Published February 2026
Unlawful access offence WA – immediate imprisonment avoided
Perrella Legal represented a young public-sector employee facing an unlawful access offence and numerous traffic charges. Although both parties initially anticipated fines, the Magistrate indicated that immediate imprisonment was under consideration.
Through carefully prepared sentencing submissions, challenges to the scope of the prosecution’s allegations and reliance on relevant Court of Appeal authorities, we secured an outcome that allowed our client to retain his liberty.
Defending an unlawful access offence in WA
A sentencing hearing expected to end in fines took an alarming turn when the Magistrate made clear that imprisonment was under active consideration.
Our client, a young public-sector employee, was before the Magistrates Court for numerous traffic offences together with an allegation that he had unlawfully accessed information during the course of his employment. Before the hearing, both the defence and prosecution had regarded fines as the likely and appropriate outcome. The Court took a different view.
Her Honour indicated that imprisonment was very much on the table. That immediately changed the complexion of the sentencing hearing and created a far greater risk than our client had anticipated. A second issue then emerged. The statement of material facts referred to multiple acts of unlawful access, even though only one unlawful-access charge was before the Court. Her Honour raised the possibility that additional charges might be laid because the factual summary appeared to describe conduct extending beyond the single offence charged. What had been expected to be a relatively contained sentencing exercise suddenly became much more serious.
Our immediate focus was to protect our client from two risks: first, that he might be punished for conduct that had not actually been charged; and second, that the combination of the unlawful-access offence and the traffic matters might persuade the Court that immediate imprisonment was warranted. We responded by assembling detailed character references and supporting material directed to our client’s personal circumstances, youth, employment history and future prospects.
The purpose of that material was not simply to present him in a favourable light. It was to give the Court a proper basis to assess whether imprisonment was truly necessary and whether the offending could be dealt with in a way that recognised both its seriousness and our client’s prospects of rehabilitation. At the commencement of the sentencing hearing, the prosecution confirmed that no additional unlawful-access charges had been filed. It nevertheless submitted that the Court could take the entirety of the statement of material facts into account when determining penalty. We challenged that approach.
Our position was that the prosecution was required to identify precisely which conduct constituted the offence actually before the Court. A sentencing court may consider the circumstances surrounding an offence, but a person should not effectively be punished for separate criminal acts that have not been charged and proved. That distinction had an important practical effect.
By requiring the prosecution to identify the conduct properly forming part of the charge, we substantially narrowed the criminality for which our client could legitimately be sentenced. The traffic offending also required careful treatment. The number of charges and the circumstances of the driving created an obvious risk that the Court might regard the overall conduct as sufficiently serious to justify immediate imprisonment. We therefore directed the Magistrate to relevant Court of Appeal decisions involving experienced and repeat traffic offenders who had committed similar, and in some instances more serious, offending but had nevertheless avoided immediate custody. The point was not to minimise our client’s conduct. It was one of sentencing consistency. If offenders with more entrenched traffic histories and serious offending had been dealt with without immediate imprisonment, there was a strong argument that our young client should not be treated more harshly. We also emphasised that our client was still at an early stage of his adult life and career, and that an immediate custodial sentence would have consequences extending well beyond the punishment itself.
By the end of the hearing, the case looked very different from the position that had confronted us when the Magistrate first raised the prospect of jail. The scope of the unlawful-access offending had been confined to the conduct properly before the Court, the sentencing authorities had been placed before Her Honour, and the Court had the benefit of substantial material addressing our client’s character and future prospects. Ultimately, our client retained his liberty and avoided an immediate custodial sentence.
The outcome demonstrated the importance of being prepared to challenge the scope of the prosecution case even at sentence. It also showed how quickly a hearing expected to result in fines can become far more serious when the Court identifies broader concerns about the offending. In this case, careful preparation, relevant sentencing authorities and a willingness to contest the legal basis on which punishment could be imposed made a decisive difference.