O'Driscoll v WA Police
[2023] WASC 456
•30 NOVEMBER 2023
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 unjust given the circumstances of the offence and second, that the appellant was unlikely to be a threat to the safety of a person protected or the community generally.[2]
[2] Restraining Orders Act1997 (WA), s 61.
The learned Magistrate found that there was no evidence before her that would persuade the Court that the appellant was a threat to the safety of the protected person or the community generally. However, the learned Magistrate found that it was not clearly unjust to impose a sentence that was or included imprisonment and therefore, imposed a term of 6 months 1 day imprisonment suspended for 6 months.
The appellant now seeks leave to appeal against the sentence of 6 months 1 day imprisonment suspended for 6 months, contending that her Honour made three express errors of law and further, that her Honour erred in determining that imprisonment was not clearly unjust given the circumstances of the offence and the appellant. The appellant submits that the term of imprisonment suspended should be set aside and a fine imposed.
The appellant applies for an extension of time in which to appeal.[3] For the following reasons, I have determined that an extension of time in which to appeal is granted, leave to appeal is granted on three of the grounds of appeal, but that the appeal must be dismissed.
[3] Affidavit of Ms Sinton affirmed 22 September 2023.
Relevant Legislation - Restraining Orders Act
The offence for which the appellant was convicted was an offence contrary to s 61(1) of the Restraining Orders Act. The maximum penalty for that offence is a fine of $10 000 or imprisonment for 2 years, or both. The legislative provision that arises for consideration in this appeal is s 61A of the Restraining Orders Act which provides:
61A.Penalty for repeated breach of restraining order
(1)In this section -
…
relevant offence means -
(a)an offence under section 61(1), (1A) or (2a); or
(b)an offence under The Criminal Code section 338E committed in the circumstances of aggravation in which the conduct of the offender in committing the offence constituted the breach of an order, other than an order under Part 1C, made or registered under this Act or to which this Act applies.
(2)This section applies if a person -
(a)is convicted of a relevant offence (the qualifying relevant offence); and
(b)has committed, and been convicted of, at least 2 offences that are also relevant offences (the previous relevant offences) within the period of 2 years before the person's conviction of the qualifying relevant offence.
(2A)For the purposes of subsection (2)(b) each of the previous relevant offences is to be counted, regardless of whether the convictions for them -
(a)were recorded before or after the date on which the qualifying relevant offence, or any of the previous relevant offences, was committed; or
(b)have been counted in sentencing under this section for a different relevant offence.
(2B)For the purposes of subsection (2)(b), convictions for 2 or more previous relevant offences committed on the same day are to be treated as a single conviction.
(3)This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.
(4)Except as provided in subsection (6), if the person is a child a penalty must be imposed on the person for the qualifying relevant offence that is or includes -
(a)imprisonment under the Young Offenders Act 1994 section 118(1)(a); or
(b)detention under the Young Offenders Act 1994 section 118(1)(b).
(5)Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the qualifying relevant offence that is or includes imprisonment.
(6)A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if -
(a)imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of a person protected or the community generally.
Magistrates Court proceedings
On 21 October 2022, an application was made for a FVRO in respect to the appellant. On 25 November 2022, the FVRO was served upon the appellant. The conditions of the FVRO relevantly included a prohibition on entering on or remaining at the protected person's residence or any other premises where the protected person lives or works, or be within 50 metres of the nearest external boundary of those premises.[4]
[4] ts 3 (12/06/2023).
At 10.30 am on 11 June 2023, the appellant breached the FVRO by attending at the protected person's residential address.
On 12 June 2023, the appellant appeared in the Magistrates Court, represented by counsel, and pleaded guilty to the charge of breaching the FVRO.
The facts were that the protected person was not at home at the time the appellant attended at the address. The appellant was located by the police in the back garden of the property. At sentencing it was submitted by counsel for the appellant that he entered via a gate rather than jumping the fence as alleged in the statement of facts.[5] By way of explanation for the offending behaviour, the appellant stated that he had been riding his bike in the area and due to rain, he had fallen off his bike and was injured and wet. Therefore, the appellant attended the property to obtain a change of clothes from the shed. The appellant, having previously lived with the protected person, knew that his clothing was in the shed.[6]
[5] ts 2 - 3 (12/06/2023).
[6] ts 3 - 4 (12/06/2023).
The prosecution did not contest the explanation given by the appellant for his attendance at the property of the protected person and the learned Magistrate sentenced on that factual basis.[7]
[7] ts 8 (12/06/2023).
The learned Magistrate found that the appellant had been convicted of breaching two previous FVROs contrary to s 61 of the Restraining Orders Act in the two-year period prior to the present offending. The learned Magistrate stated that the appellant had committed the two other separate offences on different dates. Her Honour found that the two breaches were in respect to another unrelated FVRO and not the FVRO the subject of the charge before Her Honour.[8] Accordingly, the learned Magistrate found that the appellant had three relevant convictions and therefore, was liable to be imprisoned unless satisfied of the two requirements in s 61A(6) of the Restraining Orders Act.
[8] ts 7 (12/06/2023).
The learned Magistrate found that the appellant was not a threat to the safety of the person protected. Her Honour observed that there was 'no evidence that the appellant threatened anyone'.[9] However, the learned Magistrate found that it would not be clearly unjust given the circumstances of the offence and the appellant's antecedents to impose imprisonment.
[9] ts 8 (12/06/2023).
Her Honour observed that the appellant had a criminal record that includes breaches of FVROs and police orders. Her Honour stated that taking into account all of the factors raised in mitigation, the term of imprisonment would be suspended. The learned Magistrate stated that she was 'constrained to give no less than six months and one day; that is what the Sentencing Act says; I have no option to impose any shorter term of imprisonment'. Her Honour then observed that 'it may seem like a heavy penalty to have a term of six months hanging over your head for what seems like an offence at the lower end of the scale, however, ... in my view, it's not clearly unjust and it's therefore, appropriate that I do that'.[10]
[10] ts 9 (12/06/2023).
Her Honour then imposed a term of 6 months 1 day imprisonment suspended for 6 months, stating that 'is the shortest amount of time I can suspend a term of imprisonment'.[11]
[11] ts 9 (12/06/2023).
Appeal
The appellant relies upon four grounds of appeal in the following terms.[12]
1.The learned sentencing Magistrate erred in failing to reduce the appellant's sentence pursuant to Sentencing Act s 9AA.
2.The learned sentencing Magistrate erred in determining that there was a minimum period for which a sentence of imprisonment could be suspended.
3.The learned sentencing Magistrate erred in failing to take into account the day the appellant had spent in custody prior to his sentencing.
4.The learned sentencing Magistrate erred in determining that imprisonment was not clearly unjust given the circumstances of the offence and the appellant.
[12] Notice of Appeal filed 22 September 2023; Consent Notice adding two further grounds of appeal dated 25 October 2023.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[13] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[14]
[13] Criminal Appeals Act 2004 (WA), s 9(1).
[14] Criminal Appeals Act 2004 (WA), s 8.
The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[15] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[16]
[15] Criminal Appeals Act 2004 (WA), s 9(2).
[16] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The Court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[17] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the Court determines that a different sentence should have been imposed.[18]
Ground one
[17] Criminal Appeals Act 2004 (WA), s 14.
[18] Roberts v The State of Western Australia [2014] WASCA 239, [47].
By ground one, the appellant contends that the learned Magistrate failed to reduce the appellant's sentence pursuant to s 9AA of the Sentencing Act 1995 (WA).
Section 9AA(2) of the Sentencing Act provides that the head sentence may be reduced in order to recognise the benefits to the State, and to any victim of or witness to the offence resulting from the plea. The earlier in the proceedings that the plea is made, the greater the reduction. The maximum discount that may be afforded for a plea made at the first reasonable opportunity is 25%. A judicial officer has a discretion as to the discount to be afforded, even if that plea is found to be at the first reasonable opportunity. The strength of the prosecution case can be taken into account in assessing the extent of the discount to be given.
Section 9AA(5) provides that if a court reduces the head sentence, the court must state that fact and the extent of the reduction in open court.
The appellant contends that he pleaded guilty at the first reasonable opportunity and that the learned Magistrate did not state that fact, nor the extent of the reduction for that plea of guilty in open court.
The respondent accepts that the appellant did plead guilty at the first reasonable opportunity and that her Honour did not state that fact, nor state the reduction afforded for that plea.
Ordinarily, the failure by a sentencing judicial officer to refer to the effect of a plea of guilty is an indication that the sentencing judicial officer has overlooked the plea of guilty and has failed to take the plea of guilty into account in determining the sentence to be imposed on the offender.[19]
[19] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151, [10]; Winmar v Clark [2015] WASC 314, [26].
The failure to state the extent of the reduction as required by s 9AA(5) will constitute an error of law, but not necessarily a material error resulting in a substantial miscarriage of justice and the appeal against the sentence imposed being allowed.[20] A mere failure to specify a discount will not be a material error unless it can be shown that there was some impact on the sentence actually imposed.[21]
[20] Criminal Appeals Act 2001 (WA), s 14(2); Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502, [57] - [59]; Schulz v Coyne [2019] WASC 329, [30].
[21] Rogers v Hitchcock [2015] WASC 120, [55].
In determining an allegation that a magistrate has failed to take a relevant sentencing consideration into account it is important, having regard to the circumstances in which magistrates' sentencing remarks are delivered (most often on an ex tempore basis as in this case) and the very busy workload of the Magistrates Court, to ensure that the sentencing remarks are read as a whole, in context, and not with an eye finely tuned for error.[22]
[22] Harper v Page [2004] WASCA 267, [24]; Willenberg v Downey [2015] WASC 282, [61].
The appellant submits that having regard to the circumstances of the offence and of the appellant personally, the learned Magistrate failed to take into account the plea of guilty at the first reasonable opportunity. The appellant submits that the plea of guilty at the first reasonable opportunity was a significant relevant consideration in respect of the learned Magistrate determining whether it would be clearly unjust, given the circumstances of the offence and the appellant, not to impose a penalty on the appellant that is or includes imprisonment. Further, if the learned Magistrate determined that it was not unjust, then the plea of guilty was relevant to the determination of the length of the term of imprisonment and the length of the period of suspension. Therefore, the failure to do so amounts to a material error of law and consequently gives rise to a substantial miscarriage of justice.
The respondent does not concede that the learned Magistrate did not reduce the sentence imposed for the offence to reflect the plea of guilty and did not have regard to the guilty plea in determining the type of sentence to impose. In this respect, the respondent submits that a term of imprisonment of 7 months 2 weeks would be within the range of a sound sentencing discretion.
It is clear that the plea of guilty, whilst entered at the commencement of the sentencing hearing, was not mentioned at any time during the proceedings.
The appellant's counsel did not, at any time in his plea in mitigation, make any reference to the fact that the appellant had pleaded guilty to the charge. Whilst the plea of guilty was entered in the presence of the learned Magistrate, counsel did not expressly refer to and rely upon the early plea of guilty in mitigation.
The prosecutor did not refer to the plea of guilty at the first reasonable opportunity. Whilst it was not necessary for the prosecutor to do so, the fact that the prosecutor did not acknowledge the plea as a factor in mitigation during the course of his submissions regarding the appropriate disposition further demonstrates that the learned Magistrate was not reminded that the plea was a relevant sentencing consideration.
The learned Magistrate did not state that she had reduced the sentence that she would otherwise have imposed to take into account the appellant's guilty plea. Further, the learned Magistrate did not state that the plea of guilty was a factor that weighed on the decision as to whether imprisonment was unjust under s 61(6) of the Restraining Orders Act. Whilst the learned Magistrate stated that she was taking into account all factors in determining whether to suspend the term of imprisonment, that reference is too oblique or ambiguous to support a finding that her Honour took into account the plea of guilty at the first reasonable opportunity in respect to determining the type of sentence or the length of the term of imprisonment.
The length of the term of imprisonment imposed suggests that her Honour may have afforded a discount to the appellant. For her Honour to impose a term of imprisonment of 6 months 1 day means that she commenced at 7 months 2 weeks or above. The appellant submits that such a starting point supports a finding that her Honour did not take the plea of guilty into account. I am of the view that it is difficult to infer from the term of imprisonment imposed that a significant discount for the plea of guilty was not given. It is most likely that the learned Magistrate did allow a significant discount but failed to state that fact.
In the circumstances of this appeal it is appropriate that I find that the error was material. As I have observed, the plea of guilty at the first reasonable opportunity was a significant factor to the determination as to whether the imposition of a term of imprisonment was unjust. That factor must be considered and weighed in light of all the circumstances of the offending and factors personable to the appellant.
Therefore, leave is granted on ground one. I am satisfied that the learned Magistrate erred in law and therefore, the ground is made out. I grant leave to appeal on ground one. Having established an error in the exercise of the sentencing discretion, the appropriate course is to set aside the sentence imposed by the learned Magistrate and exercise the sentencing discretion afresh. I will address the respondent's contention that there has been no substantial miscarriage of justice, despite the error of law, when exercising the sentencing discretion afresh.
Ground two
By ground two the appellant contends that the learned Magistrate erred in finding that there was a minimum period for which a sentence of imprisonment could be suspended.
The learned Magistrate correctly observed that she was constrained by s 86 of the Sentencing Act as to the length of the term of imprisonment which could be imposed, being that a term of 6 months imprisonment or less could not be so imposed. However, when the learned Magistrate decided to suspend the term of imprisonment, she stated that the period for suspension will be 6 months, 'which is the shortest amount of time I can suspend a term of imprisonment'.[23]
[23] ts 9 (12/06/2023).
The Sentencing Act does not provide for a minimum period of suspension. Rather, s 76(1) of the Sentencing Act provides that if a court sentences an offender to a term of imprisonment, or to an aggregate term of imprisonment for a period of 6 months or less, it may order that the term or terms be suspended for a period set by the court, but not more than 24 months for a maximum period of suspension. In determining the appropriate length of suspension, a relevant consideration is the period required for the rehabilitation of the offender and the seriousness of the offending.[24]
[24] Evans v Vanderheide [2001] WASCA 352, [22]; Zinga v Johnson [2012] WASC 216, [40] - [42].
I am satisfied that the learned Magistrate erred in law, and therefore, the ground is made out. I grant leave to appeal on ground two. I will address the respondent's contention that that there has been no substantial miscarriage of justice, despite the error of law, when exercising the sentencing discretion afresh.
Ground three
By ground three, the appellant contends that the learned Magistrate erred in failing to take into account time spent in custody prior to sentencing. The appellant had spent one day in custody prior to his sentencing. This is accepted by the respondent.
Her Honour did not mention the time spent in custody in her sentencing remarks.
Section 87 of the Sentencing Act provides, relevantly, that when an offender is being sentenced to imprisonment for an offence and the offender has spent time in custody in respect to the offence or another offence, and the sentencing court decides that that time should be taken into account, then credit may be given. The Court may give credit for time spent in custody by various means, including backdating the commencement date of the sentence, reducing the length of the sentence imposed or taking the time in custody into account in deciding as to the extent of the concurrency or accumulation of sentences.[25]
[25] Gullello v The State of Western Australia [2011] WASCA 261, [14] - [22].
The Court is not required to reduce a term of imprisonment by reason of time spent in custody. The Court has a discretion when determining whether it will make an allowance for the time spent in custody and, if so, by how much. The manner in which the discretion is exercised will depend on the individual circumstances of the case.[26]
[26] Jacomb v The State of Western Australia [2021] WASCA 81, [86].
The failure of the learned Magistrate to consider the time spent in custody amounts to an error of law from failing to consider a relevant consideration.[27]
[27] Boddington v The State of Western Australia [2013] WASC 179, [48].
During the sentencing hearing, there was no mention made by the learned Magistrate regarding the time spent by the appellant in custody awaiting sentencing. The respondent submitted that given the nature of the Magistrate's jurisdiction, it is possible that her Honour considered this aspect of the appellant's circumstances but simply did not expressly state that fact. Alternatively, the learned Magistrate decided not to give credit for the time spent in custody.
In any event, the respondent submits that the term imposed was not clearly unjust and that the sentence was commensurate with the seriousness of the offence.[28] That is, notwithstanding an error has been found, there is no substantial miscarriage of justice because the sentence was nevertheless appropriate having regard to the operation of s 61A of the Restraining Orders Act.[29]
[28] Respondent's written submissions, [32].
[29] Respondent's written submissions, [33].
I will grant leave to appeal in respect to ground three and the ground is made out. I will consider the time spent in custody when exercising the sentencing discretion afresh. The time spent in custody is a relevant consideration to determining whether it is unjust to impose a term of imprisonment.
I will consider the contention of the respondent that there has been no substantial miscarriage of justice when exercising the sentencing discretion afresh.
Resentencing - substantial miscarriage of justice
Having established an error in the exercise of the sentencing discretion, I set aside the sentence imposed by the learned Magistrate and will now exercise the sentencing discretion afresh. I will address the respondent's contention that there has been no substantial miscarriage of justice, despite the errors of law.
The Restraining Orders Act legislation is part of the legal response to domestic violence and therefore, is of the upmost importance.[30] The intention of Parliament is clear. Offenders who repeatedly breach FRVOs will be imprisoned.
[30] Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32, [13].
In Rogers v Hitchcock,[31] Hall J referred to the nature and significance of breaches of the Restraining Orders Act stating:[32]
The Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27, 32 [13]. Deliberate breaches of court orders or police orders made under the Act undermine the efficacy of such orders. Deterrence both personal and general must play a significant role when orders are breached. If those who are the subject of such orders believe that they can breach them without suffering any real consequence then there will be little incentive to be compliant. The clear intention of s 61A is to impose the presumption of a sentence of imprisonment for repeat offenders. At the time s 61A was introduced it was said that it was intended to address concerns that repeat offenders were being dealt with too leniently and needed to be dealt with 'in a far more robust way' (Parliamentary Debates, Restraining Orders Amendment Bill 2011, Second Reading Speech, Legislative Assembly, 22 June 2011, pages 1622 - 1623 (Attorney General, The Honourable Christian Porter)).
[31] Rogers v Hitchcock [2015] WASC 120.
[32] Rogers v Hitchcock [2015] WASC 120, [46].
The learned Magistrate found that there was no evidence to support a finding that the appellant was likely to be a threat to the safety of the person protected or the community generally. That finding is not impugned by the respondent. I make that finding.
In determining whether a sentence of or including imprisonment is clearly unjust, regard must be had to the circumstances of the offending and circumstances personable to the offender, aggravating and mitigating factors, and time spent in custody in respect to the offence prior to the imposition of sentence.[33]
[33] Wallam v Grosveld [2015] WASC 145, [42] - [53]; Bernard v Williams [2015] WASC 182, [27]; Day v Millson [2015] WASC 183, [32].
The words 'clearly unjust given the circumstances of the offence and the person' were considered by the Court of Appeal in Gore v The State of Western Australia.[34] In the context of s 279(4) of the Criminal Code, which provides that life imprisonment must be imposed unless that sentence would be 'clearly unjust', the Court of Appeal stated:[35]
Under s 279(4) of the Code, life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'. This statutory language indicates that the imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course. Whether a sentence is clearly unjust is a matter for the evaluative judgment of the sentencing judge, having regard to all of the circumstances of the case. That judgment is to be made by reference to the principles of sentencing set out in s 6 of the Sentencing Act, and having regard to the circumstances of the offence and the offender. The sentence imposed must be commensurate with the seriousness of the offence.
[34] Gore v The State of Western Australia [2017] WASCA 163.
[35] Gore v The State of Western Australia [2017] WASCA 163, [40].
The relevant circumstances to committing the offence of breaching a FRVO include factors such as whether the breach occurred with the consent of the protected person, whether it was an isolated incident or part of a pattern of offending behaviour, and whether the breach involved an offender being physically in the presence of the protected person.[36]
[36] Day v Millson [2015] WASC 183.
I am satisfied that the appellant's offending conduct was towards the lower end of the scale of seriousness. The learned Magistrate made that finding. The offending was not premeditated.
The appellant fell from his bicycle, was wet and needed a change of clothes. He then entered by the gate into the backyard of the protected person's property and entered the shed where he retrieved some of his clothing and changed. The protected person was not present. The appellant did not in any way threaten or intimidate the protected person or another by merely entering the backyard and retrieving clothing. The appellant did not commit any other offence at the time that he breached the FVRO.
However, there is no suggestion that the appellant actually knew that the protected person was not present at the time he attended the property. Nor is there any suggestion that the appellant understood that the protected person was agreeable to him attending the property for any reason or attending on the relevant date. The protected person did not invite the appellant to attend the property. Rather, the appellant decided to do so, completely indifferent to whether the protected person was present. It was fortunate that the protected person was not present. Although the protected person was not present, the mere attending at the property may cause a protected person fear and apprehension. For a protected person, the knowledge that the person restrained attended at their property demonstrates the willingness of the person to breach the FVRO when it suits that person to do so. This in turn causes fear to the protected person. It is the protection from such fear, as well as the risk of physical harm, that FVROs are intended to provide.
Therefore, whilst the circumstances of the offending were at the lower end of seriousness, the appellant demonstrated a disregard of the FVRO when it suited him to do so.
The appellant has a criminal history that includes breaches of FVROs and other court orders. His criminal history includes the following relevant offences:
Offence date Offence Result 24 April 2023 Breach FVRO: Restraining Order Act, s 61 $1000 fine 17 March 2023 Breach FVRO: Restraining Order Act, s 61 $300 fine 22 February 2023 Breach of Police Order: Restraining Orders Act, s 61(2a) $500 fine
(global)
22 February 2023 Breach FVRO: Restraining Order Act, s 61 $500 fine
(global)
21 February 2023 Breach of Police Order: Restraining Orders Act, s 61(2a) $500 fine
(global)
21 February 2023 Breach FVRO: Restraining Order Act, s 61 $500 fine
(global)
18 October 2022 Breach of Police Order: Restraining Orders Act, s 61(2a) $700 fine 1 August 2016 Breach of Police Order: Restraining Orders Act, s 61(2a) $300 fine 29 June 2010 Breach of Violence Restraining Order: Restraining Orders Act, s 61(1) $700 fine (global) 29 June 2010 Breach of Violence Restraining Order: Restraining Orders Act, s 61(1) $700 fine (global) 22 February 2010 Breach of Violence Restraining Order: Restraining Orders Act, s 61(2a) $200 fine
The appellant has also been convicted of possessing prohibited drugs, stealing motor vehicles, assault occasioning bodily harm, breach of bail undertakings, armed robbery, burglary in circumstances of aggravation, breaches of intensive supervision orders, and possession of controlled weapons with intent to cause injury. The appellant has been convicted of driving a vehicle without a driver's licence on 17 occasions. The learned Magistrate correctly gave weight to the appellant's relevant criminal record as a relevant circumstance.
The appellant's previous convictions for breaching a FVRO have been dealt with by fines. An offender who continues to breach FVROs or police ordered restraining orders can expect a magistrate to impose a term of imprisonment. It must be understood that a recalcitrant offender who disregards and breaches FVROs and restraining orders will be imprisoned. It is clear that the appellant has disregarded previous orders under the Restraining Orders Act on numerous occasions, and that previous sentences of fines have not served as a sufficient personal deterrent.
The appellant's plea of guilty is a highly relevant factor not only in determining the length of the term of imprisonment, if imposed, but also in determining whether imprisonment would be clearly unjust. A further relevant factor is the time spent in custody. As I have observed, when considering grounds one and two it is possible that the learned Magistrate did take into account the plea of guilty and the one day spent in custody, but simply failed to state those facts.
In any event, I afford the appellant a 25% discount for his plea of guilty at the first reasonable opportunity and I take that factor into account in determining whether it is unjust to impose a sentence that includes imprisonment, and also in determining the length of the term of imprisonment and whether that term should be suspended.
Further, I take into account the one day spent in custody in determining whether it is unjust to impose a sentence that includes imprisonment, and also in determining the length of the term of imprisonment and whether that term should be suspended.
I have exercised the discretion afresh to determine whether a different sentence should have been imposed. I have taken into account all relevant factors in deciding whether it would be clearly unjust given the circumstances of the offence and the appellant. In the independent exercise of my sentencing discretion I have determined that no different sentence should be imposed. A significant factor in this case is the appellant's history of breaching FVROs and restraining orders. Whilst the appellant's offending was towards the lower end of seriousness, the conduct reveals the appellant's continual disregard of his obligations in respect to the orders made under the Restraining Orders Act. Clearly sentences of fines have not served as a personal deterrent. In those circumstances, and in light of all other relevant factors, I am unable to find that it would be unjust to impose a term of imprisonment suspended.
I am also satisfied that the length of the period of suspension should be 6 months. Given the appellant's previous disregard of restraining orders, it is clear that personal deterrence is a significant sentencing consideration. The period of 6 months suspension is an appropriate period.
Therefore, the appeal must be dismissed.
Ground four
By ground four the appellant contends that the learned Magistrate erred in determining that imprisonment was not clearly unjust given the circumstances of the offence and the appellant. Given that I have allowed grounds one, two and three and, after exercising the sentencing discretion afresh, found that there has been no substantial miscarriage of justice, there is no need to consider ground four.
Therefore, leave to appeal is not granted on ground four.
Conclusion
I grant an extension of time in which to appeal and grant leave to appeal on grounds one, two and three. I am satisfied that each of the three grounds have been made out. After exercising the sentencing afresh, I have determined that the appeal should be dismissed for the reason that no different sentence should be imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
30 NOVEMBER 2023
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