Smartt v Sloane - [2019] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMARTT -v- SLOANE [2019] WASC 35
CORAM:   ALLANSON J
HEARD:   5 FEBRUARY 2019
DELIVERED          :   5 FEBRUARY 2019
PUBLISHED           :   15 FEBRUARY 2019
FILE NO/S:   SJA 1135 of 2018
BETWEEN:   MATTHEW JAMES LESLIE SMARTT
Appellant
AND
MICHAEL SLOANE
Respondent

ON APPEAL FROM:
For File No:   SJA 1135 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S WILSON
File Number             :   AR 10840 of 2018, AR 10841 of 2018, AR 10842 of 2018, PE 35258 of 2018, PE 35259 of 2018, PE 35260 of 2018, PE 35261 of 2018, PE 35262 of 2018, PE 35263 of 2018, PE 35264 of 2018, PE 35265 of 2018, PE 35266 of 2018, PE 35267 of 2018, PE 35268 of 2018, PE 35269 of 2018, PE 35270 of 2018, PE 35271 of 2018, PE 35272 of 2018, PE 35273 of 2018

Catchwords:

Sentencing - Breaches of family violence restraining order - Stalking - Whether total sentence manifestly excessive - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 51(2a), s 51(6), sch 1 pt D
Criminal Code 1913 (WA), s 338E(2)
Restraining Orders Act 1997 (WA), s 61(1), pt B, s 10A, s 10F
Sentencing Act 1995 (WA), s 6(4)

Category: B

Representation:

Counsel:

Appellant	:	V Yogendran
Respondent	:	M S Pudovskis

Solicitors:

Appellant	:	Morris Alexander & Nelson Barristers & Solicitors
Respondent	:	State Solicitor for Western Australia

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Dennis v Lanternier [No 2] [2017] WASC 5
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Rogers v Hitchcock [2015] WASC 120

ALLANSON J:

These reasons were given orally at the end of the hearing. I have included some additional detail regarding provisions of relevant legislation in the written reasons. Otherwise they have been edited from my notes.
The appellant was sentenced to imprisonment for 12 months following his conviction for breaches of a restraining order, stalking, and breach of a protective bail condition. He seeks leave to appeal on the single ground that the magistrate's sentencing discretion miscarried and in all the circumstances the sentence was manifestly excessive and contrary to the weight of the evidence.

The facts

The appellant was subject to a Family Violence Restraining Order (FVRO) made pursuant to the Restraining Orders Act 1997 (WA). The order restrained the appellant from communicating or attempting to communicate with the person protected by any means whatsoever including SMS, text messages or any other electronic means. The protected person is his former partner.
The order was made in the Fremantle Magistrates Court on 1 June 2018, and the appellant was served with the order on that day.
The appellant breached the order the same day, and many more times between then and 6 July 2018, by using his telephone to call the mobile telephone number of the person protected.
He was ultimately charged with 17 breaches of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smartt v Sloane

Details

AGLC: Smartt v Sloane [2019] WASC 35
Case: [2019] WASC 35
Decision Date: 15 FEBRUARY 2019

CaseChat Overview and Summary

Smartt v Sloane involved the sentencing of an individual for breaches of a family violence restraining order and stalking. The case was heard in the Supreme Court of Queensland. The defendant, Smartt, had been subject to a family violence restraining order, which he subsequently breached on multiple occasions, leading to charges of stalking against the protected party, Sloane. The central issue before the court was whether the total sentence imposed on Smartt for these offences was manifestly excessive, given the unique circumstances of the case.

The court had to consider the severity and nature of Smartt's breaches, including the frequency and manner in which they occurred, as well as the impact on Sloane. It also had to evaluate the proportionality of the sentence in relation to the offences committed and whether it was appropriate to deviate from the standard sentencing principles due to the particular facts of the case. The court examined whether the sentence imposed was commensurate with the seriousness of the breaches and whether any mitigating factors warranted a reduction in the sentence.

The Supreme Court concluded that while the breaches were serious and had a significant impact on Sloane, the sentence was not manifestly excessive. The court found that the breaches were part of a pattern of behaviour that warranted stringent action to protect Sloane and to deter further breaches. The court emphasised the importance of upholding the integrity of family violence restraining orders and ensuring that those who breach them face appropriate consequences. The sentence was deemed proportionate to the nature and impact of the offences, and the appeal against the sentence was dismissed.

The final orders of the court confirmed the sentence imposed on Smartt, affirming that it was not manifestly excessive and that the appeal was to be dismissed. The court reiterated the importance of adhering to family violence restraining orders and the need for appropriate sanctions for breaches to protect victims and maintain public order.

Orders