JACKMAN -v- DAVIDSON & ANOR [2019] WASC 364 (11 October 2019)

(3) one charge of giving false personal details to police contrary to s 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA) (NE 259/2019);

(4) one count of breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA) (NE 260/2019);

(5) one charge of careless driving causing bodily harm contrary to s 59BA(1) of the Road Traffic Act (WU 26/2019);

(6) one charge of driving a motor vehicle with a blood alcohol content exceeding 0.05 g per 100 ml contrary to s 64AA(1) of the Road Traffic Act (WU 27/2019); and

(7) one charge of failing to comply with a surrender notice in relation to a vehicle contrary to s 79BB(5) of the Road Traffic Act (WU 71/2019).

1. The magistrate imposed terms of imprisonment in respect of the careless driving causing bodily harm charge (WU 26/2019) and the two no authority to drive charges (WU 28/2019 and NE 225/2019). The total effective sentence imposed for the three offences was a term of 18 months' imprisonment. The magistrate declined to make a parole eligibility order.
2. Mr Jackman now seeks leave to appeal against the terms of imprisonment imposed, contending that the individual terms of imprisonment were manifestly excessive and, further, that the total effective sentence breached the totality principle. Mr Jackman also relies upon grounds alleging express error, namely, that the magistrate failed to make an order for parole eligibility.
3. For the following reasons, I have determined that leave to appeal should be granted and the appeal should be allowed with respect to ground 4 which concerns Mr Jackman's eligibility for parole. The appeal, otherwise, is dismissed.
4. In these reasons for decision, I will consider the following:

1. On 6 June 2019, Mr Jackman appeared in the Magistrates Court and was sentenced in respect of the eight offences. I will outline the procedural history and facts of the respective offences before turning to the sentences imposed.
2. On 16 February 2019, Mr Jackman committed one charge of careless driving causing bodily harm contrary to s 59BA(1) of the Road Traffic Act (WU 26/2019), one charge of driving a motor vehicle with a blood alcohol content exceeding 0.05 g per 100 ml contrary to s 64AA(1) of the Road Traffic Act (WU 27/2019) and one charge of no authority to drive contrary to s 49(1)(a) and (3)(b) of the Road Traffic Act (WU 28/2019).[1]
3. The facts upon which Mr Jackman was sentenced, and which were accepted by his counsel, were in the following terms:[2]

At 12 am on 16 February 2019, the accused drove a black Holden Commodore on Trenton Street, Wiluna. As the accused drove past unit 1, number 24 Trenton Street, he struck a pedestrian, who impacted with the bonnet of the car, causing him to fall to the ground and sustain soft tissue injuries to his lower limbs. The accused attempted to leave the scene, but was assaulted by unknown persons on Trenton Street, Wiluna, who had apparently witnessed the collision.

At 12.30 am the same day, the accused made his way to the police station to seek help. The accused and the victim were both conveyed to the local clinic for treatment. Whilst there, the accused underwent a breath analysis test and was found to be intoxicated. Whilst under the requirement to identify the driver at the time and place of the collision, he stated, 'It was me.' And, further, at 12 am on 16 February 2019, the accused drove a black Holden Commodore on Trenton Street, Wiluna. It was ascertained he had consumed alcohol. He underwent a breath analysis test, which gave a reading of zero point one two eight grams of alcohol per 210 litres of breath, calculated to zero point zero seven eight grams of alcohol per 100 millilitres of blood at the time of occurrence.

And, further ... at 12 am on 16 February 2019, the accused drove that black Holden Commodore ... It was ascertained that he was not authorised to drive a motor vehicle. He has never held an Australian drivers licence and was disqualified from holding or obtaining a drivers licence in Carnarvon Magistrates Court on 20 February 2017. He is not eligible to apply for a licence until 13 February 2020.

1. On 19 March 2019, Mr Jackman failed to appear at the Wiluna Magistrates Court in relation to the three offences and was convicted of the offences in his absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA). A summons was issued for Mr Jackman to appear in court on 30 April 2019 to be sentenced.[3]
2. On 18 April 2019, Mr Jackman committed one charge of no authority to drive contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act (NE 225/2019) and one charge of driving a motor vehicle under the influence of alcohol contrary to s 63(1)(a) of the Road Traffic Act (NE 226/2019).[4] Mr Jackman was granted bail to reappear at Newman Magistrates Court on 14 May 2019.[5] Further, the police served Mr Jackman with a vehicle surrender notice for the vehicle he was driving at the time pursuant to s 79BA of the Road Traffic Act.[6]
3. The facts for this set of offending were in the following terms:[7]

At about 6.40 pm on 18 April 2019, the accused drove [a] Toyota Land Cruiser on a southerly direction on Nimingarra Drive in Newman. Inquiries identified that the accused never held a driving licence and was subject to current court disqualifications after appearing at Carnarvon Magistrates Court on 20 February 2017. The accused is not eligible to apply for his licence until 13 February 2020. He was charged and failed to appear in Newman Magistrates Court. And, further, it was ascertained the accused had consumed alcohol.

As a result of this, the accused underwent a breath analysis test, which gave a reading of zero point two four grams of alcohol per 210 litres of breath, calculated to zero point two one grams of alcohol per 100 millilitres of blood at the time of occurrence. He was served a disqualification notice from 18 April to 18 June 2019. He was charged and bailed at Newman Magistrates Court.

1. On 25 April 2019, Mr Jackman failed to surrender his vehicle in accordance with the surrender notice. Further, on 30 April 2019, Mr Jackman failed to attend court and a warrant was issued for his arrest.[8]
2. On 22 May 2019, Mr Jackman was apprehended and at that time committed one charge of giving false personal details to police contrary to s 16(8) of the Criminal Investigation (Identifying People) Act (NE 259/2019).[9] Mr Jackman was also charged with one charge of breaching a bail undertaking contrary to s 51(1) of the Bail Act by failing to appear in court on 14 May 2019 in accordance with the bail undertaking entered on 18 April 2019 (NE 260/2019).[10]
3. The facts in relation to this offending are as follows:[11]

At about 11.40 pm on Wednesday, 22 May 2019, the accused was at unit 1, number 2 Corunna Way, Newman. The accused had been involved in family violence with his partner that resulted in police attendance. When questioned by police, he gave the name of Kamos Jackman and a date of birth, 19 August 1987. This was recorded by First Class Constable Grimshaw on his police notebook. After speaking with the accused's partner, police ascertained the accused had provided a false name.

Police asked the accused at least four more times to provide the correct name. However, he continued to provide the name of Kamos Jackman. Police conducted a search of the information management system and confirmed with a photograph that the accused was in fact Kyrone Sampson. And further ... on Thursday, 18 April 2019, the accused was released to bail from the Newman Police Station after signing a bail undertaking. Part of the undertaking was the accused would appear at the Newman Magistrates Court at 10 am on Tuesday, 14 May 2019.

The accused failed to appear on that date and, as a result, a warrant for their arrest was issued. At about 11.50 pm on Wednesday, 22 May 2019, the accused was arrested on the warrant, the present charge was preferred. No explanation was provided.

1. On 23 May 2019, a prosecution notice was filed alleging Mr Jackman committed one charge of failing to comply with a surrender notice in relation to a vehicle contrary to s 79BB(5) of the Road Traffic Act (WU 71/2019).[12]
2. The facts in relation to this offence are as follows:[13]

On Thursday, 18 April 2019, the accused was issued with a surrender notice at the Newman Police Station for a Toyota Land Cruiser. Police had earlier stopped that vehicle with the accused being the driver. He was subsequently charged with driving under the influence and no authority to drive, suspended. The accused was issued with a surrender notice with instructions to surrender the vehicle to Ulti-Mech, Whaleback Drive, Newman, by 25 April 2019.

He failed to surrender the vehicle and it remains outstanding with its whereabouts unknown ... On 23 May 2019, the accused was spoken to and advised he would be summonsed for the offence.

1. On 6 June 2019, Mr Jackman entered pleas of guilty and was sentenced in respect of all offences. For the purposes of sentencing, it was noted that the offending constituted Mr Jackman's fifth conviction for driving without authority and second conviction for driving under the influence.[14]
2. At the hearing, Mr Jackman's counsel submitted that any term of imprisonment imposed should be suspended, either with or without conditions.[15] In the alternative, it was submitted that if an immediate term of imprisonment was to be imposed, it should be backdated to 22 May 2019 and Mr Jackman should be made eligible for parole.[16]
3. The prosecutor submitted that a term of immediate imprisonment was warranted in the circumstances, referring to matters of personal and general deterrence.[17] The prosecutor did not make any submissions on the matter of parole eligibility.
4. The magistrate sentenced Mr Jackman to a total effective term of 18 months' imprisonment, backdated to 22 May 2019.[18] The magistrate ordered that Mr Jackman not be made eligible for parole.[19]
5. The table below outlines the offences and the respective individual terms of imprisonment imposed by the magistrate:[20]

14 months' driver's licence disqualification (cumulative)

10 months' driver's licence disqualification (cumulative)

9 months' driver's licence disqualification (cumulative)

9 months' driver's licence disqualification (cumulative)

30 months' driver's licence disqualification (cumulative)

18 months' immediate imprisonment, backdated to 22 May 2019, with no eligibility for parole.

1. The grounds of the appeal are in the following terms:[21]
   1. The learned Magistrate made an express error by not properly taking into account the contribution of the victim to the offence as a factor in mitigation.
   2. The learned Magistrate imposed a sentence that was manifestly excessive, taking into account the circumstances of the offending and any mitigating factors for the Appellant.
   3. The learned Magistrate erred in law by infringing the totality principle when making the terms of imprisonment cumulative.
   4. The learned Magistrate erred in law by finding that the Appellant should not be made eligible for parole pursuant to s 89(4) of the Sentencing Act 1995 (WA).
   5. The learned Magistrate erred by failing to give Counsel and Prosecution an adequate opportunity to address any issues relevant to the assessment of parole eligibility.
   6. The learned Magistrate erred in concluding that a sentence of immediate imprisonment was the only appropriate sentencing option, when in all the circumstances it was open to suspend the term of imprisonment.
2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[22] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or of both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice.[23]
3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[24] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[25]
4. The court may dismiss or allow the appeal or set aside or vary the sentence imposed and substitute it with the sentence that should have been imposed.[26] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
5. In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[27] The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence.

1. By ground 1, Mr Jackman contends that the magistrate made an express error by failing to 'properly take into account the contribution of the victim' to the offence of careless driving causing bodily harm (WU 26/2019) as a factor in mitigation. Mr Jackman contends that the movement of the pedestrian onto the road distinguishes the present case from more serious offending where a pedestrian is hit by a vehicle on the sidewalk.[28] Mr Jackman contends that the magistrate failed to give any weight to that factor and, thereby, contends that this constitutes an express error.[29]
2. A contention that a magistrate, in exercising their sentencing discretion, has failed to give any or insufficient weight to a relevant consideration to the exercise of that discretion will only constitute an express error if it constitutes a failure to exercise the discretion conferred on the magistrate.[30] For example, in circumstances where the magistrate plainly ignores a relevant sentencing factor.[31] In the absence of a failure to exercise the discretion, ordinarily a weighting factor is not, of itself, an independent ground which justifies appellate intervention.[32]
3. The facts relied upon by the prosecutor contended that when Mr Jackman was driving, he struck a pedestrian who 'impacted with the bonnet of the car'.[33] Counsel for Mr Jackman submitted in his plea in mitigation that the collision occurred on the road.[34] The prosecutor contradicted that assertion, stating that when Mr Jackman was driving he must, necessarily, have been 'oblivious to a pedestrian stepping from the verge onto the road'.[35] The prosecutor questioned the truthfulness of the assertion.[36] Counsel for Mr Jackman made further submissions in support of the finding that the incident occurred on the road.[37] In discourse with counsel, his Honour observed that 'it's not clear where the pedestrian was' and that he 'couldn't in fairness assume that it was on the verge or pavement'.[38]
4. His Honour then delivered his sentencing remarks and made the factual finding that Mr Jackman 'struck the pedestrian on the road surface or nearby'.[39] Later in his sentencing remarks, his Honour observed that Mr Jackman was required to maintain a 'proper lookout for anyone else who might be on or near or adjacent to the road surface'.[40] Further, his Honour referred to the pedestrian being on or near the edge of the road.
5. His Honour also observed that 'pedestrians are allowed to be on the road'.[41] Mr Jackman submits that his Honour has thereby made an error as pedestrians do not have an absolute right to be on the road.[42] I consider that the magistrate was doing no more than saying that pedestrians do, necessarily, enter roadways.
6. I therefore find that ground 1 has not been made out. The magistrate made a finding that the pedestrian was struck on the road surface or adjacent to the road surface. The relevance of that finding is subsumed in grounds 2 and 6 which claim that the term of imprisonment imposed was manifestly excessive. Determining whether the sentence was manifestly excessive requires a consideration of the circumstances of the offending. The fact that the pedestrian was on or adjacent to the road surface is a factor relevant in determining the seriousness of the offence. Accordingly, I now turn to grounds 2 and 6.

1. By ground 2, Mr Jackman contends that the magistrate erred in law by imposing a term of imprisonment that was manifestly excessive. By ground 6, Mr Jackman contends that the magistrate erred in law by imposing a term of immediate imprisonment rather than suspending the term of imprisonment. During the hearing of the appeal, counsel for Mr Jackman clarified that ground 2, properly understood, only contends that the term of imprisonment was manifestly excessive as to the length of the term in respect of the careless driving charge and not the other two charges. However, ground 6 contends that all three terms of imprisonment were manifestly excessive for the reason that the type of sentence, being immediate imprisonment, was excessive.
2. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly excessive. That is, in all the circumstances, including those personal to the appellant and the circumstances of the offending, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the appellate court to be satisfied that the sentence is unreasonable or plainly unjust.[43] The excess must be plainly apparent. Mr Jackman appeals in respect of the length of the respective term of imprisonment and the type of sentence, being immediate imprisonment.
3. To determine whether a sentence is manifestly excessive requires consideration of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of the kind in question and the personal circumstances of the offender.[44]
4. Section 6(4) of the Sentencing Act 1995 (WA) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Pursuant to s 6(2) of the Sentencing Act, the seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of the offence including the vulnerability of any victim of the offence and any aggravating and mitigating factors.
5. Pursuant to s 76 of the Sentencing Act, a court may impose a suspended term of imprisonment being in aggregate of 60 months or less for a period not more than 24 months. A term of suspended imprisonment is not to be imposed unless the term, if it would not be possible to suspend, would be appropriate in all the circumstances.[45] Under s 39 and the related provisions of the Sentencing Act, a magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
6. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal consideration of rehabilitation.
7. I now consider the factors applicable to determining whether the length and type of sentence imposed was manifestly excessive.
8. It is not disputed that the seriousness of the offending in this case was such that a sentence of imprisonment was warranted. Mr Jackman's claim of manifest excess requires determining whether the length of the individual term of imprisonment in respect of the careless driving charge was excessive and, further, whether the three terms of imprisonment should have been suspended.

1. The maximum penalty for the offence of careless driving contrary to s 59BA of the Road Traffic Act is 3 years' imprisonment or a fine of 720 penalty units ($36,000) and an order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 3 months.[46]

1. Turning to Mr Jackman's personal circumstances, he was 31 years of age at the time of sentencing. Mr Jackman was undertaking a mechanics course at TAFE and was involved with ranger work in Wiluna. Further, he had begun living with an aunt in his community and had ended a relationship that was causing him personal issues.[47]
2. Mr Jackman has a lengthy criminal record which comprises convictions for traffic offences, dishonesty offences, criminal damage, assault and aggravated burglary. Relevantly, Mr Jackman has 11 convictions for no authority to drive (including six driving under suspension offences), two no driver's licence offences, three driving under the influence of alcohol offences, two stealing a motor vehicle and driving recklessly offences and one dangerous driving offence.[48]

1. The seriousness of the breach of s 59B of the Road Traffic Act arises from the combination of Mr Jackman's blood alcohol level and his failure to pay attention to such an extent that he did not observe a pedestrian on the road or near the road in circumstances when he ought to have done so. The victim suffered bodily harm from the collision. The injuries suffered by the victim were described by the magistrate to be substantial.[49] His Honour, in making that finding, relied upon photographs of the injuries to the leg of the victim that were received at sentencing.[50]
2. The magistrate found that the pedestrian was on the road surface or nearby. It is relevant to consider the extent to which the manner of driving carelessly contributed to the incident and the fact that the greater Mr Jackman's responsibility for the incident which caused the bodily injury, the greater his culpability.[51] Mr Jackman was sentenced on the finding that the pedestrian was on or adjacent to the road. It is not contended that Mr Jackman mounted the pavement. Mr Jackman failed to properly lookout for pedestrians in circumstances where he should have. At the relevant time, he was intoxicated.
3. Mr Jackman was assaulted at the scene by other unknown persons.[52] However, there is no evidence concerning the nature of the assault or whether any injuries were inflicted. Accordingly, this factor can only be given limited weight.
4. At the time of the offending, Mr Jackman had no authority to drive. The offending was Mr Jackman's fifth conviction for driving whilst under suspension or while disqualified.

1. The magistrate stated 'in respect of what could be said in your favour by way of mitigation, [it] is quite limited'.[53] I agree with his Honour.
2. Mr Jackman entered his plea of guilty at the first reasonable opportunity and was therefore afforded a 25% discount under s 9AA of the Sentencing Act.

1. Mr Jackman referred to one sentencing authority regarding careless driving causing death: Wallace v Curyer.[54] Mr Jackman referred to cases regarding offences for dangerous driving causing bodily harm or grievous bodily harm: Drage v The State of Western Australia[55] and Rubin v The State of Western Australia.[56] I have considered those authorities. There are no directly comparable cases which provide a yardstick in respect of the adequacy of the sentence imposed. In Wallace v Curyer a term of imprisonment of 9 months, suspended for 12 months, was imposed. However, in Wallace v Curyer the offender was youthful, without a relevant criminal record and was fatigued. Mr Jackman is not youthful, was intoxicated, driving without authority, caused injury to the victim that was described by the magistrate as substantial[57] and has an extensive and relevant criminal record.
2. After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors as well as comparable cases, I am of the view that the term of immediate imprisonment of 12 months in respect of the careless driving charge was not manifestly excessive. Mr Jackman has an appalling driving record, displaying a recalcitrant attitude to his obligations as a road user. The magistrate correctly found that Mr Jackman's record of traffic offending was appalling.[58] The offending occurred whilst Mr Jackman did not hold a driver's licence and was intoxicated. Mr Jackman's personal circumstances do not alleviate the risk he poses to the community.

1. The maximum penalty for the no authority to drive charges contrary to s 49 of the Road Traffic Act, being a subsequent offence, was a fine of not less than 20 penalty units ($1,000) or more than 80 penalty units ($4,000) and not more than 18 months' imprisonment.[59] The court must order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.[60]
2. Mr Jackman does not appeal the length of the term of imprisonment of 6 months imposed for the two offences but contends that the term should have been suspended.
3. The offence committed on 16 February 2019 was Mr Jackman's fifth offence of driving without authority or while disqualified contrary to s 49(1)(a) and (3)(b) or (3)(c) of the Road Traffic Act.[61] A term of immediate imprisonment is ordinarily imposed for repeat offenders with a discernable range of 6 ‑ 8 months' imprisonment evident in appellate cases.[62] Accordingly, I find that a term of 6 months' immediate imprisonment for the offences was within the permissible range given Mr Jackman's previous similar offending and the serious nature of the offences.
4. For the reasons outlined, the magistrate did not err in requiring the three respective terms of imprisonment to be served immediately.

1. By ground 3, Mr Jackman contends that the total effective sentence breached the totality principle. This ground asserts implied error.
2. Mr Jackman submits that by the magistrate making the 6 month term of imprisonment for the additional no authority to drive offence cumulative on the 12 month sentence imposed for the careless driving and no authority to drive offences, the magistrate infringed the first limb of the totality principle.[63] Therefore, Mr Jackman contends that a total effective sentence of 12 months' imprisonment would have been sufficient in the circumstances.[64]
3. The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.[65] The total effective sentence must not be unreasonable or plainly unjust.
4. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally, all relevant sentencing factors and total effective sentences imposed in comparable cases.[66]
5. Mr Jackman submits that the total effective sentence of 18 months' imprisonment was inappropriate, considering the overall criminality of his offending. In support of this submission, Mr Jackman refers to the fact that he entered early pleas of guilty, received punishment from being disqualified from driving, was assaulted at the scene by witnesses, had protective factors in place and had a desire to address his alcohol issues in the community.[67]
6. I now turn to consider the factors in determining whether the length of the term of imprisonment breached the totality principle.
7. As previously outlined, the maximum penalty for the offence of careless driving contrary to s 59BA of the Road Traffic Act is 3 years' imprisonment or a fine of 720 penalty units and an order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 3 months. Further, the maximum penalty for the offence of driving with no authority contrary to s 49 of the Road Traffic Act for a subsequent offence is 20 penalty units ($1,000) or more than 80 penalty units ($4,000) and not more than 18 months' imprisonment.
8. I am of the view that the sentence of 18 months' immediate imprisonment does not breach the totality principle. In all the circumstances, it was open to his Honour to impose an 18 month term of imprisonment. That term provides both adequate personal deterrence and punishment, having regard to the seriousness of the offending and the factors personal to Mr Jackman.

1. By ground 4, Mr Jackman contends that the magistrate erred in law by finding that Mr Jackman should not be made eligible for parole pursuant to s 89(4) of the Sentencing Act.
2. By ground 5, Mr Jackman contends that the magistrate erred by failing to give counsel and the prosecutor an adequate opportunity to address any issues relevant to the assessment of parole eligibility. This ground, therefore, contends that the magistrate denied procedural fairness to Mr Jackman. That is, there has been a denial of an opportunity to make submissions and that denial is material to the Court's decision.[68] Mr Jackman also contends in ground 5 that the magistrate erred in finding that he had no willingness to change in circumstances where the magistrate did not provide Mr Jackman notice that he was not prepared to make that finding and where it was not specifically controverted by the prosecutor.[69] It is asserted by Mr Jackman that that finding was a material consideration in the magistrate determining not to grant eligibility for parole.
3. Counsel for Mr Jackman during his plea in mitigation expressly submitted that the magistrate should make an order granting parole eligibility.[70] The prosecutor did not make any submissions regarding parole eligibility. His Honour in his sentencing remarks considered the question of whether to order eligibility for parole. His Honour stated that Mr Jackman would not be eligible for parole.[71] At the conclusion of delivering the sentencing remarks but before formally imposing sentence, counsel for Mr Jackman further addressed his Honour with respect to parole eligibility.[72] The magistrate permitted further submissions to be made by counsel.[73]
4. Counsel for Mr Jackman observed that he was unaware that parole was opposed or not supported and, therefore, did not outline why parole should be granted. Counsel then made submissions regarding the granting of parole, specifically addressing his Honour's concerns as to why parole should not be granted. His Honour then observed that submissions had now been made on behalf of Mr Jackman and that after 'carefully consider[ing] the issue of parole eligibility [...] the reasons I've given previously for [Mr Jackman] not being eligible for parole persist'.[74]
5. Accordingly, Mr Jackman's contention that he was not granted procedural fairness is untenable. His Honour clearly received submissions from counsel and then determined the issue of parole.
6. The further contention is that during the plea in mitigation it was asserted on behalf of Mr Jackman that he was willing to change. Given that this submission was not controverted by the prosecutor, if the magistrate was not prepared to accept that uncontended fact then the magistrate was required to give Mr Jackman notice of such.[75] His Honour, when considering the issue of parole, stated that 'a significant factor from the court's point of view is your apparent unwillingness to change behavior and that to some extent is demonstrated by your unlawful behavior in Newman on 18 April'.[76] Counsel for Mr Jackman then made further submissions regarding his willingness to change, submitting that he 'does have a willingness to change ... he did think about matters in custody and has come to realise he really needs to address his alcohol and he specifically expressed to me that he wants to do counselling for his drug and alcohol'.[77] His Honour then, as I have observed, directly considered these further submissions concerning the parole issue and then stated that he finds that there has been an unwillingness to change.
7. I find that there was no procedural unfairness. The magistrate received submissions on the issue and made a finding. Accordingly, ground 5 is without merit.

1. In determining that Mr Jackman should not be made eligible for parole, the magistrate referred to his poor criminal record, the seriousness of the offences committed, his unwillingness to change his behavior based on the repeated nature of the offences and failure to comply with previous community dispositions.[78]
2. Section 89 of the Sentencing Act, relevantly, provides:

(1) A court sentencing an offender to a fixed term of imprisonment may make an order (a parole eligibility order) that the offender be eligible to be considered for parole in respect of that term by the Prisoners Review Board.

...

(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least one of the following 4 factors -

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

1. Section 89(4) of the Sentencing Act provides that if one or more of the factors are in existence, the court has a discretion not to order parole eligibility.
2. If one or more of the factors in s 89(4) are present, the sentencing magistrate is required, without any predisposition, to take all relevant considerations into account, including the factors identified in s 89(4), in deciding whether a parole eligibility order should be made.[79] There is no bias in favour of eligibility for parole.[80] Where the discretion is enlivened, there is no presumption that parole eligibility should, or generally should not, be ordered.
3. In circumstances where the magistrate's ability to exercise the discretion to refuse parole has been enlivened by the factors in s 89(4), it will be ordinarily difficult to show that the discretion has been miscarried.[81] An appellate court cannot intervene for the reason that the court would have exercised the discretion differently.[82] The appellant must show that an error of a kind referred to in House v King[83] has occurred. Even if the specific nature of the error is not identified, the exercise of the discretion can be reviewed if error is inferred.
4. The magistrate found that two of the factors in s 89(4) were present, being that the offence was serious and the offender has a significant record.[84] During the hearing of the appeal, counsel for Mr Jackman accepted that one of the two factors, being the significant criminal record, was present.[85] However, Mr Jackman contends that the discretion, though enlivened, was miscarried. The respondent submits that the discretion was enlivened and that the refusal to grant eligibility for parole was not so unreasonable or clearly unjust as to reveal error in the exercise of the magistrate's discretion.[86]
5. Mr Jackman's concession that the magistrate's discretion was enlivened was properly made. That is, Mr Jackman has a criminal record that is significant in terms of s 89(4). The significance of a criminal record may depend upon the number, type and chronological spread of prior offences. An offender who is a serious recidivist in respect of one type of offending may have a significant record for the purposes of s 89(4)(b) of the Sentencing Act.[87] Therefore, Mr Jackman's prior convictions for offences under the Road Traffic Act and in particular, driving whilst under suspension, meet the requirements of a significant criminal record.
6. Given that one factor in s 89(4) existed, the discretion was enlivened. A number of factors determine a parole eligibility order. A significant consideration in determining whether to grant parole in any case will be the offender's prospects for rehabilitation and the question of whether or not that sentencing objective will be assisted by making a parole eligibility order.[88]
7. Whilst Mr Jackman is a recidivist, I am of the view that the sentencing objective of rehabilitation would be assisted by the granting of parole. Counsel for Mr Jackman outlined a number of positive factors in mitigation which were not controverted by the prosecutor.[89] Mr Jackman has expressed a willingness to engage in counselling in order to address his excessive alcohol consumption. Further, Mr Jackman was undertaking a mechanics course at TAFE and had employment as a ranger. In addition, Mr Jackman had secured accommodation with his aunt in his community and has ended a relationship that was encouraging the use of alcohol. His Honour did not expressly consider these factors in his sentencing remarks.
8. In all the circumstances, I am of the view that the magistrate erred in the exercise of his discretion. Accordingly, ground 4 has been made out and the appeal must be allowed.

1. Accordingly, I grant leave to appeal on ground 4 and the appeal is allowed on that ground. I set aside the order that Mr Jackman is not eligible for parole and in lieu thereof, order that Mr Jackman is eligible for parole.

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

Research Associate/Orderly to the Honourable Justice McGrath

[1] Prosecution Notice dated 5 March 2019.

[3] Appellant's Outline of Submissions, filed 12 September 2019 [10].

[4] Prosecution Notice dated 28 April 2019.

[5] Appellant's Outline of Submissions, filed 12 September 2019 [12].

[6] Appellant's Outline of Submissions, filed 12 September 2019 [12].

[8] Appellant's Outline of Submissions, filed 12 September 2019 [15].

[9] Prosecution Notice dated 23 May 2019.

[10] Prosecution Notice dated 23 May 2019.

[12] Prosecution Notice dated 23 May 2019.

[21] Appellant's Amended Appeal Notice, dated 9 September 2019.

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

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

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

[25] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

[26] Criminal Appeals Act 2004 (WA), s 14.

[27] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

[28] Appellant's Outline of Submissions, filed 12 September 2019 [28].

[29] Appellant's Outline of Submissions, filed 12 September 2019 [29].

[30] Gelmi v The State of Western Australia [2019] WASCA 139 [81].

[31] Gelmi v The State of Western Australia [81].

[32] Gelmi v The State of Western Australia [81].

[42] Appellant's Outline of Submissions, filed 12 September 2019 [29].

[43] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J).

[44] Sentencing Act 1995 (WA), s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [100].

[45] Sentencing Act 1995 (WA), s 76(2).

[46] Road Traffic Act 1974 (WA), s 59BA(1); Road Traffic Administration Act 2008 (WA), s 7.

[47] Appellant's Outline of Submissions, filed 12 September 2019 [32].

[48] Respondent's Outline of Submissions, filed 16 September 2019 [44].

[51] Winwood v Brown [2011] WASC 123 [58].

[55] Drage v The State of Western Australia [2015] WASCA 145.

[56] Rubin v The State of Western Australia [2016] WASCA 2.

[59] Road Traffic Act 1974 (WA), s 49(1)(c)(ii); Road Traffic (Administration) Act 2008 (WA), s 7.

[60] Road Traffic Act 1974 (WA), s 49(1)(c)(ii); Road Traffic (Administration) Act 2008 (WA), s 7.

[62] Sheiner v Roberts [2009] WASC 281 [17].

[63] Appellant's Outline of Submissions, filed 12 September 2019 [50].

[64] Appellant's Outline of Submissions, filed 12 September 2019 [50].

[65] R v Holder [1983] 3 NSWLR 245, 260 (Street J).

[66] Roffey v The State of Western Australia [2007] WASCA 246 [24]; Woods v The Queen (1994) 14 WAR 341; Salkilld v The State of Western Australia [2017] WASCA 168 [48].

[67] Appellant's Outline of Submissions, filed 12 September 2019 [49].

[68] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 163 ALD 38, 49 [38].

[69] Appellant's Outline of Submissions, filed 12 September 2019 [66].

[75] Appellant's Outline of Submissions, filed 12 September 2019 [66].

[79] Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [48] ‑ [50].

[80] Moody v French [48] - [50]; Ryan v The State of Western Australia [2011] WASCA 7 [87].

[81] Truslove v The State of Western Australia [2015] WASCA 1 [18].

[82] Truslove v The State of Western Australia [18].

[83] House v King (1936) 55 CLR 499.

[86] Respondent's Outline of Submissions, filed 16 September 2019 [76].

[87] Vince v Martyn [2013] WASC 60 [26] citing Moody v French [55].