MILLER -v- WA POLICE [2026] WASC 180

[2026] WASC 180 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : MILLER -v- WA POLICE [2026] WASC 180 CORAM : MCGRATH J HEARD : 4 MAY 2026 DELIVERED : 8 MAY 2026 FILE NO/S : SJA 1092 of 2025 BETWEEN : PEGGIE LEE MILLER Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE B COLEMAN File Number : AR 17409/25 - AR 17410/25 Catchwords: Criminal appeal - Appeal - Possession of methylamphetamine (0.01 g) for personal use - Possession of drug paraphernalia - Appeal against suspended term of imprisonment - Whether sentence manifestly excessive -- 1 of 15 -- [2026] WASC 180 Page 2 Legislation: Misuse of Drugs Act 1981 (WA) Result: Leave to amend the grounds of appeal granted Leave to appeal granted on ground 2 Leave to appeal not granted on grounds 1 and 3 Appeal allowed The terms of imprisonment of 6 months and 1 day suspended for 12 months imposed on charge AR 17409/2025 and 2 months' imprisonment suspended for 12 months imposed on charge AR 17410/2025 are set aside and in lieu thereof a fine in the amount of $100 is imposed on each of charges AR 17409/2025 and AR 17410/2025 Category: B Representation: Counsel: Appellant : Mr R Napper Respondent : Ms J Tower Solicitors: Appellant : Aboriginal Legal Service (WA) Respondent : State Solicitor's Office Case(s) referred to in decision(s): Chan v The Queen (1989) 38 A Crim R 337 Dias v The State of Western Australia [2017] WASCA 49 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Garlett v The State of Western Australia [2016] WASCA 80 HNA v The State of Western Australia [2016] WASCA 165 Karakuyu v The State of Western Australia [2012] WASCA 75 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Miller v Byrne [2016] WASC 236 Mitchell v Purvis [2016] WASC 351 -- 2 of 15 -- [2026] WASC 180 Page 3 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Pennetta v The State of Western Australia [2013] WASCA 234 Roberts v The State of Western Australia [2014] WASCA 239 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Snadden v O’Keefe [2009] WASC 26 Vulin v Kirkman [2012] WASC 331 YDN v The State of Western Australia [2018] WASCA 62 -- 3 of 15 -- [2026] WASC 180 MCGRATH J Page 4 MCGRATH J: Introduction 1 The appellant was convicted on her own plea of one offence of having in her possession a prohibited drug, namely 0.01 g of methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (charge AR 17409/2025) and one offence of possessing drug paraphernalia, in or on which there was a prohibited drug or plant, namely methylamphetamine, contrary to s 7B(6) of the Misuse of Drugs Act (charge AR 17410/2025). 2 The learned Magistrate imposed a term of 6 months and 1 day imprisonment suspended for 12 months in respect to charge AR 17409/2025 and 2 months' imprisonment suspended for 12 months in respect to charge AR 17410/2025, to be served concurrently. 3 The appellant now seeks leave to appeal against the sentence of 6 months and 1 day suspended imprisonment imposed on charge AR 17409/2025 on the ground that the sentence was manifestly excessive (ground 2). In addition, the appellant relies upon two other grounds of appeal. The appellant contends that the learned Magistrate erred in law by imposing a 6 month and 1 day term of imprisonment as a mandatory minimum pursuant to s 86 of the Sentencing Act 1995 (WA), rather than properly exercising her sentencing discretion (ground 1). Further, the appellant contends that the learned Magistrate acted without jurisdiction by increasing the term of imprisonment in a purported exercise of s 37(3) of the Sentencing Act (ground 3). 4 The appellant applies for an extension of time in which to appeal. The respondent does not oppose the application. The respondent submits that the sentence imposed was manifestly excessive and that the appeal should be allowed on ground 2. The respondent's concession was properly made. I am satisfied that the sentence is manifestly excessive. Accordingly, I grant an extension of time in which to appeal, grant leave to appeal on ground 2, allow the appeal, and resentence the appellant by setting aside the terms of imprisonment and in lieu thereof impose fines. Magistrates Court proceeding 5 On 10 November 2025, the appellant appeared in the Magistrates Court and pleaded guilty to charges AR 17409/2025 and -- 4 of 15 -- [2026] WASC 180 MCGRATH J Page 5 AR 17410/2025. In addition, the appellant pleaded guilty to two charges of stealing contrary to s 378 of the Criminal Code (WA). 6 The factual circumstances of the offending concern the appellant being subject to a security risk item search of her person and her belongings after being arrested for an unrelated matter. The police officer, whilst conducting the search, located a small clip seal bag containing approximately 0.01 g of methylamphetamine in the appellant's pants pocket and, further, a glass smoking implement containing traces of methylamphetamine within the appellant's bag. 7 At the time of the search, the appellant participated in a body-worn camera field interview under caution, during which she made full admissions to being in possession of the methylamphetamine and the glass smoking pipe. The appellant informed the police officer that the methylamphetamine was for her personal use and that the smoking implement was used as a personal smoking device. 8 During the sentencing hearing, the prosecutor observed that the appellant had been placed on a community-based order (CBO) on 7 August 2025, being 20 days prior to her arrest. The CBO was imposed for numerous offences, including possession of methylamphetamine for personal use and possession of drug paraphernalia. The prosecutor informed the court that the appellant was due to report within 72 hours of the imposition of the CBO but reported late on 13 August 2025 via telephone. Further, the appellant was required to report on 20 August 2025 but failed to do so and that numerous subsequent attempts to contact her, including a home visit, were unsuccessful. The appellant had not been in contact with Community Corrections since 13 August 2025. 9 In mitigation, counsel for the appellant referred to the early plea of guilty by the appellant and that she had spent one night in custody. Counsel observed that the appellant was the carer of her 29-year-old son who suffers from schizophrenia. In respect to the appellant's CBO, counsel observed that whilst she completed the initial requirements, she missed the subsequent appointment due to domestic violence which she informed the Community Corrections Officer about. Further, the appellant missed the subsequent appointment because she thought she had a warrant, so she attended court. Counsel observed that the appellant was remorseful for her offending. -- 5 of 15 -- [2026] WASC 180 MCGRATH J Page 6 10 On 10 November 2025, the learned Magistrate imposed a term of imprisonment of 6 months suspended for 12 months in respect to charge AR 17409/2025 and a term imprisonment of 2 months suspended for 12 months in respect to charge AR 17410/2025. The learned Magistrate ordered that the terms of imprisonment be served concurrently. Therefore, the total effective sentence imposed was 6 months' imprisonment suspended for 12 months. 11 In imposing sentence, the learned Magistrate stated that the offending occurred whilst the appellant was subject to the CBO and therefore this was an aggravating factor.1 The learned Magistrate considered the breach and determined that the appropriate disposition was that the appellant continue on the CBO.2 12 The learned Magistrate gave the appellant a 25% discount pursuant to s 9AA of the Sentencing Act for a plea of guilty at the first reasonable opportunity.3 Her Honour referred to the appellant's continual use of methylamphetamine finding that it was 'very clear' that the appellant needed assistance with her drug addiction to ensure that she did not re-offend.4 13 On 28 January 2026, the appellant filed an application to correct the sentence pursuant to s 37(1) of the Sentencing Act on the basis that the sentence imposed was contrary to s 86 of the Sentencing Act. 14 On 18 February 2026, the application was mentioned before her Honour. Her Honour ordered that the prosecutor and the appellant file submissions in respect to the correction of sentence. 15 On 16 March 2026, the learned Magistrate corrected the sentence pursuant to s 37(3) of the Sentencing Act, by increasing the term of imprisonment on charge AR 17409/2025 to 6 months and 1 day imprisonment suspended for 12 months. The learned Magistrate stated that at the time of imposing the term of imprisonment she always intended to impose the minimum term available but that she 'unfortunately failed to pronounce the minimum term of six months and one day.'5 1 ts 6 (10/11/2025). 2 ts 7 (10/11/2025). 3 ts 6 (10/11/2025). 4 ts 6 (10/11/2025). 5 ts 6 (16/03/2026). -- 6 of 15 -- [2026] WASC 180 MCGRATH J Page 7 16 In correcting the sentence by increasing the term of imprisonment to 6 months and 1 day, the learned Magistrate stated that her 'conclusions' at the time of imposing the sentence on 10 November 2025, were as follows: 1. A sentence of imprisonment was the appropriate disposition in order to protect the community. 2. The appellant was not going to cease offending without serious intervention given that she continued to come before the court for dishonesty and drug charges despite having been previously given fines and community orders. 3. The appellant had made no gains on the CBO and had not reported as required. 4. The threat of an activation of a suspended term of imprisonment might be the only deterrence to the appellant from further offending and might provide motivation towards rehabilitation. Appeal grounds and relevant principles 17 The appellant appeals on the following three grounds: Ground 1 The learned Magistrate erred in law by imposing a six month and one day term of imprisonment on MC AR 17409/2025 as a mandatory minimum pursuant to section 86 of the Sentencing Act 1995 (WA) rather than properly exercising her sentencing discretion. Particulars i. The Magistrate first determined that a suspended term of imprisonment was appropriate as to penalty type without regard to the length of the term; ii. Only after finding that a suspended term of imprisonment was appropriate did her Honour consider the appropriate length of that term; iii. Given that section 86 prohibits a total effective term of six months or less, the Magistrate imposed six months and one day to avoid contravening that prohibition; and iv. Had section 86 prohibited shorter terms, the Magistrate would have imposed a term less than six months and one day. -- 7 of 15 -- [2026] WASC 180 MCGRATH J Page 8 Ground 2 1. The learned Magistrate imposed a sentence of six months and one day (suspended for 12 months) on MC AR 17409/2025 which was excessive both as to type and length, having regard to all relevant considerations including: Particulars i. The offence concerned possessing 0.01g of methylamphetamine; ii. The maximum penalty of a $2,000 fine or 2 years imprisonment or both (Misuse of Drugs Act 1981 (WA) s 34(1)(e); iii. The appellant plead guilty at the first reasonable opportunity; and iv. The penalty was outside the standards of sentencing usually imposed with respect to simple possession of methylamphetamine involving a fraction of a gram. Ground 3 The learned Magistrate acted without jurisdiction by increasing the six- month term of imprisonment (suspended for 12 months) imposed for MC AR 17409/2025 to six months and one day (suspended for 12 months) pursuant to s 37(3) of the Sentencing Act 1995 (WA). Particulars i. Section 37(3) of the Sentencing Act empowers a Court to correct its order imposing a sentence where it contains a clerical mistake or an error arising from an accidental slip or omission. ii. The learned Magistrate had decided during sentence that the appellant 'should be subject to the minimum term available' (ts 16/3/2026 at 5). iii. The learned Magistrate however failed to 'pronounce the minimum term of six months and one day' (TS 16/3/2026 at 5 - 6) by imposing a sentence of six months (albeit suspended for 12 months). iv. The learned Magistrate was not mistaken as to the length of the term to be imposed but rather the effect of s 86 of the Sentencing Act. -- 8 of 15 -- [2026] WASC 180 MCGRATH J Page 9 v. Therefore, there was no clerical mistake or an error arising from an accidental slip or omission but rather an error of law which cannot be corrected pursuant to s 37(3) of the Sentencing Act. vi. Therefore, s 37(3) was not enlivened and the learned Magistrate was functus officio. 18 This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.6 An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.7 19 The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.8 A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.9 20 The Court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.10 Section 14(2) of the Criminal Appeals Act provides that 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. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the Court determines that a different sentence should have been imposed.11 Assessment of grounds of appeal Ground 2 21 Given that ground 2 is conceded by the respondent, I will turn to that ground first. 22 By ground 2, the appellant contends that the sentence imposed was manifestly excessive. A sentence may be manifestly excessive because 6 Criminal Appeals Act 2004 (WA) s 9(1). 7 Criminal Appeals Act 2004 (WA) s 8. 8 Criminal Appeals Act 2004 (WA) s 9(2). 9 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA). 10 Criminal Appeals Act 2004 (WA) s 14. 11 Roberts v The State of Western Australia [2014] WASCA 239 [47]. -- 9 of 15 -- [2026] WASC 180 MCGRATH J Page 10 the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. To succeed on a ground pleading that a sentence is manifestly excessive requires the Court to be satisfied that the sentence is unreasonable or plainly unjust.12 23 The appellant contends that the imposition of a sentence of imprisonment, whether immediate or suspended, was not within the learned Magistrate's discretion. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one which was open in the exercise of a sound sentencing discretion. The appellant submits that the appropriate disposition in the Magistrates Court was a CBO. 24 Where a sentence is said to be manifestly excessive as to type, the question for this Court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all the circumstances, to be positively satisfied that all the sentencing options listed before that type of sentence in s 39(2) of the Sentencing Act were not appropriate.13 Pursuant to s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. 25 To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.14 The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. There is no single correct sentence. What is important is the unifying principles which sentences in comparable cases reveal and reflect. 26 In considering ground 2, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence, and the magistrate must be allowed as 12 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325. 13 HNA v The State of Western Australia [2016] WASCA 165 [30]. 14 Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613. -- 10 of 15 -- [2026] WASC 180 MCGRATH J Page 11 much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.15 27 I now turn to consider the factors in determining whether the sentence imposed by the learned Magistrate was manifestly excessive. 28 The maximum penalty for the offence of simple possession of a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act is 2 years' imprisonment and/or a $2,000 fine. The maximum penalty for possession of drug paraphernalia in or on which there was a prohibited drug contrary to s 7B of the Misuse of Drugs Act is 3 years' imprisonment and/or a $36,000 fine. 29 The circumstances of the offending involved the appellant having possession of only 0.01 g of methylamphetamine for personal use. It was an accepted fact at sentencing that the appellant has a drug addiction. Whilst methylamphetamine is considered as a more serious prohibited drug compared to other illicit substances, it must be understood that the inherent seriousness of methylamphetamine arises from its supply and thereby having a significant detrimental effect in the community. I reiterate the appellant was not supplying but regrettably, suffers from an addiction to that drug. 30 The appellant made full admissions to the police at the time of seizure. The appellant readily accepted her possession and gave an explanation to the police officer upon her arrest. 31 Turning to the personal circumstances of the appellant, she was 44 years of age at the time of the offending. The offending occurred in the context of a drug addiction exacerbated by domestic violence. The appellant is the carer of her 29-year-old son who suffers from schizophrenia. 32 The appellant has a lengthy criminal record including three previous convictions for possessing methylamphetamine and nine convictions for possessing drug paraphernalia. The appellant has convictions for a significant number of dishonesty offences including stealing, gaining benefits by fraud and possession of stolen property. There are limited convictions for violence but the appellant has convictions for common assault and assault occasioning harm. 15 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. -- 11 of 15 -- [2026] WASC 180 MCGRATH J Page 12 33 The appellant committed the offences whilst subject to the CBO which was imposed on 7 August 2025. The CBO was imposed in respect to offences of dishonesty and possessing methylamphetamine and drug paraphernalia. The appellant did not satisfactorily engage with the requirements of the CBO during the short period prior to her breaching the order. 34 The significant factor in mitigation was the appellant's plea of guilty at the first reasonable opportunity. The learned Magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act. The appellant accepted responsibility for her offending and was remorseful. 35 I have considered the range of sentences customarily imposed for this type of offending. The appellant referred to a number of authorities, including: Dias v The State of Western Australia16 and YDN v The State of Western Australia.17 The respondent also referred to additional authorities: Mitchell v Purvis,18 Miller v Byrne,19 Garlett v The State of Western Australia,20 Pennetta v The State of Western Australia,21 Karakuyu v The State of Western Australia,22 Vulin v Kirkman23 and Snadden v O'Keefe.24 36 I am satisfied that the imposition of a term of imprisonment of 6 months and 1 day for possessing 0.01 g of methylamphetamine is contrary to the range of sentences customarily imposed. The occasions where a term of imprisonment has been imposed has arisen when the learned judicial officer was sentencing an offender in respect to a number of offences and the total effective sentence exceeded 6 months imprisonment. In such cases, judicial officers have imposed a short term of imprisonment for the possession of small amounts of a prohibited drug for personal use, which forms part of a range of terms of imprisonment. 37 The appellant is a 45-year-old aboriginal woman, who has been subject to domestic violence and cares for her son who has schizophrenia. Regrettably, the appellant is challenged by her drug 16 Dias v The State of Western Australia [2017] WASCA 49. 17 YDN v The State of Western Australia [2018] WASCA 62. 18 Mitchell v Purvis [2016] WASC 351. 19 Miller v Byrne [2016] WASC 236. 20 Garlett v The State of Western Australia [2016] WASCA 80. 21 Pennetta v The State of Western Australia [2013] WASCA 234. 22 Karakuyu v The State of Western Australia [2012] WASCA 75. 23 Vulin v Kirkman [2012] WASC 331. 24 Snadden v O’Keefe [2009] WASC 26. -- 12 of 15 -- [2026] WASC 180 MCGRATH J Page 13 addiction. There appears to be a nexus between that addiction and her offending, in particular, her convictions for dishonesty. The appellant committed the offences whilst serving a CBO. Whilst the appellant has a criminal record, she has not previously been incarcerated. 38 I am satisfied that the term of imprisonment of 6 months and 1 day imposed in respect to charge AR 17409/2025 is manifestly excessive. Accordingly, I grant leave to appeal on ground 2 and allow the appeal on that ground. Therefore, it is necessary to re-sentence the appellant. Grounds 1 and 3 39 The respondent submitted that if the appeal was allowed on ground 2, it was not necessary to determine grounds 1 and 3. Counsel for the appellant submitted that the court should consider all grounds. Given that I have allowed the appeal on ground 2 and the appellant must be re-sentenced, it is not necessary to consider grounds 1 and 3. Ultimately, this appeal concerns the determination of the sentence that should be imposed on the appellant. The appellant is afforded justice by the determination of ground 2. Re-sentencing 40 Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence. 41 I have outlined and considered all relevant sentencing considerations when determining ground 2. 42 A term of imprisonment is not an available sentencing disposition. The appropriate sentence is a fine. I am mindful that the appellant has accumulated fines, with approximately $5,000 in enforceable fines having been registered with the Fines Enforcement Registry.25 However, the fact that the appellant has accumulated fines does not mean that a more serious penalty than a fine must be imposed in this case.26 If the appropriate sentencing disposition is a fine, it is an error 25 Written submissions of prosecutor dated 11 March 2026 filed with Magistrates Court for correction of sentence. 26 Turvey v Clifton [2021] WASC 322 [17] (Hall J). -- 13 of 15 -- [2026] WASC 180 MCGRATH J Page 14 to impose a sentence of imprisonment simply because fines are unpaid.27 I must though be mindful of the capacity of the appellant to pay the fine imposed. 43 In determining the quantum of the fine, I must take into account the fact that the appellant has now substantially completed her suspended term of imprisonment. 44 Taking into account all relevant sentencing factors, I impose a fine of $100 in respect to charge AR 17409/2025 and a fine of $100 in respect to charge AR 17410/2025. I have reduced the quantum of the fines given that the appellant has substantially completed the sentence imposed by the learned Magistrate. Conclusion 45 Accordingly, I grant leave to appeal on ground 2 and allow the appeal. I set aside the terms of imprisonment imposed on charges AR 17409/2025 and AR 17410/2025 and in lieu thereof impose fines in the amount of $100 and $100 respectively. It is not necessary to consider grounds 1 and 3 and therefore, I do not grant leave to appeal on those grounds. 27 Indich v Bracknell [2005] WASC 225. -- 14 of 15 -- [2026] WASC 180 MCGRATH J Page 15 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JK Associate to the Hon Justice McGrath 8 MAY 2026 -- 15 of 15 --