Dennis v Lanternier [No 2]
[2017] WASC 5
•12 JANUARY 2017
DENNIS -v- LANTERNIER [No 2] [2017] WASC 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 5 | |
| Case No: | SJA:1068/2016 | 13 DECEMBER 2016 | |
| Coram: | JENKINS J | 12/01/17 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time and leave to appeal granted on grounds 2 and 5 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER GEORGE DENNIS LOUIS GERMAINE LANTERNIER FAYE LEANNE CLAYSON TRACEY MOYNA NESBITT |
Catchwords: | Criminal law Appeal against sentence Breaches of violence restraining order Whether aggregate sentence was manifestly excessive Whether magistrate failed to take into account relevant matters including the pleas of guilty and the appellant's personal circumstances Whether the magistrate erred in taking into account an irrelevant consideration Whether there was an error in recording the aggregate sentence |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2) Restraining Orders Act 1997 (WA), s 61(1) Sentencing Act 1995 (WA), s 11, s 9AA(5), s 8(4) |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 Forkin v The State of Western Australia [2013] WASCA 51 H v The State of Western Australia [2006] WASCA 53 LJH v The State of Western Australia [2016] WASCA 155 Main v The State of Western Australia [2010] WASCA 28 Paparone v The Queen [2000] WASCA 127 Pickett v The State of Western Australia [2004] WASCA 291 R v Stewart (1994) 72 A Crim R 17 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LOUIS GERMAINE LANTERNIER
FAYE LEANNE CLAYSON
TRACEY MOYNA NESBITT
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S RICHARDSON
File No : RO 6847 of 2015, RO 6854 of 2015, RO 6855 of 2015, RO 7009 of 2015, RO 7010 of 2015, RO 7011 of 2015, RO 7012 of 2015, RO 7013 of 2015, RO 7014 of 2015, PE 21660 of 2016, PE 21661 of 2016, PE 21662 of 2016, PE 21663 of 2016, RO 403 of 2016, RO 404 of 2016, RO 405 of 2016, RO 406 of 2016, RO 407 of 2016, RO 2247 of 2016, RO 2248 of 2016, RO 2249 of 2016
Catchwords:
Criminal law - Appeal against sentence - Breaches of violence restraining order - Whether aggregate sentence was manifestly excessive - Whether magistrate failed to take into account relevant matters including the pleas of guilty and the appellant's personal circumstances - Whether the magistrate erred in taking into account an irrelevant consideration - Whether there was an error in recording the aggregate sentence
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Restraining Orders Act 1997 (WA), s 61(1)
Sentencing Act 1995 (WA), s 11, s 9AA(5), s 8(4)
Result:
Extension of time and leave to appeal granted on grounds 2 and 5
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondents : Mr J F Bennett
Solicitors:
Appellant : In person
Respondents : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Fernandes v The State of Western Australia [2009] WASCA 227
Forkin v The State of Western Australia [2013] WASCA 51
H v The State of Western Australia [2006] WASCA 53
LJH v The State of Western Australia [2016] WASCA 155
Main v The State of Western Australia [2010] WASCA 28
Paparone v The Queen [2000] WASCA 127
Pickett v The State of Western Australia [2004] WASCA 291
R v Stewart (1994) 72 A Crim R 17
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
1 JENKINS J: Peter George Dennis (the appellant) appeals against the sentences imposed on him in the Magistrates Court at Rockingham on 4 May 2016 for 20 offences of breaching a violence restraining order (VRO).
2 One of the issues in the appeal is whether the aggregate sentence imposed on Mr Dennis was 18 months' imprisonment or 15 months' imprisonment. For reasons which I will give later in this judgment, I am satisfied that the magistrate imposed an aggregate sentence of 18 months' imprisonment for 20 offences. The sentence was backdated to commence on 20 October 2015 and the appellant was made eligible for parole.
Grounds of appeal
3 The appellant is self-represented and his appeal grounds have not been drafted by a lawyer. Essentially, the amended grounds of appeal are:
(1) the total sentence was manifestly excessive;
(2) the magistrate did not properly take into account the appellant's pleas of guilty which were entered at an early opportunity;
(3) the magistrate failed to consider totality when determining the aggregate sentence;
(4) the magistrate overlooked the appellant's personal circumstances including his wife's breaches of the Family Court consent orders and the appellant's mental state at the time of the offences;
(5) the magistrate made an error of fact by taking into account an untrue submission made by the prosecutor that the appellant had threatened his child; and
(6) there was an error in recording the appellant's aggregate sentence as 18 months' imprisonment rather than 15 months' imprisonment.
Extension of time
4 The appeal was commenced nearly three months out of time. It seems that the majority of the delay was due to the appellant's ignorance of the appeal procedure and the effluxion of time whilst he attempted unsuccessfully to obtain legal aid and obtained the transcripts of the numerous proceedings in the magistrates court, whilst a sentenced prisoner.
5 The respondents submit that the appeal ought to be dismissed on its merits and therefore I ought not to grant an extension of time.
6 Even though I have determined that the appeal ought to be dismissed, as I have decided that leave to appeal ought be granted on grounds 2 and 5, I will grant an extension of time within which to appeal.
Leave to appeal
7 The appellant also requires leave to appeal on each ground of appeal. If a ground of appeal has reasonable prospects of success, in that it has a 'rational and logical prospect of succeeding', I ought to grant leave to appeal on that ground: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 486 - 487 [56]. That is so even though it, or the appeal, is not ultimately unsuccessful.
8 I have determined that leave to appeal ought to be granted on grounds 2 and 5.
The charges
9 The appellant was charged with 21 offences, committed at different times, for breaching the VRO contrary to the Restraining Orders Act 1997 (WA) s 61(1). The VRO was imposed to protect the appellant's wife (the victim). The complicated histories of the charges and court proceedings has led to it being difficult to establish which charges were proceeded with and what penalty was imposed in respect of each charge. There is a further complication in that the parties were recently advised by Rockingham Magistrates Court that the court proceedings were not recorded on the afternoon of 13 January 2016, when the WA Police withdrew some charges and the appellant pleaded guilty to others.
10 After perusing the prosecution notices and the magistrate's sentencing remarks, I am satisfied that this appeal relates to the following 20 sentences. I have set them out in the sequence that the results appear on each prosecution notice as it helps to understand the structure of the aggregate, or total effective, sentence.
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11 On 30 March 2016, the magistrate sentenced the appellant for the offence which is commonly known as stalking. As the facts of that offence were included in the facts of the above 20 offences, pursuant to the Sentencing Act 1995 (WA) s 11, no penalty was imposed.
12 On 10 August 2016, the appellant appeared before a different magistrate in respect to RO 407/16, which was a further charge that between 5 October 2015 and 29 October 2015, the appellant breached the VRO. The magistrate told the appellant that the charge appeared to have been overlooked when he was sentenced on 4 May 2016. I am satisfied that this 21st charge was laid in sequence with RO 403 - 406/16 but, for an unexplained reason, the appellant was not sentenced for it when he was sentenced for the other 20 offences. On 10 August 2016, the appellant was sentenced to 3 months' imprisonment for RO 407/16. The sentence was backdated so that it was served concurrently with his other sentences. It is of no consequence in this appeal.
The facts
13 The background to all of the offences is that the appellant and the victim had been married for approximately 14 years but were separated at the time of the commission of the offences. They had a 3-year-old child who was living primarily with the victim but to whom the appellant had regular access. On 17 April 2015, the appellant was personally served with a VRO in which the victim was the protected person. The terms of the order included that the appellant was not to behave in an intimidatory, offensive or emotionally abusive manner towards the victim. Neither was the appellant to behave in a manner towards the victim that was likely to lead to a breach of the peace.
14 Except as set out in pt B of the VRO, the appellant was prohibited from communicating or attempting to communicate with the victim by any means whatsoever.
15 Part B of the VRO sets out the lawful reasons for which the appellant could communicate with the victim whilst the VRO was in place. Pursuant to Family Court orders, which the appellant says were made by consent, the appellant was permitted to contact his child three times a week, on Monday, Wednesday and Friday, for 10 minutes by calling the victim's mobile phone. He was also permitted supervised visits to see his son every second weekend.
16 On Friday 25 September 2015 at 8.00 pm, the victim telephoned the appellant to discuss contact with their child. The victim advised the appellant that he was not allowed to see their child that weekend as she had recently received information from the appellant's sister that the appellant had no place to stay and that he was a danger to his son.
17 I will state the facts of each offence in chronological order as opposed to the sequence in which the offences appear in the above table. As I have been unable to locate the transcript of proceedings where the facts of some offences were read to the court, I will also identify those offences and why the transcript is missing.
RO 7009/15 - date of offence 26 September 2015
18 I have not been able to locate a transcript of the reading of the facts of this offence to the court. The prosecution notice alleges that the appellant breached the VRO by contacting the victim's mobile phone.
19 After perusing all of the available transcripts, the court records, the affidavit of Mr Bennett, the respondents' counsel, sworn 8 January 2017, correspondence from the appellant and hearing the parties, I conclude that on 5 October 2015, the police brought 10 charges against the appellant for breaching the VRO on various dates between 25 September and 3 October 2015. RO 7009/15 was not one of those charges. On the same date, the appellant appeared in the Magistrates Court. The charges were not put to him but a bail application was made. During the course of the bail application, the alleged facts were read in respect of those charges. The facts were not attributed to any particular charge.
20 On 12 October 2015, charges RO 7009 - 7014/15 were laid.
21 On 28 October 2015, the appellant next appeared in court and there was a reference to the new charges being laid.
22 On 13 January 2016, the appellant appeared in court and the appellant's counsel told the magistrate that there was an agreement that the appellant would plead guilty to breaches of the VRO 'with amendments'. The matters were then stood down to later in the day for the pleas to be taken to some charges and for some charges to be discontinued. There is no transcript of what occurred at the later hearing as it was not recorded. However, the prosecution notices record that on 13 January 2016 seven of the initial 10 charges which had been laid were dismissed for want of prosecution and the appellant pleaded guilty to the six charges laid on 12 October 2015. The appellant acknowledged to me that the facts of the charges RO 7009/15, RO 7010/15, RO 7011/15, RO 7013/15 and RO 7014/15 were read after he entered pleas of guilty. He has advised that he cannot be 100% sure that the facts read were those contained in the prosecution statements of material facts. These statements of material facts are attached to Mr Bennett's affidavit.
23 I have ascertained the facts of the charges from those documents but I have taken into account that, contrary to the allegations in the statements, the appellant denies that he and his wife had been separated for three years. His counsel told the magistrate that they separated around Christmas 2014. I have also taken into account that contrary to the statement of material facts for RO 7013/15 the appellant denies that he threatened to harm his son. I will return to this issue when dealing with ground of appeal 5.
24 The facts contained in the statement of material facts are that:
[B]etween the hours of 00:01am to 11:59pm on Saturday 26th September [the appellant] sent 14 text messages to the victim's mobile phone. [The appellant] was discussing their previous relationship and blaming the victim for not allowing him to see his son. [The appellant] further called the victim's mobile phone 6 times but his calls were not answered.
RO 7010/15 - date of offence 27 September 2015
25 The above information relates to this charge also.
26 The facts contained in the statement of material facts are:
On Sunday 27th September between the time of 00:01am and 23:59pm, [the appellant] sent 10 text messages to the victim's mobile phone the content of which was threatening towards the victim. [The appellant] made threats to inform 'Centrelink' and the 'Police' and the victim would have to 'Live with the consequences.' [The appellant] also called the victim's mobile phone 7 times which the victim did not answer.
RO 7011/15 - date of offence 28 September 2015
27 The above information also applies to this offence.
28 The facts contained in the statement of material facts are:
On Monday 28th September 2015 between the times of 0:01am and 11:59pm [the appellant] sent 14 text messages to the victims mobile phone. The content of these text messages are threatening towards the victim telling her to make contact with [the appellant]. 'Call me please it is our anniversary and we been through heaven and hell together and you left me in hell.'
[The appellant] also called the victim's mobile phone 7 times which the victim did not answer.
RO 6847/15 - date of offence 29 September 2015 - facts read 2 March 2016
29 On 29 September 2015, the appellant sent a text message to the victim which said:
I will - I go to jail. I will kill you for doing this to me and [child's name]. Things were looking up and money to get my own place and you do this to me again. Never let me do things my way. Do me for breach. Call cops. Send to me jail because I will kill myself and you if … I can't be [child's name]'s dad and do what you want then. Then you can't have him either.
RO 7012/15 - date of offence 30 September 2015 - facts read 2 March 2016
30 On 30 September 2015, the appellant sent 12 text messages to the victim's mobile phone. The contents of these messages were both threatening and abusive towards the victim and referred to her in a vulgar manner. He then threatened to harm himself in an attempt to make the victim contact him. It was alleged that he wrote:
Why do you want me to hate you and give up on [child's name] and end up.
31 It was further alleged that the appellant telephoned the victim 13 times but she did not answer.
RO 7013/15 - date of offence 1 October 2015
32 The same situation applies to the facts of this offence as applies to RO 7010 - 7011/15. The facts contained in the statement of material facts are:
On Thursday 1st October 2015 between the time of 0:01am and 11:59pm [the appellant] sent 18 text messages to the victim's mobile phone. The content of these text messages are abusive and threatening towards the victim. An example of which 'If I don't do this I won't get better and will end up killing myself or you or [child's name].' [The appellant] also refers to the victim as 'Weak' and 'Disgusting'.
[The appellant] also called the victim's mobile phone 22 times which the victim did not answer.
RO 6854/15 - date of offence 2 October 2015 - facts read 2 March 2016
33 On 2 October 2015 between 6.30 pm and 10.00 pm, the appellant sent a total of 13 text messages and made 23 mobile phone calls to the victim. None of the calls were answered. The appellant threatened to choke the life out of the victim. He called her a bad mother and a cheating wife.
RO 6855/15 - date of offence 3 October 2015 - facts read 2 March 2016
34 The appellant sent a further 22 text messages and made 33 phone calls to the victim. The texts referred to the victim in a vulgar manner. The appellant also made comments about threatening suicide and not wanting to go to gaol. He sent a picture of himself armed with a knife threatening to cut himself.
RO 7014/15 - date of offence 4 October 2015
35 The same situation applies to the facts of this offence as applies to RO 7010 - 7011/15 and 7013/15. The facts contained in the statement of material facts are:
On Sunday 4th October 2015 between the time of 0:01am and 11:59pm [the appellant] sent a text message to the victim's mobile phone. [The appellant] said, 'I am not handing myself in until I talk to you.'
[The appellant] also called the victim's mobile phone 14 times which the victim did not answer.
36 On 4 October 2015, the appellant was spoken to by the police about RO 7009 - 7014/15 and he admitted that he sent the text messages because he was angry as he was not able to see his child.
RO 403 - 406/16 - dates of offences 5 - 29 October 2015 - facts read 2 March 2016
37 Between 5 October and 29 October 2015, the appellant whilst on remand in prison for earlier breaches of the VRO breached the VRO by sending a series of letters to his child which included 'veiled inference (sic)' to his partner such as:
Damn, I miss you and love you and still find it hard to believe you're not my special girl and wife to come home to you.
38 Another letter was sent which said:
Happy anniversary, my baby. Sorry no breakfast in bed or roses for you this year. I never thought I would be in prison a year ago whilst we were together and happy in love and family.
39 Another letter said:
I am sorry. I am sorry I scared you but I'm lost without you, my love. I love you and would not hurt you physically and don't mean to emotionally.
40 Another letter said:
If I get out next Thursday I would love to talk with you and pick up [child's name] up from day care. Keep your afternoon clear so we can talk in person for a couple of hours before we pick him up.
41 Lastly, the appellant sent a letter which said:
I love you. I miss you and [child's name] like you never understand or feel. Please visit me next Thursday without [child's name]. I don't want him to see me in Hakea Prison.
42 The facts were said by the prosecutor to also be the facts of RO407/16.
43 I assume that a charge was laid in respect of each letter.
RO 2247/16 - date of offence 19 November 2015 - facts read 4 May 2016
44 Whilst the appellant was on remand in prison, on 19 November 2015 he sent an envelope from the prison addressed to his child. The letter was reviewed by a prison officer before it was sent. Due to the contents of the letter it was held at the prison and not posted. The three-page letter included content for the victim and in part read:
It all depends on you, my angel. Try calling me on your birthday, please, after 2 pm and see if I'm free please. I'm not allowed to call you. I can't risk going to the police again.
RO 2248/16 - date of offence 15 February 2016 - facts read 4 May 2016
45 The facts read to the court were that whilst the appellant was in prison on remand, he sent a letter to the 'victim'. The three-page letter included material stating how the appellant felt about his relationship with the victim. It included the following:
So show this to [the victim] and ask her to come to see me and talk about [child's name], please.
- From other information in the transcripts it seems that the 'victim' to whom the letter was addressed was the appellant's friend with whom the appellant's wife was having a relationship and the letter asked the recipient to show the letter to the appellant's wife and to ask her to come and see the appellant.
RO 2249/16 - date of offence 17 February 2016 - facts read 4 May 2016
46 Whilst the appellant was on remand in prison, he sent an envelope from the prison addressed to his mother. The letter was reviewed by a prison officer and due to its content it was held at the prison and not posted. The letter contained a request to post an enclosed six-page letter to the victim. The appellant told his mother that he could not send it from the prison and that a guard had told him to send it to someone in his family. The letter read, 'if you think it will help maybe you can send it so the prison and myself doesn't get in trouble'. The six-page letter discussed the relationship between the appellant and the victim, their marriage and their child. In it, the appellant blamed the victim for him being in prison and not being able to see his child.
47 On 23 March 2016, the appellant was interviewed by the police and admitted to writing the letter and attempting to send it to his mother. He said that he had rung his mother a couple of days after sending the letter and had asked her not to send it onto the victim.
PE 21660/16 - date of offence 3 - 14 April 2016 - facts read 4 May 2016
48 The appellant committed PE 21660 - 21663/15 when he was on a pre-sentence order for earlier breaches of the VRO and subject to bail conditions.
49 On 3 April 2016 at 8.21 pm, the appellant sent a text message to the victim's mobile phone. The appellant requested to speak to his child. He then discussed 'family matters beyond the bounds of the [VRO]. The content of this message was in relation to another relative and did not mention the [child]'.
50 When interviewed about the breach, the appellant made partial admissions saying 'I've just been trying to contact my son'.
PE 21661/16 - date of offence 3 - 14 April 2016 - facts read 4 May 2016
51 On Wednesday, 6 April 2016 at 10.45 am and 1.25 am, the appellant sent two text messages to the victim's mobile phone. The appellant requested to speak to his child via text message. He then continued to discuss matters beyond the bounds of the VRO. The contents of these messages were in relation to relationship reconciliation and Family Court matters.
PE 21662/16 - date of offence 3 - 14 April 2016 - facts read 4 May 2016
52 On 12 April 2016 at 9.52 pm, the appellant sent a text message to the victim's mobile phone requesting to speak to his child via text message. He then continued to discuss matters beyond the bounds of the VRO in relation to relationship reconciliation.
PE 21663/16 - date of offence 3 - 14 April 2016 - facts read 4 May 2016
53 On 14 April 2016 at 5.27 pm, the appellant sent a text message to the victim's mobile phone requesting to speak to his son. He then continued to discuss matters beyond the bounds of the VRO. The content of his message was in relation to relationship reconciliation.
The plea in mitigation
54 The magistrate received information about the appellant at various times over the seven-month course of the proceedings as there were bail applications, reports provided and oral submissions made during that time. In a hearing on 25 November 2015, there was a reference to an affidavit from the victim. I have not seen that document.
55 On 25 November 2015, the appellant's lawyer told the magistrate that the appellant and the victim had separated around Christmas 2014 when the appellant learned that his wife had had an affair with his best friend. It was submitted that the separation was not amicable and that the victim had obtained a VRO (the initial VRO) as a consequence.
56 It was acknowledged that the appellant had breached the initial VRO and had pleaded guilty to that breach. He was placed on a conditional release order (CRO). That breach related to text messages sent at Christmas 2014. It was submitted that the initial VRO was withdrawn by the victim when Family Court orders were made. In April 2015, the victim had obtained the VRO the subject of these charges. It was not clear what prompted the grant of the VRO.
57 In relation to the victim's allegations in the phone call to the appellant on 25 September 2015, the appellant's counsel submitted that the appellant had a place to live with his mother and that was where his child stayed with him when he had access.
58 The magistrate was told that the appellant had been diagnosed with depression whilst in prison and was taking medication. Consequently, his mood had improved and he was no longer feeling suicidal.
59 The magistrate was also advised that the appellant is diabetic and that he was not able to maintain his diet whilst he was in custody. Consequently, the doctor had spoken to him about the possibility of starting on an insulin regime.
60 At a subsequent hearing on 2 March 2016, the appellant's counsel submitted that the initial offences were committed because the appellant felt that the victim was not adhering to the Family Court orders regarding access to the child. No doubt this was a reference to the contents of the phone call on 25 September 2015.
61 Counsel for the appellant admitted that there had been mutual drug use during the relationship. It was acknowledged that the appellant had outstanding treatment issues in that regard. It was submitted that the appellant was open to receiving treatment but that it was difficult for him to get access to rehabilitation services in prison.
62 A psychological report was before the court which mentioned that the appellant had dependent personality traits. The magistrate was told by the appellant's counsel that the appellant was having trouble accepting the end of the relationship with the victim.
63 It was submitted that the appellant had a fairly positive education and employment history. He had been involved in good work.
64 It was submitted that the court should attempt to assist the appellant with a community-based order which included strict supervision. It was pointed out that at that time he had been in custody for about 5 months.
65 In response, the prosecutor did not contradict the background information provided by the appellant's counsel but he said that he had been advised that further letters had been sent in which the appellant had said that he was 'not going to be responsible for his actions upon him getting out'.
66 The appellant addressed the court personally and said that he was aware of the two letters. He said that the two letters were addressed to the person who was his best friend, who was then the victim's partner. He said that the letters were not threatening and were not addressed to the victim. He told the magistrate that he was not going to hurt the victim and that he still loved her. He said that he understood that they were separated and that they would never be together again. He said that he had learnt his lesson and was not willing to go back to prison. The magistrate then adjourned the proceedings to 9 March 2016. The appellant told the magistrate that he would be dead by then.
67 On 9 March 2016, the court was advised that a further charge or charges would be laid and the matter was adjourned to 30 March 2016.
68 On 30 March 2016, the charge of stalking the victim between 25 September and 4 October 2015 was also before the court. The appellant pleaded guilty to the charge. The facts were read to the court which were that following the victim's call to the appellant of 25 September 2015:
[B]etween 25 September and 4 October the accused made a series of phone calls and sent a number of text messages to the victim's phone. In excess of 100 text messages and in excess of 80 calls. This has obviously breached the current [VRO] as well. Some of these messages were offensive and obscene. Then there's also matters of suggestion that:
'I wish I did choke you to death. You deserve that. I will go to jail. I will kill you for doing this to me and [child's name]. Keep looking over your shoulder.'
70 After hearing the appellant's counsel, the magistrate commented that a pre-sentence order (PSO) should be given serious consideration.
71 The prosecutor submitted that there was a concern that the appellant was not over the relationship with the victim and that there were 'ideations of murder/suicide; burning a house down with him, the wife and the child in there'.
72 I have not been able to find where in the facts read to the court it was said the appellant threatened to burn a house down. Although, neither the appellant or his counsel denied that he had made the threat. The point the appellant made to me on appeal was that he had not threatened to do it whilst the home was occupied and that he had made the threat at a much earlier time.
73 The prosecutor supported a PSO but also said that a term of imprisonment was still appropriate.
74 The magistrate then told the appellant that she would deal with the stalking charge under the Sentencing Act s 11 and impose no penalty in relation to it. The magistrate addressed the appellant saying:
They are very serious breaches. They have involved, amongst many of them, numerous calls, numerous texts, the context of many of the breaches involved threats, serious threats of harm, not only to the victim who is your ex-partner but also involving a child who is the child of the two of you, but that was referred to. I'm not saying that you would done it but burning down the house where parties live and other very serious threats indeed, and certainly threats which would have caused the victim to suffer greatly, no doubt living day to day under huge fear of what consequences of your behaviour might be (ts 10, 30 March 2016).
75 The magistrate said in respect of the timing of the appellant's pleas of guilty:
[Y]ou did plead at a relatively early point, and I accept that and take that into account in dealing with your matters today (ts 11, 30 March 2016).
76 Her Honour then said that after having taken into account the various reports of experts and other reports which she had received, and the ongoing risk to the victim, she had come to the view that, given the serious nature of the charges, a term of imprisonment was appropriate. Her Honour said:
And although not coming to a concluded view as regards that, it seems to me, given the 14 charges, and they carry with them at a maximum a number of years of imprisonment, given the seriousness of these offences, but accepting that one must take overall criminality into account in coming to an overall amount of imprisonment, it seems to me that an indicated term of 15 months is appropriate at this stage (ts 11, 30 March 2016).
77 Her Honour then determined that she would release the appellant on a PSO for a period of 15 months. In addition to other conditions, the magistrate told the appellant that he was not to contact or attempt to contact the victim by any means whatsoever.
78 The appellant appeared before the same magistrate on 4 May 2016 where it was alleged that he had breached the PSO by committing a further seven offences, being charges RO 2247 - 2249/16 committed whilst he was in custody prior to release on the PSO and PE 21660 - 21663/16 committed whilst on the PSO. Those charges were put to the appellant and he pleaded guilty to them.
79 The appellant told the magistrate that he did not 'actually send the letter' the subject of RO 2247/16. In relation to the text message, the subject of PE 21660/16, the appellant said that he told the victim that his aunty was dying of cancer and wanted the victim to cut her hair. In relation to other text messages sent in April 2016, the appellant said that he had asked the victim if she had a lawyer so that he could ring and talk to her lawyer instead of trying to contact her. He noted that the victim had not replied. He also acknowledged that he had asked the victim if he could see their child. He had also told the victim that he was being drug tested and doing everything asked of him. He said that he also told the victim that they needed to get along as parents and to try and conciliate their relationship as parents for their child's benefit.
80 The appellant's counsel made very short submissions from the starting point that the magistrate had indicated that a 15-month term of imprisonment was appropriate prior to placing the appellant on the PSO on 30 March 2016. She submitted that the new charges should not affect the total term given that the content of the letters and text messages were not as serious as the previous breaches. The appellant's counsel also submitted that the appellant had spent 197 days on remand so that his sentence could be backdated to 20 October 2015.
81 The appellant spoke again directly to the magistrate. He said that contrary to what the victim had said, she had told his parents that she did not fear him. He said that over the 14 years of their relationship he had never been a violent person and that 'a lot of this has just been about my [child]'.
82 The prosecutor submitted that an immediate term of imprisonment was the only suitable sentence. She noted that the appellant had been afforded the opportunity of a PSO and that whilst on the PSO he had breached its conditions by committing a further four offences. She said that the appellant had a complete disregard for the conditions of the PSO.
83 The prosecutor noted that even on that date, the appellant had given more excuses as to why he had breached the VRO and that he did not 'seem to comprehend the seriousness of having such a total disregard to (sic) breaches'. The prosecutor submitted that the new breaches should result in a longer sentence. In support of that submission, the prosecutor referred to the victim impact statement (VIS).
The victim impact statement
84 The VIS dated 3 February 2016 said that the victim had suffered insomnia, anxiety, loss of appetite, a constant uneasy feeling and a feeling of being unsafe. There was also reference to a 'huge financial burden' of having to move house because of the 'constant harassment and stalking'.
85 Unfortunately, there were allegations contained in the VIS which do not appear to have formed part of the prosecution case against the appellant. There were allegations that the appellant's family had been 'slandering' her on social media, allegations that the appellant had contacts that were watching her and reporting back to him and allegations that he had contacted her friends and family to find out her movements and whereabouts.
Magistrate's reasons
86 The magistrate noted that the appellant had been convicted of 20 offences of breaching the VRO and that the offences related to both 2015 and 2016. She said that he had breached the VRO by being in contact with the victim and on many occasions his contacts were 'threatening, containing threats to kill, containing threats to injure yourself, containing threats as regards not only your ex-partner but also your son'.
87 At that point the appellant interrupted to say 'it was never to my son'.
88 Her Honour noted that the appellant had been warned, on various occasions, as regards ongoing communication with the victim and that it was a serious criminal offence to do so. She noted that despite that, the appellant had continued to contact the victim.
89 She noted that a number of offences had been committed whilst the appellant was on the PSO. Her Honour said that although the new offences did not contain the same aggression and threats which were contained in the previous messages, 'they were still made in the light of [the appellant] not being allowed to have contact'.
90 Her Honour said:
[Y]ou pleaded at an early point and I do note that.
91 Her Honour said that there were concerns with regards to the appellant's mental health and that he also had a history of drug use. She noted that he needed a great deal of help and support to make changes to his lifestyle and to decrease his offending.
92 In respect of the seven new charges, her Honour noted that three of them related to 2015 and that they would not increase what she considered to be an appropriate sentence of 15 months' imprisonment, prior to the commission of the new offences.
93 The magistrate said that the further four offences were extremely serious and made more so by the fact that the appellant was on the PSO and bail when he committed them.
94 The magistrate noted that she had received the VIS which showed that the victim had 'suffered greatly' as a result of the appellant's offending. She said that his offending had caused the victim 'great concern, great fear, great anxiety, dislocation in terms of concern as to various threats that [the appellant] were making'.
95 The magistrate noted that the VIS said that the appellant had people watching the victim, that the appellant was able to keep track of what she was doing, who the victim was ringing, and generally said things to her which would have caused anybody to live in great fear, as the victim had done.
96 The magistrate then said that she took into account the following matters:
(1) the duration of the offences;
(2) the serious nature of the offences;
(3) matters personal to the appellant;
(4) the need for specific deterrence; and
(5) the need for a generally deterrent sentence.
97 Her Honour said that for the 13 matters for which the appellant was placed on the PSO, a total term of 15 months' imprisonment was appropriate.
98 The magistrate mentioned also that she took into account 'the very great deal of information that has become available' over the duration of the prosecutions. Although she also said that she took into account matters which were relevant to the appellant, she did not specify any further matters.
99 In relation to the calculation of the sentence of 15 months' imprisonment, her Honour said:
That is made up by a term of three months for one of the matters, six months for a further two matters, those six months being cumulative and then six months as regards the rest of those terms being concurrent (ts 11, 4 May 2016).
100 Her Honour did not identify which sentence was imposed for each charge. That information can only be ascertained by looking at the prosecution notices. This is unsatisfactory. When a magistrate imposes a sentence of imprisonment for a particular offence, the offence and the sentence should be stated to the parties. Nevertheless, by comparing the endorsement on the prosecution notices to what the magistrate said, I conclude that she imposed 3 months' imprisonment on RO 6847/15 and 6 months' imprisonment on each of RO 7009/15 and RO 7013/15, which sentences she ordered to be served cumulatively on each other and on the 3 months' imprisonment on RO 6847/15. This resulted in an aggregate sentence of 15 months.
101 The magistrate then imposed 6 months' imprisonment for each of the other offences which had been before the court when she imposed the PSO on 30 March 2016, other than RO 407/16. Those offences were on prosecution numbers RO 6854 - 6855/15, RO 7010 - 7012/15, RO 7014/15, and RO 2247 - 2249/16. She ordered that those 6-month terms of imprisonment be served concurrently with each other and the other sentences. Thus, those sentences did not increase the 15-month term.
102 Her Honour then said that the three new charges which 'relate back to next year (sic) will be subject to the six months, but that is concurrent not adding to [the appellant's] term at all'. By a process of elimination her Honour must have been referring to RO 2247 - 2249/16, even though the last two of those offences were committed in 2016.
103 Her Honour then said that for the four new charges relating to offending after the appellant was placed on the PSO, she was of the view there should be a cumulative term. She said that whilst she acknowledged that those communications did not contain threats, they were still serious breaches of the VRO. She said that they were committed when the appellant was well aware that he was to have no contact with the victim. Her Honour said that in her view those charges should be subject to a further 3 months' imprisonment. She said that one of those sentences would be a cumulative term and the other three concurrent terms. She said that this took the appellant's total sentence to one of 18 months' imprisonment.
104 Again, the magistrate did not identify which offence would be the subject of a cumulative penalty. However, the prosecution notices state that the magistrate imposed a 3-month cumulative sentence for PE 21660/16 and 3-month concurrent sentences for PE 21661 - 21663/16.
105 Her Honour backdated the sentence to commence on 20 October 2015, to take into account the period that the appellant had spent in custody on remand. Her Honour made the appellant eligible for parole.
Appellant's prior criminal history
106 Very little was said during the course of the proceedings in the Magistrates Court about the appellant's prior criminal record. However, it is relevant to note that the appellant has an adult criminal record containing 21 offences committed from when he was 18. He was 35 years old at the time he committed these offences. The record initially comprises traffic offences including an exceed 0.08 BAC offence, a driving under the influence offence and an offence of driving without a motor driver's licence. He also has and an offence of breach of bail. There is then a substantial break in the appellant's offending until 2014 when he was convicted of further offences of driving without a motor driver's licence and exceeding 0.08 BAC. He was convicted of a breach of the initial VRO which was committed on 25 December 2014. He was placed on a CRO for three months. In July 2015 he was convicted of giving false personal details to the police and stealing a motor vehicle. In August 2015 he was convicted of six offences, including driving contrary to an extraordinary licence condition, criminal damage, and driving with prescribed illicit drugs. He has two subsequent convictions for driving without authority.
107 I note that while there are no convictions for violence on the appellant's prior criminal record, he has numerous convictions for failing to comply with court orders and driving licensing requirements. His record also shows that he has had a past problem with alcohol and drug use.
108 For convenience, I will consider the grounds of appeal in a different order than they appear in the appeal notice.
Ground of appeal 6 - the length of the aggregate term of imprisonment
109 I am satisfied that the magistrate imposed, as she said she did, an aggregate sentence of 18 months' imprisonment. The sentence included three terms of imprisonment, being 6 months' imprisonment on RO 7009/15, 6 months' imprisonment on RO 7013/15 and 3 months' imprisonment on PE 21660/16. The sentences were ordered to be served cumulatively on each other and cumulatively on the 3-month sentence on RO 6847/15.
110 The appellant's misunderstanding that the length of the aggregate sentence was 15 months is understandable in light of the magistrate's failure to identify the sentences for each individual offence and because when she referred to 'six months for a further two matters, those six months being cumulative' she did not say clearly that they were cumulative on the first term of 3 months she imposed, as well as on each other. However, when her remarks are looked at as a whole, it is clear to me that is what she meant.
Ground of appeal 2 - failure to take into account the appellant's pleas of guilty
111 The appellant complains that the magistrate made no mention of giving a 25% discount on his sentences, pursuant to the Sentencing Act,s 9AA. He submits that he pleaded guilty to the charges at the earliest possible opportunity and his pleas of guilty warranted a 25% discount, which he says was not granted. The respondents submit that it is obvious that the magistrate took the guilty pleas into account because when she sentenced the appellant she noted that he had 'generally pleaded guilty at an early point'.
112 The Sentencing Act, s 8(4) states:
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
113 The Sentencing Act s 9AA relevantly provides:
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
114 In H v The State of Western Australia [2006] WASCA 53, Steytler P said that:
Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA) [10].
115 The case of H was decided before s 9AA was inserted into the Sentencing Act. Steytler P's dictum was approved and applied by the Court of Appeal in Main v The State of Western Australia [2010] WASCA 28 [21], which was also decided prior to the enactment of s 9AA.
116 In Forkin v The State of Western Australia [2013] WASCA 51, the Court of Appeal accepted the parties agreement on the following relevant matters pertaining to the proper construction of the Sentencing Act, s 9AA:
(1) where there is to be a reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons;
(2) any discount for a plea of guilty must be to the head sentence (that is, before the head sentence is discounted for any other mitigating factors) [21].
117 The proper construction of s 9AA was also considered in LJH v The State of Western Australia [2016] WASCA 155. Martin CJ said:
Section 9AA requires a court reducing the head sentence for an offence by reason of a plea of guilty to state that fact and the extent of the reduction in open court. Obviously there are different ways in which the extent of the reduction might be expressed. Because the section expresses the maximum discount which might be provided under the section in terms of a percentage of the head sentence that would otherwise have been imposed, it is the common (if not universal) practice of judges to comply with the requirement to state the extent of the reduction by expressing any reduction awarded in terms of a percentage.
The cases to which I have referred establish that when the discount provided is expressed as a percentage of the head sentence that would otherwise have been imposed, the discount must be applied before any other discount is allowed as a result of other mitigating factors. So, in a case in which the discount is applied by deducting a percentage of the head sentence that would otherwise have been imposed before any other mitigating factor is taken into account, a judge must undertake a mathematical process by applying the chosen percentage to the sentence that would have been imposed but for the plea to determine the sentence which must then be adjusted by reference to any other mitigating factors. So, at least to this extent, the process required by s 9AA is inconsistent with the process of intuitive or instinctive synthesis endorsed by the High Court.
...
As I have noted, s 9AA requires the court to state the extent of the reduction given pursuant to its terms. If the extent of the deduction is expressed in terms of a percentage, the mathematical process to which I have referred can only be followed if a single percentage is used, and if that percentage is applied to the head sentence which would otherwise have been imposed. The process cannot be meaningfully applied if a range of discounts is expressed because there would, of necessity, be a range of reductions arising from the application of that range of percentages. So, in the present case, the judge's reference to a discount in 'the order of 14/15%' reveals error [62 - 65].
118 The Chief Justice found that the sentencing judge had erred in stating the amount of the reduction for the pleas of guilty as being a range of percentages rather than a specific percentage reduction. He also found that the sentencing judge had erred in respect of another two aspects of the determination of the discount for the pleas of guilty. The Chief Justice said that it was possible that one or more of the errors, viewed in isolation, may not of itself have been sufficiently material to amount to a miscarriage of justice. However, when the various aspects were viewed in combination, he concluded that the process required by s 9AA had miscarried in significant respects. Consequently, his Honour said that the appellant ought to be resentenced, unless the Court of Appeal was of the opinion that no different sentences should have been imposed.
119 Mazza JA and Beech J agreed with this aspect of the Chief Justice's reasons [118]. Their Honours said that the errors which they had identified were material because they affect or were capable of affecting the sentence that was actually imposed: Fernandes v The State of Western Australia [2009] WASCA 227 [10]. Their Honours were also of the view that whether a different sentence should have been imposed was the issue for the Court of Appeal.
120 The relevant facts for this ground can be summarised as follows:
(a) three charges (RO 6847/15, RO 6854 - 6855/15) were laid on 5 October 2015 and the appellant appeared in court on the same date;
(b) six charges (RO 7009 - 7014/15) were laid on 12 October 2015;
(c) on 10 November 2015, the appellant pleaded not guilty to all charges other than a charge which appears to have been later discontinued;
(d) on 18 November 2015, the charges were listed for hearing in April 2016;
(e) on 13 January 2016, the appellant pleaded guilty to RO 6847/15, RO 6854 - 6855/15 and RO 7009 - 7014/15 and he was remanded in custody to sentencing at a later date;(f) on 21 January 2016, a further four charges were laid (RO 403 - 406/16);
(g) on 24 February 2016, the appellant pleaded guilty to RO403 - 406/16 at his initial appearance;
(h) on 30 March 2016 the magistrate said in respect of the charges then before the court:
[Y]ou did plead at a relatively early point, and I accept that and take that into account in dealing with your matters today (ts 11).
(i) on 30 March 2016, the appellant was charged with a further three charges (RO 2247 - 2249/16);
(j) on 4 May 2016, the appellant pleaded guilty to RO 2247 - 2249/16 at what appears to have been his initial appearance;
(k) on 15 April 2016, the appellant was charged with the final four charges (PE 21660 - 21663/16);
(l) on 4 May 2016, at his initial appearance on the final four charges, the appellant pleaded guilty to them; and
(m) on 4 May 2016, when sentencing the appellant, the magistrate said that the appellant 'had generally pleaded at an early point' and said 'I do note that'.
121 The result is that the appellant's pleas of guilty to 9 charges being RO 6847/15, 6854 - 6855/15 and RO 7009 - 7014/15 were not entered at the first reasonable opportunity. He should not have been given the maximum discount for those pleas of guilty. Whereas, he had entered pleas of guilty at the first opportunity to the other charges and should, unless there were valid reasons not to, have been given a 25% reduction in his head sentences for those offences.
122 The magistrate erred in failing to comply with the Sentencing Act s 9AA(5), by failing to state the extent of the reduction given for the pleas of guilty. I am not able to conclude that her honour gave the appropriate reduction because the comments she made implied that the pleas were entered at the same time for each offence and that the same discount for an early plea was deserved and given for each offence. As my analysis has shown these assumptions were not correct.
123 Although, it is clear from the magistrate's comments that she took the pleas of guilty into account in some way, it does not appear that she correctly applied s 9AA to each head sentence. It is not clear that she made an assessment of the proper discount to the head sentences for those offences where the appellant entered his plea at the earliest opportunity and those offences where he did not. This case had a prolonged and complicated history and in order to comply with s 9AA it was necessary for the magistrate to do and say more than she did about the discounts she gave for the appellant's pleas of guilty. It can be inferred that the sentencing Magistrate was focused on the bottom line, being the total sentence, without proper regard to the individual sentences, and the appropriate discount for the pleas of guilty, for each offence: H v The State of Western Australia [65]
124 This ground of appeal has been made out. I will consider whether it should result in the appellant's sentences being overturned at the end of these reasons.
Ground of appeal 3 - totality
125 The first limb of the totality principle requires that the aggregate of two or more fixed terms of imprisonment, having regard to whether the fixed terms are to be served concurrently or cumulatively, imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally (including, for example, his prospects for rehabilitation), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
126 The second limb of the totality principle is that the court should not impose a crushing total effective sentence. The appellant does not allege that the aggregate sentence was crushing. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].
127 The appellant complains that the magistrate failed to consider totality. It is clear from the magistrate's comments that she considered the first limb of the totality principle. The second limb of the totality principle has no effect in this case. I will further consider the proper application of the totality principle when I determine ground of appeal 1.
Ground of appeal 4 - Failure to take into account relevant matters
128 A failure to mention a discretionary matter in sentencing remarks does not give rise to an inference that the magistrate has failed to take it into account. It is to be assumed that the magistrate has taken all relevant matters into account: Pickett v The State of Western Australia [2004] WASCA 291 [10]. Such a failure will not result in an appeal being allowed unless the matter was so central to the exercise of the sentencing discretion that the failure to mention it amounts to a failure to properly exercise the sentencing discretion.
129 Ground of appeal 4 alleges that the magistrate failed to take into account that the offences occurred because the victim had failed to comply with the Family Court orders when denying the appellant access to his child.
130 The magistrate did not specifically mention this issue when she sentenced the appellant, but she did not need to do so. Whether the victim was correct or not to refuse the appellant access to his child on the weekend following 25 September 2015, could not be determined by the magistrate as the victim was not a party to the criminal proceedings. Further, whether she was or was not correct to do so was of marginal relevance to the offences which occurred in the days following the phone call and of no relevance to the majority of the charges which were not connected to the phone call.
131 I say that the correctness of the victim's refusal was of marginal relevance, even to the offences committed soon after the phone call because the applicant was bound to comply with VRO, in any event. The appellant was to be judged for his behaviour. It was not the role of the magistrate to weigh the seriousness of the appellant's breach against the conduct of the victim in circumstances were the victim's conduct, whether it be right or wrong, did not threatened the life or safety of the appellant or another.
132 The appellant also complains that the magistrate failed to take into account his mental state at the time of the commission of the offences.
133 In Paparone v The Queen [2000] WASCA 127 Murray J said:
The presence in the offender of such conditions [of illness or disability] …will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.
Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then, … it will be necessary to demonstrate a causal relationship between the offending and the condition, ... In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.
Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in R v Dalgety [2000] WASCA 10, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerations be eliminated entirely [50] - [52].
134 The magistrate specifically mentioned the appellant's mental health. It is clear that she considered that it was a matter which increased his risk of offending and meant that he represented a continuing danger to the victim. The appellant's unstable mental state at the time of the assessments completed by the psychiatrist and the psychologist (see the summary of their reports under ground of appeal 1) was obviously perceived by them as a factor which increased the appellant's danger to the victim. The magistrate appears to have rightly agreed with this assessment which meant that personally deterrent sentences which would protect the victim needed to be imposed. His mental health issues were not such that he was an unsuitable vehicle for personal and general deterrence.
135 The appellant's written submissions also complain that the magistrate failed to take into account the effect of the appellant's imprisonment on his child.
136 The general principle is that a court should not have regard to impact on family, except in extreme cases. In R v Stewart (1994) 72 A Crim R 17 Franklyn J said:
Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however, it depends upon the gravity of the offence and the circumstances of the case (21).
137 This was not a case where the appellant's child was deprived of parental care by the appellant's incarceration. It was not an exceptional case where hardship caused to the appellant's child should have been taken into account.
Ground of appeal 5 - taking into account an untrue allegation
138 The appellant submits that at no time did he threaten the safety of his child and so the magistrate was wrong to take into account in sentencing that he had done so.
139 There is only one statement of material facts which asserts that the appellant threatened his child. That is for RO 7013/15. As a result of the proceedings on 13 January 2016 not being recorded, I do not know whether that allegation was read to the court or, if it was, whether the appellant or his lawyer took issue with it. I know that when the magistrate referred to the allegation in her reasons for sentence, the appellant immediately told the magistrate that he had never threatened his child. The result is that it is not possible for me to determine the facts relevant to this ground of appeal and it is not possible for me to determine whether the magistrate took into account an erroneous matter or not.
140 As the appellant is not to blame for the failure to record the proceedings on 13 January 2016, this impasse should not be held against him. As I have found that ground of appeal 2 has been made out, that will not be the case. When I determine whether the magistrate's error in ground 2 resulted in a substantial miscarriage of justice, I will do so on the basis that the allegation that he threatened to harm his son was not put before the court.
141 I also note that the magistrate referred to an allegation that the appellant had threatened to burn down a house with the victim and his child in it. The respondents acknowledge that this was not an allegation made by them in relation to these offences. Its source was apparently one of the reports before the court which reported on a threat that the appellant admitted making some years earlier when he had a nervous breakdown. When determining the appeal I will not take it into account.
Ground of appeal 1 - the aggregate sentence was manifestly excessive
142 In the appellant's words, this ground of appeal complains that his total sentence was 'too long'.
143 A ground of appeal against sentence which alleges that the sentence imposed was, in effect, manifestly excessive alleges that the magistrate made an implied error. The court cannot interfere merely because it would have imposed individual sentences or an aggregate sentence different to the individual sentences of aggregate sentence imposed by the magistrate.
144 This is because the law recognises that magistrates, when sentencing offenders, must be accorded a wide measure of latitude in which to exercise their sentencing discretion.
145 In order to succeed in relation to a ground alleging that a sentence was manifestly excessive, the appellant must show that the sentence imposed 'fell outside the range of a sound exercise of sentencing discretion'. That is the end result is so unreasonable or unjust that the appellate court must conclude that it is a substantial error.
146 Where it is complained that the aggregate sentence was too long, the totality principle must also be taken into account.
147 The appellant's complaint is that the aggregate sentence infringed the first limb of the totality principle because it was 'too long'.
148 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for an offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
149 The maximum penalty for an offence against the Restraining Orders Act s 61(1) is a fine of $6,000 or a term of imprisonment for 2 years or both. Thus, the aggregate sentence of 18 months' imprisonment imposed for 20 offences is only 75% of the maximum term of imprisonment which could have been imposed for one offence. I agree with the respondent that the sentence, on this basis alone, is not manifestly excessive.
150 There is no tariff or standard penalty for an offence against s 61(1) as the facts of an offence under s 61(1) can range from a minor, technical breach to a very serious breach involving personal violence. Nevertheless, there has been a sufficient number of cases dealt with on appeal to establish the following principles:
(1) offences at the lower end of the range of seriousness of offences against s 61(1) are usually dealt with by the imposition of a penalty other than a sentence of imprisonment to be served immediately;
(2) serious offences against s 61(1) will incur a term of imprisonment to be served or, if the offender's circumstances are favourable, suspended;
(3) offences which include a threat of violence, which the offender is apparently in a position to carryout, actual violence or the invasion of the protected persons home are regarded as offences at the higher end of the range of seriousness of offences against s 61(1);
(4) an immediate sentence of 7 months' imprisonment imposed for a serious breach of s 61(1) has been upheld on appeal.
I have attached to these reasons a copy of a schedule, prepared by the respondents, of sentences for offences under s 61(1) which have been considered on appeal. None of those cases are directly comparable with this case. They did not involve the same number of offences committed over a period of nearly eight months, many of which were committed when the offender was in custody for earlier breaches of s 61(1) and/or on a PSO and bail for earlier breaches, as this case did. On this basis, this case is more serious than any other the cases referred to in the schedule.
151 On the other hand, some of the cases in the schedule involved the offender assaulting the victim, which is a more serious circumstance than occurred in any of the appellant's offences.
152 The long title of the Restraining Orders Act reflects Parliament's intention for the Act to provide for orders to 'restrain people from committing acts of family or domestic or personal violence by imposing restraints on their behaviour and activity'. In order for the Act to be effective, offenders must appreciate that if they breach a VRO they will receive a significant penalty. The community and the courts have a intolerance and abhorrence of violence and threatened violence in domestic and former domestic relationships. The penalties imposed for breaches of VROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims.
153 The appellant's offences involving threats to kill the victim or himself were very serious offences against s 61(1). At the other end of the scale, the offences in which the appellant spoke to the victim about 'family matters beyond the bounds of the [VRO]' were much less serious breaches of the section. Nevertheless, they were aggravated by the fact that they were committed when the appellant was on a PSO and bail for earlier breaches of the VRO. His behaviour was a flagrant disregard for the authority of the court and the autonomy of the victim.
154 The appellant's main matters in mitigation were his early pleas of guilty, his good work history, his community involvement and his cooperation with the police.
155 Whilst the appellant's prior criminal record did not involve offences of violence, he did not receive credit for being of good character. This was particularly the case because of his history of being unwilling to comply with court orders and lawful requirements, as indicated by his numerous breaches of such orders.
156 There was some mitigation in the early offences by virtue of the victims' apparently unilateral decision to deny the appellant access to his child. However, even if that decision was contrary to the Family Court orders and unwarranted (matter which I am unable to determine, but which I will assume) it did not justify the appellant's offences. The law and the community expects separated parents to resolve their disagreements over arrangements for their children in a lawful, respectful and peaceful manner.
157 The appellant's history of voluntary drug use was not mitigatory.
158 In respect to the appellant's mental health, the magistrate had the benefit of a psychiatric report from Dr Febbo dated 1 February 2016. The appellant told Dr Febbo that three and a half years earlier he had been admitted to a mental health unit for around three weeks due to work and parenthood stress. He had been diagnosed with depression and prescribed medication. He told Dr Febbo that he had 'weaned' himself off the medication.
159 The appellant told Dr Febbo that on the night he and the victim separated he had 'tried to strangle' the victim and had attempted suicide.
160 Dr Febbo said that the appellant described 'a marked deterioration in his mental state that followed the separation from his wife and her developing a new relationship with his best friend'. He described a number of depressive and anxiety symptoms in keeping with a major depressive episode with associated anxiety. In addition, there was a long history of heavy drinking in keeping with alcohol abuse/dependence following the separation, and use of methamphetamine which escalated at the time of the offences. Dr Febbo said that the appellant's substance abuse no doubt amplified the impairment in [the appellant's] mental state'.
161 Dr Febbo reported that the appellant had recommenced taking antidepressant medication. As a consequence, he felt much better, his sleep had improved, he had put on weight and he was seeing a counsellor.
162 Dr Febbo did not identify the presence of a significant personality disorder. In Dr Febbo's view, the appellant required continuing psychiatric input to monitor his mental state and the continuation of his antidepressant medication. Dr Febbo was of the opinion that the input of a clinical psychologist would be of benefit as a number of the appellant's behaviours were maladaptive in nature and required careful assessment.
163 Dr Febbo said that there were risk factors in relation to reoffending and these included limited insight, a significant psychiatric disorder and a history of substance abuse/dependence. Dr Febbo said that it appeared that the appellant's relationship with his wife remained problematical and that the appellant did not appear to have the coping strategies to manage another period when he was denied access to his child. Thus, Dr Febbo concluded that the appellant's risk of reoffending remained at least at a moderate level.
164 The magistrate also had a psychological report from Ms Zuin dated 12 February 2016. The report contains a very detailed history about the appellant's background which was obtained from the appellant and his father. The appellant told Ms Zuin about his good work history as a qualified moulder/coremaker. He told her that he had left work in April 2015 because he was depressed and started selling drugs instead.
165 Ms Zuin reported:
[The appellant] stated he has been depressed since his marriage first ended 4 years ago after he had a 'breakdown' and wanted to burn the family home down with him, his wife and baby son in it.
166 Ms Zuin then described a history of reconciliation and that the appellant's depression had flared again after the victim ended the marriage permanently in December 2014.
167 The appellant told Ms Zuin of 'several suicide attempts' including that in December 2014 after he had grabbed the victim by the throat.
168 Ms Zuin noted that the appellant admitted the breaches of the VRO, 'albeit with a marked degree of justification, minimisation and distortion'. She thought that he had 'limited insight regarding issues with emotional arousal and regulation'.
169 Ms Zuin noted that although the appellant claimed to have no desire to reconcile with his wife, she doubted that this was so. This was on the basis of comments the appellant had made to her about his feelings towards the victim. She concluded that there was a significant likelihood that he would continue to make contact with the victim, whether or not a VRO was in place. Ms Zuin said:
On this basis risk of reoffending remains a significant cause for concern. Involvement in an intensive domestic violence programme is highly recommended as [the appellant] impresses as having limited insight about his behaviour.
170 Thus, the appellant's depression and anxiety, together with his lack of insight and signs of a continuing attachment to the victim justified the magistrate in concluding that a significant penalty was required for the protection of the victim and the community.
171 In the appellant's favour was his cooperation with the police. He had on some occasions taken the initiative to speak to the police and had made admissions to them. He had also pleaded guilty to all of the charges. Not all of his pleas were entered at the first reasonable opportunity (for example RO 7009 - 14/15) but others were (PE 21660 - 21663/16).
172 In support of his appeal, the appellant has provided some further information about the causes of his offending and statements from his parents. In a letter dated 13 March 2016, the appellant describes his character as a kind hearted person who would never hurt the victim or his child. He also refers to his community participation and voluntary work in sporting and community clubs. He notes that he has won numerous awards in his adult life in both the sporting and industry environments. He says that he is 'a good person and member of the community and a hardworking man'. He acknowledges that he made mistakes after finding out that the victim to whom he had been married for 14 years had an affair with his best friend. He says that he regrets those mistakes and that he now wishes to focus on his relationship with his child.
173 His mother confirms that the appellant had telephoned her in February 2016 and told her that if she received a letter from him which included a letter to the victim, she was not to send it to her. The appellant's mother has also provided a letter which confirms that the appellant went through a difficult time after he and his wife separated. She notes that even after the VRO was in place, the appellant had unsupervised access to his child and that the victim facilitated that access.
174 In his letter, the appellant's father asserts that the appellant has never been physically abusive to the victim and that the victim has told him that she does not fear the appellant.
175 After considering all of the relevant circumstances, I am not of the opinion that the aggregate sentence was manifestly excessive. After taking into account the number of offences, the length of time over which they were committed, the undoubted seriousness of the threats involved a number of them (RO 6847/15, RO 713/15, RO 6854/15 and RO 6855/15), the blatant disregard the offences showed for the authority of the court and the rights of the victim the need for both personally and generally deterrent sentences and the lack of significant mitigation, I conclude that the individual sentences and the aggregate sentence was within the proper exercise of the magistrate's discretion.
Did the magistrate's error result in a substantial miscarriage of justice?
176 As I have determined that the magistrate failed to properly comply with the Sentencing Act s 9AA(5) (ground of appeal 2), it is necessary for me to determine whether the failure of the magistrate has resulted in a substantial miscarriage of justice. If it has not, then I may dismiss the appeal: Criminal Appeals Act 2004 (WA) s 14(2).
177 The most serious offences were RO 6847/15, RO 7013/15 and RO 6854/15 as the appellant threatened to kill the victim in each of these charges. RO 6855/15 is also objectively serious because he threatened to kill himself and sent a picture of himself with a knife threatening to cut himself. The number of times that the appellant attempted to contact the victim during these offences also amounted to serious harassment.
178 The appellant did not plead guilty at the first reasonable opportunity to any of those 4 charges despite the strength of the prosecution case against him. In my judgment he was entitled to a discount of 20% for his pleas of guilty on each of the head sentences for those offences.
179 Taking into account that discount and all other sentencing factors, my judgment is that a sentence of 7 months' imprisonment for each of those offences was appropriate.
180 RO 7009 - 7012/15 and RO 7014/15 did not contain the same threats to the safety of the victim and are less objectively serious. Nevertheless, they were sustained harassing and accusative incursions into the victim's privacy and breaches of the VRO. They warranted terms of imprisonment and a discount of 20% for the pleas of guilty. My judgment is that a sentence of 3 months' imprisonment for each of those offences was appropriate.
181 Offences RO 403 - 406/16 were similar offences to one another. They did not contain the same accusations and threats as the earlier offences but they were aggravated by the fact that the appellant used letters to his child to contact the victim and because they were committed whilst the appellant was in custody having already been charged with the earlier breaches. The appellant entered pleas of guilty at the first reasonable opportunity to these offences. Even though the prosecution case against him was very strong, I will assume, in the appellant's favour that his pleas of guilty warranted a discount of 25% in the head sentence.
182 The remaining offences were similar in seriousness. The offences did not involve threats or accusations but were still premeditated breaches of the VRO, aggravated by the appellant being in custody or on the PSO when he committed them. Even though the prosecution case against him was very strong, I will assume, in the appellant's favour, that his pleas of guilty warranted a discount of 25% in the head sentence. This discount would have resulted in sentences of 2 months' imprisonment for each of the remaining offences.
183 I agree with the magistrate's approach that it was appropriate that some of the sentences ought to served cumulatively on each other. Each offence involved distinct criminal conduct, although there was some factual overlap between them. In my judgment the totality principle required that two of the sentences for RO 6847/15, RO 7013/15, RO 6854/15 and RO 6855/15 be served cumulatively on the other. I would also have ordered that one of the sentences for the offences committed whilst the appellant was on remand in custody before being released on the PSO be served cumulatively on those sentences. I agree with the magistrate's opinion that there should be additional imprisonment for those offences committed whilst the applicant was on the PSO by ordering that one of those sentences be served cumulatively also. Thus, the aggregate sentence of 18 months' imprisonment imposed by the magistrate was correct.
184 I have considered all relevant sentencing factors, including the maximum penalties for the offences, the appropriate discount for the pleas of guilty for each offence, the seriousness of each offence and matters which aggravate and mitigate the offences. I would not have imposed the same individual sentences imposed by the magistrate or structured the sentence in the same way that the magistrate did, but I have concluded that any error made by the magistrate has not resulted in a substantial miscarriage of justice, in that the aggregate sentence imposed was correct.
Conclusion
185 I grant an extension of time within which to appeal and leave to appeal on grounds 2 and 5. I dismiss the appeal.
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