Pillage v Coyne
[2000] WASCA 135
•19 MAY 2000
PILLAGE -v- COYNE [2000] WASCA 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 135 | |
| Case No: | SJA:1020/2000 | 3 MAY 2000 | |
| Coram: | MILLER J | 19/05/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision to impose no sentences set asideFines of $750 and $250 substituted | ||
| PDF Version |
| Parties: | TROY CHRISTOPHER PILLAGE HARLEY PETER COYNE |
Catchwords: | Criminal law Sentence Decision to impose no sentence Sentencing Act 1995, s 46 No reasons given Whether offences "trivial" or "technical" Breaches of restraining order Importance of appropriate penalties |
Legislation: | Fines, Penalties and Infringement Notices Enforcement Act 1994 Justices Act 1902 (WA) Restraining Orders Act 1997 (WA), s 61 Sentencing Act 1995 (WA), s 46 |
Case References: | Bembridge v G-K-R Karate Australia Pty Ltd (1998) 103 A Crim R 362 Dawes v Coyne [2000] WASCA 134 Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 Teede v Wright [1999] WASCA 121 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HARLEY PETER COYNE
Respondent
Catchwords:
Criminal law - Sentence - Decision to impose no sentence - Sentencing Act 1995, s 46 - No reasons given - Whether offences "trivial" or "technical" - Breaches of restraining order - Importance of appropriate penalties
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994
Justices Act 1902 (WA)
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 46
Result:
Appeal allowed
Decision to impose no sentences set aside
Fines of $750 and $250 substituted
(Page 2)
Representation:
Counsel:
Appellant : Ms C J Thatcher
Respondent : No appearance
Solicitors:
Appellant : State Crown Solicitor
Respondent : No appearance
Case(s) referred to in judgment(s):
Bembridge v G-K-R Karate Australia Pty Ltd (1998) 103 A Crim R 362
Dawes v Coyne [2000] WASCA 134
Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Teede v Wright [1999] WASCA 121
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: The respondent was charged in the Court of Petty Sessions at Albany with one offence of unlawful assault and four offences of breaching a violence restraining order. The matter proceeded to a defended hearing before Mr R H Burton SM in the Court of Petty Sessions at Albany on 21 January 2000. After hearing evidence from the complainant in the matter, one Belinda Jane Dawes, and having considered a video-taped record of interview made by the respondent with investigating police officers, the learned Magistrate dismissed the charge of assault and two of the charges of alleged breach of the violence restraining order, but convicted the respondent of two charges of breaching the order. They were charges that the respondent had breached the order by entering the property of the complainant at 37 Stephen Street, Albany, and there communicating with her and by communicating with her by telephone.
2 The background to the case was outlined by me in the matter of Dawes v Coyne [2000] WASCA 134. In essence, it was the case that the respondent and Ms Dawes had been in a relationship for some six years which came to an end in September 1999. Meanwhile, on 12 April 1999, an interim violence restraining order had been made against the respondent upon the application of Ms Dawes. It became a final order on 14 May of that year. The restraining order precluded the respondent (inter alia) from committing or attempting to commit a violent personal offence as defined in the Restraining Orders Act 1997 against the complainant; communicating or attempting to communicate by whatever means, apart from letters, with the complainant; entering upon any premises where the complainant lived (apart from entry required to collect possessions on one occasion only and in company of a police officer); behaving in an intimidatory or offensive manner towards the complainant and behaving in a manner that was likely to lead to a breach of the peace.
3 On the night of 10 May and early hours of the morning of 11 May 1999, the respondent initiated a number of telephone calls to the complainant. Telstra records tendered in evidence at the hearing before the learned Magistrate revealed that from the respondent's telephone number there were eight calls over the period in question, commencing at about 8.24 pm on the night of 10 May and concluding at 3.09 am the following morning. One, made at 00:49:21, was a call about 10 minutes in duration.
4 According to the testimony of the complainant, the respondent had come to her home in the early hours of the morning of 11 May, probably at about 2.30 am. He had there sat on her bed and spoken with her,
(Page 4)
- leaving some time later. The respondent did not testify at the hearing, but a video record of interview he had made with investigating police officers revealed that he conceded having visited the complainant at her home in the early hours of the morning of 11 May, although allegedly for reasons that he was concerned about her welfare. At the time of the telephone call made at 00:49:21, the respondent contended that he was at the complainant's residence.
5 The learned Magistrate found the respondent guilty of the breach of the restraining order by going to the bedroom of the complainant in the early hours of the morning of 11 May and also found proven the charge that he had breached the restraining order by communicating by telephone with the complainant at 00:49:21 hours on the same morning. His Worship made a number of inappropriate comments in the course of his reasons, details of which I have given in my decision in Dawes v Coyne. In particular, his Worship described it a "tragedy when domestic matters of this sort get into the criminal court" and expressed the view that police did not wish to be involved in these matters. When convicting the respondent of the breach of restraining order by visiting the complainant's residence, the learned Magistrate made the curious comment that "he went there and both parties have acted with good will in this, albeit misdirected good will".
6 Unfortunately, the learned Magistrate gave no real reasons at all for either the acquittals or the convictions which he recorded. After the two convictions were recorded, counsel for the respondent informed the Magistrate that his client worked for the Education Department where he earned a salary; pointed out that there had been a great deal of stress in the relationship between the complainant and the respondent; and submitted that the matter should be dealt with by way of imposition of fines. Counsel added that his client could afford to pay a fine. It transpired that the respondent had a record of convictions which was tendered to the learned Magistrate. That record has been made available to me and it shows that between 1977 and 1983 the respondent had a number of convictions, including common assault, but, of course, they were many years before the hearing on 21 January 2000. There had, however, been a conviction for unlawful assault of the complainant on 28 October 1999, when the respondent was fined $250. This was brought to the attention of the learned Magistrate, although he was not informed that it was the complainant who was the victim of the assault.
(Page 5)
7 In dealing with the respondent, the learned Magistrate, without giving any reasons for so doing, decided to impose no penalty. His Worship said:
"Yes. Because I have heard what the complainant has said, I am going to take the unusual course, no fine, $38 costs. No fine, $38 costs on those two matters and I will sign a - - there is a restraining order. Restraining order against B J Dawes, that is how I will deal with it. Yes; thank you that deals with that matter. Thank you."
8 From this disposition of the two charges found to be proven, the appellant has been given leave to appeal to this Court on the following grounds:
(a) The learned Magistrate erred in law and in fact in imposing no penalty or sentence when:
(i) the circumstances of the offences were not trivial or technical; and
(ii) having regard to all relevant circumstances the imposition of another sentencing option was not unjust;
(b) The learned Magistrate erred in law and in fact in that the imposition of no penalty or sentence was so inadequate a disposition in all the circumstances as to manifest error in that he:
(i) failed to have proper regard to the seriousness of the offences;
(ii) failed to give sufficient weight to the maximum penalty expressed by Parliament at section 61 of the Restraining Orders Act 1997; and
(iii) failed to have sufficient regard to the need to impose a deterrent penalty.
(Page 6)
- "A court sentencingan offender may impose no sentence if it considers that -
(a) the circumstances of the offence are trivial or technical; and
(b) having regard to -
(i) the offender's character, antecedents, age, health and mental condition; and
(ii) any other matter that the court thinks is proper to consider,
that it is not just to impose any other sentencing option."
- As I have pointed out, the learned Magistrate made no reference whatever to the provisions of this section, and gave no explanation as to how he could have concluded that the preconditions of the sections were met. This the learned Magistrate was clearly obliged to do, and in my view constitutes a sufficient ground for allowing the appeal. However, I am also of the view that the preconditions of s 46 of the Sentencing Act1995 could not have been met in this case. In the first place, it could not be said that the circumstances of the offence were either trivial or technical. In this respect, I adopt Parker J's definition of "trivial" from Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997, where his Honour said (at 6):
"Trivial, in this context, means of little importance, petty, frivolous, trifling. While it is true that inadvertence of lack of intention may render an act trifling, those qualities are not necessary prerequisites before an offence may be considered trivial."
"I agree that the offences committed by the respondent could not be classified as 'trivial' and there is a very live question as to whether or not they could be classified as 'technical'. Counsel for the appellant suggested that an example of when the circumstances of an offence might be technical would be an offence under s7(1)(f) of the Door to Door Trading Act 1987, which provides that in a prescribed contract, the contract must
(Page 7)
- contain immediately above the place provided for the signature of the consumer a statement 'printed in upper case in type not smaller than 18-point'. Mr Allanson suggested that if the print was in upper case in type of 16-point, this would be an example of the circumstances of the offence being 'technical'. In my view that is a good example of what the word 'technical means' [sic] in s46 of the Sentencing Act 1995.
Recourse to judicial dictionaries is of no assistance in understanding the meaning of the word as used in the section. The word 'technical' is defined in the Concise Oxford Dictionary (6th ed) to include (legally) 'strict legal interpretation' which does not really advance the matter. In their work Statutory Interpretation in Australia (4th ed) D C Pearce & R S Geddes, deal with 'technical words and phrases' (para 4.10) but this is a different issue from the meaning of the word 'technical' as used in s46 of the Sentencing Act 1995. In my view, the submission of counsel for the appellant on the meaning of the word is correctly."
11 I am conscious of the fact that in Teede v Wright [1999] WASCA 121 McKechnie J considered that the word "technical" in the section required a broad interpretation. His Honour said (at 15 - 17):
"15 The focus of attention is as to whether the circumstances of this offence are technical. It is not being contended that the offence was trivial, it was nonetheless a minor offence, as the Magistrate acknowledged.
Principles to be applied
16 The Macquarie Dictionary defines 'technical' as an adjective: 'So considered from a strictly legal view or rigid interpretation of the Rules.' The definition accords with the use of the term in related areas, for example, a technical contempt of Court, see Bell v Stewart (1920) 28 CLR 419 per Isaacs and Rich JJ at 434.
17 Necessarily, the question whether the circumstances can be categorised as giving rise to a technical offence is one for which there can be no comprehensive answer. However, in approaching the question, a sentencing court should take a wide view as to all the circumstances and
(Page 8)
- not narrowly confine the circumstances to those immediately surrounding the actual criminal transaction."
12 In that case, McKechnie J considered that an assault by way of a punch to the head which had caused slight bruising could be categorised as a "technical offence" for the purposes of the section. I must say that I respectfully disagree with McKechnie J in relation to the meaning to be given to the word "technical" in s 46 of the Sentencing Act. In any event, a breach of the law in circumstances where the offence in question can properly be categorised as "social legislation" has important consequences, and, in my view, such a breach could not be categorised as a "technical" breach. I endeavoured to put it this way in Bembridge v G-K-R Karate Australia Pty Ltd (supra) at 369 - 370:
"I do not believe that the circumstances of the offence were technical, in the sense that there had been a technical breach of the law of the type cited by way of example by counsel for the appellant. Here, there had been a clear breach of the law, and although based on what transpired to be erroneous legal advice, the offences were nevertheless breaches of what Bray CJ referred to as 'social legislation, where the preventive and deterrent aspects of punishment assume greater prominence' than might otherwise be the case (Liddy v Cobiac (supra) at 10). The provisions of the Door to Door Trading Act 1987 are designed to ensure that prescribed contracts within the meaning of s6 of the Act comply with a number of requirements, all of which are designed to protect consumers. The legislation is 'consumer legislation' of considerable social importance. Twenty breaches of the provisions of s7 of the Act by the respondent, whether by reason of legal advice that the provisions of the Act were circumvented or not, cannot be described as offences of a technical nature. Given that the word 'technical' is prefaced by the words 'the circumstances of the offence', I am still unconvinced that the circumstances were such as to justify the description of the offences in that way."
13 There is no doubt that the Restraining Orders Act 1997 is social legislation of the utmost importance. I was referred, in the course of argument, to the second reading speech upon the introduction of the Restraining Orders Bill (Hansard Tuesday, 8 April 1997, p1219), where the following statements were made by the Parliamentary Secretary:
(Page 9)
- "This is a matter of particular concern as restraining order play a central role in the legal response to domestic violence by affording what is intended to be ready access to legal protection for victims. In addition, this let will introduce improved protection to children from paedophile activity.
Family or domestic violence is rightly a matter of increasing community concern. Statistics such as those reported in May 1995 by the Crime Research Centre at the University of Western Australia confirm that the incidents of domestic violence are not confined to isolated cases. The problem is very serious and very widespread and demands a multifaceted response. Elements of prevention, legal intervention by the police and courts, advocacy, counselling and health care for victims, treatment of perpetrators, provision of crisis accommodation and other support of victims are involved."
- I am of the view that breaches of a restraining order such as those committed by the respondent in this case could not be properly categorised as "technical" within the meaning of s 46 of the Sentencing Act. Nor could it be said that having regard to the character, antecedents, age, health, mental condition, or any other matter, would it be just to impose no sentence. The respondent was 42 years of age, employed with a regular income and had a prior record of convictions.
14 The penalty for a breach of s 61 of the Restraining Orders Act 1997 in the case of a restraining order of this type was a maximum fine of $6,000 or imprisonment for 18 months. In Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999, Kennedy J (at 6) implicitly approved the observations of a Magistrate whose decision was under appeal to the effect that protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with and in circumstances where they are not, there must be significant consequences to support the fact that restraining orders mean something. His Honour added for himself (at 10):
"It is essential for courts to ensure that their orders are not ignored. Any failure on the part of a defendant to observe a restraining order is likely to generate in the victim genuine fear of further breaches."
15 I am firmly of the view that this was a case in which s 46 of the Sentencing Act had no application whatever. The learned Magistrate was urged by counsel for the respondent to fine his client, and, in all the
(Page 10)
- circumstances, that was the appropriate disposition of the matter. Having regard to the fact that the maximum fine that could be imposed for a breach of the restraining order was $6,000, I have concluded that substantial fines should have been imposed. I do not propose to remit the matter to the Court of Petty Sessions for rehearing, but rather to substitute for the decision of the learned Magistrate what I consider to be appropriate fines in the circumstances of the case. Having regard to the clear social importance of the Restraining Orders Act 1997 and to the vital need that restraining orders, when made, should not be breached, but having regard also to the personal circumstances of the respondent, it is my view that appropriate fines for the two offences of which the respondent was convicted are $750 on charge AL774/99 and $250 on charge AL775/99. The first of these charges relates to the entry to the property and the second the communication by telephone. In relation to the fines, I direct that the provisions of the Fines, Penalties and Infringement Notices Enforcement Act 1994 shall apply.
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