.
The appellant has a history of dishonesty in relation to offending, which includes numerous previous convictions for stealing and possession of stolen property dating back to 1993, as well as numerous driving offences. He has been imprisoned on a number of occasions for driving and stealing offences, although I note that prior to the sentence the subject of appeal he had previously only been fined in respect of his possession of stolen property offences.
The appellant's criminal record, while not aggravating, supports the conclusion that the previous sentences imposed have not deterred the appellant from engaging in similar conduct.
The appellant did not identify any mitigating factors at the sentencing hearing, and has not done so in the course of the appeal.
I do not accept the analogy the respondent proposes be drawn between the sentences for stealing considered in Hishmeh and the present case. In my opinion, it is not possible to equate the level of criminality involved in the offences considered by the Court of Appeal in Hishmeh and the possession charge the subject of the present appeal, the appellant not having been charged with stealing. In addition, the offender in Hishmeh had been in possession of the two vehicles for considerably longer than the appellant had been in possession of the motorcycle.
A further distinguishing factor is that the Court of Appeal considered in Hishmeh that the indications were that the offender in that case was involved in a criminal enterprise in dealing with stolen property, whereas the appellant was charged with a single property offence.
There was, however, a clear need for personal deterrence in the appellant's case, considering the appellant's history of convictions for possession of stolen or unlawfully property and the past imposition of non‑custodial sentences in relation to those offences.
The sentence imposed was half the maximum which might be imposed summarily.
In all the circumstances, I consider that the sentence imposed on the possession charge, while high, was neither unreasonable or plainly unjust when regard is had to the need for personal deterrence, the lack of prior good character or any other mitigating factor, and the appellant's lack of remorse, demonstrated by the basis on which the appellant defended the charge.
I would accordingly grant leave to appeal but dismiss the appeal in relation to this ground.
The third ground raises the question whether it was open to the magistrate to impose a sentence of immediate imprisonment.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved and all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referrable to the offender personally, all relevant sentencing factors and the sentences imposed in broadly comparable cases.[12]
An allegation that a sentencing judge has infringed the totality principle involves an allegation of an implied error. The appellant must demonstrate that the sentence is so unreasonable or unjust that the appellate court must conclude a substantial wrong has occurred.[13] For that reason, an appellate court will not intervene simply because it might have imposed a different sentence.
The existence of a sentencing discretion presupposes that sentences other than that imposed may have been open, or that judicial officers may differ as to what is an appropriate sentence within the discretionary range.
Section 39(2) of the Sentencing Act 1995 (WA) sets out the options available in sentencing. Section 39(3) requires that a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed prior to that option.
Different types of sentence may be reasonably open in certain circumstances. That can be so even though the actual decision‑maker has to be positively satisfied that a lesser sentence is not appropriate.[14]
The issue raised by this ground is whether it was reasonably open for the magistrate to take a view of the circumstances that would result in the conclusion that immediate imprisonment was the only appropriate outcome, it not being enough to show that another type of sentence was also reasonably open.[15]
The offending on the driving charge can properly be characterised, in the appellant's case, as being at the upper end of the scale in terms of seriousness when regard is had to the appellant's repeated disregard for driving whilst disqualified, and warranted a sentence of immediate imprisonment. At the time of the relevant offence, the appellant was subject to a lifetime disqualification from driving, having first been disqualified for life in 1995. As noted, at the time of sentencing, the appellant had breached his lifetime and other mandatory terms of disqualification on 13 separate occasions.
The charge before the learned magistrate concerned the appellant having offended while on bail by riding a scooter to a police station. That itself suggested the appellant had little regard for his being disqualified from driving, a suggestion reinforced by the appellant's statement in his current grounds of appeal that 'all [he] did was ride a scooter down to the Mandurah Police Station'.
It was open to the learned magistrate to conclude, considering the driving offence, that no option was available to the court but immediate imprisonment when regard was had to the appellant's history of similar offending, for which the appellant had previously received both lesser sentences and terms of imprisonment.
As her Honour recognised, her decision to impose a sentence of immediate imprisonment on the driving charge limited the options available to her in sentencing the appellant in relation to the unlawful possession offence.
In the circumstances of this case, I am not satisfied that a sentence of immediate imprisonment was not reasonably open to her Honour, having regard to the appellant's long history of similar offending and the demonstrated lack of impact of previous non-custodial sentencing dispositions.
I would accordingly grant leave to appeal in relation to this ground, but dismiss the appeal on the basis that the appellant has not demonstrated that the sentence is unreasonable or plainly unjust.
The appellant also submits that the two sentences should have been ordered to be served concurrently.
The two offences in question occurred on separate occasions and involved distinctly different types of criminal conduct. Further, given the appellant's criminal history, personal deterrence was an important sentence consideration in relation to each offence, such that the making of cumulative sentences was appropriate subject to an assessment of totality.[16]
Where the totality principles apply it is of little importance how the ultimate aggregate is comprised.[17]
In the appellant's case, the learned magistrate expressly considered the question of totality and concluded that the total effective sentence of 2 years' imprisonment was appropriate.
I accept the respondent's submissions that personal deterrence, the protection of the public and accountability were important sentencing considerations in sentencing the appellant, he being a persistent offender who has been undeterred by previous sentences in relation to both the driving and the unlawful possession offences.
I also take into account that a sentencing court must take care when applying the totality principle, so as to avoid the suggestion that what is in effect being offered is some kind of discount for multiple offending.[18]
Having regard to the repeated nature of the appellant's offending, the serious nature of his driving offences, the differing nature of the offences and the times when they were committed, and the need for personal deterrence in relation to each offence, I consider that a total effective sentence of 2 years' imprisonment was not disproportionate in all of the circumstances.
I would therefore again grant leave to appeal, but the ground fails on the basis that the appellant has not demonstrated that the sentence imposed was unreasonable or plainly unjust.
I return to the first ground, to the effect that the sentencing magistrate was predisposed against the appellant due to his behaviour in court and consequently sentenced him unfairly. On the hearing of the appeal, the appellant identified that this ground was solely based on the sentence the magistrate imposed on him, disavowing any reliance on any conduct of the magistrate in the course of the sentencing process.
Having reviewed the transcript of both the trial and the sentencing hearing in any event, I consider that the learned magistrate acted entirely appropriately in dealing with the appellant, there being nothing to indicate that the appellant's conduct had any impact on the way her Honour sentenced the appellant.
As I have determined that the sentence imposed was not so disproportionate as to demonstrate error on the part of the learned magistrate, the first ground has no merit, and I refuse leave to appeal in relation to it.
The appeal is therefore dismissed.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.