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…

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 Baudoeuf v Venning

Details

AGLC: Baudoeuf v Venning [2010] WASC 322
Case: [2010] WASC 322
Decision Date: 17 NOVEMBER 2010

CaseChat Overview and Summary

The appeal, heard by the Supreme Court, was brought by the respondent, Venning, against a sentence imposed by the Magistrates’ Court. The matter related to a breach of a Violence Restraining Order, which was Venning’s fourth such breach. There was no actual violence, but the breach occurred in extenuating circumstances. Venning was sentenced to two concurrent terms of imprisonment, one for the breach of the Violence Restraining Order and the other for an unrelated matter. Venning appealed the sentence on the grounds that it was excessive, particularly in the absence of actual violence and given the extenuating circumstances. The court had to determine whether the sentence was appropriate in the circumstances and whether it could be varied.

The court considered the severity of the breach of the Violence Restraining Order, which was the fourth such breach by Venning. The court acknowledged that while there was no actual violence, the breach was serious, particularly given the history of previous breaches. The extenuating circumstances were also considered, but the court found that these did not significantly mitigate the breach. The court also examined the principle of proportionality in sentencing and whether the sentence of imprisonment was warranted. It was noted that the Magistrates’ Court had considered the relevant factors and had exercised its discretion appropriately in imposing the sentence. The appeal was dismissed, and the sentence was upheld.

The Supreme Court found that the sentence imposed by the Magistrates’ Court was appropriate and did not need to be varied. The court emphasised the seriousness of the breach of the Violence Restraining Order, particularly given the history of previous breaches. While the extenuating circumstances were acknowledged, they did not sufficiently mitigate the breach to warrant a different sentence. The court also considered the principle of proportionality in sentencing and found that the Magistrates’ Court had exercised its discretion appropriately. The appeal was dismissed, and the original sentence was upheld.

The court made no orders varying the sentence. The two concurrent sentences of imprisonment remained in place.

Orders