INGLIS -v- PINCH [2016] WASC 30 (8 February 2016)

4 For the reasons which follow, leave to appeal should be refused in respect of ground 2 of the grounds of appeal. Leave to appeal should be granted in respect of grounds 1 and 3 of the grounds of appeal, but those grounds should be dismissed. In respect of ground 3, although I am satisfied that Mr Inglis has made out an error by the learned Magistrate in failing to state the discount he gave for Mr Inglis' early plea of guilty, this ground of appeal should also be dismissed. That is because I am of the view that the sentence imposed (even if allowance is made for a discount for Mr Inglis' plea of guilty) was within the range of a proper exercise of the sentencing discretion, so that there would be no substantial miscarriage of justice if the sentence remains undisturbed.

5 In these reasons for decision, I deal with the following:

1. the facts in relation to each of the offences;
2. the submissions of the prosecutor and defence counsel at the sentencing hearing;
3. the reasons given by the learned Magistrate for the sentence imposed;
4. leave to appeal; and
5. why each of the grounds of appeal should be dismissed.

1. The facts in relation to each of the offences

6 Mr Inglis is a senior constable with the Western Australian Police. In the course of his duties, he is permitted to have access to the Incident Management System (IMS database) which is the restrictedaccess computer system used by the Police. Police officers are permitted to use the IMS only for the purposes of their duties. On each occasion when a police officer seeks to access the IMS system, he or she must log in, and a 'pop-up' reminder will appear on the screen to alert the officer to the fact that the system may only be accessed for official purposes.

7 On 10 January 2014, Mr Inglis accessed the IMS database to look at the information report in relation to an assault of which he was the victim. In his plea in mitigation, Mr Inglis' counsel advised the learned Magistrate that Mr Inglis accessed the IMS database on this occasion in order to see whether a person of interest had been identified in the investigation into that assault. Nobody had been. Consequently, the only information Mr Inglis obtained as a result of accessing the system was that no person of interest had been identified. It was not in dispute that Mr Inglis could have obtained the same information through lawful means, by making enquiries of his supervisor or of the detectives investigating the assault.

8 The second offence was committed on 21 March 2014, when Mr Inglis was on duty and accessed the IMS database to obtain details about the vehicle registration of his own car. In his plea in mitigation, Mr Inglis' counsel submitted that Mr Inglis did so in order to find out the expiry date for his registration so he could fill out some paperwork. Clearly, Mr Inglis could have obtained the same information by lawful means, for example by contacting the Department of Transport.

9 The third offence was committed on 10 September 2014. Mr Inglis was on duty and accessed the IMS database to look up an information report in relation to an incident involving trespass and damage which took place at his home. In his plea in mitigation, Mr Inglis' counsel submitted that Mr Inglis accessed the IMS database on this occasion in order to see whether any person of interest had been identified in the course of the investigation of that offence. The only information Mr Inglis obtained as a result of accessing IMS was that no person of interest had been identified. Again, it was not in dispute that Mr Inglis could have obtained the same information through lawful means, by making enquiries of the local detectives about the progress of the investigation.

2. The submissions of the prosecutor and defence counsel at the sentencing hearing

10 The prosecutor submitted that the offences in question placed them 'towards the middle in the scale of criminality'.[2] He submitted that that was so primarily because of the 'inherent seriousness of these offences'.[3] He submitted that the offences in this case involved a police officer committing offences while on duty, which the Court of Appeal in Hull v State of Western Australia[4] had observed was a most serious matter that would ordinarily attract a substantial penalty.

11 The prosecutor submitted that there were three aggravating factors in this case, namely that Mr Inglis was authorised to use the IMS database, which made this offence more difficult to detect, and which meant that the offence involved an abuse of Mr Inglis' position of authority and trust as a police officer; that the offences involved repeat offending over a period of approximately nine months; and that Mr Inglis accessed the IMS database in the knowledge that it was illegal to do so. Counsel referred to the 'popup' warning which appears when a user logs in to the IMS database. In addition, he submitted that nine months before these offences were committed, Mr Inglis had been the subject of disciplinary proceedings for other alleged breaches of s 440A of the Criminal Code, as a result of which the law and policies relating to use of the IMS database were expressly drawn to Mr Inglis' attention.

12 The prosecutor also made submissions in relation to the nature of the information obtained by Mr Inglis. He submitted that although the information sought appeared innocuous, that was not a significant consideration for sentencing purposes. In addition, he submitted that even though Mr Inglis had not caused any detriment or obtained any benefit, those considerations should be put to one side. His submission was that had those factors been present, they would have rendered the offence more serious, but their absence did not mean that the offending was of a less serious nature.

13 At the time he was sentenced, Mr Inglis was 45 years of age, he had been serving as a police officer for 21 years, and had reached the rank of senior constable. During his career as a police officer, Mr Inglis had worked in Perth and rural Western Australia. He was an active participant in his local community, as a member of sporting clubs and community groups, and had organised charity fundraising functions. Mr Inglis had no prior convictions, and character references were provided to the Court.

14 Mr Inglis' counsel acknowledged that unauthorised access to the IMS database was not a trivial offence, as it pertained to the protection of information concerning the public and involved a breach of the trust vested in police officers. However, he disputed the submission that the misuse of the IMS database by police officers was difficult to detect. Counsel for Mr Inglis also did not deny that Mr Inglis knew that the conduct in question was illegal, but rather submitted that the nature of the offending showed that the offences were 'slip ups' which were committed 'without thinking' and that if Mr Inglis 'had turned his mind to it [he] would readily have acknowledged that accessing the computer was ... an offence under s 440A'.[5]

15 Counsel for Mr Inglis acknowledged that the nature of the information accessed, and the reason why it was accessed, were relevant to sentencing, but he did not submit that those factors were mitigating factors in this case.[6]

3. The reasons given by the learned Magistrate for the sentence imposed

16 The learned Magistrate's reasons in relation to the sentence he imposed were as follows:[7]

[T]he three offences that you have committed are serious matters. The community entrusts the police in general with substantial abilities to intervene and interfere in the private lives of others and to keep records as it were, and that is done on a basis that the officers will show and respect that privacy and respect the trust that the community has placed in them by not ... illegally and in an unauthorised manner access[ing] that information.

I accept that on these occasions you were accessing information which did relate to you, did not relate to someone else in the community and I understand that that is the case and accept that that is the case. But it is not the question of who was accessed, it is the question of the breach of trust. The community empowers, as I said, police to do a number of things and we do it on a basis that we trust the police to comply with the law and to work within the confines of those powers, and if you go beyond them you not only breach the trust of the police department, you breach the trust of [the] community in general and the trust that the Parliament has placed in you by giving you that authority, and that is, I think has been indicated is the gravamen of the offence.

In relation to these matters there were three separate matters. Your counsel has indicated that in relation to those three separate matters you weren't arrested or informed in relation to one of them before you committed the other - in either of the other two, so that all three were brought to light at the same time. It does, however, appear that the problem in terms of accessing information was clearly brought home to you some time prior to this incident.

Your counsel says that if you had turned you mind to the question you would have realised that it was inappropriate for you to access information in the way that you did and you would have gone about it in a different way. The concern or the worry is the use of the term 'turning your mind to it'. You are a police officer, you are entrusted with powers, and you are expected to focus on what the lawful activities are and what the limits of those lawful activities are and in this case you fell down substantially in the course of that.

I don't consider anything other than a fine [to] be adequate, but I do consider that the fine has to be substantial. In my view I can impose a fine pursuant to section 54 of the Sentencing Act, a single fine ... . I consider a fine of $8000 to be the appropriate disposition. You face a total of $36,000 on those three charges. I consider $8000 is the appropriate disposition.

17 The leave of the Court is required for each ground of appeal in an appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA).[8] Leave to appeal must not be granted in respect of a ground of appeal unless the Court is satisfied that the ground has a reasonable prospect of succeeding.[9] That requires that the ground 'have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.'[10]

18 For the reasons set out below, I am satisfied that grounds 1 and 3 have a reasonable prospect of success, in the sense that it would not be irrational, fanciful or absurd to envisage either ground succeeding. Leave to appeal should therefore be granted in respect of grounds 1 and 3 of the grounds of appeal. However, for the reasons outlined below, in my view, ground 2 has no reasonable prospect of success and leave to appeal in respect of ground 2 should be refused.

5. Why each of the grounds of appeal should be dismissed

19 It is convenient to deal with grounds 1 and 3 before dealing with ground 2 of the grounds of appeal. Grounds 1 and 3 allege express errors by the learned Magistrate, while ground 2 alleges an implied error in that the sentence imposed was manifestly excessive.

20 Ground 1 of the grounds of appeal is in the following terms:

The learned Magistrate erred in law by failing to apply relevant sentencing factors, namely:

(a) failing to consider the nature of the information accessed as a mitigating factor; and

(b) failing to consider the purpose of the access as a mitigating factor.

21 It is fair to describe the information accessed by Mr Inglis when he committed each of the offences as innocuous. And for present purposes, Mr Inglis' purpose in accessing the IMS database in each case might conveniently be described as benign. He obtained access to the IMS database apparently for the purpose of satisfying his own curiosity about the progress of investigations into offences of which he was a victim, or as a 'shortcut' means of obtaining information about his own vehicle registration. In each case he could have obtained the same information through lawful enquiries.

22 The learned Magistrate clearly had regard to the nature of the information Mr Inglis accessed in determining the sentence. As his sentencing remarks make clear, the learned Magistrate accepted that the information accessed was information which related to Mr Inglis, and not to anyone else in the community. In my view, it can also be inferred that the learned Magistrate had regard to the purpose for which Mr Inglis accessed the IMS database, because during the hearing he confirmed with counsel that Mr Inglis could have obtained the same information lawfully.[11] The learned Magistrate clearly had regard to these matters as forming part of the factual circumstances of the commission of the offences.

23 However, it is also clear that the learned Magistrate did not take into account the nature of the information obtained, or Mr Inglis' purpose in accessing the IMS database on each occasion, as mitigating factors. That much is apparent from what his Honour said immediately after he accepted that the information related solely to Mr Inglis, and not to anyone else:[12]

But it is not the question of who was accessed it is the question of the breach of trust. (emphasis added)

24 Ground 1 contends that by not taking into account the nature of the information obtained and the purpose of the unauthorised access as mitigating factors, the learned Magistrate fell into error. In my view, ground 1 cannot be upheld. That conclusion follows when regard is had to the terms of s 440A itself, and to the gravamen of the offence disclosed by that section. That conclusion is also consistent with the authorities.

25 It is appropriate to set out s 440A of the Criminal Code in full. The section provides:

(a) a part of a computer system;

(b) an application of a computer system;

password includes a code, or set of codes, of electronic impulses;

restrictedaccess computer system means a computer system in respect of which

(a) the use of a password is necessary in order to obtain access to information stored in the system or to operate the system in some other way; and

(b) the person who is entitled to control the use of the system

(i) has withheld knowledge of the password, or the means of producing it, from all other persons; or

(ii) has taken steps to restrict knowledge of the password, or the means of producing it, to a particular authorised person or class of authorised person;

(a) to gain access to information stored in the system; or

(b) to operate the system in some other way.

(2) For the purposes of this section a person unlawfully uses a restrictedaccess computer system

(a) if the person uses it when he or she is not properly authorised to do so; or

(b) if the person, being authorised to use it, uses it other than in accordance with his or her authorisation.

(3) A person who unlawfully uses a restrictedaccess computer system is guilty of a crime and is liable

(i) gains a benefit, pecuniary or otherwise, for any person; or

(ii) causes a detriment, pecuniary or otherwise, to any person,

of a value of more than $5 000, to imprisonment for 10 years;

(i) gains or intends to gain a benefit, pecuniary or otherwise, for any person; or

(ii) causes or intends to cause a detriment, pecuniary or otherwise, to any person,

(c) in any other case, to imprisonment for 2 years.

Summary conviction penalty in a case to which paragraph (c) applies: imprisonment for 12 months and a fine of $12 000.

26 Section 440A(3) (when read with s 440A(2)) makes clear that a person commits an offence under s 440A if that person uses a restrictedaccess computer system without authority to do so, irrespective of whether the person obtains access to any information, or of the nature of any information obtained, or of how the person uses the information (if any) they obtain access to. The gravamen of the offence under s 440A is thus the 'use' (as defined) of the restricted-access computer system without authority to do so.[13]

27 The maximum penalties which apply to the offence created by s 440A indicate that Parliament viewed this offence as a serious one. Even in those cases where (as here) the offence is dealt with summarily, the maximum penalty is imprisonment for 12 months and a fine of $12,000. That is not surprising. The use of a password to restrict access to a computer system ordinarily reflects the fact that the nature of the information accessible using that computer system, or the functions performed using that system, are such that they should not be available to the community generally, whether for reasons of privacy, confidentiality, security, or safety, for example. However, Parliament has expressly identified two circumstances in relation to the commission of offences under s 440A which render such offences particularly serious, and will expose an offender to an increased maximum penalty. Those circumstances are where an offender, by using the computer system without authority, obtains a benefit, or causes a detriment, to any person.[14]

28 In determining the sentence which must be imposed on an offender under s 440A, the sentencing court must make an assessment of the seriousness of the offence in question.[15] To do so, the sentencing court will take into account the statutory penalty (having regard to the tiered sentencing structure which applies under s 440A), the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[16]

29 The question raised by ground 1 of the grounds of appeal is whether the innocuous nature of the information accessed by Mr Inglis, and the benign purpose for which he sought access to that information, constitute factors which should have been taken into account as mitigating factors that is, factors which decreased Mr Inglis' culpability for the offence or decreased the extent to which he should be punished for each offence.[17] In my view, those matters cannot be regarded as mitigating factors because they cannot be regarded as reducing an offender's culpability below the minimum established by the gravamen of the offence. That is because an offence under s 440A will be committed irrespective of whether information is obtained from the use of the computer system, or of the nature of that information, and irrespective of the purpose for, or consequences of, the unauthorised use.

30 However, that does not mean that the nature of any information obtained, or the use of any information obtained, as a result of the commission of an offence under s 440A will be irrelevant in the sentencing of an offender. Clearly, those matters can increase the seriousness of the offending conduct. That much is expressly confirmed by the terms of s 440A(3)(a) and (b). And even in cases under s 440A(3)(c), the nature of the information or the use to which it is put may increase the seriousness of the offence or constitute an aggravating factor. By way of example, obtaining unauthorised access to personal information about third parties which is particularly sensitive (such as medical records or personal financial information) may of itself increase the seriousness of the offence or may constitute an aggravating factor.

31 The fact that only innocuous information is obtained or that the unlawful access is for a benign purpose, or that the information is not disclosed to third parties may be correctly regarded as the absence of aggravating factors. But the absence of an aggravating factor does not amount to mitigation, so as to render the offender less culpable for the offending conduct. This issue was considered in SKA v The Queen[18] where Simpson J (McClellan CJ and James J agreeing) noted that:[19]

The absence of some indicia of objective gravity does not, in my opinion, amount to a mitigating circumstance. As Grove J put it in Saddler v R [2009] NSWCCA 83:

It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.

32 The fact that 'innocuous' information was obtained, or was not used, or that the unauthorised access was for what may be regarded as a benign purpose, will be relevant to assessing the objective seriousness of the offending. But other aspects of the factual circumstances such as whether the offence was planned or opportunistic, whether the offence took place in the course of the offender's employment or constituted a misuse of a position of trust or particular authority, or whether the offender was on notice that access to the computer system without authority was not permitted may bear upon the seriousness of an offence under s 440A, or may increase the offender's culpability for the offence, in a given case.

33 Counsel for Mr Inglis submitted that the approach taken by the learned Magistrate reflected the approach to s 440A which was adopted by McKechnie J in Casilli v Wehrmann.[20] Counsel for Mr Inglis submitted that the preferable approach was that of Wheeler JA in Hull v State of Western Australia[21], which he submitted was followed by Hall J in Rhatigan v Forbes.[22]

34 When the observations of Wheeler JA in Hull are properly understood, I do not detect any difference in her Honour's approach to the application of s 440A as compared with the approach taken by McKechnie J in Casilli.

35 Hull was an application for leave to appeal against the imposition of cumulative sentences of imprisonment for two offences, one of which was an offence under s 440A, on the grounds that the sentences were manifestly excessive and that the sentencing judge had not given adequate consideration to whether a sentence other than immediate imprisonment should be imposed (and specifically to whether the sentence of imprisonment should have been suspended). Miller AJA upheld the sentence imposed. RobertsSmith JA and Wheeler JA each upheld the appeal and ordered that the sentences of imprisonment be suspended. Each member of the Court delivered separate reasons for decision, and the reasoning of Wheeler JA differed from that of RobertsSmith JA. Although no clear ratio decidendi emerges from the judgements in Hull, the observations made by Wheeler JA regarding s 440A nevertheless carry considerable persuasive weight.[23]

36 In Hull, the offence under s 440A was committed when Ms Hull, who worked in the Albany Licensing Centre of the Department for Planning and Infrastructure, requested a subordinate employee to perform a vehicle registered owner check on the number plate of a vehicle belonging to a third party. In explaining why she did not consider that the seriousness of the offence was such that an immediate term of imprisonment was the only appropriate sentencing option, her Honour began by making a number of observations about how the seriousness of an offence under s 440A would ordinarily be assessed in a case to which s 440A(3)(c) applies. Her Honour observed that:

[Q]uestions of whether the information was of value or not, and of whether there was any intention to cause any other person a benefit or a detriment may be put to one side, since, if they were present, those considerations would have put the offence into a more serious category for sentencing purposes. In relation to the level of offending with which we are concerned in the case of this offender, it would appear to me that there are a number of factors which need to be taken into account in determining where on the scale of seriousness an offence lies. The three factors which are most likely to be of importance, in the usual run of cases, would be the nature of the information to which access was gained (that is, factors such as its personal sensitivity, or the potential public mischief stemming from access), the quantity of information the subject of the access, and the purpose of the offender in gaining access.[24]

37 Her Honour then went on to explain that she considered the offending conduct in that case to be of a lower level of seriousness. Her Honour did not regard the information obtained as being of particular sensitivity, and Ms Hull's purpose in obtaining that information was 'no more than the satisfaction of curiosity which was excited on the spur of the moment'.[25] In other words, the innocuous nature of the information and the benign purpose for the unauthorised access meant that the offence was properly characterised as being at the lower end of the spectrum of offending conduct under s 440A, so that an immediate term of imprisonment was not warranted.[26]

38 For present purposes, three points can be made about her Honour's observations. First, nothing in her Honour's observations suggested that the offending conduct was not serious. The conduct was characterised as sufficiently serious to warrant a suspended term of imprisonment. Secondly, her Honour's observations should not distract attention from the fact that all of the circumstances of an offence (and not just those on which her Honour focused for the purpose of explaining her conclusion on the appeal) must be taken into account in assessing the seriousness of an offence under s 440A. Finally, nothing in her Honour's observations suggested that the fact that 'innocuous' information was obtained, or that the purpose of unauthorised access might be regarded as benign, should be regarded as mitigating factors which reduce an offender's culpability, having regard to the gravamen of the offence. Instead, her Honour's observations illustrate that those factors are factors which would weigh in favour of characterising the offending conduct as being at the lower end of the scale of seriousness for offences under s 440A. But other aspects of the factual circumstances of any given case may warrant a different overall conclusion about the seriousness of the offending conduct.

39 The approach taken by Hall J in Rhatigan is consistent with this analysis. Ms Rhatigan was convicted of 23 offences contrary to s 440A(3)(c), in addition to two other offences of fraud and creating a false belief. She was a judge's associate at the time and in the course of her work she had access to a number of computer systems including an offender management database and the lower court's criminal case management database. She accessed these databases without authority in order to obtain information about friends, or persons who were associated with her friends, and on seven occasions, she passed on this information to others. She was sentenced to a total of 14 months' imprisonment, of which 8 months' imprisonment was imposed for the offences under s 440A.

40 One of the grounds of appeal in Rhatigan was whether the magistrate at first instance had failed to take into account the three factors identified by Wheeler JA in Hull. Justice Hall held that the magistrate had failed to take those factors into account, or had failed to give appropriate weight to them. In re-sentencing, his Honour took into account all of the circumstances of the offence, together with mitigating factors such as Ms Rhatigan's youth, her early plea of guilty, prior good record, and the fact that Ms Rhatigan's conduct was motivated by concern for her own safety and that of her friends. His Honour imposed concurrent sentences of imprisonment which he suspended for 18 months.

41 In Casilli the offender was a serving police officer who used the IMS database to access restricted information 15 times intermittently over a five year period, contrary to s 440A, in addition to two other offences. He was sentenced to 1 month's imprisonment, to be served concurrently, for each of the s 440A offences. The sentences were appealed on the ground that they were manifestly excessive. McKechnie J dismissed the appeal.

42 In the course of the appeal, counsel for Mr Casilli submitted that Mr Casilli accessed the information at the request of a woman with whom he was having a personal relationship, and that the information he accessed could have been lawfully obtained by that third party through other means. In doing so, counsel relied on the observations of Wheeler JA in Hull which I have set out above. McKechnie J noted that he was unable to agree completely with her Honour's analysis:

The sensitivity of information obtained may be an aggravating feature in some cases but the converse does not follow. The gravamen of the criminality is in misusing power to obtain information for private purposes, whether sensitive or not.[27]

43 His Honour went on to note, however, that the nature of the information accessed in a particular case would nevertheless be a factor to be considered in the exercise of the sentencing discretion.[28]

44 While I agree with his Honour's conclusion, it will be apparent from what I have already said that I take a different view about the import of the observations made by Wheeler JA in Hull.

45 I am satisfied that the learned Magistrate had regard to the circumstances of the offences, including the fact that the information obtained by Mr Inglis pertained only to him and was obtained by him in the relatively benign circumstances to which I have referred. While those factors are not properly characterised as mitigating factors, they were relevant in assessing the seriousness of the offences. Viewed in isolation, those factors weighed in favour of a conclusion that the offences were at the lower level of seriousness of offences of this kind. However, I am unable to accept the submission by counsel for Mr Inglis[29] that when regard is had to those circumstances, the offending is properly categorised as being at the lowest level of such offending. That submission ignores the other circumstances of this case, on which the learned Magistrate evidently relied, and which I discuss below at [62] [64]. Those circumstances support the conclusion that the offences were properly characterised as being rather more serious than those at the lowest level of offending of this kind.

47 Ground 3 of the grounds of appeal is in the following terms:

The learned Magistrate erred in law by failing to state that a reduction in sentence had been made for a plea of guilty.

48 In support of this ground of appeal, counsel for Mr Inglis relied on s 9AA of the Sentencing Act which provides:

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if

(a) The offender had been found guilty after a plea of not guilty; and

(b) There were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence 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.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2)

(a) By more than 25%; or

(b) By 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

49 The implications of s 9AA, which is a comparatively recent amendment to the Sentencing Act, have not yet been fully explored in appellate decisions in this State. One aspect of its operation which has not yet been fully considered is the extent to which s 9AA applies in relation to sentences other than sentences of imprisonment.

50 On its face, s 9AA(2) is arguably capable of application to cases where sentences other than a term of imprisonment are imposed. Although the term 'head sentence', which is used in s 9AA(2) and in s 9AA(4), has historically been more commonly associated with sentences of imprisonment, the definition of that term in s 9AA(1) does not limit its application to sentences for a term of imprisonment.[30] There is some authority which supports that conclusion. In Al Hussein v Commissioner for Consumer Protection,[31] McKechnie J observed that 'an early plea of guilty should be recognised as having mitigation in the amount of [a] fine as well as any other sentencing disposition' and cited s 9AA(2)(iii) as authority for that proposition.[32] However, his Honour's reasons do not suggest that the operation of s 9AA was the subject of argument in that appeal.

51 Subsequently, however, in Evans v Richards,[33] McKechnie J expressed what appears, with respect, to have been a more ambivalent view in relation to the operation of s 9AA. That appeal was, in part, an appeal against the imposition of a fine on the ground that it was manifestly excessive. Both of the parties to the appeal proceeded on the basis that s 9AA(2) - (4) were engaged. His Honour accepted 'that s 9AA(2) and (3) may be relevant, if only as statements of principle'.[34]

52 It is apparent that s 9AA cannot apply, in its entirety, to all sentences. The reference in s 9AA(4) to a 'head sentence for an offence [which] is or includes a fixed term' clearly indicates that that subsection applies only to sentences of imprisonment (and even then, only those that include a fixed term).[35]

53 However, irrespective of the application of s 9AA, there can be no doubt that a plea of guilty operates as a mitigating factor in those cases where the sentence imposed is other than one of imprisonment. Before s 9AA was enacted, it was uncontroversial that a plea of guilty operated as a mitigating factor. This was expressly acknowledged in the Sentencing Act.[36] It is implicit in s 9AA(6).

54 The requirements of s 9AA mark a departure from the intuitive or instinctive synthesis approach which has been the orthodox approach to the exercise of the sentencing discretion.[37] If s 9AA (other than s 9AA(4)) is applicable to all sentences, other instances of tension between its requirements and the instinctive synthesis approach may emerge. By way of example, it would be unusual to undertake a percentage-based reduction of a sentence involving a community based order, a conditional release order or an intensive supervision order. And in a case where the mitigating effect of an early plea of guilty was thought sufficient to warrant the imposition of a sentencing option under s 39 of the Sentencing Act which was different from the option which might otherwise have been appropriate, it would be odd to speak of that exercise of discretion as involving a reduction of the head sentence, as s 9AA(5) contemplates.

55 However, it is not necessary to resolve the question of the application of s 9AA for present purposes, because even if it does apply in this case, that will not change the outcome of ground 3 of the grounds of appeal. Accordingly, for present purposes I will proceed on the assumption that s 9AA (apart from s 9AA(4)) is capable of application in this case.

56 An early plea of guilty will ordinarily (although not inevitably) result in a reduction of the sentence which would have been imposed.[38] Where a sentencing judge or magistrate does not make specific reference to a percentage reduction for a plea of guilty, two explanations are open.[39] First, it may be that no discount was considered appropriate. In such a case, if the mitigating impact of an early plea of guilty is not reflected in the sentence, and the appeal court considers that it should properly have been, with the result that the sentence imposed is manifestly excessive, that may reveal an implied error in the exercise of the sentencing discretion.[40]

57 Alternatively, it may be that a discount was given but no specific reference to the discount was made. The failure to state the discount will constitute an error of law for failure to exercise the sentencing discretion in accordance with the requirements of s 9AA(5).

58 In the circumstances of this case, Mr Inglis pleaded guilty at the earliest opportunity. The learned Magistrate made no mention of that plea. However, the sentencing hearing was a relatively short one, and at the outset of that hearing, Mr Inglis entered a plea of guilty in respect of each offence. After hearing counsel's submissions, his Honour made brief sentencing remarks which evidently focused on the issues raised by counsel's submissions. Viewed in that context, and having regard to the quantum of the fine imposed, I have reached the conclusion albeit not without some reservations - that his Honour took the plea of guilty into account, but failed to state that he had done so, and how. In my respectful view, that constituted an express error in his Honour's exercise of the sentencing discretion, having regard to the requirements of s 9AA(5).

59 However, that does not necessarily mean that ground 3 of the grounds of appeal must be upheld and the appeal allowed. Even if a ground of appeal might be decided in favour of an appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[41] The discretion is applicable in appeals against sentence as well as in appeals against conviction.[42]

60 In order to determine whether a substantial miscarriage of justice has occurred, it is necessary to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance, then the appeal court would not be entitled to exercise the discretion to dismiss the appeal on the basis that no substantial miscarriage of justice had occurred. On the other hand, if, despite the error made in the lower court, the same sentence ought to have been imposed then it is open to the appeal court to exercise the discretion to dismiss the appeal.[43] If the sentence imposed is consistent with a discount having been given for a plea of guilty, no miscarriage of justice will have occurred.[44]

61 The maximum penalty for each of the offences in this case was imprisonment for 12 months and a fine of $12,000. As I have observed, those maxima suggest that the Parliament considered that offences under s 440A even those where no benefit or detriment was caused to any person are of a serious nature.

62 Turning to the circumstances of the offending conduct in this case, I am unable to accept the submission of counsel for Mr Inglis that these offences lay at the least serious end of the spectrum of offences under s 440A(3)(c). Notwithstanding the fact that the information Mr Inglis obtained was 'innocuous' and the fact that his purpose in seeking the information was benign, there were three aggravating factors (which were referred to by the learned Magistrate) which took these offences out of the lowest level of seriousness for offending of this kind. First, when he committed the offences, Mr Inglis was a police officer who had been authorised to access the IMS database. His offending reflected a breach of the trust placed in him as a serving police officer with access to the highly sensitive information stored in the IMS database. Secondly, the three offences were committed over a period of nine months. Thirdly, at the time when he committed the offences, Mr Inglis had already been the subject of disciplinary proceedings at which time the restrictions concerning access to IMS had been 'clearly brought home' to him.[45] Nevertheless, he failed to turn his mind to the fact that access on these occasions was not authorised. And that was so despite the fact that on each occasion, when Mr Inglis accessed the IMS database, the system gave him an express 'pop-up' reminder that access to the database was permitted for work-related purposes only.

63 While Mr Inglis was of previous good character, and had good antecedents, that is hardly surprising for a person who is a serving police officer. The impact of those good antecedents, however, is in my view largely ameliorated by the fact that Mr Inglis was only able to commit the offences by virtue of his position as a police officer, in the course of which he was given access to the IMS database.

64 In addition, in my view, when an offence under s 440A is committed by a person who is given access to a restricted-access database in the course of their employment, as is the case in relation to police officers who have access to the IMS database, the sentence imposed should reflect the need for general deterrence as well as personal deterrence.

65 The final factor for consideration is the fact that Mr Inglis' plea of guilty was given at the earliest opportunity. That early guilty plea was a mitigating factor. It avoided the need for a trial, and the resources which such a trial would have entailed. Whether or not a percentage discount was required to have been applied under s 9AA of the Sentencing Act, the early plea warranted a not insignificant reduction in the extent to which Mr Inglis was punished.

66 I turn to consider the range of sentences customarily imposed for offences of this kind. Counsel for Mr Inglis handed up a table setting out what he submitted were the facts and circumstances of various instances of offences under s 440A which have been dealt with in the Magistrates Court. The list did not purport to be exhaustive of all of the cases under s 440A dealt with in that Court. I received the table on the basis that it constituted a legal submission, as opposed to evidence of other matters dealt with in the Magistrates Court, although that characterisation may well be open to doubt. However, it matters not because in the end the table was of little assistance. Counsel for the respondent was not in a position to indicate whether the facts and circumstances of the cases referred to in the table were accurately set out. In addition, the sentences in each case were not the subject of published sentencing remarks. Consequently, it was not possible to identify the reasoning which led the Magistrates Court to impose the sentence in each case.

67 There have been few appellate decisions in relation to sentences for offences under s 440A. In addition to those to which I have already referred, I should also mention, for completeness, Taylor v The State of Western Australia.[46] Ms Taylor was convicted following fast-track pleas of guilty to two counts of acting corruptly in the performance or discharge of the functions of her employment as a public officer so as to gain a benefit, and seven counts of unlawfully using a restricted-access computer system contrary to s 440A(3)(c). She was sentenced to a total effective sentence of 2 years and 4 months' imprisonment, comprising 2 years' imprisonment (concurrent) on each count of official corruption; 4 months' imprisonment on one of the counts under s 440A(3)(c) (to be served cumulatively on the other sentences); and either 4 months' or 6 months' imprisonment on the remaining counts under s 440A(3)(c) (to be served concurrently with the other sentences). She sought leave to appeal against those sentences on the basis that they were either manifestly excessive or breached the totality principle.

68 At the time of the offences Ms Taylor was employed by the Department of Corrective Services. For the purpose of performing her duties, she had access to a restricted-access computer database containing information maintained by the Department and by the police. The offences under s 440A(3)(c) were committed when Ms Taylor accessed the database to obtain personal information about various individuals, which she then disclosed to inmates of the prison at which she worked. The trial judge found that that unlawful access had a real prospect of endangering the people about whom information was being disclosed. McLure P, with whom Mazza JA agreed, refused leave to appeal. Her Honour observed that all of the offences were very serious, and involved 'gross breaches of trust that strike at the very heart of the administration of the criminal justice system.'[47] The circumstances in Taylor involved far more serious criminality than in this case, as was reflected in the fact that an immediate term of imprisonment was the appropriate sentence.

69 The appellate decisions in relation to s 440A(3) illustrate that the offence under s 440A may be committed in a wide range of circumstances. However, the limited number of decisions means that it is not yet possible to identify a range of sentences customarily imposed for offences under s 440A(3)(c).

70 In light of these considerations, I turn to consider the sentence imposed by the learned Magistrate. If it is assumed that the learned Magistrate gave Mr Inglis a 25% discount in the fine he would otherwise have imposed, then in order to reach his conclusion that a single fine of $8,000 should be imposed, his starting point would have been a single fine of just under $10,700. That would have been equivalent to a starting point of just over $3,500 per offence and would have amounted to just under 30% of the maximum fine (of $12,000 per offence). Had a discount of less than 25% been given for the plea of guilty, the starting point would obviously have been lower.

71 Having regard to the matters set out above, in my view the fine of $8,000 which was imposed, incorporating a discount for Mr Inglis' plea of guilty, was not manifestly excessive. Having regard to the seriousness of the offences, the sentence imposed was not, in my view, outside the proper exercise of the sentencing discretion in this case. Consequently, in my view, no miscarriage of justice occurred as a result of the failure by the learned Magistrate to state the reduction in the fine which he had given for Mr Inglis' early plea of guilty.

72 Ground 3 of the grounds of appeal should be dismissed.

73 Ground 2 of the grounds of appeal is in the following terms:

The learned Magistrate erred in law by imposing a sentence that was manifestly excessive, particularly having regard to:

(a) the circumstances surrounding the offences;

(b) the mitigating factors;

(c) the appellant's antecedents; and

(d) the appellant's plea of guilty at the first opportunity.

74 I have already dealt with the factors relevant to a consideration of whether the fine imposed was manifestly excessive.[48]

75 Counsel for Mr Inglis made clear that ground 2 was a 'conclusion based on the first two grounds', and 'doesn't have much life on its own'.[49]

76 In view of my conclusion in relation to grounds 1 and 3, and for the reasons set out above at [61] [71], ground 2 has no reasonable prospect of success. Leave to appeal on ground 2 should be refused.

[1] Pursuant to s 54 of the Sentencing Act 1995 (WA).

[4] Hull v State of Western Australia [2005] WASCA 194.

[8] Criminal Appeals Act 2004 (WA) s 9(1).

[9] Criminal Appeals Act 2004 (WA) s 9(2).

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

[13] Cf Hull v State of Western Australia [2005] WASCA 194 [4] (Wheeler JA).

[14] Criminal Code s 440A(3)(a) and (b).

[15] Sentencing Act 1995 (WA) s 6(1).

[16] Sentencing Act 1995 (WA) s 6(2).

[17] Sentencing Act 1995 (WA) s 8(1).

[18] SKA v The Queen [2009] NSWCCA 186.

[19] SKA v The Queen [2009] NSWCCA 186 [194] (Simpson J, McClellan CJ & James J agreeing).

[20] Casilli v Wehrmann [2014] WASC 319 [50].

[21] Hull v State of Western Australia [2005] WASCA 194 [5].

[22] Rhatigan v Forbes [2009] WASC 368 [31] - [36].

[23] See Casilli v Wehrmann [2014] WASC 319 [49] (McKechnie J).

[24] Hull v State of Western Australia [2005] WASCA 194 [6].

[25] Hull v State of Western Australia [2005] WASCA 194 [7].

[26] Hull v State of Western Australia [2005] WASCA 194 [7].

[27] Casilli v Wehrmann [2014] WASC 319 [50] (McKechnie J).

[28] Casilli v Wehrmann [2014] WASC 319 [62] (McKechnie J).

[30] CE Oates and Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [48] (Kenneth Martin J).

[31] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [14] (McKechnie J).

[32] See also CE Oates and Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [36] - [42] (Kenneth Martin J).

[33] Evans v Richards [2015] WASC 53.

[34] Evans v Richards [2015] WASC 53 [38] (McKechnie J). It is not clear whether his Honour's later observation (at [40]) that 'the provisions of s 9AA are therefore inapplicable' was intended to refer to s 9AA in its entirety, or to s 9AA(4) in particular.

[35] Evans v Richards [2015] WASC 53 [38] - [39] (McKechnie J); CE Oates and Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [46] (Kenneth Martin J).

[36] Sentencing Act 1995 (WA) s 8(2) (now repealed).

[37] Cf Seeto v State of Western Australia [2014] WASCA 221 [60] - [72] (Hall J).

[38] Cf Moody v French [2008] WASCA 67 [35] (Steytler P, Wheeler, McLure & Buss JJA).

[39] Cf Rogers v Hitchcock [2015] WASC 120 [55] (Hall J).

[40] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).

[41] Criminal Appeals Act 2004 (WA) s 14(2).

[42] Abeyakoon v Brown [2011] WASCA 63 [32] (the Court); Wallam v Dent [2008] WASC 170 [30] - [31] (Jenkins J).

[43] Wallam v Dent [2008] WASC 170 [31] (Jenkins J).

[44] Cf Rogers v Hitchcock [2015] WASC 120 [56] (Hall J).

[46] Taylor v The State of Western Australia [2015] WASCA 72.

[47] Taylor v The State of Western Australia [2015] WASCA 72 [25], [32] (McLure P, Mazza JA agreeing).

[48] Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia [2014] WASCA 207 [193] - [194] (Buss JA, Martin CJ & Mazza JA agreeing).