DEBONO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 193 (29 November 2019)

1. The sentencing judge incorporated into his sentencing remarks the statement of material facts that had been read to him earlier in the proceedings by the prosecutor.[4] Those facts were not disputed in this court. They are as follows.
2. As to counts 1 and 2, at about 1.45 am on 28 April 2017, the appellant was in company with a juvenile co‑offender, J, at the KFC restaurant in Mirrabooka. The appellant picked up a brick and threw it with force at a window in the drive‑through area of the restaurant, causing it to smash. Ten minutes later the appellant and J returned to the drive-through area and entered the restaurant through the smashed window. Inside, they crawled about the premises and rummaged around the office, before leaving the way they came in, empty handed.[5]
3. As to counts 3 and 4, later on the morning of 28 April 2017, between 2.00 am and 3.00 am, the appellant and J attended outside the western entry of the Mirrabooka Square shopping centre. They gained entry to the shopping centre through a window which was broken with a hammer. Once inside, the appellant and J, again using the hammer, smashed holes in the display windows of Prouds Jewellers. They then reached inside the display within the shop and stole 159 watches with a total retail value of $46,888. The appellant and J placed all of the watches in a large black bag and left the scene. This incident was captured on CCTV.[6]
4. As to counts 5 and 6, at 4.50 am on 1 May 2017, the appellant, this time by himself, again attended at the western entry of the Mirrabooka Square shopping centre. The window that he had previously broken was covered with protective plastic. The appellant removed the covering. Once inside the shopping centre, the appellant smashed a hole, using a hammer, in the display window of Shiels Jewellers. He then reached into the display and stole 52 Citizen brand watches with a total retail value of $17,089. He placed all of the watches in a backpack and left the scene. This incident was also captured on CCTV.[7]
5. Later that day the appellant was arrested by police. At his home, the majority of the watches taken from the two jeweller's shops were recovered.[8]
6. As to count 7, following the appellant's arrest on 1 May 2017, he was remanded in custody at Hakea Prison in Canning Vale. While there, he made a number of outgoing telephone calls which were recorded. At 4.18 pm on 8 May 2017, the appellant telephoned his mother. During the call, the appellant spoke to J and offered to pay him $5,000 or $10,000 to say that the appellant had nothing to do with the burglaries on 28 April 2017 and that J had 'put the bag of fucking shit [the stolen watches from Prouds Jewellers] at his [the appellant's] house'.[9] At 3.03 pm on 11 May 2017, the appellant once again called his mother and, during the call, spoke to J, requesting him to 'do an affidavit saying I was not with you, apart from KFC'.[10]

1. Between 8 October 2016 and 16 June 2017, the appellant committed a number of other offences in addition to those contained in IND 738 of 2018, for which he was separately dealt with and sentenced.

1. On 8 October 2016, the appellant assaulted his former partner, with whom he had been in a domestic relationship for about 2 years. At the time she was 36 weeks pregnant with their child. The appellant, who was armed with a knife, went to the victim's bedroom, woke her up and, in effect, accused her of having a relationship with someone else. He struck her repeatedly to the thighs and legs with open and closed hands and then knelt over the victim on the bed in which she had been sleeping, raised the knife so that it was pointing down and said, 'Is this baby even mine? I'll stab you if it's not.' He then slapped her stomach with an open hand. The appellant then pursued the victim when she ran downstairs. While they were in the kitchen, the police attended, entered the house and arrested the appellant.
2. The appellant was charged on indictment IND 700 of 2017 in the District Court with aggravated assault occasioning bodily harm, contrary to s 317(1)(a) of the Code. On 22 March 2018, he was convicted of the charge on his plea of guilty. He was sentenced by Vernon DCJ to 15 months' immediate imprisonment with eligibility for parole. The sentence was backdated to 14 January 2017 to take into account the 432 days the appellant had served in custody on remand for the offence.[11]

1. On 1 January 2017, the appellant, while affected by both alcohol and cannabis, attended at a house occupied by the complainant and her 5‑year‑old daughter. The complainant did not know the appellant. The appellant asked if he could use her telephone. The complainant refused and, in effect, told him to go away. The appellant asked to be let into the house. The complainant refused. The appellant then threatened her, saying, 'Let me in. I'm going to rape you and your family.'[12] The appellant then trespassed onto the complainant's backyard and went to a motor vehicle and stole some items from it. The police were called and the appellant was arrested. He was found to be in possession of some cannabis.
2. As a result of this incident, the appellant was charged with making a threat to injure the complainant (PE 49300 of 2017), stealing (PE 300 of 2017), possession of cannabis (PE 298 of 2017) and trespass (PE 49301 of 2017).
3. On 6 February 2019, these charges came before Magistrate Wilson in the Perth Magistrates Court. After a trial of issues in which the magistrate was satisfied that the appellant threatened the victim with the words, 'Let me in. I'm going to rape you and your family', his Honour sentenced the appellant to 6 months 1 day's immediate imprisonment for the offence of threat to injure, 3 months' immediate imprisonment for the offence of trespass, a fine of $200 for the stealing offence and 7 days' immediate imprisonment for the offence of possession of cannabis. All of the sentences of imprisonment were ordered to be served concurrently. Thus, the total effective sentence of immediate imprisonment imposed by Magistrate Wilson was 6 months 1 day's imprisonment. Magistrate Wilson ordered that the sentence of immediate imprisonment commence on 1 January 2017. His Honour did so in the knowledge of the sentences that had been imposed upon the appellant prior to 6 February 2019. His Honour observed, 'You're entitled to some credit in relation to the time spent in custody. It's a considerable period of time.' He did not specify the number of days in custody he took into account. His Honour noted that, in effect, the sentence he had imposed had, 'on its face ... been served'.[13]
4. Although Magistrate Wilson had been provided with some information about the time the appellant had spent in custody prior to being sentenced, the respondent accepts that the information that he was provided with by the prosecutor was 'inadequate'.[14] The magistrate was not, as he should have been, provided with precise and accurate information about the number of days which the appellant had spent in custody on remand for the offences.
5. The appellant appealed against the sentences imposed by Magistrate Wilson. On 19 August 2019, Allanson J dismissed the appeal.[15]
6. On 30 October 2016, the appellant was served with a violence restraining order (VRO) which protected his former partner. Apart from a period between 19 April 2017 and 2 May 2017, between 14 January 2017 and 16 June 2017 the appellant was a remand prisoner at Hakea Prison in respect of the offence of aggravated assault occasioning bodily harm referred to in [15] and [16] of these reasons. While on remand, the appellant's former partner made contact with him using an assumed name. The appellant soon knew the true identity of the person who contacted him. In breach of the VRO, the appellant sent six letters to his former partner during the period between 14 January 2017 and 16 June 2017.
7. On 6 March 2018, the appellant was convicted on his pleas of guilty in the Magistrates Court at Joondalup of six counts of breaching a VRO, contrary to s 61(1) of the Restraining Orders Act 1997 (WA). On 27 March 2018, the appellant was sentenced by Magistrate Scaddan to 3 months' immediate imprisonment for each offence, all of which were to be served concurrently with each other. Thus, the total effective sentence imposed by Magistrate Scaddan was 3 months' immediate imprisonment. Her Honour ordered that one of the sentences of 3 months' immediate imprisonment be served cumulatively on the sentence of 15 months' immediate imprisonment that had been imposed by Vernon DCJ on 22 March 2018.[16]
8. The appellant appealed against conviction and sentence. The appellant was released on bail pending the outcome of these appeals. However, he breached his bail and was taken back into custody. On 28 August 2018, his appeals were dismissed by Derrick J: De Bono v Southam.[17]
9. The appellant appealed against Derrick J's decision to dismiss his appeal against conviction. This court refused leave to appeal and dismissed the appeal: De Bono v Southam.[18]
10. At the time the appellant committed counts 1 to 6 the subject of IND 738 of 2018, he was on bail for the offence that was ultimately the subject of IND 700 of 2017 and the offences dealt with by Magistrate Wilson.

1. Once the sentences imposed by Vernon DCJ and Magistrate Scaddan had expired, the appellant applied to be released on bail in respect of the offences the subject of IND 738 of 2018. Bail was refused by Davis DCJ on 23 August 2018, Goetze DCJ on 20 September 2018 and Sleight CJDC on 15 October 2018. The appellant appealed to this court against the decision by Sleight CJDC. On 14 November 2018, the appeal was dismissed: De Bono v The State of Western Australia.[19] However, on 24 January 2019, Sleight CJDC gave the appellant bail and he was released on that day. Between 24 January 2019 and 13 June 2019, when he was sentenced by Staude DCJ, he participated in the Wandalgu rehabilitation program. As will be seen, the appellant made good progress in that program.

1. As we have said, Staude DCJ backdated the commencement date of the total effective sentence he imposed by 172 days so that it was taken to have commenced on 23 December 2018 on the basis of unchallenged information that had been provided to him by the prosecutor. However, during preparation for the appellant's application for bail pending this appeal, referred to in [6] above, it became apparent to the respondent that there was an error in the calculation of the number of backdating days that should have been applied to the sentence imposed by his Honour. At the hearing of the appellant's application for bail pending appeal, counsel for the respondent advised the court that Staude DCJ had not been provided with complete or accurate information and that the total effective sentence of imprisonment should have been backdated by approximately an additional 2[20]days.20
2. Since the determination of the application for bail pending appeal, the respondent further sought to clarify the number of days to be backdated by making inquiries from the manager of the Sentence Information Unit at the Department of Justice. On 15 August 2019, the respondent received a letter from that officer who stated that, after a close examination of the records, he considered that the correct number of days the appellant's sentence should have been backdated was 189 days, and not 172 days as Staude DCJ had been informed.
3. In the letter dated 15 August 2019, the manager of the Sentence Information Unit stated that the calculation of 189 days proceeded on the basis of a number of assumptions, one of which was that the sentence imposed by Magistrate Wilson 'did not exhaust any of the time [the appellant] spent remanded in custody prior to 1 January 2017' (emphasis in the original).
4. In submissions made to this court, the respondent argued that the sentence imposed by Magistrate Wilson, backdated to 1 January 2017, had taken into account 162 days that the appellant had spent on remand in custody up to 6 February 2019. Accordingly, an error was made in the appellant's favour by Staude DCJ because that period should not have been taken into account when calculating the date upon which the sentence he imposed should commence.[21]
5. As the respondent recognised before this court, a difficulty with this submission is that no information to this effect was put before Staude DCJ. Further, the position before Magistrate Wilson is unclear, to say the least.[22] As the manager of the Sentence Information Unit observed in the letter dated 15 August 2019, the calculation of the number of backdating days to be applied at the appellant's sentencing on 13 June 2019 was complex and subject to a number of possible different interpretations.
6. In our view, the information provided to the sentencing judge was in error. The appellant had spent 189 days in custody on remand, which were available to be taken into account by backdating the sentence under s 87 of the Sentencing Act. This conclusion is reached on the following basis.
7. The appellant had been in custody from his arrest on 2 May 2017 until his release on home detention bail on 6 July 2018. However, during that time the appellant was serving the following sentences:

(1) 15 months' immediate imprisonment with effect from 14 January 2017, imposed by Vernon DCJ on 22 March 2018 (see [16] above).

(2) 3 months' immediate imprisonment, to be served cumulatively on the above 15 month sentence, imposed by Magistrate Scaddan on 27 March 2018 (see [23] above).

(3) 6 months 1 day's immediate imprisonment with effect from 1 January 2017, imposed by Magistrate Wilson on 6 February 2019 (see [19] above].

1. It appears that, in backdating, Magistrate Wilson did not appreciate that the sentences imposed by Vernon DCJ and Magistrate Scaddan had already accounted for most of the period of 6 months and 1 day from 1 January 2017. That error in the appellant's favour was contributed to by inadequate information as to time spent in custody provided by the prosecution. However, there has been no prosecution appeal against the sentences Magistrate Wilson imposed. The effect of the sentences his Honour imposed - a total effective sentence of 6 months 1 day's immediate imprisonment to commence on 1 January 2017 - is unambiguous. As there was no order for accumulation with any other sentences, the sentences Magistrate Wilson imposed were to be served concurrently with the sentences imposed by Vernon DCJ and Magistrate Scaddan.[23]
2. Therefore, none of the period the appellant spent in custody between 2 May 2017 and 6 July 2018 could properly have been taken into account by Staude DCJ in backdating the appellant's sentences. The appellant was taken to have been serving other sentences of imprisonment during the whole of that period.
3. The remaining time which was potentially available to be taken into account by Staude DCJ was time which the appellant spent in custody due to breach of bail from 14 to 20 July 2018 and from 11 August 2018 to 15 February 2019. This is a total of 196 days. However, the appellant was serving other sentences for seven of those days, from 28 August 2018 to 3 September 2018. This was the balance remaining of the sentences Magistrate Scaddan imposed when the appellant was released on bail pending an appeal against those sentences. The appellant served those remaining 7 days after his appeal against the sentences imposed by Magistrate Scaddan was dismissed (see [25<[24]] above).24 Therefore, there were 189 days (196 days, less 7 days) spent in custody which could be properly taken into account by Staude DCJ in backdating the appellant's sentences.
4. In backdating the appellant's sentences, Staude DCJ took account of only 172 days of the available 189 days. His Honour did so because he had been misinformed as to the number of days which the appellant had spent on remand for the current offences while not serving any other sentence. Staude DCJ did not err in proceeding on the basis of the unchallenged information before the sentencing court. However, a miscarriage of justice arose by reason of Staude DCJ proceeding on the basis of information which the State now accepts is incorrect. The result was that the appellant did not receive credit for 17 days which he had spent in custody on remand. If full credit had been given, the sentences Staude DCJ imposed should have been backdated by 189 days and have been taken to commence on 6 December 2018.
5. Accordingly, ground 1 has been made out. The error is material and this court's discretion to resentence the appellant afresh on all offences has been enlivened. As this court must now resentence the appellant afresh, it is unnecessary to consider grounds 2, 3 and 4. We would refuse leave to appeal in respect of them. We now turn to the appellant's resentencing.

1. In resentencing the appellant, we have taken into account all of the material that was before Staude DCJ, including 47 pages of material that was provided on behalf of the appellant to his Honour on the morning that he was sentenced and all of the documents contained in the appeal book. We have had regard to other materials placed before this court by the appellant which were not included in the appeal book, including a letter from Mr Bicknell at the Wandalgu Rehabilitation Hostel, and letters written by Ms Bonnie Scally and Mr Graham Fabian on behalf of Sun City Care Incorporated who conduct the Wandalgu program. Ms Scally's letter provides details of the program and expresses support for the appellant and a willingness by Wandalgu to accept the appellant into that program. We have also had regard to two handwritten documents sent to the court by the appellant, one of which is headed 'Final Submissions' and the other, which the appellant referred to at the hearing of his appeal, was transmitted to the court by facsimile on 30 August 2019. We have also taken into account a letter dated 5 September 2019, from Mr Bryce Ridgeway, programs manager at Acacia Prison, which the appellant handed to the court at the hearing of the appeal. Finally, we have paid close attention to the appellant's oral submissions.
2. We will not repeat what we have already written about the facts of the offences and the maximum penalties applicable to them.
3. The appellant is now 36 years of age. He is single. He has two young children, one of whom is in the care of the Child Protection Family Service (CPFS) and the other, a daughter, is in the care of her mother. The appellant does not have contact with either child, but wishes to do so by arrangement with the CPFS and by obtaining an order from the Family Court of Western Australia. Indeed, the appellant asserts that he committed the burglary offences to obtain money to pay for a family lawyer to assist him to obtain contact with his daughter.
4. The appellant has not been employed since 2010 as the result of being the victim of a stabbing. Since then, he has received a disability support pension. In 2013, the appellant was diagnosed with post‑traumatic stress disorder resulting from a sexual assault.
5. Since the age of 17, the appellant has used amphetamines and cannabis. According to the pre‑sentence report before Staude DCJ, the appellant's use of amphetamines and cannabis has gone unabated apart from periods in custody and a period of about 2 1/2 years from 2013. The appellant attributes his relapse into illicit drug use to relationship difficulties and the loss of custody of his then 3‑year‑old son.[25]
6. The appellant has, as the sentencing judge correctly put it, a long and significant history of prior offending.[26]
7. From 2001, the appellant has been convicted of numerous offences including for fraud, using threatening words or behaviour, resisting arrest, stealing a motor vehicle, stealing, possession of a prohibited drug, giving false details, multiple burglary offences, trespass, receiving, selling a prohibited drug and possession of stolen or unlawfully obtained property.
8. In 2010, he was convicted of possession of heroin with intent to sell or supply, and given conditional suspended imprisonment. In 2012, the appellant was sentenced by the District Court for various offences, including for breaching the suspended imprisonment order made in 2010.
9. In 2014, the appellant was convicted of two counts of being armed in a way that may cause fear, for which he was given suspended imprisonment.
10. In the pre‑sentence report it was noted that the appellant has been the subject of eight periods of community supervision as an adult. On each occasion, the relevant order has been cancelled or was breached for non‑compliance and/or reoffending.[27] The appellant's offending behaviour is related to his illicit substance use, negative peer associations, unstable mental health and poor problem solving, poor impulse control, poor emotional regulation, poor coping and poor consequential thinking skills.
11. Between 24 October 2018 and 5 March 2019, the appellant participated in drug and alcohol rehabilitation with the Wungening Aboriginal Corporation. He attended for counselling on 17 occasions and, according to a report dated 6 March 2019,[28] the appellant had 'engaged in all aspects of counselling around issues that has led him to gaol. [The appellant] has shown commitment in taking steps necessary to turn his life around'.
12. The appellant has also participated in other rehabilitation programs, including a 'Fresh Start Recovery Program', Alcoholics Anonymous and a ReSet Program designed to reconnect incarcerated fathers with their families. In addition, the appellant funded, from his own resources, Naltrexone implants to treat his methylamphetamine addiction.[29]
13. The material before the sentencing judge and this court concerning Wandalgu is to this effect. The appellant approached Wandalgu and commenced on the Wandalgu Residential Support Program on 15 February 2019 and remained in the program until he was imprisoned on 14 June 2019. This program is conducted on farm land at Tardun. The appellant was subject to 24‑hour per day supervision and was only permitted to leave the property in the event of a medical emergency or with permission. The appellant was subject to strict rules which enforce a ban on illicit drugs, alcohol and cigarettes. While on the program, the appellant participated in farm work, including animal husbandry, received counselling from a provisional psychologist and engaged in cognitive behaviour therapy.[30] A report written by Mr Bicknell, dated 20 June 2019, noted that when the appellant initially joined Wandalgu he was resistant to change, but became, over time, a hard‑working cooperative participant in all that was required of him. Wandalgu was prepared to support the appellant's continued participation in its program for a period of a further six to nine months.[31] Staude DCJ, aptly, referred to the appellant's participation at Wandalgu as 'commendable'.[32]
14. The appellant did not enter his pleas of guilty at the first reasonable opportunity. The pleas of guilty were entered on 7 February 2019, after the matter had been listed for a trial to commence on 1 April 2019.[33] Staude DCJ gave a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) of 12.5% for each offence.[34] In our opinion, having regard to the timing of the plea and the strength of the prosecution case, a s 9AA reduction of 12.5% is appropriate.
15. At the heart of the appellant's sentencing submissions is that he should immediately be released to complete the Wandalgu program. The appellant submits, in effect, that his rehabilitation prospects are good and, in the circumstances, it is in the public interest for him to be placed on a pre‑sentence order or a partial or conditional suspended imprisonment order.
16. For the reasons set out below, this proposition cannot be accepted. No sentencing option other than immediate imprisonment is open in this case.
17. While we accept that the appellant's progress towards rehabilitation is a significant mitigating factor, the seriousness of the appellant's offending must not be overlooked. Each of the burglary offences committed by the appellant was serious. Each involved a degree of planning and premeditation. The offences relating to KFC Mirrabooka and Prouds Jewellers were committed in company with a juvenile offender. The burglaries on Prouds Jewellers and Shiels Jewellers were committed on separate occasions and involved the theft of a substantial quantity of watches of considerable value. The fact that the appellant may have committed the offences to obtain funds to pay for a lawyer to assist him in family law proceedings is not mitigating. All of these offences were committed while the appellant was on bail.
18. The facts and circumstances of count 7 are also serious. The appellant, while in custody on remand, twice attempted to suborn his juvenile co‑offender in counts 1, 3 and 4 by offering him money to falsely exculpate the appellant. Again, the offence shows persistence.
19. The appellant has a long and formidable criminal history. His criminal history is not an aggravating factor, but it does show an ongoing disregard for the law. Accordingly, personal deterrence as well as general deterrence and the protection of the public are important sentencing considerations which point towards the imposition of a longer sentence within the permissible discretionary range.
20. The appellant is a mature man who can no longer rely upon youth as a mitigating factor. The appellant's evident desire to rehabilitate himself justifies some lenience. However, the evidence before this court falls short of establishing that the appellant no longer poses a risk of further offending.
21. Having regard to all relevant circumstances and having regard to all relevant sentencing factors, including personal and general deterrence, proper punishment, rehabilitation and public protection, immediate imprisonment is the only appropriate sentencing option for all of the offences. The imposition of a pre‑sentence order would be inappropriate. Any sentencing option short of immediate imprisonment, including any type of suspended imprisonment of any kind, would not properly reflect the seriousness of the appellant's offending.
22. It is necessary to consider the question of totality, bearing in mind that in addition to the seven offences the subject of IND 738 of 2018, the appellant was also subject to the sentences imposed upon him by Vernon DCJ, Magistrate Scaddan and Magistrate Wilson.
23. In our opinion, the individual sentences and the total effective sentence imposed by Staude DCJ appropriately reflect all relevant sentencing considerations, including the appellant's rehabilitation and totality. Some accumulation of the sentences is appropriate to reflect that the burglary offences occurred on separate days and the separate nature of the appellant's attempt to pervert the course of justice.
24. We would order that the appellant be eligible for parole and we would backdate the sentences by 189 days to commence on 6 December 2018.
25. The above miscarriage of justice having been established, we are of the opinion that a different sentence should have been imposed, namely the sentences imposed by Staude DCJ should have been backdated to commence on 6 December 2018.

(2) Leave to appeal is refused on grounds 2, 3 and 4.

(4) The sentences imposed by Staude DCJ on 14 June 2019 are set aside.

Count 4: No punishment pursuant to s 11 of the Sentencing Act

Count 6: No punishment pursuant to s 11 of the Sentencing Act

The sentences on counts 2, 3 and 7 are to be served cumulatively. The sentence on counts 1 and 5 are to be served concurrently with each other and concurrently with the sentence imposed on count 3. Thus, the total effective sentence is 3 years' immediate imprisonment. The appellant remains eligible for parole and the sentence is backdated to commence on 6 December 2018.

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

[3] De Bono v The State of Western Australia [2019] WASCA 109.

[13] 6 February 2019, ts 40; WAB 92 - 93.

[14] Respondent's written submissions, par 15; WAB 16.

[15] De Bono v Barker [2019] WASC 303.

[16] 27 March 2018, ts 24 - 25; WAB 55 - 56.

[17] De Bono v Southam [2018] WASC 266.

[18] De Bono v Southam [2018] WASCA 218.

[19] De Bono v The State of Western Australia [2018] WASCA 208.

[23] Section 88 of the Sentencing Act.

[24] Being DeBono v Southam [2018] WASC 266 dismissing SJA 1042 of 2018.

[30] Letter addressed To Whom it May Concern from Sun City Care, dated 24 July 2019.

[31] Letter addressed To Whom it May Concern from Sun City Care, dated 24 July 2019.