SBJ -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 32 (19 February 2019)

1. The appellant was 41 years of age at the time he was sentenced. He had what was referred to in reports as an unremarkable childhood.[3] After he left school he completed an apprenticeship as a baker. When later working as a baker, the appellant commenced using amphetamines. In the same period, significant problems with the appellant's mental health began to emerge.[4]
2. The appellant has been diagnosed with schizophrenia by several psychiatrists. The cause of the illness appears to date from about 1998, when he had a drug‑induced psychotic episode.[5]
3. It was not in dispute before the sentencing judge that the appellant suffers long‑term chronic paranoid schizophrenia.[6] Nor was it in dispute that at the time of the offending, the appellant was suffering from severe psychosis.[7]
4. The appellant's psychosis was first managed assertively while he was in prison in 2011. In 2012, the appellant was assessed and diagnosed with chronic paranoid schizophrenia, in early remission, and with methylamphetamine abuse and dependence, which was in sustained remission while he was in the controlled environment of prison.[8]
5. The appellant suffered relapses of his psychosis in 2013, after he stopped taking his medication. Other assessments and diagnoses of schizophrenia were made in 2014 and 2015.[9]
6. The appellant was psychiatrically assessed in custody on 21 March 2016,[10] 10 days after he committed the offence with which this appeal is concerned.
7. The appellant's mental state at the time of the offence was assessed in early 2017 by Dr Brett, a consultant psychiatrist.[11]
8. The sentencing judge noted that the appellant had conveyed to Dr Brett that, at the time of the offence:

(1) he believed that he had been contracted by Telstra to participate in a navigation competition;

(2) he believed that he had won first prize and that the people who came second and third were unhappy and wanted to kill him;

(3) he was fearful for his life and wanted help; and

(4) he thought that one of the occupants of the room was a race steward for the competition.[12]

1. The sentencing judge noted that Dr Brett had concluded that:

(1) the appellant's psychosis deprived him of the capacity to exercise appropriate judgment;

(2) the appellant had an impaired ability to make calm and rational choices; and

(3) the psychosis deprived the appellant of the capacity to know that he ought not do what he was doing.

His Honour concluded that '[b]ased upon Dr Brett's opinion, [the appellant was] insane at the time and had a legal defence under the Criminal Code on the grounds of insanity'.[13]

1. As the sentencing judge noted, following receipt of Dr Brett's report, a judge alone trial was scheduled to commence on 4 September 2017, at which the State was intending to concede that the appellant was insane. However, on 21 August 2017, the appellant entered a plea of guilty. The sentencing judge ordered that a psychiatric report be taken for sentencing purposes. Dr Bala prepared a psychiatric report dated 3 November 2017 which accepted that the appellant was acting under psychosis at the time of the offending, but did not address the question of whether the appellant was insane at the time of the offence.[14]
2. The sentencing judge set out the following extract of Dr Bala's report, reflecting Dr Bala's opinion as to the appellant's mental state at the time of the offence:[15]

[The appellant's] offending seems to have been driven by an abnormal mental state marked by psychotic beliefs of persecution and grandiosity. He was fearful, anxious and engaged in the offending directly in response to beliefs that he would be killed.

Hence, he was in an impaired mental state where he could not exercise appropriate judgment, make calm and rational choices or think clearly, because he believed that his life was in danger and that he would be killed. The offence was impulsive, not premeditated and the turning off of the lights may also been [sic] evidence of his psychotic beliefs that he was in danger.

1. The manner in which the judge treated the opinions expressed by Dr Brett and Dr Bala is challenged by ground 3.

1. When the appellant was sentenced, he already had a very lengthy criminal history. He had numerous convictions of burglary, fraud, stealing, drug offences and some offences involving violence. He had served a number of sentences of imprisonment, including terms of imprisonment imposed:

(3) in August 2002, for burglary and resisting arrest;

1. The sentencing judge identified, as aggravating features of the appellant's offending, that the burglary was committed in the early hours of the morning and involved victims who were elderly. The judge observed that the incident must have been extremely traumatic for the victims, who were confronted by a highly agitated and threatening person in the middle of the night.[17]
2. The judge noted the difficulty of reconciling the reports of Dr Brett and Dr Bala with the appellant's plea of guilty. The judge made the following observations and findings:[18]

The psychiatric reports of Dr Brett and Dr Bala place me as the sentencing judge in a very awkward position. If you were suffering from ... psychosis at the time, it is difficult to see how this can be reconciled with the conclusion that you were sane at the time of offending.

The only way I have been able to reconcile the psychiatric reports with the offending behaviour is to conclude that initially, you were acting under the psychosis when you invaded the room. However, once the occupants left the room, I conclude your actions were no longer driven by the psychosis. You decided to remain in the room and to take the opportunity to steal the belongings of the occupants.

This makes some sense. The stealing of the belongings cannot be explained away by the psychosis. You remained in the room, gathered up the possessions of the occupants and stole them. At the time, you were not in the room with their consent.

This staying behind in the room for the purposes of stealing items, in my view, satisfies the elements of burglary. Although neither counsel have advanced this description of the offending, in my opinion, it is the only factual scenario which is consistent with the plea and the psychiatric reports before me [and] the presumption of insanity as to the elements of the offence - sorry, [and] the presumption of sanity at the time the elements of the offence were committed.

It is on this basis that I propose to sentence you. I accept that your decision to steal the property was opportunistic and your judgment was impaired by your mental state at the time. At the time, your mental state had been deteriorating leading up to the offence because you had failed to take antipsychotic medication as prescribed.

I am satisfied that your decision to remain in the room and steal items was a decision made by you when your judgment was impaired, having just experienced a severe psychotic episode.

The judge's approach to the appellant's mental illness is challenged by ground 3.

1. The judge drew the following conclusions as to the mitigating effect of the appellant's mental health problems:[19]

I accept this reduces your culpability because of your impaired ability to exercise appropriate judgment and make rational decisions. I accept this reduces your culpability. However, you did know that you were doing wrong when you rummaged through the occupant's possessions and stole them, although your judgment was impaired at the time.

However, his Honour found that the counterpoint to any mitigation was that the appellant's mental illness made reoffending more likely.[20]

1. The judge identified the appellant's plea of guilty as a mitigating factor. His Honour gave a discount of 8% on the head sentence.[21] The judge took into account that the appellant had been in custody since 2 July 2016 in relation to the matter.[22] The judge also identified the appellant's genuine remorse as a mitigating factor.[23]
2. Through his counsel, the appellant claimed to have provided assistance to the police, warranting a discount. In response to this, the judge said as follows:[24]

Finally, there is the issue most recently raised of your cooperation with police. You say that you provided the police with information of the involvement of at least six persons in various types of offending.

The police do not believe any of the information you have provided will enable the police to convict anyone of an offence, although an alleged Centrelink fraud has been referred to Centrelink for investigation.

I am unable to make any judgment on the material before me as to whether the information provided by you is useful or not. Police have indicated that you have made numerous attempts to provide them with information with a view to try and get your sentence reduced.

On the basis of the material before me, I'm unable to give any significant discount to you for this cooperation, but I will treat it as some manifestation of any [sic] intention to be cooperative to the police generally, and will take it into account in a minimal way.

Ground 1 challenges the sentencing judge's approach to this subject.

1. The judge gave consideration to making a pre-sentence order with a provision that the appellant be supervised by the Start Court. In rejecting this approach, his Honour observed that there was uncertainty as to whether the appellant would be deemed suitable, and no suitable accommodation was available for the appellant.[25]
2. Having decided that it was inappropriate for sentencing to be further delayed, his Honour held that a term of imprisonment of 3 years was appropriate.[26] His Honour noted that the appellant's compliance with community supervision orders had been poor.[27] His Honour was of the view that, notwithstanding his mental illness, the appellant would understand the significance of, and be motivated by, a suspended term of imprisonment.[28]
3. His Honour concluded that it was appropriate to impose a partly immediate and partly suspended sentence.[29] The judge observed that it was not possible to impose conditions on a partly suspended term of imprisonment, adding that:[30]

it may well be that eventually on the summary charges, you will qualify for the Start Court and perhaps receive the support that is likely to be appropriate for your mental health issues.

1. The judge noted that the fixed term would come to an end at approximately the end of February 2018, that being 'very shortly' after the time of sentencing.[31]
2. After a short adjournment, the judge had the matter recalled to note that he had not made a parole eligibility order in relation to the fixed term. The judge observed that he had not done so because of the seriousness of the appellant's offence and because the appellant had already served the bulk of the fixed term.[32] Ground 4 challenges the sufficiency of the judge's reasons for not granting parole.

1. The appeal was listed for hearing on 16 November 2018. The appellant appeared on his own behalf on that date. At a very early stage, the court identified issues of construction of the Sentencing Act, concerning partly suspended terms of imprisonment, on which it might have been in the appellant's interests, and of assistance to the court, for the appellant to be legally represented. The hearing of the appeal was adjourned to enable that to occur.
2. At the resumed hearing of the appeal on 19 December 2018, the appellant was, initially, represented by counsel. Counsel had prepared, filed and served written submissions.
3. Counsel handed up a proposed new ground, ground 6, and made oral submissions in support of the appeal. In the course of a midmorning break, counsel's instructions were terminated. The appellant then made oral submissions on his own behalf, without resiling from what counsel had submitted on his behalf.

1. The appellant appeals on six grounds. Grounds 1 ‑ 5 may be summarised as follows:
   1. The sentencing judge erred in law in failing to specify the extent of the reduction he would afford for assistance provided to law enforcement authorities, as required by s 8(5) of the Sentencing Act.
   2. The sentence imposed was manifestly excessive.
   3. The sentencing judge erred in fact as to the appellant's culpability and the causal contribution of his mental illness.
   4. The sentencing judge erred in law in failing to state 'relevant reasons' as to why parole would not be granted on the immediate term of imprisonment.
   5. The sentencing judge failed to consider the appellant's successful completion of rehabilitation programmes, undertaken while remanded in custody prior to sentencing.
2. Leave to appeal on grounds 3 and 4 was granted. In relation to the other grounds, the question of leave was referred to the hearing of the appeal.[33]
3. Ground 6 was added, by leave, at the hearing of the appeal. We will set it out later in these reasons, after dealing with the merits of grounds 1 ‑ 5.

Ground 1: assistance to law enforcement authorities

1. The appellant's submissions on ground 1 may be summarised as follows:

(1) Even if the sentencing judge was unable to be satisfied as to the usefulness of the information provided by the appellant, the appellant's offer was nevertheless accepted as genuine co‑operation and should have been afforded a discount, the amount of which should have been specified as required by s 8(5) of the Sentencing Act.[34]

(2) The sentencing judge misconstrued the information available to him about the appellant's assistance. In particular, a letter from a police officer was wrongly taken by the judge to mean that the appellant's assistance was not of much value to police.[35]

(3) A (different) police officer met with the appellant in prison to obtain further information, but this could not be done until he was released from custody. The appellant's attempts to progress communications with the police officer have been fruitless.[36]

(4) The sentencing judge refused the appellant's counsel's request for an adjournment to obtain more information. In that manner, the appellant was denied the opportunity to present all relevant information to the judge.[37]

1. For the following reasons, in our opinion there is no merit in ground 1.
2. First, the appellant's reliance on s 8(5) of the Sentencing Act is misplaced. That section provides that if a court reduces the sentence that it would otherwise have imposed on the offender because an offender undertakes to assist law enforcement authorities, the court must state that fact and the extent of the reduction in open court. In substance, neither the appellant's submissions to the sentencing judge, nor the material put before the sentencing judge, involved an undertaking to provide future assistance to law enforcement authorities. Rather, taken at its highest, the material was capable of revealing, and was said on behalf of the appellant to reveal, the appellant's past offers to assist. The appellant submits that his letter of 31 July 2017 was an undertaking to give future assistance.[38] We do not accept that submission. The letter was written almost six months earlier, to a police officer. For present purposes, the letter is properly characterised as part of the appellant's past offers of assistance. The appellant did not proffer to the sentencing judge an undertaking that he would, in the future, assist the authorities. Consequently, s 8(5) of the Sentencing Act did not apply.
3. Secondly, we are not satisfied that the judge materially misunderstood the material before him,[39] concerning the extent to which the appellant's cooperation had provided any assistance to law enforcement agencies.
4. Thirdly, we are not satisfied that any error is shown in the judge's conclusion that the appellant's offer of assistance had not been shown to have provided any actual assistance, but was 'some manifestation of [an] intention to be cooperative to the police generally'[40] to be taken into account in a minimal way.[41] Subject to conventional grounds for appellate interference in a discretionary decision, the weight to be given to this consideration was a matter for the sentencing judge.[42] No express or implied error is revealed. To the contrary, we agree with the sentencing judge that the appellant's cooperation did not warrant significant weight as a mitigating factor.
5. Fourthly, the judge's decision to proceed to sentence without a further adjournment reveals no error and did not occasion a miscarriage of justice. The sentencing process had already been adjourned three times, on the last occasion in order to see whether appropriate accommodation for the appellant could be obtained. Moreover, the appellant accepted, on appeal, that all relevant information in his possession had been provided to the sentencing judge.[43]
6. Fifthly, the absence of error in the judge's approach is reinforced by consideration of the confidential letter, sought and obtained by this court, concerning the nature, extent and consequences of the appellant's offer of cooperation.
7. For these reasons, we would not grant leave to appeal on ground 1.
8. It is convenient to deal next with ground 5.

1. Ground 5 asserts that the sentencing judge failed to consider the appellant's successful completion of rehabilitation programmes while he was remanded in custody. The appellant contends that it should be inferred that the sentencing judge failed to do so because the sentencing remarks do not refer to the appellant's completion of rehabilitation programmes, and that this constitutes appellable error.[44]
2. In our view, when the sentencing judge's remarks are viewed, as they must be, in the framework of the material and submissions put to him, the inference the appellant invites cannot be drawn.
3. Counsel for the appellant filed written submissions on sentence in advance of the hearing before the sentencing judge. Paragraph four of those submissions stated that the appellant sought to rely on the materials contained in an attached affidavit. The affidavit annexed two certificates concerning programmes completed by the appellant while on remand.[45] With one possible qualification, there was no reference to these programmes anywhere else in the appellant's five‑page written submissions to the sentencing judge. The qualification is a less than clear reference to completion of prison programmes in par 10. Moreover, counsel for the appellant made extensive oral submissions on sentence.[46] The central focus of the written and oral submissions made on behalf of the appellant to the sentencing judge was the appellant's mental impairment. The thrust of the submissions was that, taking into account the appellant's mental impairment, and his need for comprehensive assessment and treatment, a conditional suspended imprisonment order was appropriate. There was no mention of the rehabilitation programmes completed by the appellant in the appellant's extensive oral submissions to the sentencing judge.
4. In circumstances where no reference was made to the rehabilitation programmes as a mitigating factor in the appellant's extensive written and oral submissions on sentence, it cannot be inferred from the judge's failure to mention the rehabilitation programmes that his Honour failed to take them into account in the sentencing process. In all the circumstances of the case, the appellant's completion of programmes was of such slight mitigatory weight that the invited inference cannot be drawn from the judge's failure to specifically mention it as a mitigating factor.
5. For these reasons, we would refuse leave to appeal in respect of ground 5.
6. We turn to ground 3.

1. Ground 3 contends that the judge erred as to the appellant's culpability and the causal contribution made by his mental illness.
2. The appellant submits that the sentencing judge should have accepted the opinion of Dr Brett that, at the time of committing the offences, the appellant was acting under psychosis.[47] The appellant submits that, given that Dr Brett's opinion was uncontradicted, it was not open to the trial judge to reject that opinion and form his own opinion.[48]
3. These submissions cannot be accepted. The judge was not obliged to accept Dr Brett's opinion. Indeed, it was not open to the sentencing judge to do so because that would have been inconsistent with the appellant's plea of guilty. By his plea of guilty, the appellant accepted that he was criminally responsible for his conduct the subject of the offence. The appellant's plea of guilty having been accepted by the court, the judge was obliged to sentence the appellant on that basis.
4. As the judge correctly recognised, this combination of circumstances posed a challenge, in reconciling the expert opinions expressed in the reports with the appellant's plea of guilty. The judge raised this difficulty with the appellant's counsel at an early stage of the sentencing proceedings.[49] In the course of sentencing submissions by the State, the judge articulated a possible way of reconciling the expert evidence with the appellant's plea of guilty, which was substantially the same as the approach his Honour ultimately adopted.[50] When counsel for the appellant was given the opportunity to make submissions in reply to the State's submissions, counsel took no issue with what had been said by the sentencing judge.[51]
5. When the sentencing proceedings resumed on 12 December 2017, the judge reiterated the manner in which he reconciled the expert evidence with the appellant's plea.[52] Again, counsel for the appellant raised no issue in that regard in the course of his submissions.[53]
6. Further, the judge found that:

(1) the appellant's decision to remain in the room and steal items was made when his judgment was impaired, having just experienced a psychotic episode;[54] and

(2) consequently, the appellant's culpability was reduced.[55]

1. There was no unfairness in the manner in which the judge reconciled the expert psychiatric reports with the appellant's plea of guilty. Before the sentencing judge, counsel for the appellant did not advance a different alternative. Moreover, the approach adopted by the sentencing judge was favourable to the appellant; this is reflected in the fact that, when the judge foreshadowed his approach, it was opposed by the State, but not by counsel on behalf of the appellant.
2. For these reasons, ground 3 fails.

1. By ground 2, the appellant contends that his sentence is manifestly excessive. The appellant does not challenge the sentencing judge's conclusion that some immediate imprisonment was appropriate.[56] Rather, the appellant contends that the total term of 36 months is manifestly excessive as to length.[57]
2. The appellant points to the following matters in support of his contention that his sentence is manifestly excessive:[58]

(1) The offence did not occur at the victims' residence but rather in a motel, which informs the place his offending occupied on the scale of seriousness of burglary offences.

(2) The offending conduct was not planned or premeditated.

(3) The uncontradicted expert medical evidence was that the offending conduct was a consequence of the appellant's psychotic beliefs and delusions.

(4) The property that was taken was returned to the arresting officers.

(5) The appellant could have been charged with the less serious summary offence of stealing.

(7) The appellant had taken steps to rehabilitate himself in prison by doing available courses.

(8) The appellant attempted to provide assistance to the authorities.

(9) At the time sentence was imposed, the appellant had spent over 18 months in prison.

1. The appellant's submissions fall well short of persuading us that a sentence of 3 years' imprisonment is manifestly excessive.
2. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the appellant's personal circumstances.
3. The maximum penalty for the offence committed by the appellant is 20 years' imprisonment.[59]
4. As to sentencing patterns for offences of home burglary, see the cases collected in Winmar v The State of Western Australia.[60]
5. The sentencing judge correctly characterised the appellant's offence as a serious example of an offence of aggravated burglary. The victims were awoken in the early hours of the morning by the appellant. When they opened the door in response to his knocking, they were confronted by the agitated appellant, who forced his way in. The judge rightly observed that the incident must have been extremely traumatic for the victims.[61]
6. As to the consideration to which the appellant points at [59](1) above, although the offending occurred in a motel, rather than the victims' ordinary residence, the motel room was, by its nature, ordinarily used for human habitation. The appellant's conduct in disturbing the victims in the motel room gave rise to a real potential for physical confrontation. Moreover, occupiers of a motel room are entitled to feel confident that they will be safe and secure in the room.
7. Mitigating factors for the appellant included his plea of guilty, his remorse, the time he had spent in custody and his offers of assistance to the authorities. The major mitigating factor in the appellant's favour was his mental illness. The principles concerning the relevance of mental impairment to the sentencing process are well established. In Suleiman v The State of Western Australia,[62] Buss P recently summarised them as follows:

The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).

In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:

'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].'

See also R v Wright (1997) 93 A Crim R 48, 50 ‑ 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 199[2]) 14, adopted and emphasised by Gleeson CJ in Engert (71).

1. As we have said, the judge gave mitigatory weight to the appellant's mental illness, see [55] above. However, in many cases, including this case, mental illness does not only weigh in one direction. The judge rightly identified that the appellant's mental illness required weight to be given to the need to protect the public against the risk of further[63]ffending.63 The acuteness of that risk was reinforced by the appellant's criminal history.
2. In our opinion, after taking into account:

(a) the maximum penalty for the appellant's offence;

(b) the seriousness of the particular circumstances of the appellant's offence, as outlined in [64] above;

(c) the place which the appellant's criminal conduct occupies on the scale of offences of this kind;

the appellant's sentence of 3 years' imprisonment cannot be said to be unreasonable or plainly unjust.

1. The appellant's submissions in support of ground 2 also contend that the manifestly excessive sentence was a result of several material express errors. While, of course, express errors are not within the ambit of a ground of appeal asserting manifest excess, we will explain why, in our opinion, none of the appellant's complaints in this regard have substance.
2. The appellant asserts the following express errors:[64]

(a) the judge erred in determining the appellant's level of moral culpability as to the seriousness of the offending conduct;

(b) the judge made an express error of fact concerning the appellant's personal circumstances in considering whether the appellant's mental illness had any bearing on the stealing offence;

(c) the judge erred in failing to grant parole in respect of the immediate component of the term of imprisonment;

(d) the judge erred in failing to allow a complete backdate of the sentence imposed;

(e) the judge failed to actually apply the discount for the plea of guilty; and

(f) the judge failed to consider the appellant's successful completion of rehabilitation programmes which he had undertaken.

1. Complaint (a) may be intended to reflect the appellant's complaint concerning the judge's treatment of his mental illness.[65] To the extent that that is so, the complaint fails for the reasons already given in relation to ground 3. Otherwise, it is unclear what is intended by the complaint. We are not satisfied that the sentencing judge erred in his assessment of the appellant's culpability.
2. The complaints in (b) and (c) are the subject of, respectively, grounds 3 and 4 and are dealt with in our reasons concerning those grounds.
3. For the reasons explained in resolving ground 6, it was not open to the judge to backdate the commencement of the sentence he imposed. Consequently, complaint (d) falls away.
4. Complaint (e) is without merit. The appellant attempts to reverse engineer the judge's starting point to demonstrate that the judge did not, in fact, apply the 8% discount which his Honour stated. The appellant identifies the figure which, when discounted by 8%, would lead to a sentence of 3 years.[66] Given that the appellant had, as the sentencing judge recognised, other mitigating factors in his favour giving rise to a further, unquantified, discount, the appellant's attempt at reverse engineering is both futile and misconceived.
5. Complaint (f) is the subject of ground 5 and has been dealt with above.
6. For these reasons, we would refuse leave to appeal in respect of ground 2.

1. Ground 4 complains that the judge failed to state relevant reasons for refusing to make a parole eligibility order. For the reasons explained below in resolving ground 6, in our opinion, it was not open to the sentencing judge to make a parole eligibility order in respect of the partly suspended sentence of imprisonment which he imposed. Consequently, ground 4 falls away.
2. That brings us to ground 6.

1. At the hearing of the appeal, counsel for the appellant sought and obtained leave to add ground 6, as a new ground of appeal, in the following terms:
   1. The learned trial judge erred in ordering that the balance of 16 months be suspended on a partially suspended imprisonment order for a period of 12 months.

(1) Section 77(2) of the Sentencing Act provides that the suspension period begins on the day that the sentence was imposed.

(2) It is not possible to backdate the commencement of a partly suspended sentence.

(3) It is not possible to make a parole eligibility order in respect of a partly suspended sentence.

(4) Section 39(4) of the Sentencing Act provides that the court must not use more than one of the sentencing options in subsection (2) when sentencing an offender.

(5) The sentencing provisions relating to backdating (s 87); duration (s 86) and parole (s 87) deal with terms of imprisonment to be served immediately and do not apply to partially suspended imprisonment.

1. Ground 6 raises for consideration the construction and operation of amendments made to the Sentencing Act in 2016, which permitted a term of imprisonment to be partly suspended.

1. Prior to those amendments to the Sentencing Act, which came into effect in 2017, a partly suspended term of imprisonment was not an option for a sentencing judge. A term of imprisonment could be required to be served immediately, or wholly suspended with or without conditions.
2. By the time the appellant was sentenced, the amendments providing for partly suspended terms of imprisonment had come into operation. The relevant statutory provisions were (and are) as follows.
3. Section 39 of the Sentencing Act identifies the sentencing options when a court is sentencing an offender who is a natural person. It provides as follows:
   1. Natural person, sentences for

(1) This section applies to an offender who is a natural person.

(2) Subject to sections 41 to 45, a court sentencing an offender may -

(a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or

(b) with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or

(c) with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or

(ca) with or without making a spent conviction order, under Part 8A impose a suspended fine; or

(d) with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or

(e) under Part 10 impose an ISO and order the release of the offender; or

(f) under Part 11 impose suspended imprisonment and order the release of the offender; or

(g) under Part 12 impose CSI and order the release of the offender; or

(h) under Part 13 impose a term of imprisonment.

(3) A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.

(4) A court must not use more than one of the sentencing options in subsection (2) when sentencing an offender for an offence except where section 41 or 42 applies.

1. Section 4(4) of the Sentencing Act provides as follows:

(4) In this Act a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of -

(a) the whole of the term or terms; or

(b) part of the term or terms.

Part 11 of the Sentencing Act - suspended imprisonment

1. Part 11 provides for suspended imprisonment. It includes s 76 and s 77 which are in the following terms:
   1. When imprisonment may be suspended

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) Suspended imprisonment is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order; or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended.

(a) a parole order, home detention order, or work release order, made under the Sentence Administration Act 1995; or

(b) a parole order, or re-entry release order, made under the Sentence Administration Act 2003.

(1) An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless -

(a) during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and

(b) a court makes an order under section 80.

(2) The suspension period begins on the day on which the sentence is imposed.

(3) If during the suspension period an offender is sentenced to imprisonment for another offence that was not committed during the suspension period, the suspension period continues to elapse while the offender is serving that sentence.

(4) An offender who is sentenced to suspended imprisonment is to be taken to be discharged from the sentence at the end of the suspension period.

(5) Subsection (4) does not affect the operation of subsection (1) or sections 78 to 80.

(6) For the purposes of a law other than this Part and Parts 12 and 13, a sentence of suspended imprisonment is to be taken as being a sentence of imprisonment. (footnotes omitted)

Part 12 of the Sentencing Act - conditional suspended imprisonment

1. Part 12 provides for conditional suspended imprisonment. Section 81 provides, relevantly, that:
   1. Certain courts may suspend imprisonment conditionally

(1) A prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to the following conditions -

(a) the standard obligations in section 83; and

(b) one or more of the primary requirements in section 84, as decided by the court.

(2) CSI is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

(3) CSI is not to be imposed if -

(a) the offence was committed when the offender was subject to an early release order; or

(b) the offender is serving or is yet to serve a term of imprisonment that is not suspended.

(a) a parole order, home detention order, or work release order, made under the Sentence Administration Act 1995[.] (underlining added)

Part 13 of the Sentencing Act - immediate imprisonment

1. Part 13 provides for imprisonment which, in its context following pts 11 and 12, means immediate imprisonment. Section 85 sets out a number of definitions, including, relevantly that:

(1) 'fixed term means a term that is not life imprisonment'; and

(2) 'term means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment'.

1. Sections 86, 87, 88 and 89 provide, relevantly, as follows:
   1. Term of 6 months or less not to be imposed

A court must not sentence an offender to a term of 6 months or less unless -

(a) the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months; or

(b) the offender is already serving or is yet to serve another term; or

(c) the term is imposed under section 79 of the Prisons Act 1981.

(1) If when an offender is being sentenced to imprisonment for an offence -

(i) in custody in respect of the offence for which the offender is being sentenced; or

(ii) in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;

(b) the sentencing court decides that that time should be taken into account,

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

(2) Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).

1. Concurrent, cumulative or partly cumulative terms

(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).

(2) An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).

(3) If at the time an offender is sentenced to a fixed term -

(a) the offender is serving or has yet to serve another fixed term imposed previously; or

(b) the offender is then also sentenced to serve another fixed term,

(c) the fixed term is to be served cumulatively on the other fixed term; or

(d) the fixed term is to be served partly concurrently with the other fixed term.

(4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.

(5) An offender sentenced to life imprisonment is to serve that sentence concurrently with any other term that he or she is serving or has yet to serve.

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

(2) A parole eligibility order must not be made if the fixed term, or the aggregate of the fixed terms, imposed by the court is less than 6 months, except where the offender, at the date of the sentence, is serving or has yet to serve -

(a) a parole term imposed previously; or

(b) a fixed term or fixed terms imposed previously -

(i) which, or the aggregate of which, is less than 6 months; and

(ii) which, with the term or terms imposed by the court, would result in an aggregate of 6 months or more.

(3) A parole eligibility order must not be made in respect of a prescribed term.

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

(a) the offence is serious;

(b) the offender has a significant criminal record;

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

(d) any other reason the court considers relevant.

Ground 6: the 2016 amendments - legislative provisions and extrinsic material

1. The Sentencing Legislation Amendment Act 2016 (WA) effected a substantial number of amendments to the Sentence Administration Act 2003 (WA), the Sentencing Act 1995 (WA), and the Criminal Code (WA).
2. For present purposes, it is necessary only to detail the amendments made to the Sentencing Act that relate to the introduction of partly suspended imprisonment as a sentencing option. First, s 4(4), set out at [84] above, was introduced. Secondly, the words 'the whole of' were deleted from s 76(1). (We will refer to s 4(4) and to s 76(1), as amended, as the amended provisions.) Before the 2016 amendments, s 76(1) provided:

A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months. (emphasis added)

1. The Explanatory Memorandum provided, relevantly, as follows:[67]

Overview of the Bill

...

Amendments contained in Part 4 Divisions 3 to 6 of the Bill implements changes informed by the conclusions in the statutory review of the Sentencing Act, and serve to improve sentencing processes and the range of options available to courts.

...

Clause 61 Section 4 amended

...

Subclause 61(3) inserts a proposed new subsection 4(4) which provides any reference to the suspension of a term, or terms, of imprisonment is a reference to a suspension of the whole, or part, of the term or terms.

...

Clause 68 Section 76 amended

This clause amends subsection 76(1) by deleting the phrase 'the whole of'. The amendment ensures the order for a suspended sentence of imprisonment referred to in subsection 76(1) may apply to the whole, or part, of the term as a consequence of the new proposed subsection 4(4) of the Act inserted by clause 61(3). (emphasis added)

1. The Minister's Second Reading Speech included the following:[68]

Clause 61(3) introduces another important policy initiative of government - that of, partially suspended imprisonment sentences. While much of the feedback from the stakeholders to the statutory review questioned the value of the suspended imprisonment sentence, the Government intends to retain these provisions in the Act. The concept of conditional suspended sentences was introduced in 2004 and has proved effective. The concept of partially suspended sentences which, of course, can be made conditional, fills a gap and allows the court to signal to the offender that a short period of immediate imprisonment is necessary whilst the balance can be suspended on conditions.

Ground 6: the parties' submissions The appellant's submissions

1. The terms of ground 6, read with its particulars, assert several conclusions concerning the proper construction of the relevant provisions of the Sentencing Act. Not all of those conclusions are consistent with each other.
2. The respondent was content for ground 6 to be read broadly so as to encompass what the respondent conceded were errors made by the sentencing judge.[69]

1. As clarified in oral submissions, the appellant's primary contention is that neither s 76 nor any other provision of the Sentencing Act empowers a court to impose a term of imprisonment that is partly suspended.[70] The appellant accepts that the legislature has attempted to introduce power to partly suspend sentences, but submits that the construction of the relevant provisions for which he contends is demanded by the terms of s 39(2)(f), s 77(2) and s 39(4) in the manner outlined at [109], [111] and [[[71]](2019_32.html#_Ref5347144<a name=)] below, respectively.71

1. In the alternative, the appellant adopts the contentions advanced in the respondent's submissions outlined at [97](1) [72](3) below72 with the consequence that the judge erred in the respective manners conceded by the respondent outlined at [98<[73]](1) and (2) below.73

1. The respondent filed comprehensive supplementary submissions concerning the issues of construction of the Sentencing Act relating to partly suspended imprisonment. The respondent contends for a construction of the Act to the following effect:

(1) The effect of s 4(4), with the amendment to s 76 removing the words 'the whole of', is to empower a court to partly suspend a term of imprisonment. The entirety of that sentence - comprising service of an immediate term of imprisonment followed by a period during which imprisonment is suspended - is to be regarded as a sentence of suspended imprisonment imposed under pt 11 of the Act.[74]

(2) Because a partly suspended term of imprisonment is imposed (solely) under pt 11 of the Act, the provisions of pt 13, including s 87 (backdating) and s 89 (parole eligibility), do not apply.[75]

(3) The effect of s 77(2) is that the 'suspension period' begins on the date that the offender is sentenced and encompasses both the component of the term of imprisonment that is to be immediately served, and the component that is suspended.[76] By s 76(1), the suspension period, encompassing both components of the sentence, must not exceed 24 months.[77]

1. In light of the construction she advances, the respondent accepts that the sentencing judge erred in law in the following respects:

(1) It was not open to the judge to backdate the sentence to commence earlier than the day on which the appellant was sentenced.

(2) It was not open to the judge to provide for a 'suspension period' of 32 months, which exceeded the maximum 24 month duration of a suspension period.

(3) Alternatively to (2), the 12‑month 'suspension period' imposed commenced on the day the appellant was sentenced and, thus, ended before the appellant had served the component of the term that was to be immediately served.[78]

1. As will be seen, we accept the first and second construction contentions advanced by the respondent at [97] above, but not the third. Consequently, we conclude that the judge erred in the first respect identified by the respondent at [98] above, but not in the other two respects.

No power to partly suspend conditional suspended imprisonment

1. It is common ground, and we accept, that the power to partly suspend a term of imprisonment does not extend to conditional suspended imprisonment imposed under pt 12. Section 81, the empowering provision in pt 12, was not amended in like manner to s 76. Section 81 provides that the court may order that 'the whole of the term ... be suspended'. The combined effect of the relevant legislative provisions is clear, despite the facts that:

(1) it might be thought that a power to partly suspend, conditionally, a term of imprisonment would be a desirable option for sentencing judges; and

(2) the Second Reading Speech reveals an understanding that the 2016 amendments would make that option available.

Power to partly suspend imprisonment: the proper construction of the relevant provisions

1. The principles of statutory construction are well‑known. For a recent summary, see Mohammadi v Bethune.[79] Given the nature of the appellant's primary arguments, we have borne in mind the limits of the process of construction. The constructional task is to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation and it is not repair.[80]

The amended provisions relating to partly suspended imprisonment: s 76 and s 4(4)

1. The appellant submits that a court has no power to impose a partly suspended term of imprisonment. The terms of the 2016 amendments, and the text of s 76 as amended, tend to the contrary. The terms of the material provisions of the 2016 amendments, understood in the context of the Sentencing Act as it then stood, reveal an intention to amend s 76 to empower a court to suspend the whole or part of a sentence of imprisonment (provided the total term or terms do not exceed 60 months). That conclusion is reinforced by what is said in the Explanatory Memorandum and in the Minister's Second Reading Speech.
2. Nothing in the language of s 76, read with s 4(4), impedes construing these provisions as effective to confer the power they were evidently intended to confer. To the contrary, the language of s 76 is apt to confer the power to suspend the whole or part of the term or terms of imprisonment. Further, where, as here, a power is conferred upon a court, the power‑conferring provision is to be construed as liberally as its terms and context permit.[81]

The relationship between the amended provisions and other relevant provisions

1. The appellant contends that two other provisions of the Sentencing Act - s 39(2)(f) and s 77(2) - are intractably inconsistent with the existence of a power to impose a partly suspended term of imprisonment. For a number of overlapping reasons, we do not accept this submission.
2. To the extent that provisions of an Act appear to be in conflict, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the construction which best gives effect to the purpose and language of those provisions, while maintaining the unity of all the statutory provisions.[82] Where the text, read in context, permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relevant coherence of each, with the scheme of the statute and its identified objects or policies.[83] Reconciling conflicting provisions may require the court to determine which is the leading provision and which is the subordinate provision, and which must give way to the other.[84]
3. As we explain at [109] ‑ [110] below, we do not consider there to be any conflict between s 76(1), read in the manner explained at [102] - [103] above, and s 39(2)(f). As for s 77(2), at first blush that subsection might be seen to impede the operation of s 76(1) in respect of partly suspended imprisonment. However, there are two alternative reasons why that conclusion should be rejected. First, s 77(2) and s 76(1) can be read harmoniously in the manner explained at [115] ‑ [124] below. Alternatively, as explained at [127] - [128] below, insofar as there is any conflict between s 76(1) and s 77(2), in our view, s 76(1) is the leading provision to which s 77(2) must give way.
4. The appellant further submits that partly suspended imprisonment would breach the prohibition in s 39(4) on using more than one sentencing option. As explained at [131] ‑ [135] below, in our view, partly suspended imprisonment involves the adoption of only one sentencing option, and so does not breach s 39(4).
5. We will deal in turn with each of the three provisions on which the appellant relies.

1. Section 39(2)(f) empowers a court under pt 11 to 'impose suspended imprisonment and order the release of the offender'. The appellant submits that s 39(2)(f) means that the court's power to impose suspended imprisonment under pt 11 is constrained by the need to order the release of the offender. The appellant contends that a partly suspended sentence of imprisonment is inconsistent with the need to order the release of the offender because the court cannot, simultaneously, impose an immediate term (as a component of a partly suspended term) and order the release of the offender.[85]
2. The flaw in the appellant's submission is that it assumes, but does not establish, that s 39(2)(f) requires the court to order the immediate release of the offender. Section 39(2)(f) is silent as to the time at which the offender is to be released. Section 39(2)(f) can be read harmoniously with the existence of the power to impose partly suspended imprisonment under s 76, in the following manner. Where a court wholly suspends the offender's imprisonment, the court orders the immediate release of the offender. Where, on the other hand, the court partly suspends the offender's imprisonment, the court orders the release of the offender at the expiry of the component of the term that is to be immediately served.

Reconciling s 77(2) with the amended provisions

1. Section 77(2) provides that 'the suspension period begins on the day on which the sentence is imposed'. Counsel for the appellant did not develop his argument that this provision is intractably inconsistent with the existence of a power to suspend part of a term of imprisonment.[86] Presumably, the argument is to the effect that:

(1) a partly suspended term of imprisonment will involve a component to be served immediately, such component to be served before the suspended component comes into operation;

(2) on the other hand, s 77(2) provides that the suspension period 'begins on the day on which the sentence is imposed';

(3) these two features mean that, during the immediate component, the imprisonment is regarded as both immediate and suspended; and

(4) consequently, there is an intractable conflict between s 77(2) and the existence of a power to suspend part of the term of imprisonment.

For the following reasons, this argument cannot be accepted.

1. Section 76(1) and s 77(2) should, if possible, be read together such that there is no inconsistency between them.
2. One manner of doing so is provided by the respondent's construction at [97](3) above. On the respondent's construction, there is no inconsistency between s 76(1) and s 77(2); the suspension period encompasses both the immediate and suspended components of a partly suspended sentence of imprisonment and thus, consistently with s 77(2), commences on the day the offender is sentenced. If s 77(2) is read in isolation and in accordance with the ordinary meaning it was understood to have prior to the enactment of the Sentencing Legislation Amendment Act 2016 (WA), there is considerable force in the respondent's construction. Prior to the enactment of that legislation, the ordinary meaning of the text of s 77(2) left no room for any alternative to the construction that the period during which the whole of a term of imprisonment was suspended commenced on the day on which the offender was sentenced.
3. However, for the following reasons, we do not accept the respondent's construction and would reconcile s 76(1) and s 77(2) in a different manner.
4. The proper construction of s 77(2) requires attention to the meaning of the phrase 'suspension period', and the meaning of the words 'the sentence' and 'imposed'.
5. The phrase 'suspension period' is used in s 77(2), elsewhere in s 77, and in s 78, s 79 and s 80. The same phrase is also used, in a corresponding manner, in pt 8A, concerning suspended fines, and, in pt 12, concerning conditionally suspended imprisonment. 'Suspension period' is not defined. In our opinion, the phrase 'suspension period' must be read as a reference to the period, set by the court (in this case under s 76(1)), for which the term of imprisonment, or in other cases the fine, is suspended. Thus, only the suspended component of a partly suspended sentence has a 'suspension period'.
6. Section 77(2) also refers to 'the sentence'. The term 'sentence' is not defined. When used as a noun, as it is in the present context, its ordinary meaning refers to the penalty given for an offence. However, the 'sentence' for an offence may have different components. For example, the sentence may comprise a sentencing option in s 39(2), together with a disqualification order under Part 15 of the Sentencing Act, which is to be taken as being part of the sentence.[87] In some cases, legislation contemplates the imposition of a fine, together with an additional fine, whether by way of a daily penalty for the continuation of the offence, or otherwise.[88] And in the case of a partly suspended sentence, the sentence will comprise two components: the term of imprisonment to be served, and the remainder of that term of imprisonment which will be suspended for the suspension period fixed by the court. When 'suspension period' is construed as outlined at [116] above, and when that phrase is read in its statutory context, it is apparent that the reference to 'the sentence' in s 77(2) is a reference only to the component of the term of imprisonment that is suspended for the suspension period, and not to the sentence as a whole. Consequently, we reject the respondent's construction, which involves reading 'the sentence' as encompassing both the immediate and suspended components of the term.
7. Moreover, and by contrast with the construction articulated in [123], the respondent's construction of s 77(2) produces incoherence in the statutory scheme. On the respondent's construction, the suspension period of a partly suspended sentence:

(1) commences to run, and does run, during the immediate component, notwithstanding that only the suspended component has a suspension period; and

(2) consequently, may expire before the suspended component comes into operation.

The incoherence of those consequences is magnified when s 77(4) is taken into account. By s 77(4), at the end of the suspension period an offender sentenced to suspended imprisonment is 'taken to be discharged' from the sentence.

1. Further, the respondent's construction of s 77(2) would produce incoherence in the statutory scheme in another significant respect. On the respondent's construction, a court could never impose partly suspended imprisonment in respect of a term of imprisonment exceeding 24 months, because s 76 requires that the period of suspension not exceed 24 months. The legislature has determined that it is open to suspend, whether unconditionally or conditionally, a term of imprisonment, so long as that term does not exceed 60 months.[89] By its nature, a partly suspended term of imprisonment is a more serious punishment than a term of imprisonment that is wholly suspended, without conditions. There is no apparent reason in logic or policy for permitting a court to impose a wholly suspended term of imprisonment for terms up to 60 months, while only permitting partly suspended terms where the total term does not exceed 24 months. That incongruous result is avoided by the construction of s 77(2) at [123] below.
2. For all of these reasons, in our view, the respondent's construction must be rejected.
3. We have already explained, at [116] - [117] above, our view of the proper construction of the phrases 'suspension period' and 'the sentence', used in s 77(2). In considering whether any inconsistency between s 76(1) and s 77(2) may be reconciled, it is also necessary to direct attention to the term 'imposed' as it appears in s 77(2).
4. The word 'impose' has a variety of meanings, including:

(1) 'to put or subject (a person, etc) to a penalty, observance, etc';[90] and

(2) 'to lay on, as something to be borne, endured, or submitted to; to inflict (something) on or upon'.[91]

To impose a sentence on an offender, in the sense of subjecting an offender to a penalty, has both a legal and a practical element. The first is the exercise of the court's authority to require that the offender be subject to the penalty. That occurs when the court passes the sentence, and makes the order constituting the sentence. The second element of imposing a sentence is the commencement of the sentence itself. In practical terms, an offender actually becomes subject to a particular penalty only when it takes effect and the offender is required to comply with that penalty (for example, by commencing to serve a term of imprisonment or to comply with a community service order or by paying a fine). On many occasions, the legal and practical elements of the imposition of a sentence occur on the same day, because the penalty takes effect on or from the date of sentencing and thereupon the offender becomes liable to comply with it. However, that is not always the case.[92]

1. Thus, one possible construction of s 77(2), read with s 76(1), is that a suspended term of imprisonment is 'imposed' within the meaning of s 77(2) at the time at which the relevant suspended term of imprisonment takes effect. In relation to wholly suspended sentences, this will coincide with the day that the offender is sentenced. In its application to partly suspended sentences, the relevant time is the day on which the suspended component of the term of imprisonment takes effect, namely at the expiry of the immediate component. On this construction, in its application to a partly suspended sentence, the meaning and effect of s 77(2) is that the suspension period begins on the day on which the suspended component of the partly suspended term of imprisonment takes effect. On this construction, there is no inconsistency between s 77(2) and the power to impose a partly suspended sentence.
2. It might be said that this is not the most natural reading of the text of s 77(2) and, in particular, of the word 'imposed'. We also acknowledge that this was not the meaning which s 77(2) was regarded as having, prior to the enactment of the Sentencing Legislation Amendment Act 2016 (WA), no doubt because an offender became subject to a wholly suspended term of imprisonment on the day on which he or she was sentenced. Nevertheless, the meaning of s 77(2) outlined above is an available meaning of the text in its context, and one that, as explained in [115] - [117] above, is coherent with the scheme of pt 11 as amended, read with s 4(4), and its evident objects as identified in [102] and [[[93]](<a)] above.93
3. The following consideration counts against the construction in [123] above. The word 'imposed', or variations of it, is used extensively throughout the Act; it appears to be used consistently in a manner that connotes the making of the court's order, rather than referring to the time at which an order takes effect upon the offender. The construction articulated in [123] would involve giving the word 'imposed' a different meaning in s 77(2) from the meaning it bears elsewhere in the Act.
4. While the court starts with a presumption that a word is used in a statute with a uniform meaning, context may justify departure from this presumption.[94] It is not necessary to decide whether the statutory context to which we have already referred sustains the construction articulated in [123], notwithstanding that it involves giving 'imposed' a meaning in s 77(2) that differs from the meaning of the word elsewhere in the Act. That is because, if 'imposed' in s 77(2) cannot be so construed, the same ultimate result is reached in the following manner.
5. If and to the extent that s 76(1), read with s 4(4), were intractably inconsistent with s 77(2), such that one provision must give way to the other, in our view, s 76(1), as the power-conferring provision, is the leading provision. Section 77(2), concerning the mechanics of when the suspension period begins, must, to the extent necessary, give way to s 76.
6. If the phrase 'sentence is imposed' in s 77(2) is construed, consistently with the use of 'imposed' elsewhere in the Act, to refer to the making of orders, s 77(2) cannot, and need not, operate in accordance with its terms in relation to a partly suspended term of imprisonment. It cannot operate in accordance with its terms because the suspension period cannot begin on the day that the immediate component of the sentence of imprisonment takes effect. Such a result would be inconsistent with the structure of a partly suspended sentence in which the immediate component and suspended component are necessarily discrete and sequential. Section 77(2) need not operate in such circumstances, because it is a necessary implication of an order for partly suspended imprisonment that the suspension period begins on the day when the immediate component of the term expires. In other words, by its nature, a partly suspended imprisonment order will always supply the mechanics the subject matter of s 77(2), namely the day the suspension period begins.
7. In summary, therefore, the construction of s 77(2) articulated at [123] and the approach explained in [127] ‑ [128] above produce the same result. On either approach, a partly suspended imprisonment order begins on the day on which the suspended term of imprisonment takes effect, namely immediately following the completion of the immediate component of the term. Consequently, the appellant's contention based on inconsistency with s 77(2) fails.

Is partly suspended imprisonment in conflict with s 39(4)?

1. As reflected in his particular (4), the appellant also submits that partly suspended imprisonment is inconsistent with s 39(4),[95] which provides that a court must not use more than one of the sentencing options in s 39(2), except where s 41 or s 42 applies. An element of this submission is that the imposition of a partly suspended sentence involves the adoption of two sentencing options: the portion to be served immediately pursuant to pt 13; and the suspended portion pursuant to pt 11.[96] For the following reasons, we do not accept this submission.
2. If partly suspended imprisonment is properly viewed as imposed, in part, under pt 11 and, in part, under pt 13, then it would infringe s 39(4). That, in itself, counts against construing the provisions concerning partly suspended imprisonment in that manner. In any event, as explained below, a partly suspended term of imprisonment is a form of suspended imprisonment imposed only under pt 11. It is imposed under s 76, which was amended so that, read with s 4(4), it empowers the imposition of a partly suspended term of imprisonment. A term of imprisonment that is partly suspended cannot be seen as imposed partly under pt 11 and partly under pt 13. That is so for several reasons.
3. First, a partly suspended term of imprisonment is, as we have said, imposed under s 76. It is clear from s 4(4) that a partly suspended sentence is a form of suspended sentence and thus imposed under pt 11.[97] No provision of pt 13 confers a power to impose a partly suspended term of imprisonment. Further, no provision of pt 11, in its terms, picks up any element of pt 13 in respect of the immediate component of the term of partly suspended imprisonment.
4. Secondly, this construction is consistent with s 39(3). By contrast, construing the provisions so that partly suspended imprisonment is imposed under both pt 11 and pt 13 does not sit easily with the stipulation in s 39(3) that a court can only adopt a sentencing option listed in s 39(2) if it is satisfied that it is not appropriate to use any of the options listed before it.
5. Thirdly, s 77(6) reinforces the conclusion that a suspended sentence imposed under pt 11 is not imprisonment under pt 13. Section 77(6) relevantly provides that '[f]or the purposes of a law other than ... Part ... 13, a sentence of suspended imprisonment is taken as being a sentence of imprisonment'.
6. Fourthly, s 80(5) provides that if the court orders a person to serve a term or part of a term that was suspended, s 88 and s 89 apply 'as if the term to be served were a term of imprisonment being imposed by the court'. Again, this reinforces the conclusion that suspended imprisonment, of which partly suspended imprisonment is a subset, is not imprisonment under pt 13.
7. For these reasons, the provisions of pt 13 do not apply to a partly suspended term of imprisonment. Thus, there is no power to backdate the commencement of partly suspended imprisonment, just as there is no power to do so in relation to wholly suspended imprisonment.[98] Further, because pt 13 does not apply, there is also no power to make a parole eligibility order.
8. There is no immediately apparent policy justification for not conferring a power to backdate the commencement of a partly suspended term of imprisonment, while conferring like power in respect of an immediate term of imprisonment. Nevertheless, the conclusions in [136] flow from the shorthand drafting technique chosen by Parliament, in introducing partly suspended terms of imprisonment, of simply enacting s 4(4) and then amending s 76, within pt 11 of the Act. An alternative drafting approach might involve the insertion of a new part (or parts) into the Act, making specific provision, as thought appropriate for partly suspended sentences, concerning the various features of the statutory schemes in pts 11, 12 and 13.

1. We would grant leave to appeal on ground 6. Our conclusions as to the proper construction of the relevant provisions of the Sentencing Act mean that ground 6 must be upheld in the following respect, although it fails in all other respects.
2. The sentencing judge backdated the sentence to commence on 2 July 2016. As we have explained, in our view there is no power to backdate a partly suspended term of imprisonment. Consequently, to that extent, ground 6 must be upheld, and the appellant resentenced.

1. This court has the necessary materials to enable it to resentence.
2. We refer to what is said in [62] ‑ [67] above as to the maximum penalty for the offence, the patterns of sentencing for offences of home burglary, the seriousness of the appellant's offending and its place on a scale of seriousness of crimes of this kind, and the appellant's personal circumstances and mitigating factors.
3. Counsel for the appellant rightly conceded that the sentencing judge's decision to impose some immediate imprisonment could not be said to be erroneous. The seriousness of the appellant's offending against his vulnerable victims, coupled with the ongoing need to protect the public, amply justified the sentencing judge's decision. However, the appellant now falls to be resentenced in circumstances where he has served the entirety of the immediate component of the sentence of imprisonment imposed upon him. Following his release on 1 March 2018, on 7 March 2018 the appellant was sentenced in the Magistrates Court in relation to some other matters. The appellant was placed on a conditionally suspended imprisonment order. Subsequently, on 5 July 2018, he was remanded in custody in relation to offences alleged to have been committed in late June or early July 2018.
4. Counsel for the appellant submitted that, given the time already spent in custody, it was appropriate to impose a relatively short conditional suspended imprisonment order.[99] When the appellant made oral submissions on his own behalf, he appeared to suggest that, on resentencing, the court should order a fixed term of imprisonment, coupled with a parole eligibility order.[100] In our view, that would be inappropriate. Apart from anything else, it would be liable to operate to the disadvantage of the appellant, in that the making of a parole eligibility order does not guarantee the grant of parole.
5. Counsel for the respondent did not oppose the suggestion of a relatively short conditional suspended imprisonment order.[101] As we have said, usually the seriousness of the appellant's offending conduct would weigh decisively against suspension. However, in the unusual circumstances of this case, in which the appellant has already served 20 months' of immediate imprisonment, that seems to us the appropriate disposition. It is appropriate to make the suspended imprisonment order conditional to enable the appellant to have ongoing management and treatment of his mental illness and substance abuse issues.
6. For these reasons, we would impose imprisonment for a term of 7 months, suspended for a period of 6 months, with programme and supervision requirements.

1. For the above reasons, we would make the following orders:
   1. Leave to appeal on ground 6 is granted.
   2. Leave to appeal on grounds 1, 2 and 5 is refused.
   3. The appeal is upheld.
   4. The orders of the sentencing judge on 16 January 2018 are set aside.
   5. In lieu of those orders, the appellant is sentenced to a term of imprisonment of 7 months, suspended for 6 months, with a programme and supervision requirement pursuant to s 84A and s 84B of the Sentencing Act 1995 (WA).

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

[3] Pre-sentence report, p 3; psychiatric report of Dr Bala, p 7.

[5] ts 109; psychiatric report of Dr Bala, p 5 - 6.

[8] Psychiatric report of Dr Brett, p 5.

[9] Psychiatric report of Dr Brett, p 5 - 6

[10] ts 110; psychiatric report of Dr Brett, p 6.

[12] ts 110, referring to psychiatric report of Dr Brett, p 3.

[15] ts 110 - 111, referring to psychiatric report of Dr Bala, p 10.

[33] Order of Mazza and Beech JJA of 6 June 2018.

[37] Appellant's submissions, page 3. See also appeal ts 8 - 9.

[38] Appeal ts 9 - 10, 51, referring to WAB 147 - 148.

[39] The material is at WAB 137 - 149. See appellant's supplementary submissions, page 3; appeal ts 8, 44 - 45.

[42] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [138]; Jneid v The State of Western Australia [2018] WASCA 67 [98] and cases there cited.

[44] Appellant's submissions, page 7; appellant's further submissions, page 11; appeal ts 55 - 56.

[47] Appellant's submissions, page 5; appeal ts 52 - 53.

[57] Appeal ts 47, see also the appellant's orders wanted, WAB 15.

[58] Appellant's submissions, page 4; appellant's supplementary submissions, page 4; appeal ts 46 - 48, 52 - 54.

[60] Winmar v The State of Western Australia [2018] WASCA 155 [43].

[62] Suleiman v The State of Western Australia [2017] WASCA 26 [60] - [63].

[67] Explanatory Memorandum, Sentencing Legislation Amendment Bill 2016 (WA) 1 - 19.

[68] Western Australia, Parliamentary Debates, Legislative Council, 14 September 2016, 5941 - 5942 (Mr M Mischin, Attorney General).

[72] Particulars 2, 3 and 5 of ground 6; appellant's supplementary submissions [2](v) - (vii).

[74] Respondent's supplementary submissions [13], [17], [22] - [24], [35.3], [37]; appeal ts 59, 70.

[75] Respondent's supplementary submissions [22] - [24], [35.3], [35.15] - [35.17], [38.7].

[76] Respondent's supplementary submissions [21], [38.4].

[77] Respondent's supplementary submissions [21], [38.2]; appeal ts 61 - 62, 63 - 64.

[78] Respondent's supplementary submissions [41].

[79] Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36].

[80] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [65]; Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [91].

[81] PMT Partners Pty Ltd v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [11].

[82] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].

[83] SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064 [20]; Mohammadi [34] ‑ [35].

[86] See appellant's supplementary submissions [2](iv), (xi); appeal ts 39 - 40.

[87] Sentencing Act s 39(6).

[88] See, for example, Fish Resources Management Act 1994 (WA) s 79(1), s 222(2); Planning and Development Act 2005 (WA) s 223.

[89] Section 76(1), s 81(1) of the Sentencing Act.

[92] For example, a sentence may be ordered to be served cumulatively upon a sentence already being served.

[93] SAS Trustee [20], [41]; Mohammadi [34] - [35].

[94] Clyne v The Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1, 10, 15; Murphy v Farmer (1988) 165 CLR 19, 27.

[95] Appellant's supplementary submissions [2](i); appeal ts 27 - 29.

[96] Appellant's supplementary submissions [2](i); appeal ts 27 - 28.

[97] Given the terms of s 81, partly suspended imprisonment cannot be imposed under pt 12.

[98] Zinga v Johnson [2012] WASC 216 [23]; Vickery v McAlinden [2017] WASC 224 [30].

[99] Appellant's supplementary submissions, page 12; appeal ts 42 - 43.

[100] Appeal ts 56; see also, the appellant's orders wanted, WAB 15.