Burton v Steer
[2019] WASC 299
•20 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BURTON -v- STEER [2019] WASC 299
CORAM: MCGRATH J
HEARD: 19 AUGUST 2019
DELIVERED : 20 AUGUST 2019
FILE NO/S: SJA 1078 of 2019
BETWEEN: JASON JOSEPH BURTON
Appellant
AND
LINDA STEER
Respondent
ON APPEAL FROM:
For File No: SJA 1078 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V EDWARDS
File Number : RO 6196 of 2018; RO 6197 of 2018; RO 6198 of 2018; RO 6199 of 2018; RO 6200 of 2018; RO 6201 of 2018; RO 6202 of 2018; RO 6203 of 2018; RO 6204 of 2018; RO 6205 of 2018; RO 6206 of 2018; RO 6207 of 2018; RO 6208 of 2018; RO 6209 of 2018
Catchwords:
Criminal law – Sentencing – Appeal against immediate term of imprisonment – Breach of family violence restraining order – Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Restraining Orders Act 1997 (WA), s 61(1), s 61A
Sentencing Act 1995 (WA), s 9AA
Result:
Extension of time in which to appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr N T L John |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bastin v Edwards [2009] WASC 346
Corrigan v Kirkman [2011] WASC 254
Dennis v Lanternier [No 2] [2017] WASC 5
Forward v Bower [2007] WASC 205
Howell v Davies [2019] WASC 220
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Musgrove v Millard [2012] WASC 60
R v Holder [1983] 3 NSWLR 245
Roffey v The State of Western Australia [2000] WASCA 246
Rogers v Hitchcock [2015] WASC 120
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smartt v Sloane [2019] WASC 35
Woods v The Queen (1994) 14 WAR 341
MCGRATH J:
On 31 October 2018, Mr Burton was convicted, on his own plea, of 14 charges of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). On 12 December 2018, the sentencing magistrate imposed a term of imprisonment for each charge, with the total effective sentence being 18 months' imprisonment, with eligibility for parole.
Mr Burton now seeks leave to appeal against the term of imprisonment of 18 months on one ground, being that the total effective sentence breached the totality principle.
For the following reasons, I have determined that there should be an extension of time in which to appeal,[1] leave to appeal should be granted and the appeal should be dismissed.
[1] Appellant's Notice of Appeal, filed 25 June 2019; Affidavit of Mr Burton in Support of an Application for an Extension of Time in which to Appeal, affirmed 25 June 2019.
In these reasons for decision, I will consider the following:
(a)The Magistrates Court proceedings.
(b)The grounds of appeal.
(c)An assessment of the merits of the appeal.
The Magistrates Court proceedings
On 13 August 2018, prosecution notices were filed alleging 14 offences of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act.[2] The offences are alleged to have occurred on seven dates between 16 June and 2 July 2018.
[2] Prosecution Notices (charges RO 6196/2018 ‑ RO 6209/2018).
On 31 October 2018, Mr Burton appeared in the Magistrates Court and pleaded guilty to the 14 charges. The sentencing hearing was adjourned to 28 November 2018 to allow for a pre‑sentence report to be prepared.
On 28 November 2018, the sentencing hearing was adjourned to 12 December 2018.
On 12 December 2018, Mr Burton's counsel did not attend to appear on behalf of Mr Burton. Accordingly, Mr Burton represented himself at the sentencing hearing.
The facts upon which Mr Burton was sentenced, and which were accepted by Mr Burton, were in the following terms:[3]
[3] ts 3 ‑ 5 (12/12/2018).
The accused and victim were previously in a relationship, but separated around two years ago. Due to ongoing incidents, the victim obtained a violence restraining order protecting her from the accused. The violence restraining order was served on 12 December 2016 and it remains in force until 11 December 2018.
One of the terms of this order is that the accused is not to communicate or attempt to communicate with the victim by any means whatsoever including SMS, text messages or any other electronic means. The accused was recently released from prison. On 16 June 2018 at 4.10 pm, the victim received a text message from the accused. The message said, 'Hi bub, do you want to go out for dinner and a drink? Go to the casino. No ties, just friends. XXXX.'
The accused sent two more messages on this night. Charge 6197, 18 June 2018 at 11.31 pm, the victim received a text message from the accused. The message sent was hard to comprehend and said to ramble on, making little sense. Charge 6198, 19 June 2018 at 6.05 am, the victim received a message from the accused. The message again was hard to understand, but contained words such as 'Did you try tricking me?' and 'I would rather share.'
6199: 19 June 2018, 6.35 am, the victim received a text message from the accused. The message said, 'Just go for smoke and water. Can't believe it. I love you. Don't think you really love me.' Charge 6200: 19 June 2018, 10.37 am, the victim received a message. The accused had requested to talk to the victim via Facebook Messenger application. The victim did not accept the request. Charge 6201: 19 June 2018, 8.43 pm, the victim received a text message from the accused.
The message said things to the effect of, 'Please can you give me details for Facebook. It's killing me. Please don't put me down' and 'I'm coming get you.' Charge 6202: 23 June 2018, 3.11 am, the victim received a text message from the accused. He said things to the effect of, 'I'm on my own. You must really hate me.' Charge 6203: 23 June 2018, 3.13 am, the victim received a request from the accused.
The accused had requested to talk to the victim via Facebook Messenger application. The victim didn't accept the request. 24 June 2018, 6.40 pm, the victim received a text message from the accused. The message said things to the effect of, 'Please. I'm nearly there. Please give me some advice. Do you promise to be there? Please don't ring coppers.' And, 'I can't believe I haven't got you to cry with'. Amongst other things, the accused was attempting to get the victim to meet up with him at hospital.
Charge 6205: 24 June 2018, 7.21 pm, the victim received a text message from the accused. The message was long and hard to understand. The accused makes several allusions to court, drugs and not wanting to lose the victim. 24 June 2018, 7.47 pm, the victim received a text message from the accused. The message again was hard to understand and grammatically incorrect. It made several references to smashing her car, shaving, being there for him and not hurting any of the victim's family.
6207, 24 June 2018, the victim received a voice recording by her phone from the accused. It was a recording approximately 30 seconds long. It was hard to understand what the accused was saying (indistinct) several times throughout the recording. 6208: 27 June 2018, 8.34 am, the victim received a text message from the accused. The message said, 'Good night. Sweet dreams.' 6209: 2 July 2018, 10.56 pm, the accused received a message.
A request from the accused. The accused had requested to talk to the victim via Facebook Messenger application. The victim did not accept the request. The victim later attended Rockingham Police Station to report the 14 breaches. The victim did not reply to any of the accused's messages or requests. The accused has breached the VRO by sending multiple texts.
Mr Burton, in his plea in mitigation, stated that he and the victim had been talking prior to the restraining order being imposed and that their relationship was on and off.[4] However, he accepted that their relationship had since ended and that he intended to move on from the victim to ensure that he does not return to prison.[5] Mr Burton stated that he did not intend to cause the victim harm by sending the text messages and leaving the voice recordings.[6] Mr Burton submitted that a suspended term of imprisonment should be imposed for the offending.[7]
[4] ts 5 (12/12/2018).
[5] ts 5 (12/12/2018).
[6] ts 5 (12/12/2018).
[7] ts 6 (12/12/2018).
The magistrate found that Mr Burton entered pleas of guilty relatively early in the process, albeit not at the earliest opportunity, and therefore afforded Mr Burton a 20% discount in sentencing pursuant to s 9AA of the Sentencing Act 1995 (WA).[8]
[8] ts 6 - 7 (12/12/2018).
Further, the magistrate found that the pre‑sentence report disclosed that Mr Burton shows little regard for court‑imposed orders.[9] Her Honour observed that in January 2017, Mr Burton was convicted of eight breaches of a violence restraining order and was sentenced to a conditional suspended imprisonment order. Mr Burton committed further offences, breaching the suspended imprisonment order and was sentenced to terms of imprisonment. In addition, the magistrate observed that Mr Burton's criminal record reflected further breaches of court orders and restraining orders.[10] Accordingly, the magistrate found that Mr Burton was a prolific offender in respect of breaching restraining orders.[11]
[9] ts 6 (12/12/2018).
[10] ts 6 (12/12/2018).
[11] ts 6 (12/12/2018).
The magistrate determined that imprisonment was the only appropriate penalty for Mr Burton's offending, given the need for both specific and general deterrence.[12] The magistrate concluded that it would be inappropriate for a term of imprisonment to be suspended given Mr Burton's history of offending.[13]
[12] ts 7 (12/12/2018).
[13] ts 7 (12/12/2018).
The magistrate sentenced Mr Burton to a total effective term of 18 months' imprisonment, backdated to 14 August 2018.[14] The magistrate ordered that Mr Burton be eligible for parole.[15]
[14] ts 8 (12/12/2018).
[15] ts 8 (12/12/2018).
The table below outlines the offences and the respective individual terms of imprisonment imposed by the magistrate:[16]
[16] ts 7 - 8 (12/12/2018).
Charge No. Date of offence Term imposed Cumulative/Concurrent RO 6196/18 16/06/2018 3 months' imprisonment Cumulative RO 6197/18 18/06/2018 3 months' imprisonment Cumulative RO 6198/18 19/06/2018 3 months' imprisonment Concurrent RO 6199/18 19/06/2018 3 months' imprisonment Concurrent RO 6200/18 19/06/2018 3 months' imprisonment Concurrent RO 6201/18 19/06/2018 3 months' imprisonment Concurrent RO 6202/18 23/06/2018 3 months' imprisonment Cumulative RO 6203/18 23/06/2018 3 months' imprisonment Concurrent RO 6204/18 24/06/2018 3 months' imprisonment Cumulative RO 6205/18 24/06/2018 3 months' imprisonment Concurrent RO 6206/18 24/06/2018 3 months' imprisonment Concurrent RO 6207/18 24/06/2018 3 months' imprisonment Concurrent RO 6208/18 27/06/2018 3 months' imprisonment Cumulative RO 6209/18 02/07/2018 3 months' imprisonment Cumulative 18 months' immediate imprisonment, backdated to 14 August 2018, with eligibility for parole
Appeal
The ground of the appeal is in the following terms:[17]
1.The learned sentencing Magistrate erred in imposing a total effective sentence that was disproportionate to the appellant's offending conduct in all of the circumstances.
[17] Appellant's Notice of Appeal, filed 25 June 2019.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[18] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or of both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice.[19]
[18] Criminal Appeals Act 2004 (WA), s 9(1).
[19] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[20] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[21]
[20] Criminal Appeals Act 2004 (WA), s 9(2).
[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal or set aside or vary the sentence imposed and substitute it with the sentence that should have been imposed.[22] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
[22] Criminal Appeals Act 2004 (WA), s 14.
The ground of appeal contends that the total effective term of imprisonment imposed by the magistrate breached the totality principle. The ground therefore asserts implied error.
In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[23]
[23] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Assessment of the merits of the appeal
I will now consider the one ground of appeal.
Ground one
By ground one, Mr Burton contends that the total effective sentence breached the totality principle. The ground asserts implied error. Mr Burton does not contend that the term of imprisonment should have been suspended, but rather, that the length of the total effective term of imprisonment infringed the totality principle.[24]
[24] Appellant's Submissions, filed 15 July 2019 [11] - [13].
The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.[25] The total effective sentence must not be unreasonable or plainly unjust.
[25] R v Holder [1983] 3 NSWLR 245, 260 (Street J).
The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally, all relevant sentencing factors and total effective sentences imposed in comparable cases.[26]
[26] Roffey v The State of Western Australia [2007] WASCA 246 [24]; Woods v The Queen (1994) 14 WAR 341.
I now turn to consider the factors in determining whether the length of the term of imprisonment breached the totality principle.
The maximum penalty for an offence contrary to s 61(1) of the Restraining Orders Act is 2 years' imprisonment or a $6,000 fine, or both.
Mr Burton was a repeat offender as defined in s 61A of the Restraining Orders Act. Accordingly, the court had to impose a penalty that was, or included, imprisonment unless to do so would be clearly unjust given the circumstances of the offences and the person and unless the person was unlikely to be a threat to the safety of a person protected or the community generally.[27]
[27] Restraining Orders Act 1997 (WA), s 61A(5), s 61A(6).
Mr Burton was 46 years old at the date of sentencing. He is the father of children and has one grandchild.
Mr Burton contends that his behaviour was at the less serious end of this type of offending. The offending is aggravated by its persistence, being 14 breaches over seven separate dates during a two week period. The specific text messages included 'I'm coming get you', 'you must really hate me' and references to smashing the victim's car and not hurting her family.[28]
[28] ts 3 - 4 (12/12/2018).
The offending commenced immediately upon Mr Burton's release from incarceration in June 2018, after being incarcerated for previous domestic violence offending.
The appellant has an extensive history of offending. I received the criminal record of Mr Burton and the prosecution notices, statement of material facts and sentencing transcript of relevant convictions in respect of Mr Burton.[29] The criminal record of Mr Burton comprises convictions for driving offences, breaches of court orders, criminal damage, stealing, assault and simple drug offences.
[29] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019.
Relevantly, Mr Burton has a significant history of domestic violence offending. Mr Burton has been convicted of 32 breaches of violence restraining orders and 14 breaches of protective bail conditions. These offences primarily concern Mr Burton's former de facto partners.
Turning first to Mr Burton's most recent de facto partner, that is, the victim of the charges the subject of this appeal. From 9 October 2013, Mr Burton was subject to a violence restraining order, protecting the victim.[30] Mr Burton breached this violence restraining order on numerous occasions.[31]
[30] Respondent's Outline of Submissions, filed 25 July 2019 [41], [49].
[31] Respondent's Outline of Submissions, filed 25 July 2019 [40] - [64].
First, on 4 November 2013, Mr Burton breached the violence restraining order by attending the victim's house and assaulting her, inflicting a broken nose and bruising to her face.[32] On 4 June 2014, Mr Burton was convicted of one charge of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) (PE 57990/2013) and one charge of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act (PE 57989/2013).[33]
[32] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 119 - 130.
[33] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 119 - 134.
On 4 June 2014, Magistrate Richardson sentenced Mr Burton to a 15 month intensive supervision order for breaching the violence restraining order and a term of 12 months' imprisonment, suspended for 15 months, for the aggravated assault.[34]
[34] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 131 - 134.
On 6 December 2016, Mr Burton attended the victim's house and smashed the windows of her home and vehicle, allegedly with a machete.[35] On 8 December 2016, Mr Burton was convicted of two charges of criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code (AR 15321/2016, AR 15322/2016).[36] Magistrate Hawkins imposed a global fine of $950 for this offending.[37]
[35] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 135 - 140.
[36] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 135 - 150.
[37] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 141 - 150.
Between 13 December 2016 and 7 January 2017, Mr Burton breached the violence restraining order on a further nine occasions by sending the victim messages, calling her and attending her home.[38] On one occasion, Mr Burton slashed the tyres of a vehicle located at the victim's home which belonged to her new partner.[39] On 11 January 2017, Mr Burton was convicted of nine charges of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act (AR 477/2017 ‑ AR 485/2017) and one charge of criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code (AR 489/2017).[40] Magistrate Wilson sentenced Mr Burton to a term of imprisonment of 6 months and 1 day, suspended for 12 months.[41] Magistrate Wilson also imposed protective bail conditions in relation to the victim, preventing Mr Burton from approaching within 100 m of the victim or her home.[42]
[38] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 155 - 168.
[39] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 169 - 171.
[40] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 155 - 171, 173 - 182.
[41] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 173 - 182.
[42] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 180 - 181.
Between 17 January and 24 January 2017, Mr Burton breached the violence restraining order and bail conditions set by Magistrate Wilson on four separate occasions by approaching the victim and her house.[43] On one occasion, Mr Burton wielded a knife and inflicted a small laceration to the victim's partner's hand.[44] Accordingly, on 16 May 2017, Mr Burton was convicted of five charges of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act, five charges of breaching protective bail conditions contrary to s 51(2a) of the Bail Act1982 (WA) (AR 1113/2017 ‑ AR 1122/2017) and one count of unlawful wounding contrary to s 301(1) of the Criminal Code (AR 1108/2017).[45] As this offending occurred during the 12 month suspension period imposed on 11 January 2017, Magistrate Wilson ordered that Mr Burton serve the original term of imprisonment imposed of 6 months and 1 day as well as terms of imprisonment for the other offending, creating an effective total term of imprisonment of 13 months and 1 day.[46]
[43] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 191 - 208.
[44] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 213.
[45] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 185 - 225.
[46] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 209 - 225.
Accordingly, Mr Burton was incarcerated from 16 May 2017 to 16 June 2018. On the day of his release, Mr Burton reoffended by committing the 14 offences which are the subject of this appeal.
Mr Burton has also engaged in a similar pattern of offending with previous partners. In 2012, Mr Burton was subject to a violence restraining order, protecting his former de facto partner.[47] Mr Burton breached this violence restraining order on multiple occasions.[48]
[47] Respondent's Outline of Submissions, filed 25 July 2019 [31].
[48] Respondent's Outline of Submissions, filed 25 July 2019 [28] - [39].
First, on 8 and 9 March 2012, Mr Burton assaulted his former partner by punching her in the body and face, inflicting a broken nose and damaging her property.[49] On 6 March 2013, Mr Burton was convicted of two charges of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (RO 3292/2012, RO 3293/2012) and one charge of criminal damage contrary to s 444(1)(b) of the Criminal Code (RO 3294/2012).[50] Magistrate Richardson sentenced Mr Burton to 7 months' imprisonment, suspended for 12 months and imposed a 12 month intensive supervision order for the aggravated assault charges.[51] A fine of $500 was also imposed for the criminal damage charge and restitution was ordered in the sum of $500.[52]
[49] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 65 - 70.
[50] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 65 - 70, 99 - 116.
[51] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 99 - 116.
[52] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 99 - 116.
On 2 April 2012, protective bail conditions in respect of Mr Burton's former partner were imposed on Mr Burton.[53]
[53] Respondent's Outline of Submissions, filed 25 July 2019 [31].
Between 6 and 8 April 2012, Mr Burton breached the violence restraining order and protective bail conditions by sending a series of text messages to his former partner.[54] On 21 May 2012, Mr Burton was convicted of one charge of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act (RO 4871/2012) and one count of breaching protective bail conditions contrary to s 51(2a) of the Bail Act (RO 4872/2012).[55] Magistrate Richardson imposed fines totalling $800 for this offending.[56]
[54] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 77 - 82.
[55] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 77 - 82; Respondent's Outline of Submissions, filed 25 July 2019 [34].
[56] Respondent's Outline of Submissions, filed 25 July 2019 [34].
Between 31 May and 15 June 2012, Mr Burton breached the violence restraining order and protective bail conditions by sending his former partner a series of text messages.[57] Mr Burton was convicted of two charges of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act (PE 31773/2012, PE 31775/2012) and two counts of breaching protective bail conditions contrary to s 51(2a) of the Bail Act (PE 31774/2012, PE 31776/2012).[58] On 6 March 2013, Magistrate Richardson also dealt with these offences by way of a 12 month intensive supervision order.[59]
[57] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 87 - 98.
[58] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 87 - 98, 99 - 116.
[59] Affidavit of Emma Jane Louise Downey, affirmed 25 July 2019, 99 - 116.
Accordingly, Mr Burton has an extensive criminal record with significant domestic violence offending. Personal deterrence is highly relevant in respect of Mr Burton.
The author of the pre‑sentence report stated that Mr Burton demonstrates anti‑social behaviours, lacks insight into the impact of his offending and lacks consequential thinking.[60] The author expressed the opinion that Mr Burton displayed limited victim empathy and tended to minimise his offending behaviour.[61]
[60] Pre-Sentence Report, dated 23 November 2018, 1.
[61] Pre-Sentence Report, dated 23 November 2018, 3.
The mitigating factors were Mr Burton's plea of guilty, for which a 20% discount was afforded under s 9AA of the Sentencing Act.[62] Mr Burton expressed his remorse.[63]
[62] ts 6 - 7 (12/12/2018).
[63] ts 5 (12/12/2018).
The paramount sentencing considerations for restraining order offending are personal and general deterrence. Deliberate breaches of violence restraining orders, which are made as a legal response to domestic violence, undermine the efficacy of such orders. Mr Burton deliberately and persistently breached the family violence restraining order.
Given the disparate circumstances in which such offending may occur and the variation in personal circumstances of offenders, there is no tariff for the offence of breaching a family violence restraining order.[64] The appellant referred to sentencing authorities: Musgrove v Millard,[65] Corrigan v Kirkman[66] and Smartt v Sloane.[67] The respondent referred to a number of sentencing authorities: Bastin v Edwards,[68] Dennis v Lanternier [No 2],[69] Forward v Bower,[70] Howell v Davies,[71] Musgrove v Millard,[72] Rogers v Hitchcock,[73] Sakkers v Thornton[74] and Smartt v Sloane.[75] I have considered these sentencing authorities and the cases referred to therein.
[64] Dennis v Lanternier[No 2] [2017] WASC 5 [150].
[65] Musgrove v Millard [2012] WASC 60.
[66] Corrigan v Kirkman [2011] WASC 254.
[67] Smartt v Sloane [2019] WASC 35.
[68] Bastin v Edwards [2009] WASC 346.
[69] Dennis v Lanternier [No 2] [2017] WASC 5.
[70] Forward v Bower [2007] WASC 205.
[71] Howell v Davies [2019] WASC 220.
[72] Musgrove v Millard [2012] WASC 60.
[73] Rogers v Hitchcock [2015] WASC 120.
[74] Sakkers v Thornton [2009] WASC 175.
[75] Smartt v Sloane [2019] WASC 35.
I am of the view that the sentence of 18 months' immediate imprisonment does not breach the totality principle. A sentence of 18 months' immediate imprisonment, whilst at the higher end of the permissible range in this case, was within the magistrate's discretion. The offending showed Mr Burton's continuous disregard for court‑imposed orders. The victim has, on numerous prior occasions, suffered acts of violence inflicted by Mr Burton in breach of orders under the Restraining Orders Act and protective bail conditions. In all the circumstances, it was open to her Honour to impose an 18 month term of imprisonment. That term provides both adequate personal deterrence and punishment, having regard to the seriousness of the offending and the factors personal to Mr Burton.
Conclusion
The sentence imposed on the 14 charges, being a total effective term of immediate imprisonment of 18 months, is without error. The imposition of an 18 month term of immediate imprisonment does not breach the totality principle. I grant an extension of time in which to appeal and grant leave to appeal but the appeal must be dismissed.
Consequently, I make the following orders:
(1)Extension of time in which to appeal is granted.
(2)Leave to appeal is granted.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Associate/Orderly to the Honourable Justice McGrath20 AUGUST 2019
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