The Director of Public Prosecutions for The State of Western Australia
[2]
(These reasons were delivered orally on 17 October 2025. They have been expanded to include extracts from authorities, legislation and the sentencing transcript in the Magistrates Court, and to correct matters of language.)
[3]
The appellant, Ms Williams, was convicted on her own plea of guilty of an offence of being armed with a dangerous weapon in or near a place of public entertainment without lawful excuse. This is an offence contrary to s 68B of the Criminal Code (WA) (Code). The maximum penalty for the offence is 5 years, with the maximum reduced to 3 years and a fine of $36,000 if the charge is dealt with in the Magistrates Court.
The weapon was a hammer.
On 20 August 2025, the learned sentencing magistrate sentenced Ms Williams to a term of imprisonment of seven months to be served for the offence. Ms Williams represented herself at the sentencing hearing.
Ms Williams now appeals against that sentence on the sole ground that there was a miscarriage of justice by reason of the learned magistrate not informing Ms Williams of her rights after pleading guilty. In essence, the ground asserts a denial of procedural fairness.
The appeal first came before me on 7 October 2025 when I made an urgent appeal order and listed the appeal for hearing today. Ms Williams remains in custody.
Ms Williams is legally represented on the appeal. The Director of Public Prosecutions for WA is the respondent. The Director's counsel, Ms Wong, quite properly concedes that the appeal should be allowed. For the following brief reasons, that concession is appropriately made and should be accepted.
In coming to that conclusion, I recognise that the workload of the Magistrates Court is such that its magistrates must carry out their work, and manage their court, efficiently. However, a focus on efficiency must not lose sight of the need for procedural fairness. Unfortunately, in this case, the learned magistrate's focus on efficiency did not pay sufficient regard to the requirements of procedural fairness.
[4]
The appeal is brought under pt 2 of the Criminal Appeals Act 2004 (WA). An appeal brought under pt 2 may be made on the ground that there has been a miscarriage of justice, as is the case here.[1]
Even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[2] The Director quite properly accepts that this provision, often described as the 'proviso', has no application in the circumstances of this case.
Upon allowing the appeal, I may resentence Ms Williams or send the matter back to the Magistrates Court for Ms Williams to be resentenced by another magistrate.[3]
[5]
In State of Western Australia v Landers,[4] Wheeler J said that:
[6]
There are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.
[7]
The Full Court considered what constitutes an 'adequate opportunity' in Wood v Marsh.[5] The recently retired, and wonderfully precise, Tottle J summarised the approach approved in Wood v Marsh as follows:[6]
[8]
The approach approved by the court in Wood v Marsh requires a court to ensure that an unrepresented person who appears before it and pleads guilty is appraised of their rights and is told of (at least):
(1) the ability to seek legal advice and representation;
(2) the right to seek a reasonable adjournment to obtain that advice or representation;
(3) where relevant, the seriousness of the charge and of the penalties that may be imposed, especially where there is a risk of being sentenced to a term of imprisonment;
(4) the ability to dispute or comment upon the facts alleged by the prosecutor; and
(5) the ability to put before the court any matters of mitigation.
[9]
Further, as Malcolm CJ observed in Wood v Marsh, the court bears a responsibility of ascertaining an accused's awareness of these matters.[7]
A failure to comply with these requirements does not necessarily give rise to a miscarriage of justice. Rather, the failure to do so must reach a threshold of sufficient injustice before procedural unfairness will be found to exist. The threshold of injustice that is necessary for an obligation of procedural fairness can be understood as a need to establish that an irregularity is capable of causing 'practical injustice'. [8]
[10]
In terms of sentencing, it appears that the matter came on first on 17 August 2025 before a different magistrate and was adjourned for legal advice.
The transcript of the sentencing hearing on 20 August 2025 is, as would be expected, relatively brief.
The key features that arise from the sentencing transcript are as follows.
Ms Williams was charged with two other offences, in addition to the offence under s 68B of the Code. They were a breach of bail, and entering or remaining in a protected entertainment precinct while subject to an exclusion order preventing Ms Williams from being in that precinct. Ms Williams pleaded guilty to these charges and received a fine of $20 for each charge.
At the start of the hearing, his Honour explained to Ms Williams that she had been charged with being armed with a dangerous weapon, a hammer, without lawful excuse. Ms Williams in response said she was not armed with anything. There was then an ongoing exchange between his Honour and Ms Williams during which she referred to a pot plant, and his Honour said if 'it's just a hammer and you're going to make a pot plant then it's not really a weapon.' His Honour then sought to sought to explain that 'if it's a hammer and there might be some prospect that you may use it to either ...' at which point Ms Williams said 'doing it up, painting it up, now.'
Very shortly after Ms Williams said this, his Honour asked her 'what do you want to do with these charges' and she replied 'I will just plead guilty and hopefully be fined', to which his Honour said 'Let's hope for the best, shall we'.
The prosecutor read out the facts of the offences. In respect of the offence under s 68B of the Code, the prosecutor said that Ms Williams 'was armed with a hammer and was trying to hit a male with it.'
After the facts were read out, his Honour said that the 'problem for Ms Williams, maybe, is that in 2023, she got a prison term for being armed.'
Ms Williams responded with a quite confusing answer, that seemed to focus on people scaring her. In response, his Honour said 'But the difficulty, Ms Williams, is you're swinging a hammer at someone in the entertainment precinct'. Ms Williams said she wasn't swinging a hammer, saying that she said 'Go away. Don't mess with my bag, brother'.
His Honour asked the prosecutor if they had a sentencing submission and the prosecutor said they would leave it in his Honour's hands.
Ms Williams raised some matters regarding her health, said she was not a dangerous woman and again raised matters pertaining to her health.
His Honour said that general deterrence was important, and that Ms Williams had a history of violence and therefore specific deterrence was important, also saying Ms Williams had 'been to jail before for the same.'
Ms Williams said she did not want to back to jail, to which his Honour said that 'then you've got to not carry hammers around the place.' Ms Williams apologised for that and then his Honour proceeded to sentence her. His Honour said that a prison term is appropriate in the circumstances and referred to her background of violence. As his Honour was sentencing Ms Williams, she again raised her health issues and again said she can't go to jail.
His Honour continued with his sentencing remarks, and said the starting point is 'maybe a term of 10 months', but having regard to her plea of guilty, his Honour sentenced Ms Williams to a term of immediate imprisonment of 7 months.
There are four matters of importance that arise from reviewing the transcript. First, Ms Williams engaged with the learned magistrate in a quite confusing way. Second, upon entering her plea of guilty, Ms Williams expressed the hope she would be fined. Third, his Honour does not appear to have resolved the dispute of fact regarding whether Ms Williams was swinging the hammer. Fourth, his Honour did not substantially allow Ms Williams to advance matters in mitigation.
In the circumstances of this case, in my view, it was incumbent upon the learned magistrate to:
explain to Ms Williams that the charge to which she had pleaded guilty was a serious charge and a sentence of immediate imprisonment was a possible penalty;
explain to Ms Williams that she had the option of seeking legal advice or legal representation prior to being sentenced, and to enquire whether she had done so since the first hearing on 17 August 2025;
explain to Ms Williams that she should tell his Honour about any matters that she thought would help her in respect of sentencing.; and
resolve the factual dispute regarding what Ms Williams did with the hammer.
The combination of the matters that I have set out at [29] and [30] above demonstrate that the learned magistrate did not afford Ms Williams procedural fairness such that there was a practical injustice. This results in a miscarriage of justice that necessitates the appeal being allowed.
The appropriate orders are that leave to appeal is granted, the appeal is allowed, the sentence is set aside and Ms Williams be resentenced.
[11]
In terms of the re-sentencing, counsel for the Director does not press for a factual finding that Ms Williams swung the hammer.
That Ms Williams had the hammer with her does not by itself make it a dangerous weapon. It is the relevant circumstances that do so.
In the decision of the full court in Van den Berg v R [1984] WAR 162, in the judgment of Smith J, his Honour described the requisite standard to be carrying the item:
[12]
... so as to be readily available for use as an instrument to attack and inflict bodily injury.
[13]
On reading the transcript of the sentencing hearing, and having regard to the submissions today, I sentence Ms Williams on the basis that she had the hammer in her bag and took it out to confront a person that was going through her bag. That falls within that characterisation that I have just described from Van den Berg.
The confrontation was a limited one, and no harm was caused. Self-defence is no excuse to what Ms Williams did by reason of the operation of s 68A of the Code.
However, I accept that Ms Williams has been homeless for many years and lives in fear on the street. Her personal safety is an issue, particularly at night. She is a small woman, and previously has been assaulted. Further, her grabbing the hammer was a defensive action. It was not a gratuitous act. Also, she was in a lot of pain at the time, as is demonstrated by the medical evidence, which is to the effect that she had an infection arising from a surgically amputated toe. In all of these circumstances, I am satisfied the offending was at the lower end of seriousness for such an offence.
Ms Williams is now 49. Her life has been traumatic. As I have said, she has been the subject of abuse. She was raised by her Auntie and not her own parents, and she spent a significant period living on the streets.
She has an extensive criminal record and has been sentenced to prison many times. She committed a similar type of offence in 2023, which involved a knife. Ms Williams has committed many offences of violence, but it is not apparent from the material before me that any serious injuries were caused by those acts of violence.
Ms Williams receives a Centrelink payment and therefore has a limited ability to pay a fine by reason of that payment.
The principal matters in mitigation are as follows.
Ms Williams pleaded guilty at the first reasonable opportunity and should be given the full discount of 25 per cent.
Secondly, I am satisfied that Ms Williams comes from a deprived background.
Personal deterrence and general deterrence are important considerations - that is, to strongly discourage the community or members of the community from doing something like this, and to strongly discourage Ms Williams from doing this again.
Putting to one side for the moment the two months that Ms Williams has spent in prison so far, in my view, imprisonment would not have been an appropriate sentencing disposition, given the lower level of seriousness of the offending and the mitigating factors.
As I have said, Ms Williams has now served two months in prison for an offence where I consider prison was not an appropriate sentencing disposition. When I have regard to the lower level of seriousness of the offending, the mitigating factors, and taking account of personal and general deterrence, and the two months Ms Williams has spent in prison, I am satisfied that the appropriate sentencing disposition is to impose a fine of $250.
To be clear, though, if Ms Williams had not spent the two months in prison, what I would have done is obtained a Pre-Sentence Report and likely imposed either a community‑based order or an intensive supervision order, after considering the matters raised in the report. However, as I have said, Ms Williams has spent two months in prison, and for the reasons I have already given, I am satisfied the appropriate disposition now is that a fine of $250 be imposed.
There are a couple of matters I want to make clear at the end.
I am told by Ms Williams' counsel that she is now motivated to seek help, both in respect of her living on the streets, and also in respect of her medical issues. Ms Williams should, to the extent that is possible, be provided with assistance to do this - so that is, she should be provided with assistance to get medical attention in respect of her foot, and also assistance so that she does not have to live on the street, or that if she is to live on the street, she does so in a manner that provides her with the greatest level of safety that is possible.
Hopefully, some of this assistance can be provided through the Aboriginal Legal Service, but in saying that, I am expressing a hope, not imposing a requirement, which I would not have any authority to do.
Finally, this has been a very nuanced sentencing exercise, and I am very grateful to Mr Napper and Ms Wong for the professional way that they have conducted the appeal, and also the re‑sentencing consequent upon the appeal being allowed.
[14]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.