Brooks v Drysdale
[2021] WASCA 189
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROOKS -v- DRYSDALE [2021] WASCA 189
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 10 AUGUST 2021
DELIVERED : 25 OCTOBER 2021
FILE NO/S: CACR 34 of 2021
BETWEEN: RICHARD CHARLES BROOKS
Appellant
AND
ANTHONY JAMES DRYSDALE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: BROOKS -v- DRYSDALE [2020] WASC 466
File Number : SJA 1009 of 2020
Catchwords:
Criminal law - Appellant convicted, on his pleas of guilty in the Magistrates Court, of six offences against s 61(1) of the Restraining Orders Act 1997 (WA) - Each offence involved the appellant breaching a conduct agreement order made in the Magistrates Court - Appellant's appeal to the Supreme Court in its General Division dismissed - Whether the primary appeal judge made material errors in dismissing the appeal
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 14, s 16, s 18
Restraining Orders Act 1997 (WA), s 3, s 10A, s 10D, s 10F, s 10G, s 10H, s 61
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Brooks v Drysdale [2020] WASC 466
Brooks v Lathong [2019] WADC 24
Brooks v Lathong [2019] WASCA 176
JUDGMENT OF THE COURT:
On 5 August 2019, the appellant was convicted, on his pleas of guilty in the Magistrates Court, of six charges in a prosecution notice.
Each charge alleged, in essence, that the appellant had breached a conduct agreement order made in the Magistrates Court on 14 February 2018. The particulars of each of the first five breaches were that the appellant had contacted the protected person by sending her a text message. The particulars of the sixth breach were that the appellant had contacted the protected person by sending her an explicit image of her through Australia Post.
Each breach was an offence against s 61(1) of the Restraining Orders Act 1997 (WA).
On 20 January 2020, Magistrate Webb sentenced the appellant on each offence to a 12 month intensive supervision order with programme and supervision conditions. The orders were to be served concurrently.
The appellant applied for leave to appeal to the Supreme Court in its General Division against conviction and sentence. On 15 December 2020, Smith J granted leave to appeal on one ground, refused leave to appeal on three grounds and dismissed the appeal. See Brooks v Drysdale.[1] Her Honour ordered the appellant to pay the respondent's costs of the appeal fixed in the sum of $995.
[1] Brooks v Drysdale [2020] WASC 466.
The appellant has now applied for leave to appeal to this court against Smith J's decision.
We would refuse leave to appeal. The appeal must be dismissed.
Relevant provisions of the Restraining Orders Act
Section 3(1) of the Restraining Orders Act provides that in the Act, unless the contrary intention appears:
(a)family violence restraining order means an order made under the Act imposing restraints of the kind referred to in s 10G; and
(b)respondent means the person against whom a restraining order is sought.
Section 3(2) provides that, in the Act, the abbreviation 'FVRO' is used for family violence restraining order.
Part 1B of the Restraining Orders Act is headed 'Family violence restraining order' and comprises s 10A to s 10H.
Section 10A states that the objects of Part 1B are as follows:
(a)to maximise the safety of persons who have experienced, or are at risk of, family violence;
(b)to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;
(c)to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;
(d)to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;
(e)to make perpetrators of family violence accountable to the court for contraventions of court imposed restrictions designed to prevent them from committing further family violence.
Section 10D provides:
(1)A court may make an FVRO if it is satisfied that ‑
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
Section 10F(1) specifies a number of matters which a court must have regard to in considering whether to make an FVRO and the terms of the order.
Section 10G provides, relevantly:
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent ‑
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed under subsection (1), a court may restrain the respondent from doing all or any of the following ‑
…
(e)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
…
(3)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(4)An FVRO may restrain the respondent from entering or remaining in a place, or restrict the respondent’s access to a place, even if the respondent has a legal or equitable right to be at the place.
Section 10H provides:
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
(4)The registrar must cause a conduct agreement order to be prepared and served on the respondent.
Section 61(1) provides, relevantly, that a person who is bound by an FVRO and who breaches that order commits an offence.
Relevant litigious history in relation to the making of the conduct agreement order
In 2014 the appellant and the protected person were married. They lived together, along with the protected person's daughter from a previous relationship, until 15 July 2017, when the relationship between the appellant and the protected person broke down.
On 31 July 2017, the protected person obtained an ex parte interim FVRO order against the appellant.
The appellant objected to the interim FVRO. A substantive hearing of the matter was listed for 14 February 2018.
On the day of the hearing (that is, on 14 February 2018), the appellant signed a conduct agreement pursuant to s 10H of the Restraining Orders Act. On the same date, the conduct agreement was approved and a conduct agreement order was made.
On 15 February 2018, the appellant filed an application in the Magistrates Court. In the application, the appellant sought a 'reversal of consent orders made 14/02/18'. The application further stated:
I want to go to trial. Reasons: yesterday, 14/02/18, I was cajoled, bullied and [misled] into accepting the consent order by G Cleveland (Legal Aid). Further, the magistrate was, in my view, using her position to threaten and sow a seed of failure which is, in itself, contra to good practice. The magistrate inappropriately said, '[y]ou have been before me many times'.
On 15 May 2018, the appellant's application was heard in the Magistrates Court. Magistrate Sharratt treated the application as an application to set aside. The Magistrate was uncertain whether the orders sought could be made. However, the Magistrate explained that even if he had power to grant the application, he would not do so because there had been no undue influence, duress or unfair disadvantage as alleged by the appellant. Accordingly, the Magistrate dismissed the application.
The appellant then appealed to the District Court against the Magistrate's decision to dismiss his application. In the District Court, Davis DCJ dismissed the appeal on the ground that none of the appellant's grounds of appeal had any reasonable prospect of success. See Brooks v Lathong.[2]
[2] Brooks v Lathong [2019] WADC 24.
Next, the appellant appealed to this court against Davis DCJ's decision to dismiss his appeal. Murphy and Mitchell JJA dismissed the appellant's appeal on the basis that none of the appellant's grounds of appeal had any reasonable prospect of success. See Brooks v Lathong.[3]
[3] Brooks v Lathong [2019] WASCA 176.
Details of the appellant's appeal to the District Court are summarised in the reasons of Murphy and Mitchell JJA on the appeal from the District Court to this court [15] ‑ [21]:
By appeal notice dated 11 June 2018, the appellant appealed to the District Court of Western Australia against the dismissal of his application to set aside the conduct agreement order. The sole ground of appeal was that:
I am innocent and matter dismissed by misinformation and bullying[.]
The appeal was heard by the primary judge on 16 January 2019. On 26 February 2019, her Honour dismissed the appeal for written reasons which she then published. The primary judge found, and it is not in dispute, that the appeal was by way of rehearing requiring the demonstration of error by the magistrate.
The primary judge identified three grounds of appeal which emerged from the appellant's written and oral submissions (Primary decision [22]):
(1)The magistrate made an error when he said that there was no admission or finding of guilt in the conduct agreement.
(2)The magistrate made an error when he found that there was no proven undue influence, duress or unfair [dis]advantage to the appellant when he signed the conduct agreement.
(3)The appellant was denied natural justice in the course of the hearing before the magistrate.
As to the first ground, the primary judge found that the magistrate was correct when he said that the conduct agreement made it clear that there was no admission or finding of guilt, and that this prevents the court or any other person from implying or inferring that the appellant has done anything wrong (Primary decision [35]).
As to the second ground, the primary judge held that, while the appellant may well have felt he was under pressure, even strong pressure, to enter into the conduct agreement, there was no evidence before the magistrate that the pressure on the appellant went beyond what the law is prepared to countenance as legitimate (Primary decision [55]). The primary judge held that the magistrate did not err in fact or law when he stated that it had not been proven that there was any duress, undue influence or unfair [dis]advantage (Primary decision [57]).
As to the third ground, the primary judge was not satisfied that the appellant was denied natural justice at the hearing on 15 May 2018. He was given a reasonable opportunity to make relevant submissions as to why the conduct agreement order should be set aside (Primary decision [69]). The submissions he was stopped from making concerned alleged conduct by the respondent, which was not relevant to the application to set aside the conduct agreement order (Primary decision [64]; [66]).
The primary judge therefore found that there was no merit in any of the appellant's appeal grounds or submissions, and dismissed the appeal to the District Court (Primary decision [70], [74]). Her Honour summarised her reasons for concluding that there was no merit in any of the appellant's appeal grounds or arguments in the following terms (Primary decision [71] - [73]):
There is no basis for Mr Brooks' belief that he needs to set aside the conduct agreement in order to prove that he is innocent. There was no admission by Mr Brooks in the conduct agreement, there has been no finding of guilt against him and Magistrate Sharratt made no error of fact or law in stating this when he dismissed Mr Brooks' application to set aside the conduct agreement.
I am not satisfied that Magistrate Sharratt made any error of fact or law when he determined that it had not been proven by Mr Brooks that there was any duress, any undue influence or any unfair [dis]advantage when he signed the conduct agreement.
I am also not satisfied that there was any denial of natural justice in the hearing before Magistrate Sharratt.
Details of the proceedings in this court on the appeal from the District Court are summarised in the reasons of Murphy and Mitchell JJA as follows [23], [27] ‑ [47]:
The appellant filed his appellant's case on 21 August 2019. His grounds of appeal are expressed in the following terms:
1) Denial of Natural Justice Rule 79.
2) Denial of reply Magistrates Court Midland.
3) Misleading directions District Court Appeal 63/18 email: 2018 @ 12.18 p.m.
4) Inappropriate comments made by the presiding Magistrate Northam Court 14 February 2017 Case MC/Civil/NG RO 32 of 2017.
5)Transcript dated 14 February 2017 reveals that the [respondent's solicitor] misled the court by knowingly making untrue statements in order to proceed with a conduct order. Transcript page 2.
6)Affidavit sworn in the Narrogin Court 31 July 2017; Case number MC/Civil/NG RO 32 of 2017 untrue; perjury.
7)Affidavit family Court dated 31 March 2018 untrue; perjury.
8)Unlawful, unprofessional conduct by [the respondent's solicitor] and Ms. Mortimer towards a self‑represented person.
9)Denial of full disclosure my [sic] the presiding magistrate Midland Magistrates Court 15 May 2018.
…
For the following reasons, none of the appellant's grounds of appeal to this court have any reasonable prospect of succeeding.
Grounds 1, 2 and 9: fairness of the hearing on 15 May 2018
Grounds 1, 2 and 9 all allege, in substance, that the appellant was denied a reasonable opportunity to present his case for setting aside the conduct agreement order at the hearing on 15 May 2018.
Having reviewed the transcript of that hearing, we see no basis for concluding that the appellant was denied an opportunity to present his case or that the hearing on 15 May 2018 was otherwise unfair (For a recent summary of the principles relating to the hearing rule, see Defendi v Szigligeti [2019] WASCA 115 [45] - [48]). The appellant was allowed to make submissions in support of his application, and was only constrained by the magistrate when he began making submissions as to the respondent's conduct. As the primary judge correctly held, that was not a matter relevant to the application to set aside the conduct agreement order. Nothing in the very limited submissions advanced by the respondent's counsel at the hearing on 15 May 2018 called for a response by the appellant.
Grounds 4, 5 and 8: conduct of the magistrate and respondent's lawyer on 14 February 2018
Grounds 4, 5 and 8 all concern the conduct of the magistrate and the respondent's solicitor on 14 February 2018, being the date that the appellant signed the conduct agreement.
The statements made by the appellant from the bar table on 15 May 2018 did no more, in substance, than contend that the magistrate on 14 February 2018 and the respondent's solicitor identified the potential costs consequences for the appellant if he unsuccessfully defended the restraining order application. It was not inappropriate for the appellant to be advised of the potential adverse financial consequences of proceeding to a contested hearing of the respondent's application for a family violence restraining order. This could not form a basis for contending that the appellant's agreement was vitiated by duress, undue influence or unconscionable conduct (As to which, see Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [26] - [40]), or otherwise provide a basis for setting aside the conduct agreement order. While the statements about legal costs emphasised the potential financial risks in the appellant proceeding to a contested hearing, they did not arguably amount to the application of illegitimate pressure or unconscionable conduct. The primary judge was clearly correct to so hold.
It is not clear from the material before us why the magistrate observed, in the sentence emphasised in the passage quoted at [5] above, that the appellant 'probably ha[s] been in court many times'. However, we see no basis on which that comment could justify setting aside the conduct agreement order.
The appellant's submissions assert that, on 14 February 2018, the respondent's solicitor falsely stated to the court that he had sent the appellant numerous drafts of a conduct agreement (Appellant's Submissions, par 2, apparently by reference to Magistrates Court ts 14/2/18, page 12). There is no evidence before this court, and there was no material before the magistrate on 15 May 2018, supporting that assertion. In any event, irrespective of whether drafts were previously exchanged, the appellant signed the conduct agreement on 14 February 2018. Whether or not drafts were previously provided to the appellant is irrelevant to the question of whether the conduct agreement order ought to have been set aside.
Grounds 6 and 7: alleged perjury
Grounds 6 and 7 in effect contend that the respondent lied in an affidavit sworn in support of her application for a family violence restraining order and in an affidavit filed in the Family Court. There is no evidentiary basis in the material before us for that very serious allegation. In any event, such lies, if established, would not provide a basis for setting aside the conduct agreement order in a context where the Magistrates Court was not required to be satisfied of any matter other than the existence of the conduct agreement before making the conduct agreement order. There is no basis for apprehending that the court relied on an affidavit sworn by the respondent on 31 July 2017 in making the conduct agreement order. The affidavit sworn in the Family Court, which is not before us and was allegedly dated 31 March 2018 (after the conduct agreement order was made) could not provide a basis for impugning the conduct agreement order. There is nothing before us to indicate that the affidavits to which the appellant refers could justify setting aside … the conduct agreement order, which was made on the basis of the conduct agreement.
Ground 3: alleged misleading directions
Ground 3 appears to relate to the following email, annexed to the appellant's affidavit in support of his application for an extension of time within which to appeal:
From: District Court Civil <[email protected]>
Sent: Friday, 14 December 2018 12:18 PM
To: Verify Team
Subject: RE: Appeal 63/2018
Dear Mr Brooks,
Your email was referred to Registrar Kubacz.
The Registrar has advised that both your Appeal filed 14 June 2018, and the Application in the Appeal filed on 15 October 2018 [in which the respondent sought certain procedural directions], are both being heard by a Judge on 16 January 2019.
Kind Regards
[Signature]
The email chain indicates that the appellant responded as follows at 12.46 pm that day:
Dear Case Manager, thank you for confirming that my appeals are being heard as per my applications.
Kind regards Richard Brooks
The appellant submits that the court's email 'clearly stat[es] both appeals will be heard. The Appeal I filed originally was to go to trial on the evidence I had available' (Appellant's Submissions, par 1).
This email correspondence does not provide any arguable basis for setting aside the primary judge's decision. The appellant's appeal was heard on 16 January 2019, as foreshadowed by the court's email. Contrary to the suggestion in the appellant's submissions to this court, the hearing before the primary judge did not involve a 'trial'. Rather, the hearing was by way of an appeal in respect of which there is no dispute that the appellant was required to demonstrate material error in the magistrate's decision to dismiss the appellant's application to set aside the conduct agreement order.
In his oral submissions before this court, the appellant said, in effect, that he did not appreciate that the appeal to the District Court was going to deal with the correctness of the conduct agreement order, and was unprepared for the hearing.
The appellant also referred to a letter that he sent to the primary judge's associate dated 17 January 2018 (Although the letter is dated '17 January 2018', we infer that the year is intended to be '2019'), while judgment was reserved. The letter is also attached to the appellant's affidavit in support of his application for an extension of time within which to appeal. The letter asserts that the appellant 'attended court totally unprepared for the dismissal of the conduct order but prepared for trial'. It then essentially reiterates submissions referred to above.
The appellant has not filed an affidavit in which he deposes as to his misapprehension about the nature of the District Court appeal. The assertions to that effect in oral submissions to this court and the letter dated 17 January 2018 appear inconsistent with the transcript of proceedings before the primary judge. At the outset of the hearing before the primary judge, the appellant indicated that he was ready to proceed (District Court ts 4). When, at an early stage of the hearing, the primary judge referred to the conduct agreement, the appellant said (District Court ts 8):
That's what I am here to overturn, ma'am.
The appellant then advanced submissions in support of his contention that the conduct agreement order should be set aside (District Court ts 9 - 27). During the appellant's submissions, the primary judge indicated that the appeal was from the magistrate's refusal to set aside that conduct agreement, and that it was for the appellant to demonstrate that the magistrate made some errors. The primary judge then articulated the three grounds referred to at [17] above. The appellant confirmed that these were his three grounds, and indicated that there was nothing else he wanted to say at that point in time (District Court ts 27 - 28). The appellant was given a right of reply after the primary judge heard submissions from the respondent's counsel (District Court ts 35 - 36).
The appellant did not make an application for the adjournment of the hearing before the primary judge.
Further, the appellant has not identified any evidence or submissions of which he was deprived of the opportunity of advancing before the primary judge that might have affected the outcome. To the extent that the appellant relies on submissions contained in his letter dated 17 January 2018, none of those matters were new or, for the reasons explained above, could have justified setting aside the conduct agreement order.
The material before this court does not arguably establish that the appellant was deprived of a reasonable opportunity of presenting any evidence or submissions which might have affected the orders made by the primary judge. There is no factual basis for any allegation that the hearing before the primary judge was procedurally unfair.
For the above reasons, nothing advanced by the appellant in support of ground 3 could arguably justify this court in setting aside the primary judge's order dismissing the appeal to the District Court.
…
For those reasons, we were satisfied that the appeal should be dismissed on the basis that none of the appellant's grounds of appeal had any reasonable prospect of succeeding. It was unnecessary to deal with the appellant's applications in the appeal.
The sentencing proceedings in the Magistrates Court
On 20 January 2020, the appellant appeared in the Magistrates Court to be sentenced for the six offences against s 61(1) of the Restraining Orders Act. He was represented by counsel.
At the sentencing hearing:
(a)Magistrate Webb asked the appellant's counsel whether he had discussed with the appellant a psychological report about the appellant. Counsel responded that he had done so. Counsel added that the appellant had read the report in detail.
(b)The Magistrate also asked the appellant's counsel whether he had seen a victim impact statement. Counsel responded that he had not seen the statement. The Magistrate then gave the victim impact statement to counsel.
Next, the prosecutor read aloud the material facts of the offending as follows:[4]
[4] In the quoted passage the first name of the protected person has been anonymised by the letter C and the first name of the protected person's daughter has been anonymised by the letter A.
Part of the agreements [conduct agreement] were that [the appellant] couldn't communicate or attempt to communicate with [the victim, C] by any means whatsoever. That was including SMS, text message or any other electronic means, publish or distribute any intimate photos of the person protected. So on 13 May 2018 at 12.43 pm, the victim received a text message from an unknown phone number. The message stated:
'And your laptop plus plus. I hope your mother is ready to say sorry and be friends but I doubt it. Love, Papa.'
He was arrested on 20 July 2018, and he made admissions to the phone number being his and that he stated he was only trying to contact his stepdaughter. 15 May 2018, 2.59 pm ‑ or between 2.59 pm and 6.10 pm, the victim received three text messages from an unknown phone number. The messages stated:
'Why have you done this to me? You are so bad. I have never hurt, stolen ‑ hurt [A]. Why do you do this? I will never give up. I think you are pregnant. Why do this? Steal, lie and cheat. Why? Why have you done this to me?'
[The appellant] also again ‑ this phone number that was used was his when he was arrested on 20 July 2018. Charge 1636, 29 May at 6.23 pm on ‑ 2018, he sent a message that stated:
'Hi, [A]. I hope you are okay. I miss and think of you always. Tell your mum to forget and be my friend. It is better. And time is short before the court starts again. Take care. Goodnight, Papa.'
Charge 1638, 7 June 2018, 5.53 pm, another text message which states:
'How so sad? A woman I adored has lied, cheated, in total denial, wants to kill me. So very disgustingly sad. Now we live in hell. Poor [A].'
Charge 1640, on 11 June 2018, 4.15 pm, it's another text message. The message stated:
'Time is short. I offer you my hand of love to stop what will be. After, I will only be sad for [A].'
Charge 1641 is on 25 June 2018, the victim received an envelope addressed to her through Australia Post. The envelope contained an A4‑size photograph of the victim. She was naked on a bed in a vulnerable position. The image contained writing on the top of the page stating:
'Sex worker, 3 January 2012.'
On the rear of the A4 paper was a message addressed to the victim. The message stated:
'Please be advised the police will be visiting you to file a warrant of arrest for perjury, which is a criminal act worthy of a jail sentence.'
20 July 2018 is when he was arrested. He made admissions to sending the explicit image to the victim but stated that he sent it through her lawyer as per the court order and made admissions to writing the notes on the front and rear of the image. He further stated that after sending the image, he made attempts to have the mail stopped because it was inappropriate, and made admissions to the phone number being his, which is how it was linked to the breach.
The appellant's counsel made submissions to the Magistrate as follows:
(a)The protected person had commenced proceedings in the Family Court for a property settlement.
(b)The appellant appreciated that the marriage was finished, but he felt betrayed and hurt.
(c)The appellant was very distressed to be the subject of the interim FVRO because the order deprived him of his relationship with his step‑daughter. The appellant's distress was compounded by his having been rushed into a conduct agreement order in circumstances where he did not fully comprehend or understand the effect of the order.
(d)The appellant had not been violent towards the protected person. Indeed, she had been violent towards him. The protected person had assaulted the appellant on a number of occasions with implements.
(e)The photograph the subject of the sixth offence had been sent to a Legal Aid lawyer in an envelope addressed to the protected person. The envelope had not been opened by Legal Aid and had been sent by Legal Aid to the protected person. The appellant went to considerable efforts to endeavour to retrieve the envelope before it was delivered, but he had been unsuccessful.
(f)The appellant sent the photograph to the protected person for the purpose of demonstrating his view that some of the allegations she had made against him in an affidavit filed in the Family Court proceedings were lies.
(g)The appellant found the Family Court proceedings upsetting and his work and health had suffered.
The appellant has a prior criminal record. On 22 April 2013, the appellant was convicted of 10 counts of breaching a violence restraining order on various dates between 3 July 2011 and 12 January 2012.
At the sentencing hearing:
(a)After the appellant's counsel told the Magistrate that the appellant had been 'rushed into a conduct agreement order, not fully comprehending and understanding what that would mean', the Magistrate responded that 'after [the appellant] appealed it to the District Court and then to the Supreme Court, he probably does now'. Counsel said '[a]bsolutely, he does'.
(b)Later, the Magistrate said to the appellant's counsel:
Given the history and given what's in the reports … So when I initially first saw this without hearing from you and without hearing from [the appellant], my view was that imprisonment was open. But now having heard the facts, what has gone wrong with his previous relationship, the status of this relationship, the psychological report … I think going forward for [the appellant] that he would benefit from an order and benefit from psychological counselling. So … but I think given the history, it should be an intensive supervision order' (ts 11).
(c)The appellant then spoke directly to the Magistrate and said 'I just want to say that in this file here is all the narratives and all the proof I have that I have never ever been harmful, disrespectful … or abusive to [the protected person]' (ts 11 ‑ 12).
(d)The Magistrate responded 'I don't take any issue with that [the appellant]. I don't take any issue with that whatsoever … And I'm just at a loss as to why you didn't object to the restraining order back when it was made. But putting all of that to one side, the psychological report was quite illuminating' (ts 12).
(e)The appellant then said directly to the Magistrate '[j]ust one point is that when I received the … restraining order, the first thing I did was object to it'. The Magistrate observed '[t]hat's right. It got made a conduct agreement'. The appellant then said '[a]nd then I put together - starting collating a file of what had happened, and I got the transcript reports from Narrogin about the accusations against myself' (ts 12).
(f)The Magistrate responded 'I don't want to reventilate all of that because …I've read both the District Court decision, I've read both the Supreme Court decision. So I'm aware of … how this transpired. Now, [the appellant] still could have brought an application because … my view is that the Restraining Orders Act says a conduct agreement is the same as a violence restraining order. So, therefore, [the appellant] could have brought an application to cancel the conduct agreement, and that should have happened. But I'm not interested in reventilating that … I don't think it takes us anywhere'. The appellant's counsel said '[n]o, it doesn’t' (ts 12 ‑ 13).
As we have mentioned, the Magistrate sentenced the appellant to a 12 month intensive supervision order, with programme and supervision conditions, in relation to each offence with the orders to be served concurrently.
The statutory framework governing the General Division appeal heard by Smith J and the appeal from her Honour to this court
The appeal before Smith J was governed by div 2 of pt 2 of the Criminal Appeals Act 2004 (WA). Division 2 comprises s 7 to s 15.
Section 8(1) of the Criminal Appeals Act provides, relevantly and in effect, that an appeal against conviction may be made under div 2 of pt 2 of the Act on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(b)that there has been a miscarriage of justice.
Section 14(1) of the Criminal Appeals Act provides, relevantly, that in deciding an appeal, the Supreme Court may do one or more of the following:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction …;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court ‑
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
(f)…
(g)…
(h)…
(i)make any other order it thinks fit.
By s 14(2) of the Criminal Appeals Act, despite s 14(1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has occurred'.
The appeal before this court is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 to s 19.
By s 16(2) of the Criminal Appeals Act, a party to an appeal under div 2 of pt 2 of the Criminal Appeals Act 'who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division' that:
(a)refuses leave to appeal; or
(b) dismisses or decides an appeal,
may appeal to this court against the decision.
By s 18, read with s 14(1), of the Criminal Appeals Act, in deciding the appeal under div 3, this court may, relevantly:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the Supreme Court sitting in its General Division and any order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the Supreme Court sitting in its General Division;
(e)make any other order it thinks fit.
By s 18, read with s 14(2), of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has occurred'.
The grounds of appeal in the General Division appeal heard by Smith J
The appellant's grounds of appeal in the General Division appeal, as distilled and understood by Smith J, were as follows [42]:
(1)The magistrate erred in fact and in law in finding that the appellant had not filed a form 23 to cancel the conduct agreement order. This ground is raised in point 1 of the letter dated 25 June 2020 and is referred to in these reasons as Ground 1.
(2)The magistrate erred in law by failing to afford procedural fairness and failing to take into account mitigating factors, in that she did not allow the appellant to address the court, particularly in relation to the pre‑sentence psychological report before the court. This issue is raised in points 2, 3, 4, 5 and 6 of the letter dated 25 June 2020 and is referred to in these reasons as Ground 2.
(3)The magistrate erred in not ordering disclosure of … the pre‑sentence psychological report and the victim impact statement. This issue is raised in point 7 of the letter dated 25 June 2020 and is referred to in these reasons as Ground 3.
(4)The magistrate acted unfairly by having regard to the matters stated in the pre‑sentence psychological report, which gave rise to a miscarriage of justice. This issue is in effect raised in points 5 and 6 of the letter dated 25 June 2020 and is referred to in these reasons as Ground 4.
Smith J's reasons in relation to ground 1
Smith J held that leave to appeal on ground 1 should be granted (on the basis that an error of law was established), but the appeal could not succeed on ground 1 because a substantial miscarriage of justice had not occurred.
Her Honour's reasons in relation to ground 1 were as follows [47] ‑ [58]:
It is not the case as the appellant contends that the magistrate remarked that if the appellant had made an application to cancel the conduct agreement order it would have been possible to proceed to trial as to whether a violence restraining order should be made.
The magistrate, when sentencing the appellant, engaged in an exchange with the appellant about the earlier proceedings before the Magistrates Court and the appeals to the District Court and the Court of Appeal in which he sought to set aside the conduct agreement order. Her Honour said that she had read both of the appeal decisions and, for some reason which is not clear, then remarked that the appellant could have bought an application to cancel the conduct agreement (pursuant to s 45 of the Restraining Orders Act) (ts 20 January 2020, pages 12 ‑ 13).
The reason it is not clear why her Honour made that observation is that in effect, the appellant made an application to cancel the conduct agreement order on 15 February 2018, namely the day after the conduct agreement order was made by the Magistrates Court on 14 February 2018, which application was treated as an application made pursuant to s 45 of the Restraining Orders Act.
A restraining order, which includes a conduct agreement order because it is taken to be a family violence restraining order, (Restraining Orders Act 1997 (WA) s 10H(3)) may be varied or cancelled pursuant to s 45 of the Restraining Orders Act. Under s 64 of the Restraining Orders Act, an appeal can be brought in relation to a decision to dismiss an application; to cancel, vary or make a final order; to refuse to cancel, vary, or make a final order; or to make any other order in relation to a final order.
In circumstances where the appellant had brought an application in the Magistrates Court to 'reverse the order' which was treated by the District Court and the Court of Appeal as an application to cancel a final order (Brooks v Lathong [2019] WADC 24 [9] ‑ [10]; Brooks v Lathong [2019] WASCA 176 [8] ‑ [9]) (pursuant to s 45 of the Restraining Orders Act) it would not have been open to or necessary for the appellant to bring a separate application to cancel the conduct agreement order.
A conduct agreement order is a final order which imposes certain restraints on a respondent to an order but does not constitute an admission by the respondent of any or all matters alleged by the applicant in the relevant family violence restraining order proceedings. Once a conduct agreement is agreed to between the parties, the court may make a conduct agreement order in the same terms.
As the respondent points out, a conduct agreement order, rather than a conduct agreement, is a final order for the purposes of the Restraining Orders Act. The Restraining Orders Act does not contemplate setting aside, varying, or cancelling the conduct agreement itself, but rather, the final order made as a result of the conduct agreement.
It is clear that the sentencing magistrate erred in making the observation that it would have been open to the appellant to make an application to cancel the conduct agreement.
However, the appeal should not be allowed on Ground 1 alone as no substantial miscarriage of justice has occurred simply by the sentencing magistrate making an incorrect observation that it was open to the appellant to make an application to cancel the conduct agreement. Whether it would have been open is irrelevant to the factual circumstances of the seriousness of the breaches of the conduct agreement order found by her Honour; her Honour's observation was not material to the factual circumstances that her Honour found that were relevant to the appellant's offending, nor material to the circumstances of mitigation which led her Honour to the view that the appropriate sentencing disposition for the offences was a 12 month intensive supervision order.
There was nothing before the Magistrates Court to indicate that the appellant was not guilty of the offences; the appellant admitted that he had sent the text messages and said that he was only trying to contact his stepdaughter. He also admitted sending the photograph to his wife. It is clear from reading the transcript of the proceedings before the Magistrates Court on 20 January 2020 and from the written submissions filed in this appeal by the appellant that the appellant did understand the nature of the charges and it cannot be found that he did not intend to admit the material facts alleged against him. The appellant did not at any time give any indication to her Honour that he wished to change his pleas from guilty to not guilty. It is also clear from the transcript that on each of these occasions the appellant addressed her Honour directly on a number of occasions to clarify particular issues, none of which were issues which could be said to raise any defence to the charges.
As the appellant points out in his written submissions, he makes no complaint that the sentence imposed on him for the offences was inappropriate. What he seeks to argue is that his prior appeals to the District Court and the Court of Appeal should have been successful because his application to the Magistrates Court was an application to cancel the conduct agreement order. However, for the reasons I have outlined above, it is not open for the appellant to put such an argument in this appeal as the decision of the Court of Appeal cannot be called into question in these proceedings.
For these reasons, although leave to appeal on this ground should be allowed (on the basis that an error of law is established), the appeal cannot succeed on this ground as there is no basis upon which it can be found on this ground alone that a substantial miscarriage of justice has occurred.
Smith J's reasons in relation to grounds 2 and 4
Smith J held that grounds 2 and 4 had no prospect of success and that leave to appeal on those grounds should be refused.
Her Honour's reasons in relation to grounds 2 and 4 were, relevantly, as follows [59] ‑ [60], [64] ‑ [71], [73] ‑ [74], [79] ‑ [86]:
In ground 2, the appellant in essence alleges that the magistrate erred in law in failing to afford him procedural fairness by not allowing him an opportunity to speak, particularly in relation to the reports before the court, and by not taking into account mitigating circumstances as required under s 6(2)(d) of the Sentencing Act in assessing the seriousness of the offences.
In ground 4, the appellant claims that it was unfair for the magistrate to have regard to the matters stated in the psychological pre‑sentence report, which gave rise to a miscarriage of justice.
…
In a sentencing hearing the rules of procedural fairness require that an offender be given a reasonable opportunity to present their case by evidence, information and submissions relevant to a plea in mitigation and sentence.
Pursuant to s 16(1)(b) of the Sentencing Act, following a plea of guilty a magistrate is conferred with a discretion to adjourn the sentencing of an offender to allow for a pre‑sentence report to be prepared under div 3 of the Sentencing Act, and under s 16(1)(c) to enable a victim impact statement to be given to the court under div 4. Pursuant to s 20 of the Sentencing Act, if the court considers it would be assisted in sentencing an offender by a pre‑sentence report about the offender, it may order one and under s 20(3) if the court considers imposing an intensive supervision order it must order a pre‑sentence report about (among any other things) the offender's suitability for such a sentence.
The contents of a pre‑sentence report is prescribed by s 21 of the Sentencing Act. Section 21(1) provides that when ordering a pre‑sentence report a court may give instructions as to the issues to be addressed by the report. Section 21(2) provides that in the absence of specific instructions from the court that ordered it, a pre‑sentence report is to set out the matters about the offender that are, by reason of the Sentencing Act or sentencing practice, relevant to sentencing the offender or to the making of a reparation order. Section 21(3) provides that a pre‑sentence report may include reports as to the physical or mental condition of the offender, whether or not the court has asked for them.
In this matter, the records of the Magistrates Court reveal that her Honour made a request for a pre‑sentence report on 19 November 2019 and directed that the pre‑sentence report address the appellant's psychological condition (Magistrates Court, Northam, Request for a Report dated 19 November 2019).
Her Honour was bound to make her own assessment of the facts on all the material before her which included the material that the appellant complains about, that is the contents of the report by the psychologist and the victim impact statement: (Skelly v The State of Western Australia ([2020] WASCA 3 [70]) (footnotes omitted))
Generally speaking, a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.
The appellant submits that had he had an opportunity to address the court rather than being told to sit down then perhaps the contents of the psychological pre‑sentence report would have been questioned. The respondent argues that as the psychological pre‑sentence report and contents stated therein were not challenged by counsel representing the appellant at sentencing; the Court was therefore entitled to rely on it.
The respondent further says that the court did not have to hear from the appellant in regards to these reports as the appellant was legally represented and counsel made it clear that he had discussed the psychological report with the appellant, had an opportunity to read the victim impact statement, and did not seek to be heard in relation to the reports. The respondent argues that the appellant is bound by his counsel's conduct so that it necessarily follows that no denial of procedural fairness has occurred.
Although the usual rule is that an accused is bound by the forensic decisions made by their counsel, this rule does not apply where it can be established that the conduct of counsel caused a miscarriage of justice.
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In this matter the appellant makes no allegation that his counsel was incompetent. He claims that he was not afforded an opportunity to make submissions about the matters stated in the pre‑sentence psychological report.
However, this point does not dispose of this ground of appeal because the substantive points to the appellant's argument is that he seeks to raise an issue whether a miscarriage of justice arose as a result of the sentencing magistrate acting on incorrect information contained in the pre‑sentence psychological report. Unless the contents of a pre‑sentence report are challenged, the court is entitled to rely upon the contents of the report.
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The appellant's contentions relevant to the issues raised in ground 2 and ground 4 have no prospects of succeeding.
This court can only interfere in the sentence imposed by the sentencing magistrate if it were established that her Honour sentenced him on wrong assumptions of fact. The appellant has not met this test.
Firstly, in the proceedings before her Honour the appellant's counsel and the appellant himself were afforded an opportunity to make submissions and provide information relevant to the seriousness of the offences and the circumstances of the commission of the offences. That is, he was afforded an opportunity to put to the magistrate all of the matters about why he committed the breaches of the conduct agreement order and put before the court all relevant information about his past convictions for breaches of the violence restraining order. The appellant has simply made generalised assertions in his written and oral submissions about the matters stated in the psychological pre‑sentence report. The appellant also complains that the author of the psychological pre‑sentence report has accessed confidential Family Court documents. However, the appellant has put no admissible material before the court to support such a contention and has made no application to adduce any evidence in the appeal. Importantly, and in any event, none of this material provides a defence to the charges.
The appellant has filed material in the appeal which essentially are submissions about the reasons why he is so distressed about matters of what occurred between himself and his wife, in particular what has occurred in Family Court proceedings and what occurred between himself and his stepdaughter, which led to the offences. He also has filed a list of issues that he would wish to put in cross‑examination to his wife in a hearing for a final violence restraining order. Plainly all of this material is irrelevant as it is not open to the appellant to seek any review of the making of the conduct agreement order in these proceedings.
The appellant has also made generalised [assertions] in written material about the factual circumstances relating to traffic convictions, which (even if this material was in an admissible form) is irrelevant as the sentencing magistrate had no regard to his prior convictions for traffic offences.
Secondly, the appellant has put no submission nor any material before the court that seeks to challenge the opinion of the psychologist that he could benefit from psychological counselling to assist him in developing an understanding of, and better skills for managing, his issues in identifying and expressing emotions, developing intellectual strategies to resolve his hurt feelings or psychological tension and soothe his emotional distress. Importantly it was this opinion (in addition to other matters) that the sentencing magistrate acted upon in determining that an intensive supervision order of 12 months was a sentence that was commensurate not only with the seriousness of the offences but was appropriate to impose. This is why her Honour made a direction after imposing the sentence that the appellant be given an opportunity to reread what the psychologist said in the pre‑sentence psychological report because, 'he needs to learn to be able to investigate his emotional make up' (ts 20 January 2020, page 13).
Thirdly, and in any event, because the appellant does not seek to challenge the sentence imposed for the offences on grounds that the 12 months intensive supervision order was unreasonable or unjust, the appellant is unable to make out a case that there was an error or miscarriage of justice as regards the sentence.
For these reasons, ground 2 and ground 4 have no prospects of success and leave to appeal on these grounds will be refused.
Smith J's reasons in relation to ground 3
Smith J held that ground 3 had no prospect of success and that leave to appeal on ground 3 should be refused.
Her Honour's reasons in relation to ground 3 were, relevantly, as follows [88] ‑ [92]:
The statutory scheme under the Sentencing Act, is that at the time sentencing submissions are made to a court an offender has a right to be heard in respect of the contents of a pre‑sentence report and a victim impact statement, but an offender has no right to obtain copies of such documents, or seek copies of such documents pursuant to the provisions of the Freedom of Information Act.
Pursuant to cl 5 of the Glossary and s 9 of the Freedom of Information Act, only administrative documents of a court are to be regarded as documents of a court for the purposes of the Act. A court is an 'agency' under the Act (Freedom of Information Act 1992 (WA) s 9 and cl 3 of the Glossary). Clearly a pre‑sentence report and a victim impact statement are documents prepared for the court and are not administrative documents of the court. As such, pre‑sentence reports and victim impact statements are not 'documents of an agency' to which a person has a right to be given access subject to and in accordance with the Freedom of Information Act (Freedom of Information Act 1992 (WA) s 10 and, more generally, pt 2).
Section 22(4) of the Sentencing Act expressly directs that a written pre‑sentence report must not be given to anyone other than the court by or for which it is ordered and the Chief Executive Officer of Corrections. Section 22(5) empowers the court with a discretion to make a pre‑sentence report available to the prosecutor and to the offender, on such conditions as it thinks fit. The same principle applies to a victim impact statement. Section 26(1) of the Sentencing Act provides that a court may make a written victim impact statement available to the prosecutor and to the offender, on such conditions as it thinks fit.
As set out in [88] it is established that a court must ensure that the prosecutor, defence counsel and the offender be provided with an opportunity to read and consider the contents of a pre‑sentence report and a victim impact statement prior to making submissions in mitigation and as to sentence. However, this provision does not entitle an offender to obtain and retain a copy of a victim impact statement or a pre‑sentence report following sentence.
For these reasons, ground 3 has no prospects of success and leave to appeal on this ground will be refused.
Smith J's conclusion and orders disposing of the appeal
As we have mentioned, Smith J granted leave to appeal on ground 1 and refused leave to appeal on grounds 2, 3 and 4. Her Honour dismissed the appeal. Also, as we have mentioned, her Honour ordered the appellant to pay the respondent's costs of the appeal fixed in the sum of $995.
The grounds of appeal in the appeal from Smith J to this court
The appellant's grounds of appeal in the appeal from Smith J to this court are difficult to discern.
The grounds, as we understand them, are these:
(a)Smith J erred in deciding that grounds 2, 3 and 4, as distilled and understood by her Honour, did not have a reasonable prospect of success and consequently in refusing leave to appeal on those grounds.
(b)Smith J erred in deciding that no substantial miscarriage of justice had occurred as a result of the error identified in ground 1, as distilled and understood by her Honour.
(c)Smith J erred in rejecting the appellant's submissions in reply and in failing to address other submissions he had made.
(d)The respondent's submissions before Smith J were misleading and designed to misinform her Honour.
(e)The respondent's submissions before Smith J were incompetent and deliberately used false information that was irrelevant.
(f)The appellant was denied a fair hearing in the proceedings in the Magistrates Court and in the proceedings in the General Division.
As to the ground referred to at [51(a)] above, we are of the opinion that Smith J was correct in deciding that grounds 2, 3 and 4, as distilled and understood by her Honour, did not have a reasonable prospect of success. We agree with her Honour's reasons for arriving at that conclusion. It follows that her Honour was correct in refusing leave to appeal on those grounds.
As to the ground referred to at [51(b)] above, we are of the opinion that Smith J was correct in deciding that no substantial miscarriage of justice had occurred as a result of the error identified in ground 1. We agree with her Honour's reasons for arriving at that conclusion. The appellant was not denied a chance of acquittal on any of the charged offences that was fairly open to him. There is no reasonable possibility that the Magistrate's error affected the outcome, especially having regard to the appellant's pleas of guilty and the strength of the prosecution's case. It was not unfair, in the circumstances of the present case, as revealed by the record of the proceedings in the Magistrates Court, to apply the proviso in s 14(2) of the Criminal Appeals Act.
As to the ground referred to at [51(c)] above, the appeal before Smith J was heard on 7 October 2020.
At the conclusion of the hearing on that date, her Honour ordered that:
(a)the respondent file and serve further written submissions in respect of ground 1 of the appeal within 14 days; and
(b)the appellant file and serve written submissions in reply to the respondent's further written submissions within 7 days of receipt of the respondent's submissions.
Pursuant to those orders, the respondent filed and served further written submissions on 19 October 2020 and the appellant filed and served further written submissions on 20 October 2020.
Her Honour made the orders for the filing and serving of further written submissions because at the hearing her Honour raised with the parties the issue of the proper characterisation of the application made by the appellant in the Magistrates Court on 15 February 2018.
The respondent's further written submissions filed on 19 October 2020 conceded that ground 1 had been made out, but contended that, notwithstanding the error alleged in ground 1, no substantial miscarriage of justice had occurred and consequently the appeal should be dismissed.
The appellant was entitled, pursuant to her Honour's orders, to file and serve written submissions in reply.
The appellant's further written submissions filed on 20 October 2020 were not confined to submissions in reply.
Her Honour delivered judgment in the appeal on 15 December 2020.
Her Honour dealt in detail in her reasons for judgment with the merits of ground 1 and with whether a substantial miscarriage of justice had occurred. We are satisfied, on a fair reading of her Honour's reasons as a whole, that her Honour had regard to the appellant's further written submissions to the extent that those submissions were in reply to the respondent's further written submissions. Her Honour did not make any material error in rejecting the appellant's relevant submissions in reply. As we have indicated, in the context of the ground referred to at [51(b)] above, her Honour was entitled to apply the proviso in s 14(2) of the Criminal Appeals Act.
We consider that her Honour dealt adequately and to the extent necessary with other submissions the appellant had made. Those other submissions had to be evaluated having regard to his grounds of appeal. Apart from ground 1, the appellant's grounds were not reasonably arguable. Although ground 1 was made out, it was plain that the proviso in s 14(2) of the Criminal Appeals Act should be applied. It was unnecessary, in the circumstances, for her Honour to deal with the appellant's other submissions in greater detail than she did.
As to the grounds referred to at [51(d) and (e)] above, we have examined the General Division file relating to the appellant's appeal before Smith J and the record of those proceedings. We are satisfied that the respondent's submissions, considered as a whole, were not misleading or designed to misinform her Honour. We are also satisfied that the respondent's submissions, considered as a whole, were not incompetent and that those submissions did not deliberately use false information that was irrelevant.
As to the ground referred to at [51(f)] above, the appellant's complaint that he was denied a fair hearing in the proceedings in the Magistrates Court raises, in substance, grounds 2 and 4 of the appellant's grounds in the appeal before Smith J. As we have indicated at [52] above, we are of the opinion that her Honour was correct in deciding, relevantly, that grounds 2 and 4 did not have a reasonable prospect of success.
As to the proceedings in the appeal before her Honour, our examination of the General Division file and the record of the proceedings before her Honour indicates that the appellant was given a fair hearing in those proceedings. There is no merit in the appellant's complaint that he was denied a fair hearing.
Conclusion
None of the grounds of appeal referred to at [51] above has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
25 OCTOBER 2021
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