Mills v Hawley
[2013] WASC 261
•3 JULY 2013
MILLS -v- HAWLEY [2013] WASC 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 261 | |
| Case No: | SJA:1056/2013 | 3 JULY 2013 | |
| Coram: | ALLANSON J | 3/07/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1 and 2 Appeal allowed on ground 1 Sentence set aside and remitted to Magistrates Court | ||
| B | |||
| PDF Version |
| Parties: | TRAVIS LUKE MILLS GEOFF HAWLEY |
Catchwords: | Criminal law Appeal against sentence Suspended imprisonment Need for term to be appropriate if it could not be suspended Breach of restraining order by repeated but not threatening communication Turns on own facts |
Legislation: | Restraining Orders Act 1997 (WA), s 61, s 61A Sentencing Act 1995 (WA), s 6(4), s 9AA(5), s 35, s 76(2), s 77(6) |
Case References: | Baudoeuf v Venning [2010] WASC 322 Cullen v Rollings [2009] WASC 80 Hagart v Viles [No 2] [2010] WASC 313 Lutey v Jacques [2010] WASC 78 Nevermann v The Queen (1989) 43 A Crim R 347 Sheppard v Blakey [2001] WASC 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GEOFF HAWLEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V C EDWARDS
File No : MH 910 of 2013
Catchwords:
Criminal law - Appeal against sentence - Suspended imprisonment - Need for term to be appropriate if it could not be suspended - Breach of restraining order by repeated but not threatening communication - Turns on own facts
(Page 2)
Legislation:
Restraining Orders Act 1997 (WA), s 61, s 61A
Sentencing Act 1995 (WA), s 6(4), s 9AA(5), s 35, s 76(2), s 77(6)
Result:
Leave to appeal granted on grounds 1 and 2
Appeal allowed on ground 1
Sentence set aside and remitted to Magistrates Court
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
Respondent : Ms R Young
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Baudoeuf v Venning [2010] WASC 322
Cullen v Rollings [2009] WASC 80
Hagart v Viles [2010] WASC 200
Lutey v Jacques [2010] WASC 78
Nevermann v The Queen (1989) 43 A Crim R 347
Sheppard v Blakey [2001] WASCA 309
(Page 3)
1 ALLANSON J: (These reasons were delivered orally and have been edited from the transcript).
2 On 8 March 2013 in the Magistrates Court at Mandurah, Travis Luke Mills pleaded guilty to a charge that between 4 July and 20 August 2012, having been personally served with a violence restraining order, he breached that order by phoning and sending text messages to the person protected by that order. He was sentenced to imprisonment for 7 months, suspended for a period of 12 months. Mr Mills seeks leave to appeal that sentence.
3 Mr Mills had been represented by a duty lawyer and is now represented by Legal Aid. The application for leave to appeal was brought a little over two weeks out of time. There is an affidavit explaining the delay, most of which is attributable to delay in obtaining necessary paperwork. Even after the application was filed there was delay in obtaining transcript of the hearing in the court below. I am satisfied that time should be extended.
4 The offence was serious. Mr Mills sent about 49 text messages and made 31 phone calls on a daily basis between 4 July and 20 August in breach of a violence restraining order. The circumstances under which that order were obtained are not before me, but I note it is a violence restraining order and not a misconduct order. Mr Mills has one prior conviction for an offence of a similar nature. On 20 July 2012 he was convicted of breaching the same violence restraining order and fined $750.
5 It was accepted by the prosecution that the text messages were not threatening and, as I understand it, the phone calls were not answered. But it is a particularly serious aspect of the current offence that the offending behaviour continued immediately after he had been dealt with by the court for breaching the order.
6 Mr Mills was only 19 at the time of the offence and at the time of sentencing was 20. He has limited income and, as the magistrate ascertained in court, $2,200 outstanding in fines. Mr Mills and the person protected by the order had previously been in a relationship and have a 2-year-old child. Mr Mills had told investigating officers, and it was not disputed by the prosecution, that he was attempting to make arrangements to see his child. He had, at the time of the hearing, obtained no family law advice.
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7 Mr Mills was only charged with the offence on 7 March 2013, over seven months after the last of the messages or calls which constitute the offence. I do not know why there was such a delay. It is significant that the prosecution did not allege that he had offended during that period. He pleaded guilty on 8 March. After hearing the plea in mitigation, her Honour advised that she was considering a suspended term of imprisonment:
to bring home to Mr Mills that this behaviour is totally unacceptable it doesn't matter what the content of the messages are. The fact is, it breaches a restraining order and in the context of having appeared in this court during the time and before the time that he continued making these contacts with a protected person.
8 Defence counsel submitted that the position had not yet been reached where imprisonment was called for. The magistrate did not agree. In sentencing she said:
One has to ask, you know, what does the court have to do to bring home to you, Mr Mills, that breaching the order is totally unacceptable? It doesn't matter that the phone calls and text messages were non-threatening, only to the extent of mitigation. The point is each of them breached the order and you would have been well aware of that when you were sending these messages and making these phone calls, having pleaded guilty andbeing dealt with in this court for the very same offending. You haven't reached the stage under the legislation where a mandatory term of imprisonment should be imposed. However, the fact that you continued to offend immediately following your appearance in this court for the same offence leads me to the conclusion that you ought to be dealt with more severely than otherwise and it's my view that a suspended term of imprisonment will bring home to you that you simply cannot behave like this and it will be hanging over your head for 12 months, so that if you do commit an offence during that 12 month period, and in particular if you make any contact with the protected person in breach of the order, that the court will no doubt order that you serve the seven months that I'm going to suspend today.
9 I have quoted at such length because that effectively is all that her Honour said by way of the factors relevant to sentence.
10 Mr Mills originally sought leave to appeal on a single ground that the learned sentencing magistrate erred in imposing a sentence of imprisonment, albeit suspended, in circumstances where the seriousness of the offending was not such that only a sentence of imprisonment could be justified. At a late stage, the appellant applied to add a further ground that the learned sentencing magistrate erred in failing to reduce the appellant's sentence to give credit for his early plea of guilty.
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11 The application to amend was not opposed and I will allow the second ground to be added to the appeal. It is still necessary to consider whether leave should be granted for that and for the first ground.
12 Under s 61 of the RestrainingOrders Act 1997 (WA), a person who is bound by a violence restraining order and who breaches that order commits an offence and is liable to a penalty of $6,000 or imprisonment for 2 years or both. Under s 61A, introduced in 2012, if a person has committed and been convicted of at least two offences within the period of two years before the conviction of the offence for which he or she is to be sentenced, the person is to be sentenced for a 'repeated breach'. The penalty imposed must be or include imprisonment unless that would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the person protected or the community generally. I note those two requirements under s 61A are cumulative.
13 Counsel for the respondent submitted that the introduction of s 61A is relevant in that it confirms that imprisonment is an appropriate disposition in sentencing for offences of this kind, and also requires the courts to regard offences of this kind more seriously in the future. Two comments may be made to this submission. First, Mr Mills had not reached the stage where the court was required to impose a sentence of imprisonment.Accordingly, for the current offence the court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence was such that only imprisonment could be justified or the protection of the community requires it: Sentencing Act 1995 (WA) s 6(4). Counsel for the respondent did not submit otherwise. Even when a term of imprisonment is suspended, such a sentence 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). Although s 76 refers to whether the term would be appropriate, it does not, in my opinion, detract from s 6(4) under which the court must consider whether only imprisonment could be justified or the protection of the community requires it.
14 Second, regarding an offence seriously does not exclude a penalty other than imprisonment.Her Honour did not refer to the considerations set out in s 6(4) of the Act. It is not necessary for a magistrate to expressly name all the possible alternatives and the reasons for rejecting them: see, for example, Nevermann v The Queen (1989) 43 A Crim R 347, 350 and Sheppard v Blakey [2001] WASCA 309 [25]. But the effect of the magistrate's decision in this case must be that only imprisonment is
(Page 6)- justified and that a sentence of imprisonment for 7 months is appropriate. Having regard to the second ground of appeal, her Honour must either have taken the view that no discount should be given for the early plea; alternatively, that a sentence of 7 months after an appropriate discount for an early plea of guilty, is the sentence that would be appropriate. Had her Honour imposed such a sentence to be served immediately, it being a sentence less than 12 months, she would have been required to give written reasons why no other option was appropriate: Sentencing Act s 35. Written reasons include transcribed oral reasons.
16 The sentencing remarks suggests that the guiding consideration was not that what he had done had called for a sentence of imprisonment, but rather the salutary effect of having that penalty hanging over him should he choose to again ignore the order of the court. The reasons, in my view, display error.
17 I am also not satisfied that imprisonment was the only appropriate sentencing option for Mr Mills. Counsel for the respondent has properly submitted that imprisonment may be appropriate for an offence under s 61 of the Restraining Orders Act, even before one reaches the stage of mandatory imprisonment under s 61A. The principles relevant to sentencing for this offence are discussed in several decisions of the court. I refer in particular to Cullen v Rollings [2009] WASC 80; Lutey v Jacques [2010] WASC 78; Hagart v Viles [2010] WASC 200 and Baudoeuf v Venning [2010] WASC 322.
18 Both parties have referred me to range of cases in which penalties have been imposed for breach of a restraining order, some of which resulted in a sentence of imprisonment. The range of factual circumstances is wide and the range of sentences imposed is equally wide. There can be no tariff.
19 Despite the undeniable seriousness of Mr Mills' conduct, I am not satisfied, having regard to his youth and the circumstances of the
(Page 7)- offending, including that neither violence nor threat of violence was involved and the seven months that had elapsed at the time of sentencing since his last offending conduct, that only imprisonment could be justified or that the protection of the community or the protected person required it. I particularly take into account that in thesentencing remarks her Honour referred to none of those mitigating factors. She did not refer to youth. She did not refer to the circumstances of the offending, other than the comment that the fact that the messages were not threatening was relevant only to mitigation.
21 In the present case it may be that her Honour did not state the reduction because she was not considering an immediate term of imprisonment but moved directly to a suspended term. If she had given full effect to the discount in s 9AA, she was starting from a head sentence of more than 9 months, for a 19-year-old man in these circumstances.
22 In any event, it is not necessary in this case for me to finally determine the effect of her Honour not referring to s 9AA(5). I am satisfied that ground 1 has been made out, and that a sentence of imprisonment was not the only appropriate penalty for Mr Mills in these circumstances. I grant leave with regard to each ground of appeal. I allow the appeal on ground 1. It is unnecessary for me to say anything further about ground 2.
23 Having allowed the appeal, it is necessary to set aside the sentence imposed of 7 months' imprisonment, suspended for a period of 12 months. It may be that there are community based or other orders which are appropriate for a man so young. I have not seen a full plea in mitigation or his personal circumstances, but the compulsive nature of the behaviour suggests that he was not coping particularly well with the question of access to his 2-year-old child.
(Page 8)24 It would be very difficult for this court to arrive at an appropriate penalty. The proper course is to send it back to the Magistrates Court so that the range of available sentencing options other than imprisonment can be properly considered.
25 I order that the case is to be dealt with again by a court of summary jurisdiction. I will make no order about by whom that court is to be constituted, or as to how it is to deal with the case.
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