Hagart v Viles [No 2] - [2010] WASC 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HAGART -v- VILES [No 2] [2010] WASC 313

CORAM: JENKINS J

HEARD: 26 OCTOBER 2010

DELIVERED : 26 OCTOBER 2010

FILE NO/S: SJA 1065 of 2010

BETWEEN: PETER CLIFFORD HAGART
Appellant
AND
CHRISTOPHER JON VILES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 4583 of 2009, BU 845 of 2010

Catchwords:

Criminal law - Appeal against sentence - Breach of violence restraining order - Error in categorising offence as extremely serious

Criminal law - Appeal against order that appellant serve suspended term of imprisonment - No error

Legislation:

Sentencing Act 1995 (WA), s 80

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr S M Nunn

Solicitors:

Appellant: Thames Legal
Respondent: State Solicitor for Western Australia

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Lutey v Jacques [2010] WASC 78
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Bunbury on 29 June 2010. The appellant appeals against the sentence of 7 months' imprisonment imposed on him for one count of breaching a violence restraining order (VRO) as well as the order made by the magistrate that he serve a suspended sentence of 7 months' imprisonment imposed on him on 30 October 2009 for the offence of driving without a motor driver's licence. The magistrate ordered that the two sentences be served concurrently, meaning that the appellant received a total of 7 months' imprisonment.
There are two grounds of appeal. They are:
(1)the sentence imposed for the breach of the VRO was manifestly excessive in all the circumstances; and
(2)the learned magistrate erred when, in all the circumstances, her Honour determined the suspended sentence be served.
On 10 September 2010 I granted leave to appeal on each ground.

The background

On 30 October 2009 in the Bunbury Magistrates Court the appellant was convicted of driving without a motor driver's licence on 20 August 2009. It is difficult to follow the appellant's record because he had been receiving cumulative periods of motor driver's licence disqualification from magistrates for a number of years for road traffic offences. However, it is not disputed that he was rightly convicted of the offence on 30 October 2009. The penalty he received on that date is not the subject of an appeal. The appellant was sentenced to 7 months' imprisonment and it was ordered that the sentence be suspended for a period of 12 months (the SIO).
On 8 December 2009 an interim VRO was made prohibiting the appellant from communicating in any way with a 13‑year‑old boy or from entering on or loitering on the premises where he lived, including being within 5 m of the nearest external boundary of the victim's, that is the 13‑year‑old boy's, premises unless the appellant was accessing his own residence. The order was served on the appellant on 9 December 2009. I note that the appellant then lived in another unit at the same premises.
At approximately 5.00 pm on Monday, 1 February 2010, the appellant was out the front of his then address. He was supervising his children, who were playing in a cul‑de‑sac where his house was situated. The victim was also in the cul‑de‑sac playing. The victim was tormenting the appellant's three children or the appellant perceived that he was doing so. The appellant deliberately ignored what the victim was doing at that time. The victim went into his house. The appellant then left the front of his premises to go and get his mail.
On his way back from the mail box he passed the victim's unit. He went within 5 m of it in doing so. When the matter was later dealt with in the Magistrate's Court, the prosecutor alleged that the appellant was then in breach of the VRO. That was not disputed by the appellant's counsel. The appellant then became involved in an incident with the victim's mother. Again, when the matter was dealt with in court, the prosecutor alleged that the course of that argument became physical. That was another matter which was not disputed by the appellant's counsel.
The victim then came out of his house and called the appellant a 'fuckstick' and said, 'What the fuck are you doing?' The appellant then told the victim that if he continued to communicate with his daughters, then he would have to answer to him. Later in the plea in mitigation it was put by the appellant's counsel that the appellant said something to the effect of, 'If you threaten my daughters, you'll have to answer to me'.
The appellant thus communicated directly with the victim in breach of the interim VRO. The appellant's explanation when later spoken to by the police was that he would do anything to protect his daughters.
The appellant was charged with breaching the VRO. On 29 June 2010 in the Bunbury Magistrates Court he pleaded guilty to that offence. That conviction breached the SIO which was imposed on 30 October 2009.
On 29 June 2010, the Magistrates Court was told that there was a long history of conflict between the appellant and the victim. The appellant accused the victim of bullying and assaulting his three female children. He, that is the appellant, had taken out a VRO against the victim which had expired.
The magistrate was told that the appellant had relocated because he and his partner had separated. Thus, future contact between the appellant and the victim was unlikely.
The magistrate was also told that the appellant was then caring for one of his children. His other two children were in the care of his former partner.
It was acknowledged that the offence and the breach were serious but the magistrate was asked not to impose the suspended sentence on the basis that the new offence was not of a similar nature.
The prosecutor conceded that the breach of the VRO was not at the upper end of the scale of seriousness of that type of offence but noted that it was serious due to the victim being a child. The prosecutor submitted that a further suspended sentence may be a sufficient deterrent.
When sentencing the appellant the magistrate acknowledged that there had been some provocative behaviour by the victim. The magistrate then continued by saying:
But for a grown man to become involved in a verbal altercation with a child and then threaten that child as you did is, in my view, inexcusable. I consider it a serious breach. It is serious because it involves - you are the adult, that person was the child, there was a restraining order, you knew it was in place and there were other avenues open to you than what happened on that day.
The other issues that you face today is that your record isn't mitigatory. You have numerous previous breaches of VRO on your record. They were sentenced on one day but there were 15 separate charges, and whilst you can't be sentenced twice for that offence, or those offences, they certainly indicate to this court that you are not to be sentenced as a first offender and you should be taken to know that there are serious consequences for breaching a VRO.
Also your conviction for that offence breaches a suspended sentence which was imposed for a driving under suspension offence on 30 October 2009, and whilst that is a different sort of offence you would have been warned by the court that if you were convicted of any further offence you would serve that term. So again you are taken to know the circumstances (ts 6 ‑ 7).
The magistrate then referred to some of the comments by the prosecutor as to the difficult circumstances between the appellant and the victim. The magistrate also referred to the necessity for general deterrence, saying that it was important to communicate to the community that breaches of restraining orders would not be ignored. She noted that they were very hard to enforce and that there is a strong need for general deterrence which can often outweigh or can count against the court relying on matters personal to the offender.
The magistrate noted that because of the appellant's prior criminal record, personal deterrence was an important sentencing factor. Her Honour took into account that the appellant pleaded guilty and that that had to be given recognition in the sentencing process. She said that she did not think that a community based order would be appropriate because there were no underlying behavioural matters that needed to be dealt with.
The magistrate then referred to the breach of the SIO. She noted that she had to be satisfied that it would be unjust to trigger that sentence before she could do anything other than order the appellant to serve it. The magistrate said:
My view, Mr Hagart, is that on the basis of that there is only one available disposition for this court, sentencing disposition for this breach of VRO, and that is imprisonment. I am going to impose a term of imprisonment. The only thing I have to consider is whether or not it should be suspended and this impacts directly on whether or not it would be unjust to trigger the previous suspended sentence.
This court - my view of what happened on that day is it was a very serious breach, and you were on a suspended sentence and you were taken to know the consequences of your actions, and there seems to be no rehabilitative factor why a sentence of imprisonment should be suspended (ts 7).
The magistrate then sentenced the appellant to 7 months' imprisonment for the offence of breaching the VRO. She also ordered that the appellant serve the 7‑month suspended term of imprisonment. The magistrate ordered that the two sentences be served concurrently, meaning that the appellant received a total of 7 months' imprisonment.
The appellant was 35 years of age when he was sentenced. At that time he had the care of one of his children. However, it was not suggested that that child could not return to live with his former partner or some other appropriate person if he was imprisoned.
There was a delay in the appellant entering his plea but that was because of negotiations which had apparently taken place between the appellant and the prosecution over another charge and the facts relating to this charge. Those negotiations were resolved in the appellant's favour, so his plea was to be treated as an early plea of guilty.
The appellant has a terrible record. Of concern is that a large number of his prior convictions involve breaching court‑ordered or statutorily imposed prohibitions. As an adult he has had 12 convictions for driving without a motor driver's licence. Some of those offences were because the appellant was under fines suspension but at least four occurred when the appellant was under court‑imposed suspensions. He has had one conviction for driving contrary to the conditions of an extraordinary driver's licence, four convictions for breaching bail and 15 convictions for breaching a VRO. As well, he has numerous convictions for traffic, street and minor drug offences. He also has a conviction on 30 October 2009 for breaching the community based order he had been placed on for numerous breaches of an unrelated VRO.
In his defence his counsel said that breaches of the unrelated VRO related to him texting his former partner and contacting his children in contravention of a restraining order. The convictions for those offences had all been imposed on the one date and he had been given concurrent penalties. All that may well be true, but on the other hand his record discloses that the breaches occurred on eight different dates over a six month period, thus indicating a continuing disregard for the orders of the court.

Ground 1

This court cannot interfere with a magistrate's sentence merely because it would have imposed a sentence different to that of the sentencing magistrate. It may only interfere where it is shown that the sentencing magistrate has made an express or implied material error of fact or law. An error will be inferred if a sentence is manifestly excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence; for breaching a VRO that is 2 years' imprisonment and/or a fine of $6,000.
Regard must also be had to 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.
In Lutey v Jacques[2010] WASC 78, Simmonds J reviewed the standards of sentencing customarily imposed for this offence. As his Honour said, the proper approach to sentencing for the offence:
[I]s one recognising that the Act is social legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135 [13] (Miller J); it is essential the courts ensure their orders are not ignored: Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999) (Kennedy J) 10; and violence restraining orders are notoriously difficult to enforce, and the need for general and individual deterrence will ordinarily outweigh subjective or other mitigating considerations: Dominik v Volpi [2004] WASCA 18 [80] (Roberts-Smith J) [62].
However, these factors do not mean that a custodial sentence is appropriate in all cases or that mitigating factors will be given no weight.
The appellant disputes that this offence fell into the very serious category as indicated by the magistrate. I agree with that assessment. The offence was serious, involving as it did a physical altercation with the victim's mother which ended with the appellant verbally threatening a 13‑year‑old protected child when the appellant had gone within 5 m of the victim's premises. For those reasons it was a serious offence but I agree it was not a very serious offence of its type.
Importantly in the sentencing process, the appellant deserved no credit for being of good character. Although the appellant's prior criminal record did not aggravate or increase the objective seriousness of his offending, it did indicate that personal deterrence required a more severe sentence than would otherwise be warranted: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. A severe penalty was required to try and get the message through to the appellant that orders of the court cannot be breached at his whim and to ensure that the public and particularly members of it who are protected by VROs are protected from the appellant's type of offending.
Nevertheless, having regard to the fact that it was not alleged that the appellant physically touched the victim or threatened to do so other than by words, I am of the view that if the appellant had been being sentenced for this offence alone, a sentence of 7 months' imprisonment was excessive.
However, the magistrate was also obliged to deal with the appellant for breaching the SIO. The appellant submits that it was appropriate for the magistrate to determine the appropriate penalty for the breach of the VRO before considering what order she would make for the breach of the SIO. I do not agree. The two matters were interrelated. They had to be considered as the decision on one may impact on the other. Before I finally determine ground 1, I will consider ground 2, which relates to the breach of the SIO.

Ground 2

When dealing with an offender for breaching a SIO, a court may order the offender to serve the term or terms of imprisonment that were suspended in full or in part or may substitute another suspension period of not more than 24 months for the suspension period originally set or fine the offender not more than $6,000 and make no order in respect of the suspended imprisonment. The court must make an order that the offender serve the whole of the sentence unless it would be unjust to do so in view of all the circumstances that have arisen or have become known since the SIO was imposed: Sentencing Act 1995 (WA) s 80.
The appellant submits that it was unjust to require him to serve the SIO because the breaching offence, that is the breach of the VRO, was very different in both criminality and culpability from the offence of driving without a motor driver's licence for which he was placed on the SIO.
The appellant also says his circumstances had changed because he was no longer living next door to the victim of the breach of the VRO offence. Thus, there was unlikely to be a repetition of that offending. It was also put to the magistrate and it is submitted to me today that his circumstances had changed because he had then had the care of one of his daughters.
In my opinion the magistrate was right to determine that it would not be unjust to require the appellant to serve the SIO.
The appellant has a shocking history of breaching court orders or statute imposed requirements; nevertheless, he was given the opportunity of a SIO on the basis that if he committed an offence carrying a maximum penalty of imprisonment, he would be brought back to court and he may be ordered to serve the SIO.
Not only did the appellant commit such an offence, only three months later, but the breaching offence itself involved him yet again breaching an order of a court. The breaching offence may not have been very serious but it was a serious offence. Parliament has said that it will be a breach of a SIO if an offender commits an offence which carries a maximum penalty of imprisonment. Parliament did not say and has not said that a SIO is only breached when someone is sentenced to another term of imprisonment for a breaching offence. Clearly, it is not necessary for someone to be sentenced to another term of imprisonment in order for a SIO to be activated.
In my view, the circumstances of this breach were such that it was not unjust to activate the SIO.
As to the appellant's change in circumstances, it is true that he was no longer living next door to the victim of the breach of the VRO offence. That made it unlikely that he would commit that particular offence again but the appellant's criminal history has shown a continuing disregard for court orders. I do not think there could be any confidence whatsoever that the appellant would comply with any further community based orders or SIOs.
As to the fact that he then had the care of one of his children, there was no indication that that child could not be appropriately cared for by someone else if the appellant was in custody. In those circumstances it was not unjust to require him to serve the SIO.

Resolution of the appeal

Where the magistrate rightly determined that the appellant would be ordered to serve the suspended sentence, it meant that certain sentencing options were not available in respect to the offence of breaching the VRO. For example, a community based order was not available and neither was a SIO. However, in my view a term of 7 months' imprisonment for that other offence was manifestly excessive.
Given that the appellant was to serve a term of 7 months' imprisonment for breaching the SIO, the magistrate could have imposed a term of less than 6 months on the appellant for the offence of breaching the VRO. Given my view that ground 1 should be allowed, it is a matter of me resentencing the appellant having regard to his current circumstances. I am told that he is still living in Bunbury. If he does not return to prison, his current address would become permanent. For the reasons I have given, it is the fact that he will return to prison. The appellant still has the care of his 11‑year‑old daughter. It is still not submitted to me that there is not appropriate care available for her should he return to prison. I am told that he is looking for employment once he has obtained an extraordinary driver's licence but he apparently has not done so. In my view, there is nothing in those circumstances that would warrant me taking any different view about the breach of the SIO.

In respect to the breach of the VRO, an appropriate sentence is one of 6 weeks' imprisonment. The magistrate determined that the two sentences ought to be served concurrently. That was an order in the appellant's favour and I would not disturb that order.