O'Driscoll v WA Police - [2023] WASC 456

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   O'DRISCOLL -v- WA POLICE [2023] WASC 456
CORAM:   MCGRATH J
HEARD:   20 NOVEMBER 2023
DELIVERED          :   30 NOVEMBER 2023
FILE NO/S:   SJA 1082 of 2023
BETWEEN:   MARK CHRISTOPHER O'DRISCOLL
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1082 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE O'DONNELL
File Number            :   PE 29802/2023

Catchwords:

Criminal appeal - Appeal - Breach of family violence restraining order contrary to s 61 of the Restraining Orders Act 1997 (WA) - Whether suspended term of imprisonment unjust - Failure to take time in custody into account - Failure to comply with s 9AA of the Sentencing Act1995 (WA)

Legislation:

Restraining Orders Act 1997 (WA), s 61, s 61A
Sentencing Act 1995 (WA), s 9AA

Result:

Extension of time in which to appeal granted
Leave to appeal granted on grounds one, two and three
Leave to appeal not granted on ground four
Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms N Sinton
Respondent	:	Ms A Miller

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

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

Bernard v Williams [2015] WASC 182
Boddington v The State of Western Australia [2013] WASC 179
Day v Millson [2015] WASC 183
Evans v Vanderheide [2001] WASCA 352
Gore v The State of Western Australia [2017] WASCA 163
Gullello v The State of Western Australia [2011] WASCA 261
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Harper v Page [2004] WASCA 267
Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502
Jacomb v The State of Western Australia [2021] WASCA 81
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Roberts v The State of Western Australia [2014] WASCA 239
Rogers v Hitchcock [2015] WASC 120
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schulz v Coyne [2019] WASC 329
Wallam v Grosveld [2015] WASC 145
Willenberg v Downey [2015] WASC 282
Winmar v Clark [2015] WASC 314
Zinga v Johnson [2012] WASC 216

MCGRATH J:

Introduction

The appellant was convicted on his own plea of breaching a family violence restraining order (FVRO) contrary to s 61(1) of the Restraining Orders Act 1997 (WA).[1] The appellant breached the FVRO by entering the back garden and shed of the property of his mother (the protected person) and thereby approached within 50 metres of the protected person's residence. The protected person was not at her residence at the time.
[1] Prosecution Notice lodged 11 June 2023, Charge Number PE 29802/2023.
The appellant had been convicted of two previous offences of breaching separate FVROs against another unrelated protected person in the two-year period prior to his present conviction. Therefore, the learned Magistrate was required to impose a sentence that was or included imprisonment unless satisfied of two matters. First, that imprisonment would be clearly…

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.

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Details

Case: [2023] WASC 456
Decision Date: 30 NOVEMBER 2023

CaseChat Overview and Summary

The appellant, O'Driscoll, appealed against his conviction and sentence for breaching a family violence restraining order. The dispute was heard in the Western Australian Court of Appeal. The appeal centred on whether the sentence of imprisonment imposed on the appellant for breaching a family violence restraining order was unjust and whether the trial judge failed to properly consider the time the appellant had already spent in custody.

The primary issue for the court was whether the trial judge erred in imposing a suspended term of imprisonment for the breach of a family violence restraining order. The court had to consider whether the trial judge failed to take into account the time the appellant had already spent in custody and whether there was a non-compliance with section 9AA of the Sentencing Act 1995 (WA). The court also examined if the sentence imposed was manifestly inadequate or excessive.

The court found that the trial judge did not adequately consider the time the appellant had already spent in custody. The court held that the sentence imposed was manifestly inadequate. The court further found that there was a failure to comply with section 9AA of the Sentencing Act 1995 (WA). The appeal was allowed, the conviction was quashed, and the matter was remitted to the Magistrates Court for re-sentencing. The court ordered that the Magistrates Court must take into account the time already served by the appellant in custody and provide reasons for any sentence imposed.

Orders

Orders of the court

24 April 2023

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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