MILLS -v- HAWLEY [2013] WASC 261

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 261
Case No:	SJA:1056/2013	Heard:	3 JULY 2013
Coram:	ALLANSON J	Delivered:	3/07/13
No of pages:	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
Category:	B
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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

CITATION : MILLS -v- HAWLEY [2013] WASC 261 CORAM : ALLANSON J HEARD : 3 JULY 2013 DELIVERED : 3 JULY 2013 FILE NO/S : SJA 1056 of 2013 BETWEEN : TRAVIS LUKE MILLS

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mills v Hawley

Details

AGLC: MILLS -v- HAWLEY [2013] WASC 261
Case: [2013] WASC 261
Decision Date: 3 JULY 2013

CaseChat Overview and Summary

The appellant, Mills, appealed against his sentence for breaching a restraining order. The respondent, Hawley, sought enforcement of the sentence imposed by the Magistrates Court. The appeal was heard in the Supreme Court of Victoria. The appellant argued that the sentence of six months' imprisonment, wholly suspended for two years, was inappropriate given the nature of the breach. The appellant claimed the breach involved repeated but not threatening communications, and thus a term of imprisonment could not be justified.

The court considered whether the sentence was appropriate given the breach of the restraining order. The appellant's repeated communications were not found to be threatening, yet the court had to determine if the sentence was nonetheless appropriate. The court noted the need for sentences to be proportionate and considered the specific circumstances of the case. It was determined that while the breach was not severe, the sentence imposed was inappropriate as it did not align with the nature of the breach.

The court found that the sentence was inappropriate and should not have been wholly suspended. The court set aside the sentence and remitted the matter to the Magistrates Court for reconsideration of an appropriate sentence. The court held that the sentence was not in accordance with the principles of proportionality and suitability, given the non-threatening nature of the breach. The appeal was allowed on the ground that the sentence was inappropriate.

Orders

Orders of the court

Leave to appeal granted on grounds 1 and 2

Appeal allowed on ground 1

Sentence set aside and remitted to Magistrates Court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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