Sellenger v Turner - [2021] WASC 308

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SELLENGER -v- TURNER [2021] WASC 308
CORAM:   STRK J
HEARD:   7 SEPTEMBER 2021
DELIVERED          :   7 SEPTEMBER 2021
PUBLISHED           :   7 SEPTEMBER 2021
FILE NO/S:   SJA 1049 of 2021
BETWEEN:   LUKE JOHN SELLENGER
Appellant
AND
BARRY TURNER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B TYERS
File Number            :   BU 1005 of 2021, BU 1006 of 2021, BU 1007 of 2021

Catchwords:

Sentencing - Breaches of police orders - Stalking - Whether the total effective sentence imposed breached the first limb of the totality principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time to appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	N Sinton
Respondent	:	J Berry

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

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

AD v Western Australia [No 2] [2007] WASCA 207
Babaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Clarke v The State of Western Australia [2018] WASCA 190
Dennis v Laternier [No 2] [2017] WASC 5
Kabambi v The State of Western Australia [2019] WASCA 44
Lancaster v The Queen [1989] WAR 83
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Miller v The State of Western Australia [2021] WASCA 138
Musgrove v Millard [2012] WASC 60
Pillage v Coyne [2000] WASCA 135; (2000) 1113 A Crim R 27
Robertson v The State of Western Australia [2009] WASCA 83
Rogers v Hitchcock [2015] WASC 120
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smartt v Sloane [2019] WASC 35
Trajkoski v The State of Western Australia [2018] WASCA 176
Wimbridge v The State of Western Australia [2009] WASCA 196

STRK J:

(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)

Introduction

On 26 March 2021, the appellant pleaded guilty to, and was convicted of, three offences:
(a)two counts of breaching a police order committed on 24 February 2021 and 25 February 2021 respectively, contrary to the Restraining Orders Act 1997 (WA) s 61(2a) (BU 1005 and 1006 of 2021); and
(b)one count of pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person (stalking), committed between 23 February 2021 and 25 February 2021 contrary to the Criminal Code (WA) s 338E(2) (BU 1007 of 2021).

On 28 May 2021, the appellant was sentenced by the Magistrates Court at Bunbury to a total effective sentence of 14 months' immediate imprisonment, backdated to 25 February 2021. The sentence was comprised of:
(a)8 months for one breach of police order (BU 1005 of 2021);
(b)2 months for the other breach of police order (BU 1006 of 2021); and
(c)4 months for stalking (BU 1007 of 2021),
all sentences being made cumulative on one another.
Upon the prosecutor's application, the learned Magistrate also declared the appellant to be a serial family violence offender under the Sentencing Act 1995 (WA) s 124E. During the course of the sentencing proceedings, counsel for the appellant conceded that the appellant met the criteria under the Sentencing Act to be so declared.[1]
[1] ts 12 (28 May 2021) (transcript of sentencing proceedings).
The appellant appeals his sentence on one ground, alleging that the total sentence imposed infringed the first limb of the totality principle.
I deliver these reasons immediately as the appellant is in custody. It is important to resolve this appeal quickly having regard to the length of the sentence, the term of which commenced on 25 February 2021; and the order made by the Magistrate that the appellant be eligible for parole.

The facts

The facts of the offending are set out in the statement of material facts, a copy of which was filed by the appellant on 19 August 2021. The appellant took no issue with the facts in the sentencing proceedings or in this appeal. For the purpose of this appeal, it is important to consider the extent to which the facts comprising each offence overlapped. I therefore reproduce below the facts for each offence.

BU 1005 of 2021 - breach of a police order

On 23 February 2021 at 5.49 pm, the appellant was served a police order (number 449631). The police order was to expire on 26 February 2021 at 5.00 pm. The protected person was the appellant's ex-partner (described throughout these reasons as the protected person). The police order was issued following a family and domestic violence incident reported to police on 23 February 2021.
A condition of the police order included that:
The person bound shall not enter or remain upon 7 Mulga Rd GLEN IRIS or any other premises where the person protected lives or works or be within 100 metres of the nearest external boundary of such premises.
The person protected is employed by Australia Post and works at the post office located at Victoria Street and Stirling Street Bunbury. This was known to the appellant, having been in a family relationship with the protected person since September 2020.
On 24 February 2021 at about 2.15 pm, police observed a white Honda Civic with registered number one GPU887 driving south on Wittenoom Street, Bunbury. The vehicle is owned by the mother of the appellant and utilised by him.
The vehicle was observed to turn left into Stephen Street, right onto Victoria Street and right onto Stirling Street, Bunbury.
At the top of Stirling Street at the rear of Bunbury Magistrates Court, the vehicle followed the loop around continuing back down Stirling Street. The vehicle slowed and stopped adjacent to the entry to the Post Office staff car park. This would have been around 4 m from the Post Office walls. When interviewed the appellant admitted that he was attempting to locate the private vehicle of the protected person to ascertain if she was at work.
The appellant drove down to Blair Street and located the protected person driving her private vehicle. He followed her from Blair Street to Koombana Drive, at which time the protected person realised the appellant was behind her. Once in the dual lanes of Koombana Drive the appellant entered the right side lane and the protected person allowed him to overtake to the side of her, positively identifying the appellant as driving the vehicle.
The appellant continued to drive in front of the protected person and drove into the car park of the Bunbury Farmer's Market on Vittoria Road as the protected person was held up by traffic lights. The appellant reversed into a parking bay before pulling out and returning to the entrance/exit and pulling out onto Vittoria Road once the protected person had driven past.
The appellant continued to follow the protected person and drove around the side streets near her home, including stopping just outside of the 100 m exclusion zone.
These actions were witnessed by two police officers.
Further, later that evening, the appellant telephoned the protected person on at least five occasions between 8.30 pm and 10.00 pm. Just after 10.00 pm, the appellant initiated a FaceTime call from his mobile telephone to the protected person's mobile. This call was not accepted.
On 25 Fairbury 2021, the appellant participated in an electronic record of interview during which he made partial admissions.

BU 1006 of 2021 - breach of a police order

On 23 February 2021 at 5.49pm, the appellant was served with a police order (number 449631). The police order was to expire on 26 February 2021 at 5.00 pm. The protected person was the appellant's ex-partner. The police order was issued following a family and domestic violence incident reported to police on 23 February 2021.
A condition of the police order included that which is reproduced at [8] above.
The person protected, is employed by Australia Post and works at the post office located at Victoria Street and Stirling Street, Bunbury. The appellant was aware of her employment and workplace having been in a relationship with her since September 2020.
On 25 February 2021 shortly before 9.10 am,[2] the appellant was observed by police to drive into the private staff car park at the Bunbury Post Office located on Stirling Street, Bunbury. The appellant was the only occupant and driver of a white Honda Civic with registration number one GPU887.
[2] ts 12 (28 May 2021) (transcript of sentencing proceedings); an error in the statement of material facts was identified by the learned Magistrate and corrected. This date is recorded in the statement of material facts as 24 February 2021. See also ts 12 (29 March 2021). Amendments to the respondent's outline of written submissions filed 27 August 2021 were made at the hearing of this appeal to correct the date.

The appellant was arrested at the car park entrance where he was cautioned and replied 'I need to use the post office, I'm only here using the post office, I've done nothing wrong'.
The protected person had parked her vehicle in the car park at about 8.30 am prior to attending Bunbury Police Station for an appointment.
On 25 February 2021, the appellant participated in an electronic record of interview during which he made partial admissions.

BU 1007 of 2021 - stalking

On 23 February 2021, the protected person, the appellant's then partner, contacted the appellant and advised him that their relationship was over. Following this, the appellant contacted the protected person asking where she was as her car was not at work where she normally parks it.
Later that afternoon, the appellant contacted the protected person advising that he had collected her 10-year-old daughter from her mother's address, he had taken her to another family member's address before taking her to the protected person's address.
The protected person then attended Bunbury Police Station where she wished to report the incident of family and domestic violence and seek advice regarding a restraining order. The appellant attempted to prevent the protected person from entering the police station to speak with officers. The appellant also tried to ascertain information by speaking front counter staff and providing a false name.
The protected person left work at 5.00 pm and whilst en-route to her home observed the appellant to be following her in his mother's vehicle. At one point she drove into a cul-de-sac, turned around and drove a slow speed directly towards the appellant, confirming he was the driver and only occupant.
On 23 February 2021 at 5.49 pm, the appellant was served with a police order (number 449631). The police order was to expire on 26 February 2021 at 5.00 pm. The protected person was the appellant's ex-partner. A condition of the police order included that which is reproduced at [8] above.
On 24 February 2021 at about 2.18 pm, the protected person commenced driving her vehicle on Stirling Street, Bunbury from her place of employment, Bunbury Post Office. The appellant then followed the protected person, who was driving her own vehicle. The appellant followed her out of Bunbury toward her home address. When the protected person sighted the appellant in the rear-view mirror, she felt anxious that the appellant was following her. The protected person approached traffic lights and slowed as the appellant pulled alongside her. The protected person identified the appellant was driving, and the only person in the vehicle as the appellant drove past.
The appellant continued toward Glen Iris but turned into the Bunbury Farmer's Market on Vittoria Road, Glen Iris as he was now in front of the protected person. At the Bunbury Farmer's Market, the appellant turned around without stopping and return to Vittoria Road turning left, the same direction he had been travelling. He was now again following the protected person who was aware of his presence.
The appellant then entered Glen Iris where the protected person drove through side streets to try and create distance from the appellant. The protected person called ahead to her brother to open the garage door so she could enter her address quickly.
The appellant was observed to stop his vehicle at the intersection of Snakewood Bend and Poplar Brace, Glen Iris. Poplar Brace is a continuation Road of Mulga Road where the appellant is also bound by the police order.
Following returning home, the protected person noted deposits into her bank account from the appellant, one deposit was at 5.00 pm and for the sum of $19.73.
The protected person also received about 30 telephone calls from the appellant between 8.30 pm and 11.27 pm from a private number. Calls received at 8.55 pm, 9.01 pm, 9.33 pm, 9.35 pm and 9.37 pm were answered by the protected person on loudspeaker and were recorded.
At 10.01 pm, the appellant tried to call the protected person on a FaceTime call, the protected person did not answer.
As a direct result of the actions of the appellant, the protected person feels intimidated, anxious and nauseous. The protected person fears for her safety and that of her 10-year-old daughter. The protected person has started screening calls and calling back rather than answer calls for fear the caller may be the appellant. The protected person has only started feeling like this since she ended the relationship with the appellant.
On 25 February 2021, the appellant participated in an electronic record of interview during which he made partial admissions.

The victim impact statement

The sentencing remarks reveal that the learned Magistrate had received and considered a victim impact statement from the protected person. The learned Magistrate states:[3]
I've received a victim impact statement from [the protected person]. It details that she has faced numerous disruptions to her life, and so has her child. She herself has experienced anxiety and panic attacks, nightmares, sleeplessness. She has been prescribed anti-anxiety and sleep assistance medications from her doctor.
She is now reluctant to answer phone calls. She gets nervous around her place of work. She had to change address and placed extra security measures in place because she is fearful. Of course is that her 10-year-old daughter, who is autistic and therefore vulnerable already, now travels to and from school with a portable alarm and a mobile tracking device so that the daughter and the victim, [the protected person], feel safe.
Now, that's very sad; no 10-year-old should be encumbered with such requirements. Now, it's fair to say that there is no actual personal violence that has been perpetrated on this occasion. If there has, that's not before me and I don't take any of that into account. But despite the fact that there was no actual violence, I accept that the victim in this matter was very concerned, very frightened, and to victim impact statement shows that.
[3] ts 3 (28 May 2021) (sentencing remarks).

The appellant's personal circumstances

The appellant was 29 years old at the time of the offending.
The appellant had a long history of similar offending, including 16 convictions for breaching a violence restraining order (VRO) contrary to the Restraining Orders Act s 61(1); two convictions for pursuing another to intimidate (stalking); two convictions for breaching protective bail conditions; and numerous other offences involving disobedience of court and police orders (including intensive supervision orders, conditional release orders and suspended imprisonment orders).
The sentencing remarks reveal that the learned Magistrate had received and considered a letter or letters from the appellant.[4] A copy of a letter from the appellant dated 19 May 2021 was filed in the appeal on 19 August 2021. The focus of the letter is the assistance the appellant has sought and proposes to seek to address his offending behaviour.
[4] ts 4 (28 May 2021) (sentencing remarks).
The appellant also addressed the learned Magistrate directly after counsel made sentencing submissions on his behalf. The appellant noted he was being proactive, and made reference to him not being on medication 'with the previous charges'.[5]
[5] ts 11 (28 May 2021) (transcript of sentencing proceeding).
In this regard, the learned Magistrate noted:[6]
I have had regard, as already mentioned, to a number of pieces of information. I've had regard to your letters - and in explaining I understand you're not trying to justify your position, you're not trying to excuse it - but in an attempt to explain what has occurred on this occasion, you've indicated that you have been medicated for ADHD, and I note that - I will turn to the psychiatric report in a moment - and you were medicated.
You made your own decision - your unilateral, voluntary decision - to go off your medication, and that affected your poor decision-making and judgement, and that may well have had a role in the offending; I accept that that is the case. The difficulty with that, though, of course, is that you're the one that made the decision to cease your medication; no physician advised you to do so; he simply decided that you didn't need to be medicated.
Moving forward, that is an issue; that is a concern, because there's really nothing in place, as I see, to guarantee that such an incident won't occur again - the incident am referring to - being that you decide that you know best and you will stop taking your medication. As I understand it you've indicated that you weren't properly treated previously for some of your prior offending, and that might be one of the reasons for such offending.
[6] ts 4 (28 May 2021) (sentencing remarks).

The report

The learned Magistrate had before him a psychiatric report prepared by Dr Stephen Proud, Consulting Psychiatrist, dated 4 May 2021. It was referenced primarily for the purpose of the prosecutor's application that the appellant be declared to be a serial family violence offender under the Sentencing Act s 124E.
Dr Proud states that the appellant psychiatric disorder is ADHD and Gambling Disorder. As to the offences the subject of this appeal, Dr Proud opines that:
This behaviour is partially linked to his ADHD, is partially linked to his immaturity, and his maladaptive personality traits, but it must be said that his behaviour also cannot be entirely explained or excused on psychiatric or psychological grounds.

The sentence and sentencing remarks

The maximum penalty for breach of a police order is a fine of $10,000 or imprisonment for 2 years, or both.[7] (Section 61A of the Restraining Orders Act did not apply as the appellant's previous convictions under the Restraining Orders Act s 61(1), (1A) or (2a) or s 338E of the Criminal Code were not recorded within two years of the latest conviction.)
[7] Restraining Orders Act s 61(2a).
The maximum penalty for pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person contrary to the Criminal Code s 338E(2) is imprisonment for 12 months and a fine of $12,000.[8]
[8] Criminal Code s 338E(2).
The Magistrate sentenced the appellant to a total effective sentence of 14 months' immediate imprisonment, backdated to 25 February 2021. The sentence was comprised of:
(a)8 months for one breach of police order (BU 1005 of 2021);
(b)2 months for the other breach of police order (BU 1006 of 2021); and
(c)4 months for stalking (BU 1007 of 2021),
all sentences being made cumulative on one another.

The learned Magistrate stated that the sentences were arrived at after allowing a 20% discount under the Sentencing Act.[9] The Magistrate stated that he had not allowed a 25% discount as there had been strong prosecution cases, with police eye witnesses.
[9] ts 2 (28 May 2021) (sentencing remarks).
Upon considering the facts of the offending, and the impact on the protected person and upon her 10-year-old daughter, the Magistrate concluded that these were serious offences, and relatively serious examples of such offending.[10]
[10] ts 3 (28 May 2021) (sentencing remarks).
The learned Magistrate observed that the appellant's criminal record revealed a history of similar type behaviour, which grounded his finding that there was a real and elevated need for specific deterrence in the appellant's case.
The learned Magistrate ultimately concluded that only a term of imprisonment was appropriate for the offending. He further observed that:[11]
Whilst there is some overlap of the offending, there are also distinct actions, which means that there can be - and ought to be - some accumulation of sentence.
Having said that, I do bear in mind the totality principles, and will reduce the terms which I would otherwise impose if they were singular offences so as to arrive at an appropriate total sentence for you. I bear in mind that you've been in custody since 25 February 2021. I bear in mind, as has already been discussed, that the maximum penalty for the two offences of breach of a police order is - for each of them, is a maximum of two years' imprisonment.
For the stalking matter, there is a maximum sentence of 12 months' imprisonment. So what I've determined, Mr Sellinger, is for charge 1005 - being the first breach of police order - is that a term of imprisonment of eight months is appropriate. For charge 1006 there will be a term of imprisonment of two months' imprisonment, to be served cumulatively. Charge 1007, which is the stalking, there is a term of imprisonment of four months’ imprisonment, to be served cumulatively.
That is because that involves other behaviour other than a direct breach of the police order, which includes picking up the daughter, which in my view there was no reason to do; the numerous telephone calls, and the unusual deposit of money into the victim's account. Again, all of these things would have caused considerable psychological stress to the victim. So that makes a total term of imprisonment of 14 months.
…
[11] ts 5 - 6 (28 May 2021) (sentencing remarks). At the hearing of the appeal, counsel for the respondent conceded that the reference to 'the numerous telephone calls' in the final paragraph of the transcript here reproduced was in error as the telephone calls were not 'other behaviour other than a direct breach of the police order'.
The appellant was made eligible for parole.
The appellant was also declared to be a serial family violence offender pursuant to s 124E(1) of the Sentencing Act, the appellant having on conviction been convicted of at least three prescribed offences, with at least three of those being offences having been committed on different days.

The appeal

The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. Pursuant to the Criminal Appeals Act s 8(1)(a)(iii), such an appeal may be made on the ground that the court of summary jurisdiction imposed a sentence that was inadequate or excessive.
The appeal was commenced on 9 August 2021. The appellant contends that the learned sentencing Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle.

The appellant's submissions

The appellant appeals his sentence on only one ground, alleging that the total sentence imposed infringed the first limb of the totality principle.
The appellant did not contend that the imposition of a sentence of immediate imprisonment was not open. Rather, it was submitted that the appellant was convicted of three offences which were inextricably linked.[12]
[12] Appellant's outline of submissions filed 19 August 2021 par 16.
On behalf of the appellant, it was submitted that the breach of police order that involved the appellant following the protected person in his vehicle (BU 1005 of 2021) was, factually, part of the conduct that constituted the stalking offence. It was submitted that therefore, totality was a significant issue in the appellant's sentencing.[13]
[13] Appellant's outline of submissions filed 19 August 2021 pars 17 - 18.
On behalf of the appellant it was accepted that his history made personal deterrence a significant factor in his sentencing. It was also accepted that the causal connection between the appellant's offending and his ADHD was tenuous. The main mitigating factor was the appellant's pleas of guilty, for which he was afforded a discount of 20%.[14]
[14] Appellant's outline of submissions filed 19 August 2021 pars 19 - 20.
On behalf of the appellant it was submitted that the following three decisions established that the total effective sentence received by the appellant infringed the first limb of the totality principle.
First, the decision of EM Hennan J in Musgrove v Millard.[15] Secondly, the decision of Jenkins J in Dennis v Laternier [No 2].[16] Thirdly, the decision of Allanson J in Smartt v Sloane [2019] WASC 35.
[15] Musgrove v Millard [2012] WASC 60.
[16] Dennis v Laternier [No 2] [2017] WASC 5.
On behalf of the appellant it is submitted that although a sentence of immediate imprisonment was open in this matter, having regard to all of the circumstances a total sentence of 14 months' imprisonment infringed the first limb of the totality principle. As such, it is submitted that the appeal should be allowed, and the appellant resentenced to a lesser term of imprisonment.
I understand that the appellant accepts that there is no tariff for an offence against s 61(2a) of the Restraining Orders Act (breach of a police order). It was not submitted on behalf of the appellant that the three decisions of single judges of this court relied upon fixed a range of sentences customarily imposed for a breach of a police order under s 61(2a).
Rather, I understand that on behalf of the appellant, it is submitted that the appellant was convicted of three offences which were inextricably linked; that therefore, totality was a significant issue in the appellant's sentencing; and that the total effective sentence was unreasonable or manifestly unjust.
Further, the sentences imposed in the comparable cases cited provide a yardstick or reference point for ensuring broad consistency in sentencing; and the appellant's offending did not warrant a total effective sentence of 14 months' immediate imprisonment when considered by refence to the comparable cases as reference points.

Extension of time

An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[17] If the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time for an appeal against either the conviction or the sentence or both runs from the date of sentencing.[18]
[17] Criminal Appeals Act s 10(3).
[18] Criminal Appeals Act s 10(4).
The appellant was convicted on 26 March 2021 and sentenced on 28 May 2021. The time to commence this appeal expired on 25 June 2021. The appeal was commenced out of time on 9 August 2021. The appellant requires an extension of time to appeal.
The court will grant an extension of time for appeal if it is in the interests of justice to do so.[19] Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[20]
[19] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108], applied in Briggs v Houlihan [2018] WASC 301 [47].
[20] Robertson v The State of Western Australia [2009] WASCA 83 [9]; Lancaster v The Queen [1989] WAR 83, 85; AD v Western Australia [No 2] [2007] WASCA 207 [5]. See also Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [20].
Exceptional circumstances are not closed. A compelling explanation for the delay in commencing the appeal will generally constitute exceptional circumstances.[21] Generally, the court must be satisfied there is some special feature which warrants the extension of time, notwithstanding the lengthy delay.[22]
[21] Wimbridge v The State of Western Australia [20].
[22] Wimbridge v The State of Western Australia [48].
In support of the application for an extension of time, the appellant relies upon the affidavit of Natalie Rae Sinton affirmed on 9 August 2021.
Ms Sinton deposes that on 31 May 2021, the appellant's former lawyer wrote to Legal Aid suggesting that it would be appropriate for the appellant to be granted aid for an opinion as to merit in an appeal. She further deposes that an application for aid was not submitted until 14 July 2021 (after the time to commence the appeal had expired), but deposes that she not aware of the reason for the delay.
Ms Sinton deposes to aid having been granted on 15 July 2021; to a request for the sentencing transcript having been made on 23 July 2021 and it being received on 4 August 2021.
Ms Sinton deposes to having taken instructions from the appellant on 9 August 2021, at which time she was instructed to commence the appeal and to seek an urgent appeal order. In this regard, Ms Sinton deposes to having been advised by the appellant that he becomes eligible for parole on 24 September 2021.
The court record reveals that Ms Sinton acted upon her instructions on the same day.
No affidavit has been filed which explains the delay between the appellant's former lawyer writing to Legal Aid on 31 May 2021 and an application for aid being submitted on 14 July 2021.
The explanation provided by Ms Sinton explaining the period of delay between 14 July 2021 and the commencement of the appeal on 9 August 2021 is compelling. No further affidavit was filed and no explanation is proffered for the delay between the appellant being sentenced and 14 July 2021.
The respondent does not oppose the granting of an extension of time and there is no evidence before me of any prejudice to the respondent if an extension of time is granted. However, before determining whether an extension of time should be granted, the merits of the appeal should be considered.

Leave to appeal

This is an appeal under pt 2 of the Criminal Appeals Act. The appellant requires leave to appeal.[23] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[24] That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[25] If leave to appeal is refused, the appeal is taken to be dismissed.[26]
[23] Criminal Appeals Act s 9(1).
[24] Criminal Appeals Act s 9(2).
[25] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[26] Criminal Appeals Act s 9(3).
The respondent does not oppose the granting of leave to appeal but submits that the appeal should be dismissed.
It is appropriate that the appellant's application for an extension of time to appeal and the application for leave to appeal be heard together with the appeal, as was ordered on 12 August 2021.

Relevant legal principles

The principles governing an appeal alleging that a sentence is manifestly excessive or that the total effective sentence infringed the first limb of the totality principle are well-established. I adopt without repeating the summary of principles in Kabambi v The State of Western Australia.[27]
[27] Kabambi v The State of Western Australia [2019] WASCA 44 [21], see also Salkilld v The State of Western Australia [2017] WASCA 168 [48] and Trajkoski v The State of Western Australia [2018] WASCA 176 [30].
The ground that a sentence is manifestly excessive asserts implied error, often described as imposing a sentence that falls outside the range of sentences which could have been imposed if proper principles had been applied.[28]
[28] Babaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[29]
[29] Kabambi v The State of Western Australia [21(2)].
In Smartt v Sloane at [32], Allanson J observed that it has also been generally recognised that the Restraining Orders Act is legislation of the utmost importance as part of the legal response to domestic violence.[30] His Honour further cited the decision of Hall J in Rogers v Hitchcock, where Hall J observed at [46]:
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.
[30] Smartt v Sloane [32] citing Pillage v Coyne [2000] WASCA 135; (2000) 1113 A Crim R 27 [13]; Rogers v Hitchcock [2015] WASC 120 [46].
In Dennis v Lanternier at [150], Jenkins J observed that there is no tariff for an offence against s 61(1) of the Restraining Orders Act given that the circumstances of the offending may range from a minor, or technical breach to a very serious breach involving personal violence.[31]
[31] Also cited by Allanson J in Smartt v Sloane [32].
I am satisfied that there is also no tariff for an offence against s 61(2a) of the Restraining Orders Act (breach of a police order).
It is common ground between the parties and well established that ordinarily, 'when two offences of which an offender stands convicted contain common elements so that it would be wrong to punish that offender twice for the commission of the elements that are common', the sentences for those offences ought to be reduced in length or made partially concurrent so as to take into account the overlap between the elements.[32]
[32] Respondent's outline of submissions filed 27 August 2021 par 16, citing Musgrove v Millard [38]; and Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [5] - [10].

Disposition

I have given careful consideration to the facts of the offending in light of the maximum sentences prescribed by law.
The aggregate sentence of 14 months' imprisonment imposed for the three offences is 23.33% of the maximum aggregate term which could have been imposed (that is, 60 months).
The offending occurred after the appellant's then partner had contacted the appellant on 23 February 2021 and advised him that their relationship was over.
The facts of BU 1005 of 2001 related to the appellant, after having been served with a police order on 23 February 2021, going to and stopping his car adjacent to the entry to the Bunbury Post Office staff carpark at approximately 2.15 pm on 24 February 2021 (about 4 m from the Post Office walls, where the protected person worked). The appellant was observed there by police officers. When interviewed, the appellant admitted that he was attempting to locate the protected person's vehicle to ascertain if she was at work. The appellant subsequently located the protected person driving her vehicle and followed her as she drove home, stopping just outside the 100 m exclusion zone. He later called the protected person's telephone at least five times that evening and attempted a FaceTime video call.
The breach of the police order imposed for the protection of the protected person was serious and this was a relatively serious example of such offending. The appellant breached the police order within 24 hours of having been served with the same and then repeatedly. The conduct was deliberate and the breach cannot be characterised as minor nor technical. The appellant's offending conduct spanned a timeframe just short of eight hours. The appellant's attempts to communicate with the protected person were repeated. On the first count of breaching a police order, the appellant received an 8-month sentence. The maximum penalty for the offence was 2 years' imprisonment and a fine of $10,000.
The facts of BU 1006 of 2021 related to the appellant, after having been served with a police order on 23 February 2021, going to the private staff carpark of the protected person's place of work on the morning of 25 February 2021.
The offending the subject of BU 1006 of 2021 did not overlap with the other two offences. On the morning of 25 February 2021, the appellant entered the private staff carpark of the Bunbury Post Office, being aware of the protected person's employment and her workplace. The protected person's vehicle was parked in that carpark at that time. The breach of the police order was not minor nor technical. It was deliberate. A breach of a police order need not be repeated multiple times on the one charge to be considered serious. I accept the respondent's submission that while none of the appellant's breaches of the order had involved actual or threatened violence, his conduct was still squarely within the kinds of behaviour that the Restraining Orders Act is directed.[33] On the second count of breaching a police order, the appellant received a 2 month sentence. Again, the maximum penalty for the offence was 2 years' imprisonment and a fine of $10,000.
[33] Respondent's outline of submissions filed 27 August 2021 par 27, citing Smartt v Sloane [33].
The facts of BU 1007 of 2021 began before the police order was served at 5.49 pm on 23 February 2021. As was summarised in the outline of submissions filed on behalf of the respondent at par 22, the facts include the following preceding conduct:
(a)On 23 February, shortly after [the protected person] told him the relationship was over, the appellant contacted her to ask where she was, because her car was not where she normally parked it at work.
(b) Later that afternoon he contacted her to tell her he had collected her 10 year old daughter (from another relationship) from [the protected person]'s mother's address, and had taken her to another family member's address before taking her to [the protected person]'s address.
(c)[The protected person] then went to the police station to enquire about obtaining a restraining order. The appellant tried to prevent her entering the station and also tried to obtain information by giving a false name at the front counter.
(d) [The protected person] later left work at 5 pm and observed the accused following her in his car.
I accept that the facts of the stalking offence included most of the appellant's conduct on the afternoon and evening of 24 February 2021 (the facts of BU 1005 of 2021), but also involved significant aspects or conduct which was not common to the first charge of breach of a police order.
In addition to the preceding conduct, the facts of the stalking offence also included the appellant depositing various small amounts in the protected person's bank account on 24 February 2021, which was not a fact relied on for either of the police order offences. Further, the protected person felt intimidated as a direct result of the actions of the appellant (that is, as a direct result of the appellant having pursued the protected person in a manner that could reasonably be expected to intimidate); and only started feeling like this since she ended the relationship with the accused.

On the count of pursuing another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person (stalking), the appellant received a 4 month sentence. The maximum penalty for the offence was 12 months' imprisonment and a fine of $12,000. Again, the appellant's contravention of s 338E(2) of the Criminal Code was serious, and this was, as found by the learned Magistrate, a relatively serious example of such offending.[34]
[34] ts 3 (28 May 2021) (sentencing remarks).
While the appellant did not make explicit threats of violence, his conduct involved the appellant trying to stop the protected person from entering the police station on 23 February 2021 to speak to police officers. It also involved the appellant contacting the protected person to inform her that he had collected the 10-year-old daughter of the protected person from her mother's, which was not organised nor authorised. The appellant's conduct had a significant impact on the protected person and her daughter. They have since changed their address and have implemented security measures. The Magistrate's finding that the conduct of the appellant caused significant psychological stress on the protected person was not challenged at the sentencing hearing.[35]
[35] ts 4 (28 May 2021) (sentencing remarks).
In sentencing the appellant, the learned Magistrate noted that there was 'some overlap of the offending', but also noted that there were 'distinct actions', concluding that there ought to be some accumulation of sentence, with a reduction having regard to the totality principles. [36]
[36] ts 5 (28 May 2021) (sentencing remarks).
In relation to the sentence imposed, counsel for the respondent made the following observation:[37]
Allowing for the 20% reduction for the guilty pleas, and bearing in mind the absence of any other real mitigating factors, it may be inferred that the Magistrate started with head sentences of approximately 10 months for the police order offence [BU 1005 of 2021] and 5 months for the stalking [BU 1007 of 2021]. In each case, that is less than 50% of the maximum. Even allowing for the overlap between these two offences, the overall result was commensurate with the brazen and persistent nature of the offending and did not offend the first limb of the totality principle.
[37] Respondent's outline of submissions filed 27 August 2021 par 43.
In circumstances of factual overlap, I accept that it was open to the learned Magistrate to make the sentences for each offence partially concurrent. I accept that it was also open to the learned Magistrate to reduce the sentence for each of the 'overlapping offences' (BU 1005 and BU 1007 of 2021).[38] The learned Magistrate expressly adopted the latter course.[39]
[38] Smartt v Sloan [40]; Longbottom v The State of Western Australia [9], [16]; the respondent's outline of submissions filed on 27 August 2021 par 42.
[39] ts 5 (28 May 2021) (sentencing remarks); the respondent's outline of submissions filed on 27 August 2021 par 42.
As to the second count of breach of a police order [BU 1006 of 2021], I accept the respondent's submission that it was entirely open to the learned Magistrate to make the sentence cumulative on the other sentences.
The appellant was nearly 30 years of age when he committed these offences. At that time, he had a troubling history of similar offending. The appellant's personal circumstances made personal deterrence a significant factor in sentencing. This was acknowledged by the learned Magistrate.[40]
[40] ts 11 - 12 (28 May 2021) (transcript of sentencing proceedings).
There was evidence before the Magistrate that the appellant's offending may have been connected to a diagnosis of ADHD. It is common ground that the causal link between the appellant's ADHD and the offending is tenuous, and I proceed on this basis.
Other than the appellant guilty pleas, no other mitigatory factors were present.
The small number of cases relied upon by the appellant do not advance the grounds of appeal. As the Court of Appeal recently observed in Miller v The State of Western Australia,[41] by reference to Clarke v The State of Western Australia,[42] whether a sentence infringes the totality principle is not answered simply by reference to other cases. No two cases are ever precisely the same. In the end, each case has to be decided on its own facts and circumstances. Error will not be demonstrated simply because a previously decided case or cases appear to involve similar offending, but different sentences.
[41] Miller v The State of Western Australia[2021] WASCA 138 [50].
[42] Clarke v The State of Western Australia [2018] WASCA 190 [54].
I accept that the sentences imposed in the comparable cases cited provide something of a reference point for ensuring broad consistency in sentencing. They are not determinative of this appeal. The outcome of the three cases cited do not demonstrate error in the present case. Having regard to the facts and circumstances of this case and having weighed in the balance the offences in light of the prescribed maximum sentences, the standards of sentencing customarily imposed with respect to the offences (having regard to the cases cited), the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances, I do not accept that the appellant's offending did not warrant a total effective sentence of 14 months' immediate imprisonment.
It is not open for an appellate court to interfere merely because an appellant court might have exercised the sentencing discretion differently. The real question is whether the total effective sentence is unreasonable or plainly unjust. Having regard to all relevant factors, I am satisfied that it is not. I am not persuaded that it infringed the first limb of the totality principle and I find that implied error has not been established.
While it is appropriate that the appellant's application for an extension of time to commence the appeal and the appellant's application for leave to appeal be granted, the appeal must fail.

Orders

After delivering these reasons and hearing from counsel, I intend to order that:
1.The appellant's application for extension of time be granted;
2.Leave to appeal be granted; and
3.The appeal be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Justice Strk
7 SEPTEMBER 2021