Brooks v Drysdale
[2020] WASC 466
•15 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROOKS -v- DRYSDALE [2020] WASC 466
CORAM: SMITH J
HEARD: 7 OCTOBER 2020
DELIVERED : 15 DECEMBER 2020
FILE NO/S: SJA 1009 of 2020
BETWEEN: RICHARD CHARLES BROOKS
Appellant
AND
ANTHONY JAMES DRYSDALE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D M WEBB
File Number : NO 1634 of 2018, NO 1635 of 2018, NO 1636 of 2018, NO 1638 of 2018, NO 1640 of 2018, NO 1641 of 2018
Catchwords:
Criminal law - Appeal against conviction and sentence - Where conviction entered following plea of guilty
Criminal law - Pre-sentence psychological reports - Council and appellant did not seek to challenge contents of report at first instance - Whether open to challenge contents of reports on appeal - Whether miscarriage of justice
Criminal law - An offender has no right to retain copies of pre-sentence reports or victim impact statements after sentencing
Legislation:
Criminal Appeals Act 2004 (WA), s 8
Freedom of Information Act 1992 (WA), s 9, s 10, sch 2
Restraining Orders Act 1997 (WA), s 10H, s 45, s 61(1), s 64
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 16(1)(b), s 16(1)(c), s 20, s 21(1), s 21(2), s 21(3), s 22(4), s 22(5), s 26(1)
Result:
Leave to appeal on Ground 1 allowed
Leave to appeal on Grounds 2, 3 and 4 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms C A Gilchrist |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Brooks v Lathong [2019] WADC 24
Brooks v Lathong [2019] WASCA 176
Defendi v Szigligeti [2019] WASCA 115
'HAS' v The State of Western Australia [2005] WASCA 29
HJT v The State of Western Australia [2020] WASCA 120
Jones v Pennuto [2020] WASC 416
North v The State of Western Australia [2020] WASCA 6
Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skelly v The State of Western Australia [2020] WASCA 3
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
Sprlyan v Wyborn [2019] WASC 227
Vella v The State of Western Australia [2006] WASCA 129
SMITH J:
1.0 Introduction
1.1 The convictions and sentence
On 5 August 2019, the appellant entered pleas of guilty to six counts of breaching a conduct agreement order, made by the Magistrates Court on 14 February 2018, contrary to s 61(1) of the Restraining Orders Act1997 (WA).
On 20 January 2020, the sentencing magistrate, sentenced the appellant to concurrent sentences of 12 months intensive supervision for each of the offences.
1.2 The making of the conduct agreement order and steps taken by the appellant to set aside the order
On 31 July 2017, the appellant's wife obtained an ex parte interim family violence restraining order against the appellant, under the Restraining Orders Act.
A trial of the application for a final order was listed in the Magistrates Court to commence on 14 February 2018.[1] Prior to the date of the hearing, the appellant filed an objection (to the making of a final order), and applied to cancel the interim family violence restraining order. However, the hearing did not proceed. On the day of the hearing, the appellant signed a conduct agreement pursuant to s 10H of the Restraining Orders Act, which had been prepared by his wife's lawyers. The conduct agreement was approved by the Magistrates Court and a conduct agreement order made.[2]
[1] Brooks v Lathong [2019] WADC 24 [1] ‑ [2]; Brooks v Lathong [2019] WASCA 176 [2].
[2] Brooks v Lathong [2019] WADC 24 [2] ‑ [3].
Very soon afterwards, the appellant regretted signing the conduct agreement, and on 15 February 2018, he filed an application in the Magistrates Court seeking 'to reverse' the conduct agreement order made by the Magistrates Court on grounds of misconduct by his wife's lawyer and by the magistrate.
The application was treated as an application to set aside the conduct agreement order and was heard by the Magistrates Court on 15 May 2018.[3] At the conclusion of the hearing the presiding magistrate found no undue influence, duress or unfair advantage, and dismissed the application to set aside the conduct agreement order.[4]
[3] Brooks v Lathong [2019] WADC 24 [4] ‑ [5].
[4] Brooks v Lathong [2019] WADC 24 [7] ‑ [13]; Brooks v Lathong [2019] WASCA 176 [13] ‑ [14].
The appellant filed an appeal in the District Court on 11 June 2018 against the decision of the magistrate, on 15 May 2018, dismissing his application to set aside the conduct agreement order.[5] The appellant's grounds of appeal in the appeal to the District Court were as follows:[6]
(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 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.
[5] Restraining Orders Act 1997 (WA) s 64(1)(b)(ii).
[6] Brooks v Lathong [2019] WADC 24 [22]; Brooks v Lathong [2019] WASCA 176 [17].
On 2 August 2018, the appellant was charged by prosecution notice with six counts of breaching the conduct agreement order. The charges did not proceed in the Magistrates Court until after the hearing and determination of the appeal to the District Court.
The appeal to the District Court was heard by Davis DCJ on 16 January 2019, and her Honour dismissed the appeal on 26 February 2019,[7] on the following grounds:[8]
As to the first ground, the primary judge [Davis DCJ] 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.
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. 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 advantage.
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. 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.
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. 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:
'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 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.'
[7] Brooks v Lathong [2019] WADC 24.
[8] Brooks v Lathong [2019] WASCA 176 [18] ‑ [21]. (footnotes omitted)
On 7 May 2019, the appellant filed an appeal in the Court of Appeal against the decision of Davis DCJ to dismiss his appeal against the decision of the magistrate dismissing his application to set aside the conduct agreement order. The appellant's grounds of appeal in the appeal to the Court of Appeal, can be summarised as follows:[9]
(a)Grounds 1, 2 and 9 all alleged that the appellant was denied a reasonable opportunity to present his case for setting aside the conduct agreement order at the hearing before the magistrate on 15 May 2018;
(b)Grounds 4, 5 and 8 all concerned the conduct of the magistrate who made the conduct agreement order and the conduct of his wife's lawyer on 14 February 2018, being the date that the appellant signed the conduct agreement;
(c)Grounds 6 and 7 in effect contended that his wife 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; and
(d)Ground 3 related to an email from the District Court which stated that the appellant's appeal from the magistrate and procedural directions would be heard by a judge on 16 January 2019, which email was understood by the appellant to mean that the appeal was to go to trial on the evidence that he had available and not that the District Court was going to deal with the correctness of the conduct agreement order, for which argument he was unprepared.
[9] Brooks v Lathong [2019] WASCA 176 [27] ‑ [46].
On 6 November 2019, the Court of Appeal heard the appeal against the decision of Davis DCJ, and on the same day dismissed the appeal on the basis that none of the appellant's grounds of appeal had any reasonable prospect of success.[10]
2.0 The sentencing proceedings in the Magistrates Court on 20 January 2020 for breaches of the conduct agreement order
[10] Brooks v Lathong [2019] WASCA 176.
On 5 August 2019, before the hearing of the appeal by the Court of Appeal, the appellant entered pleas of guilty in the Magistrates Court at Northam to each of the six charges of breaching the conduct agreement order.[11]
[11] Recorded on the prosecution notice.
In a pre‑sentence report, dated 7 October 2019, the author of the report stated among other matters that psychological counselling may be of benefit to the appellant, so he could address his past relationship trauma and learn more effective coping skills.
On 14 October 2019, the appellant appeared in the Northam Magistrates Court represented by counsel who informed the presiding magistrate that the appellant wished to consider making an application to change his plea to not guilty. The presiding magistrate informed the appellant's counsel that the application needed to be made in writing and on notice to the prosecution. The appellant was remanded until 18 November 2019.[12]
[12] Recorded on the prosecution notice.
It appears that the appellant did not make an application to change his plea to not guilty. Although it is not clear, it appears this may have been because on 6 November 2019, the Court of Appeal dismissed the appellant's appeal against the decision of Davis DCJ. On 18 November 2019, the appellant appeared in the Northam Magistrates Court, represented by counsel and the charges were remanded for a sentencing hearing on 20 January 2020 and a further pre‑sentence report was ordered to address the appellant's psychological condition.[13]
[13] Recorded on the prosecution notice and the Magistrates Court, Northam request for report dated 19 November 2019.
On 20 January 2020, the appellant appeared for sentencing in the Magistrates Court at Northam and was again represented by counsel to be sentenced for the six offences of breaching the conduct agreement order.
2.1 The particulars of the charges of breaching the conduct agreement order
The particulars of the first five counts of breaching the conduct agreement order were that the appellant on five occasions (in the period on and from 13 May 2018 to 11 June 2018) contacted the victim (his wife) by sending her a text message. The particulars of the sixth count were that on 25 June 2018 the appellant contacted the victim (his wife) by sending her an explicit image of her through Australia Post.
2.2 The facts of the offences and the matters stated in the plea in mitigation
Before hearing sentencing submissions, the sentencing magistrate enquired of the appellant's counsel whether he had gone through the psychological report with the appellant and whether the appellant's counsel had read the victim impact statement by the appellant's wife. The victim impact statement was then handed to the appellant's counsel.
The appellant's counsel informed her Honour that prior to attending court he had gone through the psychological report with the appellant and that the appellant had read the report in detail himself.
The prosecutor then read the facts of the offences as follows:[14]
[14] The name of the appellant's stepdaughter is anonymized by the letter A and the first name of the appellant's wife is anonymized by the letter C.
Part of the agreements [conduct agreement] were that he ‑ or he couldn't communicate or attempt to communicate with the applicant 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?'
I'm going to ‑ sorry, pronunciation is [C], I believe is her name. He 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.
In mitigation, the appellant's counsel made the following submissions:
(1)The appellant's wife had instituted Family Court proceedings for a property settlement.
(2)The appellant realised that the relationship was well and truly over but he felt betrayed and hurt because he had been very happy with his relationship with his stepdaughter (who in early 2018 was 8 years old). He thought of her as amazing and as his daughter, and he doted on her.
(3)It was very distressing for the appellant (to be subject to an interim violence restraining order and to have his relationship with his stepdaughter taken away from him) which was compounded by him being rushed into a conduct agreement order in circumstances where he did not fully comprehend or understand what that would mean.
(4)His instructions were that he was not violent to his wife and that in fact she was violent towards him and had assaulted him on a number of occasions with implements.
(5)The photograph sent to his wife was sent to a Legal Aid lawyer in an envelope addressed to his wife. The communication was a private communication directed to her only. The envelope was not opened by Legal Aid, but was sent on by Legal Aid to his wife. The appellant made considerable efforts to attempt to retrieve the envelope before it was delivered but was unsuccessful.
(6)The reason he sent the photograph to his wife was to demonstrate his view that certain allegations she had made (in an affidavit) in Family Court proceedings were lies.
(7)He found the Family Court proceedings upsetting and his work and health suffered.
The sentencing magistrate had before her the appellant's history of criminal and traffic offences report. The report recorded that the appellant had been convicted on 22 April 2013, of 10 counts of breach of a violence restraining order, on various dates from 3 July 2011 to 12 January 2012.
Her Honour asked the appellant's counsel about the appellant's prior convictions for breach of a violence restraining order. In response the appellant addressed the court and stated that:
(a)The convictions related to another woman with whom he had been in a de facto relationship for about 12 years until 2005 or 2007 and with whom he had a daughter.
(b)When the relationship ended, their daughter was 3 years old and she stayed (continued to reside) with him.
(c)He obtained sole custody orders from the Family Court. However his former partner wanted their daughter to live with her, and she made allegations to the police about him (some years after the relationship ended).
(d)When his daughter was about 13 years old she told him she wanted to go and live with her mother and she did.
(e)His daughter is now training to be a teacher. He maintains a father‑daughter relationship with her albeit he does not have a strong relationship with his daughter.
Her Honour then remarked that the information provided to her by the appellant provided some perspective to the text messages (the subject of the charges before her Honour) that he had sent to his wife, some of which appeared to have been directed to his eight-year-old stepdaughter.
The prosecutor informed the sentencing magistrate that the prosecution was not seeking the imposition of a term of immediate imprisonment for the offences.
2.3 The psychological pre‑sentence report before the sentencing magistrate
The author of the pre‑sentence psychological report, dated 14 January 2020, recorded in the report his assessment of the appellant's general psychological profile and his opinion of how that assessment related to the appellant's offending behaviour.
The author of the psychological report conducted an interview with the appellant for approximately 180 minutes, inclusive of psychrometric testing, and had regard to a number of documents including a prior psychological assessment report by a clinical and forensic psychologist dated 27 April 2009, and a letter from a clinical psychologist to the appellant's lawyer dated 28 April 2009.
In the report dated 14 January 2020, the author stated that:
(a)His assessment and the psychological assessment made 10 years before had assessed the appellant with persistent personality features congruent with individuals who present as confident and independent but underpinned by a fear of autonomy and the need for repeated signs of acceptance and approval from others. This assessment was highly compatible with the appellant's confident presentation and his comments that indicated a tendency to be excessively giving in his intimate unions and then feeling disappointed when this was not reciprocated.[15]
(b)The appellant's responses were consistent with individuals who can be self‑assured, confident and forceful. While not necessarily unfriendly, such individuals are most likely to be described by others as self‑reliant and somewhat controlling. Such individuals are comfortable in social settings but often prefer to interact with others in situations in which they can be in control.[16]
(c)The appellant is logical but has difficulty identifying and expressing emotions. He has a poorly developed ability to monitor, identify and hence to manage internal states such as feelings. While this has not caused him great problems in other areas of his life, it seems that the appellant has experienced challenges in his intimate relationships.[17]
(d)The appellant's current breach offences are seen as an example of him acting in an immature and inappropriate manner due to his inability to resolve his psychological tension and soothe his emotional distress.
(e)These offences (that is, the offences the subject of this appeal) constitute the second cluster of breach of VRO‑type offences that the appellant has committed against an ex-partner, which is seen as being underpinned by a combination of socioemotional skill deficits and personality patterns. Despite this repeat of similar offending behaviour he did not present with significant risk factors that are indicative of an elevated risk of violence against an intimate partner. It is likely that the appellant's risk of similar reoffending would be moderated by him gaining a greater understanding of the factors that contributed to his current relationship difficulties. This may also be supported by him developing better emotional management strategies, however his lifelong tendency to suppress his emotions may prove to be a salient obstacle to this.[18]
[15] Psychological report for court dated 14 January 2020, [4.2].
[16] Psychological report for court dated 14 January 2020, [4.3].
[17] Psychological report for court dated 14 January 2020, [5.2], [8.1].
[18] Psychological report for court dated 14 January 2020, [10.1].
The author of the psychological report recommended that if the appellant was afforded a community‑based sentencing option he could be referred for participation in individual counselling to develop better coping and emotional management skills in order to manage any future relationship conflict in more appropriate ways.[19]
2.4 The sentencing magistrate's sentencing remarks
[19] Psychological report for court dated 14 January 2020, [10.2].
Her Honour stated that when she first read the reports (pre‑sentence report, pre‑sentence psychological report and victim impact statement) and had regard to the appellant's criminal history; and before she heard the plea in mitigation; and what the appellant himself had said; she was of the view that a term of imprisonment was open for the offences. However, after she had heard the facts; what had gone wrong with the appellant's previous relationship; the status of his relationship with his wife; and the psychological report, she formed the view that the appellant would benefit from psychological counselling through the imposition of an intensive supervision order. Before imposing the order:
(a)Her Honour allowed the appellant to interject and the following exchange occurred:
ACCUSED: Thank you. 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 - - -
HER HONOUR: I don't take - - -
ACCUSED: - - - or abusive to this lady.
HER HONOUR: I don't take any issue with that, Mr Brooks. 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 ...
ACCUSED: Just one point is that when I received the [violence] restraining order, the first thing I did was object to it.
HER HONOUR: That's right. It got made a conduct agreement.
ACCUSED: And - - -
HER HONOUR: And that was - - -
ACCUSED: And then I put together - started collating a file of what had happened, and I got the transcript reports from Narrogin about the accusations against myself.
HER HONOUR: Mr Brooks, I don't want to re‑ventilate all of that because you've just ‑ I've read both the District Court decision, I've read both the Supreme Court decision. So I'm aware of what ‑ how this transpired. Now, he still could have brought an application because the ‑ my view is that the Restraining Orders Act says a conduct agreement is the same as a violence restraining order. So, therefore, he could have brought an application to cancel the conduct agreement, and that should have happened. But I'm not interested in re-ventilating that, Mr Ryan. I don't think it takes us anywhere - - -
RYAN, MR [the appellant's counsel]: No, it doesn't.
(b)Her Honour asked the appellant's counsel whether an intensive supervision order would be an appropriate sentencing disposition. His counsel said that it was his view that the appellant would benefit from an intensive supervision order as it would give him the strategies that he needs, give him insight, and assist him to have a positive relationship with a partner in the future.
Before adjourning, her Honour said to the appellant's counsel that before the appellant leaves court today he should be given an opportunity to reread what the psychologist wrote in the report because he needs to learn to be able to investigate his emotional make up.
3.0 The grounds of appeal
The grounds for appeal available under s 8 of the Criminal Appeals Act 2004 (WA) include that: the presiding magistrate made an error of law or fact or both; the presiding magistrate acted without or in excess of jurisdiction; the presiding magistrate imposed a sentence that was inadequate or excessive; or that there has been a miscarriage of justice.
Leave of the court is required for each ground of appeal.[20] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[21]
[20] Criminal Appeals Act 2004 (WA) s 9(1).
[21] Criminal Appeals Act 2004 (WA) s 9(2).
To have a reasonable prospect of succeeding in an appeal against a decision of the magistrate, a ground must have a rational and logical prospect of succeeding or a real prospect of success.[22]
[22] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
The appellant's grounds of appeal are not clearly articulated and at their highest appear to raise an argument that the sentencing magistrate acted without or in excess of jurisdiction by denying him natural justice or that there has been a miscarriage of justice. However, the appellant's arguments essentially seek to make a collateral attack on the veracity of the conduct agreement and the conduct agreement order, and the opinions stated by the author of the pre‑sentence psychological report.
On 13 August 2020, the Principal Registrar ordered that the seven items contained in a letter filed by the appellant on 25 June 2020 stand as the appellant's grounds of appeal. However, the matters stated in the letter do not clearly articulate anything capable of constituting arguable grounds of appeal. In the letter, the appellant seeks to raise the following submissions and in effect makes the following applications in the appeal:
(1)The presiding magistrate made comments that had the appellant filed a form 23 to overturn the conduct order which he had signed under great duress then it would have been possible to proceed to trial. He did make this application in good time but it was ignored.
(2)To appeal the conduct order and proceed to trial.
(3)To address the comments made by the magistrate referring to the court transcript.
(4)He was denied the opportunity to make statements in his defence therefore denying him natural justice, and to speak to the court.
(5 & 6)He was denied an opportunity to address the psychological pre‑sentence report which was full of unsubstantiated comments by the appointed psychologist who used previous reports that were protected documents under the family law, which constituted an act of contempt by the appointed psychologist.
(7)To obtain access, under the Freedom of Information Act 1992 (WA), to a copy of the pre‑sentence report, a copy of the psychologist report, and a copy of the victim impact statement.[23]
[23] There was only one pre-sentence report before the sentencing magistrate and that was a psychological report.
Although the appellant's notice of appeal indicates that he seeks leave to appeal against conviction and sentence, at the hearing of the appeal the appellant informed the court that he does not argue that the sentence was harsh or unreasonable but he challenges the findings which the sentencing magistrate made and the matters upon which her Honour determined to impose an intensive supervision order. In particular, he challenges her Honour's reliance on the matters stated by the psychologist in the pre‑sentence psychological report.
It is not open to the appellant, as he seeks to do in point 2 of the letter, to re‑litigate the issues which led to the making of the conduct agreement order by the Magistrates Court on 14 February 2018. The appellant has already litigated this issue first by his application in the Magistrates Court to set aside the conduct agreement order and, subsequently, by his appeal to the District Court and further appeal to the Court of Appeal.
To seek to re‑litigate an issue already decided is an abuse of process and against the principle that there must be finality in the administration of justice.[24]
[24] Patrick Jebb as trustee forThe Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [106] ‑ [111] (Vaughan J).
The Court of Appeal's decision dismissing the appellant's appeal against the decision of Davis DCJ in the District Court, not to set aside the conduct agreement order, is final and conclusive and cannot be considered in this appeal.[25]
[25] Brooks v Lathong [2019] WASCA 176.
In any event, although the appellant committed the offences prior to the determination of his appeals to the District Court and the Court of Appeal, he would have been bound to obey the conduct agreement order, even if he had been successful in either of the appeals resulting in the conduct agreement order being set aside.[26] In other words, even if the appellant's appeal to the District Court or to the Court of Appeal had been successful, he would have had to obey the conduct agreement order until the time the conduct agreement order were set aside by either of those courts.
[26] Jones v Pennuto [2020] WASC 416 (Tottle J). A conduct agreement order is not a family violence restraining order but is taken to be a family violence restraining order for the purposes of the Restraining Orders Act 1997 (WA) s 10H(3).
As to the other points set out in the appellant's letter dated 25 June 2020, and from the appellant's written submissions dated 28 October 2020, four appeal grounds appear to be raised:
(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 report, 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.
4.0 General principles ‑ Appeals against conviction and sentence
At the heart of the appellant's submissions in this appeal is his contention that the sentencing magistrate should have had regard to his complaints about what he contends led to the making of the conduct agreement order (which is not reviewable in this appeal) which complaint is part of his complaint that there are errors of fact in the matters stated in the pre‑sentence report and the pre‑sentence psychological report.
The circumstances in which a plea of guilty will be set aside in an appeal against conviction are as follows:[27]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[27] Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P, Wheeler & Buss JJA agreeing).
The court's power to intervene in a decision made by a judicial officer who sentences an offender at first instance is not unconfined. The Court of Appeal recently pointed out the following well‑established principle:[28]
This court's power to intervene is not ordinarily enlivened in the absence of a material error of fact or law which can be detected in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or plainly unjust.
[28] HJT v The State of Western Australia [2020] WASCA 120 [56].
When sentencing an offender:
(a)section 6(1) of the Sentencing Act1995 (WA) requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)section 6(2) of the Sentencing Act requires that the seriousness of an offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
5.0 Ground 1 ‑ The effect of the appellant's prior application to set aside the conduct agreement order
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).[29]
[29] 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,[30] 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.
[30] Restraining Orders Act 1997 (WA) s 10H(3).
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[31] (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.
[31] Brooks v Lathong [2019] WADC 24 [9] ‑ [10]; Brooks v Lathong [2019] WASCA 176 [8] ‑ [9].
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.
6.0 Ground 2 and Ground 4 - Procedural fairness and the matters put to the sentencing magistrate at first instance in the plea of mitigation
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.
The requirement of a court to accord natural justice includes an obligation to accord procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
The requirements of procedural fairness are not fixed or immutable.[32] Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[33]
[32] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel & Bell JJ); Defendi v Szigligeti [2019] WASCA 115 [48] (Murphy, Mitchell & Beech JJA).
[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ), [48] (McHugh & Gummow JJ); Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107 [28] (French J); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 [30] (Maxwell P; Warren CJ agreeing); Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51] (Newnes JA; Pullin & Murphy JJA agreeing); Defendi v Szigligeti [2019] WASCA 115 [48] (Murphy, Mitchell & Beech JJA).
The relevant legal principles concerning procedural fairness in a criminal trial were considered by Jenkins J in Sprlyan v Wyborn:[34]
Procedural fairness requires that an accused person in a criminal trial must be given a reasonable opportunity to appear and present his or her case. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support. However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.
The assessment is one of 'practical injustice'. For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome.
[34] Sprlyan v Wyborn [2019] WASC 227 [160] - [162]. (footnotes omitted)
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.[35]
[35] 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:[36]
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.
[36] Skelly v The State of Western Australia [2020] WASCA 3 [70]. (footnotes omitted)
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.
The principles that the court is to consider where it is alleged that the conduct of defence counsel at trial occasioned a miscarriage of justice were recently considered by the Court of Appeal in ZHA v The State of Western Australia, which in substance broadly apply to the duty of counsel on a plea of guilty:[37]
[37] ZHA v The State of Western Australia [2020] WASCA 101 [68] ‑ [70]. (footnotes omitted)
In McMahon v The State of Western Australia, McLure P summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:
'The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J).
…
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).'
In Colley v The State of Western Australia, McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon and then said:
'The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.
As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen:
"A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)
…
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant[: Huggins v The State of Western Australia [2018] WASCA 61 [376]]. (citations omitted)"
Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.
In Craig v The Queen (Craig v The Queen 2018] HCA 13; (2018) 92 ALJR 390), the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice, Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial, Craig [26] ‑ [27]. In the context of a decision not to give evidence, the court considered that, Craig [27]:
"At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence."
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision, Craig [33].'
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.
The Court of Appeal in 'HAS' v The State of Western Australia said:[38]
If a report is made available to a court for sentencing purposes, the court may rely upon it unless it is challenged (Norris v The Queen (2001) 121 A Crim R 227 per Steytler J (with whom Malcolm CJ and Kennedy J agreed) at [35] ‑ [36]). If it is challenged and the point would make a difference to the sentence, the issue should be resolved in the usual way, by the calling of evidence and determination by the Judge.
[38] 'HAS' v The State of Western Australia [2005] WASCA 29 [50].
The issue sought to be raised by the appellant is analogous to a point recently considered by the Court of Appeal in North v The State of Western Australia.[39] In that matter the appellant was sentenced in the District Court following pleas of guilty to five offences which included four offences of possession of a prohibited drug (heroin) with intent to sell or supply to another. Prior to the hearing a psychological pre‑sentence report had been obtained by the court. At the sentencing hearing the appellant was represented by counsel. The psychological pre‑sentence report before the court contained a number of observations about the appellant's participation in rehabilitation programs. In submissions made by his counsel to the sentencing judge it was accepted that he had disavowed any interest in participating in other therapies or courses since being in custody. It was also accepted by his counsel that, prior to his current period in custody, the appellant had not undertaken any courses or other types of education. One of the grounds of appeal was whether a miscarriage of justice arose as a result of the sentencing judge acting on incorrect information that the appellant had never availed himself of rehabilitation programs in prison.
[39] North v The State of Western Australia [2020] WASCA 6.
The Court of Appeal found that this ground of appeal did not have any reasonable prospect of succeeding. Their Honours found that the court could only interfere in the sentencing judge's decision if it were established that the absence of evidence of any past steps towards rehabilitation in the sentencing process gave rise to a miscarriage of justice.[40]
[40] North v The State of Western Australia [2020] WASCA 6 [40].
In North v The State of Western Australia the court relevantly considered the principles that apply to challenges to information stated in a pre‑sentence report:[41]
[41] North v The State of Western Australia [2020] WASCA 6 [30] ‑ [36]. (footnotes omitted)
Section 15 of the Sentencing Act provides:
To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence. However, the discretionary power under s 15 must be exercised:
(a)in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and
(b)in accordance with the rules of procedural fairness.
So, for example, s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, information he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.
If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.
Notwithstanding s 15 of the Sentencing Act, where an offender disputes facts or circumstances asserted by the prosecution, the facts or circumstances must be established according to the strict rules of evidence.
A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.
The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice below in the sentencing. Only if error or a miscarriage of justice is established does this court proceed to the second stage of re‑exercising the sentencing discretion and deciding whether a different sentence should have been imposed.
A sentencing judge cannot ordinarily be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court. A miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of miscarriage must be undertaken consistently with the nature of an appeal, in a manner that does not have the practical effect of obliterating the distinction between original and appellate jurisdiction.
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 versions 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'.[42]
[42] ts 20 January 2020, pages 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.
7.0 Ground 3 ‑ Does the appellant have a right to seek copies of the pre‑sentence report, the psychological pre‑sentence report and the victim impact statement?
The short answer to this question is, 'no'.
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.[43] 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.[44]
[43] Freedom of Information Act 1992 (WA) s 9 and cl 3 of the Glossary.
[44] 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.
8.0 Conclusion and orders to dispose of the appeal
For these reasons, I am of the opinion that:
(a)Leave to appeal on Ground 1 be allowed.
(b)Leave to appeal on Grounds 2, 3 and 4 be refused.
(c)The appeal be dismissed.
In written submissions filed on behalf of the respondent on 19 October 2020, the respondent seeks an order that the appellant pay the respondent's costs fixed in the amount of $995. The appellant in his responsive written submissions filed on 20 October 2020 appears to indicate that he objects to an order that he pay the respondent's costs at all and in this amount. However, there is no reason why this court should depart from the usual rule that a successful respondent is entitled to its costs of the appeal and having considered all of the written submissions filed on behalf of the respondent, which submissions are not only comprehensive but deal with some issues of complexity, it is clear that the amount sought is very modest. For these reasons, I am of the opinion that the order sought as to costs by the respondent should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith15 DECEMBER 2020
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