HOMOLA -v- RADWELL [2018] WASC 177 (12 June 2018)

The application for an extension of time within which to appeal

1. The application for an extension of time is not opposed by the respondents.
2. The last date for appealing against the sentences imposed was 22 March 2018. The appeal notice was filed on 20 April 2018, a little under one month late.
3. The application for the extension of time is supported by an affidavit affirmed by the appellant on 17 April 2018. In the affidavit the appellant affirms the following:
   1. He saw Legal Aid on 9 March 2018 to ask about appealing the sentence imposed on him;
   2. He has been granted legal aid 'for advice about an appeal', but Legal Aid does not yet have the transcript of the sentencing proceedings;
   3. He has asked Legal Aid to help him file the 'paperwork' while they wait for the transcript;
   4. Legal Aid has helped him prepare an appeal notice and his affidavit in support of his application for an extension of time;
   5. His father passed away on 4 April 2018; and
   6. He is keen to pursue an appeal.
4. It is therefore apparent from the appellant's affidavit that the appellant made contact with Legal Aid within, albeit towards the end of, the 28 day time period for the commencement of the appeal. It would also appear from the affidavit that the reasons for the appeal notice not being filed within the 28 day time period were a combination of the time that it took for the appellant to make contact with Legal Aid, the time that it took for the appellant to be granted legal aid to enable the provision of advice about an appeal and the fact that the appellant had to deal with the passing of his father.
5. The delay in the filing of the appeal notice while not insignificant is not great. Further, the delay is in my opinion adequately explained. In these circumstances I grant the extension of time within which to appeal.

1. The facts of the offences the subject of the appeal were read to the chief magistrate by the prosecutor during the hearing before his Honour on 22 February 2018. The facts as read were not disputed by the appellant.
2. The first of the offences in time was the offence of making a threat to unlawfully injure. The facts of this offence were as follows.
3. At 8.00 am on Saturday 16 December 2017 the appellant attended the St Bartholomew's Hostel (the Hostel). The appellant attended the Hostel to see his 79 year old father who was a resident at the Hostel. The appellant's father suffered from dementia, was going deaf and blind, and was under the care of the Public Trustee.
4. Due to previous 'threatening behaviours' engaged in by the appellant towards staff at the Hostel, the appellant had been barred by the Hostel from being within certain areas of the Hostel. However, an agreement had been arrived at between the staff at the Hostel and the appellant that if the appellant wanted to see his father he could ring the Hostel's front door bell and staff would then bring the appellant's father to the front of the Hostel complex so that the appellant and his father could sit on the roadside and talk. This is what occurred when the appellant attended at the Hostel on the morning of 16 December 2017. Staff at the Hostel brought the appellant's father out to the front of the Hostel to see the appellant. The appellant and his father sat and talked for about 10 minutes. After this period of time the appellant left.
5. At about 10.30 am the appellant returned to the Hostel. Again, staff at the Hostel brought the appellant's father out to the front of the Hostel to see the appellant. The appellant and his father sat and talked. Nursing staff from the Hostel witnessed the appellant standing over his father and verbally abusing him. The appellant left shortly thereafter.
6. At 2.10 pm the appellant again returned to the Hostel. A resident of the Hostel used their swipe card to access the gate lock. As the gate was selfclosing the appellant grabbed hold of the gate and forced it to remain open. After a short period of time the mechanism on the gate snapped and the gate remained open. The appellant then walked into the main floor area of the Hostel and started kicking at the glass sliding door. He eventually used his fingers to prise open the glass door. He forced the glass door open and in doing so damaged the frame of the glass.
7. At this point in time the appellant said to a senior support worker employed at the Hostel the following:

I'm going to come here. I'm going to bash you. I know where you work. I know when you finish work. I'm going to send one of my girlfriends to come here and bash you. I will bash you. I will kill you. I know what time you leave here. I will wait for you.

1. The support worker was concerned for her safety and fearful that the appellant was going to assault her.
2. It was the appellant's statements to the senior support worker that constituted the appellant's threat to injure offence.
3. I note that the appellant was also charged with an offence of trespass and an offence of damage as a result of the above outlined sequence of events. The chief magistrate fined the appellant for each of these offences.
4. The next in time of the offences was the breach of bail offence. The facts of the breach of bail offence were as follows.
5. On 17 December 2017 the appellant was released on bail in respect of the charges that had been laid against him as a result of the conduct that he had engaged in at the Hostel on 16 December 2017. His bail undertaking included a protective bail condition that he was not to approach within 100 metres of the Hostel.
6. On Wednesday 20 December 2017 the appellant was located by multiple members of staff at the front entry door to the Hostel. At the time the appellant stated that he knew he should not be at the Hostel but that he wanted to see his father.
7. The third in time of the three offences was the stealing offence. The facts of the stealing offence were as follows.
8. On 5 February 2018, the appellant was in an undercover carpark in the Metro Hotel, Canning Highway, South Perth. The appellant approached a Holden Captiva vehicle and threw an unknown object at the rear window causing it to shatter. The appellant then removed two bags from the rear of the vehicle before departing on a bicycle. The two bags contained jewellery items and an IPod Touch. The jewellery items consisted of a gold chain, large sapphire diamond, silver bracelet, silver charm bracelet and silver pearl earrings. The total value of the jewellery items and the IPod Touch was $2,230.

1. The appellant was charged with the threat offence on 16 December 2017. He first appeared in court in answer to the charge on 17 December 2017. He was remanded on bail to appear again on 2 February 2018. On 2 February 2018 the appellant appeared and was remanded on bail to appear again on 13 February 2018. On 13 February 2018 the appellant failed to appear in answer to his bail. A warrant was issued for his arrest. On 15 February 2018 the appellant was arrested and brought before the court. He entered a plea of guilty to the charge and was remanded on bail to appear for his sentencing on 22 February 2018.
2. The appellant was charged with the breach of bail offence on 20 December 2017. He first appeared in court in answer to the charge on 21 December 2017. On that date he was remanded on bail to appear on 2 January 2018. The appellant appeared on 2 January 2018 and was remanded to appear again on 13 February 2018. From 2 January 2018 the course of the court proceedings for this charge were as for the threat charge. Thus the appellant entered his plea of guilty to the breach of bail charge on 15 February 2018.
3. The appellant was charged with the stealing offence on 14 February 2018. He first appeared in court in answer to the charge on 15 February 2018. He entered a plea of guilty to the charge on that date.

1. The appellant represented himself at the sentencing hearing before the chief magistrate on 22 February 2018.
2. After the facts of the appellant's offences were read to the chief magistrate the appellant made a brief plea in mitigation. The plea that was made by the appellant on his own behalf is not altogether easy to understand. However, I think it is fair to say that the thrust of the appellant's plea was that at the time of committing the offences he was homeless and unstable, was concerned about the way the staff at the Hostel were treating his father, was having difficulties in his dealings with the staff at the Hostel and with gaining access to his father, but that he was now more stable.
3. Having heard from the appellant the chief magistrate, in sentencing the appellant, said the following:

Alright. Well, Mr Homola the difficulty is that you have committed a further serious stealing charge within a very short space of time, having been sentenced to custody for burglaries and so in relation to the stealing from the vehicle, you will be sentenced to 8 months' imprisonment. You will be sentenced to 4 months cumulative in relation to the threat and 6 months concurrent in relation to the breach of protective bail conditions. You have had previous sentences. You continue to offend in that way. I will make you eligible for parole with respect to those matters. In relation to the trespass and the damage, you will be fined $500 in each case and in relation to the other stealing, $300. There is a compensation order of $80 and a compensation order of $2,230 (ts 5).

1. The chief magistrate's reference to the 'other stealing' for which the appellant was fined $300 was a reference to a minor stealing offence committed by the appellant on 14 February 2018.

1. The appellant was born on 15 November 1984. He was therefore 33 years old at the time of committing the offences.
2. At the time of his sentencing the appellant had a lengthy criminal record. He had offended on a regular basis since turning 18 in November 2002. Without intending to be in any way exhaustive, during the period 2002 to 2014 the appellant had incurred one or more convictions for offences of unlawful damage, stealing, possessing prohibited drugs, burglary on a dwelling, assaulting a public officer, trespass, breach of protective bail conditions, unlawful assault occasioning bodily harm and making a threat to injure. The appellant had been sentenced to a variety of dispositions for these offences including terms of immediate imprisonment. I note in this context that by the end of 2014 the appellant had amassed a significant number of prior convictions for offences of breaching protective bail conditions.
3. On 3 March 2015 the appellant was convicted of a number of offences including two offences of stealing, one offence of stealing a motor vehicle and one offence of burglary on a dwelling. For these offences he was sentenced to a total of 8 months imprisonment suspended for 18 months. The 18 month period of suspension expired on 2 September 2016.
4. On 10 January 2017 the appellant was convicted of one offence of aggravated burglary with intent, one offence of possessing an article with intent to cause fear, two offences of stealing, one offence of disorderly behaviour, one offence of possessing drug paraphernalia and two offences of stealing. For all of these offences, save for the aggravated burglary with intent offence, he was fined. For the aggravated burglary with intent offence he was sentenced to 3 months and 14 days imprisonment.
5. All of the offences of which the appellant was convicted on 10 January 2017 were committed during the term of the suspended imprisonment order made on 3 March 2015. The appellant's convictions for these offences, save for the offence of disorderly behaviour the penalty for which did not include imprisonment (Sentencing Act, s 78(1)(a)), therefore constituted a breach of the suspended imprisonment order. As a result the appellant was also on 10 January 2017 sentenced for the offences for which he had been placed on the suspended imprisonment order. He was sentenced to a total of 12 months' imprisonment for these offences, with the sentence of 3 months and 14 days imposed for the aggravated burglary with intent offence being ordered to be served concurrently with the 12 month term.
6. In summary, on 10 January 2017 the appellant was sentenced to a total effective term of 12 months imprisonment. The commencement date for this sentence was backdated to 1 April 2016.
7. On 4 August 2017 the appellant was convicted of an offence of driving under the influence of alcohol. He was sentenced to a 9 month community based order for the offence.
8. On 29 January 2018 the appellant was convicted of an offence of possessing cannabis which he committed during the term of, and in breach of, the 9 month community based order imposed on 4 August 2017. He was fined for the possession of cannabis offence and for breaching the community based order. The community based order was, however, confirmed with the result that it remained in place. It follows that the offences the subject of the appeal were committed by the appellant in breach of the community based order.

1. I turn now to deal with the individual grounds of appeal.
2. The respondents' position is that all four grounds of appeal have been made out.
3. It is convenient to deal first with ground 3, then ground 4, then ground 1 and finally ground 2.

1. If a person pleads guilty to an offence, s 9AA(2) of the Sentencing Act permits the sentencing judicial officer to reduce the 'head sentence' (as that term is defined in s 9AA(1)) imposed for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. If the sentencing judicial officer reduces the head sentence for an offence pursuant to s 9AA(2), he or she is required by s 9AA(5) to state in open court both that the sentence has been reduced under s 9AA(2) and the extent of that reduction.
2. As I have already pointed out, the appellant pleaded guilty to all of the offences the subject of the appeal. However, the chief magistrate did not in his sentencing remarks make any reference to the appellant's pleas of guilty. In particular, his Honour did not make any statement to the effect that he had under s 9AA(2) reduced the length of the individual head sentences of imprisonment imposed for the offences to take account of the appellant's guilty pleas. Nor, for that matter, did his Honour make any statement to the effect that he had taken the pleas of guilty into account in determining the type of sentences to be imposed on the appellant for each of the offences.
3. In light of the absence of any reference by the chief magistrate to the appellant's pleas of guilty, the appellant submits that his Honour overlooked his pleas of guilty and consequently made an error of law by failing to discount the sentences imposed for each of the offences pursuant to s 9AA(2). The appellant further contends that as a result of this error the total sentence imposed on him was excessive.
4. The failure by a sentencing judicial officer to refer to the effect of a plea of guilty will ordinarily be an indication that the sentencing judicial officer has overlooked the plea of guilty and failed to take it into account in determining the sentence to be imposed on the offender: H v The State of Western Australia [2006] WASCA 53 [10]; Winmar v Clark [2015] WASC 314 [26].
5. During the sentencing hearing the appellant did not make any mention of the fact that he had pleaded guilty to the charges. Nor did the prosecutor. This being the case, and given the chief magistrate's failure to make any reference to the pleas of guilty in his sentencing remarks, I am satisfied, consistently with the concession made by the respondents, that his Honour overlooked reducing under s 9AA(2) the length of the individual head sentences imposed to take account of the appellant's guilty pleas.
6. The plea of guilty to the stealing offence was entered at the first reasonable opportunity: Sentencing Act, s 9AA(4). The pleas of guilty to the threat offence and the breach of bail offence were entered at an early opportunity albeit not at the first reasonable opportunity. The pleas therefore clearly warranted a reduction under s 9AA(2) in the length of the individual head sentences imposed. Accordingly, his Honour's failure to give such a reduction amounted to a material error of law. This ground of appeal has been made out.

1. The following matters are not in dispute between the parties:
   1. On being arrested for the threat to injure offence, the appellant was kept in custody overnight on 16 and 17 December 2017;
   2. On being arrested for the breach of bail offence, the appellant was kept in custody overnight on 20 and 21 December 2017;
   3. On being arrested for the stealing offence, the appellant was kept in custody overnight on 14 and 15 July 2018.
2. The appellant therefore spent a total of three days in custody for the offences.
3. The chief magistrate was not told that the appellant had spent any time in custody for each of the offences. His Honour did not in his sentencing remarks make any reference to the time that the appellant had spent in custody for the offences. In particular his Honour did not indicate that he had taken the appellant's time in custody into account in arriving at the sentences which he imposed. The appellant submits that in these circumstances it is apparent that the chief magistrate did not give the appellant any credit for the time that he had spent in custody for the offences with the result that there was a miscarriage of justice.
4. I am satisfied, given the absence of any reference during the sentencing hearing to the time that the appellant spent in custody, that the chief magistrate did not take into account the three days that the appellant had spent in custody in determining the type of sentences to be imposed for the offences, or in the manner provided for in s 87 of the Sentencing Act. Moreover, in the circumstances of the present case there is no reason for his Honour not to have taken into account the time that the appellant spent in custody in either or both of these ways. I note in this context that time spent in custody is a factor that can be taken into account in deciding whether to suspend a term of imprisonment: Sunfly v The State of Western Australia [2009] WASCA 22 [24].
5. For the reasons I have stated I am persuaded, consistently with the respondents' concession, that the appellant has suffered a miscarriage of justice by reason of the chief magistrate not taking into account, or to pick up on the wording of the ground of appeal not giving credit for, the three days that the appellant spent in custody for the offences in determining the sentences to be imposed for the offences. This ground of appeal has been made out.

1. By ground 1 the appellant asserts that the chief magistrate failed to consider whether to suspend the terms of imprisonment imposed.
2. When arriving at a decision regarding the appropriate sentencing option the sentencing judicial officer must give proper consideration to all the sentencing options set out in s 39 of the Sentencing Act: Samuel v The State of Western Australia [2004] WASCA 154 [34].
3. A sentencing judicial officer is not required to expressly refer to a sentencing option if that option is not realistically open: Samuel v The State of Western Australia [34]. However, if in the circumstances of a case two or more sentencing options may be realistically open, it will usually be necessary for the sentencing judicial officer to make some reference to why the less severe option is not appropriate: Samuel v The State of Western Australia [34].
4. In the appellant's case there were, as he concedes, only two sentencing options that were realistically open, namely suspended imprisonment (with or without conditions) and immediate imprisonment. However, in his sentencing remarks the chief magistrate did not expressly state that he had considered the option of suspending any term of imprisonment to be imposed on the appellant but that he had discounted this possibility. Nor did the chief magistrate expressly state that he was sentencing the appellant to 'immediate' imprisonment. The appellant and the respondents submit that in these circumstances it cannot be concluded that the chief magistrate considered and positively rejected the option of imposing a suspended term of imprisonment.
5. Although the chief magistrate did not expressly refer to having considered the option of suspending any term of imprisonment imposed, his Honour did refer to the appellant having 'had previous sentences' and having continued 'to offend in that way', that is, in ways similar to his past offending. In my opinion his Honour's statement that the appellant had 'had previous sentences', when read in context and in light of the appellant's record, can only be read as a reference to the appellant having previously been sentenced to custodial and noncustodial dispositions including suspended imprisonment. Further, in my opinion his Honour's statement that the appellant had continued 'to offend in that way' can only be read as a reference to the fact that the previous sentences imposed on the appellant, including suspended imprisonment, had not deterred him from offending. This being the case, I am not persuaded that his Honour did fail to consider whether to suspend the sentences of imprisonment imposed. Rather, I am satisfied that his Honour did consider this option but that he concluded that it was not an option that was open to him particularly given that the appellant had recently been sentenced to terms of imprisonment for offences for which he had originally been placed on a suspended imprisonment order.
6. I would refuse leave to appeal on this ground.

1. My findings in relation to grounds 3 and 4 mean that the sentencing discretion falls to be exercised afresh. It is therefore not strictly necessary for me to determine the appellant's assertion the subject of ground 2 of the appeal, namely that the type of sentence imposed (immediate imprisonment) was manifestly excessive. Nonetheless, for the purposes of completeness, and in light of the concession made by the respondents that the ground should be upheld, I propose to do so.
2. The appellant submits that it was not open to the magistrate to conclude that a suspended term of imprisonment, as opposed to immediate imprisonment, was not the appropriate disposition. The respondents agree with this submission.
3. The general principles to be applied by an appellate court in determining if a sentence imposed is manifestly excessive are well established. They can be stated as follows.
4. Sentencing is a discretionary exercise. Where, as in this case, the allegation is that the sentence imposed was manifestly excessive because the wrong type of sentence was imposed, the appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. Rather, the appeal court must be satisfied that the type of sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36]. To put the matter another way, the question for the appeal court is whether it was open to the sentencing court to find that the less serious sentencing option, in this case suspended imprisonment, was not appropriate: Mason v The State of Western Australia [2018] WASCA 43 [55] [56]; Sentencing Act, s 39(3).
5. In order to determine whether it was open to the sentencing court to find that the less serious sentencing option was not an appropriate disposition for an individual offence the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances: 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].
6. The maximum penalty that could be imposed by the chief magistrate for the appellant's threat to injure offence was 18 months imprisonment and a fine of $18,000: Code, s 338B. The maximum penalty that could be imposed by his Honour for the breach of protective bail conditions offence was a fine not exceeding $3000, or 3 years imprisonment or both: Bail Act, s 51(6). The maximum penalty that could be imposed by his Honour for the stealing offence was 2 years imprisonment and a fine of $24,000: Code, s 426(2).
7. The maximum penalties that were able to be imposed by the magistrate for the threat to injure offence and the stealing offence were the maximum summary conviction penalties. However, the maximum summary conviction penalties were only jurisdictional limits and it remains relevant to consider the statutory maximum penalties for the threat to injure offence and the stealing offence which were 3 years imprisonment and 7 years imprisonment respectively: Wiltshire v Mafi [2010] WASCA 111 [24] [33].
8. The three offences committed by the appellant, particularly the stealing and the threat offence, were serious.
9. The threat offence involved the appellant making significant verbal threats of violence to the senior support worker at the Hostel who was simply trying to do her job, and while he was in close proximity to the support worker and in a generally agitated if not aggressive emotional state. The threats, even though the appellant was only charged with making a threat to injure, included a threat to kill the support worker. The threats, not surprisingly given the context in which they were made, caused the senior support worker to fear for her safety.
10. I accept, as is submitted on behalf of the appellant, that it is apparent from the plea that the appellant did make to the chief magistrate during the sentencing hearing that he committed the offence during a period in his life where he was unstable and in a state of emotional turmoil and upset. However, in my view this fact, although it may go some way to explaining the appellant's conduct, does not mitigate the seriousness of his conduct to any great extent.
11. The breach of protective bail offence involved a significant and deliberate contravention of the condition that the appellant was not to approach within 100 m of the Hostel. Moreover, the contravention occurred within a relatively short time of the appellant having been released on bail.
12. The stealing offence involved breaking into a car by smashing the car's rear window, and stealing two bags which contained property of significant monetary (and presumably also sentimental) value. None of the property was recovered as is revealed by the making of the compensation order by the chief magistrate. The fact that the appellant may not have known at the time of taking the bags that they contained property of such value did not reduce the appellant's culpability given that once he became aware of their contents he still kept the property: Lynden v The State of Western Australia [No 2] [2013] WASCA 186 [14], [27]. Moreover, nothing in the appellant's statements to the magistrate operated to substantially mitigate the seriousness of his conduct in committing the stealing offence.
13. In short, and for the reasons I have stated, in my view the offences were moderately serious examples of their type (although clearly not at the top end of the range of seriousness). I do not accept the submission made by the respondents in their written submissions that the offences committed by the appellant fell at the lower level of seriousness for offences of their type.
14. As is apparent from what I have said previously, the appellant had an extensive and relatively significant criminal record. In addition, his record revealed that he had been given the opportunity of a suspended imprisonment order in March 2015 and had breached that order by committing further offences, including an offence of the type for which he had been placed on the suspended imprisonment order, namely a burglary. His record also revealed that he had committed the offences the subject of the appeal in breach of a community based order.
15. Although the appellant's poor criminal record and demonstrated poor compliance with community based dispositions were not aggravating factors in the sense that they did not increase the seriousness of the offences for which the appellant was being dealt with by the chief magistrate, the nature and extent of the appellant's record did mean, quite obviously, that he was not entitled to any leniency for good character. The appellant's record also revealed that the variety of sentences that had been imposed on him in the past had not deterred him from offending with the result that the sentencing considerations of personal deterrence and protection of the public were of relevance when it came to sentencing him.
16. The only significant mitigatory factor in the appellant's case was his early pleas of guilty.
17. Taking into account the statutory maximum penalties for the appellant's offences, the seriousness of the appellant's offences, the appellant's personal circumstances at the time of committing the offences, the appellant's relatively recent breaching of community based dispositions (including a suspended imprisonment order) by reoffending, the relevance of the sentencing considerations of personal deterrence and protection of the public, and the absence of any significant mitigatory factors other than the guilty pleas, I am not persuaded, despite the respondents' concession, that the imposition of immediate terms of imprisonment on the offender for each of the offences was so unreasonable or unjust that a substantial wrong occurred. I do not consider that it was not open to the magistrate to find that the less serious sentencing option, in this case suspended imprisonment, was not appropriate. In my view it was open to the chief magistrate to conclude that the less serious option of suspended imprisonment was not appropriate (or in other words that the only appropriate disposition was a term of immediate imprisonment). In my view, even making full allowance for the appellant's personal circumstances at the time of the offending and his early pleas of guilty, the imposition of immediate terms of imprisonment did not fall outside a sound exercise of the chief magistrate's sentencing discretion. It follows that I would refuse leave to appeal on this ground.

1. Despite my above expressed conclusion in relation to ground 2 it is still necessary, given my findings that the chief magistrate did make the errors asserted in grounds 3 and 4, to exercise the sentencing discretion afresh. In doing so I must apply the principles embodied in the Sentencing Act. Those principles, so far is relevant in the present context, may be stated in brief terms as follows.
2. A sentence imposed on an offender must be commensurate with the seriousness of the offence: Sentencing Act, s 6(1).
3. In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors: Sentencing Act, s 6(2). Aggravating factors are factors that in the court's opinion increase the offender's culpability: Sentencing Act, s 7(1). Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished: Sentencing Act, s 8(1).
4. In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment: Sentencing Act, s 6(4).
5. If the court reaches the conclusion that a sentence of imprisonment (as opposed to a sentence of immediate imprisonment) of not more than 5 years is the only appropriate disposition, the court must then consider whether or not that sentence of imprisonment should be suspended or whether a sentence of imprisonment to be immediately served is required: Sentencing Act, s 39(3), s 76(1), s 76(2); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] [79]; Mason v The State of Western Australia [48] [54]. The court must be positively satisfied that that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment. In order to decide if the term of imprisonment imposed can be suspended the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.
6. For reasons that are apparent from what I have said in dealing with ground 2, I am satisfied that the only appropriate disposition for each of the appellant's offences is a term of imprisonment. Accordingly, I will proceed to fix appropriate sentences for the offences and deal with questions of cumulation, concurrency and totality. After doing this I will return to the issue of whether the term imposed should be suspended.
7. In my view the appropriate sentence for the stealing offence is 6 months imprisonment. In arriving at this sentence I have pursuant to s 9AA of the Sentencing Act reduced by 25% the sentence that I would have imposed if the appellant had not pleaded guilty.
8. As to the threat to injure offence, in my view the appropriate sentence is 4 months imprisonment. In arriving at this sentence I have pursuant to s 9AA of the Sentencing Act reduced by 20% the sentence that I would have imposed if the appellant had not pleaded guilty. Thus, as is apparent from the sentence imposed, I do not consider that the error made by the chief magistrate in failing to take account of the appellant's guilty plea to this offence should result in the imposition of a different sentence for the offence.
9. As to the breach of bail offence, I am of the view that the appropriate sentence is 4 months imprisonment. In arriving at this sentence I have pursuant to s 9AA of the Sentencing Act reduced by 20% the sentence that I would have imposed if the appellant had not pleaded guilty.
10. That leaves the question of totality.
11. The totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referrable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases: Salkilld v The State of Western Australia [48]; Page v The State of Western Australia [36].
12. In my view, a total sentence of 10 months imprisonment bears a proper relationship to the overall criminality of the appellant in committing the offences having regard to all relevant facts and circumstances, all relevant sentencing factors and total effective sentences imposed in comparable cases. In order to arrive at this total sentence I will order that the sentences imposed for the stealing offence and the threat offence are to be served cumulatively on each other but concurrently with the sentence imposed for the breach of bail offence.
13. I return then to the question whether the terms of imprisonment that I have imposed should be suspended.
14. If it were not for one factor, I would be positively satisfied that the option of suspending the terms of imprisonment that I have imposed would not be appropriate. I would be of this view for the reasons that I have expressed in deciding that it was open to the magistrate to conclude that the imposition of terms of immediate imprisonment for the offences was the only appropriate disposition. The one factor, however, which in my opinion now tips the balance in favour of suspending the terms that I have imposed is that that the appellant, prior to being released on bail pending the determination of the appeal, served 3 months and 10 days of the 12 month term imposed on him by the chief magistrate. I include in this calculation the three days that the appellant spent in custody prior to being sentenced by the chief magistrate. In other words, the appellant has already served a little more than half of the period that he was required to serve before becoming eligible for release on parole on the total sentence imposed by the chief magistrate, and considerably more than half of the period that he would be required to serve before becoming eligible for release on parole on the total sentence that I have imposed if required to serve the sentence immediately. Moreover, the appellant's counsel tells me, and I accept, not only that the time spent by the appellant in custody was particularly hard for him given that his father passed away while he was in custody, but also that the time spent in custody has had a significant deterrent effect on him. In all these circumstances I am satisfied that it is now appropriate to suspend for a period of 12 months the terms of imprisonment that I have imposed on the appellant. I consider that although the offences are for the reasons that I have stated serious, they are not so serious that, when viewed in light of the time that the appellant has already spent in custody, the only appropriate disposition is immediate imprisonment. I consider that both the appellant's interests and the interests of the community generally are best served by the term being suspended for a 12 month period.
15. I have given consideration to imposing conditions as part of the suspended imprisonment order. However, given that the appellant is now, I am told, in stable Homeswest accommodation and is living a more stable lifestyle, I have decided not to do so.
16. As is apparent from what I have said, I have given effect to my conclusion in relation to ground 4 of the appeal by taking the three days that the appellant spent in custody prior to being sentenced by the chief magistrate into account in deciding to suspend the terms that I have imposed. I have also taken this time in custody into account in a more general way in determining the length of sentences to be imposed for each of the individual offences: Narkle v Hamilton [2008] WASCA 31 [30] [31].

1. For the reasons that I have stated I would, subject to hearing from counsel, make orders in the following terms:
   1. The extension of time within which to apply for leave to appeal is granted;
   2. Leave to appeal on grounds 1 and 2 is refused;
   3. Leave to appeal on grounds 3 and 4 is granted;
   4. The appeal is allowed;
   5. The sentence of 8 months immediate imprisonment imposed by the chief magistrate for the offence of stealing (PE 8389/18) is set aside and replaced with a sentence of 6 months imprisonment;
   6. The sentence of immediate imprisonment imposed by the chief magistrate for the offence of breach of protective bail conditions (PE 68770/17) is set aside and replaced with a sentence of 4 months imprisonment;
   7. The appellant is sentenced to 4 months imprisonment for the offence of making a threat to injure (PE 68211/17);
   8. The sentences imposed for the offences of stealing and breach of protective bail conditions are to be served cumulatively on each other but concurrently with the sentence of imprisonment imposed for the offence of making a threat to injure (giving a total sentence of 10 months imprisonment);
   9. The term of 10 months imprisonment is suspended for a period of 12 months.

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