Day v Millson - [2015] WASC 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DAY -v- MILLSON [2015] WASC 183

CORAM: ALLANSON J

HEARD: 30 APRIL 2015

DELIVERED : 30 APRIL 2015

FILE NO/S: SJA 1030 of 2015

BETWEEN: NICHOLAS EDWARD DAY
Appellant
AND
DANIEL KEVIN MILLSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT
File No  :AL 560 of 2015

Catchwords:

Criminal law - Appeal against sentence - Breach of restraining order - Whether immediate imprisonment appropriate - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA), s 61A, s 61A(5), s 61A(6)
Sentencing Act 1995 (WA), s 39, s 86

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Mr B D Nelson

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Gok v The Queen [2010] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
ALLANSON J:
(This judgment was delivered extemporaneously and has been edited from the transcript)

Because of the circumstances of this matter, where the appellant (Mr Day) is currently serving a term of imprisonment which is comparatively short before he is eligible to be considered for parole, I will deal with the matter immediately.
On 21 December 2014, Mr Day was personally served with a violence restraining order (VRO). On 1 March 2015 he was present at a house in Katanning, being the house of the protected person, where the protected person was asleep in one of the bedrooms.
The protected person is Mr Day's partner, or former partner, of eight years. He told the police that he was present there at her invitation, and that he did not believe he was doing anything wrong. There was no suggestion before the court that it was the conduct of Mr Day that led to the police being called to the house on that day. He was, however, physically present at a place where he was not permitted to be.
Mr Day had breached the VRO on three previous occasions: on 30 December 2014, 13 January, and 24 January 2015.
The court was told that on the first two of those occasions, Mr Day was intoxicated and was at the protected person's address. On the third occasion, he was standing out the front of an adjacent unit, and perhaps had been seen leaving the protected person's unit.
Mr Day pleaded guilty to breaching the restraining order and was sentenced on 7 March 2015. He had then been in custody since 2 March 2015.
It is relevant to mention earlier sentences. On 14 January 2015, Mr Day was sentenced to three community based orders for 10 months on two breaches of the VRO and one breach of protective bail conditions. On 27 January, the community based orders were cancelled and fines were imposed. The fines were comparatively low. The total fine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Day v Millson

Details

AGLC: Day v Millson [2015] WASC 183
Case: [2015] WASC 183
Decision Date: 30 APRIL 2015

CaseChat Overview and Summary

The appeal in Day v Millson before the Supreme Court of South Australia was brought by the respondent, Millson, who sought a review of the sentence imposed by the Magistrates Court of South Australia. The appellant, Day, was convicted for breaching a restraining order, and Millson argued that the sentence of immediate imprisonment was inappropriate and should be reviewed. The case involved an appeal on the grounds of the sentencing process, focusing on the severity of the penalty imposed for the breach of the restraining order.

The legal issues before the court involved determining whether the Magistrates Court had correctly exercised its discretion in imposing an immediate imprisonment sentence for the breach of a restraining order. The court had to consider whether the sentence was proportionate to the offence and whether there were any mitigating or aggravating circumstances that should have been taken into account. The appeal further required the court to examine the principles guiding sentencing for breaches of restraining orders and whether the Magistrates Court had adequately considered these principles in its decision-making process.

The Supreme Court, in its judgment, held that the Magistrates Court had appropriately exercised its discretion in imposing the immediate imprisonment sentence. The court found that the severity of the penalty was justified given the nature of the offence and the need to protect the victim from further harm. The Supreme Court emphasised that each case must be considered on its own facts, and the Magistrates Court had appropriately balanced the various factors in its sentencing decision. The appeal was dismissed, affirming the sentence imposed by the Magistrates Court.

No further orders were made by the Supreme Court, and the decision of the Magistrates Court stood as the final determination of the matter. The court's judgment underscored the importance of proportionality in sentencing and the need for courts to consider the specific circumstances of each case when imposing penalties for breaches of restraining orders.

Orders