FRANCO -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 340 (14 October 2022)

1. The facts of the offences were stated by the prosecutor to the magistrate during the appellant's sentencing hearing on 23 February 2022.[2] For present purposes it is sufficient to summarise the facts as follows.
2. The appellant was employed by Sincerity Building Group (Sincerity). Sincerity was a construction company. The appellant was employed by Sincerity as a production manager.
3. Sincerity engaged contractors to finalise construction projects. The contractors were engaged to perform various types of work including electrical, plumbing and earth moving work.
4. As part of his employment the appellant was responsible for obtaining quotes from contractors and for engaging contractors to perform work for Sincerity.
5. On 23 September 2020 the appellant established a company called Taylor Indy Developments Pty Ltd (Taylor Indy). The application to register the company was submitted in the name of a female associate with her consent.
6. Also on 23 September 2020 the appellant created an exclusive business email account in the name of Taylor Indy. The appellant had sole control and operation of the email account.
7. On 8 October 2020 the appellants above referred to female associate opened two business bank accounts in the name of Taylor Indy. She did so at the request and on the instruction of the appellant. The appellant was given full control of the bank accounts.
8. During the period 16 October 2020 - 19 March 2021 the appellant, on eight separate occasions, arranged for Taylor Indy to engage various contractors to perform work for Sincerity. Prior to engaging the contractors the appellant, through Taylor Indy, obtained quotes from the contractors for the performance of the work. On completion of the work by the contractors the appellant would prepare and submit to Sincerity invoices in the name of Taylor Indy claiming payment for the work performed by the contractor. The invoices fraudulently claimed amounts that were in excess of the amount actually charged by the contractor for the work performed. Once the invoices issued in the name of Taylor Indy were paid by Sincerity the appellant would arrange for Taylor Indy to pay to the contractor the amount actually charged by the contractor for the work performed and for the balance to be retained by Taylor Indy in its two bank accounts.[3]
9. On two of the above referred to eight occasions the appellant's fraudulent conduct also involved the preparation of two forged quotes in the names of two contractors for submission to Sincerity which falsely indicated that the contractors had quoted more than had actually been quoted by the contractor that the appellant ultimately engaged to perform the work.
10. On a ninth occasion the appellant, during the period February 2020 - March 2020, at the request of Sincerity, obtained a quote from a contractor to perform work for a person (victim) who had engaged Sincerity to assist with a site remediation. The appellant, having obtained the quote from the contractor, prepared a quote from Taylor Indy to carry out the work and presented the quote to the victim. The quote fraudulently specified an amount that was in excess of the amount quoted by the contractor. The victim accepted the quote. On 1 April 2021, after the work had been completed by the contractor, the victim paid to Taylor Indy the amount that Taylor Indy had quoted. The appellant then arranged for Taylor Indy to pay to the contractor the amount actually charged by the contractor for the work performed and for the balance to be retained by Taylor Indy in its two bank accounts.
11. The total amount obtained by the appellant as a result of engaging in his fraudulent conduct was $39,110.90. The amounts fraudulently obtained on each of the nine occasions ranged from a little over $1000 to just under $9500.
12. In May 2021 the appellant left his employment with Sincerity. Sincerity subsequently conducted an audit which led to his conduct being discovered and the matter being referred to the police.
13. On 13 October 2021 the appellant was arrested. He was interviewed. He made full admissions to the offences. He was charged.
14. At the time of the appellant's arrest the money that had been fraudulently obtained by the appellant was still in Taylor Indy's bank accounts. It had not been spent by the appellant. After being charged the appellant repaid all the fraudulently obtained money.

1. At the commencement of the appellant's sentencing hearing the magistrate confirmed with the appellant's counsel (not counsel on the appeal) that the appellant had already pleaded guilty to eight of the nine offences.[4] The magistrate then took the appellant's guilty plea to the ninth of the offences.[5]
2. After taking the appellant's guilty plea to the ninth of the offences the magistrate confirmed with the prosecutor that the appellant had no prior criminal record.[6] The magistrate then heard the prosecutor's statement of the facts of the appellant's offences.[7]
3. After hearing the facts of the offences the magistrate heard the appellant's counsel's plea in mitigation. In the course of his plea in mitigation the appellant's counsel informed the magistrate of the following matters:
   1. After the appellant was charged with the offences he repaid all of the fraudulently obtained money the subject of his offences;[8]
   2. The appellant had at all times kept the fraudulently obtained money in an account;[9]
   3. At the time of committing the offences the appellant was experiencing external pressures, specifically his marriage had come to an end, his business was collapsing, he was going through bankruptcy and he was dealing with his younger daughter suffering from depression;[10]
   4. The appellant was declared bankrupt in 2020;[11]
   5. The appellant made full admissions to the police, accepted responsibility for the offences and had pleaded guilty;[12]
   6. The appellant was 'basically propping up his family, his parents', there was 'financial dependence on him' and he had 'children to support as well';[13] and
   7. The appellant's daughter was reliant on him to help her get 'back on track with the problems outlined in the reference'.[14]
4. Prior to the sentencing hearing the appellant's counsel had provided to the magistrate a letter written by the appellant to the court dated 18 February 2022, a significant number of character references written on behalf of the appellant and various other documents relating to the appellant. It is clear from the exchanges that occurred between the magistrate and the appellant's counsel during counsel's plea in mitigation that the magistrate had had regard to this material.[15] Counsel submitted to the magistrate that the references spoke of the appellant as a community minded man who had made the 'biggest mistake of his life'.[16]
5. Ultimately, the appellant's counsel submitted that given all the circumstances including the appellant's prior good character and the unlikelihood of him reoffending, if a term of imprisonment was to be imposed it would be appropriate to 'fully suspend' the term.[17] Counsel made this submission in light of comments made by the magistrate to counsel in the course of the plea in mitigation to the effect that he did not think that anything other than the imposition of a term of imprisonment was appropriate for the offences.[18]
6. After hearing the appellant's counsel's plea in mitigation the magistrate asked the prosecutor if he wished to be heard in relation to the issue of sentence. The prosecutor informed the magistrate that he did not wish to add anything to his Honour's 'summary', this being an obvious reference to the magistrate's exchanges with the appellant's counsel during counsel's plea in mitigation.[19]
7. The magistrate proceeded to sentence the appellant. In the course of his sentencing remarks the magistrate made the following observations:
   1. The appellant had pleaded guilty to all the offences in a 'very timely way' and was entitled to a 25% discount under s 9AA of the Sentencing Act 1995 (WA);[20]
   2. The appellant had cooperated 'from moment one' with the investigation and had repaid the money that he had obtained by the commission of his offences; [21]
   3. The mitigating factors included the appellant's prior good character which was something that was 'very much taken into account';[22]
   4. There were a 'raft' of references before him that spoke to 'the previous good experience that people had...with [the appellant] working hard';[23]
   5. A sentence of imprisonment should only be imposed as a last resort and where the seriousness of the offence justifies the imposition of such a sentence;[24]
   6. He did not think anything other than imprisonment was appropriate and that therefore the 'only real live issue' was whether the term of imprisonment imposed should be suspended;[25]
   7. The offending occurred during the period 16 October 2020 and 1 April 2021;[26] and
   8. The appellant's conduct in committing the offences involved 'quite a high degree of criminality' and 'quite a level of criminality'.[27]
8. After making the above observations and referring briefly to the facts of the offences the magistrate turned to imposing the individual sentences of imprisonment for each of the offences. The sentences imposed by the magistrate were as follows:
   1. PE 42626/2021 (involving the obtaining of $4630) - 5 months imprisonment;
   2. PE 42627/2021 (involving the obtaining of $5228.10) - 5 months imprisonment;
   3. PE 42628/2021 (involving the obtaining of $1009.50) - 2 months imprisonment;
   4. PE 42629/2021 (involving the obtaining of $4670) - 5 months imprisonment;
   5. PE 42630/2021 (involving the obtaining of $9498) - 7 months imprisonment;
   6. PE 42631/2021 (involving the obtaining of $6100.30) - 5 months imprisonment;
   7. PE 42632/2021 (involving the obtaining of $3000) - 3 months imprisonment;
   8. PE 42633/2021 (involving the obtaining of $3000) - 3 months imprisonment;
   9. PE 42634/2021 (involving the obtaining of $1965) - 2 months imprisonment.
9. After imposing the individual sentences the magistrate turned to the issue of totality. Applying the totality principle the magistrate decided that a total term of 12 months imprisonment was appropriate. In order to achieve this total sentence his Honour ordered that the sentences imposed in respect of charges PE 42630/2021 and PE 42627/2021 were to be served cumulatively on each other but concurrently with the remaining sentences imposed and that the remaining sentences imposed were to be served concurrently with each other.[28]
10. Having arrived at the total sentence of 12 months imprisonment the magistrate turned to the question whether the term imposed should be suspended. In this regard his Honour said the following:[29]

...[I] turn to the question of whether the terms should be suspended or not, and the - I revisit, in that regard, all of the factors that led me to the view that imprisonment was appropriate. As far as the seriousness of the offence is concerned, the - I remain of the view there was a lot of money involve [sic].

We - 39-odd thousand dollars, or - not as large as some frauds, etcetera but I've kept the sentence to down to what I see as being levels commensurate with that sort of fraud. So the seriousness of the offences remain. I'm troubled in a general sense by the fact of your youngest daughter probably being the one to suffer the most with the question of being in prison. But it's not of the level - family hardship doesn't interfere with normal sentencing. It's not of the level where any hardship suffered by her would be regarded as being exceptional.

The referees, in speaking of your good character, without exception, all say, 'Yes. Look, look, it was really serious. But he will never do it again.' And that, of course, is an entirely and pragmatic view. But it ignores the fact that the message the court has to send, both generally and personally, is you never do this to start with. Not that you do it and then promise never do to it (sic) again. So the references, as well - meaning as they are, all suffer from the same flaw, that is, that they say, 'Yes, yes, it's serious, but he will never do it again.'

... And the court has to really consider carefully the seriousness of the matter and the questions of personal and general deterrence. When it gets down to it, I'm of the view, unfortunately for you, that I regard the matters as just being too serious to be the subject of either a full or partial suspension of the term.

And, in my view, should (sic) be ordered to serve the 12 months imprisonment that I have ordered, except to say, you'll be made eligible for parole.... But I can positively rule out suspending the term and accordingly, it will be 12 months imprisonment...

1. The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[30] A ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[31] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[32]

The nature of the ground of appeal and the appellant's ultimate submission

1. The ground of appeal does not allege an express error by the magistrate. Rather, the ground alleges an implied error, specifically that the magistrate erred by concluding that the only appropriate sentence was a term of immediate imprisonment.
2. Although the ground of appeal as pleaded does not identify the sentence that the appellant contends the magistrate should have imposed, the appellant's ultimate submission is that in all the circumstances of the case the magistrate should have imposed a fully suspended term of imprisonment under s 76(1) of the Sentencing Act. The appellant does not submit that any less serious non-custodial disposition (such as an intensive supervision order or fine) is an appropriate sentence for his offences.

Suspended or immediate imprisonment - general principles

1. The statutory framework and general principles relating to the imposition of sentences of immediate imprisonment and suspended imprisonment may be stated as follows.[33]
2. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment.[34] In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[35]
3. The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment.[36] In determining if the option of suspending imprisonment is not appropriate the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.[37]
4. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.[38] The objective features of an offence may, in a particular case, outweigh considerations of rehabilitation.[39] Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judicial officer must determine the appropriate penalty for the particular case having regard to all relevant sentencing factors.[40]
5. There will be cases where immediate imprisonment is the only appropriate sentencing option that is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.[41]

Appeal on ground wrong type of sentence imposed - general principles

1. 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.[42] To put the matter another way, the question for the appellate court is 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.[43] Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[44]
2. 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 offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the kind in question, all aggravating and mitigating factors, and the offender's personal circumstances and antecedents.[45]
3. 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. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding if the wrong type of sentence was imposed.[46]

1. The appellant does not attempt to challenge the magistrate's finding that his conduct in committing the offences involved 'quite a high degree of criminality'. Rather, the appellant submits that despite the seriousness of his offences and the weight that the magistrate was required to place on general deterrence, the mitigating factors that were present in his case, considered collectively, were so powerful that it was not reasonably open to the magistrate to conclude that a fully suspended term of imprisonment was not appropriate.
2. The respondent submits that having regard to the seriousness of the appellant's offences and the emphasis that the magistrate was required to place on general deterrence, the appellant has failed to establish that it was not reasonably open for the magistrate to conclude, despite the mitigating factors, that the only appropriate sentence was a term of immediate imprisonment. In this context the respondent emphasises that the fact that the appellant's case might be considered as 'borderline' is not to the point.

1. The maximum sentence that was able to be imposed by the magistrate for each of the offences, being the maximum summary conviction penalty, was two years imprisonment and a fine of $24,000.[47] However, the maximum summary conviction penalty is only a jurisdictional limit. It is not the statutory maximum penalty. The statutory maximum penalty for each of the offences, which is the relevant maximum penalty for the purposes of dealing with the ground of appeal, is 7 years imprisonment.[48]

1. The factors that aggravated the inherent seriousness of the appellant's conduct in committing the offences are as follows:
   1. The appellant breached the trust placed in him by his employer;
   2. The appellant's conduct involved significant premeditation, planning and subterfuge comprised of establishing Taylor Indy with the assistance of the female associate, creating and operating the email account in the name of Taylor Indy, opening with the assistance of the female associate two business bank accounts in the name of Taylor Indy into which the fraudulently obtained funds were deposited, on eight occasions creating false invoices for submission to his employer (two of which were supported by the creation and submission of false quotes) and on one further occasion creating a false quote for submission to one of his employer's clients;
   3. The appellant's conduct was persistent. He fraudulently obtained funds on nine separate occasions over a period of approximately five and a half months; and
   4. The total amount of money obtained by the appellant, a little over $39,000, was reasonably significant.
2. A review of the decisions of the Court of Appeal in this State dealing with appeals against sentences imposed for fraud offences reveals many cases in which offenders have engaged in more sophisticated and prolonged fraudulent conduct than that engaged in by the appellant resulting in the obtaining of far greater sums of money than the sum obtained by the appellant.[49] Accordingly, I do not consider that the appellant's conduct in committing the offences can be categorised as falling towards the high end of the scale of seriousness for conduct of its type.
3. A review of the decisions of single judges of this court dealing with appeals against sentences imposed by magistrates for fraud offences reveals cases in which offenders have engaged in less sophisticated and prolonged conduct than that engaged in by the appellant resulting in the obtaining of much lesser sums of money than the sum obtained by the appellant.[50] Accordingly, I do not consider that the appellant's conduct in committing the offences can be categorised as falling towards the lower end of the scale of seriousness for conduct of its type. In my opinion, the aggravating factors that I have identified compel the conclusion that the appellant's conduct in committing the offences falls well above the lower end of the scale of seriousness for conduct of its type.
4. Ultimately, it is my opinion, given the aggravating factors that I have identified and my review of appellate decisions dealing with appeals against sentences imposed for offences of fraud, that the appellant's offending conduct viewed overall is appropriately categorised as falling around the middle of the range of seriousness for conduct of its type. In my opinion the appellant's conduct in committing the offences was on any view of the matter a moderately serious example of conduct committed in contravention of s 409(1)(c) of the Code.

1. There were a number of mitigating factors in the appellant's case, some of which were of more significance than others. The mitigating factors were as follows:
   1. The appellant did not make use of the fraudulently obtained money. Rather, he left the money in Taylor Indy's bank accounts from the time that he committed the last of his offences until the time of his arrest approximately six months later. In his letter to the magistrate, the contents of which were not challenged by the prosecution, the appellant asserted that he did not spend the money because 'it never felt right' and that he had wanted to return the money but 'out of fear' was not sure how to do so;
   2. After being charged with the offences the appellant repaid the fraudulently obtained money;
   3. As is revealed by the appellant's letter to the magistrate and the various character references written on his behalf, the appellant was, in the lead up to and during the commission of the offences, under significant stress which contributed to him making the decision to embark upon his course of criminal conduct. The appellant's stress arose from a combination of circumstances including the following:

(1) The appellant's marriage had broken down four years earlier and he had been engaged in a dispute with his former wife over assets and the custody of his youngest daughter. The separation had resulted in him being estranged from his oldest daughter;

(2) In 2019 the appellant was forced to close the construction business which he owned with his parents due to the inability of the business to pay its creditors;

(3) In May 2020 the appellant was declared bankrupt. After settling the debt owed to the creditors of his collapsed business he and his parents still owed a significant amount of money to a bank. The bank had called for payment of the debt. The appellant was concerned that he and his parents would be forced to sell their houses to repay the debt;

(4) The appellant's youngest daughter suffered from depression and anxiety resulting in her missing a large amount of school; and

(5) The appellant assumed responsibility for caring for his youngest daughter.

1. Although the appellant did not of his own volition come forward and divulge his wrongdoing to Sincerity or the police, on being arrested he made full admissions and co-operated with the police investigation;
2. The appellant pleaded guilty at the first reasonable opportunity;
3. The appellant accepted responsibility for the offences and was remorseful;
4. The appellant had no prior convictions;
5. The appellant was of prior good character; and
6. The appellant had very good prospects of rehabilitation.

1. With respect to the third of the above specified mitigating factors, in his letter to the magistrate the appellant summarised his situation in the following terms:

It was with these compounding struggles and responsibilities, that I found myself desperately trying to find ways to save my Mum and Dad's home, as well as my own. My parents being 67 years were far too old to be starting again and I found myself committing an offence to gain money, not out of greed but out of desperation for my family.

1. At the time of his sentencing the appellant was 45 years old. He had shared custody of his youngest daughter. He had established a new building company and was providing financial support to his parents and children.

1. There is no generally appropriate type of sentence for fraud offences. Nor is there any established range of sentence for fraud offences. This is because of the very diverse circumstances in which fraud offences are committed and very diverse personal circumstances of the offenders who commit them.[51]
2. The parties have not been able to locate any decisions of the Court of Appeal or any decisions of single judges of this court exercising their appellate jurisdiction that are apt comparators to the appellant's case. I have not been able to locate any such decisions. Having said this, it seems to me that a review of appellate decisions in this State, including appellate decisions of single judges of this court, permits two points to be made:
   1. Sentences other than immediate imprisonment have been imposed for fraud offences at the lower end of the scale of seriousness even when the offender is not of good character;[52] and
   2. Only sentences of immediate imprisonment have been imposed for fraud offences at the higher end of the scale of seriousness involving serious and prolonged dishonesty and significantly larger sums of money than the total amount obtained by the appellant.[53]
3. The appellant's conduct in committing the offences was, I have found, not at the lower end of the scale of seriousness or at the high end of the scale of seriousness. His conduct in committing the offences was around the middle of the scale of seriousness for fraud offences.
4. In reviewing appellate decisions of single judges of this court and in making the points stated in par 49 above, I have not overlooked that in this State comparable cases, in the context of deciding whether a judicial officer imposed the wrong type of sentence or a manifestly excessive or inadequate sentence, are comprised of the decisions of the Court of Appeal and its predecessor, the Court of Criminal Appeal.[54]

1. The fact that the appellant had no prior convictions when considered in light of the evidence as to his prior good character indicated that he was highly unlikely to reoffend. Accordingly, the sentencing considerations of personal deterrence and protection of the public did not have a material role to play in the exercise by the magistrate of his sentencing discretions.

1. The sentencing consideration of general deterrence was, as was recognised by the magistrate, relevant to the determination of the sentence to be imposed on the appellant. It is well established that general deterrence is of importance in cases involving deliberate, systematic and planned criminality over an extended period.[55] There was a need for the magistrate to impose a sentence that was capable of acting as a deterrent to other persons who might be tempted to engage in the type of conduct engaged in by the appellant.
2. A necessary consequence of the magistrate giving effect to the sentencing consideration of general deterrence was that less weight had to be given to mitigating circumstances personal to the appellant. The mitigating circumstances personal to the appellant were not irrelevant. However, they assumed less weight than might otherwise be the case.[56]

1. There were many mitigating factors in the appellant's case. Admittedly, the mitigating factor comprised of the appellant's difficult personal situation was only of limited mitigatory value and only reduced the appellant's culpability by a very small amount. Many people experience financial and emotional crises in their lives without resorting to a significant course of criminal conduct in an attempt to rectify their situation. Further, it does need to be borne in mind that it was the appellant's prior good record and prior good character that enabled him to secure the position of trust that he occupied and that he made use of to commit the offences. Nonetheless, even taking these considerations into account the combined force of the mitigating factors was significant.
2. Of some significance, in my opinion, is that the appellant, once he had obtained the amounts of money the subject of his individual offences and had paid these amounts into Taylor Indy's bank accounts, did not attempt to make use of the money. That is, despite the financial pressure that he was under and the easy access that he had to the money once it was in Taylor Indy's bank accounts, he refrained from using the money for his own purposes because his conscience prevented him from doing so. Indeed, he left the total amount of money obtained from the commission of all of his offences in the bank accounts for a period of approximately six months up until the date of his arrest. This is a factor that distinguishes the appellant's conduct from the vast majority of cases involving offences of fraud.
3. On the other hand, the appellant's offending was serious. In breach of the significant trust placed in him by his employer he engaged in a pre-meditated, relatively sophisticated and persistent course of dishonest conduct. He obtained through his conduct a not insignificant amount of money. Further, general deterrence was an important sentencing consideration.
4. It might be argued that if the magistrate had exercised his sentencing discretion differently by imposing a fully or partially suspended term of imprisonment he would not have fallen into error. However, and as I have already pointed out, simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.
5. Ultimately, when I take into account the statutory maximum penalty for the appellant's offences, the seriousness of the appellant's conduct in committing the offences, the range of sentences customarily imposed for offences of the type committed by the appellant, the importance of the sentencing consideration of general deterrence, the appellant's personal circumstances and the large number of mitigating factors, I am not persuaded that it was not reasonably open to the magistrate to conclude that a sentence other than immediate imprisonment was inappropriate. In my opinion the imposition by the magistrate of an immediate term of imprisonment was not, in all the circumstances, unreasonable or unjust. The significant mitigating factors were adequately reflected in the lengths of the individual terms and total term imposed.
6. The alleged implied error the subject of the ground of appeal has not been established. Accordingly, although I would grant leave to appeal I would dismiss the appeal.

1. I will make orders in the following terms:
   1. The application for leave to appeal is allowed; and
   2. The appeal is dismissed.

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

[1] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA)(CAA). A sentence imposed by a magistrate is a decision that may be appealed by the appellant: CAA, s 6(f) and s 7(1).

[3] During the hearing of the application for leave to appeal the appellant's counsel, in response to a question from me and after obtaining instructions from the appellant, informed me that one of the Taylor Indy bank accounts was used to hold the GST payable on the amount charged by Taylor Indy to Sincerity.

[11] ts 11, 23 February 2022. Material provided to the magistrate on the appellant's behalf revealed that the appellant had been declared bankrupt on 18 May 2020.

[15] ts 8 and 11 - 12, 23 February 2022. The appellant has filed with the court the material that was before the magistrate. I have therefore had access to the material for the purposes of determining the appeal.

[17] ts 8 - 9 and 12 - 13, 23 February 2022.

[30] CAA, s 9(2).

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

[32] CAA, s 9(3).

[33] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] - [36]; Kelly v The State of Western Australia [2020] WASCA 29 [50].

[34] Sentencing Act, s 39(2) and s 39(3). Section 4(4) of the Sentencing Act provides that a reference in the Act to 'the suspension of a term or terms of imprisonment is a reference to the suspension of...the whole of the term or terms or...part of the term or terms'.

[35] Dinsdale v The State of Western Australia [2000] HCA 54; (2000) 202 CLR 321; The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [8], [11].

[36] Fogg v The State of Western Australia [2011] WASCA 11 [8]; DKN v The State of Western Australia [2018] WASCA 87 [38].

[37] Cartwright v The State of Western Australia [2010] WASCA 4 [8]; Skipworth v The State of Western Australia [8]; DKN v The State of Western Australia [36].

[38] Dinsdale v The State of Western Australia [18], 26], [24].

[39] Dinsdale v The State of Western Australia [49].

[40] Cartwright v The State of Western Australia [10].

[41] Shi v The State of Western Australia [2020] WASCA 197 [41].

[42] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].

[43] Mason v The State of Western Australia [2018] WASCA 43 [55] - [56]; Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549; DKN v The State of Western Australia [39]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [50]; Shi v The State of Western Australia [42]; The State of Western Australia v Saleh [2020] WASCA 205; Panomarenko v The State of Western Australia [2022] WASCA 71 [61].

[44] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [229].

[45] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] - [70]; Page v The State of Western Australia [36]; Panomarenko v The State of Western Australia [61].

[46] Eldridge v The State of Western Australia [2020] WASCA 66 [22(3)] - [22(4)]; WRT v The State of Western Australia [2020] WASCA 68 [40].

[48] Code, s 409(1); Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [24] - [33]; Stanley v The State of Western Australia [2018] WASCA 229 [46].

[49] See, for example, Wittensleger v The State of Western Australia [2014] WASCA 205 and the cases cited therein and NHI v The State of Western Australia [2021] WASCA 32 and the cases cited therein.

[50] See, for example, Vargess v Hughes [2017] WASC 291 (Allanson J), Schulz v Coyne [2019] WASC 329 (Hill J), Kotnowski v Richardson [2019] WASC 369 (Smith J), Simms v Geeson [2020] WASC 381 (Derrick J) and Wells v Hounslow [2021] WASC 99 (Smith J).

[51] Pollock v The State of Western Australia [2011] WASCA 133 [42] [71]; The State of Western Australia v Chapman [2012] WASCA 203 [88]; Wittensleger v The State of Western Australia [142].

[52] Vargess v Hughes; Schulz v Coyne; Kotnowski v Richardson; Simms v Geeson.

[53] Pollock v The State of Western Australia [71]; The State of Western Australia v Chapman [87]; Wittensleger v The State of Western Australia [137] - [141],

[54] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [55]; The State of Western Australia v Zhuang [2021] WASCA 56 [109] - [111].

[55] The State of Western Australia v Chapman [86].

[56] Fleay v The State of Western Australia [2021] WASCA 214 [49] - [50].