The State of Western Australia v Burt
[2021] WADC 96
•11 OCTOBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURT [2021] WADC 96
CORAM: PETRUSA DCJ
HEARD: 1 OCTOBER 2021
DELIVERED : 11 OCTOBER 2021
PUBLISHED : 11 OCTOBER 2021
FILE NO/S: IND ALB 77 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MARK FREDERICK BURT
Catchwords:
Criminal law and procedure - Sentencing Act 1995 (WA) s 124E - Declaration that a person is a serial family violence offender - Time for bringing of application - Whether application can be brought after sentence
Words and phrases - With all convenient speed
Legislation:
Criminal Code (WA)
Interpretation Act 1984 (WA), s 63
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), s 124E
Result:
Application granted
Offender declared serial family violence offender
Representation:
Counsel:
| The State of Western Australia | : | Ms E J Martin |
| Accused | : | Ms E A Hamilton |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | T & L Lawyers |
Case(s) referred to in decision(s):
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Re Cosent Investments Pty Ltd [1993] 2 Qd R 244
PETRUSA DCJ:
[This decision was delivered extemporaneously on 1 October 2021 and edited from the transcript.]
On 25 June 2021 the State filed an application pursuant to s 124E of the Sentencing Act 1995 (WA) that Mr Burt be declared a serial family violence offender. It is conceded by the offender that the discretion to make the declaration is enlivened subject to the application being brought in time.
In order to understand this concession, it is necessary to set out the factual background to the application and the relevant legislative provisions. Dealing first with the factual background.
Factual background
On 27 July 2015 Mr Burt was convicted of:
1.breaching a violence restraining order on 17 occasions; and
2.committing two offences against s 304(2) Criminal Code (WA).
The victim of each of these offences was Mr Burt's ex‑wife. The offences had been committed on 13 different days between 5 June 2014 and 22 November 2014.
Next on 13 February 2020 Mr Burt was again convicted of breaching the violence restraining order protecting his ex-wife.
On 17 June 2021 Mr Burt pleaded guilty to, two offences committed on 19 June 2020 against his intimate partner of six months. He pleaded guilty to one count of with intent to harm did an act that caused bodily harm and one count of deprivation of liberty. These are offences against s 304(2) and s 333 Criminal Code respectively. This was effectively the second day of his trial.
On 18 June 2021 Mr Burt was sentenced to a total effective sentence of 4 years 7 months imprisonment.
On 23 June 2021 the State notified the court and the offender of their intention to bring an application pursuant to s 124E. The application was filed on 25 June 2021. The application was therefore brought after Mr Burt had been convicted and sentenced.
Turning now to the relevant legislative provisions.
Legislative framework
Section 124E provides that:
(1)A court convicting an offender of a family violence offence may declare the offender to be a serial family violence offender if -
(a)the offender has, on that conviction, been convicted of at least 2 prescribed offences which may only be tried on indictment, with at least 2 of those prescribed offences having been committed on different days; or
(b)the offender has, on conviction, been convicted of at least 3 prescribed offences, with at least 3 of those prescribed offences having been committed on different days.
(2)For the purposes of subsection (1) -
(a)the victim of each offence may, but need not be, the same person; and
(b)the offences need not be the same offences; and
(c)the offences need not to have occurred in the State as long as 1 of them did; and
(d)1 or more of the convictions may have been convictions by a court outside the State; and
(e)it is immaterial in which order the offences were committed; and
(f)an offence will not be taken into account if the offence was committed by a person who, at the time of the commission of the offence, was under 18 years of age; and
(g)each of the offences taken into account must have been committed within a period of 10 years of each other unless the court is satisfied that exceptional circumstances exist that make it appropriate to make a declaration under this section (after taking into account the matters referred to in subsection (4) and such other matters as the court may consider to be relevant).
(3)A declaration may be made by the court on its own initiative or on an application by the prosecutor.
For the purposes of s124E(1) 'prescribed offence' is relevantly defined in s124D to mean 'a family violence offence'.
The meaning of 'family violence offence' is set out in s 4(1) of the Sentencing Act as follows:
family violence offence means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is ‑
(a)an offence against the Restraining Orders Act 1997 section 61(1) or (1A); or
(b)an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444;
Section 4(1) also provides that:
designated family relationship means a relationship between 2 persons ‑
(a)who are, or were, married to each other; or
(b)who are, or were, in a de facto relationship with each other; or
(c)who have, or had, an intimate personal relationship with each other;
What is encompassed by an 'intimate personal relationship' is set out in s 4(1A) and s 4(1B) of the Sentencing Act. For the purposes of this case that would include 'persons who date each other or have a romantic involvement with each other whether or not a sexual relationship is involved'.
The issues
Clearly Mr Burt meets the criteria set out in s 124E(1)(b) enlivening the discretion to declare him to be a serial family violence offender given that he:
1.was convicted in this court on 17 June 2021 of two offences each of which was a 'family violence offence'; and
2.had been convicted within the last 10 years of at least three offences, each of which was committed on a different day and was a 'family violence offence'.
There remain two matters that must be considered:
1.can the declaration be made after the court has sentenced an offender; and
2.if so, should the declaration be made in this case.
Dealing first with the issue as to the timing of the application.
Can the application be made after sentencing?
Any determination of the question of when an application and/or declaration is to be made relies on applying the general principles of statutory construction. In Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39], French CJ, Hayne, Crennan, Bell & Gageler JJ observed:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Section 124E Sentencing Act does not provide a time within which a declaration is to be made save that:
1.it must be made by a court 'convicting an offender'; and
2.may be made by 'the court on its own initiative or on an application by the prosecutor'.
The term 'convict' or 'convicting' is not defined by the Sentencing Act. Section 3(2)(a) of the Criminal Procedure Act 2004 (WA) does however provide that 'a person is convicted of a charge if a court under section 147(1) enters a judgment of conviction of the offence charged in respect of the person'. Section 147(1) makes clear that a judgment of conviction is entered upon a plea of guilty or a finding of guilt.
Clearly then an application and/or a declaration under s 124E cannot be made until there has been a plea of guilty or a finding of guilt. It is likewise clear that the declaration need not be made at the same time as the entry of a conviction given:
1.section 124E(5) and s 124E(6) allows the court to order an assessment of the offender by an approved expert before making a declaration; and
2.a court would not be in possession of the information relevant to making a declaration on its own initiative.
Section 63 of the Interpretation Act 1984 (WA) provides that:
Where no time is fixed or allowed within which an act or thing shall be done, such act or thing shall be done with all convenient speed and as often as occasion arises.
(emphasis added)
I was not referred to, nor have I found, any decisions of the Court of Appeal that considered the meaning of the words 'with all convenient speed'. However, in Re Cosent Investments Pty Ltd [1993] 2 Qd R 244, 246 Ryan J in considering s 38(5) of the Acts Interpretation Act 1954 (which is in similar terms) said this:
The question of whether an act is done with all convenient speed is an issue of fact and must be answered having regard to the circumstances in which the act is to be done.
The circumstances in which the application and/or declaration is to be made must, consistent with the principles of statutory interpretation, include consideration of its context which includes the statutory framework and the legislative intention.
Statutory framework and legislative intention
A declaration that a person is a serial family violence offender has wide ranging consequences. Those consequence are these.
If, at the time of sentencing for a family violence offence, a person has been declared to be a serial family violence offender then:
(a)electronic monitoring requirements can be imposed as a separate condition of a pre-sentence order, a community-based order, an intensive supervision order or a conditional suspended imprisonment order;[1]
(b)the power to impose electronic monitoring as a separate condition would not otherwise exist in the case of pre-sentence orders and community-based orders;[2]
(c)any court imposing an intensive supervision order or a conditional suspended imprisonment order 'must consider' whether to impose an electronic monitoring requirement;[3]
(d)a court imposing a term of imprisonment 'must declare' any family violence offence to be a serious offence for the purposes of the High Risk Serious Offenders Act 2020 (WA) and the Sentence Administration Act 2003 (WA) pt 5A.[4] Part 5A of the Sentence Administration Act 2003 (WA) allows the Parole Board to make post-sentence supervision orders.
[1] See s 33B, s 62(1)(b)(iii), s 72, s 84(2).
[2] See s 33HA and s 67A.
[3] See s 76A(1A) and s 84CA(1A).
[4] See s 97A.
If, at the time of considering parole for a family violence offence, a person has been declared to be a serial family violence offender then the Parole Board 'must give specific consideration' to imposing an electronic monitoring requirement.[5]
[5] See s 30(2) Sentence Administration Act.
If a declaration has been made under s 97A Sentencing Act and a person has been declared to be a serial family violence offender then a post‑sentence supervision order will be considered and in making any post‑sentence supervision order the Parole Board 'must give specific consideration' to imposing an electronic monitoring requirement.[6]
[6] See s 74G Sentence Administration Act.
If a person who has been declared to be a serial family violence offender is subsequently charged with a family violence offence then only a judicial officer can grant bail for that offence but only if:
1.satisfied that there are 'exceptional reasons' why the person should not be kept in custody; and
2.a home detention bail report has been received and considered.[7]
[7] See cl 3F pt C sch 1 of the Bail Act 1982 (WA).
If a declaration is made, it does not form part of the sentence and a sentence must not be reduced because it was made.[8]
[8] See s 123 Sentencing Act.
Finally, a declaration of a person as a serial family violence offender will have effect for an indefinite period.[9]
[9] See s 123F(2) Sentencing Act.
A declaration that a person is a serial family violence offender will therefore affect an offender's sentence, parole and release from custody if they are declared to be a serial family violence offender after a court has convicted them of a family violence offence but before imposing sentence.
However, a declaration that a person is a serial family violence offender will also affect an offender's sentence, parole, release from custody and bail for any family violence offence committed after a person has been declared.
This is important because it means that an application made 'with all convenient speed' after a court has convicted an offender for a family violence offence, will still have considerable implications for the offender even where the declaration is made by the court after it has imposed sentence for the offences that enabled the court to entertain the application.
This is consistent with the legislative intention.
Section 124E was inserted into the Sentencing Act by the Family Violence Legislation Reform Act 2020 (WA) that amended nine separate pieces of legislation including the Criminal Code and the Sentencing Act. The purpose of this amending legislation as set out in the explanatory memorandum to the Family Violence Legislation Reform Bill 2019 (WA) was:
… to improve the safety of victims of family violence, ensure accountability of perpetrators of family violence, and increase responsiveness of the justice system by making it easier and less traumatic for victims to obtain protection from violence.
Specifically, in relation to s 124E the explanatory memorandum says:
The purpose of the declaration is to identify those offenders who repeatedly commit family violence offences against a single partner or multiple and successive partners. It recognises that serial family violence offenders present a high risk of repeat and escalating offending. The declaration will allow these offenders to be more easily identifiable to the police and courts.
Consistent with the words of s 124E the explanatory memorandum does not identify when an application for a serial family violence offender declaration should be made. This is so, notwithstanding the comments of the Attorney General, in the second reading speech that:[10]
A declaration is to be made prior to the court sentencing the offender for the offence for which they came before the court.
[10] Hansard, 27 November 2019 at p 9427b.
Can the application be made after sentencing - conclusion
In my view then an application for a declaration pursuant to s 124E must be made 'with all convenient speed' after a court has convicted an offender of a family violence offence. The date of the conviction is the relevant date. Ordinarily any application made after conviction but before sentence is imposed would, in my view, be made 'with all convenient speed'. This is because any application brought in this period would allow the court an opportunity to determine the application before imposing sentence and therefore visit on the offender the consequences that flow from that declaration when imposing sentence.
However, there may be circumstances where an application can be made after both conviction and sentence. In such a case, the sentence that has already been imposed will not be affected by the declaration (except perhaps if parole needs to be considered). The same is also likely to be true if an application is made before the sentence is imposed but a court does not determine the application until after it has imposed sentence. In each of these cases the sentence is complete and there is no means by which the sentence could lawfully be amended to take into account the consequences of the making of the declaration.
I am satisfied that the application in this case has been made 'with all convenient speed' given:
1.the plea of guilty was unexpected and came on the second day of trial;
2.the sentencing took place on the day after conviction;
3.the application was made on the sixth working day after conviction having been foreshadowed on the fourth working day after conviction;
4.the failure to make the application was a matter of oversight in circumstances where s 124E was a recent enactment that had yet to be widely used or understood; and
5.there is no prejudice to the offender. To the contrary, the ramifications of a declaration under s 97A cannot now be visited upon his sentence if a declaration is ultimately made.
Turning now to whether the declaration should be made in this case.
Should the declaration be made in this case?
It clear that the making of a declaration that an offender is a serial family violence offender is a discretionary matter. Section 124E(4) Sentencing Act provides:
Without limiting any other matter that a court dealing with an application under this section may consider to be relevant, the court must have regard to the following-
(a)the level of risk that the offender may commit another family violence offence;
(b)the offender's criminal record;
(c)the nature of the prescribed offences for which the offender has been convicted.
The offending the subject of the charges before this court occurred in a caravan on the night of 19 June 2020. The victim had been in a relationship with Mr Burt for about six months. The offending involved various acts of physical violence by Mr Burt including:
1.straddling the victim's chest;
2.putting his hand over her mouth;
3.forcing the side of his hand into her mouth;
4.pushing his hand into her mouth and down her throat after he had wrapped his fingers in a blanket;
5.putting his hand around her throat and strangling her for 10 ‑ 20 seconds;
6.pushing the victim into the corner of the kitchen and grabbing her by the hair when she tried to flee;
7.forcing her onto a bed and holding her there; and
8.thwarting all her attempts, both physical and otherwise, to leave the caravan.
As a result of this offending the victim had a lesion to the right lateral lower part of the uvula and a sore throat making it hard for her to swallow. Her tonsils subsequently became infected.
When spoken to by police Mr Burt denied the conduct and blamed the victim suggesting that her injuries and complaint were the result of her excessive consumption of alcohol.
The conduct was not an isolated event but part of a pattern of conduct against her. During the course of their six-month relationship, Mr Burt had broken her finger, frightened her by driving erratically, punched her repeatedly in the face and kicked her in the back. On a number of prior occasions, he had choked her, grabbed her and held her down.
This offending occurred 12 months after Mr Burt had been released from custody having served the full term of the five-year sentence imposed on 27 July 2015 and four months after he was sentenced for an offence of breach of violence restraining order that occurred on 16 January 2020.
Two of the offences for which Mr Burt was sentenced on 15 July 2015 were particularly serious. Those were the two offences against s 304(2) Criminal Code.
They occurred respectively on 9 and 16 June 2014. A violence restraining order protecting the victim, Mr Burt's ex-wife, was in force at the time.
The offence committed on 9 June 2014 involved Mr Burt putting one end of a rope around his ex-wife's neck and tying the other end to the roll bar of his vehicle. He then drove about 800 m forcing the victim to jog behind the vehicle with the risk that if she did not keep up she would be dragged along and the rope would tightened around her neck thereby interfering with her ability to breath. As he drove Mr Burt yelled 'run you dog and don't stop or I will go faster'. This was done in the presence of Mr Burt's 18-year-old son who was of course also the victim's son.
Subsequently on 16 June 2014 Mr Burt pursued his ex-wife as she drove along Albany Highway intent on speaking with her. During the pursuit he drove at speed and at times cut her off or blocked her path. Eventually, he intentionally caused the front corner of his vehicle to strike the driver's side rear area of the victim's vehicle causing it to roll at least two full rotations before coming to a rest on its roof. As a result, the victim sustained lacerations to her arms.
All of the breaches of the violence restraining order that occurred in 2014, occurred whilst Mr Burt was in remand in custody for the s 304(2) offences. They all involve communications between Mr Burt and his son during which he asked that messages to be given to his ex‑wife directing her to withdraw the violence restraining order and/or the charges and generally making threats.
Mr Burt was also convicted in the Albany Magistrates Court on 13 February 2020 for breaching the violence restraining order protecting his ex-wife. This offence occurred on 16 January 2020 and involved Mr Burt asking his daughter to pass on a threatening message to her mother.
As this history makes clear Mr Burt has repeatedly committed serious acts of violence against his partners. Further despite serving his full five-year sentence and successfully completing courses relating to behaviour management and domestic and family violence he committed serious offences of family violence within 12 months of his release.
Consequently, I am satisfied that Mr Burt poses a danger to women with whom he has an intimate relationship and it is very likely that he will commit another family violence offence.
In addition to the offences of family violence that I have referred, Mr Burt has two convictions for attempting to interfere with witnesses. These offences are related to his offending against his ex-wife and efforts to have those charges discontinued. These offences also speak to his level of risk.
Given all these matters I am persuaded that I should exercise my discretion to make the declaration. I therefore declare Mr Burt be declared a serial family violence offender.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa
11 OCTOBER 2021
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