Baudoeuf v Venning [No 2] - [2011] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BAUDOEUF -v- VENNING [No 2] [2011] WASC 350

CORAM: EM HEENAN J

HEARD: 28 NOVEMBER 2011

DELIVERED : 28 NOVEMBER 2011

PUBLISHED : 16 DECEMBER 2011

FILE NO/S: SJA 1051 of 2010

BETWEEN: KARL DAVID WILLIAM BAUDOEUF
First Appellant
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Second 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:

Breach of conditional suspended imprisonment order - Breach occurring only because of backdating of CSIO - No conviction for offence at time CSIO imposed - Result due entirely to retrospective effect of CSIO - No threat of repetition - Application to 'correct' sentence - Application to correct sentence withdrawn

Legislation:

Sentencing Act 1995 (WA), s 37, s 84F

Result:

Fined $50

Category: B

Representation:

Counsel:

First Appellant              :     Ms F B Walsh
Second Appellant          :     Ms G M Cleary
First Respondent           :     Mr P D Spragg
Second Respondent       :     Mr P D Spragg

Solicitors:

First Appellant              :     Legal Aid Bunbury
Second Appellant          :     Director of Public Prosecutions (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

Baudoeuf v Venning [2010] WASC 322

EM HEENAN J: Two applications have been made to the court in relation to Karl David William Baudoeuf. How it comes about that they are now being dealt with together requires some explanation. Mr Baudoeuf was an applicant for leave to appeal and an appellant against certain sentences imposed against him in the Magistrates Court at Bunbury on 23 April 2010. Those were a sentence of imprisonment for breaches of a violence restraining order in relation to an older woman with whom he had been living for some time, and a concurrent sentence of suspended imprisonment for breach of a conditional suspended imprisonment order imposed for an earlier breach of the same violence restraining order.
That application for leave to appeal and the associated appeal came on for hearing before me on 19 August 2010, whereupon I gave leave to appeal and allowed the appeal, and made orders that the sentences of immediate imprisonment should be set aside, and that instead a sentence of conditional suspended imprisonment should be imposed. The formal order of the court, made on 19 August 2010, was as follows:
(1)leave to appeal granted;
(2)appeal allowed;
(3)in relation to the breach of the violence restraining order which occurred on 5 August 2009, no penalty be imposed;
(4)in relation to the breach of the violence restraining order which occurred on 12 December 2009, the appellant be resentenced to 7 months' imprisonment, conditionally suspended for a period of 9 months, to date from 23 April 2010, with programme and supervision requirements.
Detailed reasons for that decision and those orders were later published by me on 17 November 2010 ‑ Baudoeuf v Venning [2010] WASC 322.
At the time of the hearing on 19 August 2010 Mr Baudoeuf was not subject to any further charges, nor had he been convicted of any other material offences. However, unknown to the court, and presumably unknown to Mr Baudoeuf's counsel or to the respondent's counsel, there had been an incident involving him and the young woman with whom he had been living, who is the mother of one of his children. This incident had occurred on 24 July 2010, less than a month before the hearing for the application for leave to appeal and the allowance of the appeal.
The circumstances of the incident, as explained by counsel for the Director of Public Prosecutions, are that Mr Baudoeuf went to the house where the young woman with whom he was living was present. She was there with another friend. A loud, aggressive argument developed, with Mr Baudoeuf accusing the young woman of various alleged misconduct. Oral threats were made, verbal abuse was given and the young woman was called names and accused of alleged improprieties by Mr Baudoeuf, who stood over her. The young woman became frightened and upset and the friend called the police, who came and interviewed the young woman, and later Mr Baudoeuf.
Although this episode occurred on 24 July 2010, no prosecution resulted from it until 18 October 2010 when Mr Baudoeuf was charged with threatening behaviour and associated matters. He appeared on those charges before the court in Busselton on 13 December 2010, then again in January 2011, and for a third time, on 25 February 2011, the first occasion on which he was legally represented.
On 26 July 2011, that is, a year and two days after the offence, Mr Baudeouf pleaded guilty to the charge of threatening behaviour, and submissions were made on his behalf. The learned magistrate placed Mr Baudoeuf on an intensive supervision order, with various conditions, for a period of 18 months, and he is still subject to that order.
His present circumstances are that he is not working, that he is living at home with his mother, that he is on a disability pension of $407 per fortnight, but is paying $100 board per fortnight to his mother, that he is taking prescribed lithium medication for his bipolar disorder, and is subject to monthly blood tests to monitor his lithium levels. He is attending for those tests. Apparently the underlying condition and the medication are proceeding satisfactorily. His obligation for weekly attendances on the Community Corrections officers has been reduced to fortnightly attendances.
The relationship with the young woman that gave rise to the offence in July 2011 is now apparently cordial, although he is not living with her, and has ceased to have any form of romantic attachment with her. By arrangement he sees their child periodically.
By virtue of the commission of this offence of threatening behaviour on 24 July 2010, which was not apparent to the court until after he was charged and later convicted, it follows that due to the backdating of the conditional suspended imprisonment order which I imposed at the determination of the appeal on 19 August 2010, Mr Baudoeuf had become subject to that conditional suspended imprisonment order at the time the offence was committed.
This is a consequence which has operated retrospectively and so far as Mr Baudoeuf or anyone else is concerned, he was not subject to the conditional suspended imprisonment order when that offence was committed on 24 July 2010. Nevertheless, submissions for the Director and the State Solicitor are to the effect that notwithstanding that the application is retrospective, the chronology of events means that he is liable for breach of the terms of the conditional suspended imprisonment order.
Counsel for Mr Baudoeuf had intended to argue to the contrary at the hearing which was, as I have already said, listed for 21 December 2011. Counsel for Mr Baudoeuf had also brought an application pursuant to s 37 of the Sentencing Act 1995 (WA), seeking an order that the conditional imprisonment order, or the duration of it which I had imposed when allowing this appeal on 19 August 2010, should be rectified or corrected in order to avoid it having effect on 24 July 2010, or at least to avoid the consequence of rendering him liable for breach of the terms of the conditional suspended imprisonment order.
When this stage of the proceedings had been reached, I inquired whether or not it might be possible to deal with all the matters today, rather than to adjourn the matter until 21 December 2011, it being apparent that the issues involved were of compass and dimension which rendered it desirable to have them disposed of at the one sitting, and as soon as possible.
On that prospect being raised, I inquired from counsel for the Director and the State Solicitor as to the position which their clients took in relation to the events which had emerged. It is possible to state the position of the Director and the State Solicitor briefly.
Notwithstanding the pending application by counsel for Mr Baudoeuf, the State Solicitor maintained that this was not a situation to correct a sentence under s 37 of the Sentencing Act and that, although it was of retrospective application and gave rise to a certain artificiality, the effect of the orders which had been made was to render Mr Baudoeuf liable for breach of the conditional suspended imprisonment order by the commission of this offence at a time when the order had not yet taken its later and retrospective effect.
Neither the Director nor the State Solicitor sought any major sanction against Mr Baudoeuf for this breach of the conditional suspended imprisonment order, each acknowledging that the disposition for the commission of that offence undertaken by the learned magistrate in Busselton on 26 July 2011 in placing him on the intensive supervision order for 18 months already mentioned was the time and place for dealing with the consequences and gravity of that offence, and that revisiting the matter today, even though it is necessary by virtue of s 84F of the Sentencing Act, did not require or warrant any custodial or other major disposition.
On pointing this out to counsel for Mr Baudoeuf she, quite naturally and properly, explained that she had not had an opportunity to consider fully, still less reply to written submissions being advanced by the State Solicitor in relation to this matter, and as the submissions developed it became apparent that neither she nor her client had seen or had notice of the pre sentence report and the associated psychiatric report which had been prepared for the pending breach proceedings, and which are before the court, having been received on 25 November 2011.
Nevertheless, after the advantage of an adjournment to consider the position and to take instructions from Mr Baudoeuf, counsel for Mr Baudoeuf agreed that the matter should proceed for disposition today, and made submissions about his present circumstances and prospects, which I have already summarised. She thereupon withdrew the application under s 37 to correct the sentence imposed following the successful appeal on 19 August 2010, and the matter has proceeded as a breach of that conditional suspended imprisonment order.
In relation to the proposed application for correction of the sentence imposed at the completion of the appeal on 19 August 2010, my tentative view, it not being necessary to reach any final decision in the events which have happened, is that those orders were made and the sentence was imposed upon the facts which were before the court at the time, and that they do not appear to be inconsistent with any provision in the Sentencing Act or any other statutory law, nor apparently are they inappropriate to the circumstances which have occurred.
The fact that these orders were made in ignorance of an offence having been committed on 24 July 2010, less than a month before, can hardly be attributed as a fault of the court or of counsel or of anyone else, there being no charge laid in respect of that incident until much later. What has happened is that because of that unusual chronology, the orders made on 19 August 2010 on the appeal have had unexpected consequences. That is not, at least it would seem, a reason to 'correct' them under s 37. Be that as it may, that application is no longer before the court and requires no formal decision.
What I must decide is what, if any, orders to make in relation to this breach of the terms of the conditional suspended imprisonment order which has occurred only because of its retrospective effect. The submissions put to me on behalf of the Director and the State Solicitor are to the effect that under s 84F of the Sentencing Act, there being no power to extend the term of the suspended imprisonment order because it has already expired, and it being inappropriate for any order for service of a period of imprisonment to be made, the only other option is the imposition of a fine under s 84F(1)(d).
Counsel for Mr Baudoeuf had submitted that by virtue of s 82 of the Sentencing Act, this was not the case, and there may not have been a breach, but that argument was not pursued having regard to the position taken by the State and the indications which I had given as to the minor disposition which I was favoured to pursue.
My approach to this case is that the occasion to consider the consequences and the penalties which should be imposed upon Mr Baudoeuf for the offence which he committed on 24 July 2010 was primarily the occasion on which he was sentenced for that offence, being 26 July 2011. I see that the learned magistrate must have taken the same view, and has treated the offence of one of some gravity because of the imposition of an 18 month intensive supervision order.
Because Mr Baudoeuf has become subject to further sanction for breach of the conditional suspended imprisonment order, only by virtue of its retrospective application, I do not consider that this is an occasion to impose any substantial sanction for a matter which has already been dealt with in the Magistrates Court. Accordingly, I consider that he should be fined $50 for the breach of the conditional suspended imprisonment order, and that that nominal penalty reflects the nominal breach which has occurred because of this unusual chronology.
The result is that Mr Baudoeuf will be fined $50, and it will be unnecessary for the matter to proceed otherwise on 21 December 2011.