Baudoeuf v Venning - [2010] WASC 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BAUDOEUF -v- VENNING [2010] WASC 322

CORAM: EM HEENAN J

HEARD: 19 AUGUST 2010

DELIVERED : 19 AUGUST 2010

PUBLISHED : 17 NOVEMBER 2010

FILE NO/S: SJA 1051 of 2010

BETWEEN: KARL DAVID WILLIAM BAUDOEUF
Appellant
AND
BERNADETTE MOLLIE VENNING
First Respondent
GLENN WILLIAM CUTLER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 6321 of 2009, BS 1537 of 2009

Catchwords:

Appeals against sentence - Breach of Violence Restraining Order - Fourth breach - No actual violence - Extenuating circumstances - Two concurrent sentences of imprisonment - Variation of sentence - Suspended imprisonment order

Legislation:

Criminal Appeals Act 2004 (WA), s 12(1)
Sentencing Act 1995 (WA), s 83, s 84, s 84A, s 84B

Result:

Leave to appeal granted
Appeal allowed
Sentences of immediate imprisonment set aside
Sentence of conditional suspended imprisonment imposed

Category: B

Representation:

Counsel:

Appellant:     Mr D S Hunter
First Respondent           :     Ms L White
Second Respondent      :     Ms L White

Solicitors:

Appellant:     Legal Aid Bunbury
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

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

Brown v The State of Western Australia [2009] WASCA 74
CJ v The State of Western Australia [2009] WASCA 42
Cullen v Rollings [2009] WASC 80
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hone v The State of Western Australia [2007] WASCA 283
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Lutey v Jacques [2010] WASC 78
Matthews v Whalley [2010] WASC 165
R v Ferguson [2002] WASCA 92
R v Verdins [2007] VSCA 10; (2007) 16 VR 269
Salkilld v The State of Western Australia [2010] WASCA 22
Stewart v Waghorn [1999] WASCA 150
The State of Western Australia v Reynolds [2006] WASC 31

EM HEENAN J: On 23 April 2010 the appellant, Karl David William Baudoeuf, pleaded guilty in the Magistrates Court at Bunbury to the charge that on 12 December 2009 he was in breach of a violence restraining order made against him on 4 June 2009 on the application of the protected person. He had entered a plea of guilty on 21 December 2009 but had been released on bail pending the preparation of a pre‑sentence report and a psychiatric report. These later came to hand and were before the learned magistrate on the occasion of the sentencing at Bunbury on 23 April 2010.
The appellant had previously breached the same violence restraining order and had been convicted, on his plea of guilty, of that offence in the Magistrates Court at Busselton on 20 September 2009. He was then sentenced to a term of 7 months' imprisonment suspended for a period of 9 months. Accordingly, the breach of the VRO for which the appellant was sentenced on 23 April 2010 also constituted a breach of the terms of that suspended imprisonment order. So the appellant was also dealt with for that breach by her Honour in the Magistrates Court at Bunbury on 23 April 2010.
The learned magistrate imposed a sentence upon the appellant of 7 months' imprisonment, to be served immediately for the offence of breaching the VRO to which he had pleaded guilty on 21 December 2009. Her Honour also imposed a term of 7 months' imprisonment to be served immediately for the appellant's breach of the terms of the suspended imprisonment order and directed that both sentences of imprisonment should be served concurrently and that they should commence from 23 April 2010.
Previously the appellant had been in custody from 12 December 2009 to 21 December 2009 following his arrest on the former date when he was charged with being in breach of the VRO. He remained in custody until 21 December 2009 when he was released on bail after a hearing at which his counsel had submitted that he may have suffered from mental health problems. The learned magistrate had adjourned the sentencing for that offence on 21 December 2009 to allow a detailed psychiatric report to be obtained as already described.
By appeal notice dated 18 May 2010 filed on 20 May 2010 the appellant sought leave to appeal against both these sentences on draft grounds of appeal then proposed. His application for leave to appeal came before Murray J on 26 May 2010. His Honour on that day granted leave to appeal upon the grounds appended to the notice of appeal; granted leave to amend the names of the respondents; and, pursuant to s 12(1) of the Criminal Appeals Act2004 (WA) directed that the sentences of imprisonment imposed in the Magistrates Court on 23 April 2010 should be suspended until the final determination of the appeal. His Honour granted the appellant bail on specified terms and gave further directions for the preparation of the appeal for hearing. The appellant was thereupon released from custody, having been in prison under the sentences from 23 April 2010 to 26 May 2010.
The appellant's grounds of appeal, as later amended, are as follows:
GROUND 1
1.The Learned Magistrate erred in imposing immediate sentences of imprisonment by failing to take into account or failing to adequately take into account the following:
i.The Appellant's complex mental health issues and their contribution to the offending.
ii.The Appellant's compliance with mood stability medication after the offences were committed and before sentence.
iii.The victim's efforts to resume and continue her relationship with the Appellant despite the existence of a Violence Restraining Order taken out by the victim and despite the Appellant being subject to a Suspended sentence of Imprisonment for a previous breach of the same Violence Restraining Order.
iv.The victim's use of the Violence Restraining Order as a means of controlling the behaviour of the Appellant, as detailed in the pre‑sentence report.
v.The victim and the Appellant having lived together in a relationship for 3 months when the Appellant was charged with Breach of a Violence Restraining Order as detailed in the psychiatric report.
vi.The victim's withdrawal of the Violence Restraining Order the Appellant was subject to before bail was granted and prior to sentence.
vii.The Appellant, in the four months after being released on bail on 21 December, 2009 and prior to being sentenced, on 23 April, 2010 was displaying increased stability as a result of having obtained full‑time employment and having separated from the victim.
Particulars
(a)The Learned Magistrate failed to place sufficient weight on the circumstances of the offences, being that the two breaches of Violence Restraining Order on which the Appellant was sentenced, were non‑violent and consensual.
(b)The Learned Magistrate failed to adequately consider the recommendations contained in the pre‑sentence report and the psychiatric report, being that the Appellant would benefit from community supervision, mental health counselling, participating in a domestic violence program and complying with medical treatment including taking prescribed psychotropic medication as the preferred sentencing option.
(c)The Appellant's limited criminal record and the basis of the majority of the record being linked to his dysfunctional relationship with the victim and the Appellant's complex mental health issues.
(d)The Appellant had never been imprisoned.
(e)The Appellant had never been subject to a community order.
(f)The age difference between the Appellant and the victim and the resulting imbalance of power in the relationship in favour of the victim.
At the end of the hearing of this appeal on 19 August 2010, I was satisfied that the appeal should be allowed and that the sentences of imprisonment should be set aside. Accordingly, I made orders to that effect and directed that no penalty should be imposed in relation to the second breach of the VRO occurring on 5 August 2009, but directed that, in relation to the breach of the VRO which occurred on 12 December 2009, the appellant should be sentenced to a period of conditional suspended imprisonment for 7 months, to commence from 23 April 2010, and that that sentence should be wholly suspended for a period of 9 months. I also directed that this conditional period of suspended imprisonment should include the standard obligations under s 83 of the Sentencing Act 1995 (WA) together with primary requirements under s 84 to include a programme requirement and a supervision requirement under s 84B, which should specifically include obligations for the appellant to continue to follow the therapy prescribed by his medical advisers and to participate in the treatment programmes advised by the attending medical officer and the psychiatric services. At the time, I gave short oral reasons for that decision and those orders, but stated that more detailed reasons would be given in due course. These, then, are the more detailed reasons which should be taken as amplification of the brief reasons given on 19 August 2010.

Background

The appellant's breach of the VRO, committed on 12 December 2009, and for which he was sentenced by her Honour, was his fourth breach of a VRO in respect of the same protected person. As already stated, it also constituted a breach of the terms of the suspended imprisonment order which had been imposed upon him for his second breach of the VRO in respect of the same person in this series of breaches.
At first sight, therefore, it may not seem excessive or incongruous that these sentences were imposed by the learned magistrate because, how else, one may ask, should such persistent offending be dealt with? However, any such response to the history of events assumes that, by and large, this progression of offences showed increasing degrees of culpability by the offender and recurrent threats, annoyance or inconvenience to the protected person. As the unusual events in this case demonstrate, however, such assumptions would be quite unjustified and the conduct of the offender and of the protected person was, on any view, strange and unorthodox. To set the scene it is necessary to describe something about the circumstances of the offender and of the protected person before turning to the historical narrative.
The appellant was born on 18 January 1985 and was, therefore, 25 years of age when sentenced by her Honour. He was aged 24 years at the time of the offences. He was and is single. By occupation he is a rouseabout/shearer. He had been diagnosed with ADHD as a child and has a history of mental health issues for which he had been attending the South‑West Mental Health Services over the period from 11 March 2009 to 31 August 2009. His diagnosis was chronic risk, anti‑social traits and ADHD and he had been prescribed various medications for the ADHD and an anti‑psychotic medicine designed to reduce his tendency to sudden aggressive moods and blackouts. This history of aggressive behaviour was thought to be linked to his mental health problems and/or to his history of substance abuse involving cannabis and, formerly, ecstasy.
A detailed report from a consultant psychiatrist, Dr S Febbo FRANZCP, which was before her Honour, reported that the appellant presented in keeping with a schizo‑affective disorder, an ADHD history, personality disorders and mental retardation. Dr Febbo believed and recommended that he should continue to receive assertive treatment through the community mental health service.
The protected person was 52 years of age at the time of the offences and had been living in a de facto relationship with the appellant on and off for about 18 months. As the details of the events to be described will disclose she first obtained a VRO against the appellant on 5 June 2009 but, shortly afterwards, unsuccessfully applied to the Magistrates Court to have that withdrawn. Despite the currency of that VRO it was she who initiated each of the resumptions of cohabitation which followed and which, by the very fact of resumption of cohabitation, constituted the repeated breaches of the VRO.
After the last conviction of the appellant on 23 April 2010 the protected person took out a second VRO against him which remained current while he was in prison. On discovering that the prison authorities were refusing to allow her to visit the appellant in prison when she attempted to do so, because of the currency of that latest VRO, the protected person then applied to the Magistrates Court successfully for it to be discharged. Since the appellant has been released on bail there is no longer any VRO current against him and he has, under the influence of his family, no doubt wisely, ceased to have any contact with the protected person since. Also after his release from prison he has had further psychiatric assessment and treatment and has now been successfully stabilised on a pharmacological regime for his condition, so much so that the last three months have passed without adverse incident.
Nevertheless, it is necessary to give details of the background involved in the offending, the issue of the two VROs and the series of breaches.

History of relationship and court orders

Quite how and when it started is not exactly known but it is common ground that the appellant and the protected person, Helen Joan Stevens, were in a de facto relationship for approximately a year before the first incident on 30 May 2009, which later attracted police attention. Until then, they had been living together at the appellant's address at 12 Paperbark Way, Vasse.
The history of disturbances and police intervention began on 30 May 2009. That evening at about 6.00 pm, a Saturday, the appellant and Ms Stevens were at the appellant's home at 12 Paperbark Way, Vasse, watching television when an argument started over a DVD which had been rented earlier that day. By this stage, the pair had been in a de facto relationship for about one year. In the course of this argument there was a struggle between them, Ms Stevens attempted to leave the house by the front door, when she was grabbed, pushed back inside, and in the ensuing struggle her head hit the ground and the appellant forced her head into the ground several times and kicked her in the body area. The assault continued with the protected person being thrown on to the couch before the appellant realised what he was doing and then started to console her. Four days later, on Wednesday, 3 June 2009, Ms Stevens attended the Busselton District Hospital to request medical attention. Once the medical staff had been advised of what had occurred, the police were called and the appellant was then located in the hospital waiting room and arrested. He was charged with aggravated assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA). On 30 June 2009 he was convicted of this charge in the Busselton Magistrates Court and fined $1,250.
It was on 4 June 2009 ‑ the day after the appellant's arrest at the Busselton District Hospital on the assault charge ‑ that an application was made to the Busselton Magistrates Court for a VRO against the appellant for the protection of Ms Stevens. The VRO was granted by the magistrate that day and served on the appellant the following day, 5 June 2009. That is the VRO which is the subject of all the following breach charges against the appellant. However, as earlier indicated, it was later withdrawn, then replaced with a second VRO, which in turn also has since been withdrawn.
Only five days after the first VRO had been granted, that is, on 9 June 2009, Ms Stevens applied to another magistrate at the Busselton Court for the discharge of the VRO. It seems that this application was made entirely of her own volition and without any threats or inducements from the appellant, but the magistrate then presiding refused to discharge it. Counsel for the respondent submitted that, essentially, his Honour's reasons for refusing were that his Honour believed that the protected person was wasting the court's time because there could not have been such a major change in the situation within four days so as to warrant removal of the need for the protection given by the VRO.
Notwithstanding this, as the narrative shows, there was a breach of the VRO on 12 June 2009 when, at the protected person's initiative, the two resumed cohabitation, leading to the first charge and conviction on 30 June 2009 for breaching the VRO. That was the same day on which the appellant was dealt with by the Magistrates Court for the assault occasioning bodily harm. For the breach of the VRO he was fined $400.
On 5 August 2009 the protected person was living at site 94, 43 Commonage Road, Quindalup in a caravan at a caravan park. It was her caravan. They had been living together there for some time, Ms Stevens having picked the appellant up from his home several days earlier. An argument occurred between them inside the caravan, the appellant picked up a fishing knife, drew it from its sheath and looked at it, before resheathing it and putting it back in a fishing bag. Ms Stevens ran out of the caravan and asked a nearby resident to call the police. Eight days later the appellant was located and arrested and charged with being in breach of the violence restraining order made on 4 June, served upon him on 5 June 2009, forbidding him from communicating with or attempting to communicate by whatever means with the protected person or entering or loitering near any place where the protected person lives, or being in close proximity with her.
The appellant's arrest on 13 August 2009 was also at site 94, 43 Commonage Road, Quindalup. He was then in the caravan with the protected person when the police attended and he was arrested and charged with an additional breach of the same VRO.
Later, on 12 December 2009, the appellant was living at 21 Falkingham Road in Busselton. Again, the protected person, Helen Joan Stevens, was with him and they had been living together at that address for approximately three days before then. It was on 12 December 2009 that police went to that address, in response to a call, to find the appellant and Stevens having a verbal argument in a parked vehicle at the front of the premises. The appellant was arrested and charged with being in breach of a VRO which had been served on him on 5 June 2009.
The charge for this second breach of the VRO was dealt with in the Busselton Magistrates Court on 20 September 2009, resulting in a fine of $300.
However, as previously stated, shortly after the breach of 5 August 2009 the appellant returned to the premises of Ms Stevens on 13 August 2009 and was arrested by the police then at her caravan. That was his third breach of the VRO, for which he was fined $300.
The prosecutions for the second and third breaches were heard together in the Magistrates Court at Busselton on 20 September 2009. It was for the second breach that he was then sentenced to a period of 7 months' imprisonment, itself to be suspended for a period of nine months.
The sentencing remarks of her Honour, Magistrate Edwards, in the Busselton Magistrates Court on 20 September 2009 are annexed to the pre‑sentence report forming part of the materials received on this appeal. On that occasion, the obligations arising from the VRO were repeated by the learned magistrate in unmistakable terms to the appellant. Her Honour said, among other things:
From the facts put to me it does appear as if the protected person has encouraged you, in effect, to breach the orders by either contacting you or allowing you to stay with her. So to some extent that is mitigatory as far as you are concerned. However, you would have been well aware on each of these two occasions that to respond to any request to stay with or visit the protected person would have been in breach of the order because you have previously been convicted of breaching violence restraining orders.
A restraining order is a court order, Mr Baudoeuf. It's not an order that the protected person sort of has issues. It's a court order and the court is telling you you are not to approach or communicate with the protected person. Whether or not the protected person contacts you, it doesn't mean that you can then go and spend time or speak to or go anywhere near the protected person, because the court is telling you not to. So do you understand what I'm saying to you?
BAUDOEUF, MR: Yeah, I understand.
HER HONOUR: So the obligation is on you to resist any overtures from the protected person to speak to her, go and see her, stay with her or whatever, because the court is telling you you can't do that.
To have two prior convictions and be back before the court for two more, Mr Baudoeuf, ordinarily I would be looking at an immediate term of imprisonment because it indicates that you simply have absolutely no regard for the court orders but, given the circumstances as they have been explained to me, I am prepared to not imprison you immediately today.
…

As already stated, her Honour imposed a 7‑month term of imprisonment upon the appellant for the first of those offences (the second breach of the VRO), itself to be suspended for 9 months, and a fine of $300 in respect of the second offence (the third breach of the VRO).
Next comes the fourth breach of the VRO, which occurred on 12 December 2009. As already described, this was at the appellant's address at 21 Falkingham Road, Busselton, where he and Ms Stevens had then been living together for about three days. This was the occasion when the police were called when they were arguing in the car parked outside and he was arrested, charged, and remained in custody until 21 December 2009, when he was released on bail to allow the pre‑sentence report and psychiatric reports to be obtained.
On that day, 21 December 2009, the VRO which had been in effect until then from 4 June 2009 was withdrawn by Ms Stevens, notwithstanding that the appellant was then released on bail. From then on, there was no VRO until some time after 6 March 2010, when Ms Stevens and the appellant ended their relationship and she then sought and obtained the second VRO.
As previously stated, it was on 23 April 2010 that the appellant was sentenced by her Honour to the two concurrent periods of seven months' imprisonment which are the subject of this appeal. While he was in prison under those sentences, before being released on bail by the order of Murray J on 26 May 2010, the protected person attempted to visit him in prison but was refused access because of the then current second VRO. As a result of this, she then returned to the Magistrates Court at Bunbury and withdrew that second VRO. So from the time when the appellant was released on bail pending this appeal to date there has been no VRO applying to him. Since his release on bail, the appellant has been living with his mother in Bunbury and there has been no suggestion of any further contact with the protected person. It seems that their previous relationship has finally ended.
Earlier I made reference to the appellant's history of mental illness or disturbance and to the fact that he had been attending the South-West Mental Health Services for treatment during the period March to August 2009. I also mentioned his subsequent psychiatric treatment in February 2010. In his report to the Bunbury Court of 23 March 2010 the consultant psychiatrist, Dr S Febbo FRANZCP, concluded by saying:
In relation to management and recommendations, it is my view that Mr Baudeouf continues to require assertive treatment through the community mental health service. Considering the complexity of Mr Baudeouf's presentation, a multi‑disciplinary team approach would be most beneficial. It would be useful to have both psychiatric and psychological input to address the mental health issues. He continues to require psychotropic medication.
In relation to his prognosis, it is my view that Mr Baudoeuf's psychiatric condition will remain relatively chronic and he will need to remain on treatment indefinitely. Mr Baudeouf has a number of risk factors suggesting a significant potential for future violence and these include significant personality pathology, his Axis One condition, difficulties managing stress and coping, difficulties in relationships, and limited insight. It is my view that there is a moderate risk of future violence.
Notwithstanding this, there is no suggestion that Mr Baudoeuf has been involved in any violent altercations with the protected person or anyone else since his release on bail on 26 May 2010 pending the determination of this appeal. The appearances are that he is managing under medical supervision and that there are prospects of him returning to full‑time work as a rouseabout.
It is important to note, as pointed and acknowledged by counsel for the respondents, that the only occasion of actual violence which occurred between the appellant and the protected person was the assault on 30 May 2009 which led to the grant of the first VRO on 4 June 2009. None of the subsequent four breaches of that VRO involved any actual violence to the protected person, although it must be said that the incident where the knife was drawn from its sheath inside the caravan on 5 August 2009 may have constituted an implicit threat. Similarly, it is acknowledged that each of the four breaches involved the appellant being in proximity with the protected person, in fact, being engaged in the resumptions of cohabitation which, in several instances, had lasted for quite some time. Each of those resumptions of cohabitation had occurred at the instance of the protected person.

The appellant's other criminal record

Mr Baudeouf has a minor criminal and traffic record commencing on 21 April 2008 with a conviction for driving contrary to a learner's permit. There are two prior convictions for disorderly conduct, one of threat to injure, and one of driving with a blood alcohol content in excess of 0.08 per cent. Then there is the charge of aggravated assault occasioning bodily harm and the four offences for being in breach of this VRO. All the offences occurred between 19 March 2008 and 12 December 2009. The pre‑sentence report and the psychiatric report indicate that those offences of disorderly conduct and threat to injure are consistent with his disturbed personality traits and his history of sudden impulsive aggressive behaviour associated with his mental dysfunction which, at the time, was not subject to any medical or pharmacological treatment or control.
The appellant's first sentence of imprisonment was that imposed on 20 September 2009 but then suspended. The first occasion upon which he was ever sentenced to an immediate term of imprisonment was when the sentences now under appeal, were imposed on 23 April 2010. Counsel for the appellant points out that, despite his disadvantaged upbringing and clear history of mental dysfunction, he has never been sentenced to any form of community‑based order.

Approach of sentencing magistrate

It must immediately be acknowledged that the learned magistrate had an extremely difficult, unusual and delicate task to perform in deciding what disposition to impose following the convictions of the appellant for his third and fourth offences of breaching this VRO. Her Honour was faced with the obvious fact that non‑compliance with a VRO is a serious thing and that it frequently results in custodial sentences. Furthermore, this appellant had, by the time her Honour came to deal with him, been subject to a VRO and had been convicted on three previous occasions of having been in breach of it. The third of those convictions had resulted in a suspended sentence of 7 months' imprisonment. Her Honour was dealing with a fourth breach of the VRO. The appellant had been subject to a gradually ascending series of penalties for the three previous breaches, showing that he had been subject to earlier leniency. However, he had been warned explicitly that immediate imprisonment was likely if he were to offend again. Despite all this, he resumed cohabitation with the protected person not long after his third conviction for breaching the VRO, although, as before, the resumption of cohabitation was at the instance of the protected person.
The protected person is a lady who is considerably older and more mature than the appellant, who has a history of chronic but specific mental illness and difficulties. Her Honour was faced with the dilemma of how to deal with a situation in a way which should ensure protection of the lady concerned, notwithstanding her own inadvisable behaviour. Nevertheless, it was a situation which, so counsel for the appellant submits, and I am inclined to accept, was one in which the power balance within the relationship and the source of initiative and influence lay with the lady concerned rather than with the appellant.
Her Honour was obviously concerned about the unusual features of this case and, recognising them, on 21 December 2009 ordered the community pre‑sentence report and the special psychological report, which were subsequently made to the court. These were very thorough and comprehensive and it is apparent that her Honour gave them close attention.

Details of her Honour's reasoning

Her Honour's approach to this exercise of the sentencing discretion is recorded in the transcript of proceedings of the Magistrates Court at Bunbury on 23 April 2010. Counsel for the appellant identified the factors which I have already summarised and laid considerable emphasis upon the diagnosis and report of the appellant's mental health difficulties set out both in the PSR and in the report of Dr Febbo. The learned police prosecutor, with every proper responsibility, submitted that the matter was not at the upper end of the scale but that the concerning aspect was that the appellant had been placed on a suspended term of imprisonment not long before, leading to the question of whether or not the court should send a message that one simply cannot choose to ignore an order of the court. The prosecutor adopted a very balanced approach, saying that on the other side of the coin there was the fact that the breach was at the lower end of the scale and that the victim had attempted to withdraw the VRO. The prosecutor appears to have accepted the fact that the appellant did have mental health issues and was in a somewhat unusual relationship.
Her Honour commenced her detailed observations when imposing sentence by acknowledging that this was a very complex exercise. Her Honour adverted to the recommendation in the PSR that a community‑based disposition should be imposed but pointed out that a pre‑sentence order was not available because this offence involved a breach of a term of suspended imprisonment.
The particular passages which appear to encapsulate her Honour's approach were identified by counsel for the appellant, and I accept that these were integral to the final disposition. At pages 9 and 10 of the transcript her Honour said:
It does say that Mr Baudoeuf has a schizoaffective disorder, attention deficit hyperactivity disorder, borderline personality disorder and antisocial personality traits. He sates that when he saw Mr Baudoeuf he noted the presence of significant psycho-social stress relating to his relationship and issues stemming from his diagnosis and Ms Huber has referred to the issues regarding the children and his relationship with the protected person. He notes that Mr Baudoeuf needs psychiatric and psychological input and that he has a number of risk factors suggesting a risk of future violence which is not particularly relevant to this sentencing. Ms Huber has told me that Mr Baudoeuf is now medicated and is having treatment.
So, certainly taken from that report it is quite clear that at the time of the offence and at the current time Mr Baudoeuf does suffer from significant mental issues. The Supreme Court has recently considered the matter of mental illness in sentencing and the relationship between the two.
I certainly don't think that those cases indicate that mental illness precludes a sentence of imprisonment being imposed if it's otherwise the appropriate sentence having considered all other matters relevant to sentencing. The case is set out that the mental illness of an offender is relevant to the sentencing process in a number of ways and I am referred to the case of Chris Jesterak [sic - Krijestorac [2010] WASCA 35]] which quite clearly sets out, in not a limited sense, how mental illness can be relevant to sentencing.
Now, Dr Febbo has stated that Mr Baudoeuf complex psychiatric condition contributed to the offending. He doesn't specify how it contributed or whether this was a cause or contribution. For example, because it impaired his judgment or ability to appreciate that what he was doing was wrong. I don't really think that that's the case in this matter.
That would have been the most relevant to sentencing in this case. He does state that Mr Baudoeuf has significant psycho‑social stresses related to his relationship and issues stemming from his mental health diagnosis and that would be relevant in this case, given the breaches relate to the relationship that he had. I consider that, however, in relation to this offence Mr Baudoeuf chose to breach the VRO and he did so having just been warned by the court a few months before that it was wrong to do so and that it was a court order and he could not breach it even when invited. This was a non‑violent offence and there is no suggestion that he blacked out at the time as he had done with previous violent episodes.
The psychiatric evidence noted the need for treatment and it seems that Mr Baudoeuf is now established in that treatment and that the PSR says he would benefit from community supervision. Now, taking into account the psychiatric evidence and the other matters which I have just tried to canvass at some length I am not persuaded that a term of imprisonment is not an appropriate sentencing option for yet another breach of VRO by Mr Baudoeuf.
In fact a lesser sentence wouldn't reflect, in my view, the seriousness of repeated breaches of VRO. Especially the fact that this offence, even taking into account where it stands in the scope of seriousness occurred during a suspended sentence for exactly the same reasons and notwithstanding the psychiatric evidence I do not consider it would be unjust to trigger the sentence that has previously been in place. Well I have set out why I consider that to be. Also, there are some clear mitigating factors in this matter but in my view these can be recognised by making the terms for this current offence and the suspended terms the same length and concurrent.
The essential submission advanced by counsel for the appellant was that, in dealing with the case in this fashion, the learned magistrate made an error of fact in concluding that the psychiatric evidence did not support a conclusion that it was the mental illness or disturbance which led to the commission of the offences. Her Honour appears to have construed the medical evidence as meaning that the previous occasional violent episodes and uncontrolled sudden aggression were part of the associated mental illness or dysfunction but that the non‑aggressive resumptions of cohabitation were not but were, rather, part of a course of conduct over which the appellant could and should have exercised restraint and control in obedience to the VRO.
I can appreciate how her Honour may have come to that conclusion and created such a distinction but, with all respect, I do not consider that that is consistent with the report of Dr Febbo or with the pre‑sentence report. I do not think that it can be in doubt that Dr Febbo was of the view that the influences of the disturbed mental processes, depressive affect, submissive personality and other disorders which he described were more pervasive and enduring than just being confined to the episodes of sudden violence. His report said, in as many words, that:
From the psychiatric perspective Mr Baudoeuf's mental state is a complex one. There is a history of psychotic symptoms including auditory hallucinations going back at least two years. There is also a relatively lengthy history of depressive symptoms and these symptoms were described as being of at least moderate severity. In addition there is a history suggestive of marked personality pathology with the presence of a borderline personality disorder in addition to significant anti‑social personality traits. The presence of significant anger and periods of aggression, for which Mr Baudoeuf has little memory, can be conceptualised as being dissociative symptoms that are not uncommon in this personality structure.
I note the presence of instability in childhood and it is likely that this background predisposed Mr Baudoeuf to the presence of psychiatric disorder in adulthood, in particular, the personality structure.
In my view it is likely that Mr Baudoeuf's complex psychiatric condition contributed to the offending …
In view of Dr Febbo's opinion that it was likely that the appellant's complex psychiatric condition contributed to the offending, I consider that it was a material error of fact for her Honour to conclude that the non‑aggressive resumptions of co‑habitation were part of a course of conduct over which he could and should have exercised restraint and control in obedience to the VRO. I do not doubt that he should have exercised restraint and control over that conduct and that he should have complied with the VRO but the reasons why he did not do so are, on the evidence, explained to a material degree by the underlying mental health history.
This does not diminish the illegality of the conduct but it is relevant to the degree of culpability involved and the threat which the appellant might continue to pose to the protected person or others. In view of the history of the cessation of their relationship, and the establishment of Mr Baudouef in the community on an apparently effective supervised regime of mental health management and pharmacology, there is every reason to conclude that any threat to the protected person has now passed or been brought under control.
It is in this setting, therefore, that the appeals from the sentences imposed should be approached. The principles on which an appeal against sentence should be considered and determined are not in doubt. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the primary judicial officer. However, error may be inferred if the result is unreasonable or unjust or the sentence is manifestly excessive: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672, and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325. So it is that an appellate court may intervene if it is apparent that the primary court has acted upon a wrong principle or taken into account extraneous or irrelevant matters or may have mistaken the facts or not taken the relevant matters into account: Dinsdale (324, 339 ‑ 340).
I have already indicated that the approach with the learned magistrate took to the medical evidence and the distinction drawn between the appellant acting in the course of a violent episode associated with his mental history, and otherwise acting in disregard of the VRO, as being separate and distinct matters, so that the latter was not to be regarded as a product of the mental health history, was not a view supportable on the evidence. In Hone v The State of Western Australia [2007] WASCA 283 the Court of Appeal observed that where expert evidence is given and not challenged and where there is no evidence to contradict the expert opinion, a finding at variance with the expert opinion should not be made ‑ see Steytler P [13] and Miller JA [124] ‑ [127]. See also CJ v The State of Western Australia [2009] WASCA 42 (McLure JA). In Krijestorac v The State of Western Australia [2010] WASCA 35 Wheeler JA at [17] ‑ [18] referred to the Victorian case of R v Verdins [2007] VSCA 10; (2007) 16 VR 269 and approved the passage in the latter case in which the Victorian Court of Appeal observed at [26]:
The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of:
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the attempt to commit the offence; or
(f)contributing causally to the commission of the offence.
It is clear that the report of Dr Febbo indicated that the appellant's mental health problems, including psychotic, depressive and dissociative symptoms coupled with the presence of significant psychosocial stress related to his relationship with the victim significantly impaired his ability to exercise appropriate judgment and his ability to appreciate the wrongfulness of his conduct, so contributing causally to the commission of the offence.

The effect of psychological or psychiatric conditions upon the culpability of an offender can lead a court to reduce the severity of the penalty which might otherwise be imposed. In Matthews v Whalley [2010] WASC 165 Murray J took into account a psychological report concerning the victim presented after the appellant had been sentenced at first instance and, as a result, reduced the period of imprisonment and suspended that sentence because the offender was suffering from depression with disordered thought processes at the time of the offences. Similarly, in Stewart v Waghorn [1999] WASCA 150 Miller J found that a diagnosis of ADHD by the offender and the treatment which had been recommended for it put an entirely different light on the offender's prior criminal history and reduced a sentence of 15 months' immediate imprisonment to 6 months' imprisonment wholly suspended for 12 months. I have myself addressed this subject in The State of Western Australia v Reynolds [2006] WASC 31 with reference to observations contained in D A Thomas, Principles of Sentencing (2nd ed, 1979) stressing the need for rehabilitation of young offenders and individualisation being the approach favoured for an offender in need of psychiatric treatment.
The authorities dealing with sentencing for breach of orders made under the Restraining Orders Act 1997 (WA) have recently been collected and comprehensively reviewed by Simmonds J in Cullen v Rollings [2009] WASC 80 and in Lutey v Jacques [2010] WASC 78 which led his Honour to conclude in the latter case [64]:
However, this approach does not require use of custodial penalties in all cases, as Cullen itself indicates, particularly having regard to Sentencing Act s 86, preventing a court imposing a sentence of 6 months or less, with certain exceptions, none of which applied in that case and none of which applies here. Nor in my view does it involve no account being taken of subjective or mitigating factors, particularly in cases which, unlike Volpi, did not involve threatening or intimidating conduct.
With respect, I agree with his Honour's analysis of the authorities and with this conclusion. I also note that Jenkins J has reached similar conclusions in the recent case of Haggart v Viles [No 2] [2010 WASC 313.
I am also satisfied that these considerations apply to a decision whether or not it is unjust to activate a suspended sentence of imprisonment in the event of a subsequent offence breaching the terms or conditions of that earlier sentence. One of the issues is whether or not the conduct in breach of the terms of the suspended sentence itself warranted punishment by imprisonment ‑ see Brown v The State of Western Australia [2009] WASCA 74, [30] ‑ [33] and Salkilld v The State of Western Australia [2010] WASCA 22. See also R v Ferguson [2002] WASCA 92.
In this case, the learned magistrate activated the suspended period of imprisonment imposed on 20 September 2009 for the offence of breaching the VRO and imposed a period of imprisonment to be served immediately for breaching the violence restraining order on 12 December 2009. I am satisfied that this decision and the resulting sentence was prompted more by her Honour's view of the unlawfulness in disregarding the orders of the court than by the severity of the offending conduct itself. I accept, with respect, the submission that the sentencing did not sufficiently take into account the diagnosis, treatment and recommended treatment of the appellant's mental health, which was investigated and reported after the appellant had been granted bail on 21 December 2009, prior to his sentence on 23 April 2010. By that later date, the appellant's increased stability, employment and good prospects of rehabilitation as a result of the diagnosis and treatment of his condition, together with the fact that it was his illness which contributed to his offending conduct, were not sufficiently taken into account by the learned sentencing magistrate.
Consequently, at the end of the hearing I ordered that the appeals be allowed, the sentences of imprisonment be set aside and that the appellant be resentenced. In resentencing the appellant I considered that no penalty should be imposed in relation to the second breach of the VRO occurring on 5 August 2009 but in relation to the breach of the VRO which occurred on 12 December 2009 he should be sentenced to a period of conditional suspended imprisonment for 7 months, to commence from 23 April 2010, and that that sentence should be wholly suspended for a period of 9 months. This conditional period of suspended imprisonment should include the standard obligations under s 83 of the Sentencing Act1995 (WA) together with primary requirements under s 84 to include a programme requirement and a supervision requirement under s 84B. The programme and supervision requirements must include obligations for the appellant to continue to follow the therapy prescribed by his medical advisers and to participate in the treatment programmes advised by the attending medical officer and the psychiatric services.