Lutey v Jacques - [2010] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LUTEY -v- JACQUES [2010] WASC 78

CORAM: SIMMONDS J

HEARD: 5 FEBRUARY 2010

DELIVERED : 28 APRIL 2010

FILE NO/S: SJA 1146 of 2009

BETWEEN: CLIFF GREGORY LUTEY
Appellant
AND
STEVEN WILLIAM THOMAS JACQUES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT KARRATHA
Coram  :MAGISTRATE P ROTH
File No  :KH 2178 of 2009

Catchwords:

Appeal - Criminal law and procedure - Appeal by leave against 7 month sentence of suspended imprisonment for breach of violence restraining order - Whether sentences other than imprisonment adequately considered - Whether reasons were inadequate so as to produce injustice - Whether sentence manifestly excessive in view of particular factors - Standards of sentencing customarily observed with respect to the crime - Offence not involving threats or intimidation but indications of intention to self-harm

Legislation:

Family Violence Act 2008 (Vic), s 5, s 7 s 8
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39, s 68, s 76, s 86

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Ms L White

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

Bastin v Edwards [2009] WASC 346
Cullen v Rollings [2009] WASC 80
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dominik v Kay [2003] WASCA 174
Dominik v Volpi [2004] WASCA 18
Dragon v The State of Western Australia [2008] WASCA 252
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Forward v Bower [2007] WASC 205
Furber v The Queen [2008] WASCA 233
Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530
Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marshall v Lockyer [2006] WASCA 58
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pillage v Coyne [2000] WASCA 135
Powell v The State of Western Australia [2010] WASC 54
Sakkers v Thornton [2009] WASC 175
Sheppard v Blakely [2001] WASCA 309
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Yates v The State of Western Australia [2008] WASCA 144

SIMMONDS J:

Introduction

This is an appeal against a sentence of suspended imprisonment for one of three counts of the offence in Restraining Orders Act 1997 (WA) s 61(1) (Restraining Orders Act) of breach of a violence restraining order.
The background to the sentencing was as follows.
On 26 November 2009 the appellant had appeared in the Magistrates Court in Karratha before Magistrate Roth. The appellant pleaded guilty to three counts of the offence of breach of a violence restraining order. The first offence was committed between 12 ‑ 18 November 2009, the second offence was committed on 20 November 2009 and the third offence was committed on 25 November 2009, all in Karratha. The appeal is against only the sentence for the second offence.
On the prosecutor's account of the material facts, with which counsel for the offender took no issue, and on the further accounts by the offender's counsel with which the prosecutor took no issue, the background to and circumstances of the offending and its immediate aftermath were the following.
The appellant and DB had been in a relationship for seven years.
About five days prior to 12 November 2009, DB had been admitted to a hospital for some heart treatment. The appellant contacted the hospital and was told she would not speak to him.
At about this time, the relationship between the two had come to an end. That had taken the appellant by surprise, and he was confused about why it had occurred. He wanted an explanation for that occurrence.
On Thursday, 12 November 2009, at 5.00 pm, the appellant was served with violence restraining order 2009 02089 (the VRO). The VRO named DB as the protected person. The VRO prohibited him contacting the protected person by any means, and entering upon any place where she lived or worked or being within 200 m of such a place.
Between the evenings of 12 November 2009 and Wednesday, 18 November 2009, the appellant sent the protected person up to 30 text messages, from his mobile telephone to the one used by her. The messages were not responded to. They were not sent in a manner intended to threaten or intimidate the protected person, and they were not of a threatening or intimidating character.
This was the first offence.
Two days after the end of the period of the first offence, on 20 November 2009, at a time not indicated in the submissions to the learned magistrate, the appellant went to the Karratha Women's Refuge (the Refuge). The Refuge was the protected person's residential address, as the appellant knew. The appellant believed the protected person was there at the time. The protected person's Ford Falcon vehicle was in a car park directly in front of the Refuge. The appellant wrote in the dust on the rear window of the Falcon the following: 'I am a dead man walking'. He was referring to his personal state of mind.
This was the second offence.
At the hearing before the learned magistrate, counsel for the offender described the appellant going to 'Mental Health' shortly after the appellant had committed the second offence and him having 'grave concerns for his state' (ts 4).
On 25 November 2009, at about 5.23 am, the appellant returned to the Refuge. He again went to the protected person's Falcon. Using a high‑visibility vest, he rubbed out what he had previously written on the rear window. He then approached the front of the Falcon, and hung from its right side mirror or windshield either his vest or a high‑visibility vest of the protected person which he had had at his home. He then left the area.
This was the third offence.
The appellant was arrested that same day, and was interviewed. He explained 'I just wanted to talk to her'.
At the hearing on 26 November 2009 before the learned magistrate, after the appellant had pleaded guilty to all three offences and the prosecutor had described the circumstances of the offending and the interview, counsel for the offender as part of his plea in mitigation stated to the learned magistrate that the appellant was going 'to continue to undergoing [sic] counselling with respect to the separation' (ts 4). Counsel also referred to the appellant's age (48), his work as a caretaker and for a fencing company doing fencing work, his having been in the Pilbara for 25 years, and his criminal record as not containing 'anything to suggest other than traffic matters, that there is any history of violence or breaching court orders' (ts 4). Counsel stated he was seeking the imposition of a fine for each of the three offences.
It was common ground before me that the criminal record of the appellant consisted almost entirely of convictions for traffic offences. I note there were no convictions since 2002, most convictions were for driving without a valid driver's licence or driving an unlicensed vehicle, and none of the convictions had resulted in a penalty more severe than a fine and a licence disqualification.
Following the initial submissions of counsel for the offender, the learned magistrate indicated that with respect to the first offence he was 'prepared to impose fines', but added 'after that, the next two breaches, I don't think that is going to be adequate' (ts 4).
Counsel for the offender then put to the learned magistrate the 'other possibility ... with respect to the second breach, it was with reference to his mental health', while with the third breach the appellant had done what he did as he was 'concerned about what he had written' (ts 4). Counsel submitted that, if the learned magistrate was considering anything other than fines for those two offences, a community based order should be used 'to ensure that his mental health is monitored' (ts 4).
The learned magistrate, after inviting the prosecutor to say anything further, and after the prosecutor had declined the invitation, delivered the following short sentencing remarks (ts 5):
HIS HONOUR: … Stand up, Mr Lutey. Mr Lutey, a violence restraining order restrains you from having contact with this woman. As painful as the separation may be and as confusing as the whole issue may seem to you, the fact is she doesn't want to see you, she doesn't want to talk to you; that's the end of the story. She has got a restraining order and it will be enforced.
In relation to the original - that is, the SMS's that you have sent to her - you will be fined $300 in respect of that matter. As to the attendance on her premises sometime towards the end of November, I consider that to be far more serious and I think an imprisonment sentence is appropriate, but I am going to suspend the imprisonment sentence for a period of two years, which is the period of the violence restraining order.
If you breach this violence restraining order again, you will breach the suspended imprisonment order and I will send you to gaol and I will send you to gaol for seven months. Do you understand?
LUTEY, MR: Yes, sir.
HIS HONOUR: In relation to the final count, that is, returning and wiping off the original message and leaving the high-vis, I will take your counsel's suggestion and I will put you on a community based order for 12 months with supervision and program requirements, which means they will link you into the Mental Health people; they will assist you with counselling or whatever else you need in order to deal with the problems.
Again, whilst it is not difficult to understand the confusion and hurt that you are feeling, the fact is you've got to leave this woman alone. It's not going to happen.

This appeal

By appeal notice dated 14 December 2009, the appellant applied for leave to appeal the sentence for the second offence on the following grounds:
1.The Learned Magistrate erred in law in failing to adequately consider sentences other than imprisonment when imposing a sentence of 8 months imprisonment suspended for 12 months.
2.The Learned Magistrate erred in law in imposing a sentence of 8 months imprisonment suspended for 2 years as such a sentence was manifestly excessive given:
(a)The circumstances of the offence;
(b)The plea of guilty;
(c)His record of convictions;
(d)The personal circumstances of the Appellant;
(e)Sentencing standards for offending of this type.
It was common ground that the reference to '8' months in grounds 1 and 2 was in error, and should be read as 7 months. I also note that the reference to '12 months' in ground 1 should be to 2 years, as in ground 2.
On 29 December 2009, Jenkins J granted leave to appeal on those grounds.
I turn now to the grounds.

Ground 1: failure to adequately consider sentences other than imprisonment

There was no contest as to the principles applicable to this ground, which was treated by the parties as if it included inadequacy, not only of consideration, but also of reasons for decision.
Sentencing Act 1995 (WA) s 39(2) (Sentencing Act) sets out the sentencing options for an offender who is a natural person. Those options include a fine (s 39(2)(c)), a community based order (CBO) (s 39(2)(d)), an intensive supervision order (ISO) (s 39(2)(e)), suspended imprisonment (s 39(2)(f)), conditional suspended imprisonment (CSI) (s 39(2)(g)) and finally a term of imprisonment (s 39(2)(h)).
An ISO may be imposed only if the court has received a presentence report for the offender (Sentencing Act s 68). There was no such report called for in this case.
A sentence of imprisonment must not be imposed unless the court decides either that the 'seriousness of the offence is such that only imprisonment can be justified' (Sentencing Act s 6(4)(a)), or the 'protection of the community requires it' (s 6(4)(b)).
Suspended imprisonment is not to be imposed 'unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances' (Sentencing Act s 76(2)).
A court must not use a sentencing option in Sentencing Act s 39(2) 'unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option' (s 39(3)). Sentencing Act div 1 pt 2 contains the statement of sentencing principles in s 6 as well as s 7 (aggravating factors) and s 8 (mitigating factors).
It follows from those provisions that before a sentence of suspended imprisonment is imposed, it must be determined that a suspended sentence involving a term of imprisonment of that duration is an appropriate disposition of the matter in accordance with Sentencing Act s 39(3) and s 6(4): Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [13] ‑ [15] (Gleeson CJ and Hayne J).
I am of the view that there are indications in the learned magistrate's sentencing remarks sufficient to show he had considered the options of a fine, a CBO and an ISO, and determined on imposing a sentence of imprisonment, in accord with those provisions.
Further, I am of the view that those indications met the principles for the provision of adequate reasons for his sentencing, or at least were such that there is no reason for the court to intervene on the ground of inadequate reasons.
There was no contest as to the principles for appellate intervention on the basis of lack of adequate reasons for a sentencing in a case like this one.
Those principles are shortly and sufficiently stated for my purposes in Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA, with whose judgment Roberts‑Smith JA agreed):
I hasten to add, however, that a sentencing Judge is not in every case required to mechanically work through each of the options set out in s 39(2). See Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 at 6 - 7; Samuel [Samuel v The State of Western Australia [2004] WASCA 154] ... at [31] ‑ [32]. There are many cases where a serious offence has been committed and where sentence of imprisonment will be imposed without any reference to some of the other sentencing options listed in s 39(2)(a) to (f).
That statement needs to be read with the statement from Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29] that, while 'inadequacy of reasons does not necessarily amount to an appealable error', an inadequacy 'such as to give rise a miscarriage of justice' may lead an appeal court to 'intervene'.
In this case, I take the relevant indications to be in part the learned magistrate's assessment of the second offence as 'far more serious' than the first offence for which he imposed a fine, and in relation to the third offence, his statement that he would 'take your counsel's suggestion' and impose a CBO. This last was in my view a clear reference to counsel's characterisation of the third offence as having been committed because the appellant was 'concerned about what he had written'.
There is no reference to an ISO in the sentencing remarks. However, I am satisfied the learned magistrate had considered that option, in the context of a requirement for a pre-sentence report before such an order may be made. This is in view of the following exchange between counsel for the offender and the learned magistrate at the conclusion of counsel's submissions as to the possibility of a CBO (ts 4 ‑ 5):
MARTELLA, MS: … if your Honour would consider that without a pre‑sentence report. Alternatively ‑ ‑ ‑
HIS HONOUR: We can do a community based without a pre‑sentence?
MARTELLA, MS: You can do a community based, I believe, without a pre‑sentence report; just not an ISO.
HIS HONOUR: Anything further?
MARTELLA: No.
Counsel for the appellant put to me that the sentencing remarks were inadequate or at least such as to justify appellate intervention, in view of the facts that the appellant had not previously received a CBO or an ISO, and that the learned magistrate imposed a CBO for the third offence. As I understood his submission, the form of miscarriage upon which he relied was that the reasons for decision were not sufficient to enable an appeal court to consider and determine whether or not the decision was erroneous. This is a well accepted basis for intervention for miscarriage: see Marshall v Lockyer [2006] WASCA 58 [343] (Murray AJA) and the authorities referred to there.
However, it is clear to me, from the indications I have described that there was no inadequacy in the learned magistrate's reasons productive of a miscarriage as to the difference in treatment of the second and third offences.
At the same time, the matter of the appellant's record relied upon by counsel for the appellant is not addressed in the sentencing remarks. However, it seems to me that the learned magistrate had clearly identified the level of seriousness of the second offence as the factor which was determinative in his deliberations. The appellant's criminal record was clearly before the learned magistrate. The learned magistrate's task was to weigh the matters relevant to sentencing, and he had indicated how he had done that. I am therefore unable to see any inadequacy of reasons of the type counsel for the appellant relied upon in respect of the appellant's criminal record.
It follows I do not uphold ground 1.

Ground 2: sentence manifestly excessive

As I indicated in Powell v The State of Western Australia [2010] WASC 54 [62], I have recently described, in Sakkers v Thornton [2009] WASC 175, what appear to be the general principles applicable to a ground of this nature.
In Sakkers [50] ‑ [52] I referred to Furber v The Queen [2008] WASCA 233 among other authorities as follows:
A convenient general statement of those principles is in R v Taitand Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:
An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336‑40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1‑17 at 15).
See also House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).
In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber [46] (Murray AJA); see also [1] (Buss JA) and [2] (Miller JA).
See also Sheppard v Blakely [2001] WASCA 309 [15] (McLure J); and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, [15].
Manifest excessiveness may be seen in the choice of the wrong type of sentence, such as a custodial rather than a non-custodial one: see Dinsdale [6] (Gleeson CJ and Hayne J).
Sheppard [17] states that the matters I should consider in determining whether or not a sentence is manifestly excessive are as follows:
Further, to determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of the seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.

I do not consider there was any contest between the parties as to this account of the applicable general principles.
I turn then to the matters I should consider in this case, beginning with the maximum sentence prescribed by the law for the crime.
The penalty for the offence in Restraining Orders Act s 61(1) at the time of the three offences and currently was and is a fine of $6,000 or imprisonment for 2 years or both. That was an increase in that penalty made by Acts Amendment (Family and Domestic Violence) Act 2004 (WA), in force 1 December 2004. The previous penalty depended on the duration of the violence restraining order. If it was 72 hours or less, the penalty was a fine of $2,000 or imprisonment for 6 months; otherwise, the penalty was a fine of $6,000 or imprisonment for 18 months. This increase is a matter which is relevant to the assessment of sentences imposed for offending subject to the previous penalty. That is because courts should see an increase in the statutory penalty as Parliament requiring them to 'regard offences of that kind more seriously in the future': The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [35] (Wheeler and Pullin JJA, with whose judgment Owen JA agreed).
I turn then to the standards of sentencing customarily observed with respect to the offence in Restraining Orders Act s 61(1). This I take to be the matter to which ground of appeal 2 particular (e) directs my attention.
I have recently reviewed the authorities in this court on sentencing for the offence in Restraining Orders Act s 61(1): see Cullen v Rollings [2009] WASC 80 [28] ‑ [42], [64] and [71]. All but one of the authorities discussed there concerned sentencings for the offence in Act s 61(1) to which the previous penalty applied. The exception, apart from Cullen itself, is Forward v Bower [2007] WASC 205, where sentences of imprisonment to be immediately served for three offences of breach of a violence restraining order were appealed against on three bases. Those bases were that all of the sentences in that case, which included sentences for offences other than the breaches of a violence restraining order, should have been non-custodial; the total sentence for all of those offences was manifestly excessive; and the individual sentences in that total, with the exception of the least severe sentence for breach of a violence restraining order, were each manifestly excessive.
In Forward the offender had pleaded guilty to all of the offences of breach of a violence restraining order. The first offence involved a text message and it seems a telephone message, described by the sentencing magistrate as a 'fairly innocuous breach' ([13]), for which a sentence of 1 month was imposed. The second and third offences had involved the offender approaching the protected person on different days, each time grabbing her and causing her injury, for each of which he was sentenced to 7 months' imprisonment. None of these sentences was disturbed on appeal, except to make the third offence of breach of a violence restraining order concurrent with the sentences for the other offences on the same day.
In Cullen the sentencing was for an offence of breaching the violence restraining order. There I set aside the sentence of 7 months' imprisonment, suspended, which was on a conviction on a plea of guilty. The offence involved phoning a cafe where the protected person worked: the offender had not intended to speak with her, but she picked up the phone. The offender then made threatening and intimidating comments to her.
In addition to authorities reviewed in Cullen, and that case itself, counsel for the appellant drew my attention to two other authorities.
One was Dominik v Kay [2003] WASCA 174, which was, however, a successful appeal against conviction, not sentence. I note, however, that the magistrate's sentence of 4 months' imprisonment for each of the two offences of breach of a violence restraining order in that case was for offences to which the previous penalty applied. The offences both involved threatening physical behaviour to and the use of a spray directed at one of the protected persons.
The other authority was Bastin v Edwards [2009] WASC 346, where McKechnie J dismissed an appeal against a sentence of 14 months' imprisonment, made up it appears of a sentence of 10 months' imprisonment for criminal damage and 4 months each for three offences of breach of a violence restraining order, with the sentence for the last of the three breach offences made cumulative on the other offences. The appellant had pleaded guilty to those offences. The appeal was on the ground of manifest excessiveness. The offences of breach of a violence restraining order appear to have involved one offence of the offender coming on to the place where his former partner was living, where he committed the offence of criminal damage to her new partner's car, and two other offences of later making threatening telephone calls to her in each case.
None of the authorities concerned sentencing after the coming into effect of the repeal by Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) of the 'transitional provisions' requiring the reduction by one-third of a sentence of imprisonment otherwise to be imposed. However, BLM [42] (Wheeler and Pullin JJA, with whose judgment Owen JA agreed) states that the effect of the change on the assessment of sentences imposed during the period to which those transitional provisions applied is as follows:
In our view, therefore, the effect of the Amendment Act is simply this: in the general run of cases, sentences imposed subsequent to the Amendment Act must be imposed in a way which ensures consistency between the minimum custodial period to be served under a sentence following the Amendment Act with the minimum custodial period in respect of an offender committing a comparable offence before the Amendment Act, either under the transitional provisions, or under the regime preceding the transitional provisions. In the worst category of cases, the Amendment Act permits the court to impose a sentence at, or close to, the maximum term available, without adjustment so as to ensure comparability with previous minimum custodial terms. Whether, in any particular 'worst category' case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle. 'Worst category' is, of course, to be understood as Mason CJ, Brennan, Dawson and Toohey JJ described it in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478:
… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) 163 CLR 447 at 451 ‑ 452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.
All of the sentences in Forward, Cullen and Bastin were transitional period ones. In none of those sentences, or the other sentences of imprisonment for breach of violence restraining order in the authorities to which I have referred, was (so far as I can tell) an order made denying the offender eligibility for parole. None of the sentences in any of these authorities was a case in the 'worst category', in my view, while it was not put to me that the present case fell into that category.
I indicated in Cullen [42] that there is, in three authorities on sentencing before the increase in the statutory penalty for the offence in Restraining Orders Act s 61(1), statements as to the general approach to sentencing for that offence committed in the circumstances to which those authorities may be taken to relate.
The approach is 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).
Further, as I have indicated, the increase in the statutory penalty should cause the courts to regard breaches more seriously.
However, this approach does not require use of custodial penalties in all cases, as Cullen itself indicates, particularly having regard to Sentencing Act s 86, preventing a court imposing a sentence of 6 months or less, with certain exceptions, none of which applied in that case and none of which applies here. Nor in my view does it involve no account being taken of subjective or mitigating factors, particularly in cases which, unlike Volpi, did not involve threatening or intimidating conduct.
I turn then to the place which the criminal conduct in this case occupies in the scale of seriousness of crimes of the present type, offences in Restraining Act s 61(1).
In that respect I note the matters to which the appellant drew my attention for the purposes of particular (a) of ground 2 as tending to show the offence here, while serious, was of a less serious kind. One matter was that the relationship of the appellant with the protected person had been one of seven years whose end had taken him by surprise, which I took to be a matter to be considered with the further matter pressed on me of the lack of any indication of any offence or serious misconduct that had led to the making of the VRO. See Cullen [48], [51]. However, I should immediately note that in this case that has only a limited bearing on my assessment of the offending: see Cullen [49], [50].
Further, counsel submitted, while appellant had been near a place where the protected person was residing, there was no evidence of contact with the protected person and no other evidence she was there at the time. This leaves aside the appellant's belief as to her being there then, which appears to me to be justified, given that there is no evidence the appellant attempted to approach an entry to the Refuge. See Cullen [52]; see also Bastin where, unlike Cullen, there was proximity to where the protected person was living but there appears to have been no other evidence of either sort.
Further, and in my view most importantly, there was here, unlike in either of the other two cases, no conduct of a threatening or intimidating sort, which on counsel's submission made the present case even less serious than Cullen, and in my view rather more clearly less serious than Bastin. This case was in my view also substantially less serious than the two more serious offences in Forward.
However, counsel for the respondent put to me that in assessing the place of the conduct in this case in the scale of seriousness of offences of the present type I must also take account of the fact that the appellant's conduct should be seen as directed at a person who had recently been hospitalised for some heart treatment and who was living in a women's refuge, and that the wording he had written on the rear window of her Falcon might reasonably be understood as an indication of the potential for self‑harm.
The first two respects go in my view to make the second offence more serious than otherwise, but in the absence of evidence of the impact of the offending on the protected person I consider that the effect is not such as to make the offending substantially more serious.
However, in the last respect, concerning the indication of the potential for self‑harm, I note that counsel for the appellant acknowledged it could be inferred from the appellant seeing Mental Health that he was at risk of self‑harm. In that respect also, counsel for the respondent drew my attention to Victorian legislation corresponding to our Restraining Orders Act, which I took to be a reference to the Family Violence Protection Act 2008 (Vic) (Family Violence Protection Act). Family Violence Protection Act s 5(1) defines 'family violence' for its purposes as including behaviour by a person towards a 'family member' that is 'emotionally abusive'. The phrase 'family member' is defined by s 8(1)(b) to include a person who is or has been in 'an intimate personal relationship' with the 'relevant person', while 'emotional abuse' is defined by s 7 as behaviour that 'torments, intimidates, harasses or is offensive' to another, and the example is given of 'threatening to commit suicide or self‑harm with the intention of tormenting or intimidating a family member'.
I accept that a threat of self‑harm intended to cause distress or other hurt to another, or producing that effect, is a factor capable of aggravating the offence of breach of violence restraining order in Restraining Orders Act s 61(1). However, there was in my view no evidence before the learned magistrate clearly pointing to a threat of self‑harm made with such an intention or having that effect. The wording is in my view not capable of clearly being seen to have as a natural or probable effect such distress or other hurt. True it is counsel for the offender in submissions to the learned magistrate referred to the protected person as the 'complainant', which is capable of being a relevant factor in sentencing for offences of the present type at least where there is also a victim impact statement (Cullen [73]). However, there was no victim impact statement or other direct evidence of the effect of the second offence on the protected person here, and I do not consider that the fact, if it was a fact, that the protected person was the complainant, on its own, goes to show that she suffered distress or other hurt of the sort to which counsel for the respondent pointed. I note that the prosecutor did not press any such point on the learned magistrate. Thus, I do not consider I should attach significant weight to the fact the wording on the rear window of the Falcon may have indicated an intention by the appellant to harm himself.
In sum, I consider that the present offence occupies a place on the scale of seriousness of offences of the present type more like the cases of communication with the protected person not involving threats or intimidation as in Pillage, Kenny and the least serious offence in Forward.
In Pillage, on a resentencing, fines were imposed, the larger fine being for entry to the protected person's bedroom and speaking with her there, the lesser fine for eight telephone calls over a period of about 6 1/2 hours. In my view, the former offence was closer to the present offence than the latter. In Kenny the breaches involved leaving for the protected person a cassette of music and a letter, and subsequently the sending of a letter from gaol, where neither letter contained any threats or indeed any unpleasant remarks, Kennedy J (at 5) commenting that if anything they were directed towards a possible reconciliation between the parties. There a sentence of 3 months' imprisonment in each case was reduced to 1 month, where one of the exceptions to the then counterpart of Sentencing Act s 86 applied.
Both Pillage and Kenny concerned, as I have indicated, sentencings for offences to which the increase in statutory penalty did not apply. However, I also note Forward, so far as it concerned the sentence of 1 month imprisonment for the least serious of the breaches of violence restraining order, where the increase in the statutory penalty did apply, and where one of the exceptions to s 86 also applied.
True it is, as counsel for the respondent emphasised, that the effect of Sentencing Act s 86 read with the statutory penalty in Restraining Orders Act s 61(1) is to leave a relatively small range of possible terms of imprisonment for offences of breach of a violence restraining order to which none of the exceptions in s 86 apply. However, it seems to me that this is an unavoidable feature of the conjoint operation of those provisions.
True it also is, as counsel for the respondent pointed out to me, that there was in this case no suggestion of consent by the protected person to the conduct of the offender, as in Pillage in the case of the more serious offence. Further, there was here evidence of pre-meditation and planning, although I consider that distinguishes this case from Cullen, as counsel submitted, not from Pillage or Kenny. The matter is unclear in Forward.
Further, counsel for the respondent submitted, the present offence occurred in the context of prior offending involving text messages and a subsequent offence involving rubbing out the message. However, in my view the nature of those other offences also calls for consideration, which does not go to show a consistent course of conduct, or a course of conduct of escalating seriousness. Indeed, in the progression from the second to the third offence it appears the offender's course of conduct is one of significantly diminishing seriousness.
In my view these additional matters are not sufficient to change the location of the present offence in the scale of offending so as to place it at a significantly more serious location.
Counsel for the respondent also pressed on me that the offences occurred in the remote Pilbara region, which counsel said had the second highest rates of violence against women in the state. Also, she pointed out that there were data showing that remote areas have about five times the rate of domestic violence than capital cities.
I accept without deciding that I can take judicial notice of these matters, and that I should regard them as going to the prevalence of offences of domestic violence to which the Restraining Orders Act is part of the legal response. On the relevance of the prevalence of offending of a particular type, see Yates v The State of Western Australia [2008] WASCA 144 [55] (Steytler P), [94] (McLure JA). I also accept without deciding that sentences for the same offending committed in different parts of the state may be affected by differences in the prevalence of that offence in those parts of those magnitudes. However, I note that counsel was unable to refer me to authority for that last approach.
On that acceptance I consider that the second offence may be seen to be more serious than otherwise. However, given the nature of the conduct in this case, with no element of physical threat or intimidation, in my view that acceptance does not place that offence at a significantly different point in the scale of seriousness than is occupied by the offences in Pillage, Kenny or the least serious offence in Forward.
I turn now to the personal circumstances of the appellant.
In this respect ground 2 directed my attention in particular (b) to the appellant's plea of guilty, which it was accepted was a fast‑track plea; in particular (c) to his criminal record; and in particular (d) to his 'personal circumstances'. The last was a reference to his age at the time of offending, his employment and the fact he was seeing a mental health service where, it might be inferred, he was receiving counselling.
It is convenient I deal first with particular (b).
In Cullen [102] I noted that a criminal record might go to reduce the weight to be given to mitigating factors: see Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 [71] (Roberts‑Smith J). However, the record in this case, unlike that in Cullen or in Kenny, did not involve any convictions for offences of violence. Further, unlike those cases, the most recent offence was committed some significant time (7 years) before the present offences.
At the same time counsel for the respondent directed my attention to the character of the record as suggesting, as the offender's driving record in Kenny suggested to the sentencing magistrate in that case (at 7), an indifference to lawful authority. However, in my view the nature of the prior offences, as driving ones, and the break in the record, prevents the three offences here as being seen as manifesting a continuing attitude of disobedience to lawful authority. See on such a manifestation Dragonv The State of Western Australia [2008] WASCA 252 [58] (Buss JA, with whose judgment in this respect Miller and McLure JJA agreed).

On balance I do not consider the appellant's criminal record makes for a significant reduction in the weight of mitigating matters that might be put in this case.
The principal mitigating matter is the fast‑track plea of guilty. As to such a plea of guilty, as in Cullen, it was not in contest that the plea was relevant both to whether or not a sentencing disposition of imprisonment was appropriate and, if it was appropriate, to the length of the term of imprisonment. I consider that on Volpi [80] the weight of such a plea might be less than otherwise. However, in a case occupying the place in the scale of seriousness I have described, and having regard to Sentencing Act s 86, I consider that a sentence of imprisonment following such a plea would fall outside the range of a sound exercise of sentencing discretion.
This conclusion in my view makes it unnecessary to consider the personal circumstances in ground 2 particular (d), as it is not suggested that those circumstances are capable of being viewed as aggravating.
I should note, however, that the appellant was not a younger offender: compare Cullen, where the offender was 21. There is no significant mitigation that results from his age.
Nor do I see significant mitigation from his employment, except so far as that employment would indicate that a non-custodial disposition might be more confidently determined upon than might otherwise be the case.
At the same time there was an indication of a mental condition in this case giving rise to a risk of self‑harm, a condition which, unlike Cullen ([50]), might be clearly seen to have contributed to his offending. In respect of that contribution, the contrary had at first appeared to me. However, it seems to me on a close reading of the submissions of counsel for the offender to the learned magistrate, with which the prosecutor took no issue, and which the learned magistrate appeared to recognise in his sentencing remarks with respect to the penalty for the third offence, that contribution is shown here. This is notwithstanding the lack of a report from any mental health professional.
In my view that contribution goes to lessen the weight otherwise to be assigned to general deterrence. Further, the evidence before the learned magistrate that the appellant had after the second offence, sought assistance from 'mental health' goes to reduce the significance of special deterrence in this case. See on the relevance of a mental condition to sentencing in those two respects Powell [36] and the references there.
It follows I would uphold ground 2.

Conclusion and orders

As I have upheld ground 2, I would allow the appeal and set aside the sentence appealed against.
I have also concluded that it is appropriate I should resentence the appellant.
I have considered whether or not to order to a presentence report to determine whether to impose an ISO in this case. While I consider there is a significant difference between the seriousness of the second and the third offences, in my view it is not necessary to order a presentence report. This is because in my view it would be appropriate to impose a CBO for the second offence, in the same terms as for the third offence. This is in view of the way the appellant responded to the second offence, both in seeking assistance from a mental health service, and in returning to the Falcon to rub out the wording on its rear window.
I will hear from the parties as to the orders to give effect to these conclusions.