ROE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 261

[2026] WASC 261 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : ROE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 261 CORAM : BYDDER J HEARD : 9 JUNE 2026 DELIVERED : 26 JUNE 2026 FILE NO/S : SJA 1019 of 2026 BETWEEN : RONALD WADE ROE Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE H WATSON File Number : CA 1107/2024, CA 1269/2024, CA 1271/2024, CA 1276/2024, CA 1388/2024, CA 1520/2024, CA 1530/2024, CA 249/2025, CA 302/2025, CA 303/2025, CA 304/2025, CA 306/2025, CA 307/2025, CA 313/2025, CA 314/2025, CA 315/2025, CA 316/2025, CA 491/2025, CA 492/2025, CA 493/2025, CA 1232/2025, CA 1233/2025 -- 1 of 75 -- [2026] WASC 261 Page 2 Catchwords: Criminal law - Appeal against sentence - Stalking - Trespass - Appellant diagnosed with cancer following sentencing Criminal law - Whether total sentence breached the second limb of the totality principle - Offender resentenced according to law Legislation: Community Protection (Offender Reporting) Act 2004 (WA) s 63 Criminal Appeals Act 2004 (WA) s 6, s 7, s 9, s 14, s 39, s 40 Criminal Code (WA) s 70A, s 172, s 338B, s 338E, s 445 Sentence Administration Act 2003 (WA) s 74L Sentencing Act 1995 (WA) s 9AA, s 39, s 41, s 42, s 80, s 84, s 84A, s 84B, s 84C, s 84CA Result: Leave to appeal granted on ground 6 Leave to appeal refused on grounds 1, 2, 3, 4 and 5 Extension of time to appeal granted Appeal allowed Offender resentenced Category: B Representation: Counsel: Appellant : Ms S King Respondent : Ms M Wong Solicitors: Appellant : Legal Aid (WA) Respondent : Director of Public Prosecutions (WA) -- 2 of 75 -- [2026] WASC 261 Page 3 Cases referred to in decision: Brooks v The State of Western Australia [2021] WASCA 156 BSA v The State of Western Australia [2025] WASCA 31 Corpus v Roseveare [2015] WASC 165 Dragon v The State of Western Australia [2008] WASCA 252 Gilmour v The State of Western Australia [2008] WASCA 42 Gulyas v The State of Western Australia [2007] WASCA 263 Hughes v The State of Western Australia [2014] WASCA 78 JYL v The State of Western Australia [2021] WASCA 222 Labrook v The State of Western Australia [2016] WASCA 127 Lockett v Commissioner of Consumer Protection [2017] WASC 358 LYN v The State of Western Australia [2019] WASCA 45 Miorada v The State of Western Australia [2022] WASCA 143 Narkle v Hamilton [2008] WASCA 31 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pryor v Loos [2021] WASC 403 R v Holder [1983] 3 NSWLR 245 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sellenger v Turner [2021] WASC 308 Siriphanuruk v The State of Western Australia [2021] WASCA 221 Smartt v Sloane [2019] WASC 35 Stubley v The State of Western Australia [2010] WASCA 36 The State of Western Australia v Rayapen [2023] WASCA 55 Wellstead v The State of Western Australia [2019] WASCA 130 -- 3 of 75 -- [2026] WASC 261 Page 4 Table of Contents Introduction ................................................................................................................................ 7 The offences the subject of this appeal and their maximum penalties ....................................... 7 How the learned Magistrate dealt with the appellant ................................................................. 8 The facts ................................................................................................................................... 10 Charges relating to Ms Q ...................................................................................................... 10 CA 302/2025 (stalking) .................................................................................................... 10 CA 307/2025 (threat to injure or harm a person) ............................................................. 12 CA 1232/25 and 1233/25 (trespass and damaging property respectively) ....................... 13 Charge relating to Ms P ........................................................................................................ 13 CA 491/2025 (stalking) .................................................................................................... 13 Charge relating to Ms B ....................................................................................................... 15 CA 492/2025 (stalking) .................................................................................................... 15 Other charges not the subject of the suspended imprisonment sentence .............................. 16 Trespass charges ............................................................................................................... 16 Failure to comply with reporting obligations under the CPOR Act ................................. 18 Charges the subject of the suspended imprisonment sentence ............................................. 18 CA 1107/24 (Breach of post-sentence supervision order)................................................ 18 CA 1269/24 (breach post-sentence supervision order)..................................................... 19 CA 1271/24 (obstructing public officer) .......................................................................... 19 CA 1276/24 (breach post-sentence supervision order)..................................................... 20 CA 1388/24 (failed to comply with reporting obligations under the CPOR Act) ............ 20 CA 1520/24 (failed to comply with reporting obligations under the CPOR Act) ............ 20 CA 1530/24 (trespass) ...................................................................................................... 21 Explanations for the offending ................................................................................................. 21 Stalking and trespass offences .............................................................................................. 21 Reporting obligation offences .............................................................................................. 22 Personal circumstances ............................................................................................................. 22 Psychological and pre-sentence reports .................................................................................... 24 The psychological report ...................................................................................................... 24 The first report ...................................................................................................................... 27 The second report ................................................................................................................. 27 Letters in support of the appellant and the appellant's apology................................................ 30 Sentencing remarks................................................................................................................... 31 Timing of the offending ........................................................................................................ 31 Discounts for guilty pleas ..................................................................................................... 31 -- 4 of 75 -- [2026] WASC 261 Page 5 Mitigating factors ................................................................................................................. 32 Seriousness of the offending ................................................................................................ 33 Trespass offences .............................................................................................................. 34 Reporting obligation offences .......................................................................................... 34 Stalking offences .............................................................................................................. 34 Aggravating factors .............................................................................................................. 35 General and personal deterrence and protecting the community ......................................... 35 Additional sentencing remarks ............................................................................................. 35 The grounds of appeal .............................................................................................................. 37 Consideration ............................................................................................................................ 38 The basis for the appeal ........................................................................................................ 38 Ground 6 ............................................................................................................................... 39 The appellant's submissions ............................................................................................. 39 The respondent's submissions........................................................................................... 39 The appellant should have leave to adduce the additional evidence ................................ 40 Leave to appeal should be granted on ground 6, the appeal should be allowed and the appellant should be resentenced ....................................................................................... 43 Grounds 2 to 5 need not be determined .................................................................................... 43 Resentencing the appellant - some key principles .................................................................... 44 Sentencing for multiple offences .......................................................................................... 44 The first limb of the totality principle .............................................................................. 44 The second limb of the totality principle .......................................................................... 44 A rationale for the totality principle ................................................................................. 45 Sentencing for more than one offence .............................................................................. 45 All available sentencing options must be considered ........................................................... 46 Dealing with an offender under s 80 of the Sentencing Act in relation to sentences of imprisonment that had been suspended ................................................................................ 47 Time spent in custody prior to sentence ............................................................................... 48 When an offender's illness may be a mitigating factor......................................................... 48 Mercy and sentencing ........................................................................................................... 48 Resentencing the appellant - additional matters raised in the appeal ....................................... 50 The standard of sentencing customarily observed for stalking offences .............................. 50 The appellant's cancer diagnosis, prognosis and treatment .................................................. 56 Resentencing the appellant - determining the appropriate sentence for each offence.............. 61 Matters to which I have had regard ...................................................................................... 61 Discounts for the appellant's pleas of guilty ......................................................................... 61 Seriousness of the appellant's offences................................................................................. 62 -- 5 of 75 -- [2026] WASC 261 Page 6 Mitigating and aggravating factors ....................................................................................... 64 Time in custody .................................................................................................................... 65 The need for personal deterrence.......................................................................................... 66 Overlap in elements of the stalking and trespass offences against Ms Q ............................. 67 Non-custodial sentencing options......................................................................................... 67 Whether imprisonment should be suspended ....................................................................... 68 The individual sentences ...................................................................................................... 68 Resentencing the appellant - cumulation, concurrency and totality ......................................... 70 The appropriate total effective sentence ............................................................................... 70 A total effective sentence of 2 years' immediate imprisonment is not 'crushing' in the sense of the second limb of the totality principle ........................................................................... 70 Dealing with the appellant under the Sentencing Act s 80 ................................................... 71 Matters of cumulation and concurrency ............................................................................... 71 Orders ....................................................................................................................................... 73 -- 6 of 75 -- [2026] WASC 261 BYDDER J Page 7 BYDDER J: Introduction 1 The appellant seeks leave to appeal from sentences of imprisonment imposed on him by the learned Magistrate on 24 October 2025. 2 The appellant relies on five grounds of appeal. For the reasons set out below: (a) leave to appeal should be granted in respect of the last of those grounds of appeal, arising from the appellant being diagnosed with cancer after he was sentenced by the learned Magistrate; (b) the appeal should be allowed in respect of that ground and the appellant should be resentenced by this court; (c) it is unnecessary for me to consider the remaining grounds of appeal, but some of the submissions made in respect of those grounds are relevant to resentencing the appellant; and (d) the appellant should be resentenced to immediate imprisonment with a total effective sentence of 2 years, backdated to 6 March 2025 and with eligibility for parole. The offences the subject of this appeal and their maximum penalties 3 At a hearing on 24 October 2025 (24 October hearing), the learned Magistrate dealt with the appellant for 22 offences against, variously, the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act), the Criminal Code (WA) (Code) and the Sentence Administration Act 2003 (WA) (SA Act). As this was a coordinated sentencing exercise, I must also deal with the appellant for all 22 offences. 4 The maximum penalties for the offences committed by the appellant are as follows:1 (a) breaching a post-sentence supervision order (PSSO) contrary to the SA Act s 74L - 3 years' imprisonment; 1 While the provisions creating some of these offences provide for a summary conviction penalty, those penalties reflect the jurisdictional limit of the Magistrates Court. They do not provide the maximum penalty which must be considered in determining the seriousness of each offence: Corpus v Roseveare [2015] WASC 165 [49] (Hall J). -- 7 of 75 -- [2026] WASC 261 BYDDER J Page 8 (b) obstructing a public officer contrary to the Code s 172(2) - 3 years' imprisonment; (c) failing to comply with reporting obligations contrary to the CPOR Act s 63(1) - 5 years' imprisonment; (d) trespass contrary to the Code s 70A(2) - 12 months' imprisonment and a fine of $12,000; (e) stalking contrary to the Code s 338E(2) - 12 months' imprisonment and a fine of $12,000; (f) threat to injure or harm a person contrary to the Code s 338B(1)(b)(iii) - 3 years' imprisonment; and (g) damaging property contrary to the Code s 445 - 2 years' imprisonment and a fine of $24,000. How the learned Magistrate dealt with the appellant 5 Of the 22 offences for which the learned Magistrate dealt with the appellant on 24 October 2025, seven had previously been the subject of an effective sentence of 7 months' imprisonment, suspended for a period of 5 months. The suspension period ended on 16 July 2025. 6 Because of the offences the appellant committed during that suspension period, the learned Magistrate had to deal with the appellant under s 80 of the Sentencing Act 1995 (WA) (Sentencing Act) for each of those seven offences. I set out in the table to this paragraph each of those offences, its charge number, when it was committed, the sentence initially imposed on 17 February 2025 and how the learned Magistrate dealt with the appellant for those offences at the 24 October hearing. Charge No CA Offence Date of offence Original sentence Order under s 80 1107/24 Breach PSSO 21.08.24 2 months cumulative 2 months concurrent 1269/24 Breach PSSO 03.11.24 1 month concurrent 1 month concurrent 1271/24 Obstructing a public officer 03.11.24 1 month concurrent 1 month concurrent 1276/24 Breach PSSO 16.09.24 2 months concurrent 2 months concurrent -- 8 of 75 -- [2026] WASC 261 BYDDER J Page 9 Charge No CA Offence Date of offence Original sentence Order under s 80 1388/24 Failure to comply with reporting obligations 05.11.24 1 month cumulative 1 month cumulative 1520/24 Failure to comply with reporting obligations 09.12.24 2 months concurrent 2 months concurrent 1530/24 Trespass 18.12.24 4 months head sentence 4 months cumulative 7 The effect of the learned Magistrate's orders in respect of these seven offences was that the appellant was required to serve 5 of the 7 months' imprisonment that had been suspended in addition to sentences imposed by her Honour in respect of the remaining 15 offences. 8 The remaining 15 offences are set out in the table to this paragraph, together with its charge number, when it was committed and the sentence imposed by the learned Magistrate on 24 October 2025. Charge No CA Charge Date of offence Sentence 249/25 Trespass 18.02.25 3 months concurrent 302/25 Stalking Ms Q 12.10.24 - 05.03.25 10 months (head sentence) 303/25 Trespass 02.03.25 3 months concurrent 304/25 Trespass 02.03.25 3 months cumulative 306/25 Failure to comply with reporting obligations 03.03.25 2 months concurrent 307/25 Threat to injure or harm a person 05.03.25 2 months cumulative 313/25 Failure to comply with reporting obligations 22.10.24 2 months concurrent 314/25 Failure to comply with reporting obligations 31.10.24 2 months concurrent -- 9 of 75 -- [2026] WASC 261 BYDDER J Page 10 Charge No CA Charge Date of offence Sentence 315/25 Failure to comply with reporting obligations 04.11.24 2 months concurrent 316/25 Failure to comply with reporting obligations 13.11.24 2 months concurrent 491/25 Stalking Ms P 01.09.24 - 05.03.25 9 months cumulative 492/25 Stalking Ms B 27.11.24 - 04.03.25 6 months cumulative 493/25 Trespass 05.03.25 3 months concurrent 1232/25 Trespass in relation to Ms Q 01.03.25 6 months concurrent 1233/25 Damaging property (Ms Q's door) 01.03.25 2 months concurrent 9 In light of these sentences, the total effective sentence imposed on the appellant was two years and 11 months' immediate imprisonment. 10 The learned Magistrate backdated the sentence to start on 6 March 2025, when the appellant had last been taken into custody.2 The sentences of imprisonment that had been imposed and suspended on 17 February 2025 took into account the appellant's time in custody before those sentences were imposed.3 The facts 11 Through his counsel, the appellant accepted the facts as read by the prosecutor before the learned Magistrate at the hearing on 7 October 2025 (7 October hearing).4 I set out those facts below. Charges relating to Ms Q CA 302/2025 (stalking) 12 The facts were:5 WHITE, MR: … 12 October last year, [Ms Q] attended Carnarvon Health Campus for medical treatment. Whilst waiting at the ED 2 7 October hearing ts 31. 3 24 October hearing ts 2. 4 7 October hearing ts 16. 5 7 October hearing ts 12 - 15. -- 10 of 75 -- [2026] WASC 261 BYDDER J Page 11 department, the accused approached the victim and attempted to engage in conversation, without prompt, and repeatedly asked the victim where she lived. HER HONOUR: How old is she? WHITE, MR: 27 at the time – repeatedly asked the victim where she lived, where all her brothers and sisters were, and once asked if she was single. The victim attempted to move away from the accused several times; however, he would continue to follow her around and attempt to talk with her, stating that he knows her family. He remained right next to the victim whilst she was at the triage nurse window, even after the nurse asked him to leave. The victim felt that uncomfortable she went outside for a cigarette, next to a vehicle. Followed by the accused, and then back across the road, after the victim moved there. Made the victim feel unsafe. He then followed her back into the ED department, where he continually tried to get close and touch the victim. … He managed to hug her twice in the ED department. 13 February6 this year, the victim was a passenger in her own car. Her partner was driving this at the time, along Babbage Island Road. This is near the Christian school. As they were driving towards Robinson Road, the accused, who was walking toward them on the opposite side of the street, suddenly walked onto the road with his arms out, attempting to stop the victim's vehicle. The victim's partner drove around the accused and kept driving. 26 February, the victim was at her own address. Just after 8 o'clock in the morning, the accused walked toward the address. The victim walked out of the front to place her son's school bag in her car, which was parked in the driveway. She observed the accused walking toward the address, felt scared after recognising him and walked back into her house. The accused walked up to the end of the driveway and, whilst watching the victim's address, said to themself, 'Oh, only one dog there today,' which the victim heard on her CCTV cameras. She became scared, knowing one of the dogs was not present outside and believing the accused noticed only one of her two dogs was present outside. … 28 February, the victim was at her home address. Just after 6 o'clock that evening, she was watering her front lawn. … 6 This date appears to be inaccurate, because the appellant was in custody until 17 February 2025. However, the facts were accepted on the appellant's behalf and I take this either to be a transcription error or a misstatement by the prosecutor of the relevant date, which must have been on or after 17 February 2025 and, it appears from the factual narrative, on or before 26 February 2025. -- 11 of 75 -- [2026] WASC 261 BYDDER J Page 12 The accused walked down the road toward her place. Car was in the driveway. The victim felt scared, walked inside the house. The accused watched the victim's address the whole time as he walked past. She saw the accused do this, through her windows and on CCTV cameras. 1 March, the victim again at her home address – this is 8.38 pm – and again, the car is parked in the driveway. He has opened the front flyscreen, damaging it, and attempted to open the door. I think maybe that was the (indistinct) so he has opened the front flyscreen, damaging it, and attempted to open the front main door, which had been locked. The victim looked at her cameras, recognised the accused and called triple zero. The accused left. And then the last one is 5 March. This is – [the victim] attended Carnarvon Health Campus for medical treatment. … Parked her vehicle outside, close to the main entrance. About 12.40 pm, the accused was outside the entrance as the victim walked out. He saw her, whistled at her and called out her name. The victim felt scared and said, 'Fuck off. Leave me alone,' and started running to her vehicle. The accused ran after the victim, yelled out, 'You tell me to fuck off, you cunt. I'm your fucking uncle.' … The victim quickly got into her vehicle, locked the doors. The accused stood right next to the vehicle and continued yelling and swearing at her. The victim then drove off and called police. CA 307/2025 (threat to injure or harm a person) 13 The facts were:7 5 March, the accused is at Carnarvon. The accused is at Carnarvon Hospital. He approached [Ms Q]. This is 12.45 pm. The victim is a 37 year old [male]. At 12.45, the accused is at the hospital. Whilst there, he has approached a female in the car park. An altercation occurred. … The victim is a security guard working at the hospital. Heard the altercation; went to intervene. Upon the victim exiting the hospital, the accused approached in an aggressive manner. He began to abuse and yell at the victim. Walked right up to within 30 centimetres of him. Had both hands raised next to his head as if he was about to punch the victim. Whilst doing this, he said something similar to, 'I'm going to fucking punch you.' The victim stepped back, created space between himself and the accused. This interaction lasted for approximately one minute. The victim was fearful and felt threatened about what the 7 7 October hearing ts 16. -- 12 of 75 -- [2026] WASC 261 BYDDER J Page 13 accused may do to him. He maintained his distance. He continued to ask the accused to leave, which he eventually did, and he was arrested 10 minutes later. CA 1232/25 and 1233/25 (trespass and damaging property respectively) 14 The facts were:8 1 March, [Ms Q] was at her home address in [suburb]. 8.38 pm, the accused walked up to the front door of that address. The vehicle was parked in the open driveway out the front. The accused opened the front fly screen door, damaging it, and attempted to open the main door, which had been locked. The accused called out to the victim. … Called out to the victim by her name. The victim looked at the CCTV, recognised the accused and called triple zero. And he was arrested on 5 March. Charge relating to Ms P CA 491/2025 (stalking) 15 The facts were:9 [Ms P] is a 25-year-old female. She used to work at the Waterfront Cafe. Sometime late last year, the accused attended that location while the victim was working there. … The accused spoke with the victim and wanted to play guitar out of the front of the cafe. He then invited the victim back to his home to play the guitar for her. Over the next several weeks, while the accused was riding a scooter along Robinson Street, on about three occasions, the accused walked toward her and called out her name. … Around midday on the 3rd [of November], he attended the Waterfront Cafe. He was intoxicated, kept calling out the victim's name. … She became anxious, got on her scooter and rode off. Fast forward to late February, early March of this year, again, he attended the Waterfront Cafe while the victim was working there. 8 7 October hearing ts 5 - 6. 9 7 October hearing ts 6 - 9. -- 13 of 75 -- [2026] WASC 261 BYDDER J Page 14 … So sometime between late February and early March, he has gone to the cafe again. Called out to the victim and leaned over the counter. He looked around for the victim, who had backed off and was hiding in the corner of the store. He then asked if there was any free stuff before leaving, when the cafe owner requested he leave. 4 March, around 4.56 pm, the victim was outside the BWS bottle shop at the shopping centre on Robinson Street. The accused walked past the victim and attempted to speak with her. At about 5.07 pm, as the victim was walking through the internal entrance to Woolworths, the accused attempted to speak again. The victim ignored the accused and continued walking. The accused continued watching the victim for another 15 seconds as she walked inside Woolworths. … A few minutes later, the accused entered Woolworths. He walked to the back of the store. As he walked along the back of the store toward the meat aisle, he looked down each aisle, seeking out the victim. … He then saw the victim in the meat aisle and walked down the adjacent aisle toward the front of the store. He walked around to the meat aisle, approached the victim, attempted to start a conversation with her again. Feeling scared, she ignored the accused and walked back toward her friend that was with her. She asked that friend to pretend that he was her boyfriend as she was frightened. The accused remained in the meat aisle, continued to watch the victim again for over 15 seconds before walking away and leaving. He did not engage in any conversation with any other person inside Woolworths at that time. He then waited at the public telephones near the BWS entrance. As the victim left and walked toward the shopping centre exit, the accused put the phone down and approached the victim again, attempting to start another conversation. The victim ignored the accused. She continued walking toward the exit. The accused continued to speak and followed behind her for about 10 seconds. The entire incident was captured on the CCTV from the shopping centre. … Around 12.12 pm on 5 March, the victim was inside the Woolworths store. As she was walking toward the self-serve checkout to purchase items, the accused watched the victim as she walked past the exit to the self-service, waited on a bench near the exit and watched her pay for the shopping. As she walked out of the self-serve checkout and walked toward the exit, the accused got up from the bench. He stepped in front of the victim. He said, 'Let's go fuck.' -- 14 of 75 -- [2026] WASC 261 BYDDER J Page 15 … The victim took out her earphones and asked the accused what he was saying. He then repeated it, 'Let's go fuck. It's a beautiful day, and you're a beautiful girl.' The victim felt scared and disgusted. She backed away and left the shopping centre from a different exit. It was captured on CCTV and the accused was arrested outside 30 Robinson Street around 12.55, so some 40 minutes after. Charge relating to Ms B CA 492/2025 (stalking) 16 The facts were:10 This victim is a 19 year old. She works at the 777 pharmacy. On the evening of 27 November last year, the victim was walking along the footpath with her friend, who is also 19. The accused was riding a bicycle on the road next to the victim. … He has called out and said, 'Hey, what are you girls up to?' He kept calling out, attempting to talk to both, who were – both felt uncomfortable, and they were ignoring the accused. One morning late February this year, the accused was standing out the front of the bank next to the Carnarvon Pharmacy. 777 Pharmacy, the same one. As the victim was walking in there to commence work, the accused looked at the victim, smiled and said, 'Good morning.' 9.22 am on the 28th [of February], the accused walked into the pharmacy. … He approached a female staff member and asked if she was the only person working that day, to which he was advised that there were two working. He asked the staff member several times if a [redacted] or something similar worked at the pharmacy. He continued talking with the female staff member for about two minutes before he walked out of the store. HER HONOUR: So that wasn't - - - WHITE, MR: No, it doesn't, I don't believe that this was the – this was a female staff member. It doesn't say that it was the victim. But given that he was asking if a [redacted] or [redacted] worked there and the victim was [redacted], I suggest he was speaking to somebody else, making inquiries about the young lady. He continued talking to the staff member for a couple of minutes before he walked out without purchasing anything. CCTV has captured that interaction. 9.37 the same 10 7 October hearing ts 9 - 11. -- 15 of 75 -- [2026] WASC 261 BYDDER J Page 16 morning, the victim commenced her rostered shift. The accused stepped inside the front door of the pharmacy. As he came in, the victim's female staff peer told her to duck down behind the desk where they were standing. And from inside at the front door, the accused called out to the same female staff member and asked, 'Is it still just the two?' When the female staff member responded saying there was still only two, the accused walked out. Again, CCTV captures it. Happened again at 2.26. HER HONOUR: Same day? WHITE, MR: Yes. Made her feel uncomfortable. HER HONOUR: So did he come in and ask again? WHITE, MR: He eventually initiated a conversation with the victim and asked her about the first time they had met. HER HONOUR: Sorry, when he came in at 2.26, did he ask again if there were two people when you say the same thing, or he just came in? WHITE, MR: No, no, no. He just came in. … He initiated a conversation with the victim and asked her about the first time they had met, referencing a party. He asked the victim if she had any sisters before stating, 'I thought I would come in and check on you and say hi.' … He has then walked out; again, CCTV captures it. Tuesday, 4 March at 7.59, he has walked past the front door of the pharmacy. After looking through the front windows, he walked back and stepped inside the store, looking around. He said something to a female staff member before walking off, again captured on CCTV. Other charges not the subject of the suspended imprisonment sentence Trespass charges CA 249/2025 17 The facts were:11 6.50 pm, 8 February, the accused entered the victim's front yard and onto the front verandah, knocked on the front door, tried turning the locked door handle twice. The victim opened the door, spoke to the 11 7 October hearing ts 5. -- 16 of 75 -- [2026] WASC 261 BYDDER J Page 17 accused on the verandah. He mumbled words which couldn't be understood and appeared to be intoxicated by drugs or alcohol. He was told to leave by the victim [a male police officer], to which he did. … He was told to leave, which he did. Captured on CCTV. And he was arrested the following day. Stated under caution he consumed about half a carton of beer, had no memory of the incident, had no intention to enter the address. CA 303/2025 18 The facts were:12 6.25 am, 2 March, approached an [address] in Brockman, walked up the driveway to the front door. He attempted to open the door. No lawful reason to be there. There was no association with the [male] occupant. CA 304/2025 19 The facts were:13 [F]ive minutes after that, same day [2 March], he has approached another address. The occupant and [female] victim had only just returned after taking her dog for a walk. The accused walked up to the front door, rang the bell, called out the victim's name, and yelled out, 'Open the door.' … As the victim looked outside the front window to see who it was, she saw the accused. He looked at her and blew a kiss toward her. … [H]e called out her name. The victim felt scared, walked back toward the kitchen and waited for the accused to leave. He remained there for about three to four minutes before he left. Again, no lawful reason to be there; no known associations with the victim. CA 493/2025 20 The facts were:14 5.15 am, 5 March – this is [male occupant] – he has gone to the address in Willesee Street, walked up the driveway to the front door, attempted 12 7 October hearing ts 15. 13 7 October hearing ts 15. 14 7 October hearing ts 11. -- 17 of 75 -- [2026] WASC 261 BYDDER J Page 18 to open the security door; doesn't appear to have done so. No lawful reason to be there; no association with the occupant. CCTV captured it. Failure to comply with reporting obligations under the CPOR Act CA 306/2025 21 The facts were:15 The accused was served on 24 February with a P308, basically had to report on 3 March at Carnarvon Police Station. He signed that form however failed to report and failed to contact an authorised person. CA 313/2025 to 316/2025 22 The facts were:16 on four separate occasions, being on 22 October, 31 October, 4 November, and 13 November, the accused failed to report as directed. And on one occasion, charge 315, he provided a positive test for cannabis when providing a sample... HER HONOUR: Sorry, just want to check, did he give an explanation to that, please? WHITE, MR: No. Charges the subject of the suspended imprisonment sentence CA 1107/24 (Breach of post-sentence supervision order) 23 The facts were:17 This is the breach post-supervision order. … 7 August the accused was placed on that order; due to expire 6 February. Part of the conditions were not to use or be in possession of any illicit drug, including cannabis, and to attend for random urinalysis. 21 August, he attended at the hospital. He completed a urinalysis as directed; however, positive for amphetamine, methylamphetamine, cannabis and benzodiazepine. … 15 7 October hearing ts 16. 16 7 October hearing ts 4. 17 7 October hearing ts 19 - 20. -- 18 of 75 -- [2026] WASC 261 BYDDER J Page 19 He was spoken to a few days later by police; he made admissions, said, 'I'm trying to get my life back on track.' CA 1269/24 (breach post-sentence supervision order) 24 The facts were:18 On Thursday, 4 January 2024, the accused was placed on a post- sentence supervision order, due to expire on 6 February 2025. Two of the conditions of the PSSO included not to consume alcohol and to submit to random breath-testing as required by police. On 3 November 2024, the accused was at The Fascine along Olivia Terrace, Carnarvon, near the children's playground. The member of the public advised police that the accused told them that within his juice carton is goon. This is a type of wine. The accused was holding the breakfast juice carton and the liquid content within a dark red-purple colour … Police observed the accused drink from the container. Police advised the accused to put the alcohol down. The accused began to walk away. Police attempted to grab the alcohol, but the accused stated, 'Like, fuck, I'm drinking.' The accused was arrested for multiple offences. CA 1271/24 (obstructing public officer) 25 The facts were:19 [A]t about 12.10 pm on Sunday, 3 November 2024, the accused was at The Fascine along Olivia Terrace, Carnarvon, near a children's playground. A member of the public contacted police after it was reported the accused was drinking alcohol in public. Police attended the scene and spoke to the accused. The accused was advised the police body-worn cameras were on. The accused response was, 'Like, fuck.' Police advised the accused to put the alcohol down. The accused began to walk away. Police attempted to grab the carton but the accused refused, stating, 'Like, fuck, I'm drinking.' Police advised the accused to stop swearing in public as there were members of the public nearby. The accused continued to swear abuse, using words such as, 'Fuck off, cunts,' on various occasions. Police arrested the accused for drinking in public and disorderly behaviour. When advised he was under arrest, the accused pulled his arms away from police and refused to surrender his hands to police so they could apply handcuffs. The accused continued to comment he would bash police and physically resisted arrest by tucking his arms forward, towards the front of his body. The accused was physically restrained on the ground, where he continued resisting by tucking his arms into his body. The accused continued to resist 18 7 October hearing ts 21. 19 7 October hearing ts 20. -- 19 of 75 -- [2026] WASC 261 BYDDER J Page 20 arrest, make comments to police which included, 'I'll start knocking you C's out.' Multiple members of the public were present during the incident. The incident was recorded on police body-worn cameras. The accused was conveyed to the station with the present charge preferred. CA 1276/24 (breach post-sentence supervision order) 26 The facts were:20 On Thursday, 4 July 2024, the accused was placed on a post-sentence supervision order, due to expire 5 February 2025. The conditions were not to use or be in possession of a prohibited drug. On 16 September 2024, the accused attended for urinalysis testing, which gave a positive for cannabis, amphetamine and methamphetamine. The accused was advised he would be summonsed. CA 1388/24 (failed to comply with reporting obligations under the CPOR Act) 27 The facts were:21 The accused is a reportable offender. The accused has been registered on the Australian National Child Register, ANCOR, since 4 March 2005. On Wednesday, 2 October 2024, the accused was served a P308 Notice of Reporting Obligations document and an accompanying explanatory pamphlet by police. The NORO document explained that one of the obligations was that he must report to an authorised person at the Carnarvon Police Station on 5 November 2024. The accused signed his form in acknowledgement of his obligations. The accused failed to report on the date and failed to contact an authorised person. Wednesday, 20 November 2024, the accused was arrested and conveyed to the Carnarvon Police Station, where he declined to participate in an interview. CA 1520/24 (failed to comply with reporting obligations under the CPOR Act) 28 The facts were:22 On Tuesday, 3 December 2024, the accused was served with a Notice of Reporting Obligations document and an accompanying explanatory pamphlet by police. The NORO document explained one of the obligations was he must report to an authorised person at Carnarvon Police Station on 9 December 2024. The accused signed his form of acknowledgement to the obligations. He failed to report on that date and failed to contact an unauthorised [sic] person. On Monday, 20 7 October hearing ts 21 - 22. 21 7 October hearing ts 22. 22 7 October hearing ts 22 - 23. -- 20 of 75 -- [2026] WASC 261 BYDDER J Page 21 15 December 2024, he was arrested at Carnarvon Police Station, where he declined an interview. CA 1530/24 (trespass) 29 The facts were:23 At 7.30 am on Wednesday, 18 December 2024, the accused was at 39 Norton Way, Carnarvon. The accused does not reside at the property or have an interest in the property. The accused was wearing a grey and red Tshirt, black shorts and a black baseball cap. CCTV captured the accused entering the rear of the property by climbing over the next-door fence. Went into the victim's exterior patio area. The accused loitered around the patio area, moving around to the other side of the property and back towards the fence he initially jumped over. The accused did not take anything from the property and fled from the house a few minutes later. At about 7.50 am on Wednesday, 18 December 2024, the accused was arrested wearing the same grey and red T-shirt, black shorts and black baseball cap at 39 Norton Way, Carnarvon. He was conveyed to the police station at Carnarvon, where he declined to participate in an electronic record of interview. Explanations for the offending Stalking and trespass offences 30 The appellant's counsel before the learned Magistrate conceded that the most serious of these offences were those in relation to Ms Q, as they seemed to have been the most persistent and there was some hostility involved.24 31 As identified in the pre-sentence reports, to which I turn later in these reasons, the appellant has minimised his actions in relation to the persistence and severity of his stalking and trespass offences and had asserted that he was just being friendly or trying to build a relationship with the victims of his offending. However, the appellant says that he did not intend to make any of the victims of his stalking offences uncomfortable. 32 I note that the appellant's counsel before the learned Magistrate accepted that the appellant had at times minimised his actions in relation to the persistency and severity of the stalking, but submitted that he has developed a better insight into his behaviour as time has gone on. This, it was submitted, was reflected in the appellant's pleas of 23 7 October hearing ts 23. 24 7 October hearing ts 24. -- 21 of 75 -- [2026] WASC 261 BYDDER J Page 22 guilty, his becoming more open and the apology that he read before the learned Magistrate (to which I refer below).25 Reporting obligation offences 33 The appellant's counsel before the learned Magistrate submitted that the appellant got his dates mixed up and did eventually report. She also submitted that the appellant was in Perth for medical treatment at one stage and that the appellant was struggling with alcohol and methamphetamine, which was linked to the appellant's inability to stay on track with his dates for reporting.26 Personal circumstances 34 The appellant was born on 8 May 1978 in Carnarvon. He grew up in Carnarvon and Perth and was raised by his mother. He is the eldest of three children.27 35 From when he was a toddler until the age of six, he resided with his grandparents in Perth. He had a good early childhood and his grandmother worked in the Education Department, where he used to go to work with her. He later spent a couple of years in Halls Creek with his grandmother when she was transferred there as a teacher.28 36 The appellant returned to Carnarvon when he was 10 or 11 years old. He got into sports, but he also started associating with cousins and peers and began experimenting with cannabis and alcohol as an early teen. During this period his mother and father also separated. Some problems developed and the appellant was expelled from school at the age of 13.29 37 The appellant's father perpetrated family violence against his mother. The appellant was angry with his father for doing so but as the appellant has become older he has forgiven his father, who he now describes as a good family man and a good support. The appellant remains very close to his mother.30 38 The appellant has unresolved trauma symptoms and symptoms of (undiagnosed)31 post-traumatic stress disorder. The appellant's trauma 25 7 October hearing ts 24 - 25. 26 7 October hearing ts 23 - 24. 27 7 October hearing ts 28. 28 7 October hearing ts 28. 29 7 October hearing ts 28 - 29; see also psychological report dated 9 January 2024 (psychological report), 3. 30 7 October hearing ts 29. See also pre-sentence report dated 11 February 2025 (first report), 3. 31 24 October hearing ts 5. -- 22 of 75 -- [2026] WASC 261 BYDDER J Page 23 has occurred through exposure to violence both when growing up and as an adult, and also as a result of the death of his younger brother by suicide when the appellant was 19. His younger brother's tragic death has been a heavy burden for the appellant and his whole family and it was after his brother's death that the appellant started using methamphetamine heavily.32 39 The appellant has six or seven children to different mothers. His relationships with those women were affected by his substance misuse. I note from the plea in mitigation made on the appellant's behalf before the learned Magistrate and his submissions on appeal that the appellant wishes to tackle his substance misuse and would potentially like to go into rehabilitation. As he has been in custody for a significant period of time, the appellant says that he feels like a different person and is feeling more clearheaded than he has in a long time.33 40 The appellant has a new partner and has a three-year-old son with her. His partner is in Perth and she would like for the appellant to travel to Perth and reside with her. In addition, he has a good friendship with a previous partner in Perth, with whom he has a five-year-old daughter and a 26-year-old.34 41 The appellant has a limited employment history due to the significant periods of imprisonment he has served, and presents with a lack of resilience and a positive peer support network due to long-term institutionalisation.35 42 The appellant has a significant history of illicit substance use and drug-induced psychosis which has continued long after the use of methamphetamines. The appellant was also under the influence of alcohol and/or methamphetamines throughout the majority of his offending.36 43 The appellant has an extensive criminal record running to 43 pages, including convictions for assault, indecent assault, threatening conduct, trespass, burglary, breaching restraining orders, breaching PSSOs, breaching protective bail conditions, breaching community-based sentencing orders and failing to comply with 32 7 October hearing ts 27, 29. 33 7 October hearing ts 29; appeal ts 35. 34 7 October hearing ts 29 - 30. I note that the ages of the appellant's children provided are their ages as at 7 October 2025. 35 First report, 4; see also psychological report, 3. 36 First report, 4; 7 October hearing ts 25. -- 23 of 75 -- [2026] WASC 261 BYDDER J Page 24 reporting obligations. The appellant also has previous convictions for stalking contrary to the Code s 338E(2) from 2023 and 2024. 44 As I have already noted, at the time of committing his most recent offences the appellant was the subject of sentences of imprisonment that had been suspended, as well as a PSSO relating to similar stalking charges.37 He reoffended the day after his sentences of imprisonment were suspended.38 Psychological and pre-sentence reports 45 There were two pre-sentence reports before the learned Magistrate, dated 11 February 2025 (first report) and 3 October 2025 (second report). They need to be read together and with the psychological report dated 9 January 2024 (psychological report).39 The psychological report 46 The psychological report was prepared without a specific referral question and in preparation for the appellant's sentencing for 14 offences on 22 January 2024, including two counts of stalking, two counts of trespass and one count of criminal damage. The author of the report assumed that the court was interested in the appellant's general psychological profile and how it relates to his offending behaviour. For that purpose, the report addressed the appellant's presentation at interview with the psychologist, his developmental history, his substance use, personality and diagnostic assessment (which was limited by the responses that the appellant was able to provide at interview), his health and psychological functioning, forensic history and index offences. 47 Among the matters addressed in the psychological report: (a) the psychologist noted that the appellant acknowledged his various problem behaviours but also seemed to overestimate his capacity to deal with his various difficulties;40 (b) the psychologist recorded with concern the appellant's comments that for a number of years he had been experiencing fairly persistent drug induced psychotic symptoms that were not totally dissipating once he stopped abusing those substances, 37 7 October hearing ts 28. 38 7 October hearing ts 31. 39 See the second report, 1, 3. 40 Psychological report, 2. -- 24 of 75 -- [2026] WASC 261 BYDDER J Page 25 which were relevant to the psychological assessment because the appellant's risk of violence appeared to become highly elevated when he was experiencing psychotic symptoms;41 (c) the psychologist observed that the appellant's 'comments indicated that he was troubled by salient post-traumatic stress symptoms, which were related to witnessing his father's family violence and other adverse experiences during his childhood and adulthood';42 (d) as to the appellant's coping and emotional management strategies, the psychologist considered that the appellant 'impressed as having a limited awareness of his internal world (emotions, thinking patterns, physiological arousal or stress levels)' and '[i]n practical terms such poor awareness would mean that he did not monitor his internal states and hence had minimal ability to manage these'.43 48 The psychologist also said in respect of the stalking offences against two female victims for which the appellant was about to be sentenced:44 Mr Roe's current offences against the two female victims were seen to reflect his poor decision-making and cognitive distortions, which would have been underpinned by his psychological and psychiatric instability. In that state he would have been able to justify his actions to himself, whilst ignoring the problematic and intimidating nature of his actions and their impact on his victims. It was likely that his actions were an attempt to meet his socioemotional needs for connection, emotional nurturance, and possibly sexual gratification in a highly inappropriate and predatory manner. Mr Roe's past behaviours indicated a pattern of predatory behaviour towards women, although it was not clear how problematic this was currently, as his convictions for sexual offences dated back to over 20 years ago. As stated above, it was highly likely that antisocial ways of thinking and behaving were entrenched within Mr Roe's cognitive and behavioural repertoire, which elevated his risk of committing crime. His substance abuse and the subsequent drug induced psychotic symptoms were of a particular concern as this increased the risk of him acting in not only antisocial but also in erratic and impulsive ways. 41 Psychological report, 4, 5; 7 October hearing ts 26. 42 Psychological report, 6. 43 Psychological report, 6. 44 Psychological report, 9. -- 25 of 75 -- [2026] WASC 261 BYDDER J Page 26 49 The psychologist used the Violence Risk Scale to provide a prediction for the risk related to future violent offending by the appellant.45 Offenders who obtained similar scores under the Scale to the appellant have a 67.8% chance of being convicted of a non-violent offence and a 44.5% chance of being convicted of a violent offence pre- treatment. The appellant's overall results are therefore predictive of a high risk of reoffending in a violent manner.46 50 Both static and dynamic factors contributed to that assessment. The static factors looked back to how old the appellant was when he was first convicted of a violent offence and his convictions as a juvenile, prior violent offences, breaches of various court orders and unstable upbringing. 51 As to the dynamic factors contributing to the assessment, the psychologist said that the most relevant of those factors47 related to the presence of hostile intent attribution bias, which was underpinned by unresolved trauma symptoms and compounded by the presence of drug induced psychotic symptoms. He also presented with self, emotional, and relationship management skill deficits, as well as impulsivity issues and had a significant history of drug and alcohol abuse. Mr Roe had a history of unemployment, of poor engagement with supervision/treatment, of relationship instability and limited personal supports. He also presented with limited insight into his violent behaviour and into his high risk situations, and was seen to hold cognitive distortions. Mr Roe also has a history of aggressive behaviour while in prison. 52 The psychologist continued:48 The most likely scenario where Mr Roe could reoffend in a similar manner would involve him failing to take steps to address his drug/alcohol abuse issues and the factors underpinning this. In addition, it appears that he needed to become more proactive in managing his vulnerability to developing drug induced psychotic symptoms. In addition to addressing his drug use, this may also involve compliance with appropriate medications while in the community. Failing to start addressing those areas would elevate Mr Roe's risk of relapse into drug abuse, which could trigger drug induced psychotic symptoms and destabilise him psychologically. In that context he could be at an 45 The psychologist cautioned that it is not possible to predict with certainty whether or not a person will reoffend and identified the limitations to the risk assessment, which must of course also be borne in mind: psychological report, 9 - 10. 46 Psychological report, 9. 47 Psychological report, 9. 48 Psychological report, 9 - 10. -- 26 of 75 -- [2026] WASC 261 BYDDER J Page 27 elevated risk of misinterpreting neutral situations as being dangerous and reacting to such situations in aggressive and violent ways. 53 The psychologist made several recommendations for the appellant's treatment and management.49 54 I note that in her plea in mitigation before the learned Magistrate, the appellant's then counsel informed her Honour that the appellant is currently prescribed an antipsychotic medication and an antidepressant.50 The first report 55 The first report was prepared for the appellant's sentencing on 17 February 2025. Among other matters the first report addressed the appellant's personal circumstances, to which I have already referred. 56 On 7 August 2024, the appellant became subject to a PSSO for two counts of stalking which had expired by the time of the first report.51 57 The appellant demonstrated poor compliance with his PSSO conditions and continued to use a range of illicit substances in breach of those conditions and his bail conditions.52 58 In addition to these breaches, the appellant continued to reoffend while subject to the PSSO. The appellant advised that he felt extreme pressures while on the recent PSSO with urinalysis testing, where he would result positive outcomes to illicit substances.53 The second report 59 The second report records that the appellant was subject to a six- month PSSO for two counts of stalking at the time of his new offending. It continues:54 The Victim-Offender Mediation Unit Report [19-02-2024] detailed Mr Roe's recollection of events differing and not consistent with the facts presented stating he advised 'the police are exaggerated' and that he had no intention of harming the victims. Mr Roe continued with a victim stance and that he was unjustly targeted due to his criminal 49 Psychological report, 10. 50 7 October hearing ts 27. 51 First report, 3. 52 First report, 3. 53 First report, 3. 54 Second report, 1 - 2. -- 27 of 75 -- [2026] WASC 261 BYDDER J Page 28 history. Mr Roe stated the victim who was also a distant family member 'did not tell [me] to leave her alone'. Mr Roe advised his pleas of guilt were to avoid trial for the victims and to 'get it over and done with'. Mr Roe continued to minimise the persistence and severity of his stalking and predatory behaviours and apportion the blame to the victims, community and police. Mr Roe described his character as 'good-natured at heart' and advised the victims 'don't need to be frightened of (me) as (I'm) just being friendly'. Mr Roe disclosed a high level of illicit substance use during the offending however advised he recalls everything. Mr Roe presents with a limited understanding of his unwanted and intrusive behaviours and lacking poor insight into the psychological harm and distress towards the victims. The potential contact with the victims in Carnarvon only presents further concerns were community and victim safety. Furthermore, Mr Roe has been afforded numerous community dispositions and has demonstrated poor compliance with reoffending and entrenched dependency on illicit substances. While Mr Roe confirmed his willingness to comply with any conditions the Court may impose, he is not suitable for future community Orders. 60 The second report briefly addresses the utility of imposing a supervision requirement, a program requirement, community work or electronic monitoring. (a) Supervision requirement. While the appellant demonstrated improved engagement with reporting for supervision on his PSSO, he continued to attend under the influence of substances which presented further risks to staff safety. (b) Program requirement. The appellant presents with criminogenic treatment needs pertaining to anti-authoritarian and pro-criminal attitudes, lack of consequential thinking and victim empathy, entrenched polysubstance abuse and impulsive and maladaptive coping strategies. He has also been assessed as a high risk of violent re-offending and requires intensive programmatic intervention. However, there have been issues with the appellant maintaining engagement with programmatic intervention opportunities provided to him. (c) Community work and electronic monitoring. Neither are considered suitable for the appellant. -- 28 of 75 -- [2026] WASC 261 BYDDER J Page 29 61 The second report also records the appellant's account of the three most recent stalking offences (CA 302/2025, 491/202555 and 492/2025), the trespass offence involving a female occupant (CA 304/2025) and his five failing to comply with reporting obligations offences (CA 313/202556 - 316/2025 and 306/2025). 62 As to the stalking offences, the second report records that:57 Mr Roe described his interactions with the victims as being 'good natured', ' good mannered' and ' just being friendly'. Mr Roe continued to apportion blame referring to the victims as 'uptight' and 'trouble from the start' and were only encouraged to report the events to police due to community pressures. Mr Roe described the facts as 'embellished' and 'elaborated' by victims to build a case against him. Mr Roe displayed limited victim empathy or insight describing himself as a victim of community and police targeting and harassment. In reference to [stalking Ms P] Mr Roe expressed the victim had worked at the local café and felt he was 'building a relationship' with her. Mr Roe questioned the facts on 04-03-2025 regarding the level of contact with the victim in the shopping centre as he had not been shown the CCTV evidence to prove otherwise. Mr Roe advised on 05-03-2025 as the victim walked towards the shopping centre exit, he was angry and 'pissed off' for other reasons and had only sworn at her. Mr Roe later agreed he had asked the victim to 'let's go fuck' however claimed he was surprised at his comment and advised the victim 'was there at the wrong place, wrong time'. Mr Roe stated at no time did the victim 'say she felt uncomfortable' with his level of contact. In reference to [stalking Ms B] Mr Roe stated he believed the victim was an associate with a similar name who was working at the Pharmacy and hadn't realise[d] one of the victims was his niece until he was charged. Mr Roe agreed the victims would have been frightened by his contact however advised they had encouraged each other to report him to police. In reference to [stalking Ms Q] Mr Roe advised the victim was the daughter of a family friend and described 'he was like a brother' and had only tried to be 'friendly' to the victim. Mr Roe stated on 12-10-2024, he attended the hospital with a hand injury and had seen the victim however did not recall following her in the hospital or outside to the car park. Mr Roe advised on 01-03-2025 he had information the victim needed assistance and attended her residence to provide support. Mr Roe stated he knocked on the victim's door however there was no 55 At one point the second report refers to CAR 419/2025 but that is plainly a typographical error and should be a reference to CA 491/2025. 56 The second report refers to CAR 131/2025 but again that is plainly a typographical error and should be a reference to CA 313/2025. 57 Second report, 2 - 3. -- 29 of 75 -- [2026] WASC 261 BYDDER J Page 30 response and left. Mr Roe stated the screen door was previously broken and had not damaged it. Mr Roe advised on 05-03-2025, he had witnessed the victim in the hospital and called out her name however she had told him to 'fuck off' and he responded in the same manner. 63 I note that the learned Magistrate specifically rejected the appellant's assertions in respect of stalking Ms Q that on 1 March 2025 he attended her residence to provide assistance or support to Ms Q or that the screen door was previously broken and he had not damaged it.58 I also reject those assertions. 64 As to the trespass offence relating to the female occupant (CA 304/2025), the appellant advised the victim was his mother's work colleague and had just wanted to 'say hello' however when there was no response, he yelled 'I'm sorry, (I'll) leave you alone' and left the property. 65 As to the failing to comply with reporting obligations charges, the appellant advised his substance use had escalated by the added pressures of urinalysis testing for his Community Orders and Conditional Bail resulting in returning to Court, deaths of family members, stressors and pressure from community and police which all contributed to his non- compliance with reporting. Letters in support of the appellant and the appellant's apology 66 At the 7 October hearing, the appellant made the following apology in open court:59 Look, your Honour, just quickly, I just want to say that I'm terribly sorry for the way I – for my current offences. If I had the opportunity, I would wish to apologise to the victims, [Ms Q], [Ms B] and [Ms P], who I know as [redacted]. I did not at all, in any – at any time, mean to hurt, harm or injure them girls at any time and in any kind of way, and wish I – if I could handle the situation differently. I've been away from my family and community for such a long time, and returning back to Carnarvon, I could see that all our family had grown old and the kids have grown up and all that kind of stuff. So I ended up finding out a little later that Ms B and Ms Q were my nieces. So being away from the community for such a long time, all I wanted to do was talk and get to know them. I'm sorry if I came across to them in an intimidating or threatening manner, and I just wanted to 58 24 October hearing ts 13. 59 7 October hearing ts 17. -- 30 of 75 -- [2026] WASC 261 BYDDER J Page 31 let you know that I was only coming across with good intentions. I wish I could turn back the clock and handle the situation differently by not violating your space. Please forgive me for the way I behaved back then, and I wish we can all move forward with our lives. Thank you. And that's from Ronald – from myself. … And just one last thing, your Honour: and also, I wish to apologise to the owners of the homes that I trespassed on. I know now that if I was to enter their premises, I enter with only their permission. Thank you, your Honour. 67 The learned Magistrate also had letters before her Honour in support of the appellant. Those letters indicated that the appellant had support available to him in Carnarvon, including from the Geraldton Regional Aboriginal Medical Service (GRAMS) - Gascoyne Outreach Service and were addressed in the learned Magistrate's sentencing remarks. Sentencing remarks Timing of the offending 68 At the 24 October hearing, the learned Magistrate noted how soon after his release from prison the appellant had begun offending again. For example, the trespass offence that is CA 249 of 2025 occurred on 18 February 2025, the day after the appellant was released from prison. In addition, some of the stalking offences started before the appellant went into custody and continued after he was released from prison on a suspended sentence.60 Discounts for guilty pleas 69 The learned Magistrate applied the maximum discount of 25 per cent61 to the charges CA 1232/25 (trespass) and CA 1233/25 (damaging property), because he pleaded guilty to those charges as soon as another charge was downgraded to those two charges.62 70 The learned Magistrate applied a 15 per cent discount to the other 13 charges that were not the subject of the suspended imprisonment order. Her Honour did so because the appellant did not plead guilty to them at the first opportunity, but he did plead guilty to those charges 60 24 October hearing ts 3. 61 See the Sentencing Act s 9AA. 62 24 October hearing ts 5. -- 31 of 75 -- [2026] WASC 261 BYDDER J Page 32 before they had gone to a trial allocation date in the Magistrates Court.63 Mitigating factors 71 The learned Magistrate then referred to mitigating factors:64 The defence note that Mr Roe has unresolved trauma. … Unfortunately, he was exposed to violence as a child and as an adult. And received also significant trauma from losing his brother. His younger brother. I think he has got outstanding grief issues. Due to the family violence that he witnessed as a child, Mr Roe had a difficult relationship with his father. Although has reconnected with him. I noted on the last occasion he was in court. Maybe can't be here today. I've referred to the loss of his brother. I don't need to go into details. But Ms Lees indicated the – that tragic event and the effect it had on Mr Roe. And unfortunately he increased his meth use quite significantly after that trauma. Mr Roe has had several children to different mothers. And those relationships, she advises, have been impacted by Mr Roe's meth use. He has a five year old daughter for whom he's still friends with that mother who lives in Perth. He has a new partner who lives in Perth and Mr Roe wants to live with her and move to Perth after he has caught up with his family in Carnarvon. He also submitted that he has some insight and doesn't want to be in Carnarvon because he doesn't want to make it awkward for the victims here. And he doesn't want to embarrass his mum. And particularly because of where she works. He wants to abstain from drugs and alcohol. So he's hoping that he will be rehabilitated. He has said that in the past. But it's never too late to try. And he intends to try and rehabilitate himself. As Ms Lees points out he has now been off meth for several months whilst he has been in custody. Which is a good start. He is still on his antipsychotic and depressive medication. And there was reference made to the fact that he was having significant drug induced psychosis symptoms when he was sentenced for the previous two stalkings. And the psychological report refers to that. Mr Roe – this is not mitigating – but Mr Roe was struggling with alcohol and meth at the time of his offences. I just note for completeness sake that Ms Lees conceded that they accept that at times Mr Roe has minimised his offending. That he was under the influence of alcohol and meth at some of these occasions. But that he now accepts 63 24 October hearing ts 5. 64 24 October hearing ts 5 - 7. -- 32 of 75 -- [2026] WASC 261 BYDDER J Page 33 through counsel that he did intimidate the victims of the stalking. In terms of his background. Mr Roe spent a couple of years in Halls Creek. He returned to Carnarvon when he was older. He got into sports. But then unfortunately he started experimenting with drugs, and he was expelled at the age of 13. Sounds like he was quite skilled at sport before his drug addiction. I've read a number of support letters. And I will refer to those now. Of course Mr Roe read out a letter to me on the last occasion, and I've taken his comments into account. He apologises for his offending. He says he did not mean to hurt, harm or injure the women that he stalked. He has pointed out that in custody he's away from family, and he has been away from family a long time because he has also been incarcerated previously. And he was shocked that when he got back to Carnarvon everyone seemed older. A lot of the kids he knew had grown up. So he has found it hard to reconnect in Carnarvon. He said that all he wanted to do was to talk and get to know two of the three victims. [Ms B] and [Ms Q] who he says are his nieces. And he had good intentions and wants to be forgiven and move forward with his life. And he also wanted to apologise to the owners of the homes. That he shouldn't have entered their premises without permission. I have a letter from GRAMS, dated 21.5.2025, from Thomas Cameron, Aboriginal Liaison Officer. Who says that Mr Roe has the support of his mother and families in Carnarvon, and they offer parole support. I have a letter from Mr Slater, dated – Clifton Slater, dated 20 May 2025. It's to whom it may concern. It doesn't refer to any of the offending. So I'm not sure he knows that this letter was for court and what the offences are. But he says that he has always found Mr Roe to be a respected gentleman. Well-mannered. And presented neatly. Has known him for 15 months. Although I cannot give that much weight, because as I said, it doesn't appear to acknowledge the offending. There's a letter dated 7 October 2025, from Rose Roe. Mr Roe's aunt. About his willingness to engage with mental health. And he has had discussions with residential accommodation, Fresh Start, Subiaco. There's a letter dated 24 April 2025, from Troy Anning, from CADS. He said that Mr Roe had shown a willingness to engage with CADS but doesn't say when. Or how many sessions. But I've read that letter. And finally, Zoe Dudley, from GRAMS, in Carnarvon. Undated. But writes a letter of support to Mr Roe. Can attest to his character, as she has known him for four years. And says that he expresses genuine remorse. As I said, there's no date and no reference to offences. But she speaks highly of him. So I've read those. Seriousness of the offending 72 The learned Magistrate then addressed the seriousness of the appellant's offending. -- 33 of 75 -- [2026] WASC 261 BYDDER J Page 34 Trespass offences 73 The learned Magistrate considered that the trespass offences were more serious because they involve going to people's houses, knocking on the door trying to open the door and that the trespass relating to Ms Q was the most serious. Her Honour also noted that there was a concerning escalation of offending in early March, involving trespasses early in the morning and in one case involving a female occupant who went inside because she felt intimidated.65 Reporting obligation offences 74 The learned Magistrate did not consider these offences to be particularly serious. For the most part they involved only a failure to report, with one involving a positive test for cannabis.66 Stalking offences 75 As to the stalking offences, the learned Magistrate said:67 In my view, the stalking offences are serious, and they have escalated from the previous stalking offences for which Mr Roe was convicted. I've re-read the sentencing from that time. On that occasion, there were two victims. Again, they were young women. One was a lady who had worked at a pub that Mr Roe followed on a number of occasions but only over the course of a much shorter period of time in November, as she lived at the caravan park at the time, and he approached her there as well. The second was a slightly older woman and he – she was working at Centrelink. He went to her house and had noted that she wasn't at work and would not leave when she asked him to leave, and banged on the door. And then on another day, he was standing in the middle of the traffic island when she drove past. So again, as I noted, the offending has escalated. On those occasions, he received two terms of imprisonment for those. For the one in relation to the lady who was in the caravan park, a five-month term and the other lady a two[-]month term. So I note that those terms, not only did they stop him from re-offending, but he has actually escalated since that time. In my view, the most serious is the stalking in relation to [Ms Q], because he followed her on the last occasion when he had been stalking her for a long time and even when she locked her car doors and I expect 65 24 October hearing ts 7 - 8. 66 24 October hearing ts 8. 67 24 October hearing ts 10 - 11. -- 34 of 75 -- [2026] WASC 261 BYDDER J Page 35 was feeling very fearful, he continued to yell at her. He turned up at her home a number of times. On one occasion, opened the door and damaged the door and tried to open the other door, and she must have been absolutely terrified. Looking at the seriousness of that offence, how long it occurred over and the type of stalking that it was, I have considered where that falls in the scale of seriousness, and in my view, it falls within a point of being at a stage where it is so grave as to warrant the maximum prescribed penalty or close to in terms of the scale of seriousness. Aggravating factors 76 The learned Magistrate identified as aggravating factors that the appellant was on a suspended imprisonment order during some of his offending and under a PSSO for some of the offending.68 General and personal deterrence and protecting the community 77 The learned Magistrate identified that general deterrence is important for trespass in Carnarvon because there is a lot of it. Her Honour also said that there are a lot of threats made in Carnarvon. While the learned Magistrate considered that stalking was not as prevalent in Carnarvon, her Honour considered that there was a need for general deterrence in respect of stalking offences.69 78 As to personal deterrence, the learned Magistrate noted that while the appellant's prior criminal history did not aggravate his offending, it meant that his offending was not out of character and a more severe penalty was warranted than would otherwise be the case for the purposes of personal deterrence and protecting the community.70 Additional sentencing remarks 79 The learned Magistrate referred to the first report, the second report and the psychological report. Particularly in relation to the psychological report, the learned Magistrate considered that many of their comments remained relevant, including those to which I have referred or which I have quoted above. Her Honour continued:71 Looking first at the breach of the suspended sentence, I'm not of the view that it's unjust to trigger the suspended imprisonment order. Nothing really has changed in relation to Mr Roe since the imposition 68 24 October hearing ts 11. 69 24 October hearing ts 11. 70 24 October hearing ts 11. 71 24 October hearing ts 15 - 16. -- 35 of 75 -- [2026] WASC 261 BYDDER J Page 36 of the suspended imprisonment order that's in his favour, and I note that he reoffended the day after he was released on the suspended imprisonment order, and that his offending has escalated. What I do need to consider is whether it's unjust, whether it would be unjust to trigger the entire sentence, given issues of totality, which I will come back to. In relation to the current offending, I am positively satisfied that nothing other than a term of imprisonment is the appropriate sentencing option, even though I am aware that I must not impose a sentence of imprisonment unless I decide that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it, and I remind myself that it is a sentence of last resort. In my view, due to the serious nature of the offences, the need for general and personal deterrence and the protection of the community, particularly women, only a term of imprisonment is appropriate, and I'm positively satisfied of that. I take into account when I impose these sentences that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including matters personal to you, Mr Roe. What that is, is totality. If I added all of these up, you would be going to jail for a very long time and that's not right. I need to look at everything, including the matters that you got the suspended sentence for, and think what is the right and just sentence for everything, including matters personal to you. So that's – I have taken that into account in how I've structured the sentences. For some sentences, I have made them concurrent. For some sentences where there's accumulation, it's less accumulation than there would otherwise be, and that's how I've taken into totality. And I will say as well, that in relation to these sentences that have been triggered for the suspended sentence, I have reduced that term for reasons of totality which I will come to. 80 The learned Magistrate then stated the sentence for each of the offences before concluding as follows:72 That leads to a total term of two years and 11 months imprisonment. I have considered, as I must, whether or not this sentence should be suspended. I need to take a second look and consider everything I've talked about again, including personal and general deterrence, the seriousness of the offending, matters personal to Mr Roe, and the need to protect the community and other factors. And I remind myself I must 72 24 October hearing ts 19. -- 36 of 75 -- [2026] WASC 261 BYDDER J Page 37 be positively satisfied that I should not give an immediate term of imprisonment before I do so. I am positively satisfied that it's not appropriate to suspend, partially suspend or conditionally suspend the sentence. Unfortunately, Mr Roe reoffended within one day of being on his previous suspended imprisonment order, and in any event, the offending was too serious. Therefore, the term is to be served immediately. It's backdated to start on 6 March 2025, and you are eligible for parole, Mr Roe. So you will be eligible for parole on 20 August next year, and you can stand down. Thank you. The grounds of appeal 81 The appellant relies on five grounds of appeal, having abandoned ground 1. Grounds 2 to 6 are as follows: 2. The term of imprisonment of 10 months for offence of stalking CA 302/2025 is manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender. 3. The term of imprisonment of 9 months for offence of stalking CA 491/2025 is manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender. 4. The term of imprisonment of 2 years and 10 months infringed the first limb of the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances. 5. The term of imprisonment of 6 months for offence of stalking CA 492/2025 is manifestly excessive in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender. -- 37 of 75 -- [2026] WASC 261 BYDDER J Page 38 6. There was a miscarriage of justice in that the appellant was suffering from cancer at the time of sentence and this was unknown to the appellant at the time. Consideration The basis for the appeal 82 It is not in dispute that the appellant can appeal from the sentences imposed and orders made by the learned Magistrate in respect of the appellant. A person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to the Supreme Court against that decision.73 83 The learned Magistrate's sentence is a decision of that kind.74 84 The appellant must obtain leave to appeal.75 If leave to appeal is not granted on at least one ground of appeal, the appeal is taken to have been dismissed.76 85 The court must not grant leave in respect of a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.77 A ground will have a reasonable prospect of success in this sense if it has 'a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success'.78 86 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.79 However, the possibility that an appeal may be dismissed on this basis is not to be considered in determining whether a ground has a reasonable prospect of success.80 73 Criminal Appeals Act 2004 (WA) s 7(1). 74 Criminal Appeals Act s 6(f) (definition of 'decision, of a court of summary jurisdiction'). 75 Criminal Appeals Act s 9(1). 76 Criminal Appeals Act s 9(3). 77 Criminal Appeals Act s 9(2). 78 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56] (Steytler P, Wheeler and Roberts-Smith JJA). 79 Criminal Appeals Act s 14(2). 80 Samuels [56] (Steytler P, Wheeler and Roberts-Smith JJA). -- 38 of 75 -- [2026] WASC 261 BYDDER J Page 39 Ground 6 The appellant's submissions 87 By this ground the appellant contends that he was suffering cancer at the time of his sentencing and, as that fact was unknown to him and the court at the time, a miscarriage of justice has arisen because if that fact had been known it would have made a material difference to his sentence.81 88 The appellant also contends that he has an aggressive form of cancer requiring intensive treatment. As the appellant must undergo treatment from prison (with travel to and from hospital for the treatment), the treatment will be more onerous than it would be if the appellant were not in prison.82 89 The appellant further contends that, if his treatment is unsuccessful, he will be dead within 12 months and whether the treatment will be successful is currently unknown. The real possibility of death while in custody, the appellant contends, makes serving a term of imprisonment more difficult than it would be for a prisoner without such a serious condition.83 90 The appellant seeks leave to adduce further evidence in support of these submissions, by way of three affidavits affirmed by Ms Sarah King. The respondent's submissions 91 The respondent does not oppose the appellant being granted leave to adduce the further evidence.84 92 The respondent accepts that if the appellant's diagnosis was known to the learned Magistrate it may have had the effect of reducing the length of the sentence ultimately imposed. For that reason, the respondent agrees that this ground has been made out, the appeal should be allowed and the appellant should be resentenced.85 93 While the respondent submits that the appellant's diagnosis could never have had a radical impact on his sentence, the respondent does 81 Appellant's submissions (AS) [10], [20]. 82 AS [18]. 83 AS [19]. 84 Respondent's submissions (RS) [31]. 85 RS [3], [29] - [37]. -- 39 of 75 -- [2026] WASC 261 BYDDER J Page 40 not contend that on resentencing the appellant's sentence should be the same, such that no substantial miscarriage of justice has occurred within the meaning of s 14(2) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act).86 The appellant should have leave to adduce the additional evidence 94 In support of this ground, the appellant seeks leave to adduce affidavits affirmed by Ms King on 2 April 2026 (April affidavit), 7 May 2026 (May affidavit) and 8 June 2026 (June affidavit) (collectively, the three affidavits). 95 I must decide the appeal on the evidence and material that were before the learned Magistrate.87 However, for the purposes of dealing with the appeal I may admit any other evidence.88 96 The principles applicable to admitting additional evidence in an appeal against sentence were set out in Wellstead v The State of Western Australia89 and summarised in Brooks v The State of Western Australia90 as follows: [T]he role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to determine whether a different sentence should have been imposed. Whether leave to rely on additional evidence in an appeal against sentence should be granted requires attention to whether the evidence assists in determining whether there was a miscarriage of justice in the sentencing proceeding and whether a different sentence should have been imposed. Ordinarily, a sentencing judge cannot be said to have erred by proceeding in a manner contrary to, or without regard to, evidence which was not before the sentencing court. However, a miscarriage of justice may arise from the absence of material evidence before the primary court. Whether it does so will depend upon all of the circumstances. A miscarriage of justice will be difficult to establish where the relevant evidence was actually known to the appellant and not used in the sentencing hearing. 97 The evidence the appellant wishes to lead by way of the three affidavits is fresh rather than new evidence. The evidence did not exist at the time of the hearing and could not with reasonable diligence have 86 RS [37], footnote 63. 87 Criminal Appeals Act s 39(1). 88 Criminal Appeals Act s 39(3) and s 40(1)(e). 89 Wellstead v The State of Western Australia [2019] WASCA 130 [78] - [99] (Quinlan CJ, Mitchell and Beech JJA). 90 Brooks v The State of Western Australia [2021] WASCA 156 [130] (Buss P and Beech JA). -- 40 of 75 -- [2026] WASC 261 BYDDER J Page 41 been discovered.91 The distinction between fresh and new evidence is of lesser significance in an appeal against sentence than it is in an appeal against conviction. However, that distinction may bear significantly on whether the absence of that evidence before the sentencing court gives rise to a miscarriage of justice.92 98 Annexed to the April affidavit is a letter from the appellant's general practitioner dated 18 March 2026. The letter records that: (a) the appellant was undergoing treatment at St Charles Gairdner Hospital in Perth for stage 4 lung cancer; (b) the first signs of the cancer were noted by prison staff in October 2025 when the appellant suffered episodes of vertigo which did not respond to medication; (c) after further neurological symptoms were noted in December 2025, he underwent neurosurgery on 8 January 2026 to remove a brain tumour and, since then, most of the appellant's neurological symptoms had subsided; (d) a CT scan of the appellant's chest on 5 January 2026 showed an 18 mm left upper lobe lung lesion which was thought to be the primary cancer and the origin of the brain tumour; and (e) the appellant was undergoing a course of chemotherapy consisting of 4 cycles of 3 weeks' duration each. 99 The May affidavit attached an undated letter from the North Metropolitan Health Service (of which Sir Charles Gairdner Hospital is a part) confirming (among other matters) the appellant's diagnosis of stage 4 lung cancer and his treatment. Also attached to the May affidavit was a statement of facts agreed between the parties in the following terms: 1. Mr Roe has stage 4 non-small cell lung cancer. His prognosis is uncertain as it depends on his response to treatment. If he does not respond to treatment and if disease rapidly progresses than a prognosis of less than 12 months is reasonable. However, if his disease responds to treatment his prognosis is potentially many, many years. It is hard to be more specific given how early we are in his treatment course. 91 Lockett v Commissioner of Consumer Protection [2017] WASC 358 [47] (Hall J). 92 Wellstead v The State of Western Australia [2019] WASCA 130 [95] (Quinlan CJ, Mitchell and Beech JJA). -- 41 of 75 -- [2026] WASC 261 BYDDER J Page 42 2. With respect to when we might know if the appellant is responding to treatment: the appellant will be getting reassessed with scans roughly every 3 months. 3. As of 30 April 2026, the appellant only had a scan last week as a new baseline. Cancer has not progressed since previous scan. Next scan will be about 3 months from now (as in the end of July 2026). 100 The June affidavit provided an email chain from two doctors treating the appellant at the hospital where the appellant is being treated. Subject to a limited qualification, both doctors accepted the following as accurate: Mr Roe has an aggressive form of lung cancer and the treatment being undertaken is aggressive, and involves chemotherapy and radiation. The treatment that Mr Roe is receiving is unlikely to lead to adverse impact on his behaviour. It is difficult to comment on Mr Roe's prognosis as this will depend on his response to treatment. He will have another set of scans in approximately six weeks' time and that might assist in determining a more accurate prognosis for Mr Roe. With the type of cancer that Mr Roe has, statistically speaking from information gathered from patients with the same medical condition, we usually see that: 1. The [median] life expectancy with this condition and with treatment is between 6 to 12 months; 2. If treatment is successful, the life expectancy might increase to 18 months to 2 years; and 3. The chances of survival to or beyond 5 years would be close to 10%. The treating team hope to achieve a survival outcome of between 6 to 12 months, and are in a position where the aim is to prolong life by a matter of months. 101 The limited qualification arises because one of the doctors, who is an oncologist (the other being a radiologist) said of this summary: Overall I agree but would be a bit less definitive about his specific eventual prognosis and probably overall more optimistic overall with the prognosis will be locally treated [in the sense that there are only a few spots of cancer, all of which will/have been treated with radiotherapy/surgery]. I would struggle to put a number on his -- 42 of 75 -- [2026] WASC 261 BYDDER J Page 43 prognosis for this reason but cannot say what is written is wrong (or even really disagree) given those numbers are consistent with the known literature etc. 102 I note for completeness that the transcript of the hearing before the learned Magistrate also reflects the appellant experiencing neurological symptoms that were attributed at the time to claustrophobia.93 103 The evidence in the three affidavits supports the appellant's submission that he had cancer at the time of sentencing but it was undiagnosed and neither he nor the learned Magistrate were aware of that fact. I also accept the respondent's submission that the evidence provides a relevant mitigating factor that is not reflected in the sentence imposed on the appellant. 104 The appellant should be granted leave to adduce the evidence in the three affidavits and leave was granted accordingly at the hearing. Leave to appeal should be granted on ground 6, the appeal should be allowed and the appellant should be resentenced 105 The appellant did not become aware that he had cancer until after the time for him to appeal from the learned Magistrate's sentence had expired. This sufficiently explains the delay in commencing his appeal and the time for him to appeal should be extended to 10 March 2026 when he filed his appeal notice. 106 I refer below to the principles applicable to considering illness as part of sentencing an offender. For the present, it is sufficient to say that the appellant's cancer diagnosis and the effect of his cancer and treatment on his quality of life in prison could properly affect the length of the sentence imposed on the appellant, but was not taken into account at his sentencing. In those circumstances, leave to appeal should be granted on ground 6, the appeal should be allowed on that ground and the appellant should be resentenced.94 Grounds 2 to 5 need not be determined 107 As I am satisfied that ground 6 has been made out and the appellant must therefore be resentenced, it is unnecessary for me to determine the other grounds of appeal and I have not done so. The 93 24 October hearing ts 17. 94 See also in this regard the respondent's appropriate concession in RS [37]. -- 43 of 75 -- [2026] WASC 261 BYDDER J Page 44 outcome would be no different if any of the other grounds were made out. The appellant would have to be resentenced.95 108 However, some of the submissions made in respect of grounds 2 to 5 are relevant to resentencing the appellant. Those submissions are addressed in my reasons in that context. Resentencing the appellant - some key principles 109 I have all of the information necessary to resentence the appellant and it is appropriate that I do so. Before resentencing the appellant, it is appropriate that I refer to some principles that are especially relevant to the resentencing exercise required in this appeal and to two additional matters raised in the appeal. Sentencing for multiple offences The first limb of the totality principle 110 The total effective sentence a court imposes on an offender in respect of multiple offences must bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety having regard to all relevant facts and circumstances, including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.96 The second limb of the totality principle 111 A court should not impose a sentence on the offender that is 'crushing', in that it removes any reasonable expectation of a useful life after release, unless it is necessary to do so because the sentence would otherwise be inappropriate.97 However, whether leniency is to be extended to the offender depends significantly on the circumstances of the case and the punishment must be fairly proportionate to the offending.98 95 Counsel for the appellant and the respondent agreed that it was unnecessary to determine grounds 2 to 5: appeal ts 31. 96 Roffey v The State of Western Australia [2007] WASCA 246 (Roffey) [24] (McLure JA, with whom Steytler P and Miller JA agreed); JYL v The State of Western Australia [2021] WASCA 222 (JYL) [142] (Buss P, Mazza JA and Hall J). 97 JYL [142] (Buss P, Mazza JA and Hall J). 98 JYL [154] (Buss P, Mazza JA and Hall J). -- 44 of 75 -- [2026] WASC 261 BYDDER J Page 45 112 The very nature of some criminal acts means that the offender has forfeited the right to any expectation of being released from prison at a time which would permit the offender to enjoy the life left to them.99 113 It is unusual for a total sentence to be reduced in light of the second limb of the totality principle. An example of where a total sentence may be reduced is where the offender suffers from a medical condition or health issues that would cause additional hardship in prison compared to other offenders.100 A rationale for the totality principle 114 A rationale for the totality principle is that rehabilitation and a reduced demand for retribution is assumed after the initial sentences have been served. Where effect is given to the totality principle, how the ultimate aggregate is made up is of little importance.101 Sentencing for more than one offence 115 In sentencing an offender for more than one offence, the court must:102 (a) determine an appropriate sentence for each offence (including any discounts for the offender's guilty pleas and cooperation with authorities), so that: (i) the discount for each plea of guilty is made from the sentence that would have been imposed if the offender had been convicted after trial and before taking into account any mitigating factors (which may not be the same for each of the offences for which the offender is being sentenced); and (ii) the fact and extent of the reduction is stated in open court;103 and 99 JYL [155] (Buss P, Mazza JA and Hall J). 100 JYL [156] - [157] (Buss P, Mazza JA and Hall J); Stubley v The State of Western Australia [2010] WASCA 36 (Stubley) [413] - [421] (Buss JA, with whom Owen JA agreed); Hughes v The State of Western Australia [2014] WASCA 78 [10] - [11], [13] - [14] (McLure P, with whom Mazza JA agreed). 101 R v Holder [1983] 3 NSWLR 245, 260 (Street CJ), cited in Roffey [26] (McLure JA, with whom Steytler P and Miller JA agreed). 102 BSA v The State of Western Australia [2025] WASCA 31 (BSA) [37] - [38] (Buss P, Mazza JA and David AJA), citing Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] - [48] (McHugh, Hayne and Callinan JJ, with whom Gummow J agreed). 103 Sentencing Act s 9AA. -- 45 of 75 -- [2026] WASC 261 BYDDER J Page 46 (b) then proceed to consider questions of cumulation, concurrency and totality, so that the total effective sentence is commensurate with the circumstances of the offending as a whole, the offender's personal circumstances and all relevant sentencing factors. All available sentencing options must be considered 116 I must consider all of the available sentencing options under the Sentencing Act s 39(2), s 41 (for those offences where the statutory penalty is imprisonment only) and s 42 (for those offences where the statutory penalty is imprisonment and a fine), including the various options which do not involve imprisonment (whether or not that imprisonment is suspended or conditionally suspended). 117 In relation to imprisonment, in Miorada v The State of Western Australia,104 Buss P, Mazza and Hall JJA said: A sentence of immediate imprisonment is the final option and cannot be imposed unless the court is satisfied that it is not appropriate to impose any other sentence. In particular, immediate imprisonment cannot be imposed if conditional suspended imprisonment is an appropriate option. In determining whether to exercise the power to suspend a term of imprisonment, the court must look to all matters relevant to the circumstances of the offence and the personal circumstances of the offender. The discretion to impose a suspended sentence of imprisonment is not confined by considerations relating to rehabilitation, though that may be an important factor in a particular case. Nonetheless, there may be cases that are so serious that an immediate sentence must be imposed, notwithstanding that the offender has good prospects of rehabilitation. 118 It follows that in determining whether to suspend a term or terms of imprisonment, a sentencing court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender. In every case in which a term or terms of imprisonment of 60 months or less is imposed, the sentencing court must be satisfied that suspending the term or terms of imprisonment is not appropriate.105 104 Miorada v The State of Western Australia [2022] WASCA 143 [32] (Buss P, Mazza and Hall JJA) (footnotes omitted). 105 The State of Western Australia v Rayapen [2023] WASCA 55 (Rayapen) [193], [195] (Quinlan CJ, Mazza and Hall JJA). -- 46 of 75 -- [2026] WASC 261 BYDDER J Page 47 Dealing with an offender under s 80 of the Sentencing Act in relation to sentences of imprisonment that had been suspended 119 As I have already noted, the appellant committed offences during the suspension period for his sentences of suspended imprisonment which required that he be dealt with under s 80 of the Sentencing Act. 120 In dealing with an offender under s 80 of the Sentencing Act, a court is not at liberty to impose a different sentence from the sentences of imprisonment that were suspended. In that sense, the court's task is not to resentence the offender in respect of the offences that were the subject of sentences of imprisonment that were suspended. The court can only deal with the offender in respect of those offences under s 80 of the Sentencing Act.106 121 The court must order that the offender serve the terms of imprisonment that were suspended unless 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. If it would be unjust to do so, the court may order that the offender serve part of the term (even if it is 6 months or less) or instead pay a fine of not more than $6,000.107 122 An order requiring an offender to serve all or part of a term of suspended imprisonment cannot be backdated.108 123 One basis on which it may be unjust to order that an offender serve the terms of imprisonment that were suspended, either in whole or in part, may be time spent on remand after the suspended terms of imprisonment were imposed. Regard can be had to that time as part of the circumstances that have arisen since the suspended terms of imprisonment were imposed.109 124 Another basis on which it would be unjust to order that an offender serve terms of imprisonment that were suspended, either in whole or in part, may arise from totality considerations.110 106 Pryor v Loos [2021] WASC 403 [16] - [18] (Corboy J). 107 Sentencing Act s 80. 108 Dragon v The State of Western Australia [2008] WASCA 252 (Dragon) [46] - [51] (Buss JA, with whom Wheeler JA agreed and McLure JA agreed on the point). This matter was concerned with s 84F of the Sentencing Act as opposed to s 80. Section 84F is materially identical to s 80. 109 Dragon [52] (Buss JA, with whom Wheeler JA agreed and McLure JA agreed on the point). 110 See in this regard the discussion of the totality principle and multiple sentencing hearings in Labrook v The State of Western Australia [2016] WASCA 127 [33] - [40] (Mitchell J, with whom McLure P and Mazza JA agreed) and LYN v The State of Western Australia [2019] WASCA 45 [10] - [13] (Mazza, -- 47 of 75 -- [2026] WASC 261 BYDDER J Page 48 Time spent in custody prior to sentence 125 Time spent in custody prior to sentence is always a relevant factor in the exercise of the sentencing discretion.111 In Narkle,112 Steytler P, McLure and Buss JJA observed that: The court always has a discretion, when considering time spent in custody, whether it will make an allowance for that time and if so, how much of an allowance it will make. Even in a case in which the time was spent in custody in respect of the offence in question and for no other reason, the court does not have to give credit for the whole of the time spent in custody … The manner in which the discretion is exercised will depend upon the individual circumstances of each case. In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody. When an offender's illness may be a mitigating factor 126 The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison, there is a serious risk of imprisonment having a gravely adverse effect on the offender's health or the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. The sentencing court must be cautious as to the influence which it allows this factor to have upon the sentencing process, so as to ensure that ill health does not become a licence to commit offences or create a general expectation that offenders can escape punishment because of their ill health.113 Mercy and sentencing 127 In Rayapen,114 Quinlan CJ, Mazza and Hall JJA summarised the legal principles applicable to the role of mercy in sentencing: Mitchell and Beech JJA). If a court orders that an offender serve a term, or part of a term, of imprisonment that was suspended, the court is not imposing the relevant term of imprisonment. It remains part of the sentence imposed by the court which originally suspended it: Dragon [46] (Buss JA). 111 Narkle v Hamilton [2008] WASCA 31 (Narkle) [30] - [43] (Steytler P, McLure and Buss JJA). 112 Narkle [40] (internal case references omitted). 113 Stubley [412] - [413] (Buss JA, with whom Owen JA agreed); see also Gulyas v The State of Western Australia [2007] WASCA 263 [35] - [37], [54] (Steytler P, with whom McLure and Miller JJA agreed), in the context of the circumstances in which advanced age and illness may provide a basis for leniency or be a mitigating factor. 114 Rayapen [202] - [206] (footnotes omitted). -- 48 of 75 -- [2026] WASC 261 BYDDER J Page 49 It could never be said that considerations of mercy are irrelevant to the proper exercise of a sentencing discretion. In one sense, mercy is reflected in the very fact that mitigating factors and factors personal to an offender are relevant sentencing considerations. The relevance of those factors recognises that offenders, as well as victims, are human beings with a multitude of personal histories, challenges and backgrounds that call for individualised, rather than arbitrary or impersonal, justice. Mercy, however, as the psalmist well knew, is not to be regarded as in opposition to, or a substitute for, justice. Rather, it is the capacity for mercy to respond to particular circumstances in a particular case that is the essence of justice. As Sir Victor Windeyer said in Cobiac v Liddy: The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. … This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. As this, and many other judicial references to mercy make clear, the exercise of mercy in a particular case must be justified by some particular circumstances that take the case out of the ordinary, such that those circumstances are 'special' or 'exceptional'. Mercy can facilitate justice where, due to special or exceptional circumstances, the sentence that would ordinarily be appropriate would produce a clearly unjust result in a particular case. What is also clear is that 'mercy' is not a dispensing power, by which a judge may give effect to idiosyncratic views about punishment for particular crimes or types of crime. As the court said in R v Kane: [J]ustice and humanity walk together. Cases frequently occur when a court is justified in adopting a course which may bear less heavily upon an accused than if he were to receive what is rather harshly expressed as being his just deserts. But mercy must be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment. If a court permits sympathy to preclude it from attaching due weight to the other recognized elements of punishment, it has failed to discharge its duty. As a matter of principle, the sentencing judge in the present case was correct to conclude that he could only exercise mercy, by suspending Mr Rayapen's terms of imprisonment, if there were exceptional circumstances based on a proper evidential foundation. -- 49 of 75 -- [2026] WASC 261 BYDDER J Page 50 Resentencing the appellant - additional matters raised in the appeal The standard of sentencing customarily observed for stalking offences 128 I have had the benefit of submissions from the parties identifying features of stalking offences which can affect the seriousness of the offending. 129 As counsel for the appellant and the respondent agreed,115 it is clear that the criminality of offending involved in stalking offences can vary widely. Factors affecting the seriousness of the offending can include: (a) the length of time the offender pursues a victim; (b) the number of contacts the offender has with the victim; (c) whether the offender makes any threats to the victim; (d) whether the offender makes any physical contact with the victim; (e) whether the conduct involved in person contact, with the attendant risk (real or perceived) of physical harm being inflicted on the victim; (f) whether the offender is in a domestic relationship with the victim; (g) whether the offender is acting in breach of a restraining order; (h) whether the offending includes other offences; (i) whether the offending escalates over time; (j) whether the conduct involved a sexually predatory overtures; (k) whether the conduct was especially intrusive such as, for example, where the offender attended at the victim's home or place of work; and (l) the psychological and emotional impact on the victim. 115 AS [26]; RS [42]; appeal ts 49, 53. -- 50 of 75 -- [2026] WASC 261 BYDDER J Page 51 130 Another factor that will aggravate the offending is where the stalking has continued after the victim has clearly requested the offender to desist.116 131 I have also had the benefit of submissions on cases involving sentencing for aggravated stalking with intent to intimidate contrary to the Code s 338E(1)(a) (aggravated stalking with intent), stalking with intent to intimidate contrary to the Code s 338E(1)(b) (stalking with intent) and stalking in a manner that could reasonably be expected to intimidate and does in fact intimidate contrary to the Code s 338E(2) (stalking). The appellant was relevantly charged in each case with the lesser offence of stalking. 132 Counsel for the appellant drew my attention to Gilmour and Siriphanuruk v The State of Western Australia117 (Siriphanuruk). 133 In Gilmour, the offender was relevantly convicted of aggravated stalking with intent. The facts were conveniently summarised by counsel for the respondent:118 In Gilmour, the offender and victim were former partners. The stalking conduct arose following the end of their relationship. Over the course of three-and-a-half months, the offender followed the victim wherever she went. The victim began noticing odd occurrences around her house, such as items going missing and a lightbulb being inexplicably changed on the front porch. The offender would telephone the victim but not speak. On two occasions, security cameras at the victim's home showed the offender on her property at night. Of greatest concern, on one occasion, the offender appeared to be wearing a gorilla mask and carrying a knife. The Court of Appeal describe the offending as 'a very serious category of aggravated stalking' and considered the sentence of 4 years' imprisonment that was imposed following trial appropriately captured the criminality involved. 134 Counsel for the respondent rightly accepted that the offending in Gilmour was more serious than any of the stalking offences of which the appellant was convicted. By nature of his offence the offender in Gilmour intended to intimidate his victim. The appellant did not have that intention. In addition, Gilmour involved offending following the 116 Gilmour v The State of Western Australia [2008] WASCA 42 (Gilmour) [9] (Wheeler JA, with whom Buss and Miller JJA agreed). Gilmour was a case of aggravated stalking with intent to intimidate contrary to s 338E(1)(a) of the Code, rather than the stalking offences with which the appellant was charged under s 338E(2) of the Code, but that does not detract from the relevance of this aggravating factor in stalking offences generally. 117 Siriphanuruk v The State of Western Australia [2021] WASCA 221 (Buss P, Mazza and Beech JJA). 118 RS [53], citing Gilmour [9] (Wheeler JA, with whom Buss and Miller JJA agreed). -- 51 of 75 -- [2026] WASC 261 BYDDER J Page 52 dissolution of a domestic relationship and the offender being on the victim's property while armed. Neither of those features are present in this case. 135 However, as counsel for the respondent points out, as in Gilmour the appellant stalked each of his victims over the course of several months, his offending primarily took place in person and, in relation to Ms Q, the appellant went to her home twice and later chased and shouted at her as she tried to leave a medical centre parking lot. For these reasons, counsel for the respondent submitted that sentences between 6 and 10 months' imprisonment may well be thought to strike the appropriate balance in the appellant's case.119 136 Siriphanuruk was cited by counsel for the appellant as an example of a case with facts close to the worst case for aggravated stalking. 137 The case involving 2 counts of stalking with intent. There were ten other serious offences and all 12 of the offences arose out of what the Court of Appeal described as:120 [A] sustained campaign of intimidation and harassment by the appellant upon three victims. Two of the victims, RJ and his wife, A, from whom RJ was separated, were adults. The third victim, R, the daughter of RJ and A, was a child under the age of 16 years. 138 The sentencing court imposed and the Court of Appeal upheld a total effective sentence of 5 years' immediate imprisonment on Ms Siriphanuruk. That sentence included sentences of 2 years' imprisonment for each of the stalking with intent offences, one of which was the head sentence and one of which was made concurrent. The maximum penalty for staking with intent is three years' imprisonment. 139 In the context of considering an appeal ground alleging that the sentences for stalking with intent were manifestly excessive, Buss P, Mazza and Beech JJA said:121 With respect to the stalking offences the subject of counts 1 and 2, the appellant engaged in a persistent and prolonged campaign of harassment and intimidation of RJ and A. The appellant went to extraordinary lengths to construct complex narratives designed to instill 119 RS [54]. 120 Siriphanuruk [2]. 121 Siriphanuruk [89] - [90], [92] (footnotes omitted). -- 52 of 75 -- [2026] WASC 261 BYDDER J Page 53 fear of physical harm in each victim. Her methods included threats of sexual violence towards R, their child, who was under the age of 13 years. Among the false narratives she created, the appellant created a narrative in which she induced RJ and A to believe that they were endangered by a Filipino crime gang. Their fear was such that R and A travelled to Italy to remove themselves from the perceived danger. The appellant, in effect, preyed upon RJ and A for her own selfish purposes. She did so in order to benefit financially and to obtain an Australian partner's visa. His Honour was right to describe counts 1 and 2 as 'grave offences' that fell 'at the top end' of the range of seriousness for offences of their kind. … In respect of counts 1 and 2, it must be borne in mind that the maximum penalty for the offences is 3 years' imprisonment. It is clear from the sentencing remarks that his Honour was acutely aware of this fact. The sentences of 2 years' imprisonment that were imposed for counts 1 and 2 are reasonably close to the maximum penalty. The appellant makes this point in her written submissions. However, bearing in mind the serious features identified by the sentencing judge, the offences were very serious - indeed, close to being characterised as falling within the worst category. There was little mitigation. While his Honour found that the appellant was of prior good character, this factor was of little weight given the persistence and nature of the communications. The appellant's health and the separation from her family in Singapore were also matters of mitigation, but, again, could only attract limited mitigating weight. The appellant did not have the mitigatory benefit of pleas of guilty or remorse, maintaining, as she does, that she is innocent and has been the victim of a 'set-up'. 140 Once again counsel for the respondent rightly acknowledged that the offending in Siriphanuruk was more serious than the appellant's offending. Siriphanuruk involved a determined intent to intimidate and threats of sexual violence against the victim's child. However, counsel for the respondent also noted that the offending in Siriphanuruk occurred over a shorter period than in the appellant's case and did not involve physical contact or in-person harassment, as the appellant's offending did.122 141 Counsel for the respondent drew my attention to two additional cases, each involving sentencing for stalking rather than stalking with intent or aggravated stalking with intent. 122 RS [56]. -- 53 of 75 -- [2026] WASC 261 BYDDER J Page 54 142 In Sellenger v Turner,123 Strk J upheld a total effective sentence which included 4 months' immediate imprisonment for stalking (which as I have noted has a maximum penalty of 12 months' imprisonment and a fine of $12,000). The term of imprisonment for stalking and each of the other offences had been reduced by the sentencing court for totality reasons.124 143 The stalking occurred over a two-day period commencing on the day when the victim had informed the offender that their relationship was over. Later that day the offender calling the victim to say he had picked up her 10-year-old daughter and dropped her off at the victim's house. The victim then attended a police station to report an incident of family and domestic violence and seek advice on a restraining order and the offender attempted to prevent the victim from entering the police station. The offender then followed the victim in his car when she drove home from work. The next day the offender followed the victim again, made small deposits in her bank account and made more than 30 calls to the victim that evening. As a direct result of the offender's actions, the victim felt intimidated, anxious and nauseous and fearful of her safety and that of her daughter. The victim also began screening her calls and calling people back rather than answer calls, for fear that the caller may be the offender.125 144 As counsel for the respondent observed, while the appellant's offences did not involve a former domestic partner (which aggravated the seriousness of the stalking in Sellenger), the appellant's offending extended over a much longer period, involve more instances of in-person contact, including the appellant going to the victim's home or work addresses and (in the case of Ms P) involve sexually offensive behaviour. Counsel for the respondent submitted that the offending in this case was more serious than the offending in Sellenger. 145 In Smartt v Sloane,126 Allanson J upheld an appeal from a total effective sentence of 12 months' immediate imprisonment on totality grounds. The sentence had been imposed for stalking (for which a cumulative term of 6 months' immediate imprisonment was imposed, reduced from 8 months for an early plea) and breaches of a restraining order and a protective bail condition. 123 Sellenger v Turner [2021] WASC 308 (Sellenger). 124 Sellenger [54]. 125 Sellenger [26] - [39]. 126 Smartt v Sloane [2019] WASC 35. -- 54 of 75 -- [2026] WASC 261 BYDDER J Page 55 146 The stalking involved the offender making 235 telephone calls to the victim over 17 days, with 73 of them on one day. Most of the calls were made when the offender's number was blocked by the victim and none of the calls were answered.127 147 To ensure that the total effective sentence was commensurate with the total criminality of the conduct, the sentence for stalking was reduced to 2 months' imprisonment to be served cumulatively.128 However, Allanson J said that if the sentence for stalking was not cumulative it would have been longer129 and it was not suggested that the original sentence for stalking was inappropriate on any basis other than totality.130 His Honour noted that the seriousness of the stalking offence lay in the offender's 'frequent, repeated attempts to ring the victim, in breach of the restraining order'.131 148 As counsel for the respondent submits,132 each of the stalking offences committed by the appellant is significantly more serious than the stalking offending in Smartt. The offending in Smartt involved no face-to-face contact, no sexual overtures, occurred over a shorter period and there was an overlap between the criminality involved in the stalking and the other offences for which the offender in Smartt was convicted. 149 While I am grateful to counsel for drawing these authorities to my attention, the assistance they can provide in determining the appropriate sentences for the appellant's stalking offences and the total effective sentence is limited at best. That is because of their differing facts (between each other and as compared to the appellant's offences), the involvement of other offences in each sentencing exercise and, in the case of Gilmour and Siriphanuruk, the stalking offences being more serious by reference to their maximum penalties. 150 Counsel for the appellant and respondent both acknowledged in their oral submissions that the cases had limited (if any) utility in resentencing the appellant.133 127 Smartt [6] - [7]. 128 Smartt [40]. 129 Smartt [40]. 130 Smartt [15], [35] - [36]. 131 Smartt [35]. 132 RS [52]. 133 Appeal ts 50 - 51, 54 - 56. -- 55 of 75 -- [2026] WASC 261 BYDDER J Page 56 The appellant's cancer diagnosis, prognosis and treatment 151 I have already referred to the evidence in relation to the appellant's cancer diagnosis, prognosis and treatment, as well as some of the submissions made by the appellant in respect of those matters. 152 Counsel for the appellant contended in her oral submissions that in light of his diagnosis, prognosis and treatment (which includes chemotherapy, radiation therapy and immunotherapy): (a) the appellant's time in custody is more arduous in several ways because of the condition that he is facing in prison (and this has been so for more than four months): (i) the treatment itself is very difficult and has had a fairly significant impact on his body, with the appellant being very tired whilst being treated particularly for the week following each of his chemotherapy bouts;134 (ii) he attends hospital for treatment in shackles and returns to his prison cell between treatments;135 (iii) the appellant attends treatment alone and cannot have family members with him because operational security does not permit advance notice of when his treatment visits will occur, which gives the appellant a real sense of isolation;136 (iv) an example of the difficulty this creates is that when the appellant recently went to hospital and saw the doctor he asked the direct question 'how long do I have?', to which the doctor responded 'let's discuss this when you have family around';137 (v) the appellant's sense of isolation is increased by the need for him to be in a single cell in prison because he is immunocompromised due to his treatment,138 albeit that 134 Appeal ts 33. 135 Appeal ts 33. 136 Appeal ts 33 - 34. 137 Appeal ts 33. 138 Appeal ts 34. -- 56 of 75 -- [2026] WASC 261 BYDDER J Page 57 the appellant does mix with other prisoners during lunch and dinner periods;139 (vi) the appellant has been told that he must stay mentally strong to be able to fight his condition, and this has been particularly difficult for him to do from a prison cell;140 and (vii) the appellant's greatest fear is that he will die alone in prison;141 (b) while a jail term itself incorporates relevant personal deterrence, personal deterrence in the prison term is not required for the appellant because when he is eventually released, if he is released, the knowledge that he will go back to prison and die in prison if he reoffends is in and of itself a huge factor which should serve as personal deterrence for the appellant;142 (c) without appellate intervention or parole, there is a very real likelihood that the appellant will die in prison given the statistical data in the June affidavit, and the seriousness of the appellant's offences and any need for public retention are not so significant that a crushing sentence of this kind should be allowed to stand;143 (d) the appellant's diagnosis of cancer has been a significant turning point in his motivation to cease alcohol misuse and drug use, which has clearly underpinned all of his criminal offending throughout his adult life;144 (e) he is currently on antidepressants and antianxiety medication and one would expect that medication would continue irrespective of whether he remains in prison;145 and (f) the appellant has a lot of supports in place with family and medical staff so that if he is released, the necessary supports will be around him.146 139 Appeal ts 36 - 37. 140 Appeal ts 34. 141 Appeal ts 34. 142 Appeal ts 34. 143 Appeal ts 34. 144 Appeal ts 35. 145 Appeal ts 35. 146 Appeal ts 35. -- 57 of 75 -- [2026] WASC 261 BYDDER J Page 58 153 Given the appellant's long history of polysubstance abuse, lack of engagement with treatment and criminal record, I invited counsel for the appellant to direct my attention to any other matters which might give confidence that if released, the appellant would refrain from further offending. Counsel for the appellant said:147 Essentially, his instructions in relation to this being a life-changing moment. It really requires a leap of faith to be confident that it will have a meaningful impact on the appellant, going forward. But those are his instructions in relation to that. But no, there's nothing additional that I can point to that could guide your Honour in that regard. And of course, we would simply say that this isn't a situation where a possible risk of re-offending should elevate the sentence beyond what the criminal conduct requires in terms of punishment. 154 I also raised with counsel for the appellant the apparent inconsistency between the appellant's likely prognosis as described in the May affidavit and the June affidavit. On its face, the prognosis described in the May affidavit is more optimistic than the one described in the June affidavit. Counsel for the appellant explained that:148 KING, MS: Dr [Lomma] is the oncologist, and he provided the original guide. BYDDER J: So that's the second [May] affidavit. KING, MS: That's the second one. BYDDER J: Yes. KING, MS: Yes. As opposed to the third one [the June affidavit]. Yes. So the one that talked about the first prognosis [the May affidavit] was by Dr [Lomma]. Now, the second one [the June affidavit] was from the radiologist, Dr Tan. BYDDER J: Yes. KING, MS: Now, they were both very clear when communicating to me, that they don't like to give an individual prognosis until they've had sufficient scans to give them a proper signpost as to how – what that trajectory might be. So when I spoke to Dr Tan last week – so that that trajectory could be anything. It could be many years, versus not long. And we really have no guidance as to which way that might go. And we won't have guidance for at least six weeks. So that's why I asked Dr Tan if he could give me the statistics involved in a general setting, for people with this level of aggressive cancer, what the life expectancy 147 Appeal ts 39. 148 Appeal ts 41 - 45. -- 58 of 75 -- [2026] WASC 261 BYDDER J Page 59 ranges are in that statistical subset. And so, he provided me with those statistics. Neither of them said this to me, but it seemed clear in our discussions, that they don't normally have discussions about statistics with an individual, because it could have a serious impact on how they are mentally prepared to fight the cancer, especially when it just literally could go one way or another. But I thought the court would be helped in knowing what the cold, hard statistical facts would be. … And so, it was simply that there was certainly a reluctance to give any kind of prognosis, which is specific, without all the tests. I've made it clear to the doctor that it wouldn't be desirable to put off an urgent appeal until we've got those results. And I was surprised by the statistics after the first bit of information I received. I was surprised by the statistics, given what was said at first. And so, Dr Tan was very clear to ensure that he provided the statistics to Dr [Lomma]. BYDDER J: Yes. KING, MS: So that they were both on the same page, that yes, those statistics are correct, but we're still holding out hope for Mr Roe. We still hold that hope. BYDDER J: And in part, that's because Dr [Lomma] noted that the – it will be treated locally, which I confess, like you, Ms King, I had thought it might mean something different. KING, MS: Yes. BYDDER J: But what it does mean, apparently, is that happily, there are only a few spots of cancer. KING, MS: That's right. BYDDER J: And they are being treated directly. It isn't the case of a more widespread cancer, which I take it is the subject of a broad-based treatment. KING, MS: Yes. BYDDER J: Now, I appreciate why you say it would be undesirable, in one sense, to postpone sentencing. KING, MS: Yes. BYDDER J: It cuts both ways. KING, MS: Of course it does, indeed. -- 59 of 75 -- [2026] WASC 261 BYDDER J Page 60 BYDDER J: Because if I'm re-sentencing without the benefit of the next scan and what it means, - - - KING, MS: Yes. Yes. BYDDER J: - - - I need to re-sentence on the basis, it would seem to me, subject to what Ms Wong may have to say to me, that there is a spectrum of potential outcomes. KING, MS: Yes. BYDDER J: Which could range from what we all hope isn't the case. KING, MS: Yes. BYDDER J: Which is months. KING, MS: Yes. BYDDER J: And not sure how many. KING, MS: Yes. BYDDER J: To what we all hope is the case. KING, MS: Yes. BYDDER J: Which is successful treatment and years of life. KING, MS: Yes, that's right. That's right. BYDDER J: And I would need to sentence on that basis. KING, MS: That's right. Bearing in mind the statistical likelihoods, however. BYDDER J: But also bearing in mind that the view in the second affidavit is the view of an expert oncologist. KING, MS: Yes, that's right. BYDDER J: Who would be aware of the statistics. KING, MS: Yes. So had confirmed the statistics. Had said he feels optimism. But didn't actually make any adjustments to the statistics. BYDDER J: Yes. And with that being, Ms King, because he can't know until he sees the scans, if this - - - KING, MS: Possibly. -- 60 of 75 -- [2026] WASC 261 BYDDER J Page 61 BYDDER J: Well, I just need to know what I'm sentencing on. So should I – what's your submission about what I should do with the difference between the second affidavit - - - KING, MS: Yes. BYDDER J: - - - and the third affidavit. Because it seems to me, that could be quite a critical question to resolve in re-sentencing. KING, MS: Yes. Yes. Well, I think that what we would say is that the statistics suggest that it's more likely than not, because the median point is the sort of halfway point, so to speak, in the data set. BYDDER J: Yes. KING, MS: So that median point is 6 to 12. And so, we would say the statistics say it's more likely than not that that is the outcome. Resentencing the appellant - determining the appropriate sentence for each offence Matters to which I have had regard 155 In determining the appropriate sentence for each of the 15 offences falling for re-sentencing, in addition to the matters further discussed below I have had regard to the material before the court (including the parties' submissions and the three affidavits) and: (a) the applicable maximum penalty for the offence; (b) the facts accepted by the appellant through his counsel in respect of the offence; (c) the explanation offered for the appellant's offending (when offered); (d) the appellant's personal circumstances (which I have set out above); and (e) the pre-sentence and psychological reports, the appellant's apology, the letters received in support of him and the learned Magistrate's sentencing remarks, to all of which I have referred above. Discounts for the appellant's pleas of guilty 156 I would apply the same discounts for the appellant's guilty pleas as the learned Magistrate applied for the reasons her Honour gave: that is, -- 61 of 75 -- [2026] WASC 261 BYDDER J Page 62 25 per cent for charges CA 1232/25 (trespass) and CA 1233/25 (damaging property) and 15 per cent for the other 13 charges that were not the subject of the suspended imprisonment sentences. Seriousness of the appellant's offences 157 Save for the learned Magistrate's characterisation of the stalking offences, I generally agree with the learned Magistrate's characterisation of the seriousness of the appellant's offending and specifically agree that the trespass offence against Ms Q (CA 1232/25) was the most serious trespass offence committed by the appellant. However, I consider the trespass that was charge CA 304/2025 to be more serious than the trespasses that were charges CA 249/2025, CA 303/2025 and CA 493/2025. I take this view because the victim in CA 304/2025 was more vulnerable than the other victims and the appellant's trespass was more intrusive. 158 As to the appellant's stalking offences, the offending against Ms Q and Ms P was serious. However, I respectfully disagree with the learned Magistrate's view that the offending against Ms Q was 'so grave as to warrant the maximum prescribed penalty or close to in terms of the scale of seriousness'.149 159 Counsel for the appellant accepted that the offending against Ms Q was serious.150 That concession was rightly made. 160 In relation to the stalking of Ms P, counsel for the appellant submitted that it was less serious than the offences against Ms Q but more serious than the offending against Ms B.151 I accept that submission. 161 Counsel for the appellant also submitted that while the appellant made numerous attempts to speak to Ms P, at no stage did Ms P tell the appellant that his advances were unwelcome, the appellant did not make any threats to Ms P, did not make physical contact with her and was not in a domestic relationship with Ms P.152 In my respectful opinion, those submissions understate the seriousness of the offending in relation to Ms P. In addition to the appellant's offending involving eight contacts with Ms P over more than three months which escalated 149 24 October hearing ts 11. 150 AS [33] - [34]; appeal ts 58. 151 Appeal ts 58 - 59. 152 AS [37]. -- 62 of 75 -- [2026] WASC 261 BYDDER J Page 63 over time, the stalking involved sexually predatory overtones and the appellant actively sought out Ms P at her place of work. 162 The appellant's behaviour towards Ms P at Woolworths on 4 and 5 March 2025 was particularly concerning, both in itself and when considered in light of the appellant's earlier stalking of Ms P. (a) On 4 March 2025 the appellant attempted to speak with Ms P twice at a shopping centre, including as Ms P was entering Woolworths, after which he entered Woolworths to seek out Ms P, attempted to engage with her, and then waited for Ms P to emerge from Woolworths before attempting to engage with her again. Ms P was understandably frightened and asked a friend with her in Woolworths to pretend to be her boyfriend. (b) On 5 March 2025 when Ms P was again in Woolworths, the appellant watched Ms P as she walked past the exit to the self- service checkout. The appellant waited on a bench near the exit and watched Ms P pay for her shopping, before getting up as Ms P walked towards the exit of Woolworths and sexually propositioning Ms P after she had left Woolworths. 163 In relation to the stalking of Ms B, counsel for the appellant submitted that the offending was not so serious as to warrant a term of imprisonment. This submission was made on the basis that the appellant attended Ms B's place of work a handful of times, he came across Ms B in the street and attempted to talk to her, the appellant did not use offensive or threatening language or gestures and was not told to leave Ms B alone.153 164 I accept that the stalking of Ms B was the least serious of the stalking offences and, considered in and of itself, may not have justified a sentence of immediate imprisonment. However, considerations of general and personal deterrence, as well as protection of the community, all militated in favour of a more severe penalty than would otherwise be appropriate.154 Subject to my observations on personal 153 AS [39]. 154 Compare in this regard Narkle [45] - [47] (Steytler P, McLure and Buss JJA), in which an indecent assault conviction of the kind involved in that case would ordinarily have attracted a non-custodial sentence, but was instead considered to require imprisonment having regard to the offender's background, lack of remorse, personal deterrence and the protection of the community, which were the principal sentencing considerations in the case. The sentence of imprisonment was suspended having regard to the offender's time in custody. The circumstances of the offender in Narkle were worse than those of the appellant in this case, but Narkle illustrates how sentencing considerations may require imprisonment when a non-custodial sentence would otherwise have been appropriate. -- 63 of 75 -- [2026] WASC 261 BYDDER J Page 64 deterrence below, I agree with the views expressed by the learned Magistrate on general and personal deterrence and protecting the community. 165 In considering the seriousness of the appellant's stalking offending against Ms Q, Ms P and Ms B, I also accept counsel for the respondent's submission that:155 In assessing the seriousness of stalking offending … care must be taken to avoid consideration in a clinical manner of the precise, individual actions taken by an offender. Stalking is an offence that acknowledges the oppressive and intrusive effect of repeated, unwanted behaviour directed towards a victim. Individual actions may, taken out of context, appear relatively innocuous. However, it is the cumulative effect of those actions that make stalking a particularly insidious offence. For that reason, stalking offending involves conduct that might too easily be minimised. Of relevance, an offence of stalking simpliciter [with which the appellant was charged in relation to Ms Q, Ms P and Ms B] is one focussed firmly on the impact to the victim. This underlines that a contextual approach must be taken to an examination of the gravity of an offence under s 338E(2) of the Code. 166 I have adopted that contextual approach in assessing the seriousness of the appellant's stalking offending against Ms Q, Ms P and Ms B. Mitigating and aggravating factors 167 I also agree with the mitigating and aggravating factors identified by the learned Magistrate. To the mitigating factors I would add that the appellant's time in custody has been more arduous for more than four months than it otherwise would have been and will continue to be more arduous, for the reasons submitted by counsel for the appellant.156 However: (a) there is nothing to suggest that any of the appellant's offending is explained by his cancer and counsel for the appellant confirmed that no submission was advanced that any of the appellant's offending is explained by his cancer;157 and (b) while the appellant's cancer treatment causes him to be very tired in the week following a bout of chemotherapy, there is no 155 RS [43] (emphasis in original). 156 See above [152(a)]. 157 Appeal ts 57. -- 64 of 75 -- [2026] WASC 261 BYDDER J Page 65 evidence to suggest that an effect of the cancer will be to reduce his risk of reoffending should he be released.158 Time in custody 168 I have also taken into consideration the time that the appellant has already spent in custody, which as of 26 June 2026 is one year, three months and 20 days. As to that time in custody: (a) I accept that his time in custody will already have effected a level of personal deterrence, especially when coupled with the appellant's cancer diagnosis and the possibility that the appellant may have only months to live; (b) I also accept that his time in custody has already achieved some degree of retribution; and (c) the appellant has not been able to continue his alcohol and drug misuse while in custody and is better placed than he otherwise would have been to pursue his expressed hope of rehabilitation and avoiding falling back into alcohol and drug misuse (although I appreciate that he has had similar opportunities before and not made good use of them). 169 I have taken into account that the appellant has been on antidepressant and anti-anxiety medication and can continue that medication despite his cancer treatment. I also accept that while the appellant remains on that medication it will go some way to addressing the issues underlying his offending that were identified in the psychological report. 170 I also accept that it is possible that the appellant's cancer diagnosis may be a significant turning point in motivating him to cease his alcohol and drug misuse, which I accept has underpinned his criminal offending. However once again a leap of faith that the appellant's cancer diagnosis will motivate him to cease alcohol and drug misuse is required given the appellant's history. 171 Finally, I accept that at least some support is available to the appellant by way of family and medical staff, should he be released. Whether the appellant avails himself of that support if he is released will ultimately depend on him. 158 Appeal ts 52 - 53. -- 65 of 75 -- [2026] WASC 261 BYDDER J Page 66 The need for personal deterrence 172 As I have noted, counsel for the appellant submitted that personal deterrence is not required for the appellant because if he is released, the knowledge that he will go back to prison and die in prison if he reoffends is in and of itself a huge factor which should serve as personal deterrence for the appellant. The appellant has not been deterred in the past by the prospect of being returned to prison if he reoffends. 173 The most recent example of that is the suspended sentences of imprisonment imposed on the appellant on 17 February 2025. As I have noted, the appellant began reoffending the day after he was released from prison under those sentences. 174 I have already accepted that the appellant's time in custody will have effected a level of personal deterrence, especially when coupled with the appellant's cancer diagnosis and the possibility that the appellant may have only months to live. 175 I also accept that the prospect of being returned to and dying in prison if the appellant reoffends may deter the appellant in a way that previous sentences have not. However as counsel for the appellant put it, a leap of faith is required to be confident that the appellant's cancer diagnosis will have a meaningful impact on him into the future.159 176 I also acknowledge that, as counsel for the respondent submitted, the appellant's response to being released may instead be nihilistic in the face of the real prospect of dying within months from cancer.160 177 In all the circumstances, the need for personal deterrence identified by the learned Magistrate is reduced in light of the appellant's illness and time in custody, but only to a small extent. A more severe penalty is warranted than would otherwise be the case for the purposes of personal deterrence and protecting the community. 159 Appeal ts 39. 160 Appeal ts 47. -- 66 of 75 -- [2026] WASC 261 BYDDER J Page 67 Overlap in elements of the stalking and trespass offences against Ms Q 178 The facts of the stalking offence against Ms Q include the following:161 1 March, the victim again at her home address – this is 8.38 pm – and again, the car is parked in the driveway. He has opened the front flyscreen, damaging it, and attempted to open the door. I think maybe that was the (indistinct) so he has opened the front flyscreen, damaging it, and attempted to open the front main door, which had been locked. The victim looked at her cameras, recognised the accused and called triple zero. The accused left. 179 Those facts overlap with the trespass and damaging property offences against Ms Q. The facts of those offences were that:162 1 March, [Ms Q] was at her home address in [suburb]. 8.38 pm, the accused walked up to the front door of that address. The vehicle was parked in the open driveway out the front. The accused opened the front fly screen door, damaging it, and attempted to open the main door, which had been locked. The accused called out to the victim. … Called out to the victim by her name. The victim looked at the CCTV, recognised the accused and called triple zero. And he was arrested on 5 March. 180 The penalties for the trespass and damaging property offences against Ms Q should reflect the overlap between the two offences, so as to avoid double punishment of the appellant. Non-custodial sentencing options 181 I have carefully considered whether any of the non-custodial sentencing options are appropriate. I have concluded that none of them are. 182 In addition to the seriousness of the appellant's offending and the need for general and personal deterrence and the protection of the community, I accept the view expressed in the pre-sentence reports that the appellant is not suitable for future community orders. That is amply demonstrated by the appellant's criminal history and his poor compliance with orders in the past. 161 7 October hearing ts 14. 162 7 October hearing ts 5 - 6. -- 67 of 75 -- [2026] WASC 261 BYDDER J Page 68 Whether imprisonment should be suspended 183 It follows that I consider imprisonment to be the only appropriate sentence for each of the appellant's offences. 184 In relation to the possibility of suspended imprisonment, I have looked again at all matters relevant to the circumstances of each offence and the appellant's personal circumstances. I have also considered the possibility that conditional suspended imprisonment may assist the appellant in his rehabilitation while providing an adequate level of protection to the community, given that conditional suspended imprisonment must include at least one of a programme requirement, a supervision requirement or a curfew requirement and may also contain an electronic monitoring requirement.163 185 I have had careful regard to all of those matters. Ultimately, I am satisfied that suspending the terms of imprisonment, whether by way of suspended imprisonment or conditional suspended imprisonment, is not appropriate given: (a) the overall seriousness of the appellant's offences; (b) his history of poor compliance with community orders; and (c) his history of committing offences while subject to suspended sentences of imprisonment, including most recently the day after sentences of that kind were imposed. The individual sentences 186 Taking all matters into account, including the discounts to which I have referred, I consider the appropriate sentence for each of the 15 offences which fall for resentencing is as set out in the table to this paragraph. Charge No CA Charge Date of offence Sentence 249/25 Trespass 18.02.25 2 months 302/25 Stalking Ms Q 12.10.24 - 05.03.25 8 months 303/25 Trespass 02.03.25 2 months 304/25 Trespass 02.03.25 3 months 163 Sentencing Act s 84, s 84A, s 84B, s 84C and s 84CA. -- 68 of 75 -- [2026] WASC 261 BYDDER J Page 69 Charge No CA Charge Date of offence Sentence 306/25 Failure to comply with reporting obligations 03.03.25 2 months 307/25 Threat to injure or harm a person 05.03.25 2 months 313/25 Failure to comply with reporting obligations 22.10.24 2 months 314/25 Failure to comply with reporting obligations 31.10.24 2 months 315/25 Failure to comply with reporting obligations 04.11.24 2 months 316/25 Failure to comply with reporting obligations 13.11.24 2 months 491/25 Stalking Ms P 01.09.24 - 05.03.25 6 months 492/25 Stalking Ms B 27.11.24 - 04.03.25 3 months 493/25 Trespass 05.03.25 2 months 1232/25 Trespass in relation to Ms Q 01.03.25 4 months 1233/25 Damaging property (Ms Q's door) 01.03.25 1 month 187 If all of these sentences were cumulative upon each other, the appellant would be facing a total effective sentence of 3 years and 7 months' imprisonment before dealing with the appellant under s 80 of the Sentencing Act. If the appellant were required to serve all of the terms of imprisonment that had been suspended cumulatively upon each other, he would be facing a total effective sentence of 4 years and 2 months' imprisonment. 188 Such a sentence would plainly offend against both limbs of the totality principle. I now turn to questions of cumulation, concurrency and totality. -- 69 of 75 -- [2026] WASC 261 BYDDER J Page 70 Resentencing the appellant - cumulation, concurrency and totality The appropriate total effective sentence 189 In my opinion, putting aside for a moment dealing with the appellant under the Sentencing Act s 80, a total effective sentence of 2 years' imprisonment would bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally and all relevant sentencing factors. As I have already noted, no comparable cases have been identified. A total effective sentence of 2 years' immediate imprisonment is not 'crushing' in the sense of the second limb of the totality principle 190 If the appellant is required to serve his current sentence (which has just over a year and seven months left to serve) and is not released on parole, there is a very real prospect that he will die in prison. However, I do not accept that the evidence rises so high as to make it a very real likelihood (as counsel for the appellant submitted) that the appellant will die in prison in those circumstances. 191 The statistical evidence identifies a median life expectancy of six to 12 months for the appellant's cancer, which might increase to 18 months to two years with successful treatment. The statistical evidence also suggests that the chances of survival to or beyond five years would be close to 10 per cent. 192 However Dr Lomma, who is the appellant's treating oncologist, is more optimistic about the potential outcome for the appellant than the statistical median outcome would suggest. The appellant's cancer will be locally treated, confined as it is to a few spots of cancer, and if the appellant responds to treatment his life expectancy may extend for many years rather than months. 193 It is impossible to be more definitive about life expectancy at this stage of the appellant's treatment. However Dr Lomma's guarded optimism is significant. 194 The total effective sentence imposed by the learned Magistrate (without knowing about the appellant's cancer) would be 'crushing' in light of the appellant's illness, given that without parole the appellant would face serving another 19 months in prison in the context of the median life expectancy figures that have been quoted. However, a total effective sentence of 2 years would not be 'crushing', provided that it is -- 70 of 75 -- [2026] WASC 261 BYDDER J Page 71 backdated to 6 March 2025. Without parole, the appellant would complete that sentence in less than nine months' time. 195 Even on the statistics in the June affidavit, with successful treatment the appellant's life expectancy might rise to 18 months to two years. Dr Lomma is more optimistic overall about the appellant's prognosis given that there are only a few spots of cancer and they will be or have already been treated with radiotherapy and surgery. Based on the May affidavit, with successful treatment the appellant may have years of life ahead of him. 196 Further and in any event, in the circumstances of this case and having regard to all relevant factors, I consider that a total effective sentence of less than 2 years' immediate imprisonment backdated to 6 March 2025 would not be fairly proportionate to the appellant's offending. Dealing with the appellant under the Sentencing Act s 80 197 Since the suspended sentences of imprisonment were imposed on 17 February 2025, the appellant has been diagnosed with and is undergoing treatment for aggressive lung cancer and has an uncertain prognosis. In addition, the appellant has been in custody for one year, three months and 20 days. 198 If the appellant is required to serve any part of the suspended sentences of imprisonment, those sentences could not be backdated. They would take effect from today, even if I ordered that the appellant serve them concurrently with the other sentences. 199 I am satisfied that it would be unjust in the circumstances that I have identified for me to require the appellant to serve any part of the suspended terms of imprisonment. Pursuant to the Sentencing Act s 80(1)(d), I make no order in respect of the terms of suspended imprisonment. Matters of cumulation and concurrency 200 The total effective sentence of 2 years' immediate imprisonment is constituted as follows: (a) the sentence for stalking Ms Q (CA 302/25) is the head sentence and the sentences for the appellant's trespass offence (CA 1232/25) and damaging property offence (CA 1233/25) against Ms Q are served concurrently; -- 71 of 75 -- [2026] WASC 261 BYDDER J Page 72 (b) the sentences for the stalking charges against Ms P (CA 491/25) and Ms B (CA 492/25) are served cumulatively; (c) the sentence for the threat against the security officer who came to Ms Q's assistance (CA 307/25) is served cumulatively; (d) the sentence for the most serious of the other trespass offences (CA 304/2025) is served cumulatively but the sentences for the other trespass offences (CA 249/2025, CA 303/2025 and CA 493/2025) are served concurrently; and (e) the first in time of the failure to comply with reporting obligations offences (CA 313/25) is served cumulatively but the sentences for the other failure to comply with reporting obligations offences (CA 306/25, CA 314/25, CA 315/25 and CA 316/25) are served concurrently. 201 That approach is reflected in the table to this paragraph. Charge No CA Charge Date of offence Sentence 249/25 Trespass 18.02.25 2 months (concurrent) 302/25 Stalking Ms Q 12.10.24-05.03.25 8 months (head sentence) 303/25 Trespass 02.03.25 2 months (concurrent) 304/25 Trespass 02.03.25 3 months (cumulative) 306/25 Failure to comply with reporting obligations 03.03.25 2 months (concurrent) 307/25 Threat to injure or harm a person 05.03.25 2 months (cumulative) 313/25 Failure to comply with reporting obligations 22.10.24 2 months (cumulative) 314/25 Failure to comply with reporting obligations 31.10.24 2 months (concurrent) 315/25 Failure to comply with reporting obligations 04.11.24 2 months (concurrent) 316/25 Failure to comply with reporting obligations 13.11.24 2 months (concurrent) 491/25 Stalking Ms P 01.09.24-05.03.25 6 months (cumulative) -- 72 of 75 -- [2026] WASC 261 BYDDER J Page 73 Charge No CA Charge Date of offence Sentence 492/25 Stalking Ms B 27.11.24-04.03.25 3 months (cumulative) 493/25 Trespass 05.03.25 2 months (concurrent) 1232/25 Trespass in relation to Ms Q 01.03.25 4 months (concurrent) 1233/25 Damaging property (Ms Q's door) 01.03.25 1 month (concurrent) 202 It follows that as of today the appellant can be considered for release on parole. Orders 203 The orders I would make in accordance with these reasons are as follows: (1) The appellant be granted an extension of time until 10 March 2026 to commence his appeal. (2) Leave to appeal on ground 6 be granted. (3) Leave to appeal on grounds 1, 2, 3, 4 and 5 be refused.164 (4) The appeal is allowed. (5) The learned Magistrate's decision on 24 October 2025, including the sentences imposed by her Honour, the orders her Honour made under s 80 of the Sentencing Act 1995 (WA) and the orders for cumulacy and concurrency, is set aside. (6) The appellant is resentenced to individual sentences of imprisonment as follows: (a) CA 249/25, 2 months' imprisonment; (b) CA 302/25, 8 months' imprisonment; (c) CA 303/25, 2 months' imprisonment; 164 This follows the approach taken in the Court of Appeal in BSA [36] - [40], [66] (Buss P, Mazza JA and David AJA), when it was unnecessary to consider the other grounds of appeal because one of the grounds had been established, the sentencing process had miscarried and the sentencing discretion had to be exercised afresh. In BSA, the State had essentially conceded the ground of appeal that had been established. -- 73 of 75 -- [2026] WASC 261 BYDDER J Page 74 (d) CA 304/25, 3 months' imprisonment; (e) CA 306/25, 2 months' imprisonment; (f) CA 307/25, 2 months' imprisonment; (g) CA 313/25, 2 months' imprisonment; (h) CA 314/25, 2 months' imprisonment; (i) CA 315/25, 2 months' imprisonment; (j) CA 316/25, 2 months' imprisonment; (k) CA 491/25, 6 months' imprisonment; (l) CA 492/25, 3 months' imprisonment; (m) CA 493/25, 2 months' imprisonment; (n) CA 1232/25, 4 months' imprisonment; (o) CA 1233/25, 1 month's imprisonment. (7) Pursuant to the Sentencing Act s 80(1)(d), I make no order in respect of the terms of suspended imprisonment for charges CA 1107/24, CA 1269/24, CA 1271/24, CA 1276/24, CA 1388/24, CA 1520/24 and CA 1530/24. (8) The new sentences for charges CA 302/25, CA 304/25, CA 307/25, CA 313/25, CA 491/25 and CA 492/25 are to be served cumulatively upon each other. The other new sentences are to be served concurrently with the new sentence for charge CA 302/25. (9) The new total effective sentence is therefore 2 years' immediate imprisonment. (10) The new total effective sentence is backdated to 6 March 2025. (11) The appellant is eligible for parole. -- 74 of 75 -- [2026] WASC 261 BYDDER J Page 75 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 26 JUNE 2026 -- 75 of 75 --