FM -v- WA POLICE [2025] WASC 241 (20 June 2025)

The learned magistrate erred in deciding that it was not unjust to order [the appellant] to serve the term of imprisonment of 6 months and 1 day that was suspended, alternatively, that the learned magistrate erred in ordering [the appellant] to serve the whole of that term.

1. The respondent, represented by Mr Olds, did not object to that amendment being made. Mr Olds appeared at the appeal hearing and at the directions hearings leading up to that final hearing. Mr Olds conducted himself with the utmost professionalism and courtesy, including by ensuring the appellant had all the necessary material for the hearing of the appeal.
2. In summary, the essence of the appellant's appeal as now presented is that the learned magistrate's decision that she serve a total effective term of six months and one day is unreasonable or plainly wrong in all of the circumstances, in particular having regard to the impact of the appellant's imprisonment on her children. Understood in that way, the appeal is directed to the type of sentence imposed, not its length.

1. The appellant initially filed two affidavits in support of the appeal, affirmed 26 August 2024 and 19 September 2024. These affidavits were predominantly in respect of the appeal against conviction.
2. The respondent filed two affidavits in response. The first was an affidavit of Ms Thackrah affirmed on 14 October 2024. Ms Thackrah represented the appellant at the sentencing hearing at which the sentencing disposition the subject of this appeal was imposed. The second was an affidavit of Senior Constable Lee sworn on 10 October 2024. Senior Constable Lee was one of the police officers who had stopped the appellant's vehicle, resulting in her being charged with the further offence. The respondent also proposed to call an officer of Telstra for the purpose of putting into evidence certain telephone records relevant to matters set out in the appellant's affidavits.
3. However, given the appellant did not proceed with Ground 1, it was not necessary for the respondent to call this evidence.
4. I allowed certain evidence to be admitted on the appeal. This evidence has two purposes. First, it may confirm the appellant's personal circumstances as they were at the point in time that she was sentenced. Second, if the appeal were allowed, it would be relevant for the purposes of resentencing.
5. The evidence I admitted on the appeal is as follows:

(1) An affidavit of the appellant sworn on 27 May 2025 which sets out the current circumstances of herself and her children.

(2) A number of documents which became Exhibits 2 - 9 in the appeal.

(3) Paragraphs 16 - 18 of the appellant's affidavit affirmed on 26 August 2024. These paragraphs set out certain matters regarding the appellant's personal circumstances and background.

1. The evidence was predominantly directed to two topics. First, that the appellant had been the subject of extensive domestic violence, and that her children were exposed to, and affected by, that domestic violence. Second, the prospect that the appellant would lose the rental property where she and some of her children currently live if she were sent to prison.

1. The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant being a person aggrieved by the total effective sentence imposed by the learned magistrate.
2. An appeal may be made on grounds that include:
   1. the learned magistrate made an error of law or fact or of both law and fact;[1]
   2. the learned magistrate imposed a sentence that was inadequate or excessive;[2]
   3. there has been a miscarriage of justice.[3]
3. Leave of this court is required for each ground of appeal.[4] Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[5]
4. It is convenient to commence with a consideration of Ground 3. If Ground 3 does not succeed, Ground 2 is incapable of succeeding. Specifically, as I have explained at [9] above, it was not open to her Honour to suspend the term of imprisonment imposed for the further offence once her Honour had ordered the appellant to serve the suspended term of imprisonment.

1. The suspended term of imprisonment the subject of this appeal was imposed pursuant to s 76 of the Sentencing Act. As I have said, the further offence was committed during the suspension period and the penalty for it includes imprisonment.
2. In Taua v Director of Public Prosecutions for Western Australia,[6] I considered the applicable principles where, during the suspension period of a suspended term of imprisonment, a person commits an offence the statutory penalty for which is or includes imprisonment.
3. I adopt the following passages from the decision in Taua:[7]

Section 78 of the Sentencing Act provides that if a court convicts a person of an offence the statutory penalty for which is or includes imprisonment and the offence was committed during the suspension period of suspended imprisonment, the person must be dealt with under s 80.

...

Section 80(1) provides that the responsible court must deal with the person who has re-offended by one of the following methods:

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

Section 80(3) is critical to the disposition of this appeal. It provides:

A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

In Ryan v The State of Western Australia [No 2], the Court of Appeal considered the application of s 84F(1)(a) and s 84F(3) of the Sentencing Act. Section 84F addresses the same scenario to that addressed by s 80, except that s 84F applies to a conditional suspended imprisonment order. In a joint judgment, their Honours stated:

Undoubtedly, a decision as to whether it would be unjust to make an order under s 84F(1)(a) involves a value judgment. It is a matter about which reasonable minds may differ... If a sentencing judge makes a material express or implied error, for example, if the judge fails to take into account a relevant consideration, or takes into account an irrelevant consideration, or if the opinion that is formed is unreasonable or plainly unjust, this court's power to intervene is enlivened. (case references omitted)

In Stack v Joye, Archer J observed that in considering whether it would be unjust to order the offender to serve the full term, the court should consider:

1. the circumstances of the offence for which the sentence of suspended imprisonment was imposed (the original offence);
2. the period of suspended imprisonment imposed;
3. the nature of the offence which triggered the need to consider s 80 (the breaching offence), including whether the breaching offence was trivial and/or did not of itself warrant a term of imprisonment;
4. whether the breaching offence was committed late in the suspension period;
5. whether the breaching offence was isolated or out of character;
6. factors personal to the offender, including any circumstances which have arisen since the suspended sentence was imposed;
7. the legislative policy that, in general, an offender who breaches a term of suspended imprisonment should serve the sentence which was suspended.

I would add three observations. First, these factors are not exhaustive. Ultimately, the decision has to be made in all of the circumstances. Second, it should not be assumed these factors have equal weight. Their weight needs to be assessed in all of the circumstances, as part of the overall value judgment the court is required to make. Third, when the offence is committed during the suspension period is a relevant factor. Whether that weighs in the balance positively or negatively for the offender will usually depend on how much of the suspension period has expired. So, for example where a further offence was committed late in the suspension period, this would usually weigh in the balance positively for the offender, recognising that a term of suspended imprisonment is a serious form of punishment itself.[8] On the other hand, a further offence committed early on in the suspension period may weigh in the balance negatively for the offender.

(footnotes omitted)

1. As was the case in Taua, s 80(3) is critical to the disposition of this appeal. It required the learned magistrate who sentenced the appellant on 1 August 2024 to order her to serve the suspended term of imprisonment unless her Honour decided that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. And, as the Court of Appeal observed in Ryan v The State of Western Australia [No 2],[9] where an offender is ordered to serve the suspended term, the power of the court to intervene on appeal is enlivened if the decision to so order is 'unreasonable or plainly unjust'.
2. I now turn to the sentencing hearing at which the suspended term of imprisonment was imposed.

1. The hearing was held before her Honour Magistrate Ridley. The appellant was represented by duty counsel. The hearing proceeded on the basis that the offence for which she was being sentenced was the eighth occasion that the appellant had committed an offence of driving while disqualified, or driving without a licence, and the seventh occasion where she had been sentenced for such an offence. There seems to be some uncertainty as to whether it was the seventh or eighth such offence that the appellant had committed.[10] However, that does not impact the disposition of this appeal.
2. In light of the appellant's prior offending, the learned magistrate quite properly asked of the appellant's counsel, 'What's the underlying issue?', noting that there was no alcohol or drugs involved in the offending behaviour.
3. In response, the appellant's counsel made the following submission:[11]

The underlying issue for [the appellant] is this: she has four children, ranging from seven, 15, 12 and four. She works seven days a week, casual employment. She's upholding a rent in Shenton Park, not by her own choice, simply because that is the only property that is available to her at $850 per week. She has evidently accepted that she shouldn't be driving, however, it is a means to an end for her to support her four children. She has limited other choices to ensure that she can ensure a roof is kept over their head.

In background, compounding this even further, is issues with domestic violence for which is a reason for why [the appellant] did not appear on 25 January. She instructs she was actually admitted to the Royal Perth Hospital with a stab injury and that was in relation to this underlying domestic violence and abusive relationship which she has been engaged with. There is a number of factors, not evidently discounting the seriousness of this offending, but there's certainly a lot of factors that led to [the appellant] being in that vehicle other than simply just ignoring the orders of the court, your Honour.

1. Having regard to the appellant's history of offending, her Honour concluded that 'imprisonment is reached'.[12] Her Honour then said:[13]

The question is whether or not that should be suspended. You've not had imprisonment previously, and you haven't served any time, you've got the care of children, which is also a very relevant factor, and I am satisfied it can properly be suspended. It seems that temptation has now been removed, but you need to understand that a decision to drive is a decision to go to jail; that's the position that you are in. You need to make other arrangements.

1. Her Honour imposed a sentence of imprisonment of six months and one day, and suspended it for six months.
2. In concluding remarks directed to the appellant, her Honour said:[14]

So in relation to that, it is a term of imprisonment. You get to serve it within the community as long as you stay out of trouble, no offenses at all for which imprisonment is open and obviously driving is the issue. If you drive within those six months, you serve this term as well as any other on top, but you need to understand with your record, you're in that position anyway even after the six months. If you decide to drive, then imprisonment is going to be the outcome for you.

1. There are two features from her Honour's sentencing remarks that it is important to emphasise. First, in suspending the term of imprisonment, her Honour took into account as a 'very relevant factor' that the appellant had the care of her children. Second, her Honour made abundantly clear to the appellant that if she drove within the six month suspension period, she would serve the term of six months and one day, as well as any other term that was imposed.

1. The appellant was represented by duty counsel, Ms Thackrah.
2. The prosecutor stated that the further offence was the appellant's eighth conviction and the seventh for sentencing purposes.
3. Ms Thackrah explained that the appellant was driving to the home of one of her daughters, whom the appellant perceived might be at risk of being harmed.[15] The learned magistrate took that explanation into account in determining the appropriate sentencing disposition. The respondent does not accept that explanation. However, as Ground 3 is directed to the sentencing disposition imposed in the undisputed circumstances put to the learned magistrate, it is not necessary that I resolve that issue for the purposes of considering whether Ground 3 is made out. It would only be necessary to resolve that issue on a resentencing, if the appeal succeeded.
4. Ms Thackrah submitted that should the appellant be sentenced to an immediate term of imprisonment, her children would be without their carer, and would most likely lose their accommodation as she pays the rent. Ms Thackrah also said that the appellant acknowledged imprisonment would not be unjust for her, but it would be unjust for her children.
5. The appellant wrote a letter for the purposes of her sentencing, which Ms Thackrah handed up to the learned magistrate.[16] I do not have a copy of that letter. However, I infer from what was said at the two sentencing hearings, and the evidence adduced on this appeal, that the letter spoke of the domestic violence that the appellant had been subjected to, and also the appellant's concern that she would lose her rental property if she were sent to prison.
6. The learned magistrate correctly applied s 80 of the Sentencing Act in deciding whether to order the appellant to serve the entirety of the suspended term of imprisonment of six months and one day. In particular, her Honour considered whether it would be unjust to do so in all of the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.[17]
7. Her Honour referred to the decision of Tottle J in Lemmon v Walker‑McLean,[18] where his Honour said that where offences of 'driving whilst under suspension' are committed a number of times, it may be readily inferred that the disobedience is wilful, and that repeat offending requires weight to be given to personal and general deterrence.[19]
8. Her Honour also referred to the decision of Beech J in Neves v Rogers,[20] where his Honour said that multiple offences of driving under suspension have commonly resulted in terms of imprisonment of between four and nine months.[21]
9. Her Honour took into account the following matters in deciding whether to order the appellant to serve the suspended term of imprisonment. The further offence was not trivial. The further offence was not isolated or out of character, but was like offending to the offence the subject of the suspended term. The further offence was not committed late in the suspension period and warranted a term of imprisonment.
10. Her Honour then said:

I have considered your personal circumstances and the circumstances that have arisen since the suspension was imposed. You've set out in your letter your personal circumstances, which I take into account, and I also take into account the submissions which have been made for you, setting out the trauma which, as you've addressed in your letter, has affected you but also the explanation for this offence, but you have a poor history of compliance. It is defiance. You had other options.

You did not have to get in the car and drive and you didn't have to get in the car and drive under suspension and be on the telephone and drive at an excessive speed. And bearing in mind the legislative policy for this, I'm not satisfied that it would be unjust to order that you serve the term of imprisonment. So I will order that that term be activated. Can you list that charge, please.

1. Her Honour then sentenced the appellant for the further offence, imposing a term of imprisonment of six months and one day to be served concurrently with the term ordered to be served in respect of the suspended imprisonment order.

1. The principal question I need to consider is whether the learned magistrate's decision to order the appellant to serve the entirety of the suspended term of imprisonment of six months and one day was unreasonable or plainly unjust. As I have said, the appellant's primary contention is that the order was unreasonable or plainly unjust when regard is had to the impact on her children of the appellant being sent to prison.
2. The hardship to an offender's family may be taken into account on sentencing in certain circumstances. In that respect, in HJT v The State of Western Australia, the Court of Appeal observed in a joint judgment:[22]

... The general principle is that hardship caused to an offender's family by imprisonment of an offender will only be taken into account in the sentencing process in exceptional cases. In all cases, whether and to what extent it may be taken into account depends upon the gravity of the offence and the circumstances of the case. The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family. This is particularly so in a case where the predominant sentencing considerations are personal and general deterrence. The period over which the offences were committed may also be a relevant consideration.

1. Where the offender is the sole carer of children, ordinarily, the adverse impact on those children by reason of the offender being sent to prison needs to be carefully assessed.[23] This is particularly the case where the offender and her children have been affected by domestic violence.
2. Domestic violence is pernicious in its effect on those children who are either direct victims, or are exposed to the domestic violence in the family environment. Domestic violence will most likely instil fear and anxiety in the children and affect the stability of their upbringing. This will likely have a consequential negative impact on a child's development and self-esteem, and on their confidence to form positive relationships outside of the family unit. Moreover, children are likely to form a close bond with the parent who is the victim of the domestic violence, especially if that parent becomes their sole carer.
3. I am satisfied that the material before her Honour sufficiently demonstrated that the appellant had been the subject of domestic violence, and her children were exposed to it. I am also satisfied that the appellant's children would have developed a close bond with her in these circumstances, such that her being sent to prison would cause distress and anxiety sufficient to constitute exceptional circumstances. These are factors that carried, in my view, material weight in the sentencing of the appellant. However, they are not determinative of the sentencing outcome. There are other sentencing factors that needed to be taken into account which carried significant weight.
4. The appellant had an extensive history of committing offences of driving without authority. The further offence was either the eighth or ninth example of such offending.
5. The learned magistrate who sentenced the appellant on 12 February 2024 expressly took into account the appellant's personal circumstances and those of her children in imposing a suspended term of imprisonment. Her Honour correctly said those circumstances were a 'very relevant factor' to be taken into account. The learned magistrate then made it abundantly clear to the appellant that if she offended again in a similar way, she would be sentenced to a term of immediate imprisonment. The appellant committed the further offence only 16 days later.
6. Further, the seriousness of the appellant's offending escalated with each additional offence she committed. Even on the explanation for her behaviour put forward to the learned magistrate on 1 August 2024, the appellant had several other options available to address her perceived concerns. The totality of the appellant's continual offending demonstrates wilful disobedience on her part.
7. When the learned magistrate sentenced the appellant on 1 August 2024, personal deterrence was a significant sentencing consideration; that is, to impose a sentence that strongly discouraged her from offending again. The imposition of the suspended term of imprisonment had not done so.
8. It is, of course, unsatisfactory that the appellant's children are affected by her continual offending. However, the appellant's offending had reached the point where the impact on her children of her being sent to prison had reduced weight in the assessment of whether it was unjust to order the appellant to serve the suspended term. Both general and personal deterrence required a sentencing disposition which sent a clear message that an offender who continues to wilfully commit criminal offences should not expect they can avoid going to prison because of the impact on their children.
9. Additionally, it is apparent that the learned magistrate took the impact on the appellant's children into account in the overall sentencing exercise by imposing a concurrent term of six months and one day for the further offence.
10. Further, the impact on the appellant's children of the total effective sentence imposed on 1 August 2024 was moderated by her being made eligible for parole. Thus, after having served three months and one day, she is eligible to be released from prison on parole. If the appellant engages positively in prison, she will have strong prospects of being released on parole and the time she is kept apart from her children will be lessened. That also reduces the prospect that the appellant would lose her accommodation.
11. In all of these circumstances, and giving full recognition to the impact of domestic violence on children, I am not satisfied that the learned magistrate's decision to order the appellant to serve the entirety of the suspended term was unreasonable or plainly unjust.
12. Accordingly, Ground 3 does not succeed. As I have said, it follows that Ground 2 cannot succeed.
13. The appeal will therefore be dismissed. I will however grant leave to appeal in respect of Grounds 2 and 3. Consideration of the applicable sentencing approach where an offender is the sole carer of children who have been exposed to domestic violence warrants the grant of leave.
14. The appellant's bail will come to an end immediately upon delivery of these reasons and she will return to custody to serve the remainder of the total effective sentence of six months and one day imposed on 1 August 2024. On my calculation, the appellant has served 35 days of the total effective sentence. The appellant will need to serve a further 58 days before she is eligible for parole.

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

[1] Criminal Appeals Act 2004 (WA), s 8(1)(a)(i).

[2] Ibid s 8(1)(a)(iii).

[3] Ibid s 8(1)(b).

[4] Ibid s 9(1).

[5] Ibid s 9(2).

[6] Taua v Director of Public Prosecutions for Western Australia [2023] WASC 476.

[8] See in relation to a conditional suspended imprisonment order, Miorada v The State of Western Australia [2022] WASCA 143 [46].

[9] Ryan v The State of Western Australia [No 2] [2018] WASCA 230 [28].

[10] At the subsequent sentencing hearing on 1 August 2024, it was said that the further offence was the eighth such offence. See [36] of these reasons.

[11] Hearing 12 February 2024, ts 3 - ts 4.

[13] Hearing 12 February 2024, ts 5 - ts 6.

[18] Lemmon v Walker-McLean [2019] WASC 475 [17].

[20] Neves v Rogers [2013] WASC 440 [41].

[22] HJT v The State of Western Australia [2020] WASCA 120 [59].

[23] See by way of analogy, S v The Queen [2003] WASCA 309, where the court considered the impact of a disabled child being deprived of the care of both parents.