TAUA -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 476 (19 December 2023)

1. Mr Taua is currently 32 years of age and was 32 when the learned magistrate ordered him to serve the suspended term of imprisonment. He has three children who live in Queensland.
2. On 14 March 2023, Mr Taua was sentenced to a term of imprisonment of nine months, suspended for twelve months, for an offence of offering to sell or supply a prohibited drug (offer offence). The offer offence was an offence against s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
3. Mr Taua was also sentenced on 14 March 2023 to a nine month community based order for two offences of breaching a violence restraining order (collectively, the CBO). The CBO included a program and a supervision requirement. And, he was sentenced to a fine of $300 and disqualified from holding or obtaining a driver's licence for 3 months for an offence of driving a motor vehicle without authority to do so.
4. The substantive conduct constituting the offer offence was that Mr Taua offered to sell a prohibited drug to another, namely 'three points' of methylamphetamine, being approximately 0.3 of a gram.
5. On 23 June 2023, Mr Taua was found in possession of 1 g of cannabis (the cannabis offence). At that point, he was just over one quarter of the way through the suspension period for the suspended imprisonment and just over one third of the way through the CBO. The statutory maximum penalty for the cannabis offence includes a term of imprisonment not exceeding 2 years.[1]
6. Mr Taua's first court appearance for the cannabis offence was on 21 July 2023. Mr Taua was late for court. At around 11.45 am he was convicted in his absence and an arrest warrant was issued for him to appear for sentencing. The arrest warrant was executed at 2.20 pm that day, when Mr Taua handed himself in at the Rockingham Police Station.
7. Mr Taua spent the evening in custody and then appeared in the Magistrates Court the following day when he was bailed to appear on 31 July 2023.
8. When the matter came before the learned magistrate on 31 July 2023, a Community Corrections officer was not present in court. The learned magistrate therefore adjourned the matter to 7 August 2023, saying:

... Community Corrections aren't here today, but I will remand it ... for next Monday and we will see what they have to say. Depending what they say, that may have an impact. It may.

1. The matter came back before the learned magistrate on 7 August 2023. The learned magistrate was satisfied it was not unjust to require Mr Taua to serve the suspended imprisonment of nine months and ordered Mr Taua to serve that term. The learned magistrate made Mr Taua eligible for parole. The learned magistrate also cancelled the CBO and imposed a global fine of $1,500 for the two offences for which the CBO was imposed. The learned magistrate fined Mr Taua $500 for the cannabis offence.

1. The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), Mr Taua being a person aggrieved by the decision of the learned magistrate to order him to serve the suspended term of imprisonment.
2. An appeal may be made on grounds that include:
   1. the learned magistrate made an error of law or fact or of both law and fact;[2]
   2. the learned magistrate imposed a sentence that was inadequate or excessive;[3]
   3. there has been a miscarriage of justice.[4]
3. This appeal is brought on the ground that the learned magistrate imposed a sentence that was excessive.
4. Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[5]
5. The appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.[6] Therefore, in this case, the appeal ought to have been commenced by 4 September 2023. It was commenced on 27 September 2023, thus 23 days late.
6. Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include setting aside the decision of the learned magistrate and substituting a decision that should have been made. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Taua, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[7]

1. In Wimbridge v The State of Western Australia,[8] Buss JA (as his Honour then was) set out the following five principal factors to be considered in deciding whether to exercise the discretion to extend time, also noting those factors are not exhaustive:

First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.

1. An additional factor is whether the delay is intentional or the result of a bona fide mistake and whether the delay is that of the appellant themself or of their lawyer.
2. The application for an extension of time is supported by an affidavit of the appellant's counsel, Ms Sinton, affirmed 27 September 2023. It sets out that the predominant reason for the delay was due to oversight - the transcript of the sentencing hearing was not requested until 12 September 2023. This then resulted in the transcript not being received until 21 September 2023. Further, Ms Sinton was not able to speak to Mr Taua in custody until 27 September 2023, that being the day on which the appeal was commenced.
3. The respondent does not oppose an extension of time being granted.
4. In circumstances where the delay was not caused by Mr Taua, the delay is relatively short and an extension is not opposed, I consider it appropriate to grant an extension of time to commence the appeal. I grant the extension through to the filing of the appeal notice on 27 September 2023.
5. I turn now to the substance of the appeal.

The Sentencing Act and applicable principles

1. A sentence of suspended imprisonment is provided for by pt 11 of the Sentencing Act.
2. Section 78 of the Sentencing Act provides that if a court convicts a person of an offence the statutory penalty for which is or includes imprisonment and the offence was committed during the suspension period of suspended imprisonment, the person must be dealt with under s 80.
3. Section 78 is engaged here. The statutory penalty for the cannabis offence includes imprisonment and it was committed during the suspension period. As the Magistrates Court imposed the suspended imprisonment, the Magistrates Court was required to deal with Mr Taua under s 80.
4. Section 80(1) provides that the responsible court must deal with the person who has re-offended by one of the following methods:

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

1. Section 80(3) is critical to the disposition of this appeal. It provides:

A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

1. In Ryan v The State of Western Australia [No 2],[9] the Court of Appeal considered the application of s 84F(1)(a) and s 84F(3) of the Sentencing Act. Section 84F addresses the same scenario to that addressed by s 80, except that s 84F applies to a conditional suspended imprisonment order. In a joint judgment, their Honours stated:[10]

Undoubtedly, a decision as to whether it would be unjust to make an order under s 84F(1)(a) involves a value judgment. It is a matter about which reasonable minds may differ. ... If a sentencing judge makes a material express or implied error, for example, if the judge fails to take into account a relevant consideration, or takes into account an irrelevant consideration, or if the opinion that is formed is unreasonable or plainly unjust, this court's power to intervene is enlivened. (case references omitted)

1. In Stack v Joye,[11] Archer J observed that in considering whether it would be unjust to order the offender to serve the full term, the court should consider:
   1. the circumstances of the offence for which the sentence of suspended imprisonment was imposed (the original offence);
   2. the period of suspended imprisonment imposed;
   3. the nature of the offence which triggered the need to consider s 80 (the breaching offence), including whether the breaching offence was trivial and/or did not of itself warrant a term of imprisonment;
   4. whether the breaching offence was committed late in the suspension period;
   5. whether the breaching offence was isolated or out of character;
   6. factors personal to the offender, including any circumstances which have arisen since the suspended sentence was imposed;
   7. the legislative policy that, in general, an offender who breaches a term of suspended imprisonment should serve the sentence which was suspended.
2. I would add three observations. First, these factors are not exhaustive. Ultimately, the decision has to be made in all of the circumstances. Second, it should not be assumed these factors have equal weight. Their weight needs to be assessed in all of the circumstances, as part of the overall value judgment the court is required to make. Third, when the offence is committed during the suspension period is a relevant factor. Whether that weighs in the balance positively or negatively for the offender will usually depend on how much of the suspension period has expired. So, for example where a further offence was committed late in the suspension period, this would usually weigh in the balance positively for the offender, recognising that a term of suspended imprisonment is a serious form of punishment itself.[12] On the other hand, a further offence committed early on in the suspension period may weigh in the balance negatively for the offender.
3. I turn now to the sentencing hearing itself and to the learned magistrate's reasons.

1. As would be expected, the sentencing remarks of the learned magistrate who sentenced Mr Taua for the offer offence (the sentencing magistrate) are relatively brief.
2. The following features of that sentencing hearing are of particular importance.
3. The undisputed basis on which Mr Taua was sentenced was that he had purchased what he thought was methylamphetamine for personal use, later found out it was a different substance and sought to sell the substance 'marketed' as methylamphetamine to recoup his money. Mr Taua had not committed any other offences of offering to sell or supply prohibited drugs, or any offences of being in possession of a prohibited drug with intent to sell or supply. Accordingly, the offer offence reflected isolated conduct and did not reflect an entrenched drug dealing mentality.
4. The pre‑sentence report identified that Mr Taua had outstanding treatment needs. The main treatment needs were his mental health, his substance abuse difficulties, past trauma and domestic violence behaviours. The pre-sentence report also explained that Mr Taua had been referred to Peel Mental Health and had attended one session with a psychiatrist, with another appointment booked in a fortnight. Further, Mr Taua had been placed on medication to assist with his treatment needs. However, ultimately, the pre‑sentence report recommended that Mr Taua was not suitable to be the subject of a community-based disposition.
5. The reason the sentencing magistrate gave for suspending the term of imprisonment was that Mr Taua seemed to be motivated to deal with his underlying issues.
6. After imposing the suspended imprisonment, the sentencing magistrate told Mr Taua:

In respect of the suspended imprisonment order, you need to understand that if you were to commit any offence during the next 12 months which is an offence that could carry a term of imprisonment by way of penalty, then the court dealing with you can also order that you serve the nine months that I have suspended today. So in effect there's at least a nine-month term of imprisonment now hanging over your head.

1. Mr Taua said he understood this to mean that if he reoffended, he will go to jail. While that is not correct, it does convey that he appreciated the significance of reoffending.

1. The sentencing hearing the subject of this appeal took place on 7 August 2023. Mr Taua was represented by duty counsel.
2. A Community Corrections officer was present in court. The prosecutor read out the facts for the offences the subject of the CBO. The prosecutor asked if the learned magistrate wanted a compliance summary on the CBO or whether his Honour would like to wait until he had heard all the facts. The learned magistrate responded by saying 'I will hear the facts'.
3. The learned magistrate did not ultimately receive a report from the Community Corrections officer. It is not clear why, especially as that was the reason the matter had been adjourned.
4. In relation to the stance taken by Community Corrections, Mr Taua's then counsel submitted:

Community Corrections advised me this morning that he has been complying with his community‑based order, and the compliance has improved. He has been assessed for the family violence program. He has been assessed as suitable and is on the waitlist for that. Mr Taua tells me this morning that he has now received a start date for Connect and Respect, which is 10 August.

And I understand Community Corrections are supportive of him continuing on that CBO.

1. While this went part of the way to explaining the position of Community Corrections, it is not a substitute for hearing directly from the Community Corrections officer present in court. The respondent rightly accepts it would have been preferable for a direct report to have been given by the officer who was present in court.
2. The learned magistrate commenced his reasons by telling Mr Taua that he 'won the gold watch' because the imposition of a suspended imprisonment order for the offer offence was quite rare.
3. The learned magistrate referred to the following passage, which his Honour ascribed to the decision of the Court of Appeal in The State of Western Australia v Baldini:[13]

It is the experience of the courts that illicit drugs can cause or materially contribute to a very significant proportion of criminal offences committed in this state, either as a result of users acting under the influence or because of the need to finance and secure the supply of drugs. There are strong financial incentives to deal in prohibited drugs. Further, significant resources are devoted to the difficult task of detecting and apprehending those involved.

It is for these reasons that in sentencing for offences under section 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.

The overwhelming majority of offenders convicted of offences against section 6(1) are sentenced to terms of immediate imprisonment. As previously noted, the imposition of a suspended term as a matter of fact is exceptional. The number of suspended sentences of imprisonment upheld or imposed on appeal in recent times can be counted on one hand.

So you're one of the five fingers, just you. And so you get - you draw the lucky number.

1. The learned magistrate set out that the sentencing magistrate had told Mr Taua not to re-offend, explained to Mr Taua the consequences if he did and that Mr Taua understood this to mean that if he did re-offend, he would go to jail. The learned magistrate also referred to the small amount of cannabis as being only one factor in making the required assessment, emphasising that Mr Taua re-offended knowing full well there were significant consequences for doing so.
2. Ultimately, the learned magistrate found as follows:

... and then we go to ... Stack v Joye, where it says one looks at the circumstances - the six matters to be considered by the court: the circumstances of the offence of the original sentence, a very serious one for which you are lucky not to go to prison; the period of suspended imprisonment; the nature of the triggering offences; whether the breaching offence was committed late in the suspension period; whether the breaching offence was isolated or out of character; factors personal to you, including circumstances that have arisen since the suspension; and the legislative policy that, in general, an offender who breaches a term of suspended imprisonment should serve the sentence.

I've considered all those factors, Mr Taua, and I'm just - I'm satisfied that it's not unjust to activate the term. In relation to the possession of cannabis there's a fine of $500, order for destruction. By reason of that, the sell and supply will be activated to be nine months imprisonment. You will be eligible for parole. In relation to the breach of restraining order, there's a global penalty of $1500, and the order is cancelled.

1. Before leaving the learned magistrate's reasons, I will say something about the remark that Mr Taua was 'one of the five fingers'. It was unnecessary; it also was wrong.
2. The relevant passage in Baldini is from the judgment of McLure P.[14] Her Honour was repeating what her Honour had said previously in The State of Western Australia v Johnson.[15] The particular passage referable to the learned magistrate's 'five fingers' remark is as follows:

The overwhelming majority of offenders convicted of offences against s 6(1) of the Act are sentenced to terms of immediate imprisonment. As previously noted, the imposition of a suspended term is, as a matter of fact, exceptional. The number of suspended terms of imprisonment (conditional or otherwise) upheld or imposed on appeal in recent times can be counted on the fingers of one hand (Attenborough v The State of Western Australia [2005] WASCA 132; Samuel v The State of Western Australia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; and The State of Western Australia v Marchese [2006] WASCA 153).

1. In Baldini, McLure P also observed that:[16]

The handful of suspended terms of imprisonment (conditional or otherwise), upheld or imposed on appeal has, since 2010, increased from four to six. See Crichton v The State of Western Australia [2014] WASCA 37 and The State of Western Australia v Thompson [2014] WASCA 108. Both cases involved small quantities of prohibited drug (1.38 g and 4.34 g respectively).

1. In Baldini, McLure P was speaking of suspended terms of imprisonment for offences against s 6(1) of the Misuse of Drugs Act that were upheld or imposed on appeal to the Court of Appeal. Her Honour was not referring to the imposition of suspended terms of imprisonment imposed for such offences across the entirety of the criminal court system in Western Australia.
2. Further, it is wrong to suggest, as the learned magistrate did, that by 2023 the number of suspended sentences imposed for such offences across the entirety of the criminal court system in Western Australia was as low as five, or near to that number.

1. Mr Taua's counsel submits the combined effect of the following factors is such that the learned magistrate's finding that it was not unjust to order Mr Taua to serve the suspended imprisonment was unreasonable in all of the circumstances.
2. The offer offence was an isolated event and did not reflect an entrenched drug dealing mentality on Mr Taua's part.
3. In relation to the cannabis offence, Mr Taua was only in possession of 1 g of cannabis. Thus, that offence, albeit one for which the maximum penalty included a term of imprisonment, was a minor offence which attracted a relatively modest fine.
4. When Mr Taua was sentenced on 7 August 2023, it was not disputed he had abstained from cannabis use since he was found in possession on 23 June 2023. Mr Taua's counsel submits that this is significant given that Mr Taua had first been exposed to drug use at the very young age of 11.
5. Mr Taua had engaged with Peel Mental Health, which is an important facet of addressing his treatment needs.
6. Mr Taua had complied with the obligations imposed on him under the CBO and further, the Community Corrections officer supported the continuation of the CBO.

1. The respondent's counsel submits that it was open to the learned magistrate in all of the circumstances to regard Mr Taua's possession of cannabis as a serious matter, justifying a decision not to depart from the legislative policy that those who commit offences while subject to suspended sentences should be ordered to serve the imprisonment.
2. The respondent points to the following factors.
3. The seriousness of the offence for which the suspended imprisonment order was imposed.
4. The sentencing magistrate made very clear to Mr Taua the potentially serious consequences of re-offending and told him that an offence of possessing drugs would place Mr Taua in breach of the suspended imprisonment. Also, Mr Taua's understanding was that if he re‑offended, he will go to jail. Thus, he clearly understood there were serious consequences for re-offending.
5. The cannabis offence reflected a cavalier approach on Mr Taua's part to compliance with the law and compliance with court orders. The respondent also points to Mr Taua's history of breaching court orders, as well as his conduct driving a motor vehicle while unlicenced.
6. The cannabis offence was a drug related offence, so accordingly there were similarities between it and the offer offence.
7. The respondent accepted that Mr Taua's performance on the CBO was commendable, however also pointed to the cannabis offence being a breach of that order.
8. The respondent rightly accepted that if I came to the view the learned magistrate's decision was unreasonable in all of the circumstances, then there was no scope for the application of s 14(2) of the CA Act and the appeal must be allowed.

1. In assessing whether the learned magistrate's finding was unreasonable, I need to consider the matters that were before the learned magistrate. Such matters include what occurred at the initial sentencing hearing when the suspended imprisonment was imposed.
2. The offer offence was serious. However, the quantity of drugs offered for sale was very much at the lower end. Further, the offer offence reflected an isolated instance of drug dealing on Mr Taua's part. Thus, in my view, the offer offence was at the low end of seriousness for its type.
3. While Mr Taua has prior offences for possession of prohibited drugs and drug related paraphernalia, the offer offence is the only offence he has committed that involves the sale or supply of prohibited drugs.
4. The cannabis offence was a minor offence, the amount involved was very low and it did not reflect any aspect of sale or supply. Further, as Ms Sinton sagely submitted:

... [the cannabis offence] doesn't demonstrate a cavalier attitude. What it demonstrates is the difficulty inherent in someone with entrenched, from the age of 11, over two decades, drug use and confirmed mental health difficulties breaking the habit of use of cannabis.

1. Mr Taua committed the cannabis offence approximately 3½ months after the suspended imprisonment was imposed, which is not an insignificant amount of time. His rehabilitation was progressing relatively well. This reflected a demonstrated effort on his part to continue with the initial steps towards rehabilitation, which steps had been evident when Mr Taua was sentenced on 14 March 2023.
2. Community Corrections supported the continuance of the CBO. At the sentencing hearing on 14 March 2023 when the CBO was imposed, Community Corrections had not supported Mr Taua being placed on a community order. This change of position reflects a recognition that Mr Taua had demonstrated a sufficient commitment to his rehabilitation such as to warrant the CBO continuing.
3. In my view, the combined effect of these matters is such that in all of the circumstances, the learned magistrate's finding that it was not unjust to order Mr Taua to serve the suspended imprisonment was unreasonable.
4. In coming to this view, I have had particular regard to the following factors. The level of seriousness of the offer offence, Mr Taua has not committed any other offences that involve the sale or supply of prohibited drugs, the cannabis offence was minor and did not reflect any drug dealing, Mr Taua had made rehabilitative gains over the period since the suspended imprisonment was imposed and that for a person who had started drug use at the young age of 11, the path to complete abstinence will usually be a difficult one.
5. It follows that the learned magistrate erred in ordering Mr Taua to serve the suspended imprisonment.
6. Accordingly, I grant leave to appeal and allow the appeal. I order that the decision of the learned magistrate that Mr Taua serve the term of imprisonment of nine months is set aside.
7. The parties accepted that if I allowed the appeal, I should deal with Mr Taua in accordance with s 80 of the Sentencing Act. I agree that is the appropriate course.

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

[1] Misuse of Drugs Act 1981 (WA), s 6(2) and s 34(1)(e).

[2] Criminal Appeals Act 2004 (WA) s 8(1)(a)(i).

[3] Criminal Appeals Act 2004 (WA) s 8(1)(a)(iii).

[4] Criminal Appeals Act 2004 (WA) s 8(1)(b).

[5] Criminal Appeals Act 2004 (WA) s 9.

[6] Criminal Appeals Act 2004 (WA) s 10(3).

[7] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].

[8] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].

[9] Ryan v The State of Western Australia [No 2] [2018] WASCA 230

[11] Stack v Joye [2021] WASC 322 [35].

[12] See in relation to a conditional suspended imprisonment order, Miorada v The State of Western Australia [2022] WASCA 143 [46].

[13] The State of Western Australia v Baldini [2015] WASCA 39.

[15] The State of Western Australia v Johnson [2010] WASCA 187 [23].