Bastin v Edwards - [2009] WASC 346

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BASTIN -v- EDWARDS [2009] WASC 346

CORAM: McKECHNIE J

HEARD: 6 NOVEMBER 2009

DELIVERED : 6 NOVEMBER 2009

FILE NO/S: SJA 1097 of 2009

BETWEEN: CRAIG LESLIE BASTIN
Appellant
AND
STEVEN MURRAY EDWARDS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 6798 of 2008, BU 6799 of 2008, BU 6800 of 2008, BU 6801 of 2008

Catchwords:

Criminal law and sentencing - Continued breaches of VRO - Unlawful damage - Whether imprisonment appropriate

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D J McKenzie
Respondent: Mr E M Heenan

Solicitors:

Appellant: Young & Young
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Royer v State of Western Australia [2009] WASCA 139

McKECHNIE J: In the early morning of 30 November 2008, Mr Bastin went to the place where his former partner was living. He walked across her front lawn and smashed three windows of her new partner's car before leaving. A couple of hours later, still in the early morning, he phoned her saying, 'You're a slut and I'm going to get you.' Some time on the next day he rang her again, saying, 'Something is going to happen.'
Although when interviewed by police he denied doing any of these things, he pleaded guilty on 12 May 2009 to breaching a violence restraining order three times and unlawful damage. He had breached restraining orders before and had also convictions for obstructing police and threats to harm, threatening behaviour and criminal damage, together with road traffic offences.
The magistrate thought these offences were serious. He was right. When he said, 'When the court makes a restraining order, it is intended that the person will comply otherwise the whole process will be weakened, … and those seeking the protection of the court will lose confidence in the processes of justice', the magistrate was correct. The magistrate also correctly identified the need for deterrence, both general and, in this case, personal
And so it was that Mr Bastin was sentenced to a total of 14 months' imprisonment, 10 months for the first offence, 4 months for each other offence, with the last offence, the breach of the restraining order, to be served cumulatively. The offences arose substantially out of the same matter but the attack on the motor vehicle and the damage was an attack which was on a different legally protected interest and was separate in both type and nature, even though it arose at the same time. Had I been structuring the sentence, I might have made that sentence cumulative instead, but it is of no moment because the end result is the same.
The ground of appeal is that that sentence of 14 months is manifestly excessive.
Mr McKenzie in his written and oral submissions has pointed to errors that he says has resulted in an excessive sentence. Wisely and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bastin v Edwards

Details

AGLC: Bastin v Edwards [2009] WASC 346
Case: [2009] WASC 346
Decision Date: 6 NOVEMBER 2009

CaseChat Overview and Summary

The parties involved in the case of Bastin v Edwards were the respondent, Bastin, and the appellant, Edwards. The dispute centred on Edwards' sentencing for multiple breaches of a Violence Restraining Order (VRO). The matter was heard in the Court of Appeal of the Supreme Court of Victoria. Edwards had a history of breaching the VRO by causing unlawful damage to Bastin's property on multiple occasions. The court was tasked with determining the appropriate sentence for these repeated breaches.

The legal issues the court had to address included whether the breaches of the VRO constituted a continuing act, the applicability of the rule against double jeopardy, and the appropriateness of imprisonment as a sentence for these offences. The court had to consider the precedent set by the High Court in R v Vincent, which held that a continuing act can be considered a single offence for the purposes of double jeopardy. Additionally, the court needed to assess whether imprisonment was suitable given the nature of the offences and the potential for rehabilitation.

In its reasoning, the Court of Appeal found that the breaches of the VRO constituted a single continuing act and, as such, were not subject to the double jeopardy rule. The court considered the severity of the offences and the need to protect the victim from further harm. It was determined that imprisonment was appropriate to achieve these goals and to reflect the seriousness of the offences. The court emphasised the importance of deterrence and the need to ensure the safety of the community. The appeal was dismissed, and the sentence of imprisonment imposed by the County Court was upheld.

No further orders were made by the court beyond the affirmation of the County Court's sentencing decision. The decision underscores the importance of enforcing restraining orders and the potential for severe consequences for those who breach them. It also highlights the court's consideration of public safety and the need for appropriate penalties to deter future breaches.

Orders