Lawson v Director of Public Prosecutions [No 2]
[2024] WASC 279
•2 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LAWSON -v- DIRECTOR OF PUBLIC PROSECUTIONS [No 2] [2024] WASC 279
CORAM: FORRESTER J
HEARD: 23 JULY 2024
DELIVERED : 2 AUGUST 2024
FILE NO/S: SJA 1027 of 2024
BETWEEN: SHAUN PHILLIP LAWSON
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1027 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L ATKINS & MAGISTRATE A HOCKTON
File Number : RO 1800/2024, RO 4333/2023, RO 6855/2023, RO 6857/2023, RO 7139/2023
Catchwords:
Criminal Law - Single judge appeal - Conviction appeal - Whether learned magistrate obliged to reject guilty plea - Whether guilty plea entered under duress - Whether appellant denied the opportunity to seek legal advice or representation
Sentence appeal - Whether magistrate failed to consider other sentences reasonably open to him - Whether seriousness and facts of the breach of violence restraining order were overstated by the magistrate - Whether magistrate disregarded character references - Whether sentence imposed was manifestly excessive - Whether learned magistrate erred in ordering the appellant to serve the suspended terms of imprisonment
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Criminal Procedure Rules 2005 (WA)
Restraining Orders Act 1997 (WA)
Road Traffic Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Conviction Appeal:
1. Application to adduce additional evidence dismissed
2. Leave to appeal refused
3. Appeal dismissed
Sentence Appeal:
1. Leave to appeal refused on grounds 1 - 3
2. Leave to appeal granted on ground 4
3. Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms M Wong |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
AB v Director of Public Prosecutions [2024] WASC 127
Cullen v Rollings [2009] WASC 80
Dillon v The State of Western Australia [2020] WASCA 24
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
House v R [1936] HCA 40; (1936) 55 CLR 499
Isenhood v Green [2011] WASC 70
Kabambi v The State of Western Australia [2019] WASCA 44
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Tsang v Francis [2021] WASCA 131
Van Arkel v Tordoff [2020] WASC 153
FORRESTER J:
(This decision was delivered extemporaneously and has been edited to correct grammar and minor infelicity of language.)
Introduction
On 2 May 2024, the appellant filed an appeal against conviction and sentence on charges RO 4333 of 2023 and RO 1800 of 2024.
Then, on 11 June 2024, the appellant sought to amend his notice of appeal, adding to the list of charges in relation to which he sought to appeal against conviction and sentence.
The convictions and sentences which the appellant now seeks leave to appeal are as follows.
On 31 January 2024 in the Rockingham Magistrates Court, the appellant was convicted on his pleas of guilty to offences, and sentences were imposed, as follows:
Charge No.
Offence
Sentence
RO 4333/2023
No authority to drive (s 49 (1)(a) & (3)(c) Road Traffic Act 1974 (WA))
8 months' imprisonment suspended for 12 months
RO 6855/2023
No authority to drive (s 49 (1)(a) & (3)(c) Road Traffic Act 1974 (WA))
8 months' imprisonment suspended for 12 months
RO 6857/ 2023
Stealing (s 378 Criminal Code (WA))
8 months' imprisonment suspended for 12 months
RO 7139/2023
No authority to drive (s 49 (1)(a) & (3)(c) Road Traffic Act 1974 (WA))
8 months' imprisonment suspended for 12 months
On 26 March 2024 in the Rockingham Magistrates Court, the appellant was convicted on his pleas of guilty to the offences, with sentences imposed on 12 April 2024, as follows:
Charge No.
Offence
Sentence
RO 1271 of 2024
Stealing (s 378 Criminal Code)
$300 fine
RO 1800 of 2024
Breached a violence restraining order (s 61(1A) Restraining Orders Act 1997 (WA))
7 months' immediate imprisonment, backdated to 6 March 2024.
RO 1801 of 2024
Attempted stealing (s 378 Criminal Code)
$200 fine
RO 1802 of 2024
Stealing (s 378 Criminal Code)
$200 fine
The offences the subject of charges RO 1800‑1802 of 2024 were committed after the suspended imprisonment orders were imposed on 31 January 2024. On 12 April 2024, the appellant was ordered to serve each of the terms of eight months' imprisonment, to be served concurrently, commencing on 12 April 2024.
On 15 May 2024, a registrar of this court made an urgent appeal order, pursuant to the Criminal Procedure Rules 2005 (WA).
It is apparent the appellant:
(a)challenges the conviction on the charge of breaching a violence restraining order (RO 1800 of 2024) and the sentence imposed for that conviction; and
(b)the decision of the learned magistrate, following that conviction and sentence, to order that the appellant serve the terms of imprisonment which had been suspended on 31 January 2024.
When this was clarified with the appellant at the hearing, he confirmed that was his intention. He did not seek to challenge the convictions or sentences in respect of charges RO 1271 of 2024 or RO 1801‑1802 of 2024. Further, he did not maintain his appeal against his convictions on charges RO 4333 of 2023, RO 6855 of 2023, RO 6857 of 2023 or RO 7139 of 2023.
Relevant Facts
RO 4333 of 2023
On 28 July 2023 at about 5.50 pm, the appellant drove a car in Rockingham while subject to three court ordered driver's licence suspensions.
RO 6855 of 2023
On Monday, 16 October 2023 at 1.36 pm, the appellant drove on the Kwinana Freeway, Baldivis, while his licence was subject to court ordered driver's licence suspensions.
RO 6587 of 2023
On 18 October 2023 at about 8.37 am, the appellant went to the Bunnings store in Baldivis. He selected various cordless power tools and building materials to the value of $2,704 and put them in a trolley and left through a fire exit door, proceeding to load the items into his car. He made no attempt to pay for the items and drove away. He was arrested on 1 November 2023.
RO 7139 of 2023
On Sunday, 26 November 2023 at about 9.00 am, the appellant was apprehended driving a vehicle in Parmelia, while his licence was subject to court ordered driver's licence suspension.
RO 1800 of 2024
On 13 December 2023, the appellant was served with a Conduct Agreement Order (CAO), the protected person being the appellant's father.
Under the CAO, the appellant was:
(a)not to communicate or attempt to communicate with the protected person by any means whatsoever, including text message or other electronic means; and
(b)not to harass the protected person by any electronic means, including by using the internet and any social network application to depict or refer in any offensive manner to the protected person.
On 11 February 2024 at 1.58 am, the appellant called his father and left a 32 second voicemail. In that voicemail, the appellant said: 'You're a fucking dog, man' and 'do yourself a favour and fucking neck it'. The appellant's father recognised the appellant's voice.
The appellant was arrested on 5 March 2024 and declined to participate in a record of interview.
For the purposes of the Restraining Orders Act 1997 (WA), a CAO is to be taken as a Family Violence Restraining Order: s 10H. In this decision, I will refer to this offence as breach of a violence restraining order.
Sentencing
The circumstances in which the matter proceeded are set out in consideration of grounds one and two.
The appellant apologised for his offending and said he loved his father. He said he had a lot at stake, and had had time to reflect on his actions. He understood the seriousness of his offending.
A reference from the appellant's partner was submitted which indicated that she was pregnant, wanted the appellant's support and was supportive of him. She attested to the appellant's remorse and asked that a non‑custodial penalty be considered. Further references were submitted indicating that the appellant had an offer of employment, and speaking to his character as a person and an employee.
The learned magistrate noted the maximum penalty for the offence. He considered that the breach was relatively serious, involving a long message, of a threatening and emotionally destructive manner, intended to cause emotional harm. His Honour found it to be deliberate and aimed to undermine the protected person's confidence, and was at the higher end of the scale.
A verbal pre-sentence report was given, which indicated the appellant had expressed his willingness to comply with a community order. The appellant appeared to be aware of the seriousness of the situation he had placed himself in. The offending occurred during a period of issues with his relationship, issues with employment and methylamphetamine use associated with negative peer influence. The appellant was said to present with limited insight into his offending behaviour and a poor attitude towards previously imposed suspensions and fines. His offending was said to be underpinned by pro‑criminal attitudes and lack of consequential thinking, problem solving and decision making.
The person who gave the verbal pre‑sentence report said that the appellant had admitted attempting to contact his father but said he was willing to adhere to the agreement in future. He expressed remorse for the stealing offences and a desire to lead a law abiding lifestyle and prepare for fatherhood in the future.
The appellant's criminal record dates back to when he was 15 years of age and correlates with his reported issues with drug use and antisocial attitudes. He had breached the one previous community disposition imposed on him in 2010.
The appellant had secured community housing six months previously, which was the first stable accommodation he had had in a long time. Maintaining that was of high importance to him, and he claimed that further prison time would result in his losing that accommodation.
The appellant was being treated for a generalised anxiety disorder, but described his mental health as stable. He was on pain medication to manage pain from injuries sustained in a car accident in 2014. He had no issues with alcohol but did have a substance abuse problem, for which he was willing to engage in counselling through Palmerston. He was regularly engaged in general counselling and intended to resume that on release. It was recommended that the appellant engage in a cognitive skills program.
The appellant was assessed as having a number of protective factors including stable accommodation, employment prospects, community supports and presented as motivated to engage in interventions.
His Honour gave a 15% discount on the appellant's sentence for his plea of guilty on the charge of breaching the violence restraining order. He noted the appellant, at 38 years of age, did not have youth on his side.
His Honour was of the view that the offence could not be dealt with by way of fine, community based order or intensive supervision order, but only by imprisonment. Having considered all of the aggravating and mitigating factors and matters personal to the appellant, the learned magistrate determined that it was not appropriate to suspend the sentence of imprisonment and imposed a term of seven months' immediate imprisonment, backdated to 6 March 2024.
At that point, the appellant interrupted the learned magistrate and said:
The reason I pleaded guilty to that charge is under duress, your Honour. And so it's therefore submitted that (indistinct) under duress (indistinct) a plea of guilty.
His Honour informed the appellant he would need to deal with that elsewhere.
The appellant also needed to be dealt with for re‑offending while subject to the four suspended imprisonment orders imposed on 31 January 2024. In relation to those, the learned magistrate acknowledged that the nature of the offence breaching those orders was different to the nature of the offences for which they were imposed. However, that offence was committed only days after the suspended sentences were imposed. His Honour took into account the willingness of the appellant to engage in counselling, that he had obtained housing, and had an offer of employment. Further, the appellant had indicated he intended to dispose of his car. However, his Honour observed that, unless is it unjust to trigger a term of suspended imprisonment, the term should be imposed and accordingly ordered that the appellant serve the terms of eight months' imprisonment concurrently.
Grounds of appeal
Conviction Appeal
The grounds of the conviction appeal (RO 1800 of 2024) are that:
1.The magistrate failed to act upon his legal obligation to not accept subsequent guilty plea, proceeding to sentencing knowing that the facts, and the offence itself, were disputed.
2.The plea of guilty was only submitted under duress.
3. The appellant was not afforded the opportunity to be legally advised or represented and should the appellant have been afforded that opportunity, would not currently be serving a period of incarceration.
Sentence Appeal
The grounds of the sentencing appeal are:
1.The magistrate failed to consider other sentences which were reasonably open to him such as an Intensive Supervision Order.
2.The seriousness and facts of the breach VRO charge was exaggerated by the Sentencing Magistrate resulting in unnecessary imprisonment.
3.The character of the appellant was improperly described. The magistrate purposely disregarded all character references, including that of the Deputy Mayor of Rockingham.
4.The Magistrate took into account both irrelevant and incorrect factors his Honour described at sentencing resulting in unnecessary immediate imprisonment.
Application to adduce additional evidence
At the hearing of the appeal, it became apparent that the appellant sought to adduce additional evidence as to his conviction appeal, and in relation to the sentence imposed. The appeal was adjourned for a short time to allow that application to be made.
The appellant has filed an affidavit in which he states that he 'pleaded guilty under duress', referring to the charge of breaching the violence restraining order. In that affidavit, he claims that he has 'respected' the CAO and:
(a)at the time of the voice message allegedly left by him, he 'would have been asleep'; and
(b)'the voice message and the content does not [resonate] with the speech or words' he would use: 'it was not me'; and
(c)'the voice message could have been left by anyone'.
Statutory framework and legal principles
Appeals against conviction and sentence
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused, including after a plea of guilty, is a decision which may be appealed,[1] as is a sentence imposed or order made as a result of a conviction.[2]
[1] CA Act s 6(c) and s 7(1).
[2] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
[3] CA Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[6]
[6] CA Act s 14(2).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[7]
[7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
In light of the appellant's clarification as to the nature of his appeals, no extension of time is required.
Application to adduce additional evidence
The court is required to decide the appeal on the evidence and material which was before the learned magistrate.[8] Notwithstanding this, the court has power to 'admit any other evidence' for the purpose of dealing with an appeal.[9]
[8] CA Act s 39(1).
[9] CA Act s 39(3), s 40(1)(e).
The power to admit further evidence is discretionary and is not limited or confined by statute. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved will indicate those considerations which are relevant or irrelevant to the exercise of that power.
In a case in which the appeal against conviction follows upon a plea of guilty, the distinction between 'fresh evidence' and 'new evidence', upon which the admission of additional evidence on appeal is usually based, is not relevant. It is instead necessary to consider the relevance of the additional evidence to the issues in the appeal.[10]
[10] Tsang v Francis [2021] WASCA 131 [93]; AB v Director of Public Prosecutions [2024] WASC 127 [28].
Conviction Appeal
Grounds 1 and 2
Having regard to the way in which they were argued by the appellant, grounds 1 and 2 can conveniently be dealt with together.
Was the learned magistrate obliged to reject the appellant's guilty plea or was it entered under duress?
The appellant submitted that he initially entered a firm not guilty plea. A month later, after three further court dates (and three further not guilty pleas) the matter was sent to Mandurah Magistrates Court for a trial allocation date. On that date, the matter was stood down to enable the appellant to seek legal advice. The appellant submitted that he was then brought back before the magistrate who 'brought the matter to proceed for sentence.'
The appellant submitted that he then entered guilty pleas under duress, but that the magistrate should have questioned the plea and whether the facts or offence were disputed.
The legal principles concerning an appeal against conviction after a guilty plea was entered are well established. They were summarised in Snook v The State of Western Australia [No 2][11] as follows:
[11] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] - [107]; Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [16] ‑ [19].
102An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 Dawson J. There are three well recognised grounds for allowing a change of plea:
(1) where the applicant did not understand the charge or did not intend to plead guilty;
(2) where on the admitted facts the applicant could not in law be guilty of the offence; and
(3) where the plea of guilty has been obtained by inducement, fraud or intimidation.
See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.
103 These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.
104 Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
…
106An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].
107If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.[12]
[12] See also Lawson v The State of Western Australia [No 2],[12] the latter being a matter also involving the appellant.
The plea of guilty was entered on 26 March 2024 before a different magistrate than the magistrate who ultimately sentenced the appellant. When the appellant's matter was called on at the trial allocation hearing, he asked a question suggesting he was considering pleading guilty. The learned magistrate then stood the matter down to enable him to speak to duty counsel.
The matter was later recalled, and the appellant appeared. Duty counsel informed the court that she had given the appellant some advice, and that the appellant was electing to represent himself.
Her Honour informed the appellant that there were four matters before her: the breach of the conduct agreement order, on which he had entered a not guilty plea and thus which needed to be listed for trial. Her Honour then referred to the three Rockingham stealing charges and asked if the appellant wanted her to take a plea. The appellant confirmed he had spoken to the duty lawyer and said:
I've told the lady that I would like to progress and, like, you know, move forward, and I would like to change my plea of guilty to - in the interests of moving forward - to guilty to the breach of VRO.
The following exchange then took place:
HER HONOUR: All right. You realise that if you're pleading guilty, you're accepting the prosecution version of what happened. You understand that that is what a guilty plea means?
ACCUSED: Yes
HER HONOUR: And if you say something in a plea in mitigation to explain the offending that causes me not to be able to accept your plea of guilty, I would again enter a not guilty plea and list the matter for a trial. You understand that?
ACCUSED: I will be honest with you, ma'am, I don't know. I'm not going to say yes, I think I know because I don't. I'm just going to go with things at the moment. I will just like - in the interests of justice, procedural fairness and all that, I will do as I'm told. Like, you know, I've got good intentions. I've got a business. I've got -
HER HONOUR: All right. Mr Lawson, I'm just going to stop you there. I will take the pleas from you for these four matters, but if there is something you say that crosses the pleas to make the plea of guilty not a clear plea of guilty, I will not be able to accept that plea. Do you understand that?
ACCUSED: Understood.
Her Honour then put the charge of breach of violence restraining order to the appellant, confirmed that he pleaded not guilty on 13 March 2024, and asked him what his plea was. He responded, without qualification, 'Guilty, your Honour.'
It was only after the appellant realised he had been sentenced to a term of immediate imprisonment on 12 April 2024 that he raised the issue of his plea of guilty having been entered under duress.
The transcript reflects that not only was the magistrate who took the plea of guilty concerned to ensure that the appellant understood the ramifications of his plea of guilty, but that the appellant understood that the facts needed to be consistent with that plea of guilty.
In none of the proceedings in relation to the breach of the violence restraining order which followed did the appellant make any submission inconsistent with his plea of guilty. Indeed, he apologised for the offending, was said to have admitted it to the author of the pre‑sentence report, and indicated an intention to abide by the agreement in the future.
There is nothing which suggests that the magistrate who received the plea of guilty should not have accepted the appellant's plea, or that the sentencing magistrate should have set that plea of guilty aside.
On appeal, the appellant has sought to adduce additional evidence to the effect that he entered the plea of guilty under duress. In his affidavit, he did not elaborate what constituted the duress upon him, although it could be inferred from the transcript at first instance that he wanted the matters to progress. He also claimed that the words used in the voicemail were not words he would use and the caller was not him; in effect, that he was innocent of the offence.
The appellant has not sought to establish any other basis on which his plea of guilty should be set aside, including that:
(a)he did not understand the nature of the charge, or intend to admit guilt; or
(b)he could not in law have been guilty of the offence.
In my view, the appellant has not established that his plea of guilty to the offence was entered under duress. Further, even if I were to accept that the appellant only pleaded guilty to avoid the stress, inconvenience and or delay of the court process, that does not mean the plea was of itself an invalid plea. The appellant must show that a miscarriage of justice has occurred.
The appellant pleaded guilty on 26 March 2024, after having received legal advice and following a careful enquiry from the learned magistrate as to his plea. The appellant reappeared on 5 April 2024 at which he made an enquiry as to bail. He appeared for sentence on 12 April 2024. On that date, he was again carefully informed as to the precariousness of his position, and the potential consequences. He was again asked if he wanted to get legal advice. The appellant claimed he would only be able to get legal advice if he received bail. He was told he would not get bail, and asked his Honour to proceed. The appellant was present in court when the author of the pre-sentence report told his Honour that the appellant had admitted trying to contact his father.
As I have said, it was only after the learned magistrate indicated that he did not intend to suspend the term of imprisonment he was imposing that the appellant first sought to traverse his plea.
In my view, all of the material establishes that the appellant made a rational choice to plead guilty, having received legal advice as to his options. It is an irresistible inference that he hoped that by doing so he would receive a sentence which enabled his prompt release from custody. When that did not eventuate, he sought to revoke his plea.
The additional evidence does not assist in establishing that there has been a miscarriage of justice. The appellant's assertions that he 'would have been asleep' and did not use the kind of language reported are insufficient to establish that the appellant was innocent. I am satisfied that the appellant entered the plea voluntarily and with a full appreciation of what he was doing.
These grounds have no reasonable prospect of success. The application to adduce additional evidence is dismissed and leave to appeal is refused.
Ground 3
Was the appellant denied the opportunity to seek legal advice or be legally represented?
By ground 3, the appellant complains he was not afforded the opportunity to be legally advised or represented, and had he been, he would not be serving a term of imprisonment.
As a ground of appeal against conviction, this ground in effect alleges that a miscarriage of justice has resulted as a result of the appellant not being provided with the opportunity to be legally represented prior to his plea of guilty.
As has already been noted, on 26 March 2024, before the appellant entered his plea of guilty, the matter had been stood down to enable the appellant to seek legal advice. After that, duty counsel informed the learned magistrate, in the presence of the appellant, that he was 'electing to represent himself'. The appellant did not demur.
This ground has no merit and leave to appeal must be refused.
Appeal against sentence
The appellant's grounds of appeal against sentence as framed can be readily disposed of. However, as the appellant is self-represented, and with the consent of the State, I will also deal with the appeal against sentence on the basis that the effect of ground 4 is that:
(a)the sentence imposed on the charge of breach of violence restraining order was manifestly excessive; and
(b)the learned magistrate erred in ordering the appellant to serve the suspended terms of imprisonment.
First, however, I will deal with the other grounds of appeal.
Ground 1
This ground alleges that the learned magistrate failed to consider other sentences which were reasonably open to him such as an intensive supervision order.
This ground is unarguable. The learned magistrate expressly stated that he had ruled out sentencing the appellant by way of fine, community based order, or intensive supervision order.
The appellant's submissions in relation to this ground are to the effect that the learned magistrate was wrong to reject what the appellant describes as a recommendation that the appellant be placed on an intensive supervision order. I will deal with this submission when I deal with the manifest excess ground.
Ground 2
The appellant submitted that the seriousness and facts of the breach of the violence restraining order charge were 'exaggerated' by the learned magistrate, and further that his Honour 'purposely disregarded' all character references, including that of the Deputy Mayor of Rockingham.
Again, to the extent that this ground in fact complains of manifest excess, I will deal with it below. Otherwise, there is nothing which supports the assertion that the seriousness of the offence was exaggerated. Further, the learned magistrate specifically referred to a number of the references submitted on the appellant's behalf. There is no basis for the submission that his Honour disregarded them, whether purposely or otherwise.
This ground has no merit.
Ground 3
Ground 3 is largely a repetition of ground 2 and has no merit.
Ground 4
The submissions of the appellant do not identify any matter which the learned magistrate incorrectly took into account. The effect of the appellant's submissions are that the learned magistrate should not have considered that the offence warranted a term of immediate imprisonment.
The author of the pre-sentence report had noted that the appellant had previously been subject to one community disposition, a community based order, in 2010. He had breached that order.
Protective factors were identified in the case of the appellant. He was said to have presented as motivated to engage in interventions and he did not identify any barriers to complying with a community supervision order. His treatment needs were identified, and his Honour was informed that relevant programs were available in the community.
However, contrary to the appellant's submissions, the author of the pre‑sentence report did not recommend that an intensive supervision order be imposed. Further, even if she had, the assessment of a Community Corrections officer is but one matter which the learned magistrate was required to consider in determining the appropriate sentence.
Manifest excess
The general principles governing appeals contending that error should be inferred on the basis that a sentence is manifestly excessive are well established. They were set out by the Court of Appeal in Kabambi v The State of Western Australia[13] and need not be repeated here.
[13] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In considering whether a sentence imposed is manifestly excessive, the sentence should be viewed in light of the maximum sentence for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[14]
Imposition of a term of imprisonment for offence of breach of a violence restraining order
[14] Kabambi v The State of Western Australia [21(2)].
The learned magistrate assessed the facts of the charge of breach of violence restraining order as being 'a fairly serious breach',[15] 'a relatively serious breach',[16] and 'towards the higher end of the scale as far as breaches of conduct agreement orders go'.[17]
[15] Transcript, WA Police v Shaun Phillip Lawson, Magistrates Court of Western Australia, 12 April 2024, 10 (ts 12 April 2024).
[16] ts 12 April 2024, 10.
[17] ts 12 April 2024, 10 ‑ 11.
The appellant had been served with the CAO on 13 December 2023. That is an order which can only have been made with the agreement of the respondent. The CAO had been in place for three months when the appellant committed the offence. The offence involved deliberate, sustained conduct. The words used by the appellant were threatening and intimidating and the learned magistrate was entitled to find that was the intended effect.
The appellant submitted that he had not been anywhere near the protected person's house in 19 years and the CAO was unnecessary and unwarranted to begin with, notwithstanding his consent to it being made. He further submitted that he had only breached a violence restraining order on one other occasion, in 2006, when he sent a card to his father's house for his daughter.
None of those factors reduced the seriousness of the conduct engaged in by the appellant. Any breach of a violence restraining order (or, as in this case, a CAO) is serious. It is not only an offence against the protected person, who is entitled to be protected from conduct of this kind, but it is also an offence against the court - a disregard of a court order. General deterrence is a paramount sentencing consideration in cases of this kind.
In my view, having regard to the circumstances of the offence, the learned magistrate's assessment of its seriousness was appropriate.
While the appellant may only have ever been convicted of one other such offence, in 2007, he was also convicted of breaching protective bail conditions in 2017. Further, his criminal record is replete with offences which demonstrate a total disregard for authority and court orders, such as driving under suspension, breach of bail undertakings and refusing to give details to police or providing false details.
In particular, the offence of breach of a violence restraining order was committed only 11 days after the appellant was made subject to four suspended imprisonment orders. At the time those sentences were imposed, the appellant was warned what would most likely happen if he committed an offence which carried a term of imprisonment, and he said he understood. In those circumstances, the court was entitled to place significant weight on personal deterrence as a sentencing factor.
The appellant was able to call upon a number of character references, which were also before me. Both his friends and his former employer write well of him, as a hard worker, and contributor to his community. Mr Reethes wrote that the appellant had taken significant steps towards his rehabilitation and has shown remorse. The appellant's partner wrote that she was pregnant with twins due in August and that she was struggling physically, emotionally and financially. She says the appellant was her only support.
The appellant also relied on a reference from Lorna Buchan, the Deputy Mayor of Rockingham, who described the appellant as respectful and considerate of her and others in the context of his daughter's martial arts classes.
The learned magistrate was obliged to, and did, take those references into account. However, the references must also be balanced against the appellant's criminal record, which showed him to be a man of poor prior character. Further, there was very limited evidence of any steps the appellant had taken towards his rehabilitation.
The appellant also produced evidence that he had employment available, and that he had stable housing. While those factors were said to be protective, the appellant had that same employment and stable housing when he committed the offences for which he was sentenced on 12 April 2024. Further, the fact that his partner was pregnant had not caused him to refrain from offending.
The respondent has referred to a number of cases involving appeals from magistrates at first instance which suggest that the sentence imposed on the appellant for the offence of breach violence restraining order was, while towards the higher end of the scale, within range. Those cases are Van Arkel v Tordoff,[18] Cullen v Rollings,[19] and Isenhood v Green.[20]
[18] Van Arkel v Tordoff [2020] WASC 153.
[19] Cullen v Rollings [2009] WASC 80.
[20] Isenhood v Green [2011] WASC 70.
The most similar factually is Isenhood, in which case the appellant had called the protected person repeatedly over the course of a few hours. On the sixth, the protected person answered the phone, and the appellant shouted a threat to kill the appellant and his daughter. At first instance, the appellant was sentenced to 12 months' imprisonment. On appeal, Jenkins J held that the offending was not at the upper end of the scale in terms of seriousness, as it did not involve physical proximity or actual violence.[21] Her Honour considered that a term of imprisonment was not outside the exercise of an appropriate sentencing disposition, but that the seriousness of the offences did not warrant a term of 12 months.[22]
[21] Isenhood [19].
[22] Isenhood [42].
The appellant in Isenhood had six previous convictions for breaching a violence restraining order against the same complainant, for which he had received fines. He was not remorseful. He was not young and had no significant mitigating factors in his favour. The conviction was entered after trial.
While the culpability of the offender in Isenhood might be said to have been higher than the appellant's culpability in this case, and the sentence was imposed after trial, manifest excess is not established by reference to one or even a few comparators. In this case, it was highly relevant that the appellant had only been made subject to suspended terms of imprisonment 11 days earlier, albeit for offending of a different kind.
I do not regard the fact that the present case involved a conduct agreement order as in any way reducing the seriousness of the appellant's culpability. A CAO is only made in circumstances where the parties agree and the need to pursue a violence restraining order is thereby avoided. There is no basis for treating a breach of a CAO as being less serious than a breach of a violence restraining order.
In my view, while the sentence imposed was high, I am unable to conclude that it was not open to the learned magistrate, having regard to the maximum penalty for the offence, the seriousness of the offending, the matters personal to the offender, and the need for general and personal deterrence. The sentence was not unreasonable or plainly unjust.
Order that terms of imprisonment which were suspended must be served
As to the activation of the suspended sentences, s 80(3) of the Sentencing Act 1995 (WA) provides that a court must make an order that the whole of the terms be served unless it decides that it would be unjust to do so in view of all of the circumstances that have arisen, or have become known, since the term of suspended imprisonment was imposed.
A sentence of suspended imprisonment may only be imposed if a term or terms of imprisonment equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all of the circumstances: s 76(2) Sentencing Act. A suspended sentence is imposed where the sentencing court considers it appropriate to give an offender a last chance to avoid immediate imprisonment by leading a law‑abiding life.[23]
[23] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [33]; Dillon v The State of Western Australia [2020] WASCA 24 [31].
The clear legislative intention of s 80(3) is that, in the ordinary course, reoffending while subject to a suspended imprisonment order will have the consequence of an order that the offender serve the full term of the term which was previously suspended. As the court observed in Dillon, the court will not lightly interfere with that ordinary consequence; to do so 'would be to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending'.[24]
[24] Dillon [31].
I also am unable to conclude that it was inappropriate for the learned magistrate to order that the appellant serve the terms of imprisonment which had previously been suspended. At the time those suspended sentences were imposed the appellant was clearly warned what would happen if he committed a further offence which carried with it a term of imprisonment.[25] He reoffended within 11 days by breaching another court order. While the offence which was committed was of a different character to the offences for which the suspended sentences were imposed, the reoffending was itself very serious. It is plain that the appellant had failed to take advantage of the last chance he was offered.
[25] ts 31 January 2024, 4.
In the present case, there is nothing which has been put before me which suggested that it would be unjust for the suspended sentences to be served.
The sentence was not manifestly excessive, and it was not unjust for the appellant to be ordered to serve the terms of imprisonment which had previously been suspended.
Accordingly, leave to appeal should be granted but the appeal dismissed.
Orders
Conviction Appeal
(1)Application to adduce additional evidence dismissed.
(2)Leave to appeal refused.
(3)Appeal dismissed.
Sentence Appeal
(1) Leave to appeal refused on grounds 1 - 3.
(2)Leave to appeal granted on ground 4.
(3)Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
6 AUGUST 2024
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