WILLIAMS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 307

[2026] WASC 307 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : WILLIAMS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 307 CORAM : MCGRATH J HEARD : 27 JULY 2026 DELIVERED : 27 JULY 2026 PUBLISHED : 29 JULY 2026 FILE NO/S : SJA 1038 of 2026 BETWEEN : TYRON JOHN WILLIAMS Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE J GIBBS File Number : AR 16023 & 16024/24 Catchwords: Criminal appeal - Appeal against sentence - Burglary - Stealing - Jurisdictional error - Double punishment - Express error - Resentencing of appellant -- 1 of 14 -- [2026] WASC 307 Page 2 Legislation: Bail Act 1982 (WA) s 50V, s 51(2a) Criminal Appeals Act 2004 (WA) s 14(2), pt 2 Criminal Code (WA) s 70A(2), s 172(2), s 313(1)(a), s 378, s 401(1)(c), s 417(1) Sentencing Act 1995 (WA) s 9AA, s 11, s 86 Result: Extension of time in which to appeal granted Leave to appeal granted on grounds 1, 2 and 3 Leave to appeal not granted on ground 4 Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : Ms S R Kermath Respondent : Ms N R Sinton Solicitors: Appellant : Svenson Barristers Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Beekman v The State of Western Australia [2022] WASCA 130 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 Johnson v Vander Sanden [2021] WASCA 27 Krijestorac v The State of Western Australia [2018] WASCA 35 Matthews v Director of Public Prosecutions [2022] WASC 426 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Woods v Kingsbury [2019] WASC 336 -- 2 of 14 -- [2026] WASC 307 MCGRATH J Page 3 MCGRATH J: Introduction 1 On 24 March 2025, the appellant was convicted on his own plea of two charges, namely being in the place of another without that person's consent contrary to s 401(1)(c) of the Criminal Code (WA) (charge AR 16023/2024) and one charge of stealing property to the value of $1,500 contrary to s 378 of the Criminal Code (charge AR 16024/2024). 2 The learned Magistrate imposed an intensive supervision order (ISO) for one year with program conditions in respect to both charges. Subsequently, the appellant breached the ISO imposed on both charges by committing other offences. Upon resentencing the appellant, the learned Magistrate affirmed the ISO in respect to charge AR 16023/2024, and set aside the ISO in respect to charge AR 16024/2024 and imposed no penalty. Subsequently, the appellant committed further offences. The learned Magistrate resentenced the appellant in respect to the ISO imposed on charge AR 16023/2024 by setting aside the ISO and imposing a conditionally suspended term of imprisonment. The learned Magistrate also resentenced the appellant in respect to charge AR 16024/2024, purporting to set aside the ISO and impose a conditionally suspended term of imprisonment in circumstances where her Honour had previously set aside the ISO and imposed no penalty. 3 The appellant appeals that sentence on four grounds. The gravamen of the appeal is that the learned Magistrate erred in law by purporting to sentence the appellant in circumstances where the appellant had previously been sentenced for the same offending. The respondent concedes that leave to appeal should be granted, the appeal should be allowed and the appellant resentenced. I accept that the concession of the respondent has been properly made and that the appeal should be allowed and the appellant resentenced. 4 The appellant requires an extension of time in which to appeal. The appellant's counsel has filed an affidavit that satisfactorily explains the delay in commencing the appeal.1 The respondent accepts that an extension of time should be granted. The question for the court to 1 Affidavit of Ms Kermath affirmed 16 May 2026. -- 3 of 14 -- [2026] WASC 307 MCGRATH J Page 4 consider is whether it is in the interests of justice to grant the extension of time in which to appeal.2 5 Given the satisfactory explanation for the delay and moreover the concession of the respondent regarding the appeal, it is in the interests of justice to grant the extension of time in which to appeal. Magistrates Court proceedings 6 On 7 October 2024, the appellant first appeared in the Magistrates Court in respect to 33 charges. The particulars of the charges are outlined in Annexure A. The charges that are the subject of this appeal are charges AR 16023/2024 and AR 16024/2024. 7 On 16 December 2024, the appellant entered pleas of guilty to the charges the subject of this appeal in the Intellectual Disability Diversion Program (IDDP) Court in the Perth Magistrates Court. The plea of guilty was entered after the prosecution amended the prosecution notice to allege that the burglary occurred in a place. The matter was adjourned for sentencing. 8 On 24 March 2025, the appellant appeared before the learned Magistrate for sentencing in respect to charges AR 16023/2024 and AR 16024/2024. The facts upon which the appellant was sentenced were accepted by the appellant, namely that at 2.02 am on 20 September 2024, the appellant entered a residence in Wilson after observing the premises for approximately 10 minutes prior to entering.3 The occupier was not at the residence at the time the appellant entered the premises. The appellant stole a bicycle valued at $1,500 from the garage area of the premises. The appellant was recorded on CCTV footage stealing the property. 9 The learned Magistrate sentenced the appellant to a 12-month ISO in respect to both charges AR 16023/2024 and AR 16024/2024 and a global fine of $1,500 in respect to the other charges.4 In imposing sentence the learned Magistrate afforded the appellant a 20% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) in respect to all the charges. The learned Magistrate stated that the appellant sustained significant injuries in 1995 that caused severe traumatic brain injury and post-traumatic stress disorder and therefore, the appellant's moral 2 Criminal Appeals Act 2004 (WA) s 10(3); Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14]. 3 ts 8 (24/3/2025). 4 ts 13 (24/3/2025). -- 4 of 14 -- [2026] WASC 307 MCGRATH J Page 5 culpability was reduced.5 The learned Magistrate observed that the appellant's drug addiction is a significant issue and is linked to his offending. 10 On 19 August 2025, the appellant appeared in the Magistrates Court in respect to a number of charges including failing to comply with an electronic monitoring direction not to enter a specified area contrary to s 50V of the Bail Act 1982 (WA), multiple stealing offences contrary to s 378 of the Criminal Code, trespass contrary to s 70A(2) of the Criminal Code, possession of stolen property contrary to s 417(1) of the Criminal Code and obstructing a public officer contrary to s 172(2) of the Criminal Code. 11 In pleading guilty to the further charges, the appellant was in breach of the ISO imposed on 24 March 2025 in respect to charges AR 16023/2024 and AR 16024/2024. The learned Magistrate imposed a further ISO in respect to 12 of the further charges. Relevantly, the learned Magistrate ordered that the ISO in respect to charge AR 16023/2024 would continue. However, the learned Magistrate cancelled the ISO in respect to charge AR 16024/2024 and in lieu thereof, imposed no penalty pursuant to s 11 of the Sentencing Act.6 In resentencing the appellant, the learned Magistrate stated that charge AR 16024/2024 was factually part of the burglary offence and therefore, no penalty should be imposed.7 12 On 11 November 2025, the appellant appeared before a different magistrate and pleaded guilty to a number of further charges including breach of protective bail conditions contrary to s 51(2a) of the Bail Act, common assault contrary to s 313(1)(a) of the Criminal Code, obstructing a public officer contrary to s 172 of the Criminal Code, stealing contrary to s 378 of the Criminal Code and trespass contrary to s 70A(2) of the Criminal Code. The learned Magistrate imposed fines in respect to these charges. 13 Having been convicted of the further charges the appellant had breached his ISO imposed in respect to charge AR 16023/2024. The learned Magistrate imposed a term of 5 months' suspended imprisonment in respect to charge AR 16023/2024 and a term of 1 month and 1 day suspended imprisonment in respect to charge AR 16024/2024 to be served cumulatively. In so doing the learned 5 ts 12 (24/3/2025). 6 ts 14 (19/8/2025). 7 ts 14 (19/8/2025). -- 5 of 14 -- [2026] WASC 307 MCGRATH J Page 6 Magistrate purported to find that the appellant had breached an ISO in respect to charge AR 16024/2024 in circumstances where that ISO had previously been set aside and in lieu thereof no penalty had been imposed.8 Grounds of appeal and legal principles 14 The grounds of appeal may be discerned from the appeal notice and the written submissions of counsel. The appeal grounds are understood to be in the following terms:9 1. The learned Magistrate erred in law and acted without jurisdiction by imposing a sentence on charge AR 16024/2024 on 11 November 2025 after the charges had been finally determined on 19 August 2025. 2. The sentence imposed on charges AR 16023 & AR 16024 constituted impermissible double punishment. 3. The cumulative sentencing structure miscarried because it depended upon an invalid sentence imposed on charge AR 16023/2024 & AR 16024/2024. 4. If the Court concludes that jurisdiction existed, the sentencing discretion miscarried because insufficient weight was afforded to the appellant's traumatic brain injury, executive dysfunction, cognitive impairment and reduced moral culpability. 15 This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.10 An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.11 16 The court must not grant leave to appeal unless a ground has a reasonable prospect of success.12 A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.13 8 ts 12 (11/11/2025). 9 Appellant's written submissions filed 2 June 2026, page 4. 10 Criminal Appeals Act s 9(1). 11 Criminal Appeals Act s 8. 12 Criminal Appeals Act s 9(2). 13 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA). -- 6 of 14 -- [2026] WASC 307 MCGRATH J Page 7 17 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.14 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. Assessment of appeal 18 Grounds 1 and 2 concern the sentence imposed by the learned Magistrate on 11 November 2025 in imposing a term of suspended imprisonment in respect to charge AR 16024/2024. On 11 November 2025, the learned Magistrate purported to impose a term of suspended imprisonment of 1 month and 1 day in respect to charge AR 16024/2024 in lieu of an ISO. However, on 19 August 2025, the learned Magistrate breached the appellant and set aside the ISO and in lieu thereof, imposed no penalty in respect to charge AR 16024/2024. 19 The respondent concedes, appropriately, that the learned Magistrate in purporting to set aside an ISO and resentence the appellant in respect to charge AR 16024/2024 acted without having jurisdiction to do so.15 The appellant having previously breached the ISO had been resentenced and no penalty had been imposed. The learned Magistrate had no jurisdiction to set aside that order and impose a term of suspended imprisonment. 20 Further, by ground 2 the appellant contends that the learned Magistrate by imposing a cumulative term of suspended imprisonment in respect to charge AR 16024/2024 infringed s 11 of the Sentencing Act and thereby, imposed a double punishment given a distinct term of suspended imprisonment was imposed for charge AR 16023/2024.16 21 The respondent concedes therefore, that both grounds 1 and 2 have been established and that the appeal should be allowed and the appellant resentenced. The concession was properly made. Therefore, the purported sentence of a suspended term of imprisonment of 1 month and 1 day imposed in respect to charge AR 16024/2024 was void ab initio and must be set aside as a nullity.17 The order made on 19 August 2025 that no penalty is imposed pursuant to s 11 of the Sentencing Act remains as the disposition. 14 Criminal Appeals Act s 14. 15 Matthews v Director of Public Prosecutions [2022] WASC 426 [14]. 16 Beekman v The State of Western Australia [2022] WASCA 130. 17 Woods v Kingsbury [2019] WASC 336. -- 7 of 14 -- [2026] WASC 307 MCGRATH J Page 8 22 I now turn to ground 3, which properly understood is contending that given that grounds 1 and 2 are allowed and no penalty has been imposed in respect to charge AR 16024/2024, the 5-month term of suspended imprisonment imposed on charge AR 16023/2024 must be set aside given that the term of imprisonment infringes s 86 of the Sentencing Act.18 The respondent submitted that whilst it was not necessary to determine ground 3 given that the appellant must be resentenced in any event, it was accepted that the ground has been made out. 23 I am satisfied that ground 3 has been made out and that the term of suspended imprisonment imposed on charge AR 16023/2024 must be set aside and the appellant resentenced. 24 It is not necessary to determine ground 4. Resentencing appellant 25 I must, therefore, resentence the appellant in respect to charge AR 16023/2024. I must apply the applicable sentencing principles and statutory provisions. The law requires that the sentence imposed reflect the seriousness of the offence. In determining the seriousness of the offence and the sentence to be imposed, I must have regard to the maximum penalty for the offence, the circumstances of the offending and any aggravating factors or mitigating factors.19 26 In imposing sentence, I must have regard to the standards of sentencing customarily imposed for this type of offending. 27 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 the protection of the community requires it.20 28 If the court reaches the conclusion that a sentence of imprisonment of not more than five years is the only appropriate disposition, the court must then consider whether that sentence of imprisonment should be suspended or whether it should be immediately served. The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment. To decide if the term of imprisonment imposed can be suspended, the court 18 Johnson v Vander Sanden [2021] WASCA 27. 19 Sentencing Act s 6(2). 20 Sentencing Act s 6(4). -- 8 of 14 -- [2026] WASC 307 MCGRATH J Page 9 must revisit the factors that it has considered in determining that a term of imprisonment is the only appropriate disposition. Maximum penalty 29 The maximum penalty for the offence of burglary of a place is imprisonment for 14 years. Personal circumstances of the appellant and factors in mitigation 30 I turn to the antecedents of the appellant. 31 The appellant was afforded a 25% reduction pursuant to s 9AA of the Sentencing Act in respect to the offences he was sentenced on 11 November 2025.21 It is apparent from the prosecution notice in relation to the burglary offence that the appellant pleaded guilty on 16 December 2024, being the date on which the prosecution amended the burglary charge from burglary of a home to burglary of a place. On 24 March 2025, when imposing the original ISO in respect to charge AR 16024/2024 the learned Magistrate stated that a 20% discount was given in respect to all charges. 32 Given the appellant entered a plea to the charge at the first opportunity after the prosecution notice was amended, I am satisfied that the appellant pleaded guilty at the first reasonable opportunity and is therefore, afforded a 25% reduction pursuant to s 9AA of the Sentencing Act. 33 A pre-sentence report was considered by the learned Magistrate on 16 December 2024, addressing the appellant's suitability for participation in the IDDP Court program. The report confirms the appellant suffered a severe traumatic brain injury at 16 years of age because of an assault. The appellant suffers ongoing post-traumatic stress disorder because of that assault. The learned Magistrate who sentenced the appellant on 24 March 2025 noted that after the assault the appellant was in a coma and 'had to learn to walk again'.22 At the hearing of this appeal, the respondent did not take issue with the submission made at the appellant's sentencing on 24 March 2025 that the appellant's moral culpability was reduced as a result of his 21 ts 10 (11/11/2025). 22 ts 11 (24/3/2025). -- 9 of 14 -- [2026] WASC 307 MCGRATH J Page 10 condition23 though it appears the main driver of his offending was the funding of his drug habit.24 34 The pre-sentence report states that the appellant presents with criminogenic treatment needs in relation to entrenched methylamphetamine use, negative peer association, a pro-criminal attitude, lack of structured activities and a history of family and domestic violence behaviours. 35 The pre-sentence report confirms that the appellant has previously participated in the IDDP Court program at which time he was able to eventually gain access to NDIS funding. 36 The appellant sporadically complied with the ISO, attending supervision and counselling. 37 The appellant has an extensive offending history for offences of dishonesty, drugs, nuisance, driving and breaches of court orders. The pre-sentence report states that the appellant's offending behaviour has been largely unabated with the appellant attributing his offending to his entrenched substance use issues. Seriousness of the offence 38 The offence is not in the serious category of this type of offending. The appellant entered an unlocked garage and stole a bicycle. Whilst there was a degree of persistence in his offending, being that he surveyed the exterior of the premises for approximately 10 minutes before entering, the degree of premeditation was limited. 39 The appellant's criminal history, whilst not aggravating, does suggest there is a need for specific deterrence. However, given the statement in the pre-sentence report that a traumatic brain injury can result in behavioural changes and persistent cognitive deficits in areas including attention, memory and executive functioning, it may be that specific deterrence is more difficult to achieve in the appellant's case and is therefore 'not worth pursuing'.25 Time spent in custody 40 The appellant spent 171 days in custody in respect to charges AR 16023/2024 and AR 16024/2024. 23 ts 9 (24/3/2025). 24 ts 12 (24/3/2025). 25 Krijestorac v The State of Western Australia [2018] WASCA 35 [17]. -- 10 of 14 -- [2026] WASC 307 MCGRATH J Page 11 Assessment 41 The respondent submitted that an appropriate disposition given the circumstances of this case, is a financial penalty only. Having regard to the place the burglary offence occupies on the scale of seriousness, the appellant's plea of guilty and mental impairment, and the 171 days the appellant spent in custody prior to his sentencing, a non-custodial disposition is appropriate. After considering all relevant sentencing factors, I resentence the appellant and impose a fine of $300 in respect to charge AR 16023/2024. In imposing this sentence, it must be understood that a fine is imposed because of the circumstances of this case. In particular, the time spent in custody and the personal circumstances of the appellant. Conclusion 42 Accordingly, the appeal must be allowed and the appellant resentenced. I make the following orders: 1. An extension of time in which to appeal is granted. 2. Leave to appeal is granted on grounds 1, 2, and 3. 3. Leave to appeal is not granted on ground 4. 4. The appeal is allowed. 5. The suspended term of imprisonment of 1 month and 1 day imposed by the learned Magistrate in respect to charge AR 16024/2024 being void ab initio is set aside and in lieu thereof no penalty is imposed pursuant to s 11 of the Sentencing Act. 6. The suspended term of imprisonment of 5 months imposed by the learned Magistrate in respect to charge AR 16023/2024 is set aside and in lieu thereof a fine of $300 is imposed. -- 11 of 14 -- [2026] WASC 307 MCGRATH J Page 12 Annexure A - Table of Charges No. Charge No. Date Particularisation Sentence imposed on 24 March 2025 1. AR 16023/2024 20 September 2024 Burglary of a place 12 months' Intensive Supervision Order 2. AR 16024/2024 20 September 2024 Stole property to the value of $1,500.00 12 months' Intensive Supervision Order 3. AR 17027/2024 7 October 2024 Fraudulently gained a benefit of $39.50 Global fine: $1,800.00 4. AR 17028/2024 7 October 2024 Fraudulently gained a benefit of $42.95 Global fine: $1,800.00 5. AR 17029/2024 7 October 2024 Fraudulently gained a benefit of $30.00 Global fine: $1,800.00 6. AR 17030/2024 7 October 2024 Fraudulently gained a benefit of $30.00 Discontinued 7. AR 17031/2024 7 October 2024 Fraudulently gained a benefit of $50.40 Global fine: $1,800.00 8. AR 17032/2024 7 October 2024 Fraudulently gained a benefit of $40.00 Global fine: $1,800.00 9. AR 17033/2024 7 October 2024 Fraudulently gained a benefit of $40.00 Global fine: $1,800.00 10. AR 17034/2024 7 October 2024 Fraudulently gained a benefit of $75.00 Global fine: $1,800.00 11. AR 17035/2024 7 October 2024 Fraudulently gained a benefit of $20.00 Global fine: $1,800.00 12. AR 17928/2024 25 October 2024 Obstructed a public officer Global fine: $1,800.00 13. AR 17929/2024 25 October 2024 Behaved in a disorderly manner in a police station No punishment 14. AR 17930/2024 9 October 2024 Fraudulently gained a benefit of $36.99 Global fine: $1,800.00 -- 12 of 14 -- [2026] WASC 307 MCGRATH J Page 13 15. AR 17931/2024 9 October 2024 Fraudulently gained a benefit of $36.99 Global fine: $1,800.00 16. AR 17932/2024 9 October 2024 Fraudulently gained a benefit of $42.75 Global fine: $1,800.00 17. AR 17933/2024 9 October 2024 Fraudulently gained a benefit of $42.75 Global fine: $1,800.00 18. AR 17934/2024 9 October 2024 Possessed a stolen Credit Card Global fine: $1,800.00 19. AR 17935/2024 9 October 2024 Fraudulently gained a benefit of $79.98 Global fine: $1,800.00 20. AR 17936/2024 9 October 2024 Fraudulently gained a benefit of $93.98 Global fine: $1,800.00 21. AR 17937/2024 9 October 2024 Fraudulently gained a benefit of $35.00 Global fine: $1,800.00 22. AR 17938/2024 9 October 2024 Possessed a stolen Credit Card Discontinued 23. AR 19637/2024 20 November 2024 Stole property to the value of $339.65 Global fine: $1,800.00 24. AR 19638/2024 20 November 2024 Possessed 0.1 g of Methylamphetamine Global fine: $1,800.00 25. AR 20554/2024 2 December 2024 Breach of bail undertaking by failing to appear at court Global fine: $1,800.00 26. AR 20555/2024 3 December 2024 Possessed stolen or unlawfully obtained property Global fine: $1,800.00 27. AR 21043/2024 5 December 2024 Stole property to the value of $500.00 Global fine: $1,800.00 28. AR 21044/2024 5 December 2024 Trespassed in Langford Global fine: $1,800.00 29. AR 46/2025 2 November 2024 Trespassed in Thornlie Global fine: $1,800.00 30. AR 47/2025 2 November 2024 Stole property to the value of $650.00 Global fine: $1,800.00 -- 13 of 14 -- [2026] WASC 307 MCGRATH J Page 14 31. AR 784/2025 26 November 2024 Stole property to the value of $150.00 Global fine: $1,800.00 Order for compensation: $150.00 32. AR 2171/2025 5 February 2025 Stole property to the value of $199.00 Global fine: $1,800.00 33. AR 2172/2025 4 February 2025 Breach of bail undertaking by failing to appear at court Global fine: $1,800.00 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 29 JULY 2026 -- 14 of 14 --