JACKMAN -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 63 | Case summary

Supreme Court of WA|2023-03-07|Before: Derrick J

For the reasons that I have stated I make orders in the following terms:
1. The application for an extension of time within which to appeal is allowed;
2. The application for leave to appeal is allowed;
3. The appeal is allowed;
4. The sentences imposed by the Chief Magistrate on 21 November 2022 for the offences the subject of charges PE 46343/2022 and PE 46344/2022 are set aside;
5. The appellant is sentenced to 7 months 2 weeks immediate imprisonment for the offence the subject of charge PE 46343/2022 and to 5 months immediate imprisonment for the offence the subject of charge PE 46344/2022, the sentences to be served concurrently;
6. The appellant is eligible for release on parole; and
7. The commencement date of the sentences imposed is backdated to 21 November 2022.

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

[1] The applications were made under Division 2 of Part 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to sentence the appellant to 9 months immediate imprisonment for the offences is a decision against which the appellant may appeal on the ground that in making the decision the magistrate made an error of law: CAA, s 6(f), s 7(1) and s 8(1)(a).

[3] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14].

[4] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] - [25].

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

[12] ts 2, 21 November 2022. Although at the time of stating the facts of the offences the prosecutor did not articulate the basis on which the prosecution asserted that the appellant fraudulently took the mobility scooter within the meaning of s 371(1) of the Code and therefore stole the scooter, it can be inferred from the facts of the offences that the fraudulent taking was comprised of the appellant taking the scooter with the intention of dealing with it in such a manner that it could not be returned in the condition in which it was at the time of the taking: Code, s 371(2)(e).

[16] There is a useful discussion of the different views in Crocker v Vinicombe [2019] WASC 416 [42] - [60] (Fiannaca J). See also Stack v Joye [2021] WASC 322 [27] - [32] (Archer J) and Neach v Hobbs [2021] WASC 135 [17] - [22] (Archer J).

[17] Harding v The State of Western Australia [2015] WASCA 27 [73] - [75]. See also Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14] and Hiemstra v The State of Western Australia [2021] WASCA 96 [120].

[18] Crocker v Vinicombe [58] - [59]; NTH v The State of Western Australia [2020] WASCA 22 [163] - [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65]; Hiemstra v The State of Western [120].

[19] Crocker v Vinicombe [58] - [59].

[20] Crocker v Vinicombe [58] - [59].

[21] Crocker v Vinicombe [58] - [59].

[24] Prosecution Notice PE 46343/2022; Prosecution Notice PE 46344/2022.

[25] There is no suggestion that the prosecution had not complied with its disclosure obligations under s 35. Consequently, the Chief Magistrate was not required by s 59(2)(c) to proceed under s 35(10) of the CPA.

[27] See the 'Record of court proceedings' attached to each of the prosecution notices.

[28] Gosper v Vinicombe [2020] WASC 278 [62]. The absence of such a requirement is explicable when regard is had to the requirement contained in s 59(2)(a).

[29] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [19].

[30] Carroll v The State of Western Australia [2012] WASCA 244.

[31] Lawson v The State of Western Australia [No 2] [17] ‑ [19].

[32] See in this regard the comments made by EM Heenan J in Busby v Burrow [2012] WASC 58 [71] ‑ [72] as to the importance of observing the formalities of reading a charge to an accused.

[35] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59]; Nolan v The State of Western Australia [2013] WASCA 235 [44].

[36] NI v The State of Western Australia [2020] WASCA 78 [65].

[37] NI v The State of Western Australia [66].

[38] Winmar v The State of Western Australia [2018] WASCA 155 [31]; NI v The State of Western Australia [67].

[39] Gobetti v The State of Western Australia [2017] WASCA 130 [79] cited with approval in NI v The State of Western Australia [67].

[40] CAA, s 14(2); Inglis v Pinch [2016] WASC 30 [57] - [59]; Schulz v Coyne [2019] WASC 329 [30].

[41] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10]; Winmar v Clark [2015] WASC 314 [26].

[42] Roberts v The State of Western Australia [2014] WASCA 239; (2015) 249 A Crim R 154 [48] - [49].

[44] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].

[45] Although the power given to a sentencing judicial officer by s 9AA(2) is to reduce the head sentence 'for the offence', it is well established that the mitigating effect of guilty pleas to multiple offences must be reflected not only in individual sentences but also in the total sentence imposed; LTT v The State of Western Australia [2022] WASCA 31 [56]. The reflection of the mitigating effect of guilty pleas in the total sentence imposed for multiple offences should necessarily follow from the proper application of the totality principle (referred to further below) to the individual sentences that have been arrived at after allowing for the mitigating effect of the guilty pleas.

[46] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.

[47] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.

[48] Record of Court Proceedings attached to Prosecution Notice for charges PE 46343/2022 - PE 46344/2022.

[49] NTH v The State of Western Australia [163] - [164]; The State of Western Australia v Jacoby [65].

[51] Hiemstra v The State of Western Australia [120].

[57] Sentencing Act, s 39(3), s 76(1), s 76(2), s 81(1), s 81(2); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [77] - [79]; Mason v The State of Western Australia [2018] WASCA 43 [48] - [54].

[58] Roffey v The State of Western Australia [2007] WASCA 246 [25]; GSO v The State of Western Australia [2021] WASCA 58 [44(3)].

[59] Roffey v The State of Western Australia [25]

[61] Code, s 444(1). Both charges alleged that the value of the mobility scooter was $5,000.

[65] Affidavit of Mr Yoo dated 7 February 2023, par 5(a) and 5(d).

[66] Affidavit of Mr Yoo dated 7 February 2023, par 5(b).

[67] Affidavit of Mr Yoo dated 7 February 2023, par 5(e).

[68] Affidavit of Mr Yoo dated 7 February 2023, par 5(e).

[69] Affidavit of Mr Yoo dated 7 February 2023, par 5(c).

[70] Affidavit of Mr Yoo dated 22 February 2023.

[71] Bradbury v The State of Western Australia [2020] WASCA 214 [52] - [55]. The appellant's remorse was, as is apparent from my above summary of what occurred before the Chief Magistrate, referred to, albeit briefly, by the appellant's counsel during his plea in mitigation. The existence of the appellant's remorse was not put in issue by the prosecutor.

[72] Affidavit of Mr Yoo dated 7 February 2023, par 5(f).

[73] Affidavit of Mr Yoo dated 21 February 2023.

[74] Affidavit of Mr Yoo dated 21 February 2023.

[75] Law v The Queen [2019] WASCA 81 [111]; Forrest v The State of Western Australia [2019] WASCA 172 [50].

[76] In relation to the offence of wilful and unlawful damage, Kelly v Manser [2020] WASC 138 and Collard v Peden [2017] WASC 32. In relation to the offence of stealing, Smith v Richardson [2013] WASC 114.

[77] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56]; The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [55]; The State of Western Australia v Zhuang [2021] WASCA 56 [109] - [111]; Miorada v The State of Western Australia [2022] WASCA 143 [38].

[78] Miller v The State of Western Australia [2022] WASCA 50

[79] Plumley v The State of Western Australia [2018] WASCA 33.

[80] Smith v The State of Western Australia [2017] WASCA 73.

[81] Lepoidevin v The State of Western Australia [No 2] [2021] WASCA 19.

[82] Lynden v The State of Western Australia [No 2] [2013] WASCA 186.

The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges. However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact. In relation to that question, as Steytler P observed in H v The State of Western Australia [[2006] WASCA 53; [2006] WASCA 53; (2006) 163 A Crim R 151 [10]]:

[T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.

The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.

JACKMAN -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 63 (7 March 2023)

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