STACK -v- WA POLICE [2026] WASC 331

[2026] WASC 331 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : STACK -v- WA POLICE [2026] WASC 331 CORAM : PALMER J HEARD : 13 AUGUST 2026 DELIVERED : 13 AUGUST 2026 FILE NO/S : SJA 1049 of 2026 BETWEEN : JEROME TRENT STACK Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE SHACKLETON File Number : PE 7716/2026 and PE 7717/2026 Catchwords: Appeal - Criminal law - Sentence - Sentence imposed exceeded maximum summary penalty - Express error - Appellant resentenced -- 1 of 21 -- [2026] WASC 331 Page 2 Legislation: Crimes Act 1914 (Cth) Criminal Appeals Act 2004 (WA) Criminal Code Act 1995 (Cth) Sentence Administration Act 2003 (WA) Result: Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : S H King Respondent : J M Lloyd Solicitors: Appellant : Legal Aid - Perth - Criminal Appeals Respondent : State Solicitor's Office Case(s) referred to in decision(s): Bradbury v The State of Western Australia [2020] WASCA 214 CHM v WA Police [2026] WASC 238 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fletcher v The State of Western Australia [2026] WASCA 112 Musca v R [2021] WASCA 37 Narrier v Director of Public Prosecutions (WA) [2025] WASCA 51 R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 Smart v The Director of Public Prosecutions for Western Australia [No 2] [2023] WASCA 193 Wallam v Dent [2008] WASC 170 Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 -- 2 of 21 -- [2026] WASC 331 PALMER J Page 3 PALMER J: Introduction 1 On 15 April 2026, the appellant (Mr Stack) was convicted on a plea of guilty in the Joondalup Magistrates Court before Magistrate Shackleton of: (a) one count of using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code); and (b) one count of breaching a Post Sentencing Supervision Order (PSSO) contrary of s 74L of the Sentence Administration Act 2003 (WA) (Sentence Administration Act). 2 That day, Magistrate Shackleton sentenced Mr Stack to a 20 month term of immediate imprisonment in relation to the first count and a 15 month concurrent term of immediate imprisonment in relation to the second. His Honour made Mr Stack eligible for parole for both offences. 3 On 11 May 2026, Magistrate Shackleton recalled Mr Stack for the correction of his sentence for the Commonwealth offence. His Honour noted that although he had made Mr Stack eligible for parole in relation to that offence, he was unable to do so because the term of imprisonment imposed was under 3 years. His Honour corrected Mr Stack's sentence by making Mr Stack the subject of a recognisance release order after 10 months, with a $2,000.00 good behaviour bond. 4 Mr Stack now seeks to appeal the sentence imposed by Magistrate Shackleton on two grounds. First, that the sentence in relation to the Commonwealth offence exceeded the statutory maximum summary penalty. Secondly, that the sentence of 15 months' imprisonment for the breach of the PSSO is manifestly excessive. 5 Mr Stack needs leave to appeal. Both Mr Stack and the respondent seek to rely on evidence that was not before the Magistrate. 6 The respondent concedes that the appeal should be allowed on the first ground and submits that this Court should resentence Mr Stack. 7 At the hearing of the appeal, I indicated that I considered that the respondent's concession was properly made. I gave Mr Stack leave to appeal on ground 1 and allowed the appeal on that ground. Given that -- 3 of 21 -- [2026] WASC 331 PALMER J Page 4 I allowed the appeal on proposed ground 1, I considered it unnecessary to address ground 2. 8 I also allowed the parties to rely upon the additional information that they wished to rely upon as most of it appeared relevant to Mr Stack's resentencing. 9 In relation to count 1, using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Commonwealth Criminal Code, I resentenced Mr Stack to a term of immediate imprisonment of 12 months backdated to 31 January 2026. I also made him subject to a recognisance release order after 10 months with a $2,000.00 good behaviour bond for 6 months. This was the head sentence. 10 In relation to count 2, breaching a PSSO contrary to s 74L of the Sentence Administration Act, I resentenced Mr Stack to a term of immediate imprisonment of 12 months backdated to 31 January 2026, to be served concurrently with the term of imprisonment in relation to count 1. 11 At the hearing of the appeal, I indicated that I would deliver written reasons for my decision. These are those reasons. Why I gave leave to appeal on Ground 1 and allowed the appeal 12 Proposed ground of appeal 1 was: The Magistrate erred in law by imposing a sentence in relation to the offence of Used [sic] a carriage service to menace, harass or cause offence that exceeds the maximum penalty in the summary jurisdiction for that offence. 13 Section 474.17(1) of the Commonwealth Criminal Code provides that the maximum penalty for the offence of using a carriage service to menace, harass or offend is imprisonment for 5 years. The offence is an indictable offence as it is punishable by imprisonment for a period exceeding 12 months.1 14 Section 4J(1) of the Crimes Act provides that a Commonwealth indictable offence punishable by imprisonment of less than 10 years, may be dealt with summarily, with the consent of the prosecutor and the defendant. 1 Crimes Act 1914 (Cth) (the Crimes Act), s 4G. -- 4 of 21 -- [2026] WASC 331 PALMER J Page 5 15 Section 4J(3)(a) of the Crimes Act provides that where an offence is dealt with summarily, the maximum term of imprisonment (for an indictable offence punishable by imprisonment for less than 5 years) that may be imposed is 12 months. 16 The maximum penalty of 5 years for the offence must still be taken into account when sentencing as it signifies the seriousness with which the legislature regards the offence. When the offence is dealt with summarily, however, 12 months is the maximum term of imprisonment that may be imposed. 17 In this case, both the prosecution and Mr Stack consented to having the Commonwealth offence dealt with summarily.2 It was open to the Magistrate to decline to deal with the offence summarily, so that it would have to proceed on indictment to the District Court. If the Magistrate considered that Mr Stack's offending warranted a term of imprisonment that exceeded 12 months, it might have been appropriate for him to refuse to deal with the matter summarily.3 18 Unfortunately, the penalties that Magistrate Shackleton could impose do not appear to have been addressed by the prosecutor at the sentencing hearing. His Honour seems to have proceeded on the basis that he could impose a penalty in excess of 12 months imprisonment. His Honour made an express error by imposing a 20 month term of immediate imprisonment for the Commonwealth offence, as that sentence exceeded the maximum sentence he could impose. 19 This appeal has been brought under the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). I explained why a person who commences an appeal under that Act requires leave to appeal and when leave will be given in CHM v WA Police.4 It is not necessary to repeat what I said there here. 20 This is a sentencing appeal. In Wallam v Dent,5 Jenkins J observed that consideration of whether there has been a miscarriage of justice in a sentencing appeal will often require consideration of what sentence the appeal court would impose. Her Honour explained the position as follows: 2 ts 2 - ts 3, 15 April 2026. 3 Narrier v Director of Public Prosecutions (WA) [2025] WASCA 51 [26]. 4 CHM v WA Police [2026] WASC 238 [5] - [8]. 5 Wallam v Dent [2008] WASC 170 [31]. -- 5 of 21 -- [2026] WASC 331 PALMER J Page 6 I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised. 21 In this case there can be no doubt that the error made by the sentencing Magistrate resulted in a substantial miscarriage of justice because I must necessarily impose a lesser sentence than that imposed at first instance. Leave to appeal should therefore be given and the appeal allowed on ground 1. 22 I am satisfied that there is sufficient material for me to resentence Mr Stack and it is appropriate for me to do so. The additional evidence that the parties relied upon 23 Mr Stack sought to rely upon an affidavit that he swore on 9 July 2026. In that affidavit, Mr Stack deposes to: (a) being diagnosed with testicular cancer after being sentenced; (b) his inability to access rehabilitation courses in Casuarina because of the length of his sentence; (c) the conditions in Casuarina; (d) taking medication for anxiety and depression; (e) having counselling with Head Space previously and intending to have counselling with them again after his release; and (f) having arranged a family lawyer. 24 The respondent also sought to put the PSSO before me. -- 6 of 21 -- [2026] WASC 331 PALMER J Page 7 25 Section 39 of the Criminal Appeals Act provides that subject to an appeal court's power under s 40 to admit new evidence, the appeal court must decide the appeal on the evidence and material that was before the lower court. 26 Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appellate court may admit other evidence. 27 Section 14(5) of the Criminal Appeals Act provides that on an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard. 28 I allowed the parties leave to rely on the further materials because they were for the most part,6 relevant to Mr Stack's resentencing. 29 Some parts of Mr Stack's affidavit verified matters submitted to Magistrate Shackleton. While it was not necessary for those matters to be verified on oath, the matters addressed remained material. The affidavit also addressed matters that were not before the Magistrate. 30 As the State offence concerned a breach of the PSSO, it was of assistance to have the PSSO before me. The relevant sentencing principles The Commonwealth offence 31 Section 16A(1) of the Crimes Act provides that in determining a sentence in respect of a Commonwealth offence, a court must impose a sentence of a severity appropriate in all the circumstances. 32 Section 16A(2) of the Crimes Act provides that in addition to any other matters, the court must take into account the matters identified in that section that are relevant and known to the court. Those matters include: (a) the nature and circumstances of the offence (s 16A(2)(a)); (b) the personal circumstances of any victim of the offence (s 16A(2)(d)); 6 As I discuss further below, the relevancy of the evidence regarding general conditions in Casuarina might be doubted. -- 7 of 21 -- [2026] WASC 331 PALMER J Page 8 (c) the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner (s 16A(2)(f)); (d) if the person has pleaded guilty to the charge in respect of the offence that fact, the timing of the plea and the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence (s 16A(2)(g)); (e) the deterrent effect that any sentence or order under consideration may have on the person or other persons (s 16A(j) and s 16A(ja)); (f) the need to ensure that the person is adequately punished for the offence (s 16A(2)(k)); (g) the character, antecedents, age, means and physical or mental condition of the person (s 16A(2)(m)); and (h) the prospect of rehabilitation of the person (s 16A(2)(n)). 33 Section 17A(1) of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. The State offence 34 Section 6(2) of the Sentencing Act 1995 (WA) (the Sentencing Act) provides that the seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of the offence including the vulnerability of any victim of the offence and any aggravating and mitigating factors. 35 Like s 17A(1) of the Crimes Act, s 6(4) of the Sentencing Act provides that 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. 36 Under s 39 and the related provisions of the Sentencing Act, a magistrate must be positively satisfied that it is not appropriate to -- 8 of 21 -- [2026] WASC 331 PALMER J Page 9 suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. 37 The discretion to suspend, or conditionally suspend, a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal consideration of rehabilitation.7 The maximum statutory penalties for the offences 38 As I have mentioned, the statutory maximum penalty for the offence of using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Commonwealth Criminal Code is 5 years imprisonment. 39 As I have also mentioned, for the purposes of assessing the seriousness of the offences on a resentencing, it is the maximum penalty, not the summary conviction jurisdictional limit that is relevant.8 This is because the maximum penalty signifies the seriousness with which the legislature regards the offence. 40 The statutory maximum penalty for the offence of breaching a PSSO contrary to s 74L of the Sentence Administration Act is 3 years imprisonment. The nature and circumstances of the offences The Commonwealth offence 41 For the purposes of sentencing, I find that the Commonwealth offence was committed in the following circumstances. 42 Between 10.33 am on Wednesday 14 January 2026 and 10.30 am on Saturday 31 January 2026 Mr Stack repeatedly used a phone number to send messages and call his former partner's mobile telephone. 43 During this period Mr Stack sent his former partner 30 to 40 text messages a day and called her 50 to 100 times a day. The calls were made over both the telephone and WhatsApp. The messages and phone calls were of a harassing nature and included threats of self-harm if he did not get what he wanted. 7 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84], [86] (Kirby J). 8 Smart v The Director of Public Prosecutions for Western Australia [No 2] [2023] WASCA 193 [52]; Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26]. -- 9 of 21 -- [2026] WASC 331 PALMER J Page 10 44 Mr Stack and his former partner had been in an 'on and off again' relationship for 17 years. The relationship has been characterised by family violence and aggravated stalking. 45 When Mr Stack called his partner at 10.33am on Wednesday 14 January 2026, he spoke to her for two minutes and 54 seconds. The call became abusive and he said to her: GO ON CUNT, GET A VRO ON ME, I'M KILLING YOU, YOU'RE DEAD, YOU'RE FUCKING DEAD TO ME. 46 Mr Stack's former partner felt harassed and offended by the call. 47 Mr Stack then proceeded to bombard his former partner with calls and messages. A selection of the messages sent included the following: ALRIGHT…!Fuck it, you wanna make cunt outta me losing my shit, watch what happens now if I'm such a joke. Fuck you and I'm doing now fhck heae%@ You want me to lose it and go off and threaten [redacted] and everyone around her…alright mother fuckers, lets do it like what [redacted] wants…better ring [redacted]? You told my kids to put me on do not disturb hey.? Again you gotta bring them into it, just stop that.! Watch what I say to all your fucking little mates on socials now, I do t give a fuck, I'll put it all out for everyone to see….you watch [redacted].FUCKING STOP AND ANSWER ME..!! I'm on the bring of a mental fucking breakdown and don't fucing know whats gonna happened…I'm gonna do a really bad thing to myself or some cunt near me…if I get to that stage then fuck I'm sorry, I'm telling you I need my babies and wanna talk to them but NOTHIN NOTHING NOTHIN!!! ARRRRRGGHHHH FUCK EVERY DOG CUNT..I HATE EVERY CUNT AND EVERYTHING!!!! DO FUCKKK IT ALLL FUCK THIS AND FUCK YOU…!! You say to me that you don't do nothing to make this worse, well look here, this is what you do all the time when I keep trying and what do you do about how you feel.? Just go quiet and not give a fuck about everything that's going on..!!! [redacted] I mean it keep this up and I have told ya before what will happen..!! And don't act dumb..you know exactly what.! See how this can be de excalated with phone call, a text or anything…Fuck you, don't bother trying any more, you made your bed, now time for sleep in it…keep thinking this is a joke [redacted], because I'll be laughin after this all and that's the honest truth…..so keep this little game, it's all good, but I'll take the blame for ya and… -- 10 of 21 -- [2026] WASC 331 PALMER J Page 11 48 The messages and phone calls left Mr Stack's former partner feeling fearful. The State offence 49 For the purposes of sentencing, I find the facts of the State offence as follows. On Wednesday 3 September 2025, the Prisoners Review Board issued a Post Sentence Supervision Order (PSSO) in respect of the accused. The order commenced on Sunday 5 October 2025 and is due to expire on Sunday 12 April 2026. Relevant conditions of the PSSO include that the accused must: To abide by the conditions of the Statement of protections conditions dated 31st January 2022 Protection conditions – 1) will not behave in an intimidating, aggressive, or abusive way towards [redacted]. On Friday 30 January 2025, [redacted] has contacted Western Australia Police Force reporting that [Mr Stack] has been calling her phone for several weeks, making threats to kill her and behaving in an abusive and aggressive way. The accused has contacted the protected person and repeatedly abused her over the telephone, and when the protected person has attempted to engage in conversation, he has been abusive towards her. On Wednesday 14 January 2026 at 10:33am, the accused has contacted the protected person, when he has said to her 'GO ON CUNT, GET A VRO ON ME, I'M KILLING YOU, YOU'RE DEAD, YOU'RE FUCKING DEAD'. The sentencing submissions made to the Magistrate 50 Counsel for Mr Stack who appeared before Magistrate Shackleton on 15 April 2026, submitted that Mr Stack's offending arose in the following circumstances.9 51 The PSSO contemplated Mr Stack having contact with his former partner. When Mr Stack was released from prison in October 2025, the relationship was going well and he spent a week with his former partner and their children in Scarborough. 52 On New Years Eve, Mr Stack went camping with his former partner and their children but Mr Stack and his former partner started 9 ts 6, 15 April 2026. -- 11 of 21 -- [2026] WASC 331 PALMER J Page 12 arguing about him being unfaithful. His former partner also became concerned that he was using drugs. 53 Mr Stack's former partner then refused to allow him to see their children unless he first took a hair follicle drug test. This meant that Mr Stack was unable to see his son before his birthday because he could not afford to take the test. 54 Mr Stack was also not taking the medication that he had been prescribed. 55 Mr Stack's mental health deteriorated and he lashed out, engaging in the offending. 56 This explanation for Mr Stack's offending was not challenged before Magistrate Shackleton or before me. It is broadly consistent with the contents of the pre-sentence report before the Magistrate and I accept it as correct for the purposes of sentencing. The aggravating factors of the offending 57 In my view, both offences were aggravated by the following features that increased Mr Stack's culpability. 58 First, the messages that Mr Stack sent his former partner involved threats of serious violence, including threats to kill her, or harm himself or others. It is unsurprising that Mr Stack's partner was left feeling fearful. Some of the messages he sent seem calculated to achieve that effect. 59 Secondly, the offending was persistent. Mr Stack sent a very large number of messages over a two week period, using more than one communication medium. His offending was no isolated incident. It was a sustained campaign of harassment, intimidation and manipulation. 60 Thirdly, the victim of Mr Stack's offending was his former domestic partner. Mr Stack's offending took place in the context of a fraught domestic relationship with a history of abuse. Mr Stack's personal circumstances 61 Mr Stack is 33 years old. He is an Aboriginal man. -- 12 of 21 -- [2026] WASC 331 PALMER J Page 13 62 He was born in Western Australia and has three brothers and sisters. He has a positive relationship with his mother but has not had any contact with his father since being in custody. 63 Mr Stack was exposed to domestic violence as a child and grew up in an environment where he was exposed to domestic violence. 64 Mr Stack's relationship with his former partner commenced in high school and has been on and off again for about 17 years. He and his former partner share three children. 65 Mr Stack completed school to Year 12. After school he commenced a traineeship for a mining company and completed an apprenticeship as a painter and was able to maintain stable employment until approximately 2020. Most recently, before his remand, Mr Stack was employed in Northam as a Ranger. 66 Mr Stack has been diagnosed with anxiety and depression. He was prescribed medication when he was last in prison but stopped taking that medication when he was released. Mr Stack started taking his medication again following his remand. 67 Mr Stack first tried methylamphetamine when he was 19. His use was infrequent until 2019 when his use became problematic. He has not used methylamphetamine in about three years. 68 Mr Stack has also had issues with alcohol. Pre-sentence report dated 10 April 2026 69 I have been provided with a pre-sentence report dated 10 April 2026 that was prepared for Mr Stack's sentencing in the Magistrates court. 70 The author of the report observed that Mr Stack's consistent pattern of offending appears to be linked to his normalised view and use of family and domestic violence, substance abuse, pro-criminal attitudes and antisocial behaviour. 71 The author considered that engagement in a residential men's behavioural change program might assist to manage Mr Stack's risk of re-offending. She considered that substance use intervention and engagement with mental health supports, along with engagement in other community supports might offer Mr Stack stability and ongoing support in the community. She observed that structured supervision -- 13 of 21 -- [2026] WASC 331 PALMER J Page 14 sessions could also be utilised for generating discussions of high-risk situations, peer associations, and addressing attitudes supportive of family and domestic violence. 72 The author reviewed Mr Stack's prior compliance with community supervision and noted that it was primarily inadequate. References 73 I have been provided with two references that were before the Magistrate which I have taken into consideration. 74 The first is from Mr Jermaine Davis from the Mooditji Boodja Indigenous Ranger Programme. He says that Mr Stack has been working with the program since October 2025, had never missed a day of work and that he would offer Mr Stack a job again when he was released from prison. Mr Davis says that despite Mr Stack's offending and the mistakes he has made, he is at heart a good person. He speaks of Mr Stack's remorse for his conduct. 75 The second is from Ms Glenda Humphries, an Aboriginal Mental Health Officer. She also speaks of Mr Stack's remorse and says that he is respected in the community. Mr Stack's prior criminal record 76 Mr Stack has a lengthy criminal record, a large part of which consists of breaching family violence restraining orders. Between 24 August 2020 and 10 June 2024, Mr Stack was convicted 84 times of that offence. 77 Mr Stack had a limited criminal record as a child. He was convicted of assault occasioning bodily harm when he was 16 years old for which he received no sentence. 78 On 2 May 2011, when Mr Stack was 18, he was convicted of breaching a violence restraining order for which he was fined $300.00. 79 Between 25 January 2012 and 22 October 2018, Mr Stack was convicted of various driving offences, stealing, endangering the life, health or safety of another person and common assault. 80 On 30 April 2020, when Mr Stack was 27 years old, he was first convicted of two counts of breaching a family violence restraining -- 14 of 21 -- [2026] WASC 331 PALMER J Page 15 order. He received a community based order which he subsequently repeatedly breached. 81 Four months later, on 24 August 2020, Mr Stack was convicted of a further five counts of breaching a family violence restraining order (and breaching his community based order). He received suspended terms of imprisonment with a total effective sentence of 6 months. 82 The next year, on 12 October 2021, Mr Stack was convicted of a further 42 counts of breaching a family violence restraining order. These offences were committed on various dates between 1 October 2020 and 5 July 2021. 83 On the same day, he was also convicted of aggravated stalking, using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Commonwealth Criminal Code and breaching his community based order and his suspended imprisonment order. 84 Mr Stack received a 1 year 6 month sentence of immediate imprisonment for the aggravated stalking and a further cumulative 4 month term of immediate imprisonment for one of the breaches of the suspended imprisonment order. He received other sentences of immediate imprisonment (to be served concurrently with the terms of imprisonment I have mentioned) and fines for his other offences. 85 On 14 June 2022, Mr Stack was convicted of a further 25 counts of breaching a family violence restraining order. The offences were committed on various dates between 19 July 2021 and 3 January 2022. He received a total effective sentence of 12 months imprisonment and was declared a serial family violence offender. 86 On 7 March 2024, Mr Stack was convicted of seven further counts of breaching a family violence restraining order. The offences were committed on various dates between 6 November 2023 and 6 December 2023. He was also convicted of three counts of breaching a PSSO. He received a total effective sentence of 1 year 6 months. 87 On 10 June 2024, Mr Stack was convicted of four further counts of breaching a family violence restraining order. The offences were committed between 18 December 2023 and 8 January 2024. One offence was committed on Christmas Day. Mr Stack received a further 4 month cumulative prison sentence to be served from 10 June 2024. -- 15 of 21 -- [2026] WASC 331 PALMER J Page 16 88 Mr Stack's criminal record does not aggravate the seriousness of the offences for which he is to be sentenced. He is not to be punished again for past offences. His record does demonstrate, however, that he is not entitled to leniency on the ground that he is a first offender or that committing an offence was an uncharacteristic aberration. His record means that I need to impose a sentence which is firm enough to deter him from offending in this way in the future, and to protect the public from further offending by him. Consideration of the possible mitigating factors Mr Stack's guilty plea 89 Mr Stack was arrested on 31 January 2026 and entered a guilty plea on 23 March 2026. 90 The respondent accepts that Mr Stack pleaded guilty at the first available opportunity. 91 As a consequence of Mr Stack's plea of guilty, a trial was not required and his former partner was not required to come to court to give evidence. There is also an important underlying purpose in allowing a discount that I have borne in mind. 92 Taking these matters into account, I have allowed a discount to Mr Stack's sentence by 25% from the head sentence I would otherwise have imposed had he been found guilty of the offence after trial and there were no mitigating factors. Remorse 93 Remorse is relevantly a strong emotion experienced by a person who is sorry for their previous actions and the adverse impact those actions have had upon others and who has resolved to reform and rehabilitate themselves.10 94 Before Magistrate Shackleton, counsel for Mr Stack submitted that Mr Stack was genuinely sorry and remorseful for his conduct. He said that Mr Stack respected and cared for his former partner and appreciated everything she had done to raise their children. He submitted that Mr Stack wanted to improve himself and to get into a residential rehabilitation program.11 10 Bradbury v The State of Western Australia [2020] WASCA 214 [53]. 11 ts 5 - ts 7, 15 April 2026. -- 16 of 21 -- [2026] WASC 331 PALMER J Page 17 95 I accept that Mr Stack is remorseful for his conduct. While he has not participated in any rehabilitation courses during his current term of imprisonment, he has explained in his affidavit that no courses have been offered to him due to the length of his term of imprisonment. He has indicated that he proposes to engage with counselling on his release. Mr Stack's cancer diagnosis 96 After Mr Stack was sentenced, he was diagnosed with testicular cancer. He has had an operation to remove a lump and the surgeon has told him that he believes that he managed to remove all of the cancer. Mr Stack will need to have ongoing tests to make sure that the cancer does not return. It has not been suggested that those tests could not be performed while he is in prison. 97 Mr Stack found waiting for the test results and then receiving the diagnosis while in prison very stressful. 98 I have taken Mr Stack's cancer diagnosis and the stress that he felt into account as part of his personal circumstances. I do not consider, however, that his cancer diagnosis is a substantial mitigating factor given that the evidence before me suggests that the cancer has now been treated. Nor do I consider that the stress Mr Stack felt waiting for his test results is a substantial mitigating factor. Prison conditions 99 Mr Stack's affidavit suggests that he relies upon the conditions in Casuarina as a mitigating factor. The material before me suggests that the conditions referred to by Mr Stack are being experienced by inmates within the prison generally. Apart from Mr Stack's cancer diagnosis, the affidavit material failed to identify any matters personal to him which would mean that he would find conditions in prison more onerous than the general prison population. 100 In Fletcher v The State of Western Australia,12 the Court of Appeal recently held that a sentencing judge cannot take poor prison conditions experienced generally by inmates into account in mitigation. The general conditions in Casuarina are therefore not a mitigating factor that it is open to me to take into account. 12 Fletcher v The State of Western Australia [2026] WASCA 112 [13] - [14], [89] - [132]. -- 17 of 21 -- [2026] WASC 331 PALMER J Page 18 The appropriate sentence for the offences Whether a term of imprisonment is the only sentencing option 101 Mr Stack's offending was serious. He engaged in a sustained campaign of harassment, intimidation and manipulation against his vulnerable former partner. His messages involved threats of violence and his partner was left feeling understandably fearful. 102 At the time that he committed these offences, Mr Stack had only recently been released from prison for other offending against his partner. He has a lengthy history of offending against the same partner and has breached family violence restraining orders on 84 different occasions. This is also not the first occasion on which he has been convicted of using a carriage service to menace, harass or offend. 103 It is necessary to impose a sentence that is firm enough to deter Mr Stack from offending in this way in the future and to deter others from engaging in similar offending. 104 The seriousness of Mr Stack's offending is such that I consider that a sentence of immediate imprisonment is the only appropriate sentence in respect of each of the offences. 105 In considering the appropriate term of imprisonment to impose, I have taken into account the circumstances of Mr Stack's offending, the jurisdictional limit in relation to count 1 and the aggravating factors I have mentioned. I have made reductions for the relevant mitigating factors. I consider that the following sentences would be appropriate. 106 In relation to count 1, using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Commonwealth Criminal Code, a 12 month term of immediate imprisonment. This will be the head sentence. 107 In relation to count 2, breaching a PSSO contrary to s 74L of the Sentence Administration Act, a 12 month term of immediate imprisonment. 108 With regard to the sentence in relation to Count 1, if this matter had not been dealt with summarily, I would have imposed a more significant term of imprisonment. -- 18 of 21 -- [2026] WASC 331 PALMER J Page 19 109 A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. 110 When I reconsider all the circumstances of Mr Stack's case, I am positively satisfied the offences are too serious for the sentences of imprisonment to be suspended in any capacity. Totality 111 As I have imposed more than one sentence of imprisonment, it is necessary for me to consider the totality principle. 112 The totality principle comprises two limbs. 113 The first limb requires me to consider all of Mr Stack's offending and to ensure that the total effective sentence bears a proper relationship to his overall criminality viewed in its entirety and having regard to the circumstances of the case including those referable to him personally. 114 The second limb requires me not to impose a 'crushing' sentence on Mr Stack. The word, 'crushing' in this context denotes the destruction of any reasonable expectation of a useful life after release. 115 The usual consequence of the application of the totality principle is to arrive at an ultimate aggregate sentence which is less than that which would have been arrived at by a straightforward addition of all the terms imposed. 116 In this case, while counts 1 and 2 are separate offences, both offences arose out of the same course of conduct. Given this, I consider that it would be appropriate to make the term of imprisonment in relation to count 2 concurrent with count 1. Backdating 117 Mr Stack has been in custody since 31 January 2026, I will backdate his sentences to that date. Recognisance release order 118 Section 19AC(1) of the Crimes Act provides that where a person is convicted of a Commonwealth offence and receives a sentence of less than 3 years, the sentencing court must make a recognisance release order. -- 19 of 21 -- [2026] WASC 331 PALMER J Page 20 119 Section 19AC(1) of the Crimes Act provides that a court may decline to make a recognisance release order if it is satisfied that such an order is not appropriate, having regard to the nature and circumstances of the offence and the antecedents of the person. 120 Section 20(1)(b) of the Crimes Act provides that I may also order Mr Stack's immediate release. A sentencing court's task in fixing a specified term of imprisonment under a recognisance release order was discussed by the Court of Appeal in Musca v R.13 The Court of Appeal's observations in R v Host,14 and R v Abbas15 are also relevant. The position may be summarised as follows: (a) the minimum period of imprisonment is part of the sentence; (b) the court must determine the minimum period of imprisonment that justice requires the offender to serve; (c) fixing a minimum period of imprisonment serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender; (d) the factors which a sentencing judge must take into account when fixing a minimum period of imprisonment are the same as that apply to the setting of the head sentence. Sentencing factors which count against mitigation may increase a minimum period of imprisonment, sentencing factors in favour of mitigation may reduce it; (e) any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the minimum period of imprisonment; and (f) there is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison. 121 In my view, taking into account the seriousness of Mr Stack's offending, including the aggravating factors I have identified and taking 13 Musca v R [2021] WASCA 37 [66] - [71]. 14 R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 [172] - [177]. 15 R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 [118] - [124]. -- 20 of 21 -- [2026] WASC 331 PALMER J Page 21 into account the relevant mitigating factors and the need for appropriate punishment and specific and general deterrence, the minimum period of imprisonment that justice requires Mr Stack serve for the Commonwealth offence is 10 months. 122 I will therefore make a recognisance release order that Mr Stack be released upon giving security in the sum of $2,000.00 to be of good behaviour for 6 months, after serving 10 months of the 12 month term of imprisonment for the Commonwealth offence. Parole 123 The respondent does not oppose an order that Mr Stack be made eligible for parole in relation to the State offence. It is in the interests of both the community and Mr Stack that he is supported and has access to services upon his release from prison. I will make an order that he is eligible for parole in relation to the State offence. Conclusion 124 For these reasons, I allowed the appeal and resentenced Mr Stack as I have set out above. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VS Associate to the Hon Justice Palmer 13 AUGUST 2026 -- 21 of 21 --