De Bono v Southam - [2018] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DE BONO -v- SOUTHAM [2018] WASCA 218
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   23 NOVEMBER 2018
DELIVERED          :   7 DECEMBER 2018
FILE NO/S:   CACR 177 of 2018
BETWEEN:   JAMIE CHARLES DE BONO
Appellant
AND
VICTORIA SOUTHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   DERRICK J
File Number             :   SJA 1042 OF 2018

Catchwords:

Criminal law - Appellant pleaded guilty to six offences of breaching a violence restraining order - Appeal against conviction - Whether any miscarriage of justice - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA), s 61

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

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

De Bono v Southam [2018] WASC 266
Lawson v The State of Western Australia [No 2] [2018] WASCA 204

JUDGMENT OF THE COURT:

The appellant pleaded guilty to six counts of breaching a violence restraining order (VRO). He was sentenced to 3 months' imprisonment cumulative on the term of imprisonment he was serving at the time of his conviction. He appealed to a judge of the General Division against his conviction, and against the sentence imposed on him. The appeal was dismissed.[1]
[1] De Bono v Southam [2018] WASC 266 (primary reasons).
He now seeks leave to appeal against the dismissal of his appeal against conviction. For the reasons that follow, there is no merit in the proposed grounds of appeal. Consequently, leave to appeal must be refused and the appeal dismissed.

The facts of the offences

On 30 October 2016 the appellant was served with the VRO. The protected person under the VRO was the appellant's former partner, ANM.
One of the conditions of the VRO was that the appellant must not:
Communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means.
During the period 14 January 2017 to 16 June 2017 the appellant was in custody, on remand awaiting sentencing for an offence of aggravated assault occasioning bodily harm which he had committed against ANM. While he was in custody, ANM made contact with him under a false name. The appellant realised, if not immediately, then very soon after the contact had been made, that the writer was in fact ANM.
After ANM's initial contact with the appellant, during the period 14 January 2017 to 16 June 2017 the appellant sent six letters to ANM. Each of the six letters was addressed to the false name and was sent to ANM's brother's address. ANM's brother lived in the same street as ANM.
In each of the six letters the appellant, in essence, expressed his love for ANM, his desire to reconnect with their daughter and his desire to reunite with both ANM and…

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 De Bono v Southam

Details

AGLC: De Bono v Southam [2018] WASCA 218
Case: [2018] WASCA 218
Decision Date: 7 DECEMBER 2018

CaseChat Overview and Summary

De Bono appeals against his conviction for six counts of breaching a violence restraining order. The matter was heard in the Supreme Court of Victoria. The appellant argues that there may have been a miscarriage of justice due to the circumstances surrounding the breaches. The court must determine whether the appellant's rights were compromised and whether there were any errors in the trial process that may have affected the outcome.

The court examined the evidence and submissions to determine whether the appellant's rights were adequately protected during the proceedings. The appellant contended that the magistrate did not adequately consider the context of the breaches and did not give sufficient weight to mitigating factors. The court assessed whether the magistrate's decision to convict was unreasonable and whether there were any procedural errors that may have contributed to an unfair outcome. The primary focus was on whether the appellant's rights were properly safeguarded and whether the conviction was just.

The court found that the magistrate did not err in convicting the appellant. The evidence demonstrated that the appellant had knowingly and wilfully breached the restraining order on multiple occasions. The court held that the magistrate adequately considered the circumstances and gave appropriate weight to the mitigating factors presented. The court concluded that there was no miscarriage of justice and that the appellant's rights were properly protected during the proceedings. The appeal was dismissed, and the original conviction was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the conviction. The appellant was left to serve the original sentence as determined by the magistrate.

Orders