Debono v Southam
[2018] WASC 266
•28 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DEBONO -v- SOUTHAM [2018] WASC 266
CORAM: DERRICK J
HEARD: 28 AUGUST 2018
DELIVERED : 28 AUGUST 2018
FILE NO/S: SJA 1042 of 2018
BETWEEN: JAMIE CHARLES DEBONO
Appellant
AND
VICTORIA SOUTHAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D P SCADDAN
File Number : PE 8659-8664 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted on pleas of guilty - Whether pleas entered in circumstances giving rise to a miscarriage of justice
Criminal law - Appeal against sentence - Breach of violence restraining order - Sentence of imprisonment - Whether magistrate failed to take into account relevant circumstances - Whether wrong type of sentence imposed
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Application for extension of time granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr S P Tomasich |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Bastin v Edwards [2009] WASC 346
Baudoeuf v Venning [2010] WASC 322
Conomy v Western Australian Police [2015] WASC 178
Cullen v Rollings [2009] WASC 80
D'Costa v Roe [2013] WASC 99
Dennis v Lanternier [No 2] [2017] WASC 5
Dominik v Volpi [2004] WASCA 18
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Forward v Bower [2007] WASC 205
Granato v Comptroller‑General of Customs [2018] WASC 201
Hagart v Viles [No 2] [2010] WASC 313
Haigh v Oliver [2015] WASC 462
Isenhood v Green [2011] WASC 70
Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)
Lutey v Jacques [2010] WASC 78
Mason v The State of Western Australia [2018] WASCA 43
Mills v Hawley [2013] WASC 261
Page v The State of Western Australia [2018] WASCA 76
Pillage v Coyne [2000] WASCA 135
Sakkers v Thornton [2009] WASC 175
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193
Topuz v The State of Western Australia [2017] WASCA 186
Wallam v Grosveld [2015] WASC 145
DERRICK J:
Introduction
On 6 March 2018 the appellant was convicted in the Magistrates Court on his pleas of guilty of six offences (the offences)[1] of breaching a violence restraining order number JOO/RO/01068/2016 (the VRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the ROA).[2]
[1] PE 8659/18 to PE 8664/18.
[2] ts 8 ‑ 9, 6 March 2018.
On 27 March 2018 the appellant was sentenced to 3 months imprisonment for each of the offences. One of the sentences (PE 8659/18) was ordered to be served cumulatively on a sentence of 15 months imprisonment that the appellant was already serving and which had been imposed on him by the District Court on 22 March 2018 for an offence of aggravated assault occasioning bodily harm committed by the appellant against the protected person under the VRO (the commencement date of the 15 month sentence being 14 January 2017). The remaining sentences were ordered to be served concurrently. The net result was that the appellant was sentenced to a total of 3 months imprisonment for the offences to be served cumulatively on the 15 month sentence that he was already serving.[3]
[3] ts 13, 27 March 2018.
The appellant applies for an extension of time within which to appeal and for leave to appeal against his convictions and the sentence imposed.[4]
[4] The applications are made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 3 July 2018 Archer J ordered that the appellant's application for an extension of time and for leave to appeal be heard together with the appeal.
The appellant was granted bail pending the hearing of the appeal. However, he breached his bail and was taken back into custody. The result is that the appellant has now served the 3 month sentence imposed on him for the offences.
The application for an extension of time
The last day for appealing the convictions and the sentence imposed was 24 April 2018.[5] The appellant filed his appeal notice on 8 May 2018, that is, 14 days late.
[5] CAA s 10(3) and 10(4).
The appellant has filed three affidavits in support of his appeal. The affidavits are dated 7 May 2018, 7 June 2018 and 21 June 2018.
The third of the appellant's affidavits was apparently filed in response to a request by the court by letter dated 15 June 2018 for the appellant to provide an affidavit in support of his application for an extension of time. It would appear from the content of this affidavit that the appellant's asserted reasons for not commencing his appeal within time are that he was in custody, was refused a grant of legal aid and was required to prepare the appeal papers himself.
The respondent opposes the application for an extension of time.
Ultimately, the question is whether it is in the interests of justice to grant an extension of time. There may be cases where an extension of time is not granted even where there is merit in one or more of the grounds.[6]
[6] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] ‑ [14].
The delay in filing the appeal notice while not insignificant is not particularly lengthy. Further, I am satisfied that the reasons put forward by the appellant for the delay provide an adequate explanation for the delay. I therefore grant the extension of time within which to appeal.
Leave to appeal
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[7] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[8] If leave to appeal is refused on each ground the appeal is taken to be dismissed.[9]
[7] CAA s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[9] CAA, s 9(3).
Grounds of appeal
The appellant is not legally represented. Consequently his grounds of appeal as expressed in his appeal notice, and as elaborated upon in his affidavits, are not expressed in a manner which would be expected if they had been drafted as grounds of appeal by a lawyer. However, doing my best to discern the appellant's principal complaints from the grounds of appeal as expressed in the appeal notice, the content of his affidavits and his oral submissions made during the hearing of the appeal it seems to me that the matter can most fairly, and should be, approached on the basis that the appellant's grounds of appeal against his convictions are as follows:
1.The appellant's guilty pleas were entered in circumstances that give rise to a miscarriage of justice because:
(1)at the time that he entered his pleas he was not sure if he was guilty or not guilty; and
(2)he felt pressured to enter his pleas because he believed that if he did not the existence of the unresolved charges of breaching the VRO would mean that he fell within the terms of cl 3A of sch 1 to the Bail Act 1982 (WA) which would in turn impact on the likelihood of success of an application for home detention bail that he was in the process of making in the Supreme Court in respect of indictable charges that had been laid against him (ground 1).
2.The appellant was induced to engage in the conduct the subject of the offences by the protected person under the terms of the VRO (ground 2); and
3.The VRO was cancelled after the appellant had been dealt with for the offences (ground 3).
So far as the appellant's appeal against sentence is concerned, it seems to me, again doing my best to discern the appellant's principal complaints from the grounds of appeal as expressed in the appeal notice, the content of his affidavits and his oral submissions that the matter can most fairly, and should be, approached on the basis that the appellant's grounds of appeal are as follows:
1.The magistrate made an error in failing to take into account a relevant circumstance, namely that his breaching of the VRO was induced and encouraged by the protected person under the VRO (ground 4);
2.The magistrate made an error in failing to backdate the commencement date of the appellant's sentence to take into account time that he had already spent in custody for the offences (ground 5); and
3.The magistrate made an error in deciding that a term of immediate imprisonment was the only appropriate disposition (ground 6).
The facts of the offences
The facts of the offences are as follows.
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. He was on remand awaiting sentencing for the above referred to offence of aggravated assault occasioning bodily harm which he had committed against ANM. While he was in custody ANM made contact with him under the false name Jessica Smills. Although ANM made contact with the appellant under the false name the appellant, if not immediately then very soon after the contact had been made, realised that Jessica Smills was in fact ANM.
After ANM's initial contact with the appellant, the appellant, during the period 14 January 2017 to 16 June 2017 sent six letters to ANM. The first four letters were dated 14 January 2017, 12 February 2017, 12 March 2017 and 26 May 2017. The fifth letter was undated. The sixth letter was dated 16 June 2017. Each of the six letters was addressed to Jessica Smills 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 (copies of which have been provided to the court by the respondent) the appellant, in essence, expressed his love for ANM and/or his desire to reconnect with their daughter and/or his desire to reunite with both ANM and their daughter so as to recreate the family unit.
Appeal against convictions
Ground 1 - pleas of guilty entered in circumstances giving rise to a miscarriage of justice
Applicable legal principles
In Topuz v The State of Western Australia[10] the court said the following in relation to appeals brought on the basis that a plea of guilty should be set aside (citations omitted):
[10] Topuz v The State of Western Australia [2017] WASCA 186 [18] ‑ [19]; see also Granato v Comptroller‑General of Customs [2018] WASC 201 [19] ‑ [21].
It is established that a court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. 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.
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:
1.the appellant did not understand the nature of the charge or intend to admit guilt;
2.upon the admitted facts, the appellant could not in law have been guilty of the offence; or
3.the guilty plea has been obtained by improper inducement, fraud or intimidation.
However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed.
Background to the appellant entering his guilty pleas
The background to the appellant entering his pleas of guilty to the offences is as follows.
When the appellant appeared before the magistrate for the first time on 26 February 2018 he informed her that he was 'not too sure' if he was guilty or not guilty.[11] Her Honour informed the appellant that 'perhaps it would be better for you to get some legal advice on these charges and, if it's appropriate, you can deal with them on the next occasion'.[12] A little later the following exchange occurred between the magistrate and the appellant:[13]
[11] ts 34, 26 February 2018.
[12] ts 35, 26 February 2018.
[13] ts 36 ‑ 37, 26 February 2018.
HER HONOUR: We're not wasting any time but listen carefully; just listen for a start.
ACCUSED: Yes.
HER HONOUR: So between - this is - what I've got before me is six breaches of a violence restraining order where it's alleged between ‑ ‑ ‑
ACCUSED: Yes.
HER HONOUR: ‑ ‑ ‑ 14 January and 16 June last year you breached the order by communicating with the protected person. Do you at least understand those charges?
ACCUSED: Yes, I'm - I'm - I'm guilty of those, your Honour.
HER HONOUR: Right.
ACCUSED: But in respect for that, like, she has rang up the prison and because I've only got a 15 month old little girl ‑ ‑ ‑
HER HONOUR: Yes.
ACCUSED: ‑ ‑ ‑ I didn't actually know it was her at first until I actually got through. So that's ‑ ‑ ‑
HER HONOUR: Well, don't you think it would be better, Mr De Bono, if I grant you two weeks to get legal advice and you speak with the duty lawyer when they come out to Hakea or, alternatively, you put your name on the duty lawyer list and they can phone you and, if necessary, we can deal with them on the next occasion.
ACCUSED: Can I go up before you, your Honour.
HER HONOUR: Let me see what my availability is. It's not that you can't come before me, Mr De Bono, but the trouble is that I'm just not sitting in a convenient court for some period. I've got about - 6 March, so next Tuesday after the long weekend. Let me suggest this to you: put your name on the duty lawyer list for 6 March, get some advice on the phone and if we can deal with them on that day, I will deal with them on that day.
ACCUSED: Can I just say one thing before I go?
HER HONOUR: Yes.
ACCUSED: Thank you, your Honour. What's it called, the reason, like, I would like to get these dealt with as soon as possible - because if I'm not guilty, I could be not guilty due to my circumstances - it's just because I've been in custody for - for 14 months now and these have all just been brought up so if I end up taking these - having to go to trial, as you know, the courts are backed - are backed up and it just puts me in another schedule 2 position so ‑ ‑ ‑
HER HONOUR: Yes, I understand.
ACCUSED: So ‑ ‑ ‑
HER HONOUR: I understand your - I understand the point you're making.
ACCUSED: Yes.
HER HONOUR: And - but my suggestion is you put your name on the duty lawyer list, speak with the duty lawyer on 6 March and if we can deal with them on Tuesday, I would be very happy to deal with them on Tuesday.
ACCUSED: Right. So they may get chucked out, they may not.
HER HONOUR: They won't get chucked out because the police - that's a matter for the police to make that application. I don't - I don't unilaterally decide to chuck things out.
The appellant next appeared before the magistrate on 6 March 2018. By the time of this hearing the appellant had provided the magistrate with a 10 page letter.
At the beginning of the hearing the magistrate had a discussion with the appellant about a bail application which he had pending in the Supreme Court.[14] The following exchange then occurred between the magistrate and the appellant:[15]
[14] ts 2 ‑ 4, 6 March 2018.
[15] ts 4 ‑ 5, 6 March 2018.
HER HONOUR: All right. Well, Mr De Bono, your bail application ‑ if you're making a bail application today, I have to say that you're - my sense of things is that you're going to get bail. That's just my sense of things. If you're wanting to plead not guilty, I will take your plea and I will list a trial date for you. If you're wanting to plead guilty, then we will see where we're at.
But if all you're doing is going to tell me that I should grant you bail on these matters, I'm - in the circumstances, I'm not entirely convinced, particularly where it sounds to me like you come within schedule 2 of the Bail Act that that's going to be the most prudent course of action for you.
ACCUSED: Well, your Honour, like, because I am - I am - I do accept that I am guilty for writing some letters back. It's just - it's just due to the circumstances around - as, like, your Honour can probably see by the letter that I've written. Like, so it's just due to the circumstances. I'm not ‑ ‑ ‑
HER HONOUR: Well, even if you wrote back, if that - if someone wrote to you and wrote back - and you wrote back, consent is not a defence. So, therefore, you have breached the order by writing back. So if that's what I'm going to hear ‑ ‑ ‑
ACCUSED: Okay.
HER HONOUR: ‑ ‑ ‑ then I'm afraid you're going to be out of luck because the fact that somebody wrote to you is not an invitation not you writing back and they're not - therefore, not breaching the restraining order. It does not work that way.
ACCUSED: Okay. I just ‑ ‑ ‑
HER HONOUR: It might be taken into account for the purposes of sentencing, but it won't act as a defence to the breach.
ACCUSED: That would - that makes a lot more sense then, your Honour. Like, if that's the case ‑ ‑ ‑
HER HONOUR: I suspect you've been told that.
ACCUSED: No. Well, like, I - no, I didn't get told that. If that's the case, your Honour, yes, I will - I will accept a guilty plea.
Following the above exchange the prosecutor provided to the magistrate a brief outline of the facts of the offences.[16] Her Honour then had a brief discussion with the appellant in relation to the facts during which the appellant in effect accepted the facts as presented by the prosecutor.[17] After this brief discussion the following exchange occurred between the magistrate and the appellant:[18]
[16] ts 5 ‑ 6, 6 March 2018.
[17] ts 6, 6 March 2018.
[18] ts 6 ‑ 9, 6 March 2018.
HER HONOUR: All right. So what I'm trying to establish is did you breach the violence restraining order, and I think the simple answer to that is yes, albeit you did it in a somewhat tortured fashion. Now what are you - what is it that you're wanting to do with these charges, Mr De Bono?
ACCUSED: Well, if - like, if the laws, like, states that I am guilty of a - because I did write those letters back. But in short, like (indistinct) by saying that, in my defence, the VRO was dropped - was thrown out of court on the 1st of this month. So I've beaten that due to the circumstances due to that, like, she has invited me and she has - she has actually told the courts that she rang under a false name and stuff like that and using my - well, at that stage, my newborn daughter against me because of my past. Like, the kids have changed my life dramatically. Unfortunately I have mucked up down the track.
HER HONOUR: All right. So I'm going to stop you. Because, Mr De Bono, I don't mean to be mean, but I am taking an awful lot of time on this and I have got other people I need to deal with.
ACCUSED: Sorry.
HER HONOUR: So are you dealing with - are you entering pleas of guilty? Because if you are I'm going to ask for the prosecution to give me an indication - I'm not going to sentence you today. I will sentence you in a restraining order court, but I want the prosecution to put before me some information about the content of the letters.
ACCUSED: So will this get all dealt with today?
HER HONOUR: No, Mr De Bono.
ACCUSED: No.
HER HONOUR: The answer to that is no.
ACCUSED: Okay.
HER HONOUR: Because I need to have some more information so that I can sensibly sentence you on what the content of those letters were. And, simply put - don't take this the wrong way, but I'm just not going to accept wholly your word on things.
ACCUSED: Okay. That's fair enough, yes.
HER HONOUR: All right. So are you - do you wish to plead guilty to the charges? Do you wish to plead not guilty to the charges? Or do you wish to put them off?
ACCUSED: I will plead guilty then, your Honour.
HER HONOUR: All right. And then you've got some other material that I want to have a look at that you've sent to me - not to me personally, but to the court. And I will sentence you in a restraining order court and I will ask the prosecution to put before me some information about the content of those letters, because that may - and the circumstances surrounding it. Because that will be fairly instructive, in my view, about how I deal with this matter.
ACCUSED: That seems reasonable.
HER HONOUR: All right. Let me read the charges to you now. Between 14 January 2017 and 16 June 2017 at (indistinct) - these are all identical - it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Again, between those same dates, it's alleged that you breached - you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Between those same dates again it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Between the same dates again it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: Again between those same dates it's alleged that you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
HER HONOUR: And again between those same dates it's alleged you were bound by a violence restraining order and breached the order by communicating with the protected person. Do you understand the charge?
ACCUSED: Yes, your Honour.
HER HONOUR: How do you plead?
ACCUSED: Guilty.
Analysis and decision
In light of the above outlined sequence of events I am not satisfied that any miscarriage of justice arose in the present case from the circumstances in which the appellant pleaded guilty to the charges. I am not so satisfied for the following reasons.
First, although the appellant may initially have been unsure about whether he was guilty of the offences, this was clearly not the position by the time he entered his pleas. To the contrary, it is clear from the exchanges that occurred between the magistrate and the appellant that the appellant understood the nature of the charges. Indeed, the appellant confirmed his understanding at the time that each charge was read to him and immediately before he entered his guilty plea to the charge. There is simply no basis for concluding that the appellant did not intend to admit his guilt.
Second, the facts of the offences, which were in effect admitted by the appellant during his second appearance before the magistrate, clearly provided a proper basis for the appellant to plead guilty to, and be convicted of, the offences. This is not a case in which the appellant could not in law have been guilty of the offences.
Third, there is no basis for concluding that the guilty pleas were obtained by improper inducement, fraud, pressure or intimidation. The fact that one of the appellant's reasons for entering his guilty pleas might have been a desire on his part to resolve the charges so that he was not caught by the terms of cl 3A of sch 1 to the Bail Act does not provide a basis for finding that he was improperly pressured or induced to plead guilty. There is simply nothing in the material before me to provide a basis for concluding that the appellant was in any way pressured or induced to enter his pleas.
Fourth, the material before me does not disclose any other ground or basis for concluding that to allow the appellant's guilty pleas to stand will amount to a miscarriage of justice.
For the reasons I have stated this ground of appeal has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Ground 2 - appellant induced to engage in conduct the subject of the offences
As is apparent from the above stated facts of the offences, ANM did initiate contact with the appellant under the false name of Jessica Smills. Further, I accept on the basis of statements that the appellant made to the magistrate during his appearances before her Honour and the affidavits that he has filed in support of his appeal that by this initial contact ANM did encourage and induce the appellant to make contact with her. In addition, it is apparent from the terms of the appellant's letters dated 12 February 2017 and 26 May 2017 that they were written following, and at least partially in response to, conversations that the appellant had had with ANM some short time previously. However, and as the magistrate noted during the appellant's appearance before her on 6 March 2018, it is not a defence to a charge of breaching a violence restraining order under s 61(1) of the ROA that the protected person encouraged or induced the person bound by the order to make contact with the protected person. Section 62 of the ROA provides for defences to a charge under s 61(1). None of those defences were available to the appellant.
This ground has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Ground 3 - VRO cancelled after appellant dealt with for the offences
The fact that the VRO was cancelled at some point after the appellant was convicted of the offences is obviously of no relevance. It does not alter the fact that the appellant committed the offences.
This ground of appeal has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Appeal against sentence
Ground 4 - failure to take into account that breaching of VRO was induced and encouraged by the protected person
I have read the magistrate's sentencing remarks.[19] Her Honour did not, in determining the sentence to be imposed on the appellant for the offences, fail to take into account any relevant circumstance. Specifically, her Honour did not fail to take into account that the appellant's breaching of the VRO was induced and encouraged by ANM. To the contrary her Honour made express reference to this fact in the course of her sentencing remarks.[20]
[19] ts 10 ‑ 13, 27 March 2018.
[20] ts 10 and 11, 28 March 2018.
This ground of appeal has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Ground 5 - failure to backdate sentence
It is the case that the magistrate did not backdate the commencement date of the total effective sentence of 3 months imprisonment that she imposed for the offences to take account of the time that the appellant had already spent in custody for the offences. However, her Honour did give the appellant credit for the time that he had spent in custody by reducing 'by a full month' the total effective sentence that she would otherwise have imposed.[21] Her Honour was entitled to take into account the time that the appellant had spent in custody for the offences in this way.[22]
[21] ts 13, 27 March 2018.
[22] Sentencing Act 1995 (WA), s 87(1)(c).
This ground of appeal has no reasonable prospects of success. I would refuse leave to appeal on this ground.
Ground 6 - wrong sentence imposed
Applicable legal principles
By this ground of appeal the appellant contends that the appropriate sentence for the offences given the circumstances of the offending and his antecedents was something other than a term of immediate imprisonment, specifically a fine (or a suspended fine). I note in this context that given that the appellant was at the time of being sentenced by the magistrate already serving the sentence of imprisonment imposed by the District Court, the sentencing options of a term of suspended imprisonment or conditional suspended imprisonment were not open to her Honour,[23] and sentencing options such as an intensive supervision order and a community based order were not as a matter of practical reality open to her Honour.
[23] Sentencing Act s 76(3) and s 81(3).
The principles to be applied by an appellate court in a case where the allegation is, as in this ground, that the wrong type of sentence was imposed are well‑established. Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[24] To put the matter another way, the question for the appellate court is whether it was open to the sentencing court to find that the less serious sentencing option, in this case a fine, was not appropriate.[25]
[24] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].
[25] Mason v The State of Western Australia [2018] WASCA 43 [55] ‑ [56]; Sentencing Act, s 39(3).
In order to determine whether it was open to the sentencing court to find that the less serious sentencing option was not an appropriate disposition for an individual offence or multiple offences, the offence or offences should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[26]
Analysis and decision
[26] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] ‑ [70]; Page v The State of Western Australia [36].
The maximum penalty for each of the offences committed by the appellant was a fine of $6,000 or 2 years imprisonment or both.[27] Accordingly, the individual sentences imposed by the magistrate for each of the offences were well below the maximum term of imprisonment that could have been imposed as was, of course, the total sentence imposed.
[27] ROA, s 61(1).
The six letters written by the appellant in breach of the VRO were, to use the words of the magistrate, not 'particularly troublesome in the sense that they [did] not contain overt references to violence or the like'.[28] Thus the individual offences committed by the appellant were not the most serious examples of their type. The individual offences did fall towards the lower end of the scale of seriousness for offences of their type.
[28] ts 10, 27 March 2018.
Viewed overall, however, the appellant's conduct was quite serious. This is so even when one allows for the fact that the initial contact made by the appellant with ANM as well as some of the appellant's subsequent contact with her, was induced and encouraged by ANM. The appellant wrote six letters to ANM over a period of approximately six months. In other words, his conduct in breaching the VRO cannot be described as a one off isolated incident or a momentary lapse of judgment. To the contrary, it was relatively prolonged and persistent.
Further, the appellant, in order to enable him to avoid detection for making contact with ANM in breach of the VRO, engaged in a course of deception by addressing the letters to 'Jessica Smills' and by sending them to ANM's brother's house for forwarding on to ANM. The fact that the appellant engaged in this deception aggravated the seriousness of his conduct in committing the offences.
A further factor which aggravated the seriousness of the appellant's conduct in committing the offences is that he was, at the time of committing the offences, remanded in custody for an offence of violence which he had committed against ANM and as a result of which ANM had obtained the VRO.
A significant mitigatory factor was the appellant's early pleas of guilty. Her Honour took account of the appellant's guilty pleas 'by providing a full 25% discount on the sentence' pursuant to s 9AA of the Sentencing Act.[29]
[29] ts 13, 27 March 2018.
The appellant's personal circumstances were not favourable. At the time that the appellant was sentenced he had a very lengthy adult criminal record which ran for some 16 pages and which included convictions for a variety of offences including a number of offences of burglary and numerous offences of dishonesty. He had previously been convicted of breaching a suspended imprisonment order.
In addition, on 27 November 2016, that is, less than a month after being served with the VRO, the appellant was convicted of an offence of breaching the VRO by being in the company of ANM. The appellant committed this offence on 26 November 2016. He was fined $200 for the offence. Thus in committing the offences the appellant made a deliberate decision to embark on a course of conduct which he knew to be in breach of the VRO despite having previously been convicted of an offence of contravening the order.
The appellant's criminal record was not an aggravating factor; it did not increase the seriousness of the offences. However, the nature and extent of the appellant's record obviously meant that he was not entitled to any leniency for good character. The appellant's record also revealed that he had a long standing and continuing attitude of disobedience to the law with the result that the sentencing consideration of personal deterrence was clearly of relevance to the exercise by the magistrate of her sentencing discretion. Indeed, personal (specific) deterrence was expressly recognised by the magistrate to be a relevant sentencing consideration in the appellant's case.[30]
[30] ts 12, 27 March 2018.
The sentencing consideration of general deterrence was also relevant to the exercise by the magistrate of her sentencing discretion.[31] Again, this was something that the magistrate expressly recognised. As her Honour stated in the course of her sentencing remarks:[32]
The second reason is general deterrence is important. People need to understand that if someone had come to the court, asked for protection and they breach orders, then the court needs to deal with those matters in a serious manner having regard to the seriousness of the offences.
[31] Dennis v Lanternier [No 2] [2017] WASC 5 [152]; Salkilld v The State of Western Australia [64].
[32] ts 12, 27 March 2018.
As to the standards of sentencing customarily imposed for offences against s 61(1) of the ROA, I have considered a number of cases dealing with appeals against sentences imposed for the offence.[33] It is not necessary for me to set out herein the widely varying facts and circumstances of the cases that I have considered. Rather, it suffices for me to say that in my view the cases reveal that the type of sentence imposed for the offences, namely immediate imprisonment, is not a sentence that is outside the range of sentences previously imposed for offences against s 61(1) of the ROA which fall within a broadly similar range of seriousness to the offences.[34]
[33] Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999); Pillage v Coyne [2000] WASCA 135; Dominik v Volpi [2004] WASCA 18; Forward v Bower [2007] WASC 205; Cullen v Rollings [2009] WASC 80; Sakkers v Thornton [2009] WASC 175; Bastin v Edwards [2009] WASC 346; Lutey v Jacques [2010] WASC 78; Hagart v Viles [No 2] [2010] WASC 313; Baudoeuf v Venning [2010] WASC 322; Isenhood v Green [2011] WASC 70; D'Costa v Roe [2013] WASC 99; Mills v Hawley [2013] WASC 261; Wallam v Grosveld [2015] WASC 145; Conomy v Western Australian Police [2015] WASC 178; Haigh v Oliver [2015] WASC 462; Dennis v Lanternier; Salkild v The State of Western Australia.
[34] See in particular Kenny v Lewis, Dennis v Lanternier and Salkild v The State of Western Australia.
In my opinion, taking into account the maximum penalty for each of the offences, the seriousness of the individual offences, the seriousness of the appellant's conduct viewed overall, the need to impose a sentence that was capable of acting as both a personal deterrent and a general deterrent, and the range of sentences customarily imposed for offences of breaching a violence restraining order contrary to s 61(1) of the ROA, it was open for the magistrate to conclude that a less serious sentencing option to immediate imprisonment, specifically a fine or a suspended fine, was not appropriate. In my view, even making full allowance for the mitigatory value associated with the appellant's early guilty pleas and the fact that the appellant's conduct was to some extent induced and encouraged by ANM, the imposition of immediate terms of imprisonment did not fall outside a sound exercise of the magistrate's sentencing discretion. It follows that I would refuse leave to appeal on this ground.
The appellant does not complain about the length of the individual sentences imposed or the length of the total sentence imposed. Nonetheless, I state for the sake of completeness that in my view the individual terms imposed and the total sentence imposed did not fall outside a sound exercise of the sentencing discretion.
Conclusion
For the reasons I have stated I refuse leave to appeal on each of the grounds of appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK28 AUGUST 2018
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