Bernard v WILLIAMS

[2015] WASC 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BERNARD -v- WILLIAMS [2015] WASC 182

CORAM:   ALLANSON J

HEARD:   30 APRIL 2015

DELIVERED          :   30 APRIL 2015

FILE NO/S:   SJA 1031 of 2015

BETWEEN:   JEAN-AIME BERNARD

Appellant

AND

ROSS JAMES WILLIAMS
First Respondent

SCOTT JAMES ANDREWS
Second Respondent

DAVID CHRISTOPHER WHELAN
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S RICHARDSON

File No  :PE 5817 of 2015, PE 5822 of 2015, RO 812 of 2015

Catchwords:

Criminal law - Correction of sentence on court's own motion - No opportunity to be heard - Correction invalid

Criminal law - Appeal against sentence - Breach of restraining order - Whether immediate imprisonment appropriate

Legislation:

Criminal Appeals Act 2004 (WA)
Magistrates Court Act 2004 (WA), s 36, s 36(4), s 36(6)
Restraining Orders Act 1997 (WA), s 61A, s 61A(5), s 61A(6)
Sentencing Act 1995 (WA), s 9AA, s 15, s 37, s 37(1), s 37(2), s 86

Result:

Appeal allowed
Term of imprisonment set aside
Fine imposed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

First Respondent          :     Mr B D Nelson

Second Respondent      :     Mr B D Nelson

Third Respondent        :     Mr B D Nelson

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent          :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

Third Respondent        :     State Solicitor for Western Australia

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

Hamlett v Whitney [2013] WASC 100

Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27

The State of Western Australia v JWRL [2010] WASCA 179

Wallam v Grosveld [2015] WASC 145

ALLANSON J: 

(This judgment was delivered extemporaneously and has been edited from the transcript)

1. On 18 March 2015, Mr Bernard pleaded guilty in the Magistrates Court at Rockingham to two charges alleging that he breached a violence restraining order (VRO).  The first was that between 1 December 2014 and 29 January 2015 he breached the order by living with the protected person.  And, second, on 30 January 2015 he breached the order by being within a hundred metres of the protected person (in fact in the same house as her).

2. On 18 March 2015, Mr Bernard was also to be dealt with for an earlier breach, which was committed on 27 January 2015, again, alleging that he was within a hundred metres of the protected person.  He committed the offence by attending and remaining at the protected person's address.  There is an overlap between this last mentioned breach and the offence committed over the period 1 December 2014 to 29 January 2015.  The court record shows that Mr Bernard had appeared in court on 27 January 2015, and pleaded guilty on 28 January 2015 to that earlier offence.

3. It was not in dispute that Mr Bernard came within s 61A of the Restraining Orders Act 1997 (WA) because he had been convicted of earlier breaches. On 6 May 2014 he was convicted on two counts of breach of the VRO and fined $400 for each breach. According to the certified copy of his criminal history, one breach occurred on 1 April 2014, and the other occurred on 2 March 2014. He had also been convicted of another breach on 17 January 2015 for an offence which occurred on 16 January 2015.

4. The third occasion of conviction, although he was only sentenced on 18 March 2015, appears to have been on 28 January 2015.  Then there were the two convictions on 18 March 2015.  There is no doubt that it was a 'third strike'.  Accordingly, the magistrate was required to impose a penalty that is or includes imprisonment, unless imprisonment would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of a person protected or the community generally:  Restraining Orders Act s 61A(5) and (6).

5. The magistrate found, in the circumstances of Mr Bernard's repeated disregard of the order, that the matter was serious and that there was no other appropriate sentence but imprisonment.  The judgment on that issue is conferred on the sentencing magistrate, and normally this court would only interfere if the appellant could demonstrate that it was not open for the magistrate to find that imprisonment was not clearly unjust.  The course of this matter, however, has become complicated.  The magistrate imposed a term of imprisonment for six months for each offence, to be served concurrently.  A sentence of six months or less may not be imposed:  Sentencing Act 1995 (WA) s 86.

6. Mr Bernard was represented on his plea of guilty, but the mistake was not immediately noticed and brought to the magistrate's attention when it could have been immediately corrected. That is unfortunate. Mr Bernard's notice of appeal did not initially raise s 86, but it was amended to include that error. In submissions filed on behalf of the respondent, the error was conceded.

7. I was informed the day before the hearing of this appeal that the Magistrates Court had, of its own motion, recalled the sentence under s 37 of the Sentencing Act and imposed a sentence of 6 months and 1 day.

8. The change was made at least in relation to the warrant for the offence committed on 27 January.  Whether it was made for all of the offences does not really matter.  It is necessary only for the total sentence to be greater than 6 months.  With concurrent sentences it is sufficient if one of them exceeded 6 months.

9. Mr Bernard, on response to an inquiry from the court, and through his counsel, informed the court that he was brought up by video and was, in effect, asked to confirm who he was and was advised that the correction to the sentence was being made.

10. In an adjournment I was able to confirm the accuracy of what Mr Bernard had said, by listening to the audio recording.  Neither counsel sought access to the audio recording, but were prepared to accept what I said I had heard.

11. Section 37(2) of the Sentencing Act provides that when the court is exercising its power under s 37(1) to correct a sentence which has been imposed that is not in accordance with the Act, that power may be exercised by the court on its own initiative, but it must give all parties the opportunity to be heard. In my opinion, simply confirming the identity of the person before the court and advising him of what is being done is not a compliance with s 37(2). I say that even though it is difficult to see what could have been said by the appellant, except, perhaps the magistrate could have been advised that the appeal was to be heard today and that the sentencing error was one of the grounds of appeal The magistrate may then have chosen not to exercise the power. I cannot say that it necessarily is a case where hearing from Mr Bernard would inevitably have resulted in the same outcome.

12. This court has the power on an appeal under the Criminal Appeals Act 2004 (WA) to make an order in the nature of certiorari for a review order under s 36 of the Magistrates Court Act 2004 (WA). In view of the breach of s 37(2) of the Sentencing Act, and the fact that it involves a failure to fully accord natural justice to the appellant, I should alternatively allow ground 4 or, if it is necessary to do so, make an order in the nature of certiorari to quash the order that was made yesterday to correct the sentence.

13. The effect of my decision is that we are back to the original position. The first two grounds of appeal allege that the magistrate erred in imposing imprisonment when it was unjust to do so, and erred in ordering that the term of imprisonment imposed be served immediately when it was open to suspend that term. Both of those grounds of appeal in effect become moot because of the third ground of appeal, that a sentence has been imposed which contravenes s 86 of the Sentencing Act.

14. The appeal must be allowed and the appellant resentenced. Were it not for the error under s 86, I would have regarded the decision of the magistrate to impose a sentence that included imprisonment to be within a sound exercise of the sentencing discretion, having regard to the requirements of s 61A of the Restraining Orders Act.  The appellant had breached a VRO repeatedly.

15. The offence on 30 January was a fourth conviction for the purpose of s 61A. The offence of 30 January was also committed within two weeks of Mr Bernard being before the court for two earlier breaches. In Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, in a passage frequently cited, Miller J described the Restraining Orders Act as social legislation of the utmost importance:

    ... protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with … [When] they are not, there must be significant consequences to support the fact that restraining orders mean something … [The] courts [must] ensure that their orders are not ignored [14].

16. In finding that it was not clearly unjust to impose a sentence which included imprisonment, in my opinion her Honour was acting well within the terms of the statute.

17. I have found, however, the purported correction of the sentence to 6 months and 1 day was done invalidly.  In Hamlett v Whitney [2013] WASC 100, Hall J said:

    Whenever a sentence of six months and one day is imposed … it raises a suspicion that the sentence has been increased beyond what would otherwise have been imposed to avoid [the effect of] section 86 [and] suggests the magistrate may have inappropriately adjusted the sentence upwards [4].

18. With respect, I agree, and also agree with Hall J's further comment that suspicion alone is not enough; [5]. It may be that the inference could equally be drawn that a sentence of 6 months and 1 day was imposed because imprisonment was required under the Act, but the magistrate wanted to impose the minimum term that was necessary, perhaps by having regard to other provisions of the Sentencing Act, including s 9AA, and the need to ensure that an appropriate consideration is given to an early plea of guilty.

19. The comments made by the learned magistrate (ts 11), in my view, are consistent with that being her Honour's reason for initially imposing a term of 6 months.  Her Honour had regard to the plea of guilty and to the matters which were said in mitigation.  She was not satisfied that it was clearly unjust to impose imprisonment.  Following what used to be referred to as the intuitive synthesis, her Honour arrived at a sentence of 6 months.  It would be an unfortunate result, in my opinion, if magistrates felt constrained to impose sentences of 7 months or more in circumstances where they considered a sentence of just over 6 months was appropriate, just so as to avoid the suspicion that they had inappropriately adjusted the sentence.

20. But because ground 3 must be allowed, the question remains of what is this court to do. Like the magistrate, I am constrained by s 61A of the Restraining Orders Act and I also must impose a sentence that includes imprisonment, unless I am of the view that it is clearly unjust to do so.

21. The magistrate made no finding on the second question under s 61A, the likelihood of threat to safety.

22. There was before the magistrate, and there is before me, a pre‑sentence report containing comments of considerable concern.  The authors state that Mr Bernard lacks insight into his offending and externalises blame to his ex-partner (the protected person).  Unfortunately, because in my view, it is not something which ought be in a pre-sentence report, it also states that the Department for Child Protection and Family Support are involved and hold concerns for the victim's wellbeing and safety, and that Mr Bernard has been assessed as a high risk of violence towards his partner.

23. A sentencing court may, of course, inform itself as it thinks fit under s 15 of the Sentencing Act. But the operation of s 15 is subject to limits, including basic requirements of fairness. Where there is a dispute as to fact, the dispute must be resolved by the trial of an issue as part of the sentencing process to which the rules of evidence are applicable: The State of Western Australia v JWRL [2010] WASCA 179 [10]. The submissions made on behalf of Mr Bernard in front of the magistrate and, indeed, the comments made by the prosecutor, show that he does not accept that he is a threat.

24. I am satisfied that I cannot simply act on the assertions in the pre‑sentence report, and there is not sufficient evidence before this court to enable me to make a finding that Mr Bernard is a threat to the safety of the protected person. 

25. In my view, the magistrate correctly found that it had not been demonstrated that a sentence of imprisonment, or a sentence that included imprisonment, was clearly unjust.  But I have to look at the position as it is now.  Mr Bernard has been in prison for about six weeks.  I also take into account the following matters.  First, the protected person has expressed no fear of Mr Bernard.  Second, a very important aspect of the sentencing exercise is the need for Mr Bernard to understand that he cannot, with impunity, disregard the order of the court.  Third, the consent of the protected person is not a matter of mitigation:  s 61B.  I accept that it is a relevant consideration in considering the circumstances of the offence.  But it is not mitigatory and Mr Bernard must realise that VROs are imposed by the court, not by the protected person, and that if he wishes to be not bound by the restrictions imposed, that can only be done by an order of the court.  I must also consider, pursuant to s 39 of the Sentencing Act, whether a sentence of immediate imprisonment should now be imposed.

26. Although there were repeated breaches of the order, there was nothing to suggest that there had been actual violence or threat of violence, not only on any of those occasions, but on the occasion that led to the imposition of the VRO.

27. The two earlier breaches that were dealt with in May 2014 received only modest fines.  The offence on 16 January 2015 was dealt with by a conditional release order, which is, as counsel has pointed out, short of a fine.  In my opinion, a sentence of suspended imprisonment would be appropriate, but for the fact that Mr Bernard has already served 6 weeks in prison.  It would be unjust for me now to impose a term of immediate imprisonment simply because I cannot impose the sentence that in my view is appropriate to the conduct:  see the discussion by Martin J in Wallam v Grosveld [2015] WASC 145 [99] ‑ [104].

28. Mr Bernard has already served 6 weeks of imprisonment.  The matter is too serious for a conditional release order and I am not in a position to impose a community-based order or an intensive supervision order.  The penalty available to me in sentencing for this offence includes a fine of up to $6,000.  Having regard to the repeated breaches, in my view it needs to be a substantial fine, but I also have regard to the fact that Mr Bernard has already served 6 weeks of imprisonment.  I will impose a single fine of $1,500 for the three offences.