Messiha v Royce [2004] WASCA 87

Firearms Act 1973 (WA), s 23(5)(c)

Interpretation Act 1984 (WA), s 18, s 19

Misuse of Drugs Act 1981 (WA), s 5(1)(d)(i)

Police Act 1892 (WA), s 69

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(2)(a)(iv), s 49(3b)

Sentencing Act 1995 (WA), s 6(4), s 8(2), s 8(4), s 15, s 89(4)

Nevermann v The Queen (1989) 43 A Crim R 347

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233

1 SIMMONDS J: This is an appeal against sentence imposed by His Worship Mr Cullen SM in the Court of Petty Sessions at Perth on 16 December 2003. This appeal is brought under Pt 8 of the Justices Act 1902 (WA).

The complaints in this matter and their disposition

2 On 1 August 2003 Messiha was charged with a series of offences all allegedly committed on 30 July 2003. The charges by way of complaint were as follows:

• The accused unlawfully assaulted one Andrew Leon Phillips ("Phillips") and thereby did him bodily harm contrary to s 317(1) of the Criminal Code Act 1913 (WA) ("the assault complaint");

• The accused drove a motor vehicle while his licence was under a license suspension order contrary to s 49(1)(a) and s 49(2)(a)(iv) Road Traffic Act 1974 (WA) ("the driving complaint");

• The accused had in his possession a pipe and a plastic smoking implement for use in connection with the smoking of a prohibited drug such implements having detectable traces of a prohibited drug namely tetrahydrocannabinol contrary to s 5(1)(d)(i) of the Misuse of Drugs Act 1981 (WA) (one of the two "drug implements complaints");

• The accused had in his possession a glass smoking implement for use in connection with the smoking of a prohibited drug such implement having detectable traces of a prohibited drug namely methylamphetamine contrary to s 51(d)(i) of the Misuse of Drugs Act (the other of the drug implements complaints);

• The accused had in certain premises two blower vacuums, one chainsaw, one gas hot water system, one stainless steel sink, one electric oven, one gas hot plate and one whipper snipper, all reasonably suspected of having been stolen or unlawfully obtained contrary to s 69 of the Police Act 1892 (WA) ("the possession complaint")

• The accused had without lawful excuse in his possession a firearm, that had been altered from the design or characteristics of its original manufacture contrary s 23(5)(c) of the Firearms Act 1973 (WA) ("the firearm complaint").

3 On 19 November 2003, at the hearing of these complaints, the prosecution indicated that some other charges to which I have not referred would not be ones on which they would be seeking to offer any evidence. The prosecution also amended the possession complaint by the deletion of one of the blower vacuums, the chainsaw and the whipper snipper. Messiha then pleaded guilty to the remaining complaints. Following addresses by both the prosecution and the defence, the learned Stipendiary Magistrate called for a pre-sentence report.

4 At the 16 December 2003 sentencing hearing, the learned Stipendiary Magistrate imposed a head sentence of 3 years, reduced by one-third to 2 years under the Sentencing Act 1995 (WA); on the assault complaint he imposed a sentence of 12 months' imprisonment; on the driving complaint he imposed a sentence of 4 months' imprisonment and a driving licence disqualification for a period of 18 months; with regard to each of the possession complaints he sentenced Messiha to 1 month's imprisonment, concurrent; with respect to the firearm complaint he sentenced Messiha to 6 months' imprisonment, concurrent; and on the possession complaint he sentenced Messiha to 12 months' imprisonment, cumulative.

Presentations made to the learned Stipendiary Magistrate

5 The grounds of appeal on which leave was given largely concern how I should approach the material available to the learned Stipendiary Magistrate, as well as the use he made, or, it was submitted, did not make of that material. In approaching my task here, I was much assisted by the decision in Marker v The Queen [2002] WASCA 282, to which both counsel referred as establishing the proper approach in this regard.

6 I note in particular from Marker the following five passages, four from the judgment of Murray J and the fifth from the judgment of Anderson J with whom Murray J and the other members of the Court concurred. Murray J, at [20] - [22]:

The fact finding process for sentencing purposes starts with the Criminal Code (WA) s 617A which, after a plea of guilty, requires 'the material facts of the case' to be stated aloud to the court by the Crown. In R v Aloia [1983] WAR 133 at 136, Burt CJ said that where there was a plea of guilty:

' ... the sentencing Judge can safely rely upon the statement of material facts made by Crown counsel unless as the facts extending beyond the elements of the offence they are challenged by the prisoner. If such facts, assuming them to be facts of aggravation, are so challenged, they must be proved. And I think the same may be said of the defence and the facts put up by counsel on behalf of the accused in mitigation. Such facts, if challenged, require some evidence to establish them, ... . A statement from the bar table of an exculpatory primary fact with no evidence capable of supporting it cannot, if challenged by the Crown, be enough. But such a statement if not challenged by the Crown may be accepted by the trial Judge.'

In my respectful opinion, that remains good law.

As to the proof of such facts, whether by the Crown or the offender, the process is conditioned by the Sentencing Act 1995 (WA) s 15 which provides:

'To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a Court sentencing an offender may inform itself in any way it thinks fit.'

The strict rules of evidence do not apply.

The primary facts, as Burt CJ described them, extending beyond the elements of the offence, may be either aggravating factors which, in the Court's opinion, increase the culpability of the offender: Sentencing Act s 7(1), or mitigating factors which, in the Court's opinion, decrease the culpability of the offender or the extent to which he or she should be punished: Sentencing Act s 8(1). Aggravating factors must be proved by the Crown beyond reasonable doubt. Mitigating factors must be established by the offender on the balance of probabilities: Langridge v The Queen (1996) 17 WAR 346; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. Shortly put, what is stated from either side of the bar table may be accepted unless challenged. If challenged, it will be for the Crown to prove any aggravating circumstance upon which it wishes to rely, beyond reasonable doubt, and for the offender to prove any mitigating circumstance upon which he or she wishes to rely, on the balance of probabilities."

"It is, of course, always open to the sentencing Court to reject exculpatory explanations offered in mitigation if the explanations are lacking in substance and credibility in light of the known facts: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270."

7 I begin with the statements made by the prosecution in the respects that appear to be most material to this appeal. The prosecution stated that the driving complaint related to matters occurring between 10.30 and 11.00 am on 30 July 2003 on Bates Road, Innaloo, in the vicinity of the premises at which the assault complained of occurred.

8 The prosecution said in relation to the assault complaint that Messiha walked into the bedroom of those premises where the complainant was standing with his girlfriend. Messiha, while holding a firearm the subject of the firearm complaint, struck the complainant once to the mouth with a clenched fist causing the complainant's lip and nose to bleed and swell.

9 The firearm, a shotgun, had been stolen during a burglary in November 2002 and sometime later its barrel was shortened. Messiha had denied knowledge of the initial theft of the firearm or of its subsequent shortening.

10 With respect to the drug implements complaints, the prosecution stated that at about 12.30 pm on 30 July 2003 Messiha was driving a car which was seized on other matters. A search of the vehicle turned up the implements. Messiha admitted the implements were his.

11 With respect to the possession complaint, the prosecution said that police came to Messiha's address at 6.00 pm on 30 July 2003. There they found a gas water heater in boxes on the dining table in the living room area. They found a stainless steel sink in the master bedroom. They found an electric wall oven and gas cook top in the middle living area under bed sheets. All were "brand new". The police found a blower vacuum in the rear garden shed on which an identification number was engraved. Messiha told the police that the first two items named, as well as the gas hot water heater, stainless steel sink and blower vacuum belonged to his father, who was in Egypt and would not be back in Australia for some time. Messiha told the police that he had purchased the wall oven and gas cook top but refused to say where and when. Messiha told police that he could produce all receipts for all items within seven days but failed to produce any documentation. Police enquiries seemed to indicate that the items were stolen from building and work sites.

12 The defence counsel's presentation at the hearing on 19 November 2003 referred to Messiha as married with two small children. In July 2003, an offer made by Messiha and his wife to purchase a block of land in Kinross had been accepted. The transaction called for a payment of a deposit of $5,000. Messiha and his wife intended to build a house on this land. Messiha, at about this time, owned a delicatessen which he was attempting to sell. He had been unsuccessful in this. However, he had found a person who had agreed to purchase a partnership interest in the delicatessen, and to pay at least two instalments of $2,500 each for that interest. On 28 July 2003, Messiha had all but a small amount (that amount having previously been spent) of the second instalment in his wallet, having just been paid the instalment. Messiha planned to use the two instalments to pay the deposit on the Kinross land.

13 Defence counsel said that on the night of 28 July 2003 Messiha was with some friends or acquaintances, including the complainant on the assault charge, Phillips, Karim and Serena at an unspecified place or places that apparently included Karim's car. Subsequently, that same day, Messiha discovered his wallet with the balance of the second instalment of the purchase price of the partnership interest in the delicatessen business was missing. Messiha "confronted" Serena and Karim, searched Karim's car, but failed to locate the wallet. Serena and Karim denied taking the wallet, Karim indicating "his mobile phone had also been taken". Messiha was "upset" about the missing money. Messiha, defence counsel said, "thought [Phillips] may have taken it", but "had no proof".

14 Defence counsel went on to say that on the morning of 30 July, Serena had called Messiha and asked him to take her to the premises on Bates Road, Innaloo to collect her clothes and take them to a friend with whom she was staying. The premises in question were ones in which Serena's mother rented a room, and with whom Serena had been staying. Her mother's boyfriend at the time was Phillips. Phillips had also been living at the premises at that time. The premises were owned or at least leased by a couple, one Dwayne Jensen and his wife, who also lived there and whom Messiha knew "quite well" and with whom Messiha was on "good terms".

15 Defence counsel said that Serena and Messiha arrived at the premises, where Serena's mother and Phillips were awakened by Serena and Messiha collecting or going through clothing. Dwayne indicated he wanted to go to a nearby church to collect food vouchers and make food purchases. It appears that "everyone", including Messiha, went off in two cars to get the vouchers with Serena and Messiha in one car, and all of the others, including Dwayne in another. En route to the church, Messiha lost contact with the other car.

16 Defence counsel said that, having lost Dwayne, Serena and Messiha returned to the Bates Road premises and began to pack Serena's clothes. Defence counsel indicated that while doing this "an important turn of events" occurred. Messiha recognised a Chinese coin on the bedside table that had been in his missing wallet. Serena and Messiha then started looking for Messiha's wallet, which they did not find, although they did find Karim's mobile phone referred to above.

17 Defence counsel said that the others then returned from the church. Messiha then confronted Phillips about the wallet, which Phillips denied taking. An argument about Karim's mobile phone between Phillips and Messiha then ensued, an argument involving "shouting" that became "heated".

18 Defence counsel said that the firearm, the subject of the firearm complaint, was behind a couch in the garage of the Bates Road premises. It "belonged" to Phillips. At some stage, Serena went to the garage, collected the gun, and brought it to Messiha. Messiha held it by the handle while shouting at Phillips words to the effect "If you don't give me my money, you're not getting your gun back. Give me my money and you will get your gun". Phillips continued to deny he had the money.

19 Defence counsel said that Messiha, having said this, gave the gun back to Serena and then punched Phillips "to the lip which caused it to bleed" and "subsequently to swell". Defence counsel said that Messiha did this because he was "very upset at the loss of the money which he believed [Phillips] had taken on the basis they had found the Chinese coin and the mobile phone there and essentially, the defendant lost his temper".

20 Defence counsel said that Serena, having received the gun back, placed it in the car where the police found it. Messiha, the defence counsel said, did not know anything about guns and was not aware the gun barrel had been cut down.

21 Defence counsel said, with respect to the drug implements complaints, that Messiha did not know that one contained traces of methylamphetamine, and that the implements did not belong to Messiha. He did, however, know that the implements were used for drugs, did know that they were in the vehicle, and had permitted them to be there.

22 The defence counsel said with respect to the driving charge that the suspension of the licence was for non-payment of fines, but that this was not a "blatant case of driving while knowing he was under suspension". Messiha had made arrangements for payment of the unpaid fines by instalments with the agency collecting fines on behalf of the Traffic Department. Messiha believed the suspension was a 3-month one on a demerit points foundation, and that the 3 months had expired. He did, however, admit having received notification from the Traffic Department concerning the suspension and explaining the true position, about which he was still "confused" at the relevant time. Messiha accepted, however, that this was not "a reasonable excuse".

23 With respect to the possession compliant, defence counsel said that numerous items belonging to Messiha's parents were kept at his house while the parents were in Egypt. In addition, Messiha had bought a number of items for the home he intended to build, even before the purchase of the Kinross property. He had bought the particular items at the Canning Vale Markets "cheaply". It was "significant" in the defence counsel's submission, that some items had been returned by the police and deleted from the charges. Messiha did not know the items were stolen, but was "willing to accept however that he did not make adequate enquiries" at the time of their purchase.

24 The defence counsel elaborated on the personal circumstances of Messiha. Messiha was 27 years old, married for seven years, with a boy of about five and a girl of about four. At the time of the offences Messiha had a drug problem but had sought medical assistance to get him off drugs. Defence counsel handed a medical certificate to the prosecution at the hearing. This certificate showed that Messiha had been under treatment for two and a half months, that the treating physician had prescribed medication, that the physician believed that Messiha was making a genuine attempt to control his problem, and Messiha was being regularly monitored. Messiha was endeavouring to get his life back on track.

25 Defence counsel said, at the 19 November 2003 hearing, that he understood from the prosecution that it was not seeking imprisonment. While Messiha had a record, it was a "relatively minor one".

26 At the conclusion of the 19 November 2003 hearing the learned Stipendiary Magistrate addressed Messiha. The learned Stipendiary Magistrate indicated that defence counsel had given a very comprehensive plea in mitigation. The learned Stipendiary Magistrate said that given "your previous conviction", and the nature of the matters, a pre-sentence report should be obtained before sentencing took place, adding "It's not simply a question of me imposing upon you fines or a community based order. You've had a community based order in the past and you are again back before the Court, offending again regardless of the circumstances of these matters".

27 At the sentencing hearing on 16 December 2003 defence counsel addressed the learned Stipendiary Magistrate on the pre-sentence report. He indicated that there were "some negative matters referred to therein, but there are also some positive matters that do emerge and if I could just briefly indicate what we consider as positive indications".

28 The pre-sentence report had a lengthy paragraph under the heading "Present Offences". That paragraph contained language, some of which appears to have influenced or at least been paralleled in the decision of the learned Stipendiary Magistrate.

29 Defence counsel in his submission repeated the earlier statement he had made, on 19 November 2003, that the firearm the subject of the firearm complaint was not Messiha's but was Phillips' adding this was maintained even though Phillips, in his witness statement, had said it was not his. Messiha had not altered it. The firearm was held for a very short time, not used to threaten Phillips but rather its return to Phillips used as an inducement for Phillips to hand over the money Messiha believed Phillips had. The firearm had been handed to Serena before Messiha struck Phillips. In response to an enquiry from the learned Stipendiary Magistrate, defence counsel indicated that "apparently" the firearm was loaded at the time.

30 Defence counsel submitted that Messiha had completed all of the community work components of these orders, and, while his underlying drug problem seemed to be sabotaging his efforts, such completion showed he was making efforts, which was a positive indication.

31 Defence counsel also referred to "the stability" in Messiha's family situation, and the support of his wife and brother. Messiha was also said to have stable mental health now with a reduction in his use of illicit substances.

32 Defence counsel spent about one-half of his submission on the pre-sentence report, addressing an indication in its conclusion as to the possibility of supervisory arrangements for Messiha.

33 Defence counsel argued for an Intensive Supervision Order indicating that such an order had not previously been attempted. Putting Messiha in prison, defence counsel submitted, was not in the long term interests of the community and would have a negative effect on his rehabilitation. Defence counsel added that the offences themselves and the circumstances of the offending did not warrant imprisonment. The defence counsel referred again to the fact that the prosecution had not sought imprisonment. If the learned Stipendiary Magistrate was of the view that imprisonment was appropriate however, then he should suspend the imprisonment, and reference was made to R v Dinsdale [2000] HCA 54; (2000) 115 A Crim R 558.

34 Leave to appeal was granted on eight grounds. I review each and the submissions for and against it and my conclusion on it.

Ground 1A - D: Appellant's imprisonment

"(a) The Learned Magistrate erred in all the circumstances in sentencing the Applicant to imprisonment, having regard to the provisions of s 6(4) of the Sentencing Act 1995, and having regard to the fact that the prosecution and the police complainant did not seek the imposition of imprisonment.

(b) In the alternative to (a), the Learned Magistrate erred in not ordering that imprisonment be suspended pursuant to s 76 of the Sentencing Act.

(c) In the alternative, the Learned Magistrate erred in imposing sentences that were manifestly excessive in all the circumstances.

(d) The Learned Magistrate erred in sentencing the Applicant on the basis of an incorrect assessment of the facts.

Particulars

The Learned Magistrate erred in:

(i) not sentencing the Applicant on the basis of the facts as put forward on the Applicant's behalf and upon which the pleas of guilty were entered.

(ii) finding that the Applicant's purpose, or sole purpose, in going to the house at 34 Bates road, Innaloo on 30 July 2003 was to recover his money, when the facts as put forward on the Applicant's behalf and upon which the Applicant pleaded guilty were that he had gone to the house to assist someone to collect clothes and take them to a friend's house.

(iii) considering it to be the Applicant's version that his money was initially stolen from him at the above address.

(iv) finding that the Applicant found items at the above address belonging to him after he had demanded his money back from the complainant Phillips.

(v) considering it to be the Applicant's version that the money stolen from him had been the proceeds of the sale of premises.

(vi) finding that the Applicant struck Phillips while the Applicant was holding the gun, when the facts as put forward on the Applicant's behalf and upon which the Applicant pleaded guilty were that he was not holding the gun at the time he punched Phillips on the lip.

(vii) Finding that the vehicle driven by the Applicant was used for the purposes of committing a crime, when the facts as put forward on the Applicant's behalf and upon which the Applicant pleaded guilty were that he had gone to the house in question to assist someone to collect clothes and take them to a friend's house, and not for any illegal purpose."

35 The appellant's case is based largely on the principles set out in the Sentencing Act relating to imprisonment. Those principles emerge from s 6(4) as follows:

"(4) A court must not impose a sentence of imprisonment on an offender unless it decides that

(a) the seriousness of the offence is such that only imprisonment can be justified_;_ or

(b) the protection of the community requires it."

36 Reference was also made to Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and the authorities in Brown Douglas, Ian: "Criminal Law Western Australia".

37 The learned Stipendiary Magistrate in his sentencing remarks laid considerable emphasis on the fact that Messiha's "sole purpose" on 30 July 2003 was to attend and recover from the Bates Road premises the money he had believed had been stolen from him. The learned Stipendiary Magistrate indicated his view that Messiha went to the premises with an intention of recovering that "come what may". The Magistrate states that it was Messiha's "claim" that his "purpose of going there was to recover the money" stolen from him while he had been at "those premises on a previous occasion".

38 The learned Stipendiary Magistrate also appears to have laid considerable emphasis on the firearm compliant by saying:

" ... and of course anybody who resorts to what you did - and that is, produce the gun - regardless of whether it's said on your behalf that you told him you wouldn't give him the money back [sic] [gun back], there's no doubt in my mind that Mr Phillips confronted by you when your sole purpose was to intimidate him with respect to finding out where your money was.

And you, whilst you were holding that particular firearm and no doubt causing him great concern, you struck him and of course the gun when produced caused extremely menacing circumstances with respect to the subsequent assault on Mr Phillips."

39 It is clear to me that the Learned Stipendiary Magistrate was mistaken as to the appellant's statement of the purpose for which he visited, or revisited, the Bates Road premises. That purpose had to do with the clothing collection for his friend Serena. The respondent's counsel, Ms Wisbey, however, in her submissions, indicated that the Magistrate could reject Messiha's version of events as stating his exclusive purpose in attending the premises, in view of his admitted suspicion as to Phillips' theft of the money. In this context, as in others, the respondent appears also to have been referring to s 15 of the Sentencing Act, which provides that the sentencing Court may inform itself in any way it thinks fit to decide on the proper sentence to be imposed, and the strict rules of evidence do not apply.

40 The appellant's counsel, Mr Karstaedt, who was also defence counsel before the Stipendiary Magistrate, reminded me, however, that the proof of aggravating circumstances in relation to the commission of an offence, if challenged by the defence, is to be tested at the standard of beyond reasonable doubt, as indicated by Murray J in Marker (supra), at [22]. While there were no explicit challenges of the prosecution made by the defence in this case, or vice versa, there were, as the lengthy account of their respective presentations above was meant to indicate, significant inconsistencies between them. (The significance of those inconsistencies for the ultimate disposition by the learned Stipendiary Magistrate is, of course, another matter). As Ms Wisbey properly conceded, the learned Stipendiary Magistrate was not correct as to the appellant's version of the purposes for which he had attended at the Bates Road premises. The learned Stipendiary Magistrate was also not correct in his statement that the appellant claimed his wallet was initially stolen from those premises. Finally, again as the respondent's counsel conceded, it was not the case that the appellant claimed he had found items belonging to him after demanding his money.

41 Further, I have considered that on the material before the learned Stipendiary Magistrate it would have been very difficult for a fact finder to have concluded that the appellant's sole purpose for visiting the premises was to search for the money the appellant considered to have been stolen from him.

42 It is, however, a closer question on whether a significant or substantial purpose for the visit included that search. The evidence here was both of a circumstantial kind, being the appellant's conceded suspicion as to the possible thief, and material contained in the pre-sentence report although that does not clearly go to the motives for visiting the house. As to the latter, Mr Karstaedt submitted in oral argument that it was not open to the learned Stipendiary Magistrate to take the pre-sentence report into account for the purposes of his determinations. However, counsel was unable to cite authority to this effect, and I have not been able to find any. In view of the broad terms in s 15 I would find such exclusion difficult, provided, of course, that the counsel for the defence was presented with the material and with a reasonable opportunity to challenge it. Both of those conditions were met here.

43 In relation to the matter about circumstances of the offence, Mr Karstaedt submitted at the hearing that I should infer from Sentencing Act, s 20 and s 22 which appear in Pt 3 - Matters Preliminary to Sentencing, div 3 - Information about the Offender, that the material in the pre-sentence report, even that available to counsel at the hearing prior to sentencing, should be ignored by the sentencing Judge to the extent it goes to circumstances of the offence.

44 With respect, this appears to be somewhat inconsistent with the language of s 21(2), which says:

"In the absence of specific instructions from the court that ordered it, a pre-sentence report is to set out matters about the offender that are, by reason of this Act or sentencing practice, relevant to sentencing the offender or to the making of a reparation order under Part 16."

45 The Act of course makes it relevant to sentencing an offender to consider the seriousness of the offence, while matters of the attitude of Messiha towards the commission of the offence, including whether remorse or otherwise has been shown, would appear to be of particular significance. I note s 32(1) of the Interpretation Act 1984 which states that the headings of the parts, divisions and subdivisions to which the written law is divided "form part of the written law". However, I do not infer from the heading that there is sufficient assistance there to cause me to doubt the interpretation of the wording of the legislation to which I have referred. I note that it is primarily in relation to the resolution of any doubt that headings in legislation should be used: See R v Sorry (North Eastern Area) Assessment Committee (1948) 1 KB 28 at 32 - 33, per Lord Goddard. This approach was endorsed in Dominish v Cavallaro (1980) WAR 205.

46 However, the point in the end, going as it did to the character of the circumstances attending the assault, does not appear to me to be a substantial one. The character of the assault, as stressed by the learned Magistrate, was an intimidatory one, and the blow caused physical albeit temporary physical injury, even if there was a difference between prosecution and defence accounts of its extent.

47 I make a similar point in respect of the learned Magistrate's statement to the accused, Messiha, at the commencement of his sentencing remarks, referring to "the purpose" for Messiha being there, being to recover the money "which you say had been stolen from you, whilst you had been at that - - at those premises on a previous occasion." As I have indicated it was agreed, no such claim as to where Messiha had been when the money was lost had been made by him. But I do not consider, on the character of the circumstances attending the assault I referred to in the previous paragraph, a substantial one, for the Magistrate or for me.

48 The same point is, I believe, clearer still in respect of the matters also raised in the grounds of appeal of the learned Magistrate's reference that Messiha, "subsequently" to the demand for the money, found items "which in fact were yours". While, as the respondent's counsel conceded, this was not Messiha's claim, Messiha did, as was indicated through his counsel, say he found an item from the wallet before that demand was made. If anything, I should have thought that would have strengthened the case for finding intimidation.

49 As to the matter of the learned Magistrate's characterisation of the money demanded as "in fact the proceeds of - - of the sale of some premises that you owned", it is not clear to me that this was in fact demonstrably an incorrect way of characterising the possible importance to Messiha of what the money represented to him. The loss of sole ownership of the business would not seem clearly to be materially different, for the purposes of what this case was about, from the loss of the whole interest in the business.

50 A more substantial issue goes to the way in which the learned Stipendiary Magistrate treated the use of the firearm in this case. Again there is a difference between prosecution and defence on the matter of whether the firearm was in the appellant's hand when the blow was struck. I find it difficult to conclude beyond reasonable doubt that prosecution's version is to be preferred to the appellant's. Again, however, I do not believe that the point is a substantial one, given the close proximity of the firearm in time and space.

51 There is also the question of the way in which the gun was employed. Here, however, I do not interpret the learned Stipendiary Magistrate to have indicated his belief that the gun was being used as a weapon of intimidation, rather than as a form of inducement for the money to be paid against the weapon's return to the person the appellant believed to be its owner. The learned Stipendiary Magistrate's remarks, on my interpretation, were that the use of the firearm in the circumstances of the appellant's behaviour, was such as to cause "extremely menacing circumstances". These remarks come close to a finding that the complainant, Phillips, had been caused great concern by the use of the weapon, especially one that the learned Stipendiary Magistrate appears to have treated, although not in his remarks for the purposes of sentencing, at least explicitly, as loaded. There was some circumstantial material, as well as some reference in the pre-sentence report to the victim as "still afraid", to support such a finding of concern. There does not appear to be other than circumstantial material with respect to any such concern.

52 In any event, it appears to me to be established beyond reasonable doubt that a firearm that was loaded was employed in relation to the attempt by the appellant to force a person he suspected to be a thief to disgorge stolen property. While that would not be as aggravating a circumstance as threatening to fire the firearm, it was properly a circumstances the learned Stipendiary Magistrate could have taken into account, and did, as an aggravating one in relation to the assault offence.

53 A still more difficult question is posed by the reference by the learned Stipendiary Magistrate to the vehicle the subject of the driving offence, and in which the drug implements the subject of the drug implements complaint were found. The learned Stipendiary Magistrate said this:

"Driving under fine suspension, you will be sentenced to 4 months imprisonment and your driving licence disqualified - for a period of 18 months. And I do that, particularly with respect to the vehicle being used for the purposes of committing a crime."

54 Counsel for the appellant, Mr Karstaedt, submitted that the crime being referred to was that of the assault at Bates Road, in view of the "sole purpose" finding to which I have previously made reference. While that is a possible reading, I am not convinced it is the only one. There was also the matter of the drug implements. In addition, there is, on my view, the substantial or significant purpose argument that could have been made, although the learned Stipendiary Magistrate did not, of course, so proceed.

55 Again, on balance, I consider that, while the circumstances of the use of the vehicle were not quite as aggravating as the learned Stipendiary Magistrate may have found them to be, they were of the aggravating character I have referred to.

56 It follows from what I have said that, although a variety of errors are to be found in the sentencing remarks of the learned Stipendiary Magistrate, I do not believe that on the material before him their correction would have substantially changed the picture the learned Stipendiary Magistrate was putting forward. At least this was so in relation to its relevance for the purposes of assessing the seriousness of the assault and the driving offences.

57 With respect to the driving offences, as Ms Wisbey, counsel for the respondent, indicated in her submissions, the appellant's criminal record revealed a prior conviction for driving without a motor driver's licence in each of 1994 and 1995, and disqualification of licence due to demerit points suspension in 1997, 1998 and 2001.

58 As Ms Wisbey's submissions also indicated, with respect to the drug implements complaints, the appellant's criminal record included a history of drug related convictions including possession of a prohibited drug, possession of a smoking implement, possession of a prohibited drug with intent, and possession of a prohibited plant cultivated with intent.

59 With respect to the firearm complaint, as Ms Wisbey submitted, the firearm had been used in the commission of a violent offence, the subject of the assault complaint, and the appellant had prior convictions for two firearm offences, in 1994 for possession of an offensive weapon and in 2002 for possession of a controlled weapon, although in neither case had a substantial penalty been imposed.

60 With respect to the possession complaints, Ms Wisbey submitted that the property involved had a total value proportionate to the penalty imposed, a number of the items at least being "brand new", and the offence involved was of a different character not arising from the same set of circumstances as the assault offence (and I would add the other offences), in respect of which it was appropriate that the sentence imposed should be cumulative on the sentence imposed for the assault offence. I agree with these submissions.

61 I also note from the sentencing remarks of the learned Stipendiary Magistrate his reference to the appellant's "drug problem" and the way it had caused him in recent times "to be violent". The learned Stipendiary Magistrate further referred, again from the pre-sentence report, to the problems Messiha had in working with the counsellors who had been involved with him. This included reference in the pre-sentence report to Messiha's first encounters with mental health professionals in October 2003, where Messiha attempted to admit himself to Graylands. The report of the assessing psychiatrist included indications of verbal abuse, a threat to return to the hospital with a gun, and the high risk of aggression which, in the psychiatrist's view, meant that Messiha should not be seen without the presence of security, police, or both. At the same time, although the learned Stipendiary Magistrate does not directly refer to this, that same part of the pre-sentence report indicates that Messiha was indeed seeking psychiatric assistance both at that time and subsequently.

62 In all these circumstances, I do not conclude that the learned Stipendiary Magistrate erred in sentencing the appellant to imprisonment having regard to s 6(4) of the Sentencing Act and the sound exercise of sentencing discretion. While it was undoubtedly relevant that the prosecution and the police complainant did not seek the imposition of imprisonment, as counsel for the appellant, Mr Karstaedt, properly conceded, that does not determine the matter.

63 Nor, in the circumstances, do I consider that the sentences were "manifestly excessive" that is, outside the range of sentencing discretion. It is trite law to note that the fact that a different judicial officer might have imposed a less severe sentence for these offences is not the test in this area.

64 In relation to the 12 months for the assault, Ms Wisbey was able to refer me to two cases which, in counsel's submission, showed that the term to be immediately served was not excessive in the circumstances. One was Kitts v The Queen [2000] WASCA 113, involving a drunken assault causing serious if not grievous bodily harm by a person with an anger management problem associated with alcohol who had shown no remorse, although who had shown some efforts to address the underlying problems. There the Court upheld a sentence of 2 years' imprisonment without suspension. Reference was made in that decision to another, R v Hodges [1999] WASCA 278, involving a Crown appeal against a community based order imposed for doing grievous bodily harm by a single "king hit", with grievous bodily harm involving a degree of permanent disability, and the respondent gravely intoxicated at the time. In that case the respondent was said to be a young man who had displayed considerable remorse, who had pleaded guilty at the earliest opportunity, who had taken effective steps to address his alcohol problem, and who had no relevant criminal history. In that case however, the Court considered that the seriousness of the offence required the Crown appeal to be allowed with the sentence of 3 years' imprisonment to be immediately served the appropriate disposition, but, because it was a Crown appeal, the term was reduced to one of 2 years.

65 As Murray J indicates in that judgment at par 16, in such comparative exercises there are points of dissimilarity as well as similarity. His Honour there indicates that the cases demonstrate courts will punish "severely" such "acts of gratuitous violence which cause substantial injury".

66 In this case, I would not characterise what was involved as substantial injury. However, the sentence is a less severe one, and the other circumstances involved with its commission were ones showing a higher level of seriousness than would otherwise have been the case.

67 Somewhat the same remarks can be made in respect to the other authority cited by counsel for the respondent Ms Wisbey, Kilner v The Queen [1999] WASCA 189. That involved two assaults occasioning bodily harm, by an offender who was drunk at the time, on a person described in the appeal as "defenceless, handicapped and vulnerable". The first assault in a bar, led to a sentence of 6 months; the second, a follow-up assault on the same person a short time thereafter outside the bar, led to a sentence of 16 months. The offender pleaded guilty (as did the offender here), and the complainant's injuries required hospitalisation and at the time of sentencing the complainant was still suffering from impaired vision in one eye. In addition to the violence of the assaults, their unprovoked nature, the fact that the assailant persisted in the conduct, and the disability of the complainant, reference was also made in the appeal judgment to the public nature of the assaults. In these circumstances, the Court in Kilner (supra) upheld a sentence of imprisonment rather than a fine.

68 Again, the character of the injuries would be a ground of distinction between that case and this one. However, there were other circumstances, including those of the offence and of the offender which would tend to uphold a sentence of the sort imposed here under the not manifestly excessive standard. This is after allowing for a discount for a plea of guilty, which I discuss below.

69 I should note as well in respect of Kilner (supra) the references, in the context of argument that a suspended sentence of imprisonment would have been appropriate in that case, that counsel for the appellant in Kilner had drawn attention to the appellant's initiative in seeking counselling for anger management, his attempts to give up alcohol and the way in which these indicated the real prospects of rehabilitation. As well, there was a relatively sympathetic psychological report. However, in that case the pre-sentence report concluded that the appellant was at significant risk of re-offending.

70 In his outline of submissions, counsel for the appellant in this case, Mr Karstaedt, maintained that the learned Stipendiary Magistrate did not inform him that he was considering imposing imprisonment, in circumstances where the learned Stipendiary Magistrate was informed that the prosecution did not seek the imposition of imprisonment. I do not find this submission easy to sustain. As I have indicated, prior to securing the pre-sentence report, the learned Stipendiary Magistrate had made remarks indicating that he was considering a range of possibilities I consider that Mr Karstaedt could reasonably have interpreted those as including imprisonment. Furthermore, as I have indicated, the matter of a custodial sentence was raised in the pre-sentence report, and the possibility of one was responded to by Mr Karstaedt at the proceedings immediately before the learned Stipendiary Magistrate delivered himself of his decision. There was a substantial proportion of what Mr Karstaedt submitted at that time represented by his remarks on imprisonment.

71 It was submitted by Mr Karstaedt that it was significant, although not in a substantial way, that the learned Stipendiary Magistrate's granting of bail without an application tended to indicate that his thinking, before the pre-sentence report was obtained, was against a term of imprisonment, let alone an immediate term of imprisonment. However, it does not appear to me that this indicated, nor was it taken by defence counsel at the time to indicate, that a term of imprisonment had been excluded; and in any event it was clear from the submissions following the pre-sentence report that the defence were well aware of the possibility of imprisonment.

72 This then takes me to the matter of the ground of appeal concerning the appropriateness of a sentence of suspended imprisonment. Here, the learned Stipendiary Magistrate, having said what I indicated he did say with respect to the serious nature of the offences, and to Messiha as a threat to the community because of his violence and drug use, made only the following remarks with respect to the possibility of a suspended sentence: "... and the sentence should not in my view be suspended. I am of the view that a term of imprisonment is appropriate".

73 The appellant's counsel relied heavily on the reference in the conclusion to the pre-sentence report to the need for greater supervision of Messiha. Mr Karstaedt also referred to the previous community based orders under Pt IX of the Sentencing Act whose work requirements Messiha had completed. Counsel for the respondent, Ms Wisbey, replied that, while the learned Stipendiary Magistrate did not specifically refer to the factors he relied upon in determining suspension was not appropriate, it was clear he had regard to the same factors he had used in determining imprisonment as the appropriate disposition. I believe this is clearly right.

74 Ms Wisbey added that the failure by a decision-maker to mention a matter expressly in his or her reasons does not of itself give rise to an inference that it was not considered. Ms Wisbey added that this is particularly so in the Court of Petty Sessions, where a Magistrate is not obliged to give full and detailed reasons on all aspects of the decision-making process: R v Nevermann (1989) 43 A Crim R 347. My attention was drawn to the remarks of Malcolm CJ in Nevermann (supra) at 350 where he said:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays to the administration of justice. Reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough that the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

75 I have concluded that the sentencing remarks of the learned Stipendiary Magistrate meet the test of adequacy of reasons on the authority referred to. This does not, however, dispose of the question whether those reasons were sufficient to justify the exclusion of a suspended sentence. This goes to the application of the approach that is well understood as the governing one in this area, from R v Dinsdale (supra), a decision of the High Court, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. The respondent in its submissions particularly drew my attention to the judgment of Kirby J on that case - par 85 in the appeal, which was from the Court of Criminal Appeal of this State. His views appear to reflect those of the other members of the Court and read as follows:

"Moreover the scheme of the legislation and the two steps which s 76(1) and (2) of the [Sentencing Act] requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration and attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the Court's mercy. On the contrary, the structure and language of s 76(2) of the Act suppose the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances' [the words used in s 76(2)]. This necessitates the attribution of 'double weight' to all the factors both relevant both to the offence and to the offender - whether aggravating or mitigation - which may influence the decision whether to suspend the term of imprisonment." [footnote omitted]

76 I have already referred to the factors upon which it was open to the learned sentencing Judge to conclude that the circumstances of the offending and of Messiha were such as to require the sentences of imprisonment be served immediately, namely, the seriousness of the offences the need to protect the community and the risk presented by Messiha through his drug use, poor past performance on community supervision, violent behaviour and pattern of offending. The respondent's counsel referred me to Dicks v Farrell [2001] WASCA 124. That case, like this one, was an appeal from the sentence imposed by a Magistrate. In that case, in the decision of Roberts-Smith J of this Court, his Honour was able to conclude that the learned Stipendiary Magistrate had not considered at all the option of suspending sentence. His Honour thus allowed the appeal and re-sentenced the appellant. His Honour went through the Dinsdale (supra) analysis, referring to the seriousness of the offence (in that case, relating to an attempt to obtain finance where such attempt was made with intent to defraud by deceit), the appellant's previous performance of community based orders and probation and the like, and some "optimistic" remarks by a psychologist from whom the appellant had been receiving some counselling. On this basis, his Honour was able to conclude that suspended imprisonment was not appropriate. I agree with the respondent's counsel that this is strong authority in favour of the approach the learned Stipendiary Magistrate took in this case. It is an approach that I believe does not disclose an inappropriate exercise of sentencing discretion.

77 I can summarise my conclusion on the first four grounds of appeal, which traverse the major issues in this appeal, as follows. While the learned Stipendiary Magistrate made a number of factual determinations which were not correct, that set of circumstances is not sufficient for the appeal to be allowed. I refer to Dicks v Farrell (supra) (Roberts-Smith J) to which I had previously referred, at par 30 where his Honour says:

"I turn now to the substantive disposition of the appeal. The principles to be applied in an appeal of this kind are quite clear. There must be shown an identifiable error of law or fact on the part of the Magistrate so as to show an error of or a wrong exercise of his sentencing discretion. Alternatively if that is not possible, it must be demonstrated that the end result is so inappropriate or excessive or in other circumstances inadequate as to indicate that there must have been an error of principle even though that cannot be specifically identified (see House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386; Chan v R (1989) 38 A Crim R 337)."

I note in particular the words that I have emphasised from that quotation.

78 Further, in the circumstances, I do not consider that the term of imprisonment here was an inappropriate one. Nor do I consider that it was to be served immediately, without suspension, was a wrong exercise of sentencing discretion.

Ground of appeal (e): The pleas of guilty

"The learned Magistrate erred in not reducing the applicant's sentences by reason of his pleas of guilty, alternatively, in not adequately reducing the sentences by reason of the pleas of guilty."

80 I begin my discussion of this ground of appeal with what I suspect is the trite observation that it is one of some difficulty for an appeal Judge where the decision-maker below has not quantified any discount for an early or fast-track plea of guilty (as appears to have been the case here) that has been made. There is a very useful discussion of the point, to which, however, neither the appellant nor the respondent made reference, in the Brown text at pars 85,055.71 and 85,055.72. The starting-point for the analysis is, of course, the Sentencing Act 1995 (WA), s 8(2) read with subs (4), which is as follows:

...

(2) A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

...

(4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

81 In this case, as counsel for the respondent, Ms Wisbey's, submissions indicate, the only reference by the learned Stipendiary Magistrate to the plea of guilty was the following, which appeared at the beginning of his reasons for sentence:

"Now then you plead guilty, to your credit, to a number of matters which included driving under fine suspension, unlawful possession of property, possession of smoking implements that have been used for cannabis and also methylamphetamine. And also a charge of assault occasioning bodily harm on Andrew Liam Philip. And possession of a single-barrel shotgun which had been altered. That is, it was a saw-off shotgun."

82 There is, in particular, no quantification of the mitigating effect of this factor on Messiha's sentence.

83 Counsel for the appellant, Mr Karstaedt, submitted that, as the learned Stipendiary Magistrate did not state he was reducing the sentences on account of the pleas of guilty, it is to be assumed that no reduction was made on account of the pleas of guilty. I have accepted Ms Wisbey's submission that this involves a misreading of the decision of the learned Stipendiary Magistrate. That is, the learned Stipendiary Magistrate did state the relevant fact in open court, but did not quantify the discount. On this basis, the question is raised whether it is an appealable error not to quantify the discount.

84 Here I note that the principal Western Australian authority, apart from a decision of the High Court to which I will shortly refer, is Verschusen v R (1996) 17 WAR 467, a decision of the Court of Criminal Appeal made up of Malcolm CJ, Pidgeon and Murray JJ. There was a division of opinion on the point in issue here. However, I note that the principal judgment on this point, that of the learned Chief Justice, commends the "two-stage process" entailed by making clear the quantum of the discount is "a matter for discretion of the individual Judge" with it being "clearly desirable" that "the discount be quantified wherever it is practicable to do so": Verschusen v R (supra) at 474.

85 In Verschusen itself, the sentence was upheld, notwithstanding the failure to quantify the discount, apparently on the basis that it was possible to determine the extent of the discount. The second case cited by counsel for the appellant, Miles v R (1997) 17 WAR 518, a decision of the Court of Criminal Appeal, made up of Malcolm CJ, Pidgeon and White JJ, appears to confirm the preference for the two-stage process, but otherwise does not add anything for present purposes, as in that case the learned sentencing Judge not only indicated the credit that should be given for a plea of guilty, but went some distance towards quantifying it, on the view taken of that decision in that case.

86 The third case referred to by counsel for the appellant, Holland v R [1999] WASCA 43, a Court of Criminal Appeal made up of Kennedy, Ipp and Owen JJ, was one in which there was a fast-track plea of guilty in the Court of Petty Sessions and no reference was made to that early plea of guilty either by counsel or by the sentencing Judge. In those circumstances, in the judgment of Kennedy J, with whom Ipp and Owen JJ agreed, there is the statement that "it should, I consider, be assumed that no allowance was made by her Honour for that early plea or for the early indication of his intention to plead guilty to the two charges pending in the Court of Petty Sessions - see the Sentencing Act 1995, s 8(4)". In the circumstances, a deduction of 25 per cent was indicated by his Honour as being appropriate.

87 In this case, however, the learned Stipendiary Magistrate has indicated, albeit in language not as strong as might have been wished for, that he recognised the plea of guilty made by the appellant, and as being to "his credit". In these circumstances, I have not been able to conclude that the sentence has not been reduced by the appropriate amount, or at least an amount within an appropriate discount sentencing range. On Holland, I consider that a discount in the range of 20 per cent to 25 per cent was likely that used by the learned Magistrate here.

88 It is, of course, necessary to note that the High Court in AB v R [1999] HCA 46; (1999) 198 CLR 111 held that, in the words of the learned author of the Weldon text, "the only acceptable process is for the sentencing Judge to have regard to all the relevant factors of which a plea of guilty is only one, to arrive at an appropriate sentence. This approach has been described by their Honours who support it as the 'instinctive synthesis' or 'intuitive synthesis' method of sentencing, and to be one that is in opposition to the two-tiered approach". In my view, the accommodation of the views of the High Court and of the Court of Criminal Appeal lies in the terms in which the Court of Criminal Appeal in Verschusen indicates that it is desirable as a general proposition that the discount be quantified; but that it is not necessarily the case that the fact of an absence of quantification means that the sentencing discretion has miscarried. As Weldon, above, says:

"Much will depend on what was actually said and upon what inferences the appellate court is prepared to draw. However it should be borne in mind that, at least on the narrow view presently taken by the Court of Appeal of s 689(3), the ultimate and arguably the only question is whether the sentence that has resulted is appropriate. On that basis the Court of Criminal Appeal looks only to the sentence that has been imposed. If that sentence is not outside the sound discretionary range then there will be no miscarriage of justice, and no statutory mandate for setting aside the sentence, irrespective of how flawed were the processes that led to its determination. There is some irony in noting that this last consideration arguably supports the majority view of the High Court."

Ground of appeal (f): Parole eligibility

"In the event of it being found that the learned Magistrate did not err in imposing unconditional imprisonment, the learned Magistrate erred in not ordering that the applicant be eligible for parole.

PARTICULARS

(i) The learned Magistrate erred in not inviting submissions from the applicant's counsel on the issue of parole.

(ii) A parole eligibility order should in all the circumstances have been considered appropriate."

90 In his sentencing remarks, the learned Stipendiary Magistrate had this to say about parole:

"The sentence has been structured to reflect the penalty. Now then, I will however - - consider the penalties that have been imposed upon you with regards to whether or not I should make you eligible for parole.

In the circumstances, given your history and the comments that are made with respect to your behaviour, and your behaviour on this particular occasion, I will not make you eligible for parole.

Therefore you will serve the term of imprisonment imposed upon you."

91 I have previously in these reasons referred to the offending history of the appellant. I have also referred to the prior community-based order which he breached, as well as his being sentenced to two separate community-based orders subsequently, to his completion of the community work pursuant to his respective orders and to his attempt to admit himself to Graylands. The learned Stipendiary Magistrate appears to have been referred to these additional items of history, as well as to a further matter referred to in the pre-sentence report under the heading "Previous Response to Supervision". That matter was one concerning the escalation in his use of certain substances and their adverse side effects on his mental health, which led to his being referred for counselling. The report refers to his behaviour having become extremely volatile during October 2003 with his reacting in a violent and threatening manner while seeking assistance from various supportive agencies. He was accepted for detoxification at Bridge House with the assistance of the Department of Community Development, where he violated the zero tolerance policy at the centre and was expelled. Subsequently, he reported to the Joondalup Community Services organisation and had expressed a motivation to meet with a Department of Justice psychologist, while receiving pharmaceutical assistance from his general practitioner.

92 The appellant referred to Aburn v Sears, unreported; SCt of WA (Scott J); Library No 970508; 2 October 1997. That case involved the imposition of a sentence of imprisonment without eligibility for parole on an Aboriginal offender convicted of driving a motor vehicle while not having a driver's licence and while being under the influence of liquor with a breath analysis reading of 0.183 per cent. The offender had 19 previous convictions for driving while under suspension and the current conviction was his ninth for driving under the influence of alcohol. The prosecutor had submitted to the sentencing Magistrate that a custodial term was called for, while the offender's counsel had requested the Court to consider a suspended sentence, as the offender was then aged 29, had a de facto relationship and had two children aged 5 and 12. In sentencing the offender, the sentencing Magistrate had said, "Given that you have little idea of complying with parole I deny you parole". Scott J indicated it was important to note that the sentencing Magistrate had not invited any submissions on parole, and that counsel had not addressed the question of parole, as the issue of parole was not a live question at the time the plea in mitigation had been entered. In support of the appeal, counsel had provided the Court with reports from the Milliya Rumurra Alcohol Treatment Centre, indicating that since the offender had been in custody he had successfully completed as 12-week course in alcohol rehabilitation. The reports had indicated that the offender was a positive participant in the programme. At the same time, it had been conceded that such reports had not been before the sentencing Magistrate; the counsel for the respondent to the appeal had, however, agreed to the Court taking the reports into account.

93 This case appears to be distinguishable from the one here. As counsel for the respondent, Ms Wisbey, indicated in her submissions, counsel for the defence had addressed in this case in his plea in mitigation before the pre-sentence report was received and in a comprehensive way Messiha's personal circumstances, prospects for rehabilitation and suitability for supervision. As well, the pre-sentence report itself, unlike the reports in Aburn, was available to all parties, and the Report specifically addressed the issue of parole indicating the possible appropriateness of allowing for it.

94 I also note the reference in the respondent's submissions to Sheppard v Blakey [2001] WASCA 309, a judgment of McLure J on appeal from a decision in which an offender was sentenced to imprisonment without eligibility for parole. One of the grounds of appeal was said to be the failure of the sentencing Magistrate to invite counsel to make submissions as to why an order for parole should have been made. In that case, her Honour, at [30], indicated that counsel was aware that parole was an issue, and he had specifically addressed both sentence and parole when he asked the Court to take into account the effect on the appellant's family and the appellant's awareness that alcohol was destroying his life. That case appears to me to support the view I have taken on the corresponding ground of appeal in this case.

95 It is now necessary to engage with the second particular in this ground of appeal, namely, that a parole eligibility order should in all the circumstances have been considered appropriate. Here, it is necessary to set out in full the relevant provision in the Sentencing Act, s 89(4), before considering the submissions of counsel on this matter. As will be apparent, I requested at the hearing supplementary submissions, if counsel were able to make them, on whether the provision of the Sentencing Act in force at the date the sentence decision was made in this case may have changed the approach that Courts in this State should take with reference to an issue of eligibility for parole.

96 As a result of an amendment made by Act number 50 of 2003 to the Sentencing Act 1995, s 89(4) as it was in force at the date of sentencing in this case, was in the following terms:

"89(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 2 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;

(d) any other reason the court considers relevant."

97 This subsection replaced the previous s 89(2), which was in the following form:

"89(2) In determining whether it is appropriate to make a parole eligibility order, the court may have regard to all or any of the following:

(a) the seriousness and nature of the offence;

(b) the circumstances of the commission of the offence;

(c) the offender's antecedents;

(d) the circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

98 Counsel for the appellant, Mr Karstaedt, in his written submissions addressed the former version of the legislation, s 89(2) and referred me to authorities which he indicated set out the relevant principles, most notably "a bias towards eligibility". The first of these, Thompson v R (1992) 8 WAR 387, was a decision of the Court of Criminal Appeal, made up of Malcolm CJ, Pidgeon and Owen JJ, on appeal against a sentence of 10 years' imprisonment without an order for eligibility for parole imposed on the offender following convictions for doing grievous bodily harm with intent and other offences. One of the grounds of appeal was that the sentencing Judge failed to give consideration to the prisoner's need for guidance upon reintegration into the community at the completion of the period of incarceration, such guidance being by way of release from prison on parole. At pages 395 - 396 of the unanimous judgment of the Court, it sets out a list of the principles relevant in the context of a determination of whether or not at the time of imposing a sentence of imprisonment an order that the offender be eligible for parole should be made. The legislative context at the time of Thompson was that of the Offenders Community Correction Act 1963, s 37A. The respect in which this judgment was commended to me appears to be the third of the nine principles where their Honours say:

"The discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing Judge which points positively towards the appropriateness of parole (see Howell v The Queen (1989) 2 WAR 60 at 61 - 62 per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v The Queen (supra), per Brinsden J at 67 - 68 [1989 2 WAR]; Yarran v The Queen, unreported, SCt, WA, Library No 8762, 15 March 1991), per Malcolm J at 4)".

99 In the same connection, I was also referred to Wongawol v R (1998) 101 A Crim R 350, a decision of the Court of Criminal Appeal of this State, Walsh, Wallwork and Murray JJ. The appeal was against the failure by the sentencing Judge to make an order for eligibility for parole in respect of a sentence of imprisonment totalling 6 years in respect of charges on which he was convicted of aggravated burglary, armed robbery, deprivation of liberty and criminal damage. Walsh J, in a portion of his judgment with which the other members of the Court concurred, quoted in full the nine principles with respect to parole from Thompson, noted the change in the legislative context to what was then the Sentencing Act 1995 (WA) s 89(2) and said, at 353:

"In my opinion the same principles apply under the present legislative provisions."

100 Appellant's counsel, Mr Karstaedt, in the written submissions in this appeal particularly pointed to the factors in the former s 89(2)(a) and (b) of the seriousness and nature of the offences and circumstances of the offences, having regard to the facts put forward by the defence as indicated above. In those submissions he also referred to the former s 89(2)(c), Messiha's antecedents, his "relatively minor record" and the fact he had not been previously sentenced to imprisonment. Mr Karstaedt's submissions also referred to the former s 89(2)(d) and the youth of the appellant, as well as the consideration that without parole he would emerge from prison with no supervision and was a person with a history of drug problems, in the context of a pre-sentence report where the conclusion stated that the appellant "appears to require greater supervision". Finally, Mr Karstaedt's submissions also addressed the former s 89(2)(e), "any other reason the court decides is relevant", by reference to positive signs of rehabilitation, being that the appellant's family stood behind him, his marriage of seven years, his two small children and the assistance of his brother, a security officer, towards his rehabilitation. Reference was also made in this connection to the fact that Messiha had, on all previous occasions, completed the community work components of the community-based orders, while the pre-sentence report had stated there was stability in the extended family situation, the prosecution had not submitted that parole should be refused, or that imprisonment should be imposed, and that the pre-sentence report did not contain a recommendation for any particular disposition, but rather had suggested the greater supervision referred to, and stated that if a custodial sentence were considered appropriate, Messiha "may be a suitable candidate for parole".

101 Counsel for the respondent, Mr Wisbey, in her written submissions referred me to Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336, a decision of the Court of Criminal Appeal of this State on the former s 89 in an appeal against sentence ordered after pleas of guilty to 34 offences, including a series of serious sexual offences against six victims, in addition to assaults and theft, and involving a refusal to make a parole eligibility order. One of the grounds of appeal was on the basis that the learned sentencing Judge had failed to start from a presumption in favour of the grant of parole. Anderson J, in his judgment at 87, with whose judgment in this respect Pidgeon J concurred, but on which Wallwork J expressed neither concurrence nor disagreement, indicated that this was not a proper ground of appeal. This was on the basis that the question was whether the sentencing Court "gave consideration to the matter it was required to consider, not whether the sentencing Court did or did not start from one presumption or another". His Honour referred to the statement in Thompson concerning "a bias towards eligibility", but indicated that he did not believe that meant that sentencing Judges must start from a presumption in favour of the grant of parole. He indicated that, as he understood the case, it stood for the proposition "that provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is sufficient reason not to exercise that discretion in his or her favour".

102 During argument in the appeal before me, the current form of s 89, and in particular the replacement of s 89(2) by s 89(4) was noted. I requested counsel to consider within seven days of the conclusion of the hearing addressing supplementary submissions to me on two matters to do with the new form of the subsection. One was whether the change in the wording signified a change with respect to the approach a sentencing Court should take on the eligibility for parole issue, and, if so, what that change was. The second matter was the question of the application of s 89(4) to the present proceedings giving that s 89(4) had come into force on 31 August 2003, between the dates on which the events representing the offences in this case had occurred, and the date of sentencing.

103 Both counsel took the opportunity to tender supplementary written submissions, for which I express my considerable gratitude. These submissions, as I invited counsel to do, addressed the legislative history of what is the current s 89(4).

104 The question of application of current s 89(4) can be quickly disposed of. The matter was conceded by both counsel in their supplementary submissions. The appropriate basis for the concession appears to be Sentencing Act 1995, s 3(1). The current s 89(4) applied in this case.

105 The other matter that I raised is not as readily disposed of. The appropriate starting point, however, is at least clear. It is Interpretation Act 1984, s 19(1) which reads as follows:

"(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material 

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law_;_ or

(b) to determine the meaning of the provision when 

(i) the provision is ambiguous or obscure_;_ or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable."

This provision needs to be read in the context of two others. First is s 18, which states:

"In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."

The other provision is s 19(2) which in material part reads as follows:

"(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes 

...

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted;

(c) any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted;

...

(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House."

106 Counsel for the appellant, Mr Karstaedt, argued that the meaning of s 89(4) was clear enough. Its plain meaning was no different in the respect relevant to me than the former s 89(2). Ms Wisbey's corresponding submission was that it was arguable the new provision, s 89(4), was somewhat more stringent than the predecessor, and that this might tend to reinforce the argument that what might appear to be a "harsh" denial of parole, although one arguably within sentencing discretion of former s 89(2), was even more clearly within that discretion under the new provision.

107 It is my view that the new provision is "ambiguous or obscure", read without extrinsic material, on the point that is relevant to me. This would appear to be one of those settings in which resort to extrinsic material is capable of being of assistance, and I therefore have resorted to it. Both counsel referred to the following extrinsic material as indicating that the purpose of the amendments was to remove any suggestion of a presumption in favour of making a parole eligibility order and to enlarge the discretion whether or not to order eligibility for parole, with a difference of emphasis that I will return to shortly. Extrinsic material so referred to was the "Report of the Review of Remission of Parole" (his Honour K J Hammond Chair), Western Australian Ministry of Justice, March 1998 at pages 7, 5, 6, 24 and 25 ("The Hammond Report"); Parliamentary Debate (Hansard), Legislative Assembly 2002, pages 179 - 180, Parliamentary Debates (Hansard), Legislative Council, 3 December 2002, page 3766 and "Report of the Standing Committee on Legislation" in relation to the Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill 2002, Report 18, May 2003, pages 89-91.

108 Counsel for the appellant, Mr Karstaedt, in his submission particularly drew my attention to a passage from the Hammond Report at page vii, containing as its first recommendation "parole facilitates re-integration and protects the community by lessening the risk of recidivism". That supplementary submission also quoted from the passage in the Legislative Assembly debates I have referenced, as one of the reforms of the sentencing legislation, the provision of a "greater capacity for courts to refuse eligibility for parole, particularly for repeat offenders and those who offend on parole". The words from "particularly" onwards were emphasised by Mr Karstaedt. Mr Karstaedt further referred me to those debates, at page 180, where it is indicated the Government wished to ensure that legislative changes did not result in an increase in the prison population, and that the amendments to the parole provisions were not intended to significantly reduce the number of people made eligible for parole, while in this regard the Standing Committee report to which I have also referred, at page 91 was said to indicate that the amendments to s 89 were expected to bring about only a small reduction (10 to 20 per cent) in the number of people made eligible for parole.

109 Counsel for the appellant also noted that is was not clear from the authorities prior to the introduction of s 89(4) that the legislation then in force had been interpreted as giving rise to a presumption in favour of the granting of parole, with Thompson and Wongawol, referred to as well as Taylor v The Queen [2004] WASCA 31, in particular at [18] where there is reference to Abdullah v The Queen [2002] WASCA 57 at [14], which in turn commends the statement in Garlett of Anderson J to which I have previously made reference.

110 In all the circumstances, it appears to me that the purpose of the amendments is to make a change by way of enlargement of the discretion of the court, at least to the extent of addressing any supposed presumption in favour of parole referred to. This does not, however, amount to an intended major change, at least in relation to the position as mentioned in Garlett, and in fact the amendment may be saying no more than that the true position is the one in Garlett. Counsel for the respondent, Ms Wisbey's, supplementary submissions, making reference to much the same material as Mr Karstaedt's, appear to me to arrive at the same conclusion.

111 On that basis I am remitted to the issue I have previously proposed. Here, the question is a close one, as counsel for the appellant has made it clear to me. There are factors pointing towards parole, being those set out in the context of the prior legislation to which the appellant referred.

112 Against these are the matters of the seriousness of the offences, the appellant's criminal history (which I consider a "significant" one for the purpose of the decision on parole eligibility under s 89(4)(b)), Messiha's mixed history in relation to community-based orders and treatment, and the concerns as to his violent behaviour flagged in the pre-sentence report that went to the matter of a possible threat to the community.

113 In the event, I am left with the view that, although the learned sentencing Magistrate made some errors in relation to the circumstances of the offence of the sort that I referred to earlier in these reasons, they are not ones that I consider to have been such as to cause this aspect of the exercise of his sentencing discretion to miscarry. In addition, as was determined by Wallwork J in Garlett v The Queen (supra) at 344, it cannot be said that the learned sentencing Magistrate overlooked any of the relevant criteria in the relevant legislative provision. In those circumstances, as was the case with Wallwork J in Garlett (although the question was a closer one for me in view of the errors referred to) I am left with the conclusion that the issue is to be disposed of in terms of the Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 reminder, that the question to be decided is not whether a member or members of this Court may have exercised the sentencing discretion differently, but whether the learned sentencing Judge erred in the exercise of his discretion.

114 Mr Karstaedt in relation to the eligibility for parole issue addressed me at some length on Wongawol v R (supra). In that case, of very serious offending, in which the accused had pleaded guilty and co-operated with the police from the earliest opportunity, there was a pre-sentence report which, like the current one, referred to the possibility of a custodial sentence but at the same time indicated that the accused might benefit from a period of parole. This was not withstanding that the accused was assessed in the report as unsuitable for any form of community based order, and that the accused had an alcohol problem which he was unwilling to do anything about. There was evidence going to the ability to condition the parole on residence in an alcohol-free Aboriginal community, which was prepared to receive the accused, who was himself Aboriginal. That factor, together with material before the sentencing Judge in Wongawol that there was newfound maturity of the accused in the context of expressions of great remorse, would seem to distinguish that case from this one. Although, as I have said, the case is a very close one, I have not been able to conclude, as the Court in Wongawol was able to conclude, that the sentencing Judge failed to take account or give proper emphasis to positive indications in the pre-sentence report.

115 Mr Karstaedt also referred to Oleksiuk v Downing, unreported; SCt of WA (Seaman J); Library No 940189; 8 April 1994. That case involved a conviction for burglary and stealing offences of a 20-year-old amphetamine addict. He had an appalling record for similar offences. There was an uncontested plea in mitigation that the appellant had never been assessed or treated for his addiction. He had also previously been imprisoned, and while released on parole had violated the parole conditions. In that case, the learned Magistrate did not obtain any pre-sentence report or other report that would have clarified the question for him, and the court accordingly determined that the sentence had to be approached on the facts stated by counsel which had not been contested by the prosecution. The appeal court found that the offences were of a sort that caused great distress and concern to members of the community, and the circumstances of the commission of the offence were ones of a cunning, deliberate and unpleasant nature. The appellant had a very serious record of like and other offences of dishonesty substantially greater than anything involved in this case. The appellant was however, 20, in a de facto relationship, he had a child and had a reasonable record of employment. At that point, the appeal court indicated that had matters rested there the learned Magistrate's discretion to comply to order eligibility for parole could not have been criticised. However, there was the consideration of the question of record that showed past periods of imprisonment and re-offending to support his habit which tended to indicate he would be unlikely to conquer his addiction without support and assistance other than the sort available in the prison system. Nor had such treatment been attempted in the past. Again, there are matters in this case which distinguish it from the one before me, in ways which would suggest to me that, although the question is a close one, I cannot form the view that the learned Magistrate's discretion in relation to eligibility for parole has miscarried.

116 Accordingly, I would not uphold this ground of appeal.

117 In concluding this ground of appeal, I should note that neither counsel referred me to Yanko v The Queen [2004] WASCA 37, delivered on 12 March 2004 shortly after the hearing in this case. That case involved a parole determination by this Court under the current s 89(4) of the Sentencing Act 1995. Templeman J at [55] for the Court noted that the amendment in his view was made "in such a way as to remove that bias in favour of parole which existed previously". However, he noted also that "the discretion to grant parole still exists", and that there was a "recommendation for parole" in the pre-sentence report in that case.

118 I consider those remarks, against the backdrop of the materials I have referred to from counsel's submissions in this case do not change the view of the amendments I associate with them. I consider this case distinguishable from Yanko in view of the apparently rather more qualified statement about parole in the pre-sentence report before all of those in the sentencing court in this case.

Ground of Appeal (g): Miscalculation of sentence(s)

"The learned Magistrate erred in miscalculating the sentences in respect of each of the two charges."

120 This ground was not separately addressed in Mr Karstaedt's written submissions. However, at the hearing Mr Karstaedt approached the matter, it would seem, in the following fashion. He submitted to me that it was necessary to consider the matter of what term of sentence with parole would equate to the sentence without parole. Undertaking such an exercise, the equivalent sentence to the one imposed in this case would be 6 years under the legislation before the most recent changes or 4 years under the legislation currently.

121 Ms Wisbey submitted that this was to approach the matter in an incorrect way. The issue is one of determining the appropriate sentence, and then to consider the appropriateness of parole. This appears to me clearly to be correct. It is the better view, I believe, that the Court is not permitted to determine a term of imprisonment by reference to the minimum period before parole which it would wish Messiha to spend in custody: see R v Roberts [2003] WASCA 203, at [14] per Wheeler J. The approach the appellant commended to me would, with respect, appear to be a variation on this error. Mr Karstaedt in oral argument raised the question, however, of how the Magistrate arrived at his period of 24 months. The allowance of one-third was, of course, the result of the current sentencing legislation, under its transitional rules. In these circumstances, it would appear to me, on the authorities cited in that section in Weldon, "Criminal Law in Western Australia" at s 85,655.15, that making the driving, firearm and drug implements sentences concurrent while making the possession sentence cumulative as the learned Stipendiary Magistrate did would appear to be well within the bounds of sentencing discretion, and, on the analysis thus far, to be appropriate. Further, it seems to me that the learned Stipendiary Magistrate clearly considered the totality of the sentence he was imposing.

122 With respect to the length of the sentences in respect of each of the charges, I have dealt with these in relation to the sentence being manifestly excessive. I again would refer to the factors that the learned Stipendiary Magistrate had before him.

Ground (h): The length of the licence suspension

123 This finally brings me to the remaining ground of appeal (h) which is:

"In relation to the charge of driving under licence suspension the learned Magistrate erred in ordering that the appellant be disqualified from holding a driver's licence, alternatively, erred in ordering a period of disqualification for an excessive period."

124 Section 49(3b) of the Road Traffic Act 1974 authorises a Court sentencing an offender for driving whilst legally disentitled under a licence suspension to order that the person be disqualified from holding or obtaining a driver's licence for a period of not more than three years. With respect to this suspension, the learned Stipendiary Magistrate in his sentencing decision said the following:

"And I do that [apply the 18 months' licence disqualification period], particularly with the respect to the vehicle being used for the purpose of committing a crime."

125 Mr Karstaedt submitted that the statement thus made was based on the Magistrate's erroneous finding that the appellant's purpose or sole purpose in going to the house at Bates Road, Innaloo was to recover his money. I have already dealt with this finding and the nature of the error that it represented. The respondent referred me to the matter that the vehicle also contained drug implements and was being used for the purpose of transportation and storage of them. In those circumstances, it does not appear to me that the learned Stipendiary Magistrate's exercise of his sentencing discretion fell outside an appropriate range. I would therefore not uphold this ground of appeal.

126 In the circumstances, I have determined that the appeal in this matter should be dismissed.

• The complaints in this matter and their disposition
• Presentations made to the learned Stipendiary Magistrate
• Ground 1A - D: Appellant's imprisonment
• Ground of appeal (e): The pleas of guilty
• Ground of appeal (f): Parole eligibility
• Ground of Appeal (g): Miscalculation of sentence(s)
• Ground (h): The length of the licence suspension