Musgrove v Millard
[2012] WASC 60
•22 FEBRUARY 2012
MUSGROVE -v- MILLARD [2012] WASC 60
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 60 | |
| 22/02/2012 | |||
| Case No: | SJA:1122/2011 | 13 JANUARY 2012 | |
| Coram: | EM HEENAN J | 13/01/12 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | 1. Leave to appeal granted 2. Appeal allowed 3. Sentence imposed on charge AR 3898/11 varied so that the 4 months sentence of imprisonment imposed for that offence be served concurrently with the 8 month sentence of imprisonment imposed for the offence on charge AR 4432/11 4. All other sentences confirmed 5. The aggregate effective sentence of 16 months' imprisonment with parole eligibility be varied and reduced to 12 months' imprisonment with parole eligibility, such period of imprisonment to take effect from 30 May 2011 | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER ALLAN MUSGROVE DAVID MILLARD |
Catchwords: | Application for leave to appeal Sentence Stalking Unlawful installation of a tracking device Numerous breaches of violence restraining order Numerous breaches of a protective bail conditions Double punishment Sentencing Act s 11 Common element principle Necessity to identify facts admitted or established for the purposes of sentencing |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code, s 338E(2) Restraining Orders Act 1997 (WA) Sentencing Act 1995 (WA) Surveillance Devices Act 1998 (WA) |
Case References: | Eves v The State of Western Australia [2008] WASCA 7 Foreman v Pargin [2001] WASCA 351 Grills v Ng [2000] WASCA 294 Joyce v Gee [2010] WASC 76 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plenty v Bargain [1999] WASCA 67 Sakkers v Thornton [2009] WASC 175 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
and
Prosecution Notices number AR 3898 - AR 3914 of 2011, AR 4283 - AR 4362 of 2011; AR 4432 of 2011; AR 4939 - AR 4953 of 2011 in the Magistrates Court of Western Australia at ARMADALE
- Appellant
AND
DAVID MILLARD
Respondent
(Page 2)
ON APPEAL FROM:
For File No : SJA 1122 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S P RICHARDSON
File No : AR 3898 - AR 3914 of 2011, AR 4283 - AR 4362 of 2011, AR 4432 of 2011, AR 4939 - AR 4953 of 2011
Catchwords:
Application for leave to appeal - Sentence - Stalking - Unlawful installation of a tracking device - Numerous breaches of violence restraining order - Numerous breaches of a protective bail conditions - Double punishment - Sentencing Act
s 11 - Common element principle - Necessity to identify facts admitted or established for the purposes of sentencing
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code, s 338E(2)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Surveillance Devices Act 1998 (WA)
Result:
1. Leave to appeal granted
2. Appeal allowed
- 3. Sentence imposed on charge AR 3898/11 varied so that the 4 months sentence of imprisonment imposed for that offence be served concurrently with the 8 month sentence of imprisonment imposed for the offence on charge AR 4432/11
- 5. The aggregate effective sentence of 16 months' imprisonment with parole eligibility be varied and reduced to 12 months' imprisonment with parole eligibility, such period of imprisonment to take effect from 30 May 2011
(Page 3)
Category: B
Representation:
Counsel:
Appellant : Ms N Sinton
Respondent : Mr N T L John
Solicitors:
Appellant : Legal Aid (WA)
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Eves v The State of Western Australia [2008] WASCA 7
Foreman v Pargin [2001] WASCA 351
Grills v Ng [2000] WASCA 294
Joyce v Gee [2010] WASC 76
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plenty v Bargain [1999] WASCA 67
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 4)
1 EM HEENAN J: These reasons address more fully the issues arising on this application for leave to appeal determined on 13 January 2012. In the short oral reasons given then because of the need to deal with the application immediately, I indicated that in due course, more detailed written reasons would be delivered, but consistently with the reasons then announced. These reasons deal more completely with the helpful written submissions which had been filed by both counsel.
2 Mr Musgrove appeared before the Armadale Magistrates Court on 9 May 2011 and pleaded guilty to 98 of the following charges and was thereupon remanded on bail for sentence subject to protective bail conditions. He appeared again before that court on 3 June 2011 and pleaded guilty to 15 new charges and was remanded in custody for sentence.
3 On 22 July 2011 Mr Musgrove, was sentenced for all 113 offences. He had been convicted of one count of stalking (Criminal Code s 338E(2)), charge AR 4432/11; one count of unlawful installation of a tracking device contrary to s 7(1) of the Surveillance Devices Act 1988, charge AR 3898/11; 104 counts of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997, charges AR 3899 - AR 3914/11 and AR 4283 - AR 4362/11; and seven counts of breaching a protective bail condition contrary to s 51(2a) of the Bail Act 1992, charges AR 4939 to AR 4953/11.
4 Her Honour imposed separate sentences for each of the charges, as was required. The aggregate effect of all the sentences imposed was that Mr Musgrove received a total effective sentence of 16 months' imprisonment, backdated to commence from 30 May 2011, the date from which he had been in custody upon his arrest on charges AR 4939 - AR 4953/11 - that is the further offences to which he had pleaded guilty on 3 June 2011. He was made eligible for parole as from 30 January 2012 pursuant to s 93(1)(a) of the Sentencing Act 1995 (WA).
5 By notice filed on 25 November 2011 Mr Musgrove sought leave to appeal against the aggregate effective sentence on one ground and sought an extension of time within which to apply for leave to appeal in view of the delay in making the application. By orders made by Hall J on 23 December 2011 the application for an extension of time was granted and it was directed that the application for leave to appeal should be heard at the same time as the appeal. Other conventional orders and directions in relation to the preparation of the materials for use on the eventual hearing were then also made. Later the applicant sought leave to add a
(Page 5)
- second ground of appeal and the respondent consented to that application by notice dated 5 January 2012.
6 As a result, the grounds of the application for leave to appeal, and if leave is granted at the ensuring appeal, are now as follows:
1. The learned magistrate erred in making the sentence of imprisonment for unlawful installation of a tracking device cumulative upon the sentence imposed for stalking.
Particulars
(i) The conduct alleged in relation to the stalking charge included the unlawful installation of a tracking device.
(ii) By imposing a cumulative sentence for the offence of unlawful installation of a tracking device the learned sentencing magistrate has punished the appellant twice for the same conduct.
2. The learned sentencing magistrate erred in law by sentencing the appellant without being sufficiently advised as to the circumstances of the commission of the offences.
Particulars
(i) Section 6 of the Sentencing Act 1995 requires that a sentence imposed be commensurate with the seriousness of the offence, taking into account factors including the circumstances of the commission of the offence.
(ii) At the time of sentencing the appellant for the offence of stalking on 22 July 2011, the facts of the offence had not been presented to the sentencing magistrate.
7 The person who was the subject of the protective restraining orders and the victim of these offences was the applicant's former partner. The two had been in a prior relationship for 10 years or so but this had ended in December 2010.
8 On 30 March 2011 Mr Musgrove was served with an interim restraining order prohibiting him from communicating with his former partner in any way. However, in breach of that order, between 30 March
(Page 6)
- and 9 April 2011 Mr Musgrove attended at his partner's address and/or at her workplace and also sent her a number of text messages. Furthermore, at some date prior to 6 April 2011 he had unlawfully installed a tracking device upon her motor vehicle. In submissions advanced for the applicant he contends that these facts, including the installation of the tracking device, collectively comprise the unlawful conduct in respect of which the stalking charge was made and the conviction for it entered. Significantly, an issue in the present application and any ensuing appeal is whether or not that is so, that is whether or not the unlawful conduct constituted by the installation of the tracking device is part of the unlawful conduct in respect of which the stalking conviction resulted.
9 Later, between 18 April and 25 April 2011, Mr Musgrove's former partner was telephoned by him on 80 occasions, each in breach of the violence restraining order. She did not answer any of these calls and no messages for her were left by any of them. Later still, after he had been charged with the stalking offence, with the unlawful installation of the tracking device and with the many breaches of the violence restraining order and had been released on bail, he again telephoned her between 26 May and 30 May 2011, sending her text messages and attending at her address. Each of these later attempts to contact the former partner or attend at her address was in breach of both the continuing violence restraining order and the protective bail conditions. When he came before the court on this latter set of charges, on 3 June, his bail was revoked and he was remanded in custody for sentence in respect of all of the charges as has previously been noted.
Sentencing
10 Her Honour was faced with a difficult and onerous task in sentencing the applicant for each of these offences and in deciding how to structure the many sentences so as to avoid infringement of the totality principle and to comply with all relevant sentencing principles.
11 With every reason and justification, her Honour observed that there was a significant number of offences which took place over an extended period and that the impact of them upon the former partner was very stressful and considerable. Her Honour was also concerned about the applicant's apparent lack of remorse. Her Honour, in imposing sentence, treated the stalking offence as the most serious matter and selected that conviction for what she termed 'the head sentence'. For that offence, her Honour imposed an immediate sentence of imprisonment of 8 months
(Page 7)
- and directed that it should be backdated to commence on the date when he was first taken into custody which, as already noted, was 30 May 2011.
12 Her Honour then turned to the 80 matters which first came before the court on 29 April 2011, that is the many breaches of the restraining order which had been committed before that date. For each of those offences, her Honour imposed a term of 3 months' imprisonment, to be served concurrently with each other, and with the 'head sentence' of 8 months already mentioned. At the same time, her Honour dealt with the offence of unlawfully attaching a surveillance device to the vehicle of the applicant's former partner and for that offence imposed an immediate sentence of 4 months' imprisonment, but directed that that should be served cumulatively upon the other sentences. It is this decision to make that sentence cumulative which is the real focus of this application and any ensuing appeal.
13 For the further breaches of the restraining order which were the subject of charges AR 3899 - AR 3903/11, and all other matters on that prosecution notice her Honour sentenced the applicant to 3 months' imprisonment for each conviction and directed that those sentences should be served concurrently with each other and with the earlier sentences.
14 Her Honour then turned to the offences which had been committed after 3 May 2011. There were 15 such convictions comprising the several breaches of the protective bail conditions and associated breaches of the continuing restraining order. For each of these offences her Honour imposed an immediate sentence of 4 months' imprisonment, which should each be served concurrently, but these terms of imprisonment were ordered to be cumulative upon the earlier sentences. Her Honour directed that the applicant should be eligible for parole in relation to each of the convictions and sentences and that the total effective period of 16 months' imprisonment would commence and take effect from 30 May 2011.
15 It follows from this that the 16-month total effective aggregate sentence is made up as follows:
• 8 months' imprisonment for the stalking conviction
• 4 months' imprisonment cumulative for the conviction of unlawfully attaching the surveillance device and
• 4 months' imprisonment for each of the last 15 convictions which, while to be served concurrently with each other, were to be cumulative upon the earlier sentences
(Page 8)
16 As already stated, the sentences for all the other convictions for breaches of the violence restraining order were to be served concurrently with the sentence for the stalking offence.
17 Her Honour had had the benefit of a detailed pre-sentence report upon the applicant, a psychiatric report, a psychological report, a victim impact statement and detailed submissions about the history of the relationship between the parties and the applicant's personal circumstances. Her Honour gave full and detailed consideration to whether or not the offending warranted the imposition of terms of imprisonment and decided that it did. Having done so, her Honour then correctly gave further consideration to whether or not any sentence of imprisonment which she might impose should nevertheless be suspended and decided against that course. No complaint or challenge is made to any aspect of the exercise of her Honour's sentencing discretion in those respects.
18 There was no physical violence involved in any of the offences. In relation to the first 80 charges for breaching the violence restraining order all were attempts to communicate only, constituting 'hang-up' telephone calls without contact with the protected person having been established. In relation to the later attempts at communication and the post-May 2011 breaches of the violence restraining order, there were messages left for the protected person but, again, direct contact with her had not been established.
19 Counsel for the applicant drew attention to the manner in which the learned magistrate had arrived at her decision to impose the sentence of 8 months' immediate imprisonment for the offence of stalking. This appears from her Honour's reasons for decision at page 10 of the transcript of 22 July 2011 where her Honour said:
I'm going to deal with the head sentencing being the stalking matter and as regards that matter and taking into account that the many other matters before the court today underpin that matter. There will be a term as regards that. Taking into consideration that the maximum for that particular matter is one of 12 months' imprisonment. Unless I'm wrong on that. I think that's right.
And taking into account the nature of what has been done to her that these matters are at the higher end of the scale, but he has pleaded, at any early point, on this. I'm going to impose a term, as regards the stalking, of eight months' imprisonment and that will be backdated to the date on which he went into prison and I will come to that shortly.
(Page 9)
20 Her Honour was, of course, correct in treating the maximum available sentence for a conviction of stalking in those circumstances as being 1 years' imprisonment. In view of the applicant's early plea of guilty to this charge, and to each of the others, he was entitled to a discount for any term of imprisonment to be imposed by reason of s 8(2) of the Sentencing Act 1995. Having regard to the range of discounts typically allowed for early pleas of guilty, it follows that the submission by counsel for the applicant that the starting point by her Honour before any discount for the guilty plea on the charge of stalking must have been at, or near, the maximum term of imprisonment available for that offence.
21 It is also to be noted that in imposing the sentence for the stalking offence her Honour expressly said that she was 'taking into account that the many other matters before the court today underpin that matter'. That had been a submission made by counsel for the applicant when addressing her Honour prior to the imposition of the sentences and the point had also been acknowledged by the police prosecutor in his brief submissions to the court when he said (ts 7):
Your Honour, counsel is correct in pointing out that essentially the stalking encompasses the breach of the violence restraining order and pretty much the protective conditions as well, but in the circumstances for the stalking, what it boils down to is Mr Musgrove just simply wouldn't leave this woman alone and he goes to the extent of calling 80 times in such a short period of time and then further goes to the extent of putting a tracking device on her car.
22 Nevertheless, there is an implication in these submissions that the offence of unlawfully attaching the surveillance device to the former partner's vehicle was a separate and distinct offence outside the scope of the unlawful conduct covered by the stalking offence or the many other charges. That implication also arises from the submissions which had previously been made by counsel for the applicant at the sentencing hearing (not counsel who has appeared on the present applications) when he said (ts 65- 6):
All the other offending behaviour, and I'm talking here primarily about the breaches of the violence restraining order and the breaches of the protective bail conditions, are incorporated into the allegations surrounding that stalking. So your Honour will need to be mindful in sentencing of the provisions of s 11 [sic Sentencing Act]. That is, that he should not be sentenced twice for what is effectively the same conduct.
There is a separate and stand-alone charge and whilst it is arguably part of the stalking charge, there is the charge of 3898 of 11, which is the offence
(Page 10)
- relating to the placing of the tracking device on the complainant's motor vehicle, a breach of the provisions of the Surveillance Devices Act.
23 The observation that the Surveillance Devices Act charge was 'arguably part of the stalking charge' was not developed further by counsel for the applicant during the course of the sentencing process. It seems that that contention was just left to hang in the air and it was not investigated, examined or pursued. The only conclusion which can be drawn from the structure of the sentences imposed by her Honour is that it was treated as a separate and distinct offence, and not as part of the unlawful conduct constituting the stalking offence or any of the associated charges, because it attracted a separate sentence of 4 months' imprisonment ordered to be served cumulatively upon the other sentences.
24 This application for leave to appeal at any ensuing appeal directly contests that approach. This is the point at which both proposed grounds of appeal are directed. The first ground asserts an error in law in imposing a cumulative sentence for the tracking device offence because, so it contends, the conduct alleged in relation to the stalking charge included the unlawful installation of the tracking device and, therefore, a cumulative sentence resulted in the applicant being punished twice for the same conduct.
25 The second proposed ground of appeal comes at the same point but from a slightly different perspective. It contends that there was an error in law in the sentencing process because the learned magistrate was not sufficiently advised as to the circumstances of the commission of the offences because those facts had not been established to the degree required by s 6 of the Sentencing Act and had, indeed, not been presented to her Honour.
26 For reasons which follow, I am satisfied that these are reasonably arguable propositions, and as the balance of these reasons reveals, they have been successfully made out. The fact that they were reasonably arguable and had prospects of success justified and required the grant of leave to appeal - Criminal Appeals Act 2004 (WA), s 9(2) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Consequently, there was a grant of leave to appeal in respect of both proposed grounds.
27 These grounds of appeal require consideration to be given to how the facts of the offending upon which the sentencing was based were established. That it is necessary for the facts of the offending to be
(Page 11)
- established is apparent from s 6 of the Sentencing Act which, when outlining the principles of sentencing, directs that a sentence imposed on an offender must be commensurate with the seriousness of the offence and, by s 6(2), that the seriousness of an offence must be determined by taking into account, among other things:
(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
29 The next court appearance was on 3 June before a different magistrate, her Honour, Magistrate E Langdon, when Mr Musgrove was charged with eight offences involving a breach of a violence restraining order and seven breaches of protective bail conditions. He entered pleas of guilty to each of the charges. His bail on the earlier charges was revoked and he was remanded in custody to appear in the Family Violence Court for sentence on 22 July 2011 and, in the meantime, the psychological and psychiatric reports were to be prepared. No further consideration of the circumstances of the offending, either in relation to those particular offences or in relation to any connection between them and the other offences upon which he had already been remanded for sentence was then undertaken.
30 Nor was this done or attempted in any explicit manner at the sentencing hearing on 22 July 2011. The procedure followed at that hearing was somewhat unusual. Instead of the conventional order of addresses with the prosecutor outlining the case to the court first, including a formal statement of the alleged material facts, followed by a plea in mitigation by counsel for the offender, and then any possible reply
(Page 12)
- by the prosecutor, the proceedings commenced with an address by counsel for the applicant in mitigation. This included some dialogue with her Honour concerning points emerging from the psychological report and then proceeding to detailed submissions as to how the sentencing process might be approached. That was followed by a very short address by the police prosecutor which did not involve any statement of material facts or identification of the circumstances of the offending. Her Honour then proceeded immediately to give her reasons for the imposition of the sentences ordered.
Was the installation of the tracking device part of the stalking?
31 With reference to this question the learned magistrate said in the course of her reasons for sentencing, at page 8 of the transcript:
It's conceded by [the] prosecution that as regards to that stalking charge that that incorporates some of the charges before the court; that is, breaches of restraining order. Mr Musgrove was also before the court for having installed a tracking device on the complainant, Ms X's, car and it is noted a good number of these charges are now convictions that arose after Mr Musgrove had been brought to court in relation to numerous breaches of violence restraining order.
32 There was, however, in existence a statement of alleged material facts relating to these charges. It had been prepared by the prosecution in the ordinary way and had been disclosed in advance of the hearing to counsel for the present applicant. It is a lengthy document which was produced to this court and referred to by counsel for the applicant without objection. It includes a one and a half page summary of the stalking charge which describes events constituting the stalking occurring on and from 31 March 2011 to the morning of 9 April 2011. Within a lengthy description of the various events are the following entries:
At some time prior to 6 April 2011 the accused installed a GPS Tracking Device into the victim's vehicle. The device was magnetically affixed to the underside of the vehicle floor pan.
The device operated by sending email messages to the accused's email account, which advised the accused of the whereabouts and movements of the victim.
In order to keep the GPS Tracking Device functioning, the accused approached the victim's vehicle while it was parked at her workplace on Langford Avenue in Langford on 6 April 2011. He removed the device from the underside of the vehicle and took it away to charge the device's batteries.
(Page 13)
- On 7 April 2011 the accused again approached the victim's vehicle while it was at her home address and reinstalled the GPS Tracking Device on the underside of the vehicle.
33 The statement of material facts went on to allege other matters constituted by the stalking offence occurring up to and including 9 April 2011. Separate statements of material facts dealing with many other offences also were prepared and delivered, including a reference to the offence contrary to s 7(1) of the Surveillance and Devices Act, which reads:
9. At some time prior to 6 April 2011, the accused installed a GPS tracking device on to the victim's vehicle. The device was magnetically affixed to the underside of the vehicle floor pan.
The device operated by sending email messages to the accused's email account, which advised the accused of the whereabouts of the victim.
34 However, as already noticed, none of these statements of material facts was ever read or produced to the learned magistrate on 22 July 2011 or earlier. The only conclusion can be that they were not considered by her Honour and the contents of them were not disclosed to her Honour at any point during the sentencing process.
35 Counsel for the applicant submits that where an offender has not been asked to admit a prosecution summary of facts and where there is no clear and comprehensive summary of the facts before the court, there will be an error in the exercise of the sentencing discretion because it must follow that the court has not given proper weight to the relevant considerations. That submission follows the language of Hasluck J in Foreman v Pargin [2001] WASCA 351 [77]. In that case his Honour was dealing with a sentencing appeal from a magistrate's decision where the police prosecutor had not read, in the court below, the statement of material facts in relation to certain of the charges. In that case, there were a number of different charges before the court and the magistrate received, from an oral pre-sentence report and perhaps other sources, some of the central facts and a version of the prosecution's summary of facts in relation to some, but not all, of the charges. Hasluck J examined the provisions of s 6 of the Sentencing Act and, as a result with respect to the sentencing process observed:
This obviously requires, being a precept reflected in s 6(2) of the Sentencing Act, that careful consideration be given to the facts of the matter. It is for that reason that the court is generally vigilant to obtain an
(Page 14)
- admission in response to the statement comprising the material facts. Accordingly, in my view, in circumstances where the appellant has not been asked to admit to a prosecution's summary of facts, and where, in any event, it seems that there was no clear and comprehensive summary before the court, this amounts to an error in the exercise of the sentence discretion because it must follow that the court has not given proper weight to the relative considerations.
36 The question of whether or not the conduct giving rise to the commission of the Surveillance Devices Act offence was the same conduct as, or substantially overlapped with, the conduct giving rise to the commission of the stalking offence was plainly a relevant and material issue for determination. Sakkers v Thornton [2009] WASC 175 is a case which raised the question of whether double punishment had occurred where an offender had been sentenced on charges of aggravated stalking and on breaches of a restraining order where it was alleged that the evidence necessary to establish the commission of each of those offences was also necessary to establish the commission of another offence for which he was sentenced. The appeal in Sakkers v Thornton raised many other issues but only that issue was successful, Simmonds J observing [22] - [23] and [26]:
[22] Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order.
[23] The sentences for the 12 breaches of violence restraining order, globally, were the same as the sentence for the aggravated stalking. As counsel for the respondent indicated, and as counsel for the appellant agreed, the effect of upholding the appeal on this ground, assuming no other ground is upheld, should be that there be no penalty for the 12 breaches of the violence restraining order.
…
[26] It follows I would uphold the present ground of appeal in the respect indicated …
37 Counsel for the applicant submits that the course which was followed and the structure of the sentences imposed in the present case has resulted in the imposition of double punishment arising from the sentence of 4 months' imprisonment cumulative imposed for the breach or the Surveillance Devices Act and, as such, is a contravention of s 11 of the Sentencing Act. This is answered by a series of submissions by counsel for the respondent that s 11 of the Sentencing Act does not apply or has not been contravened because that section applies only when identical
(Page 15)
- evidence is necessary to establish the commission of more than one offence. According to this submission, the application of the section does not occur simply when a single act or omission gives rise to more than one offence - Plenty v Bargain [1999] WASCA 67, 71 - 72 (McKechnie J) and Grills v Ng [2000] WASCA 294, [9] - [10] (Parker J. Counsel for the respondent then developed a series of detailed submissions in support of the contentions that the elements of the offence which must be established by evidence to prove the Surveillance Devices Act offence are materially different from the elements which need to be proved by evidence to establish stalking and, notwithstanding that there may be some overlap and some common elements, this does not give rise to the application of s 11.
38 However, on this occasion, I do not consider that it is necessary to resolve the controversy over whether or not s 11 applies directly in the circumstances of this case. In view of the complexities involved and as there is a satisfactory alternative route to the conclusion of this appeal, it seems desirable to leave such contentious issues to another occasion when it might be essential to resolve them. This is because it is acknowledged by counsel for the respondent that there is an associated principle, often termed the 'common elements principle', which applies when two offences of which an offender stands convicted contain common elements so that it would be wrong to punish that offender twice for the commission of the elements that are common: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] and Eves v The State of Western Australia [2008] WASCA 7 [5], [10] (Steytler P) and [27] (McLure JA).
39 In Pearce, when dealing with the concept of double punishment both at common law and under various statutory sentencing regimes, McHugh, Hayne & Callinan JJ said [40]:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
40 I am satisfied that the application of the common elements principle so expressed is entirely sufficient to dispose of this present appeal. The statement of material facts from which I have quoted makes it plain that,
(Page 16)
- at least at the time when the charges were laid and the prosecutions prepared, the conduct which constituted a breach of the Surveillance Devices Act and which was relied upon to support that charge was exactly the same conduct which was part of the conduct relied upon to support the stalking charge. This comes directly within the common elements principle and this means that it was an error of the sentencing discretion and one involving an error of law, to impose an additional, sentence in respect of the Surveillance Devices Act offence. I am satisfied that this ground of appeal as been made out and that this court must now consider what relief, if any, should be granted as a result.
No substantial miscarriage of justice
41 The respondent submits that the overall sentence of 16 months imposed on the applicant for all the offending of which he was convicted was entirely appropriate. The submission is that even if there has been an error of law in structuring or calculating the sentence (which was not conceded) there had been no substantial miscarriage of justice, so that the appeal should nevertheless be dismissed pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA). The submission is that s 14(2) will apply to an appeal against sentence from a magistrate if it is established that any error made by the magistrate would not have led to any reduction in the sentence that had been imposed: Joyce v Gee [2010] WASC 76 [34] (Mazza J).
42 The respondent then developed a series of further submissions which emphasised the difficulty and complexity of the sentencing task confronting the learned magistrate and how there were so many permutations and combinations of sentences which could have been imposed or were available in respect of the multiple offences. The multiplicity of possible outcomes was further apparent from the many variations which might have been employed when determining concurrency or cumulation of sentences for the several offences - compare Sakkers v Thornton [32] and [41]. The respondent's submission was that Mr Musgrove's course of offending took various forms, was persistent, relentless and consistently in breach of the VRO. The submission proceeded to contend that the surveillance devices offence involved conduct over and above harassment, pursuit and intimidation to a disturbing degree and stressed that the applicant had failed to display significant remorse. In conclusion, the submission for the respondent was that the 16 months aggregate term of imprisonment did not fail to bear a proper relationship to the overall criminality involved and that,
(Page 17)
- accordingly, the appeal should be dismissed even if either ground of appeal were to be made out.
43 It is, of course, most unfortunate that the statements of material facts were not produced to the court and read aloud or incorporated in the submissions in support of the sentencing process. Had that been done, then it would have been possible to focus upon the obligation of the court to determine the circumstances of the offending for the purpose of sentencing. Any controversy as to whether or not the conduct constituting the surveillance device offence was part of the conduct relied upon to establish the stalking offence could have been addressed and resolved. Had it been addressed, the materials before this court point only in one direction, namely that it was part of the conduct relied upon to establish the stalking offence. That means that no additional punishment should have been imposed for the Surveillance Devices Act offence over and beyond the punishment imposed for the stalking offence. In deference to the submissions for the respondent, this raises the question of whether or not, had this situation been properly recognised, a different sentencing pattern or structure might have been imposed which would have led to substantially the same result, namely a total effective period of imprisonment of 16 months.
44 I am satisfied that the answer to that speculation, as far as it is possible to supply one, must be in the negative. I have already observed that the sentence of 8 months' imprisonment imposed for the stalking offence, having regard to the maximum penalty available and the early plea of guilty was at or near the maximum sentence which could justly be imposed for that particular offence. The application of the common elements principle, as already noted, means that there could have been no additional sentence for the Surveillance Device Act offence. It was conceded, indeed, it was common ground, before the learned sentencing magistrate that all the other offences, including the many breaches of the restraining order offences and the breaches of the protective bail conditions, were part and parcel of the conduct relied upon for the stalking offence. That proposition was accepted by her Honour in imposing concurrent terms of imprisonment for each of those many offences.
45 That leaves the sentences for the 15 offences of breaches of personal bail conditions and further breaches of the violence restraining order, which each resulted in 4 months' imprisonment concurrent, but were to be served cumulatively upon the other sentences.
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46 It is, of course, possible that some different disposition might have resulted from the further 15 breaches of the violence restraining order and the associated breaches of the personal bail conditions which occurred at different dates, but her Honour chose not to do that.
47 I do not see that, in the circumstances of this case, I can or should reconsider those matters. Therefore, I ordered that leave to appeal be granted, that the appeal be allowed by directing that the 4 months' imprisonment imposed for the breach of the Surveillance Devices Act offence ordered to be served cumulatively upon the sentence of 8 months' imprisonment should instead be served concurrently, and that all other sentences should stand. The result is that the overall sentence of the appellant should be reduced to 12 months, again to take effect from 30 May 2011 and with eligibility for parole.
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