WOODS -v- KINGSBURY [2019] WASC 336 (3 April 2019)

1. On 18 April 2017, the appellant was sentenced in the Midland Magistrates Court for two offences of aggravated home burglary, which had been committed on 16 February 2016. The offences were the subject of charges MI 1752/16 and MI 1754/16. The appellant was sentenced to concurrent terms of 7 months' imprisonment suspended for 6 months (the first SIO), pursuant to s 76 of the Sentencing Act 1995 (WA) (Sentencing Act). By virtue of s 77(2) of the Sentencing Act, the suspension began on the day on which the sentence was imposed. Therefore, the suspension period of the first SIO expired on 17 October 2017.
2. Section 77(4) of the Sentencing Act provides that 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. However, s 77(5) provides that subsection (4) does not affect the operation of subsection (1) or s 78 to s 80.
3. Section 77(1) provides:

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.

1. Sections 78 and 80 deal with the obligations and discretionary powers of a court that is dealing with an offender who, during the period of suspension of an SIO, has committed an offence punishable with imprisonment. The relevant provisions are set out later in these reasons.

1. On 4 May 2018, the appellant was sentenced in the Perth Magistrates Court by Magistrate Campione for seven counts of fraud, and one count each of burglary and stealing. The offences had been committed by the appellant on various dates from 9 June 2016 to 7 August 2016.
2. In respect of all of the offences except the stealing offence the appellant was sentenced to a community based order (CBO) for a period of 9 months. Pursuant to s 11 of the Sentencing Act, no sentence was imposed for the stealing offence, as it was based on the same facts relied upon for the burglary offence.
3. The burglary and stealing offences (charges PE 45254/17 and PE 45255/17) were committed by the appellant during the period of suspension of the first SIO. Consequently, although that period of suspension had expired by the time the appellant came to be sentenced on 4 May 2018, Magistrate Campione was required to deal with the appellant under s 80 of the Sentencing Act for the original offences of aggravated home burglary (MI 1752/16 and MI 1754/16) in respect of which the first SIO was made.[3] Her Honour purported to deal with the appellant under the provisions of s 80 by resentencing her for the offences of aggravated home burglary. Her Honour considered that it would be unjust to 'trigger' (i.e. require the appellant to serve) the terms of imprisonment that had been suspended on 18 April 2017. In coming to that view, her Honour took into account that the appellant had been in custody since 15 August 2017, a period of 264 days (approximately 9 months), which she regarded as a significant period, made harder due to the appellant's separation from her child.[4] Her Honour also took into account the fact that the appellant was 'still quite young' and she accepted that the experience of being in custody had been a 'wake‑up call' for the appellant, and that it was 'a very different Ms Woods [who was] appearing in court [that day]'.[5]
4. Her Honour purported to sentence the appellant in respect of the original offences of aggravated home burglary by imposing further concurrent terms of 7 months' imprisonment suspended for 6 months (the second SIO).[6] Those sentences are the subject of the appeal in SJA 1041 of 2019.
5. If the second SIO was valid, the term of suspension would have commenced on 4 May 2018 and concluded on 3 November 2018.
6. For completeness, I note that Magistrate Campione also resentenced the appellant for two offences in respect of which she had been placed on an intensive supervision order (ISO) on 7 June 2016 in the Magistrates Court. Those offences, namely fraud and possession of stolen or unlawfully obtained property, were committed by the appellant on 13 February 2016. The ISO imposed on 7 June 2016 was for 12 months. The burglary and fraud offences for which Magistrate Campione came to sentence the appellant had been committed during the period of the ISO, and therefore in breach of the ISO. Her Honour imposed a CBO for 9 months in respect of the offences the subject of the ISO.

1. On 20 November 2018, the appellant was sentenced by Magistrate Malley in the Fremantle Magistrates Court for the offences of driving without a license, failing to ensure a passenger was wearing a seatbelt, breach of bail, trespass (three counts), common assault and home burglary. The offences were committed on various dates from 29 June 2018 to 19 October 2018, being during the period of suspension of the second SIO.
2. As the offences were committed during the period of suspension of the second SIO, and on the assumption that the second SIO was valid, Magistrate Malley was required to deal with the appellant for the offences the subject of the second SIO pursuant to s 80 of the Sentencing Act. His Honour did so by ordering that the appellant serve a term of 6 months' imprisonment in respect of each of the original offences of aggravated home burglary, the term for MI 1752/16 to be served cumulatively on the total effective sentence for the new offences, and the term for MI 1754/16 to be served concurrently. The total effective sentence for the new offences was 18 months' imprisonment, resulting in a total sentence of 2 years' imprisonment. His Honour ordered that the appellant be eligible for parole.
3. Prior to the sentencing on 20 November 2018, the appellant had been in custody since 20 October 2018, some 31 days. His Honour took that time into account by backdating the total effective sentence of 2 years' imprisonment to 20 October 2018.[7]
4. The sentence imposed on 20 November 2018 is the subject of SJA 1027 of 2019.
5. The following table, which is based on a table annexed to the appellant's submissions, sets out the sentencing outcomes in all of the proceedings to which I have referred.[8]

No sentence - s 11 Sentencing Act

1. Annexed as Appendix A to these reasons is a chronology prepared by the respondent which specifies the dates of all of the offences and sentencing hearings referred to above in a manner that identifies when breaches of court orders occurred.

1. On 20 February 2019, the appellant filed a notice of appeal in SJA 1027 of 2019. That notice set out two grounds of appeal:

(1) The learned magistrate erred in law in failing to take into account relevant mitigating factors, namely the appellant's youth and deprived background.

(2) The learned sentencing magistrate erred in imposing a sentence that, in its totality, was disproportionate to the appellant's offending conduct having regard to all the circumstances including those referable to the appellant personally.

1. The appellant also filed an application for an urgent appeal, which was supported by an affidavit made by the appellant's lawyer, setting out the reasons why an extension of time should be granted. On 22 February 2019, Strk AJ made programming orders granting the urgent appeal and ordering that the application for an extension of time be heard together with the appeal. Subsequently, SJA 1027 of 2019 was listed for hearing on 3 April 2019.
2. On 15 March 2019, the appellant filed a notice of appeal in SJA 1041 of 2019. That notice set out the following ground of appeal:
   1. The learned sentencing Magistrate erred in law in resentencing the appellant to further terms of suspended imprisonment for these offences when, the suspension periods initially imposed for these offences on 18 April 2017 having expired, the only options available under s 80 of the Sentencing Act 1995 (WA) were to order that she serve all or part of the previously suspended terms or to fine the appellant.
3. Along with the notice of appeal the appellant filed an application that SJA 1041 of 2019 be heard at the same time as SJA 1027 of 2019, pursuant to s 38(3) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), which provides that an appeal court may hear and decide two or more appeals, each of which is against a different decision, at the same time if it is in the interests of justice to do so. The application was supported by a further affidavit made by the appellant's lawyer, which also set out the reasons why an extension of time should be granted for that appeal.
4. Upon reviewing the outlines of submissions filed by the parties, it became apparent that it was in the interests of justice to hear the appeals together, as the outcome in SJA 1041 of 2019 would affect the manner in which SJA 1027 of 2019 should be dealt with. Further, in order to deal with the appeals in a logical and meaningful way, it was necessary to deal with them according to the chronology of the proceedings to which they related, rather than in the order in which they were filed.

1. The appeals to this court were brought under s 7(1) of the Criminal Appeals Act, which provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. 'Decision' is defined in s 6 to include 'a sentence imposed, or order made, as a result of a conviction or acquittal'. The orders that are the subject of the appeals fall within that definition in that they were made as a result of the appellant's conviction of the original offences of aggravated home burglary committed on 16 February 2016 and her subsequent conviction of offences that triggered or (on 20 November 2018) purportedly triggered the operation of s 80 of the Sentencing Act.
2. Section 8 of the Criminal Appeals Act stipulates the grounds on which an appeal may be made from a decision of the Magistrates Court. Relevant to these proceedings, it provides that an appeal may be made on the ground that the magistrate made an error of law[9] or imposed a sentence that was excessive,[10] or on the basis that there has been a miscarriage of justice.[11] Leave is required in respect of any ground relied upon by an appellant.[12]
3. In light of the course these appeals have taken, it is not necessary to consider the law relating to appeals against sentence, when the challenge is to the court's exercise of the sentencing discretion, in particular whether a sentence was excessive. The law in that regard is well settled and, no doubt, informed the appellant's decision ultimately not to pursue the original grounds of appeal in SJA 1027 of 2019.

1. It is appropriate to deal with the appeal in SJA 1041 of 2019 first, as the sentencing that gives rise to the appeal occurred first in time and the resolution of the ground of appeal will have consequences for SJA 1027 of 2019.
2. It is necessary to recognise at the outset that, while the penalties for offences are generally specified in the legislation creating those offences, the sentencing options available to a court dealing with criminal offending in this State, and the procedures for sentencing, are governed by the Sentencing Act, which is described in the long title as: 'An Act to consolidate and amend the law relating to the sentencing of offenders'. In particular, the option of suspended imprisonment is a creature of statute, and the manner in which such a sentence can be imposed and any breach of it can be dealt with is governed by pt 11 of the Sentencing Act, which includes sections 78 and 80.
3. Section 78 of the Sentencing Act provides, relevantly:
   1. Re‑offender may be dealt with or committed

(1) If a court convicts a person of an offence the statutory penalty for which is or includes imprisonment and that offence was committed during the suspension period of suspended imprisonment imposed on the person in relation to another offence, the court -

(a) if it is the Magistrates Court, must deal with the person under section 80 unless the suspended imprisonment was imposed -

(i) by the Children's Court for an indictable offence; or

(3) Subsection (1) does not affect the powers of the court that convicts the person of the offence committed during the suspension period to deal with the person for that offence.

1. Section 80(1) of the Sentencing Act provides:
   1. How re-offender to be dealt with

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these 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.

(3) 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. It follows from the provisions of s 78 and s 80 that, where:

(1) an offender has been sentenced to an SIO in the Magistrates Court;

(2) during the period of suspension, the offender commits an offence which is punishable by a term of imprisonment; and

(3) the offender is convicted of that offence in the Magistrates Court,

the court convicting the offender of that offence must deal with the offender for the offence or offences in respect of which the SIO was made, and must do so by adopting one of the options specified in s 80(1)(a) ‑ (d), subject to s 80(3). There are therefore mandatory requirements to deal with the offender under s 80 and to adopt one of the methods stipulated in subsection (1), but the choice of method involves an exercise of discretion, subject to the mandatory requirement of subsection (3). There is no discretion to adopt any other method to deal with the offender for the offence or offences in respect of which the SIO was imposed. Further, the use of the word 'unless' qualifies the availability of the options in paragraphs (a) to (d) in subsection (1) and the mandatory requirement in subsection (3).

1. Having regard to the plain meaning and context of the words 'unless the suspension period has ended' in s 80(1)(c), they are concerned with the point in time at which the court is dealing with the offender under s 80. Therefore, if the period of suspension under the SIO has ended when the court is dealing with the offender, the option in par (c) is not available.
2. As I noted earlier in these reasons, a suspension period begins on the day that an SIO is imposed.[13] The suspension period of the first SIO ended on 17 October 2017.
3. Therefore, when Magistrate Campione came to deal with the appellant on 4 May 2018 in respect of the offences the subject of the first SIO, the only options available to her Honour at law were those in s 80(1)(a), (b) and (d). Her Honour was obliged to use the option in paragraph (a), that is, to order the appellant to serve the terms that had been suspended on 7 June 2016, unless her Honour decided that it would be unjust to do so in view of all the circumstances that had arisen, or had become known, since the suspended imprisonment was imposed. Her Honour did decide that it would be unjust to do so, for the reasons I outlined at [12] above. Therefore, the options that remained available to her Honour were to order that the appellant serve part of the terms of imprisonment that were suspended on 7 June 2016 or fine the appellant no more than $6,000 and make no order as to the suspended imprisonment.
4. It should be noted that the options available to the court under s 80 do not involve the imposition of a sentence for the offences that were the subject of the SIO. The SIO remains the sentence that was imposed. The orders that the court may make under paragraphs (a), (b) and (c) relate to service of the term of imprisonment that was suspended by the court that imposed the SIO, or the substitution of another suspension period in respect of the term of imprisonment that was imposed by that court. The order that the offender serve all or part of the term of imprisonment that was suspended does not amount to the imposition of a term of imprisonment. That is clear from the provisions of subsection (5) of s 80, which provides that s 88 (concerning whether terms are to be cumulative, concurrent or partly concurrent) applies in respect of the term to be served, and that the court may make a parole eligibility order under s 89, 'as if the term to be served were a term of imprisonment being imposed by the court'.
5. The nature of the option of imposing a fine under paragraph (d) of s 80(1) is less clear, but, again, it is not a resentencing in respect of the offences that were the subject of the SIO, because under that paragraph the court is required to make no order in respect of the suspended imprisonment, which means that the SIO remains the sentence imposed for those offences, whether it is continuing or has expired.[14] If a fine is imposed under paragraph (d), it would appear to be a penalty for the commission of an offence during the period of suspension.
6. The position under s 80 may be contrasted with the option in s 130 of the Sentencing Act when dealing with an offender who has committed an offence while subject to a community order (a CBO or an ISO). Under that provision, if the community order is not then in force the court may 'sentence the person for the offence for which ... the community order was imposed in any manner the court could if it had just convicted the person of that offence'. If the community order is still in force, the court may cancel the order and sentence the person in the manner just described. The language denotes that the offender may be resentenced for the original offences. That is not the language of s 80.
7. The language used by Magistrate Campione on 4 May 2018, in dealing with the offences the subject of the first SIO, suggested that she was purporting to impose a new sentence. Her Honour said:[15]

So in relation to Midland charges 1752 and '54 of 2016, you're sentenced to seven months' imprisonment concurrent on each and that suspension is for a period of six months.

1. It was not open to her Honour under s 80 to impose a new sentence.
2. If the approach taken by her Honour is construed instead as an application of paragraph (c) of s 80(1), in that her Honour specified the same term of imprisonment that had been imposed on 7 June 2016 and should be taken to have substituted a new period of suspension, then that option was not open because the period of suspension of the first SIO had ended.
3. The adoption of a method of dealing with the appellant under s 80 that was not open at law constitutes an error of law which requires appellate intervention. Her Honour did not have power to make the order. The order was therefore void ab initio and must be set aside.[16] The respondent conceded that to be the case.[17]
4. Given that the sentence improperly imposed by Magistrate Campione was the foundation for the order subsequently made by Magistrate Malley, which impinged on the appellant's liberty, it was appropriate to grant an extension of time for the appeal in order for the sentence to be set aside. In those circumstances, it is not necessary to consider any other factual grounds for the application.
5. The respondent did not submit that this court should substitute any other order under s 80. There are a number reasons for concluding that it would not be appropriate to do so. First, there is no reason to question Magistrate Campione's assessment that it was unjust when she was dealing with the appellant to order her to serve the terms imposed, having regard to the factors she took into account. Secondly, the time the appellant had spent in custody on remand, while brought about because of her arrest for other offences, was longer than the term of imprisonment that had been suspended. Thirdly, the course of events that led to these appeals, and the passage of time, militate against the making of any further order such as the imposition of a fine.

1. For the reasons I have given, I made the following orders in respect of SJA 1041 of 2019.

(1) The appeal in SJA 1041 of 2019 is to be heard and determined at the same time as the appeal in SJA 1027 of 2019.

(2) An extension of time is granted for the bringing of the appeal in SJA 1041 of 2019.

(5) The sentence of 7 months' imprisonment suspended for 6 months imposed in respect of MI 1752/16 and MI 1754/16 is set aside ab initio.

1. In light of the orders I made in SJA 1041 of 2019, I gave the appellant leave to amend her grounds of appeal in SJA 1027 of 2019 by adding the following ground of appeal (Ground 3):

There was a miscarriage of justice in that Jeanette Woods was ordered to serve 6 months' cumulative imprisonment following breach of a suspended sentence imposed on 4 May 2018 in relation to Midland Charges 1752 and 1754 of 2016 in circumstances where those suspended sentences have been set aside.

1. The appellant then discontinued appeal grounds 1 and 2 in respect of SJA 1027 of 2019, which was appropriate, given the changed nature of the appeal.[18]
2. The respondent conceded that the appeal should be allowed on the basis of ground 3. The concession was properly made for the following reasons.
3. The foundation for the orders made by Magistrate Malley on 20 November 2018 in respect of MI 1752/16 and 1754/16, was that the appellant was convicted of a number of offences that were committed by her during the suspension period of the second SIO, which I have found to have been void. The orders made by Magistrate Malley, requiring the appellant to serve 6 months' imprisonment, were consistent with the adoption of the option in paragraph (b) of s 80(1) (i.e. the appellant was ordered to serve part of the suspended terms of 7 months' imprisonment). Further, subject to a matter I will deal with shortly, they would have been a valid exercise of the powers under s 80 if the SIO had a legal basis. However, the making of the orders constitutes a miscarriage of justice, because the foundation for the orders was void. The appellant should not have been dealt with under s 80, as she had not, as a matter of law, committed any of the offences of which she was convicted before Magistrate Malley during the suspension period of a valid SIO. While it was not contended by the appellant that any error can be attributed in that regard to Magistrate Malley, a miscarriage of justice has been occasioned and the orders made by Magistrate Malley cannot be allowed to stand. It would be plainly unjust to allow a person to serve a period of imprisonment resulting from a purported breach (by reoffending) of an order that, in fact, had no legal basis. In those circumstances, the granting of an extension of time in which to bring the appeal is warranted in the interests of justice.
4. The outcome would have been the same if both terms of 6 months' imprisonment which the appellant was ordered to serve had been made concurrent with the sentence of 18 months. However, the fact that the appellant's liberty was put further in jeopardy by the order that one of the terms be served cumulatively underscores the significance of the miscarriage. That is not to say that the order that the sentence be served cumulatively was wrong; it has not been necessary to address that issue. It is simply to recognise the significant consequence for the appellant.
5. Before concluding, there is a matter that requires comment in respect of the approach taken by Magistrate Malley, as it concerns the proper application of s 80. His Honour did not address s 80(3), which required him to order that the appellant serve the terms of imprisonment that were suspended unless he decided it was unjust do so. If he did decide it was unjust, he was required, by s 80(4) to give reasons for not doing so. Of course, it is of no moment, given the outcome in these proceedings.
6. However, while this court has regard to the busy nature of proceedings in the Magistrates Court and the summary nature of the jurisdiction, there is nevertheless a need for vigilance in the exercise of powers under a provision such as s 80 to ensure that the mandatory requirements are adhered to. Of course, the events of 4 May 2018 highlight the need for the court to ensure that any orders that are made are within the powers conferred by the legislation. In the context of s 80, it is necessary to bear in mind that what is mandated is not a resentencing of the offender, but the making of orders that give effect to the SIO, by ordering service of the term or part of the term of imprisonment, or extending the period of the SIO, or imposing a fine for the commission of an offence during the suspension period. Finally, it should not be overlooked that counsel have a responsibility to assist the court and to identify any error of law that may become apparent during the sentencing process.
7. As I noted earlier, the course taken by the appellant in discontinuing grounds 1 and 2 of SJA 1027 of 2019 recognised that the sentences that were otherwise imposed by Magistrate Malley on 20 November 2018 were within the sound exercise of discretion. The original complaint had been, in essence, in relation to the accumulation of the term of 6 months' imprisonment the appellant was required to serve for MI 1752/16. It is not necessary to say anything further about the sentences imposed by Magistrate Malley for the other offences he was dealing with.

1. For the reasons I have given, I made orders in the following terms in respect of SJA 1027 of 2019.

(1) An extension of time is granted for bringing the appeal.

(3) The appeal is allowed to the extent that the sentence of 6 months' imprisonment cumulative imposed in respect of Midland Charges 1752/16 and 1754/16 is set aside.

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

[1] Criminal Appeals Act 2004 (WA) s 38.

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

[3] Sentencing Act 1995 s 78(1) and s 80(1). The relevant provisions are reproduced below.

[6] Her Honour appears to have taken the time the appellant had spent in custody on remand into account again in fixing the term of imprisonment and the period of suspension: ts 4/5/18, p 5.

[7] See Sentencing Act s 87(1).

[8] Appellant's outline of submissions dated 21 March 2019, Annexure 1.

[9] Criminal Appeals Act s 8(1)(a)(i).

[10] Criminal Appeals Act s 8(1)(a)(iii).

[11] Criminal Appeals Act s 8(1)(b).

[12] Criminal Appeals Act s 9.

[13] Sentencing Act s 77(2).

[14] See Sentencing Act 1995 s 80(7), which provides: 'If an order is made under subsection (1)(d), then, unless the suspension period has ended, the sentence of suspended imprisonment remains in effect and the suspension period continues to elapse.'

[16] Criminal Appeals Act s 14(1)(c).

[17] Respondent's submissions filed 29 March 2019 [5] - [6]; ts 3/4/19, p 4.