Rogers v Hitchcock
[2015] WASC 120
•7 APRIL 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ROGERS -v- HITCHCOCK [2015] WASC 120
CORAM: HALL J
HEARD: 25 MARCH 2015
DELIVERED : 25 MARCH 2015
PUBLISHED : 7 APRIL 2015
FILE NO/S: SJA 1020 of 2015
BETWEEN: ADAM WILLIAM ROGERS
Appellant
AND
AARON JAMES HITCHCOCK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S P RICHARDSON
File No :MH 2350 of 2014
Catchwords:
Criminal law - Appeal against sentence - Breach of a police order contrary to s 61 Restraining Orders Act 1997 (WA) - Two previous offences - Whether s 61A applicable - Whether sentence of 7 months' imprisonment unjust - Failure to take time in custody into account - Failure to comply with s 9AA Sentencing Act 1995 (WA)
Legislation:
Restraining Orders Act 1997 (WA), s 61A
Spent Convictions Act 1988 (WA), s 14, s 25
Result:
Leave to appeal granted
Appeal allowed
Sentence set aside and appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr D B Nelson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Burrows v The State of Western Australia [2014] WASCA 147
Casotti v Pickering [2013] WASC 174
D'Costa v Roe [2013] WASC 99
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Plant v Harrington [2010] WASC 364
Roe v D'Costa [2014] WASCA 118
Smith v C [2001] WASCA 262
Zinga v Johnson [2012] WASC 216
HALL J: This appeal against sentence was heard by me on 25 March 2015. At the conclusion of the hearing I granted leave to appeal, allowed the appeal, set aside the sentence imposed by the magistrate and resentenced the appellant. The following are my reasons for allowing the appeal.
On 11 February 2015 the appellant was sentenced to 7 months' imprisonment for breaching a police order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA). He sought leave to appeal against that sentence on grounds that included that the magistrate had failed to give credit for 83 days that the appellant had spent in custody in respect of the offence prior to being sentenced. The respondent conceded that ground and accepted that, material error in the sentencing having occurred, it was appropriate for the appeal to be allowed and for the appellant to be resentenced. For the reasons that follow that concession was properly made. I will also give consideration in these reasons to the other grounds of appeal.
The facts
The facts of the offence are as follows. At 9.15 pm on 15 May 2014 the appellant was at the Peel Caravan Park in Furnissdale. Also present was the appellant's wife and their two‑year‑old child. A 'domestic incident' occurred which resulted in police attending. There are no details of what this incident involved. However, police issued a 72 hour police order pursuant to s 30A of the Restraining Orders Act.
The police order imposed a number of restraints on the appellant. They included that he not communicate with his wife, not enter or remain at her home address, a house in which they both lived at Dudley Park, and not approach within 100 metres of that house or his wife.
Some hours later, on the morning of 16 May 2014, police attended at the Dudley Park address to conduct a 'welfare check'. I presume this means that the police were not called by the appellant's wife, but decided to check on her wellbeing in the light of events the previous night. Whilst at the house police officers discovered the appellant hiding in a bedroom closet. He was arrested for breaching the police order, which remained operative. When asked for an explanation he said:
I don't give a fuck. I didn't do anything wrong you cunts. I'll be out of here - out of court within half an hour.
The appellant later provided a more detailed explanation for his conduct to the author of the pre‑sentence report. He said that he and his wife had been drinking heavily with a group of friends at the caravan park when a disagreement occurred. They became involved in a verbal altercation and police were called. He returned to his home despite knowing that in doing so he would breach the police order. He said that he felt that the order was unjust and that his wife had requested him to return home.
Personal circumstances
The appellant was 31 years old at the time of the offence. He was born in New South Wales and had a difficult childhood that was marred by the mental illness and alcoholism of his mother. He and his siblings became wards of the State when he was aged five.
The appellant left school in Year 11. He then completed an apprenticeship as a chef. He had been continuously employed in that role, other than when remanded in custody.
The appellant had been in an earlier relationship in New South Wales which had produced four children, but he had had no contact with them for several years. He moved to Western Australia and married his wife in 2013. He acknowledged that there had been 'communication problems' in this relationship that had resulted in police attendance on other occasions.
The appellant and his wife have a son, the two‑year‑old child who was present with them at the caravan park. Sometime shortly after that incident the child was taken into care. The appellant and his wife had been told by the Department of Child Protection that they must remain abstinent from alcohol and drugs and display positive conflict management for 12 months before they would be eligible to be reunited with their son.
The appellant was in good health. However, he acknowledged problematic drug and alcohol use. He had abstained from alcohol until aged 23, having seen its effects on his mother. But once he started drinking he began to do so in a binge pattern, often drinking to the point of blacking out. He commenced using methylamphetamine in November 2013. That drug had become a catalyst for issues within the marriage, often causing arguments and ongoing tension.
The appellant had a relatively minor Western Australian criminal history, but it did contain two relevant prior convictions. They were both previous breaches of police orders. The first of these occurred on 16 February 2013. That offence had occurred when police were called to the appellant's home address in the early hours of the morning to deal with a domestic dispute with his wife. The appellant was issued with a 12 hour police order which included a condition that he not enter or remain at the house or be within 100 metres of its extended boundary. A short time later the appellant was arrested on the driveway of the house. His explanation at that time was that he had nowhere else to go. The appellant was convicted of that offence on 16 February 2013 and received a spent conviction and a fine of $500.
A second offence occurred on 6 October 2013. The facts of that offence were similar. On the early evening police attended to deal with a domestic incident at the Dudley Park house. The appellant was issued with a 24 hour police order. A short time later he was arrested by police running back to the house. His explanation was that he had nowhere else to stay. He was convicted of that offence on 11 October 2013 and was fined $750.
Proceedings in the Magistrates Court
After his arrest on 16 May 2014 the appellant appeared in the Magistrates Court on the same day and was remanded in custody. He remained in custody on this charge until 6 August 2014 when he was granted bail on conditions that included a protective condition that he not contact his wife. By the time of his release on bail the appellant had spent 83 days in custody.
Prior to being released on bail the appellant had appeared in the Magistrates Court on 9 July 2014 and pleaded guilty to the charge. It would appear that he was not sentenced at that time because it was proposed that he be given an opportunity to participate in a programme relating to domestic violence. After being granted bail the appellant commenced a domestic violence behaviour change programme under the supervision of the Rockingham Family Violence Court. He completed 21 of 26 sessions of that programme over the following five months. During that period there were three non‑attendances, but two of them were work related and none were considered serious enough to terminate his participation. His inability to complete the programme was the result of being remanded in custody for other offences on 23 January 2015. I will refer to those offences in more detail shortly.
A final progress report for the programme was made available to the sentencing magistrate. The report noted that the appellant disputed some negative comments that had been made in previous progress reports. However, the report stated that 'overall, Mr Rogers generally reported as directed and engaged well'. Feedback from the facilitators of the programme was that the appellant was generally quiet and attentive in group sessions. Whilst he did not usually provide input unless invited to do so, towards the end of his engagement it was noticeable that he began to provide input voluntarily. There was a suggestion that the appellant may have been minimising his behaviour and taking a victim stance in regard to the impact of court proceedings upon his ability to attend child contact sessions. However, at other times the appellant had demonstrated an awareness of what responsible behaviour on his part would look like. The report writer concluded that the appellant had made no identifiable treatment gains during the programme and was not considered suitable for a further community based disposition. That conclusion does not appear to be well supported by the contents of the report.
As I have noted the reason why the appellant was not able to complete the programme was that he committed other offences and was remanded in custody on 22 January 2015. It seems that it was because of the inability to complete the programme that the magistrate decided to sentence the appellant for the offence that is the subject of this appeal. Whilst the offences of 22 January 2015 obviously post‑date the offence committed on 16 May 2014 they were taken into account by the magistrate in assessing the appellant's personal circumstances. Accordingly, it is relevant to consider the facts of those offences.
On 22 January 2015, whilst on bail, the appellant attended at his wife's home address on two occasions. This was in breach of the protective bail condition and resulted in him being charged with two offences contrary to s 51(2a) of the Bail Act 1982 (WA). The facts of those offences were that on the morning of 22 January 2015 the appellant spoke by telephone to his wife. They then went shopping together before returning to the house and the appellant leaving at about 3.30 pm. He then returned that evening at about 8.45 pm. When arrested the appellant said that his wife's mother had contacted him the previous evening and expressed concerns about her behaviour and suggested that she was self‑harming. He said that it was due to concerns about her welfare that he had gone to her house on the two occasions that day.
The appellant was remanded in custody on the breach of bail charges. He subsequently pleaded guilty to those charges and was sentenced to a global fine of $600 on 4 February 2015. The original bail for the offence of breaching the police order had not been revoked. Accordingly, after being dealt with for the bail offences the appellant was again released from custody with a requirement that he appear in the Magistrates Court in Rockingham on 11 February 2015, for sentencing on the original charge of breaching the police order.
The Restraining Orders Act 1997 (WA)
The maximum penalty for an offence of breaching a police order is a fine of $6,000 or imprisonment for two years or both: s 61(2a) of the Restraining Orders Act.
In some circumstances repeated offending of this nature will attract a statutory presumption that imprisonment is to be imposed as a penalty. Section 61A of the Act provides as follows:
Penalty for repeated breach of restraining order
(1)In this section -
conviction -
(a)includes a finding or admission of guilt despite a conviction not being recorded under the Young Offenders Act 1994 section 55; and
(b)does not include a conviction that has been set aside or quashed.
(2)This section applies if a person -
(a)is convicted of an offence under section 61(1) or (2a) (the relevant offence); and
(b)has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before the person’s conviction of the relevant offence.
(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 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 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.
(7)A court that does not, because of subsection (6), impose a penalty on a person that is or includes imprisonment or detention must give written reasons why imprisonment or detention was not imposed.
(8)In subsection (7) -
written reasons includes reasons that are -
(a)given orally and subsequently transcribed; or
(b)given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
In order to fall within s 61A(2)(b) a person must have committed and been convicted of at least two relevant offences within a period of two years before the person's conviction of the offence with which they fall to be sentenced. In the present case the two year period was to be calculated back from the date on which the appellant pleaded guilty, that is 9 July 2014. Within the two years prior to that date the appellant had committed and been convicted of two other similar offences. Furthermore, the commission of those offences and convictions had occurred sequentially: Roe v D'Costa [2014] WASCA 118. In these circumstances s 61A had application and it was on that basis that the sentencing in the Magistrates Court proceeded.
On the hearing of the appeal an issue was raised as to whether the fact that a spent conviction order was made in respect of the first offence had any effect on whether it could be counted for the purposes of s 61A. Section 25 of the Spent Convictions Act 1988 (WA) provides that a preference in a written law to a conviction of a person for an offence 'does not include a reference to a spent conviction'. However, that general rule is subject to an exception in s 14(2)(b) of the Spent Convictions Act. Section 14(2)(b)(ii) provides that s 25 of the Act does not apply in a court or tribunal for the purpose of 'a determination of the appropriate punishment to be imposed by that court or tribunal for an offence'. The effect of the exception is to displace the general rule where the presence of prior convictions is relevant in fixing an appropriate punishment: Smith v C [2001] WASCA 262 [37].
The purpose of s 61A is not to impose any additional penalty for previous offences but rather to fix an appropriate penalty, subject to exceptions, where a person has repeatedly committed offences of the same type. In these circumstances there is a strong argument that s 14(2)(b)(ii) is applicable and that the first conviction is to be counted notwithstanding the spent conviction order.
In Smith the circumstances were different to the extent that s 45(5)(a)(1) of the Sentencing Act 1995 (WA) specifically provides that a spent conviction order does not affect the right or duty of a court to disqualify an offender from holding or obtaining a driver's licence and the previous convictions in that case were spent by operation of the Spent Convictions Act rather than by order under the Sentencing Act. However, notwithstanding those differences, it appears to me that the reasoning in Smith should be applied in the present circumstances.
Whilst there is no specific reference in s 61A to spent convictions, there would be no need to make such reference on the assumption that the exception in s 14 of the Spent Convictions Act applies. Furthermore, it would defeat the apparent objective of s 61A if a person who had repeatedly committed offences of this type could argue that one of their past offences could not be counted because they had received a spent conviction on that occasion. Section 61A is intended to address those people who subsequently manifest persistent behaviour in this respect. That persistence is unlikely to have been apparent when any spent conviction was ordered. It would be wholly artificial to require a court to ignore a past offence of a similar type simply because the person received the dispensation of a spent conviction order on the facts which then existed.
For these reasons I am of the view that the magistrate was correct to treat the appellant as being a person to whom s 61A applied. In those circumstances her Honour was obliged to sentence the appellant to a term of imprisonment, either immediate or suspended, unless the conditions in s 61A(6) were satisfied. Both of those conditions were required to be met. That is, the magistrate would need to be satisfied that imprisonment would be clearly unjust given the circumstances of the offence and the appellant's personal circumstances and also satisfied that the appellant was unlikely to be a threat to the safety of the protected person or the community generally.
Sentencing submissions
In sentencing submissions in the Magistrates Court counsel appearing for the appellant submitted that it would be unjust to impose a prison sentence in the circumstances. Counsel emphasised the following factors. First, that there was no violence alleged towards the protected person. Secondly, that the offence had occurred some eight months earlier and that by the time of sentencing it was nearly two years since the first breach of a police order. Thirdly, that the appellant had participated in a programme and had almost completed it. He was unable to complete it due to circumstances beyond his control. Fourthly, that prior to being released on bail and participating in the programme he had spent approximately 12 weeks in custody in respect of this matter. It was submitted that had the appellant been sentenced when he pleaded guilty any sentence of imprisonment would have been backdated and largely completed. It was suggested that in these circumstances it was to the appellant's credit that he had requested that he be assessed for a family violence programme rather than being sentenced immediately. He had undertaken a programme in circumstances where the likely benefit to him in reducing any sentence was doubtful given the time in prison already served.
Counsel for the appellant also submitted that the appellant had been working full time as a chef and attending Department of Child Protection contact visits whilst he was on bail. He was working towards being reunited with his son and this was his sole focus. His endeavours towards achieving that goal had included abstaining from drinking since about May 2014. He was also intending to undertake alcohol counselling. He had the financial capacity to pay a fine and was prepared to comply with any community based disposition.
In regards to whether there was any threat to the safety of the protected person or the community generally, the appellant's counsel stated that there were no offences of violence in regard to the protected person and that she was present in court on that day in support of the appellant. She had not taken any steps to obtain a violence restraining order.
The prosecutor submitted that given the application of s 61A and some of the negative comments made in the final programme report, a sentence of imprisonment was appropriate. The prosecutor then said:
But if your Honour was to deem that as time already served whilst on remand for this matter it certainly wouldn't be objected to by the prosecution. But, as I say, ultimately the legislation is there for these very reasons. If your Honour is minded to impose a financial penalty then I would ask that it be significant for the fact of the previous breaches and that there seems to be an unwillingness by Mr Rogers to comply with these orders that are placed out there for the protection of people and sometimes other members of his family. He does fall foul of the legislation, your Honour. I would submit that imprisonment be backdated as time already served (ts 60).
Sentencing remarks
The magistrate referred to the facts of the offence and that s 61A applied. She referred to the appellant being in custody until released on 6 August 2014 and his subsequent participation in a family violence programme. She noted that the appellant pleaded guilty on 9 July 2014. She referred to the bail offences in January 2015 and that they related to the appellant having contact with the same protected person.
Her Honour then said:
Considering all before the court today, it is my view that it, indeed, would not be unjust to sentence you as required by the legislation unless these exceptions are met. I am simply not satisfied that you are unlikely to be a threat to the safety of the victim. In that finding, I am, in my view, reinforced by the recent contraventions of the protective bail conditions which had been put in place, indeed, to ensure the safety of the other party and yet you have breached those and, accordingly, been convicted of matters relating to that.
I hear what has been said otherwise. But it seems to me that as regards your entry and progress on the Family Violence Program, you certainly did go to various of the supervision sessions. I note that there is still concerns there as regards your, at times certainly, refusal to accept any blame, your tendency to minimise and that further gives me concerns as regards the safety of the victim.
Accordingly, given that that limb of the test, in my view, is certainly not met and despite all other matters I have heard, on balance, it is my view that this is a matter where the requirements of the Act, indeed, help up in terms of you should be imposed or you should be subject to an immediate term of imprisonment and I am going to make that order today.
Taking into account the maximum term of the matter - the seriousness of the matter - and it is, in my view, serious to offend in such ways. I have had access to various other matters as regards yourself today in the various reports that I have had. I have come to the view that a seven month immediate term of imprisonment is appropriate.
As to the application for this term to be suspended, given matters that I have already referred to, I am not satisfied that, indeed, this is a matter where the term of imprisonment should be suspended. It seems to me that Mr Rogers has difficulties with, in fact, complying with various orders that he is placed on and I am not satisfied that, again, I can be assured of the safety of the person if I was to suspend this time and it will be served immediately. All right. Thank you (ts 8 - 9).
Grounds of appeal
The grounds of appeal contained in the notice of appeal are as follows:
1.The learned sentencing Magistrate erred in law in sentencing the appellant to a term of imprisonment when it was clearly unjust to do so, having regard to:
i.the objective level of seriousness of the particular offence for which the appellant was being sentenced.
ii.the appellant's time in custody prior to commencement of the family violence programme, and
iii.the appellant's completion of 21 session of Communicare's Family Without Fears Programme,
and in circumstances where the appellant was unlikely to be a threat to the protected person or the community generally, given:
i.the offence for which he came to be sentenced involved no allegation of violence, and
ii.the applicant has no prior convictions for offences of violence.
2.The learned sentencing Magistrate erred in ordering that the term of imprisonment imposed be served immediately, when in all of the circumstances it was open to suspend the term.
3.The learned sentencing Magistrate erred in failing to backdate the sentence of imprisonment imposed upon the appellant.
A fourth ground was later added by consent. It provides as follows:
4.The learned sentencing Magistrate erred in law in failing either to give the appellant credit for his plea of guilty, or to specify the reduction to his head sentence as required by s 9AA(5) of the Sentencing Act 1995 (WA).
I will deal with ground 3 first as it is conceded by the respondent. Given that ground 3 succeeds it is strictly unnecessary to consider the other grounds, but I will do so because they raise issues that are relevant in resentencing.
Ground 3 - failure to give credit for time spent in custody
Section 87 of the Sentencing Act provides that if an offender is sentenced to imprisonment for an offence and has previously spent time in custody in respect of that offence and for no other reason and a sentencing court decides that that time should be taken into account it may be taken into account by either reducing the term or by backdating the term of imprisonment.
Whilst the power to backdate a sentence is discretionary, there was no reason not to exercise that discretion in the circumstances of this case. The appellant had spent 83 days in custody in respect of the offence and for no other reason. The prosecutor did not oppose the sentence being backdated, indeed he submitted that it should be. The magistrate was clearly aware of the time spent in custody and there is no suggestion in her reasons that she had come to a conclusion that credit for that time should not be given. The only reasonable inference is that the magistrate overlooked giving credit when she came to formally impose the sentence.
The respondent conceded that the magistrate had erred by failing to exercise the discretion to take into account the time spent by the appellant in custody and that leave in respect of ground 3 should be granted and the appeal allowed. That concession was properly made. An error in the exercise of sentencing discretion having been established the appropriate course is to set aside the sentence imposed by the magistrate and exercise the sentencing discretion afresh. This permits matters which have occurred since the original sentence was imposed to be taken into account. I will return to the resentencing exercise later in these reasons.
Ground 1 - were the conditions of s 61A(6) met?
The magistrate referred to s 61A(6) and accurately described the discretion that fell to be exercised. Her Honour did not make any express factual findings in relation to the first condition, stating only:
It is my view that it, indeed, would not be unjust to sentence you as required by the legislation unless these exceptions are met.
Her Honour then went on to consider the second condition and concluded that, 'given that that limb of the test, in my view, is certainly not met' the presumption of imprisonment was appropriate.
It was not necessary for the magistrate to conclude that both the conditions were not met. If one of the conditions was not met the presumption of imprisonment would apply. However, it is submitted on behalf of the appellant that on the available evidence a sentence of imprisonment was unjust and there was no basis for concluding that there would be a threat to the safety of the protected person or the community generally. That is to say that the evidence supported a conclusion that both of the conditions were met.
In regard to whether the sentence of imprisonment was unjust, the appellant referred to the following factors:
1.the facts of the offence did not place it at the high end of the scale of seriousness for offending of this type, particularly given that there was no allegation of actual or threatened violence;
2.the appellant breached the police order by returning to the home that he shared with the protected person. There was no court imposed violence restraining order in place and no suggestion that the protected person had contacted the police to report his presence;
3.the previous two offences were also of a less serious type and had attracted relatively small fines and, in the case of the first offence, a spent conviction order; and
4.the appellant had already spent 83 days in custody in respect of the offence, had pleaded guilty at a relatively early stage and had participated in a family violence programme.
As regards any threat to the safety of the protected person or the community generally, the appellant submits that the magistrate appeared to come to the conclusion that the appellant was a threat to the safety of the protected person because of his recent history of breaching protective bail conditions. However, it is submitted that the facts of those convictions do not support the conclusion reached by the magistrate. There was no suggestion in the facts of those offences that the appellant had done or threatened or intended any violence to the protected person. Indeed, the facts indicated that he had seen her because he had been asked to do so by her mother who was concerned about her mental health and risk of self‑harming.
The respondent submits that the magistrate expressly recognised factors favourable to the appellant but that there were a number of strong countervailing factors. These included:
1.that this was the third breach of a police order within a two year period;
2.that the appellant was found hiding in the bedroom closet, indicating a clear understanding of the prohibition and an effort to avoid being discovered in breach of it;
3.that there had been reported concerns about the appellant's participation in the family violence programme, including minimisation of, and refusal to accept, blame and 'demonization' of others;
4.that there had been a recent breach of the protective bail conditions in respect of the same protected person; and
5.the fact that the inability to complete the programme was a result of the appellant's breach of bail.
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 concern 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)).
Whilst it is true that none of the three breaches of police orders had involved actual or threatened violence, the appellant had manifested a refusal to accept the authority of such orders. The nature and severity of the previous breaches did need to be taken into account, see D'Costa v Roe [2013] WASC 99 [48]) but that was not the only relevant consideration. Each breach had occurred within a very short time of the order being issued and had been a knowing and deliberate refusal to accept the order. The comments of the appellant when found hiding in the bedroom cupboard indicated an attitude of contempt for the law. In these circumstances it would be difficult to conclude that the presumptive sentence of imprisonment would be clearly unjust. The conclusion of the magistrate that the first condition in s 61A(6) was not met was open on the evidence before her.
I have more difficulty with the magistrate's conclusion that the safety of the protected person was threatened. Such a conclusion might possibly be supported by a history of continued contact with a protected person in defiance of orders, however the particular factual circumstances of these offences and the breach of bail offences did not support such a conclusion. However, it is only necessary for one of the conditions in s 61A(6) to be excluded.
I am not satisfied that the magistrate erred in law in concluding that the exception in s 61A(6) did not apply. Whilst I would grant leave in respect of this ground of appeal, the ground cannot succeed.
Ground 2 - failure to suspend
While s 61A refers to the imposition of a sentence of imprisonment in circumstances to which it applies, it does not exclude the possibility that such a sentence can be suspended. A suspended sentence of imprisonment is a sentence of imprisonment. It is submitted on behalf of the appellant that for the same reasons relied upon in respect of ground 1 it was open to suspend the term of imprisonment.
A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles set out in the Sentencing Act that it is not appropriate to suspend the term: s 39(2) and s 39(3), Ness v The State of Western Australia [No 2] [2013] WASCA 56 [26] ‑ [27] (Buss JA). Although s 61A(3) states that the section applies despite the Sentencing Act that exclusion does not apply where there is a choice between suspended imprisonment and imprisonment because the section is not inconsistent with the Sentencing Act in that respect. The use of the word 'despite' in this context implies that s 61A will apply notwithstanding anything in the Sentencing Act with which it is inconsistent. This is clearly a reference to s 6(4) and s 39, the effect of which is that a sentence of imprisonment cannot generally be imposed unless all other sentencing options have been excluded. In the circumstances to which it applies s 61A excludes that requirement and, indeed, imposes a rebuttable presumption of imprisonment. However, s 61A is not inconsistent with a requirement that immediate imprisonment should only be imposed where suspended imprisonment has been excluded. Accordingly, even where s 61A applies and the presumption of imprisonment applies the sentencing magistrate is required to consider, and exclude, suspended imprisonment before concluding that a sentence of immediate imprisonment must be imposed.
In this case the magistrate referred to the possibility of suspending the sentence and concluded that suspension was not appropriate. In order to succeed under this ground of appeal the appellant must show that it was not open for the magistrate to impose the sentence that she did in the proper exercise of her sentencing discretion. Given that sentencing is an exercise that requires the weighing of discretionary factors it is difficult to come to a conclusion that the only appropriate view of the circumstances was that a suspended sentence was an option here. It was open to the magistrate to give more weight to factors that aggravated the offence and less weight to mitigating factors and conclude that a suspended sentence was inappropriate. It may be open for other views to be taken of the weight to be given to the various relevant factors, but that is in the very nature of discretionary decision‑making and is not indicative of error. An appellate court is not entitled to intervene merely because it might have exercised the sentencing discretion in a different manner: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 and Plant v Harrington [2010] WASC 364 [34] ‑ [36]. I would refuse leave in respect of this ground.
Ground 4 - failure to give credit for guilty plea
Section 9AA of the Sentencing Act provides that where a person pleads guilty to a charge the court may reduce the sentence of imprisonment to be imposed in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. Such a discount cannot exceed 25% and the maximum discount can only be allowed if the offender pleaded guilty or indicated that he would plead guilty at the first reasonable opportunity. If a court reduces the head sentence for an offence under s 9AA the court is required to state that fact and the extent of the reduction in open court.
The magistrate referred in her sentencing remarks to the fact that the appellant had pleaded guilty on 9 July 2014. In doing so her Honour appeared to recognise that the plea was not entered at the first reasonable opportunity, but there was no suggestion that it was otherwise undeserving of any discount.
The magistrate did not make any specific reference to a percentage reduction for the plea of guilty. This could be for one of two reasons. It may be that her Honour came to the conclusion that no discount was appropriate. Alternatively, it may be that her Honour considered that a discount was appropriate but failed to make specific reference to it. 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: Burrows v The State of Western Australia [2014] WASCA 147 [32].
It is true that the appellant's plea of guilty was not entered at the first reasonable opportunity, but it was entered at a reasonably early stage. The prosecution case was clearly a very strong one and that is a factor that can be taken into account in assessing the benefits to the State of any plea: Beins v The State of Western Australia [No 2] [2014] WASCA 54 [57]. However, the respondent accepted that the appellant's guilty plea would have resulted in some benefits of the type referred to by Buss JA in Abraham v The State of Western Australia [2014] WASCA 151 [56]. In the circumstances it would be expected that some discount would have been given for the plea of guilty, although it may have been significantly less than the maximum of 25%. The issue then is whether it can be inferred from the sentence imposed that the magistrate must have failed to allow any appropriate discount for the plea of guilty. In essence this requires that the sentence of 7 months' imprisonment be shown to be inconsistent with such a discount.
It is difficult to infer from the sentence of 7 months' imprisonment that was imposed that an appropriate discount for the plea of guilty was not given. It is possible that the magistrate did allow an appropriate discount but simply forgot to state it. The discount could have been a relatively small one such that the starting point was only marginally higher than the sentence imposed. Whilst I would allow leave to appeal in respect of this ground the ground cannot succeed.
Resentencing
By the time this appeal was heard the appellant had spent six weeks in prison serving the sentence imposed by the magistrate. When this is added to the 83 days that the appellant spent on remand prior to 6 August 2014 he had served a total of 18 weeks in prison in respect of this offence. Any resentencing would need to take into account that time spent in custody.
Whilst in prison the appellant had undertaken some further steps towards his rehabilitation. Documents in this regard were provided on the appeal. He had almost completed an eight week drug and alcohol programme, had been attending regular Alcoholics Anonymous meetings and had entered into a participation agreement with the Holyoak Rehabilitation Centre to take part in a drug and alcohol programme.
Section 61A applies to the resentencing process. I am satisfied in the circumstances that now exist that it would be unjust to impose an immediate sentence of imprisonment. Whilst the offending conduct may well have been serious enough to justify a sentence of imprisonment it would not be just to impose such a sentence now given the time already spent in custody and the further steps towards rehabilitation. Nor would it be appropriate to impose a suspended sentence as such a sentence cannot be backdated to take into account time served (Zinga v Johnson [2012] WASC 216 [23] and Casotti v Pickering [2013] WASC 174) and if the sentence was reduced to take into account the time in custody it would be a sentence of less than six months which is prohibited by s 86 of the Sentencing Act.
At the appeal hearing the appellant advised that if released he would return to full time work and had the capacity to pay a fine. In these circumstances I made the following orders:
1.Leave to appeal on grounds 1, 3 and 4 be granted.
2.The appeal be allowed on ground 3.
3.The sentence of 7 months' imprisonment imposed on 11 February 2015 be set aside and in lieu thereof the appellant be fined $1,500.
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