Stockley v Bailey
[2020] WASC 193
•8 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: STOCKLEY -v- BAILEY [2020] WASC 193
CORAM: HILL J
HEARD: 28 MAY 2020
DELIVERED : 8 JUNE 2020
FILE NO/S: SJA 1019 of 2020
BETWEEN: KIMBERLEY MICHAEL STOCKLEY
Appellant
AND
JASON BAILEY
Respondent
ON APPEAL FROM:
For File No: SJA 1019 of 2020
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V EDWARDS
File Number : RO 26153/19, RO 26268/19
Catchwords:
Criminal law - Appeal against sentence - Breaches of family violence restraining order - Whether aggregate sentence manifestly excessive - Whether sentence offends totality principle - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA), s 61(1), s 61A
Sentencing Act 1995 (WA), s 9AA
Result:
Application for leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr T E Ledger |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chan v The Queen (1989) 38 A Crim R 337
Dennis v Lanternier [No 2] [2017] WASC 5
Dillon v The State of Western Australia [2020] WASCA 24
Forward v Bower [2007] WASC 205
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Howell v Davies [2019] WASC 220
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27
Roffey v The State of Western Australia [2007] WASCA 246
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
HILL J:
On 14 February 2020, the appellant was sentenced to a total effective sentence of 7 months' imprisonment following his conviction after pleas of guilty to six offences of breaching a family violence restraining order (FVRO) contrary to s 61(1) of the Restraining Orders Act1997 (WA) (Act) and one offence of possessing a controlled weapon contrary to s 7(1) of the Weapons Act 1999 (WA).
Three days before this, on 11 February 2020, the appellant appeared in the District Court and was sentenced, following a plea of guilty, by Sweeney DCJ to 3 years' imprisonment in relation to one charge of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), and one charge of deprivation of liberty contrary to s 333 of the Code. These offences occurred at the same time as one of the FVRO offences and the possession of the controlled weapon and the day before another two of the FVRO offences.
The appellant seeks leave to appeal on the grounds that:
(a)the total sentence of 7 months' imprisonment is manifestly excessive;
(b)the total sentence of 3 years, 7 months is disproportionate to the overall criminality involved and the total sentence is crushing.
The particulars of the grounds of appeal refer to four matters in support of the grounds of appeal. They assert that the learned magistrate failed to give sufficient weight to his early pleas of guilty; his lack of a relevant record and reasonably good antecedents; his efforts at rehabilitation, and his mental health at the time of his offending, which had been treated at the time of sentencing.
Leave to Appeal
The appellant requires leave to appeal.[1] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[2]
[1] Criminal Appeals Act 2004, s 9(1).
[2] Criminal Appeals Act 2004, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Factual background
The following factual background is taken from the statement of material facts following the entry of pleas of guilty on each of the charges as well as the transcript of the sentencing of the appellant in the District Court which was also before the learned magistrate.
The appellant and the victim were previously in a relationship for about 12 or 13 months until April 2019 when the relationship ended.[3]
[3] ts (12 February 2020) 6.
At 2.45 pm on 26 May 2019, the appellant was served with the FVRO. The conditions of the FVRO prohibited the appellant from, among other things, communicating or attempting to communicate with the victim, including by SMS or text message, approaching within 10 metres of her, and entering or remaining at her address.[4]
[4] ts (12 February 2020) 4.
On 26 May 2019, approximately two hours after being served with the FVRO, the appellant sent a series of 88 text messages to the victim (from 4.55 pm until 9.33 pm).[5]
[5] ts (12 February 2020) 4.
On 30 May 2019, the victim attended Kwinana Police Station in order to make a formal complaint against the appellant.[6]
[6] ts (12 February 2020) 4.
On 31 May 2019, the appellant attended the Kwinana Police Station and participated in a video record of interview. The appellant admitted to sending the messages to the accused and admitted having attended the victim's address on 27 May 2019 to see the victim.[7] The appellant was arrested, charged with breaches of the FVRO on 26 May 2019 (PE 26268/2019) and 27 May 2019 (PE 26153/2019) and released on bail.
[7] ts (12 February 2020) 4.
At about 7.00 pm on 5 June 2019, when the victim was at home having a shower, the appellant entered her house, through the back door which was unlocked. He entered the bathroom and pointed a replica pistol at her. At that time, the victim did not know that the pistol was not real and was a replica.[8]
[8] ts (11 February 2020) 28.
The appellant forced the victim to get into her car which was parked in her garage, dressed in only her dressing gown. He handcuffed her arms behind the passenger seat. The appellant drove them to a beach carpark near Secret Harbour. The victim was understandably terrified that the appellant was planning to murder her. The appellant and the victim talked for about an hour inside the car.
During the ordeal, the victim aggravated a pre‑existing knee injury. She was terrified, freezing, in physical pain and very distressed for the entire time they were talking at the beach.[9]
[9] ts (11 February 2020) 30.
The appellant then drove them back to the victim's house. During the night the pair continued to discuss their relationship and had consensual sex.[10]
[10] ts (11 February 2020) 30.
On 6 June 2019, at 1.25 am, the police attended the victim's address, after a neighbour had earlier heard someone yell 'don't kill me' and reported the incident. The appellant ran out the back door and hid in a neighbour's backyard while the victim spoke to police before returning to her house. The appellant left the house at about 6.40 am.
On 6 June 2019, while the victim was at work, the appellant made 27 phone calls to her using a private number. He told the victim that he had entered her house again and accessed her computer and Facebook account.[11]
[11] ts (12 February 2020) 5.
At approximately 4.45 pm on 6 June 2020, the victim boarded a train on the Mandurah line. The appellant sat next to her on the train and spoke to her. This turned into an argument. The victim moved carriages, away from the accused. She got off the train at the Warnbro train station as did the appellant. He waited for her at the station and spoke to her again.[12] The appellant followed the victim to her car and got into the passenger's seat, but left once her mobile phone started ringing.[13]
[12] ts (12 February 2020) 5.
[13] ts (11 February 2020) 31.
At about 6.00 pm, the appellant was arrested near the victim's home and taken to the Kwinana Police Station where he participated in a record of interview. During the record of interview, the appellant stated that he had purchased a replica firearm and had subsequently hidden it at his home. The police subsequently searched the appellant's home and located the replica firearm.[14]
Following this, the appellant was charged with six offences:
(a)breach of the FVRO on 5 June 2019, contrary to s 61(1) of the Act (RO 4121/2019) ([12] ‑ [16] above);
(b)breach of the FVRO on 6 June 2019, contrary to s 61(1) of the Act (RO 4122/2019) ([17] above);
(c)breach of the FVRO on 6 June 2019, contrary to s 61(1) of the Act (RO 4123/2019) ([18] above);
(d)possession of a controlled weapon on 5 June 2019 (RO 4124/2019) ([12] ‑ [16] above);
(e)aggravated home burglary on 5 June 2019, contrary to s 401(2)(a) of the Code (RO 4125/2019) ([12] ‑ [16] above);
(f)deprivation of liberty by unlawfully detaining the victim on 5 June 2019, contrary to s 333 of the Code (RO 4126/2019) ([12] ‑ [16] above).
On 7 June 2019, the appellant appeared at Rockingham Magistrates Court and pleaded guilty to PE 26268/2019 (the breach of the FRVO on 26 May 2019). He was refused bail and remanded in custody.
While the appellant was on remand, he contacted a witness and informed her that he would be sending her a letter for the attention of the victim. On 15 June 2019, the witness received the letter and contacted the police. The police spoke with the appellant who admitted writing the letter. He was then charged with a further breach of the FVRO (RO 4505/2019).[15]
[15] ts (12 February 2020) 8.
On 11 February 2020, the appellant appeared before the District Court and pleaded guilty to the offences of aggravated home burglary and deprivation of liberty. Sweeney DCJ imposed an overall sentence of 3 years' imprisonment, comprised of 3 years' imprisonment for aggravated home burglary and a concurrent sentence of 18 months' imprisonment for the deprivation of liberty.
Proceedings before the Magistrate
On 12 February 2020, the appellant appeared before Magistrate Edwards in respect of the seven charges that had not been dealt with by the District Court. The appellant entered pleas of guilty for the six offences to which a plea had not previously been entered. After the statement of material facts was read to the court and brief submissions were made on behalf of the appellant, the matters were adjourned until 14 February 2020 for sentencing.
It is clear from the transcript of proceedings before the learned magistrate that a number of documents were provided to her Honour on behalf of the appellant and that the learned magistrate was provided with a copy of the transcript of the sentencing before Sweeney DCJ.
The documents provided to the learned magistrate on behalf of the appellant included a bail risk assessment report of 17 July 2019, a copy of the letter from the appellant to the victim (which formed the basis of the charge on 15 June 2019), and a letter dated 3 November 2019 from the appellant to the court. This letter set out the circumstances which led to the offences and the steps taken by the appellant whilst on remand to address his depression. The letter annexed copies of the certificates he had obtained whilst on remand and his five year plan, which included reference to his intention to commence a plastering business following his release and run a women's self-defence class, which he proposed to teach.
Counsel who appeared for the appellant on 12 February 2020 informed the learned magistrate that the appellant was 46 years old at the time of the offences. He had been diagnosed with depression while on remand. At the time of the offences, he was severely depressed as a consequence of the breakup of his relationship with the victim. Since his diagnosis, the appellant had received treatment and his condition had significantly improved. The appellant's counsel emphasised that the appellant had made 'an extraordinary effort' to be able to reintegrate into the community following his release.[16]
[16] ts (12 February 2020) 7.
It was submitted that it was open to the court to deal with these charges by imposing moderate fines taking account of the sentence that had been imposed by the District Court.
In response, the prosecution submitted that fines were not an appropriate sentence and that imprisonment was warranted for these offences.
On 14 February 2020, the appellant appeared before Magistrate Edwards for sentencing. At that time, there was no appearance by counsel on behalf of the appellant. At the commencement of the hearing, the appellant confirmed that he did not object to the court proceeding in the absence of legal representation.[17]
[17] ts (14 February 2020) 2.
The sentencing proceeded on the basis that the breaches occurred on 'at least three different dates'.[18] This meant that the discretion of the court was subject to s 61A of the Act, which is discussed below.
[18] ts (14 February 2020) 2.
In sentencing the appellant, her Honour stated that the offences which occurred on 5 and 6 June 2020, in particular, were intimately connected with the offences for which the appellant had been sentenced in the District Court.[19]
[19] ts (14 February 2020) 2.
In the course of her sentencing remarks, the learned magistrate took into account the early plea of guilty on PE 26268/2019 and afforded the appellant a 25% discount for this plea. The learned magistrate found that the letter from the appellant dated 3 November 2019, which was handed up to both Sweeney DCJ and the learned magistrate, was:[20]
[A] very self-serving statement. It does not address in any respect the terror and the distress that was experienced by the victim of your offending. I note that you do have mental health issues and you are taking steps to deal with those, and I accept that since your remand in custody that your mental health issues are somewhat improved from what they were when you were remanded into custody.
[20] ts (14 February 2020) 3.
The learned magistrate found that the breaches of the FVRO offences were serious and she considered there was no alternative other than a sentence of immediate imprisonment. Her Honour then stated:[21]
I have taken into account the term that was imposed by the District Court, and the terms of imprisonment I have imposed today are less than they would otherwise have been, because I have to be conscious of what's called the totality principle to ensure that the total term that you will be serving is commensurate with your criminal behaviour and is such that you will have effectively a light at the end of the tunnel and you will be able to be released from prison at a time which would not be an inordinate period of time spent in custody.
[21] ts (14 February 2020) 4.
The learned magistrate made the appellant eligible for parole.
Appellant's prior criminal history
Almost nothing was said about the appellant's prior criminal record during the course of the proceedings in the Magistrates Court. The only reference was to a breach of a misconduct restraining order in 2004.[22]
[22] ts (12 February 2020) 8.
The appellant's criminal record was not before me as part of the appeal although it was referred to in the course of sentencing in the District Court. Specifically, Sweeney DCJ stated that:[23]
You have a modest criminal record and your most recent conviction dates back to 2004. However, your record includes an assault occasioning bodily harm which occurred in 2001, where, through frustration, you shook your baby son, resulting in a brain haemorrhage.
You also have a conviction in June 2003 for breach of a misconduct restraining order which apparently relates to your verbally abusing your ex-wife. The other few convictions are not relevant.
[23] ts (District Court 11 February 2020) 32.
Summary of sentences imposed
The appellant has only appealed against the two cumulative sentences that were imposed by the learned Magistrate for the offences which occurred on 26 May 2019 and 27 May 2019.
In circumstances where one of the grounds of appeal is that the overall sentence offends both limbs of the totality principle, I have set out below a summary of the offences the appellant was charged with in the order of the date of the offence and the sentence he received for each.
| Charge no. | Date of offence | Offence | Sentence imposed | |
| 1 | PE 26268/2019 | 26 May 2019 | Breach of FVRO | 4 months' imprisonment cumulative; eligible for parole |
| 2 | PE 26153/2019 | 27 May 2019 | Breach of FVRO | 3 months' imprisonment cumulative; eligible for parole |
| 3 | RO 4121/2019 | 5 June 2019 | Breach of FVRO | 3 months' imprisonment concurrent; eligible for parole |
| 4 | RO 4124/2019 | 5 June 2019 | Possession of controlled weapon | 3 months' imprisonment concurrent; eligible for parole |
| 5 | 1471/2019 | 5 June 2019 | Aggravated burglary | 3 years' imprisonment; eligible for parole |
| 6 | 1471/2019 | 5 June 2019 | Deprivation of liberty | 18 months' imprisonment concurrent; eligible for parole |
| 7 | RO 4122/2019 | 6 June 2019 | Breach of FVRO | 3 months' imprisonment concurrent; eligible for parole |
| 8 | RO 4123/2019 | 6 June 2019 | Breach of FVRO | 3 months' imprisonment concurrent; eligible for parole |
| 9 | RO 4505/2019 | 15 June 2019 | Breach of FVRO | 3 months' imprisonment concurrent; eligible for parole |
Restraining Orders Act
Family Violence Restraining Orders are made under pt 1B of the Act. The objects of that Part which are set out in s 10A of the Act, are as follows:
(a)to maximise the safety of persons who have experienced, or are at risk of, family violence;
(b)to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;
(c)to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;
(d)to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;
(e)to make perpetrators of family violence accountable to the court for contraventions of court-imposed restrictions designed to prevent them from committing further family violence.
In granting an FVRO, the court must have been satisfied that either the appellant had committed family violence against the victim and was likely to do so again, or that the victim had reasonable grounds to apprehend that he would commit violence against her.[24]
[24] Restraining Orders Act, s 10D(1).
'Family violence' is defined in the Act and includes any behaviour by the person that coerces or controls the family member or causes the member to be fearful.[25]
[25] Restraining Orders Act, s 5A.
Under s 10F(1) of the Act, the court is required to have regard to a range of matters when considering whether to make an FVRO and the terms of the order, including:
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
Breach of an FVRO is an offence under s 61(1) of the Act for which an offender is liable to a fine of $10,000 or imprisonment for 2 years or both.
Where there have been repeated breaches of restraining orders, s 61A of the Act applies. This section applies where a person has committed and been convicted of at least two offences under s 61(1) within the period of two years prior to the conviction.[26] All previous offences under s 61(1) are counted regardless of whether the convictions are recorded before or after the date on which the relevant offence was committed or they have been counted in sentencing for a different offence under the section.[27] However, if the offences occur on the same day, the offences are treated as a single conviction for the purposes of this section.[28]
[26] Restraining Orders Act, s 61A(2)(b).
[27] Restraining Orders Act, s 61A(2A).
[28] Restraining Orders Act, s 61A(2B).
Section s 61A(4) of the Act requires a penalty to be imposed for the relevant offence 'that is or includes imprisonment' unless imprisonment would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the person protected or the community generally.[29]
[29] Restraining Orders Act, s 61A(5) and (6).
Ground One: Sentence is manifestly excessive
The ground of appeal against sentence which alleged that the sentence is manifestly excessive, in effect, asserts that the magistrate made an implied error. The court cannot interfere with the sentence imposed by the learned magistrate merely because it would have imposed different individual sentences or an aggregate sentence. This is because magistrates must be given latitude in which to exercise their sentencing discretion.
In order for the appellant to succeed in his allegation that the sentence was manifestly excessive, he must show that the sentence imposed fell outside the range of a sound exercise of sentencing discretion. [30] That is, he needs to demonstrate that the end result is so unreasonable or unjust that the court must conclude that it is a substantial error.
[30] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].
Where the appellant also complains that the aggregate sentence is too long, the totality principle must also be taken into account.
In considering whether the sentence is manifestly excessive, it is necessary to have regard to the maximum penalty for the offences, the standards of sentencing customarily observed with respect to the offences, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.[31]
[31] Chan v The Queen (1989) 38 A Crim R 337, 342.
The maximum penalty for an offence against s 61(1) of the Act is a fine of $10,000 or a term of imprisonment for 2 years or both. That is, the aggregate sentence of 7 months' imprisonment that was imposed for the six breaches of the FVRO is only 30% of the maximum term of imprisonment which could have been imposed for one offence. On this basis alone, I agree with the respondent that the sentence is not manifestly excessive.
As was observed by Jenkins J in Dennis v Lanternier [No 2],[32] there is no tariff for an offence against s 61(1) of the Act given that the circumstances of the offending may range from a minor or technical breach, to a very serious breach involving personal violence. Offences which include a threat of violence, actual violence or entry into the victim's home are regarded as offences at the higher end of the range of seriousness of offences against s 61(1) of the Act.[33] Sentences of more than 7 months' imprisonment for serious breaches of s 61(1) have been upheld on appeal.[34]
[32] Dennis v Lanternier [No 2] [2017] WASC 5 [150].
[33] Dennis v Lanternier [No 2] [150].
[34] See Dillon v The State of Western Australia [2020] WASCA 24; Howell v Davies [2019] WASC 220; Salkilld v The State of Western Australia [2017] WASCA 168; Forward v Bower [2007] WASC 205.
As Jenkins J stated in Dennis v Lanternier [No 2]:[35]
The long title of the Restraining Orders Act reflects Parliament's intention for the Act to provide for orders to 'restrain people from committing acts of family or domestic or personal violence by imposing restraints on their behaviour and activity'. In order for the Act to be effective, offenders must appreciate that if they breach a VRO they will receive a significant penalty. The community and the courts have an intolerance and abhorrence of violence and threatened violence in domestic and former domestic relationships. The penalties imposed for breaches of VROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims.
[35] Dennis v Lanternier [No 2] [152]; see also Pillage v Coyne [2000] WASCA 135; (2000) 113 A Crim R 27 [14].
It has also been generally recognised that the Act is legislation of the utmost importance as part of the legal response to domestic violence.[36]
[36] Pillage v Coyne [13]; Rogers v Hitchcock [2015] WASC 120 [46].
As was noted by Hall J in Rogers v Hitchcock: [37]
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.
[37] Rogers v Hitchcock [46].
The appellant's breaches of the FVRO cannot be described as minor or technical. The appellant repeatedly refused to accept the authority of the order which was imposed for the protection of the victim. He first breached the FVRO almost immediately after being served with it (approximately two hours later), and then repeatedly breached it until being remanded in custody. His behaviour flagrantly disregarded both the authority of the court and the rights of the victim.
The appellant's offences on 5 and 6 June 2019 were, on any view, very serious offences against s 61(1). They involved the appellant entering the victim's house on two separate occasions, on the first occasion with a replica pistol and handcuffs, and then repeatedly approaching her on her commute home on 6 June 2019, including getting into her vehicle with her. These breaches were terrifying for the victim who, understandably, believed that she was going to be murdered. These offences were further aggravated by the fact they were committed when the appellant was on bail for earlier breaches of the FVRO.
The offences on 26 and 27 May 2019, for which the appellant received cumulative sentences of 4 months and 3 months respectively, were much less serious breaches of the section. However, they were aggravated by the fact that they were committed less than 24 hours after being served with the FVRO, the first breach occurring within approximately two hours.
The offence on 15 June 2019 was also a much less serious breach of the section but was aggravated by the fact it was committed while the appellant was on bail for the five earlier breaches of the FVRO as well as the more serious charges he faced.
Given that the breaches of the FVRO occurred on five separate dates, the appellant was required to be sentenced taking account of the provisions of s 61A of the Act. As a consequence, the penalty imposed was required to be or include imprisonment unless:
(a)this was clearly unjust, given the circumstances of the offence and the person; and
(b)the appellant was unlikely to be a threat to the safety of the victim or the community.
While the learned magistrate did not expressly refer to either of these matters, given the seriousness of the offences and the information before the learned Magistrate (which included a bail report dated July 2019 which expressed the view that the appellant continued to present a threat to the safety of the victim), I am satisfied that a sentence of imprisonment was the only appropriate sentence.
The primary question raised by the appellant on the appeal is whether the term imposed for all of the offences was manifestly too long, so as to show an error in principle. After considering all the relevant circumstances, I do not consider that the aggregate sentence was manifestly excessive.
The appellant, in his particulars to his grounds of appeal, also complained that the magistrate failed to give adequate weight to his plea of guilty.
Section 8(4) of the Sentencing Act 1995 (WA), s 8(4) states:
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
Section 9AA of the Sentencing Act relevantly provides:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
In H v The State of Western Australia, Steytler P said that:[38]
Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea. Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed. (citations omitted)
[38] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10].
In this case, it is clear from the transcript that in respect of charge number PE 26268/2019, the appellant pleaded guilty at the earliest opportunity and that the learned magistrate applied a 25% discount from the term she would otherwise have imposed because of the plea of guilty to that charge.[39]
[39] ts (14 February 2020) 3, 4.
However, there is no express reference by her Honour as to whether the appellant's plea of guilty was taken into account in respect of the remaining charges.
From my review of the prosecution notice for PE 26153/2019, the appellant did not plead guilty at the earliest opportunity. His plea of guilty was entered on 12 February 2020, eight months after his first appearance. For this reason, the appellant should not have been given the maximum discount for this plea of guilty.
In my view, the learned magistrate erred in failing to comply with the Sentencing Act, s 9AA(5) by failing to state the extent of the reduction given for the plea of guilty to all charges apart from PE 26268/2019. It is not clear that she made an assessment of the proper discount that should be applied to the head sentences for the remaining offences. It can be inferred from the sentencing remarks as a whole that the sentencing magistrate was focused on the total cumulative sentence that should be imposed on the appellant, without proper regard to the individual sentences and the appropriate discount for the plea of guilty for each offence.[40]
[40] H v The State of Western Australia [65].
Whether this error should result in the appellants' sentences being overturned is a separate question which I deal with at the end of these reasons.
The appellant also complains that the magistrate failed to give sufficient weight to his relatively good antecedents and his mental state at the time of the commission of the offences and his efforts at rehabilitation since then.
In Paparone v The Queen Murray J said:[41]
The presence in the offender of such conditions [of illness or disability] …will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.
Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then, … it will be necessary to demonstrate a causal relationship between the offending and the condition, ... In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.
Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in R v Dalgety [2000] WASCA 10, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerations be eliminated entirely.
[41] Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [50] - [52].
The learned Magistrate specifically referred to the appellant's antecedents as well as his mental health issues and the steps he had taken to deal with these. She accepted that since his remand in custody, the appellant's mental health issues had improved from what they were when he was remanded into custody.[42]
[42] ts (14 February 2020) 3.
It is clear that the magistrate considered the appellant's mental health issues were not such that he was an unsuitable vehicle for personal and general deterrence. I do not consider there is any merit in this aspect of the appellant's appeal.
Ground Two: Totality
Ground Two contends that the total effective sentence of 3 years 7 months' imprisonment infringes both limbs of the totality principle.
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[43]
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
Is the sentence as a whole manifestly excessive having regard to the overall criminality?
[43] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
In considering whether the sentence was manifestly excessive, the threshold question is what is the total effective sentence? If there is an error in this sentence, the court exercises its discretion afresh and imposes a new sentence that is proportionate to the criminality across all the offences.
The appellant contended in oral submissions that all of the offences should have been considered as one course of criminal conduct and that all of the sentences should have been made concurrent. I do not accept that submission.
In respect of the events that occurred on 5 and 6 June 2019, the learned magistrate considered that these formed part of the one course of criminal conduct for which the appellant had been sentenced in the District Court. The offences for which the appellant received cumulative sentences occurred on 26 and 27 May 2019, more than one week before the series of events that took place on 5 and 6 June 2019. In my view, the learned magistrate quite correctly viewed these events as not part of that one course of criminal conduct.
I have had regard to:
(a)the maximum penalties for the offences of which the appellant was convicted;
(b)the overall criminality involved in all of the appellant's offences, viewed in their entirety having regard to all relevant circumstances (including those referable to the appellant personally);
(c)the customary sentencing practices for these kind of offences; and
(d)all relevant sentencing factors and principles.
I am satisfied that the total effective sentence of 3 years, 7 months' imprisonment bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally. In my view, the total effective sentence is not arguably unreasonable or plainly unjust.
Is the sentence crushing?
In considering whether the sentence imposed is 'crushing', the word crushing means 'the destruction of any reasonable expectation of a useful life after release'.[44]
[44] Roffey v State of Western Australia [25].
The appellant is currently 47 years of age and will be eligible for parole in March 2021. I do not consider that it can properly be said that the appellant will not have any reasonable expectation of a useful life after release. On this basis, I do not consider the sentence to be crushing.
Did the magistrate's error result in a substantial miscarriage of justice?
As I have determined that the magistrate failed to properly comply with s 9AA(5) of the Sentencing Act in respect of PE 26153/2019, it is necessary for me to determine whether the failure of the magistrate has resulted in a substantial miscarriage of justice. If it has not, the appeal will be dismissed.[45]
[45] Criminal Appeals Act 2004 (WA), s 14(2).
The appellant did not plead guilty at the first reasonable opportunity to this charge (or the other charges apart from PE 26268/2019). In my judgment, he was entitled to a discount of 20% for his plea of guilty on the head sentence for this offence.
PE 26153/2019 was objectively less serious than PE 26268/2019 and the remaining offences. Nevertheless, it involved driving to the victim's house, which was a breach of the FVRO, and warranted a term of imprisonment.
Taking into account the discount for the plea of guilty and all other sentencing factors, my judgment is that a sentence of 3 months' imprisonment for this offence was appropriate.
I agree with the magistrate's approach that it was appropriate that the sentences for the offences on 26 and 27 May 2019 be served cumulatively on the sentence imposed by the District Court. These offences involved distinct conduct in breach of the FVRO that was separate in time from the series of offences on 5 and 6 June 2019. In my view, the totality principle required that these offences be served cumulatively on the sentence imposed by the District Court.
I note that the offence on 15 June 2019 was also separate in time from the remaining offences and could have been the subject of a cumulative sentence. However, this sentence was not the subject of this appeal and the respondent did not appeal against the sentence on this charge.
I have considered all relevant sentencing factors, including the maximum penalties for the offences, the appropriate discount for the pleas of guilty for each offence, the seriousness of the offences and the matters which aggravate and mitigate the offences. I have concluded that any error made by the learned magistrate has not resulted in a substantial miscarriage of justice, in that the aggregate sentence imposed was correct.
I would not have imposed the same individual sentences in respect of the breaches of the FVRO on 5 and 6 June 2019, as I do not consider that the sentences of 3 months' imprisonment, reflect the seriousness of these breaches. In my view, these breaches are at the highest end of seriousness of a breach of s 61(1) of the Act. However, these sentences are not the subject of the appeal and the respondent did not file an appeal in respect of these sentences. That said, the sentences which were imposed should not, in my view, be considered to be an appropriate benchmark for breaches of this nature.
Orders
Given the error that I have identified, it is appropriate that leave to appeal be granted on both grounds. Otherwise, I dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill8 JUNE 2020
[14] ts (12 February 2020) 6.
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