NARRIER -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2025] WASCA 51 (8 April 2025)

Section 426(2) of the Code expressly provides that this summary conviction penalty applies to the circumstances described unless s 426(4) applies.

1. Section 426(4) of the Code provides that the summary conviction penalty for an offence under s 378 where the value of the property in question does not exceed $1,000 is a fine of $6,000.
2. On 26 February 2024, the sentencing magistrate dealt with the appellant for 77 offences. Fifty-four of the offences had been the subject of conditionally suspended imprisonment orders. Twenty-three of the offences were new offences committed during the suspension period of the conditionally suspended imprisonment orders.
3. Two of the new offences (PE/42587/2023 and PE/42588/2023) were charges of stealing from the person of another, for which the maximum penalty provided for in item (5)(a) of s 378 of the Code is 14 years' imprisonment. It is common ground that the value of the property the subject of these charges does not exceed $1,000.
4. The sentencing magistrate decided to impose sentences of 4 months' immediate imprisonment for each of these stealing offences, as part of a total effective sentence of 16 months' immediate imprisonment for all 77 offences. The sentence for PE/42587/2023 was made the head sentence, upon which the sentence for PE/42588/2023 was to be served cumulatively. The individual sentences imposed for PE/42587/2023 and PE/42588/2023 made up 8 months of the 16-month total effective sentence.
5. The appellant unsuccessfully appealed to the General Division of this court against the above sentences on various grounds. Relevantly for the appeal to this court, in ground 4 of her appeal to the General Division, the appellant contended that a term of imprisonment was not open to the magistrate in respect of charges PE/42587/2023 and PE/42588/2023.
6. In Dukes v Barrett,[2] Hasluck J in effect held that the summary conviction penalty in s 426(4), as it then stood, only applied to an offence against s 378 of the Code for which no punishment other than the maximum penalty of 7 years' imprisonment referred to in the opening paragraph of s 378 was provided. Therefore, the summary conviction penalty provided for in s 426(1) and s 426(2) applied to the offence (in Dukes) of stealing as a servant even though the value of the property stolen was less than the amount then identified in s 426(4) of the Code. Dukes was applied by Allanson J in Wolfenden v Brigden.[3]
7. In the present case, the primary appeal judge considered himself bound to follow Dukes unless his Honour concluded that the reasoning of Hasluck J in that case was plainly wrong.[4] While the primary appeal judge recognised the existence of a counterargument, his Honour was not persuaded that the reasoning of Hasluck J in Dukes was plainly wrong. His Honour observed:[5]

The decision of Dukes v Barrett has stood since 2001 and has been applied by this Court and in the Magistrates Court. If, on the several occasions on which s 426 has been amended since 2001, the Parliament had wished to amend s 426(4) to clarify its meaning or to make clear that a different meaning applied, it could have done so.

1. The primary appeal judge therefore refused leave to appeal on ground 4 of the appeal to the General Division from the sentences imposed by the magistrate.
2. There was nothing inappropriate in the primary appeal judge following the decision in Dukes unless satisfied that it was plainly wrong. However, this court is required to give effect to its own view of the proper construction of the statutory provisions. As neither this court nor the Court of Criminal Appeal has previously determined the issue, there is no occasion for this court to consider whether an earlier different construction of the provisions is plainly wrong.

1. Under s 3(2) of the Code, an indictable offence is triable only on indictment, unless the Code or another written law expressly provides otherwise.
2. Section 5 of the Code qualifies the rule in s 3(2) of the Code. Under s 5(1), s 5 of the Code applies if:

(a) a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and

(b) a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).

1. Section 5(2) of the Code provides that, despite s 3(2), a court is generally to try the charge summarily, unless the court decides the charge is to be tried on indictment on an application by the prosecutor or accused before the accused pleads to the charge. Section 5(8) ‑ s 5(10) provide for the sentencing of an accused convicted of an indictable offence by a court of summary jurisdiction in the following terms:

(8) If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.

(9) If the court -

(a) convicts the accused of the offence charged after a plea of guilty or otherwise; and

(b) considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,

the court may commit the accused to a court of competent jurisdiction for sentence.

(10) An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.

1. The first paragraph of s 378 of the Code provides:

Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.

As the offence is described as a crime, it is an indictable offence.[6]

1. The balance of s 378 of the Code, under the heading 'Punishment in special cases', makes provision for other maximum penalties in identified circumstances. Examples of the provision for punishment in special cases include:

(1) If the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender is liable to imprisonment for 10 years.

(2) If the thing stolen is a motor vehicle and the offender -

(a) wilfully drives the motor vehicle in a manner that constitutes an offence under the Road Traffic Act 1974 section 60 or 60A; or

(b) drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving),

the offender is liable to imprisonment for 8 years.

...

(5) If the offence is committed under any of the circumstances following, that is to say -

(a) If the thing is stolen from the person of another;

the offender is liable to imprisonment for 14 years.

(6) If the offender is a person employed in the Public Service, and the thing stolen is the property of Her Majesty, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for 10 years.

(7) If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.

1. Section 426 of the Code provides for summary conviction penalties for certain stealing and like offences, in the following terms:

(1) Subsection (2) applies to the following indictable offences -

(a) an offence under section 378, 382, 383 or 388 in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;

(b) an offence under section 378 to which Item (5)(a), (6), or (7) of that section applies;

(d) attempting to commit, or inciting another person to commit any of the offences mentioned in paragraph (a) or (b);

(e) receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.

(2) Summary conviction penalty: for an offence to which this subsection applies where the value of the property in question does not exceed $50 000, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.

(3) Summary conviction penalty: for an offence -

(a) under section 378 or 414; or

(b) of attempting to commit, or inciting another person to commit, an offence under section 378 or 414,

where the property in question is a motor vehicle, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.

(a) under section 378, 382, 383, 388 or 414; or

(b) of attempting to commit, or inciting another person to commit, an offence under section 378, 382, 383, 388 or 414,

where the value of the property in question does not exceed $1 000 - a fine of $6 000.

1. In very general terms, s 426A provides that the summary conviction penalty in s 426(4) of the Code does not apply to the conviction of certain repeat offenders. That section was inserted into the Code by an amendment that commenced on 1 July 2024.[7]
2. As can be seen, s 426 of the Code also provides for summary conviction penalties for offences against s 382, s 383, s 388 and s 414 of the Code. These sections create offences the maximum penalties for which are provided for by reference to s 378 of the Code.[8]

1. The reference in s 426(4) of the Code to an offence under s 378 of the Code is to the offence of stealing defined in the first paragraph of that section. That is the only offence created by s 378 of the Code. Later parts of s 378 do not create separate offences, but rather identify circumstances of aggravation for which a greater statutory penalty is provided. In that context, s 426(4) provides for the summary conviction penalty whenever the single offence created by s 378 is committed in relation to property which has a value not exceeding $1,000. The summary conviction penalty will apply even where the stealing offence is committed in circumstances attracting higher maximum penalties such as the circumstances specified in item (5)(a) of s 378 of the Code.
2. This construction of s 378 and s 426 of the Code does not produce any anomalous results that might justify a departure from the ordinary meaning of the statutory text. By providing for a summary conviction penalty, s 426(4) does not limit the court's assessment of the sentence which is commensurate with the seriousness of the offence against s 378 of the Code. It is well-established that a summary conviction penalty is a jurisdictional limit rather than a maximum penalty which applies on a summary conviction.[9] When a magistrate sentences a person for a stealing offence against s 378 of the Code in relation to property not exceeding $1,000 in value, the task under s 6 of the Sentencing Act 1995 (WA) remains to impose a sentence which is commensurate with the seriousness of the offence. It remains the case that the seriousness of the offence is to be determined taking into account the statutory penalty for the offence.[10] In the circumstances provided for in item (5)(a) of s 378 of the Code, that statutory penalty remains imprisonment for 14 years. If the magistrate concludes that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it,[11] so that it is not appropriate to use another sentencing option,[12] then the appropriate course is to commit the offender to a court of competent jurisdiction for sentencing. The court to which the offender is committed can then impose the sentence which is commensurate with the seriousness of the offence.
3. The observations in the previous paragraph answer the concern expressed by Allanson J in Wolfenden, that:[13]

[T]here would be an irreconcilable inconsistency between s 378(1), which deals with the stealing of a testamentary instrument, a document which almost invariably would be of nominal value, and where the prescribed offence is 10 years' imprisonment, and s 426(4), where such an offence would be liable to a fine only.

It is unnecessary for this court to express any view as to the usual value of a testamentary instrument. On the assumption that a testamentary instrument had only a nominal value, in an appropriate case a sentence of imprisonment could still be imposed. In such a case, the sentence of imprisonment would simply need to be imposed by the District Court rather than the Magistrates Court.

1. In the present case, it is implicit in the magistrate's decision to sentence the appellant to terms of immediate imprisonment for the offences charged in PE/42587/2023 and PE/42588/2023 that his Honour regarded terms of immediate imprisonment to be the only appropriate sentences for those offences. Once the sentencing magistrate reached that view, the appropriate course would have been to commit the appellant to the District Court for sentencing on those offences. However, the Magistrates Court itself did not have the power to impose terms of imprisonment for the offences charged in PE/42587/2023 and PE/42588/2023.
2. The contrary view adopted by Hasluck J in Dukes was based on the distinction created by s 426(1)(a) and s 426(1)(b) of the Code between 'stealing and the three specific forms of stealing'. His Honour considered that those provisions would serve no purpose 'unless the intention was to allow for a lesser summary penalty for the general offence of stealing'.[14] However, in our view the language of s 426(1) supports the construction we have adopted. If the reference in s 426(1) to an offence under s 378 of the Code was only to the first paragraph of that section, then the subsequent statutory text of s 426(1)(a) would be tautological. Further, s 426(1) defines when the summary conviction penalty in s 426(2) applies and that summary conviction penalty is expressed to operate unless s 426(4) applies. This indicates that s 426(4) can apply to qualify the summary conviction penalty in a case to which s 426(1) and s 426(2) of the Code would otherwise apply. The express limitation of the application of s 426(1) and s 426(2) to stealing offences committed in specified circumstances also counts strongly against the existence of an implicit limitation in the general language of s 426(4) of the Code.
3. As the primary appeal judge noted, s 426 of the Code has been amended on several occasions since the decision in Dukes. It would appear from the Attorney General's second reading speech to the Bill for the 2024 Amendment Act that, in making that amendment, Parliament proceeded on the understanding that 'when a person is charged with stealing an item valued at $1,000 or less and it is dealt with summarily, a fine only penalty of $6,000 is applied'.[15] There is no occasion in these circumstances to apply the re-enactment presumption (that where Parliament repeats words which have been judicially construed, it can be taken to have intended the words to bear the meaning already judicially attributed to them). The force of this presumption depends upon the particular circumstances having regard to the history of the specific statute under consideration.[16] Parliament has not re-enacted s 426, and the last amendment to the provision proceeded on a basis inconsistent with the construction adopted in Dukes.
4. The legislative policy evident in the text of s 426 is that:
   1. The summary conviction penalty for any offence against s 378 of the Code in respect of property with a value not exceeding $1,000 is a fine of $6,000.
   2. The summary conviction penalty for stealing a motor vehicle with a value exceeding $1,000 is 2 years' imprisonment and a fine of $24,000.
   3. The summary conviction penalty for a stealing offence in respect of other property with a value exceeding $1,000 and not exceeding $50,000, for which no punishment other than 7 years' imprisonment is provided or for which the other punishment provided in items 5(a), 6 or 7 applies, is 2 years' imprisonment and a fine of $24,000.
   4. There is no summary conviction penalty for stealing property other than a motor vehicle in the aggravating circumstances specified in items of s 378, other than items 5(a), 6 and 7, where the value of the property exceeds $1,000.
5. Therefore, the reference in s 426(4) to an offence under s 378 of the Code is a reference to that offence whether or not committed in the circumstances of aggravation identified in items 1 - 9 of s 378 of the Code. The summary conviction penalty provided in s 426(4) applies whenever the offence of stealing is committed in respect of property with a value that does not exceed $1,000.

1. It follows that the summary conviction penalty for the offences charged in PE/42587/2023 and PE/42588/2023 was a fine of $6,000. The sentencing magistrate did not have the power to impose a sentence of imprisonment for those offences. If the magistrate concluded that a sentence of imprisonment was the only appropriate sentencing option for those offences, then his Honour ought to have committed the appellant to the District Court for sentence.
2. This court has the power to vary the sentences imposed for the offences charged in PE/42587/2023 and PE/42588/2023.[17] In exercising that power the court may have regard to any relevant matter that has occurred between when the appellant was convicted and when the appeal was heard.[18]
3. As at the date of the appeal hearing before this court, the appellant had spent almost 13 months in custody since being sentenced on 26 February 2024. This was in addition to the 371 days the appellant previously spent in custody on remand, which the sentencing magistrate accounted for by reducing the total effective sentence which would otherwise have been imposed. The cumulative sentences of imprisonment for PE/42587/2023 and PE/42588/2023 represented 8 months of the 16-month total effective sentence imposed by the Magistrates Court. If fines were imposed for PE/42587/2023 and PE/42588/2023 and there was no adjustment to other sentences, the total effective sentence would have expired on 26 October 2024, just under 5 months prior to the hearing of the appeal. It also appeared from additional evidence tendered for the purposes of resentencing that the appellant had made encouraging progress towards rehabilitation while in custody.
4. This court may infer that the appellant has very limited means to pay a fine. She has been in custody for the periods noted in the previous paragraph and we were informed by her appeal counsel that she has never held employment.[19]
5. Both parties to the appeal contend that, in these circumstances, this court should exercise its resentencing power to impose a nominal fine for the offences charged in PE/42587/2023 and PE/42588/2023 and make no adjustment to the other sentences. We accept that this is the appropriate disposition on resentencing in all the unusual circumstances of this case.
6. The only sentences which were before this court, identified in the amended appeal notice to this court,[20] were the sentences for the offences charged in PE/42587/2023 and PE/42588/2023. Neither party asked this court to vary the sentences imposed for any other offence. In these circumstances, it was open to this court to vary only the sentences imposed for the offences charged in PE/42587/2023 and PE/42588/2023, rather than exercise the sentencing discretion afresh in respect of all 77 charges dealt with by the Magistrates Court on 26 February 2024.[21] While it remained open to this court to vary the other sentences under s 41(2) of the Criminal Appeals Act, given the time spent in custody and the parties' common position, we were satisfied that this was not an appropriate case for the court to exercise its discretion under that provision.
7. Having regard to the time spent by the appellant in custody prior to the appeal hearing and her progress towards rehabilitation, it would not at the date of the appeal hearing have been appropriate to substitute an order committing the appellant to the District Court for sentence. Having regard to those matters, in particular the 5 months which the appellant had spent in custody after the expiry of the other sentences, we were satisfied that nominal fines were commensurate with the seriousness of the offences charged in PE/42587/2023 and PE/42588/2023.

1. For the above reasons, at the hearing of the appeal we made the following orders:
   1. The Amended Appeal Notice is amended by deleting the reference to SJA/4044/2024.
   2. The appellant's application in an appeal filed on 24 March 2025 for leave to adduce additional evidence in the appeal is granted.
   3. Leave to appeal is granted on the sole ground of appeal.
   4. The appeal is allowed.
   5. Orders 1 and 2 of the orders made by the Supreme Court of Western Australia on 17 December 2024 in SJA/1043/2024 are set aside and the following orders are substituted:
      1. Leave to appeal is granted on ground 4 of the appeal in SJA/1043/2024.
      2. The appeal is allowed in relation to the sentences imposed for charges PE/42587/2023 and PE/42588/2023.
      3. The sentences of 4 months' immediate imprisonment imposed in the Magistrates Court of Western Australia on each of charges PE/42587/2023 and PE/42588/2023 are set aside and in each case a fine of $10 is substituted.
      4. The appeal in SJA/1043/2024 is otherwise dismissed.

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

[1] Narrier v Director of Public Prosecutions [2024] WASC 480 (primary decision).

[2] Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136.

[3] Wolfenden v Brigden [2013] WASC 461. See also Director of Public Prosecutions (WA) v Peters [2010] WASC 139 [22] (E M Heenan J).

[6] Interpretation Act 1984 (WA) s 67(1a).

[7] By s 6 of the Criminal Code Amendment Act 2024 (WA) (2024 Amendment Act).

[8] Section 382, s 383 and s 388 of the Code create offences which are described in the relevant chapter heading as being analogous to stealing and provide for the offender to be 'liable to the same punishment' as if the relevant thing was stolen. Section 414 of the Code relevantly creates an offence for receiving property obtained by means of any act constituting an indictable offence. Where the court is satisfied as to the act by means of which the property was obtained, the maximum penalty for an offence against s 414 of the Code is the penalty provided for the offence constituted by that act, or imprisonment for 14 years, whichever is the lesser.

[9] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26] - [31], followed in Smart v Director of Public Prosecutions (WA) [No 2] [2023] WASCA 193 [52]; Sharpe v Vinning [2020] WASCA 79 [122]; Fawcus v The State of Western Australia [2013] WASCA 86 [25]; Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 [29]; Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [16], [70]; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421 [55].

[10] Sentencing Act s 6(2)(a). The term 'statutory penalty' is defined in s 4(1) of the Sentencing Act to mean the penalty specified by a written law for the offence.

[11] See Sentencing Act s 6(4).

[12] Sentencing Act s 39.

[15] Western Australia, Parliamentary Debates, Legislative Assembly, 22 February 2024, 310 (Mr J R Quigley, Attorney General).

[16] See Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 274 CLR 177 [10] ‑ [17], [51] - [52].

[17] Under s 18 read with s 14(1)(c) of the Criminal Appeals Act 2004 (WA).

[18] Under s 18 read with s 14(5) of the Criminal Appeals Act.

[20] At the appeal hearing counsel for the appellant sought and was granted an amendment of the amended appeal notice to remove an erroneous reference to SJA/4044/2024 (appeal ts 9, 11).

[21] Compare McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] - [9].