WOOLAWAY -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 179

[2026] WASC 179 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : WOOLAWAY -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 179 CORAM : HOWARD J HEARD : 29 APRIL 2026 DELIVERED : 7 MAY 2026 FILE NO/S : SJA 1014 of 2026 BETWEEN : CALLUM WOOLAWAY Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent FILE NO/S : SJA 1017 of 2026 BETWEEN : CALLUM WOOLAWAY Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent FILE NO/S : SJA 1018 of 2026 BETWEEN : CALLUM WOOLAWAY Appellant AND -- 1 of 22 -- [2026] WASC 179 Page 2 DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : CHIEF MAGISTRATE HEATH File Number : AR 2191/2025, FR1093/2025, PE10088/2025, PE 49640/2025, PE 50259/2025 Catchwords: Criminal law - Three single judge appeals - Appeals against sentences imposed for offences against s 49 of the Road Traffic Act 1974 (WA) and s 378 of the Criminal Code 1913 (WA) - Leave to commence appeal out of time required for two of the appeals and granted - Where specific errors asserted in each appeal - Whether concessions made about the specific errors should be accepted - Where the appellant pleaded guilty and a discount was applied - Where the Magistrate erred in the mathematical calculation of the sentence or by increasing the sentence to circumvent the prohibition in s 86 of the Sentencing Act 1995 (WA) -Where no discount was provided for the appellant’s early pleas of guilty - Where length of suspended term increased - Leave to appeal granted - Appeals upheld - Sentences set aside - Appellant re-sentenced Legislation: Criminals Appeal Act 2004 (WA) s 6, s 7, s 8, s 9, s 10, s 14 Criminal Code 1913 (WA) s 378, s 462, s 462A Road Traffic Act 1974 (WA) s 49 Sentencing Act 1995 (WA) s 9AA, s 80, s 86 Result: Leave to appeal out of time granted for two appeals Leave to appeal granted and appeals upheld Sentences set aside Appellant re-sentenced to total effective sentence of 13 months Appellant eligible for parole -- 2 of 22 -- [2026] WASC 179 Page 3 Category: B Representation: SJA 1014 of 2026 Counsel: Appellant : Ms S H King Respondent : Ms N R Sinton Solicitors: Appellant : Legal Aid (WA) Respondent : Director of Public Prosecutions (WA) SJA 1017 of 2026 Counsel: Appellant : Ms S H King Respondent : Ms N R Sinton Solicitors: Appellant : Legal Aid (WA) Respondent : Director of Public Prosecutions (WA) SJA 1018 of 2026 Counsel: Appellant : Ms S H King Respondent : Ms N R Sinton Solicitors: Appellant : Legal Aid (WA) Respondent : Director of Public Prosecutions (WA) -- 3 of 22 -- [2026] WASC 179 Page 4 Case(s) referred to in decision(s): Hanley v The Director of Public Prosecutions [2025] WASC 66 Indich v Bracknell [2005] WASC 225 NSA v The State of Western Australia [2023] WASCA 53 Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Smith v The State of Western Australia [2025] WASCA 22 -- 4 of 22 -- [2026] WASC 179 HOWARD J Page 5 HOWARD J: 1 In overview, the appellant seeks leave to appeal against three 'sets' of sentences, namely those imposed: 1. on 17 February 2025, in the Magistrates Court at Fremantle by Magistrate Hall in respect of an offence - which appeal is SJA 1017 of 2026 (SJA 1017); 2. on 11 March 2025, in the Magistrates Court at Perth by Magistrate Young in respect of two offences - which appeal is SJA 1018 of 2026 (SJA 1018); and 3. on 29 January 2026, in the Magistrates Court at Perth by Chief Magistrate Heath in respect of two 'new' offences and in respect of three previous offences (in respect of which Magistrates Hall and Young respectively had imposed suspended sentences) - which appeal is SJA 1014 of 2026 (SJA 1014). 2 In respect of each of the above sets of sentences, the appellant asserts, at the least, specific errors on the part of each of the sentencing Magistrates. Relevant provisions for this appeal 3 The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a) and (b) of the Criminal Appeals Act 2004 (WA). 4 Section 7(1) provides as follows: (1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. 5 The sentences imposed are 'decisions' within s 6(f) of the Criminal Appeals Act. 6 By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of his appeal grounds. 7 By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.1 1 Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56]. -- 5 of 22 -- [2026] WASC 179 HOWARD J Page 6 8 Unless leave is given on at least one ground, the appeal is to be taken to have been dismissed.2 9 Further, the appellant also, by reason of s 10(3) of the Criminal Appeals Act, requires leave to commence his appeal in SJA 1017 and SJA 1018. SJA 1017 of 2026 10 In SJA 1017, the appellant seeks leave to appeal against the sentence which was imposed by Magistrate Hall on 17 February 2025 in respect of charge FR 1093 of 2025. The appellant had pleaded guilty to that offence.3 His Honour imposed a sentence of 6 months and 1 day imprisonment, suspended for 12 months.4 11 On that day, the appellant was also sentenced in respect of charge FR 1092 of 2025 to which the appellant had also pleaded guilty.5 His Honour imposed a fine in respect of that charge and there is no challenge nor appeal to that sentence. Having said that, as will become apparent, it is relevant to note that this was a stealing charge committed on 26 December 2024 by the taking of a power bank.6 12 As noted, the appellant requires an extension of time in which to appeal and has sought leave supported by his affidavit made on 9 March 2026 and filed on 16 March 2026. With respect, quite properly, the respondent did not oppose that leave being granted.7 I would grant that leave. In the circumstances, I do not need to recite here the unchallenged factual matters deposed to in the appellant's affidavit. 13 The appellant's grounds of appeal in SJA 1017 are: 1. The learned Magistrate erred by imposing a sentence of 6 months and 1 day, which was erroneously long as it was imposed after applying a 25% discount from a sentence of 8 months imprisonment. 2. The learned Magistrate erred in law by imposing a suspended term of imprisonment without being satisfied it was not 2 Criminal Appeals Act (WA) s 9(3). 3 ts, Western Australia Police v Woolaway, Magistrates Court of Western Australia at Fremantle, 17 February 2025, 2. 4 ts, 17 February 2025, 4. 5 ts, 17 February 2025, 2. 6 ts, 17 February 2025, 2. 7 ts 3. -- 6 of 22 -- [2026] WASC 179 HOWARD J Page 7 appropriate to use a sentencing option listed before section 39(2)(f) Sentencing Act 1996.8 14 The first ground of appeal is based on the Magistrate's sentencing remarks where his Honour said: HIS HONOUR: … For the stealing of LEGO [FR 1093 of 2025], I would have sentenced you to eight months in prison, I'm going to reduce that by 25 per cent because of your early plea of guilty to six months and one day imprisonment. That will be suspended for the next 12 months. So for the next 12 months, you've got to stay out of trouble.9 15 The appellant submits that: [16] Whilst His Honour was not obliged to state a starting point before a reduction for a plea of guilty pursuant to s 9AA Sentencing Act, His Honour did. To reduce a sentence of eight months imprisonment by 25% results in a sentence of six months precisely and not six months and one day.10 16 The respondent concedes that in the above quoted passage, his Honour made a specific error. That is, as I understood it, either that his Honour erred in the mathematical calculation11 and, or, secondly as the respondent submits: [9] Section 86 of the Sentencing Act prohibits the imposition of a sentence of 6 months' imprisonment, suspended or otherwise. Increasing a sentence of imprisonment to circumvent the prohibition in s 86 is an error.12 (citations omitted) 17 It was common ground that if the Magistrate had indicated that the 'starting point' was a sentence of approximately 8 months in prison, or something to that effect, then Ground 1 would not disclose an appellable error. 18 His Honour was not required to state the starting point to which the discount was applied: Smith v The State of Western Australia [2025] WASCA 22 (Buss P, Vaughan JA, Smith AUJ) [68]. 8 Appeal notice filed in SJA 1017 of 2026 on 9 March 2026. 9 ts, 17 February 2025, 4; Appellant's outline of submissions [SJA 1017] filed in SJA 1017 of 2026 on 20 March 2026 (Appellant's SJA 1017 submissions) [15]. 10 Appellant's SJA 1017 submissions [16]. 11 ts 8; Smith v The State of Western Australia [2025] WASCA 22 [69] - [73] (Buss P, Vaughan JA & Smith AUJ). The mathematical errors or inconsistencies indicated to the Court of Appeal that there was an unacceptable risk that the exercise of the sentencing discretion had miscarried. 12 Respondent's outline of submissions made on 17 April 2026 and filed on 20 April 2026 (Respondent's joint submissions). -- 7 of 22 -- [2026] WASC 179 HOWARD J Page 8 19 However, in my view, there is no reason to read his Honour's sentencing remarks in this case other than according to their natural and ordinary meaning. That is, his Honour identified a definite starting point of 8 months and not an approximate starting point. 20 Read in that way, the impugned reasoning leads me to conclude that his Honour erred in either: making a mathematical error, which if not made would have brought s 86 of the Sentencing Act 1995 (WA) into play, or, alternatively, his Honour erred in adding the one day to avoid the operation of s 86 of the Sentencing Act: Indich v Bracknell.13 21 With respect, I consider then that the respondent's concession on Ground 1 is both appropriately made and correct. I accept the concession. 22 In those circumstances, then, I do not consider that it is necessary for me to determine Ground 2 and I have not done so. 23 The respondent did not oppose the appellant being granted leave to appeal (separately from the extension of time) and I grant the appellant leave to appeal on both of his grounds. 24 I would allow the appeal in SJA 1017 on Ground 1 and, pursuant to s 14(1)(c) of the Criminal Appeals Act, set aside the sentence which was imposed in relation to charge FR 1093 of 2025. SJA 1018 of 2026 25 This appeal concerns two sentences imposed on 11 March 2025 by Magistrate Young in respect of: 1. AR 2191 of 2025 - 8 months' imprisonment, suspended for 12 months; and 2. PE 10088 of 2025 - 2 months' imprisonment cumulative, suspended for 12 months. 26 As noted, the appellant requires an extension of time in which to appeal and has sought leave supported by his affidavit made and filed on 9 March 2026. Again, with respect, quite properly the respondent did not oppose such leave being granted. I would grant that leave. In the circumstances, I do not need to recite here the unchallenged factual matters deposed to in the appellant's affidavit. 13 Indich v Bracknell [2005] WASC 225 [8], [9] and [12] (McKechnie J). -- 8 of 22 -- [2026] WASC 179 HOWARD J Page 9 27 The appellant's ground of appeal is: 1. The learned Magistrate erred by not providing a discount for the appellant's early pleas of guilty pursuant to s 9AA Sentencing Act 1996 [sic].14 28 It was common ground that: 1. the offence in charge AR 2191 of 2025 occurred on 27 December 2024; 2. the appellant was first before the Magistrates Court on 28 February 2025 on that charge; 3. on that date he pleaded guilty; and 4. the matter was adjourned to 11 March 2025 for sentencing. 29 It was also common ground that: 1. the offence in respect of charge PE 10088 of 2025 occurred on 14 February 2025; 2. the appellant appeared for the first time in the Magistrates Court on that charge on 11 March 2025; and 3. he pleaded guilty on that day. 30 The respondent accepted that the two pleas of guilty were entered at the earliest reasonable opportunity.15 I agree that is the case. 31 The respondent conceded that the Magistrate made an express, material error, in that: [18] … the Magistrate did not expressly or implicitly refer to the mitigating effect of the appellant's plea. Failure to refer to the mitigating effect of a plea of guilty is often an indication that it has been overlooked. Failure to consider and apply a discount for a plea of guilty is a material error. Where material express error is demonstrated - enlivening an appeal court's jurisdiction to intervene - the court does not assess whether and to what extent the error influenced the sentencing outcome. The duty of the appeal court in these circumstances is to exercise the sentencing discretion afresh.16 (citations omitted) 14 Appeal notice filed in SJA 1018 of 2026 on 9 March 2026. 15 Respondent's joint submissions [17]. 16 Respondent's joint submissions. -- 9 of 22 -- [2026] WASC 179 HOWARD J Page 10 32 The transcript of the Magistrate's sentencing remarks bears out the respondent's statement that there was no reference by his Honour to the appellant's guilty pleas, nor to the mitigating effect of those pleas, or to the enlivening of the operation of s 9AA of the Sentencing Act. 33 I consider, with respect, that the respondent properly made this concession and that he was correct to do so. 34 For those reasons, I would grant the appellant the leave he requires to appeal out of time, and further grant him leave to appeal. 35 I uphold the appeal and set aside the sentences imposed, pursuant to s 14(1)(c) of the Criminal Appeals Act, on 11 March 2025 in respect of charges AR 2191 of 2025 and PE 10088 of 2025. SJA 1014 of 2026 36 On 31 January 2026, the Chief Magistrate sentenced the appellant for a number of 'new' offences and also dealt with the appellant, pursuant to s 80 of the Sentencing Act, for the offences in respect of which the previous two Magistrates had imposed suspended sentences. 37 SJA 1014 seeks leave to appeal against the total effective sentence which was imposed by Chief Magistrate Heath on 29 January 2026 in respect of two 'new' charges being: 1. PE 49640 of 2025 - 6 months' imprisonment cumulative; and 2. PE 50259 of 2025 - 6 months' imprisonment concurrent, and in respect of the three earlier charges (in respect of which suspended terms of imprisonment had been imposed), namely: 3. AR 2191 of 2025 - head sentence of 8 months' imprisonment; 4. FR 1093 of 2025 - 4 months' imprisonment cumulative; and 5. PE 10088 of 2025 - 6 months' imprisonment concurrent, for a total effective sentence of 18 months' imprisonment to be served immediately. -- 10 of 22 -- [2026] WASC 179 HOWARD J Page 11 38 Also on that day, the Chief Magistrate imposed the following sentences, but in respect of which there is no challenge nor appeal: 1. FR 5914 of 2025 - $250 fine; 2. PE 49637 of 2025 - $250 fine; 3. PE 49638 of 2025 - $250 fine; and 4. PE 50258 of 2025 - $250 fine. 39 Notwithstanding that, it is relevant to note that the offence in PE 50258 of 2025 was committed on 25 August 2025 and was a charge of the unlawful possession of a designer hoodie. 40 SJA 1014 was commenced in time. 41 The grounds of appeal in SJA 1014 are: 1. The learned Magistrate erred by ordering the appellant to serve a sentence of 6 months' imprisonment on PE 10088 of 2025 (stealing Lego the value of $100) when that was not open at law. 2. The total sentence of 18 months' imprisonment 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.17 42 In respect of Ground 1, it may be remembered that Magistrate Young on 11 March 2025 had imposed 2 months' imprisonment (to be served cumulatively), suspended for 12 months, in respect of PE 10088 of 2025. 43 The respondent conceded that there was an express error made by his Honour as identified in Ground 1.18 44 The respondent submitted: [22] … that in imposing 6 months' imprisonment in relation to PE 10088 of 2025, the Magistrate has erred. An offender who comes to be dealt with following breach of a suspended sentence is not resentenced. Rather, they are 'dealt with' by one of the methods set out in s 80(1) of the Sentencing Act [sic], that is, by an order that they are to serve all or part of 17 Appeal notice filed in SJA 1014 of 2026 on 25 February 2026. 18 Respondent's joint submissions [22]. -- 11 of 22 -- [2026] WASC 179 HOWARD J Page 12 the term previously suspended, or by an order substituting a new suspension period, or by a fine. There is no power in the Sentencing Act to increase the length of the previously suspended term when ordering it be served.19 45 Having regard to s 80(1) of the Sentencing Act, again with respect, I consider the respondent's concession on Ground 1 is both appropriately made and correct. I accept the concession; grant the appellant leave to appeal; and uphold Ground 1. 46 In respect of Ground 2, the respondent does not accept that the sentence imposed infringed the first limb of the totality principle.20 I consider that I do not need to determine Ground 2, and I have not done so. 47 However, the respondent submitted that where the sentencing discretion miscarries in relation to one or more of the sentences forming part of the total effective sentence, then the total effective sentence must be set aside and the Court must re-exercise the sentencing discretion for itself.21 That submission cited, and is consistent with, the re-statement of the established principle by the Court of Appeal in NSA v The State of Western Australia.22 48 I accept that is the correct position. 49 Having upheld the appeal, pursuant to s 14(1)(c) of the Criminal Appeals Act, I would set aside the sentences imposed on 29 January 2026 in respect of each of the five charges. Re-sentencing the appellant 50 The parties proceeded on the basis that if the appellant's appeals succeeded then I should proceed to re-sentence the appellant pursuant to s 14(1)(d) of the Criminal Appeals Act. 51 I have taken the material facts for each of the charges in respect of which I am to re-sentence from the prosecution notices and the facts which were as read to the Court on 29 January 2026 and accepted by the appellant. 19 Respondent's joint submissions . 20 Respondent's joint submissions [25]. 21 Respondent's joint submissions [26]. 22 NSA v The State of Western Australia [2023] WASCA 53 [57] (Mazza JA); [99] (Beech JA); and [134] (Vaughan JA). -- 12 of 22 -- [2026] WASC 179 HOWARD J Page 13 AR 2191 of 2025 52 This was a charge contrary to ss 49(1)(a) and (3)(b) of the Road Traffic Act 1974 (WA) of driving a motor vehicle while disqualified from holding a driver's licence. 53 At 5.59 pm on 27 December 2024, the appellant drove a Ford Territory on Michel Crescent, Gosnells. The appellant was stopped, and it was ascertained he was not authorised to drive a motor vehicle and was, in fact, disqualified from holding or obtaining a driver's licence. The vehicle was impounded and nil explanation was provided. 23 FR 1093 of 2025 54 This was a stealing charge in contravention of s 378 of the Criminal Code 1913 (WA) in respect of Lego to the value of $1,699.99 at Booragoon. 55 On 22 January 2025 at 2.50 pm, the appellant was at the Lego Store, Booragoon. The appellant entered the store, selected items from the shelves, namely a Lego Eiffel Tower and Lego Lord of the Rings set, with a total value of $1,699.99. The appellant left the store, making no attempt to pay for the items. The offence was captured on CCTV. The appellant declined to participate in an audio-visual record of interview and provided no explanation.24 PE 10088 of 2025 56 This was a charge of stealing three sets of Lego to the value of $100 contrary to s 378 of the Criminal Code. 57 At 4.52 pm on 14 February 2025, the appellant entered K-Mart Hay Street, browsed the store, picked up items off the shelf, carried these items around the store, was stopped by security at a checkpoint, was challenged by security for a receipt, and stated he had exchanged the items. The appellant proceeded to leave the store with the items, making no attempt to pay. Seven minutes later, the appellant was stopped and arrested by police at Raine Square, spoken to and made full admissions to stealing, providing the explanation: 'I stole it, I'm sorry'.25 23 Prosecution Notice dated 28 December 2024; ts, Western Australia Police v Woolaway, Magistrates Court of Western Australia at Perth, 29 January 2026, 8. 24 Prosecution Notice dated 31 January 2025; ts, 17 February 2025 3; ts, 29 January 2026, 8. 25 Prosecution Notice dated 14 February 2025; ts, 29 January 2026, 8. -- 13 of 22 -- [2026] WASC 179 HOWARD J Page 14 PE 49640 of 2025 58 This was a charge of stealing three Dyson vacuum cleaners to the value of $2,500, contrary to s 378 of the Criminal Code. 59 On 21 July 2025 at 12.55 pm, the appellant was at Officeworks Innaloo. The appellant was seen selecting three Dyson vacuum cleaners from the shelves and walking into an aisle before concealing them into an empty cardboard box. The appellant walked through the main entrance with a trolley containing the box filled with vacuums, making no attempt to pay. The value of the items totalled $2,500 with the entirety of the incident captured on CCTV. 60 On 15 August 2025, the appellant was arrested on suspicion of stealing, and an interview was conducted on body-worn camera. The appellant made full admissions to stealing the items providing the explanation: 'I needed money, so I stole them and sold them on Marketplace', and was released to summons. .26 PE 50259 of 2025 61 This is a charge of stealing a drone to the value of $469 contrary to s 378 of the Criminal Code. 62 At 11.00 am on 25 August 2025, the appellant attended JB Hi-Fi Karrinyup, entered through the front entrance with a co-offender and headed to the content creator area, where he selected and concealed a Zero-X Pro Levian full HD drone. The appellant exited the store via the front entrance without making any attempt to pay. The incident was captured on CCTV and the stolen property was later recovered from the co-offender.27 Principles of sentencing 63 I am required to impose a sentence which is appropriate, taking into account the seriousness of the offence. I must determine the seriousness of the offence by taking into account the statutory maximum penalty, the circumstances in which the offence was committed, the factors which increase the penalty to be imposed, and the mitigating factors, which might reduce the penalty to be imposed. 26 Prosecution Notice dated 18 August 2025; ts, 29 January 2026, 3. 27 Prosecution Notice dated 25 August 2025; ts, 29 January 2026, 2. -- 14 of 22 -- [2026] WASC 179 HOWARD J Page 15 64 Also, I must not use a more severe sentencing option unless I am satisfied it is not appropriate to use any one of the less severe options available. 65 I cannot impose a term of imprisonment unless that is the only option available to me. Maximum penalties 66 The maximum sentence for an offence against ss 49(1)(a) and (3)(b) of the Road Traffic Act, being the offence charged by AR 2191 of 2025, is a fine of not less than 8 penalty units or more than 40 penalty units and imprisonment for not more than 12 months for a first offence. 67 It is accepted that the appellant is subject to five separate current court revocations for previous offences. 68 The maximum sentence for a subsequent offence against ss 49(1)(a) and (3)(b) of the Road Traffic Act is a fine of not less than 20 penalty units or more than 80 penalty units, and imprisonment for not more than 18 months. 69 For any offence under ss 49(1)(a) and (3)(b) of the Road Traffic Act the Court must also order that the offender be disqualified from holding or obtaining a driver's license for a period of not less than 9 months and not more than 3 years. 70 The maximum sentence for an offence against s 378 of the Criminal Code, being the offences charged by FR 1093 of 2025, PE 10088 of 2025, PE 49640 of 2025, and PE 50259 of 2025, is a term of imprisonment for 7 years. 71 Where an offence against s 378 of the Criminal Code is dealt with summarily and the value of the property in question does not exceed $1,000, being the offences charged by PE 10088 of 2025 and PE 50259 of 2025, the maximum penalty is a fine of up to $6,000.28 It is common ground that in the present circumstances as the appellant has been relevantly convicted of at least two stealing offences the summary conviction penalty does not apply.29 28 Criminal Code s 426(4). 29 Criminal Code s 426A(2)(a) and (3). -- 15 of 22 -- [2026] WASC 179 HOWARD J Page 16 72 Where the value of the property in question exceeds $1,000 but does not exceed $50,000, being the offences charged by FR 1093 of 2025 and PE 49640 of 2025, the maximum penalty is imprisonment for 2 years and a fine of up to $24,000.30 Circumstances of offending 73 I have taken the circumstances of offending to be as per the material facts set out above. Assessment of the seriousness of offending 74 While not insignificant, the charges in FR 1093 of 2025 and PE 49640 of 2025 are, clearly, not at the most serious end of such offending. The charges in PE 10088 of 2025 and PE 50259 of 2025 are comparatively minor. 75 However, the charge in AR 2191 of 2025 may be considered to be moderately serious. Personal circumstances 76 The following matters are taken from the appellant's outline of submissions in SJA 101431 and from the appellant's affidavit filed in support of his applications in SJA 1017 and SJA 1018 for leave to appeal out of time. They were not challenged. 77 The appellant was 28 at the time of sentencing and about that age at the time of the relevant offending; having been born on 26 March 1997. 78 The appellant has struggled with a long-term drug addiction which had been the reason for his offending. 79 The appellant was introduced to methylamphetamine at the age of 18 years, by his then girlfriend's mother. He began smoking methylamphetamine, then moved to intravenous use. 80 In 2021 - 2023, the appellant was able to get clean from methylamphetamine and travelled Australia, and worked. 81 In 2024, the appellant returned to Perth and worked laying linoleum flooring. 30 Criminal Code s 426(2). 31 Appellant's SJA 1014 submissions [16]. -- 16 of 22 -- [2026] WASC 179 HOWARD J Page 17 82 On his way home from work on 23 October 2024, the appellant was hit by a bus as a pedestrian. 83 The appellant sustained a significant injury, which resulted in one of his bones protruding from his leg requiring a skin graft as there was not enough skin on his leg to close the wound. The injury was so severe, the appellant was admitted to hospital for three weeks to undergo surgery and rehabilitation. He was treated for recurring infections. 84 As a result of the accident, he could no longer work, lost his job and lost his income. 85 The appellant also lost his private rental as he could no longer afford to pay the rent. 86 The appellant was homeless after his release from hospital. He was in a lot of pain after the accident and walking was painful. He relapsed into drug use which helped to stop the pain, but led, unsurprisingly, to a decline in his mental health. 87 The appellant's relationship with his partner broke down at this time; she was a key support for him. 88 It may be noted that the dates of the offences are: 1. 27 December 2024 - AR 2191 of 2025; 2. 22 January 2025 - FR 1093 of 2025; 3. 14 February 2025 - PE 10088 of 2025; 4. 21 July 2025 - PE 49640 of 2025; and 5. 25 August 2025 - PE 50259 of 2025. 89 The appellant made significant attempts to change his life after committing those offences and before being sentenced in January 2026. 90 The appellant was able to obtain stable accommodation in the latter half of 2025, and reconnected with his partner. 91 At the time of sentence in January 2026, the appellant was engaged in appointments with a physiotherapist on a weekly basis for leg rehabilitation, and was attending orthopaedic trauma appointments and plastic surgery appointments. -- 17 of 22 -- [2026] WASC 179 HOWARD J Page 18 92 The appellant had been clean from drug use for a period of six weeks prior to sentencing in January 2026, and before that, a period of two months. 93 Whilst the appellant has struggled with drug use, he had not offended in the five months leading up to the sentencing whilst the appellant was on bail. 94 At the time of being sentenced in January 2026, the appellant was scheduled to have surgery five days later. 95 The appellant sought to put before the Court evidence about his current physical condition, the conditions at Hakea prison and his plans for when he is released.32 96 There was no objection to that evidence being received and I have taken it into account. 97 From that evidence I accept that, currently, the appellant is being held in a unit where there are three people to a cell and he is sleeping on the floor at arms-length from the toilet in that cell. 98 More often than not, he is locked in the cell between 20 to 24 hours a day and is fed and toiletted in the cell with the two other inmates. 99 I accept that the appellant's access to medical treatment is extremely limited and that he has had medical appointments cancelled. Further, he is not receiving appropriate pain medication in prison and is in constant pain from the injuries suffered from the bus hitting him. I further accept that because he has been imprisoned, he has not received necessary surgery. That surgery is required because of infection issue which is preventing the bone healing around the bolt which has been placed into the appellant's leg. 100 In those circumstances, I consider, because of his injuries, that prison is more difficult and harsh for him than for the 'ordinary' inmate. And, he is subject to conditions which are harsh and beyond the design and capability of the prison system. 32 That was put before the Court by an affidavit made by his solicitor, Ms King of Legal Aid, made and filed on 28 April 2026. -- 18 of 22 -- [2026] WASC 179 HOWARD J Page 19 Antecedents 101 It is undeniable that while using methylamphetamine as described above, the appellant's criminal record is extensive and includes at least 85 charges of stealing or gaining a benefit by fraud in respect of which he has been fined or imprisoned. 102 Further, I should note that the offending in the charge AR 2191 of 2025 cannot be said to be out of character and the appellant does have in his record other charges of similar or serious traffic offending in the period he was using methylamphetamine. 103 While travelling in New South Wales in 2023, the appellant committed and was sentenced in respect of some offences which were of a comparatively minor nature in that they were dealt with by intensive correction orders. However, most relevantly, they included a shoplifting offence. Appropriately, with respect, the respondent did not seek to place great significance on the New South Wales convictions.33 104 The appellant, while not challenging those New South Wales convictions or the sentences, said they were a result of alcohol abuse rather than methylamphetamine use. This was not said to minimise the offending, but to go to the position that he was not using methylamphetamine for a significant period of time. 105 I would make the same observation about the appellant's criminal record as Tottle J made in Hanley v The Director of Public Prosecutions [2025] WASC 66: [52] The appellant's criminal record is not a factor of aggravation but it highlights three matters. First, the appellant has demonstrated a persistent disregard for the law. Second, fines and community-based orders have proved to be ineffective deterrents. Third, the appellant has a long-standing illicit drug use problem. Risk of re-offending and deterrence 106 It is difficult to be very optimistic about the appellant's prospects of not re-offending. 107 There is every reason to think that if the appellant resumes his drug use and abuse, then he will continue to offend, including by 33 ts 15. -- 19 of 22 -- [2026] WASC 179 HOWARD J Page 20 stealing as he did in respect of the matters before their Honours Magistrates Hall and Young and the Chief Magistrate. 108 There is some cause for optimism based on the appellant having got his life back on track before being hit by the bus; which may be accepted was a very significant blow to the appellant's life and wellbeing. 109 I also accept, without being overly optimistic, that the appellant has shown an ability to be drug-free for significant periods of time and to not offend in such periods. 110 I accept that there was a very significant period of time the appellant was drug-free before being hit by the bus in October 2024 which, I accept, led to his relapse into the use of drugs and the consequent loss of pro-social supports with the consequent impact on his mental health. 111 I accept that on release he will have the support of his mother and will live with her. I accept he intends to seek counselling and that he has a job offer with a friend as a chef. 112 The appellant's terrible antecedents - especially in respect of stealing and like offences - strongly suggest, however, the need for personal deterrence. 113 Further, the appellant's persistent and brazen offending point to the need for general deterrence as well. The community expects that there should be proper consequences for persistent offending when viewed against the appellant's antecedents. Imprisonment 114 In all of the circumstances, I have considered whether a term of imprisonment is the only option available. I have come to the conclusion that it is having regard to the imposition by Magistrates Hall and Young of suspended sentences and, then, the 'new' offending. 115 In respect of each of the five charges that I am re-sentencing the appellant for, I have applied a 25% discount under s 9AA of the Sentencing Act. -- 20 of 22 -- [2026] WASC 179 HOWARD J Page 21 116 I would sentence the appellant as follows: 1. AR 2191 of 2025 - 6 months' imprisonment; 2. PE 10088 of 2025 - 1 month's imprisonment; 3. FR 1093 of 2025 - 4 months' imprisonment; 4. PE 49640 of 2025 - 6 months' imprisonment; 5. PE 50259 of 2025 - 3 months' imprisonment. 117 Because I have sentenced the appellant to more than one term of imprisonment, I must consider the totality principle to decide the total effective sentence. 118 This requires me to consider all of the offending and to ensure that the total effective sentence bears a relationship to the overall criminality viewed in its entirety and having regard to the appellant's personal circumstances. 119 In this respect, I note the respondent's submissions were to the effect the total effective sentence imposed by the Chief Magistrate was a just and proper reflection of the criminality even though it could fairly be described as severe.34 120 In the interests of totality, I would impose the following sentences each to be served cumulatively: 1. AR 2191 of 2025 - reduced to 3 months' imprisonment; 2. PE 10088 of 2025 - no reduction from 1 month imprisonment; 3. FR 1093 of 2025 - no reduction from 4 months' imprisonment; 4. PE 49640 of 2025 - reduced to 4 months' imprisonment; and 5. PE 50259 of 2025 - reduced to 1 month's imprisonment. 121 Taking into account those reductions for totality, I would re-sentence the appellant to a total effective sentence of 13 months with an agreed backdated date of 29 January 2026. 34 Respondent's joint submissions [25] and [34]. -- 21 of 22 -- [2026] WASC 179 HOWARD J Page 22 122 The respondent did not oppose an order making the appellant eligible for parole. I will make an order that the appellant be eligible to be considered for parole. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. TM Associate to Justice Howard 7 MAY 2026 -- 22 of 22 --