Panetta v Reid
[2021] WASC 436
•10 DECEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: PANETTA -v- REID & ORS [2021] WASC 436
CORAM: HALL J
HEARD: 7 DECEMBER 2021
DELIVERED : 7 DECEMBER 2021
PUBLISHED : 10 DECEMBER 2021
FILE NO/S: SJA 1042 of 2021
BETWEEN: RICHARD CHARLES PANETTA
Appellant
AND
MICHELLE REID
First Respondent
SCOTT LOCKYER
Second Respondent
MICHAEL BICKFORD
Third Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L KEANE
File Number : BU 1480, 1605 and 2297 of 2021
Catchwords:
Criminal Law - Appeal against sentence - Breach of family violence restraining order - Breach of suspended imprisonment orders - Total effective sentence of 15 months' imprisonment - Whether total sentence was unjust or unreasonable
Legislation:
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | Mr B D Nelson |
| Second Respondent | : | Mr B D Nelson |
| Third Respondent | : | Mr B D Nelson |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Briggs v Houlihan [2018] WASC 301
Dennis v Lanternier [No 2] [2017] WASC 5
Forward v Bower [2007] WASC 205
Rogers v Hitchcock [2015] WASC 102
Sellenger v Turner [2021] WASC 308
Smartt v Sloane [2019] WASC 35
HALL J:
(This judgment was delivered extemporaneously on 7 December 2021 and has been edited from the transcript.)
On 18 June 2021 the appellant pleaded guilty to breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). That conviction breached two suspended imprisonment orders for similar offences; one of seven months' imprisonment and one of three months' imprisonment.
The magistrate who dealt with the appellant imposed a sentence of eight months' imprisonment for the primary offence and ordered that the appellant should serve the seven‑month sentence cumulatively and the three-month sentence concurrently. Accordingly, the total effective sentence was 15 months' imprisonment with an order that the appellant be eligible for parole. The sentence was backdated to 23 May 2021 when the appellant first went into custody.
The appellant seeks leave to appeal against the total sentence. He is self‑represented and has prepared the appeal notice and outline of submissions himself. In essence, he asserts that the total sentence was unjust or unreasonable because it was disproportionate to the total offending conduct.
In his written submissions, the appellant advances several reasons why he says the sentence was too long. Firstly, he claims that he did not receive the 25% discount for pleading guilty that was referred to by the magistrate. Secondly, he claims that the magistrate failed to take into account that the argument that was the subject of the primary offence was not with the protected person and that it was not the protected person who called the police. Thirdly, he claims that the magistrate should have ordered all of the sentences to run concurrently.
Facts
The facts of the offences are as follows.
The appellant is a 40‑year‑old man who at all relevant times resided with his parents at their home in Australind. His mother is aged 71 and his father is aged 74. The appellant lives in the enclosed patio area of the house.
On 14 February 2020 the appellant was served with a family violence restraining order. The protected person in respect of that order is his mother and the order expires on 13 February 2022. The terms of the order do not exclude the appellant continuing to live with his parents. However, they require him not to cause or attempt to cause damage to any property of the protected person or behave in an intimidatory, offensive, or emotionally abusive manner to the protected person, or consume illicit drugs at the house.
At 12.50 pm on 29 March 2021 the appellant was at the Australind house with his mother. He caused a disturbance by yelling and swearing at her. He was threatening and abusive. He picked up and threw items around the house. His mother felt threatened and called the police. When police attended, the appellant continued to yell and act in a threatening and abusive manner. He was arrested and charged with breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act.
On 1 April 2021 he appeared in the Magistrates Court, pleaded guilty to the charge, and was sentenced to imprisonment for seven months, suspended for 12 months.
At 11.15 am on 5 April 2021 the appellant breached a police order. The facts relating to that breach are scant. It would seem that for some reason the appellant had been given a police order preventing him from being in or near the family home. A police order can be made where a police officer reasonably believes that a person has committed family violence and is likely to do so again and the order is necessary to ensure the safety of another person. The appellant returned to the house after being given the police order and his mother called the police. Police attended and found the appellant sleeping on a lounge chair at the back of the house. He was arrested and charged with breaching a police order contrary to s 61(2a) of the Restraining Orders Act.
The appellant was remanded in custody on this charge until being granted bail on 23 April 2021. The bail conditions required him to live at a different address and included protective conditions relating to both his mother and father.
On 20 May 2021 he was sentenced to three months' imprisonment, suspended for 12 months, for the breach of the police order offence. The earlier suspended sentence was not activated at that time but the magistrate ordered that the three month sentence was to be cumulative on the earlier sentence and the total of ten months was suspended for 12 months.
It would seem that the appellant returned to live with his parents at the Australind house, though the restraining order continued to apply. At 8.00 am on 23 May 2021 he knocked on the kitchen door and asked to use the toilet. The door was locked because his mother was concerned that his behaviour indicated he had been using methylamphetamines. However, he was allowed inside and then began swearing and threatening his father. One of the threats involved picking up a bar stool in a threatening manner and saying, 'I will smash you'. His mother fled from the house as this was occurring. The appellant was highly agitated and kicked over a bin, damaging the lid. His father also fled the area and called police. The appellant then kicked the toilet door causing it to come off its hinges and causing damage to the plasterboard. The appellant then left the house on foot. He was arrested but not interviewed as police considered he was intoxicated. He was charged with breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act.
The appellant was remanded in custody until being sentenced on 18 June 2021. He pleaded guilty to the most recent offence on that day and that offence breached the existing suspended sentences, which were dealt with at the same time. As the appellant had committed and been convicted of two other relevant offences within the previous two‑year period, he was caught by s 61A of the Restraining Orders Act which relevantly provides that any sentence for the most recent offence must be, or include, imprisonment. Furthermore, the magistrate was obliged to order that the appellant serve the suspended terms of imprisonment unless it would be unjust to do so in all of the circumstances – see s 80(3) of the Sentencing Act 1995 (WA).
Sentencing submissions
At sentencing, the appellant was represented by duty counsel who made submissions on his behalf. Counsel said that the appellant understood that immediate imprisonment was the only option but urged the magistrate to consider concurrent terms. It was submitted that the appellant’s relatively early plea of guilty was a mitigating factor.
Counsel said that the appellant's parents continued to be supportive and his father has visited him in prison. He has a solid work history and it was submitted that he could return to work on release. It was suggested that the underlying problem was drug use and that the appellant was a different person when not under the influence of illicit drugs. The magistrate did not accept this, noting that the appellant had behaved disrespectfully on his last appearance before her and had demonstrated what she described as a blatant disregard for the authority of the court.
Magistrate’s sentencing remarks
In sentencing, the magistrate reminded the appellant that she had dealt him last on 20 May 2021 and on that occasion had told him that the only reason he was not sent to prison immediately was because of the emotional impact it would have on his parents. Her Honour noted that the appellant's parents continued to support him and that they clearly love him despite his behaviour towards them. She referred to the appellant’s parents being elderly people who should not have to live in fear of their son. She said that the appellant was able to control his drug use when working so she did not accept that he could not do so at other times.
Her Honour said that the only significant mitigating factor was the plea of guilty for which she would give the appellant a 25% discount. The magistrate said that the appellant did not have the benefit of youth or prior good character. I will refer to his prior record later in these reasons. She also noted that the most recent offence occurred only three days after receiving the suspended sentence imposed on 20 May 2021.
The magistrate sentenced the appellant to eight months' imprisonment for the most recent offence. She said that this sentence took into account the 25% discount as well as all mitigating and aggravating factors. She ordered that the appellant serve the two suspended sentences of seven and three months respectively, the first cumulatively, the second concurrently. She ordered that the appellant be eligible for parole and backdated the total effective sentence of 15 months to commence on 23 May 2021, the date when the appellant first when into custody.
Merits of the Appeal
Dealing first with the specific matters raised by the appellant, the magistrate expressly referred to the discount of 25% when determining the appropriate sentence for the most recent offence. There is no reason to think that she did not take that factor into account. This does mean that the starting point must have been more than 10 months. Given that the appellant has a poor history of compliance and committed the the offence so soon after being dealt with for breaching the police order, such a starting point does not indicate error in the exercise of discretion.
As regards the alleged failure to take into account that it was not the appellant's mother he argued with and that she did not call the police, it is difficult to see how these facts materially reduce the seriousness of the offence. Whilst it is true that the protected person is the appellant's mother, the admitted facts indicated that she was frightened and intimidated, that property was damaged and that the appellant was intoxicated. The fact that the appellant's father, rather than his mother, called the police is of no consequence in these circumstances.
This leaves the issue of whether the total effective sentence is disproportionate. It is important to note that sentencing is a discretionary exercise and that there is no single correct sentence for an offence or series of offences. On an appeal against sentence alleging implied error, the question is not what sentence the appeal court would have imposed but whether the sentence imposed by the magistrate was open in the proper exercise of the sentencing discretion. The total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally.
In order to determine if a total effective sentence is unreasonable or plainly unjust the court must consider the maximum penalties, customary standards of sentencing, the seriousness of the conduct and the offender's personal circumstances.
The maximum penalty for each of the offences here is two years imprisonment or a fine of $10,000, or both. Imprisonment was required for the most recent offence unless it would be clearly unjust and the person was unlikely to be a threat to the safety of the protected person and community generally.[1] It was not suggested at sentencing or on appeal that that exception applied here.
[1] Restraining Orders Act 1997 s 61A(6)
As to customary standards of sentencing, the circumstances in which offences of this type occur vary widely. It cannot be said that there is an established sentencing range for offences of this type. I have, however, considered sentences imposed in the following cases: Forward v Bower,[2] Rogers v Hitchcock,[3] Dennis v Lanternier,[4] Briggs v Houlihan,[5] Smartt v Sloane[6] and Sellenger v Turner.[7]
[2] Forward v Bower [2007] WASC 205.
[3] Rogers v Hitchcock [2015] WASC 102.
[4] Dennis v Lanternier [No 2] [2017] WASC 5.
[5] Briggs v Houlihan [2018] WASC 301.
[6] Smartt v Sloane [2019] WASC 35.
[7] Sellenger v Turner [2021] WASC 308.
These cases turn on their own individual facts and do not establish upper or lower limits for sentences, they are merely a yardstick for ensuring broad consistency. Not all of those cases involved persistent conduct over a relatively short time, as was the case here. The cases do not, in any event, indicate that the sentences imposed here or the total effective sentence was unreasonable in the particular circumstances.
As to the seriousness of the offending, what made this offending particularly serious was the appellant's repeated disobedience of the family violence restraining order. The magistrate was right to emphasise that the most recent breach occurred only three days after the appellant had last appeared in court. It would seem that the restraining order and the suspended sentence had no real effect on influencing the appellant to change his behaviour. The need for specific and general deterrence loomed large in these circumstances.
Previous breaches, attendances by police and appearance in court had not resulted in an attitude of compliance. It is also relevant that the appellant's record of prior offending, dating back to 1999, was indicative of a disrespect for authority. It included offences of wilfully misleading police, obstructing police, an earlier breach of a police order in 2011, an earlier breach of a violence restraining order in 2012, breach of bail, assault of a police officer and another two breaches of a police order in 2018. The appellant also has numerous damage and drug convictions. The latter indicate that his problems with illicit drugs date back to at least 2015.
Although there is no indication of any actual harm to the appellant's parents, the circumstances of the 23 May 2021 incident were particularly serious. The parents, particularly the mother as the protected person, are elderly and vulnerable. They were in their own home and were entitled to feel secure there. The appellant used his relationship to obtain access to the house. He then behaved in an aggressive and abusive manner. The possibility of actual harm in these circumstances was a real one. In any event, the appellant caused his parents to fear for their safety. Intoxication provided no excuse for the conduct, particularly given that drug use in the home is specifically prohibited by the family violence restraining order.
Conclusion
In all of the circumstances I am not satisfied that the total effective sentence was unreasonable or plainly unjust. Leave to appeal is refused and the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
10 DECEMBER 2021
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